Aday after the Kremlin said two American veterans captured by pro-Russian forces in Ukraine had committed war crimes and could face the death penalty, the Biden Administration expressed outrage and called on Russia to abide by international law.
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. The U.S. is also in touch with the families of the two men, both of whom are from Alabama, and with the International Committee of the Red Cross, the department said.
Drueke and Huynh were detained by pro-Russian forces while fighting in eastern Ukraine, and their case raises concerns about the status of thousands of foreign volunteers currently fighting in the war-torn country. Human rights observers and legal scholars say foreign fighters serving under Ukrainian military command are entitled to prisoner-of-war (POW) status and according to long-standing rules laid out by the Geneva Conventions should not be prosecuted.
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.
Those men had spent more than a year in Ukraine, reportedly as part of the Ukrainian marines, and have a month to appeal their verdicts. 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.”
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.”
Apparently no such tribunal has taken place. Chief Kremlin spokesman Dmitry Peskov conceded Monday that an investigation into Drueke and Huynh was still underway in an interview with NBC News. 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.”
The comments, which were the first from Moscow about the detained Americans, came days after Russian media released video that showed the men bound, blindfolded and voicing fears of execution. When asked whether they might face the death penalty, Peskov replied he “cannot guarantee anything” and that it “depends on the investigation.”
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. The administration is still gathering information, he said.
European officials have accused Russia of trying to distract from what they say are real war crimes that its forces are 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. In May, a Ukrainian court sentenced a captured Russian soldier to life in prison for shooting and killing an unarmed 62-year-old civilian.
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.”
The Ukrainian military beat back a weeks-long Russian offensive in and around the capital, Kyiv, surprising the better-equipped Russian forces, but now faces an escalating fight in the east of the country. At least 4,597 civilians, including more than 300 children, have been killed in Ukraine since Feb. 24, according to the United Nations human rights office, though the agency acknowledges the real death toll is likely much higher.