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Scary scenes from Ukraine pushed millions of people around the world to condemn the Russian invasion and support Ukraine’s independence.
For some, however, it is literally a call to duty. Thousands of ex-servicemen traveled to Ukraine to defend their people. These figures clearly worried Russians who launched a global campaign to warn volunteers that in the event of a capture, they would be treated as mercenaries rather than legitimate prisoners of war.
Among the large number of such volunteers involved in the defense of Ukraine, many Americans. They are in the modern version of the Lincoln Brigade, which fought against fascism in Spain before World War II. The resemblance to the Spanish Civil War is striking: the Nazis control the skies, deploy modern weapons and engage in war crimes. Then Russia supported the republican forces against fascism.
Now, however, Russia says foreign volunteers are not considered “combatants” under the Geneva Conventions. This is not true.
Russian embassies have issued statements telling men not to fight, risking being considered “mercenaries”. The Russians warn that in the “best case” foreign volunteers will be tried and punished as criminals, including under threat of execution.
Of course, today Russia does not have confidence in any interpretation of international law. There is growing evidence of possible war crimes by Russia, including attacks on civilian areas with non-selective weapons and the use of prohibited weapons. Moreover, Russia uses mercenaries such as the infamous Wagner group.
If you reject hypocrisy, the Russian government is legally wrong. According to the Geneva Conventions, the “best case scenario” is not “detention and prosecution”. The Ukrainian president and government have officially called on international volunteers to join the Ukrainian military. They are part of the Ukrainian Defense Forces and received Ukrainian training, uniforms and insignia. Russia’s position is similar to the fact that the French Foreign Legion will be considered mercenaries because it includes non-French volunteers. The Legion famously opens its ranks to “recruits from around the world.”
Similarly, it is estimated that about 16,000 foreign fighters are organized as part of the “Ukrainian Foreign Legion” and requires training for a year or more.
Although there are ambiguities regarding private contractors and other parties to the conflict, the current definitions of the hostilities covered clearly and unequivocally reject Russia’s position.
Article 4 (A) (1) includes “Members of the armed forces of a conflict party, as well as members of militias or volunteer units that are part of such armed forces”. Thus, both the militia and the volunteer corps are included.
Article 4 (A) (2) also clarifies that “militiamen and members of other volunteer corps … belonging to a conflict party and operating in their own territory or outside it” enjoy status and protection.
According to the Geneva Conventions and the Additional Protocols, there is a division between combatants and civilians. Later terms may include illegal combatants, spies and mercenaries.
Moreover, Article 45 dealt with “Protection of persons involved in hostilities” and states that every combatant who is taken prisoner is considered a prisoner of war. Accordingly, if a foreign fighter is captured, “he shall continue to have such status and shall therefore be protected by the Third Convention and this Protocol until his status is determined by a competent court”.
Conversely, in accordance with Protocol I, mercenaries are defined as “foreign combatants recruited to take part in one particular conflict and motivated by a desire for personal gain in excess of the payment to the armed forces of the recruiting State”. This is not the case in Ukraine.
History and hypocrisy
Ironically, the Russians have long accepted such international volunteers in combat. One of the largest such efforts was the Soviet Volunteer Group, which, with government support, traveled to China to participate in the Second Sino-Japanese War between 1937 and 1941. This included hundreds of pilots and aircraft.
The Russians were also foreign participants in the Spanish Civil War. They were considered especially important for the defense of Madrid from the Nazis, including German troops. These included T-26 tanks under the command of the famous Captain Paul “Grace” Arman and Brigadier General Dmitry “Pablo” Pavlov. It also included dozens of Soviet I-15 fighters, Tupalev ANT-40 bombers. According to Russia’s current interpretation, all these people (they are called Soviet heroes) will now be considered criminal mercenaries.
Future performance requires immediate clarity
If Russia complies with its interpretation of the Geneva Conventions to exclude foreign members of the Ukrainian defense forces, it would be a gross violation of the Geneva Conventions.
It can be said that it does not matter if the Russians violate international law and commit atrocities. However, violations of the Geneva Conventions expose military commanders to possible international accusations and sanctions. The International Military Tribunal for the Far East (or the “Tokyo Trial”) has prosecuted officials responsible for the abuse of prisoners of war.
Article 86 (2) of Protocol I was written in the light of the cases of World War II. This imposes criminal liability on the commander if he knew or should have known that the subordinate was going to violate the conventions.
The world legal community must speak with one voice in rejecting Russia’s explanation of the Geneva Conventions, so there can be no doubt that Russian commanders are aware of such violations. When this war is over, we hope the perpetrators will be held accountable. However, we must make this clear and unambiguous record now that we are going to later defend the rights of the victims of this invasion.