THE LEGAL STATUS OF INTERNATIONAL VOLUNTEERS WHO HAVE VOLUNTEERED TO COMBAT IN THE UKRAINIAN WAR - CAN THEY ENJOY THE PRIVILEGES OF PRISONERS OF WAR (POW)?

THE LEGAL STATUS OF INTERNATIONAL VOLUNTEERS WHO HAVE VOLUNTEERED TO COMBAT IN THE UKRAINIAN WAR - CAN THEY ENJOY THE PRIVILEGES OF PRISONERS OF WAR (POW)? ~ by Olubor Uyi Esq.
Since the commencement of the Russian invasion in Ukraine. We have witnessed a situation where parties to the conflict have called upon volunteers across the world to enlist in their respective armed forces to participate in the ongoing war.
This demand has resulted in a situation where a lot of persons across the world are volunteering to participate in the war. Just last week, it was reported that about 150 able-bodied Nigerian youths approached the Ukrainian embassy with the aim of joining the Ukrainian army in the fight against the Russians.
However, this demand from the parties has awoken another age long debate whether:
1. Volunteers of this nature, can they be designated as mercenaries?
2. If we accept that, they are mercenaries. Would they be entitled to the rights and privileges as set out under the Geneva convention of 1949?

First, of all, we would start by identifying who a mercenary is. The United Nations Convention against the Recruitment, Use, Financing and Training of Mercenaries, 2001. Article 1 of it defines a mercenary as one who is specially recruited locally or abroad in order to fight in an armed conflict; Is motivated to take part in the hostilities essentially by the desire for private gain; Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict, nor a member of the armed forces of a party to the conflict; and has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.
 Having taking a look at the definition of whom a mercenary is. It would be safe to label international volunteers in the current conflict as mercenaries if they're neither citizens nor residents of either of the warring parties, nor are they representing their respective countries in the current conflict(thus, members of the Belarusian armed forces can't be designated as mercenaries because they are representing the Belarusian armed forces in the ongoing war even though their country is not originally a party to the conflict) Article 5 of this convention completely prohibits the recruitment of mercenaries. And designates it as an offence. However, it doesn't state whether, if Mercenaries captured during war situations, should be entitled to the privileges of Prisoners of War. Such as rights to humane treatment from the hostile Government that captured them, right against reprisals, insults and public curiosity. Article 1 of the Geneva convention of 1949 by referencing the Hague convention of 1907 itemizes those who can qualify as Prisoners of War during conflict situations. By stating that the laws, rights, and duties of war apply not only to armies but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
Although, internationally there is no consensus on the status of mercenaries involved in international conflicts. However, as per the present Ukraine-Russia conflict. I hold the belief that foreign volunteers should enjoy the status of Prisoners of War in situations when they are captured by hostile combatants. So long as they fulfill the above provision of article 1 of the Geneva convention of being under the command of a person responsible for his subordinates, if they are putting on a fixed recognizable emblem, if they don't carry arms clandestinely, as well as respecting other laws and custom of war such as refraining from acts of perfidy.
In a nutshell, my opinion is that in the ongoing conflict, parties should accord captured armed officers all the rights of Prisoners of War and this should extend also to the volunteers . So long as they have not breached the various laws and customs of war.

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