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University of Amsterdam 2019-2020
MASTER THESIS
Luke Meaton Professor T. D. Gilli | P a g e
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NATO’s Resilience Doctrine in
International Legal Perspective
By
Luke Meaton
Supervised by Professor T. D. Gill†
2020
†Terry Gill is Professor of Military Law at the University of Amsterdam and the Netherlands Defence Academy. He is Director of the Research Program on the Law of Armed Conflict and Military Operations at the Amsterdam Centre for International Law and of the Netherlands Research Forum on the Law of Armed Conflict and Military Operations (LACMO).
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Contents
Research Objective and Research Questions 1
CHAPTER I
1. Introduction 5
CHAPTER II
2. The Increasing Importance of Resilience to NATO 10
2.1 Definition 11
2.2 Resilience in operational task verb language 17
2.3 Categorisation 20
2.3.1 Levels of Operation 24
2.4 The importance of resilience to NATO 25
2.4.1 NATO, Article 3 and Resilience 27
CHAPTER III
3. Resilience in Doctrine 29
CHAPTER IV
4. Resilience and the International Law of Military Operations 34
4.1 The NATO Treaty and Resilience 35
4.2 IHL and IHRL 38
4.2.1 IHL 38
4.2.2 IHRL 39
4.2.2.1 Conventional IHRL 40
4.2.2.2 Customary IHRL 42
4.3 Relationships with Article 3 44
CHAPTER V
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Research Objective
This thesis will analyse NATO’s resilience doctrine from an international law perspective, applying international legal principles and rules against the doctrine in order to answer the question; what is NATO’s resilience doctrine in international legal perspective? The
systematic exposition of the principles, rules and concepts formulates the basis of this research objective and will attempt to frame NATO’s resilience measures and practices within the international law of military operations system.
Chapter I begins with an important overview of NATO today, as this to a large extent
contextualises the need for resilience. Chapter II defines resilience in the NATO international legal perspective, beginning with charting the general rise of resilience. The definitional section (section 2.1) breaks resilience down into six elements that can generally be seen in a chronological order, and can be perceived in layers like an onion. The next section (2.2) will apply military techniques, tactics and procedures (TTPs) to each element, describing what this would look like from an operational perspective. Section 2.3 categorises the contexts that resilience operations may be conducted in, indicating that different legal frameworks can apply. Section 2.4 summarises the stated importance of resilience to NATO.
Chapter III describes what doctrine means to NATO and suggests that NATO’s resilience doctrine could be transitioning from aspirational to recommended (though still short of obligatory), chiefly through the association with Article 3.
Chapter IV analyses resilience operations against rules and principles of international law of military operations.
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What is NATO’s resilience doctrine in international legal
perspective?
1. ‘What is the definition and content of resilience in NATO doctrine?’ Chapter II seeks to define and elaborate NATO’s resilience doctrine, breaking the definition down to six cyclical elements or layers.
2. ‘What type of threats is NATO resilience doctrine designed to address?’ Chapter II
identifies the threats that a strong resilience doctrine could address, concluding with NATO’s declared resilience building objectives. A selection of declared objectives are deeply
analysed in Chapter III.
3. ‘How is resilience in the NATO context related to collective self-defence and other provisions of mutual assistance in the NATO treaty?’ Resilience is increasingly being associated with Article 3. Article 3 complements the collective defence clause set out in Article 5, leading Article 3 to be described as the first line of defence. This Thesis suggests Article 3 will create resilience building obligations.
4. ‘How will specific rules of international operational law be integrated and applied within the NATO resilience doctrine?’ Chapter IV concludes that resilience operations are inherently consensual based and no specific rule applies to the NATO resilience doctrine.
5. ‘How has the resilience doctrine been operationalised?’ Chapter II identifies how the resilience doctrine can be operationalised in Chapter II, and then identify how NATO has, in a selection of examples, operationalised resilience in Chapter III.
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Abstract
Purpose
1. The purpose of this thesis is to provide the legal framework and suggestions for a series of NATO Joint Doctrine Publication (JDP) on ‘Building Resilience’. The Building Resilience series will provide context and guidance on how, and why, NATO should build resilience.
Context
2. The JDP Building Resilience series comes more than 10 years on from the now increasingly outdated 2010 Strategic Concept. The Building Resilience series recognises a deliberate shift towards modern realities. The need for cross-ally cooperation, cohesion and understanding as part of an integrated approach is fundamental for collective resilience.
Scope
3. The JDP Building Resilience series should sit within the Allied Joint Publication 3 (AJP-3) Series, Conduct of Operations. The primary focus of the JDP Building Resilience series is resilience, however this publication will focus on NATO’s Sub-Article 5 resilience building activities. This is fundamentally inward-looking and would roughly fall under NATO’s core principal task of collective security.
4. In producing the Building Resilience series, a variety of stakeholders should be consulted. Additionally, advice and input should be sought from a range of sources both inside and outside the military. However, it is important to understand that this is principally a military publication for a military audience.
Audience
5. The primary audience for JDP Building Resilience series is military commanders and their respective staffs who are (or will become) involved in military operations that
contribute to resilience through the mechanism of resilience-building operations.
Structure
6. This thesis follows the recommended structure for a JDP Building Resilience series. a. Chapter I – Context introduces how the contemporary operating environment
necessitates the need to resilience building.
b. Chapter II – Understanding the rise of resilience. How it is defined, categorised and the importance of resilience based on contemporary threats.
c. Chapter III – What doctrine is to NATO, and the ‘end, ways and means’ on some sub-Article 5 operations and strategies related to resilience, focusing on the military contribution.
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CHAPTER 1
1. Introduction
NATO is the most successful alliance in history.1
Jens Stoltenberg, NATO Secretary General. August 2019
What we are currently experiencing is the brain death of NATO.2
Emmanuel Macron, French President. November 2019
NATO is a military defence alliance, not a catch-all security alliance.3
Elisabeth Braw, Senior research fellow, RUSI’s Modern Deterrence Project. December 2019
1NATO, ‘Speech by Jens Stoltenberg at the Centre for Strategic Studies at Victoria University of Wellington in
New Zealand’ in NATO Speeches and Transcripts 5 August 2019
https://www.nato.int/cps/en/natohq/opinions_168242.htm accessed 25/04/2020
2 Economist, ‘Emmanuel Macron Warns Europe: NATO Is Becoming Brain-Dead’ (2019) in The Economist 7
November 2019 <https://www.economist.com/europe/2019/11/07/emmanuel-macron-warns-europe-nato-is-becoming-brain-dead>. Accessed 20/04/2020
3 Elisabeth Braw, Senior research fellow, RUSI’s Modern Deterrence Project on BBC, ‘Is NATO Obsolete?’ (2019)
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NATO defines itself as a political and military alliance whose principle task is to ensure the protection of nearly 1 billion citizens of its member states and to promote security and stability in the North Atlantic area.4
For its supporters, the North Atlantic Treaty Organisation is the most successful military alliance in history. Founded in the Cold War to defend Western Europe against the Soviet Union, it saw off Communism without firing a shot, it expanded to take in new members, went to war in the Balkans and it embarked on ‘out of area’ operations in Afghanistan; way beyond the alliance’s traditional borders. But it is now living in a much more complex world. At its outset, NATO had a smaller membership and a clearer purpose. When asked how many people worked at NATO, the 1971 - 1984 Secretary General Joseph Luns replied ‘50 per cent’, a tacit acknowledgement that the lack of action was a criterion of success. Historically NATO was a very mono-focused organisation, an alliance dealing with one thing at one time. First the Cold War, then 10 years trying to contain conflict in the Balkans following the collapse of Yugoslavia, then a Chapter VII enforcement operation (ISAF) subsequent to the United States’ Article 55 invocation following 9/11. It is now dealing with
substantially more than just one strategic front. The world may or may not be more dangerous now than at any point of NATO’s 70 years, but it is certainly more complicated. Pursuing goals to “safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law”,6 under the
2010 Strategic Concept’s three core tasks,7 NATO has launched humanitarian assistance
missions,8 anti-piracy operations,9 peace enforcement operations10 and military training
missions.11 It is currently engaged in six of these ‘sub’ or ‘non-Article 5’ operations, and
4 NATO, ‘NATO’s Purpose’ [2018] https://www.nato.int/cps/en/natohq/topics_68144.htm accessed
21/04/2020
5 North Atlantic Treaty (1949) Art 5
6 Ibid 5, Preamble
7 Collective defence, crisis management and cooperative security, in NATO, ‘Strategic Concept’ [2010] 8 For example, NATO relief mission to Pakistan (11 October 2005 – 1 February 2006)
9 For example, Operations Allied Provider (24 October – 13 December 2008), Allied Protector (24 March – 29 June 2009) and Ocean Shield (17 August 2009 – Present)
10 Operations Deadeye (30–31 August 1995), Deliberate Force (5–14 September 1995), Joint Endeavour (IFOR, 20 December 1995–20 December 1996), Joint Guard / Joint Forge (SFOR, 20 December 1996–2 December 2004), Allied Force (24 March–20 June 1999), Allied Harbour (26 April–30 August 1999), Joint Guardian (KFOR, 12 June 1999 – present), International Security Assistance Force (ISAF, 11 August 2003 – present).
11 NATO Training Mission – Iraq (NTM-I, 7 August 2004 – present), Operation Resolute Support (June 2014 – present)
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recently conducted exercise Trident Juncture,12 its largest exercise in decades. Under Article
9 of the North Atlantic Treaty (NAT), the North Atlantic Council (NAC) has created subsidiary bodies, known as NATO agencies. The Ottawa Agreement gives these agencies the same legal status as NATO.13 The now four agencies,14 are similarly busy supporting seven
operations and activities in 2020, offering more than 150 services,15 including spearheading
NATO’s logistical response to the COVID-19 pandemic16 and overseeing more than 300
scientific projects.17
A lot has been written describing a ‘new Cold War’, but this is a false analogy. The present situation is substantially different. It is no longer an ideological contest in a bipolar system between the United States and the Soviet Union. Although many echoes and remnants of the Cold War still exist, the posturing, objectives and conduct of Russia and the NATO members and other affected States in the vicinity of Russia has changed – as have some players and their targets. For NATO, acting under Article 10 NAT, it has brought 14 new members into the Alliance since the end of the Cold War, including four Balkan States and three Baltic States, bringing NATO countries 500 miles closer to Moscow, into what Moscow considers its natural orbit. While NATO will not overtly operate in Asia any time soon, China’s growing and ambitious economic and strategic reach is gradually encroaching into NATO territory. NATO recognises the near-future threat posed by China necessitates a credible defence architecture for the future, especially in the ‘fourth domain’,18 cyberspace,
recently adding that all members should revisit all available instruments and make them fit for purpose.19 NATO also recognises the strengthening of Russia-China relations as a new
12 International Institute for Strategic Studies, ‘Chapter Four: Europe’ in The Military Balance [2019] 13 Agreement on the status of the North Atlantic Treaty Organisation, National Representatives and
International Staff signed in Ottawa, ‘Ottawa Agreement’ (1951) art 1(c)
14 Once 14 agencies. NATO, ‘Organisations and Agencies’ [2020]
https://www.nato.int/cps/en/natolive/topics_66470.html (accessed 21/04/2020)
15 NATO Communications and Information Agency (NCIA) ‘What we do’ [2020]
https://www.ncia.nato.int/what-we-do.html (accessed 26/04/2020)
16 NATO Support and Procurement Agency (NSPA) ‘Coronavirus response: NATO Support and Procurement
Agency assists Italy, Spain and Norway’ [2020]
https://www.nato.int/cps/en/natohq/news_175073.htm?selectedLocale=en (accessed 26/04/2020)
17 NATO Science and Technology Organisation (STO) ‘What we do’ [2018]
https://www.nato.int/cps/en/natohq/topics_88745.html (accessed 26/04/2020)
18 NATO, ‘Warsaw Summit Declaration’ [2016] para 70
https://www.nato.int/cps/en/natohq/official_texts_133169.htm (accessed 26/04/2020)
19 Janka Oertel, ‘NATO’s China Challenge’ in Future NATO: Adapting to New Realities [2020] pg 79 – Suggesting
that members should revisit [legal] instruments to make them fit for purpose marks a deviation in previous legal advice. See Tallinn Manual 2.0 and Steven Hill’s ‘Current International Law Challenges Facing NATO’
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reality.20 Pursuing a 360-degree approach to security, in 2016 NATO expanded the remit of
Operation Active Endeavour into a much wider non-Article 5 maritime security framework called Operation Sea Guardian, combatting terrorism, uncontrolled migration and human trafficking, which present considerable challenges to the southern flank of Europe. NATO has always had critics, with some academics now believing NATO is trying to do too much, defining NATO as a military defence alliance, not a catch-all security alliance, and that new and additional tasks should be left to other organisations.21 This is echoed by some
intra-alliance tension, with large members, United States, France and Turkey doubting the value of the alliance, each other’s value and commitments.22 Most famously, French
President Emmanuel Macron’s ‘brain death’23 interview exemplifies the strongest of
contemporary criticism, with President Donald Trump amplifying the United States’
recurring defence spending obligation critique louder than those prior to his tenure. Despite some progress in cooperation with The European Union,24 difference in strategic and
political objectives remain, with the Union itself looking less certain now than it did 15 years ago. NATO’s founding principles are being tested with some allies accused of human right abuses (Turkey25), dismantling of democratic institutions and the rule of law (Hungary,26
Turkey,27 Poland,28) whilst nationalism and populism continues to rise across the alliance,
potentially weakening leadership and support for the organisation.
Regardless of such criticism, the reality is that NATO is addressing the security implications of the evolving global power structure for Euro-Atlantic security. This Thesis posits that strategy and tactics are dictated by time and space; the highly complex, multipolar threat
[2019] pg 9. Both suggest that the application of existing law and norms to these new technologies will suffice, though both recognise further conversation and advice is needed.
20 Ibid 19, pg 74 21 Ibid 3
22 Fabrice Pothier (Senior defence consulting fellow at IISS), on BBC, ‘Is NATO Obsolete?’ (2019) in The Inquiry
19 December 2019 <https://www.bbc.co.uk/programmes/w3csyth3>. (Accessed 20/04/2020)
23 Ibid 2
24 Steven Hill, ‘Current International Law Challenges Facing NATO’ in NATO Legal Gazette [2019] page 9 25 Human Rights Watch ‘Turkey: Events of 2019’ in Country Chapters [2020]
https://www.hrw.org/world-report/2020/country-chapters/turkey
26 Human Rights Watch ‘Hungary: Events of 2019’ in Country Chapters [2020]
https://www.hrw.org/world-report/2020/country-chapters/hungary
27 Human Rights Watch ‘Turkey: Events of 2019’ in Country Chapters [2020]
https://www.hrw.org/world-report/2020/country-chapters/turkey
28 Human Rights Watch ‘Poland: Events of 2019’ in Country Chapters [2020]
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environment that exists necessitates building more resilient societies and systems. NATO and its member States have adopted varying measures aimed at improving resilience, but this doctrine must be subjected to a normative-conceptual legal analysis. Failure to do so could leave scope for abuse of power under the generally positive guise of resilience building. Whilst NATO is a security organisation, the post 9/11 trend has been to frame a wide range of activities within a security context, therefore widening NATO’s scope of operations. The successful definition of NATO’s resilience doctrine could have wider application, to other international organisations, international non-governmental organisations and States.
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CHAPTER 2
2. The Increasing Importance of Resilience in NATO
Resilience is not an entirely new doctrinal term of art. Despite this, as far as I have been able to establish from a survey of English texts, there exists neither a universally endorsed
definition nor a consistent cogent theoretical, normative or operational treatment generally or specifically within in the international law of military operations and collective security dimension.
The gradual increase in attention of resilience in scholarly work and military parlance and posturing suggests a deliberate, albeit still hesitant, attempt to view a new security debate through the evolving global power structure for the modern-day Euro-Atlantic threat and political environment.29
Whilst this reignited scholarly interest and military strategy seems to depart from enforcement, stability, peacekeeping or reassurance-focused operations or tailor-made mandates, one has to ask: is the resilience doctrine merely a new label for an old phenomenon; or does it actually bring something new to the table?
International institutions, government agencies and departments, international non-governmental organisations and community groups are all promoting the importance of resilience, formulating various conceptions of what it might be and how to achieve it and developing indicators to measure it.30 However, with the rapid rise of resilience has come
uncertainty as to how it should be built and how different practices and approaches should come together to operationalise it.31
29 Elaborate: hybrid and cyber threat (post-Tallinn, Crimea) and political environment (post-Iraq, Brexit, Trump, Neo-Liberalpost-Crimea/ post-stability operations (?)/ post-Iraq/ cyber ops/ hybrid warfare/ neo-liberal/ hands off/ 21st century/ post Crimea/ post Iraq/ civil-military lens.
30 David Chandler and Jon Coaffee, ‘The Routledge Handbook of International Resilience’ [2016] The Routledge Handbook of International Resilience 1.
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2.1 Definition
Figure 1 - The complexity of Resilience
As the reader will observe from the contents page, even within this Thesis’ NATO-focus resilience is a multi-faceted concept branching into all areas of NATO practice.
Commenting on the contemporary operating environment NATO recognises ‘conflict is less likely to end in clear ‘victory’ and it will be resilience and institutional agility that will define the Alliance’s chances of success as much as technological mastery.’32
For NATO,
‘Resilience is a society’s ability to resist and recover easily and quickly from such shocks and combines both civil preparedness and military capacity,’33
Adding that,
‘Resilience is a broad concept focusing upon continuation of basic governmental functions. Resilience is the combination of civil preparedness and military capacity’.34
Being a ‘broad concept’ resilience is also found further afield in other areas, such as humanitarian and disaster relief, psychology, business and finance, mental and physical
32 NATO, ‘Allied Joint Doctrine (AJP)-01’ (Edition E Version 1) [2017]
33 NATO, ‘Resilience and Article 3’ https://www.nato.int/cps/en/natohq/topics_132722.htm [2020] (accessed 02/06/2020)
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health, science and technology and international development sectors. This Thesis will analyse resilience as employed chiefly under NATO’s founding constitutive security objectives, and will consider the various areas when they intersect the security domain. Resilience definitions are often taken a step further, including a ‘before’ element.35 The UK
Ministry of Defence (MOD) Joint Doctrine Publication repeats UK Government’s Cabinet Office definition of resilience as;
‘The ability of the community, services, areas or infrastructure to detect, prevent, and, if necessary to withstand, handle and recover from disruptive challenges.36
The UK is a leading contributor to NATO doctrine. This thesis will include a ‘before’ element in the definition, using the UK Government’s ‘detect’ and ‘prevent’ elements. This is
because resilience is not only reactive, but predictive and ‘forward defensive’, particularly in NATO’s security context. Recognising this security context is crucial, as it has been identified that defining resilience is context dependent.37 The italicised words in the quotes make up
the foundation of the proceeding analysis; detect; prevent; resist; withstand; handle and recover.
Constructing ‘detect’ into NATO’s resilience doctrine is not just poetic legal licence. A wide analysis of resilience definitions frames resilience in terms of ‘before, during and after’.38 In
35 See, for example Atlantic Council, ‘Resilience’ [2020] https://www.atlanticcouncil.org/issue/resilience/ and UK MOD, ‘Joint Doctrine Publication (JDP) 02, UK Operations: the Defence Contribution to Resilience and Security’ (Third Edition) [2017] and The Routledge Handbook of International Resilience [2016].
36 Ibid 35
37 Centre for Security Studies, ‘Measuring Resilience: Benefits and Limitations of Resilience Indices’ [2012] 38 See, Ibid 35, The Routledge Handbook of International Resilience [2016].
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the Allied Joint Doctrine AJP.2.7 for Joint Intelligence, Surveillance and Reconnaissance (JISR) and the supporting British Army’s Field Army Warfare Branch Doctrine Notice,39 the
term ‘detect’ is used 60 times. All usages relate to NATO and NATO ally’s ability to detect changes in adversary activities, to provide early warning of activity or more generally securing data. ‘Detect’ supports the collection phase of the intelligence cycle. NATO and NATO allies will only be as resilient as their intelligence allows; “All the business of war, and indeed all the business of life, is to endeavour to find out what you don’t know from what you do.”40
In the Allied Joint Doctrine AJP-3.19 for Civil-Military Cooperation that gives NATO’s definition of resilience, ‘prevent’ is frequently used, with 9 of the 14 usages of ‘prevent’
being related to situations where resilience building can considered as a fundamental measure in preventing breaches or threats to; cyberspace defence;41 crisis response;42 countering
irregular activities;43 chemical,
biological, radiological and nuclear (CBRN) defence;44 military engineering,
specifically as a function in support of operations to shape the physical operating environment;45 countering improved explosive devices (C-IED);46 protection of
civilians (PoC);47 women, peace and security agenda;48 and cultural property protection.49
39 British Army, ‘Intelligence, Surveillance and Reconnaissance Doctrine Notice 16/06’ in Warfare Branch, HQ Field Army pg 3
40 The Duke of Wellington, in British Army, ‘Intelligence, Surveillance and Reconnaissance Doctrine Notice 16/06’ in Warfare Branch, HQ Field Army pg 3
41 Ibid 34 p 3.21 42 Ibid 34 p 3.24 43 Ibid 34 p 3.24 (e) 44 Ibid 34 p 4.7 45 Ibid 34 p 4.8 46 Ibid 34 p 4.9 47 Ibid 34 B-2 (c) 48 Ibid 34 p B-10 49 Ibid 34 p B-12 Detect Prevent Resist Withstand Handle Recover
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In building ‘detect’ and ‘prevent’ into the chronological beginnings of the definition of resilience, we start to build a cyclical or graduated nature of resilience. See figures 3 and 4 illustrating a flowchart and an onion diagram depicting the cyclical or graduated nature of resilience. This is important, as in a recent criticism by RUSI it was said that resilience;
‘delivers an easy and false panacea of performative gestures that, in
themselves, do little to protect or make us more resilient … resilience is indefinite in scope and duration. It can, in theory, become a permanent state of affairs. … Resilience is by its nature aspirational. … Nobody can reach a perfect state of resilience. … The more that people seek resilience, the more vulnerable they are likely to feel, especially during the crisis like the one now underway [COVID-19]. … more likely to turn to ever more blatant and
expensive performances of ‘resilience’, instead of attempting to achieve a resilient state. In the performance, the aspiration is lost.’50
It is argued here that the identification of the cyclical or graduated nature of resilience makes pursuing resilience-building accessible, tangible, measurable and allows operational commanders to plan a sufficient resilient end state. In section 2.2 I will then hang existing and recognised operational task verbs, military jargon, onto this framework, in order to further operationalise each step.
Like most cyclical flowcharts, sometimes an unrealistic and deterministic picture is
portrayed; of course, most threats may be eliminated by resilient preventative measures at the ‘prevent’ point, and whilst there may be overlaps at different points in the cycle, the rudimentary flowchart illustrates the general flashpoints that resilience focused measures
50 Weisbrode and Yeung, ‘Some thoughts on the current fad for pledges to enhance national resilience’ in RUSI’s Resilience Theatre [29 April 2020] https://rusi.org/commentary/resilience-theatre accessed 04/06/2020
Detect Prevent Resist Withstand Handle Recover
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can be linked to. In identifying these flashpoints, an effort to pinpoint associated activities can be made and hung onto the framework. In conceptualising resilience in this way, a systematic exposition of the principles, rules and concepts governing NATO’s resilience doctrine in international legal perspective can begin to be made.
Resilience can also be conceptualised in layers, whereby ‘detect’ is the outer ring of resilience onion; the first barrier seeking to intercept threats. In progressing inwardly, the onion transitions from external resilience building measures to more internal measures. The volume of the individual circle arguably reflects a reality of resilience; less attention is paid to internal measures. This is illustrated in Figure 4.
Figure 2 offers brief definitions of the six stages of resilience that the analysis of this Thesis is premised on. Figure 5 illustrates the possible changing of focus that may be required within the resilience paradigm. It identifies three groupings, and depicts how the emphasis on
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each grouping may change depending on the operational context. As demonstrated in the flowchart and the onion, ‘Detect’ and ‘Prevent’ are the first or outer layers of NATO’s resilience doctrine. This outer layer will be the first barrier and main effort of resilience for NATO in both peacetime and ‘Sub-Article 5’ contexts, particularly in response to hybrid threats. ‘Resist’, ‘Withstand’ and ‘Handle’ will likely feature more in conflict scenarios, or armed conflict Article 5 contexts and will then become the main effort. ‘Recover’ will take on a different meaning depending on the context, but in the more identifiable armed conflict Article 5 scenario, ‘Recover’ will be more practiced and greater levels of effort will inherently already be invested into this element of resilience. This illustrates how resilience building must be tailored to an operating context; pursuing resilience focused measures in nuclear defence for example, will almost certainly not be necessary when supporting peacekeeping operations.
To conclude this section, NATO’s resilience doctrine is defined as detecting, preventing, resisting, withstanding, handling and recovering from external threats. These elements can generally be seen in a chronological order, and can be perceived in layers like an onion. The amount of effort put into each element will be dependent on the operating environment. The next section (2.2) will hang military techniques, tactics and procedures (TTPs) to each element, identifying what this would look like in an operational perspective. Section 2.3 will place the different types of operations into four categories.
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2.2 Resilience in operational task verb language
There is often a gap between academic theory and operational practice. I will suggest here, chiefly using the UK MOD’s JDP 0-01.1 ‘UK Terminology Supplement to NATOTerm’51 and
NATO’s APP-6(C) ‘NATO Joint Military Symbology’52 that each of the resilience headings
identified can be translated into a specific military ‘operational task verb’ used in operations or in pursuit of building resilience of NATO’s three essential core tasks.
In doing so, the resilience building operational language taskings can be identified and examples linked to international law. This synergy of academia, military operationalisation and legal grounding marks the foundations to systematically expose of the principles, rules and concepts behind NATO’s resilience doctrine. This synergy is depicted in Figure 6.
Figure 6 - Resilience synergy
Figure 7 lists each of the six identified resilience elements. Up to four associated operational task verbs are then linked to each resilience element. Examples are then included.
Resilience building does not necessarily have to be an “operation”. An advisor flying into offer specialist skills may not necessarily amount to an operation, nor would the sale of missile defence systems. As demonstrated in Chapter IV, this operation/ non-operation (from now onwards, ‘operations’ and ‘activities’ or O&A), may be relevant in international legal perspective.
51 UK MOD, ‘Joint Doctrine Publication (JDP 0-01.1) UK Terminology Supplement to NATOTerm’ [2019] 52 NATO, ‘Allied Procedural Publication (APP-6) Joint Military Symbology’ [2011]
Resilience Element
Operational Language
Example TTP
International Law
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2.3 Categorisation
This Thesis builds on existing scholarly categorisation of NATO operations, by suggesting a reconceptualisation into the following four groups. This is relevant as the operational
context will produce a different focus within the resilience doctrine. The operational context may also trigger,53 or necessitate obligations (by substance54 or by geography55) in different
bodies of international law. The four groups include; 1. Article 5 operations
2. Out of area Article 5 operations and activities. 3. Sub-Article 5 activities
4. Non-Article 5 activities
Whilst Article 5 activities are more obvious – conduct of hostilities operations when Article 5 is triggered by an armed attack on a NATO member or group of members in the exercise of the right of self-defence. The legal basis for this is found under Article 51 UN Charter56 - the
final three need to be elaborated. The rationale for this reconceptualisation is twofold. Firstly, ‘sub-Article 5’ and ‘non-Article 5’ are commonly used interchangeably, when the reality is that they literally mean different things. Secondly, in being used interchangeably the terms are becoming a ‘catch-all for anything that is not Article 5 which makes it fairly meaningless’.57
‘Out of area’ is to mean operations conducted outside of the North Atlantic area as defined in Article 6.58 Out of area activities do not invoke the Article 5 collective self-defence as
recognised by Article 51 of the Charter of the United Nations. O&A will be ‘out of area’ and defensive in the sense that they seek to achieve, by second or third order effects, defence to NATO allies. Out of area operations will find their legal basis in Security Council Resolutions, and/ or consent of the host nation. Current examples include NATO’s Resolute Support in Afghanistan, NATO Mission Iraq, support to the African Union, NATO’s pledges to boost
53 International Humanitarian Law 54 International Human Rights Law
55 International Law of the Sea and Airspace regulations 56 Article 51, UN Charter 1945
57 Private email with Professor Terry Gill [06/05/2020] 58 Ibid 5, Article 6 [1949]
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defence capabilities and build the resilience of its partners Ukraine, Georgia and the Republic of Moldova to resist outside pressure and to advance reforms.59 These examples
have primary objectives of supporting host governmental functions and/ or monitoring areas of interest, but NATO has a clear interest in supporting these aims for its own second or third order security reasons. These ‘out of area’ resilience building operations are similar to, and often shared aspects of, stabilisation and reconstruction (S&R) operations.60 There
are, however, fundamental differences to S&R operations. Firstly, S&R are categorised as crisis response operations, secondly, S&R are inherently outsider led; as evidenced by Security Council Resolution authorisation and often characterised with additional (though not strictly required) legally sufficient, but often unaccommodating, host nation
acquiescence.61 This is opposed to resilience operations which are not necessarily triggered
by a crisis, or authorised by a Security Council Resolution; agency very much remains with the host nation. Unlike S&R operations, building resilience intrinsically has no agenda, no “right” or “wrong”. To exemplify, whilst an important and common aim of S&R is
disarmament and demobilization62 resilience building may well include arming and
mobilising as a resilience building objective. NATO’s recognises that crisis management in the S&R sense is no longer feasible, particularly as an individual pursuit, and is shifting its effort from interventions to assistance.63
Sub-Article 5 activities refers to security related activities undertaken with NATO members which address situations in the grey zone that fall just under an armed attack and therefore under the possible triggering of Article 5. The key difference to ‘forward-defensive’ is geography and consent. Sub-Article 5 activities will be conducted in ally territory, and the activities will not be dependent on consent from a non-ally. This Thesis presumes that Allies will consent to NATO O&A conducted on their territory. Current operations include
Enhanced Forward Presence (EFP) Air Policing mission and ongoing capacity building against grey zone hybrid threats, most obviously cyber warfare but also conventional weapon
59 NATO, ‘Summit Guide’ from NATO Summit Warsaw [2016] pg 4
60 NATO, ‘Allied Joint Doctrine (AJP)-3.4.5 For The Military Contribution to Stabilization and Reconstruction’ (Edition A Version 1) [2019]
61 Gill and Fleck ‘The Handbook of the International Law of Military Operations’ [2015] Pg 5 62 Ibid 60 pg 1-4
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defence and the military contribution to civil preparedness. As will be seen in Section 2.4, NATO is beginning to explicitly link sub-Article 5 measures to Article 3 of the NAT.
Non-Article 5 activities can be distinguished from Sub-Article 5 activities in the sense they are not directly security related. This is an evolving space and reflects what Klabbers calls the ‘Frankenstein problem’.64 This is the recognition that international organisations, in
employing the implied powers doctrine, “those powers which, though not expressly provided in the Charter, are conferred upon [them] by necessary implication as being essential to the performance of [their] duties,”65 begin to expand beyond their original
constitutive remit. As discussed in Chapter I, NATO is operating in various fields, and as already identified, resilience has a broad66 application. Current examples would include
NATO’s COVID-19 support, NATO’s environmental protection policies discussed in NATO’s most recent Legal Gazette publication67 and other disasters, such as NATO’s assistance to
Albania after severe rainfalls in 2018.68
Conceptual difficulty is also found in the Handbook of Military Operations where it is recognised that ‘military operations take place in a complex and dynamic environment in which one moment traditional war fighting can occur, while simultaneously or immediately afterwards, the same troops can be involved in maintaining public order, in law
enforcement, or in providing humanitarian assistance’.69 Therefore, whilst operating context
will influence resilience building measures, in conclusion it must be noted that resilience building measures will be mutually reinforcing and transcend across operational contexts. This is an entirely unique feature about NATO’s resilience doctrine; not only does it transcend across operational legal contexts, it will transcend across the four types of operations (offensive, defensive, stability and enabling),70 as well has having a
non-operational element; for example, a simple purchase of military kit could be considered a resilience building measure as opposed to an operation. As discussed later in Chapter IV, this could one moment be lawful, one moment later it could be in breach of a Security
64 Jan Klabbers, Introduction to International Institutional Law [2009] 65 Reparation for Injuries Advisory Opinion, [1949] ICJ at para 182 66 Ibid 34
67 NATO, ‘Environmental Protection: NATO Policies and National Views’ in Legal Gazette (issue 40) [2019] 68 Ibid 33
69 Ibid 61, pg 5 70 Ibid 60 pg 1-4
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Council arms embargo, one moment later it could be in breach of international humanitarian law.
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2.3.2 Levels of operation
Figure 8 illustrates that there are three levels of operations. The analysis in chapter III will consider all three levels of operations.
Figure 6 - The levels of operations71
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2.4 The Importance of Resilience to NATO
NATO’s ambition to build resilience, both within Allied countries and collectively,72 is
articulated in a number of key policies and strategies, including: NATO, Future NATO Adapting to New Realities 2020.73
NATO, Resilience and Article 3 2020.74
The Secretary General’s Annual Report 2019.75
NATO Legal Gazette, Significant Issues for the NATO Legal Community 2019.76
NATO Summit Guide, Brussels 2018.77
NATO Summit Guide, Warsaw 2016.78
In these key policies and strategies, NATO has in particular expressed an interest in building resilience in the following thematic areas,
Cyber targeting capabilities.79
Cyber defence.8081
Fostering societal resilience against disinformation.82
Civil preparedness; ‘Seven baseline resilience requirements’.8384
1. Assured continuity of government and critical government services.85
2. Energy security.8687
72 Ibid 59 pg 2
73 Efjestad & Tamnes ‘NATO’s Enduring Relevance’ in Future NATO: Adapting to New Realities [2020] pg 19 74 Ibid 33
75 NATO, ‘The Secretary General’s Annual Report’ [2019] 76 Ibid 24 pg 7
77 NATO, ‘Summit Guide’ from NATO Summit Brussels [2018] 78 Ibid 59 Warsaw [2016]
79 Ibid 73 80 Ibid 24 pg 7 81 Ibid 59 pg 124 82 Ibid 63
83 Jenn Stoltenberg announced at a Press Conference on 16 June 2020 that the baseline resilience requirements are expected to be updated. For current baseline requirements, see Ibid 59 pg 2 84 Seven baseline requirements; Ibid 59 pg 132
85 Ibid 59 pg 132 86 Ibid 59 pg 129 87 Ibid 75 pg 65
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3. Ability to deal effectively with uncontrolled movement of people.88
4. Resilient food and water resources.89
5. Ability to deal with mass casualties.90
6. Security of communications, particularly 5G.91
7. Resilient transport systems.92
Hybrid threats.93
Alliance political94 and interoperability95 cohesion.
Nuclear deterrent capabilities.96
Improving critical infrastructure against the consequences of terrorist attacks, CBRN incidents and natural disasters.97
Building partnerships.98
a. Private sector.99
b. International organisations.100
i. European Union101102
c. Partner countries,103 41 countries have established formal partnerships
with NATO,104 including:
i. Georgia; Republic of Moldova; Ukraine.105
ii. Finland.106 iii. Iraq.107 88 Ibid 59 pg 132 89 Ibid 59 pg 132 90 Ibid 59 pg 133 91 Ibid 19, pg 139 92 Ibid 59 pg 133 93 Ibid 59 pg 2
94 Brustlein ‘NATO’s Nuclear Posture and Arms Control’ in Future NATO: Adapting to New Realities [2020] pg
139 95 Ibid 75 pg 78 96 Ibid 94 pg 126 97 Ibid 59 pg 120 98 Ibid 59 pg 132 99 Ibid 59 pg 132 100 Ibid 59 pg 132 101 Ibid 59 pg 132 102 Ibid 77 pg 237 103 Ibid 59 pg 132 104 Ibid 75 pg 78 105 Ibid 77 pg 4 106 Ibid 77 pg 40 107 Ibid 77 pg 77
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iv. The Mediterranean Dialogue; Jordan,108 Tunisia,109 Algeria, Egypt,
Isreael, Mauritania and Morocco.110
v. The Istanbul Cooperation Initiative; Bahrain, Kuwait, Qatar and UAE.111
Measures facilitating arms control.112
o Including threat from weapons of mass destruction.113 Space capabailities.114
NATO’s own command structure.115
Shared values of democracy, individual liberty, human rights and international law.116
2.4.1 NATO, Article 3 and Resilience
A recurring theme in the documents is the linkage between resilience capacity building measures and principles of collective security anchored in Article 3, leading resilience to be described as NATO’s ‘first line of defence.’117 Seen this way, Article 3 complements the
collective defence clause set out in Article 5. Article 3’s ‘first line of defence’ is far reaching and is the combination of civil preparedness and military capacity.118 Article 3 states;
In order to more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.119 108 Ibid 77 pg 77 109 Ibid 75 [2019] pg 68 110 Ibid 75 pg 72 111 Ibid 75 pg 72 112 Ibid 94 pg 119 113 Ibid 77 pg 90 114 Ibid 75 28 115 Ibid 75 pg 46
116 Olsen, ‘Introduction: An Alliance for the 21st Century’ in Future NATO: Adapting to New Realities [2020] pg 3 117 Wolf-Diether Roepke and Hasit Thankey, ‘Resilience: The First Line of Defence’, NATO Review, 27 February 2019, <https://www.nato.int/docu/review/
articles/2019/02/27/resilience-the-first-line-of-defence/index.html> 118 Ibid 77 pg 246 119 Ibid 5, Article 3
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Article 3 is to an extent mutually reinforced and supported by Article 2;
The Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions, by bringing about a better understanding of the principles upon which these institutions are founded, and by promoting conditions of stability and well-being. They will seek to eliminate
conflict in their international economic policies and will encourage economic collaboration between any or all of them.120
Leading some to conclude that Article 3, in having daily application (as opposed to Article 5, that has only been triggered once) could be considered the most important article in the NAT.121
To conclude this chapter, resilience has been defined and it has been linked to existing military operational taskings. This has identified a wide reaching and layered
interconnection within existing NATO activities. These taskings have been categorised into four operational contexts; all of which fall under three levels of NATO operations. NATO has loudly articulated its intentions to build resilience and the evolving doctrine is being linked to Article 3 of the North Atlantic Treaty as a first line of defence. NATO’s work to improve resilience is not specific to any single vulnerability. It contributes to protecting citizens from all potential hazards. Despite NATO approaching building resilience as ‘all-hazards for all types of threats,’122 Chapter III will pursue an operational focus on sub-Article 5 activities, as
NATO itself has ‘shifted the emphasis of its work on civil preparedness with Allies and partners to so-called “left of bang” requirements’, in other words ‘readiness prior to potential incidents or attacks’.123
Analysis in Chapter III will be structured firstly defining doctrine, and then operationalising that in section 3.1 and 3.2.
120 Ibid 5, Article 2
121 Kačič, ‘Commentary on Articles 2 and 3 of the Washington Treaty’ [2019] 122 Roepke, ‘Resilience: The first line of defence’ in NATO Review [2019] 123 Ibid 122
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CHAPTER 3
3. Doctrine
NATO’s ‘underlying philosophy and fundamentals of joint operations’ document (AJP-01) defines doctrine as the ‘fundamental principles by which military forces guide their actions in support of objectives … [Doctrine] describes how Alliance forces operate but it is not about why they operate, which is the realm of policy’.124 Resilience is therefore not
necessarily a new thing; it is just current policy that has dictated a focus towards it, lending justification to claims that current policy is ‘back to the future’.125 Chapter IV will identify
examples from both the Cold War and contemporary period illustrating this. NATO states that doctrine has an ‘enduring nature’, which makes it ‘less susceptible to short-term policy changes’.126 This can prove to be a problem with resilience building measures, as has been
seen in new and emerging technologies such as the cyber realm.
Importantly, NATO recognises that ‘doctrine, as a common language for operations, is essential to interoperability’.127 The interoperability is not just limited to its members; but
thematically across all instruments of power; diplomatic, information, military, economic and complementary capabilities.128 Once a collective decision has been made at the North
Atlantic Council, contributing nations utilise their instruments of power as the ‘means’ to achieve the ‘ends’, supported by the Alliance’s collective information resources.129
This indicates the reality of doctrine building within NATO; the NAC will give policy direction and Allies will be expected, increasingly for the Article 3 associated resilience building measures,130 to wield their instruments of power; in turn pursuing and developing doctrine.
124 Ibid 32 pg 1-1
125 BBC, ‘NATO at 70’ (2019) in BBC Radio 4 Analysis <https://www.bbc.co.uk/programmes/m000bcnh%0D>. Accessed 20/04/2020 126 Ibid 32 pg 1-1 127 Ibid 32 pg 1-2 128 Ibid 32 pg 1-3, 1-4. 129 Ibid 32 pg 1-3 130 Ibid 121 pg 59
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To exemplify policy leading doctrine, it is predicted that following the NATO Defence Ministers June 2020 meetings mentioned earlier, Allies would be expected to increase building resilience to the specific Russian SSC-8 missile threat. Very recent statements emerging from UK Defence Secretary Ben Wallace lends support to this theory of doctrine following policy.131 Publications and manuals from the NATO-accredited cyber defence hub,
the Cooperative Cyber Defence Centre of Excellence (CCDCOE), such as the Tallinn Manual 2.0,132 will effectively contribute to the final NATO cyber doctrinal product after an almost
20 year process of [ongoing] policy decisions, beginning at the Prague summit in 2002.133
NATO has not yet required Allies to meet certain benchmark “hard” obligations. Yet recent statements, such as from the 2018 Brussels Summit Declaration134 and 15 April 2020 Press
Conference135 increasingly emphasise the importance of NATO Allies meeting the 2% GDP
defence spending as a resilience building measure. As mentioned earlier, resilience building is increasingly being linked to Article 3 obligations. It is suggested here that linking the 2% defence spending pledge to legal footing in Article 3 marks the beginnings of a philosophical level (see figure 10) doctrinal shift; from aspirational to recommended (though still short of obligatory).
Therefore, to build NATO’s resilience doctrine, or in fact any military doctrine, key features must be established;
1. How something is done (ends, ways and means136);
2. Within a framework of guidance to achieve a common objective;137
3. Guided by a NATO policy;
a. Interestingly, the British Army romanticises this, suggesting that doctrine is not necessarily guided by policy, but by belief.138 NATO does make similar
pronouncements when it states it is ‘based on common values of democracy,
131 https://www.gov.uk/government/news/nato-defence-ministers-focus-on-adaptation-of-the-alliance-to-counter-modern-threats
132 NATO CCDCOE, ‘Tallinn Manual 2.0’ [2017]
133 https://www.nato.int/docu/review/articles/2019/02/12/natos-role-in-cyberspace/index.html 134 https://www.nato.int/cps/en/natohq/official_texts_156624.htm?selectedLocale=en
135 https://www.nato.int/cps/en/natohq/opinions_175087.htm?selectedLocale=en 136 Ibid 32 pg 3-2
137 Ibid 32 pg 1-1
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individual liberty and the rule of law’139 but this as a belief was only clearly
verbalised by former NATO Chief Legal Advisor, Steven Hill, at an informal 2020 lecture ‘The Role of the NATO Legal Advisor’.140 Doctrine guided by
belief has not yet entered the official NATO lexicon. 4. Common language, coherency and support from all Allies;
5. Enacted through national instruments of power, at different levels of operation;141
a. As identified in the Abstract, this Thesis focuses primarily on the the military contribution, or the ‘military instrument’.
6. Observance of international obligations.
a. Observance of international obligations at the NATO level, usually binding on Allies at national level. 142
It is also important to recognise that doctrine operates on different levels. The higher-level doctrine is typically found in the introductory pages of key documents, often repeating the mantra to ‘safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law’,143 chiefly
through NATO’s three core tasks. Higher-level doctrine tends to give strategic direction, whilst mid-lower level provides a more operational and tactical focus. Publicly available NATO doctrine tends to sit in the higher and middle range level. This would also be true for NATO’s resilience doctrine that would sit within the AJP-3 series. Figure 9 breaks doctrine down into four conceptual levels. Section 3.1 onwards zooms into lower level doctrine, ‘Procedures’. Towards this lower level it is important to make the distinction between doctrine and more simple mono-focused manuals.
139 Ibid 32 pg 2-1
140 Steven Hill, ‘The Role of the NATO Legal Advisor’ by Amsterdam Center for International Law [4 March 2020]
141 See section 2.3.2
142 Whilst very much a topic for another Thesis, NATO does not state it will be bound by International Law, but instead offers to observe International law; see Ibid 32 pg 1-6. Despite this, it is asserted that under certain circumstances NATO will be bound by customary international law. Where relevant, this will be identified in the next chapter.
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Annex A samples two of the six elements constructed into the definition of resilience; detect and prevent. One thematic area from NATO’s expressed interests in building resilience (section 2.4) will be analysed against one element of resilience; detect and prevent. Analysis of each thematic area will be approached from a different level of doctrine; Section 3.1 takes the lowest, procedures approach, and section 3.2 takes a more mid-level approach. Analysis will be structured according to NATO ‘Ends, Ways and Means’ formulae.144 This
granular detail is not often found in typical AJP-3 documents due to its more sensitive and tactical nature, but is essential for evidencing the how element of NATO’s own definition of doctrine.
144 Ibid 32 pg 3-2
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NATO’s resilience doctrine is defined as how NATO detects, prevents, resists, withstands, handles and recovers from external threats. These elements can generally be seen in a chronological order, and can be perceived in layers like an onion. The amount of effort put into each element will be reactive to the operating context, which has been categorised into four operational contexts; all of which fall under three levels of NATO operations. Resilience building is consensual by nature, although uniquely for the Allies, NATO has recently loudly articulated its intentions to build Alliance resilience, linking the doctrine to legal footings in Article 3 of the North Atlantic Treaty. For ‘out of area’ partners or non-Allies, NATO
recognises the limitations of S&R operations, and is instead is shifting to assist rather than intervene. NATO’s work to improve resilience is not specific to any single vulnerability. It contributes to protecting citizens from all potential hazards. Outside of the military paradigm, resilience intrinsically has no agenda, no “right” or “wrong”. As a measure, it is effectively colour-blind to the law; it’s aim is merely to improve the capacity of something. The NAC will give policy direction and Allies will be expected, increasingly under the Article 3,145 to wield their instruments of power; in turn pursuing and developing the doctrine.
Building resilience philosophically finds itself at the core of modern NATO theory, with the ‘sub-Article 5’ context sitting underneath NATO’s first (and most likely to endure) core task of collective defence; ‘out of area’ sitting underneath the waning core task of crisis
management.
In having no agenda, no right or wrong, it is imperative that resilience operations and resilience measures are lawful and follow the rules and principles in the international law of military operations. Indeed, it is completely feasible that HUMINT operators, deployed under the resilience heading of ‘detect’ could, if unrestrained, easily breach principles of use of force, non-intervention or cause human rights abuses. Likewise, in developing and
deploying nuclear deterrence NATO could, under the resilience heading of ‘prevent’, not only start another arms race,146 but as argued by Judge Higgins’ popular dissenting opinion,
breach the threat of use of force,147 as well as be in violation of any Security Council
resolution or multilateral treaties.
145 Ibid 121, pg 59 146 Ibid 121, pg 58
147 Legality of the Threat or Use of Nuclear Weapons (Dissenting Opinion of Judge Higgins). Advisory Opinion, ICJ Report 679, 583. [1996]
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CHAPTER 4
4. Resilience and the International Law of Military Operations
The definitional framework of this Thesis is that the central notion of resilience is the capacity to detect, prevent, deny, resist, and recover from crisis and conflict. Accordingly, the Thesis has proceeded with how NATO tries to build capacity for its objectives or interests to detect, prevent, resist, deny and recover from crisis and conflict, particularly within the ‘sub-Article 5’ context.There must be a legal basis for the operation and it must be conducted in a lawful manner. The legal framework that will govern resilience building operations will vary widely
depending on the legal basis and the nature of the operation. As depicted in Figure 12, from an Ally’s perspective, the applicable law may be a combination of international and
domestic (national) laws and will include any applicable law.
Figure 8 - Legal framework that governs military operations148
If the resilience operation is conducted within the Article 5 conduct of hostilities context, the legal categorisation of that conflict will directly affect the conduct of any resilience
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operations, including relating to the use of force and status of captured persons. For example a HUMINT agent operating inside hostile territory when conduct of hostilities breaks out would lose the right to prisoner-of-war status and will be considered a spy.149
Further or stand-alone rights and obligations may be added under United Nations (UN) Security Council Resolutions or bilateral/ multilateral agreements, such as status of forces agreements, technical arrangements or memoranda of understanding. The character of conflict and/or mandate may change as the campaign evolves, and this may alter the applicable laws.
Gill and Fleck describe International Law of Military Operations as ‘the rules and principles of international law relating to the planning and conduct of a military operation and
applying these in a systematic manner to promote coherence, consistency, and compliance with legal obligations.’150 Accordingly, Chapter IV will proceed by analysing “typical”,
sub-Article 5 resilience operations against rules and principles of international law. Firstly, resilience operations will be considered against NATO’s constitutive document, the Washington Treaty (Section 4.1).
4.1 The NATO Treaty and Resilience
The constitutive treaty is described as ‘a portal to the internal, institutional dimension of an organisation’.151 The extent of an organisation’s rights and obligations will depend on ‘its
purposes and functions as specified or implied in its constituent documents and developed in practice’.152
NATO was founded to establish an organisation ‘to promote freedom amongst its members through collective security’.153 Within the short fourteen article Treaty, reference to
‘resilience’, ‘detect’, ‘prevent’, ‘withstand’, ‘handle’, or ‘recover’ is not made. Famously,
149 See ICRC, ‘Rule 107’ in IHL Database and Articles 30-31 Hague Regulation [1907] 150 Ibid 61, Pg 6
151 S. Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989), pp. 246-348
152 Ibid 65 at 180, 182.
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much of the Washington Treaty is premised around its Article 5 collective self-defence obligations. Whilst it is well known that Article 5 is the cornerstone of the Treaty, it has been argued154 and supported here that Article 3 is in fact the most important day to day Article
of the Treaty.
In order to more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.155
Indeed, in mentioning ‘capacity’ and ‘resist’ the founding members explicitly intended this Article to carry an obligation on members to maintain and develop individual and collective resilience, as can be seen in the drafting history.156 NATO subsequently has implicitly linked
Article 3 to resilience building measures in recent statements.157 Under definitions
elaborated in Figure 7 ‘Resilience Operationalised’, it would not be inconceivable that NATO could, in addition to host Ally consent, launch operations such as the Enhanced Forward Presence (EFP) with Article 3 as legal grounding; building individual and collective resilience to detect, prevent, resist, withstand, handle and to recover from threats from the Russian Federation.
In the preamble,
The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments. They are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law. They seek to promote stability and well-being in the North Atlantic area. They are resolved to unite their efforts for collective defence and for the
preservation of peace and security.158
154 Ibid 121, pg 59 155 Ibid 5, Article 3 156 Ibid 121, pg 59 157 Ibid 33
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NATO commits itself to ‘purposes and principles’ of the Charter of the United Nations. Most important of which for NATO is Article 2(4), the prohibition of use of force159 and Article
2(7), the principle of non-intervention. Current NATO operations do not breach either. The UN Charter obligations referred to above are reflected in the North Atlantic Treaty. Whether NATO is itself bound by UN Charter obligations directly to the UN Charter through the North Atlantic Treaty or through norms which are of a customary nature is not the remit of this thesis, but NATO legal advisor David Nauta considers NATO to be indirectly bound through its members to the UN Charter.160 Member States that conduct or have effective
control of resilience operations must respect UN Charter obligations when conducting resilience operations.
As a body of the UN, NATO’s resilience operations will be restrained by the UNSC where made explicitly obvious by a specific resolution (at the lower doctrinal level). This will be less clear in general thematic resolutions (at the mid-higher doctrinal levels). None have applied recently to Alliance territory, with the Turkey-Greece Cyprus dispute being the only recent closest exception (though still not within Alliance territory). Resilience building is consensual and is considered as assistance rather than intervention. UNSC is the body charged with the ‘primary responsibility for the maintenance of international peace and security’, and binding resolutions will be considered interventionist rather than assistance, therefore more likely to be subjected to other doctrines, such as the S&R doctrine. Whilst it is possible NATO may find obligations within UNSCR in regards to resilience building, it is highly unlikely within the ‘sub-Article 5’ context that this thesis is focused on.
The concluding point here is that NATO, reaffirming the ‘purposes and principles’ of the UN Charter, when conducting resilience building operations will be bound by UN Charter
obligations. NATO will also be bound by other relevant bodies of international law, including IHL and IHRL (section 4.2) and national law. Section 4.3 will look at what relationship Article 3 has in relation to the international law of responsibility, international arrangements such as SOFAs and how Article 3 can be interpreted through the VCLT.
159 Article 2(4) UN Charter [1945]
160 David Nauta ‘The International Responsibility of NATO and Its Personnel during Military Operations’ [2018] pg 118
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4.2 IHL and IHRL
Resilience building must be without prejudice to rules and principles found in IHL and IHRL, two bodies of law that share the purpose of protecting individuals and human dignity.161
NATO-led forces conducting resilience operations and activities remain bound to comply with IHL when applicable, and IHRL.
4.2.1 IHL
By policy NATO declares it will comply with IHL,162 but avoids taking a position about
whether it is bound by those rules, merely expressing ‘respect’ for IHL principles.163 The fact
that NATO (typically, like other IO’s164) avoids stating it is bound by principles of IHL is
irrelevant, and NATO will be bound when the factual situation, in this case the resilience O&A, renders it a party to the conflict. Whilst this has not clearly165 been the case for any
operations within Alliance territory, NATO has become a party to a conflict in both IACs and NIACs in ‘out of area’ enforcement and S&R operations.166
It is almost certain that the scope of typical resilience building operations, by themselves, will not amount to an armed attack triggering conduct of hostilities. This is illustrated in Figure 7, whereby every example provided would not in itself amount to an armed conflict. Accordingly, IHL will not be triggered, and will not apply. This is not to say however, that a ‘colour-blind’ resilience building O&A could never breach rules and principles of IHL, should an armed conflict already exist, and the Alliance is a party to that conflict. This situation is less likely, though still possible, to occur with this thesis’ ‘sub-Article 5’ focus, and more likely to occur within Article 5 operations or ‘out of area’ O&A’s. An on obvious but unlikely example in reality would include building resilience and capacity for weapons that cause
161 R.E. Vinuesa, ‘Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law’,1YIHL (1998), 69–110, at 70–6.
162 NATO ‘NATO Policy for the Protection of Civilians’
https://www.nato.int/cps/en/natohq/official_texts_133945.htm?selectedLocale=en [2016] 163 NATO ‘NATO Defence Ministers to address key issues for the Alliance’ [2019]
https://www.nato.int/cps/en/natohq/news_169941.htm?selectedLocale=en
164 Kristina Daugirdas, Reputation and the Responsibility of International Organizations, [2014]
165 Hybrid, ‘grey zone’ or cyber activities which come close to the level of armed attack, or in the latter case could (but has not yet) constitute an armed attack within Alliance territory.
166 Yugoslavia against Serbia, Libya against the Libyan government and in Afghanistan against the Taliban-led insurgency, in footnote 160 pg 149
