Moscow Mechanism Report (2023)

VIII. General Conclusions

The Mission established that a large number of Ukrainian children have been, since 24 February 2022 and even prior to this date, displaced from the territory of Ukraine to the temporarily occupied territories and to the territory of the Russian Federation. While the exact numbers remain uncertain, the fact of a large-scale displacement of Ukrainian children does not seem disputed by either Ukraine or Russia. In this report, primary focus has been placed on orphans and on unaccompanied children, since those constitute the most vulnerable groups among displaced children. The Mission has found out that the three most commonly indicated grounds for the organized displacement of these children are: the evacuation for security reasons, the transfer for the purpose of adoption or foster care, and temporary stays in the so-called recreation camps. While in the temporarily occupied territories or in the Russian Federation, Ukrainian children are placed in various institutions or in Russian families – the forms of the placement include adoption, which has been applied mainly to children from Crimea (at least since 2015) or custody, guardianship or foster families which seem more common for other Ukrainian children (mainly since 24 February 2022). Whatever the form of placement, Ukrainian children are exposed to pro-Russian information campaigns often amounting to targeted re-education. The Russian Federation does not take any steps to actively promote the return of Ukrainian children. Rather, it creates various obstacles for families seeking to get their children back.

The Mission reviewed the reported evacuations and forced displacements of Ukrainian children at the hands of the Russian occupying power in light of applicable IHL. The Russian Federation is obliged, in her capacity as belligerent and occupying power, to respect the applicable rule of IHL under which children enjoy protections pertaining to the “civilian population”, “protected persons”, family-members and finally the special protections dedicated to children.

The Mission found that while certain cases of evacuations of children were in line with Russia’s obligations under IHL, other practices of non-consensual evacuations, transfers and prolonged displacement of Ukrainian children constitute violations of IHL, and in certain cases amount to grave breaches of GCIV and war crimes, notably violation of the prohibition on forcible transfer or deportation under Article 49 of the GCIV.495 The Mission also found that non-justified prolonged stay or unfounded logistical hurdles violate the obligation to facilitate reunification and contravene the principles embodied within the GCIV that family unity is to be protected and respected.

Further, the Mission is of the opinion that Russia’s relocalization of Ukrainian children to Russia-controlled areas or Russian territory, combined with the belligerent powers, disregard the obligation to establish compulsory mechanisms under the GCIV to track these children, to communicate their whereabouts and facilitate their repatriation or reunification with their families, is a violation of the GCs that exacerbates the gravity of other violations.

Moreover, the Mission concludes that the exposure of unaccompanied children to adoption or similar measures of assimilation is incompatible with the GCIV. Altering nationality of Ukrainian children is a violation of Article 50(2) of the GCIV. It also contravenes the principles embodied within the GCIV that family unity is to be protected and respected. Facilitating reeducation and permanent integration into Russian families serves to confirm that the displaced Ukrainian children are indeed the victims of deportation in the sense of Article 49 of the GCIV.

The Mission has also found that the Russian belligerent currently has no functioning mechanism that facilitates family reunification for Ukrainian children presently in Russia or Russian occupied territories. Rather, the Mission sees traces of a consistent pattern suggesting that efforts by the Russian authorities to allow the movement of children from Ukraine to the Russian Federation do not include steps for further evacuation to third countries or back to safer areas in Ukraine. The present approach by the Russian authorities facilitates permanent stay and potentially unjustified delayed repatriation of these children, in disregard of IHL.

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 moreover concluded that the practice of the forcible transfer and/or deportation of Ukrainian children to the temporarily occupied territories and to the territory of the Russian Federation may amount to a crime against humanity of “deportation or forcible transfer of population”.

The Mission recalls that IHL, IHRL and ICL impose various obligations on States. Those encompass the obligation to respect and to ensure respect for IHL; the obligation to respect, protect and fulfil human rights; and the obligation to prevent, repress, investigate and prosecute war crimes and crimes against humanity. Such obligations apply not only to the Parties to the conflict (IHL) or to the territorial State (IHRL, ICL) but also, in one form or another, to third States. It is for the international community as a whole to ensure that IHL, IHRL and ICL are respected.

There are no specific accountability mechanisms under IHL. The International Fact-Finding Commission could be activated and protecting powers could be designated but these institutions have been rarely, if ever, put in use in the recent decades. It is thus largely left to the ICRC, in its role of a substitute to protecting powers as well as in its autonomous role, to take steps, albeit confidential ones, to ensure respect for IHL rules. Under IHRL, conversely, various political as well as quasi-judicial and, even, judicial bodies exist that monitor the compliance by States with their obligations stemming from IHRL and/or consider individual or inter-State complaints alleging violations of IHRL. Such bodies include the HRC, the UN Human Rights Committees, or the ECtHR. Most of these bodies have been already actively seized with the situation of Ukraine and some have even considered, albeit so far with limited outcomes, the forcible transfer and/or deportation of Ukrainian children. Finally, under ICL, both national courts in Ukraine and in other countries and the ICC have started investigating allegations of war crimes and/or crimes against humanity, including allegations related to the forcible transfer and/or deportation of Ukrainian children.