Russia appears to be accelerating efforts to replenish its battlefield strength through passportization and conscription of Ukrainian nationals in Russian-occupied areas of Ukraine. Such efforts suggest a certain degree of desperation on Russia’s part in the face of battlefield setbacks during its illegal and ill-conceived war against Ukraine. They shine a light on the plight of Ukrainian nationals living under Russian occupation and in territories that Russia has attempted to annex in gross violation of international law. And they indicate Russia’s embrace, as a matter of policy, of a pernicious war crime that forces Ukrainian nationals to betray their allegiance to Ukraine in order to fuel its aggression.
International humanitarian law (IHL)—the law governing the conduct of hostilities and the protection of persons during armed conflict—imposes specific obligations on states that occupy foreign territory. As a matter of law, territory is occupied when it is “actually placed under the authority of [a] hostile army.” Upon the displacement of the territorial state’s authority, the occupying power becomes merely a de facto administrator of the territory it actually controls, responsible for, among other things, restoring public order and safety, and providing for the welfare of the occupied population while respecting the laws in force in that territory prior to occupation. In addition to its obligations with regard to the occupied territory and the individuals living therein, the occupying power is prohibited from forcing the inhabitants of occupied territory to betray their allegiance to the state whose territory is now occupied.
The most obvious—and disturbing—example of such prohibited conduct is conscripting the inhabitants of occupied territory into the occupying power’s army. It is not difficult to understand why the law prohibits an occupying power from “compel[ing] protected persons [inhabitants who are not nationals of the occupying power] to serve in its armed or auxiliary forces.” Imagine your country is invaded and occupied by a foreign adversary, and that adversary forces you to fight in its military against your compatriots. Indeed, IHL has prohibited such conduct since at least the adoption of Hauge Convention with respect to the Laws and Customs of War on Land in 1899, which barred occupying powers from forcing occupied inhabitants to change their allegiance to that of the occupying power and forbade them from compelling “the population of occupied territory to take part in military operations against its own country.”
Following World War II, the Fourth Geneva Convention reaffirmed and strengthened this rule. Not only does the Fourth Geneva Convention proscribe occupying powers from compelling protected persons to serve in their armed forces, it prohibits them from even using propaganda “aim[ed] at securing voluntary enlistment” of protected persons in occupied territory. The object of this prohibition is to “protect the inhabitants of the occupied territory from actions offensive to their patriotic feelings or from attempts to undermine their allegiance to their own country.” This command is absolute, permitting no derogation precisely because, according to the authoritative Commentary to the Fourth Geneva Convention, “it is difficult to distinguish between propaganda and a more or less disguised form of constraint.” Moreover, the Fourth Geneva Convention regards violations of this bright-line rule as a grave breach of the Fourth Geneva Convention, the most serious violation of IHL, demonstrating, as the Commentary explains, “the importance . . . attached to this indispensable prohibition.”
Unfortunately, notwithstanding IHL’s clear command, public reporting suggests that Russia is illegally impressing Ukrainians living in occupied Crimea and in occupied areas of the Donbas into its armed forces to offset its battlefield losses. Even before Russia began its autumn 2022 mobilization campaign, it employed conscription in occupied Donbas to bolster its ranks following its February 2022 invasion. By June 2022, the Financial Times reported that Russia’s puppet authorities in the so-called Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR) had “intensified the call-up, with residents saying men with no military experience are regularly plucked from the streets and immediately sent to the front.”
As Russia’s prospects in Ukraine have continued to dwindle, its efforts to convert Ukrainians into Russians, and to replenish its manpower on the backs of the Ukrainians living under occupation, have apparently intensified. According to the Center for European Policy Analysis (CEPA), Russian authorities in Crimea have made access to medical care and social services contingent upon acceptance of Russian citizenship, effectively compelling Ukrainian refugees in need to switch their allegiance to Russia, at least in the formal sense—and making them vulnerable to conscription into Russia’s war against their rightful sovereign.
At the same time, according to CEPA, “Russian forces have stepped up forced mobilization in Donetsk Oblast,” which Russia asserts is part of Russia proper after its illegal attempted annexation. In December 2022, CEPA reported that the Kalinin District Military Commissariat in Donetsk drafted 28 local women and sent them for military training in order to replenish the depleted 1st Army Corps. The Ukrainian Center for National Resistance recently warned that Russian forces are planning the large-scale forcible conscription of Ukrainian civilians in early 2023 to fight against the Ukrainian Armed Forces.
Properly assessing the status of Crimea and the Donbas as occupied is essential to concluding that Russian conscription and enlistment of the inhabitants there violates IHL. If these territories were actually part of Russia and subject to Russian sovereignty, they would not be occupied and Russian law would determine whether the residents could be subject to conscription into the Russian armed forces. But these territories are not part of Russia. They are—and, notwithstanding their occupation, remain—part of Ukraine. International law prohibits the forcible acquisition of territory, as well as the annexation of occupied territory absent a peace treaty ceding such territory. Consequently, both Russia’s purported annexation of Crimea in 2014 and its purported annexation of Donetsk, Luhansk, Kherson, and Zaporizhia Oblasts in September 2022 are, as a matter of international law, not only illegal but nullities. Indeed, the Fourth Geneva Convention anticipates and prohibits the use of purported annexation to circumvent the protections afforded inhabitants of occupied territory, including the protections against forcible changes in allegiance or recruitment into the armed forces of the occupying power. Thus, the Ukrainian territories occupied by Russia remain occupied Ukrainian territory and both forcible changes in the allegiance and the conscription of Ukrainians are illegal. More, in the case of the latter, Russia perpetrates a grave breach of the Fourth Geneva Convention.
Russia’s apparent war crimes in Ukraine are numerous, gruesome, and abominable. Russia’s employment of Ukrainian conscripts against their own government is another, especially distressing expression of Russian lawlessness and brutality. Indeed, among the pantheon of Russian war crimes, its conscription of occupied Ukrainians is particularly objectionable because it forces them to betray their patriotism, their fellow Ukrainians, and their allegiance to Ukraine. Accountability for Russian war crimes, including its illegal conscription of Ukrainians living under Russian occupation, cannot come soon enough.
This essay does not represent the views of the US Department of State.
Benjamin Farley is a visiting professor at Emory University School of Law and the acting director of the Emory International Humanitarian Law Clinic. He is on leave from the US Department of State, where he serves as deputy director of the Office of Terrorist Detentions in the Bureau of Counterterrorism.
Suggested citation: Benjamin Farley, War Crimes As Warfare: Russian Conscription of Ukrainians Living Under Occupation, JURIST – Academic Commentary, February 3, 2023, https://www.jurist.org/commentary/2023/02/war-crimes-as-warfare-russian-conscription-of-ukrainians-living-under-occupation
This article was prepared for publication by JURIST Staff. Please direct any questions or comments to she/her/her at commentary@jurist.org
