FROM CLAIMS TO PUNISHMENT: THE REACTION OF UKRAINE AND THE WORLD TO THE OCCUPIED ELECTIONS

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FROM CLAIMS TO PUNISHMENT: THE REACTION OF UKRAINE AND THE WORLD TO THE OCCUPIED ELECTIONS

Катерина Рашевська

21 вересня, 2023

252

FROM CLAIMS TO PUNISHMENT: THE REACTION OF UKRAINE AND THE WORLD TO THE OCCUPIED ELECTIONS

What do we know about the “elections?”

From January 2023 at the latest, the Russian Federation undertook to once again organize a window-dressing “expression of will” in the occupied territories. It was announced that by September 2023, the forced passporting of the population will be complete, to lists of the voters will be formed, and the polling stations will be identified. At the same time, they tried to make it look like a part of the federal electoral process: after all, they had to elect not only representatives of regional and local occupation authorities, but also the mayor of Moscow and some of the heads of regions of the Russian Federation.

By mid-spring 2023, while waiting for a Ukrainian counteroffensive, the Russians realized that they lacked voters and that there were gaps in Russian law that needed to be addressed immediately. To this end, Pavel Krashennikov drafted a law on the procedure for organizing elections in “new regions” of Russia which allowed voting during martial law, even without a passport of a citizen of the Russian Federation, online, outside the borders of the occupied territories, through the closed lists of candidates, not during “a single election day” (September 10), but long before that^[1].

As a result, the United Russia won the “elections,” and Russian agents kept the seats they had long won for their loyalty to Putin.

The reaction of Ukraine and the world

Ukraine consistently does not recognize the “elections” in the occupied territories, referring to them only as a tool of annexation to strengthen the power of the aggressor state. On July 7, 2023, the Central Election Commission adopted the Resolution #43 “On the illegitimacy of the organization of the preparation and holding of any elections by the Russian Federation in the temporarily occupied territories of Ukraine”^[2]. The CEC emphasizes that the “elections” organized by Russian agents are a violation of Ukraine’s sovereignty, political independence, and territorial integrity, and therefore are a priori illegitimate. Similar considerations are highlighted in the Address of the Verkhovna Rada of Ukraine adopted on August 9, 2023, to the parliaments and governments of foreign states, international organizations and their parliamentary assemblies regarding the intention of the Russian Federation to hold illegal elections in the temporarily occupied territories of the Donetsk, Luhansk, Zaporizhia and Kherson regions of Ukraine^[3].

The European Union, the Council of Europe, Canada, the United Kingdom, and the United States recognize the “elections” as an extremely futile attempt by Russia to legitimize and normalize its influence in the occupied territories of Ukraine. The Congress of Local and Regional Authorities of the Council of Europe insists that such a vote violates human rights. At the meeting of the UN Security Council on September 8, 2023, the Member States re-iterated their “deep concern” over the repetition of the scenario of past “referenda” in the occupied territories of Ukraine, calling the actions of the Russian Federation the “Potemkin’s elections.” However, the international community has not changed much in their statements over the past nine years. Russia continues its annexation of Ukrainian territories, but no clear steps have been taken to hold it accountable as a state or its officials as individual criminals. At the same time, from the prosecution perspective, “illegal elections” is one of the simplest illegal acts, because the evidence can be found even in the public domain. Therefore, no prosecution is all about the lack of political will.

“Elections” in the occupied territories and international law

The actions of the Russian Federation, aimed at including the occupied territories of Ukraine in its own legal and political system, violate a number of principles and norms enshrined in international law. At least some of them have a customary character and are recognized as illegal by most of the countries of the world. In particular, we are talking about the violation of two fundamental principles:

sovereign equality of states;
non-interference in internal affairs.

These principles are enshrined in international instruments, which Russia has consistently recognized, although not consistently followed: the UN Charter (Article 2)^[4], the Declaration on the Principles of International Law (Principles 3, 6)^[5], the Helsinki Final Act of the Conference on Security and Cooperation in Europe^[6].

In addition, in terms of their purpose, illegal elections have features of one of the elements of the crime of aggression, enshrined in both Article 8 bis of the Rome Statute^[7] and UN General Assembly Resolution 3314^[8], namely: “Any annexation by the use of force of the territory of another State or part thereof.” At the same time, both Russia and its agents should bear responsibility for such actions in accordance with the principle of individual criminal responsibility for international crimes.

The “elections” violate the fundamental principle of international humanitarian law – status quo ante bellum, and actions aimed at forcing participation in such a vote are also compelling to swear allegiance to the occupying power, which is prohibited by Article 45 of the Hague Regulations^[9].

Finally, the mentioned actions are a clear manifestation of the violation of the citizen’s right to participate in public affairs (Article 25 of the International Covenant on Civil and Political Rights)^[10]. Moreover, the “elections” are an encroachment on the national identity of the local population, on the right to freely express one’s opinion, on non-interference in private life. It is likely that individual acts of coercion in the course of such a “expression of will” may reach the threshold of war crimes.

Crime and punishment in national law

The Prosecutor General’s Office emphasizes: voting in Russian elections per se has no signs of a crime. Taking into account the atmosphere of fear and lack of freedom, coercion, in particular the use of threats by armed occupiers or violence, this position of the authorities of Ukraine is relevant to the context. Of course, it is also about saving resources: overloaded with more than a hundred thousand open proceedings on the war crimes, the national system cannot cope with tens of thousands of new cases against “collaborators.” In addition, the punish everyone approach would inevitably provoke a negative attitude toward Ukraine in general, which would only complicate the processes of de-occupation, reintegration, and reconciliation. It should not be forgotten that Russia forces even those Ukrainians whom it illegally deported to their own regions to vote, and it is almost impossible to refuse under the complete control of the aggressor.

At the same time, there are those who participate in the electoral process voluntarily: they run for office, campaign, work at polling stations, and “observe.” Among them are both the local population and the colonizers and Russian citizens – representatives of the authorities of the occupying state. Ukraine applies a different approach to them at the national level: the actions of the local population are qualified mainly under Part 5 of Article 111-1 of the Criminal Code of Ukraine (participation in the organization and holding of illegal elections and/or referenda in the temporarily occupied territory or public calls for holding of such illegal elections and/or or referenda on the temporarily occupied territory), and the actions of colonizers and other Russian citizens, under Article 110 of the Criminal Code of Ukraine (encroachment on the territorial integrity and inviolability of Ukraine).

According to Deutsche Welle, as of August 31, the Security Service of Ukraine identified more than 3,500 voluntary participants in illegal elections in the occupied territories. Obviously, the real number of potentially guilty persons is much higher. For example, according to the “election commission of the LPR,” only in the territory of the occupied Luhansk region, 5,260 people are engaged in the organization of the “elections.” On July 17, 2023, under the procedural leadership of Luhansk Regional Prosecutor’s Office, notes of suspicion were issued to the head, deputy head and secretary of this “electoral commission.” Persons who had already shown themselves last year during the organization of the “referendum in the LPR” were charged with collaborative activity (Part 5 of Article 111-1 of the Criminal Code of Ukraine)^[11].

On September 1, on the eve of the “single election day,” the Security Service of Ukraine notified the head of the Central Election Commission of the Russian Federation Ella Pamfilova, her deputy Nikolai Bulayev and secretary Nataliya Budarina on the suspicion. The organization of “local elections” in the occupied territories was qualified as an encroachment on territorial integrity (Article 110 of the Criminal Code of Ukraine), and life imprisonment with confiscation of property was defined as a potential punishment^[12].

While the determination to bring all guilty parties to justice is there, the activities of the competent bodies of Ukraine still yield quite limited outcomes. According to information from the Opora NGO, before the start of the full-scale invasion, only 288 people received sentences for organizing “referenda” and “elections” in the occupied territories of Ukraine^[13]. Their actions were classified then under Article 110 of the Criminal Code of Ukraine. For the same actions in the newly occupied territories, 80 people were brought to justice under Article 111‑1 of the Criminal Code of Ukraine^[14].

What’s next?

Russia will organize “elections” in the occupied territories as long as it maintains effective control over them. It is unlikely that the statements of Ukraine, the concerns of the international community, and even criminal proceedings opened by Ukraine will change it. Obstructing the process by armed means is a bad idea, as the potential victims of such actions will be the civilian population, which raises questions about the compliance of any attack with the norms of international humanitarian law. It is interesting that in the Belgorod region (in Shebekino and Zhuravka) the elections were canceled due to the dangerous situation, but Russian agents will drive Ukrainians to vote in the occupied territories, even if it coincides with the active phase of de-occupation.

What should be done in this case? It is worth continuing to document wrongdoing and gather evidence, ensuring that those responsible are held accountable. Strengthening diplomatic efforts to put more pressure on Russia, which demonstrably violates the fundamental principles of international law. Starting liability processes now, supplementing them with a mechanism for compensation. And never recognize the “elections” and their outcomes, consistently not recognizing violations of the Russian Federation and ensuring that the “relapse” is avoided by sufficient guarantees of non-repetition.

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union.

Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of the USAID or the United States Government. The contents are the responsibility of the authors and UHHRU.

The American people, through the USAID, have provided economic and humanitarian assistance worldwide for 55 years. In Ukraine, USAID’s assistance focuses on three areas: Health and Social Transition, Economic Growth and Democracy and Governance. USAID has provided 1.8 bln. technical and humanitarian assistance to Ukraine since 1992.

For additional information about USAID programs in Ukraine, please visit our website or our Facebook page.

^[1] https://lug-info.com/news/gosduma-rf-prinyala-zakon-o-poryadke-organizacii-vyborov-v-novyh-subuektah

^[2] https://zakon.rada.gov.ua/go/v0043359-23

^[3] https://zakon.rada.gov.ua/go/3306-20

^[4] https://unic.un.org/aroundworld/unics/common/documents/publications/uncharter/UN%20Charter_Ukrainian.pdf

^[5] https://www.un.org/ru/documents/decl_conv/declarations/intlaw_principles.shtml

^[6] https://zakon.cc/law/document/read/994_055

^[7] https://www.pgaction.org/ilhr/rome-statute/amendments.html

^[8] http://hrlibrary.umn.edu/instree/GAres3314.html

^[9] https://zakon.rada.gov.ua/laws/show/995_222#Text

^[10] https://zakon.rada.gov.ua/laws/show/995_043#Text

^[11] https://www.dw.com/uk/ak-ukraina-karatime-za-vibori-na-okupovanih-teritoriah/a-66712996

^[12] https://www.dw.com/uk/%D1%81%D0%BB%D1%83%D0%B6%D0%B1%D0%B0-%D0%B1%D0%B5%D0%B7% D0%BF%D0%B5%D0%BA%D0%B8-%D1%83%D0%BA%D1%80%D0%B0%D1%97%D0%BD%D0%B8-%D1%81% D0%B1%D1%83/t-18475864

^[13] https://www.oporaua.org/viyna/ogliad-sudovoyi-praktiki-shchodo-pritiagnennia-do-vidpovidalnosti-za-pidgotovku-ta-provedennia-psevdoreferendumiv-u-krimu-na-donechchini-ta-luganshchini-za- 2020-2022-roki-24274

^[14] https://www.dw.com/uk/ak-ukraina-karatime-za-vibori-na-okupovanih-teritoriah/a-66712996