With the recent escalation of Russia’s war on Ukraine, tens of thousands of foreign fighters have flocked to the region. While the widespread praise for individuals supporting the Ukrainian defense effort is understandable, governments should take measures to prevent their citizens from joining the war. Foreign fighters epitomize the privatization of wars, and the multiplicity of individual motives and aims contributes to the conflict’s complexity. The involvement of third-country nationals also has the potential to escalate the conflict further. Lastly, Western countries will have to deal with returnees who are better trained, traumatized, and potentially radicalized.
According to the Ministry of Foreign Affairs of Ukraine,
only seven steps are necessary to become a fighter in the so-called Ukrainian
Foreign Legion. “Freedom is a choice. Join the brave!” the online platform of
the “International Legion of Territorial Defense of Ukraine” advertises.1
Encouraged by President Volodymyr Zelensky’s call on February 27, 2022,2 some 20,000
volunteers from more than 50 countries, mainly in Europe and North America and
for the most part male, have, the Ukrainian government claims, signed up or at
least declared their desire to join.3 How many of these individuals are
actually on the ground, undergoing training or already involved in combat
missions, remains unclear. What is certain, however, is that there are already
a number of multinational units of various sizes—some of them under the command
of Ukrainian officers, others led by foreign soldiers from the Foreign Legion.
In fact, the Ukrainian Armed Forces are already well experienced in commanding
foreign soldiers. Following the 2014 Russian aggression in Eastern Ukraine,
they established over 30 volunteer battalions with more than 1,000 foreign
nationals and stateless persons.4
The phenomenon of foreign fighting has existed for a long
time and in several different contexts: Individuals from third countries join
an armed conflict from outside, sometimes in an organized fashion, for example
as contractors who are hired by a private security and military company (PSMC),
sometimes as private individuals who become part of regular or irregular forces
in a war zone. In academic research only the latter are defined as foreign
fighters in the narrow sense: These individuals travel to war zones, do not
bear the nationality of one of the parties to the conflict, do not work for a
PSMC or an official military organization, and join irregular forces,
particularly insurgent groups, for ideological or political reasons rather than
economic gain.5 This makes them distinct from both contractors working for a
PSMC and foreign legionnaires.
These three forms of foreign fighting follow different
logics with regard to motivation, legal and ethical problems, and consequences
for the further development of a conflict. And yet, there are some concerns
that apply to all of them. Western governments should therefore take measures
and develop policies to prevent their citizens from joining either of the
warring parties in Ukraine and wars abroad in general.
Public, legal, and academic concepts of foreign fighting
The public debate in the West does not address foreign
fighting as an overarching problem but rather concentrates on individual
phenomena. Even though there are critical voices, a heroic image of the
“volunteer fighters” who set out for the “defense of Ukraine” is still
widespread and resonates well with the moral sentiments of Western populations
toward the war.6 In line with this heroization, memories of the Spanish Civil
War and the foreign recruits who joined the anti-fascist struggle in the 1930s
are frequently invoked by the media7 and some of those interviewed when leaving
their countries for Ukraine.8 This comparison may obscure more than it
explains,9 but this does not diminish its power to legitimize a defensive and
solidarity-driven use of violence against the Russian invasion.
The Russian side, too, seeks support from abroad and is
joined by what are often (wrongly) called “mercenaries”. On the one hand, Putin
continues to rely on PSMCs. One infamous example is the Wagner Group, a Russian
PSMC with close ties to the far right. It gained notoriety primarily for its
operations in Syria, Libya, and Mali, and has been accused of war crimes, among
others by the United Nations and France.10 While it is largely composed of
former Russian soldiers, other nationalities are represented among the
contractors and the group has recently stepped up its recruitment game. On the
other hand, Russia claims to have successfully recruited several thousand of
Syrians, which has been confirmed by both Western intelligence and news
reports,11 as well as local media sources in the Middle East.12
The United Nations Mercenary Convention
Mercenaries are banned by several treaties, including the
International Convention Against the Recruitment, Use, Financing and Training
of Mercenaries which was adopted by General Assembly resolution 44/34 on 4
December 1989, entered into force on 20 October 2001, and has 37 state parties
plus 17 state signatories. It prohibits the state from recruiting, using,
funding, and training mercenaries and mandates domestic mercenary activities to
be a crime. Both Russia and Ukraine have ratified the convention and made
acting as a mercenary a criminal offense.
In contrast to the foreign volunteers who have joined the
Ukrainian side, forces supporting Russia are labelled “mercenaries” and thereby
delegitimized as profit-oriented actors prone to committing crimes. After all,
anyone who sides with Putin today is on the wrong side of history. These
attributions of legitimacy are understandable, stemming as they do from the
fact that the Russian “operation”, as the Kremlin calls it, is in fact a war of
aggression and thus a clear violation of the prohibition of the use of force
according to international law. Furthermore, an abundance of evidence suggests
that the Russian side has systematically committed war crimes and severe
breaches of international humanitarian law (IHL).13
There is an obvious impulse to use the (il-)legitimacy and
(il-)legality of war and the conduct of hostilities as a starting point when it
comes to the normative assessment of the foreign fighters joining the war. But
the ethical, legal, and political situation is more complex. In legal terms,
the situation is quite clear with regard to mercenaries (see info boxes on this
page). But PSMCs are a distinct phenomenon, given their repertoire of tasks and
the scale of their engagement, and they have been operating in a legal grey
zone.14 The situation is even more complicated when it comes to foreign
fighters, not least because there is no agreed definition in international law,
but also because they are treated under both IHL and counterterrorism
legislation.15
The 1949 Geneva Conventions and its 1977 Additional
Protocols
Additional Protocol I of 1977 regulates the status of
mercenaries, but does not prohibit mercenaries. It explicitly states that
mercenaries do not have a right to the status of combatants or prisoners of
war. Therefore, they may be prosecuted by the detaining country for mere
participation in hostilities. It is stipulated, however, that it is permissible
for the country employing foreign fighters to make them members of the army so
that they are no longer mercenaries (a strategy that Ukraine is currently
using).
The Ukrainian government does not tire of emphasizing that
foreigners are defending “Europe and our common civilizational values,”16 will
be integrated into the regular armed forces, and are consequently to be treated
as combatants. The Russian side, on the otherhand, tries to attach the label of
“mercenaries” to Western “volunteers.” Consequently, the defense ministry in
Moscow has already announced that none of them will be considered combatants in
accordance with IHL, or be attributed the status of prisoners of war (POW), and
has threatened to have them prosecuted as criminals for any subversive acts
against the Russian army.17 Lastly, Western politicians oscillate between
encouraging people to actively join the Ukrainian forces (while maintaining
plausible deniability of involvement), and tacit acceptance with partial
control of citizens leaving their country for the war zone.
Learning from the history of foreign fighting
Foreign legionnaires are thus distinct from both contractors
and foreign fighters, and the discursive struggles over how to label these
individuals demonstrate the political and legal relevance of these
distinctions. However, there are some general caveats that we can draw from the
history of foreign fighting,18 which apply to individuals traveling into war
zones in general —regardless of whether they join the attacking or the
defending side, and regardless of whether a party to the conflict, its
behavior, and goals are considered to be good or bad.
Having first emerged on a large scale in the Afghan war
following the Soviet invasion in 1979, jihadist foreign fighters are probably
the most well-known in Western societies. At that time, the “Arab Afghans” were
supported by the United States and Pakistan in the context of the Cold War.
They evolved into the cross-border Al-Qaeda network, parts of which eventually
formed — with the addition of local insurgents in Syria and Iraq — the core of
the so-called ISIS organization. Jihadist Afghanistan veterans also gained
combat experience in Bosnia-Herzegovina and Chechnya in the 1990s. While, so
far, there have been only isolated references to the presence of fighters from
these groups in Ukraine, this historical development points to several
potential problems that are also likely to arise with respect to “foreign
legionnaires” and “mercenaries” in the war on Ukraine.
First, both groups are an expression of an increasing
privatization of war and security. In the case of the mercenaries, this is
obvious. But foreign legionnaires, too, undermine the state monopoly on the
legitimate use of force. They make individual decisions to intervene in an
armed conflict without this being part of their respective state’s strategy,
let alone democratically legitimized. In Germany, for instance, fighting in
foreign conflicts is not punishable—unless significant actions are planned
abroad that could harm the foreign relations of Germany. On this basis,
citizens who are classified as right-wing extremists, for example, are denied
permission to leave the country.
This already highlights another difficulty that goes beyond
the disturbing idea of German neo-Nazis fighting under the Ukrainian or any
other flag: An individual’s motive for leaving their country and joining
foreign troops (or some irregular force, for that matter) can neither be
systematically identified nor controlled. There is a whole potpourri of
economic, political, moral, religious, and other motives, as well as
psychological inclinations, among the fighters on the Ukrainian battlefield.
This gives rise to a principal-agent problem, as fighters
can develop their own agenda, which then no longer corresponds to that of the
principal or may even run counter to it. Such a problem is not untypical. For
instance, a significant number of foreign fighters stayed in Afghanistan even
after the departure of the Soviet Troops in 1989, and went on to follow
Abdullah Azzam’s vision of a force that would “continue the jihad no matter how
long the path, until the last breath and the last beat of the pulse.”19 The
involvement of foreigners with their own agendas entails the risk of
fragmentation and, in the worst case, a multiplication of warring parties.
Complicating the conflict constellation in Ukraine in this way would also make
conflict management and resolution more difficult, as there would be more,
diverging interests to be satisfied —and might actually even prolong the
conflict. This is exacerbated by the fact that those joining the war from
outside are not embedded in Ukrainian society and do not envisage their own
future in the country. As a result, when considering their actions, they lack
an important factor that may inhibit violence and have a de-escalating effect:
Escalation of violence appears less risky when it does not jeopardize one’s own
family, social environment, or social tissue—after all, with a foreign passport,
it is possible to simply leave the conflict.
The uncertain future of former fighters in Ukraine
This is related to a third fundamental concern regarding the
uncontrolled flow of individual, voluntary fighters into a war zone: It changes
both the stakes of third countries and the strategic calculus of the parties to
the conflict. For example, how would Western states react to high casualty
rates among foreign fighters with European or North American citizenship? The
first Western volunteers have died in combat,20 and with the war dragging on,
third states may lose more of their nationals fighting in the International
Legion. Thus, the involvement of foreigners in the war may create new causes of
conflict between these third states and Russia, and has the potential to
escalate the conflict. Allowing such potential to grow outside direct state
control and failing to actively prevent the departure of fighters would thus be
ill-advised for the governments in question.
Lastly, governments will also ultimately have to deal with
returnees. In Ukraine, former special forces and professionals from PSMCs,
representatives of non-state groups from other conflicts, for example Kurds
from Iraq, and NATO-trained Ukrainian armed forces fight alongside vigilante
groups and militias, as well as the popular resistance—and now they have been
joined by what is probably thousands of more or less well-trained individuals
of different origins and sometimes with questionable motives. These groups will
begin to learn from one another, especially in terms of military and tactical
skills, but also in terms of ideological and affective attitudes. An open yet
highly relevant question is which conflict these fighters will or will not
choose to join next—and which side they will fight for. But one thing we can be
sure of is that, next time, they will be better prepared and more experienced
in combat, they will be part of a bigger network—and they will already carry
with them the physical and psychological scars of war.
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