Criminal liability for the deportation of Ukrainian children: parliament prepares to give a legal assessment of the war crime

One of the most painful and at the same time least structured issues of the war is the systematic abduction, forcible transfer and detention of Ukrainian children in the temporarily occupied territories or deep within the Russian Federation. This phenomenon is not random, chaotic or exceptional. It is a targeted state policy that covers minor citizens of Ukraine, deprived of contact with their families, national identity and legal protection. Despite loud international statements, decisions of the International Criminal Court, hundreds of official appeals and journalistic investigations, the real mechanism for the return of these children remains situational at best. That is why the issue of bringing to justice those involved in the deportation and delay of the repatriation of children is a legal, as well as a political and humanitarian issue.

Content of the legislative initiative

On April 21, the Verkhovna Rada’s Committee on Law Enforcement recommended that the Parliament support draft law No. 12170 in the first reading. Its purpose is to add a clear article to the Criminal Code of Ukraine, which recognizes the deportation and unjustified delay of the repatriation of a child by a representative of a foreign state as a war crime. About this informs profile committee on Facebook.

It’s not just generalizations. The draft law proposes to interpret the removal of a child in conditions of armed conflict – especially if it is accompanied by obstacles to return, change of name, citizenship or forced adoption – as a gross violation of international humanitarian law. This will allow not only to ascertain the fact of the crime, but also to start the criminal prosecution of specific officials of another state – primarily Russia.

In the commentary of the press service of the Verkhovna Rada, it is emphasized that the adoption of this law has not only legal, but also symbolic significance: it allows to give legal qualifications to actions that have so far remained in the gray zone of humanitarian crimes, and creates a legal basis for international cooperation in matters of extradition, investigation, and exchange of information regarding abducted children.

We will remind you that back in April 2023, 49 states — including most of the EU countries, Great Britain, Canada, the United States, Japan, and Australia — issued a joint statement condemning Russia for the abduction of Ukrainian children. The reason was the meeting of the UN Security Council organized by the Russian Federation, dedicated to the so-called “legal grounds for the transfer” of minor Ukrainians to Russia. At that time, Great Britain even blocked the broadcast of the speech of the Commissioner for Children’s Rights of the Russian Federation Maria Lvova-Belova – the person who appears in the arrest warrant issued by the International Criminal Court.

The problem of deportation of Ukrainian children has a catastrophic scale. In March 2023, Daria Gerasymchuk, the representative of the President of Ukraine on children’s rights, stated that the Ukrainian state has confirmed data on at least 19.5 thousand deported children. But the real number can be many times higher. According to the head of the President’s Office, Andriy Yermak, there are already more than 1.6 million minors who are currently under Russian control, both on the territory of the Russian Federation and in the occupied Crimea and part of Donbas.

Currently, there is no mechanism that would allow these children to be systematically returned. In some cases, repatriation takes place thanks to international mediation — in particular, the participation of Qatar or humanitarian missions. But in most situations this is either impossible or takes years. In addition, Russia often changes children’s personal data, reassigns guardians, grants them citizenship — that is, it takes purposeful actions to hide the origin and eliminate the chance of return.

Against this background, the Verkhovna Rada is also working on a parallel draft law No. 12385, which concerns the determination of the status of children injured as a result of military operations. Its adoption in the first reading on April 17 was an important step towards the formalization of assistance to such children within the country, but without a foreign policy tool of pressure, it is not enough.

It is draft law No. 12170 that should become the legal bridge that will connect the real facts of the war crime against children with the possibility of starting an international investigation. Its adoption will allow the General Prosecutor’s Office, the Security Service of Ukraine, the Security Service of Ukraine, as well as international investigators to obtain a unique tool: the presence of a direct article in the Criminal Code, which clearly recognizes the deportation of a child as not just a moral catastrophe, but a crime subject to prosecution under all principles of international law.

This document is designed to prevent further deportations. It allows Ukraine to demand that those involved in the forcible transfer of children — from the military to officials, social workers, judges or foster parents — be identified, entered into registers, and held accountable. This may form the basis of future extradition requests and mechanisms for the transfer of children from temporary custody to legal families or state custody.

In an environment where the enemy has turned the child into an instrument of war, an object of demographic expansion, cultural destruction and political blackmail, the legal response must be as precise as the moral one. Bill No. 12170 is the first step towards creating not just a narrative, but a legal act that will call child abduction by its name: a war crime.

How it will work: national investigation and international legal interaction

After the crime is qualified at the level of Ukrainian legislation, any Ukrainian investigative agency — the prosecutor’s office, the Security Service of Ukraine, the Security Service of Ukraine — will be able to open criminal proceedings against specific individuals, regardless of their citizenship, position, or actual stay on the territory of Ukraine. The formal presence of a crime in the Criminal Code is a necessary condition for a search, notification of suspicion, submission to court, opening of a trial in absentia.

From the moment of introduction of this norm, Ukraine will be able to legally ask international institutions, including Interpol, for support in issuing a wanted notice, arrest or extradition. This applies, in particular, to so-called adoptive parents who participate in the forced adoption of deported Ukrainian children, social service officials who prepare documents for name changes, and even those who encourage such actions publicly or make decisions at the level of authorities.

Such a tool will be of particular importance in cases where crimes against children are investigated within the limits of universal jurisdiction. This is the principle according to which some crimes – genocide, war crimes, crimes against humanity – can be tried by any state, regardless of the place of commission. This requires a clear national base. If Ukraine clearly recognizes the deportation of children as a war crime, it creates grounds for similar actions in the courts of other countries.

The law will also open up the possibility of gathering evidence in an orderly format – with the correct legal qualification, description of each episode as a crime, appropriate registration of testimonies, confirmations, archival records, decisions on changing surnames or citizenship. These cases can be sent to the International Criminal Court or become the basis for filing interstate lawsuits.

Which can be a challenge

One of the main challenges that Ukraine will face after the adoption of this draft law will be the identification of persons who are directly involved in the abduction, transfer or maintenance of children. Access to such data is often limited due to changing names, granting Russian citizenship, concealing whereabouts or involvement in propaganda programs. At the same time, thanks to international databases, journalistic investigations, intelligence data, as well as testimonies of returned children, it becomes possible to gradually form personalized dossiers.

Proving intent and a connection between individual actions and a political order from above will be equally difficult, as Russia attempts to present child abductions as “evacuation,” “rescue,” “humanitarian aid,” or even an “integration program.” But the presence of a clear article in the Ukrainian law allows us to work with the evidence consistently — and to legally oppose Russian propaganda with real facts: about the lack of parental consent, pressure on children, replacement of documents, imposition of a new identity.

Another aspect is political and diplomatic work after the adoption of the law. When Ukraine receives a law recognizing the deportation of children as a war crime, it will be able to lobby for its similar recognition in other countries. This will pave the way for the creation of a broader coalition of states that not only condemn such actions, but also recognize them as punitive actions, ready to prosecute the guilty and support investigations on their territories.

For Ukrainian society, the adoption of this draft law is a recognition of the trauma that Russia has caused by destroying families, severing blood ties, stealing the future. It is a mechanism capable of pointing out not only the culprit, but also giving the child a chance to return home.