Ukraine should not fight a just war with unjust tactics
Merchant seafarers of any nationality are civilians, and have the right to safe passage and freedom of navigation in the Black Sea
The embattled country has the moral high ground in its fight with Russia. By declaring commercial shipping a valid military target, it abdicates a portion of it
UKRAINE unquestionably occupies the moral high ground in its war with Russia. By its recent threats to attack merchant vessels, and its actual attack on at least one, it abdicates at least some of it.
Kyiv’s recent unilateral declaration that the waters around Russia’s Black Sea ports — including Novorossiysk, Anapa, Gelendzhik, Tuapse, Sochi and Taman — will constitute a war risk area from August 23 already make the Black Sea a more dangerous place still for civilian seafarers.
But worryingly, sabre-rattling from a senior Zelensky adviser went further, proclaiming that his country should regard Russian vessels and third-country vessels carrying Russian oil consignments as “valid military targets”.
Officials sometime go rogue. But Oleg Ustenko’s inflammatory comments have not been repudiated.
First in the firing line — literally — was Russian product tanker Sig (IMO: 9735335), which was holed near the waterline last weekend, courtesy of an explosives-laden Ukrainian drone, rendering it incapable of proceeding under its own power.
No fatalities or injuries were reported. But Ukraine could not have known in advance that that would be the case.
Nor was Russia wrong to point out that large-scale ecological disaster could have ensued; to paraphrase George Orwell: Just because the Kremlin says something is true, doesn’t mean it isn’t true.
The proffered justification for Ukraine’s confrontational attitude is Russia’s refusal to extend the Black Sea grain initiative when it came up for renewal in July.
Since then, Russia has hit hard at Ukraine’s main source of hard currency earnings, repeatedly degrading the facilities that enable export of wheat and corn from its Black Sea ports.
It does so in the knowledge that without access to these crops, millions of poorer people in emerging economies will go hungry. That is unspeakably cynical.
Lloyd’s List has traditionally steered clear of making overtly political pronouncements, because that is not the job of a trade publication. Our readers are drawn from across the spectrum of opinion.
But our coverage of the shipping implications of the hostilities has always started from the tacit assumption that Ukraine is fighting what the standard Augustinian theory of military ethics would regard as a just war of self-defence.
Russia, by contrast, is waging an illegal war of aggression. Its numerous acts of wickedness include bombing a theatre being used as an air raid shelter, the murderous occupation of Kherson, abducting children on a vast scale and ordering a missile strike on diners in a pizzeria.
The massacre at Bucha in the past year was easily the worst atrocity perpetrated in Europe since Srebrenica. Nobody could watch such devastation rained down on their homeland and not vow vengeance.
Nobody doesn’t get why Ukraine is angry. Eighteen months into this tragic and brutal conflict, there can be no wonder that a “whatever it takes” mentality is starting to take hold.
Nevertheless, the doctrine of jus in bello or right in war, which prohibits the deliberate killing of civilians, does not cease to apply.
This is so even though Russia has made numerous minatory utterances of its own and has routinely been harassing ships scheduled to make calls in Ukraine since at least last month.
Lloyd’s List recently published an analysis based on the opinions of four barristers and a law professor, arguing that if Russia did attack civilian vessels, the perpetrators could find themselves in the dock facing charges of war crimes.
It should not need saying that the same arguments, drawn from international law and the law of international armed conflict, apply were Ukraine to do so.
Ukraine will no doubt seek to legitimise what happened to Petrochart-operated Sig by the argument from its declaration of a blockade.
Alternatively, it may contend that the ship was a military objective, despite the active presumption against that being the case for civilian tonnage.
Sources indicate, and vessel-tracking data supports, that Sig has a history of working out of the town of Feodosia in illegally occupied Crimea. The US has placed it under sanctions for its assistance to the Assad regime’s war against its own people in Syria.
But neither factor has any relevance here; anything that might put the life of non-combatant seafarers at risk is unambiguously precluded.
Available information is enough to draw the prima facie conclusion that Ukraine did not have proper regard for this stipulation.
As a matter of principle, enshrined in the United Nations Convention of the Law of the Sea, merchant ships have a right to safe passage and freedom of navigation, and retain those privileges in the Black Sea, even now.
Merchant seafarers of any nationality — yes, even Russian — have the right to the protection this principle affords. It falls to both Ukraine and Russia to ensure that they get it.