Part 4: If you want to conquer a people, raise their children
Analysts/Authors: Desirée Vázquez Aranda , Lou Crignon, Martina Danesi, Nicoleta Banila and Deniz M. Dirisu
Edited by: Emma Urbanová
Introduction
The last part of the four-part investigation considers the potential liability of the middle management of the illegal child transfer scheme conducted under the leadership of Lvova Belova and Vladimir Putin, both of whom possess arrest warrants for the crime of genocide for the illegal transfer of Ukranian children from Ukraine to Russia for the purpose and effect of genocide and Russification.
Indeed, it is of utmost significance to ensure the accountability of high-ranking individuals for their involvement in criminal offences. Equally significant, however, is the imperative to exact accountability upon mid-level perpetrators, for without their active participation, the commission of these crimes would not have been rendered efficacious, or perhaps, would not have occurred at all.
We also insist that the distinction between mid-level management and lower-level individuals who might assert that they were merely "following orders" lies in the former's possession of intricate comprehension of the overarching criminal scheme, their profound involvement in its execution, and their potential to wield influence over policy formulation or high-level leadership.
The Mastermind
Presidential Commissioner for Children’s Rights Maria Lvova-Belova is the one tasked by President Putin with the forced transfer of children from the occupied areas to Russia and facilitating their placement and adoption in foster care families, as well as ensuring that they are issued new birth certificates and given Russian citizenship. The first articles about the deportation of children to Russia and Belova’s role in the scheme were published starting in June, after the UK and other states, as well as the EU Council, added Belova to their list of sanctions.
She dismissed the articles as fake news. “The placement of orphans in Russian families is done in the interests of children and in strict accordance with the law,” she claims. As for the sanctions, she states: “Getting on the sanctions lists is like a hero's star. I already have five of these … In general, this [inclusion on the list] is an indicator that now children cannot be hidden behind like human shields because children are now safe.”
However, Belova is not the sole perpetrator in this scheme of forcible transfer of children. While asking for more funding for her programs, Belova mentioned that her team has tripled to 100 members who are helping with the deportation and placement of children. Belova's activities in the Miro board link reveal circumstances in which over 380 children were forcibly transferred for adoption and guardianship in Russia from Donetsk, Lugansk, Kherson, and Mariupol.
Aiding and abetting the commission of an international crime
Article 25(3)(c) of the Rome Statute provides for a specific type of liability, which is the liability to aid and abet the commission or the attempted commission of an international crime. To use the words of the Rome Statute, this liability requires that the offender “aids, abets or otherwise assists in commission, or attempted commission” of a crime [art. 25(3)(c), Rome Statute]. Generally speaking, aiding refers to some kind of physical assistance in the commission of a certain international crime, while abetting “suggests encouragement or another manifestation of moral suasion” [International Criminal Law, A commentary of the Rome Statute, William A. Schabas, p. 577-578]. Such a type of liability requires that a qualitative and a quantitative threshold is met to hold someone responsible for the commission of an international crime.
International criminal tribunals have tried to define this standard for many years; however, notwithstanding their efforts, this concept remains quite ambiguous and susceptible to the relevant jurisprudence. For instance, in the Kvočka case, the International Criminal Tribunal for the former Yugoslavia stated that: “whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons” [Kvočka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 90]. In the Tadić case, it was confirmed that complicity involves “supporting the actual commission before, during, or after the incident” [Tadić (IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 692]. In Blagojević, the Tribunal, deciding on the liability for the Srebrenica massacre, stated that “[i]t is required for ex post facto aiding and abetting that at the time of the planning, preparation or execution of the crime, a prior agreement exists between the principal and the person who subsequently aids and abets in the commission of the crime” [Blagojević (IT-02-60-T), Judgment, 17 January 2005, para. 731].As mentioned above, according to Paragraph (c) of article 25(3) of the Rome Statute (and differently from other ad hoc international criminal tribunal statutes), an act of complicity must be “[f]or the purpose of facilitating the commission of such a crime”. This statement underlines that to be held responsible for the aiding and abetting of an international crime, it is not sufficient to be aware that the acts committed will serve to facilitate the perpetration of a crime, as it is also necessary that the aider and abettor has the specific intent to commit that crime; an intent that must be demonstrated and proved [International Criminal Law, A commentary of the Rome Statute, William A. Schabas, p. 578-579].
In conclusion, it could be argued that for someone to be held responsible for aiding and abetting the commission of an international crime, it is required that (i) the acts of the aider and abettor provide a contribution to the actual commission of the crime and that (ii) the aider and abettor has the purpose of facilitating the commission of a specific crime through the performance of his/her acts.
The Aides
Aleksey Petrov is mentioned in very few official documents as an advisor to the Office of the Commissioner for Children's’ Rights of the Russian Federation. Despite his very discreet public presence, he has been on the Council of the EU’s sanctions list since December. “In this role, he is involved in the illegal transportation of Ukrainian children to Russia and their adoption by Russian families”, the Council states.
We managed to find only one press release on the website of Belova’s office mentioning his official capacity (and his phone number) and twice (1,2) as a “Children in the Hands” campaign coordinator. The phone number helped us find his photo and discover that as of 2018 and 2019, he was an employee of the PR firm Polylog and the Eurasian Orthopaedic Forum 2019 organiser.
Unlike Belova, he has a restrained public and social media presence and does not appear listed in his official capacity in media materials or governmental websites. Using specific tools, we managed to find him in several photos accompanying Belova and children from Mariupol on a sightseeing tour in June, at a meeting with children from Mariupol, opening a joint camp session for teenagers from DPR and Russia, and inaugurating the humanitarian mission "Into the Hands of Children" in DPR.
Alexey Gazaryan, 37, is not included on any international sanctions list but is mentioned as Belova’s aid and chief of staff in two media articles (1,2). In the second article, he says he knew Belova for a long time, and when she was a senator in the Penza region, he helped her as an advisor. According to a description posted on the Moscow Socio Pedagogical Institute website, Gazaryan is a social educator, public and church figure, publicist, member of several children’s organisations and was awarded the medal "For the Patriotic Education of Youth". He is a father of four children, one of whom is adopted.
In an August interview, he speaks of his active role in bringing children from the DPR and LPR into Russia. “There is a decision by the President to remove obstacles so that children from the DPR and LPR can be placed under guardianship in Russian families. With the active participation of Maria Alekseevna Lvova-Belova and our team, more than 150 children have been transferred to families during this time,” Gazaryan said, adding that there is a huge line, as “everyone wants little ones”. He also contradicts media criticism: “Ukrainian and foreign media write that we kidnapped or forcibly removed someone. This is not true. We check many times whether there are relatives and ask the children themselves. We check documents several times.”
In November, Gazaryan described in detail the process of family placement of Ukrainian children kept in social institutions for the International Red Cross Committee, which said it desires to intensify cooperation with Belova’s office. 380 children were transferred under guardianship to Russian foster families at the request of the authorised executive authorities of the republics, Gazaryan said.
Both Mr Petrov and Mr Gazaryan could be considered aiders and abettors of the crime of genocide committed by President Putin and Ms Belova. Indeed, on the one hand, it could be stated that Mr Petrov supported Belova’s plan and actively participated in the forcible transfer of children from Ukraine. Evidence of such participation could be drawn from the abovementioned activities – all involving children from Mariupol, the DPR and Russia – that Mr Petrov carried out with Ms Belova in his official capacity as “Children in the Hands” campaign.
On the other hand, Mr Gazaryan could be considered having aided the commission of the crime of genocide covering an active role in bringing children from the DPR and LPR into Russia. These conducts could be considered as a material contribution to the commission of the crime and therefore integrating the material element foreseen by article 25(3)(c) of the Rome Statute. As for the subjective elements, the knowledge and intention to facilitate the commission of the crime of genocide could be demonstrated by their relationship and closeness to Ms Belova.
Power Influencers
Anna Kuznetsova
Even though Belova seems to have the President’s ear, she appears to rely on her predecessor Anna Kuznetsova to push legislation in order to be able to facilitate the placement and adoption of Ukrainian children into Russian families or institutions.
Also born in Penza, Kuznetsova is the wife of an Orthodox priest and has seven children. In her capacity as Deputy Chair of the State Duma, she said in February 2022 that some families want to adopt children from Donbass, adding that proceedings are easier with children who have already received Russian citizenship. Two months later, she spoke in favour of synchronising the laws of Russia, DPR, and LPR to help orphans of Donbass to find parents, adding that more than a thousand children from orphanages were evacuated to Russia. She also accused Ukraine of “stealing” 22 children from families from Donbass and asked the chairman of the Investigative Committee of Russia, Alexander Bastrykin, for help to try to find the children and return them to their families. “In total, we are talking about 60 missing babies and teenagers, whom the Kyiv regime could send abroad, including for illegal adoption or transfer to third parties,” Kuznetsova said.
During her five-year mandate as Children’s Ombudsman, Kuznetsova played a central part in returning Russian children from Syria and Iraq. Foreign Policy Institute notes in an article that Russia has been more focused on returning the children of ISIS members than it has been on returning female ISIS members and that authorities have avoided public discussion of policy towards the treatment of female ISIS members. However, Tanya Lokshina, the director of Human Rights Watch for Europe and Central Asia, recently praised Russia for doing more to repatriate the children of ISIS fighters than Western democracies. The Washington Post claims Russia’s efforts are part of its plan to be seen as a nation that actively cares about human rights.
Kuznetsova is under international sanctions from EU countries and other states such as the UK, the US, and Switzerland.
As stated previously, article 25(3)(c) provides that a person shall be criminally responsible and liable for an international crime if that person “[f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission” [art. 25(3)(c), Rome Statute].
In this case, Kuznetsova said, in her capacity as Deputy Chair of the State Duma, that families want to adopt children from Donbass and spoke in favour of synchronising the laws of Russia, DPR and LPR to help orphans from Donbass find parents. Although there was no physical assistance in the commission or attempted commission of an international crime, Kuznetsova’s actions suggest encouragement and grant moral support to the commission of the crime of genocide through the forcible transfer and subsequent adoption of Ukrainian children by Russian families. This constitutes the act of ‘abetting’, as follows from Schabas’ commentary of the Rome Statute [International Criminal Law, A Commentary of the Rome Statute, William A. Schabas, p. 577-578]. According to the Bemba et al. case of 2018, the Appeals Chamber of the ICC considered that the text of article 25(3)(c) “only requires that the assistance in the commission (or attempted commission) of the crime be provided for the purposes of facilitating such commission without indicating whether the conduct must have also had an effect on the commission of the offence.” [Bemba et al. (ICC-01/05-01/13 A A2 A3 A4 A5), Judgment, 8 March 2018, para 1327]. Therefore, it is important to demonstrate that, through her actions, Kuznetsova intended to facilitate the commission of the crime of genocide. Article 30 of the ICC Statute provides that “a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events” [art. 30, Rome Statute]. Kutzenova voluntarily said in her capacity as Deputy Chair of the State Dumathat families want to adopt children from Donbass and spoke in favour of synchronising the laws of Russia, DPR and LPR to help orphans from Donbass find parents, resulting in the facilitation of the forcible transfer and subsequent adoption of Ukrainian children by Russian families. Not only was her action voluntary, but it can also be concluded that Kutzenova meant to cause such a result or at least was aware that it would happen in the ordinary course of events due to her influence as Deputy Chair of the State Duma at the time of the facts.
Therefore, Kutzenova could be held responsible for aiding and abetting the forcible transfer and subsequent adoption of Ukrainian children by Russian families as her actions suggested encouragement and granted moral support for the commission of the crime. Moreover, they were voluntary and were meant to facilitate the undertaking of the crime.
Governors
Several governors are mentioned in the latest version of the Council of Europe’s list recommending that 141 persons and 49 entities deemed responsible for actions undermining or threatening Ukraine’s territorial integrity, sovereignty, and independence be subjected to sanctions within the EU. Governor of Astrakhan Oblast Igor Babushkin, Murmansk Oblast governor Andrey Chibis, governor of Nizhny Novgorod Oblast Gleb Nikitin, Tver Oblast governor Igor Rudenya, Vladislav Shapsha, governor of Kaluga Oblast, Novosibirsk Oblast governor Andrey Travnikov, and Moscow Oblast governor Vorobyov are involved in the illegal transportation of Ukrainian children to Russia and their adoption by Russian families, violating the rights of Ukrainian children and infringing Ukrainian law and administrative order, the Council says.
The Council’s claims are supported by available content on governmental sites and official social media accounts with the governors receiving or visiting foster families who took in considerable numbers of children from Mariupol, Kherson, Donetsk, Lugansk, and others. In September, Chibis said he had received a group of 11 children from occupied Ukrainian territories, left without parental care, who were sent to foster families in Kandalaksha, Kovdor, Polyarnye Zori, and Olenegorsk. In October, Vorobyov shared a video greeting children ‘rescued from the war zone’ arriving by plane to Russia, saying they were sent to family centers. “We have developed a clear algorithm for the placement of children rescued from the war zone. 80 children have already found their homes,” he said. He thanked federal authorities and Maria Alekseevna Lvova-Belova, adding that “they do their best to help transport children from the war zone, arrange them in families, quickly draw up documents and Russian citizenship”. In July, Vorobyov shared a video of himself visiting a foster family in Lyubertsy, which adopted nine children from Donetsk. Solovyov announced on January 6 that 1,620 children from LPR, DPR, Zaporozhye, and Kherson regions arrived by train to see the Kremlin Christmas tree in Moscow and spend the holidays there.
Suggesting encouragement and granting moral support to the commission of an international crime constitutes the objective element of aiding and abetting as foreseen in article 25(3)(c) [art. 25(3)(c), Rome Statute; International Criminal Law, A Commentary of the Rome Statute, William A. Schabas, p. 577-578]. Chibis and Vorobyov, by receiving a group of 11 children from occupied Ukrainian territories who were sent to foster families in Kandalaksha, Kovdor, Polyarnye Zori, and Olenegorsk; sharing a video greeting children “rescued from the war zone” arriving by plane to Russia, saying they were sent to family centers; and sharing a video visiting a foster family which adopted nine children from Donetsk, have encouraged and granted moral support for the forcible transfer and subsequent adoption of Ukrainian children by Russian families. Furthermore, their intent and knowledge can be demonstrated by the public character of their actions in their capacity as governors.
This would result in the facilitation of the commission of the forcible transfer and subsequent adoption of Ukrainian children by Russian families. Indeed, the fact that the videos and statements are publicly available on governmental sites and official social media accounts illustrate that they were voluntary actions on the part of the perpetrators. The fact that they acted in their capacity as governors demonstrates that they meant to facilitate the commission of crime or at least that they knew that the facilitation of the commission of the crime would occur in the ordinary course of events because of their influence and power as governors. According to the Bemba et al. case, it is only required by article 25(3)(c) that the assistance be provided for the purposes of facilitating the commission of the crime. It does not indicate whether the assistance has an effect on the commission of the offence [Bemba et al. (ICC-01/05-01/13 A A2 A3 A4 A5), Judgment, 8 March 2018, para 1327].
Consequently, proving the intent and knowledge of the aiders and abettors is sufficient. However, it is also possible to argue that their actions have made a substantial contribution to the commission of the crime, according to the Kvočka case [Kvočka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 90] as 1,620 children from LPR, DPR, Zaporozhye, and Kherson regions arrived by train to see the Kremlin Christmas tree in Moscow and spend the holidays there.
Therefore, both Chibis and Vorobyov could be held responsible for aiding and abetting the forcible transfer and subsequent adoption of Ukrainian children by Russian families.
Other Government Officials
Aleksey Petrov, mentioned before, Anton Solovyov, a ‘United Russia’ party member elected in the legislative assembly of St. Petersburg, and party member Eleonora Fedorenko and Advisor on Children’s Rights to the head of the DPR are also involved in the illegal transportation of Ukrainian children to Russia and their adoption by Russian families.
Larisa Falkovskaya, the director of the Department of State Policy for the Protection of Children's' Rights of the Ministry of Education of the Russian Federation, has facilitated the illegal transportation and adoption of over 2,000 Ukrainian orphans. In various official public appearances, Larisa Falkovskaya has acted as the main spokesperson and coordinator for Russia’s illegal deportation scheme, the Council notes.
By acting as spokesperson and coordinator for Russia’s illegal deportation scheme, Falkovskaya has shown encouragement and granted support to the commission of the crime which constitutes the objective element foreseen in article 25(3)(c). It is safe to say that her actions were made with the intent to facilitate the illegal deportation scheme of Russia. Additionally, her actions have made a substantial contribution to the commission of the crime as she has facilitated the illegal transportation and adoption of over 2,000 Ukrainian orphans.
Therefore, considering that material and subjective elements foreseen in article 25(3)(c) are present, she may be held responsible as an aider and abettor to the forcible transfer and subsequent adoption of Ukrainian children by Russian families.
The Party
Another key actor in the deportation scheme is the United Russia Party, which helped to place orphaned children from Luhansk and Donetsk with Russian foster families. Secretary of the General Council of the party Andrei Turchak created a taskforce precisely for this purpose, in collaboration with the governors of Donetsk and Luhansk, Pushilin and Pasechnik, under the supervision of Maria Lvova-Belova. Party officials also helped local governors draw up documents for refugees from Donbass and are actively involved in placing children in Russian schools, as well as in organising leisure and education camps and activities for them. According to a local party official, teaching Ukrainian children in the Russian language is a first and foremost priority. The party also launched a campaign to send Ukrainian children to school.
Children are taught in Russian and enrolled in educational institutions with the same rights as Russians, Kommersant reported in February 2022. Between February 18 and March 22, kindergartens, schools, and colleges in 57 regions of Russia accepted over 13,000 children from Donbass and Luhansk.
The party’s logo can be seen in TACs all over the country (1,2), as the party coordinated the organisation of such centers and donation points all over the country, including through its volunteer corps and All-Russia People’s Front (ONF), a body aiming to forge formal alliances between United Russia Party and local NGOs, as well as to provide the party with “new ideas, new suggestions, and new faces”.
As of November, there were more than 40 United Russia humanitarian centers in the Donbass, Kherson, and Zaporozhye regions, and 15 centers open in the DPR, 10 of which were in Mariupol. The party also set up centers for legal and psychological assistance, as well as children's leisure centers in several territories. As a part of its achievements throughout 2022, the party lists being able to enforce legislation as necessary to support its humanitarian mission.
This local media article shows United Russia party activists offering New Year gifts to children living in a TAC in Syktyvkar, in the Komi Republic. United Russia deputy of the State Council of the Komi Republic Valentina Zhideleva told 15-year-old Pasha: "Together with our fellow United Russia party members, together with those who organised this wonderful action, we will fulfill your wish, and in the new year, you will have everything, what you wanted to get. The most important thing is that it helps you study well, do what you love, and grow up as a citizen of great Russia!"
Joint Commission
International criminal law seeks to create individual criminal responsibility for the commission of international crimes. However, some situations may arise where a group of people, rather than an individual, commit an international crime together. Under international criminal law, there are three modes of liability oriented to account for group criminality: joint criminal enterprise, co-perpetration, and contribution liability.
The International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber introduced the concept of “joint criminal enterprise” (JCE), according to which one individual can be held responsible and liable for the commission or attempted commission of an international crime by a group. In its Tadić case of 1999, it distinguished three categories of JCE. JCE I requires that all the perpetrators have a common criminal intent to commit the crime, however, only one or more of them will actually do so. JCE II designates a situation where the individual is aware of a system of abuse and intends to advance or provide an opportunity for the abuse. The mens rea in this case constitutes the personal knowledge of the system of abuse and the intent to further the abuse. JCE III provides for a situation in which the individual intends to participate in a joint criminal enterprise and to further the criminal purpose of the enterprise, with some other crimes which are reasonably foreseeable being committed by other members of the enterprise. It also identified JCE as having a customary international law status [Tadić (IT-94-1-A), Judgement, 15 July 1999, paras. 185-229; Prosecutor v. Brdanin (IT-99-36-A), Judgement, 3 April 2007, paras. 426-430].
The Rome Statute provides for two similar forms of liability: co-perpetration and contribution to a group crime. Indeed, article 25(3)(a) of the Rome Statute states that a person is criminally responsible and liable for an international crime if that person “[c]ommits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible” [art. 25(3)(a), Rome Statute]. As such, if several people act together in the commission of an international crime, each one is criminally responsible and liable.
According to the ICC Pre-Trial Chamber I in the Lubanga case, the co-perpetrators must have joint control of the crime based on the division of the tasks for the purpose of committing the crime. Joint control requires a coordinated essential contribution by each co-perpetrator resulting in the realisation of the objective element of the crime. It also requires the existence of an agreement or a common plan between two or more persons. The common plan is not necessarily an express plan and can be inferred from the subsequent concerted action of the co-perpetrators [Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), Decision, 29 January 2007, paras. 332-345].
The ICC Pre-Trial Chamber II in the Katanga case adopted a different interpretation of article 25(3)(a). It held that co-perpetration requires that the persons involved have control over the crime which is established by their power to frustrate its commission [The Prosecutor v. Germain Katanga (ICC-01/04-01/07), Decision, 30 September 2008, paras. 524-526]. Concerning the subjective element of co-perpetration, article 30 of the Rome Statute sets out a general rule: “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge" [art. 30, Rome Statute]. As such, the co-perpetrators must be aware that implementing their plan will result in the realisation of the objective element of the crime and they must act with the specific intent to bring about such a result or be aware that their actions will lead to the realisation of the objective elements of the crime in the ordinary course of events.
Article 25(3)(d) states that a person will be held criminally responsible and liable if that person ‘[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) [b]e made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) [b]e made in the knowledge of the intention of the group to commit the crime” [art. 25(3)(d), Rome Statute].In this case, proving the criminal responsibility and liability of the United Russia party as an entity would not be possible under international criminal law, as it focuses on individual criminal responsibility. However, it is possible to hold criminally responsible and liable members of the party.
As seen with the Tadić case, JCE I allows for members of the criminal enterprise to be held responsible and liable if they share the common criminal intent to commit the crime even though only one participant or more actually does so. In this case, the Secretary of the General Council of the United Russia party, Andrei Turchak, and the governors of Donetsk and Luhansk created a taskforce for the placing of orphaned children from Luhansk and Donetsk with Russian foster families. Although only Turchak devised the taskforce, other members of the United Russia party could potentially be held responsible and liable as they share the common intent to perpetrate the forcible transfer and subsequent adoption of Ukrainian children by Russian families.
Upon closer look, the other actions of the party may demonstrate the common intent. For instance, the fact that the party’s logo can be seen in TACs all over the country showcases the intent of the party, as an entity, to commit the crime of forcible transfer and subsequent adoption of Ukrainian children by Russian families, revealing the common intent of the participants. The subjective element of JCE I is established. One can argue that the concept of joint criminal enterprise has only been explored in ad hoc tribunals and is not explicitly covered under the Rome Statute. However, the Tadić case has identified JCE as having a customary international law status.
Other modes of liability may also be explored. As follows from article 25(3)(a), if several people act together in committing an international crime, each one can be held criminally responsible and liable. In order to be held responsible and liable, each co-perpetrator must have joint control over the crime which requires a coordinated essential contribution by each co-perpetrator resulting in the realisation of the objective element of the crime. Further, there needs to be an agreement or common plan which needs not be explicit but can be inferred from the subsequent concerted actions of the co-perpetrators. In this case, the set of actions committed by the United Russia party constitutes subsequent concerted actions from which we may infer the existence of a common plan or agreement.
However, it may be difficult to prove the joint control through the coordinated essential contribution of each co-perpetrator. Indeed, as follows from the given facts, it is difficult to know the exact contribution of each co-perpetrator. It is possible to argue that Secretary of the General Council of the United Russia party, Andrei Turchak, had joint control over the crime as the creation of a taskforce for the placing of orphaned children from Luhansk and Donetsk with Russian foster families is an essential contribution to the commission of the crime. In order to hold responsible other members of the party, one would need to prove their essential contribution.
Further, the subjective element concerning Andrei Turchak can be established as it is supposable that he knew that devising such a taskforce would result in the realisation of the objective element of the forcible transfer and subsequent adoption of Ukrainian children by Russian families, creating it with the intent to bring about such a result. Once again, in order for the other party members to be held responsible, one would have to prove their personal knowledge and intent. The contribution liability provides a lower level of participation (see: “in any other way contributes”). Therefore, an essential contribution by each co-perpetrator is not necessary. However, the issue of the subjective element still remains as one would need to prove that each individual contribution was intentional and made with the aim of furthering the criminal activity or purpose of the group, or with the knowledge of the group’s intention to commit the crime. This may be difficult to prove in practice. Therefore, the United Russia Party potentially may not be responsible and liable as an entity, however, it may be possible to hold members of the party accountable through the customary international law concept of joint criminal enterprise.
Essential Enablers
Occupation Leaders
Heads of the so-called DPR and LPR, Denis Pushilin and Leonid Pasechnik, are crucial to the approval and organisation of the forcible deportation scheme, as we can gather from their activity.
Pushilin held a meeting in April with all relevant child protection authorities and other high-ranking officials, such as Kuznetsova, agreeing to speed up adoption procedures for children in the Republic. On October 7, 53 orphans from the DPR arrived in the Moscow Region on a Russian Aerospace Forces plane with Belova's assistance after Pushilin requested their evacuation to safe areas of the country, according to presidential website data. The website further indicated 234 orphans from the Donbass republics arrived in Russia in just a week. A few months later, in November, Belova told Pushilin in a meeting: “It was important for me to report on those children whom you entrusted to us. 288 children, 15 regions. Eleonora Mikhailovna [Fedorenko] and I personally delivered some of them. We saw that these were professional foster families, and the governors took everything under their personal control. In addition to additional financial and material support, teams of specialists are also working, psychologists and doctors, to help with integration into education.”
Pasechnik said in April, during a meeting with Kuznetsova, Belova, and others about placing orphans from Donbass in foster families in Russia: “The second step lies in the practical plane - to select families for children. It is about adoption and guardianship. I will sincerely be happy for the children who will end up in Russian families.” The meeting marked the beginning of discussions to create legislation so that orphans may be placed in Russian foster families, headed by Belova but spearheaded by Kuznetsova. “Today, we are working in Luhansk. At our request, the head of the LPR, Leonid Pasechnik, convened a working meeting on the topic of placing orphans and children left without parental care in Russian families. To contribute to the speedy resolution of this issue is the task set by the President,” Belova stated.
In October, the Energodar Mayor Dmytro Orlov said that Russia abducted children from the city and took them to Krasnodar Krai, pretending it was for a vacation. On the Russian website of the occupied Zaporozhye region’s head Evgeny Balytskyi, there are several announcements (link1, link2) of children being sent for recreation to the country’s best health resorts in Krasnodar, Anapa, and Crimea. In Anapa alone, some 700 were hosted in August.
As mentioned previously, article 25(3)(c) provides that a person shall be criminally responsible and liable for an international crime if that person “[f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission” [art. 25(3)(c), Rome Statute]. In this case, Pushilin held a meeting in April with all relevant child protection authorities and other high-ranking officials and agreed to speed up adoption procedures for children in the Republic. Although there was no physical assistance in the commission or attempted commission of an international crime, his actions suggest encouragement and grant moral support to the commission of the forcible transfer and subsequent adoption of Ukrainian children by Russian families. This constitutes the objective element of “abetting”, as follows from Schabas’ commentary of the Rome Statute [International Criminal Law, A Commentary of the Rome Statute, William A. Schabas, p. 577-578].
According to the Kvočka case, the aider and abettor must make a substantial contribution to the crime [Kvočka et al. (IT-98-30/1-A), Judgment, 28 February 2005, para. 90]. In other words, the assistance must have an effect on the commission of the crime. Pushilin’s assistance has clearly fulfilled this criterion as, on 7 October, 53 orphans from the DPR arrived in the Moscow Region on a Russian Aerospace Forces plane with Belova's assistance after Pushilin requested their evacuation to safe areas of the country. Additionally, 234 orphans from the Donbass republics arrived in Russia in just a week. According to Paragraph (c) of article 25(3) of the Rome Statute, an act of complicity must be “[f]or the purpose of facilitating the commission of such a crime”. Therefore, the aider and abettor must have the intention to facilitate the commission of the crime.
Article 30 of the ICC Statute provides that “a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events” [art. 30, Rome Statute]. Holding a meeting, agreeing to speed up adoption procedures and requesting that orphans from the DPR be evacuated to safe areas of the country were voluntary acts of Pushilin. Moreover, the fact Belova reported back to Pushilin about the children whom he entrusted to them demonstrates that he meant to cause the forcible transfer and subsequent adoption of Ukrainian children by Russian families.
Therefore, Pushilin could be held responsible and liable as an aider and abettor, acting in encouragement of the forcible transfer and subsequent adoption of Ukrainian children by Russian families and with the purpose to facilitate the commission of the crime. Further, he made a substantial contribution to the crime.
Concerning Pasechnik, he explicitly said during a meeting about placing orphans from Donbass in foster families in Russia: “The second step lies in the practical plane - to select families for children. It is about adoption and guardianship. I will sincerely be happy for the children who will end up in Russian families.” This encourages and grants support to the commission of the crime which constitutes the objective element of aiding and abetting. Furthermore, the meeting led to discussions to create legislation so that orphans may be placed in Russian foster families, showing the substantial contribution of Pasechnik’s assistance. Finally, Pasechnik convened a working meeting on the topic of placing orphans and children left without parental care in Russian families. This illustrates his intent to facilitate the commission of the crime of forcible transfer and subsequent adoption of Ukrainian children by Russian families. Therefore, Pasechnik could be held responsible and liable as an aider and abettor for the crime of genocide.
The Media
In February 2023, during a discussion with President Putin, Lvova-Belova insisted on mentioning and thanking Ukrainian oligarch and pro-Kremlin politician Viktor Medvechuk and his wife Oksana, a well-known TV presenter in Ukraine, for their help in her work. Medvechuk lives in exile in Russia after being handed over in a prisoner exchange in September 2022. In the same category of wealthy supporters, she mentions Konstantin Malofeev for aid provided through the Tsargrad media group and the St. Basil the Great Charity Fund. He is the chairman of both organisations while also having several other businesses and NGOs. In a post on social media, he takes pride in helping Belova support children in Donbass and “New Russia”. He mentions support from “volunteers, donors, academicians, and residents of Constantinople, brothers from the Double Headed Eagle Foundation, and sisters from the Union of Orthodox Women”. Malofeev has appeared on sanctions lists in the US, EU, Canada, UK, Switzerland, Australia, Japan, Ukraine, and New Zealand for funding pro-Russia separatists in Ukraine, among others.
Regarding Viktor and Oksana Medvechuk, proving their accountability as aiders and abettors of the crime of genocide will require more details on the specific assisting acts. Without more information on their contribution to the crime, it will not be possible to fulfill the objective and subjective elements of aiding and abetting as foreseen in article 25(3)(c).
However, the fact that Konstantin Malofeev posted on social media, taking pride in helping Belova support children in Donbass and “New Russia” constitutes an encouragement and grants support to the commission of the crime of forcible transfer and subsequent adoption of Ukrainian children by Russian families. This constitutes the objective element of aiding and abetting. According to the Bemba et al. case of 2018, the Appeals Chamber of the ICC considered that the text of article 25(3)(c) “only requires that the assistance in the commission (or attempted commission) of the crime be provided for the purposes of facilitating such commission without indicating whether the conduct must have also had an effect on the commission of the offence” [Bemba et al. (ICC-01/05-01/13 A A2 A3 A4 A5), Judgment, 8 March 2018, para 1327]. Therefore, one must demonstrate that Malofeev acted with the intent to facilitate the commission of the crime. Article 30 of the ICC Statute provides that “a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events” [art. 30, Rome Statute]. In this case, posting on social media taking pride in assisting Belova was a voluntary act of Malofeev. Therefore, it is possible to say that he acted for the purpose of facilitating the commission of the crime.
In conclusion, Viktor and Oksana Medchevuk may not be held responsible and liable as aiders and abettors due to the lack of information on their contribution to the crime. However, Malofeev may be held responsible and liable as he has acted in support of the undertaking of the crime and for the purposes of facilitating its commission.
Politicians
Commissioner for Human Rights Tatyana Moskalkova has a special group to ensure the rights of citizens from the DPR, LPR, Kherson, and Zaporozhye regions are respected. In April, she went to the Chechen Republic accommodation center, which hosted Ukrainian adults and children evacuated from Mariupol.
A Telegram post by Igor Yurievich Kastyukevic, who represents the United Russia Party in Kherson, shows a video of more than 50 children being taken from a Kherson orphanage presumably to Crimea. The official thanked Kuznetsova, Andrey Turchak, and Crimea governor Aksyonov for the evacuation. Volodymyr Saldo, the governor of the Kherson region before liberation, asked Russian leadership to help evacuate civilians and said that the region decided to organise the possibility for families to travel to other regions of the Russian Federation for recreation and study.
Education Minister Sergei Kravtsov met with Ukrainian children brought to Russia in Tula and stressed that the health camps are ready to receive them.
Nina Ostanina, Chairman of the State Duma Committee on Family, Women and Children, advocated that schoolchildren from the LPR and DPR, as well as from other liberated regions of Ukraine, have the opportunity to continue their studies in Russia. “The implementation of the educational process for these categories of children is possible on the basis of children's health camps and sanatoriums, which will be empty with the end of the summer period and have the opportunity to receive children in the winter season,” she said.
Regarding Tatyana Moskalkova, visiting the Chechen Republic accommodation center, which hosted Ukrainian adults and children evacuated from Mariupol shows encouragement and grants support to the commission of the crime of forcible transfer and subsequent adoption of Ukrainian children by Russian families. According to the Bemba et al. case of 2018, the Appeals Chamber of the ICC considered that the text of article 25(3)(c) “only requires that the assistance in the commission (or attempted commission) of the crime be provided for the purposes of facilitating such commission without indicating whether the conduct must have also had an effect on the commission of the offence” [Bemba et al. (ICC-01/05-01/13 A A2 A3 A4 A5), Judgment, 8 March 2018, para 1327]. Therefore, one only needs to demonstrate that she acted with the intent to facilitate the commission of the crime. In this case, visiting an accommodation center, which hosted Ukrainian adults and children evacuated from Mariupol, was a voluntary act from Moskalkova, clearly illustrating her support and intent to facilitate the commission of the crime.
Regarding Kuznetsova, Andrey Turchak and Crimea governor Aksyonov, a Telegram thanking them for their contribution in the evacuation of 50 children may not be sufficient to prove the effect of their assistance and their intent to facilitate the commission of the crime.
In the case of Volodymyr Saldo, asking Russian leadership to help evacuate civilians and saying that the region decided to organise the possibility for families to travel to other regions of the Russian Federation for recreation and study demonstrates encouragement and grants support to the commission of the crime. It was a voluntary act on his part, meaning that he intended to facilitate the commission of the crime of forcible transfer and subsequent adoption of Ukrainian children by Russian families.
Concerning Education Minister Sergei Kravstov, the act of meeting with Ukrainian children brought to Russia in Tula and stressing that the health camps are ready to receive them encourages and grants support to the commission of the crime. According to Bemba et al., it is sufficient to prove that the accused acted for the purposes of facilitating the commission of the crime. As the acts were voluntary and aimed to facilitate the commission of the crime, the intent can be proven.
Regarding Nina Ostanina, advocating that schoolchildren from the LPR and DPR, as well as from other liberated regions of Ukraine, have the opportunity to continue their studies in Russia grants support to the commission of the forcible transfer and subsequent adoption of Ukrainian children by Russian families. The act was voluntary and aimed to facilitate the commission of the crime. Therefore, she may be held responsible and liable as an aider and abettor.
The Red Cross
Five days before Russia invaded Ukraine, Russian Red Cross (RKK) chairman Pavel Savchuk said that the organisation would “provide humanitarian assistance and do everything possible to alleviate the fate of people arriving from the DPR and LPR”. Together with various branches of ONF, the RKK is coordinating the collection and distribution of humanitarian aid, the meeting of refugees from Donbass, the organisation of living conditions, and psychological support. “There are a lot of children among the internally displaced persons. These are those whose parents asked about accommodation and those who stayed with friends and relatives. For example, in the Rostov region, the Russian Red Cross has already helped more than 3,000 children in temporary accommodation centers, with more than 500 children staying outside. In the Voronezh region, these figures are 700 and 250, respectively,” Savchuk said in March 2022.
As previously stated, international criminal law focuses on individual criminal responsibility. Therefore, holding an international organisation responsible and liable is not possible under international criminal law. However, it is possible to hold individual members of the organisation accountable for international crimes.
In this case, Russian Red Cross chairman Pavel Savchuk stated that the organisation would “provide humanitarian assistance and do everything possible to alleviate the fate of people arriving from the DPR and LPR”. This shows encouragement and grants support to the commission of the crime of genocide by the forcible transfer of children of a group to another group. Further, this statement was spoken voluntarily with the aim of facilitating the commission of the crime. Therefore, Savchuk may be responsible and liable for aiding and abetting the crime of genocide.
Regarding the other acts of the RKK, it may be difficult to prosecute members of the organisation for their commission as there isn’t enough information on each member’s contribution. Holding them personally responsible and liable as aiders and abettors would not be possible as their intent and knowledge could not be demonstrated. It may be possible to hold them accountable as co-perpetrators if the existence of an agreement or common plan can be proven and if the members have joint control over the crime. However, once again, without the personal contribution of each member, it is difficult to prove that they had joint control. Contribution to a group crime may also be excluded as the issue of the subjective element still remains. One would need to prove that each individual contribution was intentional and made with the aim of furthering the criminal activity or purpose of the group or made in the knowledge of the intention of the group to commit the crime. This may be hard to prove in practice.
Therefore, Pavel Savchuk may be held accountable for aiding and abetting the crime of genocide by forcibly transferring children of one group to another. However, the rest of the acts may not be accounted for without the knowledge of the individuals who have contributed to their commission.
The Church
The Russian Orthodox Church is actively involved in helping refugees from Donbass and Ukraine. This work is coordinated by the Synodal Department for Church Charity and Social Service, led by Bishop Panteleimon of Vereya. As of July 25, the Russian Orthodox Church has collected over 225.4 million rubles to help refugees and victims in the conflict zone. A significant part of this amount is constituted by collections in churches and monasteries, organised with the blessing of Patriarch Kirill of Moscow and All Rus'.
Refugees were placed in 59 church institutions in Russia, Germany, Great Britain, and Ukraine. In August 2022, Bishop Panteleimon of Vereya held an online meeting for representatives of the dioceses dedicated to helping refugees, with more than 230 people from 144 dioceses in Russia: heads of diocesan social departments, priests temporarily visiting accommodation centers, and social workers directly involved in helping refugees. The Bishop stressed the importance of helping refugees not only with food and clothing but also in finding work, housing, and placing children in a kindergarten or school. Natalya Yeremicheva, the head of the church headquarters for helping refugees in Moscow, spoke about a center opened by the Synodal Department where, among others, refugees are assisted in obtaining allowances and documents, assistance in placement and employment. The aid center received 19,040 requests from refugees since March.
As stated previously, international criminal law focuses on individual criminal responsibility. Therefore, the Church may not be held responsible and liable as an entity, however, its members may be held personally responsible for international crimes.
In this case, Bishop Panteleimon of Vereya held an online meeting with representatives of the dioceses dedicated to helping refugees and stressed the importance of helping refugees not only with food and clothing but also finding work, housing, and placing children in a kindergarten or school. This shows encouragement and grants support to the commission of the crime of genocide by the forcible transfer of children of a group to another group. Further, this meeting was organised voluntarily and with the aim of facilitating the commission of the crime. Therefore, the Bishop may be responsible and liable for aiding and abetting the crime of genocide.
Natalya Yeremicheva spoke about a center opened by the Synodal Department where, among others, refugees are assisted in obtaining allowances and documents, assistance in placement and employment. The fact that she spoke of this center during an online meeting in which the importance of helping refugees with food, clothing, work, housing and placing children in a kindergarten or school has been stressed, may grant support to the commission of the crime of forcible transfer and subsequent adoption of Ukrainian children by Russian families. Indeed, the context of the meeting illustrates her intent to facilitate the commission of the crime as she spoke of it as a response to the topic discussed during the meeting. Further, the aid center received 19,040 requests from refugees since March, potentially constituting proof of an effect of her contribution. This would mean that Yeremicheva has made a substantial contribution to the crime by speaking of such a center.
However, one can argue that the center focuses on assisting refugees in obtaining allowances and documents as well as assistance in placement and employment, and not specifically assisting children refugees. As such, the specific intent to facilitate the forcible transfer and subsequent adoption of Ukrainian children by Russian families may not be demonstrated.
Conclusion
Depending on the positions of the perpetrator within the scheme and in the broader context of the government, the liability and accountability of perpetrators of the crime of genocide for the illegal transfer of children from Ukraine to Russia has many layers. In general, based on the evidence we have suggested, most individuals within the office of Lvova-Belova, especially her aides, can be held liable for aiding and abetting the crime of genocide. This also applies to key influencers in the government, like Anna Kuznetsova.
Delving deeper, the facilitation of the crime would not have been possible without the help of the local governors of the areas where the children were forcibly taken to and the occupation authorities who sent them to Russia. Therefore, occupation authorities such as Pushilin of the so-called “DNR” and the Murmansk Oblast governor Andrey Chibis can be and should be held responsible for aiding, abetting, and facilitating the crime of genocide through the illegal transfer of Ukrainian children.
As the radius of perpetrators enlarges, the possible liability under international criminal law diminishes - mostly due to the absence of the facts about direct involvement, not only support or encouragement of, genocide. This applies to some members of the media and the United Russia Party (liability as an organisation), where their liability for the crime of genocide is not that apparent and needs to be further investigated. Similarly, it has been known that the Church in Russia has been complicit in aiding the scheme by accepting refugees in their “refugee” centres, however, with the crime of genocide, the specific intent to facilitate the forcible transfer and subsequent adoption of Ukrainian children by Russian families may not be immediately demonstrated or apparent and has to be further investigated.
This article by our team focused on the international criminal liability under the Rome Statute the middle management as well as key enablers of the child transfer scheme have faced. The aim of this article is to be informative to the public and stakeholders about the possible liability of the perpetrators whilst the more substantive investigation and reports are kept confidential and will only be shared with legal accountability mechanisms due to the sensitive nature of the issue.
Desirée Vázquez Aranda completed her bachelor’s degree in international relations in Spain and has recently graduated from the master’s in human rights and conflict studies at the University of Utrecht. She has experience as an intern researcher on human rights and public policies in the non-profit sector and as Operations Officer and Quality Assurance Officer in an NGO. She is passionate about advocating for the defence and protection of the rights of the children and youth.
Lou Crignon holds a master’s in public international law. As a legal analyst at OSINT FOR UKRAINE, she analyses investigations for potential evidence of international crimes and adds legal commentaries to raise social and legal accountability for the war against Ukraine.
Martina Danesi holds a master’s degree in law from the University of Milan and an LL.M degree in public international law from the Graduate Institute of Geneva. After her studies, she spent three years working as a qualified lawyer at an international firm, building expertise in public international law and investment arbitration disputes. She is currently working at the European Commission, at the Service for Foreign Policy Instrument.
Deniz M Dirisu, the Founder and General Director of OSINT FOR UKRAINE is an International Criminal Law Specialist and OSINT Investigator, with a proven track record in ICL investigations and investigative journalism. Experienced in building and leading diverse teams across borders, Deniz M Dirisu is active within the realm of international justice and OSINT.
