"Occupation", "effective control" or "liberation". What is Ukraine doing with the Kursk Oblast

Ukraine has "brought the war back home to Russia," President Volodymyr Zelensky said, explaining the goals of the Ukrainian armed forces' Kursk offensive operation. But how does international law consider the fact of keeping thousands of kilometers of another country's territory under military force?

On the morning of August 6, for the first time since the beginning of the invasion, the forces of the Ukrainian regular army crossed the Russian border and entered the territory of the Kursk region of the Russian Federation. Despite assurances from the Russian authorities and the Ministry of Defense that "they will be suppressed soon", this has not happened in the past three weeks.
Moreover, according to the information of the General Staff of the Armed Forces of Ukraine, 93 settlements and almost 1.2 thousand square kilometers of territory in the Kursk region are under the control of Kyiv. A Ukrainian military command was created in the city of Suja under the leadership of General Eduard Moskalyov.
In the recent history of Ukraine, unlike Russia, there was no experience of occupying the territory of another country. It is not surprising that at first the official Kiev was informatively silent about the Kursk operation for a long time, and then rather ambiguous statements about the future of the territories under their control began to be heard from Ukrainian sources.

How to call the events in Kursk

President Zelensky, commenting on the events in Kursk, states that Ukraine is trying to create a "buffer zone" there and talks about an "active preventive measure".
Other representatives of the civil and military authorities also try not to use the word "occupation", but speak of "taking control" or "liberating" settlements on Russian territory.
"We didn't occupy these territories, we didn't establish any authority," emphasizes Minister of the Interior Ihor Klimenko, as quoted by Ukrinform.
According to him, Kiev has created a military command post on Russian territory, because it is "written in international conventions".
"This is not a desire to sound good, this is a matter of state responsibility. And we show that Ukraine is a responsible state that abides by the conventions it signed".
The minister emphasized that the military command issues medicine and food, as well as ensuring "full life activity" in those regions where Ukrainian troops are conducting operations.
Ukraine is ready to organize a humanitarian corridor for the evacuation of residents of the Kursk region. But Russia, not Kiev, should send the appropriate request to the Red Cross, stressed the Deputy Prime Minister, Minister for Reintegration of Temporarily Occupied Territories Irina Vereschuk.
On the other hand, the Deputy Minister of Education Mihajlo Vinicki said that Ukraine is also considering the possibility of "providing education" for Russian students in the Kursk region and even joining the local agricultural technical school in Suja to the Sumy National Agrarian University. After that, MES stated that no such decisions were made.
The Ministry of Culture has already expressed interest in the "discovery and restoration" of cultural heritage objects, especially the estate of Hetman Ivan Mazepa in the Kursk Region.
"These territories currently have the status of a combat zone, it is not possible to carry out any humanitarian civilian measures there. Moreover, we will understand that this is a foreign territory, not the territory of Ukraine. At the same time, of course, we have an interest, it is related to "branches of Ukrainian history, which are located on these lands, where Ukrainians officially lived not so long ago," said Minister of Culture and Information Policy Rostislav Karandeyev in a comment for "Interfax-Ukraine".

On August 13, the Ukrainian public organization "Institute of Mass Information" (IMI) publicly advised journalists not to use the word "occupation" in connection with the events in Kursk Oblast, as it has an "obviously negative connotation."
However, on August 19, the Commission for Journalistic Ethics issued its recommendations for the media. They indicate that after the start of full-fledged work of the Ukrainian military command in Kursk Oblast, "the beginning of the occupation of certain districts of Kursk Oblast" can be counted.
From this moment, the Commission believes, it is not correct for journalists to use the words "liberation" in relation to these territories, but one can talk about "temporary occupation", "taking over control" or "counter-offensive of the armed forces".

Occupying, but legal

However, unlike public organizations and politicians, the opinions of international lawyers on the status of the territory in the Kursk region are unanimous. What is happening there is an occupation.
"The sun rises in the east, the Dnieper flows into the Black Sea. There are things that, regardless of the situation, we cannot change. Therefore, according to international humanitarian law, this territory is occupied by Ukrainian troops and they implement the regime of the occupying state," the doctor explains to the BBC of legal sciences and professor of international law Boris Babin, who in 2015 was the commissioner of Ukraine in the cases of the European Court of Human Rights.
But Ivan Liščina, former deputy minister of justice for international courts, emphasizes that this occupation is absolutely legal.

"This is the right of self-defense, there is no violation. You can cite the example of the occupation of Germany in the Second World War by the troops of the USSR, France, England and the United States of America. These were absolutely legal actions, because these countries were defending themselves from aggressive the action of Germany", says Liščina.
The occupation of part of the Kursk region, which happened de facto, does not require any official explanations from Kiev to international structures, but imposes a number of obligations in accordance with the Geneva and Hague Conventions.

However, emphasizes lawyer Boris Babin, there are different responsibilities for different phases of occupation. During the "hot phase" they are one, and for the "permanent occupation" regime they are different. Much bigger.
In particular, Ukraine cannot forcefully deport the local population and change the order in these territories.
"This means that we cannot hold fake referendums, we cannot introduce Ukrainian legislation for the local population, we cannot arbitrarily deport them, but we must give them the opportunity to evacuate," says the lawyer.
The Geneva Conventions also state that the occupying power in these territories cannot force residents to do forced labor, destroy movable or immovable property (except when necessary for military operations), change the status of officials or judges.
The occupying power is obliged to supply the population with food and medical supplies by all available means.
According to Ivan Lishchyna, the Ukrainian government can legally create not only a military, but also a civilian administration in the occupied territories of the Kursk region. But it should not be about the annexation of these countries.
"Ukraine cannot extend its sovereignty to the occupied territory," emphasizes the international jurist.
Is there effective control?

In addition to the occupation regime, the situation in the Kursk region can also refer to the so-called "effective control".
This concept in international law was first applied in 1986 in the decision of the International Court of Justice of the United Nations in the case of Nicaragua v. USA. At that time, the government of this Central American country was fought by certain rebel organizations called "contras", which, according to the court, were under the "effective control" of the US government.
Therefore, it was not them, but the White House that was responsible for the violations they committed.
In the future, the concept of "effective control" was also applied by the courts, primarily the European Court of Human Rights, in relation to Turkey's activities on the territory of Northern Cyprus, and Russia's activities in the unrecognized Transnistria.
For example, in a decision dated February 23, 2016, the ECHR ordered Russia to pay 25,000 euros to a Moldovan citizen who was illegally arrested by Transnistrian law enforcement officers on suspicion of fraud.
The authorities of the Russian Federation announced that they have nothing to do with this case and that they consider Transnistria to be an inseparable part of Moldova.

But the European Court emphasized that this unrecognized state "cannot continue to exist without the military, economic and political support of Russia", which means that Moscow is responsible for human rights violations in this territory.

What will happen next with Kursk?

According to this logic, could a resident of a city from the Kursk region apply to the European Court of Human Rights in Ukraine and declare that his rights have been violated? Of course, former Deputy Minister of Justice Ivan Liščina answers.
He does not even rule out that Russia will try to "spam" the European Court through fake persons with such statements about the alleged violation of human rights in the occupied territories of the Kursk region, as in previous years.
"They already tried to do it in Donbass. It was such a state policy in the Russian Federation... But in practice it doesn't work very effectively," the lawyer points out.
Ukraine, in turn, could protect itself by publicly announcing its withdrawal from certain provisions of the Human Rights Convention. Since the beginning of the war, the Ministry of Justice has repeatedly sent such statements to the Council of Europe regarding Ukrainian territory.
They concerned deviations from the articles on the prohibition of forced labor, granting the right to respect for private and family life, the right to freedom of assembly, free movement and expression of views, etc.
Maybe now such a statement should be submitted in relation to the occupied territories of Russia, the lawyers admit. However, this is no guarantee that the European Court will ultimately reject the lawsuit of the "conditional resident of the Kursk region" against Ukraine.
"The ECHR says that such statements can be made, but they should in no way give the state the opportunity to significantly violate human rights," explains Ivan Liščina.
In addition, he considers the very fact of "effective control" by Ukraine on the occupied territories of the Kursk region to be a debatable issue.
According to the lawyer, so far this stage has definitely not yet arrived, but Ukraine is "approaching this point".
The creation of a military command in Suža can be a "sign" that the court will take into account when determining the presence or absence of "effective control", says Boris Babin.
"I will cautiously say that this will affect the question of whether the international structure will determine the fact of 'effective control'," explains Babin.
According to the lawyer, so far this stage has definitely not yet arrived, but Ukraine is "approaching this point. The creation of a military command in Suja can be a "sign" that the court will take into account when determining the presence or absence of "effective control", says Boris Babin.
"I will cautiously say that this will affect the question of whether the international structure will determine the fact of 'effective control'," explains Babin.

It should be noted that some Russian "militants" have already spread information about the alleged preparation of a "referendum" on September 6 on the annexation of the occupied Kurshchyna territories to Ukraine. Although a week before that, the Ministry of Foreign Affairs announced that Ukraine has no intention of "occupying" this territory. There is currently no evidence of vote preparation.
The Ministry of Justice of Ukraine told the BBC that they do not deal with the legal status of the Kursk region and advised to contact the Ministry of Defense. The Ministry of Defense announced that this is the responsibility of the General Staff.
Until the day of publication of the material, the General Staff of the Armed Forces of Ukraine did not respond to the request of the BBC, especially regarding the legal aspects of the work of the Ukrainian military command in the Kursk region and further perspectives.