With the arrest and announced prosecution of 8 Spanish citizens after their return from Donbass where they fought as combatant in the militias opposing the Ukrainian government forces, my colleague and I tried to get a simple answer to a simple question from various Spanish officials:
Will volunteer combatants with Spanish citizenship fighting for the Ukrainian government forces or the volunteer forces which are endorsed and armed by the Ukrainian government, be prosecuted by the Spanish Justice Department on the same charges as those volunteer combatants with Spanish citizenship fighting for the opposing militias in Ukraine?
From the Spanish Officials we contacted, we received the famous non-answer: “no comment” which is exactly what it says – no comment to your question and therefor no answer to your question. We assume that this answer will remain the answer until we either stop asking this question or until such case would actually arise, should it ever arise.
So we tried to understand which grounds Spain has to prosecute those combatants which have been arrested last week:
- Spanish citizens are prohibited from participating in combat activities or aiding to combat activities unless order to do so by the Spanish Government. Spanish citizens can be ordered to participate in combat activities without a formal declaration of war, e.g. the Spanish participation in the NATO led war in Afghanistan.
- Spanish citizens are prohibited from participation in a conflict in which the Spanish Government has declared neutrality and Spain has declared neutrality in the conflict in Ukraine.
- Each of the above mentioned prohibited activities can be prosecuted either as committed crime as such, or as the direct crime resulting from such activities when adequate evidence is available. E.g. when such activities would lead to murder or war crimes.
The first item implies that Spanish laws would prohibit all Spanish citizens from volunteering from participating in the Ukrainian conflict, regardless of the side which they participate on. The first question we ask ourselves is “why isn’t the answer to our question YES?”.
The second item needs further clarification. Spain has declared neutrality in the Ukrainian conflict but does participate and contributes to the sanctions imposed on parties being accused of being responsible for this conflict. Unless there is an UNSC Resolution authorizing such sanctions (which is not the case for Donbass), the declared neutrality is, to put it mildly, questionable. In addition, Spain does not participate and contribute to sanctions imposed on Ukraine by which Spain is actively taking sides in the conflict and as such actively supporting one side in an armed conflict. Aiding to an armed conflict in any way and regardless of the means, equals participating in that conflict.
The third item is basically given a simple message which most countries have embedded in their law systems:
Fighting on orders of your government is doing your duty, fighting out of conviction is murder!
But we still have no answer to our question if the side the combatants fight on will impact if they will be prosecuted? Looking at the recent history, we think it does and it is safe to assume that this will repeat itself in the current conflict in Ukraine. To put it simple: Partners of Ukraine will most likely not prosecute volunteer combatants fighting for Ukraine and prosecute those fighting against Ukraine. Why? Because Swedish, British, German, Belgian, French and Spanish combatant volunteers from the Balkan War fighting at the side of western backed Bosnia and (partially) western backed Croatia have not been prosecuted but volunteers from the same nations fighting at the side of Serbian forces have been prosecuted.
This conflict sees several nations with their citizens fighting at both sides of the conflict and recent history shows that the view of the Government will determine if they will be “tolerated hero’s” or “prosecuted criminals”. In the case of the Spanish combatants, their personal views are seen as Anti-Government, which although denied by all officials, seem to have a strong influence on the decision of prosecution and the charges.
And in all this, we should remain realistic. Both side of the conflict also have Russian citizens in their ranks. The Russian citizens at the side of the militias are seen as heroes by a fast majority in Russia and Mr. Lavrov and many other high officials have given condoning statements about these volunteers and soldiers on vacation. It is very unlikely that any of these Russian citizens will ever be prosecuted in Russia. The Russian combatants fighting at the side of Ukraine, of course much smaller in numbers, will most certainly be prosecuted should they ever return to Russia, which is safe to assume given the fact that Russia has already started to prosecute Ukrainian citizens involved in this conflict.
Justice depends on the view of your government, not on good or bad!
This all reminds me of a statement of my professor on the subject of mercenaries:
Mercenaries have only 2 risks: being killed or being prosecuted. The later risk is mitigated only by endorsement by your government and avoiding being captured by the opposing side. Without that, the first risk is still the easiest way to avoid ending up in jail unless the mercenary marries a local on the winning side.
My advice to all foreign combatants in this conflict: marry a local and stay where you are or get a good lawyer.