Informed Comment / March 20, 2023
Ann Arbor – The specific statute under which the International Criminal Court issued an arrest warrant for Russian President Vladimir Putin on war crimes concerned The Rome Statute, 8, 2, a, (vii) “Unlawful deportation or transfer or unlawful confinement” and (viii) “Taking of hostages.”
ICC Chief Prosecutor Karim A. Khan, a prominent British human rights attorney who was involved in the prosecution of everyone from Slobodan Milosevic to the terrorist group ISIL, was elected in 2021 by 72 votes from the 123 member states of the Rome Statute, having been put forward by the UK.
He explained, “there are reasonable grounds to believe that President Putin and Ms Lvova-Belova bear criminal responsibility for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation.”
“Incidents identified by my Office include the deportation of at least hundreds of children taken from orphanages and children’s care homes. Many of these children, we allege, have since been given for adoption in the Russian Federation . . . My Office alleges that these acts, amongst others, demonstrate an intention to permanently remove these children from their own country. At the time of these deportations, the Ukrainian children were protected persons under the Fourth Geneva Convention.”
Marc Santora and Emma Bubola at the New York Times say that some 2.9 million Ukrainians have relocated to Russia since the latter invaded last year, including 700,000 children. Most of these children just went with their parents. But anywhere from 2,000 to 16,000 Ukrainian children have been taken to Russia and adopted by families there. Ms. Lvova-Belova, Russian commissioner for human rights, has been in charge of this adoption program.
Russia has rejected the ICC ruling on the grounds that Russia is not a signatory to the Rome Statute. The crimes, however, occurred in Occupied Ukraine, and the Ukrainian government has given the ICC the go-ahead to investigate crimes committed in Ukraine. So war crimes and crimes against humanity committed by Russia in Ukraine can be acted on by the Court.
The reference to the 1949 Fourth Geneva Convention is key to the argument here. That document governs the treatment of occupied populations in wartime. It was intended to prevent the sort of behavior the German National Socialist Party displayed in Poland, which Germany occupied in September 1939. Anywhere between 50,000 and 200,000 Polish children who were seen as having a more “Aryan” than “Slavic” appearance were kidnapped away from their mothers and fathers and sent to Germany for adoption.
Deutsche Welle explains,
“The organized child robbery was part of the Nazi racial policy to turn “racially valuable” children from the annexed parts of western Poland into Germans. The youth welfare offices reported the children whose appearance they considered “Aryan.” Representatives of the health authorities conducted medical examinations of them, filtered out the children with “good blood,” who were then sent to a children’s home where they were forced to learn German and their names were Germanized. Afterwards, the SS-initiated association Lebensborn took responsibility of them, handing over younger children to SS families for adoption, and sending older ones to “German home schools.” Over time, the children became increasingly robbed of their memories and their identity as they became Germanized.”
In order to forestall such actions by future military occupiers, the Fourth Geneva Convention stipulates,
SECTION III, ART. 49. — Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”
Article 50 goes on to say, “The Occupying Power shall take all necessary steps to facilitate the identification of children and the registration of their parentage. It may not, in any case, change their personal status . . .”
Most of the Fourth Geneva Convention was taken over into the Rome Statute, and Khan has now found the Putin government to be guilty of doing just as the Nazis did, albeit on a far smaller scale (so far).
The reason for which this indictment of Putin is bad news for Israeli leaders such as Binyamin Netanyahu is that they have expelled large numbers of Palestinians from the Israeli-occupied territories, and have transferred children out of the Palestinian West Bank. Montreal attorney Dmitri Lascaris points to such an incident in January 2020.
UNICEF confirms Mr. Lascaris’ account, writing, “According to Israel Prison Services (IPS) data, between January and September 2020 there was a monthly average of 167 Palestinian children in IPS detention from the West Bank including East Jerusalem for alleged security related offences . . . In mid-January, Israeli authorities moved 33 Palestinian child detainees from Ofer prison in the West Bank to Damon prison in northern Israel, increasing the population of minors detained at Damon and the proportion of Palestinian children detained outside the occupied Palestinian territory.”
Removing the children from the occupied territory is a war crime. Unless it was done to save their lives, which it was not, there is no legitimate reason for an Occupier to transfer children out of an occupied territory.
There are even more serious violations of this principle. Human Rights Watch notes, “Israeli authorities refused to register at least 270,000 Palestinians who were outside the West Bank and Gaza when the occupation began in 1967 and revoked the residency of nearly 250,000, mostly for being abroad for too long between 1967 and 1994.”
Minors typically account for about a third of any population, so Israel may have revoked the residency of as many as 83,000 children in the Palestinian West Bank from 1967 to 1994. While the Israelis have not sought to adopt Palestinian children, removing them from an occupied territory is in itself a war crime.
The ICC has decided it has jurisdiction over crimes committed in the Israeli-Occupied Palestinian West Bank. They will only consider war crimes committed since 2014. Not only has Israel removed minors from the Palestinian West Bank in defiance of international law but it has also sent in hundreds of thousands of squatters to squat on Palestinian-owned land.
Although Palestinian human rights organizations are upset that the ICC indicted Putin relatively quickly, while Israel’s crimes in the Palestinian West Bank have gone on with impunity, the rapidity with which Mr. Khan has moved on Russian crimes is a sign that Israeli Prime Minister Binyamin Netanyahu may well be next.
Juan Cole is the founder and chief editor of Informed Comment; he is Richard P. Mitchell Professor of History at the University of Michigan and the author of Muhammad: Prophet of Peace amid the Clash of Empires and The Rubaiyat of Omar Khayyam