Research questions Russia’s prosecution of foreign fighters

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New research from Edith Cowan University (ECU) has questioned the legality of Russia’s decision to designate and prosecute foreign fighters who were enlisted in Ukraine’s International Territorial Defense Legion (ILTG) as mercenaries.

In June, Russia sentenced five foreigners in absentia to up to 23 years in prison for joining Ukrainian forces fighting the ongoing invasion. The soldiers, from Sweden, Croatia and the UK, were tried on charges of “attempting to change Russia’s constitutional order” and “participating in the war as mercenaries.”

The classification of these soldiers as mercenaries has come under scrutiny as recent research by ECU assistant professor Shannon Bosch has found that the term “mercenary” should not be applied to these fighters, calling into question the legality of Russia’s decision to classify and prosecute these individuals as such.

He says: “The term mercenary is very suggestive. It’s eye-catching and very Hollywood. But there are six very specific requirements that must be met simultaneously for someone to be classified as a mercenary.

“Having enlisted in Ukrainian volunteer battalions, these foreign members of the Ukrainian ILTG are now fully integrated as members of the armed forces of the Ukrainian state.” This automatically disqualifies them from fulfilling one of the key requirements for establishing mercenary status.

“Another condition for obtaining mercenary status is the motivation to achieve personal gain, and the UN Working Group on Mercenaries does not believe that foreigners join the Ukrainian resistance movement solely because of the desire to achieve personal gain or material reward,” Bosch said.

Russia in 2022 charged three foreign fighters, two from Britain and one from Morocco, after they surrendered to Russian forces. After a three-day mock trial held behind closed doors and before a Russian court of attorneys in the Donetsk People’s Republic, all three men were sentenced to death.

Studies have shown that their treatment, trials and sentences have been met with widespread international condemnation, including criticism of the trial, which was intended to pressure Western powers into agreeing to an exchange of prisoners for captured Russian soldiers who were being hunted in Ukraine.

“The trial and prosecution of these men was also likely a political maneuver to discourage other foreign fighters from participating in this war,” Bosch said. An estimated 20,000 foreign fighters from 52 countries have already been drafted into the ILTG.

Although the European Court of Human Rights ordered Russia to apply interim measures to protect the lives of these men, it was only at the last minute, in a prisoner exchange brokered by Saudi Crown Prince Mohammed bin Salman, that the men were sent back to their home countries in late 2022, along with seven other foreign members of the International Society of Guardians of the Islamic Revolution.

“These people should never be tried as mercenaries because they cannot be classified as such.

“Since Ukrainian national law allows foreigners to join the Armed Forces, these volunteers are subordinate to its responsible command. This means that they meet the first condition of combatant status.

“If captured, combatant status guarantees them prisoner of war status. With full combatant immunity and prisoner of war status, these foreign fighters cannot be subject to criminal punishment simply for participating in hostilities, provided they abide by the laws of war,” Bosch added.

The United Nations has strongly condemned Russia’s attempts to institute show trials against foreign fighters. The act of depriving these foreign fighters of full combat immunity from prosecution, prisoner of war privileges and fair trial guarantees should draw the attention of the Prosecutor of the International Criminal Court.

The research was published in Potchefstroom Electronic Legal Journal.

More information:
Shannon Bosch, Examining the International Humanitarian Law Status of Foreign Fighters in the Ukrainian International Territorial Defense Legion, Potchefstroom Electronic Legal Journal (2024). DOI: 10.17159/1727-3781/2024/v27i0a14600

Provided by Edith Cowan University

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