Ukraine Symposium – Is Ukraine Occupying Territory in Russia?

In the early morning hours of August 6, Ukrainian forces in armored vehicles moved into the Kursk region of Russia. This surprise offensive by Ukraine into Russia represents the largest foreign incursion into Russia since the Second World War. By August 15, the Ukrainian offensive expanded into the Belgorod region. On August 20, Ukrainian Commander-in-Chief Colonel General Oleksandr Syrskyi stated that Ukrainian forces had advanced between 28 and 35 kilometers deep into Kursk Oblast and that its forces “control” 93 settlements, an area of 1,263 square kilometers.

Until recently, the overall goal of this offensive into Russia remained unclear. Analyists suggested that there were two main aims: (1) draw Russian forces from the front lines in eastern Ukraine; and (2) seize territory that could serve as a bargaining chip in future peace talks. On August 18, Ukrainian President Volodymyr Zelenskyy in his nightly address stated that the incursion into the Kursk region is intended to create a buffer zone to prevent Russian attacks from across the border. Zelenskyy said “it is now our primary task in defensive operations overall: to destroy as much Russian war potential as possible and conduct maximum counteroffensive actions. This includes creating a buffer zone on the aggressor’s territory – our operation in the Kursk region.”

Mykhailo Podolyak, a Ukrainian presidential adviser, stated on social media that “Ukraine is not interested in occupying Russian territories. This is obvious. Because Ukraine is waging an exclusively defensive war strictly within the framework of international law… .” He further suggested that the best way to get Russia to the negotiating table is their suffering “significant tactical defeats.”

Although Ukraine may not be interested in occupying Russian territory, the fact that its military forces now “control” more than 93 settlements and 1,263 square kilometers of territory in Russia does raise the question of whether Ukraine is considered an occupying power under international law.

This post will consider: (1) when an occupation occurs under the law of armed conflict (LOAC); (2) the components required for “effective control;” (3) whether Ukraine is an occupying power in the Kursk/Belgorod regions; and (4) whether applying the “Pictet theory” to the current incursion into the Kursk/Belgorod regions mean that that Ukraine is now occupying this territory.

When Does an Occupation Occur?

The main sources of international law governing whether territory is considered occupied are the Hague IV Regulations of 1907, the Fourth Geneva Convention of 1949, as well as Additional Protocol I of 1977 to the Geneva Conventions. Both Russia and Ukraine have ratified or acceded to these treaties. Article 42 of the Hague Regulations provides that 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.” Common Article 2 of the 1949 Geneva Conventions indicates that an occupation can exist even when there is no armed resistance. Additional Protocol I added further protections in occupied territory such as for civilian medical personnel, civil defense personnel, and relief for the civilian population.

Whether an occupation exists is a question of fact and does not rely on a subjective perception of the parties to the conflict. Instead, it remains an objective determination based on the de facto submission to the authority of the hostile armed forces. As noted by the International Committee of the Red Cross (ICRC), the “term ‘occupation’ has no political connotation whatsoever and is derived exclusively from Article 42 of the Hague Regulations of 1907.” Under LOAC, certain elements, which constitute the “effective-control test,” must be met to determine whether a situation qualifies as an occupation.

This notion of effective control of foreign territory is at the heart of occupation as it permits foreign troops to enforce duties imposed on them by occupation law. Accordingly, territory is considered occupied whenever it comes under “the effective control of hostile foreign armed forces,” even if the occupation meets no armed resistance and there is no fighting.

The Effective Control Test

The effective control test consists of three main elements: (1) the physical presence of armed forces without the consent of the government in place at the time of the invasion; (2) the inability of the government in place to exercise its powers by virtue of the foreign forces’ presence; and (3) the foreign forces are in a position to exercise authority over the territory in lieu of the government.

These elements of effective control are still debated. For example, is the presence of military forces in occupied territory required? Does occupation require the actual assertion of authority or is the ability to exert that authority sufficient? Finally, must the occupying power exert exclusive authority over the territory in lieu of the government?

Presence of Foreign Troops

The physical presence of foreign armed forces is considered a requirement for the establishment of an occupation, which has often been described as having “boots on the ground.” As Tristan Ferraro noted, the physical presence of the hostile army in occupied territory is presumed throughout the Hague Regulations and the Fourth Geneva Convention. This position was reconfirmed by two decisions by the European Court of Human Rights with respect to the Nagorno-Karabach region, finding that “physical presence of foreign forces is a sine qua non requirement, i.e., occupation is not conceivable without ‘boots on the ground.’”

With respect to the Ukrainian incursion into Russia, there are clearly Ukrainian “boots” on the ground. According to the Royal United Services Institute, a United Kingdom think tank, it is estimated that there are approximately 8,000 Ukrainian troops drawn from twelve brigades on the ground in Russia. Accordingly, even though some argue that once occupation has been established, the requirement for “boots on the ground” is lessened and effective control can still be maintained by other means without the permanent physical presence of troops, this is not an issue that must addressed at this point to determine whether Ukraine meets this portion of the effective control test.

Exercise of Authority by Foreign Forces

The second and third prongs of effective control test are that “the foreign forces are able to exercise authority over the areas in lieu of the territorial sovereign, and the related inability of the [sovereign] to exert their authority over the territory.” It remains unsettled whether the foreign forces’ control must be actual control or whether it is merely the ability to exercise authority over the occupied territory. The International Court of Justice (ICJ) in the Armed Activities case determined that an occupation required the foreign forces to exercise actual authority, not merely being able to exercise authority. This holding has been criticized by some commentators as not reflecting lex lata, which emphasizes the ability to exercise authority and not the actual authority. The UK Manual of the Law of Armed Conflict also takes the position that it is sufficient if the “occupying power is in a position to substitute its own authority for that of the former government.”

The latter view set forth in the UK Manual is certainly more legally supportable. Under the ICJ view, an occupier could simply refuse to assume its duties under the law so as not to be seen as actually exerting authority. An occupying power could then evade its responsibilities and not govern and by refraining from maintaining law and order or meeting the basic needs of the population to not be seen as the occupying power. As one commentator suggested, this would create a gap in protection for the civilian population as well as a gap in governance.

Must an Occupier Exert Exclusive Authority?

There is also disagreement on whether the occupying power must exercise authority over the occupied territory to the exclusion of the sovereign. One of the underlying principles of occupation law is that the occupying power must prevent the sovereign from exercising its governmental authority. Some argue that this means it must be the exclusive authority independent of the displaced sovereign. Accordingly, there cannot be any sharing of authority. This was the position that the U.S. Military Tribunal in Nuremberg took in the Von List case.

One commentator argues that Von List does not reflect current law. He asserts that while the Occupying Power bears responsibility for the occupied territories, it allows for a vertical sharing of authority as implied by some provisions of the Fourth Geneva Convention, which requires cooperation between the occupying power and national and local authorities.

Is Ukraine Occupying Russian Territory?

What does the “effective control” test tell us about the incursion by Ukraine into Russian territory? As discussed above, the first element, “boots on the ground,” has certainly been met. The harder question is whether Ukrainian forces are able to exercise authority over the territory that they “control” along with whether Russian authorities are unable to assert authority over this territory.

In the Naletilić case, the International Criminal Tribunal for the former Yugoslavia (ICTY) elaborated some guidelines to help determine whether the authority of an occupying power has been established and ascertain whether a situation amounts to an occupation. These guidelines include:

– the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly;

– the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation;

– the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt;

– a temporary administration has been established over the territory;

– the occupying power has issued and enforced directions to the civilian population.

Considering these Naletilić guidelines, it is my view that Ukraine has not yet established effective control over the Russian territory to amount to an occupation. It is also important to remember at the time this post is written, the Ukrainian incursion into Russia territory is less than three weeks old and as time goes forward facts on the ground could easily change.

First, this territory remains a “battle area.” As of August 22, the Institute for the Study of War (ISW) reported that Ukrainian forces continued to strike pontoon bridges and staging areas along the Seim River in Glushkovsky Raion, west of the current Ukrainian salient in Kursk Oblast. Additionally, ISW reports that there is still significant opposition by Russian forces through “drone strikes and anti-tank guided missile (ATGM) fire” that has prevented Ukrainian forces from gaining territory near the town of Komarovka and other areas within the Kursk oblast. So, it cannot be said that Russian forces have “surrendered, been defeated, or withdrawn.”

Turning to the question whether Ukraine has sufficient forces present, or the capacity to send more forces within a reasonable time, as noted above, there are approximately 8,000 troops in Russia. Although General Syrskyi stated that Ukrainian forces “control” 93 settlements in an area approximately 1,263 square kilometers, one commentator noted, “‘Control’ may be an overstatement.’” Russian government sources indicate that because Ukrainian forces remain away from the more densely populated areas, such as Kursk City, they are content to continue the fight in the Kursk Oblast with existing forces but will continue to prioritize their offensive operations in eastern Ukraine.

It also appears that Russian authorities have not been rendered incapable of functioning. Russia is planning on carrying out the upcoming Kursk Oblast gubernatorial elections scheduled for September to minimize panic in the region. Although the Russian Central Election Commission has decided to postpone local elections in the seven districts in Kursk Oblast that are impacted by the Ukrainian incursion due to security risks, the Russian State media’s coverage is portraying Kursk Oblast and its residents as supporting the Russian war effort in Ukraine, despite encountering some mild wartime disruptions to residents’ ordinary lives. Although this could be media propaganda, it doesn’t appear that Russian authorities are incapable of carrying out their duties.

One fact that possibly supports a conclusion there is an occupation is that Ukraine has set up a temporary military administrative office in Russia’s western Kursk region. General Syrski said the office would “maintain law and order” and “meet the immediate needs” of the population “on the territories controlled by Ukraine.” Maria Mezentseva-Fedorenko stated that the forces are being deployed to help the civilian population remaining on the territory of the Kursk region. She reiterated that Russian authorities “cannot articulate to the world the reasons for their failure, in particular in working with the civilian population, which was not evacuated and to which the Russian Federation itself did not create humanitarian corridors and does not provide humanitarian aid.”

Considering all the facts together, it is my view that Ukrainian forces are not exercising sufficient control in the Kursk region to establish effective control over this territory. As noted, however, the operation is less than one month old and circumstances may change to the point that Ukrainian forces could meet the effective control test.

Does the Pictet Theory Establish an Occupation in Russia by Ukrainian Forces?  

A final question is whether, under what is referred to as the “Pictet Theory,” the Ukrainian incursion alone would establish an occupation. The Pictet Theory asserts that during the combat phase of operations, certain provisions of the Fourth Geneva Convention with respect to occupation apply to protected persons.

The Hague Regulations with respect to occupation are supplemented by Part III, Section III of the Fourth Geneva Convention. Common Article 2 to the Geneva Conventions broadened the scope of application of the law of occupation to cases where an occupation meets no resistance. However, the Fourth Geneva Convention is silent on when combat operations transition into an occupation, which raises the issue of whether one looks to Article 42 of the Hague Regulations or whether a separate, and different, test applies under the Fourth Geneva Convention.

In the commentary to the Fourth Geneva Convention, Jean Pictet argued that the term “occupation” in the Convention must be construed more broadly than Article 42 of the Hague Regulations. According to Pictet, the provisions on occupation in the Fourth Convention apply as soon as enemy forces exercise control over a person. Under this test, occupation is based on control over persons rather than control over territory as required under the Hague Regulations. Pictet concludes:

There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intentionof staying there must respect the Conventions in its dealings with the civilians it meets.

Prior to the adoption of the Geneva Conventions, there was a clear distinction between occupation and invasion. It was generally accepted that the law of occupation would apply only after a minimum level of stability had been reached and the military force was able to exert effective control. This was affirmed by the ICTY in the Naletilić case.

Martin Zwanenburg, Michael Bothe, and Marco Sassoli, in an excellent article, debate whether the provisions of occupation law would apply only when the definition set out in Article 42 of the Hague Regulations are met or whether, based on the “Pictet theory,” there is no intermediate phase between invasion and occupation and certain provisions of occupation law already apply during an invasion.

The Pictet Theory focuses on the individuals who find themselves in the hands of an Occupying Power. It presupposes an occupation, which does not arise merely when persons find themselves in the hands of a party to the conflict. The Pictet theory conflates the test for when a person is considered a protected person with the test for whether there is an occupation, which cannot be found by looking at the text of the Fourth Convention related to occupation. Nothing in the Geneva Conventions suggests that the drafters meant to supersede the Hague Regulations regarding occupation.

In my view, the Pictet Theory cannot be used to argue that the current combat operations in Russia amount to an occupation. Ukraine is focused on its military operations versus trying to determine how to govern the Kursk Oblast. Most States, including Ukraine, will be unable to fulfil the obligations of an occupying power until there is effective control over particular territory. This incursion, at least at this point, does not rise to the level of an occupation.

Conclusion

The military operations by Ukraine in the Kursk and Belgorod regions of Russia will continue to remain fluid as both parties continue to engage in fighting in these regions as well as in eastern Ukraine. The question of whether an occupation exists is often framed as a binary choice of yes or no, but the effective control test leaves room for interpretation and must be assessed by the facts on the ground. In my view, it is too soon to say that Ukraine is occupying the Kursk region as it does not meet the effective control test. The Pictet Theory, though laudable in trying to ensure more protections for civilians caught up in an occupation, cannot be used to argue that current combat operations in Russia amount to an occupation. However, if Ukraine continues to stay and consolidate control and assert its authority, then it will be occupying that area.

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Photo credit: Mil.gov.ua