The Moscow Mechanism Expert Report on the Forcible Transfer and Deportation of Ukrainian Children

Before Spring 2022, only the real connoisseurs of the Organization for Security and Cooperation in Europe (OSCE) were familiar with the so-called Moscow Mechanism enabling any OSCE participating State to request the establishment of an ad hoc expert mission to investigate specific questions related to the OSCE human dimension. In the first thirty years of its existence (1991-2021), the mechanism was indeed invoked only nine times. But times have changed and since Spring 2022, there have already been five instances of such an invocation, three of them focused on the events in Ukraine. The first two reports, issued in April and July 2022, provide a general, comprehensive assessment of the violations of international humanitarian law (IHL) and international human rights law (IHRL) and of alleged war crimes and crimes against humanity, committed in Ukraine in the first four months of the conflict (see the post on EJILTalk). The third report, published on 4 May 2023, has a much narrower scope, dealing with the forcible transfer of children within parts of Ukraine’s territory temporarily controlled or occupied by Russia and/or their deportation to Russia. This post introduces the main conclusions of the third report.

The Mission of experts tasked to investigate this issue and composed of the three authors of this blog was set up on 4 April 2023 and had mere three weeks to fulfil its mandate. During that period, the experts engaged in extensive research of written documents, including international and national legal acts, reports by international organizations and NGOs, political statements and social media posts. They also conducted over 25 online or in-person interviews, mainly with representatives of IGOs,  NGOs, human rights defenders, lawyers, and journalists as well as several victims and witnesses. On 14-20 April 2023, they travelled to Ukraine and collected valuable materials from Ukrainian authorities, civil society representatives and, again, victims and witnesses. The report was submitted on 24 April and presented to the OSCE Permanent Council on 4 May 2023.

The Mission established that a large number of Ukrainian children had indeed been, since 24 February 2022 and even prior to this date, displaced both within the territory of Ukraine, usually from one temporarily occupied territory to another (e.g., from the Kherson region to Crimea), and also to the territory of the Russian Federation. The exact number of such children remains uncertain but the lowest estimates put this number at some 20.000. The Mission put emphasis on orphans and unaccompanied children because they constitute the most vulnerable group of displaced children. The displacement has usually been carried out by the Russian armed forces and the occupational administration established by Russia in the temporarily occupied territories, including those of the so-called Donetsk and Luhansk People’s Republic (prior to Autumn 2023).  The most commonly indicated grounds for the displacement of Ukrainian children are: (1) the evacuation for security reasons, (2) the transfer for the purpose of adoption or foster care, and (3) the temporary stay in so-called recreation camps. In line with its mandate, the Mission analysed the displacement of Ukrainian children and the three grounds provided for it, in light of the applicable rules of IHL and IHRL and it also considered whether this practice could amount to war crimes or crimes against humanity.

Conclusions Related to IHL

Children belong among the most vulnerable sections of the civilian population and therefore IHL provides a set of absolute and non-derogable rules for their protection  The most important provisions, applicable in international armed conflicts, are stipulated in the Geneva Convention IV of 1949 (GCIV) and the Additional Protocol I of 1977 (API), to which both Ukraine and the Russian Federation are State parties and the two instruments apply to their entire territories. Attempts by one belligerent to unilaterally change the status of a territory do not affect the application of IHL rules, so Russia’s claims that certain Ukrainian territories have become part of its territory are without any legal effects. Under the GCIV and the API, Ukrainian children are protected by four sets of rules: a) rules protecting the civilian population against hostilities, b) rules applicable to protected persons who find themselves in the hand of the adversary belligerent of which they are not nationals, c) rules concerning families and family unity, and d) special rules dedicated to children, unaccompanied children in particular.

The Mission divided the analysis into three different phases: the lawfulness of the transfer itself, the treatment of children during displacement and reunification or repatriation. Overall, the Mission concluded that whereas in some instances, the initial displacement of children could be justified by IHL, the subsequent treatment of these children or delayed reunification or repatriation may lead to situations akin to unlawful forcible transfer or deportation.

The Mission found that the displacement of Ukrainian children from the war zone sometimes appears to satisfy the IHL obligations of Russia and her duties of precaution under API (for instance, evacuations from the Donetsk and Luhansk regions taking place prior to the Russian armed attack of 24 February 2022). Other instances of non-consensual transfer of Ukrainian children – for instance, the cases in which families are separated by the Russian military at filtration points or when children were displaced by the withdrawing Russian forces – constitute violations of IHL (Article 49 of the GCIV, prohibiting transfer and deportations of protected persons from occupied territories, and Article 78 of the API, prohibiting to move children out of the occupied area). These violations qualify as grave breaches (Articles 147 of the GCIV and 85 of the API), and, as such, amount to war crimes.

The Mission also recalled that the distinctive feature of a genuine evacuation lies in its provisional character. It is anathema to the GCs protections that unaccompanied children fall into the hands of an enemy belligerent power. If this situation arises, both belligerents and all State parties to the GCs are obligated to do everything to facilitate the discontinuation of such a situation.  The belligerent parties are obligated to keep track of civilians, and notably children, in their hands. For those purposes, they must establish a national information bureau (Articles 50 and 136 of the GCIV). While both Ukraine and Russia have established such bureau for prisoners of war in line with the GCIII, only Ukraine, however, seems to have extended the functions of this bureau to civilians and children. The Mission concluded that Russia’s failure to establish compulsory mechanisms to track Ukrainian children, to communicate their whereabouts to Ukraine and to facilitate their repatriation or family reunification, violates of IHL. Furthermore, this violation exacerbates the gravity of other violations related to the displaced Ukrainian children.

Moreover, unjustified, prolonged stay or unfounded logistical hurdles encountered by families seeking reunification, violate Russia’s obligation to facilitate reunification and contravene the principle of family unity. The Mission found that currently in Russia there is no functioning mechanism for the reunification of children with their relatives in Ukraine. Rather, the system in place facilitates the integration of these children into Russian families in disregard of IHL. The Mission moreover concluded that the exposure of Ukrainian children to adoption and various measures of assimilation is incompatible with IHL (Article 50(2) of the GCIV).

Conclusions Related to IHRL

Under IHRL, the provisions of the UN Convention on the Rights of the Child (UNCRC), the world’s most widely ratified human rights treaty, counting among its States parties both Russia and Ukraine, are particularly relevant. Recalling that no derogations have been entered in its respect, Russia is clearly bound by the UNCRC in respect of any actions it undertakes in relation to the Ukrainian children both on the territory of Ukraine and its own territory.

Turning to the substance of these obligations, the Mission concluded that numerous and overlapping violations of the rights of the children had occurred. Of these, perhaps the two most profound violations established by the Mission relate to the right to identity and the right to family.

The child’s right to identity, recognized in Article 8 of the UNCRC specifically includes the child’s right to preserve his/her own nationality, name and family relations. Serious allegations that the Ukrainian children transported or deported from Ukraine have had this right repeatedly violated in numerous ways were received. There is credible and consistent testimony that Ukrainian children who find themselves in Russia’s social care institutions or in foster care arrangements are consistently required to speak Russian, to attend Russian language lessons and required to live in culturally different settings. Their national and political identities are not respected, as they are subjected to the so-called patriotic education, required to sing the Russian national anthem and take part in various lessons, geared towards changing children’s understanding of the history and geopolitical context of Ukraine and Russia. Military education, “courage lessons” and drills, and meetings with Russian military veterans are also common.

Arguably the most far-reaching interference with the identities of Ukrainian children is the change of their citizenship. The Mission noted Russia’s recent legislative and executive acts concerning the facilitation of relinquishing of Ukrainian citizenship and the granting of Russian citizenship to Ukrainian children. These acts have created a situation where, for example, the views of children under the age of 14 about their citizenship change are not even sought and the process can be initiated by a director of a social care institution. Alarmingly, once a child obtains Russian citizenship, adopting such a child becomes much simpler. Additionally, to Article 8, these measures also breach Article 12 of the UNCRC, obliging States to involve children in decision-making concerning them. The deep-rooted, long-lasting, and indeed life-changing effects that such measures are likely to have on the identities of these children are incompatible with Russia’s obligations under the UNCRC.

Closely linked to the child’s right to identity is the child’s right to family broadly encompassing the right not to be separated from parents (Article 9), the right to family reunification (Article 10) and the right to family environment, including adoption (Articles 20 and 21). Together, these provisions ensure that a State can only separate a child from their parents if that is required in the best interests of that child.  The Mission received credible evidence of multiple violations of these provisions.

Alongside the prima facie breach of the right to family unity arising every time when a child is separated from parents unnecessarily, Russia has done nothing to facilitate the reunification of families. On the contrary, there are numerous testimonies of obstacles placed in the path of parents seeking reunification, including requesting parents to travel in person to faraway places in Russia (logistically and financially complex for the vast majority of parents), to producing various documents to prove their parenthood. This is yet more complex for parents whose children have been placed in fostering arrangements. There are also disturbing testimonies of cases of  adoption of Ukrainian children. Significantly, the Russian adoption process allows fundamental changes to be made vis-à-vis the adopted child, including the change of name, date and place of birth and even re-issuance of birth certificate in line with these changes. Furthermore, adoption can only be established through court proceedings which fall under the secrecy of adoption in Russia. Consequently, it becomes de facto impossible to ascertain the true identities of the adopted children or their exact number.

The Mission concluded that numerous and overlapping violations of the rights of the displaced Ukrainian children had occurred. In addition to the numerous and repeated violations of the best interests of these children and of the rights indicated above, Russia has denied their right to education, right to access to information, right to rest, leisure, play, recreation and participation in cultural life and arts, right to thought, conscience and religion, right to health, and right to liberty and security (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 violations may also rise to serious concerns that the rights 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 furthermore concluded that the practice of the forcible transfer and/or deportation of Ukrainian children may amount to the crime against humanity of “deportation or forcible transfer of population” (Article 7(1)(d) of the Rome Statute of the ICC).

Accountability Mechanisms and Recommendations

Having established that the practice of forcible transfer and deportation of Ukrainian children has involved numerous violations of IHL and IHRL and that some aspects of this practice may amount to war crimes or crimes against humanity, the Mission recalled the principal obligations of States under IHL, IHRL and international criminal law (ICL), namely – the obligation to respect and 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 under international law. These obligations are not limited to the parties to the conflict but apply, in one form or another, to all States. Moreover, the Mission provided an overview of accountability mechanisms that are available at the international or national levels. From among these mechanisms, the ongoing proceedings before the European Court of Human Rights (Ukraine v. Russia (II) – Application No. 43800/14 and Ukraine and the Netherlands v. Russia, Applications Nos. 8019/16, 43800/14 and 28525/20) and the ICC (the arrest warrants issued on 17 March 2023), which all also pertain to the forcible transfer of Ukrainian children, are of particular relevance.

In light of all its findings, the Mission formulated recommendations that are addressed to all the main stakeholders. Among those addressed to the Russian Federation, the key recommendations are: a) to immediately cease the practice of forcible transfer and deportation of Ukrainian children; b) to immediately cease the practice of adoption of Ukrainian children, their re-education and the expedited change of their citizenship; and c) to actively seek, promote and assist family reunification of those children and their repatriation. To Ukraine, the Mission recommended: a) to increase its efforts to collect and duly verify data of all displaced children, b) to seek assistance and good offices of a third country to bring about an end to the practice of forcible transfers or deportation of Ukrainian and to ensure their family reunification; and c) to continue providing medical, psychological, social and other support to children who have been returned and their families. Other States and international organizations were recommended, inter alia, to provide all necessary assistance to encourage the belligerent parties to implement these recommendations and to assist them in this implementation. However, all stakeholders were urged to prioritize the prompt family reunification of all these children above all other considerations.