While the ministry of defence say there are no laws preventing civilians joining up, there are certain limits and laws to which they are bound. Volunteer soldiers lose their protected status as a ‘civilian’, becoming instead ‘active combatants.’
The Ukrainian embassy would not reveal how many Luxembourg nationals had registered and joined the conflict--citing security reasons--but confirmed “that it is a small number.”
The ministry of defence in response said that, “so far the DoD (department of defence) does not know of any citizen or resident who left to go enlist in Ukraine.”
There are no specific national laws in the grand duchy that could pose legal consequences for citizens enlisting in a foreign army, militia or military group. However, international law does impose certain limits, confirms a spokesman for the ministry of defence. The ministry stresses that there is a “fundamental distinction” between combatants and civilians, “who are protected from attack.”
“We speak of direct participation in hostilities when people perform acts aimed at supporting a party to the conflict by directly causing harm to another party, either by directly causing death, injury or destruction, or by directly harming enemy operations or military capabilities,” says the ministry of defence, marking out the difference between a neutral citizen and someone who can “lawfully be attacked.”
Citizens who enlist to fight are judged in accordance with international law and applicable jurisdiction. A state also could have extraterritorial criminal jurisdiction for “certain acts committed by its nationals abroad.”
A spokesman for the judicial administration also confirmed, rather more hesitantly, that while there were no national laws preventing citizens from joining foreign armies or military groups this was not the case for terrorist organisations.
In 2019, Luxembourg’s prosecution a suspected ISIS fighter who grew up in Luxembourg.
The Luxembourg state was unable to successfully extradited Duarte from Iraq because he was not a Luxembourg national.
Foreign affairs minister Jean Asselborn (LSAP) at the time revealed that work was underway to create an international tribunal for foreign jihadi fighters in Iraq with the aim to put on trial European nationals who had joined Islamic State group and were detained in Iraq and Syria. The Luxembourg government supported the principle, however, it did not have the unanimous backing from EU member states.
The grand duchy’s penal code in articles describes what it considers to be terrorism.
“An act of terrorism is any crime… by its nature or its context, [which] may cause serious damage to a country, an organisation or an international body and has been committed intentionally for the purpose of: serious intimidation of a population, unduly coercing a government, international organisation or body to do or refrain from doing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country, organisation or international body,” states Art. 135-1.
Luxembourg remains officially neutral in the Russo-Ukrainian war. Article 7 of the Hague convention V stipulates this remains the case even with the state’s recent delivery of arms and ammunition. The state does not lose its neutrality nor does it shoulder any responsibility for its civilians should they decide to participate in the conflict, which is a priori permissible under international law (Art.6).