Concealment and deception are a common temptation for warships. Despite possibilities existing in times of war as in times of peace, the legal framework is clear about the notion of warship and room of maneuver offered to the navies. However, some States try to play with the rules, especially due to new technologies (spoofing AIS; nameless, flagless and numberless warships; use of Unmanned aerial vehicles, etc.).
In an era where major maritime powers are developing wide-area oceanic surveillance and reconnaissance networks, it seems normal that navies try to develop strategical and tactical maritime deception and concealment doctrines both for peace and for wartime. In case of armed conflict at sea, surprise would be a decisive factor in combat. Some strategic competitors could have the temptation to develop concealment tactics not necessarily in preparation of the worst-case scenario, but also in order to conduct hybrid warfare actions (below the conflictuality threshold).
Even if this is not new, several attempts have been observed in the last few years to develop concealment and deception tactics, as a protection from observation or surveillance, or in order to conduct hybrid operations. The issue is whether or not these endeavors are lawful.
Notion of warship
In times of war and in times of peace, the legal definition of a warship is important. Depending on the qualification used, ships could in one hand benefit of certain immunities and exemptions, but in the other hand, be targeted by enemy fleets.
Since the signature of the 1907 Hague convention relating to the Conversion of Merchant Ships into Warships, it appears that warships could be defined by four criteria:
- the ship is placed under the direct authority, immediate control and responsibility of the Power whose flag she flies;
- she bears the external marks which associates the warship with her nationality;
- the commander must be at the service of the State and duly commissioned by the competent authority (the name figure on the list of the officers of the fighting fleet);
- and the crew must be subject to military discipline.
The 1958 Geneva convention on the High Seas confirmed this definition as the 1982 United Nations Convention on the law of the sea (UNCLOS). The term warship means :
- a ship belonging to the armed forces of a State;
- bearing the external marks distinguishing such ships of its nationality;
- under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent;
- and manned by a crew which is under regular armed forces discipline.
Painting the hull numbers and names of warships
One on the latest examples of the attempt to be more discreet can be observed in the Russian navy since March 2022 as its begun to paint out the hull numbers and names of its warships. It removes the vessels’ flags, leaving no markings of nationality. The hull remains grey, so these vessels still seem to be warships. This is common practice for the Russian navy in the Black sea, when they wants to deny the loss of a ship if the Ukrainian armed forces sink one of these nameless, numberless and flagless vessels. This stratagem has been used by the Russian navy when the Ukrainian armed forces claimed the burning of the Vasiliy Bykov in March 2022.
This strategy could appear interesting in times of peace and in times of war. However, as stated above, a warship must be clearly identified. This behavior is clearly unlawful as a warship has to bear the external marks associated to its nationality according to the article 29 of UNCLOS. To paint over the hull numbers and names of warships is not a problem per se if there is no doubt about the nationality.
During wartime, it is commonly accepted that a warship can use a false flag, as it was the case in March 1942 during the Chariot operation off of St Nazaire (France). The HMS Campeltown used the German flag during the deception operation to approach the harbor and when she was sufficiently close to the port, the German flag was lowered and the Union Jack was raised. Therefore, if a Russian warship without markings of its nationality conducts an attack against Ukrainian objectives, it should be considered as an act of perfidy (unlawful and considered as a war crime) and not as a ruse of war (as it was the case for the HMS Campeltown).
Confusion about the status of warships
Be defined as a warship offers the possibility to invoke sovereign immunities when another State or judicial system tries to seize it. The International tribunal of the law of the sea ruled in the Ara Libertad case, thanks to the article 29 of UNCLOS, that a Navy training vessel was to be considered as a warship if she met all the criteria of the definition. In the end, the Ghanaian judge charge of the case had not been entitled to seize the warship.
The Chinese People’s Liberation Army Navy has the tendency to use a stratagem of confusion regarding the status of certain ships. One of the most recent examples is the port visit of the Yuan Wang 5 in Sri Lanka in August 2022. The ship seems to belong to the Chinese navy fleet, and Chinese authorities are still struggling to make believe that the Yuan Wang 5 is not a warship (and more precisely a spy ship) but a research and survey vessel. The one is not inconsistent with the second.
Another source of confusion is the use of maritime militia: the People’s Armed Forces Maritime Militia, within the South China Sea’s contested waters. Chinese authorities support and train fishing vessels (sometimes called “little blue men”) in order to target anyone who challenges China’s claims, or who tries to seize territory in the South China Sea. These ships are part of the projection plan of China and are responsible for a number of incidents with fishermen, coast guards and ships of other countries. China maintains the confusion regarding the status of these ships.
Since 2021, China passed a cybersecurity and data privacy law that permits a huge number of Chinese vessels operating within the China Sea to disappear from global tracking systems and especially the automatic identification system (AIS – the global standard for tracking and identifying ships at sea). The AIS is mandatory for most ships due to the SOLAS (Safety of life at sea) Convention but it is permitted for States to exempt certain ships from carrying an AIS. If AIS is not mandatory for warships (they can use it for safety issues in specific areas), fishing vessels have more commonly used AIS. With this law, Chinese authorities increase risks for safe navigation and show an exponential interest for the use of AIS in order to conceal its military activities.
The use or the misuse of AIS
As mentioned above, warships do not have to use AIS (Rules 1, chapter V of the SOLAS Convention). However, it is commonly used for safety reasons within shallow waters, straits, traffic separation scheme, etc. Several navies have the capacity to spoof AIS information, indeed, it could be useful to undertake deception operations in wartimes, but it could also provoke safety and security issues.
Close to Russian waters, it has often been observed that the position of foreign warships have been spoofed in order to convince public opinion that a ship is breaching the right of innocent passage within the Russian territorial waters. This was the case with the HMS Defender in 2021 in Black sea off the Crimean coastline. Using the AIS spoofing could be interesting to conceal one’s position or scheme of maneuver, but there are several limits: in certain zones (territorial seas of another country, international straits for example), in case one is conducting an internationally recognized wrongful act.
Unmanned aerial vehicles (UAV)
As there is an increase of investments in order to equip warships with UAV, a new topic could occur during next years. UAV offer the possibility to conduct actions not immediately attributable to a navy: intelligence gathering, maneuvers hindering, etc. However, rules exist for these ever since the Cold war, especially for certain countries such as Russia. The USSR signed an agreement with the main maritime States concerning the Prevention of Incidents On and Over the High Seas (USA, France, Canada, etc.).
These agreements called INCSEA are still in force and engage Russia with these countries. According to the Chicago convention on civil aviation and to INCSEA, it is commonly accepted that an UAV is considered as an aircraft. The INCSEA details many rules, for example, related to the protection of ships engaged in launching or landing aircraft, as well as ships engaged in replenishment underway. The flight of an UAV in the vicinity of a ship conducting operations could easily be considered as an internationally recognized wrongful act engaging the State’s liability.
In the game of war States may play with many tools to get the upper hand. The existing law keeps the balance between what is necessary and what is not, both in time of peace and in time of war. There is enough leeway for States to conceive maneuvers of deception but also defined lines to preserve safe navigation for every ship. Nonetheless some countries keep on flirting with those, threatening global security.