Foreign fighters have been voluntarily joining conflicts all around the globe. The United Nations Office on Drugs and Crime reports that “foreign terrorist fighters (FTFs) travel to conflict zones to engage in terrorist acts. The persuasive use of propaganda by Islamic State of Iraq and the Levant (ISIL) led to unprecedented flow of volunteers from countries around the world to live under the rule of the terrorist group.” This same organization also reports that in 2015, approximately 40,000 individuals have travelled to Iraq and Syria as fighters from 120 countries around the world.

The language used by the UNODC describes those who joined the conflicts in the Middle East as terrorists, whilst the 20,000 claimed foreign fighters who have joined the conflict in Ukraine are labelled as foreign fighters by the media and our institutions alike. What is the difference between the two? Are they all not joining with the same idea to defend freedom and to defend people in their own terms? ISIL and Al-Qaeda in the past have used all forms of online platforms to recruit fighters. Ukraine is doing the same at this time, except the difference in Ukraine is that its President has also publicly announced the call for freedom fighters to join the cause from all over the world at the beginning of the conflict. Many individuals, lacking both experience and absolutely any ties to Ukraine, made the decision to participate in the conflict. Ukrainian government has organized an International Legion of Territorial Defense of Ukraine on February 27th, 2022. It oversees and processes recruitment of foreign fighters, reviews applications and experience, prepares contracts which include details regarding the pay and stipulates that they must remain in the Ukrainian foreign legion for the duration of the conflict (The Economist, March 11th, 2022 ed.).

Once the conflict is over, and it will be sooner than many which are still ongoing 15-20 years later, what will happen to these individuals? Will they be considered mercenaries? The definition of a mercenary states that this is a private individual, particularly a soldier, who takes part in military conflict for personal profit, is otherwise an outsider to the conflict, and is not a member of any other official military. If they are treated as mercenaries, they have no protection under the Geneva Convention, because under the Convention and its Protocols “mercenaries are not recognized as legitimate combatants and do not have to be granted the same legal protections.”

Many governments have advised their citizens to steer clear of Ukraine in general, but in particularly to avoid joining any legions in the conflict. However, Canadian government representatives on several occasions have stated that this is up to the individual to decide. This is something the government should be held accountable for, especially since the laws pertaining to foreign fighters are such a gray area which many criminal lawyers, interviewed by several media outlets, have not been able to decipher clearly. Veteran Affairs has also stated that it bears no responsibility for physical or psychological injuries acquired by anyone who joins a conflict as a foreign fighter. Canadian PM’s close relationship with President of Ukraine, constant promotion of support for the country with aid and weapons only makes the matters more complex and risky. Being constantly exposed to plight of President Zelensky, fleeing refugees, individuals with no prior combat experience, who also have health issues and are lacking financial means, are turning to social media and collecting funds to purchase tickets to the neighbouring Poland in order to join volunteer battalions.

Damien Magrou, spokesperson for the International Legion of Territorial Defence of Ukraine, in an interview indicated that an application process is in place to verify if volunteers have any combat experience, but that many are also turned away due to lack of experience, yet they never leave. He never openly indicated how many were turned away in order to avoid deterring people from applying. However, as Global News reported “vast majority of rejects do not return home after being unsuccessful. Instead they head into Ukraine anyway to attempt to join another volunteer battalion.” Ukraine has waived visa entry requirements for foreigners joining the conflict, therefore it has not been difficult to enter the country. The issue becomes more complex though as they join different battalions and are not provided with the necessary equipment to participate in combat, they are faced with the inability to communicate due to the language barrier and are stuck with inability to leave.

These individuals who join the conflict often find themselves completely lost and facing problems they did not expect to arise. What will happen to them if captured by the opponent’s army? It is almost certain that they will be treated differently than the local combatants. Which laws will apply to them? The 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries legally forbids use and recruitment of mercenaries. Will the countries of origin be responsible for them? How difficult will it be to repatriate these citizens? A French lawyer, Nabil Boudi, has been representing a French citizen, who became an ISIL member, convicted on death row in Iraq and it has been an extremely difficult road. It has become almost impossible to repatriate the individual so he can stand trial in France. Will Western fighters be subject to similar complications?

Our governments should have made it clear what the international legal frameworks state in this case, yet they failed to do so by publicly stating that it is an individual decision. They should have never initiated any form of encouragement toward this type of participation. They should not have allowed President of Ukraine himself to openly call for foreigners to join this fight, regardless that they are not being labelled as terrorists, as was the case with those who joined ISIL. These are not freedom fighters but rather individuals who will be subject to severe consequences that they were not made aware of. They will require support – health, mental, financial support upon their return. Worst of all, they risk death as many have reported lack of organization and lack of proper equipment availability.

Many claim that Canada has a moral obligation to repatriate the Canadians who join foreign legions during conflict. Others, however, are not too eager to raise their voices in support of repatriation as they fear possibility of atrocities which may be committed by these individuals, as Canada has avoided prosecuting freedom fighters thus far. Canada so far does not have any registered cases of atrocities being committed by those who return from overseas combat, however France for example does. The threat is always there as the combatants witness unimaginable things which may affect their lives and their actions later on in life. There is a correlation between experiencing violence, witnessing loss of life and participating in violent combat, and post-traumatic stress disorder and depression, which affect daily lives of these individuals and cause violent behaviour. Considering that they also went voluntarily to participate in conflict, they should be held accountable for any atrocities they committed overseas in order to discourage future participation in such acts of violence. Now more than ever Canada requires development of a clear and multi-faceted approach policy to deal with foreign fighters, which would ensure a government’s clear stance on participating in foreign legions, outline accountability and disciplinary action plans and carefully define a reintegration plan into the society.