Russia-Ukraine War

New Heights of Russian Hypocrisy and “Unlawfare” in the Black Sea

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By Dr. Ian Ralby and Col. Leonid Zaliubovsky

Despite Russia continuing to bomb civilians and target hospitals amid an aggressive war that is itself illegal, the Russian Federal Security Service (FSB) has taken the time to issue a press statement complaining about Ukrainian mines in the Black Sea. Specifically, the FSB claims that the Ukrainian Navy has violated international law because a storm broke loose some of the submarine mines used to protect Ukrainian ports from the Russian invasion. Interestingly, Russia is claiming that Ukraine has contravened the provisions of the 1907 Hague Convention (VIII) on submarine mining, yet neither Russia nor Ukraine is actually a party to that Convention.

Beyond the obvious efforts at controlling the narrative, this latest statement indicates that, even while waging a brutal kinetic war, Russia is continuing its longstanding campaign of what has been termed “lawfare” – using law or legal processes to accomplish what would otherwise be military ends. In Russia’s case, however, this sort of legal bullying on the grounds of baseless legal claims and “fake law” is perhaps better termed “unlawfare.” Only by highlighting absurd legal postures by Russia and applying sound legal analysis can this nefarious tactic be effectively countered. Russia cannot be allowed to use spurious legal justifications to undermine and degrade the rule of law.

Submarine Mines

In 1898, Russian Tsar Nicholas II proposed a multinational conference to codify the laws and customs of war, initiating a process that started in the Hague and continued decades later in Geneva. The resulting conventions are the main laws that govern the conduct of states in armed conflict.

The First Hague Conference, which intentionally began on the Tsar’s birthday, was held in 1899 and resulted in three conventions and three declarations. Inspired by that success, United States President Theodore Roosevelt proposed a second Hague Conference in 1904, but it ended up having to be delayed until 1907 because of the Russo-Japanese War. The Second Hague Conference actually produced 13 conventions and a declaration. Among them, Hague VIII set forth the laws relating to the “Laying of Automatic Submarine Contact Mines.” Significantly, the Russian Empire, which initiated the whole process and for which the Second Conference was delayed, adopted 10 of the 13 Hague Conventions of 1907, but intentionally did not sign and ratify Hague VIII. After the fall of the Russian Empire, the Soviet Union reconfirmed its ratification of those 10, but again did not sign or ratify Hague VIII. After the fall of the Soviet Union, the Russian Federation reconfirmed its ratification of those 10, but yet again did not sign or ratify Hague VIII. At the same time, independent Ukraine also reconfirmed ratification of those same 10 conventions, but also did not sign or ratify Hague VIII. It is thus fascinating that, with all this history, Russia is now alleging a violation of a law that was rejected by both the USSR and the Russian Empire, and using that as a tactic amid a military campaign bent on restoring President Vladimir Putin’s glorified notion of Soviet and Russian Imperial greatness.

The incongruity of Russia’s argument notwithstanding, it is worth evaluating the substance of the claims as if the Hague VIII Convention did apply, as many legal scholars would suggest that both Hague VIII and the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea are articulations of the applicable laws and customs of war to which all states are bound. According to the FSB, the Ukrainians placed old Soviet-era mines, made in the first half of the 20th century, in areas around key port cities. Since Ukraine notified Russia of the laying of these mines and none of them are either in neutral waters or blocking ships in neutral waters from accessing international waters, there is no inherent legal problem with this portion of the claim.

The FSB further claims that because of a storm, the lines holding some of the mines to their anchors broke, leaving the mines to float. Beyond prohibitions against floating mines – with limited exceptions – the San Remo Manual does clarify that “the parties to the conflict shall not lay mines unless effective neutralization occurs when they have become detached or control over them is otherwise lost.” Russia is claiming that these detached mines are now floating, not neutralized, and therefore pose a direct threat to the safety of shipping – the main concern expressed in Hague VIII.

Before examining the credibility of the Russian factual claim – a necessity with any public statement from the FSB – applying the law to the Russian allegation shows some key weaknesses. The main problem with this argument for Russia is that the only maritime activity in the area is either Russian warships or merchant vessels supporting the Russian war effort, both of which are legitimate military targets. With one key exception, commercial shipping in the area has effectively ceased because of the conflict. There has to be actual harm or threat of harm that would violate the law for there to be a real legal issue in the current context. At the moment, the main danger of the mines is to ships that the Ukrainians could lawfully target. So at best – assuming that the facts are as stated by the FSB and assuming that Hague VIII is applicable – the Russian legal claim is heavily mitigated by both the cessation of commercial shipping and Russia’s lack of standing to assert a violation.

While it is true that almost all commercial traffic has ceased, there are nevertheless roughly 100 foreign commercial vessels in Ukraine currently trapped by the conflict. Russia’s blockade has made it impossible for them to leave and safety concerns have made the situation particularly challenging for shipowners. Interestingly, Russia, after making the claim about the danger of floating mines, has begun to transmit on VHF channel 16 – the international distress frequency – that they can “guarantee” safe passage to the merchant vessels trapped in Ukraine. This offer of benevolent assistance is in direct contradiction to the expression of concern. In other words – either the claim about the floating mines is false, or the “guarantee” of safe passage is false; they cannot both be true.

Furthermore, Russia’s legal claim is based on “facts” which it has unilaterally asserted and which cannot be verified by the Ukrainian Navy. Given Russia’s obvious lack of concern for civilian life as well as its long history of false narratives grounded in fake stories and disinformation, it would not be unreasonable to question whether the present claim may also be a Russian fiction. Indeed, the credibility of the “facts” as stated by the FSB is actually undermined by the concern raised in their press statement that the mines may drift all the way across the Black Sea, through the Bosporus and Dardanelles Straits and into the Mediterranean Sea where they could harm commercial shipping there. In trying to mimic concern for human life and shipping, the FSB raised alarm about an eventuality that is factually almost impossible. As such, either the entirety of the Russian claim should be disregarded until there is evidence that there are actually loose mines or Russia should welcome a NATO Mine Countermeasures Group to neutralize the threat about which the FSB is so concerned. Only with actual facts, rather than Russian assertions, can the legality of the claim can be accurately assessed.

Inconclusive at best, the legal claims of Russia do stand out as a fairly obvious form of bullying. The aim is to disrupt Ukrainian thinking, sow seeds of doubt, tarnish Ukraine’s image, and put Ukraine on the legal defensive, even in the face of a wide array of egregious legal violations by Russia. Accusations of illegality are a common tactic by criminals seeking to avoid attention for their on illicit conduct. When Major General Charlie Dunlap of the U.S. Air Force coined the term “lawfare,” he only partly envisioned this form of legal argument to achieve what would otherwise be military objectives. While it is possible to actually use the law to obtain military advantage, Russia so often resorts to fake law that its approach really is better described as “unlawfare.” For example, in Crimea, Russia has long been claiming the legal rights afforded to an occupying power (including the suspension of innocent passage) while also claiming the mutually exclusive rights of a sovereign coastal state.

The HMS Defender incident on June 23, 2021 was partly born of this legal prevarication. The British warship Defender – whose position had previously been spoofed to indicate it was at the mouth of the naval base in Sevastopol when in fact it was in port in Odessa – was transiting Crimea toward the eastern Black Sea when Russia used both surface vessels and aircraft to confront it and order it to leave. Such a demand is incompatible with the law of innocent passage and thus inconsistent with Russia’s assertion that Crimea is actually Russian territory.

So this claim about mines that have broken lose in a storm being a violation of a Convention to which neither of the belligerent states is a party needs to be viewed against the wider backdrop of Russian illegal activity. It is important to remember that Russia has been violating international law continuously since the 24th of February with an aggressive war in contravention of article 2(4) of the United Nations Charter. Furthermore, in the Black Sea and Sea of Azov, Russia has proceeded to violate various laws throughout many of its naval actions. Even just looking at the most high-profile naval incidents shines a light on the extent to which Russia can only be considered a hypocrite when accusing other states of legal violations.

Russian Hypocrisy: Violations of the Law

Since the invasion on February 24, only a few maritime incidents have garnered significant external attention. The inspiring resolve of the Ukrainian Border Guard forces facing down a Russian warship on Snake Island was probably the most visible, and the loss of a Ukrainian warship that previously served as a U.S. Coast Guard Cutter far less so. A closer look at each incident would reveal a Russian proclivity for bending, breaking, and bastardizing the law. While the catalogue of Russian legal violations is long and growing, it is interesting that just focusing on these two highly publicized incidents shows just how hypocritical Russia’s claims about the submarine mines are.

Snake Island

In the Snake Island incident, the Russians not only took the Ukrainian Border Guard as prisoners of war, but also captured the crew of a civilian search and rescue (SAR) vessel and are also holding them as prisoners of war. The Border Guard, which falls under the command of the Ukrainian Navy in wartime, are, per se, combatants under international humanitarian law and the law of armed conflict. The situation with the SAR vessel, however, is legally problematic for the Russians. Under article 27 of the Second Geneva Convention, SAR vessels are afforded the same protections as hospital ships, as set out in article 22 of that Convention. While article 22 requires a 10-day notification to the belligerent party (i.e. from Ukraine to Russia) about the use of a ship as either a hospital ship or in this case a SAR vessel, the incident occurred fewer than 10 days into the conflict. Given however that the vessel was used as a SAR vessel prior to the outbreak of the conflict and is actually labeled as a “SAR” vessel, the Russians would be deemed to be on notice. Furthermore, article 18 of the Convention requires belligerents to “without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.” Taking the civilian SAR crew as prisoners of war, therefore, is a violation of the law – a part of the story that has not garnered much attention, but that shines a light on Russia’s seeming disregard for civilian protections at sea almost as much as its disregard for civilian life on land.

The Demise of the Sloviansk

The sinking of the Sloviansk – formerly the USCGC Cushing – by an air-to-surface missile on March 3 occurred amid what the Russians were calling an “anti-terrorism” campaign in the territorial sea around Ukraine. While the Russian Duma has passed legislation authorizing Russian forces to conduct such operations abroad – outside of Russian territory – there is limited legal right under international law for Russia to conduct such operations. In peacetime, it would be a very difficult legal case to show ample evidence that attacking a foreign warship in a foreign sovereign state was a justifiable exercise of self-defense from terrorism. But Russia is already engaged in an international armed conflict in Ukraine, meaning that the lex specialis of the law of armed conflict applies. Russia did not need to use a justification of “anti-terrorism” to target a Ukrainian warship – it is an acceptable military target in a military campaign. Yet it is the narrative that was used to justify the operation that sank a Ukrainian naval vessel at a time when Russia is making little effort to explain the unlawful targeting of civilians.

Again, Russia is using mutually exclusive legal arguments, and trying to control the narrative as well as the battlespace. This blending of naval warfare with a baseless strategic communications campaign shows that, to Russia, this conflict is as much or even more about the story as it is about reality.

Russia’s Latest Illicit Naval Activity

Interestingly, beyond these two incidents and many others that have not received external attention, the Russian Navy is engaging in a wide range of activities at sea with dubious legality. Perhaps the most striking is that, as of March 13th, the Russian Navy has begun to paint out the hull numbers and names of its warships and remove the vessels’ flags, leaving no markings of nationality.

Image provided by the Ukraine Navy showing a Russian Warship – a Ropucha Class Landing Ship – underway with its hull number painted out. (Ukrainian Navy photo)
Image provided by the Ukraine Navy showing a Russian Warship – a Buyan Class Corvette – underway with its hull number painted out. (Ukrainian Navy photo)
Photos from State Border Guard Service of Ukraine, released March 21, 2022, showing Russian warships with hull numbers painted over. (State Border Guard Service of Ukraine photo)

The grey hull is an indication that the vessel is a warship, but the potential delay in confirming the identity of the ship could provide Russia with an advantage. The Russian Navy may be seeking to avoid Ukrainian firepower by trying to get the Navy to hesitate in firing upon an unmarked ship. Furthermore, if the Ukrainian Navy were to sink one of these nameless, numberless, flagless warships, the Russian Navy could deny that it had lost a ship, and without an investigation, no one would be able to conclusively say which ship had actually been sunk. Given Russia’s proclivity for fiction, it could also assert that the Ukrainians had violated international law by sinking a civilian vessel, as it could not be conclusively identified as a warship.

This muddies the waters of the conflict, and intentionally creates confusion. It is raises questions about a number of laws, including the provisions relevant to a warship under the United Nations Convention on the Law of the Sea (article 29) and the principle of distinction, referenced in article 2 of the Hague Convention (VII) on Conversion of Merchant Ships of 1907, to which both Russia and Ukraine are parties. The specific identification of a warship by flag and hull marking is ingrained in the law of armed conflict, at least in so far as concerns the launch of an attack by a warship.  This tactic by Russia of both painting over the hull numbers and vessel names of any vessel class with multiple ships and removing the flags on the vessels, is likely beyond what is permissible as camouflage or a “ruse” under international law. The launch of an attack while flying a false flag is expressly outlawed, so Russia may be trying to skirt the law with a “no flag operation.” But that still calls into question whether Russian ships without a flag could lawfully commit any belligerent act.  It may also be an attempt to tee up a “tu quoque” defense as was used during the Second World War to excuse German Admiral Karl Doenitz from the charge of waging a campaign of unrestricted submarine warfare, as American Admiral Chester Nimitz had waged one as well. Russia may want to argue that an attack on one of its unmarked grey hulls excuses its own failure to follow the principle of distinction, thereby negating any Ukrainian claims that Russia has unlawfully targeted civilians.*

Conclusion 

As President Putin proceeds in his quest to restore his idea of the Russian Imperium, it is important to continually evaluate Russian claims and highlight their flaws so as not to fall victim to any of the false narratives on which this campaign is predicated. For the FSB to use dubious “facts” to claim that Ukraine has violated a law that the Russian Empire, Soviet Union, Russian Federation, and Ukraine have all rejected is an indication that Russia does not expect anyone to actually check the veracity of its assertion. But a constant reality check shows that, objectively, Russia is an outlaw state, engaged in both continual and episodic violations of the laws and customs of war, and should not be allowed to gain any advantage when resorting to “unlawfare.” As much as Russia’s assault on Ukraine must be countered, so too must its assault on the rule of law. 

Dr. Ian Ralby is a maritime lawyer and CEO of I.R. Consilium, a family firm with leading expertise in maritime and resource security.

Col. Leonid Zaliubovsky is the Head of the Legal Branch of the Ukrainian Navy Command.

*Further clarification was added after publication on the topic of masked hull numbers and their legality.

Featured Image: Russian Navy ships in 2021. (Russian Government photo)

Culture

Lying to Ourselves, Part Two

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This monograph was originally published by the Army War College under the title Lying To Ourselves: Dishonesty in the Army Profession and is republished with permission. Read it in its original form here. It deserves to be noted that the described themes and dynamics are not solely limited to the specific military service being examined.

Read Part One here.

By Dr. Leonard Wong and Dr. Stephen J. Gerras

Downrange

One might expect that ethical boundaries are more plainly delineated in a combat environment—the stakes are higher, and the mission is more clearly focused. Discussions with officers, however, revealed that many of the same issues in the garrison environment also emerge in combat. For example, a senior officer described how the combat mission can lead to putting the right “spin” on reports: “We got so focused on getting bodies to combat that we overlooked a lot of issues like weight control, alcohol, or PT.” Not surprisingly, directed training is also often sidestepped in theater. One captain spoke of trying to complete mandatory Sexual Assault Prevention and Response Program (SHARP) training:

“We needed to get SHARP training done and reported to higher headquarters, so we called the platoons and told them to gather the boys around the radio and we said, ‘Don’t touch girls.’ That was our quarterly SHARP training.”

But stretching the truth downrange often extends beyond compliance with mandatory training. A major described how Green 2 sensitive item reports were submitted early every morning. Despite the usual 100 percent accountability, however, it was obvious that it could not have been conducted to standard since nobody ever knocked on their doors to check weapon serial numbers. Another officer related how supply accountability in a combat zone could be manipulated by misrepresenting the truth:

“We found ways to beat the system. You show up in country and you get a layout and immediately what do you do? You do a shortage annex for everything. So that way the Army—with an infinite budget in country—would replenish your product [even though] the unit never really lost the equipment in the beginning.”

Discussions with senior officers revealed other examples of bending the truth. One colonel stated that, “The cost of investigating a lost widget isn’t worth the cost of the item; they write it off and later say it was lost to the Pakistanis.” Another colonel stated:

“We were required to inspect 150 polling sites in Iraq (which nobody could possibly ever do) and fill out an elaborate spreadsheet. The spreadsheet was to get validation for higher that you did what they told you to. We gave them what they wanted.”

One frequently provided example of deception at the senior level concerned readiness assessments of partner forces. It was not uncommon for readiness ratings to vary in conjunction with deployment cycles. In other words, the commander’s assessments were not based so much on the counterpart unit capabilities as they were on the American unit stage of deployment. As one colonel explained:

“I show up and [the readiness assessments] go yellow or green to red. I’m ready to leave – they go from yellow to green. We went through the reports with the CG every ninety days. Everyone wanted to believe what they wanted to believe.”

One widespread recurring requirement for junior leaders in Afghanistan and Iraq was the storyboard—a PowerPoint narrative describing unit events and occurrences. One senior officer pointed out, however, that:

“Every contact with the enemy required a storyboard. People did not report enemy contact because they knew the storyboard was useless and they didn’t want to go through the hassle.”

A captain gave his perspective and his eventual approach to providing incomplete and inaccurate storyboards to higher headquarters:

“I understand there is a higher reporting requirement of which I reported verbally, and I did a proper debrief—I wrote it down and then I sent it to them. [But now] I have to combine a bunch of pictures onto a PowerPoint slide. Now I’m doing this storyboard because there’s an IED, because a donkey fell off the mountain, because some dude’s dog came in and I had to shoot it on the COP and now this dude is mad. It became an absolute burden. So what ended up happening was [that] after about the first couple of months, you’re saving your storyboards, and as soon as you had an incident that [was] somewhat similar to what you already had, it became a cut and paste gig. And the quality of the information that you are giving them wasn’t painting the picture for higher as to what was going on. And you can say, “Yes, Lieutenant, you should have done better.” You’re absolutely right. But when I only had 4 hours between this mission and the next, what’s better – spending 15 minutes to make this beautiful storyboard or planning my next operation?”

The attitude of “I don’t need to tell anyone what happened” was also found in other areas where it was perceived that the reporting requirements were too onerous. For example, one officer discussed his unit’s failure to ask permission to respond to indirect fire (IDF):

“Counterfire became a big issue in terms of [the] ability to counterfire when you were receiving IDF. Some companies in our battalion were returning fire without an accurate grid. They got shot at so they shot back. Of course, they were out in the middle of nowhere with a low chance of collateral damage. [But] people in our battalion knew, and just didn’t say anything. I’m not sure how high up people knew, but it was accepted. That was the norm. We’ll just not say anything about it.”

Another area that reflected the malleability of ethical standards was the distribution of cash through the Commander’s Emergency Response Program (CERP). As one senior officer noted, “CERP is not tracked in detail and everyone knows it.” Another colonel observed:

“CERP money is an area where we probably fudge. We gave company commanders a lot of money that we powered down to people who weren’t trained. We probably submitted reports that weren’t accurate.” 

Ethical Fading

At the outset of this monograph, it was brashly declared that most U.S. Army officers routinely lie. It would not be surprising if many uniformed readers raised a skeptical eyebrow at that claim. Indeed, it would not be unusual for nearly all military readers to maintain a self-identity that takes offense with notions of dishonesty or deception. Ironically, though, many of the same people who flinched at that initial accusation of deceit probably yawned with each new example of untruthfulness offered in the preceding pages. “White” lies and “innocent” mistruths have become so commonplace in the U.S. Army that there is often no ethical angst, no deep soul-searching, and no righteous outrage when examples of routine dishonesty are encountered. Mutually agreed deception exists in the Army because many decisions to lie, cheat, or steal are simply no longer viewed as ethical choices.

Behavioral ethics experts point out that people often fail to recognize the moral components of an ethical decision because of ethical fading. Ethical fading occurs when the “moral colors of an ethical decision fade into bleached hues that are void of moral implications.”13 Ethical fading allows us to convince ourselves that considerations of right or wrong are not applicable to decisions that in any other circumstances would be ethical dilemmas. This is not so much because we lack a moral foundation or adequate ethics training, but because psychological processes and influencing factors subtly neutralize the “ethics” from an ethical dilemma. Ethical fading allows Army officers to transform morally wrong behavior into socially acceptable conduct by dimming the glare and guilt of the ethical spotlight.

One factor that encourages ethical fading in the Army is the use of euphemisms and obscure phrases to disguise the ethical principles involved in decisions.14 Phrases such as checking the box and giving them what they want abound and focus attention on the Army’s annoying administrative demands rather than dwelling on the implications of dishonesty in official reports. Indeed, many officers even go as far as to insist that lying to the system can better be described as prioritizing, accepting prudent risk, or simply good leadership.

A more recent and significant development concerning ethical fading is the exponential growth in the number of occasions that an officer is obliged to confirm or verify compliance with requirements. When it comes to requirements for units and individuals, the Army resembles a compulsive hoarder. It is excessively permissive in allowing the creation of new requirements, but it is also amazingly reluctant to discard old demands. The result is a rapid accumulation of directives passed down, data calls sent out, and new requirements generated by the Army. Importantly, the Army relies on leaders to enforce compliance of the increasing amount of requirements and to certify the accuracy of the expanding number of reports sent upward.

The first time that officers sign an OER support form authenticating a counseling session that never happened or check a box saying, “I have read the above requirements” when they really only glanced at the 1,800-word IA acceptable use policy, they might feel a tinge of ethical concern. After repeated exposure to the burgeoning demands and the associated need to put their honor on the line, however, officers become ethically numb. Eventually, their signature and word become tools to maneuver through the Army bureaucracy rather than symbols of integrity and honesty.15 This desensitization dilutes the seriousness of an officer’s word and allows what should be an ethical decision to fade into just another way the Army does business. To make matters worse, technological advances and the cumulative effects of time have led to today’s officers facing a much larger amount of information to corroborate than their predecessors.

Ethical fading is also influenced by the psychological distance from an individual to the actual point of dishonesty or deception. Lying, cheating, and stealing become easier to choose when there are more steps between an officer and the dishonest act—the greater the distance, the greater the chance for ethical fading.16 Thus, most officers would be extremely uncomfortable telling their rater face-to-face that their unit completed ARFORGEN pre-deployment NBC training when they, in fact, did not. Those same officers, however, would probably be more comfortable conveying the same mistruth via a block checked on the ARFORGEN checklist. Likewise, a digital, instead of handwritten, signature on a sponsorship form attesting that an officer was briefed on the sponsorship program prior to PCSing—when they were not—broadens the separation between the officer and the dishonest act. Even the Army’s ubiquitous PowerPoint charts provide briefers the ability to focus on intricate color-coded metrics and thus distance themselves from the inaccurate or ambiguous information the metrics may be conveying.

The psychological distance between a person and the consequences of a dishonest act can also influence ethical fading. A moral decision can lose its ethical overtones if the eventual repercussions of such a choice are either unknown or minimized. For example, the explanation of an officer concerning inaccurate storyboards is illustrative of the common perception that much of the information submitted upward disappears into the ether of the Army bureaucracy:

“Where do the story boards go? They’re going to [a] magic storyboard heaven somewhere where there are billions of storyboards that are collected or logged somehow? After doing hundreds of storyboards, I honestly can’t tell you where any of them go. I send them to my battalion level element who does something with them who then sends them to some other element who eventually puts them on a screen in front of somebody who then prints them out and shreds them? I don’t know.”

Dismissing any potential damage that may result from a misleading or incomplete storyboard allows leaders to view the requirement as yet another petty bureaucratic obligation void of any ethical considerations.

Making Excuses

With ethical fading serving to bolster the self-deception that problematic moral decisions are ethics-neutral, any remaining ethical doubts can be overcome by justifications and rationalizations. While discussions with officers revealed a wide assortment of justifications for unethical behavior, one rationalization appears to underlie all other rationalizations— that dishonesty is often necessary because the directed task, the data requested, or the reporting requirement is unreasonable or “dumb.” When a demand is perceived as an irritation or annoyance, a person’s less than honest response almost becomes a compensatory act against the injustice.17 Officers convince themselves that instead of being unethical, they are really restoring a sense of balance and sanity to the Army. For example, one officer spoke of the distinction he made between useful and useless required reports:

“You can [ask] anybody in this room—the purpose of sending a SALTA or declaring a TIC, CASEVAC—not a MEDEVAC nine lines—we definitely know why we do that stuff and why we’re reporting. And people jump. They’re timely. They’re accurate. . .But some of this stuff is: You need this for why? Show me in the reports guide that we use or wherever [that] this is actually a required report. Because right now it seems like you’re just wasting a unit leader’s time.”

Another officer rationalized how ethical standards should be loosened for requirements perceived as unimportant:

“If it’s a green tab leader that’s asking me for information—the battalion commander, brigade commander, or something the division commander is going to see—then I would sit down and do it. That would be accurate reporting. If it was something that was going into a staff and wasn’t going to drive a critical decision the battalion made in terms of training or something I need to accomplish for a METL task . . . what goes up, goes up. Is it probably a little off? Yeah, there’s a margin of error.”

Finally, one officer, in euphemistic terms, summarized the Army’s tolerance for deception on seemingly meaningless requirements:

“I don’t think it’s that anyone expects you to lie. But I think there is an expectation of—I think the word is—equivocation…I don’t want to say it’s accepted, because that doesn’t sound good or it doesn’t sound right. But I think some expectation of equivocation is accepted on dumb things.”

Two other rationalizations are often used as justifications for dishonesty—mission accomplishment and supporting the troops. With these rationalizations, the use of deceit or submitting inaccurate information is viewed as an altruistic gesture carried out to benefit a unit or its soldiers. Officers reported that they sometimes needed to act as Robin Hood—going outside the ethical boundaries to assist others. As one officer nobly put it:

“I’m just going to “check this box” . . . and if I’m 70% accurate—that’s good enough to 1) keep my guys out of trouble and 2) keep my boss out of trouble so we can keep doing good things for the country.”

One captain recalled an instance where an IED injured a platoon leader and his replacement during a relief in place. The incident required an assessment of possible traumatic brain injury for both lieutenants. The captain explained:

“I falsified the [traumatic brain injury] report that changed a distance from the IED strike [to where] one person was standing. So that way someone didn’t come back down and stick a finger in my CO’s chest and say, “You need to evac that lieutenant right now!” Because in the middle of [a] RIP, that’s not going to happen. If I do that, I’m going to put my boys in bags because they don’t have any leadership. That ain’t happening. I owe the parents of this country more than that.”

Another officer rationalized how funds were deceptively obtained in theater on behalf of the troops:

“It’s odd that in situations that I’ve been in, it’s never been blatant self-interest. It’s never been, “I’m going to get this money so I can buy myself two couches for my office while I’m in Afghanistan.” [Instead], it’s always like—for us, it was hard as hell to get water heaters. For some reason we could not get hot showers for our soldiers. It wasn’t CERP money, but we had to finagle God-knows-how-many organizations to finally get these things and we had to say we’re using this for this, when in fact it was so our guys could have hot showers when they get back off patrol. The truth of the matter is that, at the level that we’re at, a lot of times we gotta get it done and we’re going to find a way to do it.”

Another officer accurately described how the rationalization process softens the sting of dishonesty:

“You feel more comfortable if it’s not for us—if it’s for what we think is the greater good. Like [lying about] all the 350-1 requirements prior to going on block leave. I want my soldiers to go on leave . . . It’s not for me. It’s for the greater good. [But] that doesn’t mean it’s right.”

Rationalizing allows officers to maintain their self-image as a person of integrity despite acts of dishonesty.

Read Part Three.

Leonard Wong is a research professor in the Strategic Studies Institute at the U.S. Army War College. He focuses on the human and organizational dimensions of the military. He is a retired Army officer whose career includes teaching leadership at West Point and serving as an analyst for the Chief of Staff of the Army. His research has led him to locations such as Afghanistan, Iraq, Kosovo, Bosnia, and Vietnam. He has testified before Congress. Dr. Wong’s work has been highlighted in news media such as The New York Times, The Wall Street Journal, The Washington Post, New Yorker, CNN, NPR, PBS, and 60 Minutes. Dr. Wong is a professional engineer and holds a B.S. from the U.S. Military Academy and an M.S. and Ph.D. from Texas Tech University.

Stephen J. Gerras is a Professor of Behavioral Sciences in the Department of Command, Leadership, and Management at the U.S. Army War College. He served in the Army for over 25 years, including commanding a light infantry company and a transportation battalion, teaching leadership at West Point, and serving as the Chief of Operations and Agreements for the Office of Defense Cooperation in Ankara, Turkey. Colonel (Ret.) Gerras holds a B.S. from the U.S. Military Academy and an M.S. and Ph.D. in industrial and organizational psychology from Penn State University.

Endnotes

13, Ann Tenbrunsel and David M. Messick, “Ethical fading: The Role of Self-Deception in Unethical Behavior,” Social Justice Research, Vol. 17, No. 2, June 2004, p. 224. Also see Max H. Bazerman and Ann E. Tenbrunsel, Blind Spots, Princeton, NJ: Princeton University Press, 2011, pp. 30-31.

14. Tenbrunsel and Messick refer to such phrases as language euphemisms, 226.

15. See Albert Bandura, “Selective Moral Disengagement in the Exercise of Moral Agency,” Journal of Moral Education, 31, No. 2, 2002, pp. 101-119, for how repeated exposure leads to moral disengagement.

16. Dan Ariely, The (Honest) Truth about Dishonesty, New York: HarperCollins, 2012, p. 59.

17. Ariely, pp. 177-178.

Featured Image: PHILIPPINE SEA (Sept. 24, 2020) Sailors from Naval Beach Unit 7 man a line alongside Sailors from the amphibious transport dock ship USS New Orleans (LPD 18) during an underway replenishment. (U.S. Navy photo by Mass Communication Specialist 2nd Class Kelby Sanders)

Podcast

Sea Control 330 – Ukraine and Naval Guerrilla Warfare with David Strachan

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By Jared Samuelson

Strikepod Systems’ David Strachan joins the program to discuss his blog post on Ukraine’s options for naval guerrilla warfare.

Sea Control 330 – Ukraine & Naval Guerrilla Warfare with David Strachan

Links

1. “UKR and Guerilla Naval Warfare,” by David Strachan, Strikepod Systems, March 15, 2022.
2. “Ukraine: Estonian cargo ship sinks in the Black Sea,” BBC, March 3, 2022.
3. “Navy: Saudi Frigate Attacked by Unmanned Bomb Boat, Likely Iranian,” by Sam LaGrone, USNI News, February 20, 2017.
4. “What We Know and Don’t Know About the Beirut Port Explosions,” by Austin Ramzy and Elian Peltier, The New York Times, August 5, 2020.
5. “Anatomy of a Drone Boat,” Conflict Armament Research, December 2017.

Jared Samuelson is Co-Host and Executive Producer of the Sea Control podcast. Contact him at Seacontrol@cimsec.org.

This episode was edited and produced by Joshua Groover.

Middle East

Data as an Approach to Yemen’s Maritime Security Challenges

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By Jeffrey Payne and William Thompson

According to a study by Stable Seas, illicit actors are exploiting instability in Yemen’s maritime environment exacerbated by the ongoing civil war. This breach in maritime security has been made more acute because of damage to the country’s infrastructure, including a substantial portion of the facilities supporting Yemen’s maritime industry. Naval installations and two professional military education (PME) institutions — the Naval Institute and Naval School — were damaged during the conflict. As a consequence of the civil war, Yemen faces limited maritime resources and institutional capacity to police its waters and counter the rise of maritime crime. While Yemen’s maritime challenges cannot be comprehensively addressed until the conflict is resolved, there are strategies that can help allocate resources toward mitigating security gaps. Data can provide a strategic framework for addressing Yemen’s maritime security challenges while also strengthening partnerships and improving maritime domain awareness in the wider Red Sea Region. Specifically, data is an instrument for addressing three security challenges: maritime enforcement, coastal welfare, and rule of law. 

Maritime Enforcement

Maritime enforcement can be made more effective by implementing a system of maritime monitoring. This system would collect and report data on what is happening within Yemen’s territorial waters, especially what types of threats are present and what trends exist. Maritime data reveals patterns that can help human operators recognize anomalies. A more comprehensive picture built from this data would also assist policymakers in mapping an adequate response. Yemen does not have the ability at present to dispatch vessels to monitor its waters at sufficient scale. Adaptation is necessary, and data can provide a path forward for generating new insights into maritime insecurity. It is true that before a data-driven approach is adopted, a system of data collection must be built. Although it would take time to implement such a system, a data-driven strategy is a clear pathway for long-term investment into the country’s security and development that is also feasible within the constraints of the larger political environment of the civil war.

Consider the example of arms trafficking. Type 56-1 rifles are a prominent weapon documented in Yemen and Somalia with strong evidence suggesting Iranian origins. These weapons are transported via dynamic maritime trafficking networks. To complicate matters further, the total travel time for a small vessel between Yemen and its coastal neighbors is only a few hours. This means law enforcement must respond quickly, which is only possible when supported by real-time monitoring. Moreover, collecting data and mapping the location of interdictions or other maritime incidents may help predict future smuggling patterns, which would empower law enforcement to be more precise in how they orchestrate patrols or plan interceptions. Yemen will not stop smuggling in its waters, but it can raise the stakes for criminal actors and increase the cost of their illegality.

The scale of information can also be increased when other actors agree to share maritime data, such as Combined Maritime Forces in Bahrain, regional states, and active non-regional states and actors. If Yemen presents a willingness to use data more routinely, then it may incentivize neighboring partners to participate in information-sharing. The relationship between data and cooperation is cyclic — as more data is collected and shared, states are better informed about possible security threats. A more informed response has a greater likelihood of success, which provides policymakers with more intelligence about illicit activities at sea, thereby encouraging more partnerships.

Coastal Welfare

Maritime domain awareness, enhanced through data collection and monitoring, can improve coastal welfare insecurity. Based on the definition provided by Stable Seas, coastal welfare encompasses the “physical and economic wellbeing” of coastal communities, including the health of local fisheries. Specifically, there exists a relationship between the fishing industry in poor coastal areas and criminality. An increase in piracy often follows an increase in unemployment among individuals employed by coastal industries. Extremist groups and pirates may recruit local fishermen for their navigation skills, and a struggling fishing industry may make local communities more susceptible to joining criminal organizations. Piracy and other forms of violent criminal conduct are correlated with illegal and unreported fishing, which not only damages local marine ecology, but threatens the livelihoods of coastal communities. Yemen’s coastal communities have been grossly impacted by the civil conflict, and the subsequent loss of income and labor stability equates to an environment where many turn toward illegal activities.

A free and easily accessible source of data to highlight in the case of coastal welfare is the visible infrared imaging radiometer suite (VIIRS). VIIRS data captures the location of maritime activity at night and can be a mechanism by which to better enhance maritime domain awareness. Such data may be collected to identify clusters of maritime activity and enhance management of fishing resources and suspected smuggling.

Rule of Law

Finally, a data-driven approach to maritime security has institutional implications that could bolster rule of law. Many of the advantages of data lay in the process by which it is analyzed and communicated to internal and external partners. Maritime professionals need to be trained in different aspects of data management, and teams of analysts need to be employed to evaluate policies based on empirical evidence. Various branches of Yemeni law enforcement will be able to communicate faster and more effectively, increasing Yemen’s institutional capacity to police its waters and develop new solutions to emerging threats. The costs of integrating a more data-driven approach are initially structural in nature, as it requires the retooling of the workforce. Financial costs, while a burden, are not insurmountable given the expansion of commercial firms, applications, and free data. With international assistance also becoming more common, such as through the U.S. SeaVision and EU IORIS systems, the financial burden becomes less prohibitive.  

Expanding information sharing could become the basis for intensified institutional cooperation in the region. Despite the challenges it faces, Yemen remains an active member of the maritime community in the Red Sea and Indian Ocean Region. Yemeni coast guard and port security officials routinely engage in training platforms and educational forums with their immediate neighbors, the European Union, and the United States, among others. Partner efforts should not only prioritize technical training for Yemeni maritime professionals, but also actively provide analysis premised upon their own maritime data.

Existing Technology

Data collection and processing applications already exist in the public realm, as do open-source datasets. Yemen does not need a cohort of technological experts to utilize these applications and deliver improved assessments. The applications that process data also assist in the analysis. Combined with active assistance from partners, Yemen could significantly improve its access to and analysis of a large amount of information. Platforms such as ArcGIS and QGIS are relatively easy to use and support various kinds of data mapping. Other platforms report data on the maritime domain, such as Global Fishing Watch, National Geospatial Intelligence Agency Anti-Shipping Activity Messages database, and Esri’s ArcGIS online repository of public data. These platforms often report maritime data as CSV, geoJSON, shapefiles, or other formats that can be imported into a mapping software and visualized. Outside of mapping software, other open-source software such as Python and R contain numerous packages for importing and mapping data.

Conclusion

Data has the potential to be a central pillar of maritime security in Yemen and maritime domain awareness in the wider Red Sea Region. The transnational nature of maritime security necessitates a cooperative enterprise where data is requested and shared among state actors. Regional pursuits for maritime domain awareness depend on lowering the barriers between state actors, which the collection and sharing of data will help stimulate. Because data can be easily shared, it is an asset in building a stronger maritime community through a collective understanding of challenges. Therefore, Yemen should intensify its use of maritime data and request assistance in doing so, while partner nations with greater capability should provide as much assistance as possible. This will build trust and provide a clear collaborative framework for securing the greater Red Sea Region.

Jeffrey Payne is a Professor at the Near East South Asia (NESA) Center for Strategic Studies in Washington, DC.

William Thompson is a graduate student at the University of Cincinnati. The views expressed in this article belong to the authors and do not represent the official policy or position of the NESA Center or the U.S. Government.  

Featured image: Yemen coast guard vessels patrol the waters near Mukalla, Yemen, on November 29, 2018 (Credit: AP Photo/Jon Gambrell)

Fostering the Discussion on Securing the Seas.