Moscow Mechanism Report (2023)

V. Alleged Violations of International Humanitarian Law

Children belong to the most vulnerable sections of the civilian population suffering devastating inhuman miseries as a result of armed conflict. IHL therefore provides a set of absolute and non-derogable rules to protect children trapped by armed conflict. The provisions are stipulated in the four Geneva Conventions of 1949, which are universally ratified, and their Additional Protocols (APs) of 1977. Twenty-five provisions in these instruments prescribe special protection for children, in addition to provisions applicable irrespective of age. The purpose of these rules is to protect children from the scourges and scars of war, to shield their families from the scare and grief of loss, and to guard each belligerent party to the armed conflict and their populations against the unbearable prospect of losing their future generations, either to the war itself or to the enemy belligerent.

A. SCOPE OF APPLICATION OF IHL FOR THE PURPOSE OF DISPLACEMENT OF CHILDREN

Determining when IHL applies requires an assessment of the factual situation on the ground. The internal qualification of the situation by the parties to the conflict and the label they attach to it do not have any effect on its qualification under IHL, which relies solely on objective criteria. As the separation of jus ad bellum and jus in bello dictates, the fact that the factual situation is the result of a violation of the rules of the UN-Charter, does not influence the question of applicability of IHL. An international armed conflict (IAC) under common article 2 of the GCs is triggered when there is armed violence between the armed forces of two or more States.117 As both Russia and Ukraine are States, the armed conflict between them is governed by IHL of international armed conflicts.118 Applicability of IHL under common article 2 entails immediate de jure application of all four Conventions, AP 1 and all other rules of IHL applicable to such situations present in other treaties or declaratory of international custom.

The mandate of the Mission has been to examine practices of organized relocation of children both before and after the onset of the full-scale Russian invasion of 24 February 2022. Applicability of the relevant rules of IHL must therefore be divided into two temporal phases. Phase I extends from 2014 until 23 February 2022, and phase II starts with the full-scale Russian invasion on 24. February 2022.

1. THE SITUATION PRIOR TO 24 FEBRUARY 2022

Applicability of IHL to the situation in Crimea dates back to 2014. From the night of 26-27 February 2014, armed and mostly uniformed individuals, whom the Russian Federation later acknowledged to be its military personnel, together with locally-resident militia members, progressively took control of the Crimean Peninsula without the consent of the Ukrainian Government.119 On 18 March 2014, the Russian Federation announced the formal incorporation of Crimea into Russian territory. The GCIV and API apply to the Russian Federation’s military occupation of Crimea, as with all cases of partial or total occupation of a foreign State’s territory, “even if the said occupation meets with no armed resistance” and “even if the state of war is not recognized by one of them”.120

Under IHL, “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.”121 Russia has continued to exercise effective control over the territory of Crimea since 2014.122 The law of military occupation therefore continues to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation.123 Following the full-scale invasion of Ukraine by Russian forces in 2022, the situation in Crimea is consumed by the larger armed conflict between Russia and Ukraine for the purpose of IHL, and Crimea is considered territory occupied by the belligerent power Russia.124

In the Ukrainian oblasts of Luhansk and Donetsk, direct military engagement between the respective armed forces of the Russian Federation and Ukraine in the form of reported shelling and detention of adversary military personnel by both States, also indicates the existence of an international armed conflict from at least 14 July 2014.125 The implications for IHL of the Russian military involvement with the so-called DPR and LPR from 2014 are unsettled and not relevant for the question at hand.126

2. THE SITUATION SINCE 24 FEBRUARY 2022

Russia’s full-scale invasion of Ukraine on 24 February 2022 triggered application of IHL of IAC, as it applies to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”.127 When the factual situation corresponds to the objective criteria of armed conflict, IHL is automatically triggered and the entire body of IHL applies to the relationship between the belligerent parties and their inhabitants.128

A party to an armed conflict is not in a position to “opt out” of the provisions of the GCIV due to a conviction by the State party that the territory in question does not pertain to the enemy belligerent State. Neither is a State party to the GCs permitted to ignore these rules because the State intends to offer the local population citizen-rights under its own constitution, commonly presented as “better protection”.129

The territorial scope of application of IHL extends to the entire territory of both belligerent States, Russia and Ukraine, even though hostilities have thus far mostly been limited to Ukrainian territory.130 For example, IHL also applies in the far eastern Russian city of Vladivostok, to the extent that effects of the armed conflict materialize there or persons protected by the IHL in relation to the armed conflict are present. Territorial distance to the active war-theatre does not fade protections of IHL for persons or objects protected. Ukrainian children brought to Russia in relation to the armed conflict are protected by IHL in the entire territory of the Russian Federation.

The personal scope of application of IHL covers all persons affected by the armed conflict on the territory of the belligerent States, while the temporal scope of application of IHL is the duration of the armed conflict or military occupation.131 However, a person who has gained protective status under IHL, for example prisoner of war, protected person or child protected by IHL, will retain the protective status until his or her situation is regularized again. This may extend beyond the end of the armed conflict and beyond the territories of the belligerent States. The general principle is expressed in API: “persons shall continue to benefit from the relevant provisions of the Conventions and Protocols until their final release, repatriation or reestablishment”.132 In the case of POW-status, protection under IHL will end upon repatriation or final release.133 For children moved for reasons linked to the conflict, protection under IHL will remain until repatriation or return to their area of origin, while for children separated from their families for reasons linked to the conflict, the special protection under IHL will end only upon reunification with their families.134

The temporal scope of application may also extend to moments prior to the onset of hostilities. IHL obligations to take precautions in attack or defence and to evacuate civilians, may precede the use of military force and apply also to planned or imminent military operations.135 Organized movement of the civilian population including children in the days immediately preceding the military assault on 24 February 2022 may fall under the scope of application of IHL, provided it was linked to the hostilities that erupted with Russia’s full-scale invasion on Ukraine on 24 February 2022.

3. TERRITORY OCCUPIED BY RUSSIAN FORCES

In the areas of Ukraine under effective control by Russian military forces, rules of belligerent occupation apply in the relationship between the occupying forces and the local population. A territory is considered occupied when it is “actually placed under the authority of the hostile army”.136 In order to determine the meaning of authority, an effective control test based on customary international law consists of three cumulative elements: (1) the armed forces of a foreign State are physically present without the consent of the sovereign government in place at the time of the invasion; (2) the sovereign is unable to exercise its authority due to the presence of foreign forces; and (3) the occupying forces impose their own authority over the territory.137 These criteria are cumulative. Therefore, as soon as one of them ceases to be present, the situation will not amount to occupation in the sense of IHL, with applicability in toto of the provisions of belligerent occupation. It is clear that the Russian full-scale invasion of Ukraine expanded the territories in Ukraine under complete occupation by Russia.

However, the protections in the GCs bestowed on the civilian population, protected persons or children pertaining to the adversary belligerent may extend beyond the establishment of an occupation strictu sensu. This is notably so with regards to the prohibition on forceful transfer or deportation in Article 49 of the GCIV. While the prohibition applies to occupied territories, the International Criminal Tribunal for the former Yugoslavia (ICTY) has asserted that “nothing in the jurisprudence of the Tribunal supports the Defence contention that “occupation” is an element of the crime of deportation”.138 A similar approach has been adopted by the EritreaEthiopia Claims Commission (EECC).139 The same can be inferred from the language used in the Advisory Opinion on the Wall in the Occupied Palestinian Territories where the ICJ affirmed that “the military exigencies contemplated by these texts [Article 49(2) GC IV and 53 of the 1907 Hague Regulations] may be invoked in occupied territories even after the general close of the military operations that led to their occupation”,140 thus implying a contrario that the provisions are applicable during those military operations, at a stage when authority over the relevant region remains uncertain.

For the purpose of the question of forcible transfer or deportation by the advancing belligerent, the Mission relies on a functional concept of occupation to the invasion phase under which certain rules of IHL of military occupation gradually start to apply as soon Russia obtained control over those issues, while other rules do not yet apply.141 This ‘functional’ approach to the law of occupation entails that the rules are to be respected as soon as there materially exists a possibility to infringe them. The restrictions arising from GCIV relative to the prohibition on forceful transfer or deportation of children consequently apply to all areas of Ukraine for such time as an area is under the control of Russian armed forces. The nature of the conflict in Ukraine entails that frontlines are moving and that the rules applicable to occupied territory reflect the situation on the ground. Even if occupation of an area is short, i.e., only lasts for a couple of hours, children brought into the hands of the Russian belligerent party will be protected by the prohibitions in the GC IV for as long as their personal situation resulting from this occupation is affected, for example if they brought to another area under control of the occupying power or relocated to the territory of the Russian occupying power.

In conclusion, areas in Ukraine under the control of the Russian armed forces and subject to Russian civilian authority are treated as “occupied territory” for the purpose of the rules of IHL dedicated to the protection of Ukrainian children. Ukrainian areas newly brought under control of Russian armed forces, where they only exercise rudimentary authority, are treated as “occupied territory” to the extent that Russian military or civilian occupational authorities exercise authority relevant for the purpose of the rules of IHL dedicated to the protection of Ukrainian children.

4. THE IRRELEVANCE OF UNILATERAL CHANGES OF STATUS BY ONE BELLIGERENT

The very system of protection of children under IHL is set up in a way so as to avoid the displacement of unaccompanied children belonging to one party to the conflict into the territory of the enemy party to the conflict or territory controlled by this belligerent. The fact that the territories in question and the populations therein are claimed by both parties to the conflict in Ukraine, does not alter this basic tenet. If anything, it makes strict observance of these rules by all parties concerned all the more poignant. Instrumentalizing the fate of children during hostilities is the very anathema to the provisions of the GCs.

The occupation of territory as a result of international armed conflict is a temporary de facto situation which neither affects the legal status of occupied territory, nor deprives the occupied power of sovereignty.142 An occupying power does not acquire sovereignty over the occupied territory. Annexation of occupied territory in wartime is unlawful and does not deprive persons of protection under the GCIV, where Article 47 explicitly provides that “protected persons who are in occupied territory shall not be deprived in any case or in any manner whatsoever” by the GCIV as a result of any annexation by the occupying power of the whole or part of the occupied territory.

IHL provides that the legislation of the occupied country shall remain applicable in the occupied territory unless the occupying power is “absolutely prevented” from doing so,143 or unless they constitute a threat to the security of the occupying power or an obstacle to the application of the GCIV.144 It is impermissible for an occupying power to compel inhabitants of occupied territories to swear allegiance to it, and allegiance to the displaced sovereign cannot be severed under duress.145

In the first six months of the full-scale Russian invasion, Russia distinguished between areas belonging to the Ukrainian Luhansk and Donetsk oblasts on the one hand, and other newly occupied territories in terms of administration, public property located therein, and applicable legislation. Areas in Ukraine's Luhansk and Donetsk regions are subject to the administration, “laws” and institutions of the respective “republics”, as soon as Russia takes control of them, in violation of IHL.146 In other newly occupied areas, Russia established "Komendaturas”, a type of civil administration by the occupying forces aimed at adopting and enforcing only rules deemed necessary to protect its forces' security or to maintain law and order, in principle not prohibited under IHL.147

The approach changed in late September 2022, when Russian occupation authorities in the occupied territory of Donetsk, Luhansk, Kherson and Zaporizhzhia regions purported to hold “referenda” from 23 to 27 September on becoming part of the Russian Federation. On 30 September, the President of the Russian Federation signed the so-called Treaties on the Accession of the Donetsk People’s Republic, the Lugansk People’s Republic, the Zaporizhzhia Region and the Kherson Region to the Russian Federation,148 purportedly annexing these regions and consequentially applying Russian legislation there, in displacement of the existing legal system,149 and in clear violation of IHL. The UN General Assembly subsequently condemned these steps.150 Parts of the regions concerned were not in the hands of the Russian Federation at the time of the annexation. Ukrainian control over further parts of the Russian annexed provinces has since been restored, and the territories are incessantly subject to fierce hostilities by the belligerent parties.

In conclusion, changes of the formal status made by the occupying power to an occupied area does not influence applicability of the rules of IHL, and the benefits of “protected persons” cannot be removed due to changes or agreements between the occupying power and the authorities of the occupied territory.151 Certain types of changes may amount to violations of IHL, such as change of citizenship of children,152 or war crimes, such as mobilization, but formal changes to the status of an area, a group of people or individuals, made by the occupying power, have no implications for the rights of the civilian population, individual civilians or children under international humanitarian law.

B. THE PROTECTIVE SCHEME OF IHL APPLICABLE TO UKRAINIAN CHILDREN

Children are in a particularly precarious situation in times of armed conflict and they are therefore protected by various schemes under GCIV and API.

1. “CIVILIAN POPULATION”

It is universally established that children form part of the civilian population153 and as such enjoy the rights and benefits accorded to the civilian population in order to protect them from hostilities.154 Ukrainian children are individual civilians and belong to the civilian population.155 This particularly entails a duty on the belligerent parties to protect children from hostilities. For example, belligerent parties must try to conclude local agreements for the removal of children and other vulnerable groups from besieged or encircled areas.156 Prior to the outbreak of hostilities and in occupied areas, the parties may also establish localities organized so as to protect children under fifteen and other vulnerable groups from the effects of war.157 When hostilities occur, the Parties may conclude agreements on mutual recognition of these zones and localities.158

Belligerent parties are under an obligation to take precautions in defence, which includes a duty to remove the civilian population under their control from the vicinity of military objectives,159 and to protect them against the dangers resulting from military operations.160 This may extend to the organization of evacuations out of the area of hostilities. However, the duty takes precautions in order to protect the civilian population can never be used as pretext for forced transfer or deportation.161

2. “PROTECTED PERSONS”

Children are “protected persons” under GCIV, i.e., those who “at a given moment and, in any manner, whatsoever, find themselves /.../ in the hands of a Party to the conflict or Occupying Power of which they are not nationals”.162 The GCIV prohibits forceful transfer or deportation of “protected persons” within or outside the occupied territory. Transferring protected persons out of an occupied territory is a grave breach of the convention.163 Protected persons are also protected against collective punishment or reprisals.164

A child is a “protected person” as soon as it falls into the hands of the troops of the enemy belligerent party. The prohibition applies to “occupied territories”, but as the ICTY stipulated in Naletilić and Martinović, “the application of the law of occupation as it effects “individuals” as civilians protected under Geneva Convention IV does not require that the occupying power have actual authority. For the purposes of those individuals’ rights, a state of occupation exists upon their falling into “the hands of the occupying power.” Otherwise, civilians would be left, during an intermediate period, with less protection than that attached to them once occupation is established”.165

The concept of protected person is one of the few provisions of IHL where nationality is a decisive feature for the scope of protection. Children who are nationals of the occupying power are not covered by Article 49 of the GCIV. A child with Ukrainian citizenship, who finds itself in the hands of Russian military or civilian authorities, is a “protected person”. Children without citizenship are protected by Article 78 of the API. Ukrainian children who are not Russian citizens are protected persons under the fourth Convention and GCIV and API apply concurrently. Children with Russian citizenship are not covered by the prohibition. With respect to children who are nationals of the party to the conflict arranging for the evacuation, the party is free to make such arrangements as it sees fit.166

As mentioned above, in case of belligerent occupation of foreign territory, it is prohibited for the occupying power to change the status of the territory. It is equally forbidden to require compulsory changes of citizenship of the population in the occupied area. As explained in Section IV.D, a simplified procedure for the admission to the Russian citizenship has been progressively, since 2019, introduced for the inhabitants of the temporarily occupied territories, including children. This “russification” of the occupied territories by way of individual citizenship is a clear violation of international law and has no bearing on the protections under IHL.167 These protections are provided to children of Ukrainian citizens and persons in the areas under the control of the so-called DPR and LPR or under the Russian occupation since 2014 and cannot be deprived based on involuntary changes of citizenship. The Mission would like to recall that the provisions of international humanitarian law protecting individuals in the hands of one of the parties are absolute in the sense that individuals are not in a position to voluntarily give up or renounce these rights.168

3. FAMILIES

The nucleus of the family is essential for the protection of children during the hardships of armed conflict. IHL therefore protects family unity. If an occupying power undertakes evacuation of an area for certain reasons specified therein, it shall see to that members of the same family are not separated.169 Interned and detained families should be kept together,170 systems must be set up to identify and register separated children,171 and families are entitled to give news to each other.172 In case of separation, children must be provided with special treatment, and their reunification/repatriation with their families must be highly prioritized by the belligerent parties.173 This entails a duty on the part of each belligerent party, and on occupying powers in particular, to avoid separating children from their families, and to do everything to reunite families as soon as conditions permit.174

4. SPECIAL PROTECTION FOR CHILDREN

Due to the particular exposure of children in situations of armed conflict, they are afforded special protections under the GCs. API states that “children shall be the object of special respect [...] Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason”.175 The need to protect children flows across the provisions of GCIV and API, prioritizing them for the receipt of aid and medical treatment,176 regulating their involvement in hostilities, and considering the situation of those who are orphaned or separated.177

GCIV provides special protection for orphans or children under 15 who have been separated from their families due to the war.178 GCIV encouraged the reception of orphaned children or children separated from their families into neutral countries.179 API is stricter, in order to prevent the practice of educating children according to a certain political or religious view, to prepare them for military service, or to raise them to customs foreign to that of their families.180 Therefore, API commands that everything possible should be done to avoid separating children, and especially young children, from their natural protectors.

Evacuation of unaccompanied children for medical or health reasons require the written consent of parents or guardians.181 In the absence of parents or guardians, consent is required of the persons who by law or custom are primarily responsible for the care of the children.182 The prohibition takes into account that “in time of war the mother and father are often assigned to military or civilian tasks and are therefore not able to take care of the well-being and upbringing of their child. Frequently the child will be entrusted to the grandparents or other more distant relatives, or otherwise he may be left to reception centres”.183

The GCs do not contain a definition of “children”, but operate with three different ageparameters: 18 years, 15 years and 12 years.184 Children are mentioned in Article 17, which provides for the evacuation of civilians from besieged areas. Article 50 deals with children in occupied territories and to the institutions devoted to their care. In occupied territory, Article 51 prohibits compelling children under eighteen years of age to work, and Article 68 prohibits pronouncing the death penalty on persons under eighteen years of age. Children under 15 are specifically referred to with respect to safety zones, free passage of relief consignments intended for the weakest categories of the population, and when they are protected persons in the territory of belligerents entitled to enjoy preferential treatment in line with the national State concerned.185 Orphans or children separated from their families due to war are given particular protection.186 GCIV gives great importance to the subject of identification of children in order for a prompt identification and reunification with their families. Hence, all children under twelve years of age must be appropriately identified and their identity must be traceable.187 This provision has been made keeping in view that children over twelve are generally capable of stating their own identity.

5. NATIONAL INFORMATION BUREAUX AND THE DUTY TO KEEP TRACK

Fulfilment of many of the duties of belligerent parties under IHL rely on the premise that information is available concerning the identity and whereabouts of persons lost or in the hands of the adversary belligerent. At the outset of an IAC, each belligerent party is therefore under (Text is incomplete)

C. THE PROHIBITION OF DEPORTATION AND FORCIBLE TRANSFER

The prohibition against deportation serves to provide civilians with a legal safeguard against forcible removals in time of armed conflict and the uprooting and destruction of communities by an aggressor or occupant of the territory in which they reside. The prohibition of deportation was deemed to be customary already during the Nuremberg tribunals.191 The prohibition on deportation is absolute in the sense that no exception is permissible apart from those provided for in Article 49(2).192 Moreover, the obligation on the High Contracting Parties” to respect and to ensure respect for the present Convention in all circumstances” implies that potential circumstances precluding wrongfulness such as self-defence, reprisals, force majeure or state of necessity cannot be invoked to justify the deportation of civilian population.193

Article 49 of the GCIV stipulates 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”. The provision prohibits all kinds of transfers of individuals or groups or deportations of protected people “regardless of their motive”. No exception under international law that may otherwise justify forcible transfer or deportation can be applied to protected persons in occupied territory, except those explicitly provided for in GCIV and API.

The reason for this stricter-than-usual regime is the temptation by belligerent parties to rely on a variety of arguments for the forced transfer or deportation of individuals or groups of persons directly or indirectly linked to (the motives behind or dynamics of) the conflict.194 Case law of the ICTY and other criminal tribunals have substantially contributed to circumscribe more closely the scope of the notions involved in the prohibition of deportation or forcible transfers.

1. THE CORE OF THE PROHIBITION

Both deportation and forcible transfer denote the act of forced displacement of persons by expulsion or other coercive acts from an area in which they are lawfully present.195 Deportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries.196 The concept of ‘forcible transfers’ – as opposed to deportation – was an innovation of the GCIV of 1949 and implies an extension of the prohibition to forced displacements occurring within the occupied territory.197 The issue of forcible transfer primarily relates to transfers from other regions of Ukraine to occupied Crimea. No distinction is made under the Convention between individual and mass forcible transfers, nor is the destination relevant. Any deportation is forbidden, whether to the territory of the occupant or to any other country, occupied or not. It is considered a grave breach of the GCs and a war crime.198

The prohibition set forth in Article 49(1) GC IV covers only situations where the belligerent intended to cause the displacement. Displacement as a consequence of attacks directed against military objectives in conformity with IHL is not perceived as deportation under IHL.199 A broader interpretation, encompassing so-called unintended indirect forced displacement would have the consequence that the prohibition would end up swallowing up almost the whole body of jus in bello, as almost any violation can induce a decision to depart.200 The corpus of IHL also assumes that the fear of the consequences of combat may lead the civilian population to spontaneously flee an affected area.201 A situation with “spontaneous” displacement must be distinguished from “forced” displacement for the purpose of the Convention.202

2. CONSENSUAL TRANSFER

The prohibition on deportation and forcible transfer is limited to non-consensual displacement. Consensual individual or mass relocations are considered to fall outside the material scope of the prohibition, rather than being an exception.203 Consensual transfer is meant to accommodate for situations where protected persons belong to ethnic or political minorities who may fear discrimination or persecution and therefore might wish to leave a given territory.204

In order to qualify as such, deportations or forcible transfers ought to be forcefully enforced, that is to say against the free will of the persons concerned, by the use of direct or indirect constraint or coercion.205 The term “forcibly” is not restricted to physical force, but may include 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.”206 No obligation is violated where the displacement results from “genuine choice” of the protected persons to leave the territory.207

While adults who have left Ukrainian territory may have given their consent to be relocated to Russian territory, children are not in a position to give such consent. Their parents or their legal guardians must give consent on their behalf.

Many children in institutions have been transported out of occupied areas. In these cases, the right person, either the director of the institution or parents or other legal guardians of each individual child must give consent. In April 2022, the director of a facility in Rostov stated that the decision to evacuate was made “within minutes” before a full-scale invasion, and that all children “gave their consent” to be transferred to families in Russia.208 As noted previously, many of the children residing in institutions at the time of invasion had parents with parental rights. There can be no consensual transfer if consent is given by an unauthorized adult. The Mission was made aware of several instances where the directors of institutions did not give consent to the transfer of the children in the institution. This did not prevent transfer by the Russian occupational authorities. The Mission considers these instances to be non-consensual evacuations.

The determination as to whether a person giving consent had a genuine choice is one to be made within the context of the particular case being considered.209 This has to be assessed considering all relevant factual circumstances.210 Consideration must be paid to the prevailing situation and atmosphere, including the victim’s vulnerability.211 In an instance in Kherson, 2000 children from institutions were readied for evacuation towards non-occupied Ukraine. When the green corridors did not materialize, the children were returned to the institutions. Most of them were later discharged and sent to their families, thereby avoiding mass-evacuation in the other direction, towards Russian territory. In another instance in March 2022, a volunteer tried to take 17 children from a children’s sanatorium in Mariupol to Ukrainian-controlled territory when they were stopped at a checkpoint. The next day, the children were taken by officials, accompanied by local media, from the so-called DPR.212 An OSCE Moscow Mechanism report published in July noted Ukrainian reports that at least 2,000 children from institutions had been transferred to Russia “even though they have living relatives and were in the institutions only for medical care”.213 While evacuations of child institutions have taken place in situations of great stress, and under a variety of difficult conditions, the Mission have found some clear instances of non-consensual displacement that do not seem to fall within the lawful exceptions, and are likely forced transfers or deportations.

Children sent to rehabilitation camps pertain to a different category. In the large majority of cases examined by the Mission, the initial travel and planned stay at the rehabilitation camp took place with the consent of parents or legal guardians. The Mission has heard numerous accounts about children from Russian-occupied parts of the Kharkiv-region who were sent to summer camps in occupied Crimea or the Russian Federation with the consent of their parents, but were subsequently not returned home at the end of the vacation period.214 For example, in a summer camp in Krasnodarskyi Krai, in the Russian Federation, about 200 children remained after the summer and were enrolled in a local school.215 It has been suggested to the Mission that the Russian side uses the vulnerable position of the parents, their desire to protect the children from shelling and the difficulties of life in the occupied territory, misleading them about the nature and duration of the so-called “vacation”.216 When the agree period of stay comes to an end, it is usually extended without returning the children to their parents based on arguments of security such as dangers of shelling, or pro-Ukrainian views.217 While the Mission finds that most cases of children sent to recreational camps did not initially amount to forcible transfer or deportation, subsequent prolongation by the Russian occupying authorities of the stay of the children amounted to non-consensual displacement and separation by families, bringing the children into a situation akin to that of forcibly transferred or deported children.

Lack of genuine choice may be inferred from, inter alia, threatening and intimidating acts that are calculated to deprive the civilian population of exercising its free will.218 This may include, for example, situations involving “threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power, or the act of taking advantage of a coercive environment.”219 It follows from such interpretations that even in situations in which a person “consent[s] to, or even request[s], their removal”, such removals may still be considered to be ‘forcible’ where that consent is not given “voluntarily and as a result of the individual’s free will, assessed in light of the surrounding circumstances of the particular case.”220 With respect to children separated from their parents as a consequence of the war, for example at filtration points, these are coercive situations imposed by the occupying power, and no question of consent arises.

Numerous filtration camps have been established by the Russian occupational authorities. Filtration-points were established at Amvrosiivka, Bezimenne, Donetsk, Dokuchaievsk, Kachkarske, Kozatske, Khomutovo, Manhush, Nokolske (prev. Volodarske), Novoazovsk, Pervomaisk, Sartana, Shyrokyne, Starobesheve, Uspenka.221 It is clear that the number of Ukrainans passing through filtration is massive, although precise numbers are unavailable.222 Reports indicate that the filtration-information is being used to create a new database for an “interior ministry” in the occupied areas.223 People are also questioned about their families.224 Some reports suggest that they persons pressured to change their citizenship.225 Individuals subjected to filtration include those leaving areas of ongoing or recent hostilities and those residing in, or moving through, territory controlled by Russian armed forces and affiliated armed groups.226 The Mission is of the understanding that it is common procedure to separate parents and children at filtration points.

Under IHL interned or detained families should be kept together.227 Children should only be separated from adults to the extent that this does not involve a violation of the right of families to be housed together. Interned children must be lodged together with their parents, except when separation of a temporary nature is necessitated for reasons of employment or health or for the purpose of enforcement of penal or disciplinary sanctions.228 And if separated, families are entitled to give news to one another.229 The Mission has seen and heard numerous reports concerning fathers or mothers at filtration-points suspected of having ties with Ukrainian armed forces or State institutions, or having pro-Ukrainian views, and being separated from their children while subjected to internment, transferred to penal colonies or pre-trial detention centers. Some internees are released after one or two months, while others remain interned or detained for an undetermined period of time, with no or little information for their families about their whereabouts and fate.230 The Mission has been informed about several instances of children who have become unaccompanied as a consequence of filtration. One example is a military physician, separated from her four-year-old daughter by Russian soldiers during the UN/ICRC evacuation from the Azovstal steelworks tunnels; after the filtration camp in the city of Manhush, the whereabouts of the child remained unknown.231

The Mission has found that in situations where the occupying power separates children from their parents for the purpose of filtration, it violates IHL obligations to intern children together with their families. Moreover, the separation of parents and children at filtration-points and subsequent relocation of the children of internes to other occupied areas or to the territory of the occupying power are serious cases of non-consensual separation of families in breach of IHL. When the occupying power picks up these children and relocates them to other occupied areas or to the territory of the occupying power, the Mission deems that these are clear cases of forcible transfer or deportation in violation of GCIV article 49, amounting to grave breaches of the Convention.

3. EXCEPTION: SECURITY OF THE POPULATION AND MATERIAL REASONS

Despite the absolute character of the prohibition against forcible transfer and/or deportation, not all forcible displacements of the population during armed conflict are unlawful. Article 49(2) of the GCIV allows for non-consensual evacuations “if the security of the population or imperative military reasons so demand”. The exception is reflected in treaties and State practice.232 Non-consensual evacuation might be lawful if it is effectively justified on one of the two recognized grounds and carried out in accordance with relevant rules. The two grounds of evacuation may also overlap.233 The rule on justified evacuations calls for a restrictive interpretation, as these are exceptions to a general prohibition of IHL. The exception is only applicable in cases where the security of the civilians involved or imperative military reasons (such as clearing a combat zone) require the evacuation, and only lasts for as long as the conditions warranting it exist.

Non-consensual evacuation of children from an occupied area is permitted for reasons of safety.234 The obligation to evacuate the civilian population applies a fortiori to certain categories of particularly vulnerable persons, hereunder children, from besieged and encircled areas.235 Yet, it is important to stress the importance of the principle of good faith in the application of the exceptions, as history is full of instances of mala fides arguments related to both. According to the Commentary to GCIV, a real necessity must exist; the measures taken must not be merely an arbitrary infliction or intended simply to serve in some way the interests of the occupying power.236 The commentary notes: “if therefore an area is in danger as a result of military operations, the Occupying Power has the right and, subject to the provisions of Article 5, the duty of evacuating it partially or wholly, by placing the inhabitants in places of refuge. The same applies when the presence of protected persons in an area hampers military operations. Evacuation is only permitted in such cases, however, when overriding military considerations make it imperative; if it is not imperative, evacuation ceases to be legitimate”.237

Evacuation may also be dictated by other provisions of IHL, such as the duty of taking precautions in defence, i.e., the duty of a belligerent to endeavour to remove the civilian population, individual civilians and civilian objects under its control to the maximum extent possible from the vicinity of military objectives.238 This obligation to evacuate typically arises in the case of intense bombing or in situations of siege warfare,239 as frequently produced as one of the results of the Russian invasion of Ukraine on 24 February 2022. However, a belligerent cannot adapt the ground by “evacuating the population” under the pretext of their safety in order to be entitled to use heavy weapons that otherwise would have been unlawful.

IHL imposes stricter rules for the transfer of protected persons out of occupied territory. It follows from GCIV article 49(2) that displacement of protected persons by the occupying power may only take place if “material reasons make it impossible to avoid” such displacement. According to the ICRC commentary “only when it is impossible for material reasons to avoid it, is a temporary transfer of a population outside occupied territory legitimate and this population should be returned to its own country as soon as hostilities have ceased in that area. In this case children will enjoy the guarantees accorded protected persons. In this way families will be kept together”.240

In the initial face of the invasion, large areas in Eastern Ukraine became occupied by the Russian military and associated forces subsequent to fierce resistance by Ukrainian forces. The prospect of ongoing or future counterattacks may provide sufficient legal grounds to evacuate children from the area of hostilities, either together with their families or in groups organized by childcare institutions. The long and extended frontline, and prospects of future battles may serve to justify displacement of protected persons. While each belligerent power is under a constant duty to take care to protect the civilian population from the effects of hostilities, this applies a fortiori to “protected persons”, as they may easily be perceived to serve the occupying power as human shields during hostilities. While locating Ukrainian military objectives next to a Ukrainian child-institution may be a breach of the duty to precautions in defence, locating Russian military objectives next to a Ukrainian child-institution may effectively immunize the Russian military objective from attacks by Ukrainian forces, and amount to the use of “protected persons” as human shields, which is a war crime.241 There may therefore very well be material reasons for the evacuation of Ukrainian child institutions out of areas newly conquered by Russian forces. However, very strict requirements of an absolute nature are attached to the further treatment and fate of these children once they are removed from the occupied area. The displacement must be temporary and all must be done to facilitate reunification with families.

Forced evacuations of Ukrainian children from institutions in Ukrainian-controlled territories prior to February 2022 and brought to the attention of the Mission by Russian forces in occupied areas essentially fall into two categories.

One set of evacuations appears to have been rooted in the security of the children. Russia, as a belligerent party is under an obligation to take precautions in defence, which includes a duty to remove the civilian population under their control from the vicinity of military objectives.242 This obligation may extend to a period immediately prior to planned military operations that may expose the civilian population to counter-attacks. One set of relocated children belong to those who were in child-institutions not under the control of Ukrainian authorities prior to the full-scale invasion, where evacuation of child-institutions started prior to the full scale invasion.243 On 18 February 2022 the “evacuation” from the so-called DPR and LPR was announced, and child-institutions were relocated to the Russian Federation before the full-scale invasion.244 One of the categories of people who were taken out first were children from shelters and boarding schools.245 On 19 February the first buses with 225 pupils of the Donetsk boarding school No. 1 arrived at the border of the Russian Federation.246 While many of these children had been given Russian citizenship following changes in the Russian legislation in 2018 and 2019, this did not apply to orphans. On 27 February information appeared about the settlement of “refugees from Donbas”, “evacuees” before a full-scale invasion of the territory of the Rostov region of the Russian Federation. In a media report from July 2022, the Advisor to the Head of the so-called DPR on Children’s Rights, Ms. Eleonora Fedorenko, reportedly confirmed that all children who had been in institutions in the so-called DPR were by that point in Russia.247

The Mission is of the view that these initial evacuations may be examples of evacuations in line with the requirements of material reasons. However, the duties of the occupying power towards these Ukrainian orphans for the duration of the evacuation must be strictly observed for the forced displacement to remain lawful.

Another instance brought to the attention of the Mission concerns the already mentioned 2,000 children in Kherson readied for evacuation but who were prevented by the advancing Russian army from using the announced green corridor. They returned to their institutions, and within days, the number of children was reduced by 70%. The Mission was informed by multiple stakeholders that the children were “sent home”, since the institutions lacked the means to cater to their security. While some children reportedly were well received by their families, other children stayed behind or found empty homes, and ended up unaccompanied, or as “street children”. In this group of children, the Mission was informed about several instances of the Russian forces or occupational authorities evacuating them from newly occupied areas, either to Crimea or to Russian territory. It has been communicated to the Mission that children from Kherson and Zaporizhzhia regions are being held in at least 11 places in the temporarily occupied Crimea. In February 2023 there were reports containing information about 43 institutions, including at least 6 in the temporarily occupied Crimea, where Ukrainian children from Kherson and Zaporizhzhia regions are held: Artek, Luchystyy, Laspi, Druzhba, a camp in Pischane and Psychiatric Hospital №5. A Ukrainian Centre has created a map of the camps where Russians resettle deported Ukrainian children, based on open source data.248 The Mission considers many of these transfers of children from an active combat theatre to be evacuations whereby the occupying power has complied with its duties of care for children unable to care for themselves in the midst of hostilities. However, while the initial relocation may be lawful, the transportation of these unaccompanied children out of the territory of the occupied belligerent will nevertheless be unlawful. Numerous cases have been brought to the Mission’s attention where children evacuated from areas of hostilities, have subsequently been relocated to the Russian Federation in clear violation of API article 78.249 The Mission has also heard reports about children deported to Belarus by advancing Russian forces in the Kyiv oblast during the initial phase of the invasion.250

Relocation to Crimea and subsequently to Russian territory is a practice reported to have been widespread in Mariupol immediately after the city was captured by Russian forces.251 Similar practice has also been reported from other newly occupied territories. A notable example are fourteen children from institutions under the age of five who have reportedly been relocated from occupied Kherson to “Yolochka,” an orphanage in the city of Simferopol in the Autonomous Republic of Crimea, which specializes in housing patients with neurological and psychiatric disorders.252 Some children’s profiles then appeared on “usynovite.mosreg.ru,” a Moscow regional government’s website for adoptions.253

The Mission considers that instances in which Ukrainian children from child-institutions have been moved to other occupied areas as a consequence of justified evacuations are subsequently moved from occupied Crimea to Russian territory without corresponding justification, must be seen to amount to deportations in breach of GCVI Article 49.

A second category of evacuations of children in institutions have taken place from occupied territories prior to the withdrawal of Russian forces from occupied territory. In October, prior to the Russian withdrawal from newly occupied territories, several reports brought to the attention of the Mission suggest that Russian soldiers had orders to evacuate Ukrainian children in child institution to other areas still under occupation or to Russia. The Mission has received credible reports that children began to be taken out of shelters and boarding schools in Kherson region with the approach of the Ukrainian offensive and the increasing possibility of reintegration of these territories.254 Mr. Lubinets reported that Russian forces had removed vulnerable children, aged nine to seventeen, from a boarding school in then-occupied Kherson Oblast before retreating.255 While the Mission acknowledges the difficulties for the belligerent parties of foreseeing how hostilities develop in an active theatre of war, it is the understanding of the Mission that the situation in the Kherson-area at the time did not give reason to evacuate the Ukrainian children out of the area. The reported strong resistance from the staff at these institutions may also suggest that the security of the population was not a credible justification. The Mission is therefore of the view that the non-consensual transfer of children pertaining to the enemy belligerent before de-occupying territory in these instances constitutes a clear violation of the prohibition to forceful transfer of protected persons under GCIV article 49, amounting to a grave breach of the GCIV and a war crime.256

4. EXCEPTION: MEDICAL EVACUATION OF CHILDREN OUT OF AREA

In occupied territory, there is a strengthened prohibition against the forced transfer of unaccompanied children out of the occupied area.257 It is prohibited to evacuate children from occupied territory to another country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children is concerned.258 These children can only be transferred based on medical reasons. The obligation is absolute. Evacuation of children who are not nationals of the evacuating power is acceptable only for medical treatment and with the written consent of the parents or those primarily responsible for the care of children. Written consent by parent or guardian is required if they can be found, or written consent of the person primarily responsible for the care of the children. Any such evacuation shall be supervized. A violation of Article 78 of the API may constitute a breach of the prohibition of illegal transfer.259

The Mission was made aware of several instances where initial lawful medical evacuation to Russia (and one instance to Belarus) had been prolonged for reasons unrelated to the medical treatment. For example, a girl who had been undergoing medical treatment in Mariupol, was transferred to Donetsk with a group of other children in March of 2022. From Donetsk, she was taken to a facility near Moscow, and by autumn she had been placed in foster care in the Moscow region. Her family in Government-controlled Ukraine did not know about her fate and whereabouts, and although they heard in the media that she was in the Russian Federation, they did not have any contact with her as of 31 December 2022.260 The Mission is of the view that in instances when initial transfer from occupied territory to the territory of the occupying power is lawful under IHL, the exception only covers a temporary stay and the specific purpose of medical considerations. A prolonged stay not justified by medical reasons will constitute a violation of Article 78 of the API.

Reportedly, Russian occupational authorities are to a substantial extent relying on medical justification as legal grounds to remove Ukrainian children from Ukraine. Ukrainian stakeholders have suggested that Russian doctors in one instance determined that the majority of children in an institution had to be relocated to Russia for the purpose of medical care.261 The Mission has not been able to verify these allegations, but would like to reiterate that the protections provided under IHL against deportation by the civilian population and children pertaining to one belligerent power are to a considerable extent protection dependent on nationality. The duty under IHL to medical care to the sick and wounded is to the contrary unconditional and supersedes not merely nationality but also links to belligerents.262 Medical justifications for transfers may therefore serve to circumvent the protections of protected persons and unaccompanied children in occupied territory. Great care should therefore be taken by each belligerent party and State parties to the GCs to ensure that medical evacuations are not relied on for ulterior motives.

5. TRANSFERS GOING BACK TO 2014

With respect to situations of forcible transfer going back to 2014, the Mission has heard several accounts to the effect that Russia began to transfer children from the occupied territories of Crimea, Donetsk and Luhansk regions in 2014.263 As of 1 January 2014, there were 4,323 orphans and children deprived of parental care residing in social care institutions on the Crimean Peninsula at the time of its occupation and annexation according to Ukraine’s Ministry of Social Policy.264 Only two dozen of those children were reportedly able to return to mainland Ukraine at that time.265 The National Preventive Mechanism of the Ukrainian Ombudsperson’s office did not know of any public information on additional citizenship options being presented to children from Crimea as they reach the age of majority.266 Ukrainian stakeholders consulted by the Mission suggest that several thousand of Ukrainian children were transferred to the territory of the Russian Federation and their traces are lost as of now.267 They warn that the same situation is about to be repeated. While the Mission is not in a position to confirm these statements/allegations, the Mission shares the concern that a practice and pattern of unlawful transfer and assimilation of various categories of unaccompanied Ukrainian children into Russia dating back to 2014 has multiplied and gained substantial traction as a result of the full-scale invasion in 2022.

D. TREATMENT OF CHILDREN

The general duty bestowed on any belligerent party to pay special respect to any children and protect them from any type of indecent assault, applies unabated to the occupying power in whose hands the evacuated or deported children find themselves.268 This entails a duty to provide the children with the care and aid they require.

1. REGISTRATION

The evacuation of an unaccompanied child must follow several formal procedures. In line with Article 50(2) of the GCIV, the occupying power must “take all necessary steps to facilitate the identification of children and the registration of their parentage”. Children under twelve shall have a card with a number of personal data registered, in order to facilitate reunification with family and ensure that the child is not “lost” for the family and the enemy party API 78 (3, as). A special section of the National Information Bureau shall be responsible for taking the necessary steps to identify children whose identity is in doubt, and record details about their parents or other close relatives. It is a well-known fact that many of the Ukrainian children who have ended up unaccompanied in the hands of the Russian belligerent have parents or other family members with legal guardianship, and that they are searching for them. The procedure is strictly regulated and requires a system to register the whereabouts of any evacuated children.

The duty of registration is closely tied to the right to re-establish contact with the family. Persons in an armed conflict and occupied territory have the right to news about family members.269 Protected persons shall also be allowed to apply to the ICRC.270 Parties to the conflict must facilitate enquiries by persons looking for family members dispersed by the conflict.271 Additional Protocol I requires each party to the conflict to search for persons who have been reported missing by the adverse party.272 The obligation to account for missing persons is perceived to be declaratory of customary law, motivated by the right of families to know the fate of their missing relatives.273

For a forced evacuation to be lawful, there is therefore a requirement of notification. The occupying power must notify the protecting power (or the ICRC) of such “transfers and evacuations as soon as they have taken place”.274 As previously noted, the Russian belligerent has not put in place the appropriate mechanisms for such notifications under GCIV articles 136 and 50. The Mission has not been able to find any indications that such communications concerning evacuated/deported children are provided by Russian belligerent authorities to Ukrainian authorities. Rather, the Mission has heard numerous cases were the Ukrainian children themselves were left to contact their parents, often with the manifest non-cooperation of the persons in whose custody they were. In many cases where families have been able to locate their deported child, the process seems to be one of luck. Someone has recognized a child in pictures distributed in the press or social media for other purposes than reconnecting families. The Mission has seen an overview of the way in which 20 children were repatriated. In one instance, a father saw his son in a Russian propaganda video.275

The Mission is of the view that the Russian belligerent party is in violation of numerous duties under humanitarian law linked to the registration, tracking, communication and reestablishment of contact with families of Ukrainian children who have been evacuated, forcibly transferred or deported to Russian controlled territory these children with their families. The Mission also finds that the persistent disregard of these duties of IHL exacerbates the gravity of the situation in which these children find themselves.

2. ACCOMMODATION AND EDUCATION

The occupying power arranging for the evacuation is also responsible for the fate of the evacuated children and should ensure that the requirements laid down are fulfilled.276 In case of displacement, all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.277 The occupying power responsible for the displacement must ensure proper accommodation.278

In occupied territory, the occupying power is obliged to do everything possible so that childinstitutions can fully perform their functions, continuously, on the territory where they are located, because any violations of this process can cause irreparable damage to the physical and psychological development of children. The role of the occupying State is limited only to the case when the local authorities do not fulfil their duties, and there are no relatives who can provide care and education for the child. Only in this case can the occupying State hand over such children to authorized persons or institutions.

GCIV requires that children who are separated from their parents as a result of the war are provided with education in all circumstances. According to Article 24 of the GCIV, such persons shall, if possible, be of the same nationality, speak the same language and practice the same religion as the children in their care. Article 78(2) of the API however clarifies that “whenever an evacuation to a foreign country occurs, each child’s education, including “his religious and moral education as his parents desire”, shall be provided. As already noted, the prohibition in API of any transfer of children to the enemy belligerent is in place precisely to avoid this particular situation, “to prevent the practice of educating children according to a certain political or religious view, to prepare them for military service, or to be raised to customs foreign to that of their families”. It is almost impossible to insulate unaccompanied children pertaining to the enemy belligerent from the atmosphere, narratives and education of the population of the enemy belligerent in which the child finds itself in what that will provide the displaced children with the education and known cultural upbringing that they are entitled to under IHL. A report on the educational programs offered to Ukrainian children estimates that it “fosters Russian nationalism”.279 It has been difficult for the Mission to assess the precise conditions under which Ukrainian children are kept in Russia. A limited number of children have returned to Ukraine to rejoin their families however, and in their account of the conditions have spoken about “re-education” and in some cases also about military training. As illustrated by numerous reports brought to the attention of the Mission, the education to which Ukrainian children are exposed, impose the war-narrative of the adversary belligerent Russia on the Ukrainian children, in disregard of IHL.

3. TEMPORARY NATURE AND PROHIBITION TO NATURALIZE

The distinctive feature of a genuine evacuation lies precisely in its provisional nature.280 According to the ICTY, the duration of the displacement has no impact on its illegality.281 While earlier judgments of the ICTY suggested that to amount to a crime against humanity or a war crime, the displacement must have been committed with the intent that the removal of the person or persons be permanent,282 the Appeals Chamber later stated that no such requirement exists lex lata, although stressing that the displacement should not have been provisional.283

Non-consensual evacuation of unaccompanied children from an area of active hostilities, whether justified or unjustified, into the territory of the enemy belligerent can never be the basis for naturalization or assimilation of the children into to the enemy population. An essential component of the protection of children displaced in the hands of an enemy belligerent is the prohibition in Article 50(2) of the GCIV to change the child’s personal status, including nationality.

The Mission concludes that the extensive exposure of unaccompanied children to adoption or similar measures of assimilation by the Russian belligerent as shown in part IV is a violation of the Fourth Geneva Convention. Altering the nationality of Ukrainian children by offering Russian citizenship is a violation of Article 50(2) of the GCIV. Facilitating re-education and permanent integration into Russian families through various schemes of permanent foster care and potentially adoption serves to confirm that the displaced Ukrainian children are indeed the victims of deportation in the sense of Article 49 of the GCIV.

E. REUNIFICATION/RETURN OF CHILDREN

Under GCIV article 49 (3), protected persons evacuated beyond the bounds of occupied territory “shall be transported back to their homes as soon as hostilities in the area in question have ceased”. The main duty of the occupying power in these cases is to do everything possible to reduce the prolongation of the displacement, facilitate repatriation or reunion with families, or transfer the children to a third neutral country. While the justification of “security of the children” may still be relevant in terms of repatriation to the area where these children belong. Fierce and unpredictable hostilities are still ongoing in the war in Ukraine. The return of children to areas of hostilities is therefore not an option at the present time. This fact does in no way free the Russian belligerent power from its duties of reunification and repatriation of unaccompanied Ukrainian children in its hands.

1. A DUTY TO ENDURE REUNIFICATION

A main principle of the GCIV is that family unity is to be protected and respected. Belligerent parties and ratifying States to the GCs alike “shall facilitate in every possible way the reunion of families dispersed as a result of the armed conflict”.284 Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflict and shall encourage in particular the work of humanitarian organizations engaged in this task.285

For many unaccompanied, separated, and orphaned children, the process of reuniting with family members or guardians and leaving occupied parts of Ukraine or Russia is difficult. The Mission was informed by many stakeholders about Ukrainians who face daunting logistical barriers to recover children taken to Russia. Children whose parents have died in the war face a different challenge – they may not yet have another formally appointed guardian from Ukraine, although Ukrainian authorities have taken some steps to simplify the process of appointing guardians to orphans and children left without parental care.286 Even if a guardian from Ukraine has the requisite paperwork, occupation administration in the so-called DPR have required the guardian to travel to wherever the child is located to collect them, at great personal risk and cost.287 There are also the well-known cases of the children from Russian-occupied parts of Kharkiv who were not sent home after the recreational camps were over. The Russian authorities requested their parents to travel to the Russian Federation in person to get their children back, which for many was a practical impossibility.

Without a formal mechanism in place to systematically return Ukrainian children to Ukraine or to reunite them with their guardians or caregivers, the work of reunification falls largely on individuals, with support from Ukraine’s Ministry of Reintegration of Temporarily Occupied Territories, volunteers, NGOs and possibly some Russian government officials via back-channels.288 The Mission therefore concludes that non-justified prolonged stay or unfounded logistical hurdles violate the duty to facilitate reunification and contravene the principles embodied within GCIV that family unity is to be protected and respected.

The Mission has found that on the Russian side there is currently no functioning mechanism for the reunification of children with their relatives in Ukraine. Rather, the Mission has found a consistent pattern that suggests that efforts by the Russian authorities to allow the movement of children from Ukraine to families in the Russian Federation do not appear to include steps for family reunification. The system facilitates integration of these children into Russian families rather than a return to Ukrainian families, in disregard of IHL.

2. A DUTY TO FACILITATE REPATRIATION

The right to repatriation is a cornerstone of IHL, and the need to maintain and reinstate family unity is a central theme in GCIV. Victims who have been forcibly displaced have a “right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist.” This includes where persons have been evacuated, in which case they “must be transferred back to their homes as soon as hostilities in the area in question have ceased”.289 The return of forcibly displaced persons in this sense is both a right and an obligation. Denial of the right to return as soon as possible has been deemed as an indication of the unlawfulness of the displacement.290 The parties are encouraged to conclude agreements for the repatriation, return to places of residence or the accommodation in a neutral country of certain classes of internees with special needs such as children.291 Unjustifiable delay in repatriation of civilians constitutes a grave breach under API, and amounts to a war crime.292

Returning children from camps is complicated. Even children present in other occupied territory, such as Crimea, cannot easily be returned to their families under current Russian practice, refusing to return children except to close relatives. As martial law prevents men from leaving the Ukrainian territory, mothers or grandmothers must go through the enemy belligerent country Russia and enter occupied Crimea and bring the child back through the same route. The trip may pose security risks for Ukrainians. In addition, many neither have the funds nor the possibility to undertake such a trip. Older teenagers travelling on their own or with friends or relatives reportedly required a parent or guardian to grant them permission to leave Russia.293 While the Mission has not found evidence of outright denials of repatriation, the Mission has heard countless examples of parents and other family members who are not able to carry through with the repatriation due to logistical or technical hurdles.

The absence of a separate system for the repatriation of Ukrainian children brought out of the war-theatre by the enemy belligerent Russia is a violation of the right to repatriation and the duty to facilitate such return. The Mission has found that on the Russian side there is currently no functioning mechanism for the repatriation of children to Ukraine or for transport to a third country. Rather, the Mission has found a consistent pattern that suggests that efforts by the Russian authorities to allow the movement of children from Ukraine to the Russian Federation do not appear to include steps for further evacuation to third countries or back to safer areas in Ukraine. The system facilitates permanent stay and potentially unjustified delayed repatriation of these children, in disregard of IHL.

F. CONCLUSIONS

Children in the territories of Ukraine occupied by the Russian belligerent are exposed to a variety of transfers and forced displacements.

Firstly, children are exposed to non-voluntary movement away from an active theatre of massive hostilities. The Mission has found that while many forceful relocations of children in child-institutions have taken place in compliance with duties of IHL, other instances have been clear violations of IHL, some of which amount to a violation of the prohibition of forceful transfer or deportation in GCIV article 49, a grave breach of the Convention and a war-crime. Filtration and internment of the civilian population with loyalties to Ukraine by the occupying power has led to the separation of families in violation of IHL. Instead of being interned together with their parents, some of these children have been “brought to safety” to Russia, in practical terms but also in ideological terms. The Mission has found that this practice of non-consensual separation of families with ensuing transfer of the children to Russia violates the prohibitions of GCIV (Article 49) and API, Article 78, and amounts to a breach of the prohibition on deportation in Article 49 of the GCIV, a grave breach of the Convention and a war-crime.

Some children from Ukraine have been brought to other occupied areas of Ukraine or to Russia with the consent of their parents or legal guardians for the purpose of medical treatment or recreational camps. However, the Mission has found that prolonged stay imposed by the occupying power is in most cases non-consensual and amounts to a violation of API article 78. In situations where the children are subsequently taken to Russia or where the treatment of the children is clearly intent on a prolonged stay, this non-consensual displacement may be juxtaposed with deportation under GCIV article 49.

Ukrainian children who find themselves in the hands of Russian occupational authorities shall be reunited with their families or repatriated as soon as possible. Consent by protected persons in occupied territory to displacement of children must be treated cautiously, and any type of evacuation is a temporary measure. Non-justified prolonged stay or non-justified logistical hurdles violate the IHL-duty to facilitate reunification and contravenes the principles embodied within the Fourth Convention that family unity is to be protected and respected.

Russia’s relocalization of Ukrainian children in areas occupied by the belligerent power Russia or into Russian territory and the disregard of the duty to establish compulsory mechanisms under the GCIV to track these children, to communicate their whereabouts and facilitate the regularization of the situation of these children in terms of repatriation or reunification with their families, exacerbate the gravity of many of the other violations of IHL and demonstrate a deplorable departure from and disdain for IHL rules to ensure protection of and respect for children under GCIV and API.

To expose unaccompanied children to adoption or similar measures of assimilation is anathema to the GCIV. Altering the nationality of Ukrainian children by offering Russian citizenship is a violation of Article 50(2) of the GCIV. The policy also contravenes the principles embodied within the Fourth Convention that family unity is to be protected and respected. Facilitating adoptions by Russian families suggests plans for prolonged stay and may indicate preparation for the grave breach of unjustifiable delay in the repatriation of civilians in Article 85(4)(b) of the API. It also serves to confirm that the displaced Ukrainian children are indeed the victims of deportation in the sense of Article 49 of the GCIV.