Why is the transfer of Ukrainian children to Russia a genocide? 

Regarding Russia’s brutal war of aggression which it started against Ukraine, society has widely accepted the idea that the Russian army has been committing genocide against Ukrainians ever since. As genocide widely perceived as the crime of crimes. But whether Russian army’s actions do really constitute a genocide and not just bunch of unrelated crimes? 

First, it is necessary to separate the political interpretation of genocide from the legal one. For example, world leaders support the claim as an additional gesture of demonstrating their loyalty to the Ukrainian cause.

However, their arguments are of political nature, not the legal one. But if we really want to prove the genocide and punish those guilty, we must consider the matter from a legal point of view. Therefore, we proceed from the legal language, since it speaks of evidence, so the fact of genocide must be proven (even if it seems obvious to us).

Methodology

The UN Convention on the Prevention and Punishment of the Crime of Genocide provides a judicial definition of this crime. It entered into force in 1951 elaborated by Raphael Lemkin, graduate of the Lviv National University. So, under the Convention genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

• Killing members of the group;
• Causing serious bodily or mental harm to members of the group;
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
• Imposing measures intended to prevent births within the group; 
• Forcibly transferring children of the group to another group.

Notably on July 13, the European Union and 43 other states published a joint statement supporting Ukraine's intention to condemn the Russian Federation in the UN International Court of Justice for violating this very Convention.

Apparently, the commission of this crime by an individual should be prosecuted by the International Criminal Court. The founding document of the ICC, the Rome Statute, says that those guilty for the gravest international crime can face life sentence. The provisions of the Rome Statute’s Art. 6 regarding genocide are identical to those in the Convention. 

Ukrainian Criminal Code’s Art. 442 also ensures gross penalty for this crime, but capacity of our law enforcement to conduct such a large-scale investigation is questionable. Therefore, it is appropriate for the International Criminal Court to take up the investigation. In addition, it would add to the objectivity of the future trial. The Court has a particular mandate to investigate those crimes which state alone cannot cope with. While the masterminds will be brought to the ICC, the perpetrators can be punished within national jurisdiction. 

However, there were a few instances of judicial criminal proceedings сoncerning genocide, 5 to be precise: the Nuremberg Trial, ICTY, ICTR, Extraordinary Chambers in the Courts of Cambodia and the case of Sudan which is now in the ICC. 

To prove genocide, we have to prove a genocidal intent to destroy Ukrainians as a national group in terms of crimes mentioned in the Convention. And here comes a dilemma. The crime of genocide considered as the hardest to prove specifically due to the complications of proving the intent to destroy the whole group. That is why we need to choose a livable strategy. 

For instance, to prove murder as genocidal one, we must prove that the person was killed because of their nationality, race or religion. The difficulty of proving intent allows criminals for a wide range of tools to protect themselves. And we should not forget that every fact must be proven, which requires tremendous amount of time, human resources, and finally money.

Russian authorities, unlike their Nazi counterparts and African dictators had examples in them and essentially learned from them. They do not use gas chambers, do not build concentration camps, and do not slaughter people by thousands with bare hands even avoiding direct instigation. Genocide now also has a hybrid form. The Russian army hunts down people in small groups in different regions of Ukraine, arrests pro-Ukrainian activists. So, But all this is happening against the background of the denial of the Ukrainian nation by the highest officials of the Russian Federation. 

Therefore, today it is necessary to choose the most promising fact from the point of view of proof in the International Criminal Court, which can bring us closer to punishing those guilty. 

How to prove genocidal intent?

The history of negative relations with Russia for Ukrainians stretches back almost 400 years and has a lot of evidence of attempts to destroy such a nationality as a Ukrainian: from Catherine II's 1763 ban on teaching Ukrainian at the Kyiv-Mohyla Academy and the Emsk Decree of Alexander II in 1876, which supplanted the Ukrainian language from the cultural sphere to the famine of 1932-33 and the deportation of the Crimean Tatars in 1944 in the USSR.

Russia, by all accounts, still remains an empire. Therefore, the desire to destroy everything Ukrainian is actually a part of the so-called "Russian idea", which has prevailed for centuries. All this time, the Russian authorities did everything for the assimilation of Ukrainians, manipulating the common origin, religious factor, and historical facts. We constantly hear the argument about "denazification", the myth of "one nation", denial of the Ukrainian nation's right to exist. This is voiced by both Kremlin spokesmen, officials and politicians. All this, imposed on the сriminal facts, can be interpreted as genocidal intent, or at least, incitement to genocide.

And the analysis of the speeches of the above-mentioned categories of persons, and Russian actions in the temporarily occupied territories can serve as a modern proof of the desire to destroy everything Ukrainian. For example, the burning of Ukrainian books and the forced introduction of Russian curricula in Ukrainian educational institutions. Since 2014, in the territories controlled by the Russian Federation, the Ukrainian language is no longer heard as well as the music. In addition, forced passportization of the population is taking place.

Article 2 of the UN Genocide Convention contains a clause regarding deliberate infliction on the group conditions of life calculated to bring about its physical destruction in whole or in part. Nowadays, the forced issuance of Russian passports should be interpreted as the creation of such conditions.

After all, in this way, the authorities of the Russian Federation are simply destroying Ukrainian identity, creating conditions under which it is impossible to be Ukrainian in the occupied territories. So, genocide is not only about murders, but also about the destruction of cultural space, which in our conditions is equal to murder, but proving this aspect is much more difficult. Moreover, to find specific culprits. 

And there were cases of acquittal for the crime of genocide in international judicial practice. As a matter of fact, the commander-in-chief of the Bosnian Serb army, General Ratko Mladic, and the president of the Serbian state (a national entity in Bosnia and Herzegovina), Radovan Karadzic, were acquitted by the International Tribunal for the Former Yugoslavia on charges of direct genocide in Srebrenica. In the first case, the group of persons was too small to prove genocidal intent, and in the second case, to prove that the conditions of the victims, although terrible, were not aimed at physical extermination. Accusations for the fact of committing genocide were received by other persons who held less significant positions. Although all received the same life sentence, a guilty verdict in the direct commission of genocide against the highest officials would have a symbolic meaning.

That is why we need to choose the legal path that would leave no room for maneuver for the highest echelons of the Russian government.

What strategy should be chosen to prove genocide?

In my opinion, the fact of the systematic transfer of Ukrainian children to Russia (over 300,000 according to the Russian Federation) is the most promising for proving genocide. Among these children are those who are deprived of parental care or even orphans. They, of course, cannot stand up for themselves.

The Russian ombudsman under Putin's administration, Maria Lvova-Belova, doesn’t even hesitate to talk about deportations openly while sharing on her social networks where children from the occupied part of Donetsk region have been placed. Therefore, such actions absolutely correspond to the clause of the Convention on the Prevention of the Crime of Genocide and its Punishment: "forcible transfer of children from one human group to another." Both systematicity and criminal intent are traced here as well as there are documented facts.

The Russians themselves film and document how they carry out the "evacuation" of Ukrainian children. There is also an attempt to assimilate them: President Putin signs a decree on simplifying the adoption of children from abroad.

If we compare these facts with the calls of Russian propagandists to destroy the Ukrainian nation, we will get a substantial ground to begin criminal prosecution for all those involved in the commission of genocide. In this context, there are chances to prove both the motive (destruction of identity) and the instrument of committing the crime by means of forced deportation.