On March 17, 2023 the International Criminal Court (“ICC”) issued arrest warrants for Russia’s President Vladimir Putin, as well as Maria Alekseyevna Lvova-Belova, Russia’s Commissioner for Children’s Rights in the Office of the President. The ICC issued the arrest warrants based on what it believed to be reasonable grounds: for the war crime of unlawful deportation and transfer of Ukrainian children. We’ll first explore Russia’s detention and transfer programs, how these programs violate international law, and finally, the potential accountability mechanisms for Russian leaders who are responsible for the detention and transfer programs.
Russia’s Filtration and Forcible Transfer Plan
Since the early days of Russia’s invasion of Ukraine, there have been reports of various war crimes and crimes against humanity. The invasion itself was seen as an illegal act of aggression. Russia has been subjecting Ukrainian civilians to “filtration” and forcibly transferring them to Russia or Russian occupied territory. The filtration process takes place at filtration camps, where Ukrainian dissidents are taken as the government works to clamp down on resistance. Filtration camps are also at civilian check-points along the travel path of Ukrainians who may be fleeing violence. At these filtration camps, civilians are identified, interrogated, searched, and usually forcibly transferred to Russia or Russian controlled territory. Russia justifies this practice by claiming they are “saving” Ukrainians who voluntarily go to Russia. Russia even developed a network of detention and deportation centers before the invasion began, specifically meant to target children. Russia claims these detention and deportation centers are a humanitarian effort to rescue abandoned orphans. After being deported to Russia, these Ukrainian children undergo “rehabilitation and reeducation” and are placed with Russian foster families. The U.S. Ambassador to the United Nations, Linda Thomas Greenfield, and U.S. Secretary of State Anthony Blinkin, have both called this practice of filtration and forced transfer a war crime. The head of the U.N. Refugee Agency has said Russia’s forced deportation of children is a violation of the “fundamental principles of child protection.”
The International Law on Filtration and Forced Transfer
International law has yet to define “filtration” as a human rights violation, but experts seem to agree that Russia’s filtration and forcible transfer program of civilians and children violate international human rights law. International courts have also found that acts which are not explicitly defined in human rights instruments can still amount to actionable human rights claims. For example, the Inter-American Court on Human Rights found that forced disappearances violated the right to life, liberty, and humane treatment, even when disappearances were not yet defined by any human rights treaty.
When announcing the arrest warrants against Putin and Lvova-Belova, the ICC prosecutor stated the filtration and deportation program violated Article 8(2)(a)(vii), prohibiting unlawful deportation or transfer, and Article 8(2)(b)(viii), prohibiting the transfer of a population by an occupying power from its territory. Additionally, the Russian program of abducting and relocating children may amount to a violation of the crime of aggression under the ICC’s Rome Statute. The Rome Statute defines the crime of aggression as reserved for only the highest ranking leaders of a state who violate the “sovereignty, territorial integrity, or political independence of another state”, or any other acts inconsistent with the U.N. Charter. Russia’s program of abducting and transferring children has been shown to be authorized at the highest levels of the Russian government, and the forcible transfer of another state’s citizens would likely qualify as violating Ukraine’s sovereignty and political independence, and thus the U.N. Charter. Neither Russia nor Ukraine are a party to the Rome Statute, so these provisions are not binding against citizens from those states, unless they voluntarily accept the ICC’s jurisdiction.
The filtration process likely amounts to cruel, inhumane, and degrading treatment (CIDT), which is considered a crime against humanity and war crime under international law. Secretary Blinkin noted the filtration process was a violation of the Fourth Geneva Convention (“GC IV”) on the protection of civilian persons. GC IV requires parties to refrain from physically coercing civilians, prohibits torture, and grants foreigners in a country to the conflict the right to leave that territory. Russia’s filtration process seems to violate these provisions. In regards to children and family separation, GC IV requires states to facilitate reunification of dispersed families, to protect children when they are separated from families, and to facilitate the reception of separated or abandoned children in a neutral country. The two Additional Protocols of the GC IV further articulated the duty to “facilitate in every possible way the reunion of families” separated by conflict. Russia’s practice of deporting and “reeducating” Ukrainian children in Russia violates these provisions. Because both Russia and Ukraine are parties to the GC IV, these provisions may be applied against Russia.
Assuming Russia is in violation of the GC IV for its filtration and forced transfer programs, how might the international community get Russia to cease this practice or seek accountability?
The United Nations is unlikely to be a source of accountability or enforcement action because of Russia’s veto power as a permanent member of the U.N. Security Council. Under Chapter VII of the U.N. Charter, the U.N. Security Council is responsible for authorizing all enforcement measures or ad hoc tribunals taken by the United Nations, and Russia could simply veto any proposals aimed at shutting down its filtration and transfer program. Ambassador Greenfield and the U.N. Under-Secretary-General for political affairs have both called for Russia to allow independent observers and investigations to monitor and report on the filtration camps. However, it is unlikely that Russia would allow independent investigations into its military filtration and detention centers.
Accountability for the crime of aggression might be possible, but challenging. As mentioned above, neither Russia nor Ukraine has ratified the ICC’s Rome Statute, which grants the court jurisdiction to hear cases against states. So far the ICC’s investigations into the Ukraine situation have been based on Ukraine’s declarations of consent and referrals from other state parties to the ICC requesting an investigation. However, the ICC does not have the authority to execute arrest warrants and requires the cooperation of the country where a suspect is located, and it is unlikely Russia will voluntarily hand over Putin, Lvova-Belova, or any other high ranking officials to be prosecuted. Even if the ICC cannot execute its arrest warrants, the European Union (“E.U.”) has also been investigating Russian crimes in Ukraine and coordinating with ICC investigators and member states. On March 4, E.U. President Ursula von der Leyen announced the E.U. would move forward with creating the International Centre for the Prosecution of Crimes Aggression against Ukraine (“ICPA”), a tribunal dedicated to prosecuting Russian leaders for the crime of aggression. Von der Leyen said the ICPA was designed to fill in gaps in the ICC’s ability to prosecute, although it is unclear what the E.U.’s basis for jurisdiction over Russians would be.
If the ICPA has jurisdiction to prosecute Russian leaders for the crime of aggression, Russian leaders are unlikely to voluntarily participate in the trial, go before the court, and face evidence against them. High ranking leaders tend to want to avoid legal accountability for violations of international law. For example, former Peruvian President Alberto Fujimori escaped accountability for five years by fleeing to Japan, and former Chilean President Augusto Pinochet escaped trial from the time he stepped down from public office in 1998 until 2000. If Russian leaders refuse to participate, the tribunal would need to consider the possibility of allowing for trials in absentia, even though trying a defendant without their involvement may raise fair trial and defendant rights concerns. Lack of cooperation with the ICPA will also make enforcement of any verdicts challenging, and it is possible that no Russian leaders will be imprisoned, even if found guilty, if they refuse to leave Russia and are not forced to turn themselves over. The ICTY trial of Serbian leader Slobodan Milosevic illustrates the challenges of holding state leaders accountable without their cooperation. Milosecvic was indicted by the ICTY in 1999, but managed to hide and avoid accountability in Serbia until 2001. His trial experienced many delays due to his health, and the fact that he insisted on representing himself. Ultimately, Milosevic died in 2006 before a final verdict was announced against him, denying victims definite closure. The ICPA should be aware of the challenges faced by previous special international tribunals in order to learn from their mistakes.
Conclusion: Viable Paths To Accountability
If legal accountability through international tribunals for Russian officials is unlikely to be successful for the reasons described above, then accountability may be pursued through alternative means. Crimes against humanity, war crimes, and the crime of aggression are considered crimes subject to universal jurisdiction. Universal jurisdiction can allow states jurisdiction over perpetrators of the most serious human rights violations, where the perpetrator is within that state’s territory. This would mean that any state with universal jurisdiction statutes for the types of offenses being committed by Russians in Ukraine could prosecute Russians in their territory. Russian leaders would not be able to escape accountability by hiding in third countries that have these statutes, after the war. Domestic prosecutions for war crimes and crimes against humanity have been successfully litigated in Germany for crimes committed in Syria, and similar prosecutions could be used here.
When accountability through traditional legal mechanisms is not a viable option, targeted sanctions may be a useful alternative accountability mechanism. The United States, Canada, the United Kingdom, and the E.U. have all created legislation, called Global Magnitsky Acts, allowing them to impose sanctions on individuals and entities found to have committed human rights violations. Global Magnitsky sanctions block perpetrators from traveling to the country imposing the sanction, as well as blocking all of their assets in that country and their ability to do any future business in that country or with businesses in that country. More countries should adopt legislation like the Global Magnitsky act to make the imposition of sanctions more impactful, and countries with Global Magnitsky acts should strengthen them to close any gaps in accountability. Blocking Russian leaders and oligarchs from traveling to or doing business with as many other countries as possible through an expansion of the targeted sanction regime can cripple their resources, limit their ability to seek refuge or escape accountability by confining them within Russia, and reaffirm and strengthen the norms against these harmful rights violations.
Author Biography: Meredith Gusky is a Senior Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a third-year student at both the George Washington University Law School and Elliott School for International Affairs. She is also a Member of the International Law in Domestic Courts Journal. Meredith is interested in international human rights law, international criminal law, and transitional justice.
Editor: Samantha Hoover, GW Law J.D. Candidate, 2024.