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A few days ago, International Criminal Court prosecutor Karim Khan said:

Today, the Pre-Trial Chamber has issued arrest warrants in relation to the following two individuals:

  • 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.

On the basis of evidence collected and analysed by my Office pursuant to its independent investigations, the Pre-Trial Chamber has confirmed that 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, contrary to article 8(2)(a)(vii) and article 8(2)(b)(viii) of the Rome Statute.

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. The law was changed in the Russian Federation, through Presidential decrees issued by President Putin, to expedite the conferral of Russian citizenship, making it easier for them to be adopted by Russian families.

I was a bit surprised by the particular charge, as I've followed acts such as the bombardment of (dual-use) civil infrastructure (energy, railways), and have heard allegations of intentional targeting of civilians in some cases, but this is the first I've heard of this movement-of-children thing.

What evidence has the court based its decision to issue arrest warrants on?

In particular, evacuating children from war-zones is something which I would assume happens, so what is the indication that children were moved where it is not allowed to move them, and with the intention of not returning them? Does it have something to do with the question of the recognition of the LPR and DPR as independent states and their later accession to the Russian Federation, after which orphans may perhaps have been treated as "any Russian orphan", without care to let them stay within the territories of the LPR/DPR?

einpoklum
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    Is this answer sufficient? – Tadeusz Kopec Mar 21 '23 at 08:09
  • @TadeuszKopec: No, because it makes an argument rather than listing evidence. – einpoklum Mar 21 '23 at 08:36
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    @einpoklum Evidence is here – Tadeusz Kopec Mar 21 '23 at 09:07
  • @TadeuszKopec: So, is this the evidence the ICC is relying on? If it is, make it an answer. Although others have said there isn't transparency w.r.t. the evidence the ICC considers before issuing warrants, so maybe we just don't know. – einpoklum Mar 21 '23 at 09:54
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    @TadeuszKopec I think the OP is rather asking about the legal evidence that the Prosecutor is going to present in the court. And there are reasons to believe it can be only disclosed in the court, not earlier. – Be Brave Be Like Ukraine Mar 21 '23 at 11:35
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    "this is the first I've heard of this movement-of-children" It was in the news several times though. Not saying that everyone has to have heard of it, but one could have. Obviously the treatment of Civilians during a war is an extremely sensitive matter. The absolute minimum should be the Geneva convention in this regard. – NoDataDumpNoContribution Mar 21 '23 at 14:42
  • @einpoklum Obie is waxing lyrical. – Reinstate Monica Lewinsky Mar 21 '23 at 19:20
  • @Trilarion: 1. I explained why I was surprised, I didn't say it has not been reported. 2. We probably don't live in the same country, so it's unlikely we get the same news. – einpoklum Mar 21 '23 at 20:30
  • @einpoklum You might be surprised and I try to also get international news if possible. I don't want to put too much emphasis on that comment. Just wanted to mention that the topic isn't new. – NoDataDumpNoContribution Mar 21 '23 at 20:34
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    Changing citizenship would appear to support the allegation of "intention of not returning them". And that seems itself to cross the line into a prohibited movement, there's no this AND ALSO that required. – Ben Voigt Mar 21 '23 at 21:59
  • While I also think that this order by Putin is motivated by a goal of turning Ukrainian-born children into loyal Russians, and hence fits the allegation, I am somewhat uncomfortable because I don't know what kind of national identity those children would have (if any), if left to decide for themselves? Who knows, some might think of themselves as Russians? During the USSR reign many ethnic Russians had moved to other to other former Soviet Republics. Of course, they could have relocated when USSR dissolved, but many elected not to. – Jyrki Lahtonen Mar 23 '23 at 14:13
  • (cont'd) Having said that, I'm even more uncomfortable with the idea of the Russian Federation using such people (who chose to live in another country) as casus belli, which is basically one of their excuses for starting this war. The real war crimes happened in places like Bucha. It's just that pointing Putin as the culprit there is a stretch. To this extent, the decision to concentrate on the deportation of children feels a bit ... secondary? – Jyrki Lahtonen Mar 23 '23 at 14:17
  • @JyrkiLahtonen : "Who knows, some might think of themselves as Russians? " <- 1. It could be a dual identity psychologically as well... 2. We actually do have some idea, at least for the Donbass areas, as they have seceded from Ukraine and had been at war with it for almost a decade before the invasion; and for Crimea if that's also part of the allegation. That's not certain knowledge, but it is at least a gray area. – einpoklum Mar 23 '23 at 15:24

3 Answers3

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What evidence has the court based its decision to issue arrest warrants on?

It is not disclosed.
The Rome Statute 58(3) does not require so.
From the Rome Statute 58(1)(b)(ii) it follows that the premature disclosure could be deemed undesired/prohibited.

The Rome Statute 58(3) is pretty much specific:

Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
3. The warrant of arrest shall contain:
(a) The name of the person and any other relevant identifying information;
(b) A specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and
(c) A concise statement of the facts which are alleged to constitute those crimes.

…and nothing beyond that.

This is precisely the format of Karim Khan's statement quoted within the original question: paragraphs 1,2,3 correspond to sections (a),(b),(c).

Additionally,

Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear

  1. […] the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if […]
    (b) The arrest of the person appears necessary:
    (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings;

I am not a lawyer, but from the common sense, I may assume that the premature disclosure of evidence would aid the suspect to obstruct the investigation and thus jeopardize 58(1)(b)(ii).
Therefore, it may be deemed unnecessary, not recommended, harmful, or even prohibited.

Source: Rome Statute of the International Criminal Court (PDF)

If you are rather interested of hints about what could be the evidence:

Be Brave Be Like Ukraine
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  • Well, that's... kind of terrible, IMHO. It's bad enough that state bodies can arrest me without establishing cause :-( – einpoklum Mar 21 '23 at 20:26
  • ... but just to be clear, I upvoted and accepted the answer, I just don't like that this is how the ICC works. And it's certainly doesn't inspire public confidence in the process. – einpoklum Mar 21 '23 at 20:40
  • @einpoklum I think many of us want justice public. On the other hand, I cannot imagine a court that would publish something like: "Here are photos of Russian torture chambers for children* which we find authentic. Here is evidence proving that Army General X received order from Supreme Commander Putin to build those chambers"*. I could imagine such materials arise during the hearings in the court, but as evidence to support the arrest warrant — no. – Be Brave Be Like Ukraine Mar 21 '23 at 22:58
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    @einpoklum - Is it standard in your country for all the evidence behind arrest warrants to be made public? I would not assume that lack of publicly divulged information about the evidence for the warrant means that cause has not been established to the satisfaction of the issuing court. There are reasons for this, too: for instance, does one want a suspect who has not been arrested yet to know exactly what your warrant is based on, so that they know what to destroy before they are arrested? – Obie 2.0 Mar 22 '23 at 01:27
  • @Obie2.0: If one of your neighbors had the power to arrest you, would you be ok with that happening based on evidence they did not have to disclose to anybody? Because they are worried you might tamper with their investigation? – einpoklum Mar 22 '23 at 07:37
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    @einpoklum similarities with civil law are quite often imperfect. However, if you insist: (1) it is not a neighbor but rather a police officer; (2) a policeman who knocks on your door for your arrest says "Rodion Raskolnikov, you are detained for murder of Alyona Ivanovna." He never says, "here's the axe covered with blood, and Student Pestriakov has already testified against you". (3) Publicly demanding the evidence upon your detention (kakije vashi dokazatelstva) does not even help in movies. :-) Does it make sense? – Be Brave Be Like Ukraine Mar 22 '23 at 08:22
  • @einpoklum I think you need to check how police actually work: all that is usually required is "reasonable suspicion" at the time. It's often the start of gathering more evidence. – pjc50 Mar 22 '23 at 09:50
  • @pjc50: I know that's how police work. That is a prerogative of the sovereign, which is rather oppressive to subjects. In an international setting, the ICC is not a court of the "world government", it is a court arranged among peer-states. You could say that the Rome Statute extends sovereign privileges to the ICC w.r.t. any individual in the signatory states, but that's a problem for the interests of those states - they can be targeted, harassed or assaulted by having key officials be arrested. I doubt ICC members except things to work like that. – einpoklum Mar 22 '23 at 09:55
  • @BeBraveBeLikeUkraine: A police officer is an agent of the sovereign. But in the ICC, there is no international sovereign. – einpoklum Mar 22 '23 at 09:56
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    @einpoklum , absolutely. (1) That's exactly why I mentioned that making analogies with civil law is flawed logic. The ICC is in no way a neighbor of Russia. (2) And it was established specifically for cases like this. (3) Also, from various aspects of its sovereignty in no way it follows that the evidence should be presented in front. Q.E.D. – Be Brave Be Like Ukraine Mar 22 '23 at 10:25
  • @einpoklum read the whole article 58. Cause must be established to the satisfaction of pre-trial chamber through an application that includes a summary of the evidence. You will really be much better informed by reading the Rome Statute than by seeking answers from the users of this site, or at least by reading it before you seek those answers. The ICC is also constituted in a way that protects the interests of member states without requiring public disclosure of evidence before arrest. – phoog Mar 23 '23 at 22:22
  • @phoog: I guess I should read the thing... especially since I doubt the interests of member states are protected if arrests of their political leadership are possible without disclosure of evidence. – einpoklum Mar 23 '23 at 22:29
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    @einpoklum: It's worth noting that while they will say why they're charging you with a crime, if the police are using a search warrant, knock or no-knock, they do so not necessarily to charge the person with a crime, but to consider it a possibility the person has evidence of a crime done by someone - not necessarily the person being searched. With no-knock warrants issued when they have a reason to suspect the person may destroy the evidence being searched for. Similarly, as I understand, the policecanarrest a suspect before an investigation is complete on the evidence and testimony. – Alexander The 1st Mar 24 '23 at 03:47
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Reports first emerged last spring that Ukrainian children in occupied territory were being taken to Russia, and some adopted by Russian families. This includes children taken from Ukrainian state institutions in the occupied areas, children whose parents had sent them to Russian-run “summer camps” from which they never returned, children whose parents were arrested by the Russian occupying authorities, and children who were orphaned by the fighting. Russia has admitted to holding at least 1,400 Ukrainian children it describes as orphans (source, The Guardian).

Many of these Ukrainian children have living relatives, who are desperately searching for them.

Russia has not publicly issued a list of Ukrainian children evacuated and detained. However V. Putin issued a decree that made it quick and easy to adopt Ukrainian children, this is obviously not a secret. Also, Russian officials do not deny Ukrainian children are now in Russia (source, NPR). ICC concluded that "there are reasonable grounds" to suspect this is actually happening (source, the arrest warrant itself):

(...) 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.

The United Nation’s prevention of genocide convention prohibits “forcibly transferring children of the group to another group”

Stančikas
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  • That doesn't say what the evidence for the claims is, and specifically not what the ICC based the warrant on. 2. AFAIK, and I may be wrong, the Guardian has not had reporters stationed in the Donbass (or Zaporizhya, or Russia etc.), looking into the issue of child deportations. In another news story they link to a report by the USA. Do you believe that it's this report on which the ICC based its warrant?
    • – einpoklum Mar 21 '23 at 08:55
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    Russia has itself admitted to holding at least 1,400 Ukrainian children. Hence ICC had reasons to assume this maybe have happened. – Stančikas Mar 21 '23 at 08:58
  • Citation needed... 2. There are many people (including children) who are both Russian and Ukranian - ethnicity vs citizenship, or with both states recognizing them as their citizens.
    • – einpoklum Mar 21 '23 at 09:52
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    There are two references. – Stančikas Mar 21 '23 at 10:31
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    @einpoklum the crime alleged in the arrest warrant does not depend on the children's citizenship or ethnicity but on their place of residence. – phoog Mar 23 '23 at 22:49