On September 19, 2022, the Russian occupation troops and administration intensified their activities to initiate illegal referendums which are due on September 23–27, 2022, in the occupied territories. According to the Kremlin's scenario, a fake referendum would create “legal grounds” for Russia to annex these territories. The acceleration of such processes is directly linked to the successful counter-offensive effort of the Armed Forces of Ukraine in Kharkiv Oblast and in the South. It is also related to Russia's fear of losing the quick gains of armed aggression during the first months of the full-scale war. Pseudo-referendums are totally null and void from the legal point of view. They will not be recognized in civilized countries but still create new challenges for civilians and for the government of Ukraine.
The fake referendum has no signs of a free and legal process. It discredits the institution of democracy as the participation of citizens in governance and does not rely on legislation and the Constitution, international standards and best practices. Voting began 2 days after the announcement of a fake referendum by the official authorities of Russia. It takes place under the pressure of armed soldiers of the Russian army, who go to the apartments of citizens and force them to vote at home, choosing between ticking boxes on fake ballots and their lives. Simultaneously with the voting, the collection of personal data of citizens, assessment of their ability to resist the occupying authorities and intimidation takes place.
On September, 21, Vladimir Putin made a statement about holding a fake vote in Donetsk, Luhansk, Kherson, and Zaporizhia Oblasts, and announced partial mobilization. All things considered, including also the recent decisions of the Russian parliament to amend the Criminal Code of the Russian Federation, the Kremlin is preparing for the escalation, declaration of martial law, and continuation of armed aggression against Ukraine. After the imitation of the voting and illegal annexation, Russia plans to declare these territories under its jurisdiction. Accordingly, any counter-aggressive actions of Ukraine will be considered an attack on the territory of Russia.
OPORA strongly condemns the initiation and holding of such annexationist referendums. Their results will be a priori null and void. These actions of the aggressor pose yet another threat to global security and to the international legal order that developed after World War II. Furthermore, they consolidate the negative practices that have already become established after the annexation of Crimea and are pursued by totalitarian and authoritarian regimes with conquering ambitions to use the tools of people's power (elections, referendum processes, public councils, etc.) for the conditional legitimization of non-legal actions.
As a result of the de-occupation of parts of the territory of Ukraine, the world has seen numerous facts of systematic war crimes targeted against Ukrainians. Fake referendums in the occupied territories will intensify the persecution of Ukrainians, and lead to new murder, torture, forced mobilization of Ukrainian citizens to the Military Forces of Russian Federation, and other forms of violence and violation of the law of waging war. Russia has been systematically expanding its presence in the occupied territories and creating the preconditions for their illegal integration. The occupiers destroy the Ukrainian language and culture and russify Ukrainian citizens.
The civilized world must not let the Crimean scenario happen again. The reaction to the illegal annexation of Ukrainian territories must not be weak.
This state of affairs requires decisive action from the international community. It is necessary to significantly increase military assistance to Ukraine required for the liberation of the occupied territories and for armed deterrence of the aggressor. Sanction pressure on Russia shall be significantly increased, too. The Crimean precedent should not be allowed because Russia does not limit its appetites to Ukraine, and it may claim the territory of other states. Inactivity and bargaining with the aggressor may become fatal mistakes.
The determination of the West will define the fate of Ukrainians in the occupied territories, the existence of Ukraine as an independent and sovereign state, stability and peace in Europe, and the preservation of the system of international relations as a whole. There is little time left for decisive action.
For reference
Sham referendums are absolutely null events from a legal point of view. This was stated by a number of international organizations and the international legal community. In particular, the Venice Commission recalled its position regarding the illegal "referendum" in Crimea in 2014 and stated that its conclusions, with appropriate changes, also apply to sham referendums planned by the Kremlin in the occupied territories of Ukraine, and also stated in general that due to difficulties in guaranteeing free agitation and public discussion of reforms with long-term effects, holding referendums during a state of emergency, including war and military threats, would be contrary to European standards. In turn, the international law firm Public International Law & Policy Group published the White Paper "The Legality and Impact of Russian Referenda in the Occupied Ukrainian Territories", which emphasizes that despite the various legal justifications claimed by Russia, referendums and any further inclusion of the occupied territories to the Russian Federation will be illegitimate and will have no legal force, because Russia's efforts to annex the occupied territories through a referendum violate Ukraine's fundamental right to territorial integrity. They also drew attention to the fact that Russia's references to the right to self-determination by analogy with Quebec, Scotland and Kosovo are inapplicable to the context of Ukraine.
OPORA's expanded position on illegal referendums is available here.
OPORA's legal analysis of the nullity of Russian pseudo-referendums in the occupied territories can be found here.