30.12.2022

The illegality of conscription of Crimean Tatars, and other Ukrainian civilians, into the Russian army in occupied territories

Authors: PILPG and Morrison Foerster

Since its unlawful invasion and annexation of the Crimean Peninsula from Ukraine in 2014, Russia began conscripting Ukrainian civilians to serve in its armed forces in violation of well-established international law.  These civilians are facing an impossible situation: join the Russian armed forces or face criminal punishment at the hands of the Russians.  In 2019, the United Nations Office of the High Commissioner for Human Rights reported that Russia forcibly conscripted approximately 18,000 Ukrainian civilians living in Crimea to serve in the Russian Armed Forces.  This unlawful practice has continued and expanded as Russia escalated its war against Ukraine into a full-scale invasion in February 2022.  In September 2022, after a series of military setbacks, Russia launched a new campaign deliberately targeting the Crimean Tatars to forcibly involve them in Russia’s war effort.  As many are already aware, this is not the first time that Russia has violated international law by compelling Crimean residents to serve in its armed forces.  However, the problem is only getting worse.  In its most recent report, the UN documented an additional 65 cases of forced conscription by Russian groups.  Russia’s forced conscription of Ukrainian civilians is a grave breach of international law that must be stopped and punished.

Russia Has Engaged in a Persistent Effort to Conscript Ukrainian Civilians from Occupied Territories in Ukraine.

In March 2014, Russia illegally annexed Crimea after its invasion and held an illegitimate referendum in violation of Ukrainian law (art. 73 of the Constitution of Ukraine unambiguously states that “[i]ssues of altering the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum”).  Russian sources claimed that 96.7 percent of the civilians voted to join Russia despite the fact that all voting occurred at polling places under the gaze of Russian armed forces; in the absence of any credible international observers; and with an admission by Russian journalists that they were allowed to vote.  In fact, two months later, a member of Putin’s Human Rights Council stated that turnout had been closer to 30 percent, with only half voting to join Russia.  After this sham referendum, Russia held numerous conscription campaigns for Crimean men each fall and spring over the last eight years.  The Russian government has supported these conscription campaigns with various forms of propaganda.  In 2019, Russian authorities advertised widely for enlistment in Sevastopol, Simferopol, and other cities in Crimea.  This propaganda also targeted schoolchildren in Crimea.  The current campaign appears to be using similar tactics. 

Russia is imposing criminal penalties on those who do not comply.  Between 2017 and 2019, Russia has filed 71 criminal draft evasion cases and obtained 63 guilty verdicts, but the true number is likely higher due to the fact certain court documents may be sealed.  In turn, this has led to Ukrainian men in occupied territories attempting to flee or go into hiding to avoid being conscripted into the Russian armed forces and avoid the legal consequences for refusing to join the occupier’s army.  

Unfortunately, these tactics are working. After examining a preliminary list of prisoners of war captured by Ukraine, the Crimean Human Rights Group reported on March 5, 2022, that it had identified ten young Crimean conscripts and one Crimean contract soldier, with additional documents left to review.  According to news reports, at the end of September, Russia had mobilized 2,000 people from Crimea and were prioritizing the conscription of Crimean Tatars.  Alim Aliev, a founder of rights organization Crimea SOS, estimated that 80% of summons to the Russian army in Crimea had been issued to Crimean Tatars.

Russia’s Forced Conscription of Ukrainian Civilians, Including Its Use of Propaganda to Support that Effort, Is a “Grave Breach” of Long-Standing International Law.

The international community has long identified the forced conscription of civilians by an invading or occupying force as a violation of international law.  In 1949, the international community agreed to the Geneva Conventions, which were intended to address some of the horrors witnessed during the Second World War.  These Conventions govern how nations conduct themselves during an armed conflict.  The Fourth Geneva Convention, which addresses the protection of civilians during an armed conflict, expressly states that “[t]he Occupying Power may not compel protected persons to serve in its armed or auxiliary forces.” The Fourth Geneva Convention also prohibits the use of “pressure or propaganda [] aim[ed] at securing voluntary enlistment,” thereby providing even more protection to civilians than merely outlawing the act of conscription itself.

The prohibition on conscription in the Fourth Geneva Convention is only the most recent iteration of a long-standing rule in international law against forcing an individual to serve in the enemy’s armed forces.  For example, in the 1907 the Hague Convention (IV) respecting the Laws and Customs of War on Land, Article 52 states that “[r]equisitions in kind and services … [shall] not to involve the inhabitants in the obligation of taking part in military operations against their own country.”  Further, Article 44 provides that “any compulsion of the population of occupied territory to take part in military operations against its own country is prohibited.” 

The international community affirmed its intention to enforce these rules when it enacted Article 2 of the 1993 Statute for the International Tribunal for Yugoslavia, and the 1997 Rome Statute of the International Criminal Court (ICC), both of which outlaw conscription from occupied territories.  For example, pursuant to Article 8(2)(a)(vi) and (b)(xv) of the 1998 ICC Statute, “compelling a prisoner of war or other protected person to serve in the forces of a hostile power” and “compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war” constitute war crimes in international armed conflicts.  This practice is also condemned by militaries across the world in their military manuals, including Russia’s.  Under Russia’s Military Manual, it is prohibited as a method of warfare “to compel persons belonging to the enemy party to participate in hostilities against their country.”

In fact, the rule against conscription is so important and well-established that its violation constitutes a “grave breach” of international law.  The Geneva Conventions identify only a limited number of rules—ones that are considered particularly serious violations of the fundamental object and purpose of treaty—as “grave breaches,” and that includes Article 51’s prohibition of conscription.

The consequences for a grave breach of international law are severe. The Geneva Convention requires that a grave breach be prosecuted by any party to the treaty, no matter whether they were a victim.  In other words, the Geneva Convention provides all parties with universal jurisdiction to arrest and prosecute violations of this rule.  The international community has a history of doing exactly that.  In 1949, the U.S. Military Tribunal at Nuremberg issued a decision in the Weizsaecker case holding that “pressure or coercion to compel [prisoners of war] to enter into the armed forces obviously violated international law” and that the conscription of foreign nationals into the armed forces of a belligerent was a crime against humanity. 

Regardless of Its Lawfulness, Russia’s Purported Annexation of Ukrainian Territories Does Not Justify the Conscription of Civilians in Those Areas.

In September 2022, Vladimir Putin signed a document claiming to annex four Russian-occupied Ukrainian territories: Donetsk, Luhansk, Zaporizhzhia, and Kherson.  Russia based this annexation on a “referendum” held in those regions, similar to the vote Russia orchestrated in Crimea in 2014.  However, far from being a free and fair election, the “votes” claimed by Russia in favor of the proposed secession of these territories were obtained by force.  The international community immediately rejected this purported referendum results.  The EU stated that it “does not and will not recognise the Russian illegal annexation of the Autonomous Republic of Crimea and city of Sevastopol. It also firmly rejects and unequivocally condemns the illegal annexation by Russia of Ukraine’s Donetsk, Luhansk, Zaporizhzhia and Kherson regions. All these territories are and remain Ukraine.”

Regardless of the legitimacy of its annexation claims, international law still classifies Russia as an “occupying power” in this armed conflict because their forces are still an occupying power in these territories.  Under the Fourth Geneva Convention, agreements concluded between the occupying power and the local authorities cannot deprive the population of occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights. (GC IV, art.47 and 8). 

Here, the prohibition against conscription applies because the Russian armed forces are occupying areas of Ukraine and attempting to assert authority over Ukrainian citizens, ostensibly based on the result of the referendum vote.  But the mere fact that Russia felt compelled to hold a referendum shows that it considered these territories to be Ukrainian and that additional steps were necessary before it could assert its authority.  The protections of international humanitarian law cannot be circumvented by a mere assertion by Russia that the residents of these territories are Russian nationals. Russia’s continued forced conscription, and use of propaganda, is a grave breach of international law that must be stopped and punished by the international community. 

Conclusion

            Russia’s continued efforts to force Ukrainians to fight against their fellow countrymen is a grave breach of longstanding international law.  There is no room for ambiguity; Russian conscription campaigns in Crimea and other occupied territories is unlawful, and this is precisely the type of conduct that the international community has prosecuted in the past. The international community must condemn and seek to stop these unlawful efforts before more Ukrainian citizens are forced to fight their fellow citizens and risk being killed in service to the Russian armed forces.

The development of these materials has been made possible through the support of the Public International Law & Policy Group.

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