Moscow Mechanism Report (2023)

VI. Alleged Violations and Abuses of International Human Rights Law

A. APPLICABLE INTERNATIONAL HUMAN RIGHTS LAW

As was explained in the previous two Mission reports, IHRL continues to apply in times of armed conflict. In such times, however, many human rights guarantees may be suspended by means of a derogation (Article 4 of the ICCPR, Article 15 of the ECHR). The Russian Federation has not entered any derogation in the context of the current conflict. Ukraine, conversely, has extensively derogated from its obligations under the ICCPR and the ECHR. These derogations can be broadly separated into two cohorts. The older derogations (2015-2019 but still in force) relate to the situation in the Autonomous Republic of Crimea and the City of Sevastopol and in the Donetsk and Luhansk regions. The more recent derogations (2022) have been made in connection to the Russian full-scale attack on Ukraine and the introduction of a state of emergency in most regions of Ukraine (23 February2022) and of the introduction of martial law on the entire territory of Ukraine; the latest notification received by the Secretary General of the UN was on 14 February 2023 whereby notification is given of extension of the martial law in all territory of Ukraine for further 90 days. The recent derogations concern a broad range of human rights, namely those granted by Articles 2(3), 3, 8(3), 9, 12-14, 17, 19-22, 24-27 of the ICCPR, Articles 4(3), 5-6, 8-11 and 13-14 of the ECHR, Article 1-3 of the Additional Protocol to the ECHR and Article 2 of Protocol 4 to the ECHR.303 However neither Ukraine nor the Russian Federation have entered any derogations in respect to the UNCRC.

Similarly to the previous two Missions, the present Mission recalls that States have the obligation to secure human rights of all individuals within their jurisdiction and that, as established under the case-law of international human rights bodies, jurisdiction is not limited to the territory of the State304 but extends to the territories under the effective (de facto) control of the State, exercised directly or through non-state entities,305 as well as to individuals under the specific control of the State (typically individuals in detention). 306 Whereas the State exercising effective control over an area has the responsibility to secure to individuals within this area the full range of recognized human rights, the State exercising specific control over an individual has the obligation to secure to that individual those rights that are relevant to his/her particular situation.307

The present Mission shares the view expressed in the previous two Mission reports that some parts of the Ukrainian territory are, or were for a certain period, under the effective control of the Russian Federation. This is the case of the Autonomous Republic of Crimea and the City of Sevastopol, which have been temporarily occupied and (unlawfully) annexed by Russia since 2014. Certain parts of the Donetsk and Luhansk regions have also been under the effective control of Russia since 2014. This control is exercised through a subordinate local administration of the so-called Donetsk and Luhansk People’s Republics, over whose acts Russia exercises (at least) overall control. Since 24 February 2022, moreover, Russia has secured (and sometimes subsequently lost) effective control over certain other areas of the Ukrainian territory, especially other parts of the Donetsk and Luhansk regions and the Kherson and Zaporozhzhia regions.

This Mission also reiterates that in times of armed conflict, IHRL applies in parallel to IHL. In this situation, as declared by the International Court of Justice (ICJ), “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law”.308 It is largely accepted that when the last scenario materializes, the standards of IHRL have to be interpreted in light of IHL, which in most instances constitutes the applicable lex specialis. At the same time, as stipulated by the UN Human Rights Committee (HRC), “while, in respect of certain /…/ rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of /…/ rights, both spheres of law are complementary, not mutually exclusive”.309 Thus, the two sets of legal standards – those of IHL and IHRL – both have to be taken into account in the legal evaluation of many incidents which occur in times of armed conflict. Consequently, the same set of facts can simultaneously give rise to violations of both IHL and IHRL.

Noting the mandate of the present Mission, the applicability of the provisions of the UNCRC are particularly relevant. As noted earlier, both Ukraine and the Russian Federation are States parties to this treaty and neither has entered any derogations in respect to this treaty despite the ongoing armed conflict. It is therefore absolutely clear that while the effects of the ongoing armed conflict may pose an obstacle to the implementation of the obligations stemming from the UNCRC, the international human rights obligations are continuous and the rights under the UNCRC apply to all children at all times,310 including the current context in Ukraine. Therefore, the Russian Federation is bound by its obligations under the UNCRC in respect of any actions it undertakes in relation to the Ukrainian children both on the territory of Ukraine and on its own territory. These obligations shall be examined next.

B. THE BEST INTERESTS OF THE CHILD

1. THE SCOPE

Article 3(1) of the UNCRC requires all States parties, which include both Ukraine and the Russian Federation, to uphold the best interests of the child as a primary consideration “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. This is one of the four general principles of the UNCRC for its interpretation and application, alongside the principles of non-discrimination, embodied in Article 2 of the UNCRC, survival and development, set out in Article 6 of the UNCRC and children’s participation, provided for in Article 12 of the UNCRC.311 Specific references to the principle of the “best interests of the child” are made in seven substantive Articles of the Convention312 and, as noted above, Article 3(1) of the UNCRC requires consideration of the “best interests of the child” in all actions concerning children. Therefore, from the perspective of the human rights of the child, it is paramount to fully understand the meaning of Article 3(1) of the UNCRC and to this end, the key terms are “in all actions concerning children”.

As the Committee on the Rights of the Child (CRC) has explained in its General Comment No. 14,313 the obligation to uphold the best interests of the child “in all actions” means that every action relating to a child or children has to take into account their best interests as a primary consideration and the word “action” does not only include decisions, but also all acts, conduct, proposals, services, procedures and other measures as well as inaction and failure to act.314 The latter, inaction or failure to act, include, for example, when social welfare authorities fail to take action to protect children from neglect or abuse.315

Further, Article 1 of the UNCRC defines as child anyone under the age of 18 and therefore the words “concerning children” in Article 3(1) of the UNCRC are to be understood to apply to all decisions and actions that directly or indirectly affect anyone under the age of 18, without discrimination.316 The term “concerning” also must be understood broadly to encompass not only the decisions and actions that have direct impact upon a child or group of children but also such which may affect them even though the measure is not directed specifically at children.317

The focus of the Mission is directly impacted by the overarching obligation to have the best interests of the child as the prime consideration in all actions concerning children. Firstly, in relation to the Ukrainian children who are reported to have been sent to the so-called “summer camps” or “recreation camps”,318 the Mission received numerous testimony of this having taken place throughout the 2022, in many instances with the consent of their parents.319 The most common scenario would be the parents being approached by the authorities with a suggestion to allow their children to travel to the so-called recreation camps, usually to Crimea but also to other places in the Russian Federation, commonly for the period of two weeks upon the expiry of which the child would be returned. The testimony received gives rise to concern over the circumstances under which such consent was forthcoming and whether it could be considered a genuine and voluntary consent of a parent.320

There are credible reports that parents were approached by such professionals as schoolteachers and social workers with whom the families have had many interactions prior and who were thus considered to be trusted. Such professionals persuaded the parents to allow the children to travel, promising that they [the teachers and social workers] would accompany the children, look after them and return them; in case of the children from the temporarily occupied territories of Donetsk and Luhansk especially it was commonly suggested that children would have a kind of a “respite” following years of living in the active warfare zone. It was also significant for these families, who have been living on a brink of poverty for years following the occupation that all expenses related to these camps would be borne by the Russian authorities, including the transportation, accommodation, food and all activities. As put by one interlocutor “at least children would receive regular food which was very scarce otherwise”.321 The assurances of return and good treatment provided by professionals in the position of trust, were a significant factor in persuading the parents of these children to allow for their taking to these so-called recreation camps.

There was also testimony received that those parents who were reluctant to allow their children to go to such camps faced implicit and, at times, explicit threats that the failure to allow their children to go would lead to the reconsideration of their parental rights as the refusal would be seen akin to a neglect of the child. As such, the interlocutors322 were clear that these were implicit threats that the parental rights might be terminated if a parent would refuse. Subsequent to children having been sent to such camps, while some children were allowed to return as originally agreed, in respect to other children the testimony received indicates that the Russian authorities refused to ensure their return. It was only when the parents started to enquire as to the whereabouts of their children and their return the Russian authorities would request that the parents or legal guardians travel to collect children in person.323 From the perspective of the rights of the child this practice raises several serious concerns over the observance of the best interests of the child, noting the deceiving of parents, sometimes coercing, to ensure they would allow children to travel. Above all, the failure to return children as agreed with the parents is a violation of the best interests of the child in addition to other rights and the right not to be separated from parents most notably. Even in those cases when the return of the children would have been complicated due to the advances made by the Ukrainian army as a result of which Russian authorities had lost control over the territories from which the children were transported from, it was the obligation of the Russian authorities to seek other ways of returning the children to their families. The Mission found no evidence of such efforts. Instead, the families were left in the dark about the whereabouts of their children and those who managed to establish contact were required to make the exceptionally complex, lengthy and costly travel to collect their children from such camps.324

Secondly, the Mission has received reports of children transported to Russia who have been either found to be without parents/legal guardians or who have been separated from their parents at filtration points325 or children who have been in institutions.326 In all these situations, it is clear that the authorities engaged in the transportation of these children have acted on behalf of the Russian Federation; the decisions taken clearly qualify as “actions concerning children” within the meaning of Article 3 (1) of the UNCRC and consequently the obligation to have the best interests of the child as primary consideration applies to each individual case of a child thus transferred from Ukraine to the Russian Federation. Yet, the Mission did not establish any evidence that this was the case. As will be discussed in more detail further (see Section VI.C.2), the Russian authorities provided no attempt to secure alternative care from relatives to children who were separated from their parents at filtration or other arrangements made to ensure that the child would not be separated from their parents. Equally when parents were released from filtration, there was no information provided to them as to the whereabouts of their children or assistance rendered to ensure the reunification of the family. On the contrary, the parents were left “to fend for themselves” to locate their children and secure their custody.327 Albeit each case deserves an individual examination, given the information furnished to the Mission, it appears that the absolute majority of cases have followed this pattern and as such, the approach of the Russian authorities cannot be reconciled with the best interests of the child principle enshrined in the UNCRC.

Turning to the children who have been in institutions, their movement from the institutions where they were residing at by the Russian authorities equally is difficult to reconcile with the principle of the best interests of the child. While in some instances this movement may be justified on the basis of imminent threat to life due to ongoing military operation, the Mission has serious concerns over the compatibility of the majority of cases with Russia’s obligations under the UNCRC and the best interests of child principle. Indeed, as noted by the IICIU, “there seems to be no indication that it was impossible to allow the children to relocate to territory under Ukrainian Government control”.328 In fact, the Mission received a testimony that the Ukrainian authorities had organized buses for evacuating children, including children from institutions in Kherson, but the Russian side refused to allow humanitarian corridors to be established for safe passage and evacuated the children to their side instead.329

Moreover, in addition to all the above, the best interests of the child should have been considered not only in those instances when decisions to transport Ukrainian children were taken on the spot but also, for example, when broader decisions to transport/evacuate Ukrainian civilians were taken as part of overall evacuation/strategic planning, given that such decisions would affect children as part of their families. To this end, it must be recalled that the requirement encapsulated in Article 3 (1) of the UNCRC that the best interests of the child “shall be the primary consideration” place a strong obligation upon all States parties, including the Russian Federation, and, most notably, eliminate the possibility of discretion as to whether children’s best interests are to be assessed.330 In other words, the obligation to have child’s best interests as prime consideration is not left at the discretion of a State party. This also means that the child’s best interests may not be considered on the same level as all other considerations331 and it should be highlighted that in relation to some of the UNCRC provisions, such as Article 21 which addresses the issue of adoption, the threshold is even higher as States are required to give “paramount consideration” to the best interests of the child.332

Finally, it is important to note that Article 3(1) of the UNCRC obliges to act in accordance with the best interests of child not only public welfare organizations, courts of law, administrative authorities, or legislative bodies, but also private welfare institutions. The CRC has specifically emphasized that reference in Article 3(1) of the UNCRC to “public or private social welfare institutions” should not be narrowly construed or limited to social institutions stricto sensu. Rather, it is to encompass all institutions whose work and decisions impact on children and the realization of their rights which include not only those related to economic, social and cultural rights (e.g. care, health, environment, education, business, leisure and play, etc.), but also institutions dealing with civil rights and freedoms (e.g. birth registration, protection against violence in all settings, etc.).333 Conversely, in relation to the private social welfare institutions, these are to include “private sector organizations – either for-profit or non-profit – which play a role in the provision of services that are critical to children’s enjoyment of their rights, and which act on behalf of or alongside Government services as an alternative”. 334 Therefore, turning to the issue at the heart of the present Mission, it is clear that all civilian and military authorities of the Russian Federation as well as Russian occupation administration of the temporarily occupied territories of Donetsk and Luhansk, who engaged in the decision making around the transportation of the Ukrainian children as well as those who took part in that process were all duty bound to consider whether this would be in the best interests of the children who were being transported.

In the remits of the present mandate, the present Mission has not been able to identify that any such evaluation of the direct or indirect impact of the decision to transport/evacuate children and/or adult populations involved the consideration of the best interests of the child. While that is not to say that such did not occur, it is nevertheless plain that, despite the efforts of the present Mission as well as other international bodies, the authorities of the Russian Federation have not been forthcoming with any information on the subject which in itself runs counter to the best interests of the children affected as it prevents ascertaining whether their rights stemming from the UNCRC have been upheld and are continuously being upheld in the prevailing situation.

2. THE CONTENT AND THE IMPLEMENTATION

The UNCRC does not set out a definition of the “best interests of the child”, which is indeed a complex concept and as noted by the CRC, its content must be determined on a case-by-case basis. This requires that the provisions of the UNCRC are interpreted and implemented in the light of this principle and applied to a concrete case. Consequently, this principle “should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs”.335

In practice, this requires authorities who make decisions concerning children, directly or indirectly, to engage in a process of assessing and weighing whether such decisions would meet the best interests of the child/children in the particular circumstances of the child/children. The most widely recognized tool for achieving is the so-call child rights impact assessment which is a detailed and complex exercise to be undertaken to determine the impact of a decision or measure upon a child/children, assess the proportionality of the impact and evaluate whether the best interests of the child is met in the concrete situation. In other words, “The child-rights impact assessment (CRIA) can predict the impact of any proposed policy, legislation, regulation, budget or other administrative decision which affect children and the enjoyment of their rights and should complement ongoing monitoring and evaluation of the impact of measures on children’s rights”.336

This also highlights a further important aspect of the obligation of the States to have the best interests of the child as the prime consideration- this is an ongoing obligation. In other words, it is not sufficient that a State has initially ascertained that a particular decision or measure is in the best interests of a child/children. All States are obliged to engage in an ongoing monitoring and evaluation of the impact of such decisions and measures upon the rights of a concrete child/children – after all, noting that evaluation must be made on a case-by-case basis, the obligation of ongoing evaluation is natural, given that the circumstances of each such case would inevitably change.

The Mission has found no evidence that any child-rights impact assessment has been carried out in relation to any of the children who have been transported from Ukraine to the Russian Federation. It is important recall that such assessment is required on a case-by-case basis and must be reassessed continuously. The Mission has not been able to uncover any evidence suggesting that this has taken place. While it is possible that some of the cases involving the transportation of children required immediate action to preserve the life of a child due to present and imminent danger in the context of active warfare, it is certain that these are minority cases. This is especially the case in relation to what clearly appears to have been planned evacuations of whole institutions with the children. Given the forward planning that such operations, involving large number of children, required, it is evident that child-rights assessment assessments should have been part of such planning. The Mission has not been able to establish any evidence of such.

Moreover, the obligation to carry out child-rights impact assessment certainly also applied to all those instances when parents were invited to send their children to the so-called recreation camps as these actions were pre-planned by the Russian authorities. In this context it is also paramount to recall that even a voluntary parental consent does not remove the obligation of the authorities to carry out a child-rights impact assessment. The Mission has uncovered no evidence of any child-rights impact assessment having been carried out. Furthermore, it has also uncovered no evidence that such child-rights assessment was carried out subsequent to the decision not to return the children to their parents in Ukraine as initially undertaken. To this end, it is once again recalled that the obligation to carry out child-rights assessment is a continuous one and must be carried out periodically and especially as the situation changes.

As explained by the CRC, the “best interests of the child” is a complex, threefold concept337: (i) it is a substantive right which involves the right of any child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake; (ii) a fundamental, interpretative legal principle which requires that in those instances when a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests is chosen; and (iii) a rule of procedure which requires that whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decisionmaking process includes an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. The CRC proceeds to elaborate that as a rule of procedure, the best interests of the child require that the justification of a decision shows that the right has been explicitly taken into account and has requested the States parties to the UNCRC to explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.338 The CRC has provided some guidance on the elements to be taken into account when assessing and determining the child’s best interests, as relevant to the particular situation. These elements include child’s views;339 child’s identity;340 preservation of the family environment and maintaining relations;341 care, protection and safety of the child;342 situation of vulnerability;343 the child’s right to health344 and the child’s right to education.345

Consequently, considering all the above, it is perhaps not surprising that commentators describe the principle of the best interests of the child as having “an important agenda- setting role which elevates children’s interests to a primary and legitimate consideration in all decisionmaking which is about to or has impact on children”.346

The Mission has seen no evidence, direct or indirect, that the authorities of the Russian Federation or those of the temporarily occupied territories of Luhansk and Donetsk have engaged in the best interests of the child assessment in relation to the children who have been transported from Ukraine. Even if it could be accepted that in some cases the decision to transport the children were taken in the light of the imminent threat to children’s lives in the context of present military strikes and active warfare, the authorities were obligated to reassess the compliance of the decision to transport children with their best interests when the imminent danger to life had passed. The present investigation found no evidence to suggest that this has taken place. It is therefore the view of the Mission that a violation of Article 3(1) of the UNCRC has occurred.

C. SPECIFIC RIGHTS OF THE CHILD

1. THE RIGHT TO IDENTITY

Recognized in Article 8 of the UNCRC, the child’s right to identity is among the most important rights, which is signified by its placement within the Convention. This right specifically includes child’s right to preserve his/her own nationality, name and family relations. It is significant to recall that Article 8 in the UNCRC was introduced following a proposal by Argentina whose experiences under the 1970s military junta regime was marred by practices of child abduction or removal from imprisoned mothers and subsequently “adopted” by members of the military police. Consequently, the very introduction of this provision into the text of the UNCRC was a recognition that “the child has the inalienable right to retain his true and genuine personal, legal and family identity. In the event that a child has been fraudulently deprived of some or all of the elements of his identity, the State must give him special protection and assistance with a view to re-establishing his true and genuine identity as soon as possible. In particular, this obligation of the State includes restoring the child to his blood relations to be brought up”.347

Indeed, prior to the adoption of the UNCRC, no other international human rights treaty explicitly recognized the right to identity. The very specific context in which Article 8 was introduced into the UNCRC by Argentina is therefore paramount to the proper understanding of the legal content of this provision.

The content of the child’s right to identity is complex, comprised of numerous elements all aimed at the preservation of the characteristics unique to each child. These characteristics, in turn, collectively “provide children with an understanding of where they have come from, who they are, and the right to decide who they will become”;348 it includes static elements such as child’s genetic/biological identity, family heritage or record time spent in care as well as more dynamic attributes such as appearance cultural, religious and political identity.349 The development of child’s identity is continuous process and particularly complex for adolescents as they create a pathway between minority and mainstream cultures.350Therefore, undoubtedly, this is an inherently fluid concept, which can evolve and develop over the time. However, irrespective of that evolution, it is certainly clear that child’s identity is closely linked to his/her family as the provision itself specifically mentions “family relations”. This term too is of particular significance: while it is not unusual for a term “family” to be used in international human rights law, the term “family relations” is unique and connotes the wider understanding which is to be attributed to its understanding. As such, the term “family relations” is to include not only parents and siblings, but also wider family members such as grandparents and other relatives involved in the care and relevant to the welfare of the child. Indeed, through these family relationships children construct a personal identity and acquire culturally valued skills, knowledge and behaviours.351

Turning to the obligations of the States, Article 8 of the UNCRC imposes two sets of obligations. Pursuant to Article 8(1) of the UNCRC, the States “undertake to respect” child’s right to identity. Further, Article 8(2) UNCRC requires States to provide assistance and protection in instances when a child has been deprived of his/her identity or of its elements illegally “with a view to re-establishing speedily his or her identity”. The former obligation certainly entails measures to prevent any unreasonable interference with child’s identity as well as obliges the State to protect from any such interference and ensure that a child is able to enjoy this right effectively. As to the latter, this obligation is triggered when there has been an interference with the child’s right to identity and it involves a provision of an effective legal mechanism for the reestablishment of child’s identity. Such mechanisms can be in various forms and indeed, States have resorted to variety of mechanisms to fulfil this obligation. The establishment of a National Genetic Data Bank in 1987 in Argentina was one such example, offering free of charge services to the relatives of the disappeared.352 Another example could be found in Article 78 of the API, requiring to ensure the preservation of the identities of children subject to evacuation during armed conflict. In such situations, each child is to be provided with a card containing the details related to their identity, including name, sex, date and place of birth, nationality, parent’s names, next of kin, language, religion and home and present address. A copy of this card is to be delivered to the ICRC Central Tracing Committee. It must also be recalled that Article 8 (2) of the UNCRC obliges a State to establish such legal mechanism in order to restore child’s identity speedily. This recognizes the special vulnerability of children, that even short-term denial of rights can have life-long consequences and, most importantly, that the denial of the child’s right to identity may lead to that child assuming the identity of a family or culture into which that child has been placed illegally. Therefore, a sense of urgency is clearly justified and the onus rests with the State in question to show that it has implemented this obligation with the requisite degree of urgency.

The Mission has uncovered serious allegations353 that the children who have been deported from Ukraine to Russia have had their right to identity seriously and repeatedly violated by the Russian Federation which finds confirmation also in the reports of other international mechanisms.354 As concluded above, these deportations in most cases took place without any consideration of the best interests of the children involved. Moreover, even in those cases when the transportation could be justified as in the best interests of the child due to imminent threat to life in the prevailing circumstances of active warfare, the interference with the identity of such children cannot be justified.

The interference with the identity of the Ukrainian children has taken place in numerous different ways. The Mission has received credible and consistent testimony that children who have been either sent to the so-called recreation camps or separated from their parents at filtration and subsequently find themselves in social care institutions of the Russian Federation or in foster care arrangements are consistently required to speak Russian,355 to attend Russian language lessons356 and even taught that Ukrainian and Belorussian are mere dialects of Russian.357 This appears a blanket requirement irrespective of whether the child is Russian speaking or not. Moreover, although many of the Ukrainian children speak Russian as their mother tongue, there are important cultural differences that still prevail which appear to have been ignored entirely by the Russian Federation.358

Notably, the national and political identities of such children have not been respected. The Mission was presented with credible reports of the so-called “patriotic education” which includes requirements to sing the national anthem of Russia, usually daily, as well as take part in various lessons, geared towards changing children’s understanding of the history and geo-political context of Ukraine and Russia.359 Thus, for example, Ukrainian children are to take part in history lessons which present various historical facts in a light favourable to Russian Federation.360 Significantly, the underlying ethos of such lessons is the idea that Ukraine has always been a part of Russia and its rightful place is to be part of the Russian Federation.361 In relation to the temporarily occupied territories, a significant factor contributing to this “patriotic education” is the fact that in 2020 all Ukrainian schools there were required to follow the standards of the Russian Federation and as of then, all educational institutions in the temporarily occupied territories switched to the educational standards of the Russian Federation.362 As an example, the Mission was presented with a Regulation on the holding of the commemorative event to mark the Day of Cosmonauts, issued by the pan-Russian organization of children from children’s’ homes “Children of All Russia”,363 accompanied by Annex 1. These documents contain detailed instruction on the commemorative event(s) that must be held compulsorily between 10-17 April 2023 across children’s homes, the specifics of the content, which underline the achievements of Russia in the area of cosmonautics, near verbatim prescription to the teachers as to what they are to say, as well as a requirement to report on having held such events via public social media, including specific hashtags that are to be utilized for this purpose. Overall, there is also credible evidence of military training, involving not only lessons about the military personalities of the Russian Federation, but also drills and even learning how to assemble weapons.364

Furthermore, the Mission has not been able to establish any steps undertaken by the Russian Federation to preserve the identities of the Ukrainian children that have been deported to Russia from Ukraine. This is especially exacerbated by the fact that in the vast majority of such cases the Ukrainian children have been deported to a different country, hundreds of kilometres away from their normal places of residence, placed in a linguistically and culturally Russian environments of foster families or institutions, schools, orphanages or other social care institutions.365 This means that such children are placed in environments entirely different from what they are used to, where all usual daily things are different, all life is conducted in a different language and according to different traditions.

Arguably the most far reaching and disturbing interference with the identities of the Ukrainian children deported and transported to Russia is the granting of the citizenship to many such Ukrainian children. In this regard, the Mission particularly notes numerous legislative and executive acts adopted in the Russian Federation, both at federal and provincial levels, concerning the facilitation of granting the Russian citizenship to some categories of Ukrainian children. As was noted earlier (see Section IV.D), the simplification of procedures for obtaining the citizenship of Russian Federation precedes 24 February 2022. Since then, however, there have been numerous legislative and executive legal acts pertaining to further expansion of simplified procedure for obtaining the Russian citizenship, expanding the scope of their applicability to different categories of persons as well as further relaxing various requirements as well as procedure for relinquishing Ukrainian citizenship.

Further to the Presidential Decree No. 330 of 20 May 2022366 and Presidential Decree No. 440 of 11 July 2022367 noted earlier, there is also Presidential Decree No 951 of 26 December 2022 On Certain Questions Pertaining to the Obtaining of Citizenship of Russia368 which approves three further regulations concerning the simplified procedure for relinquishing Ukrainian citizenship and applying for the Russian citizenship.369 It is of particular importance for the Mission that these regulations specifically identify procedure for relinquishing Ukrainian citizenship for children under the age of 14, including children who do not have legal guardians, who are orphans or are residing in care institutions and for their obtaining Russian citizenship.370 Thus, in case of children who are social care institutions or who are orphans, the applications can be made on their behalf by, inter alia, legal guardians as well as authorized persons from the social care institutions.371 Notably, in the case of children under the age of 14, their views as to whether they wish to relinquish the citizenship of Ukraine and obtain the citizenship of Russia are not sought. Further, there is Federal Law On Special Legal Regulations concerning the Russian Citizens who have Ukrainian Citizenship of 18 March 2023.372 This Law specifies the procedure for relinquishing Ukrainian citizenship and specially provides that in respect to the children under the age of 14 application to relinquish Ukrainian citizenship is made by the parent, adopted parent or legal guardian or, in case of orphans or children who have no parents such application can be made by the authorized person from the social care institution.373 Similarly to the earlier Presidential Decrees, the views of the child are not sought. All these legislative acts pertaining to the change of the citizenship of Ukrainian children not only run counter Article 12 of the UNCRC obliging States to involve children in decision-making concerning the child or at least enable their participation and fulfilment of child’s right to be heard “in any judicial or administrative proceedings affecting the child”374 through a representative. This is also a profound violation of Article 8 of the UNCRC protecting child’s right to identity. As noted by the IICIU, the granting of Russian citizenship to such children and various family placement measures “may have profound implication on a child’s identity”375 and thus constitutes a violation of Article 8 of the UNCRC.

It is important to recall that the granting of the Russian citizenship to the children born after 24 February 2022 in the occupied territories, such as Kherson and Melitopol, was also announced in Summer 2022, a step clearly incompatible with Russia’s international obligations.376

Further, it is particularly concerning that the failure to obtain Russian citizenship may have profound consequences in other areas of life and thus, de facto, measures adopted to simplify obtaining the Russian citizenship act as a kind of ‘incentive’. For example, the Mission notes that failure to obtain Russian citizenship by elderly residents of the occupied territories was received with threats that their pensions could not be paid.377 Similarly to this, in respect to the Ukrainian children who are in foster care arrangements, there are reports that unless they would become Russian citizens, their entitlement to social benefits as well as entitlement to other benefits such as schooling and medical care could be adversely impacted.378 Consequently it appears that there is a concerted effort to ‘incentivize’ applications for Russian citizenship in respect to the Ukrainian children. Notably also, once a child obtains Russian citizenship, the possibilities for adopting such a child become much simpler, noting that the adoption of children (усыновлеeние, удочерeние) in the Russian Federation, as regulated by Section 19 of the Family Code,379 is only possible with respect to children who are citizens of the Russian Federation. Consequently, simplification in the procedure of the admission to this citizenship for foreign children automatically entails the simplification of the procedure of the adoption of such children, a point which will be examined in more detail later (see Section VI.C.2).

The Mission considers that the measures undertaken by the Russian Federation in facilitating the granting of Russian citizenship to the Ukrainian children it has deported from Ukraine, including the territories it has occupied, is prima facie breach of Article 8 of the UNCRC. The profound and long-lasting effects that such measure is certain to have on the identities of the children concerned are entirely incompatible with Russia’s obligations under the UNCRC. This step is very likely to further exacerbate the severing of the family ties that has already occurred through the deportation of these children and thus have further adverse effect on children’s identity.380 This is a particularly egregious violation as IICIU reports they uncovered “no indication that it was impossible to allow the children to relocate to territory under Ukrainian Government control”.381 The failure to involve children in the decision making process that concerns them also is a violation of Article 12 of the UNCRC through the denial of children’s right to participate in decision making processes concerning them. The Mission considers that multiple violations of this obligation have been perpetrated by the Russian authorities not only when decisions to deport children have been taken but also subsequently when children have been placed and required to live in Russian environment, attend Russian schools, when the status of their nationalities have been altered and when some of such children have been placed in fostering arrangements and even adopted.

Furthermore and finally, this investigation has found no evidence of any meaningful attempt by the Russian Federation to comply with its obligations under Article 8 (2) of the UNCRC, namely, to establish a legal mechanism for the reestablishment of the child’s identity.382 Recalling that this provision requires such steps to be undertaken speedily, it is evident that it has been and continues to be violated by the Russian Federation.383

2. THE RIGHT TO FAMILY

Closely linked to the child’s right to identity is the child’s right to family which broadly encompasses the right not to be separated from parents (Article 9 of the UNCRC), the right to family reunification (Article 10 of the UNCRC) and the right to family environment, including adoption (Articles 20 and 21 of the UNCRC). These provisions make it clear that a State can only separate a child from his/her parents if that is required by the best interests of the child in question. Thus, the UNCRC recognizes that the family is a “fundamental group of society and the natural environment for the growth and well-being of its members and particularly children”383 and the CRC clearly states that “preventing family separation and preserving family unit are important components of the child protection system”.384 This is particularly important for younger children since “young children are especially vulnerable to adverse consequences of separations because of their physical dependence on and emotional attachment to their parents/primary caregivers”.385

This obliges all authorities to act in a way that would preserve the unity of the family as much as possible and is permitted by the best interests of the child. Consequently, “given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child”.386 Moreover, if a separation must take place as a measure of last resort to preserve the best interests of the child, the State “must guarantee that the situation of the child and his or her family has been assessed, where possible, by a multidisciplinary team of well-trained professionals with appropriate judicial involvement, in conformity with article 9 of the Convention, ensuring that no other option can fulfil the child’s best interests”.387 Furthermore, when such separation must take place, the State is obliged to ensure that “the child maintains the linkages and relations with his or her parents and family (siblings, relatives and persons with whom the child has had strong personal relationships) unless this is contrary to the child’s best interests”.388

In other words, the international human rights law bestows each child with a right to grow up in a family and there is a presumption that this is in the best interests of the child. There may be instances when separation is in the best interests of the child, but each such instance must follow a careful determination of whether the test of best interests of the child is met. This is supported by the UN Guidelines for the Alternative Care389 which seek to ensure that children are not placed in alternative care unnecessarily, underlying that “the family being the fundamental group of society and the natural environment for the growth, well-being and protection of children, efforts should primarily be directed to enabling the child to remain in or return to the care of his/her parents, or when appropriate, other close family members”.390 It is important to recall that these Guidelines continue to apply in situations of emergency arising from natural and man-made disasters, including international and non-international armed conflicts, as well as foreign occupation391 and therefore are of particular relevance to the Mission. Noting the exceptionality of separation of children from their families, the Guidelines underline that all decisions concerning alternative care must made on a case-by-case basis and grounded in the best interests of the child,392 which echo the views of the CRC.393 Similarly, both the Guidelines and the CRC require that the views of the child must be taken into account as part of the right of the child to be heard and to have his/her views taken into account in accordance with his/her age and maturity.394

To further the aims of Article 9 of the UNCRC, Article 10 of the UNCRC envisages the right to family reunification which requires States to facilitate the family reunification in a positive, humane, and expeditious manner.395 This requires States to act in a certain manner and their discretion therefore is more limited. Thus, the child’s right to reunification with the family encapsulated in Article 10 of the UNCRC creates a presumption and expectation that States will act in good faith to facilitate the reunification of children with their parents and failure to do so carry a heavy burden to justify such a decision.396

Further, turning to the adoption, Article 21 of the UNCRC require that when adoption is being considered, the best interests of the child are not just a primary consideration but a paramount consideration which means that the best interests of the child is the determining factor when adoption is being considered.397 Moreover, subparagraphs (a) to (e) of Article 21 imposes compulsory minimum procedural safeguards, including an obligation to ensure that the adoption is authorized only by competent authorities which in turn must determine this in accordance with applicable law and on the basis of all pertinent and reliable information, including ascertaining of the status of child’s parents, relatives and legal guardians and their consent398; as well as in case of inter-country adoption, it is incumbent to ascertain that a child cannot be cared for in a suitable manner in child’s country of origin399.

Finally, similarly to Article 8 of the UNCRC which recognizes the importance of wider family as part of child’s identity, also the right to family environment, comprised of numerous UNCRC provisions, all acknowledges that preservation of family environment encompasses the preservation of the family ties of the child in a wider sense and to this end, “ties apply to the extended family, such as grandparents, uncles/aunts as well friends, school and the wider environment and are particularly relevant in cases where parents are separated and live in different places”.400

The Mission received credible evidence of numerous violations of these provisions by the Russian Federation. There are reports of the children being separated from their parents at filtration points, as well as children not being returned promptly from the so-called recreation camps. As reported by the IICIU in March 2023 “in all the incidents examined by the Commission, the onus to trace and find parents or family members fell primarily on the children. Parents and relatives encountered considerable logistical, financial, and security challenges in retrieving their children. In some cases, it took weeks or months for families to be reunited. Witnesses told the Commission that many of the smaller children transferred have have not been able to establish contact with their families and might, as a consequence, lose contact with them indefinitely”.401 The IICIU notes prolonged and even indefinite family separations402 and children expressing a profound fear of being permanently separated from parents, guardians, or relatives.403

For example, the Mission received reports of a father whose case has been widely reported in the mass media404 as he was separated from his three children, aged 12, 7 and 5, at a filtration point by the Russian forces although there was nobody else to look after the children. Following some 45 days of detention, he was released without any information about his children or their whereabouts. His eldest managed to contact him, only to tell the father that he has five days to collect them, or they would be either placed in an institution or adopted. After complying with all the requirements of Russian authorities to prove that he is the legal guardian of the children and raising the requisite funds to travel to Moscow, the father was able to reclaim his children. This report starkly illustrates the failure of the Russian authorities to respect the rights of the child: not only were the three children separated from their sole parent, there were no attempts made to locate whether there was any next of kin who would be able to look after the children nor was there a record kept as to where the children would be taken or the father provided with this information upon his release or assisted with the reunification with his children. In this case it is plainly evident that the Russian authorities knew that the three children had a parent as well as had the whereabouts of that parent and knew of his release. Yet, if the father had not made the effort to locate children and travel to collect them, the Russian authorities would have likely either institutionalized these children or placed them in foster care. This also correlates with the findings of the IICIU that “Russian authorities required the parents or the legal guardians to travel in person to pick up their children. This involved long and complicated travel and security risks. Not all parents have therefore been able to do so”.405 This constitutes multiple violations of the rights of the child, including the right not to be separated from parents as well as the obligation to assist with reunification.406

Another case of the complexities created by the Russian authorities to de facto obstruct family reunification was reported to the Mission. This is a report407 of a single mother who was persuaded to send her son to a so-called recreation camp. The Russian authorities subsequently refused to return her son, requesting the mother to travel to collect him instead. Following a long, expensive, and logistically complex journey, she was asked of the whereabouts of the child’s father. Despite her producing documents that she is a single mother, the authorities requested a specific document providing that there is no known father of the child. The mother was required to travel back to Ukraine to obtain such a document and only upon her return with such document was she able to collect her son.

Further complications are faced by such families who seek to locate their children who have been placed in foster families (приемные семьи) about which the Mission received numerous statements.408 While the decision on fostering is an administrative decision by the social care authorities in the Russian Federation, it is nevertheless clear that to dissolve this is a more complex process which, in turn, impedes family reunification and thus contradicts Articles 9 and 10 of the UNCRC.

The Mission notes that foster parents would usually receive social care benefits, monetary payments, for taking children into their care.409 While this is not unusual in most jurisdictions globally, what is disturbing is that there are some suggestions that these social benefits acted as an ‘incentive’ to take more Ukrainian children into foster care.410

The Mission also notes the enormous complexities of individual cases of children transgressing numerous provisions of the UNCRC. Thus, for example, the HRMMU report a case of a boy who “was transferred from the Mariupol area, where he lived with relatives, to Donetsk and then to the Russian Federation, despite his family ties in Ukraine. He was placed in a foster family in the Moscow region and issued a Russian passport. The Russian Presidential Commissioner for the Rights of the Child reported that she personally took into foster care one of the boys from the group, and that he had received Russian citizenship in September”.411 This correlates to the findings of the IICIU which reports on Ukrainian children being transferred to Russia where they are subjected to “granting of Russian citizenship and the placement of children in foster families, which appears to create a framework in which some of the children may end up remaining permanently in the Russian Federation”.412

In this regard, there are multiple violations of the rights of the child concerned, including the right to identity under Article 8 of the UNCRC as well as rights under Articles 9 and 10 to family unity. Moreover, the Mission once again particularly notes numerous legislative and executive acts adopted in the Russian Federation, both at federal and provincial levels, concerning the facilitation of granting the Russian citizenship to some categories of Ukrainian children. The precise long-lasting effects of granting the children citizenship of the Russian Federation at this stage of course are unknown but it is fair to conclude that such a step is not compatible with the obligations arising in respect to Russia regarding the family rights of the Ukrainian children it has deported and in fact constitute a further violation of the child’s right not to be separated from their parents as well as the obligation of the Russian Federation to assist with the reunification of families, as stipulated in Articles 9 and 10 of the UNCRC.

Turning to the reports received concerning the adoption of children deported from Ukraine to Russia, the Mission recalls that the highest standard of the regard to the best interests of child in the adoption as required by Article 21 of the UNCRC, namely, the best interests of the child must be the paramount consideration.413 As already noted in Section IV.D, the legal provisions adopted by the Russian Federation concerning the simplified procedure for adopting Russian citizenship as well as for relinquishing Ukrainian citizenship which include provisions for children, have profound enabling effect in other areas of life. This is especially evident in the case of adoption (усыновлеeние, удочерeние). As stipulated by Section 19 of the Family Code of Russia,414 adoption is only possible with respect to children who are citizens of the Russian Federation. It is however significant to recall that the adoption process in the Russian Federation allows for fundamental changes to be made vis-à-vis the adopted child, including the change of name, date and place of birth and even reissuance of birth certificate in the line with these changes. Further to that, adoption can only be established through court proceedings and the principle of secrecy of adoption also operates in the Russian Federation. Consequently, it becomes de facto impossible to ascertain of the true identities of the adopted children. While the Mission notes the reports of other international mechanisms expressing concern over this415 and received testimonies that adoptions of children deported from Ukraine have taken place416 and indeed, there are many such reports in the media,417 the Mission was unable to establish the exact numbers of affected children. It is however clear that such adoptions would be a violation of Article 21 of the UNCRC.

The Mission concludes that multiple and overlapping violations of children’s rights under Articles 9, 10 and 21 of the UNCRC pertaining to family unity of the child have taken place as a result of Russia’s practice of deporting children from Ukraine. Alongside the prima facie breach of the right to family unity which arises in every case when a child is separated from her/his parents unnecessarily, the Russian Federation has done nothing to facilitate the reunification of families in breach of its obligations under Articles 9 and 10 of the UNCRC. On the contrary, the Mission has received numerous testimonies of obstacles placed in the path of parents seeking to reunite with their children, including requesting parents to travel in person to the Russian Federation (logistically and financially hugely complex for vast majority of such parents) to producing numerous documents to prove their parentship over the child in question. This has been yet more complex for parents whose children have been placed in fostering arrangements. The Mission is particularly disturbed at the testimony of cases of adoption of Ukrainian children which have been carried out in violation of Article 21 of the UNCRC. To this end, the easing of the requirements for obtaining Russian citizenship appears to have acted as a facilitator for adoption in some cases.

3. THE RIGHT TO EDUCATION

Also, closely linked to the child’s right to identity is the child’s right to education, provided for in Article 28 of the UNCRC and especially the stipulations concerning the aims of education as set out in Article 29 of the UNCRC. Particularly significant for the purposes of the present report is Article 29(1) (c) of the UNCRC which require that the child’s education is directed towards the “development of respect for child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilisations different from his or her own”. Therefore, the obligation of a State vis-à-vis child’s education does not stop at the provision of education but, by virtue of prescription in Article 29 of the UNCRC, extends to the quality of education which, in turn, has a profound impact upon the formation of child’s identity.418

The Mission received consistent accounts that the Ukrainian children deported are provided with education by the Russian authorities. The challenge with Articles 28 and 29 of the UNCRC however arises as to the content of the education provided. As has been extensively noted above (see Section VI.C.1 on identity), the children are subject to Russian education standard; there are also credible reports on special measures taken to ensure an education of Ukrainian children that is ‘patriotic’ towards Russia.419 It is therefore evident that the approach to education of the Ukrainian children by the Russian authorities violates these children’s right to education as set out in Articles 28 and 29 of the UNCRC.

4. THE RIGHT TO INFORMATION

It is rather similar with the child’s right to information as with the right to education examined in the previous section. Article 17 of the UNCRC sets out the child’s right to information, obliging States to “ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.”. This obligation also extends to digital forms of information and the CRC has particularly requested States to ensure age appropriate, diverse content to all children, including in the language a child can understand.420

While the Mission did not receive reports that the Ukrainian children deported would be denied access to information per se, it is widely known and accepted that the Russian information space is rather limited and does not provide for diversity of views, especially of the views which do not follow the line of the authorities.421 It is particularly challenging when it comes to the obligation to provide diverse materials from international sources as well as material in a language which a child can understand – the availability of Ukrainian language resources on the territory of Russian Federation is exceptionally limited. The Mission thus concludes that the right to information of Ukrainian children deported to Russia under Article 17 of the UNCRC is violated.

5. THE RIGHT TO REST, LEISURE, PLAY, RECREATION AND PARTICIPATION IN CULTURAL LIFE AND ARTS

The child’s right to rest, leisure, play, recreation and participation in cultural life and arts, set out in Article 31 of the UNCRC and its proper implementation also has a profound impact upon the child’s identity. The CRC has particularly noted the importance of participation in cultural life emphasizing that children “inherit and experience the cultural and artistic life of their family, community and society, and through that process, they discover and forge their own sense of identity and, in turn, contribute to the stimulation and sustainability of cultural life and traditional arts”.422 It is important to recall that these activities cannot be imposed upon a child. Indeed, as stressed by the CRC, “compulsory or enforced games and sports or compulsory involvement in a youth organization, for example, do not constitute recreation”.423

The Mission has received several consistent reports concerning the allegations of violations of children’s rights under Article 31 of the UNCRC. As already noted above, the children are commonly subjected to military education, which extends to their leisure time as part of the mainstream education and/or an after-school activity,424 which bear the hallmarks of “compulsory or enforced games” as stipulated by the CRC. Moreover, there is evidence that children are required to join youth organizations such as military patriotic clubs of various cities and “Cossack Cadet Corps”.425 Thus, for example, the Deputy Prime Minister of the Republic of Tatarstan, Ms. Leyla Fazleeva in August 2022 noted that “all camps... are aimed at the patriotic upbringing of youth, development of communication skills, and preservation of [Russian] cultural heritage“.426 In terms of the provision for participation in cultural life, this is limited to the cultural life of Russia rather than “cultural and artistic life of their family, community and society” as required by Article 31 of the UNCRC.427 The Mission was unable to establish a single instance when even an element of the Ukrainian culture would have been allowed by the Russian authorities. The Mission thus opines the children’s rights under Article 31 of the UNCRC have been violated.

6. THE RIGHT TO THOUGHT, CONSCIENCE AND RELIGION

The child’s right to thought, conscience and religion is protected by Article 14 of the UNCRC and there is a fundamental obligation upon a State to respect child’s freedom of thought, conscience and religion. This also presumes the right of the child to choose own religion.428 Moreover, “States parties should ensure that children are not penalized for their religion or beliefs or have their future opportunities in any other way restricted. The exercise of children’s right to manifest their religion or beliefs in the digital environment may be subject only to limitations that are lawful, necessary and proportionate”.429

The Mission received numerous accounts of the violations of the right to thought, conscience and religion of the Ukrainian children in Russia.430 Noting the split of the Ukrainian Orthodox Church from Moscow Patriarchate in May 2022,431 it is clear that the two churches are separate identities. Yet, for example, there are reports of children having “educational” conversations with representatives of the Russian Orthodox Church of the Moscow Patriarchate as part of their “patriotic” education.432 Moreover, given the dominant anti-Ukraine narrative in the Russian Federation, it is safe to conclude that the there are no opportunities for Ukrainian children to attend Ukrainian Orthodox churches or indeed meet with religious leaders of their church. Similarly, as evidence by the discussion in Section VI.C.1 on the right to identity, the Ukrainian children deported are required to follow the Russian education standard as well as being subjected to ‘patriotic’ educational measures.433 All these cannot be reconciled with the freedom of thought and conscience protected by Article 14 of the UNCRC.

Consequently, noting all the above, the Mission is of the view that the right to freedom of right to thought, conscience and religion of the Ukrainian children as set out in Article 14 of the UNCRC has been violated.

7. THE RIGHT TO HEALTH

Article 24 of the UNCRC recognizes the right of every child to the highest attainable standard of health and to this end, it is crucial to underscore that this right also encompasses mental health provision as well.434 The obligation imposed by Article 24 of the UNCRC upon States is recognized to include an obligation to respect, protect and fulfil the child’s right to health435 and the CRC has recognized the particularly negative effects of armed conflict upon the health of children.436 The Mission has serious reservations about the profoundly negative effects that the practice of deportations as well as the treatment that has taken place since have on the physical and mental well-being of the Ukrainian children.437 The Mission also takes note of the reports of treatment provided to some children in the absence of a consent from their parents or indeed without even information the parents as to the treatment438 as well as lack of medical care provided to children who went to the so-called recreation camps.439 The Mission concludes that the violations of Russia’s obligations under Article 24 of the UNCRC are very likely.

8. THE RIGHT TO LIBERTY AND SECURITY

Article 37 (b) of the UNCRC prohibits unlawful or arbitrary deprivation of child’s liberty and requires that any detention of a child be used as a measure of last resort and for the shortest period of time. In this regard, it must be recalled that the United Nations Working Group on Arbitrary Detention (WGAD) has clearly stated that “deprivation of liberty is not only a question of legal definition, but also of fact. If the person concerned is not at liberty to leave [a place of detention], then all the appropriate safeguards that are in place to guard against arbitrary detention must be respected”.440 To this end it is also important to recall that deprivation of liberty can and does occur in settings other than criminal justice and, as noted by the Human Rights Committee “examples of deprivation of liberty include police custody, arraigo, remand detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization, institutional custody of children and confinement to a restricted area of an airport, as well as being involuntarily transported”.441 Moreover, it is important to recall that even if a deprivation of liberty is lawful in accordance with the domestic legislation, it can still be considered arbitrary if it infringes upon the international norms concerning the permitted limitations to the right to personal liberty.442

In the remits of the present Mission this raises a very serious question as to whether the Ukrainian children deported to the temporarily occupied territories and/or Russian Federation have been in fact deprived of their liberty. This is mainly the case in the numerous instances of children who remain in the so-called recreation camps or who have been institutionalized in Russia. Moreover, the Mission wishes to underscore that deprivation of liberty may also take place in private settings, including foster families/homes, and it is the duty of the State to ensure that there are effective safeguards to guard against arbitrary deprivation of liberty in such cases. As such, at the very minimum, the Russian authorities are obliged to ensure that all children are provided with the possibility to challenge their deprivation of liberty. The Mission has not been able to establish that this is the case and consequently is of the view that violations of Article 37 (b) of the UNCRC are very likely to have taken place.

D. CRIMES AGAINST HUMANITY

This definition of crimes against humanity, as set out in Article 7(1) of the Rome Statute, includes, as already stated, the crimes of “deportation or forcible transfer of population”.443

For this crime to occur, three elements need to be present: (1) the acts must take place in the specific context of a widespread or systematic attack against civilian population; (2) the perpetrators must have the knowledge of carrying out such an attack, and (3) there must be deportation or forcible transfer of civilian population. It is important to note that such forced displacement does not necessarily require use of force, but may also include threats of force or coercion, duress or indeed abuse of power against such persons or by taking advantage of a coercive environment.444 Indeed, as stated by the ICC, while individuals may agree, or even request, to be removed from an area, “consent must be real in the sense that it is given voluntarily and as a result of the individual’s free will”.445

The Mission recalls that by virtue of Article 7(2)(a) of the Rome Statute, an “attack directed against a civilian population” means “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”. The attack does not need to be of military nature but may consist in certain administrative measures, such as a large-scale displacement of the population. “Widespread” refers to “the attack being conducted on a large scale as well as to the high number of victims it caused”,446 systematic refers to “the organised character of the acts of violence and the improbability of their random occurrence”.447 The previous two Missions established that “some patterns of violent acts violating IHRL, which have been repeatedly documented during the conflict, such as targeted killing, enforced disappearance or abductions of civilians”448 do indeed, due to their extent and severity, meet the definition of the widespread or systematic attack against a civilian population, thus providing the contextual element for crimes against humanity.

The Mission notes that there is credible evidence to conclude that the deportation of Ukrainian children undertaken by the Russian authorities may contain elements of this crime against humanity. As evidenced by the present report, while the Mission has not been able to ascertain the exact number of children thus deported, it is clear that these numbers are measured in several thousands. Moreover, except for few instances when the transportation of children could be justified due to imminent threat to life owing to ongoing armed conflict, the Mission has been able to establish with certainty that by and large the deportation of children cannot be qualified as voluntary. Even in those instances when children have been sent to the so-called recreation camps with the consent of their parents or other legal guardians, this consent has not been entirely voluntary.449 The Russian authorities have used persuasion, manipulated the desperate economic situation of the families, and even resorted to threats to elicit the agreement of parents. In other cases, such as separation of children from their parents during filtration, it is quite clear that this has been forceful. The Mission thus concludes that the practice of the forcible transfer and/or deportation of Ukrainian children to the temporarily occupied territories and to the territory of the Russian Federation may amount to a crime against humanity of “deportation or forcible transfer of population”.

E. CONCLUSIONS

The Mission concluded that numerous and overlapping violations of the rights of the children deported to the Russian Federation have taken place. Not only has the Russian Federation manifestly violated the best interests of these children repeatedly, it has also denied their right to identity, their right to family, their right to unite with their family as well as violated their rights to education, access to information, right to rest, leisure, play, recreation and participation in cultural life and arts as well as right to thought, conscience and religion, right to health, and the right to liberty and security. These are ongoing violations of Articles 3, 8, 9, 10, 12, 14, 17, 20, 21, 24, 28, 29, 31 and 37 (b) of the UNCRC. The cumulative effects of these multiple violations also give rise to very serious concerns that the rights of these children to be free from torture and ill-treatment and other inhuman or degrading treatment or punishment (Article 37 (a) of the UNCRC) have been violated. The Mission also concludes that the practice of the forcible transfer and/or deportation of Ukrainian children to the temporarily occupied territories and to the territory of the Russian Federation may amount to a crime against humanity of “deportation or forcible transfer of population”.