For Ukraine to be able to defend its interests in cases against the Russian Federation, we have to prove the fact of occupation through assessing the situation in Donbas in accordance with terms and criteria set by international law.
Wayne Jordash, QC, Managing Partner of the international group Global Rights Compliance, presented a legal analysis of the way to carry out this assessment at a press briefing held at Ukraine Crisis Media Center.
Does the situation in Donbas fall under this definition?
The classical definition* of occupation implies the presence of the hostile army exercising authority over the territory of the state or its parts. However, international humanitarian law (IHL) also recognizes that certain situations, that occur during armed conflicts, can trigger application of the law of occupation, in a situation which does not fall under the definition of classical occupation. “Current conflicts often involve situations when the area is controlled by the armed forces acting on behalf of a foreign state. So, in the case of Donbas a question arises whether Russia controls the situation through the controlled armed forces,” noted Wayne Jordash. “It is important to find out whether those who control are acting on behalf of the state. […] It can be regarded as occupation by proxy”.
“Overall control” also includes such relationship between a state and a corresponding formation as financial support (payment of salaries, etc.), logistics, material and technical support, organizational support and planning, coordination and participation in military operations or activities related to them, as well as regularity and amount of this support. “It is what the ICC prosecutor is investigating now. She is investigating whether Russia has total control over the military groups in the east of Ukraine,” he explained.
What institutions can Ukraine apply?
The key international institutions Ukraine can apply to the International Court of Justice, the European Court of Human Rights and the International Criminal Court. The Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Humanitarian Fact-Finding Commission can also consider Ukraine’s complaints.
What are the obligations of Russia, if the fact of occupation proven?
Wayne Jordash noted that the obligations of occupying party are determined by The Hague Regulations and Geneva Conventions. In particular, among other things, the occupying party must respect property rights, has no right to resort to forced displacement of the population, respect the social and human rights of the population, ensure access to food, medicines, medical care etc. and observe commitments in the human rights area under treaties that it signed. In the case of Russia, it is the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
What are the obligations of Ukraine, if Russia is recognized as the invader?
According to the IHL rules, Ukraine in any case must comply with the rules governing the means and methods of warfare: the principle of distinction, verification of military targets, monitoring of the attack, the principle of humane treatment of persons who are under protection and rules ensuring access to humanitarian aid: the obligation to allow rapid and smooth transportation of all humanitarian aid to the civilian population, which is impartial in character and provided without discrimination; ensuring freedom of movement of authorized humanitarian aid personnel.
“Even if Ukraine has no control over Donbas, in accordance with the general rule established by the ECHR and Human Rights Committee, its commitments on human rights of the population living in the area are retained. Of course, Ukraine cannot fulfill some of them because of lack of control, but Ukraine must take all possible measures to ensure human rights. Relevance and adequacy of such measures will be assessed separately for each case,” noted Wayne Jordash.
* Key international documents and definitions
The cornerstone of definition whether the situation in the country is occupation is Article 42 of The Hague Regulations. According to it, the occupation begins “from the moment the territory or part of the state is placed under the authority of the hostile army, regardless of whether this situation is called “intrusion,” “liberation,” “control” or “occupation,” noted Wayne Jordash. According to the interpretation of the International Committee of the Red Cross, the effective control criteria are as follows: 1) physical presence of the hostile armed forces in a foreign country without its consent; 2) exercise of authority throughout the territory or its parts by foreign forces rather than local governments; 3) substantial or complete inability of local governments to exercise their powers because of nonconsensual presence of foreign forces.