Crimea and the Interrelationship Between Military Occupation and Annexation
Every State in the world is protected from the use of force against its sovereignty and territorial integrity. This protection and the corresponding right of self-defense, enshrined in Article 51 of the UN Charter, lie at the heart of international law. Put simply, annexing the territory of a sovereign State violates international law (UN Charter, art. 2(4); SC Res 497; GA Res ES-11/4). Nevertheless, for States engaged in land grabs, extending their boundaries through the use of force and militarily controlling their neighbors’ territories is not uncommon. Russia’s military occupation and annexation of Ukraine’s Crimean Peninsula is but one example of this behavior.
This post discusses the relationship between the concepts of military occupation and annexation under international humanitarian law (IHL) using Crimea as a paradigmatic example. Russia’s actions in Crimea demonstrate that the territory of a State can be annexed through military occupation as understood under Article 42 of the 1907 Hague Regulations, common Article 2 of the 1949 Geneva Conventions, and Article 1 of Additional Protocol I. Such annexation does not signify the end of military occupation or the loss of rights by protected persons under Article 47 of the Fourth Geneva Convention.
On the contrary, based on the separation of the jus ad bellum and jus in bello, it can be argued that such annexed territory bears a dual status under international law. Specifically, in addition to the regulation of military occupation by the jus in bello, annexations can be regulated in parallel by the jus ad bellum. IHL thus protects those who find themselves under occupation and continues to apply in toto even if the territory is annexed.
Factual Background
Ten years have passed since Russia occupied and annexed Ukraine’s Crimean Peninsula. In February 2014, Russian troops without insignia (known as “little green men” or “polite men”) took over Crimea’s Supreme Council, asserting control over key sites across the peninsula including Simferopol International Airport and military bases. After this takeover, the Crimean parliament held an emergency session and, under dubious circumstances, installed a new government.
On 11 March 2014, the regional parliament adopted the “Declaration of Independence” of Crimea with the clear aim that Crimea and the city of Sevastopol would become part of Russia. A referendum on joining Russia was held just five days later. On 27 March 2014, UN General Assembly in Resolution 68/262 rejected the results of that referendum, declaring it invalid as the basis for any alteration in the status of the Autonomous Republic of Crimea and the city of Sevastopol. Nevertheless, in mid-April the Russian president appointed an interim head of Crimea. Crimea is now regarded as a subject of the Russian Federation (see also Russian Constitution, art. 65).
Ten years on, Russia appears to have violated a number of IHL norms on the peninsula, including conscripting men in occupied Crimea to serve in its armed forces. Since 2014, Russia has held eighteen conscription campaigns that largely affected Crimean Tatars. And between 2014 and 2021, Russia conscripted up to 30,000 Crimean men. The current estimate of conscripted males from Crimea over the past ten years stands between 42,000 and 43,000. Russia has also subjected Crimean children to military propaganda.
Russia’s forceful conscription and military propaganda practices extend to other occupied Ukrainian regions, thereby forcing Ukrainians to fight against each other and their country. Further, Russia has suppressed non-Russian identities living in Crimea by the threat and use of violence, intimidation, enforced disappearances, killings, and unlawful trials. Russia displaced Ukrainian law with its own, thereby violating Article 64 of the Fourth Geneva Convention. Russia also altered the demographic situation on the peninsula, rendering ethnic Russians the largest group living there. As described by one non-governmental organization,
Russia has systematically sought to eradicate Ukrainian and Crimean Tatar identities by disrupting, restricting or banning the use of Ukrainian and Crimean Tatar languages in education, media, national celebrations and other spheres of life, and oppressing religious and cultural practices that do not conform to those endorsed by Moscow. It has also forcibly transferred population out of Crimea and transferred the Russian civilian population in … .
All the above violations and practices raise the question of Russia’s international responsibility both as a military occupant and annexor. By holding a sham referendum Russia sought to acquire ownership of Crimean territory, circumventing the principle of self-determination in international law. By transferring its civilian population, it has changed the ethnic and linguistic composition of the peninsula. It is evident that Russia’s actions in Crimea blatantly violate core principles of international law and those of the UN Charter. Russia continues to bear the status of a military occupant under IHL, regardless of its purported annexation of Crimea, and it must thereby fully comply with its IHL obligations as well as those arising under human rights law.
Interrelationship Between Occupation and Annexation
According to Article 42 of the 1907 Hague Regulations, territory “is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” During military occupation, the occupant does not gain territorial sovereignty over the territory and is not allowed to change the occupied territory’s status quo ante.
Annexation can be explained as the forcible acquisition of territory by one State at the expense of another; it often presupposes the effective occupation of the territory in question with the clear intention to take possession. The recent advisory opinion of the International Court of Justice on the Legal Consequences Arising From the Policies and Practices of Israel in the Occupied Palestinian Territory Including East Jerusalem defines annexation as “the forcible acquisition by the occupying Power of the territory that it occupies, namely its integration into the territory of the occupying Power. Annexation then presupposes the intent of the occupying Power to exercise permanent control over the occupied territory” (para. 158).
Formerly, when a State conquered territory, it also took title to that territory (N.A. Maryan Green, International Law: Law of Peace, p. 168). Not so in contemporary international law, as Article 2(4) of the UN Charter makes the acquisition of territory by force illegal. The annexation of territory following the unlawful acquisition of that territory via a threat or use of force thus arises from a serious breach of international law. Military occupation may or may not ultimately lead to annexation of the territory. Regardless, IHL makes clear that when annexation of territory occurs, occupation persists. As a result, the territory can have a double status based on the separation of the jus ad bellum and jus in bello, as mentioned above. Annexation can then result either directly from the actions of the invader or indirectly via an intermediary, for instance, de facto authorities.
When de facto authorities effectively control territory and annexation takes place by another State, annexation would constitute effective control over the territory as understood in occupation law only when these de facto authorities are totally submitted to the will of the annexing State. In other words, the State exercises effective control over the territory directly, thereby obliterating the intermediary actor (p. 73-74).
This reasoning can be inferred from Article 47 of the Fourth Geneva Convention.
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.
The Pictet commentary to Article 47 regards an occupying power to be bound by the Fourth Geneva Convention “even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.” Thus, annexation of the occupied territory is prohibited; the occupant cannot take title, which de jure the displaced sovereign continues to hold. Therefore, “any unilateral annexation by the Occupying Power of an occupied territory—in whole or in part—would be legally stillborn” (p. 59). This suggests occupation would not come to an end by annexation as, in the eyes of modern international law, annexation would not be legal. From an IHL point of view, territory continues to be occupied, and the annexing State is bound by the provisions of occupation law.
Russia’s IHL obligations as an occupier are primarily set out in the Fourth Geneva Convention, Additional Protocol I, and in human rights law instruments. Russia, for instance, should desist from conscripting Crimean men into the Russian forces to fight against Ukraine (Fourth Geneva Convention, art. 147), and also stop the transfer of the Russian population into Crimea in contravention of Article 49.
Ending the Occupation and Annexation of Crimea
Under international law, Russia’s occupation and annexation of Crimea must end. In other words, Russia must fully relinquish the effective control it exercises over the peninsula so that the Ukrainian government is able to step in and control the territory.
There are three principal ways that the occupation of Crimea could come to an end:
1. First, Russia vacates the territory and peacefully hands territorial control of Crimea to Ukraine under the terms of a peace treaty. The latter could then resume its exercise of governmental powers over the area and its inhabitants and Russia would fully divest itself of any form of control over the territory.
2. Alternatively, if Russia obtains consent for its military forces to remain on the territory of Ukraine or parts thereof the occupation would also end, provided such a presence is based on genuine consent (as per the Vienna Convention on the Law of Treaties, art. 25) issued by the ousted sovereign or the authority that has legitimately come into power. In other words, such consent cannot be engineered. However, the legality of any such arrangement remains in doubt.
3. A third way Crimea’s occupation and annexation could end is through an exercise of self-determination. While self-determination reflects both a principle and a right in international law, it should not be exercised in contravention of State sovereignty and territorial inviolability. External self-determination would be germane here. This would signify a group of people, in this case, the entire population of Crimea in its pre-invasion shape (before Russia transferred some of its own population into the territory) that is entitled to constitute itself as a nation-State, to re-integrate into Ukraine, or to federate with another already existing State. While difficult to implement in practice, particularly because ten years have passed since Russia’s purported annexation, one could still envision a scenario whereby e-voting was organized based on proof of pre-2014 residence. This of course would require major trust in the whole endeavor, honesty, transparency as well as the involvement of the international community.
Concluding Remarks
In contemporary international law, annexing territory that is militarily occupied (directly or through de facto authorities) is illegal. In the words of the late Yoram Dinstein, the 2014 occupation and annexation of Crimea by Russia is “legally stillborn” (p. 59). Russia’s occupation and annexation of Crimea should come to an end immediately, with Russia fully vacating and relinquishing its military and governmental control over the peninsula, thereby allowing Ukraine to resume its governmental functions and territorial control.
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Natia Kalandarishvili-Mueller is a Professor of International Law at ALTE University in Tbilisi, Georgia
Photo credit: Anton Holoborodko
