With news of “Kremlin-engineered” referendums underway in four occupied areas of eastern Ukraine, Just Security asked Professor Eliav Lieblich, an expert in the law of armed conflict and the international law of occupation, to explain the law that governs in these territories and how the situation will likely play out.
Q. As characterized by the New York Times, “Russian proxy officials in four regions — Donetsk and Luhansk in the east, which are collectively known as Donbas, and Kherson and Zaporizhzhia in the south — announced plans to hold referendums over several days beginning on Friday.” Reporting suggests that “Russia’s military control over the regions it has occupied is shaky,” and of course, two of these areas of eastern Ukraine (Donetsk and Luhansk) that had been under at least partial control of Russian-backed forces since 2014 declared themselves to be independent just prior to Russia’s full-scale invasion in February. Given these murky facts, as a starting point, can you explain what the international law of occupation is and when it governs in the midst of an ongoing armed conflict?
A. The international law of occupation is a branch of international humanitarian law that regulates situations in which states (and possibly other international actors) gain effective control over foreign territory during armed conflict (without, of course, the consent of the territorial state). The key question is of course what constitutes effective control. Whether Russia exercises such control over this or that territory in Ukraine is a question that should be answered through a separate analysis. As a point of departure, it seems to me that if Russia is capable of administering so-called referendums in a given territory, then that territory must be under its control.
Once an occupation exists, the occupant acquires positive duties to ensure public order in the territory, and gains some security powers. However, it must respect the status quo ante in the territory and in general cannot make dramatic changes. Of course, an occupant cannot in any case annex occupied territories: the basic idea is that occupation does not grant sovereignty or title in the territory, but rather that it is held in trusteeship until the lawful sovereign returns.
I discuss the issue of the so-called “independence” of the breakaway territories of Donetsk and Luhansk, and its relation to the law of occupation, in my next answer.
Q. In areas where the law of occupation does apply, what does that body of law have to say about this type of “referendum” during a period of occupation? Does it matter whether the authorities involved are Russian officials or Russian proxies?
A. Since the occupant does not gain sovereignty in the territory, it of course cannot hold referendums in occupied territories, not least when the question is whether the territories should be annexed. At least regarding Donbas, Russia denies that these are occupied territories, as it argues that Donetsk and Luhansk are independent states. As Russia argues, since it has been “invited” by these “states” in collective self-defense, it cannot be an occupant. However, even if it was true that Donetsk and Luhansk had any independent agency, separate from Russia (which is not really the case – they seem to be operating as proxies), Donbas would still be considered occupied. This is because owing to the principle of territorial integrity, international law does not generally recognize the right of unilateral secession. Regions cannot simply breakaway and invite foreign forces to “defend” them.
Q. Some have predicted that regardless of whether authorities in these four occupied regions are capable of implementing a referendum in the midst of war, the outcomes are preordained: Russia and Russia-linked media will announce that overwhelming majorities in each region voted to join Russia. In short, it seems clear Putin is using these so-called referendums to lay the groundwork for purported annexation of these regions, as he did in Crimea in 2014. What recourse does Ukraine, and the international community in support of Ukraine’s sovereignty and independence, have if Putin follows what the White House has called an “annexation playbook” in these four regions?
A. First of all, it is crucial to emphasize that even if these referendums were perfectly genuine and free (which they are of course not) there is simply no legal route through which a referendum can take place unilaterally without the consent of the territorial state. In international law, the principle of territorial integrity overrides the wishes of particular regions within states, the rationale being to maintain international stability and to prevent the fragmentation of states.
In terms of legal recourse, Ukraine can of course continue to resort to force in self-defense, notwithstanding such referendums. Beyond that, the most immediate international response in such cases is non-recognition: i.e., third parties refrain from recognizing the annexed territories as part of the occupant’s state. This move is not only expressive, but might have implications over international agreements such as trade treaties.
The international law on state responsibility also imposes obligations not to render assistance to the continuation of the situation, as well as an obligation to cooperate through lawful means to bring the situation to an end. Of course, these obligations are quite “liquid” and the key question is what are the moves that would actually be taken by states within this framework. Last, it should be added that “annexation by the use of force of the territory of another State” is itself an act of aggression.
In realistic terms, I think that Russia is building on political and legal attrition. The plan is probably to present the international community with a fait accompli and hope that as time passes, the international community would gradually lose interest. Unfortunately, until Russia’s renewed invasion earlier this year, it seemed to have achieved some success with this type of strategy in Crimea. It is not surprising that they would try to repeat this in Donbas and in other areas.
Q. Russian President Vladimir Putin has from the outset of his invasion tried to cast Ukraine as the aggressor, even manufacturing claims of Ukrainian genocidal intent against Russia and prompting the so-called declarations of independence in Donetsk and Luhansk in February – in short, using the language of international law to break international law. Given Putin’s renewed threats of a nuclear response should Russian “territory” be attacked, could he be seeking to use the legal veneer of purported annexations as a way to end, or freeze in place, the conflict with control over a vast swath of Ukrainian territory using nuclear blackmail if Ukraine tries to liberate these areas?
Many have noted the extent to which Russia has used the language of international law in its justification of the war, although it advances interpretations that almost no other state shares. This is not new and entirely consistent with the practice of Russia (and the USSR) in the past. Frankly, I doubt that Russia really thinks that it can convince anyone with these arguments. It seems to me that one key reason why these legal arguments are deployed is to mimic and discredit the West for making what Russia views as essentially similar arguments in the past, for example, in Kosovo.
There are many reasons why Russia would seek to annex occupied territories in Ukraine at this time. It may very well be that this is a desperate attempt to present to the international community and to its own domestic constituency an “image of victory,” in order to counter Ukraine’s military achievements in the last few weeks. It also can be, as the question suggests, that by presenting the annexed territories as “Russian,” Russia hopes to deter any attacks in these territories. Israel, for example, treats any threat against its forces in the annexed Golan Heights as threats to its own sovereign territory, and this tactic has arguably worked in deterring third parties from attacking there. Whether a Russian threat to deploy nuclear weapons in response to Ukrainian attacks in Donbas would in fact be a credible and deterring threat, is a question for international relations specialists to answer.
For more of Just Security’s coverage, please visit our Russia-Ukraine war Archives.