Yes, it’s legal for individual Americans to fight in Ukraine

Russian President Vladimir Putin announced Russia’s invasion of Ukraine on Feb. 24, and Russian soldiers crossed into Ukraine soon after.

Since then, Ukraine has called for foreign volunteers to help its defense. Ukraine Foreign Minister Dmytro Kuleba invited foreigners to join the war in a tweet, and many Americans joined people from around the world in responding to his tweet.

In a March 8 tweet, Ukrainian newspaper Kyiv Independent reported 20,000 foreign volunteers had joined the International Legion Of Defense Of Ukraine since March 6. That’s left some Americans wondering if they’re allowed to join Ukraine’s foreign legion.

THE QUESTION

Is it legal for individual Americans to fight in Ukraine?  

THE SOURCES

• U.S. State Department

• Wiborg v. U.S.

• Department of Defense

• David Malet, an associate professor at American University

• U.S. code

THE ANSWER

Yes, individual Americans can legally fight in Ukraine. 

WHAT WE FOUND

On Feb. 27, Ukrainian President Volodymyr Zelenskyy said in a statement, “Anyone who wants to join the defense of Ukraine, Europe and the world can come and fight side by side with the Ukrainians against the Russian war criminals.” On March 5, Zelenskyy’s office announced it launched a website where volunteer foreigners can enlist in its foreign legion to defend Ukraine.

The U.S. State Department says it’s “not a crime under U.S. law for an individual to go abroad for the purpose of enlisting in a foreign army.” 

The State Department cites a Supreme Court case from 1896, Wiborg v. U.S., which found, “it is not a crime or offense against the United States under the neutrality laws of this country for individuals to leave this country with intent to enlist in foreign military service.” The Supreme Court found it would be a crime to organize a “foreign military expedition.”

A military expedition is defined as “a military campaign designed to achieve a specific objective in a foreign country.” Organizing a foreign military expedition in a neutral state violates the laws of war, according to a Department of Defense manual. 

In practice, this means that an American cannot be recruited or hired into a foreign army by someone from within the United States itself, a practice that is outlawed by multiple U.S. codes.  Instead, an American would have to travel to another country first before enlisting in its army, or would have to apply through the foreign country’s embassy.

In this case, Ukraine told interested volunteers to go to a Ukrainian embassy — which is considered Ukrainian territory — to apply.

There’s an interview that interested volunteers are required to go through, and people need to bring their own equipment. The application website suggests clothing, equipment, helmet and body armor. There are heavy restrictions on overseas travel with firearms, but they will be given rifles by Ukraine, according to military news reports.

According to the laws of neutrality as described in the Department of Defense’s manual, an individual loses their personal neutral status when they enlist in a foreign army — not the neutral status of the country they’re from. That means that the U.S. and NATO don’t have to join the war even if Americans voluntarily join the war themselves.

David Malet, an associate professor at American University, explained in a series of tweets that many foreign volunteers fare poorly in wars.

“The ones with specialized fighting skills are treated very well by local commanders, the rest are used as cannon fodder,” he said. “There's something like 1/3 casualty rates with foreign fighters consistently.”

"We've been nothing but clear that Americans should not be traveling to Ukraine and Americans that are in Ukraine should be leaving Ukraine," a senior defense official said of U.S. veterans volunteering to fight in Ukraine during a March 11 press briefing. "The point is you shouldn't be going. There's other ways to help the people of Ukraine."

There is no current estimate of how many Americans have enlisted or died in the war in Ukraine. 

Amnesty International also warns that Americans can be arrested on U.S. soil for war crimes and torture committed abroad. The Brookings Institute warns foreign fighters bring additional issues into wars, namely logistical issues caused by language differences, a potential uptick in violence against civilians and extremism.

“In general, private war is a bad idea even in cases like Ukraine, when there is a clear victim state and villain state,” the Brookings Institute said in a blog post. “If governments believe Ukraine needs more support, they should provide it, not put the onus on individual citizens, especially when such fighters can make things worse for the country in question and pose long-term dangers.”

More from VERIFY: Yes, Russia promised in 1994 to never attack Ukraine if it gave up its nuclear weapons