Moscow Mechanism Report (2023)

VII. Accountability for Violations of IHL and IHRL and for Potential War Crimes and Crimes Against Humanity

In the previous sections the Mission established that the forcible transfer and/or deportation of Ukrainian children to the temporarily occupied territories and to the territory of the Russian Federation has involved and continues to involve various violations of IHL and IHRL. It has also found credible evidence to argue that some of these violations could, if responsible individuals are identified, amount to war crimes and crimes against humanity. In this section, in line with the mandate of “collecting, consolidating, and analyzing /…/ information with a view to /…/ provide the information to relevant accountability mechanisms, as well as national, regional, or international courts or tribunals that have, or may in future have, jurisdiction”, the Mission identifies the obligations arising for States in the three main areas of international law (IHL, IHRL, ICL) relevant for this report and it provides an overview of accountability mechanisms available in these three spheres.

A. ACCOUNTABILITY UNDER IHL

IHL imposes on States a series of obligations, both by means of specific treaty provisions and through customary rules. These obligations apply not only to the Parties to the conflict but also, to a large extent, to other States. There are, at the moment, no specific IHL accountability mechanisms similar to those established under IHRL and ICL.

1. OBLIGATIONS OF STATES UNDER IHL

By virtue of Common Article 1 of the four GC, all States have the obligation “to respect and to ensure respect for the present Convention in all circumstances”. This obligation is not limited to the Parties to the conflict but it also, in its latter part, extends to other States. The obligation to respect means the obligation for the State to do everything that can realistically be done in the given circumstances to ensure that the rules of IHL are respected by its armed forces, its other organs as well as other persons or groups acting in fact on its instructions, or under its direction or control. The obligation to ensure respect means the obligation for the State, including those not Parties to the conflict, to take all possible measures, given the circumstances, to ensure that the rules of IHL are respected in the conflict. The obligation to respect and to ensure respect is considered a customary rule.450

As noted in the ICRC Study on Customary IHL, “the obligation of States to respect international humanitarian law is part of their general obligation to respect international law”.451 The violations of the obligation to respect IHL, i.e., the breach of certain rules of IHL attributable to a State triggers the responsibility of this State under the classical rules on the State responsibility.452 It is important to recall that States are responsible for acts committed by their organs even if when carrying out such acts, the organs exceed their authority or contravene instructions.453 It is also important to once again recall that States are responsible for acts carried out by a person or group of persons who are “in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”.454

The State responsible for violations of IHL has new, additional obligations. First, it has the continued duty to perform the obligation breached.455 Second, it is obliged to cease the violation and to offer appropriate assurances and guarantees of non-repetition.456 Third, it has to provide full reparation – in the form of restitution, compensation or satisfaction – for the injury caused by the internationally wrongful act.457

In the case at hand, the State responsible for the violations of IHL committed by, and in the course of, the forcible transfer and/or deportation of Ukrainian children to the temporarily occupied territories and to the Russian Federation, i.e., Russia, is obliged to:

1. respect the relevant rules of IHL applicable to this area;
2. immediately terminate those instances of the displacement of Ukrainian children that have been found to be unlawful, to immediately stop violating the rules of IHL applicable during the displacement, and to offer assurances and guarantees of non-repetition of such acts; and
3. provide reparation, involving inter alia the reunification of children displaced in violation of IHL with their families and their return to home areas or to other safe places, and the provision of financial compensation to Ukraine and arguably to individual affected children and families, and the provision of adequate satisfaction (apology, criminal prosecution of individuals responsible for the violations of IHL).

The Mission recalls once again that under Article 49(2) of the GCIV persons who have been evacuated from occupied territories “shall be transferred back to their homes as soon as hostilities in the area in question have ceased”. It also recalls that the ICRC has identified the rule under which “displaced persons 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”458 as a rule of customary IHL.

All other States are obliged not to encourage violations of IHL by Parties to the conflict and to “exert their influence, to the degree possible, to stop violations of international humanitarian law”.459 This implies a negative obligation not to encourage, aid or assist in the commission of violations of IHL and a positive obligation to take measures, either collectively or individually, to prevent or end such violations. Thus, for instance, third States are not allowed to send Ukrainian children that find themselves in their territory to the territory of Russia.

2. ACCOUNTABILITY MECHANISMS UNDER IHL

IHL does not establish any specific accountability mechanisms similar to the procedures before the judicial and quasi-judicial bodies under IHRL or the ICC under ICL. Yet, there are certain specific institutions mandated to provide various accountability avenues. One of the specific institutions established by IHL, more specifically by Article 90 of the API to the GCs, is the International Fact-Finding Commission (IFFC). The IFFC is a permanent body composed of 15 experts which may investigate allegations of grave breaches and serious violations of IHL committed in international armed conflicts. As was recalled in the previous reports issued under the Moscow Mechanism, in spite of being set up already in 1991, the IFFC has so far never been used in practice. Due to the withdrawal from the IFFC mechanism by the Russian Federation in 2019, it is not likely that the current conflict would mark a shift in this respect. Instead, the fact-finding tasks related to the conflict in Ukraine have been entrusted to ad hoc bodies, namely the three missions of experts established in 2022-2023 under the OSCE Moscow Mechanism and the Independent International Commission of Inquiry on Ukraine, set up in March 2022 by the UN Human Rights Council.

Another institution foreseen by IHL that could play a useful role in the area considered in this report but which has not been (thus far) put in place either, is that of protecting powers. Protecting powers are third States designated by one party to the conflict and accepted by the other party to the conflict and tasked to safeguard the interests of the former party and of its citizens.460 Protecting powers ensure indirect communication between the parties to a conflict when the diplomatic relations between them are severed. Several of the provision of IHL applicable to children and to transfer of populations, namely Article 24 and 49 of the GCIV and Article 78 of the API, explicitly mention protecting powers and attribute some tasks to them, including that of supervising evacuation of children.461 Yet, the institute of protecting power has been in principle out of use since the times of the World War II and it has not been employed in the context of the current conflict either.

Article 5(3) of the API clearly stipulates that in the absence of a designation or acceptance of protecting powers, the International Committee of the Red Cross (ICRC) shall be recognized as their substitute. It is indeed a standard practice in the armed conflicts of the past decades that the ICRC assumes tasks entrusted to protecting powers. Moreover, the ICRC also exercises a host of other activities under the mandate conferred on it by the four GCs and the API. Since the ICRC operates under the principle of confidentiality, it is usually not possible to learn the full extent of its activities in a particular conflict, or with respect to a particular issue.

The ICRC has however issued several statements confirming that it has been dealing with the issue under consideration by this Mission. In Spring 2022, the ICRC set up a special bureau of the Central Tracing Agency (CTA) for the humanitarian crisis in Ukraine. The CTC Bureau “collects, centralizes, and transmits information about the fate and whereabouts of people, both military and civilians deprived of their liberty, who have fallen in the hands of the enemy”.462 It also “helps any families who have been separated due to the armed conflict to find their missing relatives”.463 In April 2023, the ICRC spokesman confirmed that “in line with its mandate to restore contact between separated families and facilitate reunification where feasible”,464 the ICRC was in contact with Ms. Lvova-Belova. No further details about the nature of these contacts and the specific role that the ICRC might have in the tracing and the return of Ukrainian children could be obtained by the Mission.

B. ACCOUNTABILITY UNDER IHRL

IHRL also imposes various obligations on States, primarily the State which has a jurisdiction over a particular individual(s). In case of violations of IHRL, the rules on the responsibility of the State apply as well. Yet, they are modified – mostly for the benefit of individual victims of IHRL violations – through specific human rights treaties. Moreover, various political as well as quasi-judicial and, even, judicial bodies have been set up at the universal and regional level to monitor the compliance with the obligations stemming from IHRL and to consider individual or inter-State complaints alleging violations of IHRL.

1. OBLIGATIONS OF STATES UNDER IHRL

Under IHRL, States have both negative and positive obligations. The negative obligations consist of the obligation to respect human rights, i.e., to refrain from interfering with such rights in a way that could not be justified under the relevant human rights instrument. The positive obligations comprise the obligation to protect human rights, i.e., to ensure that the enjoyment of human rights by an individual is not compromised by an action of or failure to act by other individuals, and the obligation to fulfil human rights, i.e., to take positive actions to ensure the enjoyment of such rights by individuals. The positive obligations also include the obligations to duly investigate any alleged violations of IHRL. The State has those obligations with respect to “all individuals within its territory and subject to its jurisdiction”.465 As explained in Section III.C.3, jurisdiction is not limited to the territory of the State but may extend beyond it, either due to the exercise of an effective control over some parts of the territories of another State or due to the specific control over concrete individuals.

Violations of IHRL give rise to the responsibility of the State to which such violations are attributed. Again, the State is responsible for the acts or omissions of its own organs as well as those who act on its behalf; it is also responsible for acts or omissions by individuals or groups under its control. The State may also be responsible for acts carried out by individuals and groups that are not under its control, if it fails to display adequate due diligence to prevent such acts (under the obligation to protect). The responsible State again remains bound by the continued duty to perform the obligation breached. It also has the obligation to cease the violation, offer appropriate assurances and guarantees of non-repetition and provide adequate reparations which can and must take various forms. The content of these obligations, including the form and beneficiary of reparation, are specified in various human rights treaties. Those treaties typically stipulate that in addition to other State parties, individual victims of violations are also entitled to bring claims to relevant international or national bodies and to receive reparations.

In the IHRL there is no provision similar to the Common Article 1 of the GCs imposing the obligation to “ensure respect” for IHRL on third States. Yet, human rights are of erga omnes (or, in case of treaty provisions, erga omnes partes) nature. As such, they are “the concern of all States. /…/ all States can be held to have a legal interest in their protection”.466 The most fundamental human rights, such as the right to life or the prohibition of torture, are moreover considered to belong to the imperative norms of international law (jus cogens). Serious breaches of jus cogens entail the obligations of all States: a) not to recognize as lawful a situation created by such a serious breach, nor render aid or assistance in maintaining this situation; b) to cooperate to end through lawful means any such serious breaches.

2. ACCOUNTABILITY MECHANISMS UNDER IHRL

IHRL establishes various political as well as quasi-judicial and, even, judicial bodies to monitor the compliance by States with the obligations stemming from IHRL and/or to consider individual or inter-State complaints alleging violations of IHRL. Such bodies exist both at the universal and at the regional level.

At the universal level, the UN Human Rights Council (HRC), composed by the representatives of 47 States,467 may address any human rights violations and make recommendations on them. The HRC has already taken several steps in response to the act of aggression by the Russian Federation against Ukraine and the allegations of serious breaches of IHRL (and of IHL) committed in the ensuing conflict.

First, in March 2022, it established the Independent International Commission of Inquiry on Ukraine (IICIU) and having received its report in March 2023, it decided to extend its mandate for a further year.468 Secondly, on 12 May 2022, it held a special session on the deterioration of human rights situation in Ukraine stemming from the Russian aggression. The resolution adopted during this session demanded all parties to the conflict “to refrain from any human rights violations and abuses in Ukraine”.469 Thirdly, in October 2022, the HRC established the mandate of the Special Rapporteur on the situation of human rights in the Russian Federation470 and, in April 2023, appointed Ms. Mariana Katzarova (Bulgaria) as the first mandate holder. Fourthly, on 4 April 2023, the HRC adopted Resolution 52/32, on the situation of human rights in Ukraine stemming from the Russian aggression. The resolution explicitly refers to the “unlawful forcible transfer and deportation of civilians and other protected persons within Ukraine or to the Russian Federation, as appropriate, including children”,471 calling upon the Russian Federation to cease this practice, provide humanitarian organizations with unimpeded, immediate, sustained and safe access of humanitarian organizations to deported Ukrainians and provide reliable and comprehensive information about their numbers and whereabouts. Following this resolution, the HRC may ask the IICIU to prepare a special report on this issue and it may also refer the issue to the attention of the UN General Assembly.

In addition to the HRC as a political body, the UN human rights system encompasses nine human rights treaty bodies, composed of individual experts, established within individual human rights treaties and their optional protocols. These bodies monitor the implementation of and respect for the relevant treaties through the consideration of national reports that States have to submit on a periodic basis. They also consider individual and/or inter-State complaints alleging violations of rights guaranteed by individual treaties, but this competence is usually granted by optional protocols and/or subject to an opt-in mechanism. The Russian Federation has recognized the competence of treaty bodies to consider individual complaints under the ICCPR and the CAT but not under the UNCRC. Children who allege been victims of forcible transfer or deportation from Ukraine to the temporarily occupied territories or to the territory of the Russian Federation, or their parents, other relatives or legal guardians, consequently could submit application to the UN Human Rights Committee established under the ICCPR or the UN Committee against Torture, established under CAT, although this procedure is limited to cases where there is “reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party”.472

A further avenue of redress may be found in the work of the Ukrainian National Preventive Mechanism of (NPM), established in accordance with the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).473 As stipulated in Article 4 of OPCAT, NPMs are to have access to all places of deprivation of liberty to ascertain that those in such facilities are treated humanely. It is important to recall that the term “deprivation of liberty” does not only encompass the institutions from the criminal justice system such as prisons and police stations, but also other settings such as medical care (for example, psychiatric institutions) and social care.474 The latter certainly includes children’s institutions and homes and consequently, the mandate of the Ukrainian NPM could be usefully employed to ascertain of the treatment of the children in question. While the Russian Federation is not a State party to OPCAT, given it has custody of Ukrainian citizens (children) in its childcare institutions, the mandate of the Ukrainian NPM could be extended to cover such facilities and the treatment of Ukrainian children in them.

The HRC has also established a system of Special Procedures, which is currently comprised of 45 thematic and 14 country-specific mandates – Special Rapporteurs or Working Groups. The Special Procedures enjoy a universal coverage in that, by virtue of their mandates being established by the HRC and therefore being anchored in the UN Charter, they can engage with any State irrespective of what treaties the State in question has ratified or not. This is a significant advantage if compared with the UN treaty bodies as the latter can only engage with States parties to their respective treaties.

The Special Procedures do not have strict enforcement powers; however, they can raise issues of concern with the State in question through the urgent communications procedure. Some of them, such as the Working Group on Arbitrary Detention (WGAD), also have quasi-judicial functions and can receive allegations from individuals, issuing Opinions as a result. There are number of Special Procedure mandate holders that are of particular relevance to the subject matter of the present Mission. In terms of country-specific mandate, the newly established Special Rapporteur on the situation of human rights in the Russian Federation has already been noted. In terms of thematic mandates, in addition to the WGAD, other relevant mandates include the Special Rapporteur on the Right to Education, the Working Group on Enforced or Involuntary Disappearances, Special Rapporteur on freedom of religion or belief and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. It must be noted that both States and individuals may engage the Special Procedures.

At the regional level, the most robust human rights system exists within the Council of Europe, based on the European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR). The Mission recalls that due to the exclusion of the Russian Federation from the Council of Europe, the country ceased to be bound by the ECHR on 16 September 2022, though the ECtHR continues to have the competence to consider cases related to events having occurred within the jurisdiction of the Russian Federation prior to that date. As noted in the previous report, since 2014, several inter-State applications have been submitted by Ukraine against the Russian Federation (and one by the Russian Federation against Ukraine). On 30 November 2022, the ECtHR declared partially admissible the application by Ukraine and the Netherlands v. Russia submitted in 2014.475 Although the application primarily focuses on the downing of Malaysia Airlines flight MH17, it also contains allegations of other violations of the ECtHR. One of them pertains to the alleged administrative practice in respect of the abduction and transfer to Russia for a period of several days of three groups of children placed in care homes, orphanages and foster care in the so-called DPR and LPR. This part of the application, alleging violations of Articles 3, 5 and 8 of the ECHR and of Article 2 of Protocol No. 4 to the ECHR was declared admissible.476 On 17 February 2023, the ECtHR decided to join to these applications a new application by Ukraine (Ukraine v. Russia (X)) which concerns allegations of mass and gross human-rights violations committed by the Russian Federation in its military operations on the territory of Ukraine since 24 February 2022. It is not clear whether this application contains any allegations related to the forcible transfer or deportation of Ukrainian children to the temporarily occupied territories or to the territory of the Russian Federation.

Under the conditions set in Articles 34 and 35 of the ECHR, individuals considering themselves victims of violations of human rights enshrined in the ECHR can submit an individual application to the ECtHR. The Mission was not in the position to verify whether any such individual applications pertaining specifically to the topic under consideration in this report have been submitted. The Mission also recalls that on 11 June 2022, the Russian Federation adopted a law stipulating that the country “will not implement decisions of the European Court of Human Rights entering into force after 15 March 2022”.477 The law does not exempt the Russian Federation from its obligation under international law to respect the decisions of the ECtHR concerning the acts occurred prior to 16 September 2022. Yet, it suggests that the country may be reluctant to abide by this obligation. This is confirmed by the country’s reaction, or rather the lack of it, to the interim measures granted, on 1 March 2022, by the ECtHR in the case Ukraine v. Russia (X).478

C. ACCOUNTABILITY UNDER ICL

The obligation for States to prevent, repress, investigate and prosecute war crimes and crimes against humanity stems from IHL treaties and from customary international law. Accountability mechanisms exist both at the international and at the national level and two arrest warrants have already been issued by the ICC concerning the forcible transfer or deportation of Ukrainian children.

1. OBLIGATIONS OF STATES UNDER ICL

The four GCs and the API explicitly identify acts which qualify as grave breaches. Article 85(5) of the API confirms that “grave breaches /…/ shall be regarded as war crimes”. The Rome Statute of the ICC confirms that the category of war crimes nowadays encompasses both grave breaches of the GCs (and serious violations of Common Article 3 of the GCs) and other serious violations of the laws and customs applicable in international or non-international armed conflict. It provides a lengthy catalogue of war crimes in its Article 8. States have the obligation to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention /…/”.479 They also have to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and /…/ bring such persons, regardless of their nationality, before /their/ own courts”.480 Customary international law extends these obligations to other types of war crimes. It furthermore specifies that States must establish and exercise territorial and personal jurisdiction over war crimes (crimes committed by their nationals or armed forces, or on their territory) and may establish but if they do so must exercise universal jurisdiction.481 Both Ukraine and Russia have introduced certain war crimes into their criminal codes.482

Crimes against humanity have not so far been codified in a special treaty. Yet, Article 7 of the ICC Rome Statute contains a list of acts which “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”,483 amount to crimes against humanity. Under customary international law, all States the obligation to prevent, prosecute and punish crimes against humanity.484 For those purposes, they must take the necessary measures to ensure that these crimes constitute offences under their criminal law and that their organs have jurisdiction over such crimes based on the principles of territoriality, personality, and universality. Each State must also “ensure that its competent authorities proceed to a prompt, thorough and impartial investigation whenever there is reasonable ground to believe that acts constituting crimes against humanity have been or are being committed in any territory under its jurisdiction”.485 Unlike other States, neither Ukraine, nor the Russian Federation have included the category of crimes against humanity as such into their respective criminal codes.486 When implementing the obligation to punish crimes against humanity, they thus would need to resort either to war crimes or to general “ordinary” offences (murder, rape, hostage taking, etc.).

2. ACCOUNTABILITY MECHANISMS UNDER ICL

The investigation and prosecution of war crimes and crimes against humanity should primarily take place at the national level – in the countries where the crimes were allegedly committed (territoriality) or from where the alleged perpetrators come (personality) or, on a subsidiary basis, in any other countries in the position to carry out the investigation and the prosecution (universality). The Mission welcomes the efforts by Ukraine and by certain other countries, such as Germany,487 Lithuania,488 Romania,489 Spain,490 or Sweden,491 to investigate alleged war crimes and crimes against humanity and, in some cases, to initiate prosecution. It also welcomes the establishment of the Joint Investigation Team (JIT), comprised of teams from Estonia, Latvia, Lithuania, Poland, Romania, Slovakia and Ukraine and supported by Eurojust, tasked to look into allegations of core international crimes committed in Ukraine.492

The Mission found reports suggesting that some of the investigations, especially those carried out by the Office of the Prosecutor General of Ukraine, pertain to the forcible transfer or deportation of Ukrainian children to the temporarily occupied territories or to the territory of the Russian Federation.493 No further details were, however, available. During the meetings with the Ukrainian authorities in Kyiv, the Mission was informed that there was an intention to amend the Criminal Code of Ukraine to make it better suited for the prosecution of crimes against children. Indeed, on 13 April 2023, a draft amendment to para. 438 of the Criminal Code, relating to the Violations of Laws and Customs of War, was submitted to the Verkhovna Rada.494 This amendment should include “forcible displacement of persons outside the territory of Ukraine” into the list of war crimes explicitly mentioned in the provision and it should also add a new paragraph stipulating that if committed against a minor, the crime would entail a more severe sanction (8-15 years imprisonment, instead of 8-12 years imprisonment for adult persons). By the time of the submission of this report, the amendment was not adopted. The Mission however notes that already under the current Criminal Code, acts constituting war crimes under the GCs, the API, other IHL treaties or the Rome Statute of the ICC, may easily qualify as “other violations of the laws and customs of war provided for by international treaties” included in Article 438 of the Criminal Code.

Core international crimes may also be investigated and prosecuted at the international level. This is the case with alleged war crimes and crimes against humanity committed in Ukraine, which have been under investigation by the ICC Office of the Prosecutor since 2 March 2022. As already mentioned in Section II of this report, on 17 March 2023, the ICC issued the very first arrest warrants related to the situation in Ukraine, pertaining specifically and exclusively to the forcible transfer or deportation of Ukrainian children to the temporarily occupied territories or to the territory of the Russian Federation. The arrest warrants are directed against the President Putin and the Commissioner Ms. Lvova-Belova, for whom, according to the ICC Pre-Trial Chamber II, “there are reasonable grounds to believe that /they/ bear responsibility for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children”.495 By the time of the submission of the report, the arrest warrants had not been executed and there was no information available about any further steps being taken by the ICC in the case concerning the transfer of Ukrainian children.