Sabotage in Law: Meaning and Misunderstandings

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| Jun 23, 2023

Sabotage

On May 3, 2023, Russia accused Ukraine of attempting to “assassinate” President Vladimir Putin by launching two armed drones at the Kremlin in Moscow. Russia’s press service categorized the incident as a “planned terrorist attack,” and President Putin blamed Western “special services” for enabling “acts of sabotage.” Putin’s charge is not new. Since the beginning of Russia’s war of aggression in Ukraine, each State has accused the other of sabotage.

Commentators, analysts, and scholars also use the term sabotage to describe clandestine, hostile acts. For example, the Kyiv Post, The Atlantic, and the Associated Press (AP) have reported on “cases of sabotage” in Ukraine, Russia, and even third-party countries. In March 2023, the AP published a story about “guerillas from Belarus … carrying out acts of sabotage on their country’s railways” to impede the Russian army. Former Russian Duma member and anti-Putin activist Ilya Ponomarev claims that “[sabotage] is happening everywhere, and that’s why nobody can say that it’s the work of Ukrainian intelligence or Ukrainian saboteurs.” On June 5, 2023, CNN reported that “U.S. officials believe that Ukraine has developed sabotage cells inside Russia.”

Yet, despite ubiquitous use of the term and a recent flurry of allegations, international law does not define sabotage. Indeed, legal scholars have generally treated it as an ancillary subject. This post examines the term’s etymology and the nature of sabotage in armed conflict. It discusses the legal limitations on saboteurs under the law of armed conflict despite the lack of terminological precision in various treaties, influential non-binding sources, and military manuals. Finally, it describes the customary rule under which combatants captured while engaged in sabotage forfeit prisoner-of-war (POW) status and combatant immunity.

The Etymology of Sabotage and the Nature of Sabotage in Armed Conflict

The term sabot appeared for the first time in English in a 1607 translation of the French phrase for “wooden shoes.” The origin of the word sabotage relates to another kind of French sabot—an iron “shoe” used to secure rails to railway ties. Disgruntled “saboteurs” destroyed these metal sabots during a French railway strike in the early 1900s. Later, laborers in the United States openly adopted sabotage as both a theory and a tactic in pursuing improved working conditions and increased wages.

In the context of armed conflict, some have used the word saboteur as a legal term of art to describe those who forfeit certain rights for committing hostile acts under false pretenses. For example, Professor Frede Castberg, the Norwegian representative to the Diplomatic Conference that led to the 1949 Geneva Conventions, argued that “[s]aboteurs could not of course claim protection under the Prisoners of War Convention; they should nevertheless be protected against criminal treatment and torture.” Others employ the term in a purely descriptive manner to characterize hostile acts conducted behind enemy lines. For example, the Security Service of Ukraine (SSU)-Department “A” is specifically tasked with “[c]ountering … sabotage groups of foreign states.” The SSU believes a Russian sabotage group is responsible for destroying the dam at the Kakhovka Hydroelectric Power Plant.

As noted, international law does not define the term. In his seminal 1951 article, So-called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs (p. 329), Richard Baxter opted not to define sabotage, referring instead to Ferdinand Otto Miksche’s 1950 book Secret Forces (p. 124), which acknowledged that “It is difficult to define the exact meaning of sabotage.” Many sources associate sabotage and spying or commingle the terms, opening the door to definition by analogy. For example, § 4.17.5 of the DoD Law of War Manual provides, “‘spying and sabotage’ refer to that general category of secretive, hostile activities that, when performed behind enemy lines, deprives that person of entitlement to the privileges of combatant status.”

As French legal scholar Henri Meyrowitz noted in his 1966 article Le Statut des Saboteurs Dans le Droit de la Guerre, “most of the doctrine assimilates saboteurs to spies.” For example, the 1958 UK Manual (¶331) included a definition of saboteurs, but it linked them to spies:

Whether saboteurs, i.e., persons dropped or landed behind the lines of the belligerent in    order to commit acts of destruction and terrorism, are to be treated as spies depends on whether they are caught in disguise or not. If they are disguised in civilian clothing or in the uniform of the army by which they are caught or that of an ally of that army, they are in the same position as spies. If caught in their own uniform, they are entitled to be treated as prisoners of war.

However, spying and sabotage should not be understood as entirely synonymous terms. Spying, or espionage, is clearly defined in international law texts. For example, Article 19 of the 1874 Brussels Declaration provides, “A person can only be considered a spy when acting clandestinely or on false pretenses he obtains or endeavours to obtain information in the districts occupied by the enemy, with the intention of communicating it to the hostile party.” Article 29 of the Hague Regulation IV prescribes a substantially similar definition. Under Article 46(2) of the 1977 Protocol Additional (I) to the Geneva Conventions of 12 August 1949 (AP I), “A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces.” In sum, a spy’s primary purpose is to collect information.

By contrast, as Jean Pictet noted in his 1958 Commentary to Geneva Convention IV, “Sabotage is harder to define than espionage.” He was addressing Article 5 of Geneva Convention IV, according to which a person detained as a spy or a saboteur typically forfeits their communication rights. Pictet lamented the lack of terminological precision regarding sabotage, which he characterized as “one of [Article 5’s] weak points.” To remedy the shortfall, he proposed that sabotage “should be understood to mean acts whose object or effect is to damage or destroy material belonging to the army of occupation or utilized by it.”

Today, the International Committee of the Red Cross (ICRC) considers sabotage to mean an “action taken to destroy or damage material, works or installations which by their nature or purpose add to the efficiency of the enemy’s armed forces.” But the ICRC definition neglects to recognize the commonly understood, factual elements of sabotage (e.g., secret, destructive, under false pretenses, behind enemy lines) and the legal implications for saboteurs captured in disguise (i.e., forfeiture of POW status and immunity from prosecution). In my view, sabotage should be understood to meanclandestine, hostile acts, typically (but not exclusively) performed behind enemy lines and with the intent to harm the enemy’s war effort. As will be explained, when performed by a combatant out of uniform and in territory controlled by an enemy, sabotage deprives that person of entitlement to the privileges of combatant status. When performed by a private person, sabotage may constitute taking a direct part in hostilities.

Assessing the Legality of Sabotage in Armed Conflict

Sabotage per se is neither prohibited by treaty or customary international law (CIL), nor is it listed as a war crime punishable under the statutes of international criminal tribunals. As noted in the 1997 Report on U.S. Practice, chapter 2.4, “customary international law does not … prohibit belligerents from using saboteurs, secret agents or other irregular forces feigning civilian status to attack legitimate military targets” (emphasis added). The consequences of engaging in sabotage depend on: (1) the category of persons committing it, (2) the target in question, and (3) the means and methods employed.

Saboteurs

There is no international law prohibition on conducting sabotage for any individuals. Of course, combatants (i.e., members of the armed forces, members of resistance movements, and participants in a levée en masse) may be saboteurs. So may civilians, like pro-Ukrainian sympathizers in Russia. The latter do so as either members of an organized armed group or individuals “directly participating in hostilities,” and they may lose their immunity from attack (see art. 51(3) of AP I). Moreover, any incidental harm to civilian saboteurs during an attack on a military objective need not be factored into proportionality or precautions in attack determinations (e.g., § 5.8.1.2 of the DoD Law of War Manual and Articles of War posts here, here, and here).

Conducting Sabotage

As a general matter, saboteurs may not violate the law of armed conflict’s rules governing the conduct of hostilities. Under AP I (Ukraine and Russia are both parties), art. 51(2) and art. 52, saboteurs may not make the civilian population, individual civilians, civilian objects, or other protected persons and objects the target of attack. Thus, if Russian saboteurs attacked North Sea wind farms, as a February 2023 Danish intelligence report suggests they may have, or the Nord Stream 2 pipeline in the Baltic Sea, they likely violated the prohibition on directly attacking civilian objects. Similarly, if Russian journalist Darya Dugina or pro-Russian blogger Vladlen Tatarsky were civilians killed by acts of sabotage, the responsible saboteurs violated the prohibition on attacking civilians (see DoD Law of War Manual § 5.5.2).

Additionally, saboteurs may not conduct an attack where the expected harm to civilians or civilian objects that is incidentally caused would be excessive in relation to the military advantage anticipated to be gained (see Articles 51 and 57 of AP I). Saboteurs must also take feasible precautions (see Article 57 of AP I and § 5.11 of the DoD Law of War Manual) to reduce the risk of harm to the civilian population and other protected persons and objects. Reports about how destruction of the dam in Kakhovka impacted civilians suggests that the attackers failed to comply with these targeting requirements.

Sabotage and Perfidy

Saboteurs may kill their enemies, but they may not resort to perfidy. Interestingly, Pictet’s 1958 Commentary omits any discussion of whether a saboteur may lawfully kill, wound, or capture enemy personnel. Likewise, the current ICRC definition of sabotage limits itself to the destruction or damage of property. However, the ICRC’s 2020 Commentary to Article 4 of Geneva Convention III expands on that narrow definition by noting that “[sabotage] can also include killing and kidnapping of the enemy.” This comment deserves particular attention.

International law prohibits the treacherous wounding or killing of individual adversaries during wartime, a topic Professor Michael Schmitt recently examined for Articles of War. The 1899 Hague Convention (II) with Respect to the Laws and Customs of War includes a ban on treacherous killing, and Article 23(b) of its annexed Regulations observed that “it is especially prohibited … to kill or wound treacherously individuals belonging to the hostile nation or army.” In addition, Article 37 of AP I, an instrument to which Ukraine and Russia are Parties, prohibits perfidy. Under that provision, a combatant may not “kill, injure or capture an adversary by resort to perfidy,” which includes “the feigning of civilian, non-combatant status.”

The law does not prohibit saboteurs from wearing non-standard uniforms, civilian attire, or even enemy uniforms to deceive before or following an armed engagement, but saboteurs may not wear civilian clothing or enemy uniforms to conduct an attack. Importantly, the prohibition on perfidy does not extend beyond individuals. Thus, for example, saboteurs in civilian clothing may destroy rail tracks to impede the flow of enemy supplies, but they may not feign civilian status in order to cause a fatal derailment intentionally. For similar reasons, the law does not prohibit a saboteur in uniform, or wearing another distinctive sign, from emplacing an explosive device that subsequently kills or wounds an enemy (assuming employment of the device otherwise complies with the customary rules and applicable treaties regulating landmines, a topic discussed here in the context of the war in Ukraine). But a saboteur feigning civilian status to get close enough to the enemy to detonate a deadly explosive device would be acting unlawfully.

Further, saboteurs may never exploit the protections offered by emblems like the Red Cross and Geneva Cross (see Article 44 of the 12 August 1949 Geneva Convention I and Article 39(2) of Additional Protocol I), rules that are similar to the prohibition on perfidy but do not require the intent to kill, wound, or capture. Such acts are prohibited because they undermine the effectiveness of protective signs, signals, and symbols and thereby jeopardize the safety of noncombatants and the immunity of protected structures and activities. Thus, a saboteur wearing a red cross or red crescent emblem would be acting unlawfully under all circumstances.

Captured Saboteurs

Although sabotage is not prohibited by international law, captured saboteurs face severe consequences under both international law and domestic criminal codes. Spies and saboteurs are not entitled to POW status if they are captured gathering intelligence or conducting attacks out of uniform. The negotiating history of Article 4 of Geneva Convention III Relative to the Treatment of Prisoners of War (see sources at DoD Law of War Manual 153, n. 361), non-binding expert projects (1874 Brussels Declaration; 1880 Oxford Manual), treaty provisions (1907 Hague IV Regulations, art. 31; AP I, Art. 46(1)) and case law (Ex parte QuirinMohamed Ali) support this conclusion. While some of these sources, like Article 46(1), cite only spies, the 2020 ICRC Commentary to the Third Geneva Convention points out that “there is a well-established practice that saboteurs are treated in the same way as spies with regard to prisoner-of-war status” (¶ 990).

Nor are saboteurs entitled to combatant immunity. In other words, they enjoy no immunity from prosecution in the captor’s courts for violation of its domestic law. As the Army/Marine Corps Commander’s Handbook on the Law of Land Warfare ( ¶ 1-75 ) explains, “spying, committing sabotage, and engaging in other secretive, hostile acts behind enemy lines have a dual character under LOAC; commanders are permitted to employ persons who engage in these activities, but these activities are punishable by the enemy State.” Thus, combatants who spy or engage in sabotage, as those terms have been explained here, may be held criminally liable if captured in disguise.

This is a long-standing rule. In 1942, the U.S. Supreme Court held in Ex Parte Quirin that, like spies, captured saboteurs forfeit POW status and combatant immunity. Chief Justice Harlan Stone described the German petitioners, who buried their uniforms immediately after landing on Long Island, as “saboteurs” and noted they had trained at a “sabotage school” near Berlin. In so concluding, the Court relied, in part, on Article 84 of General Order No. 100, the 1863 Lieber Code.

Armed prowlers, by whatever names they may be called, or persons of the enemy’s territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.

A similar rule appeared in the War Department’s 1940 Rules of Land Warfare. Paragraph 352 of that manual provided that “armed prowlers” were not entitled to be treated as prisoners of war.

Civilian saboteurs also lose some protection to which they might otherwise be entitled. Under Article 68 of Geneva Convention IV, an Occupying Power “may impose the death penalty on a protected person only in cases where the person is guilty of espionage [or] of serious acts of sabotage ….” In his 1958 Commentary to Article 68, Jean Pictet sought to define “serious acts of sabotage” for which the death penalty may be appropriate.

The destruction of an air base, or of a line of communication of strategic importance, is a serious act of sabotage; on the other hand, individual acts such as stoppage of work or refusing to obey orders when carrying out some imposed task cannot be punished by the Occupying Power as acts of sabotage, in spite of the damage they may cause it. In view of the difficulty of defining, a priori, acts which may be described as serious acts of sabotage, it will be for the courts to make a decision in each individual case, objectively weighing all the circumstances (p. 344, emphasis added).

Conclusion

Today, sabotage is as relevant as ever, both as a tactic (see here for an assessment of how the United States might employ maritime sabotage in a future war) and as a legal concept. Despite pervasive use, the terms “sabotage” and “saboteur” are undefined in international law. Still, there are several well-established principles associated with sabotage. International law does not prohibit acts of sabotage as such, but saboteurs must comply with the law of armed conflict. Combatants who engage in sabotage, as defined above, forfeit the combatant privileges of POW status and combatant immunity if captured in disguise. And civilians in occupied territory who engage in such acts may be executed if provided for in the applicable domestic law. States at war must understand these limits so as not to unintentionally place their soldiers and civilians at risk of losing the protections provided by the law of armed conflict.

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Major John C. Tramazzo is an active-duty Army judge advocate currently enrolled in the College of Naval Command and Staff at the United States Naval War College in Newport, Rhode Island.

 

Photo credit: Dmytro Zavtonov, armyinform.com.ua