We have been seeing new reports for foreign volunteers joining the Ukrainian forces, including Americans, to fight against the Russian invasion. There now appear a sizable number of such volunteers in a modern version of the Lincoln Brigade that fought against fascism in Spain before World War II. The similarities to the Spanish Civil War are striking with the fascists controlling the skies, fielding advanced weaponry, and engaging in war crimes.  Back then, Russia supported the Republican forces against fascism. Now, however, Russia is declaring that foreign volunteers are not considered covered “combatants” under the Geneva Conventions. That is not true.

Russian embassies like the one in Thailand are putting out statements telling men not to join the fight at the risk of being classified “mercenaries.”

Of course, Russia has little credibility on any interpretation of international law today. The irony is crushing. Russia is now openly committing war crimes in attacking civilian areas with indiscriminate weapons and using prohibited weapons. These crimes are in addition to launching an unprovoked and unjustified attack on a sovereign nation.  Moreover, Russia is using mercenaries like the infamous Wagner group. It is also reportedly recruiting Syrians to fight in Ukraine.

Putting aside the hypocrisy, the Russian government is wrong. Indeed, its suggestion that it will treat these foreign fighters as uncovered persons is itself a violation of the Geneva Convention.

Here is the statement from Thailand:

Under the Geneva Conventions, “the best case scenario” is not “detention and prosecution.”

The Ukrainian president and government has officially called on international volunteers to join the Ukrainian military. They are a part of the Ukrainian defense forces and given Ukrainian training, uniforms, and insignia. The Russian position is akin to saying that the French Foreign Legion would be treated as mercenaries because it includes non-French volunteers. The Legion famously opens its ranks to “recruits from all over the world.”

Likewise, the estimated 16,000 foreign fighters are being organized under the “Ukrainian Foreign Legion” and requires a commitment of a year or longer of service.

The Geneva Conventions

While there are areas of ambiguity over private contractors and other participants in conflicts, the current definitions of covered combatants clearly and unambiguously reject the Russian position.  Article 4 contains the core definitional element of lawful combatant status. Convention (III) Relative to the Treatment of Prisoners of War, pt. I, art. 4 (Aug. 12, 1949), 6 U.S.T. 3316.

Article 4(A)(1) includes “Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps performing part of such armed forces.” Thus, both militias and volunteer corps are included.

Article 4(A)(2) also makes clear that “Militias and members of other volunteer corps … belonging to a Party to the conflict and operating in or outside their own territory” enjoy combatant status and protections.

Under the Geneva Conventions and the Additional Protocols, there is a division drawn between combatants and civilians. The later term can include unlawful combatants, spies, and mercenaries.

However, Article 45 addressed the “Protection of persons who have taken part in hostilities” and affirms that every combatant who is captured shall be presumed to be a prisoner of war. Accordingly, if a foreign fighter is captured “he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.” Article 45 reaffirms the need for a tribunal hearing on the question of status.

The four original Geneva Conventions do not address mercenaries. However, Protocol I does describe this status as “foreign combatants recruited to fight in one specific conflict and motivated by the desire for private gain in an amount in excess of the payment to the armed forces of the recruiting state.” There is also a 1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries.

None of these sources support the Russian classification of foreign fighters as mercenaries. Indeed, such definitions would work against Russian military captured in countries like Syria.

History and Hypocrisy

Indeed, the Russians have long embraced such international volunteers in combat operations. One of the largest such efforts was the Soviet Volunteer Group that went, with government support, to China to fight in the  Second Sino-Japanese War between 1937 and 1941. These soldiers wore civilian clothes and traveled to China to become part of their military. That included hundreds of pilots and planes.

The Russians also were foreign combatants in the Spanish Civil War. They were considered particularly key to the defense of Madrid against the fascists, including German forces.

Soviet pilots on the Soto airfield near Madrid.

That included a force of T-26 tanks under Captain Paul “Greize” Arman and Brigadier Dmitriy “Pablo” Pavlov. It also included dozens of Soviet I-15 fighters Tupolev ANT-40 bombers. Under the current interpretation of Russia, all of these men (called Soviet heroes) would now be treated as criminal mercenaries.

Future Enforcement Requires Immediate Clarity

If Russia carries through on its interpretation of the Geneva Conventions to exclude foreign members of the Ukrainian defense force, it would be in flagrant violation of the Geneva Conventions. As I discussed earlier, there have been possible violations on the Ukrainian side in showing videotapes of weeping Russian POWS, though some have contested that assessment. However, Ukraine is by all accounts complying with the Geneva Conventions in other respects. The Russian interpretation would effectively gut the protections of the Geneva Protections.

One could say that this hardly matters when the Russians are shattering international legal principles and committing atrocities in the invasion. However, the violation of the Geneva Conventions exposes military commanders to possible international charges and sanctions. The International Military Tribunal for the Far East (or “the Tokyo Trial”) involved the prosecution of officials responsible for the abuse of POWs.

Article 86(2) of Protocol I was written in light of the World War II cases. It seeks to impose criminal liability on the commander if he knew or should have known that a subordinate was going to commit breaches of the conventions.

The most obvious figures who could be held accountable for such violations in Ukraine include Minister of Defense General Sergey Shoygu and Chief of the General staff, General Valery Gerasimov. They are also subject to charges for the war crimes being committed in the prosecution of the war on civilians.

The world legal community must speak with one voice in rejecting the interpretation put forward by Russia on the Geneva Conventions so there is no question about the knowledge of these commanders in committing such violations. When this war ends, there will hopefully be an accounting for those responsible. However, we must make that clear and unambiguous record now if we going to later vindicate the rights of the victims of this invasion.

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