The UN Committee on the Rights of the Child and Russia’s Deportation of Children from Ukraine

The UN Committee on the Rights of the Child and Russia’s Deportation of Children from Ukraine

[Dr Alison Bisset is Associate Professor in International Human Rights Law at the University of Reading, UK]

Since the International Criminal Court’s arrest warrants for Vladimir Putin and Maria Lvova-Belova for war crimes in March 2023,  the deportation and unlawful transfer of children from occupied areas of Ukraine to the Russian Federation has been the subject of international legal, media and institutional attention. Exact numbers are difficult to come by. At the time of writing Children of War reports that 19,546 children have been deported. Reports suggest that many deported children may have been given Russian citizenship and illegally adopted. Others have been placed in re-education camps. In January 2024, concerns were again raised about the fate of deported children when President Putin signed a decree which further expedites the process for the granting of Russian citizenship. Under the decree orphans and children without parental care who are citizens of Ukraine can acquire Russian citizenship by personal decision of the President of the Russian Federation. 

Russia has consistently denied deportation of Ukrainian children and has dismissed ICC arrest warrants on the grounds that, as a non-States Party, it does not recognise the Court.  To date, there have been few opportunities to hold Russia to account. However, on 22 and 23 January, a delegation from the Russian Federation appeared before the UN Committee on the Rights of the Child as part of the periodic reporting process required under the Convention on the Rights of the Child (CRC). Ahead of the sessions, there was considerable interest in how Russia might respond to questions from the Committee on the deportation of children from Ukraine.

This post considers the proceedings before the UN Committee on the Rights of the Child and Russia’s justifications for the transfer of children from Ukraine. It will show that Russia’s explanations do little to assuage concerns about the transfer and treatment of children from Ukraine. Indeed, there should be grave concern that Russia continues to fall foul of international humanitarian law (IHL) and CRC standards.

The Legal Framework

The Committee on the Rights of the Child is well placed to undertake analysis of Russia’s actions in its conflict with Ukraine. As a States Party to the CRC, Russia is obligated to report to the Committee (Article 44, CRC) and to participate in the dialogue with Committee members that forms an integral component of implementation and monitoring of CRC standards. As non-States Party to the ICC, Russia can be dismissive of the Court. It is harder to discount the authority of the Committee on the Rights of the Child, the monitoring body of a treaty regime which the Russian Federation voluntarily ratified. In addition to considering violations of international children’s rights law, the Committee can examine Russia’s conduct under IHL because Article 38(1) of the CRC requires states parties to respect applicable IHL, including the protection and care of children affected by an armed conflict. 

The extent of Russia’s international legal wrongdoing in its deportation of children from Ukraine is well-documented, particularly as regards IHL. Under IHL children are ‘protected persons’, attacks against them are forbidden, they are to be treated humanely (Geneva Convention IV, Article 4) and provided with the care and aid they require (Article 77 of Additional Protocol I of 1977). IHL requires the creation of systems to identify and register separated children (Geneva Convention IV, Article 24. The temporary evacuation of children – which should be to a neutral state – is strictly regulated and requires the consent of parents or guardians, as well as a system to register the whereabouts of any evacuated children (Geneva Convention IV, Article 24, API, Article 78). Changing the family or personal status, including nationality or civil status, of children is prohibited (Geneva Convention IV, Article 50). 

Forcible transfer or deportation of civilians, including children, is prohibited under the Fourth Geneva Convention (Article 49(1)) and constitutes a ‘grave breach’ of the Conventions which ought to be prosecuted, unless required by the security of the civilians or imperative military reasons (Article 147 of Geneva Convention IV and Article 85(4)(a) of Additional Protocol I). As is now well-known, forcible transfer and deportation can constitute war crimes (Article 8(2)(b)(viii) ICC Statute) and crimes against humanity (Article 7(1)(d)) incurring individual criminal responsibility under the Statute of the International Criminal Court. Deporting children from Ukraine, imposing Russian citizenship upon them and placing children for adoption would fall far short of international legal standards. 

The potential litany of CRC violations has received less attention than those under IHL and International Criminal Law. However, the importance of the CRC, which is ratified by all states other than the USA, and provides the central normative framework for the protection and promotion of children’s rights globally, should not be overlooked. The CRC is guided by four principles: non-discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and the right to be heard (Article 12). These are not merely notions to pay lip-service to but binding international legal obligations which require states to take proactive legislative, administrative and other measures (Article 4) to create an environment which respects the dignity and holistic development of every child (General Comment No. 14, (2013)).

Under the CRC, children have rights to a name and nationality and to know and be cared for by their parents (Article 7(1)). States parties undertake to respect the right of the child to preserve their identity, including name, nationality and family relations, without unlawful interference (Article 8(1)). States must ensure that children are not separated from their parents against their will, other than in accordance with due process and where this would serve their best interests (Article 9(1)). Generally, no child is to be subjected to arbitrary or unlawful interference with their privacy, family or home (Article 16(1)). Adoption is also regulated (Article 21) and operates around the child’s best interests as the paramount consideration. Adoption is not permitted in the absence of an evaluation regarding the child’s status concerning parents, relatives and legal guardians (Article 21(a)) and intercountry adoption is to be considered as a last resort (Article 21(b)).

The relevance of Russia’s alleged actions to the mandate of the Committee on the Rights of the Child is therefore readily apparent and it is against these legal frameworks that the Committee considered Russia’s periodic reports. 

Proceedings Before the Committee on the Rights of the Child

The Committee’s List of Issues, transmitted to the state in advance of the dialogue, asked for explanation of the measures taken by Russia to ensure respect for IHL standards requiring the protection of children and civilian facilities and for detailed information on Russia’s alleged transfer of children from Ukraine. In particular, information was sought on the number of children transferred, the number who have acquired Russian citizenship, and the number adopted. Russia was asked to explain the measures in place to ensure the protection of transferred children, including preservation of their nationality and monitoring of their whereabouts, and the system in place to facilitate their return to their families.

Russia’s written replies to these issues were light on detail. There was acknowledgement that approximately 2,000 children had been ‘evacuated’ from Ukrainian institutions. The Replies stated that the Presidential Commission for Children’s Rights maintains a database of children who need to be reunited with their families, which is a state priority. 34 such children had been reunited with relatives living in Ukraine, and elsewhere, as of September 2023. No further concrete data was offered in response to the Committee’s List of Issues. Russia rejected the assertion that it had facilitated the adoption of Ukrainian children, referring instead to systems of placement, guardianship and tutorship and accused foreign media of terminological error in using the term adoption. 

These issues had been not addressed by the end of the inter-active dialogue on 22 January. Inevitably, as the first day concluded and questions for the following day were identified, Committee members sought specific explanation on deportation and its compliance with Article 38(1), Russia’s naturalization and adoption processes for Ukrainian children, efforts to maintain cultural identity and family connections, and policies on safe return. 

Like the written replies to the List of Issues, the delegation’s responses to these questions on 23 January were woolly and circular. The delegation refuted the allegation that Ukrainian children had been deported to Russia. Referring to data from the Ombudsman, the delegate stated that approximately 3 million residents of Ukraine had been ‘accepted into’ Russia, including 3,000 children who had been ‘evacuated’ from orphanages in Luhansk and Donetsk. Some had been placed in temporary shelters or with relatives, others were in something akin to foster care. On the question of adoption, there was a lengthy and confused discussion on terminology, which seemed designed to obfuscate analysis of the real issues. Adoption of Ukrainian children was repeatedly denied (other than from Crimea which was considered a ‘normal process’) but the focus on terminology and repetition of points already made within the written replies meant that the questions around naturalization processes were dodged. Specific data on the numbers transferred, adopted and granted citizenship were not forthcoming. 

The Delegation claimed the existence of systems for receiving inquiries, tracing and return within the Ombudsman’s Office but conceded that there was no single body within the Office tasked with this work, nor had staffing or budgets increased to reflect the likely additional demand for these services. Technical explanations about the division between federal and regional powers were delivered at length, again diverting discussion from the focus of the question which had asked about the existence and operation of tracing and return processes and the numbers involved. 

No data was available on allegations of IHL violations including killings and injuries, arbitrary detention, torture, sexual violence and destruction of civilian infrastructure. The consequences of the war for children in Ukraine and Russia were considered “predictable’ by the Delegation. 

In many ways, the outcome of these proceedings is unsurprising. Russia continues to deny policies of deportation, naturalization and adoption of children from Ukraine, which would contravene international legal standards. Instead, it seeks to paint itself as compliant with international requirements in its arrangements for children without parental care or guardianship and its processes for tracing and returning separated children. The contention that foreign media has manipulated or misunderstood the terminology around adoption was made repeatedly, with the implication that this is a deliberate ploy to villainise Russia on the international stage.

Perhaps more can be seen from what the Delegation did not or could not explain – the fudging of fostering/guardianship/adoption processes, the dodging of questions on naturalization, and the inability or unwillingness to provide specific data on the numbers of Ukrainian children who have been deported, naturalised, and adopted. Nothing from the two-day dialogue alleviates concerns for children who have been deported from Russia to Ukraine. Indeed, the ducking and evasion only goes to reinforce it.

In bringing the dialogue to a close, Bragi Gudbrandsson, Head of the Country Task Force, stated that the Committee’s key message to the Russian Federation was that it should cease military operations in Ukraine in order to avoid further violations of children’s rights. At that point, the largely cordial and benign proceedings were slightly unsettled. The Head of the Russian Delegation responded that the Russian Federation would not consider itself obliged to fulfil recommendations which were not aimed at the fulfilment of children’s rights in Russia but were biased and an interference in the affairs of a sovereign state. That statement possessed a clarity and directness that had been sadly lacking in discussions around Russia’s conflict in Ukraine during the preceding days. 

Concluding Observations

The Committee’s Concluding Observations were issued in early February. Over two pages of the 17-page report were dedicated to violations of children’s rights in Ukraine.  The Committee expressed its deep concern over the ongoing conflict, the hundreds of killings and injuries from bombing and shelling, and reports of forcible transfer and deportation, deprivation of nationality, sexual violence, arbitrary detention and torture, attacks on schools and hospitals and enforced teaching of Russian curricula and military training in schools in the Ukrainian territory occupied by Russia. Many of these violations are not only violations of CRC standards but constitute grave violations against children in armed conflict. 

Concerns were raised about the role of Lvova-Belova, Commissioner for Children’s Rights, in the war crimes of unlawful deportation and unlawful transfer. The Committee called for national investigation of the allegations against her, and for strengthening of human rights monitoring institutions to ensure independence and compliance with the standards of the Paris Principles on national human rights institutions. 

Among other recommendations, the Committee urged Russia to bring an end to deportation of children from Ukraine and to provide information on the numbers of children taken and their whereabouts so that their parents and legal representatives can track them and ensure their timely return.  Russia was further impelled to ensure that no child is deprived of their Ukrainian nationally and to preserve and protect their identities, names and nationalities. Finally, the Committee called on Russia to carry out independent and effective investigations into violations of IHL and international human rights law committed since February 2022 and to cooperate with the UN Commission of Inquiry and the ICC. The stance and statements of the Russian delegation during the inter-active dialogue suggests that compliance with the Committee’s recommendations is, unfortunately, unlikely. 

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