Jamie Dettmer is opinion editor at POLITICO Europe.
“What the nations can offer in the way of good blood of our type we will take, if necessary by kidnapping their children and raising them here with us.”
That was Reichsführer Heinrich Himmler speaking to his Schutzstaffel (SS) generals in Poznan in 1943.
According to the Polish Red Cross, around 200,000 Polish children, as well as an unknown number of children of other ethnicities, were taken from their homes during World War II and transported to Nazi Germany. They were taken mainly to be Germanized, although some were used for forced labor, and those who failed to pass racial evaluation tests were sent to special centers for medical experiments.
Some Polish children — like Jan Chrzanowski, who was just a 1-year-old when he was transferred — were so completely Germanized and integrated in adoptive German families that when eventually located after the war, they refused to return to Poland. But others resisted their abductors from the start, like the older Polish kids at one reeducation center who took to waking up the younger ones during the night to recite their prayers in Polish, so they wouldn’t forget where they came from.
Fast forward 70 years, and Russian officials now claim that the thousands of children they’ve deported to Russia from Ukraine’s Donbas — Ukraine claims the number’s as high as 16,000 — have been removed to shelter them from the conflict or because they’re orphans. But Russia’s inaptly named children’s rights commissioner, Maria Alekseyevna Lvova-Belova, gave the game away on Telegram in September, when she acknowledged the real goal of stealing children was to turn them into patriotic Russians.
And late last week, when the International Criminal Court (ICC) issued its arrest warrants for Putin and Lvova-Belova for this mass deportation of Ukrainian children, it carried echoes of 1949 and the eighth case in the Nuremberg trials that saw 14 defendants — all officials of various SS organizations — convicted of kidnapping Polish and other children from their native lands, among other things, during World War II.
Regarding the children taken from Ukraine today, Lvova-Belova said that at first, they sometimes displayed what she termed “negativity,” including a group of 30 from Mariupol who defiantly sang the Ukrainian national anthem, said bad things about Russian President Vladimir Putin, and chanted “Glory to Ukraine.” After a while, however, she happily noted, the children’s attitude was “transformed into a love for Russia.”
A Ukrainian teenager she adopted named Filip was also initially recalcitrant, talking endlessly about how he’d participated in demonstrations in support of the Ukrainian army. But on September 21, Lvova-Belova said, “he received a passport of a citizen of the Russian Federation and does not let go of it!”
“(He) was waiting for this day in our family more than anyone else,” and he’s “grateful” to the “great Russian family” that saved him, she added.
Putin likes to claim he is de-Nazifying Ukraine, yet here he is — thanks to the ICC — wanted before an international court on some of the same charges heard against those 14 SS defendants at the Palace of Justice in Nuremberg, in what was called the Race and Settlement trial.
For the Nuremberg prosecutors, the goal of the trials was not only to secure convictions and the punishment of war criminals, it was also to let the world clearly see the evidence of Nazi horrors, to delegitimize the Nazis in the eyes of Germans and to establish the crime of aggression in international law.
Today, the ICC’s Chief Prosecutor Karim Khan hasn’t had the opportunity to charge Putin with the broad crime of aggression for ordering the invasion of Ukraine — the ICC still doesn’t have the legal authority to do so. But he is doing the next best thing and preparing to indict the Russian leader on a war crime that he insists does come under The Hague-based court’s purview — that of the “unlawful deportation” of Ukrainian children.
And other charges are likely to follow. In a conversation with POLITICO last month on the sidelines of the Munich Security Conference, Khan said it is important to hold all to account, including for rape and “attacks on schools or hospitals” — all crimes he believes the court is empowered to do something about.
However, some international lawyers — and Moscow — argue the ICC is on shaky legal ground with the arrest warrants for Putin and Lvova-Belova, as Russia isn’t a party to the Rome Statute governing the ICC. Kremlin officials said the warrants are “null and void,” while Putin demonstrated his disdain and nonchalance by provocatively dropping by a children’s center in Crimea during what the officials called a surprise visit.
But Khan dismisses the claim that the ICC doesn’t have jurisdiction, arguing that Ukraine — which also hasn’t ratified the treaty — accepts the jurisdiction of the court, allowing it to proceed when it comes to war crimes committed on Ukrainian territory.
Similarly, the Nuremberg trials were also a focus of legal and political contention, and they encountered procedural difficulties — especially as there was no precedent for an international trial of war criminals. And after the four Allied powers fell out, 12 of the 13 trials, including the Race and Settlement trial, had to be conducted before United States military tribunals.
Noted American jurist Charles Wyzanski saw them as “high politics masquerading as law,” and argued they “may retard the coming of the day of world law” rather than promoting it. Others, including those indicted, criticized the whole exercise as a form of victor’s justice ,or as an example of ex post facto law — i.e., laws that criminalized actions committed before the laws were drafted.
But unlike the prosecutors at Nuremberg, the ICC can’t be accused of engaging in an exercise of ex post facto law today.
Khan can now draw on the Convention on the Prevention and Punishment of the Crime of Genocide, which the Race and Settlement trial helped shape. The provisions of the Genocide Convention are widely considered to be binding on all nations, whether parties to the convention or not — and even Russia has ratified the convention.
Then, there’s also the case law that the ICC has already established in trials, including the court’s very first conviction in 2012, when it found Lubanga Dyilo, the Congolese warlord, guilty of recruiting child soldiers.
Khan told POLITICO he’s encouraged by the eagerness he hears from all quarters to hold Russia accountable. “We see very acutely that international law is being seen to be relevant as one of the critical anchors to ensure the maintenance of peace and security. It’s not only about jurisprudence and important normative values, it really is about basic standards of behavior that make sure there’s accountability and security,” he said.
Khan also pointed out the ICC is the appropriate judicial venue for this — rather than a special tribunal, which some, including European Commission President Ursula von der Leyen and the European Parliament, have called for.
The fear here is that a special tribunal would encounter the same doubts and obstacles that buffeted the Nuremberg trials. In the ICC, “we have a very established court,” Khan said. “It is a quarter of a century since the Rome Statute was signed. We have an established jurisdiction. We’re clearly accepted as the international court by the U.N. Security Council. I think my job is to get the law moving.”
Asked before the arrest warrants were made public whether he could ever envision Putin appearing in the dock, like Serbia’s Slobodan Milošević, he added: “We start with the evidence. And that’s what we’re doing.”