Ukraine Symposium – “Damn the Torpedoes!”: Naval Mines in the Black Sea

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| Mar 15, 2023

Naval mines

For over a century the immortal battle cry of Rear Admiral Farragut has sounded throughout naval lore – “Damn the torpedoes! Full speed ahead.” As it turns out, what Admiral Farragut was damning are what we would today refer to as naval contact mines. Since that era, the means and methods of naval mining have gone largely unchanged, and similarly, so has the law regulating it. Currently, reports indicate that hundreds of rudimentary sea mines have been deployed in the Black Sea since the Russian invasion of Ukraine in February, 2022. Many of these mines subsequently came untethered from their moorings, with claims that roughly 400 R-421-75 type automatic contact mines had gone adrift near the outset of the war in a contemporary and perilous take on the age-old Anchors Aweigh.

Subsequent reports of suspected mine strikes on floating vessels and civilian deaths have been attributed to these stray sea mines and give rise to the inference that these mines lack appropriate fail-safes or self-neutralizing technology. The associated risk to maritime trade has also resulted in the rise of transportation and insurance costs for any future maritime shipping. To make matters worse, the Ukrainian government has claimed that these mines were intentionally set adrift in a false-flag attempt by Russia to frame Ukrainian forces and hold global trade hostage. Setting ownership or responsibility for these mines aside, the mere suggestion that a belligerent could hold much of the world ransom by using a major threat to maritime trade raises unease.

In light of the concerning use of naval mines in the Russian-Ukrainian conflict, and the recent proliferation of mine-laying tactics and equipment, this post examines the existing legal framework regulating naval mines in an armed conflict, and aims to determine whether the current rules governing their use are sufficient to alleviate humanitarian concerns related to their indiscriminate use.

A Brief History

Naval mining has been a part of warfare for centuries, though it rose to prominence in the late 1800’s. The American Civil War saw both the tactical and strategic implementation of naval mines, but it wasn’t until their widespread use in the Russo-Japanese War (1904-1905) that nations began to express international concern with their regulation. During and immediately following the war, naval mines had a devastating impact on innocent commercial shipping, which led many nations to seek an agreement on their use and emplacement. Accordingly, most major powers joined the Hague Convention VIII of 1907 relative to the Laying of Automatic Submarine Mines (Hague VIII), though conspicuously not Russia). The five short substantive provisions  of Hague VIII remain the only existing form of treaty law governing the employment of naval mines, with the remainder of restrictions on the use of naval mines found in customary international law. The framework for our current legal restrictions on naval mines remains today the same as it was articulated in the preamble of Hague VIII in 1907:

Inspired by the principle of the freedom of sea routes, the common highway of all nations;

Seeing that, although the existing position of affairs makes it impossible to forbid the employment of automatic submarine contact mines, it is nevertheless desirable to restrict and regulate their employment in order to mitigate the severity of war and to ensure, as far as possible, to peaceful navigation the security to which it is entitled, despite the existence of war…

Accordingly, the parties to the Convention codified this desire for international freedom of the seas and security for peaceful navigation in the provisions following.

Hague VIII 

Article 1 addresses potential indiscriminate damage by mines, forbidding the use of armed unanchored (free-floating) mines that don’t become harmless after an hour of emplacement, or in the case of an anchored mine that accidentally breaks free from its mooring, immediately become harmless.

Articles 2 and 3 address the protection of commercial shipping, forbidding its intentional targeting. These articles require belligerents to take active precautions to protect its security, to include notifying governments and ship owners of all “danger zones.”

Article 4 addresses the obligation of Neutral powers who mine their own coasts to observe the same rules and take the same precautions as belligerents. At the end of the conflict, Article 5 requires all parties to do their utmost to remove any mines they laid, and provide notification of any mines laid in another nation’s waters, for their prompt removal.

These short provisions make up the entirety of treaty-based regulations specific to the employment of naval mines. The only other “operative” obligation is in Article 6, which states that any powers that don’t have mines capable of disarming themselves after loss of control, will “undertake to convert the ‘matériel’ of their mines as soon as possible, so as to bring it into conformity with the foregoing requirements.”

The primary emphasis of naval mine regulation was, and remains, ensuring that no armed mines drift freely in the water, and providing precise protection and precautions for commercial shipping. This was to be accomplished by ensuring every naval mine was capable of disarming itself when control was lost and prohibiting all means of indiscriminate employment. While this would seem an appropriate solution to ameliorate all international concern, Article 7 states that only treaty members are bound to follow these provisions, and even then only when all belligerents are also treaty members. Because this clause notably excludes both Russia and Ukraine, the incorporation of these principles into Customary International Law will now be examined.

San Remo Manual

Since the Great White Fleet set out to circumnavigate the globe in 1907, there have been major technological revolutions in sea power, but no ratifications of modern treaties specifically regulating naval warfare. The San Remo Manual was adopted in 1994 “to provide a contemporary restatement of international law applicable to armed conflicts at sea,” as explained in the manual’s introduction. Although the manual itself is not binding on States, it is the result of several years of the world’s leading experts convening to distill and articulate the current state of the law governing naval operations. Similar present day discussions have been underway to create the upcoming Newport Manual on the Law of Naval Warfare, years in the making. These manuals not only look at historic treaties like Hague VIII, but also consistent State practice over time, a cornerstone of customary international law.

Regarding naval mines, the Manual’s section on Means of Warfare is essentially a modernized Hague VIII, incorporating the core principles of the law of armed conflict, and articulating the Hague Regulations use of the now-universal maritime zones and navigational obligations of the United Nations Convention on the Law of the Sea (UNCLOS). So, while some States may not have joined Hague VIII, its provisions now have binding legal authority under customary international law. Even the International Court of Justice has cited Hague VIII in asserting a State’s responsibility to provide notice of danger zones caused by naval mines. These obligations from Hague VIII are also reflected in many State military manuals, including the United States’ DoD Law of War Manual and The Commander’s Handbook on the Law of Naval Operations, those of the United Kingdom; Denmark; France; Germany; and, to highlight their binding customary nature, States that did not ratify Hague VIII like Canada and Australia.

So are these regulations sufficient to protect the freedom of the seas?  Have their principles become dated by emerging technology? In its preliminary remarks regarding naval mines, the San Remo Manual comments on the formulation of Hague VIII:

At the time the Convention was drafted, it was deplored that no absolute prohibition could be agreed upon. The fact that restrictions as formulated in the Convention only apply to one specific category of mines (automatic contact mines) is commonly considered to be a major defect, although practice by belligerents in the first Gulf War showed that the provisions of the Convention have continued validity in modern naval warfare.

Thus, an examination of recent conflicts can illustrate the applicability of these century-old proscriptions in a technologically modernized context. Operationally, the Gulf War serves as a prime example of the great utility of naval mines for use in sea denial, but from a humanitarian lens, it also highlights the concomitant cost associated with clearing dangerous zones after the conflict.

Examples in Modern Naval Warfare

As an example highlighting their utility, in the years following the Gulf War the U.S. General Accounting Office published a congressional report on budget realignment for Navy Mine Warfare. It explained how the two mines that damaged two U.S. warships during 1991’s Desert Storm cost $10,000 and $1,500, but collectively inflicted $21.6 million in damage. The report then concluded, “Naval mines are extremely economical weapons and are readily available on the world’s arms market.”

For conceptual clarity’s sake, modern naval warfare does not necessarily imply the use of modern naval mines. Many of the mines used against the United States in the Gulf were WWI-era. This further highlights the utility of naval mines, as their simple design can remain an effective deterrent for several decades after their construction. Even in 1950, very primitive sea-mining operations by the communist forces in the Korean War were able to halt all ship movement off the coast of Wanson, Korea. As a result, Americans attempting amphibious operations with hundreds of ships were delayed offshore for several days. This inconceivable frustration led the Amphibious Task Force Commander, Rear Admiral Smith, to proclaim, “We have lost command of the sea to a nation without a navy, using weapons that were obsolete in World War I, laid by vessels that were used at the time of the birth of Jesus Christ.”

However, as required by the principle of proportionality, the anticipated military advantage to be gained must be weighed against expected incidental loss of civilian life, injury to civilians, or damage to civilian objects. Between 1980 and 1988 the parties to the Iran-Iraq War collectively released hundreds of naval mines in unmarked minefields across the Arabian Gulf and millions more landmines along their borders. Similar to the current crisis in the Black Sea, drifting mines in the Arabian Gulf presented a major chokepoint for the global fuel market, freedom of navigation, and trade for otherwise closed-off nations bordering its coasts. In addition to the damage caused by prohibiting navigation, these mines alone reportedly resulted in damage to as many as 35 ships over the course of the war.

In response, the UN Security Council condemned the attacks on neutral shipping vessels and called for a ceasefire in 1986 and, following the initiation of the ceasefire in 1988, appointed a technical observer group called the UN Iran-Iraq Observer Group (UNIIMOG) to supervise the end of hostilities. This group consisted of over 400 members with 350 UN Military Observers from over 26 countries and maintained a land, air, and naval presence. From 1988 to 1991, as part of its UN mandate this group was able to facilitate the exchange of information between parties to the conflict regarding the location of unmarked minefields along the States’ borders. Meanwhile, other UN members unilaterally provided assistance in the Arabian Gulf clearing drifting naval mines as well as moored mines, the locations of which were not properly disclosed.

Back to the Black Sea

As videos continue to surface of unanchored naval mines detonating near coastal towns in the Black Sea, it is clear that the “effective neutralization,” required by international law is not occurring. Originally highlighted over a century ago, the aim of regulating the emplacement of sea mines remains entirely unaltered by modern technology or any current geopolitical tensions: “to ensure, as far as possible, to peaceful navigation the security to which it is entitled.”

So how should this humanitarian aim be balanced against military necessity? As demonstrated above, sea mines remain an overwhelmingly effective and economic means of sea denial. Their benefit in deterring naval operations cannot be overstated. However, the existing regulations already incorporate the core principles of distinction and necessity in their framework. Militarily, there is little operational advantage to an uncontrolled naval mine compared to a controlled one, so neutralization after loss of control would not detract from the concrete military advantage gained. Thus, if the current proscriptive regime were adhered to, military objectives would still be met, but civilian populations and objects would be protected from unnecessary risk. Thus, today’s humanitarian struggle is not whether the existing law sufficiently regulates modern naval mining, but whether the existing international order sufficiently enforces that existing law.

The world is witnessing a prolonged large-scale international armed conflict (entirely based on an act of unlawful aggression by a member of the UN Security Council, no less) in which allegations of law of armed conflict violations are widespread. Accordingly, the international response to this conflict will serve not only to ensure accountability for recent actions, but reinforce a new norm for any future conflicts on the horizon. State practice serves to set expectations in conflict. Irresponsible and indiscriminate mining cannot be an expectation any military, or civilian population for that matter, carries forward.

The existing legal regime governing naval mines is sufficient, but the status quo must change to avoid catastrophic consequences posed by both ongoing and looming conflicts. A potential means of international supervision would be the creation of an even less-flattering acronym, UNRUMOG (i.e., a UN Russia-Ukraine Military Observer Group), to serve as a collective of neutral, UN members to enforce international legal obligations. Pertinently, this UNRUMOG could serve as an intermediary that gathers information on unmarked naval minefields and provides notices to mariners and the international community of resulting dangers to peaceful navigation.

Additionally, through this cooperation and exchange of information, the observer group could require the retrieval of any mines that slip from their moorings and wander afield. Although this UNRUMOG would precede a ceasefire, this would not be the first time the UN has appointed Military Observers in an active conflict through a UN Security Council Resolution. While there may be cause for concern that Russia would quickly veto this proposal, the resolution would not condemn or condone Russia’s actions, as it would merely create a neutral entity that ameliorates the harmful effects of the ongoing conflict; humanitarian support that any belligerent would be hard-pressed to justify denying.

Concluding Thoughts

In the face of the growing proliferation of minelaying systems and tactics, the international community must place a heightened emphasis on enforcing existing regulations on naval mines. Altogether, this new status quo would reinforce the rule of law, deter violations (such as false-flag mine deployments), increase attribution, protect against threats to peaceful navigation, and alleviate the very humanitarian concerns articulated in 1907: freedom of the seas and peaceful navigation.

***

Capt Ben Rothchild, USMC is a Judge Advocate and Assistant Professor of Military Law at the United States Naval Academy, where he teaches Operational Law and the Law of Armed Conflict.

LT Mark Jessup, JAGC, USN is an Assistant Professor of Military Law at the United States Naval Academy, where he teaches Operational Law and the Law of Armed Conflict

The views expressed in this article are solely those of the authors, and do not reflect the official policy or position of the Department of Defense, Department of the Navy, or the U.S. Naval Academy.

 

Photo credit: US Navy

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