Re-allocation of Land in Occupied Territories
READ THE ORIGINAL ON THE CENTER FOR CIVIL LIBERTIES WEBSITE
Authors: PILPG and Orrick, Herrington & Sutcliffe
Russia recently began granting land plots in occupied Crimea to Russian military veterans of the Ukrainian war. Late last year, Vladimir Putin issued a directive recommending that the administration in Crimea, including in the city of Sevastopol, give land free of charge to veterans. Various regional authorities have already begun sending land certificates, and Russian officialshave stated that thousands more are currently planned.
These moves have been denounced in Ukraine: Ukraine’s Ministry of Foreign Affairs has strongly condemned the land transfers, calling them “encouragements to murderers.” In no uncertain terms, the Ministry stated that the land transfers are “criminal and void” and will be nullified when Ukraine regains control of Crimea.
The issue is whether or not such transfers are legal under international law? This blog post will analyse that question by, first, explaining why Russia’s “annexation” of Crimea is illegal under international law. Second, by exploring international law’s position on the use of force for conquering territory, concluding that Crimea is occupied territory and unlawfully annexed. Third, by analysing the illegality of land transfer on occupied territory. The final section examines the legal consequences and remedies for the transfers of land in Crimea.
Illegality of Annexation
Much has been written about the illegitimacy of Russia’s annexation of Crimea, but it is worth reiterating why Russia’s annexation of Crimea is illegal under international law. Russia has never had a legitimate basis to annex Crimea, and all of its arguments to the contrary have been repeatedly defeated. Dr. Oleksander Merezhko, Professor of International Law and Head of the Chair of Law at the Kyiv National Linguistic University, attacks three such arguments in a 2015 paper.
Russia argues that annexing Crimea somehow vindicates the Crimean people’s right to self-determination. Russia bases this argument on the fact that Crimea in 2014 held a quickly organised referendum and chose to secede from Ukraine. Dr. Merezhko points out multiple problems with this theory. First, it ignores the fact that Crimea had no legal right to secede under Ukraine’s constitution or under international law. Second, this theory ignores the fact that both Russia and Ukraine consider attempts to secede as “dangerous separatism” to be challenged. Third, the referendum cannot be considered free and fair, as it was hastily thrown together, overseen by the Russian military, and in violation of Russian scholars’ own theories of what makes a legitimate referendum. Despite reporting that around 93% of Crimeans polled voted for ‘independence’ in 2014 with an 80% turnout, the accuracy of the final poll numbers, notwithstanding the military occupation, have been undermined by the Russian Federation’s own Human Rights Council, which appeared to accidentally reveal, in 2014, that the actual numbers were closer to 55% in favour with a turnout of approximately 40%. This would statistically indicate that around 20% of the total population voted in favour of secession from Ukraine.
The next argument Dr. Merezhko challenges is that Ukraine underwent an illegal coup d’état in 2014 that technically caused the Ukrainian state to collapse and gave the Crimeans a right to secede from Ukraine. Dr. Merezhko points out that coups are internal affairs, as opposed to international, and do not invite international intervention. Further, coups do not destroy national identities and bonds, nor do they invite countries other than the country undergoing the coup to weigh in on what happened.
Finally, Russia argues that its intervention is necessary to combat human rights violations and offer humanitarian aid. Dr. Merezhko methodically counters this argument by, overall, pointing out that Russia’s own view of international law frowns on foreign intervention generally.
Illegal Use of Force and Legal Status of Occupation
International law is clear on the illegality and legal inconsequentiality of Russia’s purported annexations of Ukrainian territory in Eastern and Southern Ukraine, the Crimean peninsula, and Sevastopol. Indeed, the impermissibility of the use of force to conquer another state’s territory is a fundamental and foundational rule of the modern international legal system. The International Court of Justice’s (ICJ) jurisprudence has clearly articulated this prohibition in the advisory opinion Legal Consequences of the Construction of a Wall, which considers in detail the international illegality of the construction of buildings on occupied territory. The ICJ noted that the prohibition on the acquisition of territory through force or the threat of force is a rule of international law: It is a corollary of the fundamental prohibition on the use of force in Article 2, paragraph 4 of the United Nations Charter, and can be found reflected in General Assembly resolution 2625 (XXV) which emphasised that “[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The Court’s ruling in the Nicaragua case further confirmed that the Charter’s prohibition on the use of force is customary international law. In the Ukrainian context, Russia’s purported sovereignty over Crimea has been rejected by the UN General Assembly in Resolution 68/262 (2014) as has the subsequent purported annexation of four Ukrainian oblasts in Resolution ES 11/4 (2022), indicating the non-acceptance of Russia’s claims by the UN member states.
It follows that Russia, which cannot have legitimately annexed what Ukraine terms the “temporarily occupied territories” under international law, must therefore be considered an occupying power under customary international law. Occupied territory under international law can be defined with reference to Article 42 of the 1907 Hague Convention as territory “actually placed under the authority of [a] hostile army.” It has been confirmed that the 1907 convention has the force of customary international law in (inter alia) the Judgment of the International Military Tribunal of Nuremberg, and the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. The presence and evident authority of Russian forces in temporarily occupied territories since 2014 in general, and on the Crimean peninsula and Sevastopol in particular, meets the Article 42 definition on the facts and indicates that the international legal acts of the Russian Federation must be considered in the context of a military occupation.
Occupation and Settlement Under the Fourth Geneva Convention
Due to the armed conflict Russia has launched in Ukraine and its occupation of territories in Eastern and Southern Ukraine, the Geneva Convention IV is relevant for the present analysis. Article 2 of the Convention offers two overlapping but distinct tests for whether Geneva Convention IV applies. The first paragraph states that the provisions of the Convention ‘shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contract Parties, even if the state of war is not recognized by one of them’ under the first paragraph of Article 2. Both Ukraine and Russia are High Contracting Parties to the Geneva Conventions. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia explained in Tadić that “an armed conflict exists whenever there is a resort to armed force between States.” Ukraine and Russia are clearly in an international armed conflict under that definition, and therefore the Convention will apply in the temporarily occupied territories by virtue of the continuing conflict. Moreover, the Russian state’s rhetorical references to the “special military operation” and intermittent suppression of the use of the term “war” in the Russian domestic space, never likely to have had international legal significance, are rendered irrelevant in this context by the proviso of the first paragraph of Article 2 that Geneva Convention IV, which applies even where the state of war is not recognised by one party.
However, the occupation of Ukrainian territory itself is sufficient to engage the Convention even in the absence of active hostilities. Russia’s initial invasion and internationally illegal annexation of Crimea occurred in 2014 and was followed by several years of de facto Russian control over the Crimean peninsula and low-level conflict in the Donbas prior to the full-scale invasion of 2022. Following the Court’s deliberation in the Wall opinion, that Geneva Convention IV clearly applies to the entire period that Crimea has been under Russian occupation, not just since the commencement of higher-intensity warfare in February 2022. At paragraph [95] of the opinion, the Court emphasised with reference to the Convention’s travaux préparatoires that the contracting states sought to extend the Convention to all instances of armed conflict. Under the second paragraph of Article 2, the Convention applies “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Thus, even during the period post-2014 but prior to the current phase of the conflict when there was negligible conflict on the Crimean peninsula, the Convention would apply because Russia occupied the territory of Ukraine, a High Contracting Party.
It is therefore unambiguously clear that the Russian Federation’s plan to gift land titles in Crimea to veteran Russian service members is occurring in territory to which Geneva Convention IV applies. The result of any such exercise is straightforward and unambiguous: Article 49, paragraph 6 of Geneva Convention IV states that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It is clear, moreover, that the establishment of settlements in occupied territory pursuant to any such civilian population transfer is also a breach of Article 49. The UN Security Council Resolution 465 (1980) determined, on the advice of a Security Council Commission (See Resolution 446 (1979)) set up to investigate the Israeli settlements in occupied Palestine, that the building of settlements in occupied territory constitutes a “flagrant violation of the Geneva Convention.” It is further noted that, whereas other paragraphs of Article 49 contain exceptions for exigencies of civilian population protection or military necessity, the prohibition in paragraph 6 contains no such exceptions. Furthermore, the International Committee of the Red Cross and Red Crescent’s (ICRC) International Humanitarian Law Database’s Rule 51 of customary international law indicates that the occupying power’s use of occupied public real or immovable property is solely usufructuary, and that the destruction or requisition of real private property can only be justified by “imperative military necessity.” As such, any potential Russian legal argument that this use of real property could escape Article 49 because it is justifiable under other provisions of relevant treaties or customary international law are thus doomed to fail: The disposition of public property as private property to Russian veterans, or even its long-term use as publicly-owned housing for them is incompatible with the principles of usufruct; it is further implausible to justify settlement programmes involving the confiscation of private real property as an imperative military necessity. The inevitable conclusion is that any programme pursuant to which the Russian Federation settled military veterans on occupied Ukrainian territory would be contrary to international law and a violation of the Geneva Conventions.
Additional Applicable International Law
The Geneva Conventions are not likely to be the only international law engaged by Russia’s settlement plans.
The transfer “directly or indirectly, by the occupying Power of parts of its own civilian population into the territory it occupies” is also a war crime under Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court, over which that court has jurisdiction ratione materiae by virtue of Article 5(1)(c). Although neither Russia nor Ukraine are States Party to the Rome Statute, Ukraine has accepted ad hoc jurisdiction of the International Criminal Court (ICC) in relation to war crimes and crimes against humanity arising from the current conflict. Indeed, the ICC has recently issued arrest warrants against President Vladimir Putin and the Russian Commissioner for Children’s Rights for the deportation of children contrary to (inter alia) Article 8(2)(b)(viii).
Legal consequences and remedies for settlers
The Wall opinion does not examine in detail the more sensitive issue of removing the settlers themselves, however, as the question was not germane in the advisory opinion and, obviously, hugely emotive for all concerned. The legal position, however, should be viewed as straightforwardly aligned with general principles of international law: Russia would be under an obligation to remove settlers. In the definitive early judgment on righting international wrongs, the Permanent Court of International Justice in the Chorzów Factory Case stated that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.” This is affirmed by Articles 30 and 31 and Chapter II of the Draft Articles on Responsibility of States for Internationally Wrongful Acts; Article 31 in particular states that “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.” The first form of reparation, which is defined in Chapter II, is restitution, which Article 35 defines as an obligation “to re-establish the situation which existed before the wrongful act was committed,” although it is qualified by the requirement that restitution “does not involve a burden out of all proportion to the benefit.” Further, again in the context of Israeli settlements in Palestine, UN Security Council Resolution 465 (1980) calls for existing settlements to be “dismantled,” although it is notable that the more recent Resolution 2334 (2016) “calls for affirmative steps to be taken immediately to reverse the negative trends on the ground,” which lacks some of the earlier resolution’s clarity and conviction. Both suggest, however, that the view of the international community is that the property remedy is the undoing of such settlements. It is therefore submitted that the repatriation of settlers would be the default legal position in international law. All this said, it must be recognised that any such restitution could, in practical terms, have deeply sensitive political ramifications due to involving, as it might, the mass deportation of civilians in a wartime context as, indeed, the Israeli-Palestinian context shows.
Conclusion
Any current or future settlement plan pursued by the Russian Federation in the temporarily occupied territories would undoubtedly be illegal under international law. Should Russia continue this program, the Wall advisory opinion again proves instructive. The Court’s discussion of remedies lists the following potential legal obligations that would be imposed on the Russian state if it pursues this settlement plan in Crimea: cease the program and give assurances of non-repetition; make reparations for damage caused to natural and/or legal persons adversely affected; and return requisitioned land.