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Moscow Mechanism Report (2023)

Report on Violations and Abuses of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity, related to the Forcible Transfer and/or Deportation of Ukrainian Children to the Russian Federation

Document: ODIHR.GAL/31/23

Date: 4 May 2023 — Warsaw

Original: English

Reference: Invoked under paragraph 8 of the 1991 Moscow Document

IX. Recommendations

In the remits of the present mandate, the Mission makes the following recommendations, addressed not only to the Russian Federation and Ukraine but also to other States and international organizations. However, the principal recommendation of the present Mission to all the stakeholders is to urgently and above all prioritize the safe reunification of all Ukrainian children who have been forcibly transferred or deported to the temporarily occupied territories and the Russian Federation, with their parents, relatives, and true legal guardians and that these children are allowed to develop their own identities without undue interference, in compliance with the provisions of Article 74 of the API and Article 8 of the UNCRC. The best interests of the children dictate that this is achieved with utmost urgency and above all other considerations.

A. TO THE RUSSIAN FEDERATION

  1. To immediately cease the practices of forcible transfer or deportation of children from Ukraine to the temporarily occupied territories and the Russian Federation.
  2. In those cases when the duty to precautions in defence and/or imminent threat to life due to prevailing hostilities requires evacuation, allow without delay the establishment of safe passage through humanitarian corridors for all civilians, especially children, to the territory of their free and genuine choice, be it Ukraine or the Russian Federation or a third country.
  3. Without delay, establish a new NIB or appropriately expand the mandate of the existing NIB in accordance with the obligations arising in respect to Russia under Articles 136 and 50 of the GCIV.
  4. Without delay, compile, provide and promptly update comprehensive lists of the names and whereabouts of all children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation. Specifically indicate in such lists the legal status of each individual child, especially any cases of adoption and/or change in the fundamental data of the child (for example, name, date, and place of birth) in accordance with Article 78 of API. To this end, the principle of adoption secrecy must be immediately lifted to allow the provision of data to appropriate agencies such as NIBs of both countries and the ICRC.
  5. Establish appropriate procedures for and actively assist family reunifications of all children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation in full compliance with Article 77 of API and Articles 9 and 10 of the UNCRC.
  6. Immediately cease the current practice of expedited admission into the Russian citizenship of Ukrainians, especially children, and their relinquishing of the citizenship of Ukraine.
  7. Immediately impose a moratorium on any further adoptions of children who have previously held or currently hold Ukrainian citizenship until each individual adoption case can be verified as fully compliant with all requirements arising in respect to Russia under international law and especially with the provisions of the GCIV and UNCRC.
  8. Without delay cease the practice of the so-called “patriotic education” of all Ukrainian (or formerly Ukrainian) children forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation. Ensure full respect for the rights of all such children to, inter alia, speak the Ukrainian language, practice their own religion, and develop their own identities, rooted in their true and genuine personal, legal, and family identity, as required by the UNCRC.
  9. Immediately establish a legal mechanism to assist with the restoration of the identity of all children who have been forcibly transferred or deported to the temporarily occupied territories or the Russian Federation, in full compliance with Article 8(2) of the UNCRC.
  10. Urgently seek assistance and good offices of a third country to bring about an end to the practice of forcible transfers or deportation of Ukrainian children to the temporarily occupied territories and the Russian Federation in accordance with Article 24 (2) of the GCIV and ensure full respect of their right to family reunification as stipulated in Articles 9 and 10 of the UNCRC.
  11. Ensure immediate, safe, and unfettered access of the ICRC to all institutions in the temporarily occupied territories and in the Russian Federation where children who have been forcibly transferred or deported from Ukraine are currently residing.
  12. Ensure immediate, safe, and unfettered access to the National Preventive Mechanism of Ukraine, established in accordance with the OPCAT, to all institutions in the temporarily occupied territories and in the Russian Federation where children who have been forcibly transferred or deported from Ukraine are currently residing.

B. TO UKRAINE

  1. Urgently increase its multi-agency efforts to collect and duly verify data of all children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation.
  2. Redouble its efforts in seeking out the children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation with the view of promptly implementing their right to family reunification as stipulated in Articles 9 and 10 of the UNCRC.
  3. Continue with its efforts, at all levels of authority, to seek lists of and information about all children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation from the Russian authorities.
  4. Urgently seek assistance and good offices of a third country to bring about an end to the practice of forcible transfers or deportation of Ukrainian children to the temporarily occupied territories and the Russian Federation in accordance with Article 24 (2) of the GCIV and ensure full respect of their right to family reunification as stipulated in Articles 9 and 10 of the UNCRC.
  5. Continue providing medical, psychological, social and other support to all children (and their families) who have been returned following their forcible transfer or deportation from Ukraine to the temporarily occupied territories and the Russian Federation.
  6. Increase its efforts to review its current practice of institutionalization of children in Ukraine to bring it in line with the international human rights obligations arising with respect to Ukraine.
  7. Ensure full respect for the right to develop their own identities of all Ukrainian children in full compliance with Article 8 of the UNCRC.
  8. Support its National Preventive Mechanism, established in accordance with the OPCAT, in seeking from the Russian Federation immediate, safe, and unfettered access to all institutions in the temporarily occupied territories and in the Russian territory where children who have been forcibly transferred or deported from Ukraine are currently residing.

C. TO OTHER STATES AND INTERNATIONAL ORGANIZATIONS

  1. Provide urgently all necessary assistance, including logistical, know-how and financial, to Ukraine to support its multi-agency efforts to collect and duly verify data of all children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation, in line with their obligations under Article 1 of the GCIV and API Article 74 of the API.
  2. Provide urgently all necessary assistance, including logistical, know-how and financial, to Ukraine to support its efforts to locate the children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation with the view of duly implementing their right to family reunification as stipulated in Articles 9 and 10 of the UNCRC, and in line with their obligations under Article 1 of the GCIV and API Article 74 of the API.
  3. Proactively offer their good offices to Ukraine and the Russian Federation to urgently facilitate the family reunification of all children who have been forcibly transferred or deported from Ukraine to the temporarily occupied territories and the Russian Federation in full compliance with Articles 9 and 10 of the UNCRC, and in line with their obligations under Articles 1 and 24 of the GCIV and API Article 74 of the API.
  4. Provide assistance to Ukraine to increase its efforts to review its current practice of institutionalization of children to bring it in line with the international human rights obligations arising with respect to Ukraine.

X. COMMENTS BY UKRAINE

In accordance with paragraph 7 of the 1991 Moscow Document, this report contains the comments of Ukraine on the Mission’s observations.

Ukraine welcomes the Mission’s report on “Violations and Abuses of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity, related to the Forcible Transfer and/or Deportation of Ukrainian Children to the Russian Federation” prepared under the Moscow Mechanism.

Ukraine appreciates the high professionalism, impartiality, and comprehensive approach of the Mission, as well as the important work done to confirm numerous violations committed by the Russian Federation.

The conclusions made by the Mission regarding violations of international humanitarian law and international human rights law, as well as the commission of war crimes and crimes against humanity, fully correspond to the official position of Ukraine.

Ukraine fully supports all the recommendations addressed to the Russian Federation, to Ukraine and to other States and international organizations.

Ukraine expresses its deep gratitude to all 45 OSCE participating States that initiated the invocation of the Moscow Mechanism. This step is a powerful signal in support of Ukraine and of the fundamental principles of the OSCE and is a contribution to ensuring accountability for the most serious crimes.

The Government of Ukraine confirms its commitment to the full cooperation with the Mission of Experts to bring about the end of the forcible transfers or deportation of Ukrainian children to the temporarily occupied territories and the Russian Federation and to ensure the safe and rapid return of children to their families and true legal guardians.

ANNEX 1: TERMS OF REFERENCE

The Mission of Experts is tasked to establish the facts and circumstances surrounding possible contraventions of relevant OSCE commitments, violations and abuses of international humanitarian law and international human rights law, war crimes and crimes against humanity, related to the forcible transfer and/or deportation of Ukrainian children to the Russian Federation.

In particular, the Mission of Experts will address the following:

  1. The scope, scale and patterns of the forcible transfer and/or deportation of children from the temporarily occupied territories of Ukraine to the Russian Federation.
  2. The treatment of children in the Russian Federation, including their reception conditions and their exposure to "patriotic education", and the practices of granting Russian citizenship, family separation and adoption, as well as their compliance with the principle of the best interests of the child.
  3. The actions taken by the Russian Federation and by Ukraine to uphold the rights of children, including their right to family reunification, and the obligation to establish a National Information Bureau.
  4. Potential steps to ensure accountability for any violations identified.

The Mission of Experts will provide its observations, conclusions and recommendations to the OSCE Office for Democratic Institutions and Human Rights and all interested OSCE participating States. In doing so, the Mission shall draw on information and evidence submitted by OSCE participating States, non-governmental organizations, testimonies, interviews, reports by international bodies and instruments, including reports by the UN, Council of Europe, the International Criminal Court, or any other credible sources, as deemed necessary by the Mission of Experts.

The Mission is invited to submit its report to the ODIHR no later than four weeks after the launch of the Mission, and to hold consultations with Ukraine on its findings.

ANNEX 2: Letter to the Permanent Representative of Ukraine to the International Organizations in Vienna and the reply thereto

osce
Office for Democratic Institutions and Human Rights
N02/2023

Warsaw, 5 April 2023

Mr. Yevhenii Tsymbaliuk
Permanent Representative of Ukraine to the International Organizations in Vienna

Subject: Invitation to cooperate with the Mission of Experts under the Moscow Mechanism

Dear Mr. Permanent Representative,

The Mission of Experts established on 4 April 2023 under the Moscow Mechanism of the Organization for Security and Co-operation in Europe (OSCE) to “address the Deportation of Children amidst Human Rights Violations and Humanitarian Impacts of Russia’s war of aggression against Ukraine” herewith invites your country to cooperate with it to ensure that the Mission can accomplish its mandate in an objective and impartial manner and to share with it all the relevant information at the disposal of your respective national authorities.

The Mission particularly seeks to hold direct meetings with representatives of the following Ukrainian authorities:

We shall also be grateful to receive copies of any written communications, including letters, that any of these offices or indeed others from Ukraine have sent to any authorities in the Russian Federation on the subject matter of the present mandate. We would also appreciate if you could provide us with a total number and list of names of unaccompanied children who have been transferred from Ukraine to the Russian Federation since 24 February 2022 or even prior to this date.

We thank you in advance for acknowledging the receipt of this letter and for kindly providing us with a response to it. In view of the time frame envisaged for the mission, we shall appreciate to receive your reply by 17 April 2023.

Yours sincerely,

Veronika Bílková
Cecilie Hellestveit
Elīna Šteinerte

ANNEX 3: Reply from the Permanent Mission of Ukraine to the International Organizations in Vienna

PERMANENT MISSION OF UKRAINE TO THE INTERNATIONAL ORGANIZATIONS IN VIENNA

N 272/28-200-511

The Mission of Ukraine presents its compliments to the OSCE Office for Democratic Institutions and Human Rights and has the honour to acknowledge the receipt of Note No. 02/2023 of 5 April 2023 regarding the invitation for the Government of Ukraine to cooperate with the Mission of Experts established under the Moscow Mechanism and to share all the relevant information at the disposal of the respective national authorities.

The Mission of Ukraine would like to inform that the Government of Ukraine welcomes the establishment of the Moscow Mechanism Mission and its mandate to address the Deportation of Children amidst Human Rights Violations and Humanitarian Impacts of Russia’s war of aggression against Ukraine, and expresses its readiness to cooperate fully with the Mission of Experts.

The Mission of Ukraine would also like to confirm that the Government of Ukraine is ready to facilitate direct meetings with the requested Ukrainian authorities, including the Office of the Prosecutor General of Ukraine, the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine, the National Information Bureau of Ukraine, the Office of the Ukrainian Parliament Commissioner for Human Rights, the Commissioner of the President of Ukraine for Children’s Rights, the National Social Service, the Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea, the National Police of Ukraine, and civil society organisations, especially SOS Children Villages and Save Ukraine Foundations, as well as with other relevant stakeholders.

The Mission of Ukraine avails itself of this opportunity to renew to the OSCE Office for Democratic Institutions and Human Rights the assurances of its highest consideration.

Vienna, 11 April 2023

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