Key Takeaway: Russia conducted a brazen act of war against Ukraine in the Sea of Azov on November 25. The Russian Coast Guard fired on Ukrainian naval vessels and detained their crews in violation of multiple international laws including the Geneva Convention. This escalation is part of a broader deliberate campaign by Russia to test the resolve of the U.S. and NATO, and identify the thresholds at which Russia can conduct aggressive actions against its neighbors without suffering consequences from the West. Russia is waging this campaign across multiple theaters and multiple domains, and its campaign is escalating. The lack of a meaningful response to this act of war by the U.S. and NATO will only encourage further escalation by Russia. The U.S. and NATO must respond decisively to send a strong message to our adversaries and uphold the modern rules-based international order which has prevented large-scale state warfare for decades.
The Kremlin learned that it can commit overt acts of war against its neighbors without a meaningful response from NATO. The Russian Security Services (FSB) Coast Guard rammed and opened fire on three vessels of the Ukrainian Navy attempting to transit from Odesa in Western Ukraine to Mariupol in Eastern Ukraine via the Sea of Azov on November 25. The Ukrainian Security Service (SBU) also claims that Russia fired on the vessels with attack helicopters and fighter aircraft, suggesting the involvement of the conventional Russian Armed Forces. The FSB ultimately seized the vessels and seized their crews as de facto prisoners of war. This aggressive act marks the first publicly acknowledged exchange of fire between the uniformed military personnel of Russia and Ukraine since Russia invaded Ukraine in 2014. The Kremlin framed its attack as a response to a violation of its borders by Ukraine. However, the Sea of Azov is not Russia’s sovereign territory under international law. Russia has in fact been setting conditions to open the Sea of Azov as a new front in its war against Ukraine since early 2018.
The West is currently understating the severity of this escalation by Russia. NATO officially condemned Russia for its “use of military force” and reiterated its support for the sovereignty of Ukraine but did not emphasize the blatant violation of international law by Russia. U.S. President Donald Trump, U.S. Secretary of Defense James Mattis, and U.S. Ambassador to the UN Nikki Haley among other officials also condemned Russia and alluded to the illegality of its actions but failed to clearly articulate the dangerous implications of this severe violation for the wider international order. Many commentators have raised the specific laws violated by Russia, particularly the 2003 Bilateral Agreement between Russia and Ukraine on the Sea of Azov and the Kerch Strait and the UN Convention of the Law of the Sea (UNCLOS). Russia and Ukraine agreed in 2003 that both states can freely maneuver military vessels without advanced notice in the Kerch Strait and Sea of Azov. Meanwhile, Article 38 and Article 44 of UNCLOS defend the free passage of vessels through straits between national borders – such as the Kerch Strait between Ukraine and Russia. Russia’s justification for its escalation rests on the false claim that it is sovereign over the Kerch Strait, which in turn rests on its illegal occupation of the Crimean Peninsula. Any effort to accommodate Russia’s version of events thus de facto legitimizes its forceful annexation of Crimea.
The West has also writ large failed to hold Russia accountable for violations of the Geneva Convention in Ukraine. Russia and Ukraine have been in a state of war since 2014 despite the denials and obfuscation of Russia. Ukrainian President Petro Poroshenko’s imposition of martial law after the recent incident in the Kerch Strait demonstrates the degree to which this fact is a truism in Ukraine. Russia thus activated the prisoner of war protections set in the Geneva Conventions with its detention of the crewmen from the Ukrainian Navy. Russia violated these legal rules on two accounts. First, Russia labeled the twenty-four detained crewmen as criminal trespassers rather than legal prisoners of war. Article IV of the Geneva Convention defines prisoners of war as captured “members of the armed forces of a party to the conflict” and this reality is not changed despite the lack of recognition offered by Russia. Second, Russia coerced the crewmen to read false confessions about the circumstances of their capture. Article 17 of the Geneva Convention forbids “any form of coercion…to secure from [prisoners] information of any kind whatever” including public confessions. The West’s failure to immediately name and shame these violations of the Geneva Convention supports efforts by the Kremlin to blur the formal definition of wartime and undermine the rules-based international order in favor of Russia.
This escalation is part of a broader campaign by the Kremlin to test the thresholds of tolerance to its aggression and identify vulnerabilities in the U.S. and NATO. The Kremlin has pursued an intensifying campaign to test the tolerance of the West starting with the Russo-Georgian War in 2008. This campaign has only accelerated since 2014. Its lines of effort span multiple domains including the offensive use of military force, assassinations, chemical weapons, cyberattacks, subversion of foreign governments, and violations of international agreements. This campaign spans multiple theaters including Ukraine, Europe, and Syria. The U.S. and NATO have consistently responded insufficiently – if at all – to these probes and have therefore failed to deter further escalation by Russia. ISW will release a forthcoming graphic depicting this campaign, the thresholds tested by Russia, and the insufficient responses by the West.
Russia will likely therefore interpret the lack of a meaningful response as a green light to escalate further in Ukraine and beyond. Russia will likely intensify its military operations to limit or block the access of Ukraine to the Sea of Azov. Ukrainian officials warned that Russia may attempt to seize the key port cities of Mariupol and Berdyansk in Eastern Ukraine. Russia could in a most dangerous scenario launch a ground offensive to seize the terrain between separatist-held Eastern Ukraine and the Crimean Peninsula. Russia would thereby secure a ground logistics route between Crimea and Russia as well as block all access by Ukraine to the Sea of Azov. This effort would likely by spearheaded by separatist forces commanded and supported by the Russian Armed Forces. Russia may simultaneously increase the currently low levels of violence in Eastern Ukraine in order to stretch the Ukrainian Armed Forces and distract from its main effort in the Sea of Azov. ISW assesses that Russia is currently postured to militarily escalate in Ukraine. ISW also warned that Russia was setting conditions to escalate in Eastern Ukraine in September 2018. Russia is already reinforcing its air defenses in Crimea through the installation of a new radar warning system and S-400 Surface-to-Air Missile System (SAMS) to defend against a potential response by NATO.
The West’s weak response to aggression by Russia emboldens malign actors and undermines the rules-based international order. China, Iran, and other adversaries will likely exploit reduced international resolve to confront aggressive powers in order to advance their own malign objectives and threaten the global strategic interests of the U.S. and Europe. The U.S. and NATO must respond decisively in support of Ukraine in order to deter and halt the deliberate pattern of escalation by Russia. They should also hold Russia to account for its multiple violations of international law in order to uphold the modern rules-based international order which has prevented large-scale state warfare for decades.
— [“SBU Received New Uncontested Evidence of an Aggressive Armed Attack on the Ship of the Naval Forces of Ukraine (Video),”] Ukrainian SBU, November 29, 2018, https://ssu.gov(.)ua/ua/news/1/category/21/view/5475#.qahoG25D.dpbs.  [“Putin Called the Incident in the Kerch Strait a Provocation on the Eve of Elections in Ukraine,”] TASS, November 28, 2018, https://tass(.)ru/politika/5845613.  James Holmes, “Goodbye Grotius, Hello Putin,” Foreign Policy, November 29, 2018, https://foreignpolicy.com/2018/11/29/goodbye-grotius-hello-putin-russia-ukraine-sea-of-azov-kerch-strait-south-china-sea-unclos-law-of-sea-crimea; Editorial Board, “Russia Attacks Ukrainian Ships and International Law,” New York Times, November 26, 2018, https://www.nytimes.com/2018/11/26/opinion/russia-ukraine-attack-ships-crimea.html; Alexander Vershbow, “Will Trump Let Russia Take the Azov Sea?,” Washington Post, November 28, 2018, https://www.washingtonpost.com/opinions/2018/11/28/will-trump-let-russia-take-azov-sea.  “Agreement Between the Russian Federation and the Ukraine in Cooperation in the Use of the Sea of Azov and the Strait of Kerch,” Gateway to Environmental Law, December 24, 2003, https://www.ecolex.org/details/treaty/agreement-between-the-russian-federation-and-the-ukraine-on-cooperation-in-the-use-of-the-sea-of-azov-and-the-strait-of-kerch-tre-149547/.  “United Nations Convention on the Law of the Sea,” United Nations Treaty Collection, November 30, 2018, https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en.  “Geneva Conventions,” Legal Information Institute, June 2017, https://www.law.cornell.edu/wex/geneva_conventions.
# # #
Original publication By Russia in Review on November 30, 2018
Russia in Review is a weekly intelligence summary (INTSUM) produced by the Institute for the Study of War (ISW). This ISW INTSUM series sheds light on key trends and developments related to the Russian government’s objectives and its efforts to secure them. Receive future Russia in Review INTSUM products via-email by signing up for the ISW mailing list.