The Path of Least Resistance: Why Persecution, Not Genocide, is the Most Strategic Charge for Russia’s Forcible Child Transfers in Ukraine

[Paul Etone is a Senior Doctoral Candidate at the Victoria University of Wellington (New Zealand), researching on International Criminal Law, with a specific focus on child forcible transfers and re-education]

Introduction

The wake of the Russo-Ukrainian conflict has seen the large-scale forcible transfer and re-education of Ukrainian children by the Russian Federation, in Russia and Russian-controlled territories.  According to a report published by the Organization for Security and Co-operation in Europe (OSCE), while certain cases of child transfers were categorized as “non-consensual evacuations”, others were in line with Russia’s formal duties under International Humanitarian Law (IHL) (p. 2).

This piece advances a pragmatic legal argument: Russia’s practice of forcibly transferring Ukrainian children falls within the purview of persecution as a crime against humanity under Article 7(1)(h) of the Rome Statute. Crucially, this determination persists even in circumstances where the transfers appear superficially compliant with IHL. Ultimately, this piece argues that while the international community remains more fixated on the steep evidentiary heights of genocide, the crime of persecution offers the path of least resistance—serving as a more strategically potent charge for international prosecutors seeking comprehensive accountability for Russia’s forced child transfer practices.

Background: Forcible Child Transfer as Persecution

International jurisprudence has long recognized the forced displacement of populations as an act of persecution. This principle was forged through the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in cases like Prosecutor v. Stakić (para. 881)  and Prosecutor v. Naletilić and Martinović (para. 641) and was solidified by the International Criminal Court (ICC) in  Prosecutor v. Ali Kushayb (para. 68).

Notwithstanding the frequent prosecution of general mass displacements, there remains a notable absence of criminal accountability for the specific crime of forcible child transfer, especially when perpetrated within systematic re-education initiatives. To date, international prosecution of forcible child transfers, whether framed as genocide or persecution, has been rare, as observed by Moodrick-Even Khen (para. 78). 

An imbalance also exists in legal scholarship, where scholars appear to have demonstrated a marked preference for analysing forced child transfers through the lens of genocide, leaving the equally grave crime of persecution comparatively under-explored. This trend is especially noticeable in the case of child forcible transfers in Ukraine, where many legal scholars have focused their analysis of the transfers within the framework of genocide (e.g. Ioffe, Moodrick-Even Khen, Muelrath, Pylypenko, Mohammadi, Mundorff, Noone and Others).

While there are several scholarly writings on Russia’s child forcible transfer practices in Ukraine as genocide, the contemporary international legal response has remained unexpectedly narrow. In March 2023, Pre-Trial Chamber II of the International Criminal Court (ICC) issued arrest warrants for Vladimir Putin and Maria Lvova-Belova. Crucially, however, these warrants were restricted to the war crimes of unlawful deportation and transfer of population under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute.

Though such charges represent a vital first step, relying solely on these war crimes provisions captures only the physical displacement of Ukrainian children, leaving the structural, ideological apparatus behind their removal unaddressed. Elevating these forced child transfers to persecution as a crime against humanity provides a necessary expressive and legal upgrade. It shifts the judicial focus centrally from mere border crossings to a systemic, state-sponsored campaign involving an attack on fundamental child rights relating to identity, home and family life, freedom of thought and expression. As pointed out by the Regional Centre for Human Rights in Kyiv, the deportation of Ukrainian children by Russian agents is not merely an act of unlawful displacement of young Ukrainians but also a:

“violent interference with their identity, family ties, nationality, and the future of the next generations in general”.

Meeting the Severity Threshold and Proving Discriminatory Intent

Article 7(2)(g) of the Rome Statute defines persecution as:

“intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”

This definition has been developed in ICC Trial Chamber decisions such as Prosecutor v. Yekatom and Ngaïssona (para. 3840) and Prosecutor v. Al Hassan (para. 1209-1212). Persecution can be committed against any “identifiable group” and on political, racial, national, ethnic, cultural, religious and gender grounds or other grounds that are universally recognized as impermissible under international law, pursuant to Article 7(1)(h) of the Rome Statute. 

The forcible transfer of Ukrainian children to re-education camps constitutes a severe deprivation of fundamental human rights, inherently meeting the severity threshold required for persecution. In international criminal law jurisprudence, an act constituting a core international crime—such as forced child transfer—de facto meets the minimum level of severity required for a charge of persecution, as seen in the ICC Trial Chamber judgments of Al Hassan (para. 1204) and Prosecutor v. Ntaganda (para. 994).

The salient question, therefore, is whether these forcible child transfers are conducted with a discriminatory intent. For an act to amount to persecution, the perpetrator must consciously act with the intention to discriminate, as outlined in Prosecutor v. Krnojelac (para. 433). Because direct evidence of intent is rare, tribunals routinely infer discriminatory intent from the general behaviour of the perpetrator, the systematic nature of the attack and the broader circumstances surrounding the persecutory act. This metric has been outlined in several cases, including but not limited to Al Hassan (para. 1212), Yekatom and Ngaïssona (para. 3845) and Krnojelac (para. 184).

The general conduct of the Russian leadership provides ample evidence of this intent. Russian policies have systematically deprived Ukrainian children of their rights to cultural identity, nationality, family life, and freedom of expression. This intentional discrimination is evidenced by systematic Pro-Russia “re-education” programs, aimed at erasing Ukrainian identity and immersing Ukrainian children into Russian statehood and culture (Moodrick-Even Khen, p. 98-100). Ukrainian textbooks have been burnt, and in some cases, children have been arrested for singing the Ukrainian anthem.

Furthermore, evidence of the discriminatory intent of the forced child transfer operations can be seen within a broader rhetorical context characterized by the dehumanization of Ukrainians and the denigration of Ukrainian culture as backward. Dehumanising rhetoric in the context of the Russo-Ukrainian conflict has been analysed by scholars such as Ioffe (p. 339-345) and Joanna Siekiera (p. 71). Ioffe notes in this regard that Russia’s actions bear a “striking resemblance” to colonial-era practices where indigenous children in North America and Australia were forcibly transferred under the guise of “civilization” (p. 339).

The IHL Paradox: Neutralizing the Humanitarian Shield

In defence of its forcible child transfer operations, the Russian leadership has invoked a humanitarian argument, contending that children are being removed to protect them from the dangers of active hostilities (Ioffe, p. 24; Moodrick-Even Khen p. 103). Indeed, as the OSCE report found, certain cases of forcible child transfer by the Russian Federation were compliant with IHL (p. 2).

At first glance, recognising such humanitarian cases of forced child transfers as persecution may seem counter intuitive. Consider the historical parallel of Kruger v. Commonwealth where the Australian High Court rejected a claim that the 1918 Aboriginal Ordinance—which authorized the removal of Indigenous children—sanctioned genocide.  The Court found the impugned provisions were framed around “welfare” considerations intended to protect the child’s interest (Brennan, p. 13). Judge McHugh took the view that there was nothing in the impugned legislation which indicated an intent to destroy the Australian aboriginals (McHugh, p. 93). Because the text of the ordinance lacked an explicit intent to destroy the group, the allegation of genocide failed. The humanitarian or welfare framing effectively thwarted a finding of genocidal intent.

This historical example highlights the doctrinal bottleneck that may arise when trying to prosecute child forcible transfers driven by humanitarian intentions, under the framework of genocide. The approach in Kruger v. Commonwealth, nonetheless, does not reflect an international criminal law position on genocide and humanitarian intent. As identified by Ioffe, it is generally accepted amongst scholars in international criminal law that benevolent intentions are irrelevant in the determination of a perpetrator’s genocidal intent (p. 24). Nonetheless, proving genocide requires an extremely difficult judicial benchmark, where genocidal intent must be the only reasonable inference from all circumstantial evidence (Tolimir, para. 745; Prosecutor v. Karadžić, para. 2605).

A benevolent intention especially where it involves compliance with IHL, may cause reasonable doubt in the determination of a genocidaire’s individual genocidal intent to destroy, as the only reasonable inference. Where forced child transfers are made under a practical need to remove children from the dangers of hostilities, this effectively creates a competing reasonable inference, other than genocidal intent. This alternative inference makes it incredibly difficult, if not impossible, for a prosecution team to prove that genocide was the sole underlying intent.

In the case of persecution, compliance with humanitarian law (as justification behind forcible child transfers) could hardly impact a judicial determination of forced child transfers as persecution. Drawing from the jurisprudence of the ICTY in the Prosecutor v. Stakić (para. 286-287), the fact that certain forced child transfers instigated by the Russian leadership are compliant with IHL is certainly a matter of indifference for the crime of persecution, particularly where the perpetrator attempts to claim humanitarian imperatives arising from a crisis engineered by their own unlawful activity, being the invasion of Ukraine. As underscored by the ICTY’s ruling in the Prosecutor v. Tadić, what is necessary for the offence of persecution is some form of discrimination in relation to the actus reus (para. 697). A single instance of discriminatory forced child transfer, when committed as part of widespread and systematic attack against a civilian population, suffices for the offence of persecution (Prosecutor v. Kupreškić et al,  para. 624).

Conclusion: A Strategically Sound Alternative

While the scholarship on Russia’s forced child transfer operations has understandably focused on the legal framework of genocide, proving genocidal intent (dolus specialis) through the “only reasonable inference” test remains a notoriously high threshold. Introducing a humanitarian law compliant narrative behind Russia’s forced child transfer operations, effectively creates an alternative reasonable inference, making a definitive finding of genocidal intent behind the forced child transfers exceptionally difficult to prove.

The crime of persecution, on the other hand, has a more probative threshold of intent, which requires a discriminatory animus. Because it focuses on the individual deprivation of fundamental rights based on group identity, the ICC Prosecutor would find the evidentiary threshold for persecution far more readily attainable than that of genocide. The case for persecution in no way seeks to undermine existing arguments that the forced transfer of Ukrainian children could amount to a genocide. However, prosecutorial feasibility remains a key consideration for international criminal adjudications. For an international community seeking comprehensive accountability for Ukraine’s stolen children, persecution is not just an alternative charge—it is the more strategically sound path forward, which does not require prosecutors to scale the near-impossible evidentiary peaks of genocidal intent.

Photo attribution: by Max Kukurudziak on Unsplash