Can the Americans fight for Ukraine? Prisoners of war and the laws that protect them explained

LONDON – The Kremlin announced this week that the Geneva Conventions, created to protect soldiers detained during the war, do not apply to two American volunteers captured by Russian forces.

Spokesman Dmitry Peshkov told reporters Monday that the two detainees “were involved in illegal activities on Ukrainian territory.”

“They should be held accountable for the crimes they have committed,” he said. “These crimes must be investigated. … The only thing that is clear is that they have committed crimes. He is not in the Ukrainian army. They are not subject to the Geneva Conventions. “

Yahoo News spoke with Matthew Schmidt, program coordinator for international affairs and associate professor of national security at the University of New Haven in Connecticut, who explained the treatment of detainees in Russia and whether it is legal for Americans to fight in Ukraine. .

Yahoo News: Is it legal for US citizens to fight for Ukraine?

Matthew Schmidt: The short answer is yes. There are 19th century laws that would call it into question. But Robert Kennedy, the attorney general and his brother John F. Kennedy, said during the Cuban Missile Crisis that it was legal for American citizens, Cuban Americans, to return to Cuba and fight. So this is the standard we use today.

Alex Drueke and Andy Tai Ngoc Huynh.

Alex Drueke, left, and Andy Tai Ngoc Huynh. (Lois Drueke / Handout via Reuters, Handout via WAAYTV)

How about European countries?

It is similar to the fact that most European countries have laws from the 19th century that focused on colonial wars and were aimed at preventing their citizens from fighting for, you know, enemy forces in colonial conflicts. Today, it is really a matter of enforcement. And virtually all European countries have agreed to allow their citizens to take part in the war in Ukraine on a voluntary basis and not to be persecuted by these old laws.

What does international law say?

International human rights law focuses on your status as a human being and then on your status as a fighter. And so, there are standards of treatment that apply whether you are a fighter or not, or you are considered a legal fighter. So, for example, it is illegal to torture. This is one of the issues that arose in the US World War on Terror, where the United States did not declare many captured fighters as official military personnel and then engaged in what they called an intensified interrogation, which later admitted to torture according to international law. Therefore, these standards still apply. And the United States is in a difficult position to oppose it because of what the United States did during the World War on Terror against other unofficial fighters. And so this is a problem that the US will face in this case.

What do we know about how Russia treats prisoners of war and prisoners?

They do not follow international human rights standards. Thus, detainees are treated in a way that international law treats as torture – sleep deprivation and other means of interrogation that are considered illegal under international law.

How can it be proved whether a prisoner was a mercenary or a volunteer?

Under international law, there are six standards you must meet. It is strict enough to be considered a mercenary in this case. The second pattern is that your main motivation to fight is your private gain, ie for money or pay. And it would be very difficult by Western standards to argue that captive Americans were mercenaries simply because it seemed that their main motive was not pay. The wage is much lower than their standard of living in the United States. And so they do not really make a profit.

Meanwhile, Ukraine is set to begin the first trial on Thursday against a Russian soldier accused of rape. Mikhail Romanov will be tried in absentia, as he is not in custody in Ukraine. Romanov is accused of killing a civilian in Kyiv on March 9 and then repeatedly raping his wife. according to court records.

The Russian army is a sergeant.  Vadim Shishimarin.

Sgt. Vadim Shishimarin, the first Russian soldier to stand trial for war crimes in Ukraine, is being heard in a court in Kyiv on May 13. (Efrem Lukatsky / AP)

It follows the conviction of a 21-year-old Russian soldier in Ukraine’s first war crimes trial. Sgt. Vadim Shishimarin was sentenced to life in prison after pleading guilty to shooting a 62-year-old unarmed civilian four days after the invasion.

Ukraine is investigating thousands of alleged war crimes committed by Russian soldiers since the brutal invasion of the country began on February 24. Iryna Venediktova, Attorney General of Ukraine, he told Reuters that many of the accused are in Russia. Some, however, have been arrested as prisoners of war.

Attorney General Merrick Garland made an unannounced visit in Ukraine on Tuesday to meet with Venediktova, said a Justice Ministry official. The two reportedly discussed ways to help Ukraine “locate, arrest and prosecute those involved in war crimes and other atrocities in Ukraine.”

As for US detainees, could the Kremlin retaliate against the 21-year-old Russian man sentenced last month?

I think it is easy to fall into the idea that the logic of the Russian moves here is retaliation. But I think it is better to think of it as a strategic advantage. So the real reasoning for [Russian President Vladimir] To promote this approach to Putin’s American captives or other Western fighters is to support his domestic propaganda. It supports the idea that war is really about attacking or threatening Russia from the West. And so the detention of Western prisoners, especially American prisoners, plays the narrative that what is really happening in Ukraine is that the United States and NATO [are] using Ukraine as a proxy for their own war against Russia.

On Wednesday, two Britons were sentenced to death in a Russian court of attorney for fighting for Ukraine. Shaun Pinner and Aiden Aslin have been charged with “terrorism” in a court in the self-proclaimed Donetsk People’s Republic, a breakaway region in eastern Ukraine. Ashlin’s family told the BBC that his Russian captors had assured him that he would be executed.

Can the UN intervene to help prisoners sentenced to death?

They can apply for access, the International Committee of the Red Cross can apply for access. Of course, the US Embassy can request access. But at the moment they do not even know the location of the American prisoners. Finally, Russia cautiously claims that detainees are guilty of war crimes or may be prosecuted for war crimes. And so, by their standards, they do not have to follow international law.

Two points are worth remembering. One, that the detainees are apparently being held at the DNR [Donetsk People’s Republic], which is not Russia. And the DNR has not officially signed any of these applicable laws, and therefore should not follow them, and also has the death penalty. In this case, and in the Russian state media many times, prominent government figures have invoked the idea of ​​using the death penalty against them, even going so far as to say that there is no other choice because they accuse the Americans of committing war crimes against of Russian troops and Russian citizens.

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