U.S. Army veteran Alexander Drueke, 39, and U.S. Marine veteran Andy Huynh, 27, are at risk of being put to death after being captured by Russian and pro-Russian separatist forces in Ukraine this month.
During an interview on Monday, Russian Kremlins spokesman Dmitry Peskov said Drueke and Huynh are “soldiers of fortune” not eligible for protection under the Geneva Conventions. In a subsequent press briefing on Tuesday, Peskov refused to rule out the death penalty for the two Americans, saying “We can’t rule anything out, because these are court decisions,” Reuters reported.
Russia imposed a moratorium on the death penalty in 1996 and has maintained it ever since. That moratorium, however, does not extend to the so-called Luhansk People’s Republic (LPR) or Donestk People’s Republic (DPR) — a pair of pro-Russian separatist areas of eastern Ukraine, that Russia declared sovereign days before launching its invasion of Ukraine. Earlier this month, the DPR handed down death sentences to two British nationals and a Morrocan national who traveled to Ukraine as volunteer fighters and who were subsequently captured.
A court in the DPR region declared the British and Morrocan nationals guilty of “mercenary activities and committing actions aimed at seizing power and overthrowing the constitutional order” in the separatist region.
Peskov’s descriptions of Drueke and Huynh as “soldiers of fortune” suggest the two captured Americans will be similarly tried and punished as mercenaries.
It also appears likely that Russia will let proceedings go forward against Drueke and Huynh in one of the separatist regions. In his Tuesday remarks, Peskov said, “We are talking about mercenaries who threatened the lives of our service personnel, and not only ours, but also the service personnel of the DPR and LPR.” Peskov has also said the Kremlin did not know the locations of Drueke and Huynh, raising the possibility that their captors are actually Russian proxies in the DPR or LPR areas rather than direct authorities of the Russian government.
Under the Geneva Conventions, mercenaries are not lawful combatants subject to protections afforded to prisoners of war serving in a regular military capacity. While lawful combatants can’t be prosecuted for participating in armed conflict, non-lawful combatants can be prosecuted for attacking and killing another nation’s troops.
The Geneva Conventions do state that foreign volunteers in another nation’s forces aren’t necessarily acting as mercenaries. For instance, the famous Nepalese Ghurka units of the British armed forces and the members of the French Foreign Legion are not considered mercenaries under the Geneva Conventions and could expect the rules and practices of the conventions to apply. Many U.S. and international volunteers who have gone to fight in Ukraine have joined through the International Legion of Ukraine. Signing up to join the International Legion of Ukraine involves applying for and signing an enlistment contract with the Ukrainian military.
Even if Drueke and Huynh did enlist in the Ukrainian armed forces through their international legion, their captors may simply ignore this fact in the pursuit of a death penalty prosecution. Denis Krivosheyev, the deputy director of Amnesty’s Eastern Europe and Central Asia department, has said the three captured British and Morrocan nationals were members of the Ukrainian regular forces and should have been protected from prosecution for participating in armed hostilities.
During a White House press briefing on Tuesday, National Security Council (NSC) Coordinator John Kirby said “it’s appalling that a public official in Russia would even suggest the death penalty for two American citizens that — that were in Ukraine.”