With the death of a Kiwi fighter in Ukraine, should the government make it harder for volunteers to leave?

Dominic Bryce Abelen has been described as a “warrior to the end”. He is also the first New Zealand soldier to be killed fighting in Ukraine. His death re-emphasizes the status of foreign fighters in this war.

Abelen was off duty with the 2/1 Battalion of the Royal NZ Infantry Regiment and one of several former or current New Zealand Defense Force (NZDF) soldiers in Ukraine. Like other volunteers, he will have felt a strong ethical duty to be there and believed he was defending a country against a blind and inhuman aggressor.

Ukrainian President Volodymyr Zelenskyy’s appeal for individuals to help has seen thousands of foreign fighters respond since the Russian invasion six months ago. Russia is playing the same game, actively recruiting foreign mercenaries and volunteers.

The upshot is that hundreds of New Zealand volunteers could be in Ukraine at the moment, despite the very limited help their government can provide.

Dominic Abelen was on leave from the NZDF when he was killed during an operation to retake trenches from Russian forces.
Teaukura Moetaua/Getty Images

Walking a tightrope

Two problems arise when volunteers from other countries join the fight on another nation’s soil.

First, the lines between what constitutes a lawful or unlawful combatant are blurring, and warfare can often become particularly frantic.

Second, what started as a bilateral conflict is turning into an international quagmire.

This is why the United States, NATO and allied nations like New Zealand have actively attempted to walk a difficult tightrope – providing military support, but only to Ukraine’s sovereign border. .

Read more: Ukraine’s foreign legion may be new, but the idea isn’t

Thus, New Zealand can provide military equipment but cannot physically use it within the country’s borders. NZDF military personnel can also train Ukrainian soldiers, but this must be done outside Ukrainian territory.

While these efforts mean New Zealand is not technically neutral, it is also not an active participant. It’s a very fine line. And if NATO or its supporters become active participants, Ukraine could easily turn into a Third World world.

If New Zealanders fought in Ukraine with official permission, that would effectively make New Zealand an active participant. New Zealand’s relations with Russia would become very difficult.

To avoid a global conflict, therefore, there can be no officially NATO-sanctioned (or Kiwi) boots on the ground.

The status of unofficial soldiers

Assuming this critical boundary is not crossed, the question then becomes what to do with volunteers who go off to fight without official authorization or recognition. Two basic principles apply when considering the status of New Zealanders fighting in Ukraine:

  • NZDF members who join the fight for another country without permission are on dangerous legal ground – one soldier cannot have two masters

  • a general principle applies that such combatants should not become mercenaries, a status prohibited by international and national law.

The key definition of a mercenary is that he earns money “substantially greater than that promised or paid to combatants of similar rank and office in the armed forces” of the foreign country for which he is fighting.

If caught, mercenaries do not have the rights of true prisoners of war and can be executed. If the volunteer is a citizen or resident of the country at war, or if he is a member of the armed forces of this country, he is not a mercenary.

For these reasons, countries such as Britain, Australia and the United States have tried to prevent potential volunteers from joining.

Thus, the status of New Zealanders fighting in Ukraine without official authorization is difficult. Although a general travel warning to avoid Ukraine has been issued, this does not actually prohibit New Zealanders from going there. Nor does he forbid them to volunteer to fight.

There is something of an anomaly here, given the efforts to prevent volunteers from joining terrorist groups and to deal with those who return.

Can New Zealand volunteers be arrested?

In reality, whether the rules regarding foreign fighters in Ukraine are followed is up for debate.

Russia is already taking a hard line against foreign volunteers, holding trials and promising executions. Captured New Zealand volunteers will likely suffer the same consequences whether or not they are wearing Ukrainian army uniforms.

Read more: There’s little to stop New Zealanders going to fight in Ukraine – but few legal protections if they do

It is difficult for any government. Providing more equipment, training and humanitarian aid to Ukraine can be justified. But it may also encourage some to join a “just” war themselves is the right thing to do.

There is no doubt that the Government must keep an exceptionally tight leash on any NZDF personnel who attempt to join the conflict. This cannot be tolerated.

The more difficult question is whether to take a tougher stance against those outside the military who would willfully put themselves in harm’s way – and in the process make this war even more complicated and dangerous.

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