Lawyering Justice Blog
Efforts to negotiate peace in Sudan have been hampered by the entrenched positions of both parties, highlighting the challenges in establishing a meaningful ceasefire as a step towards stability. This blogpost seeks to provide an overview of the key elements required to reach a lasting ceasefire in Sudan.
Background and Relationship with Russia
The Wagner Group (“Wagner”) appeared in 2014 as a military force “for hire” that assisted Russia in the illegal annexation of Crimea. Since its inception, Wagner has also been hired by Syria and various African nations to provide a wide variety of services, including military training, combat operations, spreading of disinformation, and aiding in certain mining operations. Wagner has also been heavily involved in the full-scale invasion Russia has been conducting in Ukraine since February 2022. Wagner has been accused of committing several war crimes including rape, mass murder, torture, and looting. However, up until June 2023, connecting the Russian government to Wagner was challenging for the international community as the Russian government has historically denied any connection to Wagner. However, in June 2023 Nikolai Pankov (Russia’s Deputy Defense Minister) announced that “volunteer formations” would be asked to sign contracts with the Ministry of Defense, thereby publicly unraveling Russia’s involvement with Wagner and opening the door for the international community to connect Wagner to the Russian government. The announcement prompted Yevgeniy Prigozhin, Wagner’s leader at the time, to reply that Wagner would not sign contracts. On June 23, 2023, Prigozhin released a series of videos denouncing the Russian military and announcing that Wagner would “march for justice” against it. However, the “rebellion” only lasted 24 hours and despite Wagner’s successful advance towards Moscow. On June 24, 2023 Prigozhin ordered the Wagner fighters to retreat in order to “avoid bloodshed.”
Prigozhin is said to have halted the advance on Moscow after brokering a deal with President Vladimir Putin, which allowed Prigozhin to depart for Belarus. Putin told Wagner fighters that they could join the Russian army, or they could go to Belarus with Prigozhin. In stark contrast to earlier statements from Russian government officials, soon after the Wagner uprising, Putin made a statement saying that the Russian government had “…fully financed this group from the Defense Ministry, from the state budget.” According to public statements, from May 2022 to May 2023, the Russian government allocated 86.2 billion rubles ($1 billion USD) to Wagner in the form of salaries and incentives and an additional 80 billion rubles ($940 million USD) to the Concord company (allegedly Wagner’s owner) for supplying food and services to the Russian army. While it had been announced that Prigozhin would go to Belarus following the abandoned revolt, Prigozhin disappeared from the public eye after June 24, 2023. There were multiple media reports speculating about Prigozhin’s whereabouts until August 23, 2023, when it was announced that Prigozhin, along with nine other people including Prigozhin’s right-hand man Dmitry Utkin, had been killed in a private jet crash.
The events from June 2023 have opened the door for the international community to connect Wagner to the Russian government, which may help in holding Russia accountable for Wagner’s actions. For example, after Prigozhin publicly refused to sign the aforementioned contracts with the Ministry of Defense, his press office’s Telegram wrote on June 11, 2023, that Wagner was already “built into the overall system…[and] according to the orders of Gerasimov and Shoigu, complies all its actions and fulfills the tasks set out by Army General Surovikin.” This is a significant statement because, if Wagner is part of, or subsumed into, the Russian military, the result is that Russia is wholly responsible for Wagner’s actions and no further analysis is necessary.
Are Wagner Members Mercenaries and Is Russia Accountable?
While many articles colloquially describe Wagner as a mercenary group, Wagner’s legal status is up for debate and depends on a myriad of facts and circumstances. On the one hand, if Wagner is deemed to be part of Russia’s military and the Russian government can be considered to exercise control over the acts of Wagner, Russia could be held responsible for Wagner’s behavior just as Russia is responsible for the Russian armed forces’ actions. On the other hand, if Wagner is deemed to be a mercenary group under international law, it may be less likely that Russia would face any consequences for Wagner’s actions unless it could be established that Wagner is receiving orders from the Russian government.
Generally, in an international armed conflict, a mercenary is any person who meets the following six-part definition under Article 47 of the Additional Protocol I to the Geneva Conventions of 1949 (“Protocol I”). All six prongs must be satisfied for a person to meet the definition of a mercenary:
A mercenary “is specially recruited locally or abroad.” “Specially recruited” means that the group intentionally and specifically recruits individual members to participate in armed conflicts.
A mercenary “does, in fact, participate directly in the hostilities.”
A mercenary “is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party.”
A mercenary “is neither a national of a party to the conflict nor a resident of a territory controlled by a party to the conflict.”
A mercenary “is not a member of the armed forces of a party to the conflict.”
A mercenary “has not been sent by a State that is not a party to the conflict on official duty as a member of its armed forces.”
Whether Wagner is considered a mercenary group under the narrow definition under Protocol I, will depend on the conflict in question. For example, it is unlikely that a majority of Wagner members would qualify as mercenaries in Russia’s full-scale invasion of Ukraine, given that many members are reportedly Russian, which is a “party to the conflict” (and as a result fails the fourth prong above). In addition, if Wagner is already “built into the overall [military] system” and complying with “all its actions and fulfills the tasks set out by Army General Surovikin” then there is an argument to be made that they are in fact part of the Russian military (and as a result fails the fifth prong above). Outside of Ukraine, however, Wagner has operated in many different states and regions across the world, including in Syria, Libya, Mali, Sudan, and the Central African Republic. As Russia is not a “party to the conflict” in these regions—because it is not directly involved in the conflict there—Russian Wagner members could potentially be deemed mercenaries if they meet the other five prongs. Mercenary status would have to be determined on a case-by-case basis. Nonetheless, it is important to note that Russia withdrew its state party status from Protocol I in 2019 and the Protocol has not yet gained a customary law status
One convention that may be used to attribute some responsibility to Russia for a connection to Wagner as a mercenary group is the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, adopted by the United Nations General Assembly of 1989 (the “1989 Mercenary Convention”), which established criminal offenses for the recruitment, use, financing, and training of mercenaries and imposes a number of obligations on states.
Article 1 of the 1989 Mercenary Convention uses Protocol I’s definition of mercenary and further expands it to situations where a person:
Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at:
a. Overthrowing a government or otherwise undermining the constitutional order of a state; or
b. Undermining the territorial integrity of a state;
Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation;
Is neither a national nor a resident of the state against which such an act is directed;
Has not been sent by a state on official duty; and
Is not a member of the armed forces of the state on whose territory the act is undertaken.
Under Article 5 of the 1989 Mercenary Convention, states are prohibited from recruiting, financing, or training mercenaries, including for “…the purpose of opposing the legitimate exercise of the inalienable right of people’s to self-determination, as recognized by international law, and shall take, in conformity with international law, the appropriate measures to prevent the recruitment, use, financing or training of mercenaries for that purpose.”
While it could be argued that Wagner’s actions both in Russia’s full-scale invasion of Ukraine and in other international conflicts could meet the definitions of mercenary under Article 1 of the 1989 Mercenary Convention, Russia is not a signatory to the convention, and therefore it is not clear whether Russia could be deemed to have failed any state obligations under Article 5 of the 1989 Mercenary Convention (even with Putin’s admission that Russia financed Wagner).
There is very limited case law concerning mercenary activity in armed conflicts. In those limited cases where legal actions were taken, they involved individual members of a mercenary organization, not the organization itself, and much less the state connected to such a mercenary group.
Can Wagner’s Actions be Attributed to Russia under Other Principles of International Law?
To determine whether Wagner’s actions can be attributed to Russia under international law, a starting point is the Articles on the Responsibility for States for Internationally Wrongful Acts (the “ASR”). The ASR establishes criteria for determining whether states are legally responsible for certain wrongful acts, including the wrongful actions of groups such as Wagner.
The ASR provides that an act by a person that is not an “organ” of the state can be attributable to the state in one of four ways, two of which are relevant to the analysis of Russia’s responsibility for the actions of Wagner. First, ASR Article 5 finds attribution to a state when a person or entity that is not an organ of the state is “…empowered by the law of that State to exercise elements of the governmental authority…provided the person or entity is acting in that capacity in the particular instance.” Second, ASR Article 8 finds attribution to a state if, “[t]he conduct of a person or group of persons…is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”
The essence of ASR Article 5 is the privatization of a public function and covers a narrow set of circumstances. To attribute responsibility to a state, ASR Article 5 sets out three requirements: (i) the entity must be empowered by the internal law of the state; (ii) the entity must be authorized to exercise prerogatives of public authority; and (iii) the conduct has been committed when the person or group of persons acted in that capacity. If these requirements are satisfied, then the entity’s conduct “shall be considered an act of the State…even if it [i.e., the entity] exceeds its authority or contravenes instructions.” In other words, Russia need not have ordered Wagner to commit atrocities in order for those atrocities to be attributed to Russia. When weighing the requirements, the key question is whether, even if only to a limited extent or in a specific context, the entity has been empowered to exercise specified elements of governmental authority, even if that entity “has not been officially empowered by law to exercise elements of the governmental authority” (paras 92 – 93 (emphasis added)). For example, an entity may be empowered to act by domestic law even if its exercise of authority involves independent discretion or power to act or if the conduct was not in fact carried out under the control of the state (97 – 98).
Following the requirements outlined above, to determine whether Wagner’s actions could be attributed to Russia, one must establish that (i) Wagner has been empowered by Russian law; (ii) to exercise the military elements of the Russian government’s authority; and (iii) such conduct has been committed by Wagner in such capacity.
With respect to the first element regarding empowerment by Russian law, Russian law prohibits the “creation of an armed formation (association, detachment, squad or other group) not provided for by federal law, as well as the leadership of such a formation or its financing.”[1] Punishment for state officials committing such crimes is provided by Article 205.1 Section 2 of the Russian Criminal Code, which also classifies such financing under the heading of “terrorist activities.” Russian law does not specify whether the prohibition of the “creation of an armed formation” applies only to domestic armed formations or also to those operating outside Russia’s borders.[2] Should the prohibition only apply to armed formations inside Russia, as discussed later, this law may nevertheless be relevant because Wagner had trained in Russia.
Thus, Putin’s admission that, at least for a time, the Ministry of Defense funded Wagner gives rise to at least two questions: (i) was Wagner “provided for by federal law” (outside of the Defense Ministry’s funding); and (ii) if not, did Wagner’s total financial support by the Ministry of Defense suffice to make Wagner ”provided for by federal law”? The predicate to answering these questions is determining what it means to be “provided for by federal law.” It is of note that no known Russian law provides for the creation of Wagner. Nonetheless, if Wagner was in some way “provided for by federal law” as an “armed formation,” this would support the position that it was “empowered” by Russian law to exercise what would otherwise be a government prerogative. However, if Wagner was not “provided for by federal law,” then this would support an allegation that Russian officials at the Ministry of Defense financed armed activity in violation of Article 208 Section 1 of the Russian Criminal Code, which Russia itself implies is terroristic and which could, with additional detail, trigger Russia’s obligation to investigate under The International Convention for the Suppression of the Financing of Terrorism Article 9(1).
Alternatively, the existence of a contractual relationship between the state and the private entity may be enough to establish a sufficient link to show express authorization or ratification by the state.[3] Moreover, Putin’s admission that Russia provided the financing for Wagner could mean that there are contracts between Russia and Wagner, and such contracts could be analyzed to determine whether Wagner was empowered by Russian law. There is not enough information in the public domain to make this determination, and even if the contracts were publicly available, there is no clear standard under ASR Article 5 of what contractual language alone would be sufficient to find that a state had authorized or empowered a private entity. For example, it is unclear whether a contract that specifies a broad delegated function will suffice, or whether it must detail the precise activities that the non-state entity is authorized to carry out.
In terms of the second and third requirements, Russia’s call for Wagner to sign a contract with the Ministry of Defense and Putin’s confession of financing Wagner makes certain acts, such as participation in combat in Ukraine, appear to be of a governmental, rather than a private nature. Under ASR Article 7, states may be subject to liability via ASR Article 5 for ultra vires conduct, i.e., conduct that is either in excess or contravention of the authority delegated, so long as the ultra vires conduct was performed during the commission of the governmental function. Ultra vires is a Latin phrase, meaning “beyond the powers” and plainly means an action by a company or its agent (such as Wagner) that exceeds the legal scope of its authority. In the case of Russia’s full-scale invasion of Ukraine and other conflicts, ASR Article 5 may still be invoked even if Wagner’s behavior were ultra vires, i.e., beyond or inconsistent with any instructions given by Russia, provided that it was performing governmental functions during this alleged criminal behavior. This determination would be a fact-specific and fact-intensive inquiry, which would require evidence beyond what is currently in the public domain. This fact-specific determination could include conflicts outside Ukraine; however, it is not as likely to find attribution in such scenarios as it appears that Wagner was hired by some states for their own internal conflicts.
Under ASR Article 8, if fighters violating the Law of Armed Conflict were acting under a state’s instructions, direction, or control at the time of their actions, then a court may attribute such actions to the state. Under international law, “control” may be interpreted in one of two ways: the “effective control” test, which requires detailed or tactical control over the acts that violate international law, and the “overall control” test, which considers the broader relationship between the state and the non-state actor. For purposes of ASR Article 8, the International Court of Justice (“ICJ”) uses the “effective control” test, which is more stringent and would require “showing that Russia directed or enforced the perpetration of human rights violations and international crimes…” by Wagner. Given that there is little information on the command structure of Wagner’s military operations and Russia’s historical denial of a connection to Wagner, attributing Wagner’s actions to Russia under the “effective control” test would be challenging as it would require an operation-by-operation analysis and only those operations in which Russian forces commanded and led the assault would count. On its own, Putin’s admission of financing Wagner is insufficient to establish attribution under the “effective control” test.
On the other hand, some have argued that there is enough evidence to show that Wagner is under Russia’s “overall control” and there may be a push in the international community to use the “overall control” test instead of the “effective control” test. In fact, a Dutch court recently found that Russia had “overall control” of separatists in Ukraine during the downing of the civilian aircraft MH17, and in its conclusion the Dutch court pointed “… to the close connections between rebel leaders and the Russian intelligence service, the material and operational support Russia provided to the rebels, and evidence that Russia provided instructions to the rebels regarding their military operations. In addition, the court found that Russia and the rebel groups conducted ‘mutually coordinated military operations’.” While the ICJ will have the ultimate say on state responsibility, this recent Dutch ruling may open the door for the ICJ to consider using the “overall control” test instead of the more stringent “effective control” test if a case was ever brought against Russia. Until then, more information will be needed in order to attribute Wagner’s actions to Russia under the ASR.
Conclusion
While countries have publicly denounced Wagner and governments such as the United Kingdom have declared that Wagner has been a tool used by Russia to further its international agenda, more information is needed regarding Wagner’s command and control structure in order to be attributed to Russia or for Russia to be held accountable for Wagner’s actions. With respect to accountability via ASR, additional information is needed to make a determination as to whether Wagner acted under a sufficient degree of Russian control, as per Article 8, or – even without such control – was empowered by Russian law to act, as per Article 5. Nevertheless, Putin’s declaration that Wagner has been financed through the Russian budget and the statement by Prigozhin regarding Wagner’s compliance with the orders of Russian officials Gerasimov and Shoigu, indicates that Wagner’s actions could be attributed to Russia.
[1] Article 208 Section 1 of the Russian Criminal Code. Note that Article 359 Section 1 of the Russian Criminal Code prohibits the financing of mercenaries; though as discussed earlier, Wagner’s fighters are unlikely to be considered mercenaries in this context.
[2] Participation in such formations on foreign soil is prohibited by Sections 2-3 of Article 208; but only when such participation is against the interests of the Russian Federation.
[3] Kidane, W. (2010). The status of private military contractors under international humanitarian law. Denver Journal of International Law and Policy, 38(3), 411.; Kelemen, B. (2020). Responsibility for Human Rights Violations of Private Military and Security Companies on EU Borders: Case Study of the Contracts of the European Asylum Support Office. EU and Comparative Law Issues and Challenges Series, 4, 164-65.
Photo by Sonia Dauer on Unsplash
Since Russia’s full-scale invasion of Ukraine on February 24, 2022, Ukraine has contended with both material and manpower disadvantages. To counteract Russian asymmetrical naval superiority in the Black Sea, the Ukrainian military has developed unmanned maritime systems, which can inflict damage at a relatively low cost to Ukraine. Ukraine has effectively sunk or severely damaged numerous Russian warships and other strategic targets, including the Russian guided missile cruiser Moskva, the corvette Ivanovets (a Tarantul class missile ship), a Bykov class corvette, the landing ship Caesar Kunikov, a high-speed patrol boat, and the Kerch bridge, which links Crimea to Russia. In response, Russia has redeployed and dispersed the bulk of its Black Sea Fleet far from the Ukrainian coast and Crimea, allowing Ukraine to restart exports from its primary port of Odesa.
The use of unmanned maritime systems is a relatively new development and, as such, its legality under international law is subject to debate. This article examines the legal framework that regulates the use of unmanned maritime systems and, in particular, whether Ukraine’s usage of these systems is legal under the Law of Armed Conflict and International Law.
The unmanned maritime systems that Ukraine deploys fall into two categories: unmanned surface vehicles (“USVs”), of which the Magura V5 and the Sea Baby have been the primary two types identified; and unmanned undersea vehicles (“UUVs”), of which the Marichka and the Toloka are the primary two types identified. Ukraine operates its USVs by remote control via satellite, and are equipped with high definition night vision camera systems for navigation and targeting.They are each equipped with backup communications systems, allowing the person controlling the USV to remain in control even in the event of disruption. The USVs typically attack by navigating to the target and detonating the explosives on board. The Magura V5 is designed to strike warships at sea, whereas the larger Sea Baby is intended for stationary targets, such as ships at port and bridges. The Sea Baby has also been equipped to lay mines to target Russian naval ships navigating through the Black Sea. Individual USVs tend to do little damage, but multiple USV hits can sink a ship. The Economist estimates that Ukraine’s USVs have knocked out approximately ten Russian ships, while the Wall Street Journal speculates around two dozen Russian warships have been sunk or damaged.
Ukraine’s UUVs are relatively new and public information about them is limited. Reporting has indicated that they are both remote-controlled and are equipped with sophisticated cameras, sonar, and hydrophone for navigation. Initial reports suggest the UUVs will be used in demining operations, and most likely to also attack enemy ships when operationally feasible.
An analysis of USVs and UUVs can begin – but not end – with the question of whether these crafts qualify as “ships” or “vessels” (the terms are used interchangeably) under the United Nations Convention on the Law of the Sea (“UNCLOS”), and if so, whether they qualify as “warships.” Under UNCLOS and customary international law, vessels are entitled to certain navigational rights such as the right of transit passage through international straits. If a vessel is further classified as a warship, that permits the vessel to exercise “belligerent rights” during wartime. Belligerent rights would include attacking enemy ships, enforcing blockades, and controlling neutral vessels in the vicinity of naval operations.
UNCLOS—perhaps the most informative source of international maritime law and to which both Ukraine and Russia are signatories—does not explicitly define “ship,” but it does require that each country set the requirements for the registration of ships in its territory, and that any such ship carry the flag of the applicable country. Warships, on the other hand, are explicitly defined under UNCLOS as a ship that belongs to the armed forces of the applicable country, have external markings reflecting the applicable country, are commanded by a commissioned officer, and are manned by a crew subject to regular armed forces discipline. With respect to the definition of “warship” (and the “ship” definitions that also have this requirement), it is not settled whether being remote-controlled satisfies the “manned” requirement.
Based on publicly available information, Ukraine has not flagged the USVs or UUVs as “ships” or “warships,” nor has it attempted to exercise any navigational rights on their behalf beyond operations in the Black Sea region. In addition, Ukraine’s USVs and UUVs are not “manned” in the traditional sense under UNCLOS as there is no crew or commissioned officer on board to control the ship.Given these facts, it is unlikely that, under current interpretations of UNCLOS, Ukraine’s USVs and UUVs would qualify as a “warship.” Although USVs and UUVs likely do not constitute warships, that does not mean that they are precluded from attacking Russian military targets. To determine whether USVs and UUVs can be used as lawful means of warfare, the context in which they are employed is paramount.
The primary sources of law governing the usage of weapons systems as lawful “means of warfare” are the 1949 Geneva Conventions, a series of international treaties establishing the Law of Armed Conflict between the parties to the treaties (which include both Ukraine and Russia as states parties), and specifically, Additional Protocol I to the 1949 Geneva Conventions (“AP I”) with respect to the usage of means of warfare in an international armed conflict. Additionally, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (“San Remo Manual”) is a codification of customary international law governing naval warfare, and largely applies the principles of the Geneva Conventions to naval warfare. “Means of warfare” are weapons and weapons systems that are capable of conducting an “attack,” which is defined under Article 49 of AP I as an offensive or defensive act of violence against an adversary. Russia and Ukraine are involved in an active military conflict, and Ukraine is using USVs as weapons to target enemy ships and military infrastructure, which are classic examples of an “attack.”
Under AP I and the San Remo Manual, in order to justify the use of USVs and UUVs (or any weapon or weapons system, for that matter) a country’s military must do the following:
conduct legal review of new means of warfare prior to deployment;
distinguish between military and civilian targets (including accepting surrender of targets where the surrender is evident to the attacker);
be capable of assessing proportionality (i.e., weighing the military advantage of an attack on a particular target against the attack’s expected collateral damage to civilians or civilian objects);
take all feasible precautions to prevent damage to civilians (including canceling attacks if proportionality rule will be breached and provide effective advance warning if circumstances permit); and
have command accountability.
As a general matter, it is rare for a means of warfare to be considered illegal under international law per se. To be per se illegal, such a weapon would need to be incapable of complying with the requirements set forth above under any circumstances—a classic example of this would be a biological weapon, whose potential to spread uncontrollably renders it unable to distinguish between civilian and military targets. If a weapon is not per se illegal, its legality will depend on both the weapon’s characteristics as well as the particular circumstances of its usage.
Ukraine’s usage of USVs and UUVs to target Russian military vessels and infrastructure suggests that Ukraine has developed these systems to comply with the principles set forth under the Law of Armed Conflict, specifically AP I and the San Remo Manual. In particular:
As a party to AP I, Ukraine is responsible for reviewing USVs and UUVs for compliance with AP I prior to deployment. There is no publicly available information regarding these reviews—countries do not typically publish these reviews for strategic reasons, and Ukraine would be understandably unwilling to disclose detailed information about new weapons systems to its enemy during wartime. Nevertheless, the fact that Ukraine otherwise appears to be making efforts to comply with relevant international law with respect to USVs and UUVs as described in this article suggests Ukraine has most likely conducted the required legal review of these weapons systems.
Ukraine’s USVs and UUVs can distinguish between military and civilian targets because they are remote-controlled and equipped with sophisticated camera and navigation systems that allow their operators to identify military targets, and navigate them to avoid civilian vessels and infrastructure.
Ukraine’s USVs and UUVs are capable of fulfilling the proportionality requirement because their camera and navigation systems allow operators to get a complete picture of the target and surrounding area to identify the level of risk of collateral damage to civilians and civilian objects, as well as their relatively low payload reduces the risk of collateral damage. In addition, Ukraine’s USVs and UUVs have “redundant” communications systems that reduce the likelihood of remote control being disrupted, which allows the operator to maintain control of the system until the attack is completed and, if necessary, cancel the attack if circumstances change.
Ukraine’s USVs and UUVs also comply with the command requirement because they are under the control of human operators, and responsibility can be assigned to the operators and/or the operators’ commanding officers who ordered the attack.
As noted above, Ukraine’s UUVs are more difficult to assess because they are relatively new and less is known about them, including the extent to which they have been used in the Russian war. However, the same analysis of the legality of USVs would apply to UUVs – that they would be permissible weapons systems under international law provided that Ukraine complies with the principles of AP I and the San Remo Manual as described above.
Additionally, the 1907 Hague Convention VIII (“Hague VIII”) and the San Remo Manual impose additional restrictions on waterborne explosives (mines and torpedoes) that require them to sink or be disabled after a certain time so they become harmless and are not a permanent hazard to civilian vessels. An additional related question has arisen concerning whether USVs would be considered “torpedoes” under international law and thus be regulated under Hague VIII. Ukraine’s USVs and UUVs share characteristics with a torpedo in that they travel through water to attack enemy targets. Nonetheless, Hague VIII is more than one hundred years old and was intended to protect against unsophisticated, non-guided weapons systems, such as torpedoes and mines, so its applicability is questionable. And unlike the traditional torpedoes that Hague VIII intended to protect against, Ukraine’s USVs and UUVs have advanced remote control and satellite guidance, and can be steered to avoid civilian vessels and infrastructure. Moreover, their “redundant” communications systems reduce the risk of an operator losing control of the USV or UUV and therefore unlikely that a USV or UUV would become a permanent hazard. While the classification of Ukraine’s USVs and UUVs as torpedoes under Hague VIII as a matter of international law is questionable and unsettled, such a classification would provide an additional justification of their use under international law given that their usage, guidance systems, and control appear to comply with the conditions of permissible torpedoes under Hague VIII and the laws of warfare under the Geneva Conventions and San Remo Manual discussed above.
Based on what is known about the USVs and UUVs – the nature of the weapons systems, and more importantly how Ukraine has deployed them in the war thus far – their usage in the reported circumstances appears to be in compliance with international law and the Law of Armed Conflict.
Photo by Thomas Haas on Unsplash
Introduction
The Russian full-scale invasion of Ukraine in 2022 has consisted of an ongoing armed conflict on land as well as at sea.
In 2022, several merchant vessels in Ukrainian waters were attacked. These included the vessels “Yasa Jupiter,” “Namura Queen,” “Millennial Spirit,” “Lord Nelson,” and “Helt.” These vessels were all merchant ships, flying the flags of countries neutral to the conflict. Although the origin of the attacks remains unconfirmed, contemporaneous reporting indicated that the Russian military were responsible.
In July 2023, the Russian Defense Ministry announced that it would treat all vessels sailing to Ukrainian ports as military objectives, regardless of their flag or cargo. That same week, Russia also announced it would not renew an UN-backed deal allowing Ukraine to export grain through the Black Sea. Abandoning the deal, one of the few diplomatic “successes” since the start of the war, meant that grain can no longer be exported safely from three key Ukrainian ports (Chornomorsk, Odesa, and Yuzhny/Pivdennyi). Any vessel leaving or entering a Ukrainian port will be treated by Russia as a legitimate military target.
Historical Parallels
The targeting of civilian ships in the Russian-Ukrainian conflict is not without historical precedent. One notorious example is Germany’s U-boat campaign against merchant shipping during World War I. Initially, Germany followed so-called “prize rules,” which meant surfacing to search ships and allow civilians to escape. However, the Germans later adopted unrestricted warfare due to Britain’s effective use of “Q-ships” which were armed merchant ships with a military crew – essentially making them warships – in order to lure U-boats to the surface so that they could be attacked.
On February 4, 1915, Germany declared a war zone around Britain, sinking merchant ships without warning. This “unrestricted submarine warfare” angered neutral countries. The tactic was abandoned on September 1, 1915, after American lives were lost on the torpedoed liners “Lusitania” and “Arabic,” both flying the neutral American flag en route from New York to Liverpool. Germany attempted to justify the attacks by claiming that the vessels were carrying military materiel and munitions.
Under intense public and political pressure, Germany stopped unrestricted naval warfare in September 1915 but nevertheless reinstated it in February 1917. Between February and April 1917, German U-boats sank over 500 merchant ships, with an average of 13 ships sunk each day in the second half of April.
During the Iran-Iraq War in the 1980s, hundreds of commercial ships also faced attacks when both countries targeted each other’s oil tankers and cargo vessels in the Persian Gulf. These attacks included missile strikes, mine-laying, and naval battles, severely disrupting maritime trade and oil transport.
More recently, over 50 merchant ships have been attacked in the Red Sea since October 2023 by Houthi rebels operating out of Yemen. In March 2024, Houthi rebels sunk the Belize-flagged “Rubymar” as part of their operations to disrupt crucial shipping lanes in response to the Israeli-Palestinian conflict.
Role of International Humanitarian Law during Armed Conflicts
The legality of state conduct during armed conflict falls under International Humanitarian Law, also known as the Law of Armed Conflict. International Humanitarian Law is a branch of international law embodied in treaties and conventions, as well as the generally accepted practices of states known as “customary international law.” Modern International Humanitarian Law emerged in the mid-19th century when steps were first taken to codify the “laws and customs of war.” Further development occurred in the 20th century, principally via the four Geneva Conventions of 1949 and their two Additional Protocols of 1977. The 1977 Geneva Convention Additional Protocol I (“AP I”) is the treaty most relevant to the present discussion of Russian attacks on merchant vessels.
The Geneva Convention Additional Protocol I 1977
AP I codifies agreed and accepted limits on the ways in which wars may be fought with the objective of protecting civilians from the dangers of hostilities. Part IV of AP I (Articles 48-60) codifies rules aimed at ensuring that civilians and civilian objects are protected from the effects of hostilities. The key provisions of AP I apply to naval warfare as well as to conflict on land (ICRC, Naval Warfare). Article 49(3) delineates the scope of AP I to “apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land.”
Article 48 titled “Basic rule” outlines the key principle of “distinction”, namely the requirement that parties to any conflict “distinguish between the civilian population and combatants and between civilian objects and military objectives” and “direct their operations only against military objectives.”
Ukraine has been a party to AP I since 1989, when the Soviet Union ratified the Protocol. Russia, also a member since 1989, but withdrew from AP I in 2019. However, the Russian Foreign Ministry stated at the time that its withdrawal would “not affect Russia’s participation in Protocol I, which continues to remain valid.” Russia’s statement appears to acknowledge that AP I is part of customary international law.
When provisions of a treaty embody customary international law, they are binding obligations on states regardless of whether or not a state is a party to the treaty. Customary international law is cited in Article 38(1)(b) of the Statute of the International Court of Justice (the “ICJ”) which identifies “international custom, as evidence of a general practice accepted as law” as one of the sources of international law. Simply put, customary international law refers to international obligations arising from established state practices, as opposed to obligations that arise from treaties, such as AP I. The prevailing view is that an international custom will qualify as customary international law if it meets two requirements: a) it must be a consistent and general practice amongst states; and b) states must engage in the practice out of a sense of legal obligation. (Lotus Case, p. 18; Nicaragua Case, para. 207; Gulf of Maine Case, para. 46).
Russia’s acceptance is at the very least indicative that important parts of AP I represent customary international law – a view shared by the U.S. and other states that have not ratified Additional Protocol I. Accordingly, even though Russia is no longer a party to AP I, the key principles of International Humanitarian Law applicable to naval warfare and armed conflicts contained within it, including the obligations to protect civilians and civilian objects from attack, continue to apply to the Russian-Ukrainian war as customary international law.
Customary International Humanitarian Law
In addition to the principles of customary international law embodied in the AP I, there are other customs and practices of states which have come to be recognized as norms of Customary International Humanitarian Law which are relevant to a discussion of Russia’s targeting of merchant ships.
In 2005 the International Committee of the Red Cross (ICRC), which has been integral to the development of International Humanitarian Law since it was founded in 1863, published a comprehensive report on customary rules of International Humanitarian Law. The study draws upon international treaties, military manuals, state customs and practices, and other sources to identify 161 rules of Customary International Humanitarian Law. This post makes reference to the rules contained in the ICRC Customary IHL study which, although not legally binding, is considered an authoritative reference as to the applicable international law.
As reflected in Article 48 of the AP I, Customary International Humanitarian Law requires combatants to distinguish between civilian objects and military objectives. Parties to a conflict “must at all times distinguish between civilian objects and military objectives” and attacks “must not be directed against civilian objects” (ICRC, Customary IHL, Rule No. 7) In its Nuclear WeaponsAdvisory Opinion (paras. 78-79), the ICJ highlighted this principle of distinction as a “cardinal principle” of International Humanitarian Law and an “intransgressible principle of international customary law.”
Customary rules of international law define “military objectives” as objects that “by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” (ICRC, Customary IHL, Rule 8) Conversely, “civilian objects” are “all objects that [are] not military objectives” (ICRC, Customary IHL, Rule 9). Civilian objects “are protected against attack, unless and for such time as they are military objectives.” (ICRC, Customary IHL, Rule 10)
Civilians may be considered a legitimate military target only where they are “directly participating” in hostilities. The rules of Customary International Humanitarian Law as to what constitutes “direct participation” in this context is restated in the ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities. For a civilian act to qualify, it must meet the following, cumulative, criteria:
The civilian act must be likely to either: (i) adversely affect military operations or military capacity; or (ii) inflict death, injury, or destruction on protected persons or objects (threshold of harm); and
There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and
The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).
Applied together, the three requirements—threshold of harm, direct causation, and belligerent nexus—allow for an objective distinction to be made between civilian activities that qualify as direct participation in hostilities and those which, although occurring during an armed conflict, are not part of hostilities and therefore do not cause the civilians involved lose protection against direct attack.
A further authoritative source of Customary International Humanitarian Law relevant to any discussion of Russia’s targeting of merchant ships is The San Remo Manual of 1994, which restates international law applicable to armed conflicts at sea and provides a helpful, non-exhaustive, list of examples of conduct which could make merchant vessels, both enemy and neutral, legitimate military targets. The San Remo Manual arose following naval conflicts Falklands/Malvinas War (1982) and the Iran-Iraq War (1980-1988) to provide clarifications to the applicability of the International Humanitarian Law in naval warfare.
According to Article 60 of the San Remo Manual, the following activities may make enemy merchant vessels into military objectives:
engaging in belligerent acts on behalf of the enemy, e.g., laying mines, minesweeping, cutting undersea cables and pipelines, engaging in visit and search of neutral merchant vessels or attacking other merchant vessels;
acting as an auxiliary to an enemy’s armed forces, e.g., carrying troops or replenishing warships;
being incorporated into or assisting the enemy’s intelligence gathering system, e.g., engaging in reconnaissance, early warning, surveillance, or command, control and communications missions;
sailing under convoy of enemy warships or military aircraft;
refusing an order to stop or actively resisting visit, search or capture;
being armed to an extent that they could inflict damage to a warship; this excludes light individual weapons for the defense of personnel, e.g., against pirates, and purely deflective systems such as chaff ; or
otherwise making an effective contribution to military action, e.g., carrying military materials
Similarly, Article 67 of the San Remo Manual provides that merchant vessels flying the flag of neutral States may not be attacked unless they:
are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning, they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;
engage in belligerent acts on behalf of the enemy;
act as auxiliaries to the enemy’s armed forces;
are incorporated into or assist the enemy s intelligence system;
sail under convoy of enemy warships or military aircraft; or
otherwise make an effective contribution to the enemy’s military action, e.g., by carrying military materials, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.
Merchant vessels may lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities. That protection is reinstated as soon as participation in hostilities comes to an end (ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities).
Despite the extensive customary rules summaries above, in practice, direct participation in hostilities by civilians can lead to confusion and uncertainty in implementing the principle of distinction. To prevent erroneous or arbitrary targeting of civilians who are entitled to protection, customary rules of International Humanitarian Law require combatants to take all feasible precautions to determine if a person is a civilian and if they are directly participating in hostilities (ICRC, Customary IHL, Rules 15-22). In case of doubt, the person must be presumed to be protected against direct attack.
Individual Criminal Responsibility for Targeting Merchant Vessels
Those committing violations of the rules of International Humanitarian Law could potentially face criminal charges before the International Criminal Court (the “ICC”). However, the ICC’s jurisdiction is not unlimited. It can exercise jurisdiction over states that are parties to the ICC Statute or over states that have accepted specifically the Court’s jurisdiction in accordance with Article 12(3) of the ICC Statute, or where the United Nations Security Council has referred the situation to the Court. The Court will have jurisdiction in respect of war crimes committed on the territory of State Parties, or “if the crime was committed on board a vessel or aircraft” where the state of registration of that vessel or aircraft is a State Party or has accepted the Court’s jurisdiction.
Neither Russia nor Ukraine are parties to the ICC. However, Ukraine has accepted the ICC’s jurisdiction for war crimes committed on its territory since November 2013 in accordance with Article 12(3) of the ICC Statute, giving the ICC Court jurisdiction over any war crimes, crimes against humanity, or genocide committed in Ukraine. This acceptance has the effect of extending the ICC’s jurisdiction over any crimes committed with respect to merchant vessels flying the Ukrainian flag or the flag of any existing State Party to the ICC Statute. Any other state whose vessels may have been attacked by Russia can likewise confer jurisdiction on the ICC for these potential war crimes (if they are not already State Parties to the ICC Statute).
As for the status of the attacks, under Article 8(2)(b)(ii) of the ICC Statute, “[i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives” constitutes a war crime. Similarly, under Article 8(2)(b)(iv) of the ICC Statute “[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” qualifies as a war crime.
Given Russia’s declared intention to consider all vessels entering Ukrainian ports as potential military targets, there appears to be well founded basis for Russia’s attacks on merchant vessels being investigated as war crimes under Articles 8(2)(b)(ii) and 8(2)(b)(iv) of the ICC Statute. In the specific case of the “Millennial Spirit,” a chemical tanker, there was an additional risk of serious long-term environmental damage due to chemical leakage providing a potential alternate or additional basis for criminal liability under Article 8(2)(b)(iv) of the ICC Statute.
On March 5, 2024, ICC Pre-Trial Chamber II issued warrants of arrest for two individuals in the context of Russia’s aggression in Ukraine: Russian Armed Forces Lieutenant General Sergei Ivanovich Kobylash, who at the relevant time was the Commander of the Long-Range Aviation of the Aerospace Force, and Russian Navy Admiral Viktor Nikolayevich Sokolov, who at the relevant time was the Commander of the Black Sea Fleet. Based on the Prosecution’s applications of February 2, 2024, Pre-Trial Chamber II considered that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of directing attacks at civilian objects, the war crime of causing excessive incidental harm to civilians or damage to civilian objects, and the crime against humanity of inhumane acts. To date, the ICC Prosecutor has not sought arrest warrants for anyone involved in the attacks on merchant vessels in the Black Sea.
Legality of Attacks on Merchant Vessels under the United Nations Convention on the Law of the Sea
Attacks on merchant vessels may also violate the United Nations Convention on the Law of the Sea (the “UNCLOS”), to which both Russia and Ukraine are parties.
Pursuant to Article 29 of the UNCLOS, “’warship’ means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” Any vessel not described by the definition above is treated as a civilian vessel.
Article 17 of the UNCLOS grants ships from all states, whether coastal or landlocked, the right of innocent passage through the territorial seas of coastal states. Article 19 of the UNCLOS clarifies that “[p]assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” Article 25 of the UNCLOS allows a coastal state to “take the necessary steps in its territorial sea to prevent passage which is not innocent;” however, attacking merchant vessels that are in innocent passage is not justified. There is, unsurprisingly, no right at all for states to prevent passage of vessels in the territorial waters of other states.
Accordingly, within its own territorial waters (12 nautical miles from the coastal state’s baseline or low-water mark) interference by Russia with the passage of merchant vessels would be lawful only to prevent passage which was not innocent. Outside its territorial waters and within Ukrainian territorial waters any Russian interference at all with the passage of merchant vessels is likely to contravene Article 17.
Under Article 91(1) of the UNCLOS, “[s]hips have the nationality of the State whose flag they are entitled to fly.” Accordingly, flag states whose merchant vessels have been attacked by Russia may seek redress at the UNCLOS International Tribunal for the Law of the Sea, provided they are State Parties to UNCLOS, or the International Court of Justice (ICJ).
Conclusions on the Legality of Russia’s Attacks on Merchant Vessels under International Law
In light of the key rules of Customary International Humanitarian Law summarized above, there can be no doubt that in undertaking military activities, Russia is obliged to comply with the “intransgressible principle” of distinguishing between civilian objects and military objectives. Russia’s targeting of civilian merchant vessels in the Black Sea could only have been legal in circumstances where the targeted vessels met the cumulative requirements of direct participation in hostilities. In other words, each of the vessels would have become a legitimate military target only if it was engaged in activity designed to adversely affect Russian military operations or to damage protected persons or objects, and then only for the duration of such activity. If circumstances of direct participation were suspected to exist, customary international law obliges Russian commanders to take all feasible precautions to minimize the risk of error.
In the absence of appropriately verified circumstances of direct participation, the targeting of merchant vessels is a violation of International Humanitarian Law. The 2023 declaration by Russia that it would consider all vessels entering Ukrainian ports as potential military targets appears to stand, therefore, as a statement of intent to violate International Humanitarian Law and therefore commit war crimes.
Intentional direct attacks against civil objects, or intentional attacks in circumstances where it is known that the attack will cause excessive incidental loss of life or injury to civilians or damage to civilian objects can qualify as war crimes under the ICC Statute. Although neither Russia nor Ukraine are State Parties to the ICC Statute, the ICC will have jurisdiction over attacks on Ukrainian flagged vessels by reason of Ukraine’s specific acceptance of the Court’s jurisdiction. Any other state whose vessels may have been attached is likewise able to confer jurisdiction on the ICC to investigate and potentially prosecute the individuals responsible for the attacks.
Finally, any Russian interference with the passage of merchant vessels outside its own territorial waters is likely to contravene Article 17 of UNCLOS. Even within Russia’s Black Sea territorial waters, Russian interference with the passage of merchant vessels would only be permitted to prevent passage which is not innocent. Flag states whose merchant vessels have been attacked may seek redress under UNCLOS or at the ICJ.
Photo by Tim Mossholder on Unsplash
