The Illusion of Legality in Russia’s Illegal Occupations

Moscow has a customised approach to occupying and annexing its neighbour's territories

18 August 2022

Vitaly Portnikov

Future of Ukraine Fellow

The peculiarities of the Russian style of occupation are playing out again in Ukraine. We can infer the Kremlin’s motives by seeing how it has carried out the process many times before.

On 8 August, the head of Russia’s puppet administration of the Zaporizhia region, Yevgeny Balitsky, signed an order to begin organising a ‘referendum on the unification of the Zaporizhia region with the Russian Federation.’

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This move by the pro-Russian official was perceived as the Kremlin’s response to Ukrainian President Volodymyr Zelenskyy’s statement a day earlier. The Ukrainian president warned his Russian counterpart, Vladimir Putin, that if any fake ‘referenda’ on the Russian annexation of occupied territories were to be organised, there would be no negotiation process with Russia. 

The First Stage of Annexation 

While Balitsky’s decree was meant to demonstrate that the Kremlin will defiantly ignore any warnings from the Ukrainian president, this sequence of events may be a mere coincidence. 

After all, Yevgeny Balitsky signed his order not in his office but during a sham public forum named ‘We are together with Russia;’ an event which would have taken several days or weeks to prepare as the participants must have been selected and taken to Melitopol, the home to the pro-Russian ‘leadership’ in the Zaporizhia region. 

Clearly, the Russian authorities have made no secret of their intention to annex the newly occupied regions of Melitopol and Kherson to Russia, announcing the move literally hours after the occupation began.

Sergey Kiriyenko, the First Deputy Head of the Russian Presidential Administration, visited the Zaporizhzhia and Kherson regions. At the Kremlin, Kiriyenko is responsible for the internal agenda.  

The official arrived in Melitopol and Kherson after visiting occupied Mariupol. Moreover, everywhere Kiriyenko spoke — both in the occupied Donbas and the Kherson and Zaporizhia regions — the message was unequivocal that they must prepare to join Russia and that Russia is here to stay. Similarly, the Head of the Russian Foreign Ministry, Sergei Lavrov, spoke of the ‘expansion of the geographical boundaries’ of Vladimir Putin’s ‘special operation.’

Nevertheless, even if the Kremlin’s intentions are clear, it is not clear how the Russian authorities intend to implement them from a legal point of view. Current Russian legislation explicitly prohibits the annexation of regions from other countries to Russia. 

Therefore, during the annexation of Crimea, the Russian leadership had to resort to forgery. Initially, the Verkhovna Rada of the Autonomous Republic of Crimea (within Ukraine) declared the territory an independent state — let me note that no referendums were held on this. Russia then recognised this ‘state’, and ‘referendums’ were held on its territory to join the Russian Federation. 

This means that when Russian President Vladimir Putin signed the relevant agreements with the puppet leaders of Crimea, Vladimir Konstantinov and Sergei Aksenov, and the ‘people’s mayor’ of Sevastopol, Alexei Khaly, these associates were acting in their formal role as heads of independent states.

The Other ‘Candidates’

Theoretically, Vladimir Putin could carry out a similar procedure with the leaders of four more territories of former Soviet republics that Moscow has recognised as independent states. These are the Georgian autonomous republics of Abkhazia and South Ossetia and the Ukrainian regions of Donetsk and Luhansk, whose ‘independence’ is recognised by Russia. 

Therefore, preparations for the annexation of Donbas territory can still be explained in the Russian legal system. However, in the case of the Kherson and Zaporizhia regions, the situation is much more strange. The pro-Russian leaders of the occupied part of these regions have claimed that they do not intend to proclaim the territories as ‘people’s republics’ first but want to join the Russian Federation ‘immediately.’

However, the procedure remains the same for now. Russian legislation has not been amended, so the accession procedure cannot be violated — the proclamation of an ‘independent state’, recognition by Russia, referendum on joining Russia, annexation. This method is the only way. 

So why are people in Kherson and Melitopol talking about ‘referendums.’ Why is the head of the pro-Russian administration of the Zaporizhzhya region signing the order to prepare a vote? 

One Size Does Not Fit All

These actions may indicate that the Kremlin has not yet decided on its final plans for Kherson and Zaporizhia. Bringing up the subject of ‘referenda’ could be an important political argument from Vladimir Putin’s point of view, which should force Kyiv to agree to the annexation of Crimea and the potential annexation of the Donetsk and Luhansk regions. 

Another option is different occupation regimes in different regions. In Crimea, it was annexation and accession to Russia. In Donetsk and Luhansk, it was ‘recognised’ independence and preparations for annexation. While in Kherson and Zaporizhia, it is ‘deferred’ independence and annexation.

This legal block means that there will be a referendum on joining Russia but will not lead to any legal consequences because the occupied territories are not recognised as independent states. 

It can take years, if not decades, from the declaration of ‘independence’ to be recognised by Moscow. ‘DNR’ and ‘LNR’ have been awaiting such recognition for eight years. Abkhazia — 14 years. South Ossetia — 16 years. Moreover, the ‘Transnistrian Moldovan Republic’ — and several other regions of the Republic of Moldova — declared their independence on 25 August 1991, even before the final disappearance of the Soviet Union and held several ‘referendums’ on joining Russia during this time and is entirely dependent on Moscow. However, the Kremlin is in no hurry either to recognise its independence or to annex it.

For the Ukrainian regions, the situation is, of course, different. There is an ongoing war on Ukrainian territory, and only the outcome of the war can finally determine the possible state’s borders. 

After all, from the point of view of international law, Crimea and the Donbas, Kherson and Zaporizhzhia are regions of Ukraine, and all these ‘referendums,’ declarations or undeclarations of independence and agreements to join Russia are nothing more than ornaments of occupation.

Published as part of our own Future of Ukraine Fellowship programme. Learn more about it here and consider contributing.

Picture: Kremlin.ruPutin with Vladimir Konstantinov, Sergey Aksyonov and Alexey Chaly 4, Filter, Crop, CC BY 4.0

Vitaly Portnikov

Future of Ukraine Fellow

Vitaly is a Visegrad Insight Fellow as of 2022. He is also an author and renowned journalist working in democratic media in Central and Eastern Europe for more than three decades. He is the author of hundreds of analytical articles in Ukrainian, Belarusian, Polish, Russian, Israeli, Baltic media. He hosts television programs and his own analytical channels on YouTube. He is currently broadcasting at the office of the Espreso TV channel in Lviv and continues to cooperate with the Ukrainian and Russian services of Radio Liberty. On the Russian service of Radio Liberty, he continues the project about the post-Soviet space “Roads to Freedom”, which was aired first from Moscow, then from Kyiv, and is now being produced in Lviv as a joint project of Radio Liberty, the Current Time TV channel and the Espreso TV channel.

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