Lawfare Daily: What’s Behind Russian Incursions Into NATO

[Intro]

Minna Ålander: Like, in total, as I said, I think that the NATO response itself was pretty okay. But the, but the main data point for the Russians was that the European NATO allies that responded here, not the Americans. So they were not involved, really, in this response.

Anastasiia Lapatina: It's the Lawfare Podcast. I'm Anastasiia Lapatina, Ukraine fellow at Lawfare with Minna Ålander, an associate fellow at Chatham House Europe Programme and Mykhailo Soldatenko, a scholar of international law and a doctoral candidate at the Harvard Law School.

Mykhailo Soldatenko: For me, it's logical that they might say, look, when we are saying that any aircraft in Ukrainian airspace would be a legitimate target, we are not joking. And that's why we are escalating here in your aerospace to show that first point. Second, you should care about your airspace before protecting Ukrainian airspace.

Anastasiia Lapatina: Today, we sat down to discuss Russia's recent air incursions into Poland and Estonia, the history of Russian warfare against Europe and whether NATO's response to it has been proportional.

[Main Episode]

On September 9th, more than 20 Russian drones entered into Poland in the middle of the night, prompting NATO to engage enemy targets on its territory for the first time in history. So Minna, can you walk us through NATO's immediate handling of the incident and just tell us, what do you make of it?

Minna Ålander: The response on the NATO side was, as you said, for the first time to shoot down some of these drones that ventured into Polish airspace. And this was the first time, because it was also the first time that it was more than one at once.

What NATO did was it scrambled, obviously, both Polish Air Force, so there are F-16 fighter jets, and then also the Dutch F-35 fighter jets that were in Poland on the regular air policing rotation. They had just arrived like a week earlier in Poland and immediately got to see some action because of this drone incursion into Poland.

So, they scrambled and, and then it was both the Dutch and the, the Poles who together responded to this by shooting down the drones that were considered an immediate threat to Polish citizens’ security. And yeah, that was, that was the immediate reaction.

And I think honestly, personally, that it was for once pretty good reaction. It was pretty proportional as well, given that most of these drones turned out to be either ISR or decoy drones, so incredibly cheap. once something like 10,000 a piece, $10,000 a piece. So this was––as far as the sort of NATO readiness that was in place goes, it went according to the protocols, and it was a response according to what this kind of forward deployment of NATO forces in an Eastern Flank country is supposed to do in such a case.

So in that sense, there's been a lot of discussion about, why didn't NATO shoot down all of the drones, and that it was ridiculously, sort of, meek as a response, and like, not at all sufficient. I don't really agree with that.

Of course, there remain questions, such as why didn't Poland already at this point have some anti-drone units deployed at the border? Because this scenario has been an incredibly likely one. So a lot of analysts have expected this to be more or less like just a question of time, when this will happen, given that there have been a number of airspace violations and incursions by Russian drones into various NATO countries. Sometimes they have also crash-landed in some, some NATO countries in the Baltics, Romania, and Poland.

So, so this has only been sort of a question of time. So there's definitely, of course, much more that that needs to be done now, and needs to be done as soon as possible in terms of making sure that we don't have to use incredibly expensive fighter jet ammunition and, and missiles and, and so on to shoot down this kind of extremely cheap drones, in case––or, when this happens again. But as far as this response went, I would say that it was a pretty decent one.

Anastasiia Lapatina: As you've said, not all of them, not all of the drones were shut down. Actually, only a fraction of them were. Around three or four drones. There were some conflicting information on this.

But essentially, the explanation was that most of them, as you've said, were decoys. And it's sort of standard practice, even in Ukraine, that if, if the drones, you know, are hovering or going through some uninhabited areas and don't pose immediate danger to civilians, you don't engage them. You just let them crash into a field or something like that.

Minna Ålander: Exactly. Because like air defense by design has to be a little bit selective, and especially in this era where it's the advantages on the offensive side in the sense that it's very easy to also simply overwhelm air defenses by a number of––sending a number of, for example, small drones into the airspace.

And as you rightly pointed out, not all of them are going to be critical threats. So you have to be a little bit selective. And this is like standard procedure for, for air defense units. Yeah.

And also using NATO fighter jets is extremely expensive, which also made for a lot of, sort of, jokes and criticism that, that, you know, you should have some anti-drone units that are much cheaper in place than spending an enormous amount of money on shooting down––

Minna Ålander: Exactly.

Anastasiia Lapatina: ––besides from F-16s. Right.

Minna Ålander: I should maybe also add to this, that the German Patriot units in Poland were also in higher readiness, and they were ready to respond if needed. But that was not considered necessary given that the, the number of drones, which was somewhere around 20. So, there were also other response options available still, had it evolved in some way.

But as, unfortunately, Ukrainians know very well, the Patriot missiles are also incredibly expensive.

Anastasiia Lapatina: Yeah. So this incident is very special because it's not one drone that's very easily dismissed as, you know, going astray due to jamming or something like that.

This is a, a really big amount. 20, 21 drones. So, of course the Russians said that they didn't intend it. They, they sort of buried a little sentence into their statement, the, their usual post-attack statements saying that no targets in Poland were intended. And I should also add that this, this incursion into Poland happened during a mass attack on Ukraine.

Another special part of this is that some of the drones didn't come from Ukraine––as in, you know, going from Belarus or from Russia into Ukraine and then into Poland. Some of them––a small number––came directly from Belarus, which a lot of politicians, including in Poland, said was sort of a, an indication that this was intentional.

So how much do we know about whether this incident was intentional or not?

Minna Ålander: Well, there's a number of indicators that it was intentional.

And like one of them is exactly as you, as you mentioned, the direction from which the, the drones came, the number of them is another one. It has been much easier to give it the benefit of the doubt when it's been a single drone, or a single missile, sort of straying into the wrong airspace or something.

But this number is very unlikely. And I think one very strong indicator for intentionality is also that these were mostly, so to say, harmless. So they were, they were mostly decoys and ISRs, so not, sort of, meant as attack drones in this sense.

So, that makes it even less convincing that it wasn't intended, because this, this totally looks like exactly this kind of scenario that, that all the analytical community had been waiting for it to happen, where Russia tests NATO response.

And I think that in this case, even more important than the wider NATO response––like, in total, as I said, I think that the NATO response itself was pretty okay––but the, but the main data point for the Russians was that it was the European NATO allies that responded here, not the Americans.

So they were not involved really in this response, although the US is the framework nation in this NATO-forward force deployment in Poland. So I think that was the, a relevant data point that they were looking for, maybe even more so than the general NATO response.

And I think that this was exactly––this looks like exactly that kind of test to get that data. And it's––they got what they, they were looking for.

Anastasiia Lapatina: Yes Mykhailo?

Mykhailo Soldatenko: Yeah. It also like––it appears that it-, intentional, and when you read the Russian statement denying the involvement, so actually what they said is that the attack on Ukraine with drones, that within this attack, they did not intend to aim at targets in Poland.

Which is, if you read it literally, that's not a denial that their drones crossed the Polish airspace. So they just––

Anastasiia Lapatina: This is very lawyer-y of you to point out.

Mykhailo Soldatenko: There is no evidence, but just like––so I just, I'm just saying that you can be a bit more explicit when you're denying this. So, when you say that, you know, we attacked Ukraine and we didn't mean to target something in Poland, it doesn't mean that you are, you didn't mean to cross the airspace.

That that's the first point. Another one, like––I was surprised, but there was reporting that there is a disagreement in NATO intelligence community that some people questions––and what they say that, you know, decoy drone, they usually are employed in attacks in Ukraine to saturate air defenses.

And so they're, they’re going together with armed drones and so you can have a, like, 20 drones flying together and veering off course. And that's like––in their view, that might, you know, leave some room for plausible deniability. But that, that's something that like, caused, I think, based on the reporting, the, the disagreements in the intelligence community of NATO.

Anastasiia Lapatina: Right. There was also this sort of strange point about Belarus's reaction because in the morning after the attack, the Belarusian armed services put out the statement saying that the, the drones went to stray due to jamming and that they immediately informed, you know, people in Poland, the government of Poland, also I think the government of either Lavia or Lithuania––one Baltic nation, supposedly drones might have went into that country as well.

And that they even went in so far as to shoot down these drones that went astray on their own territory. So they essentially painted it the whole thing as like this was a mistake and we were even helping NATO to shoot them down, which also led some people to believe that maybe this was genuinely a mistake.

And then there was this also another awkward thing about some officials in the Polish government saying that a significant number of drones came from Belarus. And then the Ukrainian government said that it was like three, which I, I'm not––in my subjective opinion, doesn't quantify as a significant number out of nearly two dozen.

So, given all of this, of course, the question here is, what, what was this? And how do you qualify this?

Some Polish officials said––I think they, Polish, got the Polish armed services––the Polish army said that this was an act of aggression, which seemed like strong language to me when I read it. Should we be using the word attack and, but, and halo?

This is a question to you as a lawyer. Does, does this matter? Does the way that we––does the, the phrases that we use here matter? How does one determine if this incident crosses the threshold of an armed attack?

Mykhailo Soldatenko: So, you rightly pointed out that right after the incursion, the Polish military said and it was reported in media that they called it an act of aggression. Then later on, it watered down a bit, and if you look at the Polish foreign minister and Polish officials and prime minister rhetoric, after that, they, you know, shifted to saying that this is a violation of NATO and Polish airspace.

And that was the rhetoric across the board and reply across the board, with many NATO allies, but an act of aggression according to international law, with, without going into much details, it meant that they consider it as a use of force, at least the military.

But the Article Five––which is the famous Article Five about collective self-defense in NATO––requires an armed attack. An armed attack is not a regular use of force. It's the most––the gravest form of the use of force, not a mere frontier incident. And there should be a sufficient scale and effect.

So you would look, how many weapons were used, their type, risks, and, you know, casualties, physical damage, hostile intent. You, you would take it together in order to determine whether that was an armed attack. And only if the threshold would be reached, then Article Five would kick in. It appears that NATO considered this and, and there are good reason to do so.

Then just like 20 drones, with many of them decoys. And based on the last reporting that I saw, maybe three Shahed-like looking. And I, I don't know whether they were armed or not, but, but at least New York Times reported that at least three drones were armed, and they probably didn't aim at any targets in the NATO territory.

So you can plausibly say that this is not an armed attack. Polish military called it use of force, but it was, you know, sometimes states, in order to deescalate, they even not––they would avoid calling it use of force ,and would say this is a violation of airspace, which is a clear-cut case that this is a violation of airspace, a violation of international law.

This is not enough for Article Five. And there is a very important kind of reason behind this. And Article Five refers to United Nations Charter Article 51 because the, the term armed attack appears there, as an event that triggers the right to individual or collective self-defense of states.

And why there is such threshold? Because the idea behind Article 51 and Article Five is to manage escalation. You don't want to reply––for example, a fight between border guards, you don't want to reply with HIMARS attacks in reply. So, in order to deescalate, to deal with the lower-level use of force in a, in a more measured way.

But you can imagine that potential shortcoming of this, that then this would allow actors like Russia to do hybrid warfare and, you know, aim below the threshold of an armed attack in order not to invoke Article Five, but still to achieve certain policy objectives.

And, for example, the U.S. is an outlier in this respect. This is not like according to the International Court of Justice, including the Nicaragua case, that's not the dominant approach. But U.S. considers any use of force as an armed attack, really outlier.

Other NATO members don't consider it in such a way. And the idea behind this, that if you consider every use of force as an armed attack, that there is, it's supposed to be stronger deterrence of such hybrid actions.

And so at the end of the day, Poland decided to invoke Article Four. And Article Four is just about consultations when there is a threat.

Anastasiia Lapatina: Right. This is my next question actually. Yeah, so what does Article Four actually, actually say?

Mykhailo Soldatenko: So Article Four is about consultation within NATO when there is a threat to security of any member.

So it's really, really broad definition. It covers everything below the threshold of armed attack. So even when Russia unlawfully occupied, occupied Crimea in 2014, Poland––if I'm not mistaken, Poland––invoked Article Four because it felt a threat from this invasion, even though the invasion was not directed against Poland.

So it's, it's quite broad and you can consult and you can, you know, ask for additional Patriots or whatever, but there is no obligation there at all. In Article Five, there is an obligation to assist. If you want to discuss in more detail, we can do that. But you know, this obligation is not that strict as many people think.

Anastasiia Lapatina: You mentioned that because Article Five has such a high threshold that actors like Russia, you know, are, they're almost encouraged to act below it.

And I find this sort of paradox very interesting. I think this was a very prevalent issue during the Cold War, right? That because everyone knew that, you know, a direct war between Russia and the US would just be Armageddon and end humanity as we know it, but, but you still wanted to sort of compete with each other, that almost encouraged you to do more of this gray zone activity.

And so there was no war, but it wasn't exactly peace either. And I feel like this is it. It––am I right in, in seeing that this is something similar that's happening here, that Russia knows that it can do all of these things without crossing the threshold?

And because it is this malign actor, it is almost encouraged by this threshold being so high to do so many things below it.

Minna Ålander: Well, if I may just come in very briefly here. Well, there's a reason why the Cold War is called the Cold War. Because it was, it was a war, but without active. In Europe, in the European theater, there were a number of proxy wars where both the Soviet Union and the U.S. were engaged elsewhere in the world on opposite sides.

And there were like various ways of managing that competition and that whole sort of conflict in, in those ways that avoided the, the European theater. What we now see in terms of the gray zone aggression––or, I like to sort of conceptually distinguish between the gray zone aggression that was ongoing ever since the Cold War ended, basically, at least in the Baltic Sea region which is in the direct vicinity of Russia, and then what I would call hybrid warfare now since 2022, because it has significantly increased in intensity.

There's a lot of people who don't like this term “hybrid warfare,” because it sounds like you can ignore it if it's only hybrid, but I think that it's actually a good term in the sense that it still implies that it is warfare, you know. This is a type of warfare. It’s not something that we should just sort of accept and move on, which has been a little bit problematic with it, with this gray zone aggression by, by Russia, that there was a lot of this attitude that, oh, well, Russia is gonna be Russia, and they, they do stuff like this.

And the fact that, for example, the Nordic Baltic region is so used to these kind of things. Like, airspace violations are an absolutely regular occurrence in our region. It happens all the time.

Actually, I think in 2022, when Russia had just started the full-scale invasion and, and war against Ukraine, we had a little less airspace violations in Finland, initially, because maybe they were busy with other things.

So, so there has been a little bit this problematic normalization of this, I think, and that's why it is good to remember and remind that this is a type of warfare. It's not something that we should just accept because Russia is Russia.

But on the other hand, the hybrid sort of suggests that it has some old elements. It has some new elements. It can have military elements. It, it's very often sort of more in legal gray zones, and that makes it hard to, to respond to it because very often these threats are not of a military type, so a military response is not really available. But on the threshold––and I'm happy to hear what Mykhailo thinks about this, but the, the threshold of Article Five is actually not clearly defined and it shouldn't be.

And part of this is that on the one hand, Russia can be pretty confident that nobody's gonna––like, NATO's not gonna bomb Moscow because they cut the cable in the Baltic city. So that is a reasonable assumption on Russia's side that, that NATO's not gonna escalate in that specific case. But they cannot exactly know where that threshold is.

Because in some ways, like Nastiia already sort of talked about it, war is a little bit in the eye of the beholder. And right now, we have this, this situation that, that Russia is very hell-bent on being at war with us in the west. But we, especially in Europe, sort of refuse to be at war with Russia, which is in itself sort of an interesting situation.

And I've also described this hybrid warfare as peacetime warfare, because according to our laws and legal frameworks, we are still in peacetime. And that comes back then again to like, whether this was a proportional response or not. And should everything have been shut down? Should we start shooting down, also, Russian fighter jets? because in peacetime you have a lot of air traffic, for example, civilian air traffic.

And you cannot just, like, start shooting down everything that you suspect of being maybe an airspace violation because that may become a really severe threat to civilian air traffic.

And obviously, in Ukraine, the situation very different because Ukraine is at war and the skies are closed for civilian traffic. So there are a lot of implications here that are relevant for the distinction between war and peace.

Mykhailo Soldatenko: So one important point that it's important to highlight. So, if NATO wanted to use force against Russia, currently there is a clear-cut way to do it: collective self-defense of Ukraine. That was just a policy decision not to do it.

So that may also include the shooting down drones of Ukrainian airspace, et cetera. So UN Charter allows. Ukraine would be happy to invite U.S.––UN Charter allows to act in collective, collective self-defense.

NATO, obviously for policy reasons, didn't do that. That's first.

Anastasiia Lapatina: Do you mean that within the Article Five framework or not?

Mykhailo Soldatenko: No, within Article 51 of the UN charter.

Anastasiia Lapatina: Okay.

Mykhailo Soldatenko: So under Article 51 of the UN charter, and there is a right to collective self-defense. So, if any member of the UN becomes a victim of an armed attack, upon its request, other states can lawfully use force to protect it from that. But there is no obligation, like in Article Five. There is a policy choice.

Then, second point––also, Russia obviously was involved in such kind of activities for a long time. It's, it's important to remember that other powers also do this. The U.S., obviously, during the Cold War, U-2 airplanes over the Soviet Union territory, there were incidents in other countries where drones reportedly crossed the airspace. So that's not only applicable to Russia. Other powers used those tools for various reasons, for intelligence, for signaling also.

And the second point, yeah, the threshold of armed attack in Article Five is not clearly defined, and it makes a reference to Article 51 of the UN charter and, under international law it's also not clearly defined.

The best––what we have with the International Court of Justice, in the Nicaragua case, that it should be the gravest form of the use of force. But the whole spirit of the UN Charter is to deescalate. So you would treat things that are close to border minor incursion as just that. And it strikes me as plausible then, in this case, that you can plausibly say, this is unlawful use of force.

But I think NATO countries are right when they are not interpreting this as an Article Five, because then going forward you would need to respond to similar incursions within Article Five framework. Which, then, there may be concerns when it's invoked, about its credibility.

Anastasiia Lapatina: So going back to the incident in Poland and, and the response. NATO said that it launched Eastern Sentry, an operation to reinforce the bloc’s eastern flank.

Minna, how much do we know about what that actually entails and about this initiative?

Minna Ålander: So the Eastern Sentry follows actually a very similar other NATO mission that was established earlier this year, as a response to this Christmas Day cable-cutting incident in the Gulf of Finland, so Christmas Day 2024, which was called Baltic Sentry.

So the idea is to increase NATO presence, to increase monitoring capacity and make sure that, that Russia knows that they cannot move a finger without NATO seeing it and being aware of it. I am just gonna sort of briefly talk about this Baltic Sentry first because it helps to understand this Eastern Sentry that is directly, sort of like, related to the same idea.

So the interesting question is, we had one more cable incident about a week after the, the Baltic Sentry was established in, in January, February this year. But after that, nothing has happened so far.

And now there's the question: is that because most of these things have been genuine accidents––due to bad weather conditions in the winter, and because these crews are mostly incredibly incompetent? Or have there been no incidents because there was no, sort of, veil of deniability due to better weather conditions?

So the interesting question is, did it work? Or will we start seeing again more of this kind of incidents resuming, sort of, now, in the fall and winter, when the weather gets more stormy and so on?

So that's why it's––for example, in the case of the Baltic Sentry––it's a little bit difficult yet to sort of assess whether it was the intended success that it looks like or not. But coming back to the Eastern Sentry, I would say that this was actually a really good and positive example of a quick NATO response to the incident.

So, on the 10th of September, so it was the morning of this nightly drone attack or incursion into Poland. We immediately had very strong statements from a number of European partners and allies condemning this, pledging to deploy more support to Poland.

Two days later, on the 12th of September, that this already was made official as this Eastern Sentry NATO mission. And three days later, for example, French Rafale dual-use or dual-capable fighter jets––so also nuclear-capable fighter jets––were already in Poland and responding to the next drone threat.

So, so this was actually very fast. So only three days later, there was already an enhanced deployment. Other pledges came from, or other sort of extra deployments will come from, for example, Germany––Germany sending some Euro fighters.

The UK was, at the time of the announcement of these Sentries, still looking into how they, how they can best contribute. And, and Denmark has also pledged a concrete contribution.

In the sort of spirit of the, of the moment, the, the new extra contributions come from European NATO allies. And that's not unreasonable, of course. But we probably all remember a time when the U.S. may have wanted to be in on this action and it isn't, now.

Anastasiia Lapatina: Speaking of that, we should probably talk about the American response to, to the incursion and into what happened. Do either of you have, have thoughts about how President Trump reacted and the, the broader American government?

Minna Ålander: What was really remarkable in this whole situation was that the European response was swift and very unambiguous, whereas it took something like 12 hours or longer to even get Donald Trump convinced that he should take the phone call from the Polish president. So, so this was quite incredible in many ways.

Anastasiia Lapatina: In the literal sense of the word. Incredible.

Minna Ålander: Exactly. So definitely, back in the good old days a year ago, it's unimaginable that the U.S. president would not have been on the phone with the Polish colleagues from the very first minute when this was detected.

I mean, like time-wise, it wasn't even that late yet in the U.S. Like it was early evening. So there wasn't even like, sort of, an excuse in that sense. So that is quite remarkable.

And as I said, and the European side of things work as intended and as it's supposed to in terms of this kind of deployment. And that's a very positive sign. But on the whole for NATO, it's not great that the Americans have this year, sort of stayed out of most of the things.

And this is––in a way, like, of course, like it made sense that it was the Dutch, for example, who scrambled to, to shoot down the drones or to, to sort of, meet this threat with the Poles, because they were deployed to Poland with their fighter jets.

But nevertheless, that the U.S. is not participating in any sort of more concrete or visible way in this Eastern Sentry is significant. And also that Donald Trump had a hard time deciding or making up his mind whether this likely was intentional or not. And he seemed to be more inclined to think that this was not intentional and sort of to play it down quite a bit.

So there, there is a very marked difference to what one could have expected of the framework nation. I want to emphasize this point that the U.S. is the framework nation of this, this NATO contingent in Poland, in other countries, these other nations. And in that case, having this kind of a minimal reaction by the U.S. is very unfortunate.

Anastasiia Lapatina: Yes. Yeah. As, as you've said, the, the U.S. hasn't––has taken a very different tone from its Polish counterparts.

If the Polish government was very, very intent––maybe some would say sort of too intent on, on saying right away, that this was intentional, that this was an act of aggression, that Russia was threatening Polish security, Donald Trump and, and the White House broadly have taken a very different tone and, and said that we don't yet know whether this was intentional, perhaps this was a mistake. Sort of varying tone with the broader––Trump's apparent, you know, avoidance of criticizing Russia for anything it does.

Minna Ålander: Exactly.

Anastasiia Lapatina: So, I wanna pivot a little bit because the, the issue of, of Russian incursion into NATO didn't actually end in Poland.

Less than a week after the Poland incident, a Russian drone was spotted in Romania. And a few days after that, three Russian fighter jets breached Estonian airspace. They spent around 12 minutes in the Gulf of Finland.

And I wanna pause on this Estonian incident and focus specifically on the Baltics for a moment. Because Minna, as you've already said, in that region, Russian air incursions are quite common. And Minna, you recently co-authored a report about Russian hybrid warfare in the Nordic and Baltic states. We'll link it in the description of the episode.

So can you just give us the lay of the land of Russian hybrid activity in the Baltics? Because I think it's really worth pointing out, that even though the Polish incident was, was shocking in many ways, in some ways it wasn't. Because in the Baltics, things like this––or, you know, similar incidents––happen very, very often.

Minna Ålander: Yeah, I would say the new element of this Poland situation was that it was drones and not jets, because we're more used to having Russian jets bust airspace.

So, if we just look at the incidents in the air over the past 15 years or so, for example, in 2013, Russia simulated an attack on Sweden that NATO later stated in a report was a nuclear––a simulated nuclear attack. In 2013. To the great shock of the, the Swedes, who at that time didn't really have enough of their own jets in readiness, because that happened over the Easter holidays and it was actually the, the Danish Baltic air policing deployment that then scrambled to intercept these, these Russian jets. Quite embarrassing for the Swedes.

The situation is much better now. And Swedes were actually among those who intercepted these three jets just the other day. So we have seen a lot of this kind of incidents.

Russia has also often very specifically used this as kind of a way to give feedback to, to these countries.

Anastasiia Lapatina: Before we go into reasoning, can we also just say that when you say quite a lot, you mean like hundreds of times, right?

Yeah. Like these, these things happen. Do––can you put some number on it? Just how often this happens?

Minna Ålander: Well, just to give you an example the, the NATO air policing, Baltic air policing stated in 2023 that there were more than 300 incidents where the NATO Baltic air policing had to scramble to intercept Russian jets.

Anastasiia Lapatina: In one year.

Minna Ålander: Yeah, in one year. So this was 2023. So this is, of course, like that, that the number of these incidents has increased a lot. But if you go back and, and look at the NATO air policing mission from also years prior to the, the full-scale invasion of Ukraine by Russia, these did happen on a weekly basis.

So the air policing has been quite busy ever since it was established. So, this is really frequent. And unfortunately, that does lead to this kind of getting used to it as well, in a way. But I just wanted to give this other example because there was the one really blatant, like, you know, simulating a nuclear attack on Sweden.

And that was 2013, back in the day when sort of everybody thought that maybe we can, we can somehow make this work with Russia. And then, 2016, two Russian fighter jets violated the, the Finnish airspace, I think it was just a day before Finland was due to sign a memorandum of understanding on defense cooperation with the U.S.

And they were later found out to have had Iskander missiles on board and they were on their way to Kaliningrad. This was this kind of airspace violation as a way to give feedback to your neighbor about things that you don't like that they're doing. So Russia has used this as both intimidation and signaling.

And for the Baltic states, the situation is particularly tricky. And when we talk about how NATO should react to this kind of airspace violation. So for example, the other day, the remarkable thing about this airspace violation was that these, these jets, these Russian jets lingered in the, in the Estonia airspace for a whole 12 minutes, which is quite a long time.

They did leave the Estonian airspace when the, the NATO response came to––or like NATO jets from Finland, Sweden, and Italy––came to escort them out of stone and airspace. So in that sense, it, it worked as well as this kind of interception should, but that was the remarkable thing about this. There was three jets and they lingered for such a long time.

Also, that it happened so soon after these other incidents was significant. But here, again, we get back to this dilemma of peacetime air traffic and rules of engagement. And it is actually quite important. So what, what is often said about these airspace violations by authorities in the countries where they happen is that this is really unprofessional also by, by Russia, especially because they very often fly without transporters on.

And one reason to do this interception is also so that civilian air traffic can see that there's something going on, because otherwise they can't even see these Russian military planes in the sky because they, they have their transporters off. So this is also one way to hire––sort of signal to, to civilian air traffic that there's something here.

So this is a significant problem and, and a very big issue. But it has also been this way for a long time, and not only since, since last week basically. Which doesn't mean that we shouldn't do anything, but there still are good questions to be raised about––especially in the Baltic case––what would be the ability for the NATO response to go as far as to shooting down a jet?

And the main issue in the Baltic States case is that they don't have their own air forces. And that's why there is this whole arrangement with the NATO air policing. So very likely, if, if it were to happen––and unlike it happened in 2015 with Turkey, it was a national reaction, national rules of engagement, national decision, policy decision, most of all to do that, to shoot down that Russian jet that, that violated Turkish airspace.

Anastasiia Lapatina: Let, let's unpack a little bit, yeah, what that case was. Because I've seen a lot of people actually bring that example up and say that, you know, Russian air jets have not violated Turkish airspace since, so clearly Turkey knew what was doing. Isn't it true that Turkey didn't even, I mean, I'm not sure if that matters for the purposes of the conversation, but at the time that the Russian jet violated Turkish airspace, I think Turkey didn't know that it was the Russian jet at the time that it made a decision to shoot it down.

Minna Ålander: I'm not entirely sure how that incident unfolded, so unfortunately I can't, like, verify or deny that that was the case. I think it's a particularly bad example and bad comparison because Estonia is not Turkey. As I mentioned, Estonia does not have its own air forces, so Estonia therefore cannot make this kind of a decision by itself.

So it has to be sort of, a NATO decision in this case. Let's say that, that Russia did this somewhere like, in Swedish or, or Finnish aerospace or Danish or whatever. When the country has its own air force, it basically could do––could make a different decision nationally. But we have to remember that Turkey and Russia have a very different relationship than Estonia and Russia have, or Finland and Russia have.

If you, if you want to use a metaphor of, sort of, you being buddies with somebody and your buddy's really annoying, you sort of––like kind of poking you and slapping you a little bit––and then you lose your patience and you're like, cut it out and you punch them in the face. And then they're like, okay, sorry, sorry.

So this is sort of like the Turkey-Russia relationship because they are quite chummy with each other, actually, Erdoğan and Putin get along. They cooperate in, in many ways––

Anastasiia Lapatina: Until they don't.

Minna Ålander: Yeah, until they don't. I mean, like, it's a very complex relationship of course. And I'm not doing it any justice here because, of course, like Turkey has in, in many interesting ways been also very helpful to Ukraine.

So, so, but the point is that Turkey is playing its own game in its own league. And its relationship with Russia is a very different one. And I would not advocate for other European countries to adopt the same approach to Russia as Turkey has.

Like, I do not want to see us all starting to build even more Russian nuclear power and like, you know, getting this friendly with, with Russia, which is sort of––and, and then you have to sort of, when you think about how something is integrated, because we're back in this, this question, like, what is an, an act of aggression and what is not? And because there are no clear definitions, as Mykhailo has pointed out.

So, so here, then, if you are Estonia or you're Finland, and you're very clearly not friendly with Russia, and you then shoot down a jet, it means something else, you know, than in the Turkish case.

Anastasiia Lapatina: Let's talk about that then. Like, let's talk about what is––to both the Polish incident and the Estonian incident––what is the range of responses at NATO's disposal here.

Because in Ukraine, a lot of people have said that the response to both incidents was quite weak, and it should have been more forceful. They should have done more. Could NATO do anything more than what it had already done?

Mykhailo, maybe we should start with you, if you have thoughts about it.

Mykhailo Soldatenko: So I would, I would add a bit on the Turkey example, please, if I may. So back then, based on the reporting that I saw, so actually the planes were in the Turkish airspace, at least according to Turkey, for seven seconds. Two Su-24s. And they actually, so, one of them left, and it appeared like the second one wanted to leave as well.

And it was shot down as a, you know, as a message. Because Turkey said we repeatedly informed you about the incursions. And so that was kind of a, you know, at that point that maybe people can make an argument that what worked like deterrence.

But yeah, according to general practice, you would generally do warning. You would see whether aircraft would reply to your messages and if they would––and whether they would, would have a hostile intent––and so when you can, you would just escort them from your airspace. So that would be like a proportionate reply. And, and when they don't, then just like a last resort measure, you would use force.

And from the legal point of view, there are different reasons and legal bases for doing that.

Anastasiia Lapatina: And this is not just in the Baltics, this is like worldwide, sort of, international practice––

Mykhailo Soldatenko: This is like general, general practice. Usually how you would do that in order to––for, for the response to be proportionate.

What the risk when you just, you know, you see a jet incursion and you immediately strike, the problem with that is that another side may say, oh, that's an armed attack on our country because striking a jet––that's, that likely reaches the threshold of an armed attack.

And so there was in 2019, when a U.S. intelligence drone reportedly, according to Iran, entered Iranian airspace and they shot it down. They actually qualified it as an armed attack. Immediately, they said, ‘we are shooting down in self-defense.’ So the Trump administration considered using force against Iran in self-defense. So you can imagine how that can escalate, get very messy quickly.

Anastasiia Lapatina: Yeah.

Mykhailo Soldatenko: So then you wanna exhaust the other avenues to kind of resolve this question. But I mean, at the same time, like, yeah, 15 minutes in the airspace, that's, that's significant.

Minna Ålander: It's audacious for sure. And it is again this kind of typical signaling by Russia. I just wanna make a couple more points––and this is absolutely not from a lawyer's perspective, so happy to be corrected by you, Mykhailo––but there's also other things to consider, for example, when you have a direct border with Russia.

You don't wanna risk that when, when you are just like conducting exercises in your airspace, but quite close to the Russian airspace, that they then start like also using more liberal interpretation and, and saying like, well, you were coming towards us, so we figured that like, since you shot down our jet, we're gonna do this as well.

You also wanna make sure that, like, having civilian air traffic in those border areas doesn't get even harder than it is already due to the extensive Russian GPS jamming. You still wanna be able to fly to your airports in eastern Finland or eastern Estonia and so on. So there's quite a lot of considerations, and I would, I totally understand the Ukrainian frustration with a lot of things.

I personally consider that NATO countries should have a long time ago started cooperating with Ukraine on helping out with air defense of, let's say, at least western Ukraine, you know. Because there would've been also legitimate case to, to do this, given that these drone incursions and missile incursions even have happened before as well.

So, there's a, there's a lot of things that, that European countries and, and Ukraine's neighboring European countries could and arguably should have done earlier already. And I hope that this will be done. Now there, there seems to be some indicators that this will––and there's at least talks about doing this now, but there is a big difference, again, between wartime and peacetime in terms of civilian air traffic.

And you simply don't want to sort of do something too drastic that may then make civilian air traffic unsafe. And as Mykhailo said, there are quite significant escalation risks about especially shooting down fighter jets that are manned. So there is a pilot, a person inside.

I think it's also significant that, for example, when this drone––I would call it a drone attack––in Poland, so when that happened, it was drones. Because they're unmanned, I would say that you can maybe consider them, like, slightly lower, especially in this case, on the escalation ladder than––if it had been like 20 jets, like, that would've been a completely different question, you know.

So the situation is not so straightforward in the case that you, you want to sort of, or you have still your peace and legal framework.

I understand that there's a lot of, sort of, frustration with this, and people think that the response should be stronger. But actually, rules of engagement also change if the situation changes.

So had, for example, these jets started, like, heading towards, I don't know, mainland Estonia or something, or like you could have asked, Minna mentioned, definitely suppose some kind of even more hostile intention, then it's a different situation again. And I think that we have a good capacity to respond to that.

Drones are a little bit different because we right now in Europe don't really have a proper anti-drone capability, like pretty much anywhere. But in this case, I would say that the, the responses have been pretty proportionate, given that we're not at war with Russia yet on our side at least.

Mykhailo Soldatenko: Yeah. So I wanted to add about the Ukrainian perception, and I actually, I don't know whether that's intended unintended consequence, but I think laypeople in Ukraine, they see it––so they are, they don't, they don't know details about, like, the difference in threshold of an armed attack. And they see it as a weakness.

So there was a lot, a lot of irony from Ukrainian people that they see that this reply of NATO was not strong and at least their perception of how NATO would react. And they take the defending every inch of NATO territory quite literally. And so, an unintended consequence that you have is that just like many people think, so maybe NATO is not that––of a, you know, thing that we should care about.

So maybe in the context of the pending negotiations, that's not a big concession to say that we would close the door to NATO. And I don't know, like from the informational point of view, you can imagine how Russians may, may use it for their purposes, but––and actually, if you want to discuss signaling that––

Anastasiia Lapatina: I think I would, actually wanted to go into that.

So, Minna, you've said, you've said multiple times in this podcast that the Russians use these incidents to sort of signal their displeasure with certain things. And I, and I want us to pause on this because it's a very interesting part of it. So Mykhailo and Minna, can you tell us about sort of why is Russia doing all of it? And what, what's, what's behind this sort of course of signaling, as it's known in academia?

Mykhailo Soldatenko: So I would defer to Minna on the military points. I would––so many people said that it's a part of testing NATO, testing U.S. resolve, which I think are plausible considerations.

I would just say, following the negotiations about ending the Russia-Ukraine War, following the Alaska Summit, there is a huge, key disagreement between the Ukraine and European countries and Russia about the future security framework after the war ends. So the European so-called coalition of the willing, they want to have, after ceasefire, a European presence, military presence in Ukraine, that would include air patrols.

Okay. At least that's how it envisioned when you consider this aerial incursions into NATO territory, right after this disagreement, you know, ripened, you can see, I think it's plausible––obviously only people, policymakers who are involved in negotiations can understand whether that's a signal about that,

but for me, it's logical that they might say, look, when we are saying that any aircraft in Ukrainian airspace would be a legitimate target, we are not joking. And that's why we are escalating here in your aerospace to show that first point.

Second, you should care about your airspace before protecting Ukrainian airspace. And you know, I, I would see this as plausible, especially in terms of timing. And I saw reports that some European officials read it this way, and some analysts also thought that this is the case.

Anastasiia Lapatina: So essentially, Russia is doing some of these sort of below-the-threshold hybrid warfare actions as, as communica––as, as a type of communication. To communicate its displeasure about something, and to perhaps try to compel the Europeans or the Americans to change behavior in certain areas.

Mykhailo Soldatenko: To kind of, you know, to make their threats more credible.

Because when you just say things, it's one thing. When you add action––and that's a part of NATO deterrence, right? You, you are saying something with Article Five, but you wanna do all this kind of military gestures in parallel.

And so here it strikes me as plausible. I am open to a possibility that this is just testing NATO and U.S. resolve. But if I were––

Anastasiia Lapatina: It could also be both, right? They're not mutually exclusive.

Mykhailo Soldatenko: Yes, absolutely. And this also lead to informational––so, campaigns like Poland mentioned, that why they thought that this was intentional because Russian informational campaigns increased.

So another point, for example, to have division between Ukraine and Europeans. So Ukrainians would say, oh, we are under constant attacks and you are like replying in a weak way. So there will––many memes with like a lot of, of irony in Ukraine.

Anastasiia Lapatina: I can, I can prove that.

Mykhailo Soldatenko: You know, like, I'm just, I'm just about one that may be, you know, showing some divisions, people saying that when drones are coming into Polish airspace, Poland is sleeping, like a sleeping beauty.

When Ukrainian trucks with green go into Poland, Poland is awake.

So I'm, I'm just––and this is like, this can cause division, right? And on the Polish side, and there were informational campaigns that those Ukrainians, they want to involve us into this war and to escalate, drag us into it and drag into the war.

So there are so many consequences that can follow from this.

Minna Ålander: Absolutely. So this is an extremely important point, and I'm glad that you emphasize this information dimension, 'cause that is always present in any hybrid attack.

And it's interesting how the information dimension and then the sort of physical dimension interact with each other, because sometimes, like most of the time, it's––let's say that some kinetic thing happens. Like this.

And then it's accompanied by a massive sort of information operation, and there's multiple ways of sort of using that information warfare potential of this. Like in the Polish-Ukrainian case, it seems a very clear-cut case to me to increase anti-Ukrainian sentiment in Poland, unfortunately.

So as you mentioned, the, the Ukrainian side, on the Polish side, something that, this was actually Ukrainians who sent the drones. So, so this kind of information operations can then accompany this kind of a physical attack, or sometimes it goes the other way around.

We, for example saw in 2020––from 2021 to 2023––some really aggressive disinformation campaigns against Sweden. One was about Swedish authorities allegedly taking away Muslim children from, from their families. And, and then the other one was an amplification of these Qur’an burnings that happened in Sweden during the NATO accession process.

And this was actually disinformation campaigns that were happening in this information dimension. But they sort of spilled over into the physical dimension as violence against, for example, Swedish embassies in Iraq, I think it was, that was stormed and set on fire. And Swedish football fans got shot at in Brussels by somebody who had been sort of very much influenced by this disinformation campaigns.

So there's always this interaction with the information domain in any hybrid warfare that's very important to remember. And that's why I honestly think that we are doing ourselves a disservice by psy-oping ourselves into some kind of hysteria about this.

So I think that, like, this may sound lame, but I do think that there is some virtue also in, sort of, just not letting Russia have its, or achieve its goals in the information domain and sort of like keeping calm and carrying on in, in a certain way.

So let me just give you an example. For example, from the Finnish perspective, so this is a very common thing that Russia would do, sort of. Russia will––Russia often intimidates the, the smaller neighbors, especially to, to make them behave in ways that Russia prefers, as opposed to what, what Russia doesn't want to see in the region.

One example was this, when Finland was about to sign this M.O.U. with the U.S. in 2016. Like, obviously, this Russian airspace incursion, didn't stop Finland from doing it. That's a win. Finland went ahead with it.

Russia had been threatening Finland by all kinds of consequences with all kinds of consequences if Finland joins NATO for a long time, but that never stopped Finland to, from joining NATO when it became sort of, expedient in a way.

And, and I think that there's always––it's important to remember that two can play this game. We can do the same. So from the Finnish side, the response to these Russian threats that we will do X, Y, Z if you join NATO, was that Finland, sort of, view that the NATO option as its own threat, in a way, that if Russia goes too far––if Russia sort of does certain things or significantly causes a deterioration of the Finnish security situation and environment––then Finland will join NATO. So it was sort of like a counterthreat.

So we can do this too. We, it, it doesn't have to involve, like, shooting down like––very often, sort of symmetric response is not the smart play. But there's other things that we can also do to signal resolve.

And I think that, honestly, given that it was––this time, I have, I have seen an astonishing number of analysts and like articles claiming that the, the NATO response once again was nothing more, but an expression of concern. That's just not the case here. So, it was both a strong political sign of, or signaling of, support to Poland by European allies. And it was accompanied by action very concretely.

We can then discuss, like, what's the best way to do this, is a drone wall as the EU calls it? And is that at all sort of realistic? What kind of an anti-drone capacity do we need to build? And what is a––what is a feasible and realistic way to counter these threats? These are all separate conversations, but this time there actually was quite a good, incredible response, and which was also quite proportional.

Anastasiia Lapatina: We're gonna have to wrap up on this note. Mykhailo, Minna, thank you so much for coming on the show. It was very interesting talking to you.

Minna Ålander: Thank you so much.

Mykhailo Soldatenko: Thanks a lot.

Anastasiia Lapatina: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfare media.org/support. You'll also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts. Look out for our other shows, including Rational Security, Allies, The Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja and our audio engineer this episode was Goat Rodeo. Our theme song is from ALIBI Music. As always, thank you for listening.