Moscow Mechanism Report (2023)

III. Scope of the Mandate and Methodology

A. Scope of the Mandate

The Mission was mandated to examine “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”. The phenomenon under consideration determined the material, personal, territorial, and temporal scope of the mandate.

Ratione materiae, the Mission focused on instances of non-voluntary displacement (forcible transfer and/or deportation) of children from areas in which they are lawfully present to other areas either within the territory of the same State or across the borders to the territory of another State. The displacement is considered as non-voluntary when: a) the persons concerned, or their legal guardians, do not consent to it or when the original consent is subsequently withdrawn, or b) when the displacement takes place without grounds permitted under international law. Non-voluntary displacement always involves an element of coercion, but this element does not necessarily imply the use of physical or other force. Rather, the emphasis is placed on “the absence of genuine choice /…/ in /…/ displacement”.7 It is irrelevant whether the displacement is meant to be permanent or temporary in nature.

Ratione personae, the Mission was tasked to concentrate on forcible transfer and/or deportation of children. In line with the definition contained in the UN Convention on the Rights of the Child (CRC), a child is understood to mean “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” (Article 1). The same age limit is enshrined in the Family Code of Ukraine (Article 6).8 The Mission’s primary focus lies on unaccompanied children and on orphans. The categories are defined here in accordance with the definitions proposed in the 2004 Inter-agency Guiding Principles on Unaccompanied and Separated Children. 9 The term “unaccompanied children” includes “children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so”.10 The term “orphans” stands for “children, both of whose parents are known to be dead”.11 The focus on these two categories of children is motivated by their special vulnerability and should in no way be interpreted as suggesting that other categories of children, mainly those accompanied by their parent(s) or other relative(s), have not been subject to forcible transfer and/or deportation within the current conflict in Ukraine as well.

Ratione territoriae, the Mission dealt with forcible transfer of children which originated in the territory of Ukraine, within the internationally recognized borders of this country. The Mission took account of the UN General Assembly Resolution 68/262 of 27 March 2014, 12 which underscored that “the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol” 13 and called upon States, international organizations and specialized agencies not to recognize any alteration of the status of those regions.14 It also took account of the UN General Assembly Resolution ES-11/4 of 12 October 2022,15 which embraced the same approach with respect to the Donetsk, Luhansk, Kherson or Zaporizhzhia regions of Ukraine. The Mission notes that the mandate required it to look both into the forcible transfer of children within parts of Ukraine’s territory temporarily controlled or occupied by Russia and into the deportation of children to the Russian Federation. In line with its mandate, the Mission thus considered events that, while originating in the territory of Ukraine, had partly taken place in the territory of the Russian Federation.

Ratione temporis, the Mission included all instances of forcible transfer and/or deportation of children within Ukraine or to the Russian Federation that it was able to identify. It was clearly established that these instances had not been limited to the period following the open act of aggression by the Russian Federation against Ukraine on 24 February 2022 but that some of them had occurred prior to this date, in 2014-2022. The report was finalised by 23 April 2023 and any events taking place after this date thus could not be reflected in the report.

B. Methodology

When drafting this report, the Mission used several different methods of fact-finding, and it relied on various sources.

First, the Mission collected numerous written materials. These materials encompassed legal instruments adopted at the international level, legal acts enacted within individual States, especially Ukraine and the Russian Federation, as well as resolutions adopted by international bodies and statements issued by States. The Mission also took note of reports issued by international and regional organizations, non-governmental organizations (NGOs), expert bodies and scholars; media reports; and scholarly texts. The reports included, without being limited to, the OSCE Moscow Mechanism Reports I and II, the report of the IICIU, the reports published regularly by the UN Human Rights Monitoring Mission in Ukraine (UNHRMMU)16 and the report issued by the Council of Europe Commissioner for Human Rights.17 The Mission also received valuable submissions through a special email channel established for these purposed by ODIHR.

Secondly, the Mission conducted over 25 online or in-person interviews, primarily with representatives of international organizations and of NGOs and with human rights defenders, representatives of the legal profession, journalists, academics, several victims and witnesses.

Thirdly, on 14-20 April 2023, the three experts undertook a visit to Kyiv. During this visit, the Mission carried out further in-person interviews with representatives of Ukrainian authorities, including the Commissioner of the President of Ukraine for Children’s Rights, the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine, the Ministry of Social Policy of Ukraine, the National Council of Television and Radio Broadcasting of Ukraine, the Office of the Prosecutor General of Ukraine, the Office of the Representative of the President of Ukraine in the Autonomous Republic of Crimea, and the Ukrainian Parliament Commissioner for Human Rights. The Mission also held numerous meetings with representatives of international community and with representatives of civil society, including human rights defenders, lawyers and journalists. The experts would like to thank the Ukrainian authorities and ODIHR for the assistance in the organization of the visit.

In its fact-finding activities, the Mission was guided by the commitment to safeguarding the safety and well-being of the interlocutors and above all, it adhered to the “do no harm” principle. The Mission did not interview persons unless they explicitly agreed to be interviewed and it refrained, upon an extensive consideration, from interviewing children under the age of 14. All interviews took place in safe places or over secure online platforms and the notes from these interviews were not made accessible to any external actors. The notes will be destroyed after the completion of the mandate.

The Mission applied the “reasonable grounds to believe” standard of proof in its assessment of the factual and legal aspects of the phenomenon under consideration.18 This standard was found to be met when at least two credible primary sources, independently of each other, confirmed the veracity of certain facts or pieces of information. The Mission actively sought to verify all the data used in this report. When this was not possible or when different sources provided different data, this is indicated in the report.

The “reasonable grounds to believe” standard is less strict than the criminal standard of proof “beyond reasonable doubt”. The latter standard is met when the interference drawn is the only reasonable interference that can be drawn from the evidence presented.19 However, especially noting the allocated time frame and the instruments and means at the disposal of the Mission, it was impossible to meet this higher standard. The report therefore refrains from making any allegations related to criminal responsibility of concrete individuals. This is also entirely appropriate since the questions related to such responsibility are considered in parallel proceedings by the ICC and by regional and national courts to which this report, in this particular area, defers.

Two days after its establishment, the Mission sent a letter to the Permanent Representative of Ukraine to International Organizations in Vienna, Mr. Yevhenii Tsymbaliuk, and to the Permanent Representative of the Russian Federation to the OSCE in Vienna, Mr. Alexander Lukashevich, inviting the two countries which are the most directly concerned by the mandate of the Mission to cooperate and to share all the relevant information at the disposal of their respective national authorities. The letters also contained a concrete list of institutions that the Mission sought to hold direct meetings with. The Mission regrets to note that whereas the former letter brought about an active cooperation from the side of various Ukrainian authorities, the latter letter remained unanswered. Consequently, when ascertaining the position of the Russian Federation on the issues considered under the mandate, the Mission had to rely on publicly available sources, especially the statements by the representatives of the Russian Federation, their posts in social media (Telegram) and Russian media. The two letters, together with the reply from the Permanent Representative of Ukraine to International Organizations in Vienna, are attached to this report (see Annex I and Annex II).

When discharging its mandate, the Mission was faced with various challenges. The most serious among them was the limited time frame of the mandate and limited resources placed at the disposal of the Mission. These two factors were compounded by the large amount of disinformation and fake news that exist in the public space. To overcome this latter challenge, the Mission adopted a very careful approach to verifying the available information and it adhered strictly to the “reasonable grounds to believe” standard of evidence indicated above.

C. Applicable International Legal Standards

The Mission was tasked to 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” that are 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. The applicable legal standards thus encompass: a) relevant OCE commitments, b) international humanitarian law (IHL), c) international human rights law (IHRL), and d) regulation of war crimes and crimes against humanity under international criminal law (ICL).

These four sets of standards are not mutually separated but, rather, show important overlaps and interconnections. The same act, for instance a forcible transfer of a child, can at the same time constitute a violation of all these standards, giving rise both to the responsibility of the State to which the act is attributable, and to individual criminal responsibility of concrete individuals who ordered or carried out this act. As indicated above, this report does not seek to identify such individuals and its analysis related to the last set of standards is thus limited to establishing acts which are likely to constitute war crimes or crimes against humanity on the condition the responsible individuals can be found through criminal proceedings.

1. OSCE Commitments

The OSCE and, previously, the CSCE participating States have, under the human dimension, repeatedly confirmed the importance of the protection of children and have restated the main legal standard of this protection stemming from IHL, IHRL and ICL.20 Ukraine and the Russian Federation have both committed themselves to these standards.

In the 1990 Copenhagen Document, participant States decided to “to accord particular attention to the recognition of the rights of the child, his civil rights and his individual freedoms, his economic, social and cultural rights, and his right to special protection against all forms of violence and exploitation”.21 In the 1999 Istanbul Summit Declaration, they committed themselves to “actively promote children’s rights and interests, especially in conflict and post-conflict situations”.22 Over the years, the participating States have also reconfirmed “the right to the protection of private and family life”23 and have also recognized that “everyone has the right to nationality and no one should be deprived of his/her nationality arbitrarily”.24

2. International Humanitarian Law

International humanitarian law (IHL) is a branch of public international law which applies specifically in the context of armed conflicts, seeking to limit the humanitarian and other effects of such conflicts. IHL applies both in international and non-international armed conflicts and it binds all (State or non-state) parties to such conflicts. IHL consists of two main branches: the Geneva Law and the Hague Law.

The Geneva Law protects victims of war, i.e., those who are not, or no longer, taking part in hostilities and find themselves in the hand of the other party to the conflict (wounded, sick, shipwrecked, prisoners of war, alien civilians in the territory of another party to the conflict, civilians in the occupied territories, etc.). The Geneva Law is regulated by four Geneva Conventions (1949) and three Protocols Additional to these Conventions (1977, 2005). The Russian Federation and Ukraine are State parties to all these instruments. The most fundamental rules of the Geneva Law are considered part of customary international law.25

The Hague Law restricts means and methods of warfare, i.e., it indicates which military tactics and which weapons may be used by the parties to the conflict on the battlefield and which persons and objects may be lawfully targeted. The Russian Federation and Ukraine are State parties to some of these treaties. Again, some rules of the Hague Law are considered part of customary international law.

In IHL, the 1949 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (GC) and the 1977 Additional Protocol I to the GC, Relating to the Protection of Victims of International Armed Conflicts (API), are applicable to the protection of children in armed conflicts. These instruments also contain rules related to the forcible transfer and/or deportation of civilians. The most important provisions are: Article 24 of the GCIV (Measures relating to child welfare – General protection of populations against certain consequences of war), Article 49 of the GCIV (Deportations, transfers, evacuations – Occupied territories), Article 50 of the GCIV (children – Occupied territories), Article 77 of the API (Protection of children – Treatment of persons in the power of a Party to the conflict), and Article 78 of the API (Evacuation of children – Treatment of persons in the power of a Party to the conflict). These rules are also considered customary in nature and neither the Russian Federation nor Ukraine have expressed any reservations with respect to them. A detailed analysis of these provisions as well as the consideration of their relevance for the forcible transfer and/or deportation of Ukrainian children to the temporarily occupied territories and to the territory of the Russian Federation will be provided in Section V of this report.

3. International Human Rights Law

International human rights law (IHRL) encompasses a set of rules, through which States have committed themselves to respect, protect and fulfil human rights of all individuals on their territory or under their jurisdiction. The main sources of IHRL are universal and regional treaties, though the most fundamental rules of IHRL make part of customary international law. IHRL applies both in times of peace and in times of armed conflict, where the guarantees granted by non-absolute human rights may be temporary suspended (derogation).

Children, as any individuals, are protected by general human rights instruments, especially the International Covenant on Civil and Political Rights (1966, ICCPR), the International Covenant on Economic, Social and Cultural Rights (1966, ICESCR) and the European Convention on Human Rights (1950, ECHR). The two covenants moreover both contain a specific provision on the protection of children – Article 24 of the ICCPR and Article 10(3) of the ICESCR. Ukraine and the Russian Federation are State parties to the two Covenants. Ukraine is also a State party to the ECHR. The Russian Federation ceased to be a State party to the ECHR on 16 September 2022.26

Furthermore, children’s rights are protected by the UN Convention on Rights of the Child (CRC, 1989), which is binding upon both Ukraine and the Russian Federation. The two countries have also ratified the two substantive Optional Protocols to the CRC, on the involvement of children in armed conflict (2000) and on the sale of children, child prostitution and child pornography (2000). Ukraine, in addition, has ratified the optional protocol to the CRC on a communication procedure (2014).

The other legal instruments of relevance for the mandate encompass: the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984, CAT), European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987, ECAT), the International Convention for the Protection of All Persons from Enforced Disappearance (2010, ICPPED) and the Hague Convention on the Civil Aspects of International Child Abduction (1980). Ukraine and the Russian Federation are State parties to all these instruments.

4. International Criminal Law

Unlike the OSCE commitments, IHL and IHRL, which regulate the acts of States or other collective entities, international criminal law (ICL) deals with the acts of individuals. More specifically, it imposes on all individuals the obligation to refrain from committing any of the four crimes under international law and establishes individual criminal responsibility for the commission of such crimes. These crimes are: (1) the crime of aggression, (2) the crime of genocide, (3) crimes against humanity, and (4) war crimes. Noting that the mandate of the Mission refers specifically to crimes against humanity and war crimes, this report therefore limits its attention to these two crimes.

The definitions of crimes against humanity and war crimes are contained in the Rome Statute of the ICC (1998) and reflect the rules of customary international law. Neither the Russian Federation, nor Ukraine are State parties to the Rome Statute. Yet, on 9 April 2014 and 8 September 2015, respectively, Ukraine, by means of two declarations made under Article 12(3) of the Rome Statute, accepted the jurisdiction of the ICC with respect to crimes against humanity and war crimes, committed on its territory from 21 November 2013 to 22 February 2014 and from 20 February 2014 onwards, respectively. It is important to highlight that crimes against humanity and war crimes are not mutually exclusive categories and a single act can therefore meet the qualification of both of them.

Crimes against humanity are violent acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.28 One example of such violent acts consists in “deportation or forcible transfer of population”,29 defined as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”.30 While children are not specifically mentioned, it is obvious that they fall under the term “persons” mentioned in the definition. All States have, under customary international law, the obligation to prevent and punish crimes against humanity.31 Neither Ukraine nor the Russian Federation have included crimes against humanity as a specific category of crimes into their respective criminal codes.

War crimes are violations of the most fundamental rules of IHL. These are grave breaches of the Geneva Law, as well as other serious violations of the laws and customs of war, especially qualified violations of the Hague Law. Children-specific is the war crime of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities”,32 which however has no direct implications for the present Mission. Therefore, the report primarily examines two war crimes – the crime of “unlawful deportation or transfer or unlawful confinement”,33 and the crime consisting in “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”.34

5. Other International Legal Standards

In addition to the legal standards explicitly indicated in the mandate, certain other international legal standards are of relevance for this report. This is mainly the case of the resolutions by the UN Security Council on children and armed conflicts and the reports issued by the Special Representatives of the UN Secretary-General for Children and Armed Conflicts.

While the discussions concerning the protection of children during armed conflict have been part of the UN discourse for decades, the UN Security Council started to discuss the protection of children in armed conflicts in the late 1990s.35 Since then, it has adopted several resolutions on this issue, which however mainly deal with the recruitment of children into armed forces (child soldiers). Yet, in 2015, the Security Council adopted Resolution 2225, in which it expressed its grave concern over “the abduction of children in situations of armed conflict”,36 recognized that abductions occur in a variety of settings and further recognized that “abduction often precedes or follows other abuses and violations of applicable international law against children”.37 The resolution primarily responded to the abductions of children by non-state actors, yet it is also applicable to non-voluntary displacement of children by States.

In 1996, a comprehensive study on the Impact of Armed Conflict on Children was drafted by Ms. Graça Machel, an expert appointed by the UN Secretary General pursuant to the UN General Assembly Resolution 48/157 of 20 December 1993.38 The study contains a special section dealing with “children in flight”, i.e., those who have become refugees or internally displaced persons due to causes related to an armed conflict. The study stresses the vulnerability of such children, especially of those who are left unaccompanied. It lists the conditions under which children may be lawfully evacuated during armed conflict and recalls that all decisions concerning a child that are taken with respect to his/her evacuation “must be based on the best interests of the child and take her or his opinions into account”.39 Finally, the study provides an overview of legal standard applicable in times of armed conflict to children, including those that protect them against various forms of mistreatment.

Following the publication of this study, the UN General Assembly established, in 1997, the mandate of the Special Representative of the Secretary-General for Children40 requesting it to “assess progress achieved, steps taken and difficulties encountered in strengthening the protection of children in situations of armed conflict” 41 and to “foster international cooperation to ensure respect for children's rights in these situations”.42 It also asked the Special Representative to present reports on its work on an annual basis. In one of these reports, issued in 2004, the Special Representative identifies six most serious violations against children committed in the context of armed conflicts, noting abduction of children as one of them.43 This violation especially highlighted also in the report issued in 2015,44 which was at the origin of the UN Security Council Resolution 2225 (2015) mentioned above. Again, while the prime focus was on abduction by non-state actors, the mandate is not limited to this context. So far, Ukraine does not feature on the children in armed conflict agenda of the Special Representative. Yet, it is listed among other situations deserving attention.45