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Ukraine hopes to save foreign soldiers sentenced to death, says lawmaker

Britain has condemned the sentencing of the fighters as an "egregious breach" of the Geneva Convention, under which prisoners of war are entitled to combatant immunity and should not be prosecuted for participation in hostilities.

Ukraine, which has dismissed the Donetsk court's ruling as having no authority, says the fighters had signed contracts with the Ukrainian armed forces.

Does this mean that, by definition, it is impossible for there to be any mercenaries in the Ukrainian armed forces? Since even if they are fighting entirely for personal profit (the definition of "mercenary"), Ukraine can still sign a contract with them and call them Ukrainian soldiers.

Nothing specific to Ukraine about this question; it could equally apply to e.g. Wagner Group soldiers fighting in Syria (becoming officially Syrian soldiers).

If the answer to the title question is "yes", what is the point of having separate rules for mercenaries since if the rules are sufficiently harsh then all mercenaries will magically become soldiers?

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  • Generally speaking however, most private military contractors don't want to enlist in 3rd world countries' armies as such... for reasons of pay and whose laws they'd be subject to etc. Recall the exceptions that western PMCs had secured in Iraq etc. Probably something less formal happened in Syria with the Russians. OTOH you couldn't expect ISIS to respect the Geneva conventions anyway, so "mercenary' status, which PMCs technically were subject to, didn't really matter much relative to the other issues I mentioned. Jun 11, 2022 at 23:40
  • @Fizz if that's how it works I imagine one could have a plausible deniability arrangement - if you are captured then you are our soldiers, otherwise (or if you do some kind of war crime) you are private military contractors.
    – Allure
    Jun 12, 2022 at 0:06
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    "Since even if they are fighting entirely for personal profit..." Is this the case here? I had the impression that many foreign fighters supporting Ukraine are not in it for the profit and if they are, my estimation would be that the risk for their lives still far outweighs any potential financial profit. I mean, what exactly are they supposed to loot or do mercenary stuff on? Jun 13, 2022 at 8:13

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While a regular soldier does receive some form of "compensation" (at least food, shelter, experience and medical treatment), this is usually far from sufficient to attract enough fighters that have no other reasons to risk they lives, apart for pure money. This is why Geneva convention says that the payment must be substantially higher:

material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

This requires special, separate and different contract with these people. They would not accept just an ordinary enlistment.

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  • "They would not accept just an ordinary enlistment": if there is an ordinary enlistment, there is no need to consider the question of how much anyone is getting paid, because any member of the armed forces is excluded from the definition of "mercenary."
    – phoog
    Jun 13, 2022 at 13:59
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    Another point that excludes the people mentioned in the question from the definition of "mercenary" is that they are residents of Ukraine. So there are at least three factors present, any one of which suffices to guarantee them the protection of the Geneva conventions.
    – phoog
    Jun 13, 2022 at 15:28
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From my understanding the answer is Yes, a country is allowed to accept any mercenary that it wants to into their regular forces and count treat them as soldiers. There are no citizenship requirements to join an countries military and an example of that is the US military. Non-citizens are allowed to join the military and they are just not able to hold all jobs and can't get the higher security clearances.

Now to the question as why the separate rules I would assume that is because mercenaries are not always working for a country or are doing so in a way to hide the link. The issue with the rules of war is that they are dealing with conflicts between countries and mercenaries don't always fit the rules.

Also just because a country can accept a mercenary into their forces doesn't mean they want to as that country would now be responsible for all the acts of that mercenary.

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    I think that last line is key. By accepting the mercenary into the army, the county is also accepting responsibility for anything they do - the same as any other soldier. If your enlisted mercenaries go on to commit war crimes, you're now on the hook for that. Whereas if they were just hired but not enlisted, you could just disavow their actions. (Which may or may not help reputationally, but should get the country off the hook legally/)
    – Bobson
    Jun 12, 2022 at 16:48
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Does this mean that, by definition, it is impossible for there to be any mercenaries in the Ukrainian armed forces?

We can sidestep the question of whether the quoted passage has this meaning. Instead, let us consider the definition of "mercenary":

Article 47

...

a mercenary is any person who:

...

(e) is not a member of the armed forces of a Party to the conflict;

...

(As quoted in my answer to another question)

Therefore, by definition, it is impossible for there to be mercenaries in any country's armed forces, as the term is defined for the purposes of the Geneva conventions.

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  • I think this is side stepping the intent of the question as it is asking if someone can start as a mercenary and join the country's armed forces and gain the protections from being a member of it under the Geneva convention. The other answers are suggesting it is possible for a mercenary to join and it doesn't matter if they are no longer considered a mercenary or not.
    – Joe W
    Jun 13, 2022 at 11:35
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    @JoeW I don't see anything in the question suggesting that the people under discussion started as mercenaries and were subsequently inducted into the armed forces, but even if that's what happened, they are not classed as mercenaries if they are members of the armed forces. Has there been any claim that they are not bona fide members of the Ukrainian army? If so, that is a factual question for a court to rule on.
    – phoog
    Jun 13, 2022 at 11:42
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    If they are declaring mercenaries as soldiers how could they not start out as mercenaries?
    – Joe W
    Jun 13, 2022 at 12:41
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    @JoeW The soldiers in question were never mercenaries. They have lived in Ukraine for several years, have families there, and enlisted into the Ukrainian army before the current war started. Jun 13, 2022 at 12:54
  • @EmilJeřábek Okay, so why would they become mercenaries if the question is asking about making them soldiers?
    – Joe W
    Jun 13, 2022 at 12:58

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