Like George Orwell joining the International Brigades to defend Spain against the fascists, can Australians travel to Ukraine to help fight the Russians?
Ukraine President Volodymyr Zelenskyy has called for volunteers to get over there and join a foreign legion attached to the Ukrainian army. It’s had some support — for example, from the UK’s Foreign Secretary Liz Truss.
Not here, though. Prime Minister Scott Morrison has joined his foreign affairs and defence ministers, Marise Payne and Peter Dutton, in telling Australians to not even think about it — not just because it’s generally a bad idea to run towards a war but, as Morrison put it, the legal position of anyone who tries “remains very unclear”.
It’s a bit disconcerting when the head of government says he doesn’t know what his own laws provide. In the case of Australia’s national security laws, it’s understandable, since his party makes them faster than anyone can read them and they almost never get used for any purpose other than wedging Labor.
What is the legal position? We have to look at the part of the Commonwealth criminal code which deals with “foreign incursions and recruitment”. It was designed more with terrorist activity in mind (like going to Syria to fight with Islamic State, for instance) less than for a notion that in modern times has become a bit of a relic — fighting in a conventional war between sovereign states.
It is a crime for an Australian citizen or resident to “enter a foreign country with the intention of engaging in hostile activity” or to engage in hostile activity once you’re there. The maximum penalty is life imprisonment. Everything soldiers do in war meets the definition of hostile activity.
There are only two exceptions that could apply: if the person is serving in or with the armed forces of the government of a foreign country, or if the home affairs minister has made a specific declaration exempting the armed force with which the person is fighting.
This is why the government is hedging its legal bets; it’s not inconceivable that an Australian who makes it over to Ukraine could end up satisfying the definition of fighting with Ukraine’s “armed forces”. (The declaration of power is not likely to be exercised; it is there in case the government ever wanted to give its imprimatur to volunteers engaging in some hypothetical asymmetric war where there’s ambiguity over one or other of the combatant forces.)
The question would be more pertinent for an Australian citizen or resident who also holds Ukrainian citizenship. They would be directly eligible for service in Ukraine’s armed forces and would comfortably fit the exception.
For non-Ukrainians, it’ll be murkier. Much would depend on what the Ukrainian government does — for example, whether it purports to establish a foreign legion as a formal adjunct of its army, or instead leaves it with ambiguous legal status as an irregular volunteer militia.
There are good legal reasons why it might take the second option, such as not wanting to be held accountable for what the motley members of such a unit might do (war crimes and such).
The greater likelihood is that for any Australian who isn’t a Ukrainian citizen, travelling there and joining the hostilities will place them in legal peril back home. This could be easily exacerbated if they commit any acts which trip over our extremely extensive terrorist activity offences.
The whole issue could also be obviated entirely if the Australian government was to decide that a terrorist organisation has become involved in the Ukrainian conflict (not impossible) and declares the relevant area a no-go zone for Australians. If that happened, the prohibition on Australians entering the zone altogether becomes complete.
I certainly understand why the government is keen to dampen anyone’s enthusiasm for getting involved in the war. But I think it should speak clearly about the legal situation rather than obfuscate. Claiming it doesn’t know what the law says is just not a good look, regardless of circumstances.
“Claiming it doesn’t know what the law says is just not a good look, regardless of circumstances.”
Damn right. I wonder if anyone in government has ever read Tom Bingham’s excellent little book, The Rule of Law? Bingham was the UK’s senior Law Lord for years and could hardly be better qualified to give an opinion on what is required for the rule of law. He says there are eight necessary principles. The first is:
The law must be accessible, and so far as possible intelligible, clear and predictable.
If the government cannot grasp or explain what its laws say it is wrong to expect anyone else to do any better or to abide by them. In these circumstances ignorance is a reasonable excuse, even if not a legal one, and using such laws to get convictions brings the law into disrepute.
But there’s nothing like a warning, is there?
I worked for a European Consulate in the 80s and 90s and one of the most important things on learns first are details about the Citizenship acts. It is crucial to give the right information regarding the possible loss a citizenship as well as the actions which could have serious repercussions on a person’s life. Especially issues relating to joining a foreign military force or undertaking actions of a military nature in a conflict are very clearly defined. Morrison’s statement is very disturbing and indicative of his obvious inadequacy as a leader.
So ideally the Ukraine government would grant citizenship without requiring a renunciation of existing citizenship? That’d grant at least the figleaf of legality.
Not sure that works. Making them citizens is likely not compatible with the Ukrainian government being able to maintain they are an irregular militia outside its control and so deny responsibility for any dodgy actions committed by such volunteers, which is the reason Bradley says Ukraine would prefer not to put them in a Foregn Legion. Once they are citizens of Ukraine they would of course also have a duty to serve their country like any other Ukrainian citizens.
Many foreign fighters fought alongside those in Donetsk and Luhansk including some Aussies. Two way street Scumo.
We’re surprised that Morrison doesn’t know the law around foreign incursion? Shouldn’t be – he clearly doesn’t know the law around refugee rights or the expenditure of public monies.
Well, there’s “knowing” and then there is “not giving a flying”.