Deportation of Ukrainian Civilians to Russia: The Legal Framework

The United Nations estimates that the conflict in Ukraine has displaced over 10 million people. As of March 16, there are an estimated 6.4 million internally displaced persons (IDP) within the country. The UN Guiding Principles on Internal Displacement sets out protections for them that are implicit in international human rights law and in international humanitarian law (IHL). In contrast, residents of Ukraine who have fled across borders to escape the hostilities are refugees. As of March 22, nearly 4 million have fled to other countries, with over 2 million refugees in Poland alone. They are protected by refugee law such as the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, human rights law, and IHL. These two categories of victims have been well-addressed in this symposium by Ruvi Ziegler and Julia Grignon.

However, allegations have now surfaced that Russian forces are deporting Ukrainian nationals into Russia itself. For example, on March 19, an official in the besieged city of Mariupol charged that Russia had taken “between 4,000 and 5,000 Mariupol residents forcibly across the border to Taganrog.” The Ukrainian Ministry of Foreign Affairs labeled the action “a gross violation of international law, while the U.S. Ambassador to the United Nations observed that, if true, “It is unconscionable for Russia to force Ukrainian citizens into Russia and put them in what will basically be concentration and prisoner camps.”

Ukraine’s Prosecutor General has also accused Russia of “the forcible transfer of 2,389 children from temporarily occupied territories of Ukraine to Russia.” Citing Ukraine’s Ministry of Foreign Affairs statement on the matter, the U.S. Embassy in Kyiv acknowledged the claim, adding that the children were from “Donetsk and Luhanks oblasts” and stated, “This is not assistance. It is kidnapping.”

Expectedly, the Russian Embassy to the United States has denied the accusations. Instead, Russia’s Defence Ministry has suggested that they are “refugees” from Mariupol. More broadly, Russian officials assert that Ukrainians are fleeing to Russia willingly. For instance, the head of Russia’s National Defence Control Center has claimed that over 7,800 Ukrainians “expressed their desire to escape to the Russian Federation” on March 19 alone. Overall, the Defence Ministry asserts that 2.6 million people have asked to be evacuated to Russia.

Assuming for the sake of analysis that Russia has conducted forced deportations (in light of Russian conduct in the conflict, it is a credible assumption), this post surveys the international law governing the forced movement of nationals from their country during an armed conflict. It examines applicable prohibitions and offenses, and the exceptions to them. Of course, as the reports are fresh, and in light of the misinformation and disinformation that has characterized the conflict, more facts are needed to fully assess the Russian actions. However, as will be explained, the law on the matter is unequivocal.

The Prohibition

The IHL prohibition on deporting individuals is long-standing. For example, Article 23 of the 1863 Lieber Code prohibits “private citizens” from being “carried off to distant parts.” And in 1919, the Report of the Commission on Responsibility of the Authors of the War, which the Versailles Conference created following the First World War, labeled the “deportation of civilians” a “violation of the laws and customs of war.”

But it is Article 49 of the Geneva Convention IV that sets out the key prohibition applicable in this conflict. It provides that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Transfer refers to the involuntary movement of individuals from occupied territory to locations within the country concerned. Deportation denotes the forcible movement of such individuals into other countries, as Russia has been accused of doing. The provision undoubtedly applies in occupied Ukrainian territory, for all States are Party to the treaty. And even if that was not the case, in its Nuclear Weapons Advisory Opinion, the International Court of Justice observed that the four Geneva Conventions are “fundamental rules … to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (¶ 79).

This being so, the prohibition is widely acknowledged. In the United States, the Department of Defense Law of War Manual (§ 11.12.3), Army and Marine Corps Commander’s Handbook on the Law of Land Warfare (¶ 6-72), and Navy, Marine Corps, and Coast Guard Commander’s Handbook on the Law of Naval Operations (¶ 6-72) all paraphrase the Article 49 rule.

Military manuals of other nations, such as the United Kingdom’s Manual of the Law of Armed Conflict, do as well (¶ 11.55). Concerning this conflict, Ukraine’s 2004 IHL Manual states, “It shall be prohibited to issue orders and instructions regarding forcible movement of civilian persons in connection with the armed conflict unless this is required by the considerations of their security” (¶ 1.4.16; see also 1.8.5.). Section 75 of the 2001 Russian Federation’s Regulations on the Application of IHL similarly provides, “Deportation of the civilian population from the occupied territory to the territory of another state shall be prohibited.”

It is indisputable, therefore, that the International Committee of the Red Cross (ICRC) 2005 Customary International Humanitarian Law Study correctly confirmed the customary law status of the prohibition. Rule 129 of that work notes, “Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand.”

Several points about the prohibition merit mention. The prohibition only applies to 1) protected persons taken from 2) occupied territory. Article 4 of Geneva Convention IV defines the term “protected persons” as “those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Party to the conflict or Occupying Power of which they are not nationals.” The article goes on to exclude nationals of the State in whose hands they find themselves; nationals of neutral or co-belligerent States, so long as their State maintains diplomatic relations with the State exercising control over them; the wounded, sick, and shipwrecked; and prisoners of war (see also DoD Law of War Manual, § 11.12.3.2). Protection for these individuals lies in the remaining three 1949 Geneva Conventions or other international law.

Most of the individuals Russia allegedly deported certainly qualify as protected persons. The one possible exception would be Russian nationals, many of whom are present in Ukraine. However, the “passportization” (and purported naturalization) of nearly a million Ukrainians, especially from the Donbas region of eastern Ukraine, is highly questionable as a matter of law, as Anne Peters has pointed out at EJIL: Talk!. Any claim that deportation of those individuals does not violate the rule because of Russia’s mass naturalization program in Ukraine would be badly flawed. Instead, the legal issue as to them would be voluntariness (see below).

The other limitation in Article 49 is that the transfer or deportation must have been from occupied territory. Article 42 of the 1907 Hague Regulations sets forth the accepted conditions for the existence of occupation: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

The precise circumstances surrounding the deportations to Russia are unclear.  However, the alleged mass round-up of civilians is suggestive of the ability of Russian forces to administer at least the area from which they transported the individuals. This logic applies equally to situations in which civilians might flee from, for instance, Mariupol into Russian-held territory before being moved to Russia.

Even if the Russian forces were not quite at the point where they could exercise the requisite occupation authority, the so-called “Pictet theory” could apply. It holds that during the invasion phase of hostilities, certain occupation law protections attach once enemy forces exercise effective control over individuals, even if not yet over territory (see ICRC Occupation Expert Report at 24-26). The approach has not been universally embraced, but in the context of deportation and transfer, it comports with the rule’s object and purpose. Application in this situation would make sense

Lastly, the International Criminal Tribunal for former Yugoslavia (ICTY) Appeals Chamber, in its Stakić judgment, drew on related case law and many of the sources cited in this post to make two critical findings. Although Stakić and other relevant cases applied international criminal law in an enforcement proceeding against an individual, the court’s conclusions bear directly on the parameters of the IHL prohibition, that is, on whether the Russian Federation has committed an “internationally wrongful act” (see Articles on State Responsibility, art. 2).

First, the Appeals Chamber found that deportation need not be, nor be intended to be, permanent (¶¶ 278, 307). Second, and more important in this case, it held that the deportation must be coerced; it may not be voluntary (¶ 279). That said, coerciveness is a relatively low standard. As the Chamber noted,

the term “forced”, when used in reference to the crime of deportation, is not to be limited to physical force but includes the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment. (¶ 281).

The DoD Law of War Manual (§ 11.12.3.4) also highlights the inapplicability of the prohibition to voluntary movement by protected persons. In this regard, recall that Russia claims the civilians in question have requested transportation to Russia. If that is true for any of them, or if the children are being sent to Russia at the request of their families, their movement to Russia would not qualify as unlawful deportation.

Finally, note that the prohibition on deportation also appears in human rights law.  Of particular note is Protocol 4 to the European Convention on Human Rights, to which both Russia and Ukraine are Party. It provides, “No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.” However, the option of remedial action by victims before the European Court of Human Rights is likely to be negatively affected by Russia’s expulsion from the Council of Europe. Indeed, the European Court of Human Rights has suspended its examination of petitions against Russia while considering the legal consequences of the action.

The Exceptions

Article 49 of Geneva Convention IV sets forth the exceptions to the prohibition:

[T]he Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

Thus, there are but two exceptions, both labeled “evacuation” in IHL terms. The first applies when the movement of the individuals is for their own good. The ICRC’s “Pictet” Commentary explains, “If therefore an area is in danger as a result of military operations or is liable to be subjected to intense bombing, the Occupying Power has the right and … the duty of evacuating it partially or wholly, by placing the inhabitants in places of refuge.” For instance, Russia would be entitled to evacuate civilians from an area that is likely to be shelled by Ukrainian artillery because of the presence of Russian forces. Yet, there is no indication that such a situation presents itself.

The second exception is based on the existence of “imperative military necessity.” The Commentary cites an example in which “the presence of protected persons in an area hampers military operations.” For instance, civilians who are on or near a road vital to the force’s maneuver may be moved. It is essential to understand that the adjective “imperative” sets a high standard. Mere military convenience or even good sense does not suffice. Imperative military necessity means that an operation may falter, or forces may be threatened, if the action is not taken. It is hard to imagine how the deportation of Ukrainian nationals might be justified on this basis.

However, even if the alleged deportations of Ukrainian nationals were for their own safety or reasons of imperative military necessity, Article 49 makes it clear that movement into Russia would be unlawful unless it is impossible to move them elsewhere in the occupied area, or just facilitate their safe evacuation into unoccupied Ukrainian territory. And the claim that children are being deported begs the question of whether they are being separated from their families involuntarily in violation of the obligation not to do so.

The DoD Law of War Manual captures these exceptions (§ 11.12.3.1), as does the Army and Marine Corps’ Commander’s Handbook on the Law of Land Warfare (¶¶6-72, 6-73), and the UK’s Manual on the Law of Armed Conflict (¶ 11.55).

International Criminal Law

The actions discussed above breach a belligerent State’s obligation to refrain from forcible transfer or deportation. If substantiated, the actions would qualify as an internationally wrongful act by the Russian Federation. However, those involved may also bear individual criminal responsibility under international criminal law.

Article 147 of the Geneva Convention IV confirms that “unlawful deportation or transfer … of a protected person” is a grave breach of the Convention. Article 85(4)(a) of the 1977 Additional Protocol I to the 1949 Geneva Conventions restates that characterization to drive the point home. The DoD Law of War Manual (§ 11.12.3) and Army and Marine Corps Commander’s Handbook on the Law of Land Warfare also label the offense a “grave breach,” a characterization that requires all States to exercise universal jurisdiction or extradite, even when the State concerned has no connection with the case.

Numerous international criminal tribunals have exercised subject matter jurisdiction (jurisdiction ratione materiae) over deportation or forcible transfer. For example, Article 6(b) of the 1945 Charter of the International Military Tribunal at Nuremberg included “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” in its list of war crimes, while Article 6(c) recognized that deportation was a “crime against humanity” whether “before or during war.”

Principle VI(b) and (c) of the International Law Commission’s (ILC) 1950 Nuremberg Principles confirmed that status. The ILC returned to the matter in its 1996 Draft Code of Crimes against the Peace and Security of Mankind, noting that “deportation or transfer … of protected persons” is a war crime (Article 20(a)(vii)) and “arbitrary deportation or forcible transfer of population” is a crime against humanity (Article 18(g)).

Statutes of more recent international criminal tribunals likewise encompass deportation and forcible transfer. For instance, the Rome Statute of the International Criminal Court (ICC) lists deportation among war crimes within its jurisdiction (Article 8(2)(a)(vii)), while its crimes against humanity provision includes “[d]eportation or forcible transfer of the population.” The latter offense, like all crimes against humanity, requires that it be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7(1)(d)). In extreme cases, the forcible transfer of children falls within the reach of the ICC Statute’s genocide provision (Article 6(e)). Similarly, the Statute of the ICTY treats such actions as a war crime (Article 2(g)) or crime against humanity (Article 5(d)).

The domestic law of many States, including that of Russia and Ukraine, also criminalizes deportation and forcible transfer. Article 356(1) of Russia’s 1996 Criminal Code makes “deportation of the civilian populations” a crime, while “forcible transfer of children” as part of a campaign of genocide violates Article 357. In Ukraine, deportation of the civilian population for the purpose of forced labor is a violation of Article 438(1) of the 2001 Criminal Code. Like Russia, Ukraine also criminalizes the transfer of children during a genocide (Article 442).

International and criminal tribunals have heard numerous cases involving the offense (see the ICRC’s comprehensive IHL practice database on Rule 129). The Stakić judgment cited above is of particular relevance to any defense that Russians might proffer on the basis that they were acting to safeguard Ukrainian civilians. There, the Appeals Chamber noted, “displacement for humanitarian reasons is justifiable in certain situations [but] the Appeals Chamber agrees with the Prosecution that it is not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity” (¶ 287).

Conclusion

More facts are necessary to fully evaluate the accusations leveled at Russian forces. But if they are substantiated, it is difficult to see how they would not amount to a violation by Russia of its IHL obligations and a war crime, or even a crime against humanity, by those involved. Clearly, the matter merits serious and immediate investigation.

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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy. He is also Professor of Public International Law at the University of Reading, Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas, and Professor Emeritus at the United States Naval War College.

Photo credit: UNHCR/Chris Melzer