Yvonne Breitwieser-Faria, The University of Queensland

Throughout Russia’s war against Ukraine, there have been countless reports of alleged war crimes and crimes against humanity. Now, there are also allegations of genocide involving the forced transfer of Ukrainian children to Russia.

The International Criminal Court has just issued two arrest warrants in connection with the transfer of Ukrainian children for Russian President Vladimir Putin and Maria Lvova-Belova, the Russian commissioner for children’s rights.

While this is a significant legal milestone, the warrants might not necessarily lead to an arrest – due to a lack of enforcement mechanisms and the likely reluctance of the Russian state and potentially other states to cooperate.

Re-education and forced adoptions

There have been many reports on the forced transfer of Ukrainian children, ranging in age from infants to teenagers, to various locations in Russia and Russian-occupied Crimea. These transfers date back to the beginning of February 2022; in the case of occupied Crimea, transfers of orphans and children without parental care commenced as early as 2014.

Russia is now believed to be operating a large-scale, systematic network of at least 40 “recreational” re-education camps for thousands of Ukrainian children. The primary purpose of most of these camps appears to consist of pro-Russian indoctrination and, in some instances, military training.

While Russia does not deny the evacuation of children or that they are now in Russia, the government claims it is part of a humanitarian project for war-traumatised orphans.

However, not all of these children are orphans. According to an investigation by Yale School of Public Health’s Humanitarian Research Lab, children with living relatives in Ukraine have been “recruited” to attend camps in Russia for ostensible holidays. Consent from families is given either under duress or routinely violated.

Once the children are in Russia or Crimea, their communication with family members is either restricted or nonexistent. Most children have been unable to return home.

Troublingly, Putin’s “patriotic patronage campaign” is also strongly encouraging Russian families to adopt purported Ukrainian orphans. There have been legislative changes to expedite the adoption of Ukrainian children and financial incentives for Russian families who do this.

The exact number of Ukrainian children being sent to Russia is unclear. The Ukrainian government has officially identified 16,221 deported children as of early March.

Other estimates suggest the real number may be as high as 400,000.

Ukrainian Foreign Minister Dmytro Kuleba recently said the forced transfer of thousands of Ukrainian children constituted “probably the largest forced deportation in modern history” and “a genocidal crime”.

Is the forced transfer of children an act of genocide?

International law dictates what types of crimes constitute an act of genocide. These acts are exhaustively listed in the Genocide Convention, adopted in 1948. The legal definition of genocide has not changed in 75 years, and is accepted by and applicable to all states worldwide.

Article II of the Genocide Convention lists the forcible transfer of children of a group to another group as one of the acts which may amount to genocide if it is done with the intent to destroy a national, ethnic, racial or religious group.

Ukrainian children would be protected under this legal definition as a national group. The evidence, to date, also suggests the forcible transfer of Ukrainian children to Russia for the purposes of potentially “integrating”, or indoctrinating, them into pro-Russian culture has taken place.

While definite proof of this specialised intent is required, the removal of children from their families, homes and culture suggests the purpose of Russia’s “evacuation” of children may be to erase Ukraine’s identity.

Whether or not Russia succeeds is irrelevant; the attempt to commit genocide is also a crime.

Russia’s actions are comparable to the Nazis’ “Germanisation program” in the second world war, in which hundreds of Polish children were transferred to Germany and subsequently adopted by German families.

In addition to being a potential act of genocide, the forced transfer of Ukrainian children to Russia may also be a violation of international humanitarian and human rights law under the Fourth Geneva Convention and the Convention on the Rights of the Child, as well as a crime against humanity.

Russia is a party to all of these international instruments and is therefore legally obligated to adhere to them.

Who is investigating this?

To date, separate investigations into the transfer of Ukrainian children to Russia are being carried out by:

• the UN Human Rights Council’s Independent International Commission of Inquiry on Ukraine, whose report will be presented to the UN Human Rights Council on March 20
• Amnesty International
• Yale’s Humanitarian Research lab, in collaboration with the US State Department
• the Ukraine-based Regional Centre for Human Rights, in cooperation with the Lemkin Institute for Genocide Prevention.

The arrest warrants just issued by the International Criminal Court are the first related to alleged crimes committed during the Ukraine war. The judges of the responsible chambers agreed there were “reasonable grounds” to believe Putin and Lvova-Belova bore responsibility for the “unlawful deportation” of Ukrainian children.

Why evidence is crucial

Successful criminal proceedings would require proof that the alleged perpetrators have committed genocide beyond a reasonable doubt. Conclusive evidence to this end will be crucial; the court will not be satisfied with a lesser standard.

The types of evidence that could support a prosecution could include everything from witness testimonies to satellite imagery or video recordings. Any evidence must meet international standards and protocols for criminal prosecutions.

Importantly, prosecutors would also have to demonstrate that not only did the transfer of Ukrainian children take place, but also that the perpetrators acted with the intent to destroy Ukrainians as a national group.

This evidence, in particular, will be difficult to collect – but not impossible with modern technology. This allows for the collection of evidence in real time and the preservation of otherwise perishable evidence through, for example, social media.

Yvonne Breitwieser-Faria, PhD Candidate and Academic in Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.