Oscar Jenkins, a 33-year-old former trainer from Melbourne, was one in all many foreigners who responded to Ukrainian President Volodymyr Zelensky’s name in 2022 for volunteers to affix Ukraine’s armed forces to assist repel Russia’s invasion.
In early 2024, Jenkins joined Ukraine’s Worldwide Legion of Territorial Defence, which has attracted some 20,000 fighters from 50 nations for the reason that warfare started. He had no earlier army expertise, however this wasn’t a requirement to affix.
In December, Jenkins was captured by Russian forces in Russian-occupied jap Ukraine and accused of serving as a “mercenary” in Ukraine’s 66th Mechanised Brigade’s 402nd Rifle Battalion. He was tried in a Russian courtroom and sentenced on Could 16 to 13 years imprisonment in a maximum-security penal colony.
When a foreigner volunteers to struggle in a warfare, their authorized standing underneath worldwide regulation may be difficult.
Are they a soldier with the complete authorisation of one of many opponents to have interaction in hostilities? Or are they an unlawful mercenary?
And what occurs if they’re captured?
Why authorized standing issues
The solutions to those questions have very actual significance to the 1000’s of foreigners who’ve joined Ukraine’s Worldwide Legion since 2022.
Russian authorities have categorized all of Ukraine’s foreigner fighters as “mercenaries”. They’ve used this label to disclaim overseas fighters the standing of “prisoner of war” (POW), with the requisite protections that come together with that underneath worldwide humanitarian regulation.
Whereas foreigners are permitted underneath worldwide regulation to enlist within the armed forces of a state for political or ethical causes, mercenaries have traditionally been outlawed because of their sole motivation being monetary acquire.
Worldwide humanitarian regulation (the principles that govern warfare) outline mercenaries as people who should not nationals or residents of a state engaged in warfare and are recruited to struggle outdoors that state’s official armed forces.
They’re motivated solely by non-public acquire (like cash or guarantees of reward), usually properly in extra of what the normal armed forces are paid. Mercenaries are basically skilled troopers who promote their providers to a state with none actual ties to that nation.
As soon as a fighter is classed as a “mercenary”, they lose all of the authorized protections which are historically afforded lawful combatants.
This consists of prisoner of warfare standing if they’re captured and immunity from prosecution for preventing in a battle. Prisoners of warfare are additionally entitled to humane therapy and entry to meals and medical care. They usually can’t be subjected to sham trials or torture.
In line with my analysis, lots of the overseas nationals who joined the Worldwide Legion have been motivated by a want to defend Ukraine in opposition to Russia’s aggression. They have been sworn into Ukraine’s armed forces and paid the identical as a Ukrainian soldier of equal rank.
As soon as enlisted within the armed forces, they have been instantly exempt from “mercenary” standing, regardless of their motivation for becoming a member of.
As such, these overseas fighters must be entitled to the complete vary of protections assured to members of Ukraine’s armed forces underneath the Geneva Conventions.
Labelling lawful overseas members of the Ukrainian armed forces as “mercenaries”, and denying them their protections, is an abuse of worldwide regulation.
How can Australia defend its nationals?
If an Australian enlists in Ukraine’s armed forces and is captured by Russian forces, there’s a restricted toolkit the Australian authorities can use to assist her or him. Nevertheless, it’s not powerless.
By way of its embassy in Moscow, Australia can request entry to detainees to evaluate their welfare whereas in jail. Russia can, nevertheless, decline this entry. Particulars of a detainee’s seize may additionally be withheld.
Australia may apply diplomatic strain to make sure humane therapy of prisoners and their full POW rights.
This may be finished by working with worldwide our bodies, such because the UN Working Group on Arbitrary Detention or organisations just like the Worldwide Committee for the Pink Cross (ICRC), which might request entry to detainees.
It seems the federal government is already doing a few of these issues. In line with International Minister Penny Wong, the federal government has been working with Ukraine and the ICRC to advocate for Jenkins’ welfare and launch, and offering consular assist to Jenkins’ household.
Australia additionally has an obligation to warn its residents they are going to doubtless face extreme penalties in the event that they journey to Ukraine to struggle and are captured by Russian forces, given Russia’s misuse of the “mercenary” label.
By way of back-channel negotiations, Australia may additionally push Ukraine or its allies to incorporate Australians being held by Russia in future prisoner swaps.
In January of this 12 months, Ukraine and Russia carried out such an alternate of 470 prisoners from each nations. And in talks final week in Turkey, each side agreed to launch one other 1,000 prisoners on all sides.
Such exchanges have concerned overseas fighters prior to now. In 2022, 10 overseas residents have been included in a prisoner swap, together with 5 Britons, two Individuals, a Croatian, a Swede and a Moroccan. A number of of them had been convicted of being mercenaries and sentenced to dying after a Russian sham trial.
There isn’t any assure Jenkins would qualify for such an alternate, nevertheless, if Russia continues to categorise him as a mercenary.
Three foreigners (two Britons and a Moroccan) attending a sentencing listening to in Russian-occupied jap Ukraine in June 2022.
Stringer/EPA
