Unwanted citizenship Part 3 – Statehood, interrupted: passportisation as a tool of occupation

In the last two Torn Identity blogs I looked at citizenship and statelessness through the prism of occupation, with Western Sahara as a case study.  Recent events in Ukraine, and the earlier occupation of the Crimea and Donbas regions, demonstrate that the use of citizenship as a tool of occupation, through what has been called ‘passportisation’, remains a live issue worthy of examination.

 

Discussing unwanted citizenship

In the first blog in this mini-series, I opened the debate with the unusual case of a man from Western Sahara, a Sahrawi, who unsuccessfully begged a French court to treat him as stateless rather than as having Moroccan citizenship.  The applicant argued that the occupying power in parts of Western Sahara – Morocco – imposed Moroccan nationality on him in violation of international law.

In the second blog in this series, I unpacked the question of whether an occupying power is prohibited under international law from imposing its citizenship on the residents of an occupied territory.  The grant and revocation of citizenship is an exercise of sovereignty over a territory and a people.  Since the occupying power is not sovereign, it cannot carry out actions which are reserved for the sovereign power.  This distinction in jurisdiction between the sovereign and the occupier remains live in the case of the occupation of Ukraine.

 

The Ukraine occupation

Russia has occupied the territories of Crimea, and, in the Donbas region, the territories of Donetsk and Luhansk since early 2014.  On 16 March 2014 a referendum was held in Crimea with the purpose of approving the annexation of Crimea by Russia.  After the referendum, a Treaty of Accession was signed, annexing the so-called Republic of Crimea.

The Minsk Protocol signed by Ukraine, Russia and the Organisation for Security and Cooperation in Europe (OSCE) in September 2014 was an attempt to stop the fighting in Donbas.  When this failed, Minsk II revised and updated the Protocol in February 2015 to provide for a package of measures, including constitutional reform in Ukraine to grant self-government to certain areas and the eventual restoration of the state border.

Both versions of the Minks Agreements failed to stop the fighting.  On 21 February 2022, Putin signed two decrees recognising the two areas’ independence.  He then issued orders to Russia’s armed forces to carry out “peacekeeping” operations in the self-proclaimed “Donetsk People’s Republic” (“DNR”) and “Luhansk People’s Republics” (“LNR”). The war started on 24 February 2022 with the invasion of Ukraine.  Russia attempted to annex the entire territory of Ukraine and to consolidate and expand its hold on the previously occupied territories.

 

Passportisation and occupation

Long before declaring the independence of DNR and LNR, in April 2019 – the day after Volodymyr Zelenskyy’s presidential victory was proclaimed – Putin had already signed a decree simplifying the procedure for granting Russian citizenship to residents of Donetsk and Luhansk.  The decree was put into practical effect by the proactive distribution of Russian passports and the grant of citizenship to people living in the occupied territories.  As at April 2021, some 650,000 Russian passports had been issued.  By the start of the war, in February 2022, this number had risen to 720,000, equating to about 18% of the population in the regions ¹.  Russia used the territories’ increased ‘Russian’ population to confirm itself willing to come to its citizens’ defence, should it prove necessary ².

Russia’s actions have been described as a policy of ‘passportisation’, a tool for solidifying Russian extraterritorial governance over the occupied regions.  Passportisation is defined ³ as:

“a fast-track extraterritorial naturalization en masse of citizens residing in contested territories of a third country”.

This approach was previously seen in Russia’s war with Georgia over the breakaway regions of South Ossetia and Abkhazia ⁴.  Passportisation contributed to Russia successfully occupying approximately 20% of Georgia ⁵.  In Crimea, passportisation began even before the annexation of the region in 2014, making it very difficult for anyone in the region without a Russian passport to access basic services such as healthcare and education ⁶.

The implementation of the policy continues unabated.  The passportisation provisions were extended on 4 May 2022 to the residents of the newly occupied parts of the DNR and LNR.  On 25 May 2022 the residents of the seized areas of Zaporizhizhia and Kherson (not claimed either by the DNR or the LNR) were deemed eligible for the fast-track citizenship procedure ⁷.  On 11 July 2022, fast-track Russian citizenship was extended to all residents of Ukraine ⁸.

 

Is passportisation legal?

Russia’s actions arguably breach the Convention respecting the Laws and Customs of War on Land, otherwise known as the 1907 Hague Convention and its annex: Regulations concerning the Laws and Customs of War on Land.  Article 45 of the Annex to the Convention states that:

“It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.”

An analogous situation was the process of Germanisation in Nazi occupied territory which included the imposition of German nationality on the occupied population.  The enforced citizenship in that context came with an obligation of military conscription and service in the armed forces.  Failure to comply would mean imprisonment or death.  Refusal to accept German citizenship would result in forced labour, imprisonment in concentration camps and often, in death ⁹.  When two of the proponents of this policy were tried after the war, their actions were treated as elements of crimes against humanity, as well as being in breach of the Hague Convention.

Ukraine does not allow dual citizenship and has continued to consider all of its residents as Ukrainian, refusing to recognise the passports issued by Russia ¹⁰.  Ukraine continues to assert that passportisation is both a breach international humanitarian law and of its territorial sovereignty ¹¹.

There is also a question of consent from the population ¹².  Although Russian policy is to offer facilitated naturalisation rather than impose its nationality unilaterally, this does not mean that individualised naturalisation is legal under international law, especially if the affected persons’ consent is not free ¹³.  This is the case when pressure, threat, or force is applied to gain the individual’s consent to acquire the new citizenship, as was reported, for example, after the Crimean annexation. The Council of Europe Commissioner for Human Rights has noted that the imposition of citizenship could constitute interference with the right to family and private life and found that ¹⁴:

“The consent of the person concerned should be the paramount consideration”

 

Population transfer, citizenship and support

The more ‘citizens’ Russia has in Ukraine, the more rights those citizens acquire.  And the more Russia’s government can argue for a say over the territory where its citizens are living.  Increased citizen numbers and stoking of separatist movements may eventually lead those separatist movement to seek a right to self-determination.  The argument can be made even if, as with Western Sahara, people were deliberately moved to the occupied territory to tip that balance.  That is why, alongside the passportisation initiatives, Russia has also facilitated the migration and settlement of Russian citizens to Crimea.  This is a breach of Article 49 of the Fourth Hague Convention.  Article 49 prohibits the transfer of the occupying power’s own civilian population into the territory it occupies ¹⁵.

The 2008 OSCE Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations ¹⁶ are relevant here.  The Recommendations set out when states may support the citizens of another country based on shared ethnic, cultural, or historical ties:

“States may take preferred linguistic competencies and cultural, historical or familial ties into account in their decision to grant citizenship to individuals abroad.”

But this support is still bounded by the states’ obligations under international law and to other states, and, especially, to the principles of territorial sovereignty.  In any event, conferring citizenship en mass is not envisaged as a legitimate method of support.

 

Passportisation and citizenship as a tool of erasure

As the Open Society Foundation report ¹⁷ into passportisation in the Crimea concluded, citizenship is a:

“powerful, coercive instrument of containment and assimilation”

It is a rejection, along with the use of population transfers, of Ukraine’s territorial sovereignty and Ukrainian identity. It causes a deterioration of the status and situation of those individuals who must choose between retaining their Ukrainian citizenship and taking on the citizenship of the aggressor.  The Open Society Foundation report lists restricted rights, a compete loss of legal personality and many becoming foreigners in their own country as the impact of passportisation.

We can see, both in Ukraine and in Western Sahara, an attempt to erode national identity through changing demographics and imposition of citizenship.  This attempt, previously associated with ethnicity, language or historical memory is eventually solidified through citizenship and has a distinctly territorial and political dimension ¹⁸.

Passportisation and citizenship become not only a tool of occupation, but a tool of erasure.