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

·5-min read

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

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

“They should be held responsible for those crimes they have committed,” he said. “Those crimes have to 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 Conventions.”

Yahoo News spoke to Matthew Schmidt, the 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 detainees in Russia and whether it is legal for Americans to fight in Ukraine.

Yahoo News: Is it legal for U.S. citizens to fight for Ukraine?

Matthew Schmidt: The short answer is yes. There are laws from the 19th century that would call this into question. 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 go back to Cuba and fight. So that’s the standard that we use today.

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

How about European countries?

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

What does international law say?

International human rights law is focused on your status as a human, then your status as a combatant. And so there are standards of treatment that apply whether or not you’re a combatant, or considered a lawful combatant. So, for instance, it’s illegal to torture. This is one of the issues that came up in the U.S. global war on terrorism, where the United States did not declare many captured fighters as formal military personnel and then engaged in what they called enhanced interrogation, which was later admitted to be torture under international law. So these standards still apply. And the United States is in a tricky position in arguing against this because of what the U.S. did during the global war on terror against other nonofficial combatants. And so that’s a problem that the U.S. will face in this case.

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

They don’t follow international human rights standards. So they treat detainees in a way that international law considers torture — sleep deprivation and other means of interrogation that is considered illegal under international law.

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

Under international law, there are six standards that you have to meet. It’s quite strict in order to be considered a mercenary in this case. The second standard is that your primary motivation for fighting is private gain, that is for money or pay. And it would be very hard under Western standards to argue that the captured Americans were mercenaries because it just appears that their primary motivation was not for pay. The pay is well below their standard of living in the United States. And so they’re not really making material gain.

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

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 Kyiv on May 13. (Efrem Lukatsky/AP)

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

Ukraine is investigating thousands of alleged war crimes committed by Russian soldiers since the country’s brutal invasion began on Feb. 24. Iryna Venediktova, Ukraine’s prosecutor general, told Reuters that many of those 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 Venediktova, a Justice Department official said. The two reportedly discussed ways to help Ukraine “identify, apprehend and prosecute those individuals involved in war crimes and other atrocities in Ukraine.”

With regard to the American detainees, could the Kremlin be retaliating 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 of Russian moves here is retaliation. But I think it’s better to think of it as a strategic advantage. So the real rationale for [Russian President Vladimir] Putin to push this approach to the American prisoners or other Western fighters is to support his domestic propaganda. It upholds the idea that the war is really about Russia being attacked or threatened by the West. And so holding Western prisoners, especially American prisoners, plays into the narrative that what’s 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 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 in the self-proclaimed Donetsk People’s Republic, a breakaway region in the east of Ukraine. Aslin’s family told the BBC that his Russian captors assured him that his execution will be carried out.

Can the U.N. step in to help the prisoners sentenced to death?

They can petition for access, the International Red Cross can petition for access. Of course, the American Embassy can petition for access. But right now they don’t even know the location of the American prisoners. And in the end, Russia is preemptively claiming that the prisoners are guilty of war crimes or may be prosecuted for war crimes. And so by their standard, they don’t have to follow international law.

It’s worth remembering two points. One, that the prisoners are being held apparently in the DNR [Donetsk People’s Republic], which is not Russia. And the DNR is formally not a signatory of any of these applicable laws, and so would not have to follow them, and also has the death penalty. In this case, and on Russian state media several times, prominent figures in the government have floated the idea of using the death penalty against them, even going so far as saying that there’s no other choice, because they’re accusing the Americans of committing war crimes against Russian troops and Russian citizens.

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How are Ukrainian forces taking out so many Russian tanks? Use this embed to learn about some of the weapons systems the U.S. is sending to the Ukrainian army.

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