Recently captured American fighters in Ukraine: mercenaries?

Factual Questions
1

Russia is claiming that three recently captured Americans fighting Russian forces with Ukraine’s military are mercenaries and are not entitled to the same protections as Ukrainian soldiers according to the Geneva Convention. IOW, they may be treated as common criminals (up to and including execution) rather than POW status.

The GC has the following to say about mercenaries:

  1. A mercenary shall not have the right to be a combatant or a prisoner of war.
  1. A mercenary is any person who:
  • (a) is especially recruited locally or abroad in order to fight in an armed conflict;
  • (b) does, in fact, take a direct part in the hostilities;
  • (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
  • (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
  • (e) is not a member of the armed forces of a Party to the conflict; and
  • (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

All the criteria (a–f) must be met, according to the Geneva Convention, for a combatant to be described as a mercenary.

B, D, E, and F all seem to apply, but I have questions about A and C:

  • For item A, what does “recruited” mean? Does this require Ukraine to reach out and invite non-Ukrainians to come and fight, or does it also refer to Ukraine accepting non-Ukrainians who chose to travel to Ukraine and offer themselves up for service?

  • For item C, what is known about the compensation these Americans might have received from Ukraine? It sounds like if they were paid the same as native Ukrainian soldiers with comparable skill/rank, they could not be regarded as mercenaries under the GC.

2

I would say that E is debatable, depending on whether or not that Ukrainian International Legion is considered a formal component of the Ukrainian military or not. If so, then it would seem that it would operate under the same reasoning as the French Foreign Legion. And anyway, since not all the criteria are met (specifically C is not the case for anyone I’ve read about- nobody’s going to Ukraine to get rich; they want to fight Russians), they don’t qualify as mercenaries. Point A is also debatable; it’s not like we’re seeing Ukrainian recruiting posters or emails or anything of the sort here in the West- AFAIK, they’re not actively recruiting foreigners, just letting them show up.

But we’re talking Russian courts. This is historically the land of show trials, not of well reasoned jurisprudence. They’re going to ignore, fabricate, or misrepresent where they see fit in order to paint these guys as mercenaries and punish them.

3

The United States spent the last two decades fucking the Geneva convention in its ass.
It shouldn’t be surprised when it’s reciprocated.
And that’s all the conventions are. Based on reciprocity. The proper response to this will be to imprison the next couple of Wagner group mercs the US captures in Syria or elsewhere.
Might make the Russians think twice next time.