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.
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.
It’s a farce how Putin acts like he has the upper hand. It’s just an act. A preposterous act. He can be incinerated in an instant if Western leaders wanted him to be.
At this point, the only satisfactory resolution to the war is the unconditional surrender of Russia.
No more stalling tactics of diplomacy.
Aninny:
“At this point, the only satisfactory resolution to the war is the unconditional surrender of Russia.
No more stalling tactics of diplomacy.”
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When you typed that were you holding your breath, stomping your feet and turning red? Your geopolitical ignorance matches your political ignorance. The major engagements of this war are about over. Sure the Ukraines can hang on a guerillas in the countryside but by and large their forces are surrounded, outgunned and withering despite theit very considerable martial zeal. If you want to know the reality try this: https://www.understandingwar.org/backgrounder/russian-offensive-campaign-assessment-march-5
Moscow is relatively close to NATO countries.
It would be so easy for NATO to do to Moscow what Russia is doing to Ukraine with bombers and missiles.
In WW2 the Italians were given a choice: switch sides or be bombed.
They chose to switch sides.
The president of Belarus should be arrested and charged, too, as an accomplice to Putin’s war crimes.
Putin is a terrorist like Osama bin Laden, but much, much worse. His life should end in the same way.
Putin is the leader of a nation, and I believe stable. I won’t bother asking why one would compare him to a terrorist working far outside the system in unpredictable ways.
Putin might be considered a monster, and a killer is an understandable concern. Unfortunately, we live with monsters all over the world. It is best to deal with the predictable ones with similar values to our own.
SM
Putin is drawing on the propaganda tactics of the USSR. During the Cold War, Communist regimes denied prisoner of war status to American service members on the basis that they were “mercenaries.”
Article 75 of Additional Protocol I denies prisoner of war status to “mercenaries,” but defines that term very narrowly. The United States has not ratified Additional Protocol I in part due to objections from the Joint Chiefs of Staff to Article 75. The United States rejects the argument that mercenaries are not entitled to be combatants or prisoners of war. See Department of Defense Law of War Manual paragraph 4.21.
My bad. Should be Article 47, not 75
All of the abandoned tanks will help Ukraine’s steel industry. 🙂
Geneva Convention, what does it mean? Russia violated international law when it “altered” the borders of Ukraine during the Obama Administration. Did that stop Biden, our VP at the time, from dealing with Russia for personal gain?
It also did not stop the next president from dealing with Russia for personal gain while in office.
Biden dealt with Russia for a long time. He gets his 10% and the American citizen gets screwed.
We know that the Biden Family Crime Syndicate was dealing with Russia. There is no evidence Trump did anything wrong. In fact the evidence shows that Trump acted appropriately. After continuous investigations and impeachments all we find is more and more lies by Democrats.
What would Joe McCarthy say about Putin and Trump?
Commie and Nazi sitting in a tree. K I s s I n g
First came poop. Then ames marriage
Then came Trump with a baby carriage.
TDS is still a thing in some places, huh?
Waging war against Italy and Germany stopped the war in Europe, and so waging war against Russia could stop the war in Ukraine, before more death and destruction can be done by Putin.
The author’s main point about volunteer fighters in support of Ukraine’s government and people being covered by the Geneva Conventions is spot on. His opening sentences on the Spanish Civil War, however, echo the Left’s dominant but mendacious version of that combat. He needs to read Nathan Pinkowski’s eye-opening “Arming the people against revolution: Origins of the Spanish Civil War.” It’s in the latest issue of the Claremont Review of Books, vol. xxii, no. i (Winter, 2021-2022). https://claremontreviewofbooks.com/arming-the-people-against-revolution/.
The Geneva convention is/was as good as those who adhered and enforce it.
The Russians flew fighter sorties against the UN in the Korea conflict and against Americans and their allies in Vietnam. The Russians have proved one thing, their military is not what they claim it to be. Without nuclear weapons they would have been dispatched long ago. Had the Ukrainian’s been provided the appropriate military equipment from way back when the Russians would need more than a couple mobile crematorium. At this point it’s going to be up to the Russian people to rid themselves of the Moscow Madman.
Russians are not humans.
Why are they afraid that someone might agree with me?
I imagine the majority feel the same unlike their present day REMF who turned socialist and forgot they were
American Citizens.
These two got turned around in order. Sometimes the computer has it’s own way of expressing itself.
Thanks for the response to my question of a week or so ago. That shows journalism not just slap dash reporting. A big difference. Next question Are any f them North Americans? If so we owe them the gratitude of our Constitutional Republic instead of the back hand slapping we’re used to from the socialists.
Former US Army Infantry and paratrooper and more. Nice to see some who upheld ntheir oath of office instead of wearing yellow berets of the Milley Brigade who forgot their Oath of Office.
A full-fledged war to stop world domination is better than full-fledged world domination. American leadership needs to be replaced. We need doers, not talkers.
“The strong do what they will, the weak endure what they must.” Thucydides
Russia will (as always) commit war crimes and the world will not do anything.
There is already war. The war won’t stop until war-stoppers get involved. Then there will be peace.
The Kremlin isn’t a court. It doesn’t get to interpret laws to its own liking.