Resilience building as a legal and doctrinal obligation for NATO allies?

KEY TAKEAWAYS

• As the Alliance moves away from “out of area” missions, towards territorial defence, member states will have to adjust their defence planning and national resilience in line with NATO requirements, increasingly associated with Article 3.
• Building resilience is essential to cooperative security, often described as “sub-Article 5” or “non-Article 5” operations and activities, which is effectively indistinguishable from “pre-Article 5” preparedness or Article 3 resilience building.
• Uniquely for resilience operations and activities in alliance territory, Article 3 could create obligations of resilience building, creating undesired outcomes for some Allies.
• The Alliance will highly likely continue strengthening the association of resilience to Article 3, one powerful consequence of which may be internal; Allies may find themselves subjected to Article 3 resilience building obligations.

Contents

SECTION I

1. Introduction                                              

SECTION II

2. The Increasing Importance of Resilience to NATO            

2.1 Definition                                                                                    

2.2 Resilience in operational task verb language                                   

2.3 Categorisation                                                                             

2.3.1 Levels of Operation                                                     

2.4 The importance of resilience to NATO                                     

2.4.1 NATO, Article 3 and Resilience                                   

SECTION III

3. Resilience in Doctrine                                                                  

SECTION IV

4. Resilience and the International Law of Military Operations              

4.1 The NATO Treaty and Resilience                                               

4.2 IHL and IHRL                                                                             

4.2.1 IHL                                                                               

4.2.2 IHRL                                                                             

4.2.2.1 Conventional IHRL                                               

4.2.2.2 Customary IHRL                                               

4.3 Relationships with Article 3                                                      

SECTION V

5. Conclusion      

                                                                  

This article has been taken from the author’s Public International Law LLM Thesis, University of Amsterdam, 2020.

ABSTRACT

Purpose

1.          The purpose of this article primarily is to link the North Atlantic Treaty’s Article 3 to resilience building obligations of NATO allies. The secondary purpose is to provide suggestions for a 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.          A JDP Building Resilience series would come 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. Building Resilience will focus on NATO’s “sub-Article 5” or “non-Article 5” activities. This is fundamentally inward-looking and would roughly fall under one of three NATO’s core principal tasks, cooperative 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 resilience-building operations and activities.

Structure

6.          This article follows the recommended structure for a JDP Building Resilience series.

1. Section I – Context introduces how the contemporary operating environment necessitates the need for resilience building.
2. Section II – Understanding the rise of resilience. How it is defined, categorised and the importance of resilience based on contemporary threats.
3. Section 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.
4. Section IV – Legal considerations.

CHAPTER 1

How the Contemporary Operating Environment Necessitates the need for Resilience Building.

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

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 5[5] 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 operations[10] and military training missions.[11] It is currently engaged in six of these ‘sub’ or ‘non-Article 5’ operations, and 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 pandemic[16] 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 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 (Turkey[25]), 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 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.

SECTION 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]

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 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.

Figure 2 – Resilience key word definitions

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 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]

Figure 3 – Cyclical flowchart showing stages of resilience

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]

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]

Figure 4 – The onion of resilience

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 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 each grouping may change depending on the operational context.

Figure 5 – Shifting emphasis of resilience depending on 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.

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

2.3 Categorisation

This article 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 substance[54]  or by geography[55]) 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 Charter[56]  – 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 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 demobilization[62] 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 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 broad[66] application. Current examples would include NATO’s COVID-19 support, NATO’s environmental protection policies discussed in NATO’s most recent Legal Gazette publication[67] 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 Council arms embargo, one moment later it could be in breach of international humanitarian law.

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 operations[71]

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.[80] [81]
• Fostering societal resilience against disinformation.[82]
• Civil preparedness; ‘Seven baseline resilience requirements’.[83] [84]
  • Assured continuity of government and critical government services.[85]
  • Energy security.[86] [87]
  • Ability to deal effectively with uncontrolled movement of people.[88]
  • Resilient food and water resources.[89]
  • Ability to deal with mass casualties.[90]
  • Security of communications, particularly 5G.[91]
  • Resilient transport systems.[92]
• Hybrid threats.[93]
• Alliance political[94] and interoperability[95] cohesion.
• Nuclear deterrent capabilities.[96]
• Improving critical infrastructure against the consequences of terrorist attacks, CBRN incidents and natural disasters.[97]
• Building partnerships.[98]
  • Private sector.[99]
  • International organisations.[100]
    • European Union[101] [102]
  • Partner countries,[103] 41 countries have established formal partnerships with NATO,[104] including:
    • Georgia; Republic of Moldova; Ukraine.[105]
    • Finland.[106]
    • Iraq.[107]
    • The Mediterranean Dialogue; Jordan,[108] Tunisia,[109] Algeria, Egypt, Isreael, Mauritania and Morocco.[110]
    • The Istanbul Cooperation Initiative; Bahrain, Kuwait, Qatar and UAE.[111]
• Measures facilitating arms control.[112]
  • 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]

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.

SECTION 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.

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 Declaration[134] and 15 April 2020 Press Conference[135] 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 means[136]);
2. Within a framework of guidance to achieve a common objective;[137]
3. Guided by a NATO policy;
   1. 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, 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]
   1. As identified in the Abstract, this Thesis focuses primarily on the the military contribution, or the ‘military instrument’.
6. Observance of international obligations.
   1. 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.

Figure 7 – Levels of Doctrine

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.

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.

CHAPTER 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 operations[148]

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 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, 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 argued[154] 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]

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 force[159] 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.

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’s[164]) 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 clearly[165] 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 superfluous injury by nature and unnecessary suffering[167] or weapons that are by nature indiscriminate.[168] Certain weapons, particularly nuclear weapons, in both peace and wartime can provide a deterrent effect. In deployment however, these weapons could breach the IHL principle of distinction between civilians and combatants.[169] Additionally, weapons designed for law-enforcement, specifically riot-control agents, used within the conduct of hostilities paradigm,[170] would also breach principles of IHL.

Whilst NATO is unlikely in both examples to pursue resilience O&A so flagrantly against fundamental principles of IHL, other resilience O&A may well be more nuanced and less clear-cut. In which case, resilience O&A must conform to basic legal principles of military necessity, humanity, distinction and proportionality.[171]

IHL applicability to resilience O&A depends on the nature of the operation and the facts on the ground. As a rule, resilience building measures by nature will not trigger the application of IHL and will also usually not breach jus in bello principles of IHL when in a conduct of hostilities paradigm. Therefore whilst Article 3 differs from Article 5 operations in that Article 3 resilience building O&A are unlikely to trigger or breach IHL, the legal restraints of IHL will apply equally to both articles should an armed conflict exist.  

4.2.2 IHRL

One of NATO’s fundamental aims is enhancing and strengthening respect for human rights. This is both an internal aim[172] and an external aim.[173] This is evidenced in NATO’s S&R doctrine, where NATO states it will intervene to strengthen respect for human rights, and in doing so, NATO will also comply with IHRL.[174] In practice however, intervening coalition forces have breached certain human rights, for example in detainee operations,[175] where Mr Saramati’s[176] detention was a breach of his Article 3 and 5 ECHR rights (though the ECtHR’s singular attribution of responsibility has since been criticised).[177]

Resilience operations should in theory operate like S&R O&A; conducting its aims (which should include strengthening Alliance members own respect for human rights), in compliance with IHRL. The proceeding analysis is whether NATO is actually bound to comply with IHRL when conducting resilience O&A.

4.2.2.1 Conventional IHRL

Alliance members are parties to a number of international agreements which guarantee fundamental human rights and freedoms, and are clearly bound by the conventional IHRL. This means individual members resilience building O&A will be bound by those obligations. However, NATO as an IO is not bound to any conventional IHRL. The VCLT-IO (still not in force, though currently only 3 States short of the 35 needed from becoming effective) copies Article 6 and 2 of the VCLT model in stating that NATO, as an IO, could ratify or accede to treaties due to its international legal personality. NATO has not issued any communiques regarding its intention to accede to this 1987 Treaty. In addition, there is not consensus among Allies regarding their own implementation of the VCLT-IO and the original VCLT. This raises issues to NATO’s Article 4 decision by consultation and consensus process.[178]

The traditional IHRL architecture typically prohibits IOs from acceding to treaties,[179] though marking a progressive development in 2010, the EU acceded to the ECHR. In any case, NATO has not shown readiness to enter into any IHRL Treaty.[180]

An argument could be made that NATO could be indirectly or transitively bound by its member States IHRL obligations when conducting NATO-led or controlled resilience O&A. This however is unworkable because of the NATO’s own legal personality, member States differing treaty obligations and potential VCLT conflicts. Daugirdas argues it is also unnecessary because of the rules of attribution. [181]  This was illustrated by France’s claim following its involvement in the ‘out of area’ 1999 NATO bombing campaign,[182] ‘where attribution rules do not allow IO’s member states to dodge the consequences of breaching their treaty obligations’. The ILC’s commentary makes clear that attributing conduct to IOs does not preclude also attributing conduct (and responsibility) to States in the same set of circumstances.[183]

Daugirdas suggests that when considering what obligations created by States and for States should bind IOs, it is necessary to ‘determine [NATO’s] relationship to its member States in the international legal system’, and consider whether NATO has a ‘vertical vehicle relationship’ or a ‘horizontal peer relationship’. In determining a ‘vehicle’ relationship, the risk would be that NATO and NATO members could exploit NATO as a vehicle to conduct resilience O&A that breach IHRL, evading Alliance members IHRL obligations. This is called circumvention. A hypothetical example could be intense British detection O&A in Russia, or counter-detection O&A in the Baltics, under NATO’s EFP, that amounts to breaches of Article 8 ECHR right to privacy.[184]

International law has attempted to address this in the law of international responsibility. The International Law Commission’s work on IO responsibility addresses this in Part Five of the Draft Articles on the Responsibility of International Organisations.[185] The law of international responsibility is described as secondary international law. What this means is that allied members cannot use NATO as a shield to circumvent[186]  their own IHRL obligations when conducting resilience O&A.

4.2.2.2 Customary IHRL

Another solution to ensure NATO remains accountable to IHRL when conducting resilience O&A is customary IHRL; imposing customary obligations directly on NATO. Daugirdas states that although scholars and the ILC have cited the risk of circumvention to justify why IHRL should bind NATO, there is not an agreement on which IHRL obligations might bind NATO’s resilience O&A.[187]

It is accepted that fundamental principles of a peremptory or jus cogens character, therefore non-derogable, will bind NATO in all of its operations. Whilst there is no universal agreement to which principles this would include,[188] it is generally accepted to include genocide, piracy, slavery, aggression, torture and more recently, refoulement.[189] Generally, resilience building O&A by scope are unlikely to breach these peremptory principles. Regardless, NATO is still bound to comply.

Outside of IHRL norms considered peremptory norms, some scholars suggest that obligations to protect other human rights are equally binding.[190] Regardless, it is asserted here that NATO not only binds itself to principles of human rights in its constitutive treaty preamble; ‘freedom… founded on principles of democracy, individual liberty and the rule of law… stability and well-being’,[191] but also, through the ‘principle of speciality’ human rights ‘are a common interest whose promotion those states entrust to them’.[192] In other words, founding Alliance members created the collective defence alliance with respect for human rights as a ‘limit of its function’.[193]

Though the NATO Treaty does not explicitly mention human rights, which is perhaps more of a reflection of the language of the time, it is argued that through the implied powers doctrine, IHRL obligations and ‘powers which, though not expressly provided in the Charter, are conferred upon [NATO] by necessary implication as being essential to the performance of [NATO’s] duties.’[194] Adding to this, the VCLT states that the method for interpreting treaties, including IO charters, indicates the subsequent practice of the parties is relevant to interpreting them.[195] This means that NATO’s respect for and compliance with IHRL obligations ‘as a common value’,[196] in all legal contexts, cements the assertion that resilience O&A are bound by IHRL. NATO must not conduct resilience O&A that breach any IHRL.

To take stock, NATO’s resilience doctrine by scope will almost certainly not be considered an armed attack triggering IHL, nor would it breach any jus in bello principles of IHL. Despite this, it will still be bound by principles of IHL should it apply. It will be bound by peremptory norms and it has been argued that it will be bound by IHRL. A violation of either body of law can have grave consequences, and not only for the victim. Such consequences could have strategic implications, impact upon the mission and cause reputational damage to NATO.

Section 4.3 will look at what relationship Article 3 has with international responsibility, SOFAs and Articles 4 and 5 of the NATO treaty.

4.3 Relationships with Article 3.

It has been suggested throughout that NATO could use Article 3 as a legal footing to build alliance individual and collective resilience. Though most resilience building activities will usually be performed by Alliance members, some ‘sub-Article 5’ O&A will be conducted under NATO command or effective control, such as the EFP, an operation that includes many elements of NATO’s resilience doctrine. Should an internationally wrongful act arise as a result of NATO’s resilience O&A, the usual rules of attribution will apply. Namely, conduct of agents and organs that have an institutional link with NATO will be automatically attributable to the organisation under Article 6 ARIO and conduct of agents and organs that are placed at the disposal of NATO will be subject to the Article 7 ARIO effective control test.

Whilst some resilience O&A will obviously fall under Article 6 ARIO, likely the EFP, most resilience O&A will be conducted by Alliance members and it would typically be very difficult to show NATO had effective control over the O&A. Despite this, Nauta suggests that NATO is presumed to have effective control.[197] The effective control test in the ARIO context is lower than in the ARISWA context.[198] The ILC Commentary is not clear and renders the question, other than instructions or direction, what other elements can be taken into account to determine effective control?[199] It is suggested here that if NATO strengthens obligations of resilience building under Article 3, this could be used as supporting evidence to determine effective control over a resilience O&A that causes an internationally wrongful act. This may leave NATO responsible, shared, or in connection with (facts dependent), any internationally wrongful acts conducted under the aim of resilience building.

Palchetti and Nauta both suggest that employing Status-of-forces (or Mission) agreements (SOFA/ SOMAs) Memoranda of Understanding (MOU), Technical Arrangement (TA) and other international arrangements[200] such as NATO’s Red Card Holdership, that specify the rights and obligations of the forces in the resilience O&A may delimit the responsibility for internationally wrongful acts committed under the Article 3 resilience building aim.

The resilience doctrine shares a fundamental legal similarity with consensual peace operations; consent is required by the host State.[201] What this means is NATO resilience building operations are fully dependent upon host State consent, the limitations of which will be defined in the various forms of international arrangements mentioned above.

Article 3 could be said to be dependent on Article 4, which states;

The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.[202]

Consultation is at the heart of the Alliance, and NATO has expanded consultation, both to maintain political unity and to be better prepared to deal with a great number of challenges.[203] Thus, NATO’s article 3 resilience doctrine is inherently dependent upon extensive consultation and coordination in the Alliance. Due to NATO’s action by consensus approach, the logical conclusion is that NATO will not authorise resilience O&A that Alliance members do not accept, potentially having a later effect of obviating NATO’s responsibility to any internationally wrongful acts.

In the consultative sense, Article 3 operates the same as Article 5; Article 5 can only be invoked or triggered once all members agree. Whilst consultation can take a long time to come to consensus, and there may be an ambiguous nature of what contribution to make[204]  to both Articles, it is clear the modern reality is that Article 5 is less likely to be triggered as there will be no obvious ‘armed attack’. Rather than stretching the definition of ‘armed attack’ to the implausible, NATO’s resilience doctrine grounded by Article 3 proactively shapes a proportionate response to the threat environment.

Even though Article 5 is NATO’s ultimate security guarantee, it is only the very last in a long chain of measures that need to be functioning in order to respond to today’s most probable and lethal threats.[205] In this sense, Article 3 complements and counteracts threats that Article 5 cannot. The two Articles, combined with Article 4, are the whole object and purpose[206] of the Alliance and allies, under the pacta sunt servanda[207] principle should expect to enjoy both rights and obligations from them.

CHAPTER V

5. Conclusion

National resilience and civil defence have re-entered NATO vernacular and have become NATO policy, punctuated following the annexation of Crimea in 2014. As the Alliance moves away from out of area missions and towards territorial defence, member states will have to adjust their defence planning and national resilience in line with NATO requirements, more frequently associated with Article 3.

This thesis answers the first sub-question by defining NATO’s resilience doctrine 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 six elements have been linked to existing military operational taskings, answering the fifth sub-question. 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.  Out of area operations are decreasing and NATO recognises the limitations of S&R operations, so is instead is shifting to assist rather than intervene, reflecting the growing influence of the resilience doctrine. This thesis answers the second sub-question by suggesting NATO’s work to improve resilience is not specific to any single vulnerability. It contributes to protecting citizens from all potential hazards. This thesis has pursued 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’.

The foundations of a multi-level resilience doctrine have been assessed against the international law of military operations, answering the fourth sub-question. This begins with NATO’s founding Treaty which both implicitly and explicitly links resilience building to Article 3, to an extent giving resilience additional legal footing for operations. NATO must adhere to UN Charter obligations when conducting resilience operations, supported by its own constitutive reference and customary law. As resilience building operations measures could be described as colour-blind, some resilience building measures could, though they are unlikely to, violate international law of military obligations, such as Article 2(4) prohibition on the threat of or use of force, non-intervention, IHRL and IHL. International law operates just the same for resilience building operations as it would any other operation. It is bound to IHL when it applies, to IHRL and to national law. No special rule applies for resilience operations, just the same as no special rule applies for special forces operations or peace operations. Like peace operations, resilience building measures require consent, and may find some obligations in UNSCR. Uniquely for resilience O&A in alliance territory however, Article 3 could create obligations of resilience building.

For some Allies this may obviously create an undesired effect, leading some to criticise the Alliance. It could fairly be argued that objecting to Article 3, considered as an ‘everyday Article 5 preparatory’ obligation, answering the third sub-question, would defeat the object and purpose of the whole Alliance. Extreme actions like seeking exceptions or leaving a military defence organisation on the grounds that it expects a certain level of individual military defence and security resilience to an extent breaches the principle of pacta sunt servanda as confirmed in the VCLT. Other, less rugged organisations may well be the vehicle of choice for States unwilling keep up with minimum standards. Potentially obviating this risk, the secondary law of responsibility states NATO may become responsible for any internationally wrongful acts committed by Alliance members under Article 3’s aim of resilience building under Article 6 and 7 ARIO. Responsibility can also be apportioned through international arrangements, such as SOFAs.

Writing for the NATO Defence College on Article 5, Dr Bruno Tertrais said ‘ultimately, however, politics would almost certainly trump legalism: an armed attack would be what the NATO Council considers to be an armed attack’.[208] Whilst not legally true, the principle could be applied to resilience building measures under Article 3 in the sense that NATO could push Allies, restrained by international law and by the Article 4 consultation and consensus process, to a level of resilience NATO deems appropriate.

This Thesis has posited that strategy and tactics are dictated by time and space. It is predicted that NATO will need to continue strengthening Alliance resilience. It will continue to further strengthen the association of resilience to Article 3, one powerful consequence of which may be internal; Allies may find themselves subjected to Article 3 resilience building obligations.

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[1] NATO, ‘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&gt;. Accessed 20/04/2020

[3] Elisabeth Braw, Senior research fellow, RUSI’s Modern Deterrence Project on BBC, ‘Is NATO Obsolete?’ (2019) in The Inquiry 19 December 2019 <https://www.bbc.co.uk/programmes/w3csyth3&gt;. Accessed 20/04/2020

[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)

[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’ [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&gt;. (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]  https://www.hrw.org/world-report/2020/country-chapters/poland

[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/ 21^st 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.

[31] Misha Hussain, ‘Resilience: Meaningless Jargon or Development Solution?’ [2013] Guardian.

[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)

[34] NATO, ‘Allied Joint Doctrine (AJP)-3.19 For Civil-Military Cooperation’ (Edition A Version 1) [2018]

[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].

[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

[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

[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]

[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]

[59] NATO, ‘Summit Guide’ from NATO SummitWarsaw [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

[63] Brauss ‘The Need for the Alliance to Adapt Further’ in Future NATO: Adapting to New Realities [2020] pg 132

[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

[71] Ibid 32 at 1.20

[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 59Warsaw [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

[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

[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 21^st 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

[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

[124] Ibid 32 pg 1-1

[125] BBC, ‘NATO at 70’ (2019) in BBC Radio 4 Analysis <https://www.bbc.co.uk/programmes/m000bcnh&gt;. 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

[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

[138] British Army, ‘Army Doctrine Primer’ (71954) [2017]

[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.

[143] Ibid 5, Preamble

[144] Ibid 32 pg 3-2

[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]

[148] UK MOD, ‘Joint Doctrine Publication (JDP) 3-46, Legal Support to Joint Operations (Third Edition) [2018]

[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.

[153] NATO, ‘Why was NATO founded?’ [2017] https://www.nato.int/wearenato/why-was-nato-founded.html

[154] Ibid 121, pg 59

[155] Ibid 5, Article 3

[156] Ibid 121, pg 59

[157] Ibid 33

[158] Ibid 5, Preamble

[159] Article 2(4) UN Charter [1945]

[160] David Nauta ‘The International Responsibility of NATO and Its Personnel during Military Operations’ [2018] pg 118

[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

[167] ICRC, ‘Rule 70. The Principle of Distinction between Civilians and Combatants’ in IHL Database [2020]

[168] Ibid 167, Rule 71

[169] Ibid 167, Rule 1

[170] Ibid 167, Rule 75

[171] NATO, ‘Allied Joint Doctrine for Joint Targeting (AJP)-3.9’ [2016] at 1-8

[172] Jens Stoltenberg, ‘Opening Remarks’ speech at the Munich Security Conference [2020] https://www.nato.int/cps/en/natohq/opinions_173709.htm?selectedLocale=en

[173] Ibid 60

[174] Ibid 60 at C-1

[175] Ibid 60 at C-3

[176] ECtHR, Behrami and Saramati [2007]

[177] Palchetti, ‘The allocation of responsibility for internationally wrongful acts committed in the sense of multinational operations’ in ICRC Multinational Operations and the Law [2014]

[178] NATO ‘The consultation process and Article 4’ [2020] https://www.nato.int/cps/en/natohq/topics_49187.htm

[179] See Article 48 International Covenant on Civil and Political Rights 1966 and Article 26 International Covenant on Economic, Social and Cultural Rights 1966

[180] Ibid 160 pg 120

[181] Ibid 164 pg 354

[182] Legality of Use of Force (Yugo. v. Fr.), Preliminary Objection, 1999 I.C.J. 26–29 (July 5), http://www.icjcij.org/docket/files/107/10873.pdf.

[183] Ibid 164 pg 356

[184] Article 8 European Convention on Human Rights

[185] Part 5, Draft Articles on the Responsibility of International Organisations [2011]

[186] Article 61, Draft Articles on the Responsibility of International Organisations [2011]

[187] Ibid 164 pg 344

[188] Ibid 61, Pg 99

[189] J Bhuiyan ‘Protection of Refugees Through the Principle of Non-Refoulment’ in An Introduction to Refugee Law [2013]

[190] Bruno Simma & Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ [1989]

[191] Ibid 5, Preamble

[192] Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] I.C.J. Rep. 226,

[193] Ibid 192

[194] Ibid 65 at para 182

[195] Art 31(3)(B) Vienna Convention on the Law of Treaties

[196] Ibid 77 pg 4

[197] Ibid 160

[198] Giorgio Gaja, Eighth Report on the Responsibility of International Organisations, UN Doc. A/CN.4/640, p. 13.

[199] Ibid 177

[200] Ibid 148

[201] Ibid 61, Pg 154

[202] Ibid 5, Article 4

[203] Ibid 73

[204] Tertrais ‘Article 5 of the Washington Treaty: Its Origins, Meanings and Future’ in NATO Research Division [2016] page 2

[205] Nicolini & Janda ‘In the Area or out of Business: Building Resilience to Hybrid Attacks’ [2016]

[206] Article 31, Vienna Convention Law of Treaties [1980]

[207] Preamble, Vienna Convention Law of Treaties [1980]

[208] Ibid 204 page 6