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Ukraine is fighting on the territory of the aggressor country. Is this legal from the point of view of international law? What laws apply in the territories under the AFU control? — We explain as short as possible

Author:
Oksana Kovalenko
Editor:
Glib Gusiev
Date:
Ukraine is fighting on the territory of the aggressor country. Is this legal from the point of view of international law? What laws apply in the territories under the AFU control? — We explain as short as possible

Anastasiia Lysytsia / «Babel'»

For the first time since World War II, Ukraine is fighting outside its territory. As reported by Colonel-General Oleksandr Syrskyi, the Armed Forces of Ukraine control 74 settlements in the Kursk region of the Russian Federation on a territory of about a thousand square kilometers. Russian ombudsman Tatyana Moskalkova has already complained to the UN Human Rights Council, accusing Ukraine of terrorism and human rights violations. Does Ukraine have the right to conduct hostilities on the territory of Russia? Is it responsible for human rights violations on Russian territory? What should the Ukrainian military do in order not to violate the "laws of war"? At the request of Babel, scientific researcher of the Geneva Academy of International Humanitarian Law and Human Rights Natalia Handel answers these questions.

Are Ukraineʼs actions in the Kursk region terrorism?

No. They are absolutely legal and have nothing to do with terrorism. After Russia launched a full-scale invasion in February 2022, Ukraine received the right to self-defense under Article 51 of the UN Charter. It can protect its population and its territories from shelling and attacks by the Russian armed forces, as well as defend its political independence. Russia regularly shelled Ukrainian territory from the Kursk region. According to international law, a defending state can conduct defensive hostilities also on the territory of the aggressor state. There are no restrictions on this in international law. According to Natalia Handel, when a country commits an act of aggression, its territory can be used as a theater of hostilities. "Russia should have been aware of the consequences," Handel adds.

Is Ukraine responsible for human rights violations during military operations in the Kursk region?

Not yet. A country is obliged

This was determined by the European Court of Human Rights in the case "Georgia v. Russia" in 2021. Georgia complained that in August 2008, Russia violated human rights in several Georgian cities, because it had effective control over them for four days — from August 8 to 12. In the decision, the court noted that the Convention on Human Rights does not apply during hostilities.
to respect human rights when it establishes the so-called general control over the territory. Even though the Ukrainian military hung Ukrainian flags in some Russian settlements, this does not mean that such control exists. Control is the introduction of relevant administrations, established self-regulation of life, control services, security, etc. "Ukraine cannot yet guarantee the performance of all functions that the government should perform. At the moment it is, letʼs say, tactical control," explains Handel.

That is, during hostilities, there is complete anarchy?

Not either. While this is a "buffer zone". Prior to establishing control over those territories, international humanitarian law ("the law of war") is in effect — these are the two Hague Conventions, the four Geneva Conventions and their protocols.

What will the UN Human Rights Council do with Moskalkovaʼs statement?

The Office of the UN High Commissioner for Human Rights asked Moscow to provide access to Kursk Oblast to verify Moskalkovaʼs statement. But there is a nuance. Since the beginning of the war, Russia has not given UN commissioners access to the territories occupied by it, just as it has not given access to the UN mission to establish the facts of the shelling of the pre-trial detention center in Olenivka

On the night of July 29, 2022, as a result of an explosion, one of the barracks of the penal colony in the Russian-occupied village of Olenivka in Donetsk region was destroyed. In it, the Russians kept Ukrainian prisoners of war, in particular from Mariupol. On August 3, 2022, UN Secretary-General Antonio Guterres announced that the UN is launching a "fact-finding mission" of the tragedy in Olenivska colony. But the mission was closed after five months.
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How should Ukrainian military personnel behave on the territory of Russia so that they are not accused of violating international law?

They have the same obligations as the Russians. They should minimize civilian casualties, as well as damage to civilian objects. They must protect cultural monuments and cultural values. Adhere to international conventions in the treatment of prisoners of war. Minimize damage to the energy sector of the region. The Ukrainian side, like the Russian side, must create conditions for civilians to evacuate to the territory of Russia.