Напад на торгове судно як воєнний злочин та акт агресії щодо держави прапора і прибережної держави

The article resolves the scholarly problem of establishing the conditions under which an attack on a merchant vessel during an international armed conflict qualifies as a war crime and, at the same time, as an act of aggression against the flag State and the coastal State. The topical relevance is prompted by the practice of July 2026 in the Black, Azov and Caspian Seas, when dozens of vessels flying the flags of States not party to the conflict were subjected to the use of force, and third States advanced claims against both belligerents. The methodological basis is the testing of a hypothesis by attempted refutation: the conditions under which a vessel forfeits the protection of a civilian object are examined separately, and only thereafter is the final qualification formulated. The article applies the formal-legal, comparative-legal and systemic-structural methods, together with the method of interpretation under Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties. It is established that an attack on a vessel which does not meet the criteria of a military objective under paragraph 2 of Article 52 of Additional Protocol I of 1977, and does not fall within paragraphs 60 or 67 of the 1994 San Remo Manual, engages the offences under Article 8(2)(b)(i), (ii) and (iv) of the Rome Statute and constitutes an act of aggression under Article 3(d) of United Nations General Assembly Resolution 3314 (XXIX) and Article 8 bis (2)(d) of the Rome Statute. It is demonstrated that a vessel's sanctions listing, its carriage of hydrocarbons, or its membership of the socalled shadow fleet do not in themselves convert the vessel into a military objective, since sanctions are an economic and not a military instrument. It is substantiated that a State attack on a vessel does not amount to piracy, owing to the absence of the element of private ends under Article 101 of the 1982 United Nations Convention on the Law of the Sea, and that the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation does not apply to the actions of armed forces in armed conflict, by virtue of the exception in paragraph 2 of Article 2 bis of the 2005 Protocol thereto. A distinction is drawn between the interdiction of a sanctioned vessel as a law-enforcement measure and an attack upon it as an act of hostilities. The claim of States' tacit endorsement of an expanded notion of military objective is refuted. The scholarly novelty lies in the formulation of a single qualification test, applicable irrespective of which party to the conflict carried out the attack, and in its testing against the material of the events of July 2026.

Citation: Keshkentii, Denys. An Attack on a Merchant Vessel as a War Crime and an Act of Aggression against the Flag State and the Coastal State SSRN, DOI 10.2139/ssrn.7229738. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7229738