There are people of different nationalities fighting as part of the Ukrainian Armed Forces in the current ongoing conflict. If they are captured, would the Geneva Convention's principles on giving fair treatment to prisoners of war apply?
asked May 19, 2022 at 22:52
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14Someone of a different nationality volunteering to fight for the Ukrainians is NOT the same as a mercenary. Do you have anything to show that they are primarily mercenaries? -1– PoloHoleSetMay 20, 2022 at 11:36
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2Do you mean like the mercenaries that Russia has hired to fight for Russia? Do you want to distinguish between "for-pay" mercenaries and volunteers?– DaveGMay 21, 2022 at 15:21
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1A bit of an academic question right now, because one of the parties currently engaging in war on the European continent does not abide by any Geneva Convention. They seem indeed to be proud of engaging in every atrocity in the book, whether referring to civilians or military personnel.– RedSonjaMay 23, 2022 at 8:41
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2 Answers
No. Per the Protocols Additional to the Geneva Conventions of 12 August 1949:
A mercenary shall not have the right to be a combatant or a prisoner of war.
However, not all the people mentioned in the question are necessarily mercenaries, who are defined as
[...]motivated to take part in the hostilities essentially by the desire for private gain and, in fact, [are] 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[.]
No material compensation, no mercenaries (though other political entities, such as the African Union, have pushed for a broader definition).
In particular, foreign volunteers might be covered as prisoners of war, if per the main Geneva Conventions they are seen as:
Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Or, contrariwise, if they actually submit themselves to the command of the armed forces of the country being invaded:
The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.
The main Conventions also mention volunteer corps as eligible to be considered prisoners of war, without consideration of nationality:
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.
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10@EmilJeřábek - The Wagner Group actually would not qualify as mercenaries in the Ukrainian conflict, given that the same source that I cited indicates that a mercenary "is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict." Needless to say, Russia is a party to the Russo-Ukranian war, and the Wagner Group is largely composed of Russian nationals. The Wagner Group would be classified as mercenaries in most other conflicts in which it has been involved, since the Russian armed forces are not parties to those conflicts.– Obie 2.0May 20, 2022 at 6:42
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12Note how narrow (too narrow?) the definition of a mercenary is in international law. A soldier who volunteers to fight for a foreign army is not a mercenary. A private military contractor who fights for a foreign army, but is compensated similarly to similarly skilled members of that same military, is not a mercenary. A PMC that is compensated in excess of soldiers of the same skill level, but fights in a conflict that their country initiated, is not a mercenary. A member of the armed forces of a third-party state who is compensated in excess is not a mercenary if sent by their military.– Obie 2.0May 20, 2022 at 8:37
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5@Obie2.0 Yes, the definitions seems to have been taylored so that "their mercenaries" are covered where ours aren't. I don't know who were "us" when this law was written, but it looks very discretionary.– RekesoftMay 20, 2022 at 8:41
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9This is getting off-topic but the definition was formulated to exclude groups such as the Gurkhas, Nepalese troops who fight for the British army, and similar groups with other nations such as the French Foreign Legion. It also excludes the practice of both NATO and (ex) communist countries of sending "military advisors" or "trainers" to other nations who work with and may even fight with local troops.– Stuart FMay 20, 2022 at 11:54
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13@Obie2.0 remember the purpose for which "mercenary" is being defined, however; it is for the purpose of excluding people from the protections of the convention. It makes sense that the authors of the convention would want to protect more people, not fewer.– phoogMay 20, 2022 at 11:55
Yes
The question is
There are people of different nationalities fighting as part of the Ukrainian Armed Forces in the current ongoing conflict. If they are captured, would the Geneva Convention's principles on giving fair treatment to prisoners of war apply?
(Emphasis added)
Article 4 of the third Geneva convention provides in part
Article 4
A) Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
- 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.
No mention is made of nationality. It is an assumption of this question as it currently stands that the people in question are "part of the Ukrainian armed forces." Therefore, they are entitled to the protection of the convention.
Much has been made of the exception applying to mercenaries in Protocol I. For this exception to apply, six conditions must be met. Among these conditions is not being a member of the armed forces of a party to the conflict. This specifically excludes the people contemplated in this question from the exception. The six conditions are:
Article 47
...
- a mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is 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) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
(Emphasis added)