Oleksii Plotnikov, PhD (international judiciary)
Recently, the Ukraine’s Minister of reintegration of the occupied territories Oleksii Reznikov stirred the informational space (mostly that of Russia) by mentioning the possible removal of the Russians from Crimea. The Minister noted that Russian citizens who arrived to the peninsula after the beginning of the occupation, are not citizens of Ukraine, and “in fact, accomplices of this crime, which is officially committed by Russia, by the official Kremlin. Therefore, their fate… I do not like the word “deportation”, it carries the spirit of the Stalinist regime. But the Ukrainian law provides for expulsion from the country. This is the right of any state” .
The laws of Ukraine (except those condemning the crimes of totalitarian regimes) do not use the word “deportation” so much hated by the Minister. In all other respects, Ukrainian legislation is less encouraging for the minister’s plans. In line with international law, the laws of Ukraine do not provide for the possibility of mass expulsion of Russians from the Crimea. There is an urgent need to create a legal mechanism that could be applied to such illegal immigrants. However, so far such a mechanism is not seen even on the horizon.
Let’s first look at the facts. The Russian Federation runs a policy of gradual pressing those, who disagree with the occupation, out of Crimea. Alongside with that, it pursues a conscious policy of resettlement of its own citizens to the peninsula. Various mechanisms are used, including the relocation of the military, law enforcement officers, and civil servants with their families. Russia encourages labor migration, creates conditions for resettlement.
The total number of migrants is unknown. Thus, the UN Secretary General in 2019 mentioned 140 thousand migrants . Deputy Minister for Foreign Affairs of Ukraine Emine Japarova in 2020 announced the figure of half a million . According to Russian media, in just 10 months of 2020, 43,000 Russians moved to Crimea for permanent residence . Regardless of the current figure, the process continues, and more and more citizens of the Russian Federation are settling in the occupied territory of Ukraine.
There is no doubt that the actions of the Russian Federation constitute an international crime. Under Article 49 of the Fourth Geneva Convention of 1949 ”The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies” . Under Article 85 of Additional Protocol (I) to the Geneva Conventions, “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is considered a serious violation of international humanitarian law . According to Article 8 of the Rome Statute of the International Criminal Court, “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is considered a war crime .
The first obvious problem here is that the Russian Federation acts in demonstrative disregard of international law. The second, less obvious problem is that even if the organizers of the resettlement of Russian civilians to the occupied Crimea are prosecuted internationally, the settlers themselves are not liable for their own resettlement. International law is more likely to treat them as victims, but not as criminals.
It can be assumed that some part of the illegally displaced Russian population (for example, the military and their families) will leave Crimea after its deoccupation. However, it would be too optimistic to expect all “new Crimeans” to leave voluntarily. Ukraine will face a truly unprecedented difficulty. Obviously, it will not be able to arrange something like “Operation Vistula” or the mass expulsion of Germans from Czechoslovakia after World War II. The problem will have to be solved within the framework of the Ukrainian law, taking into account the requirements of international law.
From the point of view of the Ukrainian legislation, all migrants from Russia who arrived in Crimea outside of Ukrainian checkpoints are illegal migrants. According to the Law of Ukraine “On the Legal Status of Foreigners and Stateless Persons”, any foreigner who has crossed the state border outside checkpoints or at checkpoints, but with the avoidance of border control, and has not immediately applied for asylum, is considered an illegal migrant . From this point of view, there is no significant difference between a Russian who has moved to the Crimea for permanent residence, and any other illegal immigrant.
The mentioned law, the Code of Administrative Procedure, and a number of other legal acts establish the procedure applicable to illegal migrants. In order not to overload this essay with legal terminology, we will describe it briefly.
The State Migration Service of Ukraine is responsible for combating. If it identifies an illegal migrant, such a person is brought to administrative responsibility and pays a fine for violation of migration rules. If the person in question does not apply for refugee status immediately, a decision on forced return is issued, according to which the individual must leave Ukraine voluntarily (within 30 days, as a rule). If a foreigner does not voluntarily comply with such a decision, they may be detained and taken to court. Only a court can decide on the forced removal of a person from Ukraine. If such a judicial decision is made, the person is detained at the migrants custody centre until the State Migration Service has the opportunity to deport them. A person can stay at the MCC for up to 18 months. An illegal migrant can appeal his or her expulsion decision in the courts of appeal and cassation, and years can pass until final decision is made. Throughout the appeal process, the illegal migrant continues to stay in Ukraine, and the procedure can be completed only after the final court decision.
The number of illegal migrants in the unoccupied territory of Ukraine is unknown. According to the State Migration Service , in 2020 more than 12 thousand people have been brought to administrative responsibility for violation of migration rules. 4197 illegal migrants have been identified. 3954 decisions on forced return have been made. 208 decisions on forced expulsion have been adopted. In fact, 166 people have deported.
Both the legislation and the figures of the statistics of the Migration Service make it obvious, that it is too hard to arrange removal of 500, 200, or even 10 thousand people legally. This task largely exceeds the current capabilities of the State Migration Service and the judiciary.
One can ask if Ukraine can organize mass evictions outside the existing procedure. The answer will again be negative. This is due to prohibition set forth by the European Convention on Human Rights. The Convention, or more precisely Protocol № 4, contains a short and categorical norm: “Collective expulsion of aliens is prohibited” . The Russian Federation has learned what this means in practice. During the aggression against Georgia in 2008, it organized the mass expulsion of Georgian citizens. This was the basis for Georgia’s first interstate claim against Russia, which was decided by the European Court of Human Rights on 3 July 3 2014 .
The Court emphasized that “collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken following, and on the basis of, a reasonable and objective examination of the particular case of each individual alien of the group” (paragraph 167 of the decision). In practice, this means that the case of each foreigner must be considered individually. In the case law of the ECtHR, there have been cases where the expulsion of even two persons in similar circumstances, but without individual consideration of the situation of each of them, was recognized as a collective expulsion within the meaning of Article 4 (for example, Moustahi v. France). Returning to Georgia v. Russia (I), the ECtHR ruled that Russia must pay Georgia € 10 million in compensation for the deportation of 1,500 Georgian citizens .
Unless Ukraine intends to withdraw from the European system of human rights protection, it should be borne in mind that the collective expulsion of Russians from Crimea cannot but lead either to an interstate complaint from the Russian Federation against Ukraine or to an avalanche of individual complaints from individuals. In both cases, Ukraine’s chances of winning will be minimal, and the amount of compensation that the European Court is likely to order will be very significant. This is to mention only the complaints against removal itself. However, there is also a risk of applications concerning other violations, such as the alleged breach of the right to property, which the illegal migrants somehow seized in Crimea.
In principle, Ukraine may attempt the mechanism of derogation from the Convention foreseen under its Article 15, namely declare derogation from certain obligations concerning property and certain personal rights of persons, who reside in Crimea illegally. In 2015, Ukraine already applied a derogation due to the situation of armed conflict, by a parliamentary resolution of May 21, 2015 № 462-VIII . However, that derogation concerned only events in Ukraine’s controlled or partially controlled territory and did not cover the rights, covered by Protocols № 1 or № 4 to the Convention . In addition, derogation can be applied only in situations “threatening the life of the nation”. This definition looked very applicable during the armed conflict, but once the conflict will be over, and Crimea will be deoccupied, it may become rather complicated to prove the existence of such a threat before the Council of Europe.
Therefore, Ukraine has to either accept the residence of hundreds of thousands of Russian citizens in Crimea, or create new legal mechanisms that would provide for the possibility of removal of such illegal migrants to the country of origin, derogate the Convention 1950 on issues of the Russia’s colonizers in Crimea, before the de-occupation will start and implement such derogation with beginning of the de-occupation.
Unfortunately, the Ukrainian authorities do not demonstrate proper awareness, let alone have a solution of the problem. For example, the draft law “On the State Policy of Transition Period” developed by the Ministry of Reintegration, does not contain a single word on the issue of illegally resettled population . Similarly, the problem is not mentioned in the recently adopted Strategy of de-occupation and reintegration of Crimea . Ukraine’s memorial to the International Court of Justice in a case which concerns, among other things, racial discrimination in Crimea , does not mention the change of ethnic composition of the territory, although this could be a strong argument in support of Ukraine’s claims.
This looks especially strange in light of the fact that the transfer of the population to the Crimea as a potential war crime drew the attention of the Prosecutor of the International Criminal Court in 2017 . It seems that international institutions are more interested in the issue of the Russian resettlement to the Ukrainian Crimea than Ukraine itself.
The first step towards development of Ukraine’s strategy in response to transfer of population to Crimea could be to use as many international platforms as possible to raise the problem. At the very least, constant publicity, and, at best, the adoption of international court decisions, would help the international community realize the abnormality and exclusivity of the situation. In turn, this would ensure understanding of Ukraine’s effort aimed at expulsion of illegal migrants from Crimea in the future. However, at present it seems that the Minister has only provided a situational response to the journalistic question, and there is no strategic vision of how this question will be resolved in reality.