In a move described as “appalling” by Downing Street and the White House, Kremlin Spokesman Dmitry Peskov said in an interview this week that he “could not rule out” the execution of two British and two American citizens. All were captured by Russian or Russian-proxy forces, while the Americans and Brits were volunteering with pro-Ukrainian forces.

The captured men are believed to be jailed in the so-called “Donetsk People’s Republic” (“DNR”) in the occupied Donetsk region. Despite clear ties between the Kremlin and the Donetsk separatist leaders, Sergei Lavrov, Russia’s foreign minister, claimed that he had “no ability to influence the sentences” as “the trials are being held in accordance with legislation of the [DNR]” and because “the crimes were committed on DNR territory.”

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Earlier this month, a DNR court sentenced several soldiers to execution by firing squad. This has convinced onlookers that the Americans, whose trial is expected to begin soon, will face a similar fate in a trial-by-verdict-only. Despite their families’ pleas, little progress has been made in softening the DNR’s stance.

The legal complexities

A sticking point between London and Donetsk is on the legal basis of the trial: According to the British soldiers and their families, the men were formally Marines of the Ukrainian military/ However, the DNR charged the men as being mercenaries. The distinction is key as international law generally forbids the execution of prisoners of war (POWs) – but the same guarantee is not afforded to mercenaries.

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British Foreign Secretary Liz Truss referred to the Donetsk court’s decision as “a sham judgment with absolutely no legitimacy.” This leads to the second major point of contention in the case.

Steve Nix, a Washington, DC lawyer and expert on post-Soviet politics, agreed and said that “the DNR has absolutely no legitimacy and is not recognized by any country or international body of any seriousness.” Thus, “the rulings of its so-called ‘courts’ are meaningless.”

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He added that any international court, upon reviewing this case, would not respect the decision and would throw it out. Also, that any international court would quickly agree that these men were Prisoners of War, and not ‘mercenaries’ and so the death sentence would be further invalidated.

“If the ‘country’ does not exist – neither do their ‘courts’’ rulings have any validity,” Nix affirmed.

Ivana Stradner, advisor to the Foundation for Defense of Democracies working on Russian hybrid warfare, sees the entire show of holding the trials in the so-called DNR, as opposed to Russia, as nothing more than “another of Moscow’s tricks”. She sees this as a ploy against the West “to make sure the West directly ‘negotiates’ with the unrecognized territory.”

Today, however, the immediate effect of the West not recognizing the DNR is stark. Donetsk and Britain do not enjoy bilateral relations, and the only common-intermediate with diplomatic relations is Russia. That makes it virtually impossible for Britain’s Foreign Ministry to do more to help the men.

Based upon statements from both Washington and London, it is apparent that neither government has attempted direct dialogue with the Russian-backed separatists of the DNR regarding the condemned men. Compounding the angst for the British Government is that one of the prisoner’s mothers told reporters this week that she had received a call from her imprisoned son saying that his execution was at hand and that time was running out for him.

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U.S. and U.K. response

Views in the U.S. and U.K. were mixed as to what would be an appropriate reaction by the two nations should the Russian proxy republic carry through with the threatened executions.

In an open forum on the topic, views included breaking diplomatic ties, bombing military facilities outside of St Petersburg, and even declaring war on Russia. At the other extreme was taking no action on the basis that the men knew what they were doing when they came to Ukraine to fight.

However, the most often common opinion was that the audacity of Russia in pursuing execution of an American or British citizen made it all the more apparent why the U.S. needed to fully back Ukraine.

Jason Pates, an American working in IT in North Carolina, with a background in Ukraine, said that the U.S. should “continue to increase its sanctions while sending long-range artillery to assist Kyiv.” However, Pates said that it would “not be smart for Putin” to execute the prisoners, and thus it was more likely that Putin would use the prisoners as bargaining chips for a prisoner exchange, or to curry favor somehow by ‘staying’ their execution.”

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What will come next?

Mattias Caro, a lawyer based in Virginia, said to the Kyiv Post that the U.S. “should demand the due process of law and protection afforded to her citizens by the community of nations.” It is worth noting that summary execution is a grace crime under the law of nations that demands a stern diplomatic response at the highest levels of government.

Caro added: “Russia can hardly justify casting U.S. citizens as mercenaries in an unlawful war, where the Geneva Convention is violated on a daily basis through unrelenting attacks on civilians. The U.S. government must respond in strongest terms to protect its citizens abroad.”

Historically, Americans facing harsh sentences in Russia were not made to endure the grueling prisons times set before them. Prisoner swaps between the U.S. and Russia, like the Soviet Union before it, have been quite common.

Last April, despite mounting east-west tensions over Ukraine, the U.S. and Russia agreed to swap Russian drug-smuggling pilot Konstantin Yaroshenko for former U.S. Marine Trevor Reed and the two sides swapped their prisoners at an airport in Turkey.

Prisoner swaps, unlike other bilateral decisions, are made at the executive level – and so it is discretionary whether they will be approved. Other factors, such as sanctions or worsening overall relations, do not necessarily play a role in how deals are made.

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Today, the U.S. is seeking the release of another former American Marine, Paul Whelan, who was arrested for espionage, as well as basketball player Brittney Griner who was arrested for possession of hashish oil. Russia, for years, has been seeking the release of famed gunrunner Victor Bout, the protagonist of the 2005 Hollywood movie Lord of War.

How will it all end?

Nix agrees that it is unlikely that Russia will eventually allow the executions to take place as the Americans and Brits have a far higher value “alive than dead.” To that end, Russia would likely wish to bargain something for their lives, in exchange.

Stradner concurs with Nix: “I think that they will extend the time of possible execution for as long as possible to use it as a bargaining chip with the U.S., but more importantly to send a clear message to the West about the consequences of fighters in Ukraine. Russia doesn’t follow international law and there won’t be any consequences in the near future for the Kremlin’s violation of the Geneva Convention.”

What will happen next to the British and American captives is not clear. However, the consensus seems to be that the conclusion is not yet written in stone.

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