The limits of the Geneva Conventions

·4 min read
Soldiers.
Soldiers. Illustrated | iStock

Russia may execute a pair of American military veterans captured fighting for Ukraine, a Russian official said this week. The two are accused of being "involved in illegal activities" by firing on the invading troops, and could face severe penalties. 

"Those guys on the battlefield were firing at our military guys," Dmitry Peskov told NBC News, further calling the American fighters "soldiers of fortune." He asserted that they are not part of Ukraine's regular army, and said the Americans are thus not covered by the Geneva Conventions that otherwise protect prisoners of war from harm — including the death penalty. Why are U.S. fighters in Ukraine, and what dangers do they face? 

Who are the captured Americans? What are they doing in Ukraine?

Alexander Drueke, 39, and Andy Huynh, 27, both from Alabama, are "among a number of U.S. veterans who have traveled to Ukraine to join or assist the Ukrainian military as it attempts to hold back the Russian invasion," Dan Lamothe reports for The Washington Post. They were part of a wave of volunteers from a number of countries who flocked to Ukraine after the war broke out: While early reports probably overstated the number of foreign fighters at around 17,000 — and while estimates are tricky — the current number is believed to be somewhere from "several hundreds to a few thousands," the Counter Extremism Project reported in May.

Drueke was a former U.S Army staff sergeant who previously served in Iraq; Huynh served four years in the Marines but had no combat experience before he went to Ukraine. The two were taken "after running into a much larger Russian force during a battle last Thursday in the village of Izbytske, 30 miles northeast of Kharkiv," Colin Freeman writes for The Telegraph. Now they "are believed to be the first U.S. servicemen to end up as Russian prisoners of war." (Former Marine Grady Kurpasi went missing in Ukraine in April; at least four Americans have died in the fighting.)

Both men were moved to join the fight in Ukraine after Russia invaded in February. "Alex felt strongly that Mr. Putin needed to be stopped, it would lead to another world war," his mother told The Telegraph. Huynh reportedly told his pastor he felt "a burden from God to go and help." After they were captured, the two men were featured in propaganda videos broadcast on Russian television, speaking under duress. In one video, "Drueke says he's been repeatedly beaten and, at one point, the two are seen bound, blindfolded, and forced to their knees."

Do the Geneva Conventions cover them or not?

It may depend on whether they formally joined the Ukrainian armed forces. The "norm" is that mercenaries "do not have the right to combatant or prisoner-of-war status," according to the International Committee of the Red Cross, although such fighters "may not be convicted or sentenced without previous trial." But the rules also define a mercenary not simply as a foreign fighter — they have to be "motivated to take part in the hostilities essentially by the desire for private gain."

At least one American official says Drueke and Huynh are entitled to prisoner-of-war status — and that Russia is required to treat the men humanely. "These men have enlisted in the Ukrainian army, and thus are afforded legal combatant protections," Rep. Adam Kinzinger (R-Ill.) said on Twitter. "As such, we expect members of the Legion to be treated in accordance with the Geneva Convention."

The Russians disagree. Indeed, while Drueke and Huynh are the first Americans to be captured fighting for Ukraine, they aren't the first foreigners. In early June, three men — two Britons and a Moroccan — were sentenced to death by judicial authorities in the Russian-allied Donetsk People's Republic, a breakaway region of Ukraine. There had been some talk that perhaps those men could be freed under a prisoner swap with Ukraine, but a Donetsk leader said last week that idea is off the table. The signal is clear: "Legal experts said the trial and draconian sentences appeared calculated as a warning to foreign volunteers not to take up arms against Russia," Dan Bilefsky reports for The New York Times.

What, if anything, is the U.S. government doing to help the Americans?

Hard to know. The State Department is "closely monitoring the situation," the department said in a statement to CNN. "We are in contact with Ukrainian authorities, the International Committee of the Red Cross, and with the families themselves," the statement added. "Due to privacy considerations, we have no further comment on these cases."

What's clear, though, is that the United States government would rather not see any more Americans fall into the hands of the Russians, or be killed fighting for Ukraine. The State Department in March warned U.S. citizens not to travel abroad to participate in the conflict, saying that Americans "may be subject to potential attempts at criminal prosecution and may be at heightened risk for mistreatment." That warning remains in effect, President Biden said last week: "Americans should not be going to Ukraine now,"

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