I. General Observations and Executive Summary
On 30 March 2023, the delegations of 45 participating States of the Organization for Security and Co-operation in Europe (OSCE), after consultation with Ukraine, invoked the Moscow Mechanism under paragraph 8 of the Moscow Document. They requested that the Office of Democratic Institutions and Human Rights (ODIHR) enquire with Ukraine whether it would invite a mission of experts to “address the Deportation of Children amidst Human Rights Violations and Humanitarian Impacts of Russia’s war of aggression against Ukraine”.
Following on this inquiry, Ukraine established, on 4 April 2023, a mission composed of three experts – Prof. Veronika Bílková (Czech Republic), Dr. Cecilie Hellestveit (Norway) and Dr. Elīna Šteinerte (Latvia).
The mandate of the Mission was to “to build upon previous findings and establish the facts and circumstances surrounding possible contraventions of relevant OSCE commitments, violations and abuses of human rights, and violations of international humanitarian law and international human rights law, as well as possible cases of war crimes and crimes against humanity, associated with or resulting from the forcible transfer of children within parts of Ukraine’s territory temporarily controlled or occupied by Russia and/or their deportation to the Russian Federation; and to collect, consolidate, and analyze this information with a view to offer recommendations, as well as provide the information to relevant accountability mechanisms, as well as national, regional, or international courts or tribunals that have, or may in future have, jurisdiction”.
The Mission built on the reports produced by the two earlier Missions of experts established under the Moscow Mechanism in March and May 2022. When drafting its report, the Mission used several methods of fact-finding and it relied on various sources, mainly written materials, including submissions that came via a special email channel established for these purposed by ODIHR; online and in-person interviews with representatives of international organizations and of NGOs, human rights defenders, academics, members of legal profession and journalists; and interviews with victims and witnesses. The three experts also undertook a visit to Kyiv, where they met representatives of Ukrainian State organs and representatives of civil society, including legal professionals and journalists.
The Mission established that a large number of Ukrainian children have been, since 24 February 2022 and even prior to this date, displaced from the territory of Ukraine to the temporarily occupied territories and to the territory of the Russian Federation. While the exact numbers remain uncertain, the fact of a large-scale displacement of Ukrainian children is not disputed by either Ukraine and/or Russia. In this report, primary focus has been placed on orphans and on unaccompanied children, since those constitute the most vulnerable groups among displaced children. The Mission has established the three most commonly indicated grounds for the organized displacement of these children as: (1) the evacuation for security reasons, (2) the transfer for the purpose of adoption or foster care, and (3) temporary stays in so-called recreation camps.
While in the temporarily occupied territories or in the Russian Federation, Ukrainian children are placed in institutions or in Russian families – the forms of the placement include adoption, which has been applied mainly to children from Crimea (at least since 2015) or custody, guardianship or foster families which seem more common for other Ukrainian children (mainly since 24 February 2022). Whatever the form of placement, Ukrainian children find themselves in an entirely Russian environment, including language, customs and religion and are exposed to pro-Russian information campaign often amounting to targeted re-education as well as being involved in military education. The Russian Federation does not take any steps to actively promote the return of Ukrainian children. Rather, it creates various obstacles for families seeking to get their children back. To date, neither this Mission nor the Ukrainian authorities have been able to establish even a list of the children concerned, let alone their whereabouts, despite having approached the Russian authorities with such requests.
The Mission reviewed the reported evacuations and forced displacements of Ukrainian children at the hands of the Russian occupying power in light of applicable International Humanitarian Law (IHL). The Russian Federation is obliged, in her capacity as belligerent and occupying power, to respect the applicable rule of IHL under which children enjoy protections pertaining to the “civilian population”, “protected persons”, family-members and finally the special protections dedicated to children.
The Mission found that while certain cases of evacuations of children were in line with Russia’s duties under IHL, other practices of non-consensual evacuations, transfers and prolonged displacement of Ukrainian children constitute violations of IHL, and in certain cases amount to grave breaches of the Geneva Convention IV (GCIV) and war crimes, notably violation of the prohibition on forcible transfer or deportation under Article 49 of the GCIV.
The Mission also found that non-justified prolonged stay or unfounded logistical hurdles violate the duty to facilitate reunification and contravene the principles embodied within the GCIV that family unity is to be protected and respected. Further, the Mission is of the opinion that Russia’s relocalization of Ukrainian children to the temporarily occupied territories or Russian territory, combined with the belligerent powers, disregard the duty to establish compulsory mechanisms under the GCIV to track these children, to communicate their whereabouts and facilitate their repatriation or reunification with their families, is a violation of the Geneva Conventions (GCs) that exacerbates the gravity of other violations.
Moreover, the Mission concludes that the exposure of unaccompanied children to adoption or similar measures of assimilation is incompatible with the GCIV. Altering the nationality of Ukrainian children is a violation of Article 50(2) of the GCIV. It also contravenes the principles embodied within the GCIV that family unity is to be protected and respected. Facilitating re-education and permanent integration into Russian families serves to confirm that the displaced Ukrainian children are indeed the victims of deportation in the sense of Article 49 of the GCIV.
The Mission concluded that numerous and overlapping violations of the rights of the children deported to the Russian Federation have taken place. Not only has the Russian Federation manifestly violated the best interests of these children repeatedly, it has also denied their right to identity, family, their right to unite with their family as well as violated their rights to education, access to information, right to rest, leisure, play, recreation and participation in cultural life and arts as well as the right to thought, conscience and religion, right to health, and the right to liberty and security. These are ongoing violations of Articles 3, 8, 9, 10, 12, 14, 17, 20, 21, 24, 28, 29, 31 and 37 (b) of the UN Convention on the Rights of the Child (UNCRC).
The cumulative effects of these multiple violations also give rise to very serious concerns that the rights of these children to be free from torture and ill-treatment and other inhuman or degrading treatment or punishment (Article 37 (a) of the UNCRC) have been violated. The Mission moreover concluded that the practice of the forcible transfer and/or deportation of Ukrainian children to the temporarily occupied territories and to the territory of the Russian Federation may amount to a crime against humanity of “deportation or forcible transfer of population”.
The Mission recalls that IHL, International Human Rights Law (IHRL) and International Criminal Law (ICL) impose various obligations on States. Those encompass the obligation to respect and to ensure respect for IHL; the obligation to respect, protect and fulfil human rights; and the obligation to prevent, repress, investigate and prosecute war crimes and crimes against humanity. Such obligations apply not only to the Parties to the conflict (IHL) or to the territorial State (IHRL, ICL) but also, in one form or another, to third States. It is for the international community as a whole to ensure that IHL, IHRL and ICL are respected.
There are no specific accountability mechanisms under IHL. The International Fact-Finding Commission could be activated and protecting powers could be designated but these institutions have been rarely, if ever, put in use in the recent decades. It is thus largely left to the ICRC, in its role of a substitute to protecting powers as well as in its autonomous role, to take steps, albeit confidential ones, to ensure respect for IHL rules. Under IHRL, conversely, various political as well as quasi-judicial and, even, judicial bodies exist that monitor the compliance by States with their obligations stemming from IHRL and/or consider individual or inter-State complaints alleging violations of IHRL. Such bodies include the Human Rights Council (HRC), the UN Human Rights Committees, or the ECtHR. Most of these bodies have been already actively seized with the situation of Ukraine and some have even considered, albeit so far with limited outcomes, the forcible transfer and/or deportation of Ukrainian children. Finally, under ICL, both national courts in Ukraine and in other countries and the International Criminal Court (ICC) have started investigating allegations of war crimes and/or crimes against humanity, including allegations related to the forcible transfer and/or deportation of Ukrainian children.
In light of these conclusions, the Mission formulated several recommendations, addressed to the Russian Federation, to Ukraine and to other States and international organizations.