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Ukrainian soldiers drive on an armored military vehicle in the outskirts of Kyiv, Ukraine, Saturday, March 5, 2022. (AP Photo/Emilio Morenatti)Emilio Morenatti/The Associated Press

Tyler Wentzell is a doctoral candidate at the University of Toronto Faculty of Law and the author of Not for King or Country: Edward Cecil-Smith, the Communist Party of Canada, and the Spanish Civil War.

Within a week of Ukrainian President Volodymyr Zelensky announcing that he would welcome foreign volunteers for the defence of Ukraine, 16,000 of them had reportedly arrived. Ukraine launched a website for the recruits, waived visa requirements and offered respectable salaries.

Canadians from all walks of life are answering the call. We have already seen Ukrainian-Canadians returning to their other home, while Canadians with no specific connection to Ukraine join in as well. Some have considerable military experience, while others will be picking up a weapon for the first time in their lives.

Canada’s Foreign Enlistment Act establishes the rules for Canadians wishing to participate in a foreign war. It prohibits recruiting for foreign militaries in Canada, except when done by official consular and diplomatic offices. It restricts the outfitting of warships and the launching of private military expeditions, and bars Canadians from enlisting in a foreign military that is at war with a state friendly to Canada. The drafters of the legislation meant to prevent the actions of individual Canadians from dragging the country into war.

The federal government may not lean on this antiquated law at all, under which no one has ever been prosecuted in its 85 years. For instance, while officials have indicated that they will not oppose Canadians who wish to join the Armed Forces of Ukraine, Deputy Prime Minister Chrystia Freeland has indicated some ambiguity as to whether a Canadian could legally serve in the Russian military, although she cautioned against it. Regulations or orders issued under the Act could eliminate this ambiguity, but Cabinet might similarly choose to take no active steps at all or use a different tool entirely.

Ms. Freeland has stated that the Russian war itself is illegal, while Foreign Affairs Minister Mélanie Joly has pushed for a probe into whether Russian armed forces have committed war crimes. Canadian law prohibits war crimes wherever they are committed, or for whom they are committed, so a Canadian who participates in a Russian war crime could be prosecuted in a Canadian court.

Russia has already claimed that foreign volunteers going to Ukraine are mercenaries. The label carries a certain rhetorical heft. In the same way that one person’s freedom fighter is another person’s terrorist, it is also true that one person’s foreign volunteer is another person’s mercenary. Russia will label them as mercenaries principally motivated by money. At the same time, most Canadians will see them as idealists fighting for the Ukrainian people against Russian aggression.

Additional Protocol I to the Geneva Conventions defines a mercenary as someone recruited to fight in an armed conflict. A mercenary is motivated by personal gain and is paid much more than someone of equivalent rank or function in the relevant armed force. They neither live in the country at war, nor are a citizen living abroad. They are not a member of a party’s armed forces, or a non-party’s armed forces when acting in an official capacity (like an observer).

The fact that a mercenary is paid is not the critical distinction – soldiers get paid, too. And neither is citizenship on its own. Many countries, including Russia, do not have any citizenship requirements to serve in their armed forces. Moreover, it is not a requirement in international law.

Most pressing here is whether the foreign volunteers serve in the Armed Forces of Ukraine or not. Based on the available information, the vast majority of the foreign volunteers are serving in the official Armed Forces of Ukraine or associated militias, but there will undoubtedly be exceptions.

The categorization matters, particularly for anyone captured by Russian forces. Just days after Alexander Bastrykin, head of Russia’s Investigative Committee, ordered the identification and monitoring of foreign fighters for potential prosecution under Russia law, Igor Konashenkov, a Russian Ministry of Defence spokesperson, stated that the foreign volunteers were mercenaries. As such, the Russians will not afford them the status of prisoner of war if captured: “At best, they can expect to be prosecuted as criminals.” This goes beyond rhetorical labelling. It is an appallingly glib and incorrect interpretation of the law of armed conflict.

Additional Protocol I to the Geneva Conventions states that prisoner-of-war protections do not extend to mercenaries. However, Article 45 requires that any captured combatant be treated as a prisoner of war until a tribunal determines the person’s status. This is not a determination that can be made by a state official in Moscow in advance or made by troops on the battlefield. Therefore, any foreign fighter captured should be entitled to proper treatment, and a hearing to determine status should precede any potential prosecution under Russian law, “whenever possible.”

Canadians have already been shocked and appalled by the horrible images of the human tragedy wrought by the Russian armed forces in Ukraine. Unfortunately, we might soon be confronted by dead and wounded Canadians on Ukrainian battlefields. Potentially worse, images of captured Canadians denied prisoner-of-war status, mistreated and presented to the world as “mercenaries” in sham trials, or used for propaganda purposes to accuse NATO members of indirect participation in the conflict, may follow.

Given Russia’s scant attention to international law thus far, potential volunteers should consider these threats as they weigh the risks of going. Canadians should brace for such images, and stand ready to denounce such crimes and hold those who commit them to legal account.

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