Columns, International, Military

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.

 

 

 

 

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

  1. “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.”
    Wrong! You need to do better research. Other than that, you make great legal arguments. That said, it would be better if those volunteers don’t come. Many of them will die and for no good reason. The military outcome is already clear and every day just increases loss of Ukrainian, including civilian, lives.
    The Russian attack has taken more ground and damaged more military infrastructure and equipment with few civilian casualties than probably any such large scale attack in human history. You really need to research more before pontificating on matters which you clearly don’t know much about apart from listening to the lying mainstream press which hasn’t told factual truth about anything important in decades now.

        1. And a rapist will say that the victim asked for it. Do you carry water for rapists too?

          IDGAF what Russia says. Russia was not attacked, they started an unprovoked war.

          1. Aninny:
            “IDGAF what Russia says. Russia was not attacked, they started an unprovoked war.”
            ****************
            YDGAF because you’ve got none to give just like you can’t “give” a lucid argument. It’s an obvious failing of yours we all tolerate because in the main you’re amusing in a pratfall kinda way. So carry on safe in the knowledge everyone loves a clown but few are convinced by them.

  2. Turley is going to reminisce about the Lincoln Brigade–American communists helping Spanish commies trying to murder even more people than they’d murdered already–and do so as if that was a good thing?
    Got it.

  3. Enemy combatants not in uniform are not covered by the Geneva Convention. In fact,they are considered saboteurs, and can be summarily executed.

  4. Louis the 16th was the king of France in 1789.
    He was worse than Louis the 15th.
    He was worse than Louis the 14th.
    He was worse than Louis the 13th.
    He was the worst
    Since Louis the First.

  7. It’s absurd that defenders can be accused of “escalation” instead of the attackers.

  8. Sometime in the near future: “Well, folks, it looks like Putin has successfully conquered 150 or so non-Nato countries, but at least we didn’t get drawn into a greater war with Russia.”

  9. “After Hitler was appointed Chancellor of Germany on January 30th, 1933 marking the beginning of the Third Reich, he began to revise clauses of the Versailles Peace Treaty.”

    – Worldhistory.us
    ______________

    After Lincoln was appointed President of the United States in January, 1860 marking the beginning of the “Reign of Terror,” he began to revise clauses of the U.S. Constitution and Bill of Rights.

    – ushistory.org
    ____________

    What a coincidence!

    America and its constitutional freedoms lasted 71 years, until “Crazy Abe” Lincoln’s wholly unconstitutional and actionable “Reign of Terror” initiated the abrogation of the Constitution and the incremental implementation of the principles of communism.

    Everything “Crazy Abe” did was illicit and remains illegitimate to this day, with emphasis on criminally obtained and unconstitutional “Reconstruction Amendments.”

    Note that Karl Marx wrote, in 1864, to his comrade, Lincoln, about…”THE RECONSTRUCTION OF A SOCIAL WORLD,” the Communist Manifesto being the basis for the “Reconstruction Amendments” of Lincoln’s loyal and faithful successors.
    ______________________________

    “These capitalists generally act harmoniously and in concert, to fleece the people.”

    – Abraham Lincoln, from his first speech as an Illinois state legislator, 1837
    ___________________________________________________________

    “Everyone now is more or less a Socialist.”

    – Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848

    (“The goal of Socialism is Communism.” – Vladimir Ilyich Lenin)
    _________________________________________________

    “The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”

    – Karl Marx and the First International Workingmen’s Association to Lincoln, 1864
    ________________________________________________________________

    Letter from Karl Marx to Abraham Lincoln, 1864

    https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm

    1. You do know Western Ukraine govt is piled high with Lateral Nazis & those they oppose are Russians from the Russia nation that was 1st formed in Ukraine, don’t you?

      So you’ve decided you wish to support real Nazis over Real Americanist, is that the way you wish to be know?

    2. Warmongers simply hate the correct, total and immediate answer to war: surrender. Ukraine should have surrendered the first day Russia invaded. Think of all the lives that would have been saved.

      1. The correct answer is for warmongering Russia to not have started the war in the first place.

        Do you also excuse rapists and murderers?

    3. Obama’s Victoria Nuland started all this with her Maidan Insurrection against the elected govt. in Ukraine in 2014. The only people getting “appeased” are the CIA and their war-pimp deep state masters. Don’t fall for it again.

      1. “Do you also excuse rapists and murderers? ”

        Let us all not forget all those Evil B*stards at US State Dept that seem to run the CIA. And all those Evil B’s at the UN, it seems all those NGOs (Soros/Ford/Rockefeller, etc…) & the rouge international corporations.

        Corporate Charters are out of control.

        What needs to happen to fix them!

          1. Thanks Paul. 😉

            DC cockroaches & their daddy lobbyist & other certain people in/around state govts continue to block the citizen’s votes & voices. And then when Peaceful Citizens show up in DC 1/6/2021 the never ending DC intel bureaucracy shows up with their Violent Agitprop & Falsify what really happened.

            Now, 3/2022 another Peaceful Protest comes as close to the DC Craphole without being set up by Evil DC as they can.

            Hopefully with the Truckers/Supporters, being Peaceful, on the expressways, driving at the low end of the speed limit & giving the the Deaf ahole Usurpers a little extra love with their Horns 8-12 hrs a day. Maybe then the greater mass of people can be heard. Just think of DC area as a Parking Lot… Just add an extra 12-18 hours to the trip time. LOL

            Just imagine, say a semi truck needs a 1000 gallon of fuel for the trip. Fuel is starting out now around $5.00 a gal, heading over $10.00 gal maybe on to $15-20.

            Then the Trains, Tractors, Planes, etc…..

            But Nope, No Trump Energy Plan for Creap Fuel , it’s the 400 + % for the Biden/Dims/Rinos that have been saying screw us, leave those US Oil/Ng Valves closed off, while they buy fuel from creeps.

            AKA: No Truckers, No Food/Fuel in 5-14 days.

            Let’s see what happens.

            1. “when Peaceful Citizens show up in DC 1/6/2021 the never ending DC intel bureaucracy shows up with their Violent Agitprop & Falsify what really happened.”

              Oky, ou’re choosing to delude yourself. Many people were peaceful on Jan. 6, but many others were not, including Proud Boys, Oath Keepers, and Three Percenters. Joshua James just pleaded guilty to seditious conspiracy and obstruction. Deliberations in Guy Reffitt’s trial start tomorrow.

              Can you even name a person who has been charged and where you believe the charges against that person have been falsified? Here’s a list of people who’ve been charged: https://www.justice.gov/usao-dc/capitol-breach-cases

              BTW, I hope you understand that the interstate that the truckers were on goes through Maryland and Virginia, but does not cross or enter DC, so it’s bizarre to suggest that anyone should “Just think of DC area as a Parking Lot” in connection with their protest, which according to DC area local news did not appreciably interfere with highway traffic yesterday or today. Apparently your hate extends to MD and VA too.

            1. Oky1 – I had not seen this, so thanks! With our legal and illegal immigrants coming into the state, we are getting more than our fair share of village idiots. 😉

              1. I’m thinking if say the 175,000 Illegal Wetbacks, mostly Military Aged Men, that crossed over into Texas in January 2022 un opposed, don’t like the “Remain in Mexico” policy of Trump, we can accommodate them by loading them up immediately & fly them to Ukraine for a new US Policy of Wetbacks Remain Ukraine Policy.

                And for good measure we send along all the WarMongers like John Bolton, Mark Levin & Dims/Rinos etc., to Ukraine as well.

                btw: Notice the state govts should have been for decades confiscating all vehicles & property used in knowingly move & house all those illegals.

                (Sorry Olly, Levin is wrong on Ukraine)

  11. Like a life guard who wants no direct contact with water, like a fire fighter who wants no direct contact with fire,
    like a police officer who wants no direct contact with criminals, NATO wants no direct contact with Russia.
    If the job calls for it, NATO should want to have direct contact with Russia whenever, wherever necessary.
    That’s the point of their existence. As for Article 5, it is a flaw. It means that neighboring countries can be reduced to rubble,
    as we are seeing now. Their flawed charter as caused this. A better charter that accounts for this flaw could have prevented
    all of this death and destruction. Do they really want this? That’s what they have been given, thanks to their flawed charter.
    How is this in the interest of Europe?

  12. Russia is learning that it can cause as much death and destruction to non-NATO countries that it wants. Why is this acceptable?

    1. I don’t think that’s what it’s learning.

      I think it’s learning that if they start an unprovoked war with another country, that other country will get a great deal of international support (weapons, intelligence, funds, …) to fight Russia, and Russia will simultaneously be harmed by non-military acts carried out internationally by both governments and corporations (sanctions, companies refusing to do business, …). Putin has made Zelenskyy more popular at home and abroad and has further harmed his own reputation at home and abroad.

      1. Only the brainwashed believe the canard that it was “unprovoked”. From Nuland overthrowing the elected govt. in 2014, to the 14,000+ people murdered in Donbas by Ukrainian forces, it has been very much provoked.

        1. Nothing you’ve said is provocation for **Russia** to start a war against Ukraine.

  13. How many other countries must be sacrificed like lambs on the altar to prevent a full-fledged war?

    1. Ukraine isn’t being “sacrificed like lambs on the altar.” Arguably, they’ve gotten more international support (weaponry, intelligence, refugee status, Russian sanctions by governments, private companies rejecting business with Russia, …) than many other countries at war in the last 20 years.

  14. I agree with your basic definition of Geneva Convention. However I have a problem of your one sided quote below.
    “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”
    Was there any war crime trials or accountability on the following US induced Wars for the New Word order below?
    VIETNAM, YUGOSLAVIA,IRAQ, AFGHANISTAN, SYRIA, LIBYA to add a few…
    I condemn the Russian invasion, but the Masterminds of the US EMPIRE, have more blood on their hands than the Russians.

  15. First, let me say that the Professor has brilliantly clarified for me the legalities of the Geneva Convention, for which I am grateful.

    That being said, I have a couple of exceptions to his more general statements: “Russia is now openly committing war crimes in attacking civilian areas with indiscriminate weapons and using prohibited weapons.”

    My response is Dresden, Hiroshima, Berlin, Tokyo, Nagasaki, etc. War is war. There never will be hall monitor for this activity. We tried “nation building” as an alternative to war, and it failed miserably in every case except for Germany and Japan.

    And why did it work in Germany and Japan? Quite frankly, because it came after–not before–Dresden, Hiroshima, Berlin, Tokyo, Nagasaki, etc. The Russians may be ruthless and unsentimental, but coffee-table politics will never win a war. American politicians and generals in the Civil War and Second World War understood that.

    The Professor also stated, “These crimes are in addition to launching an unprovoked and unjustified attack on a sovereign nation.”

    NATO has been reckless and sanctimonious in its expansion, an expansion that many luminaries like Bob Gates, Henry Kissinger, Noam Chomsky, George Kennan, Pat Buchanan, and John Mearsheimer believed would lead to the instability we have today. The war in Ukraine was foreseen and avoidable.

    The Democrats, in particular, have led the Ukrainians to have pathetic faith in the Democrat Party’s promises, implicit and explicit. Bribing a Democrat’s son does not a superpower make.

    I think reasonable people can disagree about the above, so I don’t mean to come off as angry or outraged. I’m not. I’m just saying that in Eastern Europe, virtue signaling is no substitute for cold, hard realism.

  16. What’s the difference between Ukrainians and Republicans?

    A: Ukrainians defend their Capitol.

    1. REGARDING ABOVE:

      And right now a Republican-inspired truck convoy is encircling Washington. They haven’t decided to enter the city yet. But snarling the beltway is definitely their plan.

  17. Putin is getting way too big for his breeches. It’s bad enough that he wants to be a dictator of Russia, but now he wants to be the dictator of the world, it seems, by dictating who can use a soveriegn nation’s airfields. He doesn’t get to decide that.

    Russia: “We would like to point out that the use of the network of airfields of those countries for the stationing of Ukrainian combat aviation for the further use against the Russian Armed Forces could be viewed as the involvement of those countries in the armed conflict.”

    Poland: “We’re OK with that.”

    By issuing threats, Russia is increasingly starting to seem like a villain who is about to be dealt the coup de grace by the hero.

    1. Enemy aircraft from across the border are enemy aircraft launched from enemy territory. This would not be good for ending a war; it expands the war! Really—-think about it.

  18. Ukrainians could inspire the Russian people to revolt against Putin using guerrilla tactics.

  19. Entering into an agreement with someone implies that the person is honest and trustworthy and can keep a promise. Putin has already proven that he only lies, betrays, deceives, and never keeps promises, so it would be folly to enter into any more agreements with him. That would be like extending credit to someone with an atrocious credit history.

  20. Using explosives to put out oil well fires does not expand or escalate the oil well fires. It puts them out once and for all.

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