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At Smerconish, Prof. Claire Finkelstein evaluates Russia’s threat to treat foreign fighters as war criminals

March 16, 2022

“Russia’s claim that such volunteers may be prosecuted as war criminals simply by virtue of joining the fight is an even grosser distortion of the law of war.”

The following is an excerpt from “Russia Is Threatening to Treat Foreign Fighters as War Criminals: Can Countries Not Party to Hostilities Protect Their Citizens?,” written by Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy, and Geoffrey Corn, Gary A. Kuiper Distinguished Professor of National Security Law at South Texas College of Law Houston, and published at Smerconish:

Following a call to arms by Ukrainian President Volodymyr Zelensky, at least 16,000 volunteers from 52 countries around the world are arriving in Ukraine to join the ranks of its defenders. Official Russian communications were quick to threaten this modern-day foreign legion with a nasty fate if captured. One tweet incorrectly called such foreign fighters “contractors” and said that “All such mercenaries are not combatants under intl humanitarian law and not entitled to prisoner of war status.” Last Thursday, Russian Defense Ministry spokesman, Igor Konashenkov, upped the ante by saying, “At best, they can expect to be prosecuted as criminals.” … 

However, no one should underestimate Russia’s willingness and ability to advance disinformation narratives built on a foundation of distorted assertions about international law. Russia’s dissemination of false information about the status of foreign nationals fighting on behalf of Ukraine must not be allowed to create confusion about their rights and Russia’s responsibilities under international law. Indeed, Russia’s disinformation campaign underscores how critical it is for all nations whose citizens are joining the fight to understand the laws of war relating to the legal status and protection of captured individuals. In addition, it is of the utmost importance that Ukraine does not submit to possible temptation to take the proverbial bait and mistreat captured Russians in retaliation for likely Russian abuses. 

Finkelstein is the founder and academic director of the Center for Ethics and the Rule of Law (CERL), a non-partisan interdisciplinary institute affiliated with the University of Pennsylvania’s Annenberg Public Policy Center (APPC). She is a distinguished research fellow at APPC and a senior fellow at the Foreign Policy Research Institute (FPRI). Her current research addresses national security law and policy and democratic governance with a focus on related ethical and rule of law issues.

Corn is a retired U.S. Army Lieutenant Colonel who served as the Army’s senior law of war advisor.

Read more at Smerconish.