On 27 February 2022, Ukraine invited foreign nationals to join its armed forces as it seeks to repel Russia’s invasion. Volodymyr Zelensky, President of Ukraine, announced the establishment of the “International Legion of Territorial Defense in Ukraine” in a written statement on Sunday. The move is reminiscent of the International Brigades that fought during the Spanish Civil War (1936-1939) with the Republicans. Foreign ministers in Canada and the United Kingdom voiced support for any of its citizens joining Ukraine’s armed forces. However, critics say this would be "reckless and illegal". 

UKRAINIAN LAW

Ukrainian law permits foreigners to join its armed forces. The Regulations on Military Service in the Armed Forces by Foreigners and Stateless Persons allows foreign nationals and stateless persons to join Ukraine’s armed forces. Foreign nationals serve on the same basis as Ukrainian nationals. On 27 February 2022, Zelensky announced that foreign nationals could join a foreign-only “International Legion". The next day Zelensky scrapped visa requirements for incoming foreign fighters. Ukrinform—Ukrainian state news agency—published advice for those wishing to join the International Legion. It asked foreign nationals to contact the defence attaché at their nearest Ukrainian embassy.

It is uncertain how many foreign nationals may travel to Ukraine to join the International Legion. Ten former special forces veterans have reportedly travelled to Poland with the intention of fighting in Ukraine. Other small groups of Americans, Britons, and Canadians are reportedly making their way to Ukraine (here, here, here, and here). Macer Gifford, a UK national who travelled to Syria to fight against Islamic State, estimates thousands may eventually travel to Ukraine.

UK LAW ON FIGHTING FOR FOREIGN STATES

Speaking to the BBC, UK Foreign Secretary Elizabeth Truss said “people can make their own decisions” but she “supported” those wanting to fight for Ukraine. However, ex-Attorney General Dominic Grieve criticised Truss, stating it was illegal under the Foreign Enlistment Act 1870 (“FEA 1870”). 

The FEA 1870 prohibits UK nationals from enlisting in the military or navy of any foreign state at war with a “friendly state”. A friendly state is defined as any state not at war with the United Kingdom. The FEA 1870 also prohibits a person inducing another to enlist or otherwise aiding and abetting enlistment. The penalty for committing an offence under the act is a fine and imprisonment of up to two years.

Section 15 of the FEA 1870 does permit the granting of a “license” for UK nationals to fight for foreign states, either by “proclamation” or an “order in council”. Therefore, the UK government could theoretically grant a general license allowing UK nationals to fight for Ukraine’s armed forces. Failing such a license, UK nationals would potentially face prosecution on returning from Ukraine.

However, no one has been prosecuted under the FEA 1870 since 1896. The United Kingdom threatened to prosecute UK nationals that travelled to Spain during the Spanish Civil War. However, in the end, no one was prosecuted due to a lack of evidence and the outbreak of the Second World War.

CANADIAN LAW ON FIGHTING FOR FOREIGN STATES

Canadian Foreign Affairs Minister Mélanie Joly made similar remarks to Elizabeth Truss at a news conference.

“We understand that people of Ukrainian descent want to support their fellow Ukrainians and also that there is a desire to defend the motherland and in that sense it is their own individual decision”.

Canada’s Foreign Enlistment Act 1937 (“FEA 1937”) closely mirrors the UK’s FEA 1870, which it replaced. Like the FEA 1870, the FEA 1937 prohibits Canadian nationals enlisting in the military or navy of a foreign state at war with a “friendly state” i.e. not at war with Canada. However, under section 19 of the FEA 1937, the Governor of Canada may issue an order providing for “the application of this Act, with necessary modifications” [emphasis added]. This wording should permit the Canadian government to disapply the prohibition on enlistment with respect to Ukraine.

US LAW ON FIGHTING FOR FOREIGN STATES

The United States’ law is similar to British and Canadian law albeit older. The Neutrality Act 1794 (as amended) imposes a three year prison sentence on persons undertaking a military expedition against a foreign state. However, the law does not prevent individuals from leaving the United States to do so. A statement by US Attorney General Robert Kennedy, following the 1961 Bay of Pigs invasion, confirms that:

“...the neutrality laws were never designed to prevent individuals from leaving the United States to fight for a cause in which they believed. There is nothing in the neutrality laws which prevents refugees from Cuba from returning to that country to engage in the fight for freedom. Nor is an individual prohibited from departing from the United States, with others of like belief, to join still others in a second country for an expedition against a third country.

There is nothing criminal in an individual leaving the United States with the intent of joining an insurgent group. There is nothing criminal in his urging others to do so. There is nothing criminal in several persons departing at the same time. What the law does prohibit is a group organized as a military expedition from departing from the United States to take action as a military force against a nation with whom the United States is at peace”.

There are many ways individuals can support Ukraine during the Russian invasion: provide humanitarian aid, lobby politicians to ease immigration controls for Ukrainian migrants, or boycott Russian goods. However, some citizens will inevitably be tempted to travel to Ukraine to join the International Legion. This may be legal for US citizens, but the governments of Canada and the United Kingdom should clarify whether they intend or not to grant licenses for citizens to travel to Ukraine to fight. This should be done urgently before more citizens make the decision to travel.

Samuel is a solicitor working in local government. He is an editor and long-time contributor to Human Rights Pulse. His research interests are crimes against humanity, sovereign immunity, and violence against religious minorities.

Linkedin