Episode description: In attempts to destabilize the West, Russia and its allies have been using migrants as pawns. After Russia invaded Ukraine and Finland joined NATO, it is clear that this "hybrid [type] warfare" combined with disinformation is becoming the norm.
Although it has multiple uses, weaponized migration is often employed as an instrument of state-level coercion, undertaken to achieve a wide range of geopolitical and other foreign policy goals that have been frustrated by other means. States and nonstate actors have resorted to this tactic at least 81 times—and possibly many more—since the advent of the 1951 Refugee Convention, which granted those fleeing political persecution the right to seek asylum in states that are signatories to the agreement. Governments that weaponize migration to achieve foreign policy objectives are often, but not always, autocratic; their targets have disproportionately, but not exclusively, been advanced liberal democracies. (Kelly M Greenhill, "When migrants become weapons: The long history and worrying future of a coercive tactic," MIT Center for International Studies (March/April 2022))
While our focus is on the current use of the tactic by Russia in the context of its imperial adventurism; it ought to be considered as well as a tactic of equalizing power where smaller states seek concessions from larger and potentially opposing states (e.g., "Nicaragua is ‘weaponizing’ US-bound migrants as Haitians pour in on charter flights, observers say"AP (October 23, 2023), also here). While issues of state responsibility tend to be foregrounded usually those miss two significant points, (1) that exporting sates appear to be able to act with impunity and the receiving state appears to bear the greater responsibility to prevent-mitigate-or remedy (e.g. here; and here); and (2) little attention is paid to the micro-issues of human consequences (e.g., here).
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For Additional background, see here for a classical perspective, and Sascha-Dominik Dov Bachmann & Anthony Paphiti, Mass Migration as a Hybrid Threat? - A Legal Perspective, Polish Pol. Sci. Y.B. 50 (2021) 119-145 , introduction below.
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Sascha-Dominik Dov Bachmann
Canberra Law School (Australia)
ORCID: 0000-0002-8742-0766
e-mail: Sascha.Bachmann@canberra.edu.au
Anthony Paphiti
Former officer with the UK Army Legal Services (United Kingdom)
Mass Migration as a Hybrid Threat?-A Legal Perspective
Abstract: Migration as a weapon sounds like a policy statement by resurgent nationalistic
parties (and governments) in the West. However, politics and the human cost aside, what if
an adversary (both state and non-state actor) does exploit the current global crisis of mass
migration due to globalization, war, and political unrest? This article will look at the ongoing
mass migration to the European Union within the wider security context of the so-called
hybrid threats and/or 'grey zone' tactics. It looks at the various legal categories of migra-
tion as how the law can be weaponized as so-called 'lawfare' to undermine the existing legal
frameworks distinguishing between legal and illegal migration. The authors recognize the
possibility that this article will be used as an argument by the political actors involved for
their nationalistic and anti-migration politics and policies. Yet, we believe that the potential
of abusing the current vacuum for political gains along ideological party lines makes it nec-
essary to provide a wider legal-security focused perspective on mass migration.
Keywords: migration, migrants, refugees, threat, hybrid threat, law
Introduction
This article looks at the ongoing mass migration to the European Union within the wider
security context of the so-called hybrid threats and/or 'grey zone' tactics.
While Europe has experienced large-scale migration, it shares with other parts of the
world the effects on its economic and social structures within society, leading to increasing
dynamics of a rise in right-wing politics at a scale unheard of since the end of World War
II. The scale of migration over recent years has been phenomenal (Atkinson, 2018)1. The
root causes have tended to be armed conflict - some of which have been exacerbated by
western involvement in originally civil uprisings - e.g., Libya and Syria - or through direct
interference, e.g., Iraq. In addition, continuing political persecution and globalization in
combination with climate change contribute to global migration in ever-growing numbers.
Millions of people displaced by war and conflict have tried to find respite and safety in other
states and increasingly within the borders of the European Union. However, interspersed
with genuine refugees, many are economic migrants looking for a better life and fleeing
abject poverty who otherwise would not be allowed to migrate.
As early as 2010, NATO (North Atlantic Treaty Organization) recognized new security
threats as the so-called hybrid threats and, in the following two years, drew up a specific
threat catalog as part of its Bi-Strategic Command Capstone Concept, identifying human traf-
ficking and mass migration as security-specific risks beyond the threshold of conventional
warfare threats (Bachmann, 2012, p. 14)2.
Mass Migration as a Form of Hybrid Warfare?
Mass migration within the context of hybrid warfare is a strategic mechanism effected
where the state deploying the threat will place pressure upon the targeted government to
take some course of action - or not - which is to the advantage of the state making the
threat and to the disadvantage of the targeted state. The targeted state will recognize that
the threat to cause a migration flow across its borders will place tensions upon the welfare,
social, medical, and educational sectors of its society which, in turn, raises the specter of
unrest and dissatisfaction with the government. Changing demographics, and increasing
unemployment, already high in many EU countries, through a cheaper workforce3. In an
extreme case, this could conceivably lead to the collapse of the government, especially in
a country that had a volatile economy.
Mass migration as a tool of hybrid warfare is a deliberate strategy used for a strategic
purpose. It can include a military purpose (e.g., to change the focus of the nation's armed
forces from defense to assisting with issues related to internal security or to effect demo-
graphic change), or it can be a more subtle form of gradual insinuation of a particular group
that settles within the state and lays itself available to outside influence from the state it
1 These figures were taken from the UN database on International Migrant Stock (https://www.un.org/en/development/desa/population/migration/index. asp).
2 This article will not attempt to discuss the notion of Hybrid Threats as an emerging threat concept; for the most updated academic discussion on the topic (Bachmann, Dowse, and Gunneriusson, 2019).
3 See the interesting discussion in (Kelo & Wachter, 2004, p. 7). The object of this study is international migration, i.e. migration across country borders. But it does not address migration on a global scale and does point out the positive benefits of migration.
identifies with. This diaspora group can also be manipulated through propaganda to feel
under threat, so it becomes more willing to identify with the nation that is targeting it and
responding against the interests of the host State where it is based.
The protection of national borders within the national and supranational jurisdiction
(Schengen) (Agreement signed at Schengen on 14 June 1985, 1985) is a necessary condition
of State sovereignty. Neglecting this international legal principle leads to an erosion of
national sovereignty and identity, just as the terrorist attacks in Paris during November
2015 and other attacks elsewhere illustrate the dangers of deterioration of European border
controls. Both EU and national border controls have absolute priority to restrict terrorists
in their freedom of movement. Without adequate concerted action, the EU principle of free
movement of persons is permanently eroded (Calha, 2015).
Kelly Greenhill (2010) refers to mass migration as an instrument of a state's foreign
policy and power of an adversarial nature as 'Weapons of Mass Migration' through forced
displacement, coercion, or foreign policy. She shows how such a weaponized use of mass
migration can be achieved by
"straightforward threats to overwhelm a target's capacity to accommodate a refugee or
migrant influx, [or] on a kind of norms-enhanced political blackmail that exploits the
existence of legal and normative commitments to those fleeing violence, persecution,
or privation"
In other words, by swamping a country with refugees, neighboring states can achieve
the upper hand through State-to-State coercion, and is usually enacted by a generally
already weakened nation against (usually) a liberal democracy. As we have witnessed
in the last few months with Syria, Germany, and other EU states, the unlikely weapon
may have been enacted again" (Greenhill, 2010, p. 26)4.
In traditional military coercion, the aim is to achieve political goals "on the cheap".
Weak actors could also use mass migration to achieve political goals that would be utterly
unattainable through traditional military means or, in a more limited number of cases, for
powerful actors to achieve aims wherein the use of military force would be too costly or
potentially escalatory, and hence, dangerous Greenhill, 2010, p. 27).
Main Legal Provisions Applicable to Migration
There are many legal texts on the subject of migration. From an EU perspective - and the
point of view of the hybrid threat, and despite EU Directives on the matter - the most im-
portant is the European Convention on Human Rights, through articles 2,3 and 8, as this is
4 The use of the terminology of "swamped" has been widely condemned as fueling xenophobia and racism (Schariatmadari, 2015).
the mechanism by which legal challenge can be made to any decision concerning individual
rights. These legal challenges focus on the domestic level impact of migration. International
agreements focus on strategic relationships.
So, the domestic challenges are, first, to distinguish the genuine refugee from the eco-
nomic migrant and the illegal migrant; second, to determine who is the threat and who is
not. It is axiomatic that even an illegal migrant is not, ipso facto, a terrorist. But states need
to be able to filter out and apprehend those who are.
How We Define the Lawful and Unlawful Migrant Refugees
The key document to defining refugee status is the 1951 Refugee Convention. It is the
fundamental reference point and is grounded in article 14 of the Universal Declaration of
Human Rights 1948, which provides that "Everyone has the right to seek and to enjoy in
other countries asylum from persecution"
The 1951 Refugee Convention, as amended by the 1967 Protocol, defines a refugee as
A person who owing to a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group, or political opinion,
is outside the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former habitual residence
as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[Emphasis added]
Migrants
A lawful migrant is someone who follows the relevant immigration procedures to gain entry
to a country. An illegal migrant does not.
The Dublin Regulations are supposed to provide that migrantsare to be deported back to
the first EU country they entered (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?ur
i=CELEX:32013R0604&from=EN), often Italy or Greece, which are seriously under pressure
to cope. It aims to prevent both 'asylum shopping, where an individual moves between States
to seek the most attractive regime of protection, and the phenomenon of 'refugees in orbit'
where no single State permits access to an asylum procedure ("Dublin III Regulation" 2017).
However, Antonio Tajani, President of the European Parliament, points out, The Dublin
Regulation "needs to be overhauled and replaced by a fair and effective alternative. Of the
650,000 asylum applications submitted in 2017, 416,000 were lodged in only three countries:
Germany, Italy, and France" ("The migration crisis threatens to destroy the EU..:', 2018).
More recently, nations have tried to promote a more understanding approach to migra-
tion. To this end, a draft document was produced called the "Global Compact for Safe, Orderly
and Regular Migration", which the United States, Austria, Hungary, the Czech Republic, and
others have announced that they will not sign.
The main aims of the Global Compact for Migrations are to:
- address all aspects of international migration, including the humanitarian, devel-
opmental, human rights-related, and other aspects;
- make an important contribution to global governance and enhance coordination
on international migration;
- present a framework for comprehensive international cooperation on migrants and
human mobility;
Importantly, The Global Compact reaffirms the sovereign right of States to determine
their national migration policy and their prerogative to govern migration within their
jurisdiction, in conformity with international law.
The gist of the objections of the withdrawing states is basically that the Compact would
force states to admit migrants; would be a pull factor for migration; would contravene
domestic migration policies, and violate the states' sovereignty. There is some substance
to these objections, as Objective 17 encourages states to make laws to punish immigrants'
criticism and treat this as a hate crime. The worry is how low the bar will be if such hate
crime provisions become part of domestic law. The BBC reported that protests held in
Brussels against the Global Compact turned violent and led to the Belgian Prime Minister,
Charles Michel, offering his resignation. "Opposition to the pact underlines that migration
is the number one political issue in Europe. It is the dividing issue for electorates" ("What's
the UN global compact on migration?", 2018). However, it has to be emphasized that the
Compact is not a binding treaty and does not have the force of law'. But it could be used in
the future as a springboard to assist in the drafting of a binding document.
Mass Migration as a Hybrid Threat
If one examines the United Nations Charter, the purposes are spelled out in article 1, includ-
ing maintaining international peace, developing friendly relations, and promoting human
rights. The matter of sovereignty and peaceful coexistence is emphasized in article 2, which
prohibits any threat or use offorce against the territorial integrity or political independence
of a member State, or is in any other manner inconsistent with the purposes of the United
Nations. [Art 244]. Customary International Law recognizes that it is unlawful for one
country to interfere in the internal affairs of another.
5 For more details see: https://refugeesmigrants.un.org/sites/default/files/180713_agreedout-
come-global-compact-for-migration.pdf
6 "Paras 7 and 15 explicitly say that "[t] his Global Compact presents a non-legally binding, cooperative
framework..." Para 15"reaffirms the sovereign right of states to determine their national migration policy
and their prerogative to govern migration within the jurisdiction" (Peters, 2018).
The use of population movement to promote one country's foreign policy to the detriment
of another can challenge peace. It begs the question, what amounts to a use of force and an
armed attack? And what response, if any, is permissible. Article 51 of the UN Charter provides
that states are permitted to use force in self-defense where an armed attack occurs.
As 'Use of Force' and Armed Attack?
When we think of using force, we tend to think, conventionally, of using military hardware
against another nation or its armed forces. Hybrid threats operate normally below the thresh-
old of obvious use of force or an armed attack. That is the advantage of using them. They are
a tool used principally for influencing behavior (Hagelstam & Narinen, 2018). Other such
"influencing" tools include information operations. Does forced mass migration amount to
the use of force? The leading case of Nicaragua v. United States, decided in 1986, held that
customary international law prohibits one state from intervening in the affairs of another
state. It is additional to the prohibition on states using force against each other, save for the
specific circumstances defined by the UN Charter7. The court defined what was meant by
the use of force in terms of coercive measures. It went on to decide that a use of force must
attain a certain level of severity in order for it to be defined as an armed attack: "it will be
necessary to distinguish the gravest forms of the use of force (those constituting an armed
attack) from other less grave forms" [At S191]
It is only an "armed attack" that justifies invoking the self-defense provision of article
51 of the UN Charter.
These texts do not fully explain the situation vis a vis non-kinetic or hybrid use of force
such as one sees, for example, in cyber operations or mass migration, within the context of
the jus ad bellum8. However, we can find some helpful guidance in the Tallinn Manual.
Tallinn Manual
Bearing in mind there is no military manual or case law on acts of mass migration, one
might look to Tallinn for help and transpose "mass migration" for "cyber" in the Tallinn
definition so that one could understand that an attack in the jus ad bellum sense, qualified
by the word 'armed' refers to a mass migration operation that justifies a response in self-
defense.
As the Tallinn Manual (n.d., p. 4) points out, "the word'attack'refers in common usage
to a cyber operation against a particular object or entity, and in the military sense, it usually
indicates a military operation targeting a particular person or object. However, attack in the
jus ad bellum sense, qualified by the word 'armed' refers to a cyber operation that justifies
7 See, in particular, the examples of a use of force in 44 227-228 of the judgment.
8 The lawful reasons that justify a state going to war.
a response in self-defense (Rule 71).." as its effect would lead to damage comparable to
a kinetic attack in terms of its impact on sovereignty and national security.
The sort of mass migration used to deliberately de-stabilize a country would certainly
constitute an interference in the internal affairs of that state, and its impact on national
security could qualify as the use of force. But it would have to reach a very high threshold,
with a particularly grave impact, for it to amount to an armed attack. What that threshold is,
is yet to be determined and may depend upon the perceived or stated intent of the country
producing the outflow, the numbers of migrants involved, the clear adverse impact upon
the economy and welfare systems, the rise in civic protest and demonstration, undermining
stability and so on. Clearly, the perception of the targeted state will be important when it
deliberates over any response. A mass population movement that was intended to deliberately
overwhelm the ability of the target state to cope, engage its armed forces in support of the
civilian police and border agencies, and undermine the economy of that state through the
increased financial and social burden placed upon it might fit the bill. A fortioriwhere this
was a softening up measure in preparation for a military attack, having first debilitated the
target state in this way.
More likely, less egregious acts, which are, nonetheless, a violation of international
law, may entitle the target State to resort to countermeasures (Tallinn Manual, n.d., pp.
20-25).
Consequently, as the threshold is likely to be quite high and very difficult to prove
a necessary intent, it is difficult to see that, in isolation, mass migration targeted against
another nation would amount to an armed attack, that is, a grave use of force. We have
seen in Crimea how even significant military force could be used below the legal threshold
of war. Crimea also highlights the difficulties which can be posed by state attribution for
conduct which is classed as "wrongful acts" (DraftArticles on Responsibility of States for
InternationallyWrongful Acts, 2001).
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