Can Americans Fight for Ukraine? Explanation of prisoners of war and the laws protecting them

Can Americans Fight for Ukraine? Explanation of prisoners of war and the laws protecting them

LONDON – The Kremlin announced this week that the Geneva Convention to protect soldiers detained during the war does not apply to two US volunteers captured by Russian forces.

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

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

Yahoo News spoke to Matthew Schmidt, program coordinator for international affairs and an associate professor of national security at the University of New Haven in Connecticut, about 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 laws from the 19th century that question this. But Robert Kennedy, John F. Kennedy’s attorney general and brother, declared during the Cuban Missile Crisis that it was legal for American citizens, Cuban Americans, to return to Cuba and fight. So that’s the standard we use today.

Alex Drucke and Andy Tai Ngok Huynh.

Alex Drucke, left, and Andy Tai Ngok Huynh, two Americans who fought alongside Ukrainian troops before being captured by Russian forces. (Handout via Lois Drucke/Reuters, Handout via WAAYTV)

How about European countries?

This is how most European countries have 19th-century laws that focused on colonial wars and prevented their citizens from fighting for enemy powers in colonial conflicts. Today, it is really a question of enforcement. And essentially, all European countries have agreed to allow their citizens to voluntarily participate in the war in Ukraine and not to be prosecuted with those outdated laws.

What does international law say?

International human rights law focuses on your status as a human, then your status as a combatant. And so there are standards of treatment that apply whether you are a fighter or not, or are considered a legitimate fighter. So, for example, it is illegal to torture. This is one of the issues that came to the fore in the US Global War on Terrorism, where the United States did not declare many captured fighters as formal military personnel and then involved them in increased interrogation, which was later Internationally accepted as torture. law. So these standards still apply. And the United States is in a difficult position to argue against because of what the US did against other non-governmental combatants during the Global War on Terror. And so that’s a problem that America will have to face in this case.

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

They do not comply with international human rights standards. So they treat detainees in a way that international law considers torture – sleep deprivation and other means of interrogation that are considered illegal under international law.

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

Under international law, there are six standards you must meet. To be considered for hire in this case is quite strict. The second norm is that your primary motivation for fighting is personal gain, whether for money or salary. And under Western standards it would be very difficult to argue that the captured Americans were mercenaries as it appears that their primary motivation was not for pay. The salary is well below their standard of living in the United States. And so they’re not really making material gains.

Meanwhile, the first trial against a Russian soldier accused of rape in Ukraine is set to begin on Thursday. The trial will take place in the absence of Mikhail Romanov, as he is not in Ukrainian custody. Romanov is accused of killing a civilian in Kyiv on March 9 and then repeatedly raping his wife. According to court files

Russian Army Sgt.  Vadim Shishmarin.

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

This a. follows the punishment of 21 year old Russian soldier In Ukraine’s first war crimes trial. Sergeant Vadim Shishmarin was sentenced to life in prison after pleading guilty to shooting a 62-year-old unarmed civilian for four days in the attack.

Ukraine is investigating thousands of alleged war crimes committed by Russian troops since the start of the brutal invasion of the country on February 24. Prosecutor General of Ukraine Irina Venediktova, told Reuters That many of those accused are in Russia. However, some have been taken as prisoners of war.

Attorney General Merrick Garland made an unannounced visit A Justice Department official said he would travel to Ukraine on Tuesday to meet with Venediktova. The two discussed ways to help identify, apprehend and prosecute individuals reportedly involved in war crimes and other atrocities in Ukraine.

With respect to US detainees, could the Kremlin retaliate against the conviction of the 21-year-old Russian last month?

I think it is easy for us to fall into the idea that the logic of the Russian trick here is retaliation. But I think it’s better to think of it as a strategic advantage. so the real reason [Russian President Vladimir] To advance this approach to American prisoners or other Western fighters is to put Putin backing his domestic propaganda. It perpetuates the idea that the war is really about Russia being attacked or threatened by the West. And so the capture of Western prisoners, especially American prisoners, 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. Sean Piner and Aiden Aslin were charged with “terrorism” in a court in the self-declared Donetsk People’s Republic, a separate region in the east of Ukraine. Aslin’s family told the BBC that his Russian captors assured him that he would be executed.

Can the United Nations come forward to help those sentenced to death?

They can petition for access, the International Red Cross can petition for access. Of course, the US Embassy can petition for access. But they do not even know the location of American prisoners yet. And finally, Russia is already claiming that the prisoners are guilty of war crimes or could be prosecuted for war crimes. And so by their standard, they are not required to comply with international law.

It is worth remembering two points. One, that the prisoners were explicitly given Dnr. being placed in [Donetsk People’s Republic], which is not Russia. And the DNR is not formally a signatory to any of these applicable laws, and therefore does not have to comply with them, and is subject to the death penalty. In this case, and several times on Russian state media, prominent figures in the government have floated the idea of ​​using the death penalty against him, even saying that there is no other option, as they accusing Americans of committing crimes. War crimes against Russian soldiers and Russian citizens.

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