Military occupation of Moldova by Russia

Russia is the occupying power in the Moldovan territory of Transdniestria. Transdniestria is also spelled Transnistria. The Operational Group of Russian Forces (OGRF) – formerly the 14th Army of the military district of Odessa of the Ministry of Defence of the USSR (14th Army) – is stationed in Transdniestria without the consent of the Republic of Moldova. See European Court of Human Rights, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §32 ff. The OGRF numbers between 1,500 and 2,000 Russian soldiers with significant stockpiles of weapons and ammunition. M. Necsutu, ‘Russia Dismisses Compensating Moldova for “Occupying” Transnistria’, The Balkan Insight, 24 January 2018. Russia also exercises overall control over the separatist armed groups of Transdniestria, i.e. the self-proclaimed ‘Moldovan Republic of Transdniestria.’ In other words, Russia is also using proxy forces. For further information on the use of proxy forces, see ‘Contemporary challenges for classification – control over proxy forces.’

Transdniestria broke away from Moldova in September 1990, as a result of fears that Moldova was preparing to reunite with Romania. M. Robinson and A. Tanans, ‘After Crimea, Moldova too Fears “Unwanted “ Events on Road to EU’, Reuters, 30 March 2014; E. Rumer, Moldova Between Russia and the West: A Delicate Balance, Carnegie Endowment for Peace, 23 May 2017. The resultant civil war lasted from 1991 to July 1992 when a ceasefire was brokered. ‘Trans-Dniester Profile’, BBC, 13 December 2016. This ceasefire is today maintained by a Russian forces, comprising approximately 1,500 to 2,000 troops. See ‘Russia Dismisses Compensating Moldova for ‘Occupying’ Transnistria’, Balkan Insight, 24 January 2017; Agreement on the Principles for a Peaceful Settlement of the Armed Conflict in the Dniester Region of the Republic of Moldova, 21 July 1992. This ceasefire is today maintained by a joint peacekeeping force, comprising approximately 1,200 troops. Composed of 402 Russian, 492 Transdniestrian, and 355 Moldovan troops and 10 Ukrainian military observers, the peacekeeping forces are stationed at 15 checkpoints in key areas of the security zone, i.e. the borderland stretching along the Dniester River. K. Lungu, ‘Transnistria: From Entropy to Exodus’, European Council on Foreign Relations, 1 September 2016. It is necessary to distinguish between the Russian peacekeeping contingent comprised of trilateral peacekeeping forces, which is present in Transdniestria with the consent of Moldova under the ceasefire deal, and the Russian troops of the former 14th Army located in Transdniestria without Moldova’s consent. Only the latter could be taken into consideration with respect to Russia’s occupation of Moldova.

In a 2006 referendum, the majority of the Transdniestrian population voted not to integrate with Moldova and to retain their ‘independence.’ C.Vlas, ‘Transnistria Leader on Settlement Referendum: We Had a Referendum in 2006 on Independence and Joining Russia’, Moldova.org, 30 January 2017. However, Moldova is still recognised as sovereign. In fact, the European Court of Human Rights repeatedly confirmed that under public international law the territory under the effective control of the Transdniestrian separatist government remains that of Moldova. ECtHR, Catan and Others v Moldova and Russia, Grand Chamber, Judgment, App nos 43370/04, 8252/05 and 18454/06, 19 October 2012, §110; ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §330. General international law determines whether a secessionist entity possesses statehood. It remains debated whether recognition is a criterion. For further information and references on statehood, see 'international armed conflict - secessionist entities' in our classification section.

Elements of occupation

For a territory to be considered occupied, it must be 'under the authority of the hostile army.' Article 42, 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land. For an occupation to exist, hostile foreign forces must exercise effective control. Three cumulative elements must be fulfilled for effective control to exist.

• First, the armed forces of a foreign state are physically present in the territory and the territorial state did not consent to their presence.
• Second, the presence of the foreign forces prevents the effective local government in place at the time of invasion from exercising its powers.
• Third, the foreign forces establish their own authority. For further information, see ‘military occupation – elements of occupation’ in our classification section.

States may use proxy forces to occupy a territory: if a state exercises overall control over de facto local authorities or other local groups that exert effective control over the territory, the state can be considered an occupying force. For further information on overall control, see ‘contemporary challenges for classification – control over proxy forces’ in our classification section. Two elements must therefore exist in such a situation.

• The foreign state has overall control over de facto local authorities.
• The de facto authorities exercise effective control of a territory. For further infor-mation, see T. Ferraro ‘Determining the Beginning and End of an Occupation Under International Humanitarian Law’, 94 International Review of the Red Cross 885 (2012) 158 ff.

In particular, an overall control over an organized armed group exists where a State ‘has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.’ International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Duško Tadić, Appeals Chamber, Judgment, IT-94-1-A, 15 July 1999, §137. For further information on overall control, see ‘Contemporary challenges for classification – control over proxy forces.’

The European Court of Human Rights developed its own test of effective control over territory for the purposes of establishing State’s extra-territorial jurisdiction under Article 1 of the European Convention on Human Rights. Its significant indicators are twofold: (i) ‘number of soldiers deployed by the State in the territory in question’; and (ii) ‘the extent to which the State’s military, economic and political support for the local subordinate administration provides it with influence and control over the region.’ Council of Europe/European Court of Human Rights, ‘Guide on Article 1 of the European Convention on Human Rights: Obligations to Respect Human Rights – Concepts of “Jurisdiction” and Imputability’, updated on 31 December 2019, p. 17. Even though an overall control test for the purposes of occupation by proxy and effective control test developed by the ECtHR serve different purposes, some factual findings of the ECtHR leading it to establish Russia’s effective control over Transdniestria could be taken into account as supporting indicators of Russia’s overall control over armed groups of Transdniestria.

Between 1,500 and 2,000 Russian soldiers of the Operational Group of Russian Forces – formerly the 14th Army – together with large stockpiles of weapons and ammunition are located in Transdniestria without Moldova’s consent. M. Necsutu, ‘Russia Dismisses Compensating Moldova for “Occupying” Transnistria’, The Balkan Insight, 24 January 2018. Although the number of Russian troops stationed in Transdniestria has in fact fallen significantly since 1992, Russian weapons stocks are still present and in view of the size of this arsenal, the Russian “military importance in the region and its dissuasive influence persist.” ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §387; ECtHR, Catan and Others v Moldova and Russia, Grand Chamber, Judgment, App nos 43370/04, 8252/05 and 18454/06, 19 October 2012, §§117-118.

Apart from the presence of the regular Russian troops, based on the case law of the ECtHR, it is undoubted that Russia has consistently supported Transdniestria militarily. In particular, Russia provided Transdniestria with military and political support to help them set up the separatist regime and Russian military personnel supported Transdniestria in the 1991-1992 civil war. ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §382. According to the ECtHR, the 14th Army located in Transdniestria ‘fought with and on behalf of the Transdniestrian separatist forces.’ ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §380. Significantly, the ECtHR held that Transdniestria only survives due to Russian support. ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §392. The Court confirmed that although Transdniestria is vested with organs of power and its own administration, it ‘remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation and in any event that it survives by virtue of the military, economic, financial, and political support given to it by the Russian Federation.’ ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §390-392. See for later case law ECtHR, Mozer v The Republic of Moldova and Russia, App no 11138/10, Judgment, 23 February 2016, §110. Such support has enabled Transdniestria to acquire a certain amount of autonomy vis-à-vis Moldova. ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §382. In this regard, the ECtHR held that there was little Moldova could do to re-establish its authority over Transdniestrian territory. ECtHR, Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §341.

As for Russia’s role in organization, coordination, or planning the military actions of separatist army, it is publicly known that the Russian army and Transdniestrian separatis forces conduct military exercises. M. Necsutu, ‘Russia Dismisses Compensating Moldova for “Occupying” Transnistria’, The Balkan Insight, 24 January 2018.

In sum, Russia exercises its authority over the territory of Transdniestria through the direct military presence of the Russian troops together with stockpiles of weapons and ammunition and through the separatist forces of Transdiestria, over which it exerts an overall control. This latter conclusion is made on the basis of publicly available data, which support the fulfilment of some of the requirements of the overall control test.

Views of the parties to the conflict and the international community

The subjective views of the parties may be an indicator, but are not determinative for the classification of a situation. For further information, see ‘overview- classification based on legal criteria and facts’ in our classification section.

Russia denies occupying Transdniestria or exercising control over the local authorities. ECtHR, Catan and Others v Moldova and Russia, Grand Chamber, Judgment, App nos 43370/04, 8252/05 and 18454/06, 19 October 2012, §§96-99; Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §354. In 1999, at the OSCE Summit in Istanbul, Russia committed to complete withdrawal of its troops from Moldova’s territory by the end of 2002. Organization for Security and Cooperation in Europe, Istanbul Summit Declaration, 1999, §19.

The Moldovan government denounced the occupation by Russian forces during the 1991-1992 war. ECtHR, Catan and Others v Moldova and Russia, Grand Chamber, Judgment, App nos 43370/04, 8252/05 and 18454/06, 19 October 2012, §18; Ilaşcu and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §53. In July 2017, the Moldovan Parliament adopted a declaration condemning the violation of the territorial integrity of Moldova and calling for the removal of Russian troops. ‘Moldova Political Split Deepens After Demand for Russia’s Transdniester Pullout’, Radio Free Europe, 21 July 2017. In May 2017, the Constitutional Court of Moldova concluded that Russia continued to occupy the Transdniestrian region in ‘violation of constitutional provisions regarding the independence, sovereignty, territorial integrity and permanent neutralist of the Republic of Moldova, as well as of international law.’ Constitutional Court of the Republic of Moldova, Judgment on the Interpretation of Article 11 of the Constitution, Complaint no 37b/2014, 2 May 2017.

The Parliamentary Assembly of the Council of Europe repeatedly called on Russia to withdraw its troops from Moldova and to implement the rulings of the European Court of Human Rights. See for example Resolution 1955(2013), Parliamentary Assembly, 2 October 2013, §§27-29; Resolution 1896 (2012), Parliamentary Assembly, 2 October 2012. §25.2. In June 2018, the UN General Assembly adopted a resolution which also urges the withdrawal of the Russian troops, on request by the Moldovan authorities. ‘General Assembly Adopts Texts Urging Troop Withdraw from Republic of Moldova, Strengthening Cooperation in Central Asia’, UN Press, 22 June 2018. In addition, NATO has declared its firm position on the matter in a recent joint press point with the Prime Minister of the Republic of Moldova, Pavel Filip. NATO Secretary General Jens Stoltenberg stated that NATO ‘strongly supports the territorial integrity of the Republic of Moldova’ and that the conflict in Transdnieistria, undermines Moldova’s territorial integrity. He stressed that ‘NATO allies do not, and will not, recognize Transnistria.’ See ‘Joint Press Point with NATO General Jens Stoltenberg and the Prime Minister of the Republic of Moldova, Pavel Filip (as delivered)', 30 November 2016. Finally, the European Court of Human Rights repeatedly concluded that ‘the Moldovan Government, the only legitimate government of the Republic of Moldova under international law, does not exercise authority over part of its territory, namely that part which is under the effective control of the “MRT”’ and that the local authorities are under the ‘effective authority’ or at least ‘decisive influence’ of Russia. ECtHR, Ilaşcu  and Others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004, §330 and §392; ECtHR, Catan and Others v Moldova and Russia, Grand Chamber, Judgment, App nos 43370/04, 8252/05 and 18454/06, 19 October 2012, §109 and §111; ECtHR, Mangir and Others v Moldova and Russia, Chamber, 50157/06, 17 July 2018, §43.

The law of military occupation is set forth in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land, the 1949 Geneva Conventions (IV) Relative to the Protection of Civilians Persons in Time of War and the 1977 Additional Protocol I applicable to International Armed Conflicts.

Both Moldova and Russia are a party to the 1949 Convention, and the 1977 Additional Protocol I.

Customary international humanitarian law is also applicable during occupation; it complements the protection granted by treaties and binds all parties to the conflict. Customary international law consist of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.

In addition to international humanitarian law, international human rights law continues to apply during times of occupation. Both Russia and Moldova are parties to the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, and the European Convention on Human Rights. Russia remains bound by its international human rights law obligations in the territory it occupies.

• Moldova
• Russia