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THE ATTACK ON UKRAINIAN VESSELS IN THE BLACK SEA

I. INTRODUCTION

1. I have been asked to consider the principal legal issues that have arisen in the
recent incident involving the Russian Federation’s (‘Russia’) seizure and
detention of Ukrainian boats and personnel in the Azov Sea/Kerch strait. At this
time, many of the facts are not known or are ambiguous. Accordingly, many of
the legal issues cannot be definitively resolved. However, the below discussion
attempts to highlight the main legal issues that must be considered if Ukraine is
to respond effectively to the current crisis.

II. FACTS

1. Context

2. A balanced view of the current confrontation requires a contextual examination


of the dispute in the Kerch Strait area. The Kerch Strait is bordered in the east by
Russia and in the west by Russian-occupied Ukrainian Crimea. In sum, Russia
claims that the sea around Crimea is now exclusively for Russian use. 1
Accordingly, the Russian navy has become increasingly confrontational in this
region, including attempts to threaten Ukrainian vessels as they move from
Odesa to the Azov Sea through what Russia’s border control agency has termed
“Russian’s exclusive economic zone”.2

2. The 25 November Incident

3. On 25 November 2018, a Ukrainian cargo ship, accompanied by two Ukrainian


gunboats, attempted to move between Ukraine’s sea port in Odesa on the Black
Sea to another Ukrainian sea port in Mariupol, located in the Azov Sea. To reach
their destination at Mariupol, the three vessels had to move off the coast of the
Crimean Peninsula and pass through the Kerch Strait.3 The precise location of the

1
Putin signed a law to include the waters around Crimea to the Russian water zone, Izvestiya, 1 July
2017.
2
Why did Ukrainian vessels go to the Azov and why did the Russian Federation capture them?,
Hromadske, 26 November 2018; Two ships of the Navy of Ukraine entered the exclusive economic
zone of Russia near Crimea, TASS, 22 September 2018.
3
Livemap, Ukraine.
boat, particularly whether the incident occurred in Ukrainian or Russian
territorial waters, is presently unclear.

4. This was a pre-planned relocation of vessels of the Ukrainian Navy.4 According


to the Ukrainian navy command, the Russian authorities were informed about
the movement but had not responded, neither expressly permitting or objecting
to it. However, the Russian Federal Security Service (‘FSB’), responsible for the
protection of the Russian state border on the land and in the sea, asserted that the
Ukrainian crew entered Russian waters illegally and refused to comply with
demands to stop. Consequently, the three vessels were met by four Russian
border control ships, one of which allegedly rammed the Ukrainian cargo ship,
damaging its main engine and lining.5 An hour later, a Russian tanker
purportedly ran aground under the arch of the Kerch bridge blocking passage
through the Kerch Strait.6

5. By the evening of the 25th, when it became clear that the three Ukrainian vessels
would not be allowed to pass through the Kerch Strait, the Ukrainian vessels
made the decision to return to the Odesa port. By that time, eight Russian ships
and two military helicopters had arrived in the area. The available evidence
suggests that Russian ships and helicopters pursued the three Ukrainian vessels
as they made their way toward Odesa and opened fire on the two gunboats. 7 The
Ukrainian vessels did not use any weapons and tried to avoid any collision. 8

6. Subsequently, the Russian forces seized all three Ukrainian vessels and detained
the 24 crew members, claiming they had violated Russia's sea border.9
Conversely, the Ukrainian Navy Commander insisted that the Russian forces had
committed an ‘act of aggression’ by ramming and opening fire on Ukraine’s

4
Navy: Ukraine has all rights to the Azov Sea, and actions of Russia are an act of aggression, Unian,
25 November 2018.
5
The war in the Kerch Strait: ramming, attack aircraft and seizure of the Ukrainian vessels, Ukrainian
Truth, 25 November 2018.
6
Ibid.
7
Ukraine says Russia opened fire on its naval vessels, seized them, CNN, 26 November 2018.
8
Navy of Ukraine, Border controls ships of the Russian Federation committed overtly aggressive acts
against the Navy ships of the Armed Forces of Ukraine, 25 November 2018.
9
FSB confirmed seizing Ukrainian ships, Ukrainian Truth, 25 November 2018.
vessels when they were in neutral waters.10 According to the Ukrainian navy, six
Ukrainian navy personnel were injured. Russia admits to wounding three crew
members and claims it provided medical assistance.11

III. EXECUTIVE SUMMARY OF THE RELEVANT LEGAL ISSUES

7. When considering the legality of the Russian attack on the Ukrainian vessels, the
applicable legal regime (the law of the sea or the law of armed conflict) and the
location of vessels (whether in Russian or Ukrainian territorial waters) become
the most relevant considerations. As will be discussed below, Russia does not
recognise that an international armed conflict exists between the two States.
Thus, it argues, the law of the sea is the prevailing legal regime. However, as will
be discussed, as a matter of international law, Russia is currently occupying
Crimea. In these circumstances, the law of armed conflict is applicable; it largely
overrides the law of the sea. Following the brief discussion below concerning
Russia and Ukraine’s cooperation agreement concerning the Azov Sea and the
Kerch Strait (paragraphs 9 – 11), each of these regimes and Russia’s compliance
with them will be discussed in turn.

8. As will be discussed, even if the Russian interpretation of the applicable law was
correct, which it is not, it would not render the Russian action any less of an act
of aggression. When considered under the law of the sea, the Russian action
appears to be in violation (see paragraphs 12-29) and might be considered an act
of aggression (see paragraphs 30-33). When considered under the law of armed
conflict – the correct and applicable legal framework - the actions by the Russian
Federation in attacking the Ukrainian vessels are not in violation of the law of
armed conflict, that is, they were likely compliant with the applicable jus in bello
(e.g. the targets were military, the principles of precaution, proportionality and
necessity were respected). However, they appear to be another act of aggression
that is relevant to the jus ad bellum as a violation of the UN Charter (see
paragraphs 34 – 44). The subsequent prosecution of the detainees as civilian

10
Navy of Ukraine, Border controls ships of the Russian Federation committed overtly aggressive
acts against the Navy ships of the Armed Forces of Ukraine, 25 November 2018.
11
Wounded Ukrainian marines were provided with surgical treatment in a Kerch hospital - the
Ministry of Health of Crimea, Krym.Realii, 26 November 2018.
alleged wrongdoers is, however, a violation of the law of armed conflict (see
paragraphs 45 – 51).

1. The Russian-Ukrainian Agreement on Cooperation in the Use of the Azov Sea


and the Kerch Strait

9. Before considering the applicability of the law of the legal regimes and potential
violations, it is necessary to briefly outline the 2004 Russian-Ukrainian
Agreement “on cooperation in the use of the Azov Sea and the Kerch Strait” (the
Kerch Strait Agreement).12 The Kerch Strait Agreement appears to clarify and
make explicit that Russian and Ukrainian merchant vessels, military ships and
other non-commercial vessels may move freely through the Kerch Strait and into
the Azov Sea based on the the need to “preserve the Azov-Kerch water area as a
holistic economic and natural complex, used in the interests of Ukraine and
Russia”.13

10. A comprehensive analysis of the agreement and its status in international law is
outside this brief memorandum. However, in sum, the plain terms of the
agreement provide Ukraine and Russia equal rights to the use of the Strait and
the Azov Sea. Of immediate relevance is the definition in Article 1 of the Kerch
Strait Agreement, that the Sea of Azov and Kerch Strait are “internal waters” of
Russia and Ukraine. Further, in a Joint Statement by the President of Ukraine and
the President of the Russian Federation on the Sea of Azov and the Strait of Kerch
on 24 December 2003 both States reiterated the terms of the Kerch Strait
Agreement, stating that “historically the Sea of Azov and the Strait of Kerch are
internal waters of Ukraine and Russia”.

11. However, there are indications that Ukraine now wishes to reinterpret the idea of
a jointly-owned regime. On 16 July 2015, a group of Ukrainian members of
parliament submitted a “Draft Law on the Denunciation of the Treaty between
Ukraine and the Russian Federation on Cooperation in the Use of the Azov Sea

12
The Agreement between Ukraine and the Russian Federation on Cooperation in the Use of the
Azov Sea and the Kerch Strait, Law No. 1682-IV of 20 April 2004.
13
The Agreement between Ukraine and the Russian Federation on Cooperation in the Use of the
Azov Sea and the Kerch Strait, Preamble.
and the Kerch Strait”.14 However, for a variety of internal reasons (including
Ukraine’s ongoing claim at the International Tribunal for the Law of the Sea
concerning Russia’s allegedly unlawful exclusion of Ukraine from exercising its
maritime rights, unlawful exploitation of Ukraine’s sovereign resources for its
own ends, and usurpation of Ukraine’s right to regulate its own maritime areas
that rests in part on the applicability of the Treaty)15 the Draft Law was not
adopted. In these circumstances, the current legal status of the waters appear to
be that they form part of a single regime that belong jointly to Russia and
Ukraine.

2. The Law of the Sea

12. As mentioned, Russia does not recognise the existence of an armed conflict
between Russia and Ukraine, due to its refusal to acknowledge its occupation of
Crimea. If Russia’s understanding of the situation were correct and the 25
November incident occurred during peacetime, the law of the sea would be
applicable, in particular the UN Convention on the Law of the Sea (‘UNCLOS’)
and the Kerch Strait Agreement (discussed above).

13. In order to explore the legal issues, this memorandum considers the Russian
argument, namely that the law of the sea was the applicable and prevailing legal
regime and it acted lawfully pursuant to that regime. As outlined below, this
argument does not appear to have merit. In particular, even adopting that
argument and considering the law of the sea, the Russian conduct appears in
violation of both UNCLOS and the Kerch Strait Agreement. In particular,
whether the incident occured in Russian, Ukrainian, joint or neutral waters, the
Russian conduct appears unjustifiable on the facts. This advice considers below
three different scenarios: first, if the Ukrainian vessels were in Russian territorial
waters; second, if they were in Ukrainian territorial waters or joint shared waters;
and third, if they were in neutral waters. In each scenario, it appears that the
Russian conduct cannot be explained as legitimate actions to prevent violations
of the law of the sea or as lawful self-defence.

14
Draft Law No. 0051 on Denunciation of the Agreement between Ukraine and the Russian
Federation on Cooperation in the Use of the Azov Sea and the Kerch Strait of 16 July 2015.
15
Ministry of Foreign Affairs of Ukraine, Statement of Ukraine's Foreign Ministry on the Filing of its
Responses to Russia’s Jurisdictional Objections in the Ongoing Arbitration Concerning Coastal State
Rights in the Black Sea, Sea of Azov, and Kerch Strait, 30 November 2018.
Russian Territorial Waters
14. As mentioned, Russia claims that Ukrainian vessels illegally entered Russian
territorial waters off the Crimean coast, did not request permission to pass
through the Kerch Strait and were seeking to break through the Kerch Strait to
the Azov Sea.16 Consequently, Russia claims that its conduct was merely a
response to a provocation by the Ukrainian vessels. Russia has argued that its
forces only acted subsequent to the Ukrainian violation of Articles 19 and 21 of
UNCLOS.17

15. Pursuant to the law of the sea, if Ukraine was operating in Russian territorial
waters in the Kerch Strait or Azov sea at the time, the vessels were entitled to
“innocent passage’ (as defined by Article 17 of UNCLOS), or free movement
(according to the Kerch Strait Agreement). Article 17 of UNCLOS provides the
general principle that “[s]ubject to this Convention, ships of all States, whether
coastal or land-locked, enjoy the right of innocent passage through the territorial
sea”. Similarly, according to Article 2(1) of the Kerch Strait Agreement, based on
the need to “preserve the Azov-Kerch water area as a holistic economic and
natural complex used in the interests of Ukraine and Russia”, they were entitled
to free movement through the Kerch Strait and into the Azov Sea.

16. The right to ‘innocent passage’, as contained in UNCLOS, effectively means that
Ukraine was entitled to ‘continuous and expeditious’ 18 passage that ‘is not
prejudicial to the peace, good order or security of the coastal state, i.e., Russia. 19 It
is the general rule that the coastal state should ‘not hamper the innocent passage
of foreign ships through the territorial sea except in accordance with
[UNCLOS]’.20 In other words, the Russia was only entitled to stop (or act to
prevent the movement of) the vessels in limited circumstances. These
circumstances are defined by the express terms of UNCLOS (in particular,
Articles 18 and 19) and/or the implied terms of the Kerch Strait Agreement. In

16
FSB reports of border crossing of Russia by three ships of the Navy of Ukraine, Interfax, 25
November 2018.
17
Sputnik News, Live Updates: Kerch Strait Incident ‘Very Dangerous Provocation’ – Kremlin, 26
November 2018; see also, United Nations Convention on the Law of the Sea, 1833 UNTS 3, adopted 10
December 1982, entered into force 16 November 1994.
18
UNCLOS, Article 18(2).
19
UNCLOS, Article 19(1).
20
UNCLOS, Article 24(1).
sum, Russia would be entitled to act to prevent such activity, but only if Ukraine
was engaged in the type of conduct that could reasonably be defined as described
above and below.

17. In particular, Article 19 of UNCLOS determines that the following acts inter alia
may be considered prejudicial to the peace, good order or security of the coastal
state: any threat or use of force against the sovereignty, territorial integrity or
political independence of the coastal State, or in any other manner in violation of
the principles of international law embodied in the Charter of the United
Nations; any exercise or practice with weapons of any kind; any act aimed at
collecting information to the prejudice of the defence or security of the coastal
State; the launching, landing or taking on board of any military device; any act of
propaganda aimed at affecting the defence or security of the coastal State; and
any other activity not having a direct bearing on passage.

18. Further, in accordance with Article 21 of UNCLOS, Russia is entitled to adopt


“laws and regulations, in conformity with the provisions of this Convention and
other rules of international law, relating to innocent passage through the
territorial sea”, including in respect to the safety of navigation and the regulation
of maritime traffic. Russia has imposed pilotage requirements in the Kerch Strait
pursuant to this principle, and has stated that during the 25 November incident,
the Ukrainian vessels failed to heed orders to stop as they were not allowed to
transit the strait without a Russian pilot.21 It should nevertheless be noted that
Russian laws and regulations, including the pilotage regulations, must be in
conformity with the provisions of UNCLOS and other rules of international law
(see Article 21(2) of UNCLOS), particularly Russia may not invoke the provisions
of its internal law as justification for its failure to perform a treaty (Vienna
Convention on the Law of Treaties, Article 27). Thus, if Russia’s pilotage
regulations, or indeed its 2017 law claiming exclusive rights to use the sea around
Crimea22, were designed to prohibit the innocent passage of Ukrainian vessels
through the Kerch Strait in violation of UNCLOS or the Kerch Strait Agreement,

21
J Kraska, The Kerch Straight Incident: Law of the Sea or Law of Naval Warfare, EJIL Talk, 3
December 2018.
22
Putin signed a law to include the waters around Crimea to the Russian water zone, Izvestiya, 1 July
2017.
then Russia could not rely upon these internal regulations or laws to justify its
conduct.

19. If in fact the Russian regulations were in conformity with UNCLOS, Ukraine was
under an obligation to “comply with all such laws and regulations and all
generally accepted regulations relating to the prevention of collisions at sea”. 23
Further, as outlined in Article 25 of UNCLOS, the coastal state, i.e., Russia, may
‘take the necessary steps in its territorial sea to prevent the passage which is not
innocent’. As such, had Ukraine violated any (valid) laws and regulations put in
place by Russia to ensure innocent passage (i.e. to implement UNCLOS), Russia
would have been entitled to take ‘necessary steps’ to prevent the passage,
including suspension of passage.

20. However, this would raise the question of whether Russia took ‘necessary steps’
or whether its actions were unduly disproportionate to prevent the passage of
Ukrainian vessels in violation of Articles 19 and 21 of UNCLOS. Article 25 of
UNCLOS does not define ‘necessary steps’, but provides that the coastal State
may, ‘without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its territorial sea the innocent passage of foreign
ships if such suspension is essential for the protection of its security, including
weapons exercises’ (Article 25(3)). Academics have postulated that, any
suspension “should be an indispensable measure, and not just one convenient
option” for the protection of the coastal state’s security.24 Further, the suspension
shall take effect only after having been duly made public in advance, for instance,
through the public media available to those using the waters.25

21. Regardless of whether Russia acted to prevent violations of the right of innocent
passage or related (valid) laws and regulations, it is highly unlikely that the
extent of Russia’s conduct, which involved ramming a vessel, shooting at the
gunships, and detaining members of the crew (in circumstances where it appears
that Ukrainian vessels were passive and/or compliant) would be considered a
‘necessary step’ in conformity with UNCLOS. As such, even if Ukraine was in

23
UNCLOS, Article 21(4).
24
H. Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and
Territorial Sea, (Springer, 2006), pp. 220-222.
25
Ibid. See also, UNCLOS, Article 25(3).
prima facie violation of ‘innocent passage’, Russia would be considered to have
acted in violation of Ukraine’s right of free passage in accordance with UNCLOS.

22. It cannot in these circumstances amount to valid action pursuant to UNCLOS.


However, Russia has a right to self-defence under Article 51 of the Charter of the
United Nations, which provides for the “inherent right of individual or collective
self defence” of any state in the face of an armed attack. As is plain, the right to
self-defence does not require a state passively to await an attack but allows it to
use force in self-defence against an ‘imminent’ armed attack. However, the right
of self defence is not an open-ended right. Indeed, to be a valid act under
international customary law, as set down by the classic formulation by the
United States in the 1837 Caroline incident, the act of self defence must conform
with three essential elements - necessity, proportionality and imminence.26 In
other words, Russia may have been entitled to use force against the Ukrainian
vessels if it could prove that the use of force was necessary due to an imminent
threat posed by the Ukrainian vessels and that the use of force was proportionate
to the threat. There is no evidence to suggest the Ukrainian vessels posed any
threat to Russia.

23. In sum, as may be seen from the available evidence, any claim that Russia acted
to prevent violations of UNCLOS or in self-defence appear implausible at best.
The video of the Russian vessels ramming into the small Ukrainian boat and the
audio intercept of Russian navy discussing the attack on the Ukrainian tugboat
do not appear to indicate that Russian conduct could be justified as a necessary
step to prevent a Ukrainian violation of its right to innocent passage or as self-
defence in relation to any imminent threat (or any threat at all). As for any claim
of self-defence, Russia’s actions do not appear neither necessary nor
proportionate.27

24. Most importantly, Russia has not framed its defence in this way. Russia merely
states that the Ukrainian vessels were attempting to “to secretly enter the neutral

26
Oxford Public International Law, The Caroline Incident—1837, From The Use of Force in
International Law: A Case-Based Approach.
27
Ukraine says Russia opened fire on its naval vessels, seized them, CNN, 26 November 2018;
General Staff publicised audio intercept of Russia’s seizure of the Ukrainian ships, LB.ua, 26
November 2018.
waters without any pilots and notifications and break under the Crimean Bridge
through the Kerch Strait to Azov.”28 Even if this is an accurate description of the
Ukraine’s intent, at the very worst, it appears that upon reaching the Kerch Strait
near the Kerch bridge, the Ukrainian vessels failed to wait for the Russian express
permission to pass and failed to follow the agreed upon procedure for passage
through the Kerch Strait. This may amount to an apparent violation of the
piloting requirement law (assuming it is a valid, implementing measure), but this
alone cannot amount to a plausible claim of self defence under Article 51 of the
Charter of the United Nations.

25. As discussed below at paragraph 30 - 33, in relation to any claim of self-defence,


the more reasonable view is that Russia’s conduct was a continuation of its acts
of aggression.

Ukrainian Territorial Waters/Joint Shared Waters


26. As a matter of law, if Ukraine’s vessels were in Ukrainian or shared waters (as
per the Kerch Strait Agreement), then they were entitled to move without
obstruction.

27. Moreover, if Ukraine’s vessels were in Ukrainian or shared waters, as oulined


above, Russia was most likely to in violation of its own obligations to operate
“innocent passage” in Ukrainian territorial sea according to Article 19(2) of
UNCLOS.

Neutral Waters
28. On the 28th November 2018, Ukraine’s Ministry of Occupied Territories
suggested that the Ukrainian vessels were in neutral waters (i.e., the high seas) at
the time of the incident.29 Neutral waters are defined as including all parts of the
sea outside of the exclusive economic zone, the territorial sea or the internal
waters of a State, or the archipelagic waters of an archipelagic State. 30 According

28
European countries heard Russia’s stance on Kerch Strait incident - Lavrov, TASS, 2 December
2018.
29
Ministry of the Temporarily Occupied Territories and Internally Displaced Persons of Ukraine,
Russia disregarded the immunity of Ukrainian military vessels in the high seas (map), 28 November
2018.
30
United Nations Convention on the Law of the Sea, Article 86.
to Article 87 of UNCLOS, these seas are open to all States, whether coastal or
land-locked which means that every state has the freedom of navigation,
overflight, fishing and scientific research, as well as the freedom to lay submarine
cables and pipelines and to construct artificial islands and other installations
permitted under international law.

29. Irrespective, UNCLOS appears to provide a state with a range of rights and
responsibilities e.g., pursuant to Article 105, 108, and 109, to take action to seize
ships and otherwise work to supress serious crime (e.g. piracy, drug trafficking,
etc) on neutral waters. However, Russia has not alleged that it acted to prohibit
or prevent any of these acts being committed by the Ukrainian vessels or
personnel, neither is there any evidence or suggestion that the Ukrainian vessels
were involved in such.

UN Charter and the Acts of Aggression


30. As discussed above, the locations of the Ukrainian vessels – whether in Ukrainian
waters (including Crimean waters); in joint/shared waters; in neutral waters or in
Russian territorial waters – would appear to make little or no difference to
whether the Russian acts amounted to legitimate actions to prevent violations of
the law of the sea or to lawful self-defence. Absent any conduct threatening
Russia or amounting to serious crime (per Article 105, 108 and 109 of UNCLOS),
the Russian State was not entitled to stop Ukrainian vessels from using the
waters, let alone mount an armed attack on them.

31. According to the peacetime legal regime, absent any of the above conditions
being met, Russia’s conduct may instead have amounted to an act of aggression.
The act of aggression, as provided by Article 8bis of the Rome Statute, means the
use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner inconsistent with
the Charter of the United Nations. Most relevant for the present situation is the
attack by the the armed forces of a State on the land, sea or air forces, or marine
and air fleets of another State.31 Importantly, this prohibition extends to attacks

31
Rome Statute, Article 8bis.
on fleets even where they are stationed in, or are in transit through, a third
State.32

32. Moreover, the Rome Statute does not set a limit on the level of damage, or the
size of the force or fleet that must be subject to attack. There appears to be no
reason to suppose that attacks on a handful of vessels and their crew would not
be capable of being considered as acts of aggression. In this context, the
judgement of the International Court of Justice in the Oil Platforms case is
relevant. The Court considered, inter alia, whether the mining of a single vessel
amounted to an ‘armed attack’. Due to the lack of evidence, the Court was unable
to come to a firm conclusion but did not ‘exclude the possibility that the mining
of a single military vessel might be sufficient to bring into play the inherent right
of self-defence’.33

33. All things being equal, if jurisdiction existed at the ICC (which is highly
unlikely), the attack was of such as nature as to amount to prima facie evidence of
an act of aggression as defined by the Rome Statute.34 However, the possibility
for establishing internationally that Russia has engaged in the crime of aggression
is extremely limited. These prospects have not been assessed in detail in this
memorandum. However, given the narrow jurisdiction at the most relevant
international court, the ICC, this is a most unlikely prospect.

3. Application of the Law of Naval Warfare

34. As seen from the above discussion, had the incident occurred in peacetime, it
would have been unlikely that Russia could claim it acted reasonably pursuant to
UNCLOS and further that its acts may have amounted to an act of aggression in
violation of the UN Charter. However, it is the view of this author that the law of
the sea does not in fact apply to the current situation. Indeed, due to the situation
of armed conflict between Russia and Ukraine, the law of a naval warfare, a
specific branch of the laws of armed conflict, replaces mutatis mutandis the
peacetime rules of the international law of the sea.

32
Case Matrix Network, Commentary to the Rome Statute, Article 8bis(2)(d).
33
International Court of Justice, Oil Platforms (Islamic Republic of Iran v. United States of America),
Judgement, 6 November 2003, para. 72.
34
Rome Statute of the International Criminal Court (‘Rome Statute’), 2187 UNTS 3, adopted 17 July
1998, entered into force 1 July 2002.
35. The crime of aggression is relevant to the jus ad bellum, i.e., the conditions under
which States may resort to war or the use of armed force. Russia and Ukraine are
currently engaged in an international armed conflict emanating from Russia’s
acts of aggression in 2014. The fact that this incident occurred in wartime means
that the initial attack was likely compliant with the applicable jus in bello (e.g. the
targets were military, the principles of precaution, proportionality and necessity
were respected). However, thereafter, as discussed below, Russia’s actions in
detaining and prosecuting the crew are likely to have violated the applicable
rules of international humanitarian law (‘IHL’).

36. Russia is currently temporarily occupying the Crimean Peninsula. The existence
of an occupation invokes the application of the law of armed conflict. As is plain
from a reading of Article 2 common to the Four Geneva Conventions, IHL
applies to situations of occupation, such as that prevail in Crimea: “The
Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation meets with no
armed resistance.” This does not depend upon a party to the conflict announcing
that they are at war or conversely denying that they are at war. Providing the
factual situation evidences an occupation (as defined by the ICRC), then IHL
applies irrespective.35

37. During an international armed conflict, IHL and the associated rules of the law of
naval warfare are applicable. Pursuant to this system, instead of the UNCLOS,
international humanitarian law applies, in particular customary IHL, the Hague
Conventions and the Geneva Conventions, as well as the San Remo Manual on
International Law Applicable to Armed Conflict at Sea (San Remo Manual).

38. In broad terms, IHL does not seek to criminalise war, but merely regulates its
operation. Accordingly, the very fact of an attack on the Ukrainian vessels and
personnel, even though several Ukrainian crew members (three to six according
to different sources) were wounded and 24 crew members were captured, does
not constitute a violation of IHL. The applicable rules of IHL permit the targeting

35
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, 75 UNTS 31, adopted 12 August 1949, entered into force 21 October 1950, Article 2.
of military objectives as long as the targeting is discriminate, proportionate and
precautions in the attack are taken.

39. Military objectives are limited to those which by their nature, location, purpose
or use make an effective contribution to military action, and whose partial or
total destruction, capture or neutralisation, in the circumstances ruling at the
time, offers a definite military advantage.36 Article 47 of the San Remo Manual
exempt a number of vessels from attack, including inter alia hospital ships, small
craft used for coastal rescue operations and other medical transports and vessels
engaged in humanitarian missions. Ukrainian vessels that belong to the Navy of
Ukraine and the crew that are marines performing their military service fall
under the definition of military objectives. There is no evidence, nor has it been
argued by Ukraine, that the Ukrainian vessels fall within any of the applicable
exceptions.

40. Further, Russia’s conduct appears to have been a proportionate use of force
against a legitimate target. The principle of proportionality in attack means that
launching an attack which may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military
advantage anticipated, is prohibited.37 The attack on the Ukrainian vessels
reportedly did not injure any civilians and did not cause any damage to civilian
objects.

41. Finally, it appears that the attack was discriminate, i.e. only military objectives
were targeted and Russia complied with the imperative IHL demand to take all
feasible precautions to avoid, and in any event to minimise, incidental loss of
civilian life, injury to civilians and damage to civilian objects.38

42. However, before further discussing the applicable provisions of international


humanitarian law, it is worth briefly expanding upon Russia’s unlawful war of

36
Additional Protocol (I) to the Geneva Conventions relating to the Protection of Victims of
International Armed Conflicts, 1125 UNTS 3, adopted 8 June 1977, entered into force 7 December
1978, Article 52(2).
37
Customary IHL Rule 14.
38
Customary IHL Rules 11 and 15.
aggression against Ukraine occurring since 2014. The (il)legality of the attack on
Ukraine’s vessels on 25 November does not affect the legal implications of
Russia’s invasion of Crimea in 2014.

43. Indeed, Russia’s conduct can be seen as part of an ongoing violation of Ukraine’s
territorial integrity. Russia has occupied Crimea (along with its territorial sea)
since 2014. The European Parliament’s ‘Resolution of 25 October 2015 on the
situation in the Sea of Azov’, having regard, inter alia, to the UNCLOS, the UN
Charter, the Kerch Strait Agreement, condemned Russia for a range of acts
designed to interfere with Ukraine’s sovereignty.39 These included, the building
of the Kerch bridge, the abusive searching and blocking of Ukrainian ships that
infringed Ukrainian navigational rights, and the deployment of new military
capabilities into the region that together have allowed the Sea of Azov to
“become a new maritime dimension of belligerent Russian actions against
Ukraine”.40

44. As such, in summary, notwithstanding arguments that Russian conduct in


Crimea constitutes a continuing violation of the jus ad bellum and amounts to a
continuing act of aggression, the 25 November incident would not, in itself,
amount to a violation of the jus in bello. Instead, the applicable provisions of IHL
and the law of armed conflict that offer protection to the Ukrainian crew
members after their detention should be considered. These are discussed below.

Prisoner of war status and relating safeguards

Non-prosecution

45. As discussed, Russia’s occupation of Crimea means that there exists an


international armed conflict between Russia and Ukraine. Accordingly, Russia
should grant the status of prisoners of war to the 24 Ukrainian crew members
and treat them accordingly since they are members of the armed forces of a party
to the conflict who have fallen into the power of the enemy as defined in Article 4
of the Geneva Convention III.

39
European Parliament resolution of 25 October 2018 on the situation in the Sea of Azov, Doc. No.
2018/2870(RSP).
40
Ibid., para. 2.
46. Whether such status has been granted is unclear. What is clear is that Russia
charged the Ukrainian crew members with the crime of illegally crossing the state
border (that carried a maximum sentence of imprisonment of six years). 41 On the
face of it, this violates Article 85 of Geneva Convention III. In the Commentary,
the ICRC states that prisoners of war may be criminally prosecuted only for acts
connected with the state of war that are crimes against peace, war crimes and
crimes against humanity.42 They may not be prosecuted for acts not connected
with the state of war, unless domestic penal legislation of the Detaining Power
provides for the punishment of offences committed outside the national frontiers
and such offences are punishable under the laws of both the Detaining Power
and the Power of origin.43

47. Russia claims that it attacked the Ukrainian vessels because they crossed into
Russian territory. Any claim that this was not connected to the occupation of
Crimea seems devoid of merit and commonsense. In light of the overall
militarisation of the Azov Sea and the manner in which Russia, Ukraine and the
EU regard its strategic importance (as partly summed up by the the European
Parliament resolution of 25 October 2018 on the situation in the Sea of Azov (see
paragraph 42 above)), such a claim seems implausible at best. Therefore, the
Ukrainian crew members may only be prosecuted solely for war crimes, crimes
against humanity or crimes against peace. However, there is absolutely no basis
for any reasonable suspicion that any of these crimes were committed by the
Ukrainian personnel.

48. In conclusion, there appears little doubt that Russia’s current prosecutions are in
violation of Article 85 of Geneva Convention III.

Rights to a Fair Trial


49. Geneva Convention III stipulates that prisoners of war shall retain, even if
convicted, the benefits of the Convention. These rights include: due process

41
24 captured Ukrainian marines will be tried in Crimea tomorrow, Human Rights Information
Centre, 26 November 2018.
42
International Committee of the Red Cross, Commentary to the Geneva Convention (III) relative to
the Treatment of Prisoners of War, (1960), p. 419.
43
Ibid., p. 418.
guarantees, namely fair trial guarantees;44 the rights of the defence;45 the rights to
an appeal;46 and rights relating to punishment.47 Some of these guarantees may
have already been violated e.g., the prisoners were not allowed to choose their
own defence counsel who would attend the court hearing in Kerch.48 Further,
Ukrainian NGOs allege that Russian law enforcement extracted confessions from
three of the captured crew.49

Release of prisoners of war

50. Article 118 of the Geneva Convention III obliges states-parties to the conflict to
release and repatriate prisoners of war without delay after the cessation of active
hostilities. The ICRC explains that release and repatriation must take place
simultaneously and rapidly.50 Prisoners of war may be repatriated against their
will, provided such repatriation takes place after and not during the hostilities.51

51. Article 119 provides an important exception to the obligation to release and
repatriate at the end of hostilities. Prisoners of war against whom criminal
proceedings for an indictable offence are pending may be detained until the end
of such proceedings, and, if necessary, until the completion of the punishment.
The same shall apply to prisoners of war already convicted for an indictable
offence. In the present circumstances, this is of no relevance. As discussed, the
criminal proceedings that have been initiated thus far are unlawful and cannot be
the basis for extended incarceration.

44
Geneva Convention III, Articles 96, 103, 104, and 105; Geneva Convention IV, Articles 71(2) and 74;
Additional Protocol I, Articles 75(4)(a), 75(4)(d), 75(4)(e), 75(4)(f), and 75(4)(i).
45
Geneva Convention III, Article 96; Geneva Convention IV, Article 72; Additional Protocol I, Article
75(4)(a).
46
Geneva Convention III, Article 106; Geneva Convention IV, Article 73; Additional Protocol I, Article
75(4)(j).
47
Geneva Convention III, Articles 86 and 87; Geneva Convention IV, Articles 33, 67(1), and 117;
Additional Protocol I, Articles 75(2)(d) and 75(4)(h).
48
The court hearing in trial of the Ukrainian marines took place in the Kerch hospital, defence
counsels were not allowed - “Novaya Gazeta”, Hromadske, 28 November 2018.
49
Appeal by the Civil Society Organizations regarding an arbitrary blockade of Ukraine’s access to
the Sea of Azov by the Russian Federation and the capture of 23 Ukrainian servicemen, 26 November
2018.
50
International Committee of the Red Cross, Commentary to the Geneva Convention (III) relative to
the Treatment of Prisoners of War, (1960), p. 546.
51
Ibid., p. 542.
IV. CONCLUSION
52. As noted, many of the facts are only slowly emerging and, as such, final
conclusions are not possible at this time. Nonetheless, a preliminary assessment
of the facts leads to the conclusion that Russia’s conduct is part of the ongoing
aggression against the territorial integrity of Ukraine in violation of the Charter
of the United Nations since 2014.

53. In particular, Russia is an occupying power in the Crimean peninsula and, as


such, there is an international armed conflict in existence. The existence of such a
conflict means that the proportionate attack on a legitimate military target (as it
appears the attack on the Ukrainian vessels was) is not in violation of the
applicable rules of IHL or the law of naval warfare.

54. Furthermore, If UNCLOS were to apply, it is unlikely that Russia’s conduct could
be justified pursuant to Ukrainian violation of its right to ‘innocent passage’ in its
territorial sea. Instead, whether the incident occurred in Ukrainian, Russian, joint
or neutral territorial sea, Russia appears to have violated its own obligations to
allow innocent passage pursuant to UNCLOS and those obligations of use of the
waters pursuant to the Kerch Strait agreement. Moreover, given the violent
nature of the violation and its apparent intent, such conduct may be viewed as an
attack on the armed forces of a State on the sea amounting to an act of aggression
in violation of the UN Charter.

55. Instead, the provisions of IHL and the law of naval warfare apply. Provisions
applicable to such situations place certain obligations on Russia with regard to
the Ukrainian crew members. In particular, the detention of the Ukrainian crew
as civilian captives (not prisoners of war) and their current prosecution for for
acts not connected with the state of war appears to violate Article 85 of Geneva
Convention III. At the moment, the remaining treatment of the detainees,
including the nature and scope of the trial proceedings, is unclear. However,
there are indications that the process lacks sufficient due process guarantees and
may well foreshadow further violations of Geneva Convention III.
Wayne Jordash QC, Global Rights Compliance Foundation
5th December 2018