Oleksii  Plotnikov, Ph.D. international judiciary

Recently the Russian dictator signed a document entitled “Decree of the President No. 304” “On Amendments to Decree No. 183” “On the applications for admission to the citizenship of the Russian Federation in a simplified manner”.

Behind this deliberately bureaucratic wording lies a simple fact: Russia has begun “accepting into its citizenship” the inhabitants of the parts of the Kherson and Zaporizhzhia regions occupied by it in March of this year. In this article, we’ll try to figure out what’s going on.

To begin with, let’s unravel the “bureaucratic tangle” around this decree. Its whole essence is that the list established by order No. 183 of 2019 is expanding. Previously, a “simplified procedure for obtaining Russian citizenship” was declared for the Donetsk and Luhansk regions, and now it also applies to the Kherson and Zaporizhzhia regions.

In turn, the “183rd decree” refers to the eighth part of the article 14 of the Russian law on citizenship, according to which “foreign citizens and stateless persons have the right to apply for admission to the citizenship of Russia in a simplified manner if these persons and stateless persons are in the categories of foreign citizens and stateless persons, determined by the President of Russia” [1].

This rule, which appeared in the law in 2018, allows the Russian leader, at his own discretion, to determine any category of foreigners in any place for a simplified acquisition of Russian citizenship. Such discretion is formalized by decree. First, this mechanism was “applied” to Ukrainian citizens in the occupied territories of the Donetsk and Luhansk regions, and now it has been “extended to the new occupied territories”.

What Agnia Grigas of the “Atlantic Council” has aptly described as “passport expansionism” did not begin yesterday. Since the collapse of the USSR, Moscow has been trying to keep in its orbit as many citizens of the newly independent states as possible, including through the issuance of Russian passports to them.

The Russian law on citizenship in 2002 provided for the possibility of granting Russian citizenship in a simplified manner to all citizens of the former USSR. Russia actively used this opportunity, promoting and giving out its citizenship to everyone, including in such regions as the part of Moldova it occupied, Abkhazia, South Ossetia and in the Crimea before 2014 [2].

In principle, there was nothing evidently criminal in such activities, because according to the Universal Declaration of Human Rights, no one can be deprived of the right to change their citizenship [3]. The issuance of Russian passports, of course, gave other states cause for concern, but in fact, almost nothing was produced in Ukraine to counter such “passport expansion”.

Unless, according to Ukrainian legislation, persons who simultaneously owned a Ukrainian and Russian passport were considered exclusively citizens of Ukraine, and not Russia, since the Constitution of Ukraine expressly prohibits dual citizenship. It also prohibits the forced deprivation of citizenship and does not make exceptions for cases of obtaining the citizenship of another state in its Article 25 [4] .So the fact that a significant number of Ukrainian citizens in the Crimea and in other regions also had a Russian passport was actually ignored.

The process drastically accelerated at February 2014, when a whole delegation of Russian parliamentarians rushed to Crimea, promoting the receipt of Russian passports and hinting at a further “referendum’ on the status of Crimea [5]. This happened when Russia itself recognized the Crimea as Ukrainian.

Of course, after the so-called “referendum” and the establishment of Russian control, one of the priorities of the aggressor state was the formal assignment of the population of the occupied territory to itself. According to the so-called criminal “Agreement on the Admission of Crimea to Russian Federation”, all citizens of Ukraine who lived on the territory of the AR of Crimea and the city of Sevastopol allegedly “automatically became citizens of Russia, unless they declared their desire to retain Ukrainian citizenship” [6].

We will not dwell now on the fact that not all Crimean residents agreed with such a formulation of the issue, which Oleg Sentsov expressed in his words at the “Russian court”, “I am not a serf to be handed over with land”. Let’s dwell on the legal side of the issue.

International law foresees method of obtaining citizenship, called “transfer”. It provides for the automatic acquisition of citizenship by all residents of a certain territory when its legal status changes. Most often, the transfer is used in the formation of new states [8]. The closest example for us here is the automatic acquisition of Ukrainian citizenship by practically all residents of the former Ukrainian SSR after the declaration of independence of our state. In principle, the transfer can also be used when transferring part of the territory of one state to another state.

The problem with the “Crimean transfer” is in that, as there was no actual change in the legal status of the territory. Crimea did not become “part of Russia” but it remains part of the territory of Ukraine. its status is not “Russian”, but occupied.

Also parts of the Donetsk and Luhansk regions are Russia-occupied, where the “issuance of Russian citizenship under a simplified procedure” began in 2019, and parts of the Zaporizhzhia and Kherson regions, where it began in 2022.

The difference with Crimea lies in the “legal basis” for acquiring citizenship. In the Crimea, this is a fake “transfer” allegedly, as “citizenship is automatically acquired by a person unless he or she renounces it”. Such fake “transfer” does not take place in other occupied territories of Ukraine. Formally there is allegedly “voluntary entry into Russian citizenship of people”, allegedly “at their own will”. This is more like Russian “passportization” in the occupied parts of Moldova and Georgia, as well as in the Crimea until 2014, than in occupied Crimea in 2014 and later.

However, there is still something in common between the Russian “passportization” of the occupied Crimea and the occupied Ukrainian mainland’s south. First, in both cases, this is done on territories over which Russia does not hide its control. In the occupied parts of the Donetsk and Luhansk regions, the “granting of Russian citizenship” occurs, as a rule, to people who already have passports of the so-called terroristic “people’s republics”.

The “granting” as imposition of “citizenship” occurs directly to Ukrainian citizens  in the Crimea and Kherson and it is carried out directly by the Russian occupying “administrations”. Secondly, as Georgyi Muradov, fake and criminal “Permanent representative of Crimea to the President of Russia”, said, “Russian passports will be issued to residents of Kherson and Zaporizhzhia regions with the assistance of Crimea and taking into account the experience gained by the region in 2014” [9]. Obviously, this should be understood in such a way that Crimean fake “officials” will be involved in “passportization”, who will act according to familiar patterns.

What are these patterns? They can be understood from the available reports on the Crimea [10]. Living in the occupation without the “passport” of the occupying state will become difficult. It will be required to carry out the most basic household activities, such as employment, travel, or even movement within one settlement, the provision of medical services, etc. Those who do not have a “Russian passport” will experience a variety of harassment.

In fact, there will be coercion to take “Russian citizenship”, and it can be assumed that this coercion will be tougher than in the Crimea, because there were no active hostilities in the occupied AR Crimea and Sevastopol, their population was considered by Russia as allegedly “almost own”.

And in relation to AR Crimea and Sevastopol, much more information was received “outside” than about the state of affairs in the occupied parts of the Zaporizhzhia and Kherson regions, which in itself was a deterrent to repression. After all, the longer the occupation of the region lasts, the more the presence of a “Russian passport” will serve as a mark of “friend or foe”, and its absence will increase the risk of extrajudicial punishments and reprisals for the recalcitrant.

In Crimea, forced “passportization” has dragged on for years, and there are still citizens who fundamentally renounce the citizenship of the aggressor state, risking at least “deportation” [11]. There is no reason to believe that residents of the Zaporizhzhia or Kherson regions will be “more enthusiastic” about the “Russian passport”, especially now that it has turned from a relatively attractive document into, according to the adviser to the head of the Office of the President of Ukraine, Mykhailo Podolyak, an outcast’s mark and a ticket to a concentration camp [12].

It is hardly possible to imagine that all the citizens of Ukraine from the occupied parts of the Kherson and Zaporizhzhia regions, who will accept a “Russian passport”, will tarnish themselves with active collaborationism. For many, obtaining an occupier’s passport will become part of the strategy for survival in the occupied territory by the time it is liberated. Just like in the Crimea [13], “obtaining Russian citizenship” by residents of the occupied mainland’s south will be considered in Russia as “a voluntary act”, but in fact, there will be severe coercion, as the Ukrainian Ministry of Integration has already stated [14]. Moreover, such a passport will be far from “free”. The “price” for it will be the risk of coercion into the service of the aggressor, including forced mobilization into his army [15].

It is not easy to say which choice will be more rational for the inhabitants of the occupied territories—the risk of being out of work, medical care, and ending up in dungeons, or the risk of becoming cannon fodder. Obviously, each case will depend on individual circumstances. However, in any case, the imposed “citizenship” should not be a main problem for the inhabitants of the occupied territories after the victory of Ukraine, because the responsibility for this will be borne by the occupying state first.

Recall that, according to Article 45 of the Hague Convention on the Laws and Customs of War on Land, it is prohibited “to compel the population of an occupied area to swear allegiance to an enemy power” [16]. According to Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination, states have committed themselves to ensuring the equality of all before the law without distinction of national origin, in particular of national origin, for the exercise of human rights, including the right to citizenship [17]. The probable violation of this norm by compulsory “passportization” gives Ukraine grounds for filing a lawsuit against Russia with the International Court of Justice, which may result not only in recognition of the violation but also material compensation.

In addition, persecution related to the renunciation of “Russian citizenship” may fall under the criteria of crimes against humanity, defined by Article 7 of the Rome Statute of the International Criminal Court, and coercion of Ukrainian citizens, even those who were forced to obtain a “Russian passport”, to service in the Russian armed forces may constitute a war crime within the meaning of the Article 8 of that Charter.

Formal or de facto deprivation of refusers of certain rights (for example, the right to commercial activities) or opportunities (for example, to receive medical care) can be both a crime against humanity and a war crime under international criminal law [18], and also be considered a violation of laws and customs war within the meaning of Article 438 of the Criminal Code of Ukraine [19]. Such actions should be subject to individual criminal liability for both organizers and direct perpetrators of the criminal “passportization”.

There are legal grounds for recognizing as worthless any facts related to the imposition of Russian citizenship in the Zaporizhzhia and Kherson regions, as well as grounds for bringing the Russian Federation to international legal responsibility for these acts, and individuals to individual criminal responsibility.

The practical condemnation of both the aggressor state and its agents will become possible after the victory of Ukraine and the de-occupation of all southern Ukrainian regions—we hope soon.

1. https://online.zakon.kz/Document/?doc_id=30429975

2. https://day.kyiv.ua/uk/article/den-planety/pasportnyy-ekspansionizm

3. https://zakon.rada.gov.ua/laws/show/995_015#Text

4. https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text

5. https://www.pravda.com.ua/news/2014/02/25/7016156/

6. https://tyzhden.ua/News/105197

7. https://hromadske.ua/posts/sentsov-ya-ne-kripak-shchob-iz-zemleiu-mene-peredavaty

8. https://textbooks.net.ua/content/view/3292/20/

9. https://www.pravda.com.ua/news/2022/05/27/7348806/

10. https://www.irf.ua/content/files/report_crimea_human_rights.pdf

11. https://www.bbc.com/ukrainian/features-53462463

12. https://www.unian.ua/politics/v-op-porivnyali-vidachu-pasportiv-rf-na-okupovanih-teritoriyah-iz-kvitkami-u-konctabir-novini-ukrajina-11842467.html

13. https://crimea.suspilne.media/ru/news/2449

14. https://www.kmu.gov.ua/news/minreitegraciyi-zasudzhuye-ukaz-prezidenta-rf-pro-vidachu-rosijskih-pasportiv-gromadyanam-ukrayini-na-timchasovo-okupovanih-teritoriyah

15. https://espreso.tv/okupanti-progoloshuyut-vidachu-pasportiv-shchob-potim-vikoristati-meshkantsiv-oblasti-zokrema-v-mobilizatsiynikh-zakhodakh-golova-zaporizkoi-ova

16. https://zakon.rada.gov.ua/laws/show/995_222#Text

17. https://zakon.rada.gov.ua/laws/show/995_105#Text

18. https://zakon.rada.gov.ua/laws/show/995_588#Text

19. https://zakon.rada.gov.ua/laws/show/2341-14#Text