On Sunday 25 November 2018 Russian coast guard patrol boats, including the Don and the 630-ton Izumrud, first intercepted and later fired on three Ukrainian naval ships near the entrance to the Kerch Strait. Two Ukrainian sailors were injured, the Ukrainian ships seized and the crews arrested. The attack has been roundly condemned in the United States and around the world.
The Russian ships intercepted two Ukrainian Gyurza-M-class artillery boats, Berdyansk and Nikopol and a tugboat, Yany Kapu, as they sailed toward the Ukrainian port of Mariupol. Russian forces seized the vessels and arrested 24 crew members. The Don twice rammed the tugboat and the Russian vessels opened fire on the two smaller Ukrainian warships. The incident occurred in the territorial sea along the approaches to the Kerch Strait, which is bordered in the east by Russia and in the west by Russian-occupied Ukrainian Crimea. The Russian government stated that its forces fired only after the Ukrainian ships violated articles 19 and 21 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning innocent passage in the territorial sea.
Exploring the legal circumstances of the incident requires selection between peacetime rules of the law of the sea and the law of naval warfare, which applies to international armed conflicts. This post concludes that the actual incident on the water is part of a continuing aggression by Russia against Ukraine, in violation of the UN Charter. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare, notwithstanding Russia’s unlawful invasion of Crimea in 2014 or subsequent unlawful treatment of the Ukrainian sailors as common criminals rather than prisoners of war. In this case the law of naval warfare is lex specialis and supplants mutatis mutandis the peacetime rules of the international law of the sea for Russia and the Ukraine.