Transferring children to Russia is an Act of Genocide: Q& A

The Kharkiv Human Rights Protection Group (KHPG) has made a Submission on the transfer and deportation of Ukrainian children to the Prosecutor’s Office of the International Criminal Court. Why do we need to prove that Russia’s actions constitute an Act of Genocide? Will it help those children return?
Mykola Komarovskyi04 January 2024UA DE EN ES FR RU

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What makes our submission unique?

The KHPG Submission may fairly be described as the first of its kind.

It links documented facts with an analysis of what constitutes the crime of Genocide. The description incorporates the practice of international tribunals, the cases that the ICC has itself examined, the stance of various experts, and so on.

We are well aware that world-class specialists are employed by the International Criminal Court. Yet there is still no certain, mathematically precise response to the question, “Does the transfer of Ukrainian children constitute Genocide?” We have, therefore, presented our own arguments to convince the ICC Prosecutor’s Office: This is not simply a war crime, as indicated by the Prosecutor’s provisional classification, but indeed an act of Genocide.

Other organisations have been actively investigating the deportation of Ukrainian children to Russia; as far back as 2022 they began to make their Submissions and Appeals for the Court’s consideration. Collectively, our efforts have helped to convince the ICC Prosecutor’s Office that the deportation of Ukrainian children is a crime. That explains why warrants were issued on 17 March 2023 for the arrest of Vladimir Putin and Maria Lvova-Belova.

How many children have been deported?

We have relied mainly on the information gathered by the “Children of War” portal, set up jointly by the Ministry for Reintegration and the National Information Bureau. As of today, this portal carries information about 19,546 children who been either deported or transferred to Russia.

This is an approximate figure. The crime is taking place throughout the occupied territories. Ukraine lost control over some of them — parts of the Donetsk and Luhansk Regions, as well as the Crimean peninsula — almost ten years ago.

A substantial number of children have been moved from the said territories. That is indisputable. Objective circumstances prevent Ukraine from knowing how many children have been taken; for understandable reasons Russia has not made public the numbers involved.

Is there any information about the numbers of children who have been adopted by families in Russia?

As with the preceding question, it is difficult to provide a precise answer.

In legal terms, Russian citizens have established control over these children as guardians and trustees, not as adoptive parents. Neither procedure requires judicial approval: guardians or trustees gain a status approaching that of a parent, but it is not legally identical. In November 2022, for example, Russian television broadcast a five-part series showing children from Ukraine living as members of families in Russia. The children had Russian guardians or trustees. It was quite clear, however, that they had been permanently transferred to Russian families and acquired new parents.

A federal “Database of Orphans” is operating in Russia. The occupied territories of Ukraine have been added to its coverage. Thus far, no results from those regions have found reflection in its contents. However, Russian officials say it’s only a matter of time before children from Ukraine begin to appear in the database.

What evidence did you gather when the KHPG was putting together its Submission?

In the overwhelming majority of cases the data was collected from open sources. It’s astonishing how actively Russians have written and continue to write in their own official sources about deporting children, granting them citizenship, finding them a place in Russian families.

Information from official Ukrainian agencies of government and from eyewitnesses to these crimes has also been included in our Submission. The KHPG sent formal enquiries to every military administration in the country’s administrative regions, part of which were or continue to be occupied by the invading forces.

We examined the period from 18 February 2022 to 6 August 2023. The transfer of the population, including children, from the Donetsk and Luhansk “people’s republics” began several days before the all-out Russian invasion of Ukraine on 24 February 2022. And, of course, Acts of Genocide are still taking place. Since we sent our latest Submission to the ICC new evidence has continued to appear. We have been documenting subsequent incidents and adding them to our database.

When did it become clear that what was happening was Genocide, not just another war crime?

When Putin signed the decree on 30 May 2022. It stated that orphans and children deprived of parental care who were Ukrainian citizens could obtain Russian citizenship through a simplified procedure. (The text speaks of “citizens of the DPR, LPR and Ukraine” but in legal terms it refers exclusively to citizens of Ukraine.)

This presidential decree made it possible, actively and on a permanent basis, to place Ukrainian children with Russian families, making them part of Russian society and, with a high degree of certainty, excluding the possibility that they might come back to Ukraine.

During the drafting of the 1948 Convention to Prevent Genocide a spokesperson for one delegation stated (§ 160, “Genocide in Mariupol”, August 2023) that the Committee recognized that a group could be destroyed even if its individual members continue to live normally without having suffered physical harm. Point [e] of Article II (“Forcibly transferring children of the group to another group”) was included because the forced transfer of children to a group “where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children”.

What’s happened to the deported children? Can they be brought back?

The children moved to Russia may be divided provisionally into two groups. Group One is made up of children who still have parents or other relatives. Group Two consists of orphans and children deprived of parental care, who have no relations.

It’s entirely realistic to bring back children in the first group. Their parents, it’s true, face difficulties and meet with refusal to hand over their children for formal reasons. The KHPG talked to one witness who would be able to get his son back only if he was present himself or could obtain a power of attorney over the child from a Russian notary. Since the father was based in Ukraine, and was of conscription age, he couldn’t meet either of these conditions. It has proved possible, nevertheless, to bring small groups of such children back to Ukraine.

There are considerable difficulties about returning children in the second group to Ukraine.

One, the lack of parents or close relatives makes them hard to identify. Two, if they are orphans from the currently occupied territories, Russia has adopted an unlawful stance, asserting that “these territories are already part of Russia and the children, therefore, have no links with Ukraine”. This is what Maria Lvova-Belova, the Russian President’s Commissioner for Children’s Rights, said during an interview with Vice News. This means it’s almost impossible to bring back those children at present.

How long will the ICC investigation take? What will be the consequences of declaring Russia’s behaviour an act of Genocide?

The duration of the ICC investigation depends, regrettably, on many circumstances: it could go on for years. It’s important, however, to start the process.

Genocide is the most serious of crimes and this increases the responsibility of those guilty of committing such an act.

Will this Submission not hinder the children’s return?

Our Submission will in no way hinder the return of children to Ukraine. After warrants were issued on 17 March 2022 for the arrest of Putin and Lvova-Belova Russia did not halt the process: in fact, it became more active. So far from hindering the return of children from Russia our Submission has drawn attention, once again, to this problem.

Has the Submission already been presented to the ICC Prosecutor’s Office?

Yes. On 22 November 2023, the Submission with various appendices was delivered to the ICC Prosecutor’s Office where it was promptly registered and given a unique number.

Is the text of the Submission available for anyone to read?

It’s available in Ukrainian and English.

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