The U.S. Special Operations Command defines grey zone challenges as “competitive interactions among and within state and non-state actors that fall between the traditional war and peace duality.” In the words of Gen. Joseph Votel et. al., “[t]he Grey Zone is characterized by intense political, economic, informational, and military competition more fervent in nature than normal steady-state diplomacy, yet short of conventional war.” If the spectrum of conflict is conceived as a line running from peaceful interstate competition on the far left to strategic nuclear exchange on the far right, grey zone conflicts fall left of center. These conflicts do not fit neatly into the current international legal framework and provide many unique challenges for holding states responsible for acts of aggression that fall short of jus ad bellum principles.
Grey zone conflicts abound in today’s world, and they aim to avoid meeting the threshold of an armed attack that would trigger a legal conventional military response. Russia’s actions in eastern Ukraine, China’s aggression in the South China Sea, and international support on both sides in the ongoing conflict and resulting humanitarian crisis in Yemen are all examples of ongoing grey zone conflicts that require the attention of the international community. Providing structure to the grey zone, whether through the application of existing international legal regimes or a novel legal construct, would serve the interests of global stability and justice. International legal or normative frameworks would allow states to better predict when their actions are a breach of another state’s sovereignty and will equip target states and the international community with accepted proportional methods to respond to such violations.
It is imperative that the United States operate within domestic legal constraints in the grey zone. To protect the rule of law and to prevent potential executive overreach, some measure of oversight and transparency in this currently opaque domain is required. Such oversight and transparency are necessary not only with respect to our own activity in the grey zone, but also in ensuring civil liberties are not violated as we protect our own nation against grey zone attacks. With that said, any attempt to regulate grey zone operations risks overly constraining the operational freedom necessary to meet our national security objectives.
This conference will bring together experts from academia, the military, the law, the private sector, and government agencies to facilitate a dialogue on the ethical, legal, and moral questions that arise from grey zone conflicts. Conference sessions will be devoted to defining grey zone tactics within the current international legal framework, examining grey zone tactics in the cyber domain, addressing issues of attribution and accountability, and examining the future of grey zone conflicts and the application or evolution of international law.
Attendance at the non-keynote sessions of this conference is by invitation only.
Wednesday, April 3
4:30 pm – 6:00 pm
Public Keynote Address by Lieutenant General Charles Pede
Grey Zone and Future War: Simplifying for Success
6:00 pm – 8:30 pm Cocktail Reception & Dinner for Participants
Thursday, April 4
8:30 am – 9:30 am Sign-In and Continental Breakfast
9:30 am – 9:45 am
Welcome Remarks – Brigadier General Patrick Huston
9:45 am – 11:00 am
Defining Grey Zone: Situating Grey Zone Tactics and Operations Within the International Security Landscape
Moderator: Professor Claire Finkelstein
Grey zone tactics and operations abound within the current international security landscape. Grey zone tactics flourish within current internal conflicts, conventional military engagements, and ongoing transnational conflicts between state, non-state, and hybrid-state actors. However, grey zone activities, often by other names, have also existed alongside traditional warfare for much of human history. To discuss the future of the grey zone and the continued application of international law, it is necessary to understand how grey zone activities have grown and evolved into their current form. Should existing international legal regimes that govern the use of armed force apply to the grey zone? If we define the grey zone as distinct from traditional warfare, should the international community create a new legal or normative framework to regulate this space? What international legal framework should apply to grey zone conflict, and how can the United States protect its own interests in this context? What would it take to incentivize states to come together in this regard? Is the traditional notion of reciprocity sufficient?
11:00 am – 11:30 am Break (refreshments served)
11:30 am – 12:45 pm
Grey Zone Tactics and the Cyber Domain
Moderator: Professor George Lucas
Grey zone tactics and the operations that use them can take place across all domains of military engagement. One of the fundamental domains of grey zone operations is cyber. Cyber-centric grey zone tactics are common in all forms of grey zone operations. Cyber warfare itself, however, is not exclusive to grey zone conflict. Within the grey zone, cyber tools exist as a critical force multiplier, enabling a wide variety of other grey zone tactics to have enhanced effect. Given the differences between traditional cybersecurity concerns and the role of the cyber domain within grey zone conflict, is it necessary to approach grey zone cyberwarfare any differently than cyberwarfare within conventional conflict? When does a cyberattack become an act of war? As networks transcend national boundaries with the ability to affect non-target states, what opportunities are there for multilateral cyber-defense initiatives? How should we conceive of a proportional response to cyberattacks that often result in unforeseeable or unintended consequences? Given UN Charter Chapter 7, Article 51’s arguably high threshold for legal self-defense and the increased use of cyberspace for grey zone operations, should the UN redefine Article 51 so that “armed attack” includes non-kinetic tactics in cyberspace like attacks on critical infrastructure? How do we apply retaliatory terms such as “preemptive,” “anticipatory,” and “preventive” in cyberspace? What is an imminent threat in cyberspace, e.g., would a sleeper virus constitute an imminent threat?
12:45 pm – 2:00 pm Lunch – Keynote Lecture by Admiral Michael Rogers
2:00 pm – 3:15 pm
Attribution and Proxy Wars: Determining Responsibility for Grey Zone Actions
Moderator: Captain Todd Huntley
Many grey zone tactics aim to deny an opponent’s ability to credibly attribute responsibility for grey zone operations. Without attribution, it becomes difficult for victims of grey zone tactics—or the international community at large—to assign blame and ultimately to hold an actor accountable. Because certainty in the grey zone is elusive, should we look to civil and criminal law for guidance as to an appropriate standard upon which we can weigh evidence to determine attribution? For example, should we determine attribution based on a “preponderance of the evidence” standard or a “beyond a reasonable doubt” standard? Who should ultimately determine attribution, and select and impose enforcement? Is it a bilateral issue between the offending state and the target state or should an international body be responsible for adjudicating attribution matters? If attribution cannot be determined, what effective steps can a target state take to respond geo-politically as opposed to legally, e.g., name and shame, diplomatic isolation, requesting removal from international bodies, or sanctions?
The legal and ethical dilemmas associated with the attribution dilemma are similar to those related to proxy wars. Third-party support for states engaged in a conventional war is perhaps the oldest grey zone tactic. In addition to providing non-kinetic grey zone support, global and regional powers as well as aligned smaller states have armed, trained, and funded armies and militias to covertly shape a war’s outcome to their advantage. What triggers accountability for foreign governments that provide grey zone support to local forces allegedly committing war crimes or engaging in terrorism? Does foreign grey zone support “internationalize” an otherwise internal conflict such that the Law of Armed Conflict (LOAC) and other relevant international legal frameworks apply? How do we account for the proliferation and diversification of private military companies (PMCs)? Is the state that hires a PMC accountable for all actions of the PMC as it carries out the attack?
3:15 pm – 3:30 pm Break
3:30 pm – 5:00pm
Past as Prologue: International Law and the Future of Grey Zone Environments
Moderator: Mr. Michael Adams, CRD, JAGC, USN (ret.)
The covert, ambiguous, and technologically innovative nature of grey zone tactics renders the identification and application of international law a continuous challenge. Grey zone tactics—military, political, economic, cyber, kinetic, and non-kinetic—transcend multiple disciplines. Given such breadth, which also gives rise to definitional issues, universal regulation and enforcement remains elusive. Should one distinct international legal regime govern the grey zone? It could be argued that we now possess a historical record of grey zone activity and responses thereto. Have norms been sufficiently established in the grey zone so as to create new international customary law in this space? Finally, the cumbersome, sluggish nature of international legal regimes begs the question of continued applicability. How do we ensure any grey zone body of law is able to keep up with the pace of societal and technological advances that are fundamental to the development of new grey zone tactics?
CDR, JAGC, USN (ret), Palantir Technologies
Naval Special Warfare Group ONE, Staff Judge Advocate
Norman Paterson School of International Affairs, Carleton
Deputy, Office of Maritime and International Law (CG-LMI)
Professor of Practice; Co-Director, Global Law Scholars Program
Partner, Schnader Harrison Segal & Lewis LLP; CERL Executive Board
CERL Founder & Faculty Director; Algernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania
University of Michigan, Department of Philosophy
Director for the Center for Leadership and Ethics, Virginia Military Academy
JAGC, United States Navy
The Judge Advocate General’s Legal Center and School
Commanding General, TJAGLCS
Senior Lecturer in Law, Oxford Brookes University
American Enterprise Institute
US Naval Academy and Naval Postgraduate School
Professor and Philosophy Department Chair, Dalhousie University; CERL Executive Board
President, Special Operations Research Association
LTC Susan McConnell
Chair, National Security Law Department, TJAGLCS
Director of Strategic and Technical Engagements, Glasswall Solutions Inc.
Principal Deputy Assistant Secretary of Defense
Vice Dean and Professor of Law, Cornell Law School; CERL Executive Board
The Judge Advocate General, United States Army
McDevitt Professor of Jurisprudence, Director of the Center on the Legal Profession, and Co-Director on the Center on National Security and the Law at Georgetown University Law Center
Team 8, Fmr. US Cybercom Commander, Fmr. NSA Director
Branch Head, International and Operational Law, United States Marine Corps
Senior Lecturer, Director of Exeter Centre for International Law
Glasswall Solutions, U.S. Strategy Manager
United States Navy JAG Corps
Adjunct Professor, University of Pennsylvania Law School; CERL Executive Board
CERL Executive Director
Vice President, Analytical Graphics, Inc.; CERL Executive Board
Staff Judge Advocate, United States Special Operations Command
CERL Executive Board
Session 1 – Defining Grey Zone: Situating Grey Zone Tactics and Operations Within the International Security Landscape
Todd C. Huntley and Andrew Levitz, Controlling the Use of Power in the Shadows: Challenges in the Application of Jus in Bello to Clandestine and Unconventional War Activities, Harvard National Security Journal, Vol. 5 (2014)
Robinson, Linda, Todd C. Helmus, Raphael S. Cohen, Alireza Nader, Andrew Radin, Madeline Magnuson, and Katya Migacheva, Modern Political Warfare: Current Practices and Possible Responses. Santa Monica, CA: RAND Corporation, (2018)
Session 2 – Grey Zone Tactics and the Cyber Domain
Session 3 – Attribution and Proxy Wars: Determining Responsibility for Grey Zone Actions
Session 4 – Past as Prologue: International Law and the Future of Grey Zone Environments
For any questions regarding the conference or registration, please contact: Jennifer Cohen at [email protected]