Challenging the Grey Zone

Grey Zone and Future War:  Simplifying for Success

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?

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?

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?

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?