By Ogochukwu Isioma
As the war in Ukraine rages on, a 29-year-old Nigerian, Kehinde Oluwagbemileke, was recently captured by Ukrainian forces while fighting for the Russian military in exchange for a reduced prison sentence. His story — one of ‘desperation, exploitation, and survival’ — raises troubling questions about the rights of foreign nationals caught in global conflicts.
In this exclusive interview, WWW.METROWATCHXTRA.COM speaks with Dr. Silva Opusunju, a Nigerian-born international and constitutional lawyer, to unpack the legal, human rights, and geopolitical implications of Kehinde’s ordeal — and what it means for Nigeria’s responsibilities toward its citizens abroad.
Excerpts:
Interviewer: What is the status of Kehinde as a Nigerian who became a Russian soldier?
Opusunju: The answer to this question is rooted in international law, specifically the Geneva Conventions (GCs), which Nigeria has ratified, alongside other treaties. At the domestic level, there is nothing in Nigeria’s Constitution that bans its citizens from engaging as armed non-state actors, such as being foreign fighters or mercenaries in other jurisdictions.
Note that Kehinde holds dual citizenship, being both Nigerian and Russian. He holds a Russian passport. Another key factor is that Kehinde was a convicted felon in Russia and was presented with the choice of continuing to serve his term or joining the Russian army. He chose to join the Russian army and fight in Ukraine in return for his freedom — but he was captured by the Ukrainians.
At the international level, Kehinde is a lawful Russian combatant, but an enemy combatant to Ukraine. He wore the Russian army uniform, bearing all the insignia of the Russian military. Because of these facts, he can lawfully be captured, killed, or disabled.
Interviewer: How will the Ukrainians treat him, since he is a Nigerian civilian?
Opusunju: No! Kehinde had already lost his civilian status and immunity. He will not be subject to Geneva Convention IV (which protects civilians during times of armed conflict), and therefore cannot benefit from the protections granted to civilians under that Convention. In fact, there is no need discussing his status as a civilian, because he is a legitimate soldier, a lawful combatant of the Russian military. He will therefore be subject to Geneva Convention III (which specifically sets out the rules and protections for prisoners of war (POWs) who are captured during an international armed conflict).
Interviewer: Okay, how will the Ukrainians treat him, if he is not a civilian?
Opusunju: The Geneva Conventions, Hague Regulations, and other extant international regimes regulate international armed conflict. These fall under the umbrella of International Humanitarian Law (IHL).
International law recognizes two categories of persons: the soldier combatant and the civilian (including battlefield medics, etc.). As a soldier, Kehinde can be detained until the end of the war, unless he benefits from a prisoner swap earlier.
He cannot be maltreated under the Convention because of his race, colour, faith, gender, status, or the mere fact that he is an ex-convict. In addition, since he sustained injuries, Ukraine — as the Detaining Power — must collect and care for him. He will also be allowed communication with his family through the International Committee of the Red Cross (ICRC), which is the custodian of the Geneva Conventions.
Interviewer: What if he comes back to Nigeria?
Opusunju: I have said that Kehinde has not violated our Constitution or any other domestic law by being a foreign fighter. By the way, I hope you know that there are those who even add such experiences to their CVs as security professionals — it can be considered a plus that they served here and there in combat duties or as an adventure.
In Africa, the South African Constitution bans foreign fighters and mercenaries. There are reasons for that, peculiar to their nationhood. But there could be a loophole in Kehinde’s case. He could be sanctioned by his country if it is found that he committed acts of international terrorism, grave breaches of the Geneva Conventions, or war crimes pursuant to the Rome Statute. This is because of the principle of universal jurisdiction and the fact that our municipal law frowns upon such crimes.
Interviewer: So, what is Nigeria’s take in all of this?
Opusunju: Look… Nigeria, Ukraine, and Russia are all signatories to the Conventions and other instruments of international armed conflict and citizenship.
International law does not prohibit the making of war. Indeed, it recognizes that it is the duty of soldiers to engage in battle and kill. By opting to join the Russian army and directly participating in hostilities, Kehinde automatically — on a personal level — suspended his right to life, and entered the domain of humanitarian law, not human rights law.
You cannot bring Kehinde to trial simply for being a soldier, unless he committed war crimes or breaches.
Nigeria can request to see Kehinde at a friendly diplomatic level and urge the Ukrainians to treat him in accordance with international law — under Geneva III. But even then, if there is a prisoner exchange, he must first be returned to Russia, not Nigeria. Any further arrangement would then be bilateral between Russia and Nigeria.
Interviewer: Any other loopholes to assist Kehinde?
Opusunju: The loopholes will be found in the rules of customary international humanitarian law, decisions of international tribunals, and the International Court of Justice (ICJ).
But note: nations have repeatedly insisted that only parties to the Convention can benefit from its protection — at least in the views of the United States and other powers like China and Russia. Therefore, non-state actors or powers are not to be granted the benefits of the Geneva Conventions, even though certain provisions have now become international customary norms.
When the Conventions were drafted in 1949, these groups were not part of the deliberations or plenipotentiaries, nor signatories. In fact, most developing nations were still under colonial rule or were vassal states, and not high contracting parties. The international laws were only adopted as received laws upon their attainment of self-rule.
