International Conventions at the time of the Kremlin

(To Gino Lanzara)

We do as we did once in school when, preparing the math lesson, we studied the final result trying to understand why there was no way to materialize it on the homework sheet. Let's start from the news but with the foresight to remember that while the mathematics book (generally) was not wrong, here doubts and questions remain largely unanswered.

Russia has (also) sent Italy a note relating to the execution of foreign soldiers, referring the reason to their - alleged - nature of mercenaries. Like everything related to the Ukrainian tragedy, there are no actual confirmations or returns, but only news without (at the moment) factual confirmation.

What is certain is that Igor Konashenkov, spokesman for the Russian defense ministry, had to communicate the killing of over a thousand mercenaries foreigners enlisted from Kiev.

What is certain is that, remaining within the sphere of international law, it is necessary to take note of the weakness of rules, regulations and conventions which, with an interpretative system made original and questionable by those who apply it, arbitrarily qualify facts and persons.

Despite everything, however, international law pertains to widely shared realities and environments, and is known and studied by many. The status of the fighters, or of the qualified to exercise war violence, and at the same time being the object of it, is established by precise rules, therefore any foreign fighters, if recruited through diplomats, framed in the regular FA and not motivated by profit, it automatically becomes a legitimate fighter albeit in a foreign state, with all the descending rights up to the return of the bodies for which the forces that hold them should negotiate first - in this specific case - with Kiev for which they were fighting, and then with Italy.

The function performed by the fighter, whatever it may be, qualifies him as a subject of international law, recipient of specific rules; rules to which everyone would theoretically be called to respond.

According to the law, where authentically interpreted, the mercenaries, not even comparable to contractors1, they are something else, falling into different cases.

The feeling is that the Kremlin has intended to exert new forms of political pressure towards the West, appropriately warned both about the outcome of any action that, by anyone undertaken, will be interpreted as hostile, and to remind people that there are prisoners held who can be used as a valuable bargaining chip.

Insist on defining i volunteers like mercenaries against whom no protection is provided, means condemning, until proven otherwise and without appeal, potentially legitimate fighters towards whom it is obliged to apply the rules of international law of war according to the Third Geneva Convention and the Additional Protocols of 19772, considering them prisoners of war; also because, in the effort to communicate the executions, nothing was participated about facts and reasons to be verified and in support of the mercenary qualification. In short, there is a lack of proven and objective evidence regarding recruitment and payment by private organizations that have had a relationship with the fighter descending from a direct engagement and object since 1989 of the union of the UN International Convention against the recruitment, use, financing and training of mercenaries3 who do not and cannot have contact with government clients.

Like it or not, the fighters enlisted in the Ukrainian international legion they are framed within the framework of a legitimate institution. You would therefore not be faced with mercenaries, whose presence in other parts of the world, however, testifies to the failure of the collective system of protection of peace and security, but of volunteers, fighters endowed with a legitimacy that, according to the Convention, cannot enjoy, for example, the mercenaries of Wagner, a Russian paramilitary company, whose motto ("Death is our business. And we like business.") escape any doubts about the type and nature of the services provided, in which the private nature surpasses the institutional one, and in which captains and soldiers of fortune have often guaranteed useful but questionable results4, given that the UN Charter declares that nothing can nullify the intrinsic right to collective or individual defense against an armed attack on a UN member state; the proliferation of low-intensity conflicts, the unwillingness on the part of states to intervene militarily, the asymmetry of frictions, have made it inevitable to resort to private companies. Moreover, the Wagner Group does not officially exist, although its presence has been reported in Donbass alongside the separatists, Syria, Libya, Central African Republic, Mali.

Wagner5 it is a Russian strategic element, although the Kremlin rejects any relationship, and Western analysis considers the company closely tied to Russian intelligence. Curiosity about the UN: during the first half century of its life, the United Nations lived in the shadow of the protection offered by its own neutrality, however more and more affected over time with an increase, starting from the 90s, in the number of victims among the staff, the target of specific and targeted offenses.

In 2001, in order to address the new security risks, the General Assembly set up the UNSECOORD6, an instrument to which to delegate the coordination of UN security in the operational area. Given the many difficulties encountered in terms of finding suitable personnel, in the face of the recurrence of dangerous situations, the UN, by outsourcing, opted for the support offered by the private sector starting from consultancy, training and risk assessment7.

The reluctance to make troops available to guarantee the carrying out of international interposition operations led to the most obvious and effective commercial solution, with a sort of privatization of pacification activities, to the point of hypothesizing a complete outsourcing of missions.

But how can one distinguish, legally and as long as this is possible, the charitable mercenary from the one devoted solely to the profession of arms? How is it possible to understand the difference between the various figures, a difference that has often demonized people as in the case of Fabrizio Quattrocchi?

Beyond the possible acknowledgments aimed at legitimizing precise and binding formally status, according to the provisions of articles 44 and 45 of Protocol I, in the event of doubt as to belonging to the different categories of combatants, anyone who has committed acts of military violence and who has fallen into enemy power, must be able to enjoy the protection provided for prisoners of war until his status has not been ascertained by a special court.

In short, despite the weakness of a conceptually perfect right that needs extensive recognition in order to be able to exercise an effective and valid preventive and repressive action against crimes, in expression initial, the ultimate result presented by the Russian authorities remains uncertain, and without any guarantee of correctness; it being understood that the foreign volunteers are not mercenaries because they are framed in the FA of a party involved, the fact that the principles of law are so blatantly distorted with reasoning with maliciously variable geometry, can only make us reflect.

1 If combatants enjoy the status of prisoner of war, if considered civilians in tow, they enjoy the protection of the IV Geneva Convention. In September 2008 the Montreux Document, although not having binding legal effect and initially signed by 17 nations, represents the first international document dealing with the application of international law to the activities of PMSCs present in the course of armed conflicts. It is now signed by 44 states and the EU.

2 Art. 47 of the 12st Additional Protocol to the Geneva Conventions of 1977 August 11, ratified by Italy with law no. 1985.

3 Ratified by Italy with law 12 May 1995, n. 210; the convention entered into force on October 20, 2001 has limits as regards the definition of mercenary activity and does not take into consideration the category of Private Military Companies.

4 Italy, see maritime safety and the fight against piracy, law 130/2011, legislation that allows the use of private security operators on board Italian merchant ships in the performance of protection functions.

5 Made up of former policemen and former soldiers, Wagner refers to Evgheni Prigozhin, a businessman close to the Russian president, and allows Moscow to pursue specific interests without having to answer for particular actions; Her results, however, are not always up to par; intervened in Libya in 2020 in support of the Haftar offensive, she was put in check by the pro-Turkish militias in support of Fayez al-Serraj. In Mozambique, backward facing ISIS, she was taken over by South African elements. 

6 United Nations Security Coordinator

7 September 11, 2001 heightened fears for the safety of UN personnel, fears materialized starting in 2003 when Special Representative Sergio Veira de Mello and other officials were killed in the bombing of the UN headquarters in Baghdad.

Image: MoD Fed. Russa