Heroes or Criminals: The Legality of American Volunteers in the Russo-Ukrainian War
With the outbreak of hostilities in the Russo-Ukrainian War, the arrival and participation of foreign volunteer fighters has been one of the defining characteristics of the conflict. According to a March 2022 statement by the Ukrainian Foreign Minister, Dymetro Kuleba, over 20,000 volunteers have joined the Ukrainian armed forces, of which an estimated several thousand are American citizens. [1] Despite the uncertainty about precise numbers, it is important to consider the legality under U.S. law of U.S. citizens volunteering in foreign nations. Throughout the two and a half centuries during which American volunteers have participated in foreign wars, there have been a series of acts by Congress and rulings by the Courts on the legality of such participation. These acts and rulings provide a basis for analyzing the current situation. When one applies historical legal precedents, it becomes clear that, in the current situation in Ukraine, it is not illegal for an American citizen to volunteer in Ukraine under current U.S. law, given they are recruited through passive channels, as will be defined later in this article.
During the Early Republic Era in the late eighteenth century, the Federal Government started passing legislation that established federal policy governing when American citizens could legally volunteer to fight for foreign powers. As conflict arose between the newly formed French Republic and its neighbors in the 1790’s, disagreements arose within the burgeoning United States regarding its foreign policy stance on France. Domestic divisions came to a head during the Genêt Affair, when French minister Genêt arrived in the United States seeking to enlist American volunteers to serve in the French navy against the British in the Atlantic. [2] Seeking to simultaneously establish a “consistent policy on the issue of neutrality” and to affirm the authority of Congress rather than private citizens to declare war, Congress passed the Neutrality Act of 1794. [3] The act makes it a misdemeanor for any person “within the jurisdiction of the United States” to “prepare…a means for…any military expedition...against the territory or dominions of any foreign prince or state with whom the United States is at peace.” [4] With revisions and amendments over the next two centuries, such as the Neutrality Act of 1818, the law was later adapted and codified into its current form as 18 U.S. Code § 960, “Expedition Against Friendly Nation.” [5] Besides the rephrasing of a few elements, it has largely retained the content of the original Neutrality Act, with the only change being that instead of a misdemeanor, the charged individual “shall be fined under this title or imprisoned not more than three years, or both.” [6]
Other laws passed since the Neutrality Act emphasize the pertinence of the specific nation state in which U.S. citizens seek to volunteer. The Expatriation Act of 1954 states that citizens can lose their citizenship if they either enlist as an officer in any military or enlist in any position in a military currently at war with the United States. [8] However, a 1986 amendment to the act added that in both cases, citizens must do so “with the intention of relinquishing United States nationality.” [9] At the same time, updates regarding domestic terrorism in 8 U.S. Code § 2332, “Criminal Penalties,” from the USA PATRIOT Act (2001), criminalize volunteers if the host nation is considered a terrorist group, punishing them with imprisonment. [10] As the United States is not currently at war with Ukraine nor is Ukraine on the U.S. Government’s list of State Sponsors of Terrorism, the status of Ukraine would not make U.S. citizens volunteering in Ukraine in this case prohibited. [11]
The Neutrality Act and the following “Expedition Against Friendly Nation” Act do not generally preclude American citizens from volunteering to fight for foreign nations, but rather identify specific circumstances under which doing so would be illegal. In order for the “Expedition Against Friendly Nation” Act to apply, volunteers must have organized “a military or naval expedition or enterprise” within the physical jurisdiction of the United States. [12] This can be interpreted as where the United States exercises its sovereignty, namely U.S. states, U.S. territories, and U.S. territorial sea. Therefore, it does not prohibit individuals from going abroad for the purpose of enlisting in a foreign army. The 1896 ruling by the U.S. Supreme Court in Wiborg et al. v. United States affirmed such an interpretation, with a specific reference to the Neutrality Act. The case concerned a Danish captain, Mr. Wiborg, and his steamer, Horsa, which was apprehended while meeting a ship carrying volunteers and arms for Cuban revolutionaries against Spain. [13] Because the Horsa was offshore at a distance outside the boundaries of U.S. territorial waters, and thus outside of U.S. jurisdiction, when the volunteers boarded it and assembled with weapons around a Cuban flag, the Supreme Court declared that “no offense was committed in the transportation of these men, the arms and munitions.” [14] This ruling clarifying the Neutrality Act served as the legal basis for U.S. volunteers in many twentieth century conflicts. Examples include the Abraham Lincoln Brigades in the Spanish Civil War in which the United States held an officially neutral position and the Flying Tigers in the Second Sino-Japanese War prior to the involvement of the United States. In both cases, units were mustered within the host nation—the former in Albacete, Spain, and the latter in Burma—rather than the United States. [15] Thus, Wiborg et al. v. United States demonstrates that U.S. citizens volunteering in Ukraine could potentially be legally permitted under the Neutrality Act if volunteers are similarly organized outside U.S. physical jurisdiction.
Whether U.S. citizens who currently volunteer in Ukraine are organized outside U.S. physical jurisdiction largely depends upon the use of technology in the recruitment process. The posters and magazine advertisements of the past relevant conflicts have been replaced with online recruitment websites. The line between U.S. jurisdiction and non-U.S. jurisdiction becomes blurred when considering internet websites that can be accessed around the world. It becomes difficult to determine whether recruitment websites hosted in Ukraine are subject to U.S. legal jurisdiction when U.S. citizens access the website. Although there is little clear consensus in international cases, past rulings in civil cases between U.S. states have established certain precedents that may potentially be applicable given the similarity in situations.
In disputes between entities from different U.S. states that involve websites, it is necessary to determine which state has jurisdiction over the website. An example can be seen in the 1997 seminal case Bensusan Restaurant Corp. v. King, where a jazz club in New York issued a cease and desist order to another club in Missouri for creating a website with a similar name. [16] The U.S. Court of Appeals for the Second Circuit ruled in favor of the club in Missouri, affirming the previous decision by the U.S. District Court for the Southern District of New York that the long-arm statute of New York law did not extend jurisdiction over the Missouri club. [17]
In a similar 1997 case, Cybersell, Inc. v. Cybersell, Inc. II, an Arizona corporation, Cybersell, sued a Florida corporation in an Arizona District Court for trademark infringement for using the same name. [18] When the Arizona District Court granted the Florida corporation’s motion to dismiss the case due to a lack of personal jurisdiction, the Arizona corporation appealed the dismissal to the U.S. Court of Appeals of the Ninth Circuit. [19] The Appeals Court upheld the lower court’s decision, using the theory of “interactive” versus “passive” websites to determine personal jurisdiction over the Florida corporation, which used an internet website for marketing purposes. [20] “Interactive” websites are defined by two-way online communication which requires an ongoing relationship between the website and the user, while “passive” websites are those that simply make information available to interested viewers. [21] The Appeals Court argued that “creating a site, like placing a product into the stream of commerce, may be felt nationwide or even worldwide but, without more, it is not an act purposefully directed toward the forum state.” [22] Because the website only advertised the club and did not host two-way communication, serve as a platform to conduct business, or solicit user information on the website, it was deemed “passive.” [23] Thus, the Appeals Court concluded that the Arizona District Court did not have personal jurisdiction over the Florida corporation, despite the fact that the Florida corporation’s website could be viewed online from within the jurisdiction of Arizona Court. [24]
This reasoning used to determine jurisdiction over websites hosted outside physical jurisdiction through the “interactive” versus “passive” lens can be applied to online recruitment websites for the Ukrainian conflict. The official website created by the Ukrainian Government for volunteering in Ukraine, fightforua.org, merely provides instructions and recommendations for potential volunteers rather than actively engaging in the process of recruiting volunteers online. [25] The actual contracts between the volunteers and the Ukraine military, which represent recruitment, are signed only when the volunteers arrive in Ukraine. [26] Therefore, the website should be classified as “passive,” with the actual recruitment of volunteers occurring outside U.S. jurisdiction in Ukraine. However, it is also important to note that the classification of “interactive” or “passive” requires a case by case analysis and does not mean that all other websites seeking volunteers for Ukraine, should others exist, necessarily also fall into this “passive” classification. The process of classification would require an examination of the specific features and elements of each website and whether or not they support two-way online communication and a bilateral relationship between the user and the party running the website. If another website were classified as “interactive,” this could mean that volunteering through it could be considered to be done “within the territory and jurisdiction” of the United States and thus subject to prosecution.
Ultimately, considering the changes in the current use of technology in recruitment, past precedent in rulings and laws in effect since the Neutrality Act of 1794 affirm the legality of U.S. citizens volunteering in Ukraine, if that volunteering is done through “passive” channels and thus not organized within U.S. jurisdiction. Nonetheless, given the evolving nature of the conflict, the legality may be subject to change should the classification of Ukraine in U.S. policy or the circumstances determining jurisdiction change, the latter being the case should Ukraine begin to actively recruit volunteers on their official website. However, until then, Americans continue to be free to fight on foreign soil for the ideals that they cherish at home.
Edited by Susannah Cray
Sources:
[1] Associated Press, “20,000 foreigners volunteer to fight for Ukraine, foreign minister Kuleba says,” Washington Times, March 6, 2022, https://www.washingtontimes.com/news/2022/mar/6/dmytro-kuleba-foreign-volunteers-flocking-ukraine-/.
[2] “The Citizen Genêt Affair, 1793–1794,” Office of the Historian, United States Department of State, https://history.state.gov/milestones/1784-1800/citizen-genet#:~:text=The%20Gen%C3%AAt%20affair%20forced%20the,bill%20on%20June%204%2C%201794..
[3] “The Citizen Genêt Affair,” United States Department of State.
[4] Theodore B. Olson, Overview of the Neutrality Act, Memorandum Opinion For The Attorney General, September 20, 1984, https://www.justice.gov/file/23671/download, 210.
[5] Expedition Against Friendly Nation, 18 U.S. Code § 960 (1994).
[6] Expedition Against, 18 U.S. Code § 960 (1994).
[7] United States Attorney’s Office, District of Minnsota, “Four United States Citizens Sentenced for Attempting to Overthrow the Gambian Government,” May 12, 2016, https://www.justice.gov/usao-mn/pr/four-united-states-citizens-sentenced-attempting-overthrow-gambian-government.
[8] Expatriation Act of 1954, 8 U.S. Code § 1481 (1988).
[9] Expatriation Act of 1954, 8 U.S. Code § 1481 (1988); see also “8 U.S. Code § 1481 - Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions: Notes,” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/uscode/text/8/1481.
[10] Criminal penalties, 18 U.S. Code § 2332 (1996); see also Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Pub. L. No. 107–56 (2001).
[11] “State Sponsors of Terrorism,” Bureau of Counterterrorism, United States Department of State, https://www.state.gov/state-sponsors-of-terrorism/.
[12] Expedition Against, 18 U.S. Code § 960 (1994).
[13] Wiborg et al. v. United States, 163 U.S. 632, 632-635 (U.S. 1896).
[14] Wiborg et al., 643-644.
[15] “On the Abraham Lincoln Battalion in the International Brigades,” FAQs, Abraham Lincoln Brigades Archives (ALBA), https://alba-valb.org/who-we-are/faqs/; see also “The Flying Tigers, America’s Secret Army in Burma,” National Air & Space Museum, Smithsonian Asian Pacific American Center, https://smithsonianapa.org/recollections/flying-tigers/.
[16] Bensusan Restaurant Corporation v. King, 126 F.3d 25, 26 (2d Cir. 1997).
[17] Bensusan Restaurant Corporation, 27-29.
[18] Cybersell, Inc. v. Cybersell, Inc. II, 130 F.3d 414, 414-416 (9th Cir. 1997).
[19] Cybersell, Inc., 414-416.
[20] Cybersell, Inc., 418-423.
[21] “Standards for Internet Jurisdiction,” FindLaw for Legal Professionals, Thomson Reuters, May 3, 2016, https://corporate.findlaw.com/litigation-disputes/standards-for-internet-jurisdiction.html.
[22] Cybersell, Inc., 420-421.
[23] Cybersell, Inc., 423-425.
[24] Cybersell, Inc., 426-427.
[25] “Russia Invaded Ukraine: Enlist To The International Legion Of Defence Of Ukraine,” International Legion of Defence of Ukraine, Ministry of Foreign Affairs of Ukraine, https://fightforua.org/.
[26] “Website was launched for foreigners who want to help Ukraine protect its freedom and territorial integrity,” Presidential Office, President of Ukraine Volodymyr Zelenskyy, March 5, 2022, https://www.president.gov.ua/en/news/zapuskayetsya-sajt-dlya-inozemciv-yaki-hochut-dopomogti-ukra-73361.