Ukraine Symposium – Russian Crimes Against Children

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| Sep 14, 2022

Crimes against Ukrainian Children

Since the beginning of Russia’s full-scale invasion of Ukraine on 24 February 2022, there has been evidence that indicates Russian political and military leaders, as well as ordinary members of the military, have committed numerous international crimes, including attacks on civilians and civilian objects, use of sexual violence and torture, and forced displacement and deportation. Even the most vulnerable victims have not been safe from these atrocities. For children in Crimea and the Donetsk and Luhansk regions, the experience of a shattered childhood has been a cruel reality. Since the Russian invasion, it has sadly become the shared experience of children all over Ukraine. As outlined below, there is a sufficient basis to believe Russia has committed a wide range of crimes against Ukrainian children during the current armed conflict. This post outlines some of those crimes and calls for an end to these violations against children.

What Are Serious Violations Against Children During Armed Conflict?

United Nations Security Council Resolutions 1261 (1999), 1882 (2009), 1998 (2011), and 2225 (2015) collectively define six serious violations against children during armed conflict. These six violations are analyzed annually in the Secretary-General’s Report on “Children and armed conflict” and the Report of the Special Representative of the Secretary-General for Children and Armed Conflict.

Serious violations against children include:

(1) recruitment and use of children in armed conflict;

(2) killing and maiming of children;

(3) attacks on schools, hospitals, and protected persons in relation to schools and/or hospitals;

(4) rape and other forms of sexual violence against children;

(5) abduction of children;

(6) denial of humanitarian access.

The question of whether UN Security Council Resolutions are legally binding remains the subject of some debate (see, for example, here and here). Regardless, it is difficult to imagine that under normal circumstances a permanent member of the Security Council would ever freely violate the Council’s own decisions. Moreover, all six examples described above violate the law of armed conflict, international human rights law, and the national laws of Ukraine and even Russia. Therefore, depending on their context and motives, they constitute either war crimes, crimes against humanity, or genocide.

Recruitment and Use of Children

The Russian Federation has violated the broad prohibition on recruiting and using children in armed conflict throughout the Russia-Ukraine conflict. Russian authorities have employed a variety of means – including cyber, financial, and emotional – to involve Ukrainian, and potentially Russian, children in the armed conflict.

The recruitment and use of children in armed conflict is strictly prohibited by the law of armed conflict (e.g., Common Article 3 of Geneva Conventions 1949; Article 77 of Additional Protocol I to the Geneva Conventions; Rule 136 of the ICRC Customary International Humanitarian Law Study), by international human rights law (Article 38 of the Convention on the Rights of the Child; Optional Protocol to the Convention on the Rights of the Child), and by the national law of both Ukraine (Article 30 of the Law “On Childhood Protection”; Article 438 of the Criminal Code of Ukraine) and the Russian Federation (federal law “On the basic guarantees of the child rights in the Russian Federation”).

The prohibition has been further addressed in the jurisprudence of various international criminal courts. For example, in the case of Prosecutor v. Thomas Lubanga Dyilo (Judgment, 14 March 2012, paras. 915-916) the International Criminal Court ruled that the active participation of children in armed conflict can include the performance of so-called “additional functions,” such as serving as a military guard or bodyguard. The Trial Chamber determined that engaging children in these roles constitutes a war crime in violation of Article 8(2)(e)(vii) of the Rome Statute (Judgment, 14 March 2012, para. 1358). Although there is no evidence that children have engaged in direct participation in combat activities in the Russia-Ukraine armed conflict, Russian Federation has used children to perform other combat-related functions.

For example, Russia has been using Ukrainian children for intelligence purposes. An investigation by the Security Service of Ukraine found that the Special Services of the Russian Federation used Ukrainian children to gather information about the location of strategic objects (e.g., checkpoints, transportation routes) using allegedly harmless smartphone games. The games reward users with virtual prizes for locating and then photographing certain objectives that exist in the real world. Additionally, in one formerly occupied Ukrainian town, members of the Russian Armed Forces induced a 12-year-old to provide information on the location of Ukrainian Armed Forces personnel, equipment, and positions in exchange for a monetary reward.

The Russian Federation has also indicated an intent to directly involve Russian children in its war against Ukraine. On March 20, the Minister of Defense of the Russian Federation signed an order “On the organization of the involvement of members of the military-patriotic public movement ‘Yunarmiya’ in a special operation in Ukraine.” The order discusses the preparation of Yunarmiya for activities against Ukraine by reporting on 17 to 18-year-olds to serve as part of an occupying force in Ukraine. Yunarmiya is a Russian youth military organization supported by the Russian Ministry of Defense whose members include children as young as 8 years of age.

Killing and Maiming of Children

The Prosecutor General’s Office of Ukraine states that as of 9 September 2022, Russian attacks on Ukraine have killed at least 383 innocent children and injured more than 743 since 24 February 2022. These numbers are not final and do not cover the full extent of atrocities or crimes against children committed in temporarily occupied territories, including towns such Mariupol and Kherson. Nevertheless, there is ample evidence to show that Russian forces have killed and maimed children using a variety of means and methods, including by intentionally attacking evacuation vehicles marked with the word “Children.”

It is well-established that children are protected under the law of armed conflict not only as civilians, but as a vulnerable group. Both Russia and Ukraine are parties to the Geneva Conventions and the Additional Protocol I. Accordingly, both States are obliged to follow law of armed conflict rules on the protection of children as civilians (generally) and as a particularly vulnerable group (specially). More specifically, both Russia and Ukraine must ensure children’s basic right to life, respect for children’s persons, and respect for children’s honor as provided in Articles 27-34 of the Geneva Convention IV and Article 75 of the Additional Protocol I. Moreover, the imperative law of armed conflict principle of distinction protects children from attack.

Nevertheless, children have repeatedly fallen victim to Russia’s illegal use of prohibited means and methods of warfare, including targeting of civilian objects (cities, villages, residential buildings, administrative buildings) and targeting of specially protected objects. In the latter category, Russian attacks on kindergartens, schools, educational centers, hospitals, medical transports, and clinics have been particularly horrific and reprehensible. By killing and maiming Ukrainian children, Russian military and political leaders and military personnel have committed a range of war crimes (e.g., willful killing; willfully causing great suffering or serious injury to body or health; intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities, etc.), crimes against humanity (murder; other inhumane acts of a similar character; intentionally causing great suffering or serious injury to body or to mental or physical health) or genocide.

Attacks on Schools, Hospitals and Protected Persons

Russian attacks on schools and hospitals deprive children of access to education and medical services and are violations of the law of armed conflict principle of distinction. As discussed above, Ukrainian schools and hospitals have been regularly attacked during the conflict. The Ministry of Education of Ukraine states that as of 9 September, 2,177 educational institutions have been bombed or shelled and 284 have been completely destroyed. Additionally, healthcare facilities such as hospitals, clinics, ambulance stations, and blood transfusion stations have been objects of attack by Russian military forces. The Ministry of Health of Ukraine announced that as of 8 September, 826 hospitals have been damaged and 127 have been destroyed.

The widespread destruction of educational and medical facilities is indirect evidence that Russian forces have been targeting civilian objects and damaging infrastructure as a method of warfare. Each of these violations should be evaluated individually, taking into account military necessity and proportionality.

Rape and Other Forms of Sexual Violence Against Children

The UN Secretary-General’s Guidance Note on Reparations for Conflict‐Related Sexual Violence discusses three general ways in which children may be victimized by conflict-related sexual violence:

(1) as direct victims of sexual violence;

(2) as witnesses of sexual violence;

(3) as children born as a result of sexual violence.

Various reports indicate Ukrainian children have been direct victims of sexual violence and witnesses of sexual violence committed by Russian service personnel. Given the duration of the full-scale invasion of Ukraine so far, no children have yet been born as a result of sexual violence. However, cases of pregnancy, including among girls and young women, have been documented and reported. Tragically, it is only a matter of time before this third category of victims becomes a reality of the conflict. As the Secretary-General’s Guidance Note observes, many children born to victims of wartime rape can suffer “grave consequences,” such as “infanticide, abandonment, trafficking, statelessness, confusion over identity, and discrimination in accessing family land and inheritance” (p. 15).

Obviously, conflict-related sexual violence committed by Russian military personnel against Ukrainian children violates the law of armed conflict, and depending on the context and motives, the acts could qualify as war crimes, crimes against humanity, or genocide. Various international criminal courts and tribunals have established case law in this area. Landmark cases addressing sexual violence against children include Prosecutor v. Jean-Paul Akayesu (ICTR, 1998), Prosecutor v. Alfred Musema (ICTR, 2000), Prosecutor v. Dragoljub Kunarac (ICTY, 2000), Prosecutor v. Anto Furundžija (ICTY, 1998), and Prosecutor v. Jean-Pierre Bemba (ICC, 2016).

Abduction of Children

The abduction of children can occur through unlawful deportation, forcible transfer, and imprisonment. There is sufficient basis to believe Russia uses all these methods to abduct Ukrainian children.

Thousands of children have been unlawfully deported to Russia and Belarus or forcibly transferred to temporarily occupied territories of Ukraine. According to one estimate, nearly 240,000 Ukrainian children have been forcibly taken to Russia. Other sources have reported that nearly 448,000 children have been transferred to Russia. Among them are: (1) children deported or transferred together with their parents or other relatives; (2) children deported from orphanages and other family institutions; and (3) children who were orphaned because of the armed conflict and were deported as orphans.

A recent Human Rights Watch report on “filtration” and the crime of forcibly transferring Ukrainian civilians to Russia sums up the prohibition on forcible transfers and deportation as follows:

The laws of armed conflict prohibit the forcible transfer and deportations of civilians from occupied territory, including children, and prohibit a party to the conflict from evacuating children who are not its own nationals to a foreign country without their parents’ or guardians’ consent, except temporarily as needed for compelling health and safety reasons (p. 56).

Accordingly, Russia’s conduct violates the law of armed conflict, international human rights law, and potentially implicates various international crimes, such as war crimes (unlawful deportation or transfer or unlawful confinement), crimes against humanity (deportation or forcible transfer of population), and genocide (forcibly transferring children of the group to another group).

These crimes are already being investigated nationally and internationally. However, the most immediate challenge is to establish effective mechanisms for the return of Ukrainian children to their homeland. Unfortunately, international law does not provide any special tools for this, except through the agreement of the parties to the conflict. Current Russian policy, which includes establishing simplified adoption procedures and transferring Ukrainian orphans to Russian families, suggests this approach likely will not succeed.

Denial of Humanitarian Access

Last, the denial of humanitarian access is a crime that harms children and can violate all their basic rights. Among these rights are the right to life; right to health; right to security; right to a standard of living adequate for the child’s physical, mental, spiritual, moral, and social development; right to freedom, personal integrity, and dignity and right to education. This crime against children has been committed in many Ukrainian cities and towns, including Trostyanets, Irpin, Mariupol, and Volnovakha.

Denial of humanitarian access against children violates the law of armed conflict (see, e.g., Articles 55, 60, 61, and 62 of Geneva Convention IV; Articles 14, 69, 70, and 71 of Additional Protocol I; Rule 55 of the ICRC Customary International Humanitarian Law Study), as well as the Convention on the Rights of the Child and the domestic law of Ukraine.

As with many of the other crimes already discussed, the denial of humanitarian access could constitute war crimes (intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions), crimes against humanity (extermination and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health) and genocide (deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part).

Conclusion

Since the beginning of Russia’s full-scale invasion of Ukraine on 24 February 2022, there is evidence that indicates that Russian political leaders, military leaders, and military personnel have repeatedly committed the six serious violations against children in armed conflict outlined by the UN Security Council and the Secretary-General. As discussed above, these violations continue to be documented and investigated at national and international levels. More importantly, these crimes against the most vulnerable members of Ukraine – children – must end. Those responsible must be brought to justice, which could be achieved through a joint contribution of Ukraine, foreign countries’ bodies, as well as international agencies.

***

Oleksii Kaminetskyi is the Chief of the Legal Department of the Ministry of Defense of Ukraine.

Inna Zavorotko, PhD is a major in the Armed Forces of Ukraine. She currently serves in the Legal Department of the Ministry of Defense.

 

Photo credit: UNICEF Ukraine

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