The Capture of U.S. Citizens in Ukraine By Russian Forces: Are They Mercenaries?

Approximately two weeks ago, two Americans, Alexander John-Robert Drueke, 39, and Andy Tai Ngoc Huynh, 27, were captured by Russian forces while fighting in the Donbass region of Ukraine. Kremlin Press Spokesman Dmitry Peskov has referred to these two men and “soldiers of fortune” and indicted they will be tried and could face the death penalty for being mercenaries. Earlier in the month, Russian authorities conducted show trials of two British nationals and a Moroccan citizen and sentenced the three individuals to death, again, as mercenaries.

The capture and treatment of these individuals by Russians is important, not because it raises important legal issues as to the status of these five individuals and the numerous other individuals from all over the world fighting on Ukraine’s behalf, but rather, because it is yet another example of war crimes by the Russian Federation. The Geneva Convention Relative to the Treatment of Prisoners of War, particularly Article 13, is well established and prohibits any act that could lead to the death of a prisoner of war (“POW”). Russia seeks to circumvent the Geneva Convention by labeling foreign fighters supporting Ukraine as “mercenaries” who are not protected by the Geneva Convention.

Even as this blog post is being written, news of a Russian attack on a shopping mall killing numerous civilians is being reported. There is no question that the intentional targeting of civilian targets violates the Law of War. Indeed, Russian war crimes, including genocide, are reported on a near daily basis. Worse, the Russian armed forces appear not to have altered their conduct or targeting decisions. Russian aggression is largely targeted at Ukrainian civilians.

This assertion is, of course, complete nonsense. All of the foreign people captured by the Russians thus far are members of the Ukrainian armed forces, and, as such, are not subject to trial for being mercenaries. The Geneva Convention requires that they receive “humane treatment”. There are reports, however, that Russian forces have violated the Geneva Convention with respect to its treatment of Ukrainian POWs. With respect to foreigners captured by the Russians, can the Russians side-step their obligations under the Geneva Convention by labeling them as “mercenaries”?

The answer is: of course not. The term “mercenary” has a very narrow definition under Article 47 of Additional Protocol I of the Geneva Conventions. In order for one to be considered a mercenary, he or she must:

1. be specially recruited locally or abroad in order to take part in the hostilities;
2. take a direct role in the hostilities;
3. be motivated to take part in the hostilities for private gain;
4. is promised financial gain substantially in excess of that promised or paid to combatants of the armed forces of the state hiring them;
5. is neither a national nor resident of the hiring state;
6. is not a member of the armed forces of the hiring state; and
7. is not sent in the official capacity of a third state.

As is apparent from even a cursory review of the list, there is not a colorable argument that any of the foreign nationals captured by Russian forces are mercenaries. They are entitled to the protections of the Geneva Conventions.

1. Violations of the Geneva Convention for the Mistreatment of Prisoners.

In fact, it is not the American, British, Moroccan, or other foreign fighters who should be concerned about violations of the Law of War; it is the Russian officials involved in their mistreatment who should be most concerned. The mistreatment of prisoners (ill-treatment under the Nuremberg statute under which members of the German military and government were tried) has long been recognized as a war crime even before entry-in-force of the Geneva Convention Relative to the Treatment of Prisoners of War. After the American Civil War, the Commandant of the Confederate Prisoner of War Camp at Andersonville Georgia was tried, convicted and executed for his treatment of prisoners of war. After World War II, a number of German officers were convicted and sentenced for their mistreatment of prisoners of war.

The most senior levels of the Russian government undoubtedly understand their obligations under the Geneva Conventions. It would strain credibility to believe that knowledge of the Geneva Conventions is not widespread in the Russian Armed Forces, judged by many to be one of the most powerful and most sophisticated in the world. The unfortunate conclusion I have come to, based on the complete disregard for international law in general and the war crimes and crimes against humanity shown by Russian forces, is that the current Russian regime and those supporting it do not care about any of the Russian Federation’s international obligations. Rather, they seem to rely upon raw Russian military power to justify their actions.

Of course, history demonstrates that reliance on military power alone to justify one’s actions is short-sighted. In 1942 and early 1943, as German armies had captured much of European Russia, occupied too many European countries to mention, and driven British forces from the continent, Field Marshal Wilhelm Keitel, the Chief of Staff of the German Army, was master of Europe most likely having no concerns about war crimes. By 1945, Field Marshal Keitel’s fortunes had changed. In 1946, he was tried and executed for his involvement in war crimes.

It is noteworthy that the Commander of German Military Intelligence, Admiral Wilhelm Canaris, warned Field Marshal Keitel that Keitel was engaged in war crimes and would suffer the consequences of his actions. Admiral Canaris was subsequently tortured and executed for his stance against the Nazi Regime. At the Nuremberg prosecution of Keitel, the American prosecutor, Robert Jackson, used Admiral Canaris’ warning as evidence of Keitel’s knowledge of war crimes.

There has also been some suggestion that the Russian criminal prosecution of foreign citizens fight for Ukraine is meant to stop the Ukrainian prosecution of Russian POWs for war crimes. Even if Ukraine were violating the rights of Russian POWs, which does not appear to be the case, that violation would not excuse Russian war crimes. More to the point, Ukraine has prosecuted Russians for war crimes , not for their status as mercenaries. There is no similarity between Ukraine’s prosecution of Russian war criminals and Russia’s prosecutions of people from the U.S., U.K., and Morocco.

In the case of Sergeant Vladim Shishimarin of the Russian Army, the accusation was that he shot an unarmed 62-year-old Ukrainian civilian. The Geneva Convention on the Treatment of Civilians in Time of War prohibits the killing of civilians. Ukraine has not charged any Russian POWs with being mercenaries.

2. The War Crimes Act of 1996.

Any Russian official or military officer, or anyone working at their behest, should be aware that the commission of war crimes against any American citizen, including torture or an unlawful sentence of death or penal incarceration, would violate the U.S. War Crimes Act of 1996. This statute incorporates the various Geneva Conventions, including the Geneva Convention Relative to the Treatment of Prisoners of War, into a U.S. penal statute with a maximum penalty of death.

Other nations have similar statutes (although the imposition of death as a punishment appears to be uncommon). Earlier this year, a German court sentenced a Syrian intelligence officer to life in prison for his treatment of prisoners in the ongoing Syrian war.

Conclusion

The safety of U.S. citizens should be of paramount concern to the Government of the United States. Equally important is the rule of law, and the international order established after World War II are also a matter of utmost concern for all who seek peace and justice. This is not a matter of preserving “American hegemony” as the Russian president and other government officials indicate. It is about the right of people to form their own governments and define their own destinies. Ukraine has the right to elect the government it chooses, and as long as it abides by international principles established in the U.N. Charter and elsewhere, it should be free to chart its own destiny without interference from the Russian Federation.

The days of “spheres of influence” are gone. Cuba, a nation sitting 90 miles of the coast of the U.S. is free to pursue a Communist government and has done so for more than 50 years. The Russian Empire and the Soviet Union are both dead, and although there may be those who yearn for the glory of the past , it is not possible to turn back the clock to the height of the Cold War. It is time to move on. The ability to “Finlandize” a neighboring country has come to an end, with even Finland and Sweden pursuing NATO membership. This needless war in Ukraine that has been so destructive to both life and property, also needs to come to an end. The compounding of war crimes already committed with threats of new war crimes is the absolute wrong direction for the Russian Federation.

Yearning for the glory of the past is not a uniquely Russian characteristic. One might argue that nationalists and populists around the world frequently seek a past of glory, usually mythical and never obtainable.

The people of the Russian Federation have enjoyed varying degrees of freedom over the past 30 years, although too much wealth has been plundered by corrupt government officials, oligarchs, and organized crime. These are problems the Russian people could remedy using the democratic processes of the Russian constitution. The current ongoing and escalating violations of international law by the Russian elite are making Russia an international pariah. Sanctions designed to curb violations of international law fall most heavily upon middle-class, working class, and poorer Russians, isolating the nations from the West and the prosperity that come with being part of the international economic order.

It is indeed unfortunate that Russia now threatens the safety of foreign POWs under its care. There is no legal basis for these threats, and by making them, Russian officials only run the risk of subjecting more Russians to war crimes trial.

It is time for Russia to stop.

By Dennis E. Boyle