Why in news
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.
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.
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 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.
Under customary IHL, being a mercenary itself does not constitute a specific crime.
However, if captured, they are not entitled to prisoner-of-war status or any protected categories under the Geneva Conventions.
This allows for their prosecution for 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.
What are the 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.
Way forward
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
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, pre-travel approval from the MEA for travel to Russia could be another measure to check if there are suspicious cases of human trafficking.
This will also enable the identification of companies that are exploiting Indians
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