The complicated legality of Russia crashing into a US drone over the Black Sea

Last week, a Russian Su-27 Flanker collided with an American MQ-9 Reaper drone over the Black Sea, forcing the drone to crash while raising a number of questions about NATO intelligence gathering near Ukraine and the chances of inciting a larger conflict.

As is often the case when it comes to tense interactions between Russian and American military forces, this incident has since been the target of both intentional disinformation campaigns and unintentional misinformation allowed by the nuanced complexity of international law. In other words, this seemingly straightforward interaction actually belies a complex web of both intentional actions and unintentional outcomes now viewed through the fun-house mirrored lenses of competing national narratives.

Crashing a fighter jet into a drone

According to official Pentagon statements, an unmanned and unarmed U.S. Air Force MQ-9 Reaper drone was flying over international waters on the black sea when it was intercepted by a pair of Russian Su-27 Flanker fighters at approximately 7:03 a.m. local time on March 14. The two Russian jets then proceeded to harass the drone for the better part of 30 minutes, crossing directly in front of the unarmed aircraft, dumping fuel on it, and generally flying too close to be considered safe or professional.

Based on the footage released by the Defense Department, it seems evident that the Russian aircraft were attempting to interfere with the function of the drone, and potentially even force it to crash, using both jetwash and fuel dumps. But then, at approximately 7:30 a.m., one such attempt came too close, with the Russian fighter colliding directly with the rear propeller of the MQ-9. In the footage, you can clearly see the fighter approaching while dumping fuel, then the camera feed is briefly interrupted as the two aircraft collide. Once the feed returns, you can clearly see the damaged rear propeller in the camera’s view.

“Several times before the collision, the Su-27s dumped fuel on, and flew in front of the MQ-9 in a reckless, environmentally unsound and unprofessional manner. This incident demonstrates a lack of competence in addition to being unsafe and unprofessional,” U.S. Air Force Gen. James B. Hecker, commander, U.S. Air Forces Europe and Air Forces Africa said on the 14th.

Of course, intercepts between Russian and NATO aircraft over the Black Sea (and countless other parts of the globe) are incredibly common. And to be honest, behavior that’s deemed unsafe or unprofessional out of Russian pilots is also fairly common. However, actually crashing into the aircraft they’re harassing is, obviously, far less common.

What does Russia say happened?

Russian Su-27 pilot (Courtesy of the Russian Ministry of Defence)

Despite the video evidence released by the U.S. government, Russia has its own take on what happened last Tuesday morning. According to the Russian Ministry of Defense, the American drone was flying near the Russian border and within an area that they have declared off-limits amid their ongoing invasion of Ukraine.

According to Russian officials, they dispatched two Su-27s to intercept the drone, but their fighters never collided with or interfered with the drone’s function at all. Instead, Russia claimed that “as a result of sharp maneuver, the U.S. drone went into uncontrollable flight with a loss of altitude and collided with water surface.”

Did the US really have the right to be operating over the Black Sea?

One of the most pervasive Russian-backed narratives to emerge following this incident is the idea that the United States had no right to be operating over the Black Sea in the first place, citing Russia’s claims that the region is off limits.

“As we see it, American aircraft have no business being near the Russian border,” Russian ambassador to the U.S., Anatoly Antonov, told reporters last week.

Let’s dive into this claim and see if we can substantiate it. According to the report, the shootdown took place approximately 75 miles southwest of the Crimean peninsula, which is a territory of Ukraine that Russia invaded and captured in 2014. Russia’s claim to Crimea is recognized internationally as unlawful, meaning the MQ-9 was, in terms of legal standing, flying near Ukrainian territory, rather than Russian.

It’s also worth noting that the Black Sea is bordered on three sides by NATO allies and partners, with a significantly smaller portion of its coastline considered Russian territory. As the United States maintains active security ties with a number of nations on the Black Sea, operating unarmed drones in the airspace is both common and expected.

But the truth is, at the distance from shore, it doesn’t really matter whose territory Crimea is, as international waters begin just 12 miles out to sea. And while some may contend that the legality of these claims is based only on national governments choosing to recognize these treaties, the truth is, Russia does. In fact, the legal right to fly over international waters is codified in both Article 2 of the 1958 Convention on the High Seas and Article 87(1)(b) of the 1982 Law of Sea Convention (UNCLOS) to both of which Russia is a party.

So it would seem that Russia absolutely does recognize international law regarding overflight of the high seas… except when it suits them not to. And beyond this incident, you could cite constant intercepts of Russian bombers and escort fighters in and around other nations’ airspace as further precedent for Russia’s robust understanding of the law in regard to flights over the high seas.

If the American drone was providing intelligence directly to Ukraine during its flight, there is an argument one could make this would constitute what is legally deemed an “internationally wrongful act” (Articles on State Responsibility, art. 2), as it would violate the law of neutrality. While the DoD Law of War manual isn’t necessarily a document international courts might cite, it does define the American interpretation of this law as such:

“The principal duties of a neutral State are to abstain from any participation in the conflict and to be impartial in conduct towards contending parties” (§15.3.2).

However, this law does have some exceptions — in particular, when one state is the clear aggressor in the conflict. This much was laid out in a piece penned by Michael Schmitt, Professor of International Law at the University of Reading in the United Kingdom, in a piece for Just Security last week.

“The United States supports the qualified neutrality approach, which is sometimes labeled non-belligerency (DoD Law of War Manual, § 15.2.2). By it, assistance to Ukraine in the form of intelligence sharing is lawful, just as collective-self defense of Ukraine would be lawful, although it raises the separate question of the point at which assistance could constitute an indirect use of force or render the United States a Party to the conflict (see my thoughts here).”
“The Russian Intercept of the U.S. Reaper and International Law” by Michael Scmitt for Just Security

Now, it’s important to note that this does not mean that Russian aircraft had no right to conduct an intercept. That much is common and accepted. Neither the drone’s presence over the Black Sea nor the Russian intercept was a violation of international law… and the truth is, the collision may not have been either.

The U.S. didn’t break the law… but Russia can still argue that it did

Russian Su-27 (Russian Ministry of Defense)

Believe it or not, Russia colliding with the MQ-9 over international waters may not actually qualify as a violation of international law either, and this is where discussions about American retaliation become murky. In order to ascertain whether or not the Russian pilot violated the law, we would need to determine intent — and that’s a complicated question.

International law established in the UN Charter, art. 2(4) (among other places) prohibits the threat or use of force against other aircraft over international waters, but there remains some debate about the intent behind the Russian pilot’s actions. If they were simply attempting to harass the aircraft to dissuade American platforms from operating in the region, that may not technically qualify as a violation of international law, while certainly seen as a violation of international norms.

“There is an ongoing discussion among international law experts as to whether “intent” is required for a breach of the prohibition. “
“The Russian Intercept of the U.S. Reaper and International Law” by Michael Scmitt for Just Security

There are myriad other legal considerations in play regarding this intercept and the behavior of the Russian pilots, and while much of it substantiates the American presence in the region, Schmitt also lays out some (admittedly precarious) potential justifications for Russia’s actions as well. I highly recommend you read his piece in its entirety, but with all legal justifications in mind, Scmitt concludes that Russia was indeed legally at fault.

“…Based on those appearing in open sources, the Russian operation almost certainly violated the international law obligation of due regard and, perhaps, the prohibition on using force. And there would appear to be no definitive legal justification for its action.”
“The Russian Intercept of the U.S. Reaper and International Law” by Michael Scmitt for Just Security