“Ukraine cannot prosecute Russians in Russia for espionage in favor of Russia — that is their right.” Humanitarian law expert Marko Milanovic talks about what Ukraine should do in the Kursk region

The Armed Forces of Ukraine have been conducting a ground military operation on the territory of Russia for almost two weeks. According to Commander-in-Chief Oleksandr Syrskyi, Ukraine controls more than a thousand square kilometers of the Kursk region — thatʼs 82 settlements. Many of them, Russian Telegram channels write, no longer have local authorities. Part of the population left. For those who remained, the Ukrainian authorities plan to open humanitarian corridors. On August 15, Syrskyi informed that the military commandant on Russian territory was headed by Major General Eduard Moskalyov, the former commander of the United Forces and the “Odesa” operational-strategic group. What will be his duties and what Ukraine can and should do in the newly conquered territories — explains professor, expert in international and humanitarian law Marko Milanovic.

The Russians say that what we are doing in Kursk is a terrorist attack. They name this counter terrorist operation. The European leaders and Ukraine says that itʼs a self defense, according the UN statute. So, who is right?

So the word terrorism is completely misplaced in this context and is suitable only for Russian propaganda. Which, by the way, applies also when Ukrainians call Russian Armed Forces terrorists. When two states fight, thereʼs a war.

There is a key question that emerges from the UN Charter — who is the aggressor and who is the defender. And it is clear in this case that Russia is the aggressor. The defending state doesnʼt have to stay on its territory. You are allowed to go into the territory of the other state and hit their armed forces there, or take their territory to conduct military operations. What Ukraine is doing now currently in Russia is 100% crystal clear an exercise of the right to self defense under Article 51 of the UN Charter.

The Russians claim that Ukraine violates human rights on Russian territories. Their ombudsman Tatyana Moskalkova even addressed to the UN High Representative for Human Rights. On the other side, there is a decision of the European Court of Human Rights in the case "Georgia v. Russia" in a similar situation. Then the court decided that the Convention on Human Rights does not apply during hostilities. So, who is right?

This is complicated. And thatʼs international humanitarian law, which is also called the law of armed conflict.

Then there is international human rights law (this is the European Convention on Human Rights (ECHR), the International Covenant on Civil and Civil Rights, etc.), which normally applies in peace time. For many years there has been a debate about whether this right should be applied during hostilities directly on the battlefield. Because there is a difference between what is happening on the front line and, for example, what happened in Bucha, when civilians were killed there. Everyone will agree that Bucha is covered by human rights law. Because it was first occupied, and then the citizens began to be killed.

The European Court of Human Rights [in Georgia v. Russia ] said that ECHR doesnʼt apply in a context of chaos. But Ukraine, in its case against Russia in the same court, is trying to prove that the ECHR applies to everything Russia has done in Ukraine, including the downing of the Malaysian Boeing. If so, then Ukraine must accept that the european convention applies to what Ukraine does in Russia.

In response to Moskalkovaʼs request, the UN High Representative for Human Rights asked Russia to grant permission to enter the territory of the Kursk region to obtain additional information. Earlier, Russia did not allow representatives of this organization...

Correct. In fact, Russia was saying this is the human rights stuff, saying this is none of your business when we fight this war with Ukraine. But now itʼs there, theyʼre changing their mind.

I have a bit of a silly question. Russia left the Council of Europe in 2022. But even when it was part of this organization, it very often did not comply the rulings of the European Court of Human Rights. The Russians still say that their law is higher than the rulings of european court for human rights. Ukraine is a member of the Council of Europe and observes international law. That is, to put it very simply: Ukraine comes to these territories and bring human rights back to this territory. Can we say it like this?

Basically? Yes, basically.

What should Ukraine do in order not to violate human rights in Russia?

The law is pretty clear — do not torture people, do not kill civilians. It is justified to restrict some rights. For example, during hostilities, under certain circumstances, people can be detained or evacuated, something can be done against their will.

What is the current status of captured Russian territories and how does it change?

From the point of view of general international law, they are sovereign Russian territory. From the point of view of international humanitarian law, we have this special status called "occupation".

So, we are not talking about effective control, but about occupation?

Occupation is when one state has effective control over the territory of another without its consent. Russia is the occupying power in Crimea and a large part of Eastern Ukraine. Ukraine may now become an occupying state of some parts of Russia.

There is now controversy over when the law of occupation begins to apply if hostilities are still ongoing. The UN International Court of Justice recently ruled that the right of occupation must be applied to the extent that you have control over the territory of another state.

Some parts of the law of occupation require minimal effort in terms of donʼt kill civilians, donʼt torture civilians. Other parts of the law of occupation require much more, for example, to establish law and order in the territory, to prevent crime, to prevent riots. What Ukraine will manage to do with this depends on how long it will last in these territories.

And how to understand when Ukraine will get this effective control?

This is an excellent question and it is really difficult to answer. If you look at the map of the Kursk region now, there are villages and towns that are not on the immediate front line, you know, you can say clearly the law of occupation should apply there. But if there is fighting going on in village X between Russian Armed Forces and Ukrainian Armed Forces, itʼs probably too early to apply the law of occupation.

Should Ukraine inform someone about taking the effective control on the new Russian territories?

No, thereʼs no need to inform anyone.

Should Ukraine introduce its administration there?

If this becomes a more prolonged situation, so if this is going to last for months or years, Ukraine will establish some kind of provisional administration of the occupied russian territory, but itʼs not mandatory. In principle, , the occupying power can leave existing local authorities in place. Moreover, it is obliged to do so to the extent itʼs feasible. That is, Russian local municipal officials that deal with water and sewage and traffic fines and, you know, a russian court that deals with minor crimes and those kinds of — that should all stay in place.

On Thursday, Commander-in-Chief Oleksandr Syrskyi appointed a military commandant. Does this mean that Ukraine has officially taken control of these territories?

Control over territories is a matter of fact: it is either there or not. It does not require any official recognition. But if there is a commandantʼs office, thatʼs great.

Which countryʼs legislation should apply there?

According to the Fourth Geneva Convention, when it comes to legal relations and relations between private individuals and state authorities in the occupied territory, Ukraine must apply the law of the occupied territory, that is, the law of Russia. Only for imperative security reasons, or if Russian legislation violates human rights, Ukraine should not use certain of its provisions.

You say that Russian officials should stay in their places. But if these people will spy for Russia, what can be done with them?

Those people can be interred — this is provided for by international humanitarian law. It is also possible to prosecute people who commit crimes, such as destroying property or committing sabotage — but high standards must be met here. If we return to the issue of espionage, Ukraine cannot prosecute a Russian on Russian territory for spying for Russia, because in a certain sense this is their right and their country. A Russian in Russia owes no loyalty to the state of Ukraine.

But Russia in the occupied Ukrainian territories tries Ukrainians for espionage according to its laws.

Correct, all this is a violation.

So the only way to protect Ukrainian soldiers from Russian spies is internment. But how does it work? How to do it without trial and investigation?

They are arrested and kept in isolation. The regime of detention is regulated by the Fourth Geneva Convention, these people do not bear criminal punishment. They are simply being held for security reasons. They cannot be kept together with criminal prisoners and transferred outside of Russia. There are many other requirements — they are all written in the convention.

Does Ukraine have a right to replace civilians from the occupied territories?

No, this is a gross violation of several norms at once. It is not possible to display the population forcibly. And they cannot be forced to evacuate to Ukraine. You also do not have the right to display your own population to the occupied territories.

So, when Russians say that they will bring Russians from Kursk to occupied territories of Zaporizhzhia, itʼs also the violation of the law?

Thatʼs exactly right.

And if we offer Russians to leave their homes for security reasons, is that a violation?

If they want to evacuate to their own free will, they can go where they want to go, so long as thereʼs no state coercion, essentially. But bear in mind thereʼs a huge risk in these kinds of situations that if you evacuate people from an occupied territory, then that this is portrayed by the adversary or seen worldwide as some form of ethnic cleansing or something of the kind for civil deportation. Therefore, if it is about the voluntary evacuation of people, Ukraine should cooperate with Russia or someone else to facilitate this.

How does Ukraine have to organize some humanitarian aid?

While fighting is ongoing, in a normal situation of armed conflict, let me put it that way, there is no obligation for one party to the conflict to actively supply the civilian population of the other party. That is, Russia does not have a due to send relief supplies to Ukraine and vice versa. The duty that they have is to not impede humanitarian relief by third parties.

Once an occupation starts, the occupying power has a positive duty to provide supplies, healthcare, all those kinds of things, to the population of the occupied territory.

What currency should be applied there?

These should be Russian rubles. But if this becomes impossible — the rubles will simply run out there, Ukraine can change the internal legislation of the occupied territory and allow the use of the hryvnia or something similar.

You mentioned a little bit about security — who should provide it? Does Ukraine have to bring ukrainian police there or who should be working there as police?

There have to be police, firefighters, doctors and hospitals. If there is something left over from the previous government, you have to work with them. If not, it is necessary to create such structures, some form of police or courts of law and order.

In general, you should treat the Russians as you would like the Russians to treat the Ukrainian civilian population under occupation. This is the main thing that should be in the heads of Ukrainian soldiers and their commanders. The political authorities and the General Staff must send very clear signals down the chain. The worst thing that can happen to Ukraine there is atrocities on the part of Ukrainians.

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