Leaving Ireland to take up arms with Ukraine against Russia

Atlantic Dawn

What would be the legal implications of leaving Ireland to join up with Ukrainian forces fighting the Russians? Would there be some legal disclaimer you need to sign leaving Ireland, what would be the implications of returning to Ireland if you had say killed multiple Russians during your time protecting Ukraine from invaders?

Victor

It depends on who you are, what organisation you join and what you do.

Ukrainian citizens joining the Ukrainian army and fighting the Russian army within the laws of war wouldn't be a problem.

Joining a private militia and murdering Russians just because you can would be seriously problematic.

Atlantic Dawn

Yes assumption would be joining proper Ukrainian Army but that might take months/years to properly join.

Victor

Not a particular problem. Irish people regularly join other armies - British, American, French.

It would be an issue for certain people, e.g. members and possibly past members of the Defence Forces.

I suspect the Ukrainian Army will take anyone they can get, within reason, and training will be brief.

In most cases, Irish law only applies to Ireland. There are notable exceptions when it comes war crimes, child abuse, Northern Ireland, the UK, EU law and choice of jurisdiction situations.

Of course, does one want to be killed, be involved in killing, lose both your legs, have PTSD, etc.?

Peregrinus

It used to be an offence (under the Foreign Enlistment Act 1870, a UK statute which remained in force in the Irish Free State/Ireland after 1922) for an Irish citizen to enlist in the military forces of any foreign state that was at war with any other foreign state, unless Ireland was also at war with that other foreign state. (And of course, the War of Independence excepted, we've never been at war with any state.)

Note that this wasn't confined to enlisting in Ireland; if you travelled to e.g. France and enlisted in the French Foreign Legion at a time when France was at war with any other country then you were committing the offence. But there might be some room for argument over whether a country was "at war". A war doesn't require a formal declaration; it's a question of fact. But you could certainly claim that if you enlist in the forces that is engaged in, say, a UN peacekeeping action, even one that involves a lot of shooting (Korea, the Congo) that country is is not "at war".

But in practice these issues never came to court. It was difficult or impossible to prosecute the offence when committed abroad; how would the Irish authorities prove that someone had enlisted in a foreign army, without the co-operation of the record-keeping department of that army? So the Act functioned mainly to prevent foreign military forces recruiting in Ireland.

The Act was repealed in Ireland in 1983 as part of a general tidying up of pre-1922 legislation that was obsolete, inoperative, no longer required, etc.

(Note that the Act is still in force in the UK. So a British Citizen who enlists in the forces of Ukraine, which is at war with Russia, which is not at war with the UK, would commit an offence. But I don't think the UK was any more successful in prosecuting the offence when committed abroad than Ireland was.)

Victor

That act was mostly about punishing people that got caught.

Peregrinus

https://www.boards.ie/discussion/comment/118712100#Comment_118712100

It was mainly about preventing embarrassment to the UK government. After the Napoleonic wars there were a lot of trained ex-officers around. More than few of them found there way to South America, and found employment in the revolutionary armies that were fighting wars of independence against Spain. These wars were largely successful, and Spain lost most of her colonial possessions in the Americas. While there were lots of reasons for the Spanish defeat, official opinion in Spain took a dim view of of the contribution made by British-trained officers, and Anglo-Spanish relations became quite strained. The British government didn't think this was in the UK's best interests. Nor, for obvious reasons, were they keen in principle on colonial possessions asserting their independence by force. Plus, they didn't want Britain to become known as an exporter of mercenaries. So for all these reasons they legislated in 1819 to try to prevent ex-servicemen enlisting in foreign armies.

They had a similar problem in 1865-70, with ex-officers heading off to fight on one side or the other in the American Civil War, according to their political leanings or simply in search of adventure. Officers fighting for the South, in particular, caused acute tension with the US government, which already suspected the UK of being tacitly supportive of the South. The 1819 legislation proved to be not very effective in preventing this and, when the Franco-Prussian war broke out in 1870, in which the UK really wished to appear neutral, they updated and strengthened the law in the form of the Foreign Enlistment Act 1870.

It's true that successful prosecutions of those who enlisted were rare, but this wasn't really the point. The point was to minimise the number of people who enlisted in the first place, and the significant provision was not the one which said "it's a crime for a British Subject to enlist in a foreign army" but another one which said "it's a crime for anyone, British subject or not, to induce anyone within the UK to enlist in a foreign army" — the aim was to limit recruitment activity. In the days before easy travel it was not a simple matter to go to a country where you didn't speak the language, have your expertise recognised and secure a commission in the army, so countries wishing to recruit British ex-officers would have agents in London would could inform, advise, make arrangements, and even organise your passage. The Act was fairly successful in suppressing that kind of activity.

BattleCorp1

Make a will. You might not be coming back.

ohnonotgmail

was that act ever used against those who fought in the spanish civil war? Neither side hid what they were doing.

Peregrinus

https://www.boards.ie/discussion/comment/118717987#Comment_118717987

SFAIK no, it wasn't. Remember, it only dealt with enlisting in a foreign army that was at war with a state that Ireland wasn't at war with. Neither side in the Spanish Civil War considered itself to be at war with Spain - they both considered that they were Spain, fighting internal Spanish enemies - and they certainly weren't at war with any other country. So it would have been very hard to argue that the Act was being infringed.

I don't think the UK tried to use the Act in connection with enlistment in the Spanish Civil War either.

ohnonotgmail

https://www.boards.ie/discussion/comment/118718003#Comment_118718003

so how did it work for those who enlisted in the british army during WW2?

GM228

https://www.boards.ie/discussion/comment/118717987#Comment_118717987

An abstract from the Twentieth Century British History, Volume 10, Issue 1 - The Foreign Enlistment Act and the Spanish Civil War, 1936–1939 by SP Mackenzie:-

This article examines the official response to the policy problems raised by the over two thousand Britons who went to fight for the Republic during the Spanish Civil War, with particular reference to the Foreign Enlistment Act (1870). Revived in January 1937 as a means of reducing the flow of volunteers and curbing the recruiting efforts of the Communist Party of Great Britain, the act proved embarrassingly unenforceable. Ambiguity over its applicability to the situation in Spain, combined with problems of evidence, meant that no charges were ever laid against volunteers caught attempting to leave for Spain or members of the recruiting organization of the CPGB. Though a complete failure as a legal tool, the Foreign Enlistment Act nevertheless symbolically underlined the British government's declared support for international non-intervention in Spain, and was never rescinded.

Seems to have applied equally to Ireland also, there are a few academic reports on why the Act was near impossible to enforce.

Claw Hammer

https://www.boards.ie/discussion/comment/118712126#Comment_118712126

Ireland fought against the Republic of Katanga in 1961.

ohnonotgmail

https://www.boards.ie/discussion/comment/118718576#Comment_118718576

That was part of a UN Mandate. We were not at war no more than we are at war in the Lebanon.

GM228

https://www.boards.ie/discussion/comment/118718576#Comment_118718576

But it wasn't Ireland fighting against the Republic of Katanga though, rather it was a UN peace keeping mission dealing with the Congo crisis which saw the Irish contingent attacked by Katangese forces.

Cyclingtourist

To answer the OP questions, no and none.

Claw Hammer

https://www.boards.ie/discussion/comment/118718663#Comment_118718663

Ireland participated in at least 2 engagement in which the Katangans were attacked. It wasn't defensive.

Peregrinus

https://www.boards.ie/discussion/comment/118718576#Comment_118718576

The Republic of Katanga was an unrecognised state — not just by Ireland but, so far as I know, by anyone. Not even Belgium, which basically sponsored the secession, recognised the Republic of Katanga. The Irish government's position - and this would have had wide international acceptance - was that Irish forces were participating in a UN peacekeeping mission in the Republic of the Congo, in the course of which they engaged separatist rebels. They were not at war with any state.

Claw Hammer

https://www.boards.ie/discussion/comment/118723677#Comment_118723677

Recognised or not, they fought with the Republic of katanga. Belgium recognised the state of katanga de facto. The Irish attacked on at least 2 occasions in a manner which was not self defence and were attacked on countless others. If another state attacks you, and you fight back, you are at war.

Cyclingtourist

https://www.boards.ie/discussion/comment/118725662#Comment_118725662

"If another state attacks you, and you fight back, you are at war."

This is just semantics. Because your UN contingent defends itself doesn't mean your country is at war.

To get back to the thread, anyone can join the Ukrainians without sanction just like they can join the French Foreign Legion or the British armed forces.

ohnonotgmail

https://www.boards.ie/discussion/comment/118725662#Comment_118725662

The irish were there as part of the un mandate. the UN is not a state so by your definition cannot be at war.

Claw Hammer

https://www.boards.ie/discussion/comment/118725828#Comment_118725828

The Irish element of a UN contingent was attacked.

Irish elements of UN contingents attacked the forces of another state.

It was not a war between the UN and Katanga.

NUTLEY BOY

Check your insurance policies that there are no war-risk exclusions that might apply.

If they do, you might render something important like life assurance nugatory if you are killed or incapacitated. That might have serious financial implications, in turn, for your family if you get flattened.

If you are going to the Ukraine you better ask the underwriters first !!!!

ohnonotgmail

https://www.boards.ie/discussion/comment/118726880#Comment_118726880

It was not a war between Ireland and katanga.

Bannasidhe

https://www.boards.ie/discussion/comment/118718014#Comment_118718014

All those born on the island of Ireland before 1922 were British citizens unless they took formal steps to renounce it.

Bit less clear cut for those born in the Free State - which was technically a British Dominion. The Nationality and Citizen Act 1935 (Free State) which, to simplify it, gave formal recognition to the concept of a separate Irish citizenship.

The Free State did want to issue passports declaring the barer was a "citizen of the Irish Free State" from 1923, the UK objected on the grounds that Ireland was still part of the Empire, 1924 passports were issued that stated the barer was a "Citizen of the Irish Free State and of the British Commonwealth of Nations", these were not recognised by the UK who insisted passports had to declare the barer was a"British Subject".

It was 1939 before passports were issued declaring the barer "Citizen of Ireland", but all adults were still also entitled to British passports.

Short answer your question - the Irish who joined British armed forced in WWII were British/Dual citizens by birth.

Claw Hammer

https://www.boards.ie/discussion/comment/118730990#Comment_118730990

How do you define a war? You engage in a series of battles, particularly when you attack them and they attack you with an enemy you are at war. A war is not like a football match subject to FIFA rules. By your definition the War of Independence was not a war, it was a row between some people in a state and the authorities.

ohnonotgmail

https://www.boards.ie/discussion/comment/118731231#Comment_118731231

Katanga was not a country. The irish were there under a UN Mandate. all of which this irrelevant to this discussion.

https://www.boards.ie/discussion/comment/118712126#Comment_118712126

Fascinating stuff, thanks for sharing.

AnRothar

Curious, if someone leave the state and goes to fight for Russia against Ukraine.

Boss finds out and fires them.

Would they have a case for unfair dismissal?

Victor

They probably didn't show up for work that day.

Manach

Given the pardons that were implemented by a previous government who deserted their army posts during WW2 to join the Allied forces, it would be unlikely there would be much official drive to punish civilians who enlisted. Offhand, there are only a few extra-territorial offences and such enlistment is not one.

Claw Hammer

https://www.boards.ie/discussion/comment/118731247#Comment_118731247

Katanga in 1961 was more of a country than Ireland in 1920. Whatever the reason was for the Irish being there, the fact is that they were attacked and fought. The Irish also attacked Katanga other than in self defence. About 200 Irish were held as prisoners-of-war (note war) and were visited by the Red cross who provided them with better food that the Irish government did.

Peregrinus

https://www.boards.ie/discussion/comment/118731088#Comment_118731088

Strictly speaking, that wouldn't matter. The Foreign Enlistment Act, which was in force in Ireland at the time, doesn't contain any exception allowing you to enlist in the armed forces of another country if you happen to be a citizen of that country. So being a dual citizen with the UK wouldn't provide a defence if the other elements of the offence were established.

But there's a long tradition of the British forces recruiting from Ireland. The Foreign Enlistment Act has never been enforced against that practice. SFAIK proceedings have only ever been taken against people already serving in the Irish forces who deserted their posts to enlist in the British, and the proceedings were not for enlisting in the British forces but for deserting from the Irish.

Victor

1. Wasn't the Foreign Enlistment Act operated on royal prerogative (I understand this transferred to the Irish government post independence)?
2. IIRC, there was no separate Irish citizenship until about 1935.

Bannasidhe

https://www.boards.ie/discussion/comment/118743980#Comment_118743980

Yes, I remember those cases.

Peregrinus

https://www.boards.ie/discussion/comment/118744207#Comment_118744207

1. Not quite. The Free State Constitution of 1922 provided that laws in force in the territory of the IFS when the IFS was created continued in force unless and until the Oireachtas amended or repealed them, and the 1937 Constitution has a similar provision. So pre-1922 laws continued (and still continue) in force in Ireland not by any exercise of the royal prerogative, but by a constitutional provision continuing them.
2. The IFS Constitution of 1922 created citizenship of the Irish Free State and conferred certain rights on citizens - the right to free education, the inviolability of the dwelling, the right (if over 21) to vote for members of Dail Eireann, etc. It also referred to " the common citizenship of Ireland with Great Britain", and the British courts took the view that (a) the reference to "common citizenship" was a reference to the status of British Subject, and (b) IFS citizenship was a purely domestic matter, that might affect your rights or obligations within Ireland but that had no international significance. This was a continuing source of friction between the IFS and the UK. It was in that context that the de Valera government passed the Irish Nationality and Citizenship Act 1935 which built on and expanded the rather sketchy citizenship provisions in the 1922 Treaty.

https://www.boards.ie/discussion/comment/118712084#Comment_118712084

It comes under the joe Duffy act. Boast about it on liveline first and you are ok😃