Why is the ICC focusing on the transfer of war orphans to Russia rather than Russia's much more obvious crimes in Ukraine?

Question

As per the official press release by the ICC:

Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).

The two paragraphs of the Rome Statute that they quote are:

(vii) Unlawful deportation or transfer or unlawful confinement;

and

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory

However it seems like all Russia did in this regard is transfer orphans away from the war zone into Russia. They became orphans due to Russia's invasion and that's certainly a valid crime for the ICC to prosecute, but the accusation of "unlawful deportation" seems quite strange. One could reasonably argue that Ukraine isn't exactly in great shape right now and thus orphans would be safer in Russia away from the war. Again, said war was started by Russia but the treatment of orphans doesn't seem to be unreasonable.

So why is the ICC starting out from a very minor crime rather than prosecuting Putin for starting the war in the first place? I presume there's a political reason behind this as it doesn't seem to make much sense from a purely legal standpoint. At least in my book killing tens of thousands Ukrainians and bombing their country is the very first accusation one should start with.

Answer 1

Mass children abduction is not a "minor" crime. Connecting with Putin's denial of Ukraine as a separate nation and country, it is one of five acts that constitute genocide.

forcibly transferring children out of the group.

If ICC managed to prove Putin's personal responsibility for this, such act should be punished.

As for

One could reasonably argue that Ukraine isn't exactly in great shape right now and thus orphans would be safer in Russia away from the war.

Hello from Poland. There are lots of Ukrainian children here. They came here freely, if some Ukrainian school provides them remote teaching, they may attend. They can return home if situation allows. If one is afraid about children security, please send them here, we will accept them. No need to send them to those that will attempt to denationalize them.

At least in my book killing tens of thousands Ukrainians and bombing their country is the very first accusation one should start with.

War of aggression, as Fizz pointed out is in this case not in ICC's mandate. As war is going, killing and bombing is not a war crime per se. There is an international humanitarian law that regulates the conduct of war and according to it not all killing or bombing is a war crime. One need to prove that either non-military object was targeted or during targeting a military (or dual use) object, the expected civilian casualties exceed the military gain. There are such actions by Russian army, but proving personal Putin's responsibility for them may not be easy. Bucha massacre was a clear war crime, but how to prove that Putin is responsible, not overzealous local soldiers?

Answer 2

Because if you want to indict Putin on an ICC-indictable crime it is better to pick one where the alleged crime is publicly sanctioned and acknowledged by high ranking members of the Russian government.

ST. PETERSBURG, April 1. /TASS/. Mora than 200 orphan children from Donbass may be adopted into families in Russia in the near future, Russian children’s rights ombudswoman Maria Lvova-Belova said on Friday.

"As many as 1,560 children left without parents have arrived in Russia. Some of them arrived with their guardians. It means that these parentless children have foster parents. There are around 500 such children. The rest are children from child care homes. A total of 222 of them have the entire package of documents and can be adopted into families," she said, adding that the list of potential foster families has already been drawn.

Even civilian executions, if confirmed, in Bucha could, for example, be blamed on local troops and commanders and disowned by the Russian government, as part of its defense: "we didn't know and we did not order it."

As to whether it's a crime or not (since some commenters like to claim that Russia is "helping" by keeping those children out of danger), that's for the court to decide during a trial. An indictment doesn't mean a guilty verdict, but it does mean that the court believes there is ground for legal action.

Not directly related to the indictment, but a UN report published March 16th voiced much the same concerns. Again, the large scale forced resettlements of people across borders, and restrictions on departures, are willful, not accidental, acts that would seem hard to arrange without the support of higher levels of government. Government funds will have had to be allocated, which will leave a paper trail.

While looking into transfers of children from Ukraine to the Russian Federation, the Commission found, with concern, that violations of human rights and international humanitarian law have been committed. Situations concerning the transfer and deportation of children which it has examined amount to war crimes. Witnesses told the Commission that many of the younger children transferred were not able to establish contact with their families and might lose contact with them indefinitely. Delay in the repatriation of civilians may also amount to a war crime.

Answer 3

So why is the ICC starting out from a very minor crime rather than prosecuting Putin for starting the war in the first place?

The crime of starting a war of aggression is specifically not in ICC's mandate, unless the country attacking is part of the ICC, which Russia is not:

The International Criminal Court (ICC) is competent to prosecute the most serious international crimes such as genocide, crimes against humanity and war crimes. It is also competent to prosecute the crime of aggression but only in relation to those countries that have accepted its jurisdiction in relation to this crime. The crime of aggression is a crime committee by the highest political and military leadership. Given that Russia does not accept the jurisdiction of the ICC, and therefore the ICC cannot exercise this competency in the context of Russia's war against Ukraine.

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Regarding the ICC warrant, as far as I can tell they've released hardly any details of the indictment, beyond that press release. That was not an uncommon strategy for ICTY as well (before apprehending the suspects), as I vaguely recall. Evidence can be destroyed, witnesses suppressed etc.

Since I have no details to go on from the ICC itself, I suspect, based on press coverage of the affair, that an indictment may in part rely on Putin's prior declarations that Ukraine is a fake/country nation in order to establish his intent in regard to those children.

The NYT for example says:

Mr. Putin instituted a streamlined process in May allowing the swift nationalization of Ukrainian children. The first group became Russian citizens in July, officials announced.

“I did not recognize those kids with whom we traveled in April on the train to their new life,” Ksenia Mishonova, the children’s rights commissioner for the Moscow region, said in a statement. “Now they are our little fellow citizens!”

So it's probably more than simply/temporarily taking the children to Russia that's going to be used as evidence, possibly in an attempt to establish some kind of similarity with more odious precedents. But I'm just guessing, since the ICC has released very little details about their indictment, as far as I can tell.

Answer 4

Three excellent answers are here so far, but two critically important aspects seem to have slipped from the existing answers. Here they are:

1. It is not "just" about the forced deportation. It is deportation with the goal of forced change of victim's identity. Which is the core definition of genocide.
2. If you are going to actually indict the richest criminal in the human history, and your case gets to the actual court, you should expect that the most experienced and most expensive lawyers will be hired on his defense. Your argument must be bullet-proof.

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Forced change of victims' identity

The Russian officials said multiple times that Ukrainians are not a nation.
That a Ukrainian is just a Russian who is ill with the disease of Russophobia.
Take a look on Timothy Snyder's Testimony to the United Nations Security Council "Russiphobia" meeting on 14 March, 2023 for further details: YouTube.

The Russian officials have openly stated that the original goal of "special military operation" is "denacification", and everyone was able to see how they understand it (ref. mass murders in Bucha, Irpin, and virtually every place that has been under the Russian control for more or less durable time):

• "re-educating" those who would agree they are not Ukrainians, but just "ill" Russians, and who are ready to get "healed" of that illness;
• murdering of those who insist that they are Ukrainians.

Russia’s Systematic Program for the Re-education and Adoption of Ukraine's Children.
According to researches, Russia has established a network of russification facilities, both on legitimate territory of Russia and on occupied territories.
Additionally, some of these camps have provided military training to children.

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Talking of "a very minor crime"

It would be a very minor crime it were "just" forced deportation, comparing to other crimes against the humanity. Throughout 9 years of current war, a typical Russian is TV-taught how to debunk each allegation:

• deportations? — oh, we are just worrying for their safety;
• war of aggression? — oh, look how russophobic they are;
• executed prisoners of war? — oh, they killed each other;
• raping the children? — do you have evidence? your evidence is no evidence, so where's your evidence?
• mass murders? — oh, they just slipped on banana peel; (sad sarcasm off)

But it is deportation with the goal of forced change of victim's identity, and it seems a totally different beast. Which is the core definition of genocide, and it is much harder to deny.

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The evidence must be bullet-proof solid

Another point is pretty much straightforward.

While there are historic cases when sitting heads of states were warranted by ICC, this is the unprecedented case of head of a nuclear state, P5 member of UNSC, is warranted.

It is no secret that many analysts suggest that Putin is the richest person in the world. If he's defending on the alleged capital offense, it is reasonable to expect the rich to hire the most experienced, and the most expensive, lawyers. Who, in turn, will try to exploit every tiny breach in the evidence, procedure, or statement.

The ICC warrant for forced deportation of Ukrainian children with the goal of their forced russification has been chosen because the Russians have documented themselves:

Both Putin and Lvova-Belova appeared on state-controlled Russian TV, bragging about their role in:

• kidnapping,
• forced deportation, and
• forced russification as the whole reason for the crimes above.

All aspects have been evident in that single video. Some analysts suggest that it would be extremely hard to prove otherwise, whatever lawyer would be conducting the defense.

Answer 5

Because this crime is much easier to prove and less likely to start open ended discussions on who has invaded whom.

Russia have not been hiding these children deportations, just that they presented them as a "humanitarian action". V. Putin signed the decree making Ukrainian children very easy to adopt by Russian families. It may be that official documents and public statements at hand, released by Russian Federation itself, may form a sufficient background.

Answer 6

A Michael Tracy investigation illustrates that although the USA does not recognize the authority of the ICC in general it has made several exceptions such as Syria.

The ICC arrest warrant seems to be based on a yale study using open data without including data from actually visiting Ukraine and interviewing victims etc.

One wonders why the war crimes committed in Yemen by Saudi Arabia, UAE and the USA are not investigated. Relocating orphan children is not a crime in which these countries are known to engage. A warrant for killing children or civilians could backfire against the USA as they recently killed an extended family in Afghanistan. It's a safe way for the USA to attack Russia for its crimes without fear of being attacked for its own crimes.

It seems to be another escalation and will be interesting to observe what happens if Putin goes ahead with his proposed visit to South Africa.

Answer 7

Here's a very very very cynical answer. The ICC is aware that the war is an emotionally charged affair, and there are a lot of entrenched views that effectively cannot be shifted. This is the kind of thing that leads to people denying, e.g., the Bucha massacre ever occurred or that it was actually staged by Ukraine.

The ICC knows that if they pick one of these "much more obvious crimes", they'll run up against these entrenched views and achieve nothing. To achieve the goal of keeping the war in people's minds & making sure public support for Ukraine does not wilt, the ICC picks a crime that everyone disagrees with and publicizes that. You can find people who think Russia is not to blame for the war, or who think that civilian deaths / rape are inevitable during wartime and therefore we should expect these things to happen, but everyone can be expected to agree that abducting children is morally wrong. People are generally protective of children.

If you're one of the people (there is a wide target audience, from the Middle East to India/China to Vietnam to South Africa) that take a relatively sympathetic view of Russia, but because of the ICC's accusation start to reconsider that view, then the ICC has succeeded in its aim precisely by choosing this crime instead of something else.