Attacking a Pipeline: Legal Issues for Consideration

Nord Stream 1 and Nord Stream 2 are pipelines constructed by a Russian State-controlled company called Gazprom to transport 110 billion cubic metres of natural gas per year from the Russian Federation under the Baltic Sea to Germany. Gazprom has a 51 percent controlling interest in Nord Stream 1 and total ownership of Nord Stream 2. German, French and Dutch companies own much of the remaining 49 percent of Nord Stream 1. The pipelines are approximately 1,222 kilometres long, one metre in diameter, and are concrete-coated. Nord Stream 1 started operation in 2012, whereas Nord Stream 2 has never become operational. Shortly before the Russian invasion of Ukraine in February 2022, Germany halted the approval process that was a necessary step towards the commissioning of Nord Stream 2.

On 26 September 2022, Swedish seismologists detected explosions, separated by about 17 hours, off the coast of the Danish island of Bornholm. Three of the four pipelines were ruptured causing a discharge of methane. Media reports indicate that “[t]he three damaged sections contained 778 million cubic meters of natural gas, according to the Danish Energy Agency, and the resulting spill was probably one of the largest single leaks of methane gas into the atmosphere.” Sweden reports finding traces of explosives in the vicinity of the site of the pipeline explosions. Reportedly, a boat, leased in Germany by a Polish-registered company, was also found to have traces of the explosive octogen, the same as that found at the blast sites. At the explosion site, the pipelines were at depths between 70 and 80 metres, a depth at which it would seemingly have been possible for divers to operate.

The 2022 attack on the Nord Stream pipelines raises many legal questions regarding such matters as State responsibility, the application of the law of armed conflict, the law protecting pipelines, international criminal law and more. This post addresses the relevant legal topics in turn and tries to provide some answers based on a hypothetical explanation of what took place.

Origins of the Explosions

Responsibility for the Nord Stream explosions has never been claimed and is disputed. At various times, it has been suggested that Russia was responsible, that a small group including Ukrainian military personnel carried out the act or, indeed, that the blasts were an act of terrorism directed by the Americans. At the time of writing this piece, there seems to be no definitive evidence to establish that the explosions can be attributed to Russia.

Where Ukraine is concerned, however, there is a report in the Washington Post that a senior Ukrainian military officer, Colonel Roman Chervinsky, played a central, co-ordinating role in the operation that led to the bombing of the pipelines. The suggestion is that a six-person team, consisting largely of civilian divers, rented a sailing vessel using false identities and used deep-sea diving equipment to place explosive charges on the pipelines. More recently it has been claimed that a small Ukrainian sabotage team conducted the explosions, that Volodymyr Zelensky initially approved the operation but then called it off, but that the attack went ahead anyway. The more recent indications are that the attack team comprised Ukrainian soldiers and civilians with relevant expertise. Reports indicate that, while private funding was involved, the operation was directed by a Ukrainian general who reported to the Ukrainian Commander in Chief of the time, Valerii Zaluzhnyi. (This has been denied by Zaluzhnyi.)

Investigations have been taking place. At the time of writing, the Generalbundesanwalt, the German Federal Attorney General, is understood to be investigating the incident. If the explosions were caused by an operation undertaken by Ukrainian agents, the sensitive issues and legal complications associated with the notion of State immunity should be borne in mind. Swedish authorities have reportedly concluded that there is no evidence indicating involvement by Swedish citizens in the blasts and has therefore closed its investigation and reportedly passed the evidence it obtained to the German authorities. Denmark has also reportedly closed its investigations into the event.

The Context: Conflict Classification

Since the Russian invasion of Ukraine in 2014, an international armed conflict has existed between the two States. The author’s view is that the subsequent further invasive operation by Russia against Ukraine that commenced on February 24, 2022, represents a continuation of that same international armed conflict. Accordingly, common Article 2 of the 1949 Geneva Conventions applied at the time of the attacks against Nord Stream and continues to apply. Common Article 2 applies the Conventions, and thus the law of armed conflict, to “all cases of declared war or … any other armed conflict which may arise between two or more of the High Contracting Parties, even if a state of war is not recognised by one of them.”

The references by Russian President Putin to a special military operation therefore did not, and do not, affect the classification of military events in Ukraine during 2014 and thereafter as an armed conflict. This is because, as the International Tribunal for the former Yugoslavia has noted, “an armed conflict exists whenever there is a resort to armed force between States … ” (para. 70). Determining whether an international armed conflict exists is therefore a factual issue, and the Russia-Ukraine hostilities plainly satisfy the Tadić case criterion.

The belligerent parties in this armed conflict are the Russian Federation and Ukraine. States that are not involved as parties in the armed conflict are neutrals to which the rules of the law of neutrality apply. Briefly, the territory of neutral States and objects belonging to neutrals are inviolable and must not therefore be made the object of attack. Hostilities between the parties to an international armed conflict must not take place in neutral territory and must not be undertaken from such territory. Specific prohibited acts in neutral territory include attacks against or capture of persons or objects and any act that contributes to the war fighting capability of either party to the armed conflict. The hypothesis discussed in the next section of this post assumes that all relevant acts associated with the explosions took place outside neutral territories and waters. The preceding sentences of this paragraph demonstrate, however, that if that assumption is factually incorrect, issues under the law of neutrality may arise.

The Hypothesis

As noted previously, there are competing interpretations as to responsibility for the attacks, there have been various investigations (some of which have been discontinued), and there have been denials of involvement. To be able to analyse some key legal issues, it is therefore necessary to construct a hypothesis to which the relevant rules of law can be applied. The author makes no claim as to the accuracy of the hypothesis and acknowledges that ongoing investigations may well indicate a different explanation for where responsibility lies. Subject to this caveat, the following is offered as a scenario that is worthy of legal discussion.

For the purposes of the following analysis, it is assumed that:

1. Russia was not involved directly or indirectly in the organisation or undertaking of the attack.

2. The attack was planned and undertaken by a small group of loosely associated individuals, some of whom were members of the Ukrainian armed forces and the remainder of whom were civilians, not necessarily Ukrainian civilians.

3. President Zelensky of Ukraine initially approved the planned operation but later, and before it was undertaken, cancelled that approval.

4. A senior officer in the Ukrainian armed forces played an important role in co-ordinating the mission.

5. The person who, at the time, was the Commander in Chief of the Ukrainian armed forces directed the mission, meaning that he gave his approval in advance of its commencement.

6. The explosions took place in international waters, i.e. in the high seas, and all acts associated with the mission took place outside neutral territory.

A final preliminary observation should be made, namely that Ukraine became party to Additional Protocol I to the 1949 Geneva Conventions on 25 January 1990, and made no reservations or declaratory statements of relevance to the following discussion.

The Law Relating to Pipelines

There is a distinct absence of provision in the law of armed conflict dealing specifically with pipelines. Paragraph 37 of the San Remo Manual states, “Belligerents shall take care to avoid damage to … pipelines laid on the sea-bed which do not exclusively serve the belligerents.” Rule 68 of the Oslo Manual on Select Topics of the Law of Armed Conflict stipulates, “During an armed conflict, submarine pipelines … exclusively serving one or more belligerent States may—if it is militarily necessary—be seized or destroyed subject to the applicable principles and rules of LOAC, in particular distinction, proportionality and the obligation to take feasible precautions.” The commentary to that rule explains that submarine pipelines are not explicitly protected against seizure or destruction if they are connecting enemy territory, which is not occupied, with neutral territory.

Accordingly, and as Professor Wolff Heintschel von Heinegg explains, if pipelines “qualify as lawful military objectives, they may be seized or destroyed, provided the principle of proportionality and the obligation to take feasible precautions are observed.” The Newport Manual comes to a similar conclusion, namely, “States party to a conflict may destroy bilateral cables lying outside neutral territorial seas connecting the enemy and neutral States ‘if the necessities of war require.’ This right would appear to extend to … pipelines lying beyond the territorial sea, although no specific law pertains” (p. 147).

Attribution

Internationally wrongful acts of a State entail the international responsibility of that State. There are two elements of such an internationally wrongful act: (1) that the act or omission is attributable to a State under international law; and (2) that that act or omission constitutes a breach of an international obligation of the State. It is international law that determines whether a State’s act or omission is internationally wrongful and the lawfulness of the attack against the Nord Stream pipelines is discussed in the sections that follow. The issue briefly discussed in the present section is whether the Nord Stream attack can properly be attributed to Ukraine.

For purposes of the hypothesis, it is assumed that by the time the attack took place, President Zelensky had withdrawn any approval that he may previously have given. It is also assumed that a senior officer in the Ukrainian armed forces was involved in coordinating the operation that undertook the attacks and that the person who, at the time, was the Commander in Chief of the Ukrainian armed forces directed the mission (meaning that he gave his approval in advance of its commencement.)

The conduct of any State organ is considered the action of the State under international law. For these purposes members of the armed forces of the State are regarded as organs of the State. Paragraph 13 of the commentary to Article 4 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ASR) gives the following explanation with regard to unauthorised action by a State organ:

It is irrelevant for this purpose that the person concerned may have had ulterior or improper motives or may be abusing public power. Where such a person acts in an apparently official capacity, or under colour of authority, the actions in question will be attributable to the State. The distinction between unauthorized conduct of a State organ and purely private conduct has been clearly drawn in international arbitral decisions.

Irrespective of whether the organ was acting in accordance with or outside its instructions, or indeed without any instructions, if the organ is acting in an apparently official capacity, the act or omission will be attributed to the State.

It follows from this that whether the Commander in Chief of the Ukrainian armed forces was acting within or outside his authority when approving the Nord Stream attack is not relevant. If the terms in which that approval was expressed amounted to a direction for the attack to go ahead, that direction will be attributable to Ukraine. Regarding the acts of the senior Ukrainian officer, he or she is also an organ of the Ukrainian State and his or her actions are also attributable to Ukraine.

Likewise, the actions of the members of Ukraine’s armed forces who participated in the attack are attributable to Ukraine. Where the acts of civilian members of the attack group are concerned, it is likely that their acts or omissions are also attributable to the State. The International Court of Justice has explained that private conduct can be attributed to a State if the individuals concerned were acting on the State’s instructions or under its direction or control at the relevant time (para. 397; see also art. 8 ASR). If, as the hypothesis implies, the civilian participants in the attack group, whether or not they are Ukrainian citizens, were acting on the instructions or under the direction or control of the Ukrainian State, what they did in connection with the Nord Stream attack is attributable to Ukraine.

Applying the Law of Targeting: Was the Pipeline a Lawful Target?

Article 49(3) of Additional Protocol I provides that Articles 48 to 67 of the treaty “apply to any land, sea or air warfare which may affect the civilian population, individual civilians or civilian objects on land.” It would seem to the author that the act of cutting off a major source of natural gas to consumers, including industry, commerce and private citizens, in Germany ought sensibly to qualify as “affecting” those persons and objects. On this basis it seems likely that, notwithstanding that the relevant acts were undertaken in international waters, Articles 48 to 67 apply. The present discussion will proceed on that assumption.

Additional Protocol I uses the term “military objectives” to describe objects that are lawful targets during an international armed conflict. Article 52(2) of the treaty defines military objectives as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.” The UK Joint Service Manual of the Law of Armed Conflict adopts the Additional Protocol I definition, noting that the reference to military action “means military action generally, not a limited or specific military operation” and that the military advantage “need not be immediate.”

The U.S. Department of Defense Law of War Manual explains the issue as follows:

Military action has a broad meaning and is understood to mean the general prosecution of the war. It is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force is sufficient. Although terms such as “war-fighting,” “war-supporting,” and “war-sustaining” are not explicitly reflected in the treaty definitions of military objective, the United States has interpreted the military objective definition to include these concepts (§ 5.6.6.2).

Former British Army Director of Legal Services Tony Rogers noted the potential issues with regard to economic targets and puts the point as follows,

If a country relies almost entirely on, say, the export of coffee beans or bananas for its income and even if that income is used to a great extent to support its war effort, the personal opinion of the writer is that it would not be legitimate to attack banana or coffee bean plantations or warehouses. The reason is that such plants would not make an effective contribution to military action, nor would their destruction offer a definite military advantage.

Professor Yoram Dinstein commented that the U.S. interpretation that includes war-sustaining objects “is inconsistent with the predominant view.” As he pointed out, both the San Remo and Humanitarian Policy and Conflict Research (HPCR) manuals have resisted attempts to bring war-sustaining objects within the definition of military objectives susceptible to attack. Professor Dinstein went on to discuss the oft-quoted example of the destruction by Union forces of raw cotton on Confederate territory during the American Civil War. He asserted the necessity of drawing a distinction between crops and their export, noting that export can only be stopped through the imposition of a blockade while the crops per se do not qualify as military objectives.

It is at this point worth making some legal observations in relation to the example of the cotton crop during the American Civil War as this is used so often to justify the “war-sustaining” approach. Self-evidently, at the time of the American Civil War in the 1860s, the notion of non-international armed conflict (NIAC) was not recognised in the law of armed conflict. The first treaty provision relating to NIACs came in 1949 with the adoption of the four Geneva Conventions incorporating common Article 3. Significantly, that Article includes no definition of military objectives. In the 1860s the decision to attack the cotton crop would therefore have been the exercise by the Union states of what they no doubt perceived as their sovereign rights to address what they will, one assumes, have seen as the misuse by the Confederate states of the crop and of the revenues that it generated. One rather doubts, therefore, the relevance of what took place in the 1860s to a discussion of the meaning of a term by reference to a body of law that did not then exist.

In a carefully argued article, Professor Ryan Goodman explains the alternative approach. After acknowledging that before the armed conflict against the Islamic State in Syria the prevailing view had indeed been opposed to the U.S. war-sustaining interpretation, Professor Goodman notes the reference to the “war-sustaining” interpretation in a 1980 U.S. Air Force manual. He explains the U.S. view that war-sustaining objects are a sub-set of the standard (i.e. Article 52(2) definition) “and U.S. military manuals have long made clear that war-sustaining objects can, under certain circumstances, include an industry that generates revenue used to fund an enemy’s armed forces.” After assessing the cotton crop example, Professor Goodman suggests that “a limiting principle might be that the economic product constitutes an indispensable and principal source for directly maintaining military action.”

Moreover, Professor Goodman and Professor Marty Lederman, in a separate post, point out the problem posed by the wording of the proportionality rule. That rule is described in Additional Protocol I as an example of prohibited indiscriminate attacks. The rule specifies that “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” is prohibited. Accordingly, even if the object to be targeted is interpreted as constituting a military objective, if the military advantage is indirect, it will not count in the application of the proportionality rule as written in Article 51(5)(b) of Additional Protocol I.

Let us, nevertheless, imagine that the explosions to the pipelines did not cause any deaths or injuries to civilians and that the only damage was to the pipelines themselves. Let us assume that the proportionality concerns discussed in the preceding paragraph are therefore irrelevant with the consequence that the focus is firmly placed on whether the sale of gas to Germany by Russia rendered the pipelines a military objective (i.e., is the war sustaining interpretation legally correct)? The United States would say yes, and most commentators would say no.

In forming his or her own view, the reader is asked to consider the legal context for these provisions, namely the principle of distinction (that fundamental principle which provides the very foundation of the law of targeting). The principle, as expressed in Article 48 of Additional Protocol I, has customary law status and thus binds all States. It is expressed as follows,

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

This principle has been famously described by the International Court of Justice as both “cardinal” and “intransgressible.” For that fundamental principle to have meaning, it must be possible to differentiate sensibly between military objectives that can be targeted and civilian objects that must be protected. Objects that can be described as war-sustaining can include cash, the output of key industries, agricultural crops both in the fields and in storage facilities, and so on.

Taking the example of crude oil in the Islamic State context, if the crude oil is considered a military objective, logically the road tankers that are used to transport it can also be so classified, along with the facilities that service and repair those road tankers. That same logic would suggest that tax offices and banks that collect and store the cash to be used in support of the war effort must also be classed as military objectives. In a “war-sustaining” interpretation, where is the line to be drawn between military objectives and civilian objects? The author suggests that there is no clear basis for that differentiation, and on that basis, if the war-sustaining approach renders the principle of distinction meaningless, that approach cannot be legally correct. Professor Goodman would limit the “war-sustaining” interpretation to “an indispensable and principal source for directly maintaining military action.” The problem is that that limitation only makes sense if “war-sustaining” makes legal sense, and in the author’s view it does not.

The following conclusions, therefore, emerge:

1. That the Nord Stream pipelines were not military objectives;

2. That they must therefore be classed as civilian objects; and

3. That it was therefore prohibited to make them the object of attack.

Was a War Crime Committed?

It should be noted that Ukraine signed the Rome Statute of the International Criminal Court on 20 January 2000 but has not become party to that treaty. Nevertheless, as the war crimes provisions of the treaty were considered by the negotiators as reflecting customary law, this post addresses the Rome Statute criminal provision of apparently most direct relevance. Reference will also be made to the elements of the crime. These, and the elements of other Rome Statute crimes, were developed pursuant to Article 9 of the Statute. Under that article, the elements of crimes “shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8bis.”

The war crime that seems to be of greatest potential relevance to the matters discussed in this post consists of “[i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives.” The elements of this crime are:

1. The perpetrator directed an attack.

2. The object of the attack was civilian objects, that is objects which are not military objectives.

3. The perpetrator intended such civilian objects to be the object of the attack.

4. The conduct took place in the context of and was associated with an international armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

It suffices for the purposes of this post to emphasise that the listed elements would need to be proved by the prosecution for a conviction to be recorded, and that the person, or persons, who directed the operation would be the persons most likely to be regarded as the perpetrator(s). The International Criminal Court would only, of course, have the opportunity to consider the Nord Stream attack if it has jurisdiction, and that matter lies outside the intended scope of this paper.

The Status at Law of Those Involved

The pipelines are Russian property and the attack, according to the hypothesis, was undertaken during and in connection with the international armed conflict between Ukraine and Russia. The members of the Ukraine armed forces including the Commander in Chief, the senior coordinating commander, and the military members of the attack group all have combatant status. They are therefore immune from prosecution for their lawful acts of war but will, if the analysis in the present post is correct, be liable for prosecution for any war crime that the available evidence discloses. That said, the author would suggest that the Ukrainian members of the attack group would only be liable to prosecution and conviction for a war crime if their action was a manifest breach of the law of armed conflict, and the discussion in this paper would suggest that while that body of law may have been breached, the acts concerned could not be properly described as manifestly unlawful.

The civilian members of the attack group, whether Ukrainian or otherwise, would have no combatant immunity and would therefore be liable for prosecution, trial, and potential punishment for their breaches of applicable domestic law. Further discussion of that aspect also lies outside the intended scope of this paper.

Conclusions

Based on the hypothesis, this post draws the following conclusions:

1. The hypothetical attack was attributable to Ukraine.

2. Ukraine is a party to Additional Protocol I and has made no relevant statements of interpretation or reservations.

3. While the United States interprets military objectives as including “war-sustaining” objects, this is a minority view that is not shared by the overwhelming majority of States.

4. According to that majority view, war-sustaining objects such as the Nord Stream pipelines do not come within the Additional Protocol I Article 52(2) definition of military objectives and are therefore not lawful targets.

5. The Nord Stream pipelines are civilian objects. Under the law of armed conflict it was not therefore lawful to attack them in 2022.

6. The Rome Statute offence of targeting civilian objects may have been applicable if the International Criminal Court had jurisdiction.

7. The Ukrainian military personnel involved have combatant immunity for their lawful acts of war but the senior Ukrainian officer(s) who directed the attack would be potentially liable to trial for commission of a war crime.

8. Where the directing Ukrainian officer(s) are concerned, the factors that suggest that this was not a manifest breach of the law of armed conflict, in particular the “war-sustaining” controversy discussed above, may suggest that a prosecution would be inappropriate.

9. Civilian members of the attack group would be potentially liable to criminal prosecution for their violent acts.

10. If the facts set forth in the hypothesis are incorrect, these conclusions should be reconsidered.

***

Air Commodore William H. Boothby retired as Deputy Director of Royal Air Force Legal Services in July 2011. He is Honorary Professor at the Australian National University and also teaches at the University of Southern Denmark and at the Geneva Centre for Security Policy.

 

 

 

 

 

 

Photo credit: Pedant01