Fighters in the Russia-Ukraine War: Russian, Ukrainian, and foreign volunteers/mercenaries

Anatol Lieven makes an important and straightforward observation. Despite the triumphalist rhetoric in the West about the Russian military surprisingly weak performance in the current Russia-Ukraine War, Ukraine is a smaller country. And unless Russia initiates the use of a tactical nuclear weapon, it’s unlikely that NATO countries will directly and overtly take part in the fighting:

Western intelligence estimates are that Ukrainian and Russian casualties have been roughly equivalent — and Russia has three and a half times Ukraine’s population. In the war’s first months, Russia’s potential advantage in manpower was nullified by the Putin regime’s unwillingness (for domestic political reasons) to send conscripts into action and to call up reserves. These shortages are now being rectified by the call-up of 300,000 additional troops (albeit of very questionable quality). Russia is also producing considerably more artillery shells than Ukraine is either producing itself or receiving from the West, and it is not clear how far increased U.S. production can make up for this shortfall in the next few months.

There are foreign fighters in Ukraine fighting for the government and under their command as part of the International Legion of Territorial Defence of Ukraine. But the US seems to have no problem with US citizens serving in this particular foreign military under (officially) foreign command:

Though the United States and its allies have not sent military forces to engage with Russia, it has not stopped many of their citizens from heeding Zelensky’s call and traveling to Ukraine to fight alongside the Ukrainian Army. Just two weeks after Zelensky asked foreigners to serve in the Ukrainian “international legion,” Ukraine announced that more than 20,000 foreign volunteers from over 52 different countries had arrived. Many of the new arrivals were well trained with prior military experience. These included veterans who served in the US Army, US Marine Corps, and British Army. Their expertise not only provides Ukrainian forces with much needed tactical assistance, but it also gives an aura of legitimacy around Ukraine’s claim of the war being a global struggle against authoritarianism. This influx of Western volunteers in Ukraine is just the latest in the long history of foreigners fighting and dying for nations that are not their own. [my emphasis]

But the US as well as Britain nominally discourage their citizens from serving in the Ukrainian military: “The United States and British governments have both advised their citizens not to serve in the Ukrainian Army.“

As Isaac Chakyan Tang notes, foreign fighters are typically assigned more combat missions and riskier ones, because “the political ramifications of having foreigners die in combat are far less costly then having their own citizens be killed.“

And their status as legal combatants are at best less than clear-cut, to put it mildly:

Danger for foreign volunteers not only comes in the form of more missions, but also through their very status of being foreigners. Under the 1949 Geneva Convention, prisoners of war are guaranteed protection and humane treatment, however, these provisions do not extend to mercenaries. Even if their motivation to fight was for an ideological or non monetary reason, foreign volunteers run the risk of being considered as mercenaries if captured by the enemy. On June 9, 2022, a Russian backed court in the Ukrainian seperatist region of Donetsk sentenced two Britons and a Moroccan man who fought for the Ukrainian military to death. Such treatment of prisoners of war constitutes a war crime, but the Russians claimed that they were mercenaries and, thus, the rules of war did not apply to them. Such treatment of captured foreign fighters in a proxy war, such as the one in Ukraine, also leads to further strained relations between the proxy belligerents. This erodes the noncombatant belligerent’s official neutrality and elevates the already high risk for escalation of conflict. [my emphasis]

Elizabeth Rubin notes in her essay in Crimes of War 2.0-Expanded Edition (2007):

[I]n 1968, the United Nations General Assembly and the Organization of African Unity established laws against mercenaries, making the use of them against movements for national liberation and independence punishable as a criminal act. In 1977, the Security Council adopted a resolution condemning the recruitment of mercenaries to overthrow governments of UN member States. The 1977 Additional Protocol I to the Geneva Conventions, in Article 47, stripped mercenaries of the right to claim combatant or prisoner of war status in international armed conflicts, thus leaving them vulnerable to trials as common criminals in the offended State. It also left the definition of mercenaries, in the view of many critics, dangerously subjective and partly dependent upon judging a person's reasons for fighting. [my emphasis]

Graeme Wood also discusses the risks and potential disadvantages of so-called foreign fighters: “governments should be worried even when their citizens travel tofight in wars that the governments themselves endorse. The decision tofight should, whenever possible, be removed from the discretion ofindividuals.”

This doesn’t detract from the sincerity of those who may volunteer for political or ideological reasons.

But it will not be surprising if we later learn that foreign volunteers for Ukraine’s International Legion are actual in a more official if covert capacity. But their status under the current laws of war is vague at best.

Here is a December interview from the Ukrainian Kyiv Post with Malcolm Nance, with the following description:

American Malcolm Nance, undoubtedly the best known member of the Ukrainian Foreign Legion, announced in April 2022 that he was quitting his high-profile and high-paying career in the New York City, as a National Security Correspondent for MSNBC and as an author, to come to Ukraine where he would put his 40 years of US intelligence and military experience to work to help the upstart Foreign Legion. Nance discusses the good that the Legion has done and also accusations that have been made about a military unit - whose members Nance considers to be "brothers." Taking great risk to his personal life over the course of 8 months, Nance is visiting the United States before continuing his efforts to help Ukraine bring Russia's invasion to its knees. [my emphasis]

Without passing judgement on whether what he is doing - and we don’t know exactly what he is doing except paticipating in military fighting a war under nominal Ukrainian command - it’s hard to imagine given his claimed US intelligence and miltiary background that he is doing what he’s doing this openly without explicit approval from the US government.

Also, does Ukraine allow all its intelligence personnel serving in its armed forces to speak this openly and publicly? I know that Ukraine is on Our Side at the moment. But - serious question - if Nance is being paid as a military intelligence officer to do public propaganda for the Ukrainian government, is he required to register officially as a foreign agent of Ukraine?

That seems like it should be an obvious question for journalists doing stories puffing his role would ask. Nardine Saad? Annabelle Timsit, Timothy Bella, Jeremy Barr?