As thousands of foreign citizens are volunteering to Ukraine in order to help this country protect themselves from Russian invasion, some may face legal consequences when returning to their countries.
The Western Balkan countries sanction participation in foreign conflicts or wars. In Kosovo, an example, since 2015, association in armed conflicts abroad has been banned. Kosovo citizens could be sentenced to up to 15 years in prison if they participate in an armed conflict outside state territory.
Turnout in foreign conflicts is also prohibited to the citizens of Albania, and they could be sentenced to up to ten years in prison.
There is also similar legislation in northern Macedonia, and citizens there can be sentenced from three to ten years in prison if they join conflicts abroad. The penalty depends on criminal acts and the past of the individual who has violated the law.
In Montenegro, since 2015 it is the law sanctioning up to ten years of imprisonment to participate in foreign conflicts.
The legislation in Croatia also prevents the participation of citizens in acts of violence aimed at overthrowing a government or violating the territorial integrity of a state. For this criminal offence, the sentence is provided from six months to five years.
Meanwhile, for those who participate in armed conflicts and have monetary benefits from their participation, the sentence, according to the Croatian Criminal Code, cannot be longer than three years.
Bosnia and Herzegovina also prohibits participation in foreign wars, and if that rule is violated, citizens may be sentenced to a minimum of three years in prison.
The sentence of up to ten years in Serbia is also presented for participation in foreign conflicts. More than 300 Serbian citizens have gone east of Ukraine, where pro-Russian separatists have fought Ukrainian government troops. Official Belgrade, in 2015-2018, has declared 32 convictions for participating in the conflict in eastern Ukraine. The sentences, however, have been largely soft.
But besides the citizens of the Western Balkans, who are sanctioned for participation in foreign wars, other countries of the world also have laws that prohibit association in armed conflicts.
As for the invasion of Ukraine, which Russia began on February 24th, citizens of Canada, Georgia, India, Japan, the United Kingdom and the United States are among the volunteers who have joined the fighting, have reported international media.
You can read a Reuters article where you can learn about some of the laws that might apply to foreign fighters who have decided to join the war in Ukraine.
Is it illegal for Americans to fight in foreign wars?
American citizens are not forbidden to serve for armies of other states, the US State Department website says. If they serve as officers or to fight a state that is at peace with the United States, this may be the basis for them to voluntarily give up American citizenship, but precedents at the Supreme Court say that only military service abroad cannot be the main reason for anyone to withdraw American citizenship.
Meanwhile, another American law, dating back to 1794, the so-called Neutrality Act, prohibits citizens from fighting foreign governments that are at peace with Washington, and according to this legislation, they can be sentenced to up to three years in prison. This law, which can technically apply for military action against Russia, was used to prosecute Americans involved in a coup attempt in Gambi in 2014. But otherwise, this law was rarely implemented in modern history, said David Mountains, professor at American University in Washington, D.C.
“in the absence of links to domestic terrorism, I find it hard to imagine that Americans can be prosecuted for going to Ukraine”, the Mountains said.
What about volunteers from Australia, Britain and India?
Britons going to fight in Ukraine may be subject to prosecution once they return home, the United Kingdom Foreign Office website said, in part of the citizens' advice on travel abroad, which was updated last week. Asked by Reuters what works British volunteers may face, a spokesman from this office refused to respond.
According to the United Kingdom Foreign Record Act, which has recently been updated in 1870, citizens are forbidden to join foreign armies whose states are at peace with Britain, but this law has not been applied in modern conflicts. The British Foreign Office has initially offered support to citizens who volunteered to fight in Ukraine, but later warned them not to travel to this state.
Australia's prime minister, Scott Morrison, has called on his country's citizens not to join the war in Ukraine. Last month, he told reporters that there are too many “indiscreet” about the legal position of foreign civil fighters.
The Indian Interior Ministry has not responded to the request for answers to the legality of Indian citizens for participation in war by Ukrainian forces. In a case of Indian involvement, travelling to Iraq in 2015, the ministry told the Delhi Supreme Court that allowing Indians to participate in a conflict of a foreign state “could lead to claims that the Indian government is promoting terrorism in other states”.
Are there states that allow citizens to participate in foreign wars?
Germany has said it will not prosecute those who will voluntarily join the fighting.
Meanwhile, leaders of Denmark and Latvia have said they would allow their citizens to voluntarily go to Ukraine.
Canadian Defence Minister Anita Anand said that “is the individual decision” if Canadians want to go to war in Ukraine.
What if foreign fighters were captured in Ukraine?
International law requires Russian forces to treat foreign fighters as prisoners of war, despite their nationality, Daphné said Richmond-Barak, professor at Lauder School in Israel for Government, Diplomacy and Strategy. This means that Russian soldiers must provide food, water, and medical treatment to volunteers who can be taken captive.
However, Russia's Defence Ministry spokesman said last week that <x0mercenars” Western, who are fighting for Ukraine, will not be treated as legitimate fighters and face prosecution or worse, Russian news agencies, TASS reported.
Can volunteers be prosecuted for committing war crimes?
Because volunteers will fight as members of the Ukrainian Army, they are unlikely to face criminal acts for specific actions in war when they return to their countries. However, there are exceptions to war crimes or similar acts for which they will be prosecuted, experts assess. / REL
