Abstract

Keywords

Mercenaries; combatants; prisoner of war; International Legion of Territorial Defence; Ukraine; Russia.

……………………………………………………….

1 Introduction

On 28 February 2022, following the Russian invasion of Ukraine, 1

 Shannon Bosch. BA (Hons) LLB (UKZN) LLM (Cambridge) PhD (UKZN). Associate Professor of Law at Edith Cowan University, Western Australia and Honorary Research Fellow at the University of Kwa-Zulu Natal, South Africa. Email: s.bosch@ecu.edu.au. ORCiD: https://orcid.org/0000-0002-5255-4414.

1 Francovich The Spokesman 1.

1 Francovich The Spokesman 1.

It is not disputed that the armed conflict and partial occupation by Russia of Ukraine is international in character. Consequently, all four Geneva Conventions and Additional Protocol I, which both Ukraine and Russia have ratified, come into effect. Almost immediately Russia labelled these foreign fighters mercenaries, and the spokesperson for the Russian Defence Ministry declared that these foreign fighters would not be accorded combatant or the consequent prisoner of war (POW) status if they were captured by Russian armed forces. 7

7 Wright New Yorker 1.

foreign fighters would face criminal prosecution and imprisonment in Russia if they were captured.

Early in 2022 the first foreign fighters fell into enemy hands. Aiden Aslin, Shaun Pinner (both United Kingdom nationals) and Brahim Saadoune (a Moroccan citizen) negotiated their surrender to Russian forces. The Russian government paraded them on Russian State television and announced their capture and criminal prosecution. The three foreign fighters reported being subject to abusive and inhumane treatment, including being beaten, electrocuted, starved, intimidated, videoed for political and diplomatic leverage, and denied legal or embassy access. They were transferred, in violation of Article 12 of the Third Geneva Convention, to the self-proclaimed Donetsk People's Republic which remains internationally recognised as part of Ukraine. There they were charged with a variety of offences including being part of the Russian-declared terrorist group (the Azoc battalion), 8

8 Roth and Sinmaz The Guardian 1.

The European Court of Human Rights (ECHR) issued a Rule 39 order for interim measures against Russia in order to protect the detainee's convention rights under Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. The ECHR requested that Russia ensure that the death penalty imposed on Aslin, Pinner and Saadoune not be carried out, and that they receive all necessary medical assistance and appropriate detention conditions.

In an eleventh-hour prisoner exchange mediated by Saudi Crown Prince Mohammed bin Salman, Aslin, Pinner and Saadoune, together with seven other foreign ILTG members, were sent back to their respective countries late in September 2022. 11

11 Duncan The National News 1.

In this paper, I will propose an answer to this critical (in this case life and death) question: How does international humanitarian law classify foreign members of the Ukrainian International Legion of Territorial Defence? I will begin by explaining why it is incorrect to immediately classify them as mercenaries. I will defend the claim that they are legally entitled to combatant status and the attendant combatant immunity from prosecution upon capture. I will clarify their claims to prisoner of war status and the associated rights and protections which international humanitarian law afford those with prisoner of war status upon capture and explore how those rights were denied in this case. Lastly, I look at what international humanitarian law rights and protections should be afforded foreign members of the Ukrainian International Legion of Territorial Defence if they face trial pursuant to capture.

2 Foreign members of the Ukrainian International Legion of Territorial Defence are not by definition mercenaries

International humanitarian law is built on the notion that individuals who find themselves in an armed conflict are identified as either participants (combatants) or non-participants (civilians). Combatants are authorised by their State to participate directly in the hostilities. Combatant status brings with it the right to engage in hostilities with full immunity from prosecution, provided the combatant has not violated the laws of armed conflict.

For these foreign members of the Ukrainian International Legion of Territorial Defence that were detained in Russia, everything pivots upon their legal classification under international humanitarian law. Their international humanitarian law status determines what they are permitted to do in the conflict zone once they enlist in the Ukrainian International Legion of Territorial Defence. Their classification governs what rights, privileges and protections they should be afforded upon capture. Ultimately their classification as mercenaries is what exposed them to prosecution, a death sentence and the threat of execution. The case of Aiden Aslin, Shaun Pinner and Brahim Saadoune demonstrates, quite literally, that one's classification under international humanitarian law can be a matter of life or death.

The Russian Defence Ministry did not hesitate to label these foreign members of the Ukrainian International Legion of Territorial Defence as mercenaries. Mercenarism, or what was referred to as privateering in the 1856 Paris Declaration, was and still is strictly prohibited under international law. 13

13 Solis Law of Armed Conflict 197; Bosch 2009 CILSA 360-361.

prosecution and the associated prisoner of war protections, which legitimate combatants enjoy upon capture. 14

14 Article 47 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1979) (AP I).

States like Ukraine who are signatory to the United Nations Mercenaries Convention, which entered into force on 20 October 2001, are obligated to prohibit and prosecute those involved in the recruitment, use, financing or training of mercenaries. They must establish jurisdiction on their territory and over their nationals, to prohibit, prosecute and punish those that do engage in the serious offence of mercenarism. 15

15 Articles 2, 3, 5 and 9 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989) (UN Mercenary Convention).

While the consequences for mercenarism are severe, it is not enough for Russia to simply label these foreign Ukrainian International Legion of Territorial Defence members as mercenaries. Russia has to show that they fulfil the international humanitarian law definition of a mercenary. This definition, set out in Additional Protocol I Article 47, is reiterated with slight variations in the two treaties that criminalise mercenarism (the United Nations Mercenary Convention and the Organisation of African Unity Mercenary Convention) and is held by the International Committee for the Red Cross to have attained customary international law status. 16

16 Henckaerts and Doswald-Beck Customary International Humanitarian Law rule 108.

(a) be specially recruited locally or abroad in order to fight in an armed conflict;

(b) in fact, take a direct part in the hostilities;

(c) be motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party;

(d) be neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;

(e) be not a member of the armed forces of a party to the conflict; and

(f) not have been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.

It is true that these foreign members of the Ukrainian International Legion of Territorial Defence are being specially recruited locally or abroad to participate in the hostilities (fulfilling conditions a and b). For the most part the foreign Ukrainian International Legion of Territorial Defence members are not Ukrainian or Russian nationals (fulfilling condition d), although some of these individuals have been resident in Ukraine and have Ukrainian spouses. While many have experience serving in their own State's armed forces, they are individual volunteers and are not on official duty from their own State (fulfilling condition f).

Their mercenary status hinges on satisfying conditions c and e, addressing motivation for private gain (set out in c above) and any link they can show to the Ukrainian armed forces (condition e above). On the question of motivation, the United Nations Working Group on Mercenaries does not believe that these foreign Ukrainian International Legion of Territorial Defence recruits have been motivated to join the Ukrainian International Legion of Territorial Defence solely by the desire for private gain or material compensation substantially in excess of that promised or paid to Ukrainian combatants of similar ranks and functions. 18

18 UN Report of the Working Group.

That leaves only the issue of their membership of the armed forces (condition c). In 2014 Ukraine's Ministry of Defence established thirty foreign volunteer battalions, and within the first year 1000 foreign national had joined the Armed Forces of Ukraine. 20

20 Nuzov 2022 https://www.ejiltalk.org/mercenary-or-combatant-ukraines-international

-legion-of-territorial-defense-under-international-humanitarian-law/.

invasion, and together with Gustafsson, Prebeg and Harding they could all produce signed contracts of their membership of the Ukrainian Armed Forces or marine corps pre-dating the 2022 invasion. 25

25 Koroleva 2023 https://www.justiceinfo.net/en/122197-day-defence-azov-rostov-on-don-military-court.html.

In short it seems highly unlikely, if not impossible, for these foreign nationals who enlist in the Ukrainian International Legion of Territorial Defence to fulfil all six requirements of the international humanitarian law definition of a mercenary set out in Additional Protocol I. Given that an individual needs to fulfil all six criteria simultaneously the definition has been criticised for being impractical. In many instances, as is the case here, the label mercenary is misused and legally inaccurate.

Where does that leave these foreign members of the Ukrainian International Legion of Territorial Defence when they are captured while participating directly in hostilities? Under international humanitarian law if there is any doubt about participants’ status, they are presumed to be civilians until they have their international humanitarian law combatant status determined by an independent tribunal established by the detaining power. 27

27 Article 50(1) of AP 1.

3 Foreign members of the ILTG are protected as combatants under international humanitarian law

Recognised subjects of international law, like the State of Ukraine, are entitled to bestow combatant status on their armed forces. Once combatant status is bestowed these individuals are permitted to participate directly in hostilities without personal liability, because they act not for themselves but as agents of the State. 28

28 Kidane 2010 Denv J Int'l L & Pol'y 381.

combatant status, but it may expose them to prosecution before a military court martial. 30

30 Pilloud, Sandoz and Zimmermann ICRC Commentary 511; Bosch Combatant Status of Non-State Actors 25.

With so much riding on one's classification in situations of an international armed conflict it is important to ascertain whether these foreigners who volunteered to join the Ukrainian International Legion of Territorial Defence enjoy full combatant status as members of the armed forces of the State of Ukraine. Their international humanitarian law status will determine whether they are authorised to participate directly in the hostilities with complete combatant immunity, or whether they might face criminal prosecution for their unauthorised participation in the hostilities. A State's domestic regulation determines who can acquire this membership of the armed forces. Individuals’ nationality is irrelevant when it comes to determining combatant status. It is their membership of the armed forces (and their being thereby subject to command responsibility) that clothes them with combatant status and combatant immunity for their actions. Combatant status also makes them a legitimate military target. It is important that, as a legitimate military target, combatants (at a minimum) carry their weapons openly during and in preparation for any military engagement. It is only when they resign their membership, surrender, or are given prisoner of war status upon capture, that that this risk is removed and they enjoy immunity from attack.

Ukrainian domestic legislation was amended through Law No 2389 on 17 March 2015 to make it possible for foreign nationals to enlists in the Ukrainian armed forces at the same rate of remuneration as a Ukrainian of equal rank. 31

31 Nuzov 2022 https://www.ejiltalk.org/mercenary-or-combatant-ukraines-international

-legion-of-territorial-defense-under-international-humanitarian-law/.

determination of their lawful combatant status under international humanitarian law. 34

34 Ditrichová and Bílková 2022 https://lieber.westpoint.edu/status-foreign-fighters-ukrainian-legion/.

Aslin, Pinner and Saadoune, as fully incorporated members of the Armed Forces of Ukraine, were part of the official armed forces of the party to a conflict, and hence enjoyed full combatant rights and privileges. Russia attempted to bypass this reality by declaring that the Azov Battalion was a criminal group. Ukraine maintain that the Azov Battalion has been fully integrated into the Ukrainian armed forces, which affords their members full combatant status and prisoner of war privileges on capture. 35

35 Hill-Cawthorne 2022 https://www.ejiltalk.org/the-prosecution-of-british-fighters-by-pro-russian-separatists-in-ukraine/.

Subjecting Aslin, Pinner and Saadoune to criminal prosecution for their mere participation in hostilities violates their rights under international humanitarian law that flows from their combatant status. Russia can, however, prosecute all combatants (foreign or Ukrainian) where there is evidence that they have committed war crimes. That said, any prosecution would need to observe the fundamental guarantees enshrined in Article 75 of Additional Protocol I.

4 Foreign members of the Ukrainian International Legion of Territorial Defence are entitled to the full range of prisoner of war protections

Foreign nationals, once formally incorporated into the Ukrainian International Legion of Territorial Defence, are clothed with combatant status which cannot be forfeited. 36

36 Cowling and Bosch 2009 CILSA 30.

their prisoner of war status 38

38 Article 44(4) of AP I.

One area of international humanitarian law that might prove controversial for these foreign combatants is their legal obligation to distinguish themselves from the civilian population. Combatants are continuing legitimate military targets, wherever they are located and even when off duty. As such, combatants are obliged under international humanitarian law to overtly distinguish themselves from the civilian population, who are immune from attack. 39

39 Article 48 of AP I; Jensen "Direct Participation in Hostilities" 2020-28; Rogers 2004 YIHL 11; Kalshoven and Zegveld Constraints on the Waging of War 86.

In 1977 Additional Protocol I Article 44(3) proposed a new approach to the generally accepted practice of uniforms as an indicator of combatant status. Cognisant of the realities of modern warfare and the difficulty that the principle of distinction presents in the modern age Article 44(3) proposed that combatants need not wear a military uniform to avoid a charge of perfidy, provided they carry their arms openly in preparation for and during an attack. 42

42 Cowling and Bosch 2009 CILSA 22.

This provision introduced a temporal aspect to the enquiry used to determine if a captured belligerent was entitled to prisoner of war status

under Additional Protocol I Article 44(5). 46

46 Pilloud, Sandoz and Zimmermann ICRC Commentary 522.

States party to an international armed conflict are expected under Geneva Convention III Article 17 to furnish all combatants under their jurisdiction with identity cards confirming that they are eligible for prisoner of war status. Geneva Convention III Article 5 mandates that where there is any doubt as to detainees' status they shall be clothed with presumptive combatant status until that status has been determined by a competent tribunal. Additional Protocol I Article 45(1) establishes a presumption in favour of POW status for anyone falling into enemy hands who "claims that status, appears entitled thereto, or his party claims it for him". Additional Protocol I Article 45(2) now affords such individuals a legal right to have a judicial tribunal adjudicate their right to claim prisoner of war status. 48

48 Rogers 2004 YIHL 27.

To determine whether Aslin, Pinner and Saadoune might have forfeited their prisoner of war status at the time of their capture we need to ascertain whether they observed the principle of distinction at the time of their capture. It must be stated at this juncture that camouflage is not prohibited. The issue is whether they were dressed with the intention to mislead the opposition that they were civilians. 49

49 Dinstein Conduct of Hostilities 38.

There are conflicting accounts as to whether these foreign nationals who enlisted in the Ukrainian International Legion of Territorial Defence were issued with official Ukrainian identification cards or military uniforms. Some

reports say that camouflage uniforms were issued, 50

50 Francovich The Spokesman 1.

Russia as the detaining power bears the burden to justify any denial of POW status to combatants who fall into enemy hands. All members of the Ukrainian International Legion of Territorial Defence would qualify as prisoners of war under Article 4(A)(1) of the Third Geneva Convention, which refers to "members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces." There is no indication that an Article 5 status determination tribunal was established prior to the trial of Aslin, Pinner and Saadoune in the Donetsk Peoples Republic. 54

54 Hill-Cawthorne 2022 https://www.ejiltalk.org/the-prosecution-of-british-fighters-by-pro-russian-separatists-in-ukraine/.

5 The rights of foreign members of the ILTG to claim the fair trial guarantees enshrined in international humanitarian law

Even if Russia could argue successfully that the Aslin, Pinner and Saadoune forfeited their prisoner of war status, they are not left completely unprotected. Additional Protocol I Article 44(4), guarantees that even once one's prisoner of war status is forfeited, the due process procedural and substantive protections afforded to prisoners of war under Geneva Conventions III common Article 3 and Additional Protocol I Article 75 still applies. Together these provide a safety net catalogue of fair trial guarantees to ensure the humane treatment of all detainees, 55

55 Aldrich 1981 AJIL 783.

Additional Protocol I Article 75 all detainees (irrespective of whether they have prisoner of war status or not) cannot be subjected to "murder, torture, corporal punishment, mutilation, and outrages against personal dignity." 58

58 Traldi 2022 https://www.lawfaremedia.org/article/soldiers-not-soldiers-fortune.

In the case of Aslin, Pinner and Saadoune much has been made of the lack of fairness, independence and impartiality of the court that conducted this trial in the Donetsk Peoples Republic. They were held incommunicado and denied the right to communicate with their State or the International Committee of the Red Cross. The court failed to hold public hearings and neither the International Committee for the Red Cross nor the protecting powers was invited to attend the trial as per Geneva Convention III Article 105. 61

61 Hill-Cawthorne 2022 https://www.ejiltalk.org/the-prosecution-of-british-fighters-by-pro-russian-separatists-in-ukraine/.

Protocol I to prosecute these combatants, who should have enjoyed full prisoner of war privileges, for their mere participation in hostilities. 64

64 Hill-Cawthorne 2022 https://www.ejiltalk.org/the-prosecution-of-british-fighters-by-pro-russian-separatists-in-ukraine/.

6 Conclusion

Widespread international legal and moral outrage has been expressed in response to the sham trials and the resultant death sentences handed down in the self-proclaimed Donetsk Peoples Republic to the Aslin, Pinner and Saadoune, who surrendered to Russia in 2022.

According to the Ukrainian Regulation (No 248) on Military Service in the Armed Forces by Foreigners and Stateless People, foreigners like Aslin, Pinner and Saadoune have the right to volunteer to join Ukraine's Armed Forces. This regulation precludes them and other foreign nationals from satisfying the definition of a mercenary in Additional Protocol I.

Since Ukrainian domestic legislation allows foreigners to join the Armed Forces of Ukraine, these volunteers are under its responsible command. This means that they fulfil the first of the conditions for combatant status. The fact that they are not nationals of Ukraine is "widely considered to be irrelevant when it comes to determining combatant or prisoner of war status." 65

65 Nuzov 2022 https://www.ejiltalk.org/mercenary-or-combatant-ukraines-international -legion-of-territorial-defense-under-international-humanitarian-law/.

Once it is determined that Aslin, Pinner and Saadoune meet the requirements for combatant status, their prisoner of war status is guaranteed. 66

66 Pfanner 2004 IRRC 120.

With full combatant immunity and prisoner of war status, these foreign fighters cannot be subject to criminal prosecution for their participation in the hostilities, provided they observe the laws of war. If, however, there is evidence that they have breached international humanitarian law they

nevertheless enjoy the fair trial guarantees which are set out in the Geneva Convention III and Additional Protocol I. 69

69 Abraham 2004 SALJ 845.

The United Nations has condemned Russian attempts to initiate show prosecutions in the Donetsk Peoples Republic against foreign fighters like Aslin, Pinner and Saadoune. Such prosecutions and those threatened in absentia against Andrew Harding; Dylan Healy, Andrew Hill (United Kingdom); Vjekoslav Prebeg (Croatia); Mathias Gustafsson (Sweden); and two Unites States military veterans, Alex Drueke and Andy Huynh, are contrary to Articles 43 and 44 of Additional Protocol I and amount to war crimes. They should attract international criminal prosecution. 70

70 Hill-Cawthorne 2022 https://www.ejiltalk.org/the-prosecution-of-british-fighters-by-pro-russian-separatists-in-ukraine/; UN 2022 https://news.un.org/en/story/2022/ 06/1120102.

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List of Abbreviations