2. International humanitarian law

The label ‘mercenary’ is often given by the media to all foreigners fighting in Ukraine,Footnote ¹³ and the Russian Government has stated that it regards any non-nationals fighting for Ukraine as mercenaries.Footnote ¹⁴ Article 47(2) of Protocol Additional to the Geneva Convention of 19 August 1949, and relating to the Protection of Victims of International Armed Conflicts (API), to which both Russia and Ukraine are parties, provides that a person is a ‘mercenary’ where that person:

1. i. is specially recruited locally or abroad, in order to fight in an armed conflict and in order to take a direct part in the hostilities;

2. ii. does, in fact, participate directly in the hostilities;

3. 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;

4. iv. is neither a national of a party to the conflict nor a resident of a territory controlled by a party to the conflict;

5. v. is not a member of the armed forces of a party to the conflict; and

6. vi. has not been sent by a State that is not a party to the conflict on official duty as a member of its armed forces.Footnote ¹⁵

Article 47(1) API provides that mercenaries are not entitled to combatant status, which means that mercenaries are not protected from prosecution and remain liable for conviction and imprisonment, nor are they entitled to prisoner of war (POW) status on capture. This position is reflected in customary international law.Footnote ¹⁶

Forced fighters clearly do meet some of the criteria under Article 47(2) API. First, while these fighters did not know that they were being recruited in order to fight in an armed conflict, they were nevertheless typically recruited abroad, by agents, in order to fight in a conflict and in order to take a direct part in hostilities, thereby arguably satisfying criterion (i). Azad Yousuf Kumar, for example, was recruited by an agent who he had met through YouTube to whom he paid 300,000 rupees (£3,000) for what he thought was a job as a domestic worker in Dubai,Footnote ¹⁷ and Nandaram Pun, from Rolpa in Nepal, was recruited by an agent who he met on social media for what he thought was a job in Germany.Footnote ¹⁸ These are just two examples among many others.Footnote ¹⁹ Second, the fighters do actively take part in hostilities (criterion (ii)): as Hemil Mangukiya told his family, he was ‘taken to the frontlines, where he was made to dig trenches, carry ammunition and operate rifles and machine guns’.Footnote ²⁰ Third, the fighters are not nationals of either Ukraine or Russia—i.e. the parties to the conflict—nor have they been sent by States that are not parties to the conflict on official duties as members of that State’s armed forces (criteria (iv) and (vi)).Footnote ²¹

It is more difficult to demonstrate that the other criteria under Article 47(2) API are satisfied. The fighters under consideration here are undoubtedly driven by a desire for private gain (criterion (iii))—they leave their countries of origin on the promise of jobs, salaries and sometimes residency permits and/or citizenship.Footnote ²² However, the fact that they are misled into fighting in the ongoing armed conflict between Russia and Ukraine means that their desire for private gain cannot be said to be what motivated them to take part in hostilities (as required by criterion (iii) in Article 47(2) API set out above). These fighters have no such motivation to take part in hostilities given their lack of awareness that they were going to Russia, or their understanding that they were going for a particular job.Footnote ²³ It is also unclear whether the compensation given to these fighters—or promised in the documents which they sign (albeit without understanding what they say)—is in excess of what is promised or paid to combatants of similar ranks and functions in the Russian armed forces. There are frequently practical difficulties in finding out whether a person is being paid, and even more so whether they are being paid more than other, similarly positioned combatants.Footnote ²⁴ Given that there are reports that even those fighters from abroad who knowingly go to Russia to fight in the war are being deprived of their promised salaries,Footnote ²⁵ it seems unlikely that that forced fighters are being paid in excess of other combatants of a similar rank.

Forced fighters are also unlikely to meet the definition of mercenary on the basis that they likely are, technically, members of the armed forces of a party to the conflict (as required by the criterion (v) in Article 47(2)). The fighters are reportedly forced to sign documents, in Russian, which commit them to the Russian armed forces for a period of time. Mohammad Yousuf Kumar, whose son ‘was happy to have found a job in Dubai’, said: ‘[t]hey were asked to sign documents written in Russian. The Russians threatened to kill them if they didn’t sign. My son doesn’t understand Russian. How could he know what was written on the paper?’Footnote ²⁶ The practice of compelling foreign fighters to sign up to the armed forces of a party to the conflict is well known as a tactic deliberately employed by some States to avoid their fighters being labelled as mercenaries.Footnote ²⁷

On balance, it seems that forced fighters are not mercenaries. If the fighters have not joined the Russian armed forces, then they are likely civilians;Footnote ²⁸ though any protection that comes from that status (such as not being legitimate targets) is lost while they take direct part in hostilities.Footnote ²⁹ Given that these fighters are directly engaged in the armed conflict on the front lines, they are unlikely to be considered civilians.

If these fighters have joined the Russian armed forces (albeit unknowingly or under threat or coercion) as reports seem to indicate, then they will be privileged combatants. Privileged combatants have the right to participate directly in hostilities.Footnote ³⁰ This means that they are legitimate targets in conflict, but that they are free from prosecution for their mere participation in hostilities. Other protections flow from the status of combatant—the most significant being their entitlement to POW status if they fall into the hands of the enemy.Footnote ³¹ Article 45(1) API provides that should there be any doubt as to whether a person is entitled to POW status, that person shall have the status and be protected by Geneva Convention (III) relative to the Treatment of Prisoners of War (Third Geneva Convention) and API until the status is determined by a competent tribunal. That forced fighters are being treated as privileged combatants seems to be reflected on the ground in some cases, with the Nepalese Foreign Ministry confirming in early 2024 that four Nepali fighters were, at that time, being held as POWs by Ukraine.Footnote ³²

These protections, and particularly that of POW status, are undoubtedly important for forced fighters, but they apply to all combatants regardless of their individual circumstances—they do not acknowledge the specific vulnerability of these fighters or the fact that they were misled into being combatants. It is of course significant that forced fighters would enjoy POW status if captured, and the status removes them from further participation in the conflict and ensures their humane treatment while in captivity. However, this protection, by definition, only applies in the very specific circumstance of capture by enemy forces. Many of these fighters will be (and have been) killed in the conflict rather than being captured,Footnote ³³ a likelihood which seems to increase given the reports that forced fighters are sometimes given only two weeks of military training and are pushed to the front line as ‘cannon fodder’.Footnote ³⁴ As one Nepali soldier, Ratna Karki, described it, ‘[t]he Russians just commanded us from behind. We were like their shield’.Footnote ³⁵ Those who are neither captured nor killed will continue to be forced to fight.

The status of privileged combatant provides more protections for forced fighters than the status of mercenary, but neither status adequately captures the fact that these fighters have been misled into combat nor does it provide them with sufficient or effective protection. Section 3 suggests that IHRL might instead facilitate this.

3. International human rights law

The International Court of Justice has held on several occasions that IHRL continues to apply alongside and in a supplementary manner to IHL,Footnote ³⁶ and the International Criminal Tribunal for the Former Yugoslavia described in Prosecutor v Kunarac how the two bodies of law are complementary, noting that ‘in terms of goals, values and terminology’, IHRL ‘is generally a welcome and needed assistance to determine the content of customary international law in the field of humanitarian law’.Footnote ³⁷ This article now examines whether IHRL can assist in providing greater protection in armed conflict to forced fighters than IHL alone can provide. Specifically, it analyses whether these fighters could potentially be classified as victims of modern slavery. ‘Modern slavery’ is a policy term used ‘to refer to contemporary forms of slavery, including slavery, servitude, human trafficking, forced labour and child labour’.Footnote ³⁸ Protection against these practices is contained in international human rights treaties to which Russia and/or Ukraine are party.Footnote ³⁹

Russia and Ukraine have both ratified the International Covenant on Civil and Political Rights (ICCPR), Article 8(1)–(3)(a) of which provides, in relevant part, that: (1) ‘[n]o one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited’; (2) ‘[n]o one shall be held in servitude’; and that (3) ‘[n]o one shall be required to perform forced or compulsory labour’.Footnote ⁴⁰ Article 4(2) ICCPR further provides that no derogation from Article 8(1)–(2) is permitted. Article 4(1) of the European Convention of Human Rights (ECHR), to which Ukraine is a State Party, provides in near identical terms to Article 8 ICCPR that ‘[n]o one shall be held in slavery or servitude’.Footnote ⁴¹ Article 4(2) ECHR provides that ‘[n]o one shall be required to perform forced or compulsory labour’. Similarly, Article 15(2) ECHR provides that States cannot derogate from Article 4(1).

The argument of this article is not that forced fighters are ‘slaves’ nor is it that forced fighters are victims of forced or compulsory labour. Slavery is ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.Footnote ⁴² There is no evidence that rights of legal ownership are being exercised over forced fighters. With respect to forced or compulsory labour, both the ICCPR and the ECHR further specify in the abovementioned articles that the phrase ‘forced or compulsory labour’ does not include service of a military character.Footnote ⁴³ This exception is directed at compulsory military service (i.e. conscription)Footnote ⁴⁴ so it would be unlikely to capture the situation of fighters who are misled into military service. Nevertheless, given that military service is an exception, the right to be free from forced or compulsory labour is unlikely to apply in this context and thus is not considered in this article. No such military exception applies to the right to be free from slavery or servitude.Footnote ⁴⁵

The argument of this article is that forced fighters might be classified as victims of servitude and/or human trafficking. According to Allain, servitude should be understood as ‘such exploitation which does not manifest powers which would normally be associated with ownership, whether de jure or de facto’.Footnote ⁴⁶ Nowak’s commentary describes the travaux préparatoires to the ICCPR as indicating that while there was an effort to limit the term ‘slavery’ in the article, the term ‘servitude’ was to apply ‘to all conceivable forms of dominance and degradation of human beings by human beings’.Footnote ⁴⁷ The European Court of Human Rights (ECtHR) held in Siliadin v France that servitude means ‘an obligation to provide one’s services that is imposed by the use of coercion’.Footnote ⁴⁸ In that case, in finding that the applicant was a victim of servitude, the ECtHR pointed to the fact that she was vulnerable and isolated, with no means of escape from her situation, and that she was entirely dependent on those keeping her as a domestic servant.Footnote ⁴⁹ In CN & V v France, the ECtHR held that the difference between forced or compulsory labour and servitude is, at least in part, that servitude ‘consists in the feeling of the victims that their condition is unchangeable and that the situation is not likely to improve’.Footnote ⁵⁰

Forced fighters are vulnerable and isolated, without the capacity to escape the situation which they are in. Numerous fighters have reported having their passports taken away from them on signing up to the Russian forces, and many have also reported having their phones taken away, leaving them without any capacity to contact their families.Footnote ⁵¹ Binil Babu and his travel companion, Jain Kurian, for example, thought that they were going to Poland for new jobs. They noticed that their passports were only issued with Russian visas, not Polish ones, and were told by an agent that they would need to transit through Moscow on their way to Poland. When the men arrived in Moscow, they were told that the jobs in Poland had fallen through and that ‘non-combat’ roles in the Russian army were the best option for them. As Babu’s family describe it, Babu and Kurian were then ‘driven to a military base in Tula, three hours south of Moscow, and stripped of their phones and passports … [and] were made to sign contracts … that were clearly for military service, but which they did not understand’.Footnote ⁵²

The removal of passports and phones is likely to contribute to these fighters’ impression that their condition is unchangeable, which is confirmed by the fact that soldiers have reported being unable to leave and others who have tried to escape have not been able to. One soldier reported that when he and six other Nepali men tried to escape, they were ‘caught and badly beaten by Russian soldiers’.Footnote ⁵³ Others reported that they were jailed when caught trying to leave the army.Footnote ⁵⁴

Coercion is demonstrated by the fact that these fighters are met with violence if they do not sign the documents to commit them to the army. Raja Bano, whose son had thought he was going to Dubai for work, describes how he had been ‘locked in a room by Russian military for several days after he refused to join the army’ and that ‘[t]he Russians threatened to kill them if they didn’t sign’ documents committing them to the army.Footnote ⁵⁵ Domination is demonstrated by the conditions that these fighters are held in. As noted in Section 2, forced fighters are used as cannon fodder and, as one soldier reported, once sent to the front lines in Ukraine ‘we didn’t have enough food and were beaten by the Russians’.Footnote ⁵⁶

The right to be free from slavery, servitude and forced or compulsory labour in the ICCPR and the ECHR has been interpreted to also contain a right to be free from human trafficking.Footnote ⁵⁷ The definition of human trafficking that both instruments have drawn upon is that of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol).Footnote ⁵⁸ Both Russia and Ukraine have ratified the United Nations Convention against Transnational Organized Crime as well as the Palermo Protocol. Article 3(a) Palermo Protocol states:

The ECtHR in J v Austria identified human trafficking as commonly including ‘the treatment of human beings as commodities, close surveillance, the circumscription of movement, the use of violence and threats, poor living and working conditions, and little or no payment’.Footnote ⁵⁹

Forced fighters may be classified as victims of human trafficking. There is ‘recruitment’ of persons: numerous accounts describe how agents recruited the fighters in their countries of origin, often via social media.Footnote ⁶⁰ Some also report that these agents provided transportation to Russia or the conflict zone. The families of Azard Yousuf Kumar and Zahoor Ahmad Sheikh describe how ‘… they had been lured to Dubai on the promise of jobs before being transported to Russia by fraudulent recruitment agencies … [where] they were ordered to fight as mercenaries for Russia on the border with Ukraine’.Footnote ⁶¹ This recruitment is achieved by deception—namely, the promise of a different type of work or benefit (such as a university place)Footnote ⁶² and the agents often receive large payments for such recruitment. Babu, for example, reported paying £1,700 in fees to an agent for his promised job in Poland,Footnote ⁶³ while Kumar paid £3,000 to an agent for his promised job in Dubai.Footnote ⁶⁴ The recruitment (and, where relevant, transportation), by deception, are undertaken for the purpose of exploitation. Agents provide the services of soldiers in the Russian armed forces, building up those armed forces fighting in Ukraine, without risking Russian lives.Footnote ⁶⁵

The actions of the Russian forces in receiving these fighters also amount to human trafficking under the above definition. The receipt of forced fighters is achieved by the threat or use of violence, abduction and deception, such as making the fighters sign documents in Russian and keeping them in poor conditions. Again, it is done for the purpose of exploitation, as it involves the provision of labour or services (by way of soldiers).

Forced fighters are therefore capable of classification—not just as combatants—but also as victims of modern slavery and, specifically, of slavery-like practices such as servitude and human trafficking. Section 4 argues that this classification can lead to further, more effective, protections for these fighters, in addition to those that flow from combatant status.

4. State responsibility and remedy

Having established that the situation of forced fighters falls within the protective scope of IHRL, discussion now turns to how this responsibility arises in relation to Russia and Ukraine, and what further protections might be owed to these fighters as a result.

The ICCPR and customary international law impose two kinds of obligations with respect to modern slavery: first, to not commit modern slavery; and, second, to prevent, protect and punish modern slavery offences.Footnote ⁶⁶

Russia has arguably breached the obligation not to commit modern slavery. State involvement in modern slavery usually occurs through State policy or through the acts or omissions of State organs or officials or of non-State actors exercising public functions.Footnote ⁶⁷ Such involvement can be attributed to the State by way of Article 4 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).Footnote ⁶⁸ Article 4 ARSIWA provides that ‘the conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State’. Russian State organs or officials of the State have directly committed or at least facilitated the commission of modern slavery. It is the Russian armed forces that receive these fighters, and that coerce them into signing documents committing them to serve in the armed forces. By receiving and using forced fighters, the Russian forces also drive the recruitment of the fighters through agencies, thus facilitating the agents in the commission of modern slavery. Webb and Garciandia observe that the confiscation of passports and the use of threats and violence are common indicators of a State policy of modern slavery,Footnote ⁶⁹ both of which, as indicated in Section 3, have occurred in this context.

It is also clear that Russia is in breach of its positive obligations under the ICCPR to prevent, protect and punish the subjection to servitude and human trafficking. The Human Rights Committee’s General Comment No 31 provides that a violation of the ICCPR may arise ‘as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’.Footnote ⁷⁰ Russia has actively permitted agents to funnel these fighters into its territory by, for instance, issuing visas to them,Footnote ⁷¹ and has, at a minimum, failed to exercise due diligence in the recruitment process or to take appropriate steps to prevent that recruitment. The Russian Government is aware that these fighters are being misled into fighting in its armed forces given that the Governments of Sri Lanka, India and Nepal have made representations to it on the issue.Footnote ⁷²

Ukraine is also subject to these two obligations under the ICCPR and customary international law and, additionally, under the obligations arising under the ECHR with respect to modern slavery. Most relevantly, the ECtHR has found that there is an obligation on States under the ECHR to protect victims or potential victims from modern slavery where State authorities ‘were aware or ought to have been aware’ of an arguable or prima facie claim that that an identified individual had been or was at real and immediate risk of being subjected to treatment in breach of Article 4 ECHR.Footnote ⁷³ With respect to human trafficking specifically, the ECtHR has held that States Parties are under a duty ‘to identify and provide substantive assistance and support to [potential] victims of human trafficking’,Footnote ⁷⁴ even where the trafficking occurs in a different State. Accordingly, if forced fighters fall into Ukrainian captivity as POWs, an obligation will arise on Ukraine under the ECHR to identify the fighters as potential victims of human trafficking and to protect them.

The value of showing that Russia and Ukraine have breached their obligations with respect to modern slavery under international human rights treaties is that under those treaties, duties of continued performance, cessation and non-repetition arise for States and do so before the end of hostilities.Footnote ⁷⁵ This means that Russia is under an obligation to cease receiving and using forced fighters into its armed forces, as well as an obligation to continue in the performance of its obligations under the ICCPR, requiring Russia to undertake appropriate measures to prevent the recruitment of forced fighters by agents. As a practical matter, one such measure might involve immigration restrictions to non-nationals whose visas have been organised by recruitment agencies. These duties mean that Ukraine must identify POWs who are potentially forced fighters and provide protection and support to those fighters.

Significantly, for the fighters already in Russia, and in Ukrainian captivity, State responsibility also entails duties to provide effective remedies.

Article 2(3)(a) ICCPR provides that each State Party to the Covenant undertakes ‘[t]o ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy’.Footnote ⁷⁶ Article 13 ECHR similarly provides that ‘[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy’.Footnote ⁷⁷ The HRC in its General Comment No 31 provides that ‘[s]uch remedies should be appropriately adapted so as to take account of special vulnerability of certain categories of person’ and that, ‘appropriate reparation can involve restitution, rehabilitation and measures of satisfaction’.Footnote ⁷⁸

In the context of modern slavery and, in particular, of human trafficking, restitution is emphasised as a key component of an effective remedy. In her August 2014 report to the UN General Assembly, the Special Rapporteur on Trafficking in Persons, especially Women and Children, set out basic principles on the right to an effective remedy for victims of trafficking in persons, one of which was that ‘States shall provide restitution that, whenever possible, restores the victim to the original situation before the trafficking’, including by way of the ‘safe and voluntary repatriation to one’s place of residence’.Footnote ⁷⁹ Article 8 Palermo Protocol (as well as Article 16(1) of the Council of Europe Convention on Action against Trafficking in Persons,Footnote ⁸⁰ to which Ukraine is a party) also recognises an obligation on States to safely repatriate victims ‘without undue and unreasonable delay’.Footnote ⁸¹

Forced fighters want to be removed from the ongoing armed conflict. They want to ‘go home’.Footnote ⁸² IHRL can, in capturing the status (and vulnerability) of these fighters as victims of modern slavery, thus provide the remedy of repatriation.

This remedy does not unreasonably burden States, and any concern on the part of Ukraine, as the detaining power, that repatriated fighters could return to fighting can be addressed by receiving States undertaking that repatriated fighters will not be returned to Russia.Footnote ⁸³ There is already precedent for these kinds of agreements in IHL, specifically with respect to the repatriation of seriously wounded and sick POWs.Footnote ⁸⁴ Importantly, IHRL can provide this remedy of repatriation before the end of hostilities, in contrast to Article 118 Third Geneva Convention. Article 118 Third Geneva Convention provides that ‘[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities’.Footnote ⁸⁵ Following the end of the Korean War, there were two main interpretations of Article 118 put forward by States: either as a right held by a State to have its combatants repatriated; or as a right held on the part of POWs to be repatriated.Footnote ⁸⁶ Practice has reflected the second interpretation, with the right being interpreted as a ‘right not to be repatriated by force’ in the Korean War and, subsequently, as a ‘right of free choice’ held by POWs.Footnote ⁸⁷ As Meron has argued, the interpretation of Article 118 Third Geneva Convention ‘has drastically modified its categorial language, steering it to respect for individual autonomy’.Footnote ⁸⁸

Article 118 Third Geneva Convention means that once hostilities have ended in the armed conflict between Russia and Ukraine, POWs who have been detained in Ukraine will not be automatically repatriated to Russia and will have a choice as to whether they are repatriated to their countries of origin. Article 118, therefore, undoubtedly provides an important protection for forced fighters, but it only does so in circumstances where the fighters have become POWs and where hostilities have ended.