Ukraine must return all deported citizens and attain the issuance of the International Criminal Court arrest warrants for this crime not only against Putin and Lvova-Belova

This has been concluded by Olena Temchenko, a lawyer at the Expert Center for Human Rights, who analyzed the practice of the International Criminal Court and national legislation.

Since the beginning of the armed aggression against Ukraine on February 20, 2014, Russia has committed numerous crimes against humanity and war crimes. Among the largest number of affected Ukrainians are victims of the crime of deportation or forced displacement. According to the US Department of State, only in the first six months of the Russian Federation’s full-scale invasion of Ukraine (as of September 2022), Russian forces and their proxies forcibly deported from 900,000 to 1.6 million Ukrainian citizens, including thousands of children. It is obvious that the scale of this crime is only growing, especially taking into account the decision made by the head of the Kremlin to deport residents of the occupied territories who refuse to get Russian citizenship.

Numerous facts of deportation and forced displacement of Ukrainians are confirmed not only by the data presented by Ukrainian authorities but also by international organizations and foreign researchers, in particular Human Rights Watch, the Laboratory for Humanitarian Studies of Yale University, the “New Lines” Institute, and the Raoul Wallenberg Center, etc.

Deportation or forced displacement under the Rome Statute can be classified as a crime against humanity (art. 7) and as a war crime (art. 8), or both simultaneously. Forced displacement across an international border is considered deportation. When such displacement occurs within the country’s borders, it qualifies as forced displacement. Deportation and forced displacement occur when individuals are forced to leave a place where they were lawfully present and there was no basis for their displacement under international law. International law allows forcible displacement of persons only in cases where it is necessary for the person’s safety or military reasons, but only for as long as necessary.

In order to qualify this crime under Article 7(1)(d) of the Rome Statute as a crime against humanity, the following elements must be established:

1. The executor deported or forcibly relocated one or more persons to another state or locality through eviction or other coercive actions without grounds permitted under international law. The term “forcible” is not limited to the use of physical force and may include the threat of force or coercion caused by, for example, fear of violence, brute force, detention, psychological pressure, or abuse of power concerning such person or persons or another person, the use of a situation characterized by coercion.
2. Such a person or persons were lawfully present in the area from which they were deported or relocated.
3. The executor was aware of the factual circumstances that testified to the lawfulness of such a presence.
4. The act was committed as part of a full-scale or systematic attack on the civilian population.
5. The accused knew that the act was part of a full-scale or systematic attack on the civilian population or intended to make it part of such an attack. This element should not be interpreted as evidence that the perpetrator was aware of all the characteristics of the attack or the precise details of the plan or policy of the state or organization. As to intent, in the case of an attack that becomes widespread or systematic, the subjective party is present if the perpetrator intended to facilitate such an attack.

In order to qualify a deportation or forcible transfer under Article 8(2)(a)(vii) of the Rome Statute as a war crime, the following elements must be established:

1. The executor has deported or relocated one or more persons to another state or other place.
2. Such a person or persons were protected by one or more Geneva Conventions of 1949.
3. The performer was aware of the factual circumstances that indicated this protection status.
4. The act took place in the context of an international armed conflict and was related to it.
5. The executor was aware of the actual circumstances that indicated the existence of an armed conflict.

There are several cases in the proceedings in the ICC, in which, among other things, the facts of forced displacement of the population as a crime against humanity are being investigated: Prosecutor v. Maxime Jeoffroy Eli Mokom Gawaka (suspected of war crimes and crimes against humanity allegedly committed in various locations in the Central African Republic between December 5, 2013, and December 2014, transferred to the ICC on 14 March 2022); Prosecutor v. Ahmad Muhammad Harun (suspected of war crimes and crimes against humanity allegedly committed between 2003 and 2004 in Darfur, Sudan); Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (accused of war crimes and crimes against humanity allegedly committed between 2003 and 2004 in Darfur, Sudan, transferred to ICC custody on June 9, 2020, after he voluntarily surrendered in the Central African Republic). The two last-named defendants probably committed the forcible displacement of a total of more than 60,000 local residents at different times.

The crimes of deportation of Ukrainian children to the Russian Federation gained wide publicity all around the world. The ICC judge issued arrest warrants against Vladimir Putin and Maria Lvova-Belova on suspicion of committing the crime of illegal deportation of the population (children) and illegal relocation of the population (children) from the occupied regions of Ukraine to the Russian Federation. According to the Office of the Prosecutor General, as of June 1, 2023, more than 19,500 such Ukrainians were officially registered. However, due to the difficulty of identifying and losing contact with their families for an indefinite period, changing the names and surnames of children, and the simplified adoption procedure, their final number may be ten times greater. The Parliamentary Assembly of the Council of Europe recognized that the documented evidence of the deportation and forced relocation of Ukrainian children to the Russian Federation or the territory temporarily under Russian occupation bears the hallmarks of the crime of genocide provided under Article 6 of the Rome Statute of the International Criminal Court. However, in order to be prosecuted for this crime, among other things, the intent for the deliberate destruction of a group, in whole or in part, based on national, ethnic, racial, or religious grounds must be proved.

It should be noted that the leader of the aggressor country does not conceal his convictions regarding the denial of the existence of the Ukrainian people and the desire to destroy Ukrainian statehood utilizing arms. This became the basis for the adoption by the Verkhovna Rada of Ukraine of a resolution recognizing Russism as an ideology and practice underlying the state policy of the Russian Federation. In the meantime, the deputies appealed to the international community to support them and apply real measures that would make it possible to bring the military-political leadership of the Russian Federation to justice for committing the crime of aggression, war crimes, crimes against humanity, and genocide against Ukraine and its people.

Ukraine is taking measures to investigate these crimes. The Verkhovna Rada of Ukraine has registered a draft law on amendments to the Criminal Code of Ukraine regarding the forcible relocation of a person outside the territory of Ukraine. However, they are currently being investigated under Article 438 of the Criminal Code of Ukraine, among other crimes of violating the laws and customs of war (88,669 such crimes are currently registered). The first court verdicts have also been handed down. Under this article, a judge who came over to the service of illegally created judicial bodies and took the leadership position of “Chairman of the Armenian City Court of the Republic of Crimea” involved in the deportation of a Crimean citizen from the territory of the temporarily occupied peninsula, was sentenced in absentia to 10 years in prison.

To ensure fair punishment for the crimes of deportation and forcible relocation of persons, Ukraine takes measures to return its citizens. International organizations are involved to help bring back the Ukrainian children. According to the information of the Commissioner of the President of Ukraine for Children’s Rights, Daria Herasymchuk, 327 children had been returned by the end of March 2023.

In addition to children, representatives of the authorities and Ukrainian human rights defenders record numerous cases of the forced relocation of a vulnerable category of persons (people with disabilities) from social protection institutions of the population in the eastern and southern temporarily occupied regions. At the same time, there is a possibility of searching for such people with the involvement of the International Committee of the Red Cross only at the request of parents or guardians. Currently, Ukraine needs to develop a mechanism to return single people and people with disabilities, who are under the care of the institutions under Article 66 of the Civil Code of Ukraine.

It is futile to hope that the Russian authorities will grant representatives and staff of relevant international organizations with unhindered, immediate, and safe access, provide reliable and comprehensive information on the number and location of Ukrainian citizens, and ensure their decent treatment and safe return. Therefore, it is necessary to use all possible means to bring back all citizens, to guarantee forcibly displaced citizens that they will not bear negative legal consequences for such displacement, and to ensure their psychological and social adaptation after returning to Ukraine.

It is also important to spread information and appeal to the international community for support in the return of the adult deported and forcibly displaced population, to document these facts, which will make it possible to expand the circle of Russians who will be issued the International Criminal Court arrest warrant. Such persons primarily include deputies of the State Duma of the Russian Federation, who legalized the forced deportation of Ukrainians by adopting amendments to the federal constitutional law “On martial law”, according to which Putin can sign decrees on the forced resettlement of residents of occupied Ukrainian regions to territories where martial law has not been declared.

For reference

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union (helsinki.org.ua).

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