Can the Americans fight for Ukraine? POWs and the laws protecting them explained

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

Spokesman Dmitry Peskov told reporters on Monday that the two detainees “were involved in illegal activities on the territory of Ukraine”.

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

Yahoo News spoke to 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?

Matteo Schmidt: The short answer is yes. There are 19th century laws that would question this. But Robert Kennedy, attorney general and brother of John F. Kennedy, declared during the Cuban missile crisis that it was legal for American citizens, American Cubans, to return to Cuba and fight. So this is the standard we use today.

Alex Drueke and Andy Tai Ngoc Huynh. Alex Drueke and Andy Tai Ngoc Huynh.

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

And the European countries?

It’s similar in that most European countries have 19th century laws that focused on colonial wars and were concerned with preventing their citizens from fighting, you know, enemy powers in colonial conflicts. Today it is really a question of respect. And essentially, all European countries have agreed to allow their citizens to participate in the war in Ukraine on a voluntary basis and not prosecute them with those old laws.

What does international law say?

International human rights law focuses on your status as a human being, hence your status as a fighter. And so there are standards of treatment that apply regardless of whether you are a fighter or not, or considered a legitimate fighter. So, for example, it is illegal to torture. This is one of the problems that emerged in the US global war on terror, where the US did not declare many fighters captured as formal military personnel and then engaged in what they called enhanced interrogation, which was later admitted as torture. under international law control. So these standards still apply. And the United States is in a difficult position to argue against this because of what the United States did during the global war on terror against other unofficial fighters. And so this is a problem that the United States will have to address in this case.

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

They do not follow international human rights standards. They then treat detainees in a way that international law considers torture: sleep deprivation and other means of interrogation considered illegal under international law.

How can one prove whether an inmate was a mercenary or a volunteer?

Under international law, there are six standards that you need to meet. It’s pretty strict to be considered a mercenary in this case. The second standard is that your primary motivation for fighting is private gain, that is, money or pay. And it would be very difficult by Western standards to argue that the captured Americans were mercenaries because it seems their main motivation wasn’t pay. The pay is well below their standard of living in the United States. And so they’re not really gaining material.

Meanwhile, Ukraine will begin its first trial of a Russian soldier accused of rape on Thursday. Mikhail Romanov will be tried in absentia, as he is not in Ukrainian custody. Romanov is accused of killing a civilian in Kiev on March 9 and then repeatedly raping his wife, according to judicial documents.

Russian Army Sergeant Vadim Shishimarin.Russian Army Sergeant Vadim Shishimarin.

Sergeant Vadim Shishimarin, the first Russian soldier to face a war crimes trial in Ukraine, at a court hearing in Kiev on May 13. (Efrem Lukatsky / AP)

Follows the sentence of a 21-year-old Russian soldier in the first war crimes trial in Ukraine. Sergeant Vadim Shishimarin was sentenced to life in prison after pleading guilty to shooting an unarmed 62-year-old civilian four days after the invasion.

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

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

As for American detainees, could the Kremlin take revenge on the conviction of the 21-year-old Russian last month?

I think it’s easy for us to fall into the idea that the logic of the Russian moves here is retaliation. But I think it’s best to see it as a strategic advantage. So the real motivation for [Russian President Vladimir] To push this approach to American prisoners or other Western fighters is to support his internal propaganda. He supports the idea that the war is really about Russia being attacked or threatened by the West. And so holding Western prisoners, especially Americans, plays into the narrative that what is really happening in Ukraine is that the United States and NATO [are] using Ukraine as a proxy for its own war against Russia.

On Wednesday, two British men were sentenced to death in a Russian proxy court for fighting for Ukraine. Shaun Pinner and Aiden Aslin were charged with “terrorism” in a court of the self-proclaimed Donetsk People’s Republic, a breakaway region in eastern Ukraine. Aslin’s family told the BBC that his Russian captors had assured him that his execution would be carried out.

Can the UN intervene to help death row prisoners?

They can petition for access, the International Red Cross can petition for access. Of course, the US embassy can request access. But at the moment they don’t even know where the American prisoners are. And finally, Russia preemptively claims that prisoners are guilty of war crimes or could be prosecuted for war crimes. And therefore, according to their standards, they don’t have to follow international law.

Two points are worth remembering. One, that the prisoners are supposedly held in the DNR [Donetsk People’s Republic], which is not Russia. And the DNR is not formally a signatory to any of these applicable laws, and therefore should not follow them, and it also has the death penalty. In this case, and repeatedly in the Russian state media, prominent government figures have launched 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 Americans of committing war crimes against Russian troops and Russian citizens.

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US Weapons in Ukraine Explore some of the weapons used in Ukraine in your browser or scan this QR code with your phone to start the augmented reality experience.