Death of Indians in Russia-Ukraine war: Status and accountability of mercenaries in international law | Explained

Indian nationals tricked by the promise of lucrative jobs in Russia have died fighting on the frontlines. As states are increasingly hiring private military companies to operate in conflict zones — can they qualify as mercenaries under international law? How can India secure the interests of its overseas migrant workers?

Updated - June 18, 2024 09:44 am IST

Published - June 17, 2024 10:18 pm IST

Indian nationals fighting the Russia-Ukraine war on behalf of Russia.

Indian nationals fighting the Russia-Ukraine war on behalf of Russia. | Photo Credit: SPECIAL ARRANGEMENT

The story so far: On June 11, the Ministry of External Affairs (MEA) acknowledged the tragic loss of two Indian nationals who were recruited by the Russian Army amidst the ongoing conflict between Russia and Ukraine. The MEA in a press statement said that the Indian Embassy in Moscow has strongly raised this issue with the Russian Ambassador in New Delhi and authorities in Moscow, urging for the swift release and return of all Indian nationals currently serving with the Russian Army.

In February, The Hindu reported for the first time that Indians were getting killed while fighting on behalf of Russia in the Ukraine war. Over the past year, nearly 100 Indians have been recruited by the Russian Army after being reportedly duped by agents with the lure of money and a Russian passport. Contracts signed by these recruits stipulate a “no leave or exit policy” before six months of service, with salaries amounting to ₹1.5 lakh to ₹ 2 lakh per month. In January, Russian President Vladimir Putin signed a decree simplifying the process of obtaining Russian citizenship for foreigners who sign a minimum one-year contract with the Army.

At least 30 Indians have so far contacted the MEA and the Indian Embassy in Moscow, seeking help to return. These tragic deaths highlight a disturbing reality — Indians are increasingly falling prey to labour trafficking rackets after being unable to secure jobs domestically, leading to their recruitment as mercenaries in international armed conflicts.

The MEA’s response

The MEA has issued a press note advising Indians to exercise caution while seeking employment opportunities in Russia. In March, the Central Bureau of Investigation (CBI) said that it had filed a first information report (FIR) booking 15 individuals and four companies for their alleged role in the “trafficking of gullible Indian nationals to Russia and duping them for better employment and high-paying jobs.” In May, the central agency divulged that it had made four arrests in the case.

Who are mercenaries?

The distinction between conventional combatants and mercenaries is a fundamental cornerstone of international humanitarian law (IHL). A combatant is typically a member of the armed forces of a party to the conflict, whereas a mercenary is recruited from a third-party state unrelated to the conflict. Mercenaries usually engage in hostilities motivated primarily by personal gain as opposed to the virtues of patriotism associated with regular combatants. Article 47 of Additional Protocol I to the Geneva Conventions (API) envisages six cumulative conditions for a person to qualify as a mercenary. The person i) should be specially recruited locally or abroad in order to fight in an armed conflict, ii) has taken a direct part in the hostilities, iii) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party, iv) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict, v) is not a member of the armed forces of a party to the conflict, vi) 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.

Under customary IHL, being a mercenary itself does not constitute a specific crime. However, if captured, mercenaries are not entitled to prisoner-of-war status or any protected categories under the Geneva Conventions. This allows for their prosecution for the commission of war crimes or other grave breaches of humanitarian law. They may also face charges under the domestic laws of the detaining nation. Nevertheless, mercenaries qualify for humane treatment in accordance with the fundamental guarantees of humanitarian law, as outlined under Article 75 of the API.

However, over time, African states began expressing reservations about this definition, as it only addressed international armed conflicts and overlooked civil wars, where mercenary activities were most prevalent. This led to the adoption of the Organization of African Unity Convention for the Elimination of Mercenarism in Africa in 1977, which included a more expansive definition of mercenaries.

Similarly, in 1989, the United Nations General Assembly (UNGA) adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries that criminalised the recruitment, use, financing and training of mercenaries and also promoted inter-State cooperation in this regard. It also widened the definition of mercenaries as provided under the API to include “persons recruited for the purpose of participating in a concerted act of violence aimed at overthrowing a government or otherwise undermining the constitutional order of a State, or at undermining the territorial integrity of a State.”

Limitations of the existing regime

One of the major challenges of the existing regulatory regime is the lack of a clear, unequivocal, and comprehensive legal definition of what constitutes a mercenary. This is compounded by the fact that the domestic laws of most states do not criminalise mercenary activity. Additionally, the definition outlined under Article 47 of the API does not include within its ambit foreign military personnel integrated into the armed forces of another state — such as the Gurkhas (soldiers from Nepal who have served in the British Army since the 1800s). It also fails to establish mechanisms for holding accountable foreigners employed as advisors and trainers.

Dr. Shubha Prasad, Assistant Professor of International Relations at the Hertie School, Berlin highlighted the emerging trend of private military and security companies (PMSCs) gradually taking over roles previously associated with mercenaries. “These for-profit companies provide a range of services from combat to food supplies for troops. The legal framework surrounding the operations of PMSCs is more loosely defined and relies heavily on a country’s domestic legal capacity,” she said.

For instance, the operations of the controversial Wagner Group in Russia have been increasingly subjected to international scrutiny. Despite being registered as a private entity, it reportedly includes Russian army veterans among its ranks. While the direct participation of the Wagner Group has been evident in the Ukraine-Russia conflict, the Kremlin had never formally acknowledged its connections with it. This has posed challenges in calling for accountability and assessing whether the group qualifies as a mercenary organisation. However, following the military corporation’s aborted attempt at a coup last year, President Putin acknowledged that it had received tens of billions of roubles in public money from the government.

“Signatories to the Montreux Doctrine have committed to stronger state oversight of private military and security actors. States are obliged to check whether PMSCs comply with international humanitarian and human rights laws. However, neither India nor Russia is a signatory to this document. That does not preclude India from imposing tighter restrictions on the recruitment of Indian nationals for such enterprises. Furthermore, we need stronger international legal frameworks to safeguard individuals who are coerced or misled into contracting with PMSCs,” Dr. Prasad added.

The way forward

According to Dr. Prasad, the Indian government should develop a robust policy framework to address distress migration and implement strict measures against human trafficking. “India should adopt a two-pronged approach,” she suggested. “Long-term preventive measures should target the underlying economic factors that are driving people to leave the country, while immediate measures should prioritise educating the public and ensuring strong pre-travel vetting for Indians going to Russia or other conflict zones.”

For instance, she pointed out that pre-travel approval from the MEA for travel to Russia could be a measure to check if there are suspicious cases of human trafficking. This will also enable the identification of companies that are exploiting Indians, she added.

In 2012, neighbouring Bangladesh implemented the Dhaka Principles for Migration with Dignity which provides a roadmap for ethical overseas recruitment of migrants. The Nepal government in January banned its citizens from travelling to Russia or Ukraine for employment after 10 young men were killed and dozens more reported missing while fighting, predominately in the Russian military.

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