FSB tries to explain attack on Ukrainian ships, proves Russia broke its own laws

Russian border patrol ships rammed the Ukrainian tug Yany Kapu (pictured) and shot at and seized two Ukrainian cutters which were heading for a base in the Azov Sea. Photo: Press service of the FSB  

Russian Aggression

After the Russian attack on Ukrainian ships aiming to enter the Kerch Strait to their ports on the Azov Sea coast, three Ukrainian vessels are seized and 24 Ukrainian sailors taken captive and transferred to Moscow to await a trial. Russia is accusing Ukraine of staging a provocation and the FSB has already obtained “confessions” from three sailors who repeated the needed propaganda “we have trespassed Russian territorial waters” message to be televised on state TV.

Ukrainian human rights activists and lawyers have all reasons to fear that the 24 sailors will join the host of nearly 70 Ukrainian political prisoners and be accused of crimes they didn’t commit in a kangaroo court for the sake of scoring propaganda points for the Kremlin with its domestic audience.

It has been difficult to piece together what had happened on the day; Ukraine and Russia had produced opposing versions. Here we examine Russia’s officially published version to see if it makes sense.

The Ukrainian version of events

Drawing of the events by the Ukrainian Navy

A Ukrainian official version can be pieced out of the Ukrainian Navy official publication and General Viktor Muzhenko’s briefing during an NSDC emergency session at midnight of November 26, the night after the attack:

  • on 23 November, the tugboat Yany Kapu and two artillery armored boats Berdiansk and Nikopol were headed from Odesa to Mariupol. On 24 November, the Ukrainian fleet was informed that the Kerch Strait was closed; however, this information was unconfirmed by the international marine traffic control center in Spain. On 25 November at 03:58 EET, Ukraine inquired twice into the possibility and timeframe of passing through the Kerch Strait but received no answer from the traffic controller in Kerch. The Ukrainian ships continued their movement but received a message from the controller to enter the waiting zone where the procedure for passing under the bridge will be determined.
  • It was apparently then that the Russian border guard ship Don rammed into Yany Kapu and damaged its engine and hull (this incident took place at point A on the map below). This incident presumably happened at 6:35 and 6:44 EET, according to an intercepted conversation of the Russian border guards. However, after analyzing video footage, Bellingcat identified that these were not the only incidents when Russian border guards rammed into Ukrainian ships. The official Ukrainian Navy publication does not mention the timestamps of the ramming.
  • At 11:00 on 25 November, the Ukrainian ships were told that the Kerch Strait is closed due to a cargo ship being on shore, this information was confirmed by the Spanish traffic controller. However, passage through the strait was in fact not closed, as between 13:40-13:50 EET, the Ukrainian fleet observed one Russian ship and two cutters passing under the Kerch bridge. Additionally, Russia deployed several more seacrafts, as well as K-52 combat helicopters, and even Su-25 fighter jets in the Kerch Bridge area. The point where the Ukrainian vessels stood at was geolocated by Bellingcat and is located in approximately the same place where the FSB says the ships stood, at anchorage point 471.
  • The Ukrainian ships received no more information and at 17:00 decided to return to the permanent base in Odesa. According to the Navy publication and their map, the Ukrainian ships stood near Kerch between approximately 11:00 and 19:00. As the ships left the waiting zone and headed towards Odesa, 40 km to the southeast of Kerch and 13-14 miles from the Crimean coast, the Ukrainian ships were shot at by the Russian ships and connection with them was lost.
  • The Ukrainian ships headed back to Odesa, but shortly after they crossed the 12-nautical-mile baseline and reached neutral waters, the Russian ships opened fire on Ukrainian seacrafts wounding at least one sailor, reported the Ukrainian Navy as of 20:33. The location of the attack can be located by an intercept of a distress call sent by Berdiansk and is marked “B” on the map below. Yany Kapu and Berdiansk lost engines and were seized by Russian special forces. The third seacraft, Nikopol, was surrounded by Russian ships and forced to follow their course.

The Ukrainian version is in line with available open source data and so far has no observable contradictions.

Read more: Russian attack on Ukrainian ships near Kerch Strait – full chronology

The Russian version of events

Map showing what we know about the Russian attack on Ukrainian ships on 25 November. Click to enlarge. The coordinates of the attacks are taken from: A- coordinates of two incidents when the Russian border guard ship “Don” collided with the Ukrainian tugboat “Yany Kapu” voiced in an intercepted call between the Russian military leadership and Russian border guards; B – a distress call sent by “Berdiansk” after being shot at by the Russian border guard ships; 1-6 – coordinates mentioned in an FSB communique over the incident.

Russia is accusing Ukraine of staging a “provocation” to which the Russian ships were obliged to reply. Already on 26 November, at the emergency UN Security Council convened in response to Russia’s attack on the Ukrainian ships, Russia’s representative Dmitry Poliansky stated that Russia attacked the Ukrainian ships because it suspected they were carrying “radicals that wanted to blow up the Kerch bridge” Russia had scandalously built to the occupied peninsula. On 28 November, Russian President Vladimir Putin alleged at the investment forum “Russia is calling” that the Ukrainian ships entered the territorial waters of not only occupied Crimea but mainland Russia, did not answer the inquiries of the Russian border guards, did not react to the proposal to stop, and were moving towards the Kerch bridge.

On 26 November, the FSB published a note titled “The provocatory actions of Ukrainian Navy ships.” Let’s examine what it claims. The FSB information is in bold; our conclusions are underlined. Time-stamps have been converted from Moscow to Kyiv (EET) time.

November 24, 3:40: Russia detects Ukrainian tug Yany Kapu and support ship Horlivka near cape Meganom (this is near Sudak).

20:30: group of Ukrainian Navy vessels approaches Russian border; Russian border guard ship 302 tells them they have to get permission from Kerch port administration 48, 24, and 4 hours before crossing the Kerch Strait; Ukrainian Navy vessels answer they don’t plan to cross Kerch Strait.

The Ukrainian Navy vessels don’t have to get permission to cross the Kerch Strait. The 302 ship is using provisions of Russia’s 2015 “#313 order of the Ministry of Transport of Russia.” It is not applicable to Ukraine, which it has freedom of navigation in the Kerch Strait and Azov Sea, according to the Ukraine-Russia Treaty on collaboration in using the Azov Sea and Kerch Strait Russia and Ukraine signed in 2003. This Treaty says that the waters of the Kerch Strait and the Azov Sea are the internal waters of Ukraine and Russia. Russia violated the Ukrainian ships’ freedom of navigation.

21:23: border guard ship 302 tells the group of Ukrainian vessels that Russia’s territorial waters are closed on the approach to the Kerch Strait. A group of Ukrainian Navy ships maneuvers 6-7 km away from the state Russian border on the traverse of the Kerch Strait.

Why did Russia tell the Ukrainian ships that the territorial waters on the approach to Kerch are closed if one hour ago it was telling them they need to submit a permit? Did the decision to close the strait come during this hour? This contradicts maritime law; such suspensions take effect only after being duly published. However, According to the Ukrainian version of events, the information on the zone being closed was not confirmed by the international marine center in Spain. Russia violated the Ukrainian ships’ freedom of navigation.

November 25, 1:05: border ship Izumrud discovers Ukrainian cutters Berdiansk and Nikopol at 44°50’N 36°29’E. This is marked “1” on the map.

02.45: Berdiansk and Nikopol join Yany Kapu and the support ship; they are refueled until 4:30. The FSB notice says nothing of the Ukrainian ships obtaining instructions from the Kerch controller to enter the waiting zone near Kerch, as Ukraine claims they did.

04:35: Berdiansk reports to technical observation point at cape Takil about planned passage of Berdiansk, Yany Kapu, and Nikopol through the Kerch Strait to the port of Berdiansk at 6:00.

4:45: border guard ship 302 tells Berdiansk that passage through the territorial waters of the Russian Federation is temporarily suspended, “as you have been informed,” recommends Ukrainian ships not to pass through the “state border” of the Russian Federation until “restrictions are lifted and “mandatory regulations are fulfilled in the Kerch seaport.”

Once again, Russia violated the Ukrainian ships’ freedom of navigation. First, there are no territorial waters or state borders of the Russian Federation when it comes to the Kerch Strait; waters there are the internal waters of both Russia and Ukraine, according to the joint 2003 Treaty. Second, Russia cannot arbitrarily suspend passage through its waters without publishing such decisions aforehand, which it didn’t do.

Read more in the section “Can Russia close down the Kerch Strait?”: Russian attack on Ukrainian ships: who has a right to do what in the Azov Sea

4:50: Berdiansk answers that the Ukrainian ships have the right to free navigation according to the 2003 Treaty. Which is factually correct.

5:30: citing the #313 order of the Ministry of Transport of Russia, the border guard ship 302 tells Berdiansk that the Ukrainian ships need to apply to the captain of the Kerch port for a permit to cross the Kerch Strait, filing it 48 and 24 hours prior to passage, and receiving a confirmation in 4 hours. As the Ukrainian side has not done this, they are prohibited from going there.

If the passage was suspended, why is Ukraine being requested to apply for a permit? It appears Russia is grabbing at straws to find a reason to ban Ukraine entry. Furthermore, in stating the 48-24-4 hours requirement, once again Russia trumped an international agreement to which it is a signatory, the 2003 Ukraine-Russia Treaty, and violated the Ukrainian ships’ freedom of navigation.

6:10: At 44°52’N, 36°31’E the Ukrainian Navy crossed “the line of the state border of the Russian Federation, proceeding to the Kerch Strait (in violation of paragraph 3 of Article 25 of the 1982 UN Convention on Maritime Law, paragraph 2 of Art. 12 of the Russian 1998 Law #155-FZ)”

The cited UN Convention states that “The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.”

According to #155-FZ, the suspension has to be published in “Notices for Mariners.” No such suspension was published (more here). Moreove, no such lawful suspension was cited by the Russian side in previous conversations.

Moreover, Ukraine has a double right to enter Russian territorial waters: under the UN Convention, all states have the right to innocent passage through territorial waters, and especially so to international straits, which states are not allowed to block; under the 2003 Treaty, the waters of the Azov Sea and Kerch Strait are Ukrainian internal waters and Ukraine has a right to use them freely as it wants.
In arbitrarily prohibiting passage to Ukrainian ships, Russia trumped the UN Convention on Maritime Law, its own law #155-FZ, and the bilateral Ukrainian-Russian Treaty of 2003.
06:20: Russian border ships Don and Izumrud “took measures to prevent the passage of the ships of the Ukrainian Navy through the Kerch-Yenikalsky channel: called the Ukrainian ships by radio, demanded to immediately leave the territorial waters of the Russian Federation (in accordance with Art. 30 of the UN Convention).” Ukrainian Navy ignores requests.

Art.30 states: “If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any
request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.”

As we have seen above, the Ukrainian ships were complying with all Russian laws. But that’s actually irrelevant: under the 2003 Treaty, the waters of the Kerch Strait are Ukraine’s internal waters. Russia continues trumping its international agreements.

7:35: Ukrainian Navy Ships were brought to combat readiness: artillery barrels were raised at 45 degrees and directed towards Russian boats.

This we cannot verify or disprove. However, it’s worth noting that according to an intercepted conversation of the Russian border guards proving that the Russian military leadership had ordered the attack, they rammed the Ukrainian ships at 6:35 and 6:44 EET, which constitutes an act of aggression. If the artillery barrels were indeed raised, which needs to be proven, could it have been a reaction to the aggressive ramming? However, the video of the Ukrainian ships in the Kerch strait a bit later that day published by the FSB shows that their artillery barrels were not raised.

9:35: At 46°09’N, 36°33’E, the Ukrainian Navy reports to their HQ in Ochakiv that they are caught by Russian border guards and propose that the cutters break away, leaving the tug behind.

That point (3 on the map above) is located in the Azov Sea. Must we believe that the Ukrainian boats were teleported though the Kerch Strait? The FSB makes elementary geographic mistakes in their publications.

9:35 to 17:30: in the result of the maneuvering of the Russian border ships, the Ukrainian ships were blocked in the vicinity of anchorage #471

Anchorage #471 is point is 4 on the map above. This position corresponds to that given by the Ukrainian Navy as the place where they stood, waiting for confirmation from the Kerch traffic controller to pass under the Kerch Bridge.

According to Navy Commander Ihor Voronchenko, despite the 2003 Treaty allowing Russian and Ukrainian military and trade ships to freely pass through the Kerch Strait, the Ukrainian side decided for the sake of preventing Russian provocations to give warning that they will be passing through the 12-mile zone, and ask for an anchorage place, where they awaited their turn to pass under the bridge. It was then when the Ukrainian ships observed the Kerch strait being blocked by a cargo ship, with Russian vessels, however, being allowed to pass.

It’s unclear what the Russian group was pursuing by “blocking” the ships, in their own words, at the anchorage point for over 8 hours. If in contradiction to all existing treaties and laws, they wanted the Ukrainian ships out of the internal waters of the Kerch Strait, why block them in the strait and not escort out of Russia’s “territorial waters,” whatever they may be? If they wanted to arrest the ships, fearing a provocation and alleged saboteurs planning to blow up the bridge, why didn’t they do it then? There were more than enough Russian military vehicles around, including combat helicopters and fighter jets around.

It makes much more sense to assume that the Ukrainian ships were merely waiting, in accordance with instructions received from Kerch traffic controller.
The FSB’s story at this point contradicts itself, apart from testifying to Russia’s violation of international law, while the Ukrainian story makes sense.

17:30: the Ukrainian group, “to break from the blockade,” started to move in the direction of 200 degrees towards the exit from the “territorial waters of the Russian Federation”: Berdiansk and Nikopol at 20 knots, Yany Kapu at 8 knots. Don and Izumrud started chasing them and requiring them to stop (in accordance with Art.30 of the 1982 UN Convention, p2 of Art. 12 of law #155-FZ.

Art.30 of the UN Constitution says a state may require a warship to leave. The Ukrainian ships were already leaving, why chase them? The cited article of law #155 says that a state may limit passage through its territorial waters if the suspensions are published beforehand in the “Notices for Mariners.” It is absolutely irrelevant to the situation. At this point, the FSB is not even trying to be convincing.

According to Ukrainian Navy Commander Ihor Voronenko, at that time the tugboat was without engines after being rammed by the Russian boats, and the Ukrainian group was pursued by 10 ships of different classes: two ships of the Black Sea fleet, two cutters of the Black Sea fleet, and the rest were cutters of the FSB. Voronenko states that the Ukrainian ships tried to avoid conflict, which makes sense given that they were outnumbered by five times.

18:00-19:40: Don and Izumrud continue chasing the Ukrainian group, calling for communication, using lights, sounds, and pyrotechnics. Ukraine ignores, “in violation of p2 of Art 12 of law #155-FZ, 30 of the Russian 1993 Law #4730-1.”

The cited part of law #155, as stated above, is absolutely irrelevant to the pursuit of Ukrainian ships; it appears to have been cited randomly. Law #4730 allows arresting violators of the border regime. However, as we’ve seen above, Ukraine had not violated a single provision, and had, in fact, by standing in line at Anchorage #471 gone out of its way to avoid collisions with the Russians. But even if we play along with the FSB’s “border violation” story, why in the world had they not arrested the ships when they were standing eight hours at that very anchorage point?

19:42: Izumrud warns the Ukrainian ships that it will make warning shots if they don’t stop, citing Art.30 of law #4730-1, pp9,11 of the 2010 Russian government decree #80 “On Approval of the Rules for the Use of Weapons and Military Equipment while Protecting the State Border of the Russian Federation and the Exclusive Economic Zone and the continental shelf of the Russian Federation,” “due to the border guard ships exhausting all measures needed to prevent violations of Russian legislation by the boats of the Ukrainian Navy.”

What violations needed to be prevented? All the violations had already been made, by the Russian border guard ships violating their domistic and international laws to arbitrarily prevent the Ukrainian ships from crossing the strait to their base. The Ukrainian ships were leaving in the direction of the Russian border; why stop them now? The FSB were finding random reasons to justify the fire on the Ukrainian ships.
19:45: Izumrud fires warning shots at the Ukrainian group at 44°53’47N, 36°25’76E. The group does not respond to requirements to stop, does not contact the communication, continues moving “towards the line of the state border of the Russian Federation.”

Point 5 on the map. Wait, I thought the Ukrainian group was leaving the Kerch Strait, out of the territorial waters of occupied Crimea? And now it’s heading back towards it? This is nonsensical; weapons are allowed by decree #80 to prevent violations; at that point, apart from the fact that no violations were made by the Ukrainian ships, they were leaving altogether.

The statement about the Ukrainian group not responsing is a lie. Intercepted communication between Berdiansk and Don show that Berdiansk attempted to convince the Russian border guards that they have no intention of using force, are acting in accordance to the 2003 Treaty between Ukraine and Russia, and are leaving to the Black Sea.

19:50: Izumrud warns Berdiansk that if it won’t stop, lethal force will be used, according to pp24,25 of the 2010 Russian state decree #80 “On Approval of the Rules for the Use of Weapons and Military Equipment while Protecting the State Border of the Russian Federation and the Exclusive Economic Zone and the continental shelf of the Russian Federation.” Berdiansk ignores requests to stop.

The Russian state decree #80 state that weapons can be used against vessels violating rules of crossing the Russian state border and rules of conduct established by Russian law and international agreements. But pp.24,25 also state that the decision to use weapons is made either by the head of the border service or by the border ships themselves, “when delay in the use of weapons creates an immediate danger to their life and health, the life and health of other citizens, the danger of damage or destruction to border ships (aircraft), other ships, aircraft and may entail other serious consequences (traffic accidents, disasters, sabotage, and other public disasters).”
The Ukrainian ships were not posing any immediate danger to anybody. They were leaving the waters of occupied Crimea. Which means that the border guard ships had either violated the decree #80 cited by the FSB, or had orders to fire from the HQ.

Notably, the cited decree #80 differs from the UN Convention, Art.30 of which makes no mention of weapons, telling only about requests for warships to leave the territorial sea. Also notably, when firing on Ukrainian warships, Russia contradicted its own 1998 law #155-FZ “On the internal seas, territorial waters, and contiguous zone of the Russian Federation,” article 19 of which states:

  1. that Russian authorities may require a foreign warship to immediately leave if it doesn’t comply with Russian laws;
  2. that during peacetime, all disputes between Russian authorities and a foreign warship should be resolved by diplomatic means;
  3. that attacks on warships can be carried out only if the warship attacks first.

Ukraine had not attacked first. This means that Russia had violated another one of its laws.

19:55: Izumrud uses lethal force against Berdiansk at 44°51’3N, 36°23’4E, “in the territorial waters.”

Point 6 on the map. It’s outside of the territorial waters of both occupied Crimea and mainland Russia.

Point B, where Berdiansk sent its distress call, is nearly at the same location, outside of the territorial waters of occupied Crimea.

Belarusian journalist Franak Viačorka noted in twitter that the artillery marks on the ship Berdiansk show that Russians were aiming at the crew and not the engines. At least three sailors were wounded from the attack.

Summing up,

Russia broke a UN Convention, bilateral Ukraine-Russia Treaty, and several of its own laws when it denied the Ukrainian ships passage to the Azov Strait and when it opened fire on them;

The FSB proved that Russia’s use of fire against the Ukrainian ships was unprovoked and without legal reason;

The FSB admitted that Russia fired on Ukrainian ships outside of the territorial waters of occupied Crimea and made crude geographical mistakes;

The FSB contradicted its own story. Why block the Ukrainian ships near the Crimean bridge for eight hours if you suspect an act of sabotage, and if you were pursuing what you consider to be violators of the border regime? Why attack them when they are leaving into the open sea, away from the bridge?

The FSB story features lies (“Berdiansk was not answering calls of the Russian border guards”) and omits the episode when Russian border ships rammed the Ukrainian tugboat, which led to its loss of engines;

Meanwhile, open-source material has proved no inconsistency in the Ukrainian version of events.

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