Sabotage in war is nothing new, but if it occurs on the territory of a purportedly neutral NATO member supplying aid to Ukraine to fight against Russia, conflict escalation is possible.
A recent fire at a drone factory in Latvia supplying Ukraine with military assistance is an example of such potential sabotage. The covert nature of sabotage makes state attribution difficult. If the sabotage occurs on NATO territory, both the belligerent and victim states have reasons to avoid attribution. If not, NATO Article V might be invoked by the aggrieved state though this does not mean war, only consultation amongst the NATO allies. The cause of the drone factory fire is unknown, but reports indicate that it was not arson. If sabotage is confirmed and attributed to a Russian state actor, the Russia-Ukraine conflict could expand to include several NATO nations.
The United States experienced sabotage on its territory during the First World War. In 1916, the United States was a neutral power, but was selling munitions almost exclusively to the Western Allies. On July 30, 1916, a massive explosion occurred at Black Tom Island, New Jersey detonating tons of munitions stored in rail cars. The concussive force shattered windows in Manhattan and Brooklyn. Sabotage by German agents was suspected, but this was not confirmed until nearly two decades after the war ended. If this had been made public, the United States may have been forced to enter the First World War as a belligerent contrary to President Wilson’s re-election campaign promise to stay out of the war.
Covert Action
Ukraine has engaged in a series of acts of sabotage and assassinations of “collaborators and occupying officials” on territory occupied by and within Russia. Some of these acts have been committed by Ukrainian patriots who believe they are waging a war of resistance to Russian occupation. These private individuals may not, however, be affiliated with the state in any way.
Consider the murder of Daria Dugina on August 20, 2022 by a car bomb in the Moscow oblast. The Russian Federal Security Service (FSB) investigation named a Ukrainian woman as a suspect. The FSB allegedly traced the movements of this woman from Ukraine to Moscow where she rented an apartment in Daria’s building staying there a month. The FSB noted the woman was last known to be in Estonia. Attempts to extradite her failed, and will likely not succeed since Russia and Estonia have been expelling each other’s ambassadors and diplomatic staff. The criminal case against the woman may have merit, but that does not necessarily make Ukraine responsible for the murder. To attribute the murder to Ukraine, Russia would have to show that she was acting on behalf of the government. It has been reported that U.S. officials believe she was, and that the target of the murder could have been Daria, a media figure in her own right, or her father, Alexander Dugin, sometimes labelled “Putin’s Brain” and the propaganda architect of Russia’s invasion of Ukraine.
State Responsibility
The Articles on State Responsibility (ARS) provides a framework to assess when a state may be held liable for its wrongful acts. The ARS were drafted by the United Nations International Law Commission and were recognized by the United Nations in December 2001 with United Nations General Assembly Resolution (UNGAR) 56/83.
ARS, Article 2 defines a wrongful act of a State as “an action or omission attributable to the State under international law” that “constitutes a breach of an international obligation of the State.” Sabotage would be considered an act of aggression (See UNGAR 3314(XXIX) defining aggression) in violation of the prohibition against the threat or use of force against states (UN Charter Article 2(4).
A saboteur’s action can be attributed to a state under the ARS in many ways. ARS, Article 4 presumes that any action by a State organ, a portion of the State’s government, is a state action. An act by a person or entity that exercises government authority (ARS, Article 5) is also considered a state action even when that action is not authorized or even prohibited by the state (ARS, Article 7). This last element is important since it prevents a state from avoiding responsibility for a wrongful act by its agents claiming they acted beyond or without authority (See Comments to ARS, Article 7 ¶ 3). A state may additionally be held responsible for the acts of a private individual when it subsequently “acknowledges and adopts the conduct in question as its own (ARS, Article 11).”
Alexander Dugin was mocked on social media for his understandable emotional reaction at seeing his daughter murdered. Could state responsibility be attached by a combination of Article 7 and Article 11 if a Ukrainian government official was amongst those internet trolls praising her death? Of course, Ukraine would disavow any such statements by a government official as Ukraine did regarding responsibility for the murder of Daria Dugina. Mr. Dugin got the last word with this statement in an interview, “They may have wanted to kill my daughter Dasha, but they made her immortal.”
Effective Control
There is a high bar of proof needed to show state responsibility for saboteurs who may be acting as private individuals. The State must be shown to exercise effective control over the individual (ARS, Article 8). This standard was established by the International Court of Justice in the Paramilitary Activities (¶115) case and most recently in the Bosnian Genocide (¶396-406) case. For example, the State must be shown to order the saboteur to go to a certain place, place a bomb in a certain way, and return to report on the mission’s results. Oddly, a State may supply the saboteur with materials without incurring state responsibility (See Paramilitary Activities case ¶228).
Remedies
If effective control can be proved, and assuming the NATO victim state does not invoke Article V, the ASR provides various remedies. The injured state can seek reparations (ARS, Article 31) which include restitution, compensation, and satisfaction or a combination of the three (ARS, Article 34). Restitution in the case of the drone factory would be its repair or replacement if possible and not overburdensome (ARS, Article 35). Compensation covers financial loss from the wrongful act (ARS, Article 36). Finally, satisfaction refers to the state acknowledging and apologizing for its wrongful act (ARS Article 37).
Conclusion
The cause of the drone factory fire remains unknown. If it were sabotage and state responsibility could be established, Latvia and NATO would have an important decision to make on how to respond. The ARS provides a convenient framework, but the reality of entering the Russia-Ukraine conflict is sobering.
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Lt. Col. Brent Stricker, U.S. Marine Corps, serves as the Director for Expeditionary Operations and as a military professor of international law at the Stockton Center for International Law at the U.S. Naval War College. The views presented are those of the author and do not necessarily reflect the policy or position of the U.S. Marine Corps, the U.S. Navy, the Naval War College, or the Department of Defense.
