Ukraine Symposium – Russia’s Forcible Transfer of Children

Earlier last month, the European Parliament adopted a resolution condemning the forced transfer of Ukrainian children to Russia. The resolution follows months of reporting that Russian authorities have been separating children from their parents, conducting abductions from Ukrainian orphanages, hospitals and other children’s institutions, and putting children up for adoption in Russia. Some estimate that as many as 448,000 children have entered Russia from Ukraine. It is reported that President Putin has issued decrees simplifying procedures for granting Russian citizenship to Ukrainian children without parental care and enabling their adoption by Russian families. These reports add another deeply disturbing dimension to the horrifying litany of crimes emerging from Ukraine. They are all the more shocking for their direction against children.

Russia’s alleged actions are strictly prohibited under international law. This post will demonstrate that they constitute violations of international humanitarian law (IHL) and international human rights law and may give rise to prosecutions under international criminal law. Yet, notwithstanding the very serious nature of these violations, it is likely to prove difficult to facilitate the return of children whose status may have been “legally” altered and who lack documentation evidencing Ukrainian nationality.

Children under IHL

IHL recognises children as a group that is particularly vulnerable during conflict. Under the 1949 Geneva Conventions children, as members of the civilian population, are recognised as “protected persons” when in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Attacks against them are forbidden and they are to be treated humanely, with respect for their lives, physical, and moral integrity (Geneva Convention IV, Article 27). This general protection is further developed in Article 77 of Additional Protocol I of 1977, which created an obligation for all states to treat children affected by armed conflict with special respect and to provide them with the care and aid they require:

Children shall be the object of special respect and shall be protected against any form of indecent assault. The parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.

The need to protect children flows across the provisions of the Fourth Geneva Convention and Additional Protocol I, prioritising them for the receipt of aid and medical treatment (Geneva Convention IV, Articles 17 and 41 and API Article 70(1)), regulating their involvement in hostilities (API Article 77(2)), and considering the situation of those who are orphaned or separated (Geneva Convention IV, Articles 24 and 50). These instruments also protect family unity. They stipulate that interned and detained families should be kept together (Geneva Convention IV, Article 82), systems must be set up to identify and register separated children (Geneva Convention IV, Article 24), and families are entitled to give news to each other (Geneva Convention IV Article 25). The temporary evacuation of children – which should be to a neutral State – is strictly regulated and requires the consent of parents or guardians, as well as a system to register the whereabouts of any evacuated children (Geneva Convention IV, Article 24, API, Article 78). Importantly, changing the family or personal status, including nationality or civil status, of children is prohibited (Geneva Convention IV, Article 50).

This is the legal framework in which Russia is internationally obligated to operate. Yet to date, Russia’s actions in Ukraine demonstrate a deplorable departure from and disdain for IHL rules which require protection of and respect for children. There are reports that under its system of “filtration,” Russia has separated children from their parents in contravention of the Fourth Geneva Convention as described above. Abduction of children and transfer to Russia are at variance with the overarching obligations of Geneva Convention IV and Additional Protocol I to treat children humanely and with special respect and care. Altering nationality and citizenship and facilitating adoptions by Russian families are flagrant violations of Article 50 of Geneva Convention IV and contravene the principles embodied within the Fourth Convention that family unity is to protected and respected.

Forcible Transfer and Deportation under International Law

Forcible transfer or deportation of civilians, including children, is prohibited under the Fourth Geneva Convention (Article 49(1)). Under the Fourth Geneva Convention and Additional Protocol I, deportation or transfer of the civilian population of an occupied territory is a grave breach of these instruments which ought to be prosecuted, unless the security of the civilians or imperative military reasons require relocation (Article 147 of Geneva Convention IV and Article 85(4)(a) of Additional Protocol I). There is, however, nothing to suggest that the deportation of children to Russia is motivated by any security or military imperative.

Forcible transfer and deportation constitute crimes incurring individual criminal responsibility under the Statute of the International Criminal Court. In an international armed conflict, the “deportation or transfer [by the Occupying Power] of all or parts of the population of the occupied territory within or outside this territory” is a war crime under Article 8(2)(b)(viii). It can also constitute a crime against humanity under Article 7(1)(d) where it is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge. Reports on the numbers of children involved, the organized methods of abduction and separation from parents and guardians, and the domestic laws in place in Russia for expedited citizenship and adoption processes suggest that the thresholds for crimes against humanity may well be met in this situation.

In addition, forcibly transferring children of a national group to another group, with intent to destroy that national group in whole or in part, may constitute genocide, as defined under Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide 1948, and replicated in Article 5 of the ICC Statute. The continuation of any group depends upon its children. The transfer of Ukrainian children to Russia, their subsequent adoption, and the potential for their nationalities to be erased, their language, customs, and religion changed, has serious implications for the Ukrainian national group. When considered against the backdrop of Russian rhetoric on the destruction of the Ukrainian people, the possibility of genocide must be considered. Similarities can be drawn here with the UN Commission of Inquiry on the Syrian Arab Republic, which concluded that the Islamic State (IS) group had committed genocide against the Yazidi through the forcible transfer of Yazidi girls as sex slaves and Yazidi boys as IS fighters.

Although Russia is not a State Party to the ICC, the crimes under consideration here form part of customary international law by which all States are bound. Moreover, Ukraine has accepted the ICC’s jurisdiction with respect to alleged crimes committed on its territory since November 2013, giving the Court jurisdictional reach over the crimes under consideration here. The ICC Prosecutor opened an investigation into the situation in Ukraine in March 2022.

Violations of International Children’s Rights Law

Equally relevant in this situation is international human rights law, particularly the United Nations Convention on the Rights of the Child (CRC). Russia is a State Party to the CRC and, as such, is obligated to respect and ensure to all children within its jurisdiction a full range of civil, political, economic, social and cultural rights (Article 2). There is no general derogation clause under the CRC, meaning that the rights of children are to be respected at all times, including during public emergencies and armed conflict. The Committee on the Rights of the Child has already called for Russia to cease its aggression and military action in Ukraine and to uphold its obligations to protect children from physical and psychological violence.

Every aspect of children’s lives is impacted by conflict, but of pertinence here are the CRC’s many provisions aimed at protecting and maintaining family units and connections. These are integral to ensuring one of the CRC’s guiding principles: the best interests of the child (Article 3). Under the CRC, children have rights to a name and nationality and to know and be cared for by their parents (Article 7(1)). States Parties undertake to respect the right of the child to preserve their identity, including name, nationality, and family relations, without unlawful interference (Article 8(1)). States must ensure that children are not separated from their parents against their will, other than in accordance with due process and where this would serve their best interests (Article 9(1)). Generally, no child is to be subjected to arbitrary or unlawful interference with their privacy, family, or home (Article 16(1)). If accurate, allegations that Russia has arbitrarily separated children from parents and caregivers, deported them and imposed Russian citizenship upon them suggest manifest contravention of CRC standards, and failure to adhere to international legal obligations. It would also violate IHL, as described above.

Adoption is also regulated under the CRC (Article 21) and operates around the child’s best interests as the paramount consideration. Adoption is not permitted in the absence of an evaluation regarding the child’s status concerning parents, relatives, and legal guardians (Article 21(a)), and intercountry adoption is to be considered as a last resort (Article 21(b)). Ukraine has already suspended intercountry adoption. UNICEF and Save the Children have called for a moratorium among receiving States on intercountry adoption of children uprooted by the war in Ukraine, stressing that in conflict situations children are at increased risk of exploitation, abuse and trafficking, and that unaccompanied children should not be assumed to be orphans.

The UN Guidelines for the Alternative Care of Children make clear that in emergency situations children should not be moved to a country other than their habitual residence for alternative care except for compelling health, medical or safety reasons. If they must be moved, they should stay as close as possible to their home, be accompanied by a parent or caregiver, and have a clear plan for return. Again, if accurately reported, Russian actions in fast tracking adoption of Ukrainian children by Russian families contravene internationally accepted laws and guidelines and would amount to a violation of its CRC obligations.

Returning Children

When the Russia-Ukraine conflict ends, and even perhaps before, the international community will face enormous challenges in facilitating the return of displaced children. The right to return is a customary rule under IHL, and as discussed, the need to maintain and reinstate family unity is a central theme in Geneva Convention IV.

It is closely connected to the international human right of all persons to enter the territory of the State of which they are a national, which is recognized in most international and regional human rights instruments (UDHR, Art 13(2); ICCPR Art 12; CERD, Art 5(d)(ii); African Charter on Human and Peoples Rights 1969, Art 12(2); American Convention on Human Rights, Art 22(5); Protocol No. 4 to the ECHR Art 3). The CRC provides for the right of the child to leave any country and to enter his or her own country and mandates States Parties to deal with such requests in a positive, humane, and expeditious manner (Art 10(1)).

The legal framework and moral imperative of returning displaced children is clear. However, the practical obstacles to return are significant. It will require the creation of formal channels to identify, trace, and repatriate children. This is itself an enormous task but coupled with potential Russian obstruction and the complexities of domestically recognized adoptions, it will be even more challenging.

Conclusion

The scale of international wrongdoing examined even in this brief post is staggering and the consequences for the children who are victim to it are grave. Russia’s actions in targeting children demonstrate a callous disregard for the rules that regulate conduct in war and suggest violations of international legal obligations across IHL, international human rights law and international criminal law.

It is now incumbent upon all States to seek an end to this conflict, ensure accountability for wrongdoers, redress for victims, and prioritize the rights, needs and interests of children in post conflict settlements.

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Dr Alison Bisset is Associate Professor in International Human Rights Law at the University of Reading, UK.

Photo credit: UNICEF Ukraine