Yes, Foreign Fighters in Ukraine are Covered Under the Geneva Conventions as “Combatants”

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.

 

 

 

 

249 thoughts on “Yes, Foreign Fighters in Ukraine are Covered Under the Geneva Conventions as “Combatants””

  1. For those workers and taxpayers that feel the benefits of the Trump Administration slipping out of their hands, take note Feb-Feb inflation is up some more, 7.9% of one’s spendable income has been destroyed.

    That is the good news. The destruction of spendable income has only recently started its incline and will not stop for a long time, making working folk poorer.

    Way to go, Brandon.

  2. Mespo is full of BS. He got his BS from James Madison University, which promotes the BS that white Americans and Christians are oppressors, which is funny because James Madison grew up on a plantation that made use of slave labor and he viewed slavery as a necessary part of the Southern economy.

    1. Aninny:
      “ Mespo is full of BS. He got his BS from James Madison University, which promotes the BS that white Americans and Christians are oppressors, which is funny because James Madison grew up on a plantation that made use of slave labor and he viewed slavery as a necessary part of the Southern economy.“
      **************************
      JMU promotes no such thing and has repudiated and apologized for that oppressor/oppressed training module. That said, there is more to be done to wrest power from the woke mob that, by the way, wasn’t even a gleam in anyone’s eye when I attended the place. You forgot to mention that I graduated summa cum laude, won the outstanding student award in my major (Public Admin with minors in history, political science, economics and something else I can’t recall) wrote for the award winning student newspaper, served in various leadership roles including student advocate and upon completion matriculated to law school where I graduated with honors and have practiced law for 38 years. As for James Madison, he clearly grew up in a prominent family on Belle Grove Plantation in Orange County, Virginia where his family indeed owned slaves who were integral to Virginia’s economy at the time. He was an great intellect who wrote, inter alia, the Bill of Rights including the First Amendment which you’ve chosen to abuse with your facile attempts at debating my points.

      Thanks for the opening to get that out.

  3. Zelensky should tell the Russians, make me your President and we will be 2 sovereign but equal states, one people. We won’t be for or against NATO, we will have our own peaceful renaissance and rebirth in Central Europe. He should invite Russian Generals or units with officers of any rank to simply choose to follow Zelensky. THAT would be bold and could actually work… he is reaching heroic status, and Russians respect that.

    I could trust Zelensky with nuclear weapons more than Putin.

  4. When Putin fanboys don’t mind the death and destruction that is happening to Ukraine right now,
    that is like Germans not minding the Holocaust.
    They are frauds in the area of morality.
    A court jester has more nobility than they do.

    1. Thank you Padre Aninnymouse. When is the next sermon? Can you talk about the Western Ukrainians shelling the Eastern Ukrainians for liking the Russians then? Pretty please?

  5. There are all kinds of videos of people going out of their way to help animals that are in a bad situation because it is the right thing to do. Why can’t NATO act in the same spirit to help the Ukrainians by bombing Russian equipment? Despite all of the ovations and speeches of friendship, NATO’s inaction says “Ukrainians aren’t worth provoking Russia”. A true friend would believe you are worth it. So what if airstrikes would provoke Russia? The attackers are the ones provoking the defenders. That’s the provocation that should matter most.

    1. NATO **is** helping Ukraine.

      You want them to start WW3, but they’re choosing to help without starting WW3. They’re providing weapons, intel, financial support, sanctions, …

      Apparently that’s not enough for you, but it’s not your decision to make.

  6. If NATO is doing so much to help the Ukrainians, then why does that 40-mile long convoy still exist?
    NATO should have obliterated it a week ago.
    Doing so would have been a great help to the Ukrainians.

    Sometimes I do things to help even when it’s not my job to do so just because it is the right thing to do.

  7. HEADLINE: “Putin threatens to hold his breath until he turns blue in the face if US and European allies ban Russian oil imports.”

  8. Mespo is like the villian, Theron, from the movie 300, trying to discourage and thwart Leonidas from killing the Persians.

    1. I think I’m more of a Dienekes figure since I don’t like taking on my enemies in the sun. Too wasteful of sun glasses. Gimme the shade – or the sun:

  9. Why do demons fight for the moral high ground? Why do they want there to be dead women and children?

    1. (OT)

      Ukraine has killed Major General Vitaliy Gerasimov of the Russian Army. The confirmation is striking as well: “In the phone call in which the FSB officer assigned to the 41st Army reports the death to his boss in Tula, he says they’ve lost all secure communications. Thus the phone call using a local sim card. Thus the intercept. … In the call, you hear the Ukraine-based FSB officer ask his boss if he can talk via the secure Era system. The boss says Era is not working. Era is a super expensive cryptophone system that @mod_russia introduced in 2021 with great fanfare. … The idiots tried to use the Era cryptophones in Kharkiv, after destroying many 3g cell towers and also replacing others with stingrays. Era needs 3g/4g to communicate.”
      https://twitter.com/christogrozev/status/1500970445889327118

  10. Should also mention that the socialists and communists also massacred priests and nuns along with many other atrocities. The ultimate “winners” of a very bloody civil war were Franco and the Nationalists. Many of the Nationalists had no choice but fight or be killed by the communists.

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