Even if lawful, foreign enlistment can create serious diplomatic and practical headaches for the soldier’s home country, writes Dr Marnie Lloydd 

Comment: The death of Kiwi Dominic Abelen fighting in eastern Ukraine this week raises questions about how even lawful foreign enlistment with another country’s military can prove sensitive.

Reports indicate that Abelen, a Defence Force soldier on leave from active duty, had enlisted with Ukraine’s foreign legion. Assuming this is so, such enlistment without official authorisation may have breached internal Defence disciplinary rules but is not prohibited by New Zealand law. Secondments to other military forces and foreign enlistment are common practices.

In contrast, foreign fighting independently or with an armed group is generally more problematic, legally-speaking. Non-state actors do not have combatants’ privilege to use lethal force as soldiers do. There may also be less oversight and therefore accountability for any violations of the laws of war. Nevertheless, apart from mercenarism and terrorist activity, foreign fighting is also not generally prohibited under New Zealand law.

Even if lawful, foreign enlistment can create serious diplomatic and practical headaches for the soldier’s home country.

The participation of a New Zealander, especially an NZDF soldier, can create the impression, or at least lead to accusations, that New Zealand approves of its citizens fighting overseas or that it took insufficient steps to prevent such volunteering.

The participation of multiple nationalities in the conflict can complicate relations and potentially even escalate the situation. It’s for such reasons that states, including New Zealand, have not deployed troops inside Ukraine but offered activities such as training outside its borders. While they are supporting Ukraine militarily, keeping out of direct fighting means they avoid becoming party to the conflict.

The US, UK and Morocco have faced the issue of citizens fighting in Ukraine being accused (unlawfully) of mercenarism and facing trial in eastern Ukraine, potentially facing the death penalty. In the case of Abelen and possibly others killed in the fighting, reports suggest his body may be held behind Russian-held lines, making its repatriation to his family more difficult.

More generally, foreign enlistment can become sensitive where a citizen is serving with a state armed force accused of war crimes, as occurred, for example, in relation to Australians and other nationalities working with the United Arab Emirates military, which was accused of war crimes in Yemen.

All such factors might prompt questions about how straightforward or not it should be for an individual to become involved in active combat outside of official NZDF deployments or those of certain other militaries on their own initiative.

The Defence Force has explained it does not and cannot know how many of its personnel or ex-serving personnel may be fighting in Ukraine.

This raises the question of the extent of the duty on a state to pay greater attention to such involvement of individuals in overseas conflicts outside of official NZDF deployments. And this is not only for political and practical reasons but also legal ones. As a party to the Geneva Conventions, New Zealand has an obligation to ensure respect for international humanitarian law, otherwise known as the law of armed conflict. The International Committee of the Red Cross, considered the guardian of the Geneva Conventions, argues that this commitment by states recognises “the importance of adopting all reasonable measures to prevent violations from happening in the first place”.

Current travel advisories and internal Defence rules requiring authorisation for serving foreign militaries have clearly not stopped New Zealanders from taking active part in this deadly conflict. While a career soldier such as Abelen was seemingly experienced and well-trained, it is not always the case with foreign volunteer fighters.

While any legislative change prohibiting foreign enlistment of New Zealanders would be unexpected and probably very impractical, ensuring respect for international humanitarian law could include acting diligently to check people’s involvement in armed conflict to ensure at the very least proper training and then accountability for any violations of the laws of war, or preventing their involvement outright if required. Further reflection about rules around foreign fighting with armed groups is also merited.

While New Zealand has clearly and rightfully expressed its solidarity with Ukraine given Russia’s unlawful aggression, the thinking around foreign enlistment and foreign fighting needs to be broader, taking into account all, complex, deadly, future conflicts and not only the current situation in Ukraine.

Dr Marnie Lloydd is a lecturer and associate-director of the NZ Centre for Public Law at Te Herenga Waka-Victoria University of Wellington.

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