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Are those who enlist to fight in Ukraine committing a crime?

In recent weeks we have heard about foreign volunteers, mostly ex-military, who have gone to fight in Ukraine with both Kiev and Russian forces. Even Italy is no exception to the rule. In fact, about fifty volunteers have left for the former Soviet republic. The surely most famous case is that of the former Air Force pilot Claudia Schiff, the 23-year-old from Mira who, after being expelled from the air force, enlisted in the special forces of Ukraine. This behavior has raised doubts, particularly of a criminal nature. In fact, one may wonder whether enlistment in the foreign legion may constitute criminal relevance. In order to provide an exhaustive answer, it is necessary to analyze the various sources of Italian law that deal with this matter.

The Italian penal code and law no. 210 of 1995

The reference article in the Italian legal system is the 288 of the Penal Code, which states:

Whoever in the territory of the State and without approval of the Government enlists or arms citizens, so that they may militate in the service or in favor of the foreigner, shall be punished by imprisonment from four to fifteen years.

The punishment is increased if among the enlisted are serving military personnel, or persons still subject to the obligations of military service.

This provision, which has been in the Code since it came into force in 1930, is intended to protect two exclusive powers of the State: that of military conscription and that of sending military personnel into foreign territory. The ratio of this rule is to prevent private individuals from usurping powers (such as military conscription or sending soldiers abroad) which are the exclusive responsibility of national institutions. Consequently, 288 of the Penal Code is configured as a crime against the personality of the State.

If we analyze the norm, we can see that the active subject (that is the one who commits the crime) is not the mercenary who enlists in the Legion, but rather the one who enlists. Therefore, it is not the enlisted person who will be criminally liable, but rather the recruiter.

Different matter is Law no. 210 of 1995, with which Italy ratified the UN Convention against the recruitment, financing and training of mercenaries of December 4th, 1989. In fact, the Convention does not limit itself to punishing only the one who recruits mercenaries but also the mercenary himself, unlike art. 288 Penal Code. However, it can be observed that, in art. 3 of law 210, there are several exceptions that make the punishment of the enlisted person only to the following cases:

Whoever, having received a financial consideration or other utility or having accepted the promise thereof, fights in an armed conflict in the territory however controlled by a foreign State of which he is neither a citizen nor a permanent resident, without being part of the armed forces of one of the Parties to the conflict or being sent on an official mission as a member of the armed forces of a State not party to the conflict, shall be punished, if the fact does not constitute a more serious crime, with imprisonment from two to seven years

Art. 3 therefore establishes that the active subject of the crime is also the enlisted, but with several exceptions. In fact, the main purpose of the rule is to prevent the emergence of phenomena related to mercenary.

The crime of high treason

The last rule that should be analyzed is the crime of high treason provided for in art. 77 of the Military Penal Code of War, which states that

The soldier, who commits any of the crimes against the

personality of the State foreseen by articles 241, 276, 277, 283,

285, 288, 289 and 290-bis of the Penal Code, as amended by the decree

September 14, 1944, no. 288, and by the law of November 11, 1947, no. 1317,

is punished in accordance with the corresponding

provisions of the same Code, increased by one third the penalty of

imprisonment

Following a more analytical reading, it can be observed that the active subject is only the military (and therefore not the simple civilian) and that the offences are explicitly mentioned. The latter are all configured as crimes against the personality of the State.

Conclusions

It can therefore be said that enlistment in the foreign legion, although it may be subject to stigmatization, does not in itself constitute a crime according to Italian law. In fact, the national legislator has tried at first (with the rules of the Penal Code) to protect the integrity of the State and then to limit the phenomenon of mercenaryism by implementing the UN Convention.

There is also a great difference depending on whether or not the subject is part of the armed forces. Basically, what is relevant from the criminal point of view is when an offence is configurable as a crime against the personality of the State. A person enrolled in the foreign legion can be prosecuted by the Italian judicial authorities only when he has committed an offence against the institutions of the State.

Translated by Moira Rimini


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  • L'Autore

    Federico Quagliarini

    Federico Quagliarini è attualmente laureando in Giurisprudenza presso la Statale di Milano. Durante il suo percorso universitario ha sviluppato un forte interesse per il diritto internazionale in particolar modo per le questioni legate agli aspetti economici. In Mondo Internazionale ricopre il ruolo di caporedattore presso l'area Legge e Società.

    Federico Quagliarini is a grad student in law at University of Milan. Throughtout his studies he has developed a deep interest in international law, in particular for economic aspects. At Mondo Internazionale he is chief editor in the area Legge e Società.

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