Can the ICC retain legitimacy while selectively prosecuting the unlawful transfer of children?
[18 March 2023] – On 17 March 2023, the International Criminal Court ("ICC" or "the Court) issued warrants for two Russians allegedly responsible for the war crime of, inter alia, the 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).[i] The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. The warrants were issued following a request by the ICC prosecutor on 22 February 2023.
The prosecution alleges that "at least hundreds of children" have been taken from orphanages in occupied Ukraine and transferred to the Russian Federation with "the intention of permanently removing these children from their own country". At the time of these deportations, the Ukrainian children were protected persons under the Fourth Geneva Convention. The prosecutor also states that: "In September last year, I addressed the United Nations Security Council and emphasised that the investigation of alleged illegal transportation of children from Ukraine was a priority."
The Office of the Prosecutor of the ICC has been in possession of evidence relating to the unlawful transfer of Palestinian children from the occupied West Bank to prisons in Israel since 15 March 2015. These children are, similarly, protected persons under the Fourth Geneva Convention. According to data published by the Israeli Prison Service, it is estimated that since June 1967, over 22,000 children and 625,000 adults have been unlawfully transferred - or up to 700 children each year.[ii] It should be noted that Israel's Supreme Court has blocked any prospect of a domestic remedy in circumstances where there is no dispute of fact.
While Palestinian children unlawfully transferred to Israel return to the occupied West Bank on the completion of their sentences, there is no requirement under international law for an intention to permanently remove a protected person from occupied territory for the offence to be constituted. Further, evidence collected by MCW indicates that many children who are transferred, are systematically subjected to solitary confinement as part of the interrogation process, in some cases potentially amounting to torture. This currently affects up to 420 children each year.
In 2013, UNICEF published a report concluding that the ill treatment of Palestinian children held in Israeli miitary detention "appears to be widespread, systematic and institutionalised throughout the process" and recommended that "in accordance with international law, all Palestinian children detained in the Israeli military detention system shall be held in facilities located in the occupied Palestinian territory." Since UNICEF published its report the percentage of Palestinian children unlawfully trasferred out of occupied Palestinian territory each year has increased from 53 percent to 71 percent (Dec 2022).
There is a growing perception that the ICC is being politicised with anecdotal evidence from within the Court suggesting that decisions as to which cases to prosecute have been linked to funding. Meanwhile, some ICC member states appear to have provided Israel with assurances of advance warning of potential action while others publicly reject the Court's ruling on jurisdiction.[iii] If the Office of the Prosecutor is unable or unwilling to apply the law without fear or favour, the independence and legitimacy of the Court will be irreparably harmed. Further, an explanation is required as to how blocking legal accountability for alleged war crimes in Israel/Palestine promotes a peaceful resolution to the conflict or strengthens Israeli democracy.
[i] Mr Vladimir Putin (President of the Russian Federation) and Ms Maria Lvova-Belova (Commissioner for Children’s Rights in the Office of the President of the Russian Federation).
[ii] Based on an annual detention rate of 500-1,000 children and applying the current transfer rate supplied by the Israeli Prison Service of 71 percent.
[iii] Following the ICC's ruling on jurisdiction in February 2021, Israeli media reported that "senior security officials said a number of ICC member states have agreed to give advance warning to Israel of any intent to arrest Israelis on their arrival in those countries or if a request for an arrest warrant is issued against them." Shortly afterwards, the governments of the UK, Germany, Canada and Australia (a non-exhaustive list) - all member states of the ICC - issued statements rejecting the ruling of the Court regarding jurisdiction over the Israeli/Palestinian conflict. Although not a party to the Rome Statute, the US under the Biden Administration also appears to be seeking to undermine the work and independence of the Court.