“They must be held accountable for the crimes they have committed.” Kremlin spokesman Dmitry Peskov spoke for the first time on Monday, June 20, about the two Americans captured in the Donbass while fighting alongside the Ukrainian army. “They are mercenaries and they were involved in illegal activities on the territory of Ukraine”said the manager on the NBC channel (in English). Words heavy with meaning, in the light of international law.
Alexander Drueke and Andy Huynh, two former servicemen, appeared in a video shot by Russian media last week. They explained that they had been engaged to fight Russian troops near Kharkhiv, in a foreign unit which gave itself the improbable name of “Task Force Baguette” – because of the presence of French volunteers. “Our team found themselves isolated in the middle of a Russian offensive”, wrote the latter (in English) in mid-June, announcing the capture of the two men.
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The fate reserved for the two men is now the subject of serious concern, especially since their conditions of detention have not been specified. Dmitri Peskov contented himself with declaring that they were in the hands of the “authorities”, in reference to the separatist power of the Donetsk Territory. On whether they face the death penalty, the Russian spokesperson said: “It depends on the investigation.”
This statement is hardly encouraging. On June 9, two Britons and a Moroccan had already been sentenced to death by the Supreme Court of this pro-Russian territory, after a two-day trial. Aiden Aslin, Shaun Pinner and Brahim Saadoune had been detained since their surrender when the Azovstal factory in Mariupol was taken over. The three men had one month to appeal and try to commute their conviction to a prison term. But on June 22, they had still not lodged an appeal, according to Denis Pushilin, the leader of the Donetsk separatists. If the judgment is upheld, local laws provide for their sentence to be carried out by firing squad.
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At the time of their trial, they had no choice but to admit the facts, behind bars and under duress. The footage was widely broadcast by Russian media. “Their objective is to terrorize Western opinion by threatening to kill three hostages”, commented the Prosecutor General of Ukraine, Iryna Vereshchuk. Lack of public hearings, independence and impartiality of the courts, refusal of the right to testify without constraint… The United Nations has been denouncing since 2015 violations of the rules of fair trial in the territories of Donetsk and Luhansk.
Even beyond the conditions of the trial, the status of these men is a matter of debate. Liz Truss, UK Foreign Secretary, qualified Aiden Aslin and Shaun Pinner of “prisoners of war”, a status defined by the Geneva Conventions. This provides that a captured combatant “cannot be prosecuted for acts related to his participation in a conflict when they are in accordance with international humanitarian law”, explains Vaios Koutroulis, specialist in humanitarian law, interviewed by franceinfo. In other words, “a soldier who kills another is protected from criminal prosecution for intentional homicide”except of course for war crimes.
The interpretation of Russia and the separatists is opposite, since all foreign fighters seem to be considered “mercenaries”. In Donetsk. Aiden Aslin, Shaun Pinner and Brahim Saadoune were thus prosecuted for their “participation in a conflict or hostilities as a mercenary” (article 430 of the local penal code), which deprives them of the protection of international humanitarian law.
The choice of this status is debatable, the Ukrainian Ministry of Foreign Affairs having declared that these men were “military” of its armed forces. The two Britons, who had been in Ukraine for years, were fighting in the Marines. As for the Moroccan national, he had studied in the country before starting military training in November 2021, then joining the 36th navy brigade. His father, moreover, told the newspaper Madar 21 that Brahim also had Ukrainian nationality.
“If these people have been integrated into the armed forces, that means two things: they have the right to take part in hostilities and they are entitled to the status of prisoners of war.”
Vaios Koutroulis, specialist in humanitarian lawat franceinfo
“The definition of mercenary status is restrictive and combines six conditions”, adds Vaios Koutroulis. Among them: recruitment via a dedicated channel, obtaining a personal advantage and non-integration into the armed forces. In the facts, “it is very rare for people to meet all of these conditions”.
Beyond the armed forces, “members of other militias and those of other volunteer corps” are considered prisoners of war, further specify the Geneva Conventions. Many foreign volunteers thus fight within the International Legion for the territorial defense of Ukraine, integrated de facto within the army since its creation in February by President Volodymyr Zelensky.
Prisoners of war can be detained without any form of justification other than the continuation of the conflict. “There is no need to bring charges against him, or to compile a judicial file”, explains Vaios Koutroulis. Article 118 of the Geneva Conventions provides for their release and repatriation “without delay” at the end of hostilities.
“The application of the law is the same for all parties to the conflict: aggressor or attacked. All soldiers are entitled to the same protection, including Russian soldiers.”
Vaios Koutroulis, specialist in humanitarian lawat franceinfo
The severity of the penalties incurred shows the importance of these statutes. Will Alexander Drueke and Andy Huynh be considered prisoners of war or prosecuted as mercenaries? Russia currently has a moratorium on the use of the death penalty, but breakaway regions in Ukraine reinstated it in 2014.
The last safeguards are gradually being lifted. Russia has not been part of the Council of Europe since March 15, but the European Court of Human Rights (ECHR) has nevertheless granted Brahim Saadoune’s requests, with an emergency measure demanding Russia that this death penalty not be applied. It is not certain that Moscow is listening attentively to this. On June 7, the Duma signed a bill to formalize Russia’s withdrawal from the ECHR, which only awaits the signature of Vladimir Putin to enter into force.
“There is no international body that could be invested in to qualify these statutes during the heat of hostilities, with objectively opposable criteria.”
Vaios Koutroulis, specialist in humanitarian lawat franceinfo
Each actor may therefore be tempted to interpret these statutes in his own way. Moreover, these abusive interpretations do not only concern foreign fighters. On Russian radio, the leader of the Donetsk separatists, Denis Pushilin, announced on Tuesday the imminent creation of an international tribunal ad hoc to judge the “war criminals” – designating the fighters “terrorists” Ukrainians from the Azov regiment. The trials could begin in Mariupol at the end of July, in the presence of the press and NGOs. Contacted by franceinfo, Nicolas, a French fighter present in the Donbass, has few illusions in the event of capture: “I’d rather shoot myself or pop a grenade.”