Podcast

Sea Control 332 – Voices from the Shoreline with Mike Smylie

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By Jared Samuelson

Author Mike Smylie joins the podcast to discuss his book, Voices from the Shoreline, vanishing fisherfolk, and fishing techniques along Britain’s west coast. Mike is a maritime historian specializing in the fishing industry. He has written more than 20 books on the subject.

Download Sea Control 332 – Voices from the Shoreline with Mike Smylie

Links

1. Voices from the Shoreline: The Ancient and Ingenious Traditions of Coastal Fishing, by Mike Smylie, The History Press, November 1, 2021.
2. Kipperland.

Jared Samuelson is Co-Host and Executive Producer of the Sea Control podcast. Contact him at [email protected].

This episode was edited and produced by Alexia Bouallagui.

Capability Analysis

Send Skimmers to the Skirmish: A Case for a Wing-In-Ground Effect Attack Craft

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By Michael Knickerbocker

The People’s Liberation Army – Navy, PLA(N), has rapidly modernized and grown their fleet with advanced warships and weapons. China’s fleet expansion and widening air defense system reach threaten the United States’ power projection capability in the Indo-Pacific.1 At the same time, Russian expansion in the Black Sea region has further expanded and entrenched area denial and forward basing capabilities.2 With the reality of flattening, or shrinking budgets, it is imperative that the United States Navy leave no stone unturned in looking for disruptive technologies that continue to tilt the balance of power in their favor.

Modern warships can bring considerable firepower for a mobile platform, but, along with advanced air defense radars, also possess system limitations and watchstander challenges when targeting smaller, more agile, and low to the surface targets.3 A sea-skimming platform in the role of a maritime attack craft could exploit vulnerabilities in system automation, low elevation detection capability, watchstander training, and radar system set-up.4 A wing-in-ground maritime attack craft (WMAC) would present an opportunity to field a cost-effective, survivable asset that can punch above its weight and cost. Such a platform would assist the United States naval battlegroups in attriting adversarial surface platforms and shore-based area denial systems to pursue maritime superiority in a contested environment. The United States Navy should pursue the acquisition, experimenting with, and eventual conversion of commercially produced wing-in-ground craft to fill an anti-surface warfare role until purpose-built designs can be developed, tested, and fielded. 

Potential Mission Roles and Tactics

Wing-in-ground effect craft (WIG) rely on the interaction of physical forces with the water’s surface to allow them to operate only a few meters above the water’s surface, or within one wing’s distance although some WIG craft can operate inside and outside of ground effect.5 They are wind and sea state limited for take-off and landing, but sea state is not as much of a factor once operating in ground-effect.6 WIGs offer a platform that can maneuver close to the surface of the water, exploiting limitations in modern radar systems at speeds over 250 knots and with ranges up to 1000 nautical miles.7 8 They are fast, maneuverable, and could be up to five times as fuel-efficient as aircraft that do not operate in ground effect.9 These characteristics have already sparked the United States Department of Defense’s interest in applying the technology.

The Defense Advanced Research Projects Agency (DARPA) has already called for potential designs to explore WIG feasibility and application for the role of strategic sealift.10 There is extreme value in such platforms in a significant conflict in the Indo-Pacific from the aspect of heavy lift and logistical support in a contested environment. But, the Department of the Defense, specifically the Department of the Navy, need not limit the application of WIG platforms to only one role. WIG design potential as a low-cost, shorter production timeline, anti-surface warfare platform should not be ignored. The application of WIG designs should not be about choosing one platform to fill a distinct role. It should be about adopting and applying a disruptive technology that can benefit multiple mission areas. A WMAC would provide a battle group with the ability to mitigate the threat of forward-deployed adversarial surface combatants that are currently able to outrange the United States Navy’s offensive weapon systems. This is a role like previous iterations of missile patrol boats that were removed from inventory in the 1990s. These smaller missile patrol boats had limited sea denial ability due to their smaller size limiting them to calmer seas and closer to shore. Modern systems and the location of the potential fight require a platform that can be taken into contested areas to take the fight to the adversary.

Sea-skimming missiles have long exploited the limited radar horizon of surface ships. Although the open ocean lacks micro-terrain and other means to block line of sight that exist overland for a drone to exploit, the phenomenon of surface scatter coupled with pre-set radar track filters to disregard presumed ‘false tracks’ create an exploitable opportunity. A wing-in-ground craft can take advantage of this sensing gap. By creating unusual track behavior patterns by utilizing combinations of indirect approaches, speed, and altitude outside the normal parameters of current known surface, air (rotary or fixed wing), or missile platforms, stressing radar operators’ proficiency and system track logics. Although systems and trainings will adapt, the initial introduction and novel nature of track behavior control will initially exploit existing detection gaps and stress the capabilities of systems and their operators. With the ability to take off and land within roughly 500 meters, a WMAC could combine its unique track characteristics with indirect, sprint and drift approaches to a target or waypoint.11 This approach would present unique challenges to radar system design, operational set-up, and watchstander training while mitigating the risk of operating within probable surface ducting effects of the adversary’s radar. By starting and stopping ground-effect legs of travel at speeds near predicted system track-filter speed settings, and then altering course while in the water, a WMAC could appear to be a series of false tracks, ostensibly referred to as ‘zoomers’ by watchstanders, while conducting a recon patrol or a maritime strike mission against an identified target. The ability to take off and land within short distances would also increase the survivability of a WMAC when engaged by adversarial missile systems or aircraft when coupled with electronic or physical countermeasures. These countermeasures could include a combination of towed or rocket-launched decoys, camouflage paint schemes, radar absorbent materials, electronic signal repeaters, and avoidance maneuvers. WIG craft would also only need to close targets as much to be within maximum range of their weapons, often on the outer limits of the adversary’s own weapons range increasing their survivability and need to avoid detection.

A WMAC could scout ahead of a battle group to loiter until it detects a signal correlating to a specified target, relay targeting data, engage the target with a combination of anti-ship cruise missiles (ASCM) or high-speed anti-radiation missiles (HARM), and then evade by maneuvering or attempting to blend in with the ocean surface until it can return to the battlegroup to refuel and re-arm. This application is like that of diesel-electric submarines that use their ability to bottom to position themselves to attack a transiting force or to evade counter-detection and engagement after firing at their target. Include. The ability to launch munitions in support of a battle group and a landing force from off-axis, or forward deployed, adds another dimension to exploit by operational planners. The outfitting of a WMAC should be to degrade or destroy radar equipment on surface combatants. Degrading or destroying combatants is known as “mission kill” which is more than sufficient to meet many potential tactical objectives, especially in a battle waged on the sea in the Indo-Pacific or Black Sea regions. Such objectives, when met, can provide the conditions necessary to flow in larger capital ships to close the enemy force and bring their full combat power to bear in a more permissive environment by attriting adversarial surface combatants in their ability to detect, track, and engage United States naval forces.

Initial WMACs would likely need to embark on amphibious ships to launch utilizing well-decks or crane systems. A potential commercial design for WMAC conversion would be the Wigetworks Airfish-8, roughly 50 feet wide and 60 feet long without modifications to fold-and-stow the wings or tail section. As a frame of reference, a Landing Craft Air Cushioned (LCAC) is 48 feet wide and 91 feet long.12 Three WMACs to be loaded in place of two LCACs into a compatible well-deck as found on the San Antonio Class (LPD-17), Harpers Ferry Class (LSD-49), and America Class Flight IIs (LHA-6).13 14 15 A Wasp Class (LHD-1) would be able to embark four WMACs.16 While still utilizing current USS ships, a crane-based option would be the Lewis B Puller Class Expeditionary Sea Bases (ESB).17 ESBs are designed for moving cargo to forward operating areas with a configurable main-loading deck. These ships could potentially embark and deploy between four to six WMACs. Initial designs would implicitly guide tactical employment and embarkation limitations.

Design Considerations for Initial WMAC Conversions

The threat in the Indo-Pacific could require action within the next three years.18 Contractor bids to design, build, and test new platforms typically take much longer than that possible timeframe – not to include placing the design into production, training personnel. To accelerate the acquisition timeline, the Navy should expeditiously acquire existing commercially produced craft. For this theoretical exercise, we will build out a modified Wigetworks Airfish-8.

Singapore-based Wigetworks, produces the Airfish-8, a WIG that can support a two-person crew with six to eight passengers and a total cargo of 1.1 tons. The craft is 56 feet (17.2 meters) long and has a wingspan of just over 49 feet (15 meters), just slightly smaller than an F/A-18 E/F Super Hornet.19 20 The Airfish-8 is limited in speed and range with maximum speed of 106 knots and only 300 nautical mile range while operating at a max above-surface height of just under 23 feet (7 meters) making it suitable for fleet experimentation but not combat operations. Although not in full-scale production yet, Wigetworks indicated that each unit will likely cost around $500,000. Even if this price point is doubled to $1 million, it still provides a low-cost experimental platform.

Operating a WMAC based on the Airfish-8 could be limited to only a pilot and a weapon systems operator. The pilot and weapon systems operator, however, would not require traditional naval flight school since the classification of WIGs as boats. This would allow for these billets to be opened to Chief Warrant Officers or even enlisted ranks like how the Navy currently crews LCACs. This would allow for potential options to include additional fuel, bunks, or equipment racks in the cabin in lieu of passenger seating installed on the commercial use variant. Crew space and bunks would depend upon the decision for operational employment and whether a WMAC would pre-position and drift for extended periods. The current engine design of a gasoline-powered V-8 would likely need to be swapped out with a JP-5 fueled turboprop, which is more powerful and fuel-efficient.

A converted Airfish-8 would likely have one weapon hardpoint per wing considering wing space, weight limitations, and drag calculations for impact to speed and range. The load out would consist of ASCM or HARM. Engineering considerations would have to be considered for potential issues to include weapon weight and minimum launch airspeed requirements to include potential booster modifications depending on the weapons selected for use by a WMAC. Missile options should also not be limited to weapons currently in the United States’ inventory. Partner and allied nations such as France and Norway, among other Western countries, produce ASCMs that are in many ways superior to the limited United States Navy offerings.

A first-generation Airfish-8 WMAC test platform, as described, might cost roughly $5 to $15 million per unit, although cost estimation for prototypes is notoriously difficult. This price-point pales compared to the estimated $81 million per aircraft of the F-35 program.21 Aside from cost, is the reality that more expensive, and thus more complex, platforms usually come with significant lead times for production. Less complex and less expensive platforms would likely come with the advantage of being able to produce at a higher rate which would help with initial fleet inventory numbers as well as replacements for units lost due to accidents or combat.

Conclusion

In obtaining and fielding maritime platforms for use in a potential conflict with China or Russia, cost-effectiveness and speed to fleet are vital to the United States’ security concerns and strategy. The Indo-Pacific theater is a predominantly maritime theater governed by the tyranny of distance and the threat of a rapidly growing, modern Chinese Navy. The Black Sea region saw Russia annex the Crimean Peninsula and built up standing naval forces in the area following by the widely publicized and condemned Russian invasion of Ukraine. If conflict with these peer adversaries come to fruition, we must account for the grim reality of modern combat with equally advanced opposition – the United States will suffer losses. As modern weapons get faster and more lethal, the old belief of United States’ fast and advanced platforms being superior to the opponent will no longer hold true. While WMACs possesses inherent weaknesses when faced with SAM or fighter threats, their ability to scout ahead of a battle group and degrade or destroy the systems on adversarial surface platforms needed to target the battlegroup will justify the risk. A small crew, small price tag, and shorter production timeline for a replacement represent a significantly lower risk than losing a major surface combatant such as a destroyer, cruiser, or even worse, an aircraft carrier.

The reality of the theater and threat has stoked discussions surrounding the applications of wing-in-ground-effect platforms and seaplanes in recent years. But discussion is not enough. The United States Departments of Defense and the Navy need to pursue and field platforms before they are required. Near-term acquisition and modification of commercially produced, proven WIG designs provide a stop-gap measure to field capability to these, and potentially other, key regions until purpose-built military platforms can be designed and tested. This second generation of WMACs should explore hull-form shapes to reduce radar-cross-section, a vertical or catapult launch capability to expand the number of platforms they can embark on, and power plant options to increase range and speed for evasion.

The plausibility and timelines of potential conflict in the Pacific and Eastern Europe involving the United States are tenuous and fluid. The rapid development and deployment of a WMAC would allow the United States Navy to directly counter the growing size and capability of Chinese and Russian forces by exploiting the inherent weaknesses of modern systems. This capability provides additional conventional deterrence to Chinese military aggression vis-à-vis Taiwan and the South China Sea and towards Russian aggression in the Black Sea and Baltic regions.

Wing-in-ground-effect craft provide tremendous potential for strategic lift and other vital mission sets. However, in examining the applicability and effectiveness of the technology, the United States Departments of Defense and the Navy must not overlook the viability and role of smaller, shorter-range platforms. Now is the time to take decisive action that can potentially turn the tide of a future conflict in the Indo-Pacific or the Black Sea regions. To neutralize or deter rising adversaries, the United States Navy must send skimmers to the skirmish.

Commander Michael Knickerbocker is a United States Navy Surface Warfare Officer with previous experience as an AEGIS Combat Systems Officer and Integrated Air Missile Defense Planner. He is currently a Federal Executive Fellow at the Clements Center for National Security at the University of Texas at Austin conducting independent research into naval equities impacting current national security situations. His research focuses on technology adaptation into maritime strategy as well as maritime trade security assessments and risk identification. The views expressed are those of the individual writing them and do not reflect the official positions of the U.S. Department of Defense, Department of the Navy, or the University of Texas at Austin.

Endnotes

[1] O’Rourke, Ronald. 2022. China Naval Modernization: Implications for U.S. Navy Capabilities- Background and Issues for Congress. Washington DC: Congressional Research Service.

[2] Gressel, Gustav. 2021. “Waves of Ambition: Russia’s Military Build-up in Crimea and the Black Sea.” European Council for Foreign Relations. September 21. Accessed January 24, 2022. https://ecfr.eu/publication/waves-of-ambition-russias-military-build-up-in-crimea-and-the-black-sea/.

[3]Oyvind Overrein, Andreas Birkeli. 2021. Radar Detection Evaluation Method for Sea Skimming Targets Including Effective Flight Altitude Simulations as Seen by Radar. NATO paper, Brussels: NATO.

[4] White, Ryan. 2021. “What is Sea Skimming? How Effective Sea-Skimmer Missiles?” Naval Post. April 3. Accessed January 24, 2022. https://navalpost.com/anti-ship-missiles-what-is-sea-skimming/.

[5] International Maritime Organization. 2022. “Wing-in-Ground (WIG) Craft.” International Maritime Organization. Accessed January 24, 2022. https://www.imo.org/en/OurWork/Safety/Pages/WIG.aspx.

[6] WigetWorks. 2020. Airfish-8 FAQ. Accessed January 24, 2022. https://www.wigetworks.com/faq#:~:text=It%20has%20a%20higher%20operational,15%20knots%20of%20cross%20wind.

[7] Michael Halloran, Sean O’Meara. 1999. Wing-in-Ground Effect Craft Review. Melbourne: Australia Department of Defence. https://apps.dtic.mil/sti/pdfs/ADA361836.pdf.

[8] Walker Mills, Dylan Phillips-Levine, Joshua Taylor. 2020. “Modern Sea Monsters: Revisiting Wing-in-Ground Effect Craft for the Next Fight.” Proceedings. https://www.usni.org/magazines/proceedings/2020/september/modern-sea-monsters.

[9] Ingels-Thompson, David. 2021. “Rethinking SEAD for A2/AD.” Proceedings. https://www.usni.org/magazines/proceedings/2021/april/rethinking-sead-a2ad

[10] Katz, Justin. 2021. “DARPA Hopes A Plane Boat Hybrid Can Solve the Pentagon’s Sealift Challenge.” Breaking Defense. August 30. Accessed January 24, 2022.
https://breakingdefense.com/2021/08/darpa-hopes-a-plane-boat-hybrid-can-the-pentagons-sealift-challenge/.

[11] Department of the Navy. 2020. Airfish-8. Accessed January 24, 2022. https://www.wigetworks.com/airfish-8.

[12] Department of the Navy. 2021. “Landing Craft, Air Cushioned Fact File.” Navy.com. October 14. Accessed January 24, 2022. https://www.navy.mil/Resources/Fact-Files/Display-FactFiles/Article/2170004/landing-craft-air-cushion-lcac/

[13] Department of the Navy. 2021. “Amphibious Transport Dock – LPD.” Navy.com. January 21. Accessed January 24, 2022. https://www.navy.mil/DesktopModules/ArticleCS/Print.aspx?PortalId=1&ModuleId=724&Article=2222713.

[14] Department of the Navy. 2019. “Dock Landing Ship – LSD.” Navy.com. July 19. Accessed January 24, 2022. https://www.navy.mil/DesktopModules/ArticleCS/Print.aspx?PortalId=1&ModuleId=724&Article=2222713.

[15] Department of the Navy. 2021. “Amphibious Assault Ships – LHA(R).” Navy.com. April 15. Accessed January 24, 2022. https://www.navy.mil/DesktopModules/ArticleCS/Print.aspx?PortalId=1&ModuleId=724&Article=2169814.

[16] Department of the Navy. 2021. “Amphibious Assault Ships – LHD.” Navy.com. April 15. Accessed January 24, 2022. https://www.navy.mil/DesktopModules/ArticleCS/Print.aspx?PortalId=1&ModuleId=724&Article=2169814

[17] Department of the Navy. 2021. “Expeditionary Sea Base – ESB.” Navy.com. January 21. Accessed January 24, 2022. https://www.navy.mil/Resources/Fact-Files/Display-FactFiles/Article/2169994/expeditionary-sea-base-esb

[18] Quinn, Jimmy. 2021. “Beijing’s Taiwan Invasion Timeline: Two Predictions.” National Review. November 8. Accessed January 24, 2022. https://www.nationalreview.com/corner/beijings-taiwan-invasion-timeline-two-predictions/.

[19] WigetWorks. 2020. Airfish-8. Accessed January 24, 2022. https://www.wigetworks.com/airfish-8.

[20] Department of the Navy. 2021. “F/A-18 A-D Hornet and F/A-18 E/F Super Hornet Strike Fighter.” Navy.com. February 4. Accessed January 24, 2022. https://www.navy.mil/Resources/Fact-Files/Display-FactFiles/Article/2383479/fa-18a-d-hornet-and-fa-18ef-super-hornet-strike-fighter/.

[21] Grazier, Dan. 2020. “Selective Arithmetic to Hide the F-35s True Costs.” Project on Government Oversight. October 21. Accessed January 24, 2022. https://www.pogo.org/analysis/2020/10/selective-arithmetic-to-hide-the-f-35s-true-costs/.

Featured Image: The Wigetworks Airfish 8 aircraft, (Photo via Wigetworks PTE LTD.)

Podcast

Sea Control 331 – Russia’s Naval Blockade with Dr. Alexander Lott

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By Jared Samuelson

Dr. Alexander Lott joins the program to discuss the Russian naval blockade in the Sea of Azov. Dr. Lott is a postdoctoral fellow at the Norwegian Centre for the Law of the Sea, University of Tromsø.

Download Sea Control 331 – Russia’s Naval Blockade with Dr. Alexander Lott

Links

1. “Russia’s Blockade in the Sea of Asov: A Call for Relief Shipments for Mariupol,” by Dr. Alexander Lott, EJIL: Talk! Blog of the European Journal of International Law, March 14, 2022.
2. The Estonian Straits (International Straits of the World), by Alexander Lott, Brill – Nijhoff, April 5, 2018.
3. “Implications of Hybrid Warfare for the Order of the Oceans,” by Alexander Lott, CIMSEC, August 3, 2020.
4. San Remo Manual on International Law Applicable to Armed Conflicts at Sea, June 12, 1994.
5. IMO Council decisions on Black Sea and Sea of Azov situation, March 11, 2022.
6. Montreux Convention, July 20, 1936.

Jared Samuelson is Co-Host and Executive Producer of the Sea Control podcast. Contact him at [email protected].

This episode was edited and produced by Jonathan Selling.

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)

Fostering the Discussion on Securing the Seas.