Seizure of Russian territories: We are not them

Authors:

Gyunduz Mamedov, PhD in Law, Deputy Prosecutor General of Ukraine (2019-2022)

Serhiy Zayets, Lawyer, Advisor on the Application of ECHR Practice and International Human Rights Protection, AZONES Law Firm

For more than 10 years, war has been ongoing on Ukrainian territory. During this time, numerous violations have been committed by the Russian authorities and army against our citizens. But recently, the nature of the war has changed, as the Ukrainian Armed Forces (UAF) have seized dozens of settlements in the Kursk region and now control about 1,000 square kilometers. This is not only a potentially strategically important victory, but also a challenge that will test whether we have learned the necessity of adhering to international humanitarian law (IHL) norms despite everything. So, can we uphold the standards of human rights and IHL that we have so often invoked while condemning Russia’s actions?

The capture of territories in the Kursk region has understandably sparked lively reactions among Ukrainian citizens. After all that we have endured in recent years, this is entirely understandable. At the same time, we must be extremely cautious and act with a "cool head," as our actions on Russian territory will largely determine the future course of the war. This is not just about military actions, but also about adhering to the laws and customs of war. Before expressing sincere outrage at this thesis, we should define some key points that are important to all of us. Do we want those responsible for international crimes in Ukraine to be justly punished and imprisoned, from the perpetrators to the military-political leadership? We dare to assume the answer is yes. But do we also acknowledge that our war heroes could end up in the dock? We would hope not. However, history shows that such situations have occurred and continue to occur. For example, in Croatia, national heroes have found themselves on trial. For the blindfolded goddess of justice, there are no friends or foes, victors or vanquished. And to bring justice closer while minimizing the risks for Ukrainian soldiers, there is a very simple recipe: adherence to IHL. In fact, Ukraine has done much to implement IHL principles in the army, and now we face an important "test" of whether it has been enough.

At the same time, we should not underestimate the significance of the changes taking place. For ten years, we have been in the role of the victim of unlawful, unprovoked aggression, viewing everything that happens through this lens. We have studied and analyzed the actions of the occupying authorities in detail, closely monitored all violations, pointed them out, registered cases, and sent data to international institutions: the ICC, the ECHR, the UN… And in truth, being a victim in the modern system of international law is easier than being a winner. But we have every chance to rise to this challenge.

We simply need to be guided by international treaties and the obligations they impose on occupying states. We must now establish the relevant policies at the legislative level. The occupation of enemy territory automatically raises questions about the administration of justice, the application of substantive and procedural law, the provision of protection from criminal prosecution, the registration of deaths and births, property issues, and more. We cannot act as Soviet soldiers did in Berlin, driven by revenge. Civilians are protected by the Geneva Conventions. Likewise, property is protected. Accordingly, we cannot simply seize or destroy property in occupied territories unless dictated by military necessity. We cannot take civilians hostage to exchange them for our own. We cannot even use a local nuclear power plant (though nothing prevents us from blocking it). We cannot change school curricula, force the issuance of passports, or demolish local monuments. We cannot deport the locals against their will. Instead, we should consider an effective mechanism for internment, as we will likely have problems with disloyal populations. We must also combat local looters and protect them from mob interest. No matter how intense our emotions and hatred toward the enemy, this is all necessary primarily for us. Of course, this applies if we plan to build a lawful state and care about the support of our partners, including weapons supplies. Sooner or later, we will need to establish a justice system in the occupied territories, and not just in any way, but in accordance with IHL.

In reality, we have a standard by which we can determine the limits of what is permissible for ourselves: our claims against the Russian authorities. Some of these are still just claims that require evaluation; others are legitimate demands confirmed by the ECHR and other institutions. The claims regarding violations of international law that we have made against Russia should serve as the standard for evaluating our own behavior. "For with the measure you use, it will be measured to you." Moreover, the Russian government has long been generating a noticeable stream of complaints to the European Court of Human Rights (ECHR) against Ukraine through a certain well-known Moscow law firm, and they will not hesitate to use others' experiences and our mistakes.

We, on the other hand, should get used to the role of being strong and victorious. It's unusual, but pleasant. The way we achieve victory is also of great importance. The moral superiority provided by adherence to the principles of IHL regarding the distinction between military and civilian targets and the proportionality of harm to military necessity constitutes a significant part of our new image.

For now, our actions in the Kursk region are entirely lawful. Notice that none of our partners have reproached or condemned us. After all, occupation itself is a temporary legal regime. Ukraine has no territorial claims, and it is important to emphasize this. It was the Russian authorities who turned the occupied territories into zones of fear and numerous crimes; we can show that it can be different. It is important to understand that we are now under the scrutiny of the entire world. We simply cannot give the Russian propaganda machine the slightest reason to accuse us of war crimes. They are, of course, accustomed to fabricating accusations, but without evidence, no one will believe them. So, it's time to prove once again that this is not just a war for territory but a civilizational divide. Where Ukraine can fulfill its obligations and adhere to international humanitarian law.