As Russia Threatens Captured Vets, U.S. Invokes Laws of War

The Biden Administration vented out after it was revealed that two American soldiers captured in Ukraine by pro-Russian troops had been convicted of war crimes. They could be sentenced to death.

The State Department said Tuesday that U.S. officials are in talks with Russian authorities about the two men, Alexander Drueke, 39, and Andy Huynh, 29, who had volunteered to fight with the Ukrainian government’s forces. According to the U.S., the family members of the men are in contact with the International Committee of the Red Cross and Alabama natives.

Pro-Russian forces detained Drueke, Huynh while they were fighting in east Ukraine. This raises questions about the fate of the thousands of volunteers from other countries currently serving in that war-torn nation. Legal scholars and human rights experts agree that foreign fighters under Ukrainian military command have the right to be held in prisoner-of war (POW) status. This is consistent with long-standing Geneva Conventions rules and should not lead to prosecution.

But Russian officials have instead labeled all foreigners who fight alongside the Ukrainians “mercenaries,” a legal term that means many international protections do not apply. Earlier this month, two British men and a Moroccan national caught fighting in Ukraine were sentenced to death by firing-squad for “war crimes” in a legal process that was widely condemned as a “show trial” in the pro-Russian breakaway republic of Donetsk.

These men, who had been in Ukraine for more than one year, are allowed to appeal the verdicts within a month. But even other foreigners, like Drueke and Huynh, who were part of Ukraine’s International Legion should also be entitled to POW status, international law experts say. “If they were incorporated into the Ukrainian military, then they would be entitled to POW status,” said Laura Dickinson, a professor at the George Washington University Law School. “Even if they were not, if they were carrying arms openly, then in many cases they would be entitled to POW status.”

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Every fighter claiming to be a legal combatant is entitled to a hearing to learn if their conduct in any way violated the law of war, such as failing to wear a uniform or some form of insignia while engaging in military operations, said Mary Ellen O’Connell, a professor of international law at the University of Notre Dame. “U.S. officials are right to insist that Russia comply with international law, which says that no person in the power of a foreign enemy during armed conflict may be mistreated,” she said. “It protects due process in any type of trial or hearing.”

If there is doubt about their status as POWs, under the terms of the Geneva Conventions, they are entitled to a determination by a competent tribunal, said Rachel Denber, deputy director of Human Rights Watch’s Europe and Central Asia division. “They should be presumed to be POWs and with all the rights of a POW until unless they’re proven otherwise,” she said. “And the process of being proven otherwise must be through a fair, competent tribunal hearing. To deny someone due process is a grave breach of the Geneva Conventions.”

Evidently no such tribunal has been established. Dmitry Peskov (chief Kremlin spokesman) said Monday in an interview that an inquiry into Drueke & Huynh was ongoing. However, that didn’t stop Peskov from calling both men “soldiers of fortune.” Drueke and Huynh were involved in shelling and firing on Russian forces, he said, and therefore must be “held responsible for the crimes they have committed.”

These comments were made by Moscow for the first time about American detainees. They came just days after Russian media published video showing the men blindfolded, bound and fearing execution. When asked whether they might face the death penalty, Peskov replied he “cannot guarantee anything” and that it “depends on the investigation.”

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Peskov’s statements were condemned in Washington. “It’s appalling that a public official in Russia would even suggest the death penalty for two American citizens that were in Ukraine,” National Security Council spokesman John Kirby told reporters at the White House on Tuesday. He stated that the government is still gathering data.

European officials accused Russia of trying distract from real war crimes it is committing in Ukraine. They believe Moscow may be trying to lay the groundwork for a prisoner exchange for Russian soldiers who have been detained and convicted of rape, murder or other violent crimes during Russian President Vladimir Putin’s nearly four-month-old invasion of Ukraine. One Ukrainian court in May sentenced a Russian soldier who was captured to death for the shooting of a civilian aged 62 years old.

During an unannounced trip to Kyiv on Tuesday, U.S. Attorney General Merrick Garland met with Ukraine’s top prosecutor and announced a War Crimes Accountability Team. “There is no hiding place for war criminals,” he said. “Working alongside our domestic and international partners, the Justice Department will be relentless in our efforts to hold accountable every person complicit in the commission of war crimes, torture, and other grave violations during the unprovoked conflict in Ukraine.”

After enduring a Russian-led offensive for several weeks in Kyiv’s capital city, the Ukrainian army repelled the attack. This surprised the more-equipped Russian forces. However, the fighting in eastern Ukraine is intensifying. According to the United Nations Human Rights Office, at least 4.597 civilians including 300 children have been killed in Ukraine as of Feb. 24. However, the UN says the actual death toll could be much greater.

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