Laurie R. Blank, Clinical Professor of Law at Emory University School of Law, discusses the forcible transfer of Ukrainian children to Russia, their illegal adoptions and how, if proven, it might be a strong indicator of possible genocide against the Ukrainian people...
In late March, Ukrainian authorities reported that Russian forces had forcibly transferred over two thousand children from the Russian-occupied Donbas region of Eastern Ukraine into Russia. Other reports note that Ukraine’s Human Rights Commissioner asserts that more than 121,000 Ukrainian children have been forcibly deported to Russia, where the government is reportedly preparing the necessary regulations to “fast-track” adoptions of deported children by Russian families.
Russia’s atrocities in Ukraine are indescribably horrific and form a litany of war crimes and crimes against humanity—indeed, the conduct of Russian forces is a constant reminder of precisely why we have rules for the conduct of war. In addition, crimes against children are worthy of particular opprobrium, whether crimes of violence, mistreatment or, as the above reports allege, removal from their homes, families and communities.
The steady diet of rhetoric and propaganda—and possibly even semi-official or official plans—emanating from Russia for the destruction and extermination of Ukrainians adds a chilling new context to the reports of forced deportations and adoptions of children: the possibility, or even likelihood, that such actions are one component of an actual, intended or attempted, genocide against the Ukrainian people.
Genocide, often called “the crime of crimes,” is the most heinous international crime. Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.
This definition appears verbatim in the Rome Statute of the International Criminal Court and in the statutes of other international and hybrid tribunals. As it demonstrates, genocide is a specific intent crime—namely, the intent to destroy a particular group in whole or in part. This heightened mental state highlights both the unimaginable horror of the crime and the particular requirements for identifying and proving genocide.
The crime of genocide includes three main parts, each of which finds purchase in the news reports of forced deportation and adoption of Ukrainian children. First, the targeted or victim group must be a racial, ethnic, national or religious group. The definition of genocide limits the protected groups to those considered under international law to be stable or immutable, unlike the more fluid or fluctuating idea of political, economic or educational groups. Ukrainian children are, of course, members of a national group, one of the specific protected groups under the definition of genocide.
Second, the acts against such a group must fall within one of the predicate acts of genocide set forth in the definition. Although the most common perception of genocide involves mass killings of a particular group, such as in Rwanda or Srebrenica, the definition includes other acts that can have the same effect of bringing about the destruction of a group: preventing births; imposing conditions calculated to bring about the group’s destruction, such as mass starvation; and forcibly transferring children of the group to another group.
During World War II, the Nazis kidnapped and forcibly transferred thousands of Jewish children who were considered Aryan-looking to Germany in order to “‘cleanse’ them of their Jewish heritage” and forcibly “Germanize” them. Like many of the prohibitions and crimes identified in the Geneva Conventions and other treaties in the aftermath of World War II and the Holocaust, the specific acts set out in the definition of genocide were a direct response to these and other atrocities committed during that conflict. More recently, the United Nations Commission of Inquiry on the Syrian Arab Republic concluded that ISIS committed genocide against the Yazidis, including through the act of forcibly transferring Yazidi girls as sex slaves and Yazidi boys to be indoctrinated as ISIS fighters. If reports of Russian forces forcibly deporting Ukrainian children to Russia for adoption into Russian families are correct, such acts fall within the same category of offenses. A Venezuelan diplomat at the original United Nations Sixth Committee debates on the Genocide Convention explained why the inclusion of forcible transfer of children was an important aspect of the definition:
The forcible transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children.
Beyond the direct harm to the children of being ripped away from their homes and families and everything they know, the inclusion of this specific act in the definition of genocide is focused on the harm such forcible transfers cause to the group itself—which is the protected victim in the context of genocide.
Finally, the third component of genocide is the specific intent to destroy, in whole or in part, one of the named groups. This specific intent to annihilate the group to which the targeted individuals belong is the distinguishing feature of genocide and differentiates genocide from war crimes or crimes against humanity. Importantly, the definition of genocide includes efforts to destroy a group “in part,” thus avoiding any attempt by a perpetrator to evade responsibility by disclaiming any intention to exterminate an entire group.
Proving this specific mental element is challenging, particularly in the absence of documentation or other evidence—as a result, courts and tribunals often infer the requisite intent from the circumstances, such as the International Criminal Tribunal for Rwanda’s reliance on “the fact of [the perpetrators’] deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups.” If true, Russian steps to fast-track adoptions for forcibly transferred Ukrainian children will be an important indicator of such specific intent in any future investigations into possible genocide against the Ukrainian people.
Genocide is not a conclusion to be taken lightly or rashly—marshalling the evidence and proving the necessary intent to reach a determination of genocide is a painstaking and exacting process. But the forcible transfer and adoption of Ukrainian children will be an important, and horrifying, piece of any such conclusion in the future.
Laurie R. Blank is a Clinical Professor of Law, Director of the Center for International and Comparative Law and Director of the International Humanitarian Law Clinic at Emory University School of Law.
Suggested citation: Laurie R. Blank, Forcible Transfer of Children in Ukraine: An Element of Genocide?, JURIST – Academic Commentary, April 21, 2022, https://www.jurist.org/commentary/2022/04/Laurie-Blank-russia-invasion-ukraine-genocide/.
This article was prepared for publication by Raghu Gagneja, a JURIST Assistant Editor. Please direct any questions or comments to him at email@example.com
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