PREFACE/ISSUE
What is Nordstream affair legally?
The use of force by a state is generally only permissible in self-defense or with the authorization of the UN Security Council.
I. DEFINING THE CASE
IF a state actor attacks secretly pipelines in Baltic Sea which are in ownership of two companies registered in Switzerland (Nordstream AG and Nordstream 2 AG) while the Nordstream AG shareholder structure is 51% Gazprom which itself is some 50%+ of shares owned by Russian state, what is it? Was it attack against Russia, Gazprom, Shareholders, EU citizens?
Other shareholders of Nordstream 1 are German company Wintershall Dea AG, PEG Infrastruktur AG (E. ON), N.V. Nederlandse Gasunie and ENGIE jointly owning 49%. The Nordstream 2 AG is fully owned by Gazprom, those same other shareholder companies provided only loans in size of 49%.
There are several options for definition what the act is:
Sabotage
Sabotage is generally defined as the intentional damaging or destroying of property for political or military purposes, and could be considered an act of terrorism if it causes harm to civilians or non-combatants.
Act of terrorism
The state terrorism generally refers to acts committed by a state or its agents that are intended to intimidate or coerce a population or government, and that violate international law or fundamental human rights.
Act of aggression
If the attack was carried out by a state actor, it could be considered an Act of aggression and a breach of the United Nations Charter, specifically Article 2(4), which prohibits the use of force by one state against another.
War crime
Additionally, if the attack targeted civilian infrastructure, it could be considered a War crime under the Geneva Conventions.
An armed attack
An armed attack, n the other hand, generally involves the use of force by one state against another and is typically considered a violation of international law. However, the specific circumstances of the attack would need to be evaluated to determine if it meets the threshold for an armed attack under international law.
How so that some politicians defined that it was a sabotage" so early already on 28th of Septemebr?
They must have known who was behind and why it happened!
-> This aspect is researched in this post: Who said it is a "Sabotage" first?
II. LEGAL IMPLICATIONS
Determining the legal implications of an attack on the Nordstream pipelines would be a complex and fact-specific analysis, and would depend on a variety of factors including the location of the attack, the motives and intentions of the attackers, and the impact of the attack on the companies and countries involved:
1. If it is a Sabotage, then against whom?
- If the attack was carried out with the intent to disrupt the operation of the Nordstream pipelines and to cause damage to the companies and their assets, it could potentially be considered an act of sabotage against them under the laws of the countries involved.
- If the attack targeted the Swiss companies Nordstream AG and Nordstream 2 AG specifically, and the intent was to harm these companies or disrupt their operations, then it could potentially be considered an act of sabotage against Switzerland. However, this would depend on the specific laws of Switzerland and the circumstances of the attack.
- If the attack on the Nordstream pipelines occurred with the intent to harm or disrupt the operations of Gazprom, the Russian state-owned company that is the majority shareholder of Nordstream AG and the sole owner of Nordstream 2 AG, it could potentially be considered an act of sabotage against Russia. This would depend on the specific laws of Russia and the circumstances of the attack.
- If the attack targeted the Nordstream pipelines and the intent was to harm or disrupt the operations of the companies involved, including Gazprom as the majority shareholder of Nordstream AG and the sole owner of Nordstream 2 AG, as well as the other shareholder companies such as Wintershall Dea AG, PEG Infrastruktur AG (E. ON), N.V. Nederlandse Gasunie, and ENGIE, then it could potentially be considered an act of sabotage against all of the companies and countries involved. Again, this would depend on the specific laws of the countries involved and the circumstances of the attack.
2. If the motive, intentions and execution are aimed against Russia then...
If the attack on the Nordstream pipelines were carried out by another state or group of states, and constituted a use of armed force in violation of the UN Charter, it could potentially be considered an act of aggression against Russia.
3. If the motive, intentions and execution are aimed against EU interests for example to improve own political, security or economical situation then...
The determination of whether an attack on the Nordstream pipelines would constitute a war crime against EU citizens would depend on the specific circumstances of the attack and the applicable legal framework.
4. In General
Under international humanitarian law, attacks on civilian objects, such as pipelines, are prohibited unless the objects make an effective contribution to military action and their destruction offers a definite military advantage in the circumstances at the time.
Moreover, even if the pipelines are considered military objectives, any attack on them must be conducted in a way that distinguishes between military objectives and civilian objects, and must not cause excessive harm to civilians or civilian objects.
If the attack on the Nordstream pipelines were carried out in violation of these rules and resulted in harm to civilians, it could potentially be considered a war crime under international law.
However, it is important to note that the determination of whether an act constitutes a war crime is a matter for a court of law to decide based on the specific facts and circumstances of the case.
[M: Hence my original investigation Who said it is a "Sabotage" first? - How is it possible that Leyen and Michel were able to determine that it was a sabotage without knowing who has done it and what were motives???]
The motive or purpose of the attack, such as whether the United Kingdom (in this hyphotesis considered the prime suspect) was seeking to enrich itself or undermine the energy security of the EU, would not be a decisive factor in determining whether the attack constituted a war crime.
However, it could be a relevant factor in assessing the nature and extent of the harm caused by the attack and the legal implications for the United Kingdom and its officials or agents who may have been involved in the attack.
If an attack on the Nordstream pipelines were to occur and it caused harm to EU citizens, several factors would be considered to determine whether it constituted a war crime. These factors would include:
- Intentionality: Was the attack deliberate, and was the intention to cause harm to civilians or civilian objects?
- Proportionality: Was the attack proportional to the military advantage sought, and was it conducted in a way that minimized harm to civilians and civilian objects?
- Distinction: Were measures taken to distinguish between military objectives and civilian objects, and was the attack directed only at legitimate military targets?
- Precautions: Were all feasible precautions taken to avoid or minimize harm to civilians and civilian objects, including by giving effective advance warning of attacks that may affect them?
- Military necessity: Was the attack necessary to achieve a legitimate military objective, and was it conducted in a way that respected the principles of humanity and the dictates of public conscience?
- Accountability: Were those responsible for planning and executing the attack held accountable for any violations of international law that may have occurred?
These factors are outlined in international humanitarian law, including the Geneva Conventions and customary international law, and are used to assess whether an attack violates the laws of war and constitutes a war crime. Ultimately, the determination of whether an attack on the Nordstream pipelines would constitute a war crime against EU citizens would depend on the specific facts and circumstances of the attack, and would need to be made on a case-by-case basis.
III. NSP2AG
The Nordstream pipelines is European Key Energy Infrastructure. The potential severity of the consequences of such an act would likely be a relevant factor in any legal analysis of whether the act constitutes state terrorism, sabotage or other illegal conduct.
12 Oct 2022 - Russia claims attack on NordStream is "act of state terrorism" .
"The recent terrorist attack on the Nord Stream 1 and 2 natural gas pipelines was aimed at undermining the energy security of the entire continent", Russian President Vladimir Putin said on Wednesday.
V. ACCOUNTABILITY
12 Oct 2022 - Putin says goal behind Nord Stream attack was to undermine continent’s energy security
Putin described the attack on the Nord Streams as "a most dangerous precedent." "It shows that any vital transport, energy or utility infrastructure is now in jeopardy regardless of where it is located or who operates it or whether those are subsea pipelines or ground-based ones."
[M: Was a similar "can of worms" or a new precedent established like in case of Kosovo?]
12 Oct 2022 - Russia claims attack on NordStream is "act of state terrorism" .
The recent terrorist attack on the Nord Stream 1 and 2 natural gas pipelines was aimed at undermining the energy security of the entire continent, Russian President Vladimir Putin said on Wednesday.
16 Oct 2022 - Sahra Wagenknecht: Government refuses information on pipeline attacks
The member of the Bundestag had asked the responsible ministries for information before and after the explosions - in vain."For reasons of public interest" no further information is given
The federal government had "come to the conclusion, after careful consideration, that further information for reasons of state welfare - not even in a classified form - can not be given."
The reason for this is the "third-party rule" for international cooperation between the secret services. According to this, the international exchange of knowledge is subject to particularly strict confidentiality requirements. "The requested information thus affects secrecy interests that require protection in such a way that the public interest outweighs the parliamentary right to information and the right of the members of parliament to ask questions must, exceptionally, take second place to the federal government's interest in secrecy."
For this reason, the federal government does not answer Wagenknecht's question "which NATO ships and troops" have been in the areas where the damage occurred since gas supplies through Nord Stream 1 were suspended, and which Russian ships and troops in that area period were sighted. This answer "would also include the disclosure of information that particularly affects the welfare of the state," writes the Foreign Office. Therefore, a classification and filing of the requested information is out of the question, "because even the slight risk of disclosure cannot be accepted".
18 Oct 2022 - Are sabotage of submarine pipelines an ‘armed attack’ triggering a right to self-defence?
A main difficulty in situations such as the damage on the NordStream pipelines, is that the State invoking the right to self-defence bears the burden of proving the facts showing the existence of such an attack against it by a particular State (International Court of Justice (‘ICJ’), Oil Platforms (2003), [51]). In this connection, generic announcements that an attack or other incident will take place prior to the explosions are insufficient evidence to support that any subsequent attack is the work of the State making such public statements (Oil Platforms, [60]).
An ‘Armed Attack’ against Whom? According to the ICJ in Military and Paramilitary Activities in and Against Nicaragua (1986) [191], as well as in Oil Platforms [51], an ‘armed attack’ involves ‘the most grave forms of the use of force’. ‘Other less grave forms’ of use of force do not meet this threshold. In Nicaragua, the Court had considered the distinction between an ‘armed attack’ and mere ‘frontier incidents’, and relied on the following criteria to draw this distinction: the ‘scale and effects’ of the attack [195], and the ‘circumstances and motivations’ of the attack [231]. The ‘scale and effects’ criterion is particularly relevant for assessing whether blowing-up major transboundary pipelines may constitute an ‘armed attack’.
However, whether attacks on pipelines on the continental shelf and the EEZ as well as on the high seas, would constitute ‘the most grave form’ of use of force qualifying as an ‘armed attack’ against a particular State (or States) is not straightforward.Separately, although pipelines do not have flags, like vessels, they are owned and operated by companies incorporated in some State jurisdiction.The question arises whether States in whose jurisdiction the company that owns and/operates the pipeline are incorporated may be the victim of an ‘armed attack’ against the pipeline, giving rise to its right to self-defence. In the case of NordStream, this would be Switzerland.
[M: The attacker KNEW very well the legal difference between the attack near the the CS and EEZ. There are important points WHY it was done there. One can find hint of who could be involved and why.]
-> GERMANY
21 May 2022 - The investigators from the German Federal Criminal Police, BKA:
-> SWEDEN
SUMMARY OF INVESTIGATIONS:
- state actor involved, clear picture how it was carried out- significant resources = unique/expensive tools involved- significant knowledge = amateurs ruled out, site most likely checked by some special boats mapping the future bombing place- anti-constitutional sabotage (possible co-conspirators in GER)- serious violent attack on energy supply which could detriorate internal and external security of Germany = self explanatory, opens doors for non "sabotage" definitions- RU surface boats approach ruled out- Likely other states surface approach also ruled out, all ships months back checked, there was no leak about any other boat so seems no boat involved.- Sumbarine, mini-submarine, sub-drones are investigated now- "...very few companies or groups..." = hints to a sumbarine maker
[M: One suspected UK company comes to my mind msubs.com, unverified info that UK Def Min Ben Wallace is in board]
VI. THE ROLE OF 2017´s SUNAK PAPER
Whether from terrorist activity or an increasingly bellicose Russian naval presence, the threat of these vulnerabilities being exploited is growing. A successful attack would deal a crippling blow to Britain’s security and prosperity. The threat is nothing short of existential.[M: The same could be said about other countries including Russia]
[M: How interesting that the key UK official representativeis so well versed in legal aspects of attackson the key undersea infrastructure.][M: Interesting points - location, choke points, ease of use]Admiral James Stavridis, US Navy (Ret) foreword[M: US, UK are aware that the aggressor enjoys plausible deniability]Cables Have Inadequate Protection in International Law[M: Internet cables and gas pipelines are both classified
as "critical infrastructure"][M: Internet cables and gas pipelines are both classified
"...Even accidental damage far from home can have significant consequences..."
as "critical infrastructure"]
VII. SWEDEN ISSUES UPDATE OF PROBE
6 Oct 2022 - Strong suspicion of gross sabotage in the Baltic Sea
10 April 2022 - Sweden Issues Nord Stream Probe Update'
The Swedish Prosecution Authority said in a press release Thursday “analyses from objects seized during the crime scene investigations show traces of explosives on several of the foreign objects which were examined”. It called the September 2022 incidents “detonations” and said both pipelines one and two of the Baltic Sea gas conveyor mainly owned by Russia had taken a hit.
[M: Note avoidance of framing of the specification as "sabotage/terrorist act" but as a "detonation"]
[M: Note the "mainly owned by Russia". This hints to who is considered here the victim. A Russian state, not the SUI incorporated 2 companies with int. shareholders.]
Mats Ljungqvist, who is overseeing the probe being conducted by the Swedish Security Service as public prosecutor of the National Security Unit, said in the report, “regarding the incident, there is no doubt that this is gross sabotage in international waters directed towards infrastructure, whose owner is not connected to Sweden”.
Russian state-owned Gazprom owns 51 percent of the two pipelines stretching a total of 760.56 miles (1,224 kilometers) between exporter Russia and destination Germany. Germany’s PEGI/E.ON and Wintershall Dea AG hold a 15.5-percent stake each and the Netherlands’ N.V. Nederlandse Gasunie and France’s ENGIE have nine percent each, according to the Switzerland-based owner. The Nord Stream twin pipeline systems have, according to the Nord Stream AG website, a combined annual capacity of about 1.94 trillion cubic feet (55 billion cubic meters) of gas. That capacity is, as stated on the website, “enough to satisfy the energy demand of more than 26 million European households”.
“We got a pretty clear picture at the scene of the crime of who carried it out”, Ljungqvist was quoted as saying in the TASS report Thursday. “It cannot be ruled out that there are some private individuals who may have been the perpetrators. Still, our main lead is, of course, that a government is behind it - directly or indirectly”.
SUMMARY / CONCLUSION
- It is impossible that EU leaders could distinguish that the affair was a "sabotage" without knowing circumstances, intentions, motives and legal analysis of the case.
- Other part of my research hints that a warning was given just several days before the attack to key actors and that the explosives were already planted. This could complicate the legal and political implications of the incident.
- While the EU/NATO heads may not have had enough time to diffuse the explosives, or the situation, they could potentially be criticized or be even legally liable for not taking stronger measures to prevent the attack from happening.
- Lastly, the ongoing Ukraine-Russia conflict and the political dynamics between the involved parties could also play a role in how the incident is analysed and resolved.
Zakharova, Russia, Ukraine
What Qualifies as Terrorism?
089 - IN-DEPTH ANALYSIS - Security threats to undersea communications cables and infrastructure – consequences for the EU (Sunak´s paper)
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