Military occupation of Ukraine by Russia
Since March 2014, Crimea has been occupied by Russia. Furthermore, Russia has been occupying large territories in the south and the east of Ukraine since February 2022.
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 did not alter the status of Crimea in light of the fact that he was ousted by the parliament.
In addition, Russia has been occupying large territories in the south and the east of Ukraine since February 2022. The alleged request for assistance from the People's Republics in the Donbass does not constitute valid consent, and therefore does not alter the qualification of the situation as military occupation.
For a territory to be considered occupied, it must be 'under the authority of the hostile army'. Article 42, 1Article 42, 1907 Hague Regulations Concerning the Laws and Customs on Land, Annexed to Convention (IV) respecting the Laws and Customs of War 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 that the territorial state did not consent to the presence of foreign troops.
States may use proxy forces to occupy a territory: if a state exercises overall control over de facto local authorities or other local groups that exert effective control over the territory, the state can be considered an occupying force. For further information on overall control, see ‘contemporary challenges for classification – control over proxy forces’ in our classification section. Two elements must therefore exist in such a situation:
- The foreign state has overall control over de facto local authorities.
- The de facto authorities exercise effective control over a territory. For further information, see T. Ferraro ‘Determining the Beginning and End of an Occupation Under International Humanitarian Law’ (2012) 94(885) International Review of the Red Cross 158 ff..
Occupation of Crimea
Against the background of the crisis in Ukraine, which started in Februry 2014, 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 stage 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. or, in other words, that Ukraine, represented by the ousted President Yanukovych, consented to the presence of Russian forces. However, the request is not valid because, at that 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. Indeed, 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.
In a referendum held on 16 March, official results reported that 97 percent of voters wished to join Russia. However, the European Union (EU) and Ukraine disputed the results. Moreover, the OSCE and the EU had previously declared that the referendum would be unlawful and there were no international observers 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 News, 16 March 2014. On 21 March 2014, Russian President Putin signed a law to annex Crimea. ‘Ukraine: Putin Signs Crimea Annexation’, BBC News, 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, 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. It has been reported that Russian authorities systematically transfer citizens from the Russian Federation to the occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol, reportedly with the specific intent to change the demographic map of the population of Crimea. ‘Crimea after six years of Russian occupation: fear, human rights abuses and absence of freedom’, Ukrinform, 4 May 2020. This amounts to a violation of Article 49(6), Geneva Convention IV, which reads as follow: ‘the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’
Occupation of Luhansk, Donetsk, Kherson, and Zaporizhzhia Regions
As a result of Russia's invasion of Ukraine on 24 February 2022, Russia has been military controlling an increasingly large part of Ukraine through proxy. On 26 May, after three months of hostilities, the territory controlled by Russia stretched from Kherson in the west, through Mariupol and large parts of Donetsk and Luhansk in the east, to the vicinity of Kharkiv in the north. However, when the invasion started, the Russian army also controlled areas in northern Ukraine, mainly around Kyiv and Kharkiv. ‘Russia invade Ukraine’, Reuters, 11 May 2022; ‘Ukraine war in maps: Tracking the Russian invasion’, BBC News, 24 May 2022; Javier Galán and Luis Sevillano Pires, ‘How the map of Ukraine has changed in three months of war’, El País, 24 May 2022; ‘Russia’s invasion of Ukraine in maps – latest updates’, Financial Times, 26 May 2022.
We can speak of a belligerent occupation as soon as the cumulative criteria mentioned above are met. Since this requires a fact-based exercise, and the facts on the ground show that Russia has taken control by proxy of the regions of Luhansk, Donetsk, Kherson and Zaporizhzhia, preventing Ukraine from exercising its sovereignty there, it can be concluded that Russia is occupying a large part of southern and eastern Ukraine. ‘Shots fired in Ukrainian city as locals protest against Russian occupation’, RFE/RL, 2 March 2022; Liam James, ‘Russia claims it has seized Kherson as mayor agrees to conditions to keep city running’, The Independent, 3 March 2022; N. Kalandarishvili-Mueller, ‘Russia’s “Occupation by Proxy” of Eastern Ukraine – Implications Under the Geneva Conventions’, Just Security, 22 February 2022.
During the last week of September 2022, referendums took place in four Ukrainian regions occupied by Russia, namely Luhansk, Donetsk, Kherson and Zaporizhzhia. Residents of some of these areas have reported that Russian soldiers went door to door to encourage people to vote. On 28 September, Kremlin-controlled governments of the four Russian-occupied areas of Ukraine announced that the majority of residents voted in favour of joining Russia. On Friday, 30 September, President Putin annexed these territories to the Russian Federation. ‘Annexation announcement follows so-called referendums’, BBC News, 30 September 2022; ‘Ukraine 'referendums': Full results for annexation polls as Kremlin-backed authorities claim victory’, Euronews, 28 September 2022.
Since these regions are occupied by Russia, the law of occupation is applicable. Notably, the occupying power does not gain sovereignty in the territory and thus holding referendums to annex the occupied territories is unlawful. Indeed, the rationale underpinning the law of occupation is that the occupying territory is held in trusteeship until the lawful sovereign returns. E. Lieblich, ‘Q&A on Russia-Backed Referendums in Eastern Ukraine and International Law’, Just Security, 24 September 2022.
In 2018, Russia built a bridge to connect Crimea to the occupying power’s territory. At the time, the UNGA condemned ‘the construction and opening of the Kerch Strait bridge between the Russian Federation and temporarily occupied Crimea, which facilitates the further militarization of Crimea’ and ‘the increasing military presence of the Russian Federation in parts of the Black Sea and the Sea of Azov, including the Kerch Strait, and the Russian Federation’s harassment of commercial vessels and restriction of international shipping there.’ UNGA, Problem of the militarization of the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, as well as parts of the Black Sea and the Sea of Azov, UN Doc. A/73/L.47, 5 December 2018. On 8 October 2022, a fireball burned the Kerch Strait bridge,hence disrupting the most important access for Russian troops fighting in southern Ukraine. It is unclear who is responsible for the attack, however Putin has accused Ukraine of being behind it. ‘Putin accuses Ukraine of Crimea bridge blast ‘terrorism’’, Al Jazeera, 10 October 2022. Under IHL,the bridge was a duel-use object, meaning an object used both by civilians and for military purposes. Indeed, military objectives are objects that ‘by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ See Article 52(2) Additional Protocol I. This means that, when a civilian object is used for both military and civilian purposes, ‘even a secondary military use turn it into a military objective.’ Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare (Edward Elgar Publishing 2019), p. 354. Since this was the case of the bridge, the attack appears lawful under IHL. On 10 October 2022, Russia conducted a number of military attacks against key cities in Ukraine, including Kiev, in what seem to be retaliatory attacks. M. Hunder and J. Landay, ‘Russia bombs Ukrainian cities at rush hour in apparent revenge strikes’, Reuters, 10 October 2022.
On 19 October 2022, Putin declared martial law in the four occupied regions. The degree signed by the Russian president allows for greater ability to limit movement to, from and within the areas and allows for the residents of those territories to be moved to “safe zones”. ‘Putin declares martial law in annexed areas: What you should know’, Al Jazeera, 19 October 2022.
Fighting has continued in the following months. Specifically, at the beginning of January 2023 Russia has focused on gaining control over the towns of Soledar and Bakhmut, in the Donesk region. The two cities have mines, whose tunnels would be ideal to hide soldiers and ammunitions. On the other hand, Russia has been targeting other Ukrainina cities, most notably Kiev. It has been reported that the Russian group Wagner is fighting in the Donbass region in order to take control over the town of Soledar. It was the group itself that claimed to be fight ‘heavy, bloody battles’ in the region to support Russian military operations. The UK’s Ministry of Defence confirmed Wagnwer’s claims and added that Russia is in control of the town thanks to a number of tactical advances. ‘Photos illustrate the intensity of Russia's battle for Soledar and Bakhmut’, CNN, 12 January 2023; ‘Russia’s Wagner group fighting ‘heavy, bloody battles’ for control of Soledar’, The Guardian, 10 January 2023.
It should be noted that the situation is evolving rapidly as the IAC between Russia and Ukraine is still ongoing.
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.
Following the occupation of Crimea, the United Nations Security Council (UNSC) failed to adopt a resolution that would have urged the countries not to recognize the results of the referendum: Russia managed to block the resolution with its veto right, while China abstained. Liu Jieyi, Permanent Representative of China to the UN, said that Beijing sought a ‘balanced’ solution to the conflict. The United Kingdom representative, Mark Lyall Grant, affirmed that the result of the vote highlighted Russia's isolation over Crimea within the UNSC and from the international community, while the French representative, Gérard Araud, declared that Russia ‘vetoed the UN Charter’ with its negative vote. ‘UN Security Council action on Crimea referendum blocked’, UN News, 15 March 2014. Some days later, the United Nations General Assembly (UNGA) reaffirmed in its resolution 68/262 ‘the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations’ and called ‘upon all states, international organizations, and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol.’ UN Doc. A/RES/68/262 (2014), 27 March 2014. Furthermore, the UNGA adopted by a majority vote the Resolution 71/205 on 1 February 2017, whereby it condemned '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 reaffirmed 'the non-recognition of its annexation.' Furthermore, the General Assembly urged Russia 'to uphold all of its obligations under applicable international law as an occupying Power.' In the same vein, 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. Similarly, 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. Apart from oral condemnations of Russia’s actions in Ukraine, some governments and international organizations, led by the United States and the European Union, imposed sanctions against individuals, businesses, and officials from Russia and Ukraine involved in the occupation. ‘Ukraine crisis: Russia and sanctions’, BBC News, 19 December 2014.
Due to Russian use of veto power, the UNSC has been unable to adopt a resolution on the invasion of Ukraine. For instance, on 25 February 2022 Russia voted against a resolution where the UNSC intended to decide that ‘the Russian Federation shall immediately cease its use of force against Ukraine and shall refrain from any further unlawful threat or use of force against any UN member state.’ UN Doc. S/2022/155, 25 February 2022. Furthermore, following the referendums that took place in September 2022, Russia vetoed a UNSC resolution which was meant to condemn the annexation of the occupied territories to Russia. ‘Russia vetoes Security Council resolution condemning attempted annexation of Ukraine regions’, UN News, 30 September 2022.
In light of the Russian use of the veto power, that has de facto paralyzed the UNSC, the UNGA adopted by consensus resolution A/RES/76/262, which allows the UNGA to meet whenever the veto is exercised in the Security Council. Notably, the president of the UNGA shall convene a formal meeting within 10 days. The initiative was sponsored and led by Lichtenstein, see United Nations adopt Liechtenstein’s veto initiative, Lichtenstein Press Release, 26 April 2022. Accordingly, on 12 October 2022 the UNGA adopted a resolution that condemned the unlawful annexation of Ukrainian territories to Ruassia. The resolution was passed with 143 Member States in favour, with five voting against, and 35 abstentions. The countries who voted against were Belarus, the Democratic People's Republic of Korea, Nicaragua, Russia and Syria. The resolution affirms that ‘the regions of Donetsk, Kherson, Luhansk and Zaporizhzhia are temporarily occupied by Russia as a result of aggression, violating Ukraine’s territorial integrity, sovereignty and political independence.’ B. Yürük, ‘UN General Assembly to meet Oct. 10 concerning Russian annexation of Ukrainian territory’, AA, 4 October 2022; ‘Ukraine: UN General Assembly demands Russia reverse course on ‘attempted illegal annexation’, UN News, 12 October 2022.
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.