Australia, explained.
A screenshot image taken from a video released in December said to show Australian man Oscar Jenkins captured by Russian troops (Telegram)
The intentional killing of prisoners of war is a war crime that can be prosecuted under Australian law.
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POW law and the plight of Australian Oscar Jenkins in RussiaPOW law and the plight of Australian Oscar Jenkins in Russia
The whereabouts and status of Melbourne teacher Oscar Jenkins remain unclear. Reports first surfaced in December that Jenkins, an Australian citizen who had been flighting with the Ukraine International Legion, had been taken captive by Russian forces. A video was posted via social media on Telegram showing him under interrogation from Russian captors. Jenkins is questioned as to his name, nationality, and status in the Russia-Ukraine War.
A few weeks later – amid a flurry of diplomatic exchanges between Australia and Russia – further reports surfaced on 14 January suggesting that Jenkins had died. Prime Minister Anthony Albanese on 15 January stated that Australia was waiting for the “facts to come out” and that “if there has been any harm caused to Oscar Jenkins, that is absolutely reprehensible, and the Australian government will take the strongest action possible.”
Australia has insisted throughout the case that the Russian government must fully adhere to its obligations under international humanitarian law, including with respect to prisoners of war.
But notwithstanding Australia’s formal requests for information, there has been no public Russian response on the status or welfare of Jenkins. Ukraine’s ambassador in Australia has urged caution in responding to any Russian propaganda regarding Jenkins.
Each consular case is different and presents its own unique set of diplomatic, legal and political challenges, particularly during the middle of a war.
If he remains alive, there appears to be an expectation in some circles the Albanese government do everything it can to extract Jenkins and return him home. Australian governments have in recent decades expended diplomatic and political resources to extract Australians detained overseas, including Melbourne academic Kylie Moore-Gilbert from detention in Iran, economist Sean Turnell from Myanmar, and journalist Cheng Lei from China. Julian Assange was returned to Australia in June last year, while in December a breakthrough with Indonesia in the long running case of the five remaining members of the Bali Nine drug traffickers saw them returned to Australia as free men after serving 19-year terms.
Each consular case is different and presents its own unique set of diplomatic, legal and political challenges, particularly during the middle of a war. In Jenkins’ case, assuming he is still alive, a core issue is whether he is being treated by Russia as a prisoner of war (POW) or a mercenary. Russia is a party to the 1949 Geneva Convention that recognises POW status for prisoners captured during war. A POW is entitled to minimum levels of humanitarian treatment and can become the subject of an exchange with POWs from the other side. The International Committee of the Red Cross is also entitled to access POW camps and check on prisoner welfare.
Russia and Ukraine have swapped POWs on a number of occasions throughout the war, most recently in late December.
Reports have also emerged of Russian abuses of Ukrainian POWs, including in some instances executions. If Jenkins is being held as a POW, Australia has every expectation that his rights under international law would be respected and this has clearly been the public position of the Albanese government. Russia, however, has also taken the view that certain foreign fighters in the Ukrainian armed forces are mercenaries. When captured, they may be prosecuted under Russian law and on conviction face the death penalty. While it has been reported by Australian media that Jenkins is being treated by Russia as a POW, there has been no formal confirmation of this status.
Australia needs to exercise caution in responding to reports of Jenkins’ death. Death may have arisen due to injuries sustained during combat, or by natural causes. If Jenkins has died and there is clarity as to the circumstances, how Australia responds will be important. The Opposition has called for the expulsion of the Russian ambassador, and Foreign Minister Penny Wong has indicated that “all options are on the table”. But the expulsion by Australia of a Russian ambassador would be a very significant step, and result in a breakdown of diplomatic relations.
The intentional killing of POWs is a war crime and can be prosecuted under Australian law. The International Criminal Court continues to investigate war crimes in the Russia-Ukraine conflict. An arrest warrant for Russian President Vladimir Putin was issued in 2023. More charges against Putin or other Russians could be laid in the future.
The status and welfare of Jenkins is not the only Australian-Russian bilateral issue for the Albanese government. The war in Ukraine remains ongoing and Australia has supported Ukraine’s case in the International Court of Justice against Russia. Justice for the 38 Australians who died following the 2014 shooting down by Russians of MH17 remains a live issue. Australia and the Netherlands are currently engaged in proceedings against Russia before the International Civil Aviation Organisation over that incident. Irrespective of the outcome of the Jenkins case, Australia needs to calibrate its response against these much larger diplomatic, legal, and political issues.
On the afternoon of 29 January, Foreign Minister Penny Wong confirmed that “The Australian government has received confirmation from Russia that Oscar Jenkins is alive and in custody”. The Australian Government restated its position that Jenkins be treated consistent with international humanitarian law.
About the author
Donald R Rothwell
Donald R Rothwell is Professor of International Law at the ANU College of Law, ANU and one of Australia’s leading experts in International Law with specific focus on the law of the sea, law of the polar regions, use of force and implementation of international law within Australia.
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