Occupation of Minds: IHL Response to Russian Education Policies in the Occupied Ukrainian Territories

Into the eighth month of the Russian invasion of Ukraine, Russia has rushed to implement its plan to annex and assimilate newly occupied southern-eastern regions of Ukraine via sham referenda and attempted absorption of territories through respective domestic laws. The areas in question include parts of the Kherson, Zaporizhzhia, Donetsk and Luhansk regions (e.g., the latest map of Russian-controlled areas here), where Russia established its military presence after 24 February 2022, replaced Ukrainian government without consent of the latter and is in place to exercise its authority. For instance, Russia assumed law enforcement functions, started issuing Russian-type passports and other documents, blocked access to Ukrainian TV and Internet, gained control over the local financial and social care systems, public communications, infrastructure, etc.

Additionally, controlling what children learn constitutes one of the most powerful instruments of “Russification.” Replacing the Ukrainian curricula and language of instruction with the Russian ones, introducing “propaganda lessons”, transferring teachers from Russia to the newly occupied territories, and using coercion to combat dissent are only but a few tactics in the Russian occupation playbook, previously employed in Crimea and Donbas.

Since evidence convincingly suggests that Russian involvement in both Crimea and Donbas amounts to belligerent occupation (GRC (2022), pp. 336, 344), and the same appears to be true in relation to the southern-eastern regions seized after 24 February 2022, this blog will examine the occupant’s rights and responsibilities in the sphere of education, and how the Russian policies fit into the existing normative framework.

Education and belligerent occupation

Education is of utmost importance during armed conflicts since “while all around may be in chaos, schooling can represent a state of normalcy” (UNSG Note A/51/306, ¶185). Although armed conflicts pose numerous threats to education (UNSG Note A/51/306, ¶¶184-203), the IHL rules on the matter remain notably laconic. Instead, relevant rules can be found in human rights instruments (ICESCR, Art. 13; CRC, Art. 28; ECHR Prot. 1, Art. 2, etc.). The education-related IHL norms can broadly be grouped into two categories: those regulating the status of educational institutions as protected objects (e.g., Hague Regulations (HR), Art. 56, Additional Protocol I (AP I), Art. 52(3)) and those related to the education process. The latter are represented by two landmark rules of the law of occupation: the general duty of good governance and the special duty to facilitate the proper working of educational institutions.

Today, it is purported that the occupant’s duty of good governance under Article 43 of the HR (namely to “re-establish and insure, as far as possible, public order and safety”) covers education (HCJ 393/82, ¶18, also discussed in Clapham, Gaeta & Sassòli (2015), p. 1468; Arai-Takahashi (2009), p. 96; Dinstein (2009), p. 118).

The duty of good governance is further clarified in Article 50(1) of the Fourth Geneva Convention (GC IV) (Giacca & Nohle (2019), p. 8), obliging the occupant “to facilitate the proper working of all institutions devoted to the care and education of children” with the cooperation of the national and local authorities.

While the meaning of “facilitate the proper working” is to be established on a case-by-case basis, the Occupying Power must ensure the continuity of education by complying with negative and positive obligations. Negative obligations include avoiding requisitioning institutions’ staff, premises or equipment, while positive measures cover actively supporting and encouraging their work, supplying them with essentials, etc. (Commentary to GC IV, pp. 285-287). Nevertheless, this general framework does not explain whether and to what extent the Occupying Power may introduce changes into the education process.

Hence, whether the Russian policies are IHL-compliant should be examined considering three fundamental pillars of the law of occupation:

• occupation’s temporary character and continuity of administration in occupied territories (e.g., HR, Arts 43, 55; GC IV, Arts 47, 54, 64(1), etc.; Clapham, Gaeta & Sassòli (2015), pp. 1462-1464).
• occupant’s relatively broad powers to protect safety and security and ensure public order in occupied territories (e.g., HR, Arts 43; GC IV, Art. 64; Clapham, Gaeta & Sassòli (2015), p. 1482);
• occupant’s duty to respect the population’s allegiance to an ousted sovereign (e.g., HR, Arts 44–45; GC IV, Arts 51, 67–68(3); Clapham, Gaeta & Sassòli (2015), p. 1467).

Read in conjunction, these principles suggest the following interpretation of the occupant’s discretion to interfere with the education process.

A handful of commentaries discussing the topic suggest that the education process is not immune to alterations, including that the occupying administration may revise textbooks, check curricula, and supervise teachers “to prevent subversive or harmful instructions” (initially in Greenspan, ‘The Modern Law of Land Warfare’ (1959), p. 234; cited and not disputed in Arai-Takahashi (2009), pp. 385-386; Dinstein (2009), p. 184). The Israeli Supreme Court also held that occupation authorities could temporarily shut down education institutions primarily used for incitement to violence (HCJ 660/88 cited in Dinstein (2009), p. 184).

Nonetheless, it remains controversial to what extent such measures can apply to teachers or teaching materials expressing “genuinely patriotic zeal”, which does not amount to “subversive or harmful instructions” (Arai-Takahashi (2009), p. 386). One can imagine various examples of such zeal, e.g., wearing patriotic or symbolic clothes (such as vyshyvankas – traditional Ukrainian shirts), performing national anthem in schools, using patriotic slogans, commemorating symbolic national events, etc. From one perspective, such zeal is a natural expression of loyalty to the State of nationality, which the occupant is bound to respect. Alternatively, even innocent patriotic zeal can – in a specific context and in combination with other acts or declarations – encourage the local population’s resistance and endanger the occupant’s security. Naturally, in such situations all relevant circumstances should be considered, and necessity and proportionality of any limitations should be assessed on a case-by-case basis.

Several other IHL rules especially important in the context of altering curricula in occupied territories include Article 50(3) of GC IV, which states that the education of orphans or children separated from parents shall “if possible [be delivered] by persons of [children’s] own nationality, language and religion.” This serves to “exclude any religious or political propaganda designed to wean children from their natural milieu” (Commentary to GC IV, Art. 24 (1958), p. 188).

Additionally, IHL prohibits any “propaganda which aims at securing voluntary enlistment” (GC IV, Art. 51(1)). Since the rule seeks to protect the population from actions offensive to patriotic feelings or attempted disruption of loyalty to their country, indoctrinating children via “military-patriotic” education undermines this objective. Such education can also constitute a precondition for committing a war crime of compelling service in hostile forces (Rome Statute, Article 8(2)(a)(v)).

Alarming signals in the Russian-occupied territories

Targeting education has been a part of the Russian occupation playbook since 2014. In Crimea, the Ukrainian curriculum was replaced by the Russian one in March 2014 – almost immediately after the occupation commenced (OHCHR (2017), ¶195). After three years of education used “as the means of assimilating the population”, the “education in the Ukrainian language almost disappeared, jeopardising one of the pillars of an individual’s identity and cultural affiliation” (OHCHR (2017), ¶17, 195; UNESCO EB (2021), pp. 11-14). In parallel, “military-patriotic” education was introduced in schools accompanied by several militarist youth movements, the concerns of which were voiced by the United Nations General Assembly (Res 75/29 (2020), Preamble, ¶9).

Likewise, in Donbas, the Russian curriculum, grading system and language of instruction gradually replaced Ukrainian ones, combined with the courses on the history of Russia and Donbas and military training preparations (see also here, here and here).

Similar patterns are observable in the territories seized by Russia after 24 February 2022. In June, the Russian education minister, Sergey Kravtsov, announced that during the next school year, all schools in the Russian-occupied territories would start working according to the Russian standards to ensure the “integration [into Russia].” Ukrainian education “must be corrected,” – Kravtsov concluded during the meeting with Putin. This – as the reports show – can or does take several forms.

First, the introduction of the Russian curriculum, including Russian history, language and literature replacing respective Ukrainian courses (expectedly, with the imperialist narrative, which implies excluding the mention of the Soviet atrocities against the Ukrainian people, e.g., Holodomor). Second, the change of the language of instruction from Ukrainian to Russian, as well as the seizure of Ukrainian textbooks and their replacement with Russian ones. Third, announced plans to “retrain” Ukrainian teachers in Crimea and to send teachers from Russia or Crimea to the newly occupied territories to combat dissent against the introduced policies. Reports on coercion towards dissenting local staff  have already emerged.

Finally, Russian “patriotic” upbringing, including “propaganda lessons”. For instance, in April, the only school in Mariupol resumed its work with children singing the Russian anthem during the opening session just after a month of a devastating siege. Reports also emerged that during the ‘history’ lessons in Mariupol, children are taught to “deny that Russia attacked Ukraine and Mariupol” blaming Ukraine for the start of the war. This is happening while the access to the Ukrainian media space continues to be blocked by the occupation authorities.

All these tactics raise serious concerns about Russian compliance with the law of occupation. As argued above, the Russian administration can purportedly review and amend curricula or supervise the education staff to prevent subversive or harmful activities endangering the occupant’s security. It is, however, debatable whether such measures can apply to any other “genuinely” patriotic staff or materials not posing an immediate danger to the occupying forces.

At the same time, it is unlikely that the fundamental principles of the law of occupation can offer any justifications for the full-scale replacement of the Ukrainian education programs with Russian ones. The latter appears to be a tool for facilitating annexation, breaking the social status quo in the occupied territories, and assimilating it with the pro-Russian groups via erasing their Ukrainian identity and eradicating their loyalty to Ukraine.

Conclusion

The armed conflict in Ukraine exposes alarming signs of weaponising education – one of the few safe havens shielding children from the scourge of war. Russian policies resemble the decades of Soviet oppression implemented, inter alia, through Russifying education. Russian reported plans on staging the annexation of Ukrainian territories do not absolve it of responsibilities as an occupying power (GC IV, Art. 47). The latter dictate that while Russia can interfere with the education process to ensure its security in the occupied territory, such interference must not promote the territory’s annexation and disrupt the population’s loyalty to its State of nationality.