The Genocide Case Against Putin is Stronger Than You Probably Think: Part 3 – Stealing Ukrainian Children

[Kurt Mundorff is the author of A Cultural Interpretation of the Genocide Convention (Routledge, 2020)]

Russia’s longstanding practice of removing Ukrainian children from occupied territories and transferring them to special camps or for adoption by Russian families expanded exponentially with its 2022 invasion. Scholars with the Yale Humanitarian Research Lab (YHRL) found that “[m]ore than 19,000 children from Ukraine have been deported to Russia”, adding that the actual number is likely much higher. As they document, children are being held at least 210 locations across Russia, with at least 130 of those locations conducting “re-education activities.” They also found that Ukrainian children have been subjected to coerced adoption and fostering by Russian families, adding that these programs “appear engaged in systematic re-education efforts that expose children from Ukraine to Russia-centric academic, cultural, patriotic, and/or military education.”

Far from concealing these operations, Russian officials paraded the children on television as proof of their success in rescuing Ukrainian orphans. However, it is unclear how many of the transferred children are orphans or, if so, lack an extended family capable of caring for them in Ukraine. And in May 2022, President Putin issued a decree expediting the process of denationalization, stripping Ukrainian children of citizenship documents and bestowing Russian Federation citizenship, accelerating their adoption by Russian families, and rendering them subject to conscription by the Russian military.

In this final post of a three-part posting (Part 1, Part 2), I will argue that the way Russia has conducted these transfers proves genocidal intent.  The first essay outlined what I have labeled the “cultural genocide exclusion doctrine,” or simply “exclusion,” which is epitomized by the International Law Commission’s twin claims that: 1) the Genocide Convention’s drafters omitted all acts of cultural genocide, and 2) that they intended to restrict the convention’s reach to instances where a perpetrator intends a group’s material destruction. I also pointed out that the Genocide Convention’s text contains no indication that it excludes matters of cultural genocide and in fact appears to embrace many cultural aspects of group life. Part 2 argued that, contrary to exclusionist claims, the convention’s preparatory work does not demonstrate the drafters’ intent to exclude cultural matters. Rather, the evidence I outlined shows that most drafters believed they had included an act of cultural genocide, the forcible transfer of children, and that they twice rejected language that would have restricted the convention to only those instances when a perpetrator intends a group’s material destruction.  

Russian Child Stealing Amounts to Genocide

The UN Genocide Convention was enacted “to safeguard the very existence of certain human groups” and lists “forcibly transferring the children of the group to another group” co-equally with “killing members of the group” as one of the five acts of genocide. Culpability for genocide accrues when a perpetrator intentionally commits one of the five genocidal acts against a protected group, with the further intent to destroy that group. As the Genocide Convention’s drafters realized, taking a group’s children is as effective a way of destroying a group’s existence as killing its members.

Although Russian child stealing appears to qualify as genocide, the International Criminal Court arrest warrants, issued for President Putin and Russian Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova charge these acts as war crimes. I suspect that the cultural genocide exclusion doctrine has caused the ICC Prosecutor to shy away from genocide charges. But genocide is more apt.

I understand the Prosecutor’s hesitation. In a trenchant piece, William Schabas, arch-exclusionist and perhaps the leading voice on genocide law, takes on those who claim Russian child stealing could amount to genocide. Employing the vernacular of exclusion, Schabas declares that for child removals “to amount to genocide, there must be evidence of the specific intent to destroy the group physically.” But, because the removals are intended to culturally re-educate the children, he finds no evidence to support that contention. (848-49.) For these same reasons he and other exclusionists argue that the murders, torture, mass rapes, and depravations committed by the Russian forces in their invasion of Ukraine also fall short of genocide. Any prosecution of Russian child stealing will need to contend with these exclusionist arguments. (1, 2.)

Proving Genocidal Intent

 In Bosnia v Serbia (para. 373) the ICJ laid out three ways to prove the “further” intent to destroy a group. It held that: 1) “the dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances;” 2) “unless a general plan to that end can be convincingly demonstrated to exist;”  and 3) “for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.” (Reaffirmed in Croatia v. Serbia para. 148.) The “particular circumstances” of the Russian child removals appear to satisfy the first prong.

Res Ipsa Loquitor

Sands is right that the threshold for proving intent to commit genocide is “impossibly high” in most circumstances. Under the current standard, a court measuring whether Russia’s targeted mass killing of civilians amount to genocide would need to dismiss all plausible alternative explanations. For instance, the large-scale, targeted killing of civilians might be done to destroy the Ukrainian group, or it might be done for military advantage, to weaken the Ukrainians’ support for the war and hasten a settlement. The latter purpose would qualify these acts as war crimes, but not genocide. A prosecutor would need to disprove the latter to prove the former.

However, if my exclusion analysis is correct, the way these removals have been conducted proves genocidal intent. Former Secretary of State Antony Blinken called this out when in February of 2023 he said of the removals that “[s]eparating them from their families and then having them adopted by Russians; this is in and of itself, horrific. … It also speaks to the fact that President Putin has been trying from day one to erase Ukraine’s identity, to erase its future.”

 Beyond simply removing Ukrainian children, Russian officials have subjected them to an aggressive re-acculturation program. According to the Yale Human Rights Laboratory (YHRL):

The emphasis on re-educating children from Ukraine with Russia’s state curriculum and culture is integral to the camp network. Yale HRL defines re-education in this context as the promotion of cultural, historical, societal, and patriotic messages or ideas that serve the political interests of Russia. The widespread re-education of Ukraine’s children has occurred in 32 (78%) of camps …. The systematic pro-Russia education of Ukraine’s children takes many forms, including school curriculum, field trips to cultural or patriotic sites throughout the country, lectures from Russia’s veterans and historians, and military activities.

And as the YHRL documents, “Lvova-Belova personally sponsored numerous camps, including those Russia has called ‘integration programmes’ aimed at re-educating children from Ukraine in accordance with Russia’s education standards, immersing them in Russia’s culture, and encouraging children from Ukraine to ‘become their own’ in Russia.”

Child removals are not per se illegal. Afterall, many countries operate child welfare systems without running afoul of the Genocide Convention. If the welfare of Ukrainian children had been their only concern, Russian officials could have removed them while safeguarding their ethnic and national identity. Upon securing them from areas of military activity Russian officials could have returned the children to western Ukraine. Or if circumstances would not allow repatriation, they could have placed the children in camps or schools that allowed them to continue their education in the Ukrainian language and national identity. These simple measures would have safeguarded the children’s group identity while insulating Russian officials from allegations of genocide.

Instead, Russian officials took affirmative steps to destroy the identity of these children. In doing so they demonstrated the intent to destroy Ukrainians as an ethnic and national group. Applying the ICJ framework for proving genocidal intent, the transfers amount to “particular circumstances” that “convincingly show” Russian intent to destroy Ukrainians as a group. While there may be myriad excuses for taking these children from Ukraine, Russia’s re-education campaign is a “pattern of conduct” that can “only point to the existence” of genocidal intent. I can think of no other explanation.

It’s Time to Test Exclusion in the Judicial Crucible

I believe exclusion plays a gatekeeper function, limiting the type of genocide cases prosecutors are willing to pursue, which keeps it relatively insulated from judicial scrutiny, especially on the international level. But as I documented in the previous two posts, and more extensively in my book, exclusion lacks a basis in the convention’s text or history and has been questioned by international courts. It is little more than an easily falsifiable interpretive disposition grown into legal doctrine, a doctrine ripe for challenge. Still, I am skeptical that the Invisible College of International Lawyers, functioning as an interpretive community, will course correct. I suspect that groupthink and the influence of powerful voices like Schabas’ will conspire to defend exclusion, despite its legal frailty. Against this background, former President Biden’s inclination to “let the lawyers decide internationally whether or not” Russian actions qualify as genocide seems naïve.

And yet it is worth taking stock of what will be lost if the international community ignores this opportunity to charge Russian leadership with genocide. First, the doctrine of exclusion will continue to escape substantive judicial scrutiny. Next, the term “genocide” best matches Russian crimes against Ukraine, and Ukrainians are unlikely to feel that their suffering has been truly addressed until it is called by its proper name. And finally, this sordid act – the stealing of “Other Peoples’ Children” – will not stop until we enforce the law against it.