In Ukraine, Russian Passportization Generates Effective Denationalization
Author: Evan Harary, Juris Doctor, University of Michigan Law School, USA, Fulbright Research scholar, Kharkiv, Ukraine 2021-2022. A graduate of the University of Michigan Law School, Evan has experience in immigration and asylum law, administrative law, and international humanitarian law.
The war in Ukraine is for citizens as much as for territory. The Russian policy of passportization—issuing Russian passports to residents of foreign territory under expedited naturalization procedures—is the core of this Russian campaign, seeking to deprive Ukraine of subjects and expand the Russian polity. Passportization, moreover, is the vanguard of Russian military intervention, and serves in large part as its justification in state media narratives.
Against this backdrop, a growing consensus of states refuse to recognize Russian passports acquired through fast-track procedures. Fewer states, though, have advanced well-reasoned arguments as to how, considering the wide latitude that nationality law grants states to naturalize, the law requires non-recognition of fast-track passports. Moreover, the international community has yet to reckon with the impact of passportization on those targeted.
In practical fact, passportization and the isolation of Ukrainian populations leaves hundreds of thousands without effective nationality, neither able to exercise their full rights as Ukrainian citizens nor able to claim the full benefit of Russian nationality. These people are at acute risk of statelessness—the status in which one lacks the nationality of any state—and suffer many of the same ills as actually stateless people.
The relative lack of attention to this issue cedes rhetorical ground to Russia’s preferred casus belli, and leaves a large and growing population vulnerable to pervasive abuse. To preclude passports as pretext to aggression, ensure accountability, and restore to isolated Ukrainian citizens their right to nationality, states must develop stronger legal positions in response to passportization, and support policy efforts to concretize the citizenship of affected Ukrainians.
Russian Passports as a Signal of Intervention
Russia’s playbook for intervention in the post-Soviet space is well-worn. First, relying on expedited procedures, it issues passports to residents of the territory it seeks to dominate. Next, falsifying or exaggerating the extent of harm to passport-carrying foreign residents at the hands of their government, state media broadcasts relentlessly about the right and obligation of the Russian state to intervene to protect its nominal citizens. Then, having directly or through proxies conquered territory, it sets conditions by which residents of conquered territory can acquire Russian citizenship en masse. The fate of the population of passport-holders then serves as justification for renewed aggression.
Passportization has bracketed Russian intervention in South Ossetia, Abkhazia, Transnistria, Crimea, and Donbass. Indeed, though it does not name it as such, Russia wages war under the aegis of a distorted, nationalistic version of the “Right to Protect” doctrine that its leaders have long decried. Where there are red passports and Russian-speakers, the state line goes, Russia has a right to intervene.
Donbass Occupation Deprived Ukrainians of Effective Nationality
Observers have long understood passportization as a pretext for aggression, but paid little attention to the effects on those targeted. Recent history is instructive on this latter point. Russia made fast-track naturalization available to residents of occupied Donbass in 2019. In that same territory, tens of thousands of children were born without registering with Ukrainian state organs. An unknown, but likely large number of adults lost the means to prove their Ukrainian citizenship, either because they relinquished their documents in exchange for a Russian or Russian proxy passport, or because military action destroyed evidence of their citizenship.
These people are not stateless. Presuming the ineffectiveness of Russian citizenship acquired through passportization, they largely remain citizens of Ukraine. But lacking proof of nationality, their condition, even before February 2022, resembled that of stateless people. Lacking national identification, the could not travel internationally or, within Ukraine, cross the militarized internal border that separated Ukrainian-held from occupied territory. Those who managed to cross into Ukrainian-held territory could not obtain healthcare, vote, open a bank account, register a marriage, or, in certain instances, proceed beyond primary education. In occupied territory, undocumented individuals were trapped and uniquely vulnerable to abuse, including forced labor and conscription into the armed forces of Russian proxy authorities.
Documents issued by proxy authorities and Russian passports were no remedy. No state recognized proxy documents before February 2022, while Ukraine and Western states refused to recognize Russian fast-track passports issued in Donbass, identifiable by their marked place of residence. Those holding fast-track passports did not even enjoy the benefits of citizenship in Russia; before declared annexation, they could not vote or access Russian social benefits.
Ukrainian state migration services maintained processes to establish an individual’s identity and Ukrainian citizenship. But before February 2022, they were unwieldy and slow, even for those who managed to cross militarized borders to get to Ukrainian territory or a Ukrainian consulate abroad. Each local office decided what evidence they would accept to prove citizenship—some took testimony and administrative documents, while some would only accept a Soviet passport registered, as of 1991, to the Ukrainian Soviet Socialist Republic. The process often took years, and in all but the simplest cases applicants needed legal representation and resort to the courts.
In the most difficult cases, moreover, the process could end without result. In these, where state migration services declared that they could not establish an individual’s Ukrainian citizenship, and that the person was not a citizen of any other nation, that person became stateless under Ukrainian and international law. This is because it is the operation of the law—how the law functions in practice to grant or deny nationality—that determines whether an individual is stateless. This scenario makes clear that it is not only administrative decrees and legislation that can generate statelessness, but also actions that destroy an individual’s proof of citizenship.
Denationalization in Newly Occupied Territories
An analogous dynamic is emerging now, only on a much larger scale, in territory that Russia has occupied since February 2022. After launching its full-scale invasion, Russia expanded access to fast-track citizenship first to residents of Zaporizhzhia, and Kherson oblasts, and then to all citizens of Ukraine. Concurrently, Russian occupation administrators reportedly restricted access to vital humanitarian goods and employment to those holding Russian passports, and forced Ukrainians evacuating under duress to relinquish their Ukrainian passports. In Kherson, Russian armed forces went door-to-door, guns in hand, demanding applicants for Russian citizenship. These campaigns of coercion, along with the scale of destruction wrought on Ukrainian private and municipal property, render it all but certain that tens, if not hundreds, of thousands more Ukrainians have lost the means to demonstrate their Ukrainian citizenship and are therefore without effective nationality.
In these zones of effective denationalization, Russian forces have subjected civilians to some of the war’s worst abuses. The most intense and systemic campaigns of torture and extrajudicial execution have taken place among occupied populations where denationalization is likely to be most extensive. Ukrainians in Russian-controlled Donbass and Luhansk have faced forced mobilization since the war’s start, sent to deadly frontlines with minimal training and equipment. Reports are that Russians have begun forced mobilization in Zaporizhzhia and Kherson as well. It is from these same areas that Russian has kidnapped thousands of children, destroying evidence of their nationality and purporting to nationalize them as Russians in the process.
Reversing the damage of passportization and destruction of nationality will be difficult. Upon retaking territory occupied by Russia, Ukrainian state organs face the task of establishing the identity and facts underlying the citizenship of perhaps many thousands of individuals, all in an environment suffused by the threat of Russian infiltration. If the process could take years before February 24th, there is reason to believe that it will be nearly intractable after over a year of total war. The predictable result is that Ukrainian migration services will find that some Ukrainians have no means to prove their nationality, and are not nationals of another state, and are therefore stateless. Still more Ukrainians will likely be left in limbo while establishing their citizenship through bureaucratic procedures, neither stateless nor able to exercise their full right to nationality.
Precluding Passports as Pretext, Ensuring Accountability, and Re-Establishing Citizenship
Passportization provides the pretext for ongoing war, helps create an environment of impunity, and continues to be one of the most active tools in Russian efforts to erase Ukrainian statehood. States must develop legal and policy positions that comport with the overwhelming importance of Russian destruction of nationality in Ukraine.
In arguing for mandatory non-recognition of fast-track passports, states must go beyond vague assertions that Russian actions violate state sovereignty to more substantive legal grounds. To this end, the prohibition on the imposition of nationality may mandate non-recognition in particular instances of passportization. A valid grant of nationality requires the consent of the naturalized individual. Coercing someone into naturalizing vitiates their consent, rendering the resulting grant of nationality invalid. Therefore, where Russian forces directly coerced Ukrainians into applying for Russian passports, either by threatening them with violence or prohibitive administrative sanctions, the resulting grant of nationality is invalid.
In arguing for blanket non-recognition, as opposed to the unlawfulness of individual instances, states may convincingly argue that states must not recognize passports because Russia’s policy of fast-track extraterritorial naturalization is inseparable from its breach of a jus cogens norm. States commonly assert that Russia breached its duty of non-aggression, a foundational peremptory norm—when, without legally permissible justification, it launched a renewed invasion of Ukraine. It is widely accepted as customary international law, moreover, that states must not recognize as lawful situations created by breaches of jus cogens norms. Russian passportization is inseparable from its breach of the duty of non-aggression in that passportization served as pretext for unlawful war, and is fundamental to the Russian campaign to establish political control over Ukrainian territory. It stands to reason, therefore, that states must not recognize passports acquired through passportization—to consider them valid would be to recognize as lawful what is clearly collateral to the breach of a jus cogens norm. There is also specific precedent for mandatory non-recognition of nationalities created in furtherance of a breach of a peremptory norm: in the 1980s, this doctrine mandated non-recognition of nationalities created to perpetuate apartheid in South Africa.
Next, given the dire effects of Russians passportization and the destruction of nationality, interlocutors should begin to explore individual criminal accountability related to it. It is well-established that denationalization is a precursor to mass atrocity: the Nuremberg Tribunals, for example, found denationalization as the first step in a campaign against the Jews that ended in annihilation, and therefore a facet of the crime against humanity of persecution. Russia’s actions in Ukraine make clear that an actor may effectively denationalize a population even as it purports to naturalize it, and that effective denationalization may set the stage for abuse just as well as legal acts of denationalization. The effective denationalization of Ukrainians may, therefore, form part of the crime of persecution or other charges in any criminal tribunal. This seems more than appropriate given that passportization works in tandem with Russia’s more visibly destructive efforts to abrogate Ukrainian sovereignty.
Finally, more is necessary to ensure that affected Ukrainians may re-claim effective nationality. There are a number of Ukrainian and international organizations working on behalf of stateless populations and Ukrainians seeking to confirm their citizenship. These include Right to Protection, Neeka, and UNHCR Ukraine. Consultation with these organizations should begin now to ensure that appropriate policy actions—such as standardizing evidentiary processes and mandating time limits for case adjudication—are taken to facilitate the restoration of full nationality to affected Ukrainians.
Steps to assist Ukrainians in reclaiming effective nationality are vital to securing human rights in Ukraine: nationality is a gateway right that enables access to all others. They are also key to reintegrating regained territories, as restored nationality will allow Ukrainians isolated by the occupation to rejoin the Ukrainian polity. Ukraine’s obligations under the European Convention of Human Rights may even require further action, subject to limitations imposed by occupation; the Article Eight Right to Family life entails a right to national identification and may trigger liability for states who fail to provide it. At the very least, Ukraine need take no step that criminalizes applying for a Russian passport while living under occupation: all indications are that large numbers of Ukrainians took these actions under duress and for this deserve no sanction.
Conclusion
Passportization is central to Russian aggression, and has the effect of severing ties between Ukraine and hundreds of thousands of its citizens. These people are left without effective nationality—the right to have rights—and cast into a limbo that may end in statelessness. Combatting passportization, therefore, requires a more comprehensive legal response, both to preclude further aggression, and to ensure the rights of people living on the margins of catastrophic conflict.
See also Evan Harary Obstacles to Registration and Citizenship Confirmation Threaten to Create a New Wave of Statelessness in Ukraine: A Preliminary Legal Analysis (KHRPG, Jan 2022).
Photo by Ehimetalor Akhere Unuabona on Unsplash
