Status of Foreign Fighters in the Ukrainian Legion

Among other new resistance groups, Ukraine has formed an International Legion for the Defense of Ukraine (UKR Legion). There are reports that its members come from all over the world, including Canada, Japan, the United Kingdom, the United States and the European Union. Some of the volunteers are former military personnel; others have no previous combat experience. At the time of publication of this post, the General Staff of the Armed Forces of Ukraine has reported that 20,000 foreigners from 52 different countries have already volunteered to fight in the UKR Legion against the Russian invasion.

In reaction to this development, the spokesman of the Russian Ministry of Defense, Igor Konashenkov, warned that “none of the mercenaries the West is sending to Ukraine to fight for the nationalist regime in Kyiv can be considered as combatants in accordance with international humanitarian law or enjoy the status of prisoners of war…. [A]t best, they can expect to be prosecuted as criminals.”

This begs the question as to whether the classification of personnel status discussed previously in this symposium applies to foreign fighters enlisted in the UKR Legion under the law of armed conflict (LOAC). Could they, as Russia suggests, be considered mercenaries without legal protection as prisoners of war (POW) when captured and can they be treated as “unlawful combatants” or “criminals”? This post addresses these issues of personnel status regarding foreign fighters enlisted in the UKR Legion.

Ukraine’s Official Position

The establishment of the UKR Legion was announced by the Ukrainian Minister of Foreign Affairs Dmytro Kuleba on February 27, 2022. It followed a decree issued under the legal framework established by  Presidential Decree No. 248 of June 10, 2016. This 2016 decree made it possible for non-Ukrainian citizens to enter the armed forces of Ukraine. President Zelensky  appealed to foreign citizens to join the UKR Legion and stated that “a separate subdivision is being formed for foreigners” and that it will be “included in the Territorial Defense Forces of the Armed Forces of Ukraine.”  His statement indicates that the UKR Legion, unlike some of the other armed groups operating within Ukraine, form part of the armed forces of Ukraine.

This position is confirmed by a statement made by one Ukrainian official who clarified that the government was not hiring any private military contractors, but only accepted volunteers to its own foreign legion. It is further confirmed by the Ukrainian government website created on March 5th, which includes general information on how to join the UKR Legion. The website indicates that volunteers shall “submit an application to enlist for voluntary contract-based military service in the Armed Forces of Ukraine.”

POW Status

The legal framework applicable in Ukraine is undoubtedly that of international armed conflict. Belligerent Parties to this conflict, i.e., Ukraine and the Russian Federation, are both bound by the provisions of the four 1949 Geneva Conventions and the 1977 Additional Protocol I as States Parties to these treaties.

According to Article 43 of Additional Protocol I, the armed forces of a Party to a conflict consist of “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates…. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” The forces, groups, and units must have a responsible command, have an established internal disciplinary system for enforcing LOAC, and belong to one party to the conflict. They also must be organized, which excludes individuals operating in isolation that are not levée en masse. The UKR Legion, as part of Ukrainian armed forces, fulfills these criteria.

Article 43(2) of Additional Protocol I further provides that “members of the armed forces of a Party to a conflict … are combatants, that is to say, they have the right to participate directly in hostilities.” This provision is applicable to members of the UKR Legion, who are therefore lawful combatants. It is so regardless of their nationality and the motivation with which they decided to join the UKR Legion.

If captured by the Russian armed forces, members of the UKR Legion—again regardless of nationality or motivation—are entitled to POW status upon capture. This is explicitly confirmed by Article 44(1) of Additional Protocol I, which stipulates that “any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.” It is also clear that members of the UKR Legion would qualify as POWs under Article 4(A)(1) of the Third Geneva Convention, which refers to “members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.”

Article 17 of the Third Geneva Convention requires each Party to a conflict to furnish the persons under its jurisdiction who are eligible for POW status with an identity card. To send a clear signal that members of the UKR Legion are to be treated as POWs upon capture, the Ukrainian government should issue an identity card for members of the UKR Legion in the same way they do for their own armed forces.

If any doubt ensues as to their status, foreign members of the UKR Legion must be treated as POWs until their status is determined by a competent tribunal as required under Article 5 of the Third Geneva Convention. POW status is applicable from the moment of capture and until the final release and repatriation. It gives rise to the right to be treated in accordance with the extensive guarantees provided for in the Third Geneva Convention.

Exceptions

As with any rules, there are exceptions to this obligation on each party to a conflict to accord enemy combatants they have captured the POW status. One such exception under Article 44(3) of Additional Protocol I is when combatants fall into the power of an adversary while failing to distinguish themselves from the civilian population and to carry arms openly during an attack or in a military operation preparatory to an attack. Even then, however, such persons shall be given protection equivalent to that accorded to POW (Article 44(4) of Additional Protocol I). Article 75 of Additional Protocol I further provides the final safety net, granting them an extensive catalogue of guarantees when they do not benefit from a more favorable treatment. This means that they have to be treated humanely in all circumstances, and the detaining power must grant them fundamental fair trial guarantees.

Another group of persons who are not entitled to POW status—but who are not combatants either—are mercenaries. As previously highlighted, this is the label that the Russian Federation used to describe members of the UKR Legion. This, however, is clearly inappropriate. Article 47(2) of Additional Protocol I defines a mercenary as any person who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;

(b) does, in fact, take a direct part in the hostilities;

(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

(e) is not a member of the armed forces of a Party to the conflict; and

(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Members of the UKR Legion do not meet these conditions. First, it seems highly unlikely that foreigners fighting in the UKR Legion would join this Legion for private gain and that they would be promised material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of Ukraine. While foreigners might have different motives to come to fight in Ukraine, nothing indicates that private gain would be prominent among them. Such a gain has been neither promised, nor does it seem likely to materialize.

Second, members of the UKR Legion, as established above, are members of the armed forces of Ukraine, i.e., members of the armed forces of a Party to the conflict. Since the conditions stipulated in Article 47(2) of Additional Protocol I are cumulative and since members of the UKR Legion fail to meet these criteria, they cannot be considered as mercenaries within the meaning of LOAC.

Conclusion

Contrary to the statement of the Russian Ministry of Defense, members of the UKR Legion are not mercenaries. They are combatants who have the right to participate directly in hostilities and who, upon capture, are entitled to the POW status.

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Petra Ditrichová is an associate researcher at the Centre for International Law at the Institute of International Relations, Prague.

Veronika Bílková is the head of the Centre for International Law at the Institute of International Relations, Prague, and an Associate Professor in the Faculty of Law of Charles University in Prague.

Photo credit: Taras Gren, Ministry of Defense of Ukraine