Ukraine, Foreign Fighters and Canadian Law: A brief overview
The invitation of the government of Ukraine for individuals from around the world to join a foreign legion created for its self-defence, and the seeming ambiguity of the Canadian government’s attitude to this has raised a number of legal questions about those who may choose to do so. This short piece provides an overview of a number of legal issues this situation raises.
To begin, it’s important to start with Canada’s “neutrality laws” which some scholars have described as “antiquated”. These are set out in the Foreign Enlistments Act (FEA), passed in 1937 in direct response to the Spanish Civil War. The FEA criminalizes service in a foreign military at war with a friendly foreign state. The Act also creates several related crimes, such as recruiting persons to serve in such a foreign military or leaving Canada to join this foreign armed force.
(You can read more about this history of the FEA in this piece by Tyler Wentzell.)
In effect, this means it is a crime for Canadians to join the Russian military in its war against Ukraine as the latter is a friendly state. Concomitantly, it is not a crime for Canadians to join the Ukrainian armed forces or participate in the conflict against Russia as part of an organized resistance group.
Nevertheless, there are still legal obligations for Canadians who go overseas to conflict zones. In particular, any Canadian who participates in an armed conflict will be obligated to comply with international humanitarian law. Moreover, Canada's Crimes Against Humanity and War Crimes Act applies extraterritorially. Therefore, should a Canadian commit a war crime while fighting in Ukraine they can be prosecuted in Canada under Canadian criminal law.
What about the Islamic State (ISIS)?
Naturally, this raises questions about how this situation is different from the law that criminalizes travel abroad to support and/or fight with groups like ISIS. Legally, the key distinction is that ISIS is a listed terrorist entity. Sections 83.181 and 83.191 of the Criminal Code prohibits leaving Canada to participate in or facilitate terrorist activity.
In addition, there was never any support from government officials for Canadians to travel abroad to fight against ISIS, not least because there was concern that some of those groups also used tactics that constituted terrorist activity or war crimes/crimes against humanity.
Importantly, determining the legal status of foreign fighters is different from whether or not one believes the government should be encouraging, if only tacitly, Canadians to travel and take up arms.