The trial and conviction on 16 May of Melbourne man Oscar Jenkins as a paid Ukrainian mercenary should have come as no surprise. While Prime Minister Anthony Albanese slammed the verdict as an “outrage” and Foreign Minister Penny Wong labelled the trial a “sham”, once Jenkins faced mercenary charges the outcome was never in much doubt.
Jenkins was first detained by Russian forces in November 2024 but his detention status and whether he was alive remained unclear until just before Christmas. Australia maintained that Jenkins was a prisoner of war under the Geneva Convention and that remains the Albanese government’s position. Jenkins was a member of the Ukrainian Foreign Legion, a Ukrainian military unit comprised of foreign fighters. While Ukraine considers the legionnaires to be legitimate combatants in the war against Russia and entitled to prisoner of war status if captured, that has not been Russia’s position.
Reports have emerged of captured foreign fighters being executed by Russia or facing courts on mercenary charges and sentenced to death. That Jenkins has escaped this fate and been sentenced to 13 years imprisonment will come as a relief to his family, friends and the Australian government.
Legally, a great deal turns on whether Jenkins was going to be classified as a mercenary or a legitimate combatant legally entitled to fight in the conflict and entitled to POW status if captured. One of the most important protections that POWs enjoy is combatant immunity, meaning no criminal charges can be laid for their involvement in an armed conflict.
POWs have a range of protections under international humanitarian law. In addition to basic guarantees as to his health and welfare consistent with the Geneva Convention, Jenkins could eventually have become part of a prisoner exchange. Such exchanges have been common during the Ukraine conflict and some of the largest Russian/Ukrainian POW exchanges have recently taken place. While the prospect of Jenkins being part of such a POW exchange so soon after his capture would have been remote, when the war ends or if a lengthy ceasefire is negotiated, mass POW exchanges could occur which would have included Jenkins.
Bespoke prisoner transfers and exchanges are possible.
Now, having been convicted on mercenary charges, Jenkins will not enjoy any of these entitlements. He will instead be sent to a Russian maximum-security prison. It has been suggested that Jenkins could be subject to another form of prisoner transfer or swap. Those options would appear very limited at present. Australia does not have a formal prisoner transfer agreement in place with Russia, whereby Jenkins can be returned to Australia to serve out his sentence. Australia and Russia are parties to a European International Transfer of Prisoners treaty which could provide a pathway for Jenkins’ return, but that would require Russian consent. It would also require Australia to accept the legitimacy of the trial before the so-called Supreme Court of the Luhansk People’s Republic in Russian occupied Ukraine. This is most unlikely.
Bespoke prisoner transfers and exchanges are possible. Kylie Moore-Gilbert was brought back to Australia from Iran in a prisoner exchange deal in November 2020. Sean Turnell was imprisoned in February 2021 following a military coup in Myanmar and after 650 days of incarceration was finally released in November 2022. In 2023, Chinese-born Australian journalist Cheng Lei was released and returned to Australia after over three years of arbitrary detention on alleged espionage charges in China. However, each case concerning Australians detained overseas is different. This was highlighted in December 2024 with the return of the remaining five Bali Nine members who had been serving life sentences in Indonesia. That only came about following the desire of Indonesian President Prabowo Subianto to make a good will gesture and reset relations with Australia. Such a move is unlikely to come from Vladimir Putin.
Successive Australian governments have been fierce critics of Russia’s 2022 invasion of Ukraine and supported Ukraine’s case in the International Court of Justice challenging Russia’s justification for its conduct. Support has also been given to the International Criminal Court pursing Putin for war crimes and crimes against humanity committed during the conflict. In addition, Australia along with the Netherlands has separately pursued Russian accountability in the International Civil Aviation Organisation for the 2014 downing of MH17 over Ukrainian airspace resulting in the loss of 298 lives, including 38 Australians. That Russia was found on 12 May to be legally responsible for that conduct is telling and suggests the rapid trial of Jenkins and the guilty verdict just days later is no coincidence. Australia will no doubt press to have the verdict against Jenkins dismissed, and for him to be recognised as a prisoner of war. However, given the state of Australian-Russian relations there can be no expectation of a quick resolution of his case.
