Stranded Seafarers Under International Humanitarian Law

by | Aug 18, 2023

Seafarers

Introduction

One of Ukraine’s first belligerent reactions to its invasion by the Russian Federation was closing its ports to international shipping—leaving 2000 seafarers stranded aboard 94 vessels in and around the Black Sea and the Sea of Azov under threats of attack, bombardment, sea mines, or other perils. The International Maritime Organization (IMO) has since urged the Parties to create a Blue Safe maritime corridor and facilitate the evacuation of seafarers [Resolution MSC.495(105)], with Russia ostensibly agreeing and unilaterally creating humanitarian corridors for evacuation. Today, despite the successful evacuation of most of these mariners and other fruitful initiatives concerning this area, 331 seafarers remain stranded on 62 vessels of neutral and enemy status across nine Ukrainian ports, including Mariupol and Odesa.

Prima facie, this condition violates the Parties’ obligations towards these seafarers under the lex specialis of naval warfare. This article answers several questions regarding the status of stranded mariners across Ukrainian ports during naval warfare; the protection that international humanitarian law (IHL) grants to them; and the extent of belligerent obligations vis-à-vis these mariners according to the enemy or neutral status of their vessels.

The Protection of Stranded Seafarers under LOAC

Article 12 of the Second Geneva Convention of 1949 (GC II) requires that wounded, sick and shipwrecked persons at sea be “respected and protected” (para. 1) and be treated humanely and cared for in all circumstances (para. 2); it also asserts that “shipwreck” means shipwreck from any cause, including forced landings at sea by or from aircraft. Article 8(b) of the First Additional Protocol to the Geneva Conventions of 1977 (AP I) has expanded Article 12’s scope to include civilian persons who are in peril at sea “or other waters” because of misfortune affecting them or their vessel and who refrain from any act of hostility. The emphasized terms are broad enough to apply to a variety of contemporary challenges at sea that involve, say, cases of shipwreck where members of crews and personnel of enemy or neutral merchant vessels have become stranded as a result of cyber-attacks.

Indeed, the ICRC Commentary of 2017 clarifies that the terms “shipwrecked” from “any cause” include, among others, persons who find themselves involuntarily in the water or on board a burning ship; persons on a fully disabled ship or a ship that has run aground; persons stranded on a coast (para. 1384); and “whoever is at sea (or in water) and is in need of rescue” in a “sufficiently perilous situation” (para. 1385). Shipwrecked persons retain their status until returned to land (ICRC Commentary of 1987, para. 318), unless and until they commit an act of hostility or continue to fight against the enemy (ICRC Commentary of 2017, para. 1379).

Does the Ship’s Status Affect Obligations towards Mariners?

Under the law of targeting, this question must be answered in the affirmative: “merchant mariners share the rights and liabilities that attend their vessel’s status” (McLaughlin, p. 291). Generally, the conditions for capturing or targeting neutral merchant vessels are much stricter than those concerning vessels flagged under enemy States: under customary law, enemy merchant vessels may be captured as prize and destroyed only if the ships’ passengers, crew, and documents are first transferred in a place of safety (London Protocol, Rule 2; San Remo Manual, Rule 60; Newport Manual, paras. 8.6.3 and 9.13). On the other hand, neutral merchant vessels may be captured, attacked (after due warning) or destroyed only on exceptional cases—if they violate the conditions supporting their neutral status or are “believed on reasonable grounds to be carrying contraband” (Convention on Maritime Neutrality, Article 12; San Remo Manual, para. 67; Newport Manual, para. 8.6.5). It is also prohibited to subject neutral merchant vessels to indiscriminate and arbitrary measures of control that are not justified by reasonable grounds of suspicion (San Remo Manual, para. 118; also OSCE Report on Ukraine, p. 44).

Certain (neutral and enemy) vessels in the Black Sea have been damaged and their crew members injured, allegedly used as a shield to secure the movement of Russian warships, seized, hit as collateral damage, and killed—most without having violated these conditions of protection.

From a humanitarian viewpoint, Article 13(A) qualifies as “protected” persons under GC II members of crews of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law (para. 4), and persons who accompany the armed forces without being members thereof (para. 5). Civilians wounded, sick, or shipwrecked that belong to a Party to the conflict and find themselves on board merchant vessels are also protected under Article 8(a) and (b) of AP I. The GC II definition of protected persons excludes members of the crews of neutral merchant vessels.

How are Crews of Enemy Status Protected?

Article 12(1) of GC II provides the negative duty to respect (by refraining from attacking or otherwise harming) and the positive duty to protect (by adopting measures to safeguard from hazards) protected persons as defined in Article 13. This obligation is reflective of customary international law (ICRC Customary International Humanitarian Law Study, Rule 111). Article 12(2) also stipulates the duty of care—including the provision of medical care, food, hygiene and clothing (ICRC Commentary of 2017, para. 1423); it requires that the persons “be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria.”

Paramount to achieving the objectives of Article 12 is the obligation under Article 18 of GC II, which requires that belligerents take—after each engagement and without delay—all possible measures to search for and collect the shipwrecked, wounded, and sick without discriminating between their own and enemy personnel. If not able to fulfil the above obligations near the place of collection, belligerents must transport the rescued “as rapidly as possible” to a place where they can be “cared for under better and more secure conditions” (ICRC Commentary of 2017, para. 1663). If captured, enemy mariners also enjoy the rights granted by prisoner-of-war (POW) status under Article 4(A) of the Third Geneva Convention [and Hague Convention (XI) of 1907, Articles 5–8]. Those “held onboard—whether onboard the captured vessel or onboard the warship exercising the right of capture—they must be treated humanely” (Heintschel von Heinegg, pp. 140). As soon as transported on land, where their shipwreck status ceases, they can remain (if so determined) POWs, be given parole or, should they still be wounded or sick, protected by the First Geneva Convention since GC II only applies at sea and other waters [Hague Convention (XI) of 1907, Articles 5 and 9; AP I, Article 8(b); ICRC Commentary of 2017, para. 1395; Pedrozo, p. 104].

Belligerents have failed to collect “without delay” and transport “as rapidly as possible” stranded members of crews and personnel on board enemy merchant vessels across Ukrainian ports—as their long-standing presence at sea shows. They have seemingly also failed to fulfil the above obligations by duly caring for them, or allowing the civilian population or aid societies to assume this role (API, Article 17): in its letters to various international bodies the IMO has stressed that “many of the ships concerned now lack food, fuel, fresh water, and other vital supplies”; a valid testimony also refers to the adverse treatment of a Ukrainian seafarer after finding a certificate of discharge from the Ukrainian army on him.

How Are Crews of Neutral Status Protected?

GC II is silent about mariners on neutral merchant vessels that are not part of protected persons as defined in Article 13. According to the ICRC Commentary of 2017, “the crews of neutral merchant vessels and civilian aircraft … may be protected by the Fourth Convention” (para. 1500). Article 16 of this Convention requires that the shipwrecked and other persons exposed to grave danger be assisted and protected against pillage and ill-treatment. Article 17 requires that belligerent Parties endeavor to conclude local agreements for their (among other categories) removal from besieged or encircled areas. Although it is land focused, this requirement applies “to the case of an island or beach-head encircled by enemy naval forces,” while the civilians could be evacuated by sea “as envisaged by the Second Geneva Convention” (ICRC Commentary of 1958, p. 138). The International Chamber of Shipping has recently called—without notable answer from the belligerents—for an agreement vis-à-vis the evacuation of seafarers, warning that the alternative may be to “risk the lives of our seafarers, and this is unacceptable.”’

On the other hand, Article 4 of this Convention excludes nationals of a neutral State that has normal diplomatic representation in the State in whose hands they are, since their “diplomatic representatives can take steps to protect them” (ICRC Commentary of 1958, p. 49). Be that as it may, as civilians whose condition is related to the armed conflict (Heintschel von Heinegg, p. 142), they remain protected under the fundamental principles of humanity found in general IHL—such as Article 75 of AP I on fundamental guarantees (ICRC Commentary of 2017, para. 1486; and Fink and Heintschel von Heinegg, p. 221).

Officers and crews of neutral merchant vessels and civil aircraft that have taken direct part in the hostilities or have served as naval or military auxiliaries for the enemy, are provided with POW status under customary law (San Remo Manual, Rule 166(c); Heintschel von Heinegg, p. 137). As such, they “may be interned on a ship only in case of necessity and temporarily” and “shall be subject to the laws, regulations, and orders in force in the navy of the State in whose power they are” (Oxford Manual of 1913, Articles 71 and 73). These laws may derive from customary international law, human rights law and, on the issue of maritime assistance, the Conventions adopted under the auspices of the International Maritime Organization that continue to bind all (neutral and belligerent) Parties. The 1979 Convention on Search and Rescue, for example, provides that the State of the search and rescue (SAR) zone of responsibility must ensure the disembarkation of rescued persons to a place of safety (Article II(2) and Annex, paras. 3.1.9, 2.1.9 and 5.9.1), where their fundamental rights are protected and the guiding principles of international law are respected (Ratcovich, pp. 94–95).

While at sea and until their status is determined on an individual basis and “an appropriate time and place,” the shipwrecked persons “shall be subject to the jurisdiction of the State exercising power over them” and “shall be respected and protected” (San Remo Manual, para. 161; ICRC Commentary of 2017, para. 1502; and Heintschel von Heinegg, para. 14). Accordingly, “all wounded, sick or shipwrecked persons, including civilians, are entitled to respect, humane treatment, and the care which their condition requires” (ICRC Commentary of 2017, para. 1502) even when a “person does not belong to one of the categories specified” in Article 13 GC II (para. 1503).

When the conflict in the Black Sea and the Sea of Azov erupted, both the Russian Federation and Ukraine expressed their intentions to fulfill their obligations concerning seafarers, irrespective of their nationality or other criteria that could serve as a basis for adverse distinction. Nonetheless, the reality and the circumstances surrounding these mariners’ continuous distressed situation leaves much to be desired from a legal perspective.

Conclusion

We may now conclude that certain breaches have taken place under targeting law and Articles 12 and 18 of GC II; however, it must be stressed that our vision is still considerably impaired at sea. Be that as it may, as several military manuals have indicated, a belligerent’s obligation to abide by these laws and customs of war is independent of the enemy’s practices: “it is precisely when the enemy chooses to employ unlawful means to win the war that it is even more important for us to be a good example” (Norwegian Manual of the Law of Armed Conflict, Foreword; see also German Law of Armed Conflict Manual, para. 1527; U.S. Department of Defense Law of War Manual, para. 2.5.3.3; and, for similar State views regarding POWs, here).

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Alba Grembi is a Doctoral Candidate at the Faculty of Law, Chair of Public Law, especially Public International Law, European Law and Foreign Constitutional Law of the European University Viadrina, Frankfurt (Oder), Germany.

 

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