By Dr. Scott N. Romaniuk
The phenomenon of informal combatants – à la Spanish Civil War where approximately 1,500 Canadians and thousands more Britons went – appears to have a “romantic” tone in the minds of some nations and perhaps especially in Western countries (ostensibly the liberal democracies), and one should be overwhelmingly concerned for the legality and the impacts on human rights, claims against the state, and even the child soldier phenomena.
Who’s Apin’ Who?
Canada’s Foreign Minister Mélanie Joly, under the country’s ruling Liberal Party, stated that Canadians’ choices to go to Ukraine to fight against Russian forces as foreign fighters were “individual decisions.” She further remarked, “[w]e 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 …. Let me be clear: we are all very supportive of any form of support to Ukrainians right now.” Canada’s Defence Minister, Anita Anand, championed the call by stating that, “all foreigners willing to defend Ukraine and world order” to make contact with Ukraine’s foreign diplomatic missions. The United Kingdom’s Foreign Secretary, Liz Truss, is similarly supportive of UK nationals going off to fight in Ukraine, commenting that people need to make their own decisions regarding the fight “for democracy.” President Volodymyr Zelensky has increasingly framed Putin’s invasion of Ukraine as a fight for the defense and security of Europe, not for Ukraine exclusively, noting: “If we fall, you will fall.”
Informal Combatants: Wither Law?
While few should be surprised by Putin’s illegal and reprehensible aggression and military offensive in Ukraine, Western states’ acquiescence in the, colloquially foreign fighter phenomenon, and the creation of foreign legions contravenes established positions and laws on the matter. The West’s departure from its laws on its citizens participation in foreign wars (for the United Kingdom, the Foreign Enlistment Act 1870), constitutes a crisis-in-the-making. Although we have yet to observe the true scope of this emerging though not-so-embryonic crisis manufactured by states that are either fully compliant with citizens going abroad to fight and those that are awkwardly silent or attempting to evade the formulation of an official position – notably here, the United States, United Kingdom, and Canada – through their forceful ignorance and hypocrisy, their present positions support these events. In so doing, they place their own citizens who fight abroad in dangerous positions that may result in legal repercussions, at the very least.
Canada’s encouragement of foreign fighters from Canada, which resides somewhere in the hundreds, supports the establishment of a dangerous precedent suffused with risk that will further damage Canada’s tarnished reputation as a self-professed liberal democracy. It champions the idea for citizens of other states that the circumvention of national laws and potential violation of state sovereignty through foreign interference in lieu of formal declarations or intervention and war, is not only acceptable, but also the right thing to do. The escalating conflict in Ukraine can now be conveniently used, as we are presently witnessing, to redefine foreign policies and in ways that Western states have typically criticized others for doing. Rather than seeing the war in Ukraine as a unifying imperative, the rapid unfolding of events tows a number of key elements to light: unilateralism under the guise of multilateralism and unity, grey-zone or unofficial, noncommittal style decision-making, obscure objectives and intentions, and the use of paramilitary forces as a principal adjunct to their own state interests and (military) capabilities.
Finding (and Exploiting) the Loopholes
Previous foreign conflicts, throughout history and those in the not-too-distant past have led to many choosing to go and fight on foreign soil. Canada, a State Party to the Rome Statute of the International Criminal Court and signatory of the Convention on the Prevention and Punishment of the Crime of Genocide, is responsible for upholding the international legal conventions to which it has committed, particularly when attempting to formulate policy responses to conflicts potentially involving the use of foreign fighters and foreign fighters returning to Canada. Prime Minister Justin Trudeau, referring to its agreement to supply the Saudi regime with armored cars and military instrument, including weapons of various types, emphasized the notion that Canada takes international agreements and contract law very seriously. Unfortunately, it cannot claim so when directly supporting the unlawful premises of conducting war.
Canada is morally responsible and has the legal obligation to protect basic human rights and vulnerable populations at home and abroad. With the war in Ukraine representing a humanitarian crisis and a human rights challenge in myriad ways, Canada would have no means by which to monitor the activities and actions of its citizens participating in the war. Thus, the current Canadian government and its citizens, those who chose to fight, could serve as the means by which further violence and potential atrocities are committed. For Zelensky, more people mean more fighters. For Canada, this means the erosion of any notion of long-term viability of a positive image or position on future crises involving violent conflict and aggression. Canada’s position demonstrates the reversal of its “peaceful” foreign policy formulas.
Ukrainian law permits foreigners to join its armed forces. The Regulations on passing of military service in the Armed Forces of Ukraine foreigners and stateless persons, as per the Presidential Decree of June 10, 2016 (No. 248/2016) allows foreign nationals and stateless persons to join Ukraine’s armed forces. However, Canada’s Foreign Enlistment Act 1937 (“FEA 1937”) prohibits Canadians enlisting in a foreign state’s military or navy at war with a “friendly state.” Canada is not presently at war with Russia – one of the few country’s privileged to be part of the very council tasked with the preservation of international security and peace – nor is the definition of “friendly state” clear in this regard. Canada, like many states, uses old our outdated laws or finds loopholes to evade its responsibilities, culpability, or serve its own interests or those of other states. Passed under the government of Prime Minister William Lyon Mackenzie King in 1937, the government used the act in response to the crisis in Spain. The Act never disappeared and can now be dusted off and used in the context of current aggression against Ukraine. While the Act would prohibit Canadians from joining Russian military forces, it would not preclude them from taking part in the fight on the side of Ukraine. The Act served the King government during and after the Spanish Civil War but turned into a scandal involving Canada’s Royal Canadian Mounted Police and Canada’s Department of Justice. Canada’s official-unofficial position on the matter is convenient, even strategic as provides foreign consular services the freedom to recruiting anyone interested in supporting their cause. Thus, Canada’s highest political officials have directed Canadians to Ukrainian consular services.
The United States’ Neutrality Act 1794 (as amended) predates those of Canada and the United Kingdom’s, levies a three-year prison sentence against a person embarking on a military mission abroad against another state. However, the law does not legally proscribe that person from leaving the United States in order to undertake such a mission. The discrepancy within this and similar laws are therefore problematic. From a political point of view, the Canadian government is clearly not partial (that is, not neutral). From a legal perspective, it attempts to claim neutrality, but again this account is far from accurate. Even if Canada were neutral, its reliance on its outdated Act is inherently weak but also dangerous for the precedent it enables. That is, it violates the principle object for which it stands and that currently exist to fortify performances of a state in the international system with respect to other states. An account of the Neutrality Act made on April 20, 1961, just after the failed Bay of Pigs invasion, which has become representative of the Kennedy Administration’s position, informs us that:
…the neutrality laws are among the oldest laws in our statute books. Most of the provisions date from the first years of our independence and, with only minor revisions, have continued in force since the 18th Century. Clearly they were not designed for the kind of situation which exists in the world today.
Second, 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.
Irrespective of one’s ontological position on Putin’s invasion of Ukraine – and indeed the position should be clear, even in spite of 35 abstentions and 5 “against” votes at the United Nations General Assembly’s 11th Emergency Special Session – discussion over this specific facet of the war in Ukraine emphasizes the need for deep and more robust analysis – state leaders, including Canada’s, must have the requisite competence to deal with such complex issues, not merely feign competence.
An (Un)Intended Norm
Before Canada fuels the rapidly growing foreign fighter phenomenon, and contributing to the establishment of an (illiberal) norm, Canada’s current government needs to consider the complexity of its own law(s), International Human Rights Law, and International Criminal Law. This now stands as a matter of compliance alongside Canada’s international obligations and where it situates itself with respect to states’ roles in countering the occurrence of foreign (terrorist) fighters through the prism of the current situation in Eastern Europe and its deep impacts on the rest of the world.
Whether through the formation of an “international brigade”, contributions to such a task force, brigade, or whatever label it will assume, or subtly encouraging Canadians, regardless of their status, entrenches Canada’s peculiar adherence to non-commitment. Though serving as one perspective, Joly’s statement and the Liberal Party’s position demonstrates Canada’s willingness to remain idle as its own citizens enter into the dangerous milieu of an escalating conflict that has seen Russian forces intentionally target civilians, including the deliberate targeting of homes with cluster and vacuum bombs, schools and kindergartens, and orphanages.
If Canada truly stands for rule of law, justice, human rights, and international order, as it routinely claims, the current government will have to (re)consider its position and understanding of the legality of Canadians’ decisions to join the multifaceted conflict in Eastern Europe. Numerous dangerous precedents are presently being established, including the possibility of Canadians fighting alongside Russian forces anywhere in Ukraine. In essence, while Canada is encouraging its citizens to participate in unlawful fighting and permitting the act of killing by whatever means, and returning home without oversight concerning their activities abroad. It is doubtful whether Canada would have any reliable information about their activities – including potential atrocities, revenge assaults, rape, and so on – and various engagements in Ukraine. It is also unclear whether they be allowed to leave Ukraine after committing to the fight. Zelensky noted that men of military age can be charged with treason if they attempt to leave Ukraine.
These and other, even larger, issues need to be carefully measured and addressed by the Canadian government, its opposition parties, and NGOs prior to haphazardly supporting informal combatants flocking off to war. Foremost, the double-standard of supporting Canadians in becoming battle-hardened foreign fighters in Europe while simultaneously condemning those who choose to fight in other, notably Islamic wars abroad, particularly those in the Middle East, can foster animosity and tension within Canada, as well as between Canada and other states, including its close partners and allies. Adhering to this current posture invites criticism over its own but any government’s response to foreign fighter recruitment or radicalization via social media or other means.
While much of Canada’s talk about supporting Ukraine has so far proved, at least in relative terms, to be vacant rhetoric, despite the government’s messaging of firm support, its recent statements on this issue are deeply do much to counter the existing rules-based international system to which Canada and other states have turned in response to increasing aggression by the Putin regime.
The views expressed in this article are those of the authors alone and do not necessarily reflect those of Geopoliticalmonitor.com