On violations of children’s rights during the war in Ukraine
On November 23, 2022 Nicholas Kristoff of the New York Times wrote an op-ed piece entitled “Russia Traffics in Ukrainian Children.” In such, he stated, “Russia doesn’t hide the transfer of Ukrainian children but trumpets it on its television propaganda programs, portraying itself as the savior of abandoned children and showing Russians handing teddy bears to Ukrainian boys and girls.” At the time of this writing, according to Children of War (childrenofwar.gov.ua), which aggregates data for the Ukrainian Ministry of Reintegration, the Ukrainian National Information Bureau, and the Office of the President of Ukraine, over 16,000 known children have been illegally deported since the start of the conflict (with the numbers potentially much higher). Mr. Kristoff went on to add, “… many of these stolen children seem to have been adopted into Russian families. That is not charity; it may be genocide.” Seeking an answer to that posit, whether the illegal deportation of children constitutes genocide, is the core of this writing. The answer is also complicated.
It goes without saying that labeling a war crime “genocide” is particularly charged for individuals and governments alike, and thus this piece aims to tread lightly. While odd to think about crimes in a hierarchical manner, genocide is considered the worst crime a human being can partake in. Similarly, simply calling a travesty “genocide,” without first addressing the law, downplays the significance of the word and thereby the crime.
First and foremost, genocide is universally recognized as a crime under international customary law. This understanding is virtually uniform, extensive, and representative. In addition, there are two critical treaties (along with ad-hoc tribunals for Yugoslavia and Rwanda) that defined and codified genocide at the international level; the first being the Convention Against Genocide (1948) and the second being the Rome Statute (1998). While both Ukraine and Russia have ratified the Convention Against Genocide, neither has officially ratified the Rome Statute (albeit both initially signed the treaty in 2000). The distinction between signing a treaty and ratifying a treaty is critical in the eyes of international law, and will be addressed below.
The Convention Against Genocide specified in Article 1 that States had the dual obligation “to prevent and punish” genocide. The treaty went on to address that the law applied to everyone regardless of political status (Art. 4), that such illegality should be codified within a State’s laws or constitution (Art. 5), and that extradition of such criminals was a pledged obligation (Art. 6). In other words, a State either needed to punish the criminal domestically and/or surrender the individual. Since 2005, the UN has also implemented the responsibility to protect (R2P) norm that obligates all nations to act when genocide occurs. When defining genocide, both the Genocide Convention and the Rome Statute use identical language; whereby, there is an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Similarly, Article 2(e) of the Genocide Convention and Article 6(e) of the Rome Statute stipulate that genocide includes, “forcibly transferring children of the group to another group.” It is that statement which forms the crux of this writing.
Although international law is an amalgamation of law, genocide typically falls under international criminal law (ICL). More specifically, the crime of genocide falls under the special category of jus cogens. Jus cogens norms protect against other horrors such as slavery and torture too. For example, if a treaty and the UN Charter clash with one another, the UN Charter, under Article 103, prevails under the principle of lex superior. Yet, if the crime is a jus cogens norm nothing can be more important. Simply put, jus cogens criminal acts have been deemed by the international community as so depraved that hierarchically there is nothing worse. Therefore, one cannot create any situation (treaties, claims of self-defense, an act of God, etc.) as justification for violating this international norm. In addition, because international law operates as a contract between States, genocide operates under an erga omnes norm; meaning the world community has an obligation to prevent such.
The Rome Statute helped to establish the International Criminal Court (ICC) and it is that international court which possesses jurisdiction on criminal cases surrounding genocide today. In a criminal case, individuals can be prosecuted, but the State cannot be. As argued at the Nuremberg trials, “crimes are committed by persons, not by abstract entities.” To pursue Russia as a State, and thus invoke State responsibility, one would need to go through the International Court of Justice (ICJ) and then use the UN Charter for the case’s legal foundation. Yet, we also know that Russia is a member of the permanent five UN Security Council. That isn’t going to change regardless of what some pundits suggest (an amendment to the UN Charter would need two-thirds of the General Assembly and all five members of the permanent Security Council to change the Security Council’s composition). Nevertheless, any determination by the ICJ would likely result only in some form of reparations/compensation. While Ukraine can surely pursue crimes at the national level, to pursue this criminally at the international level, the mechanisms of the ICC would likely need to be utilized. Yet, as previously mentioned, Russia and Ukraine are mere signatories to the Rome Statute and have yet to ratify such. However, following the Maiden Revolution and then the Crimean occupation in 2014, Ukraine has accepted the ICC’s jurisdiction. On the other hand, Russia hasn’t recognized the ICC’s jurisdiction since 2016. This is where Article 12(2a) of the Rome Statute becomes critical, “… the Court may exercise its jurisdiction if one or more of the following States…have accepted the jurisdiction of the Court.” In other words, the ICC can explore crimes that specifically take place within Ukraine. Furthermore, while Article 15 bis(5) of the Rome Statute does not allow the ICC to investigate crimes of aggression against Ukraine, it does allow the ICC to explore crimes such as genocide. In fact, this is the very means which helped Karim Kahn, the ICC’s chief prosecutor, commence investigations into Russian war crimes beginning in March 2022. With Russia not recognizing the ICC’s jurisdiction, Russia is under no binding obligation to surrender anyone to the ICC. Therefore, extraditing individuals from Russia presents its own set of problems. That said, the mere ability to pursue genocide charges for the forced transfer of children to Russia is absolutely legally feasible.
While funded by the U.S. State Department, Yale University’s School of Public Health Humanitarian Research Lab, released an investigative report on February 14, 2023. The report suggested that there were four major claims offered by Russia as to why children were removed from Ukraine:
“1. To attend nominally ‘recreational’ camps;
2. For ostensible evacuation from fighting in frontline areas;
3. For apparent medical evacuation; or
4. For adoption by or placement with foster families in Russia.”
In response, the report argued, amongst other things, that many of these children end up in camps for which the “primary purpose… appears to be political re-education” and that consent (when attempted) is “collected under duress and routinely violated.” Earlier, in October 2022, the Associated Press came to the same conclusion, stating in its report, “that officials have deported Ukrainian children to Russia or Russian-held territories without consent, lied to them that they weren’t wanted by their parents, used them for propaganda, and given them Russian families and citizenship.” Amnesty International likewise concurred in its November 2022 report entitled “Like A Prison Convoy.” The number of investigative reports on this topic is vast. Significantly, Russia has readily admitted that children have been removed from Ukraine and even adopted. In fact, Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights, routinely discusses such within her Telegram posts. In sum, before determining what crime we are addressing, one must determine both the act and the intent. The criminal act (actus reus) itself here seems clear.
However, the intent of the crime (mens rea) is far more complex. In 2000, the ICC published its Element of Crimes which, in turn, helped to provide a framework and greater context as to what Article 6(e) (genocide) of the Rome Statue meant in regards to punishable conduct. Within that document, the ICC created seven basic elements of this genocidal crime against children:
1. The perpetrator forcibly transferred one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or religious group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
4. The transfer was from that group to another group.
5. The person or persons were under the age of 18 years.
6. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years.
7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
The danger in simply labeling a crime genocide is that the crime’s modes of liability, or what links the accused to their actions, are different than any other crime.
The contextual elements of genocide involve 1. Victims’ membership is a group (Ukrainian children) 2. The group is defined by their nationality (Ukrainian) and 3. The perpetrator intends to destroy in whole or in part that group. That third point can become challenging legal terrain. As the worst crime, genocide legally operates under the highest expectation for intent, known as dolus specialis. The key words here are destroy and destruction. To destroy can mean physically or biologically, but subjugating a group and destroying a group are also different. Determining that, beyond sheer numbers, requires a great deal of investigation and evidence. In other words, the act itself is not enough. Judicial proceedings would have to clearly demonstrate the intent to destroy. Such investigations are beyond the scope of this paper. However, without being privy to those investigations, determining mens rea within dolus specialis is nearly impossible.
In October 2022, the United Nations issued the following statement, “we remind all States that children are full human rights holders, independently from parents or guardians, and are entitled to special protection under international human rights law, in particular under the Convention on the Rights of the Child (CRC), the most widely ratified human rights treaty in history with 196 parties.” Both Russia and Ukraine are full parties to this treaty. In particular, Articles 9, 11 and 21 should be examined closely. Thus, there are other legal avenues to explore. Similarly, for example, the forced deportation of children, especially with the added circumstance of child adoption, falls under a violation of international humanitarian law and 1949’s Geneva Convention IV (Art. 49 and 50). Ukraine and Russia are also both full parties to this treaty. Meanwhile, Ukraine could also potentially establish an independent tribunal; albeit enforcement of remote, convicted Russians would be challenging for a nation which has ceaselessly demonstrated its willingness to violate international law. With merely an explanation in hand, the travesty addressed in this paper could perhaps indeed be defined as genocide. However, in that genocide operates as a jus cogens norm, with the need to establish intent under the strictest terms in dolus specialis, and the known limitations surrounding extradition, make seeing this horrible situation as genocide, disregarding the views of the author, but rather in the eyes of international law, a seemingly unrealistic outcome. However, on February 18, 2023 the Biden administration finally declared, what others had already stated, that Russia has indeed committed crimes against humanity in Ukraine. Article 7 (1d and 2d) of the Rome Statute addresses “forcible transfer of population” as indeed a crime against humanity. Instead of calling the egregious action of forced deportation and adoption of Ukrainian children genocide, a crime against humanity might be the more realistic legal path to pursue without needing dolus specialis as a qualifier. The means to enforce the law is another matter entirely. Regardless, the trauma children endure when separated from their families is well-studied and documented. It goes without saying that the anxiety, emotional turmoil, depression, attachment struggles, suicidal fixation, etc. can have effects long after the war. Thus, most importantly, let’s get those children home where they belong, maintain their identity, and protect their safety.
Author: Damian Cohen, UNICRI Master of Laws (LL.M.) in Transnational Crime and Justice.
Photo by Ben Wicks on Unsplash
