Kerch Strait incident and its implications for regional security

Hanna Shelest, Foreign Policy Council “Ukrainian Prism”

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It would be easy to say that the whole situation in the Kerch Strait  was just an overreaction of the Russian coastal guard, if not details of the attack and consequences of events.

On Sunday, November 25, 2018, three Ukrainian naval vessels – artillery boats Berdyansk and Nikopol, and a tugboat Yani Kapu were on a routine passage from Odessa to Mariupol, to comply with the Decision of the National Security and Defence Council dated October 12, 2018. The decision was made due to the significant militarization of Crimea by the Russian Forces, regular stops and checks of the merchant ships going to/from Ukrainian ports in the Sea of Azov by the Russian coastal guard, and necessity to secure the Azov coast of Ukraine. The same passage was made just 2 months ago, at the end of September, when search and rescue vessel Donbass and a tugboat Korets were transferred to Mariupol.

The following actions of the Russian Federation are still to be explained.

Legal implications

It would be easy to say that the whole situation was just an overreaction of the Russian coastal guard, if not the details and consequences of the events.

According to the Treaty on the Sea of Azov and the Kerch Strait 2003, signed by the Russian Federation and Ukraine, both parties share the waters, which are considered joint waters of two states. This Treaty was signed with the pressure from the Russian side due to the unwillingness to sign a long negotiated agreement on delimitation of maritime border between two states. Therefore, Ukrainian naval and commercial ships need no permissions while passing the Kerch Strait or sailing in the Sea of Azov. Moreover, the Russian coast guard used clauses of this Treaty in summer 2018 while checking ships being just 8 miles from the Ukrainian coast.

Thus, to make a passage from Odessa to Mariupol through the Kerch Strait, the Ukrainian Navy  didn’t have to receive any permission. Nevertheless, considering the fact that the Kerch Strait and the Kerch Bridge are difficult hydrographical points, the Kerch port was notified about the passage, and readiness to accept a pilot on board was expressed. The morning reaction of the Russian Federation representatives ranged from no initial response to an order to pass to the exact point of waiting, followed by ramming and artificial blockade of the Kerch Strait to prevent Ukrainian ships from coming to the Ukrainian port in Azov. It is important to note that the information about so-called “grounding” of the tanker under the Kerch Bridge was not confirmed by the international navigation control system.

When the Ukrainian vessels received an order to return back to Odessa, and turned their course out of the Kerch Strait, within the neutral waters the attack happened, which is confirmed both by the coordinates provided by the Russian authorities and by the coordinates heard in a “May Day” announcement of the Ukrainian vessel.

The acts of the Russian military forces on November 25 are clear indications of aggression as stated in the UN GA Resolution 3314 (1974):  

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.

Though Russia can dispute over the first point “c” because blockade was organized by the commercial ships, the fact of attack is confirmed by the respective videos, radio interceptions and later statements of the Russian representatives.

The first attack happened in the morning with ramming against the Ukrainian  tugboat, which had not been provoked by any Ukrainian actions. The evening fire, use of naval ships, helicopters and jets demonstrate a full military operation against three small vessels. Even more, the photos of the artillery boat Berdyansk presented later have clear evidences that the task was to fire for effect, to target the crew, without any initial salvos or warning shots.

Even after violating the Law of the Sea, but recognizing state involvement in fire, the Russian Federation still had a chance to behave according to the international law. However, the choice was made to violate yet one more fundamental Convention – Geneva Convention (III) 1949, according to which Ukrainian sailors should be considered prisoners of war.

Art.2 clearly states that “In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. 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”.

Art. 4. “Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: 1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces”.

There can be no double interpretation: Ukrainian sailors, being on duty on the naval ship, were captured by the Navy of the hostile state, recognized as an aggressor state by Ukraine. Despite the fact the hostile forces were claiming to protect occupied territorial waters, Ukrainian sailors are prisoners of war and should be referred accordingly. However, Russia is trying to turn everything into a criminal case, that should not be allowed by the UN and other countries.

Reasoning for increasing the conflict temperature

Different reasons can be named why Russian security services overreacted to the Ukrainian vessels passage. The first one is the desire to control the Sea of Azov and destabilize work of the Ukrainian ports there.

The next reason is an attempt to legitimize by actions the “territorial waters annexation” around Crimean peninsula. If to follow the Russian official statements on why they chased and captured Ukrainian vessels, they name only one reason which is the invasion of the “territorial waters”.

Reason number three is the demonstration of its power to both Ukraine and international community, especially considering that it happened just before the G20 summit.

And surely, one should not forget about the general political context of the last months: Tomos granting to the Ukrainian Church, first reading of the Constitutional changes to fix the strategic course of Ukraine towards the EU and NATO and upcoming presidential elections in Ukraine. These created the background atmosphere of additional anti-Ukrainian sentiments.

Does martial law have a practical purpose on the ground in and around the Sea of Azov?

The decision to introduce martial law was difficult and controversial. It had been under the discussion since 2014, but it was both political fear and unwillingness to limit democratic rights that prevented taking such a decision. So, in November 2018, most of the journalists and experts both in Ukraine and abroad were asking why now. Therefore, martial law should be analyzed in two dimensions.

Reasoning of internal dimension is to consolidate Ukrainian society, mobilize security sector, and check their capacities. It is important in terms of readiness and awareness component. At the same time, it allowed to present political parties and their leaders’ attitudes towards national security and a conflict on the eve of the presidential and parliamentary campaigns.

The second dimension is international. Ukraine is sending a signal to its partners that it was not a regular situation, not yet one firing in a contact zone to which international observers are already used to. To receive maximum attention and support, Ukraine really needed to demonstrate the seriousness of the Azov incident not only by words but also by deeds. Such a decision could not only attract the attention of world leaders and media before the possible meeting of Trump and Putin in Argentina, but also manifest that the Ukrainian government is preparing to react to further provocations.

The introduction of additional sanctions is important. Aside from their direct effect, it is crucial to send a signal to the Russian Federation that every violation of the international law will be followed by punishment and consolidated position of the partners of Ukraine.

Considering how many maritime borders Russia has, and its control of Northern Sea Route, the lessons of the November incident should be learnt and proper political, diplomatic support to Ukraine and humanitarian support to sailors organized, so as not to let such activities of the Russian coast guard and naval forces business become usual.