The recent arrest in Spain of 8 Spanish combatants, serving as volunteers for the rebel militias in South-East Ukraine, have sparkled vivid discussions among various communities and groups, including lawyers of different countries and backgrounds. Those without a legal background (and some with legal background) focus their discussions on good versus bad, in which being good or bad depends on personal views and beliefs. The good guys are referred to as volunteers, the bad guys are the mercenaries and soldiers of fortune. Both sides alike. Fellow researchers and confreres try to find answers in the legal environment of laws and rulings within and outside of Spain and precedents from prior conflicts in past decades.
A complicating factor in this matter is the Minsk II Protocol which provides several sections which apply to or impact foreign volunteers involved in this conflict. A pardon and amnesty, pullout foreign formations and mercenaries and disarmament of illegal groups are defined as follows:
5. Provide pardon and amnesty by way of enacting a law that forbids persecution and punishment of persons in relation to events that took place in particular districts of Donetsk and Luhansk oblasts of Ukraine.
10. Pullout of all foreign armed formations, military equipment, and also mercenaries from the territory of Ukraine under OSCE supervision. Disarmament of all illegal groups.
Section 5 of the Minsk II Protocol defines a law which is to be enacted under which a pardon and amnesty is provided to the events in the conflict, without restriction but also without determining the authoritative which will enact and execute this law. Assuming that this pardon and amnesty is expected to be implemented by the government of Ukraine, this also sets the boundary of the jurisdiction of such law: the territory of Ukraine. The wording and extend of this law will determine if this pardon and amnesty will also apply to persons without Ukrainian citizenship, besides the fact that there is no real legal base on which crimes according to ratified treaties and conventions can be pardoned by a local law.
Section 10 describes in explicit wording, that all foreign armed formations and mercenaries are to be pulled out from territory of Ukraine and defines that illegal groups are to be disarmed. This section has direct and explicit impact on the foreign volunteers involved in the conflict as combatants. First and foremost applies the agreement to expel all foreign combatants from Ukraine, for which it is crucial to understand that the wording of the Minsk II Protocol explicitly describes the area of conflict as oblasts of Ukraine.
Furthermore, Section 10 mentions disarmament of illegal groups without defining to which groups the term illegal does or will apply. Given this lack of definition, we must assume that the Ukrainian laws will apply to this matter by which all forms of forming of militias without authorization of the Government are prohibited. For the citizens of Ukraine, the pardon and amnesty mentioned in the protocol will or could apply, but not for foreign volunteers unless:
- The law on pardon and amnesty explicitly declares to apply on foreigners within the Ukrainian territory.
- Those foreigners choose to stay within the territory of Ukraine.
- There is no agreement on extraditing individuals between Ukraine and the country of origin of the volunteer, or explicit agreements between Ukraine and the country of origin of the volunteer in which extraditing is excluded for those act to which the pardon and amnesty applies.
In all other cases where the foreign volunteers will return to their home countries, they will face the risk of being prosecuted for participating in combatant activities in a foreign nation. Most European prohibit their citizens from such activities by law and in addition, can prosecute their citizens participating in such actions for each activity as crimes committed, ranging from aiding to or committing premeditated murder.
Should the law on pardon and amnesty provide a protection against committed war crimes and crimes against humanity (which I personally doubt), this law will only apply to the territory of Ukraine and not to any other county, including the countries to which volunteers will return or, as the arrested Spanish volunteers, already did. This means that those foreign combatants also face the risk of being prosecuted for war crimes and crimes against humanity when trialed outside of Ukraine.
Adding all up, their best change is to stay in Ukraine and hope for the best when this law on pardon and amnesty is installed. By disarming themselves, they are no longer a member of the illegal armed groups or a foreign armed formation or mercenary and can only hope that the pardon and amnesty will also apply to them.
Personally, I am very curious how Russia will handle the returning combatants whom Mr. Lavrov referred to as volunteers and soldiers on vacation.