Why Kenya cannot escape responsibility for its citizens serving in Russia's war

Russia's Foreign Minister Sergei Lavrov and Prime Cabinet Secretary Musalia Mudavadi before talks in Moscow on March 16, 2026. [AFP] The plight of the families of Kenyan citizens allegedly lured by Russian agents and conscripted into the Russian Defence to fight against Ukraine is desperate. Media reports indicate that although the government of Kenya, through its Ministry of Foreign Affairs, has taken diplomatic measures to engage its Russian counterpart, there is little to celebrate for the families whose sons have been enlisted and deployed to the battle frontline where they are either dead, in hospital, taken captive or trying hard to dodge the killer drones from the Ukrainian side. It is reported that the only commitment Russia gave in this regard was to put Kenya on its "stop list" to ensure no further enlistment of Kenyans. In essence, the situation is fait accompli for those already enlisted, since as alleged by Russia, they entered into the contracts "voluntarily". Voluntarily? This issue brings into focus a category of actors in war that the laws of war call mercenaries. A different but related category of actors are the so-called private military and security companies (PMSCs). It is common to discuss mercenaries and PMSCs together even though subtle differences exist between the two. Who are Mercenaries and Private Military Security Companies (PMSCs)? In ordinary generic sense, mercenaries and PMSCs refer to foreign actors taking part in wars in which their countries of nationality are not the ones fighting. Where the actors are engaged in direct hostilities, that is, actively fighting, they are called mercenaries; where they are hired to provide services to the fighters without taking part in direct hostilities, they are collectively called PMSCs. From this simple definition, it follows that PMSCs who take up arms to fight for either side of the belligerent parties, change from being PMSCs to mercenaries. The Law of War, also called International Humanitarian Law (IHL), however, treats the terms "mercenaries" and "PMSCs" as terms of art- with very specific meanings. Enumerating all the definitions is not the scope of this article but some of them are worth highlighting. Article 47 of the Additional Protocol I to the Geneva Conventions of 1949, for example, define mercenaries as people who are: specially recruited to fight in armed conflicts; do, in fact, take part in hostilities; motivated by the desire for private gain; neither nationals of parties to the conflict nor residents of territories controlled by parties to the conflict; are not members of the armed forces of parties to the conflict; and have not been sent by states which are not parties to the conflict on official duty as members of their armed forces. States, in their laws or military manuals, also define mercenaries along these lines. The Montreux Document, a non-binding but otherwise widely accepted guideline on the use of PMSCs and responsibilities of states, defines PMSCs as "private business entities that provide military and/or security services, irrespective of how they describe themselves". From these definitions, we are able to see why Kenyans recruited into the Russian military to fight for Russia against Ukraine are mercenaries. They may have started as PMSCs or contracted for PMSC jobs but were later turned into fighters, hors de combat, hence became mercenaries. Status and Treatment of Mercenaries under International Law International law frowns upon and has made significant effort to criminalise mercenarism. Mercenarism has been blamed for breaches of international humanitarian law and violation of international human rights. The United Nations Working Group on Mercenaries, in a recent report to the UN General Assembly, published in September 2025, warned of "the growing and evolving use of mercenaries, related actors and private military and security companies (PMSCs) as proxies, enablers, and facilitators of violence, repression, and human rights violations worldwide." Mercenarism is characterised by asymmetric warfare and predatory recruitment. The use of mercenaries has also been seen to undermine the quest for self-determination by peoples besides violating human rights and perpetrating war crimes. For example, in Africa, the use of mercenaries was blamed for the prolonged conflicts in Nigeria, Congo and Angola that saw some of the worst humanitarian crises. The Wagner Group (contracted by Russia) in Ukraine and the Blackwater (Constellis) in Iraq (contracted by USA) have been blamed for atrocities in the respective territorial states. As such, a lot of effort has been made to criminalise mercenarism at the international, regional and national levels. At the international level, the laws of war as captured in the Additional Protocol I to the Geneva Conventions deny mercenaries the status of a prisoner of war when they are captured or when they surrender. The denial of this status has been interpreted, albeit incorrectly, to mean that mercenaries do not enjoy the kind of protection that a prisoner of war would normally get such as humane treatment, not to be tortured, killed etc That is why, it is very much likely that the lives of Kenyan mercenaries at the battle front in Ukraine are not being spared unless their captors respect the laws of war or are just merciful. The International Convention against the Recruitment, Use, Financing and Training of Mercenaries (UN Mercenaries Convention) and the Convention for the Elimination of Mercenarism in Africa (OAU Convention against Mercenarism) also outlaw mercenarism. Ukraine is among a handful of countries that have ratified the UN Mercenaries Convention. Kenya and Russia are among the many that have not ratified it. It is ironical that at the national level, Russia that has appetite for mercenaries, also denies them combatant or prisoner of war status, thus denying them protection. Ukraine and Kenya have criminalised mercenarism in their penal codes. With regards to PMSCs, international law is tolerant but within a rule-based order captured in two non-legally binding documents- the 2008 Montreux Document and the 2010 International Code of Conduct. These documents, among other things, provide for responsibilities of states over PMSCs depending on whether a state is: a contracting state (a state that directly contract for the services of PMSCs); a territorial state (a state on whose territory PMSCs operate); or a home state (a state of nationality of a PMSC). Going by the narration of some Kenyan escapees from Russia, the ones who were at least made aware that they were going to work in the Russian military knew they were going to provide services and not active combat on the battlefield. It would seem therefore that they contracted as PMSCs. But the distance between a PMSC and a mercenary is just a stone's throw. A PMSC becomes a mercenary immediately it takes a direct part in hostilities. Individuals or companies start as PMSCs but quickly turn into mercenaries. The Abu Ghraib case (Al Shimari v. CACI) is a good example where a US-contracted PMSC, CACI International, was found liable for torture and violations of international law at the Abu Ghraib prison in Iraq. The Kenyans enlisted by Russia were victims of predatory recruitment where they contracted as service providers but ended up in the battlefield, thereby becoming mercenaries. Under international law, Russia has responsibility over the PMSCs they subcontracted to recruit for them. On this front alone, Russia violated international law as a contracting state. It is therefore baffling for Russia to deny responsibility for the Kenyans who were duped into signing contracts to fight for it. Equally, international law puts responsibility on a home state, in this case Kenya, over its nationals being recruited as PMSCs or foreign fighters. In the Alabama Arbitration case, the UK was held liable to USA when UK ships were used in a mercenary-like manner to attack USA. Kenya, therefore, cannot say that it did not know that this was happening. It may be construed as negligence. Kenya owed a duty of care to Ukraine and the international community to ensure that its nationals were not recruited as foreign fighters or mercenaries. So, what is the way forward? Alternatives to Explore In the recent diplomatic engagement between Kenya and Russia, it is reported that the only commitment Russia gave was to put Kenya on its "stop list" to avoid further enlistment of Kenyans. Russia made no commitment to revoke the alleged fraudulent contracts by Kenyans already serving in their military. It made no commitment as to the evacuation and repatriation of those captured, sick or dead. Those who want to opt out of the contract have to wait for the contracts to expire. But even this latter commitment might be a mirage. It is claimed that there is an existing presidential decree in Russia that allows the military to extend soldiers' contracts automatically until the war ends. This diplomatic engagement was somewhat a faux pas on the side of Kenya. It should be remembered that in the equation is Ukraine, who to a large extent, is a victim. The GoK opted for the Classic, Track I, bilateral diplomacy with Russia in full glare of everyone, including Ukraine. How would Ukraine take this as the party being fought by Kenyan mercenaries? Also, did we expect Russia to give in to Kenya's demands while her enemies are watching and listening? Such an errand requires a quiet, shuttle or backchannel diplomatic engagement. Some alternatives can still be explored to help save the Kenyan fighters in Russia and their families. These include: intervention by International Committee of the Red Cross (ICRC) under its various frameworks; Quiet, Shuttle, Backchannel Diplomacy with Ukraine and Russia; use of United Nations Good Offices; seeking a United Nations Security Council Resolution; arbitration; and as a last resort, submitting a dispute against Russia to the International Court of Justice. The laws of war or international humanitarian law (IHL) define how to fight a just war. The manner of fighting a just war encompasses not only the methods of warfare but also the protection of various categories of actors and non-actors in war. The International Committee of the Red Cross (ICRC) is the guardian of the laws of war. It monitors compliance with international humanitarian law and accords humanitarian assistance in armed conflicts. Even though Article 47 of the Additional Protocol I of the Geneva Conventions outlaws mercenaries and deprive them of protection by denying them the combatant and prisoner of war statuses, they can still be protected under the international human rights framework. Besides, denying mercenaries combatant and prisoner of war statuses means that they are non-combatants taking part in hostilities, and therefore are entitled to the fundamental guarantees of humane treatment, protection against murder, torture, corporal punishment and outrages upon human dignity as contained in Article 75 of the Protocol. The ICRC can come in as a neutral party and take appropriate action based on its right of initiative and other frameworks. ICRC can work with all the states involved to trace those that have been captured, dead or in hospital and broker a deal with the states on the evacuation and repatriation of these Kenyans. I would propose that the Law Society of Kenya under its mandate to the public considers forming an ad hoc committee to pursue this with the local ICRC offices. The GoK can also pursue a quiet, shuttle or backchannel diplomacy with Russia on one side and Ukraine on the other. It actually needed to prioritise engagement with Ukraine since they are the most likely to capture or kill the Kenyan mercenaries. Kenya can negotiate with Ukraine to reconsider the mercenary status of captured Kenyan fighters. It can also negotiate with both parties to allow a humanitarian pause to allow evacuation of the dead Kenyans from the battlefield. Apart from the above, Kenya can also implore the United Nations to use its Good Offices to intervene in the matter. Although the issue of the threshold may arise, Kenya can also submit a request for a resolution from the United Nations Security Council on the matter. Ideally, by conscripting nationals of Kenya without the involvement of Kenyan government, Russia committed acts of aggression towards Kenya. This is a threat to peace, and for which the UN Security Council has mandate. The UN Security Council issued resolutions against use of mercenaries in Congo and Angola, for example. Should Russia fail to give in to all the above, GoK may as a last resort, institute arbitral proceedings before the relevant international fora or submit a dispute (compromis) to the International Court of Justice for determination. To note is that at the international level, the individual (including corporate) has no legal personality and so the state is the one to act on behalf of the individual at the international level. Kenya should not abrogate this responsibility. The subjects of Kenya's international sovereignty are its people. The writer is an advocate of the High Court of Kenya

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