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

Written by Javed Iqbal

LONDON – The Kremlin announced this week that the Geneva Conventions, designed to protect soldiers detained during wartime, do not apply to two U.S. volunteers captured by Russian forces.

Spokesman Dmitry Peskov told reporters Monday to two arrested “was involved in illegal activities on the territory of Ukraine.”

“They should be held accountable for the crimes they have committed,” he said. “Those crimes need to be investigated. … The only thing that is clear is that they have committed crime. They are 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 an associate professor of national security at the University of New Haven in Connecticut, who explained the treatment of prisoners 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 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 Drueke and Andy Tai Ngoc Huynh.

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

What about European countries?

It seems that most European countries have 19th-century laws that focused on colonial wars and that were about preventing their citizens from fighting for, you know, the powers of the enemy in colonial conflicts. Today, it really is a matter of enforcement. And, in essence, all European countries have agreed to allow their citizens to take part in the war in Ukraine on a voluntary basis and not to prosecute them with the old laws.

What does international law say?

International human rights law is focused on your status as a human being and then your status as a combatant. So there are standards of treatment that apply whether you are a combatant or not, or considered a legal combatant. So, for example, it is illegal to torture. This is one of the issues that came up in the US global war on terror, where the US did not declare many captured fighters as formal military personnel and then engaged in what they called extended interrogation, which was later admitted to being torture under international law. 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 combatants. And so that is a problem that the United States will face in this case.

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

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

How can it be proven whether a detainee was a mercenary or a volunteer?

Under international law, there are six standards that you must meet. It is quite 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 salary. And it would be very difficult under Western standards to argue that the captured Americans were mercenaries because it just seems like their primary motivation was not pay. Wages are well below their standard of living in the United States. And then they do not earn real material gain.

Meanwhile, Ukraine on Thursday begins its first trial against a Russian soldier accused of rape. Mikhail Romanov is due to appear in absentia as he is not in Ukrainian custody. Romanov is accused of murdering a civilian in Kiev on March 9 and then repeatedly raping his wife, according to legal acts.

Russian army Sgt.  Vadim Shishimarin.

Sgt. 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)

It follows from the sentencing of one 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 country’s brutal invasion began on February 24. Iryna Venediktova, Prosecutor General of Ukraine, told Reuters that many of the accused are in Russia. Some, however, have been taken as prisoners of war.

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

As for the American prisoners, could the Kremlin retaliate against the 21-year-old Russian’s sentencing last month?

I think it’s easy for us to fall into this idea that the logic behind Russian moves here is retaliation. But I think it’s better to think of it as a strategic advantage. So the real reason for [Russian President Vladimir] Putin to push this approach to the American prisoners or other Western fighters is to support his domestic propaganda. It maintains the idea that the war is in fact about Russia being attacked or threatened by the West. And so keeping Western prisoners, especially American prisoners, plays into the narrative that what is really happening in Ukraine is that the United States and NATO [are] use Ukraine as a proxy for their own war against Russia.

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

Can the UN step in to help the prisoners sentenced to death?

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

It is worth remembering two points. The one that the prisoners are apparently detained in DNR [Donetsk People’s Republic], which is not Russia. And DNR is formally not a signatory of any of these applicable laws, and would therefore not have to comply with them, and also has the death penalty. In this case, and several times on Russian state media, prominent figures in the government have hovered 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 Russian troops and Russian citizens.

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How do Ukrainian forces take out so many Russian tanks? Use this embedding to learn about some of the weapons systems the United States sends to the Ukrainian Army.

US Weapons for 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.

US Weapons for 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.

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Javed Iqbal

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