Since March 2014, Crimea has been occupied by Russia.
Since March 2014, Russia has been occupying part of Ukrainian territory, the Autonomous Republic of Crimea and the city of Sevastopol ('Crimea'). The alleged consent for a Russian intervention, based on a request by ousted President Yanukovych, does not affect the classification of the situation as a military occupation. Similarly, the Crimean referendum of 16 March 2014 to join Russia does not alter the status of Crimea as occupied territory.
For a territory to be considered occupied, it must be 'under the authority of the hostile army'. Article 42, 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land. For an occupation to exist, hostile foreign forces must exercise effective control. Effective control requires three cumulative conditions:
- First, without the consent of the effective local government, the armed forces of a foreign state are physically present.
- Second, the presence of the foreign forces prevent the effective local government from exercising its powers.
- Third, the foreign forces are able to exercise their authority.
These elements illustrate that an occupation does not necessarily have to meet with armed resistance. Common Article 2(2) of the four 1949 Geneva Convention expressly specifies that they apply to cases ‘even if said occupation meets with no armed resistance’. Rather than armed resistance, the decisive element is whether the effective local government consented to the presence of foreign forces.
Against the background of the crisis in Ukraine, armed men in unmarked military uniforms started to deploy in Crimea from the end of February 2014 onwards. They were widely assumed to be Russian troops already stationed in Crimea under an agreement concerning the Black Sea fleet. Russia initially denied the presence of Russian soldiers, but at a later point President Putin acknowledged that they were Russians. K. Lally, ‘Putin’s Remarks Raise Fears of Future Moves Against Ukraine’, Washington Post, 17 April 2014. During an emergency meeting of the Security Council, Russia argued that the ousted Ukrainian President Yanukovych had made a written request to restore law and order in Ukraine. 7125th meeting of the Security Council, UN doc S/PV.7125 , pp 3-4. In other words, he argued that Ukraine, represented by the ousted President Yanukovych, consented to the presence of Russian forces. However, the request is not valid because, at the point, ousted President Yanukovych was no longer competent to express consent on behalf of Ukraine: For further explanation on the role played by consent and who can express consent on behalf of a state, see the section on 'Who can represent the state' under Classification - International armed conflict. The Ukrainian parliament had removed him from power and he had fled the country to Russia, although arguably in a manner imcompatible with the Ukrainian Constitution. P. Polityuk and M. Robinson, ‘Ukraine Parliament Removes Yanukovich, Who Flees Kiev in “Coup”’, Reuters, 22 February 2014. S. Walker, ‘Ousted Ukrainian Leader Viktor Yanukovych reported to be in Russia’, The Guardian, 27 February 2014. For a detailed analysis of the conditions for consent to be valid under international law and its application to Ukraine, see T. Ruys and L. Ferro, ‘Weathering the Storm: Legality and Legal Implications of the Saudi-Led Military Intervention in Yemen’, 65 International and Comparative Law Quarterly 1 (2016), p 83 ff, restricted access; T. D. Grant, Aggression Against Ukraine. Territory, Responsibility, and International Law, Palgrave MacMillan, 2015, p 50 ff; D. Wisehard, ‘The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention’, Just Security Blog, 4 March 2014; G. H. Fox, ‘Ukraine Insta-Symposium: Intervention in the Ukraine by Invitation’, Opinio Juris Blog, 10 March 2014.
According to official results, 97 percent of all voters wished to join Russia in a referendum held on 16 March 2014. The European Union and Ukraine disputed the results. The Organisation for Security and Cooperation in Europe and the European Union had previously declared that the referendum would be unlawful. No international observers were present. ‘Didier Burkhalter juge “illégal” le référendum en Crimée’, Agence France Press, 11 March 2011; ‘Ukraine: MEPs Call for Firm Action on Russia to Prevent Further Escalation’, European Parliament News, 12 March 2013; ‘Crimea Referendum: Voters ‘Back Russia Union’, BBC, 16 March 2014. On 21 March 2014, Russian President Putin signed a law to annex Crimea. ‘Ukraine: Putin Signs Crimea Annexation’, BBC, 21 March 2014. On 27 March 2014, with one hundred in favour, eleven against, and fifty-eight abstentions, the United Nations General Assembly adopted Resolution 68/262. According to resolution 68/262, 'the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol'.
The purported annexation of Crimea does not change the status of Crimea as an occupied territory: Crimea remains under the control of Russian forces and Russian authorities without the consent of Ukraine. In the same sense, see R. Heinsch, ‘Conflict Classification in Ukraine’, International Law Studies 91 (2015), U.S. Naval College of War, pp 353-354.
Views of parties to the conflict and other actors
Ukraine considers that the Autonomous Republic of Crimea and the city of Sevastopol are occupied by Russia. See for example the statement by Ukraine to the General Assembly, General Assembly, Official Records, Seventy-first Session, 56th Plenary Meeting, UN doc A/71/PV.65, 19 December 2016, p 34; Letter Dated 3 October 2016 from the Permanent Representative of Ukraine to the United Nations Addressed to the Secretary-General, UN doc A/71/540-S/2016/839, 11 October 2016; Letter Dated 14 September 2016 from the Permanent Representative of Ukraine to the United Nations Addressed to the Secretary-General, UN doc A/71/379-S/2016/788, 15 September 2015. In its June 2015 derogation from the International Covenant on Civil and Political Rights and the European Convention on Human Rights, Ukraine highlighted that in light of the 'annexation and temporary occupation by the Russian Federation' of the Crimea, 'the Russan Federation is fully responsible for respect for human rights and implementation of the relevant treaties in annexed and temporary occupied territory of Ukraine.' Depositary Notification, International Covenant on Civil and Political Rights, Ukraine: Notification under Article 4(3), Reference C.N.416.2015.Treaties-IV.4, 5 June 2015, and Note Verbale, Permanent Representation of Ukraine to the Council of Europe, Declaration Concerning Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedom, JJ7979C, Tr./005-185, 10 June 2015.
Various international entities confirm that Crimea is occupied by Russia. First, in its November 2016 Report on Preliminary Examination Activities, the Office of the Prosecutor of the International Criminal Court concluded that the situation in Crimea was an ongoing occupation. Office of the Prosecutor, Report on Preliminary Examination Activities, November 2016, §158.
Second, the United Nations General Assembly, recalling its 2014 Resolution 68/262 on the 'Territorial integrity of Ukraine,' adopted by a majority vote Resolution 71/205 on 1 February 2017: Condemning 'the temporary occupation of part of the territory of Ukraine - the Autonomous Republic of Crimea and the city of Sevastopol (hereinafter "Crimea") - by the Russian Federation', and reaffirming 'the non-recognition of its annexation', the General Assembly urges Russia 'to uphold all of its obligations under applicable international law as an occupying Power.' Similarly, the Office of the High Commission for Human Rights has repeatedly described Crimea as an occupation in various reports in 2017. See Office of the United Nations High Commissioner for Human Rights, Conflict-Related Sexual Violence in Ukraine, 14 March 2014 to 31 January 2017, 16 February 2017, §2 and §22 and Report on the Human Rights Situation in Ukraine, 15 March 2017,§125 and §128. Earlier reports, before the adoption of General Assembly Resolution 71/205, abstained from qualifying the situation as an occupation, see for example Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Ukraine, UN doc A/HRC/27/75, 19 September 2014.
Finally, the Parliamentary Assembly of the Council of Europe has consistently considered Crimea to be an occupied territory and has called on Russia to fulfil its obligations under the law of occupation. Council of Europe, Parliamentary Assembly, Resolution 1990 (2014), 10 April 2014; Resolution 2028 (15), 27 January 2015; Resolution 2132 (2016), 12 October 2016.
Under the law of occupation, an occupation is supposed to be temporary and does not alter the status of the territory in question. The occupying power does not enjoy sovereign rights over the territory in question.
The law of military occupation applies to the occupied territory of Crimea. The law of military occupation is set forth in Articles 42 to 56 in the 1907 Hague Regulations, the fourth 1949 Geneva Conventions, and the 1977 Additional Protocol I applicable to international armed conflicts. Both Russia and Ukraine are parties to the 1977 Additional Protocol I.
In addition, both Russia and Ukraine are bound by customary international humanitarian law. Customary international law consists of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.
International human rights law also applies. Under the jurisprudence of the European Court of Human Rights, an occupying power, including when acting through local administrative authorities, is obliged to secure the European Convention on Human Right. ECtHR, Cyprus v Turkey, Judgment, App no 25781/94, 10 May 2001, § 77; ECtHR, lIascu and Others v Moldova and Russia, Judgment, App no 48787/99, 8 July 2004, §314. In the case of Ilascu, the European Court also stressed that even after having lost effective control, the territorial state still has positive obligations to take measures to secure the Convention rights through diplomatic, political, and economic measures, § 331.