134. ANALYSIS: Yvonne Breitwieser-Faria on forced deportations of Ukrainian children, allegations of genocide, and implications of the ICC arrest warrant for President Putin
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Welcome to the War in Ukraine, Update from Kyiv podcast. I'm Jessica Gnauer, a Senior Lecturer in International Relations at Flinders University in Australia, and I'm talking today with Yvonne Breitweiser-Faria. Yvonne is a PhD candidate with the T.C. Byrne Law School at the University of Queensland in Australia. Her research examines the obligation and international responsibility of states to prevent atrocity crimes.

And we're going to have a discussion about this issue of atrocity crimes in relation to the current war in Ukraine on the podcast today. So thanks for joining me today, Yvonne. Thank you for having me. I'm excited to be here. So first of all, when we talk about human rights abuses, atrocity crimes, you know, this is something that's been talked about quite a lot in relationship to Russia's full-scale invasion of Ukraine, which is still ongoing. And

And one factor that we've seen quite a lot of focus on is the alleged forced deportation of Ukrainian children from Ukraine into Russian territory. So I know there's still some opacity around this.

But what do we currently know about this issue of forced deportation of Ukrainian children into Russia since Russia's full-scale invasion? Yeah, so there are kind of two levels to this too. So this isn't something that's necessarily started with the full-scale invasion. Back in 2014 when Russia annexed Crimea, that's when it started at a lower scale level.

But obviously, since the invasion just a few weeks before, actually in the beginning of February 2022, those forced deportations of Ukrainian children have ramped up. And they essentially seem to target children ages four months to 17 years, so quite a broad range.

It would appear that Russia has taken quite a few different tactics of how to target and what they end up doing with those children. So effectively, those children could be roughly categorized into four different types of

So we have children that have been taken to re-education camps, also recreational camps, which are predominantly from the Luhansk and Donetsk regions. We have the evacuees, so to say, from Ukrainian state institutions, so purported orphans and the like, which have the majority of which have been put into...

the adoption and foster pipelines. The third category would be children separated from their parents intentionally. However, there's very little certainty around this particular group. So there's no baseline as to how many children are affected there. And a fourth category would be those captured by Russian military in the course of combat operations.

which includes children as well. But again, we don't know how many children have been affected in that group. And as these discussions have continued around what's been happening in Ukraine, there have been certain analysts that have suggested that Russia's actions in Ukraine could actually constitute genocide under international law. So,

I guess, first of all, can you outline for listeners who may not be aware, how do we define genocide under international law? Yes, definitely. That's a great question. I should probably throw the caveat out there that

Yes, there have been quite a few scholars and diplomats and state officials that have raised the alarm of these forced deportations and transfers constituting genocide, which include, for example, the German foreign minister, Annalena Baerbock, as well as Ukraine's foreign minister, Dmytro Kuleba. However, what's taking place could also constitute war crimes and it could also constitute crimes against humanity as well.

Obviously, in my research currently, I'm focusing more on the genocide area, but I should still throw the disclaimer out there that as investigations are ongoing, could constitute each one of those atrocity crimes and relevant for us could also become the Convention on the Rights of the Child as well.

So what we consider genocide is exhaustively defined in Article 2 of the Genocide Convention. So Genocide Convention was adopted all the way back in 1948, and that definition has stood the test of time. So it's now considered to be universally applicable, and it's been widely accepted by states and has been incorporated into most domestic legislations.

as well. Essentially, what Article 2 provides is that we can speak of genocide if a few listed, exhaustively listed acts have been committed with the intent to destroy in whole or in part the

a national, an ethnic, a racial or religious group has been targeted. So when we think of genocide, probably the first thing that will come to mind is, oh, killing the members of such a protected group or causing serious bodily or mental harm to members of the group. But what's relevant for us here would be the fifth listed act, which is forcibly transferring children of the group to another group.

So from Ukraine to Russia, with the intent of essentially eliminating the Ukrainians as a national group, so to speak.

And can you comment on, do you evaluate that there would be a case to be made that what we're seeing currently in Ukraine, actions on behalf of Russia, maybe particularly those deportations of Ukrainian children, that there could be a case to be made that that might constitute genocide under international law or attempted genocide? Yeah.

Yeah, well, it would appear from the evidence that's been gathered already that at least the physical elements, so that forcible removal, the forcible deportation, transferring of children has taken place. So in theory, that would satisfy the physical element for genocide. It could satisfy the elements required for war crimes and potentially also crimes against humanity. What's relevant here is then the consideration of, well, is the special intent

given to destroy Ukrainians as a national group in whole or in part as well. And that's an indispensable element. So that has to be given in order for us to be able to speak of genocide, and it has to be proven. So we need definitive proof on that, which obviously a very subjective element can be quite difficult to prove. However, the evidence collected to date shows

does suggest that the forcible transfers of those Ukrainian children to Russia are taking place for the purposes of potentially integrating or indoctrinating them into a pro-Russian culture. So if we look at, for example, Russian media, there's been a lot of hate speech going on, a lot of propaganda. The language used has been very anti-Ukrainian.

which could be indicative of that specific intent, given what we know is going on in Ukraine. So there have been reports that indicate that the Russian government is training and indoctrinating a generation of Ukrainian children, seemingly for this purpose.

The removal of those children from their families, their homes and their culture does suggest that the purpose of Russia's evacuations, as one of their justifications is, of those children may be to erase Ukraine's identity. And Russian media talks a lot about how Ukraine isn't its own state. They forgot where they've come from. They're actually essentially more Russian than their own nationality as such.

And that can be linked back to one of the other justifications Putin first mentioned for his so-called special military operation, being the denazification of Ukraine. So simplified, what was meant there was that those Ukrainians that don't identify as Russians...

are essentially seen as Nazis and they should be gotten rid of. Which leaves Ukrainians that are essentially pro-Russian and may not have an issue with joining Russia again. So references to this denazification was obviously seen in Putin's initial speech and it's been echoed also in statements of other Russian officials since then. So it gives us quite a bit of evidence already of a potential intent

for genocide going on. This intent may potentially also be inferable from other acts and crimes

that may have been committed within the scope of Article 2 of the Genocide Convention as well. So if we consider other acts that are exhaustively listed as potentially constituting genocide under that definition, under that article, simply put, the more actions we can collect, the easier it is to infer that special intent by Russia, by Russian officials, by Putin and so forth.

Yeah, makes sense. And I can see how establishing intent can be quite a complex process.

So, I mean, I guess one aspect of this that's quite interesting is that these allegations of the forced deportations have actually gone all the way to the International Criminal Court and have led to these arrest warrants coming out from the ICC, the International Criminal Court, for both President Putin himself, as well as the Russian Commissioner for Children's Rights, Maria Lvova-Balova. What was the mechanism here? How

How did the International Criminal Court link these events on the ground to high level leaders, the president of Russia, as well as a really high level government official? Well, we have to keep in mind, firstly, the ICC's mandate is essentially to hold those most responsible accountable in the eyes of the international community, right? So that's...

who the ICC would target. So while it is a bold move to go straight to the top, it does seem to make sense in this situation because there appears to be quite significant evidence that both of them have been involved. So not only does Maria Lvova-Belova seem to be spearheading this operation of forcible deportation and transferring,

She's also approached it in a very systematic way. And she's actually been documenting this on her website as well. So there is quite a bit of evidence already available on her website linking her to these operations. We also have evidence that

Putin has tasked Lvova Belova with the preparation of a bill which provides for the simplification of obtaining Russian citizenship for Ukrainian children. And they've had multiple meetings on this, which have all been documented. And in some instances, they've been using them as PR opportunities even. So they're out there for most of us to see if we either speak Russian or a translation is available for us.

A lot of this, again, is available on her website, so it's recorded. So in a way, it's also on record that Putin gave her the orders in relation to these forcible deportations.

One particular meeting, they had a working meeting on the 16th of February, which again took place between those two, again was used as a PR opportunity to convey the humanitarian character of the policies they're implementing, where they also discussed the evacuations of Ukrainian children to Russia. So not only did Lvova Belova initially thank Putin for enabling this practice,

But then in a segment right at the end of that meeting that didn't receive a lot of attention, Putin actually also asked how the military training program in those re-education camps for Ukrainian children was going and ordered its expansion by 2,000 Ukrainian and Russian children. So again, this is available on tape. It's been recorded. And that enables us to link what's going on to Putin and to Lvov Belova.

So given Putin's alleged role as the architect of the war and large-scale criminality by the Russian forces in Ukraine, it isn't that surprising that he was targeted by the arrest warrants. And it's highly likely that even more charges will be brought against him before the ICC as well. Or at least that's what we're hoping to see. That being said...

I also anticipate other officials from all levels of government to be targeted as the investigations go on as well. How significant is it that the ICC has put out an arrest warrant for a current president

Is this very unusual for the ICC to put out an arrest warrant for an individual whilst they are still the current head of state, the current president of a country? Yep. Well, so strictly speaking, this has only ever happened once before in the al-Bashir case. That case was a little bit different in that the Sudan case was referred to the ICC by the UN Security Council. Right.

This arrest warrant against Putin is the first time in the history of the ICC that an arrest warrant was issued for a current head of state that is not a party to the Rome Statute and the situation hadn't been referred by the Security Council.

Which, as we know, would be unrealistic to expect. It's also the first arrest warrant for any citizen of a country that's part of the Permanent File of the Security Council as well. So that in itself is quite significant. However, this of course raises a lot of other complex legal issues.

While it does send the message that even the most powerful have to be held accountable, it raises the question of whether state parties to the Rome Statute, so to the ICC, now have an obligation to arrest Putin if they find themselves in the position to potentially be able to do so.

So strictly speaking, under Article 98, paragraph 1 of the Rome Statute, the ICC may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligation under international law with respect to the immunity of a person of a third state. So as we know, current heads of states enjoy immunity. Unless the court can first obtain the cooperation of that third state, so in this case Russia,

for the waiver of immunity. And I think we can all agree that's very unlikely to happen unless there was a very radical political change to take place in Russia that would see Putin toppled from power, right? In its own year, it's prudent still that ICC in the past has expressed a different opinion to whether or not states are banned by the state immunity that

a head of state of a foreign state enjoys. And I'm not going to go into the nitty gritty of it. It gets quite muddy. But let's just say any approach to this question remains highly debatable and quite controversial. It's also not clear how the ICC has dealt with this issue in this present case because the arrest warrants are still under seal. So they're not yet publicly available. All we know is that

that we have arrest warrants against Putin in Lvov and Belov, we know on what charges, but they've essentially been held under seal for the maintenance of the integrity of the investigations and protection of those affected and potential witnesses as well.

So we'll see what actually comes of it. So legally speaking, it is a significant milestone in that it's the first in the ICC's history. However, it remains quite controversial, particularly because of the immunity that Putin enjoys as a current sitting head of state, further complicated in that Russia is not a party to the Rome Statute. So if Russia is not a signatory to the Rome Statute,

How could these arrest warrants take place? Is that because Russia conducted these actions within Ukraine that is a signatory to the Rome Statute and that it was Ukraine that brought this case to the ICC? Or how does that work technically under international law if Russia, you know, doesn't actually comply with the ICC itself? Yep. So technically that's spot on. So if

atrocity crimes, the war crimes, genocide crimes against humanity were committed on the territory of a state party to the Rome Statute. If they were committed by a third state, so a non-state party, then that non-state party could still face

prosecution so their individuals could face potential individual criminal responsibility. The case with Ukraine is special in that, as you mentioned, Ukraine is a signatory. It has not, however, yet ratified the Rome Statute.

So strictly speaking, Ukraine is not an official state party to the Rome Statute. However, it has previously given the ICC permission, it has previously referred its case, starting from 2014. So this enables the ICC to continue its investigations into the 2022 invasion as well. What's been made more significant is that

the prosecutor didn't have to go through the pretrial chamber to make their case for opening investigations into alleged war crimes, genocide, crimes against humanity in relation to the invasion, because we've had a significant number of state parties also refer the case to the ICC, which means that the prosecutor is able to go straight into the investigations and open a case.

So I guess just thinking about the implications of those arrest warrants and how they might influence President Putin himself and his behavior. So in some ways, the issuing of these arrest warrants is really raising the stakes for Putin of ever leaving the presidency or ever stepping down from power in Russia because he's

If he does so, then he will no longer have that claim to immunity from arrest if he is to travel to other countries that are signatories to the Rome Statute. Yeah, that's right. So the arrest warrants in one sense are an incentive for Putin to stay in power indefinitely. And given his

physical health and so forth. Look, we'll see what happens. But currently even, so from a practical and political perspective, it's anticipated that they at least somewhat constrain his foreign travel, actually also Lvova Belova's foreign travel, as both of them would risk being surrendered to the ICC each time they set foot outside of Russia.

They may have guarantees that this won't happen if they were to travel to a specific state, but look, really we don't know. The ICC is entirely dependent on the cooperation of its states, or its parties, I should say. However, there does exist a lack of enforcement mechanisms, and we obviously know that Russia is refusing to cooperate, so there's that issue, but there is also the potential of other states refusing to cooperate.

in relation to the arrest warrants. And we've seen that in the case of al-Bashir as well. So al-Bashir, while he was in power, while an arrest warrant was issued against him by the ICC, traveled fairly extensively around Africa. And a lot of states...

obviously, refused to arrest him, partially for political reasons, but also due to the immunity he enjoys as a sitting head of state. So, for example, we have the BRICS meeting coming up in August 2023, so of this year, where Putin was expected to attend in person. So now it remains to be seen if South Africa even extends

An invitation to Russia or if Putin attends virtually. However, it would appear unlikely that we'll see him in person in South Africa. Particularly seeing as South Africa was also one of those states that didn't arrest al-Bashir when an arrest warrant was issued against him. From a practical point, Putin was already very selective of his travel since the start of the invasion.

So he's only been traveling to Russian-friendly states, which include Armenia, Belarus, Iran, for example. Now that the warrant's been issued, he's likely to have to exercise even greater caution, even though he is the current sitting head of state. Some of the initially considered Russia-friendly states are also state parties themselves.

to the Rome Statute. So there is that potential risk in any case. So really what it comes down to is that the mid and long-term impact of the arrest warrants will have to be seen particularly in relation to the internal politics within Russia. So as we mentioned before, Putin's appearance before the Hague Court is not likely without that radical political change.

However, it does brand Putin as a global outlaw, as a potential war criminal, now at least a war crime suspect, which may lead to growing international isolation as well and the increased cost of being associated with him, which might have effects on the internal politics within Russia as well.

So while the arrest warrants do provide that incentive for him to stay in power for as long as he can hold on, essentially, it remains to be seen what actually happens. Thanks so much, Yvonne. I found this a fascinating discussion and I really appreciate you breaking down these quite complex issues and sharing your insights with us on the podcast today. Thank you so much. Thank you for having me. It was my pleasure.

Thanks for listening and thanks to Gonk Overall for our theme music.