1.1 Who Is a Genuine Volunteer?

May 1937. When the Spanish minister of foreign affairs Julio Álvarez del Vayo sent to the League of Nations a White Book containing evidence of regular presence of Italian troops on Spanish soil, the civil war had been going on for about a year.Footnote ¹ Having started as a revolt against the government of the Popular Front, the rebellion was soon joined by military generals and factions opposed to the Republican government in Madrid.Footnote ² First with the help of Mussolini and then of Hitler, Francisco Franco – at the time commander-in-chief of the Army of Africa – had been able to transport his troops from Morocco to Europe, and was soon recognized as the most experienced general to lead the Nationalist army.Footnote ³ What began as a mutiny resulted in a civil war, thanks also to the aid furnished by foreign powers in various forms.

In March 1937, del Vayo had sent a note to the League’s Secretary General denouncing the presence of Italian troops as ‘constituting an attack upon the territorial integrity of Spain’ and requesting the note be communicated to all member states.Footnote ⁴ The Council confronted the issue during its ninety-seventh session held in Geneva on 28–29 May.

Although this was not the first attempt made by Spanish representatives to denounce the interventions of Italy and Germany to sustain Franco’s army, the League had never previously been confronted with such evidence. The White Book was in fact the result of a series of documents found in the possession of Italian officers during the battle of Guadalajara, one of the fiercest fought during the war (8–23 March 1937). The Book gave a detailed account of the war materiel, military structure and instructions sent by Rome to its volunteer units. It included payrolls, roadmaps, the numbers of weapons assigned to the various brigades, as well as copies of their military badges.

Certainly, the presence of foreign contingents on Spanish soil had been known for some time. The Non-Intervention Committee based in London had already implemented a land and sea borders control plan to stop the influx of volunteers in February 1937.Footnote ⁵ Hence the League was certainly not the only venue to look at the problem of foreign fighters during those years. Yet it was there that the Spanish representatives kept bringing their claims, denouncing the Non-Intervention Agreement as a ‘legal monstrosity’.Footnote ⁶

On 28 May del Vayo started his speech in front of the Council by referring to the last extraordinary session held in December 1936, which had culminated in the adoption of the first resolution on the Spanish situation.Footnote ⁷ He stated that the evidence collected during the previous months proved beyond doubt that an armed intervention was underway.Footnote ⁸ Then he turned to the White Book, which in his view clearly demonstrated the following:

The Spanish representative made some crucial categorizations in his speech, classifying the contingents as ‘complete units’ forming an ‘army of occupation’, and having a clear line of command attributable to the Italian government. In other words, the organized and structured character of the volunteers sent by Mussolini constituted for him an armed aggression. Yet, beyond these technicalities:

The distinction made between regular and irregular military units is here framed by a clear moral divide. The real volunteers are understood as those men fighting for an ideal: that is, they had come to Spain not following the orders of a government, but rather of their own free will. Moreover, the struggle fought in Spain was to del Vayo universally recognized as a ‘just’ cause for engaging within the ranks of the Republicans. Here is an indication of how the status of foreign fighters depends primarily on an ideological stance.

This differentiation between ‘good’ and ‘bad’ volunteers can be better understood if one looks at the political context of the time. The civil war was generally perceived in Europe as a conflict between two contesting ideologies: communism against fascism.Footnote ¹¹ This was evidenced by the arrival of thousands of volunteers ready to fight on one side or the other.Footnote ¹² In a historical moment that was witnessing the consolidation of totalitarianism, the liberal European powers were deeply worried that the Spanish scenario could result in a world war, and did not wish to expose themselves militarily.Footnote ¹³ Hence the Franco-British plan of non-intervention. Conversely, the Soviet Union hoped to intensify the hostilities in order to gain a greater sphere of influence on the world stage.Footnote ¹⁴

Politics aside, the Iberian Peninsula also became the battlefield for wider cultural struggles: between fascism and communism, certainly, but also between civilization and barbarism.Footnote ¹⁵ The war thus had great resonance among European and American intelligentsia, with many renowned personalities expressing their support, or joining the battlefield. George Orwell, Simone Weil, Ernest Hemingway and André Malraux were among those leftist intellectuals who stood with the Republicans. Drieu la Rochelle, Evelyn Waugh and Ezra Pound were sympathizers of Franco.Footnote ¹⁶ Their open commitment to the Spanish conflict is far from insignificant. It is precisely this cultural heritage that would flood the imaginaries of legal actors in the following decades. The images of these personalities would reappear in other contexts and times, influencing how foreign fighters’ causes would later be understood. But for the moment, let’s return to the Council in May 1937.

After del Vayo completed his speech, the French minister of foreign affairs Yvon Delbos took the floor. First, Delbos reiterated the achievements made by the Non-Intervention Committee, praising especially the frontier control plan.Footnote ¹⁷ Then, he stressed that there was a clear duty facing the League, to recall ‘the foreign combatants, whose presence in Spain … serves to feed the flames of civil war and threatens to extend the conflict’.Footnote ¹⁸ These words were echoed by the British foreign secretary Anthony Eden, who himself praised the Non-Intervention Agreement. On the question of the withdrawal of volunteers, Eden pointed out that ‘foreigners engaged in hostilities, whether on one side of the other, have no business on Spanish soil’.Footnote ¹⁹ He concluded his speech by stressing that the Committee was presently negotiating solutions to implement a viable plan for the withdrawal of non-Spanish combatants.

Of a quite different tone was the intervention by the Soviet representative Litvinoff. As he condemned the ‘violent intrusion of foreign armed forces into the territory of a Member of the League of Nations’, he also called it an ‘aggression in its crudest form’.Footnote ²⁰ The Russian diplomat went on to emphasize how Franco’s rebellion would not have been possible without the aid coming from abroad, and that the White Book clearly proved that ‘tens of thousands of well-armed and trained foreigners poured into Spain to help the rebels … foreigners who were on active service in the armed forces of other States’.Footnote ²¹

This was hardly surprising. Russia had firmly opposed the Italian and German intervention in Spain since the very beginning of the hostilities. Already in December 1936, when del Vayo appealed to the League on the basis of Art. 11 of the Covenant, the Russians had clearly voiced their support for the Spanish government.Footnote ²² Back then, the Soviet representative had made clear that ‘certain foreign Powers have openly intervened in the interests of the rebels … supplied them with war material, airplanes and experts now assisted by whole formations from abroad’.Footnote ²³

The term of art utilized by the Russian representative is noteworthy, and returned in the period of decolonization. Then, foreign advisers and experts sent by Cuba and Russia to their allies in Africa would be endorsed as a legitimate form of aid, unlike the groups of white mercenaries pointed to as unlawful combatants. Yet this passage calls for a further parallel. In December 1936, the French representative Viénot had underlined that ‘for a long time, the arrivals of volunteers in Spain were individual and intermittent; and many Governments were not able to interfere to restrict such activities … this is no longer the position. Large formations – and even organized units – are now appearing in the war area’.Footnote ²⁴

While Viénot’s vision was certainly influenced by the 1907 Hague Conventions – as we shall see – it is interesting to note this contraposition between the single individual leaving their country to fight abroad and the organized nature of foreign aid. The dichotomy between ‘organized’ and ‘non-organized’ groups is another of the poles on which the lawfulness of foreign fighters plays out, especially in contemporary counter-terrorism discourse.

At the time, the organized aid sent by Rome and Berlin in the form of war materiel, experts and technicians was a serious matter for the Spanish government. Franco had been able to transport part of his army from Africa to Spain thanks to the aeroplanes delivered by Mussolini. And it is not irrelevant that the two champions of non-intervention – France and the United Kingdom – were the first two nations to prohibit public and private exports of all war materiel to both sides, as early as August 1936.Footnote ²⁵ In this regard, it is interesting to see how that Army of Africa was characterized. These were the troops which had been moved on the continent with the help of Italy in July 1936. In September of the same year, in a note sent to the members of the Non-Intervention Agreement, the Spanish government stated the following:

It is fascinating to see how the Moors were singled out as mercenaries, but also as barbarian troops who would render war more savage. This certainly gives an account of the racialized discourse informing the interwar period.Footnote ²⁷ At the same time, the categorization of the Moors as barbaric troops offers an idea of the ambivalence permeating the figure of the foreign fighter: during decolonization, there would be a shift in such racialized conceptions, with the anti-colonial fighters being portrayed as battling for self-determination, and the white, right-wing mercenaries pointed to as neocolonial and racist soldiers of fortune. Indeed, the colonial question would resurface again along three historical moments: in the Hague in 1907, in the United Kingdom in 1976 and in contemporary debates on the Syrian Civil War.

Back to the question of foreign aid: del Vayo himself returned to this issue in September 1937. The Spanish representative once again pressed his colleagues: ‘[Could] anyone deny that the sending of arms, ammunition and whole divisions to the rebels constitutes a scandalous violation of international law?’Footnote ²⁸ He then lashed out at the policy of non-intervention, asking the other delegates whether such a policy made sense at all, given that Italy and Germany were blatantly violating the agreement.Footnote ²⁹ Finally, he went back to the issue of the withdrawal of non-Spanish combatants by asserting that, for the Spanish government, the International Brigades were ‘the only genuine foreign volunteers’.Footnote ³⁰ To testify once more to the moral divide between ‘good’ and ‘bad’ volunteers, it suffices to go back to a few days earlier at the eighteenth ordinary session of the League’s Assembly. There, the Spanish Prime Minister Juan Negrín had taken the floor for a long tirade against the fascist intervention: ‘The only volunteers are those fighting in our ranks. [They have been] driven from home by … the Fascist terror, and [are] convinced that the cause of Spain is that of world freedom.’Footnote ³¹ This statement should be compared with that of Count Ciano, Mussolini’s right-hand man, who had previously declared: ‘We put no pressure on the volunteers. The national spirit of Italy is such that even without an appeal from the Government all Italian youth desires, as soon as it feels itself engaged in an anti-Communist struggle, to take part in the fight.’Footnote ³²

Fascist terror and anti-communist struggle. There could not be two more different conceptions of freedom, and thus of the reasons for going to fight in Spain. This perspective shifted during decolonization, when the Soviet Union became the sworn enemy of American imperialism. White mercenaries then professed an open aversion to Russia and vowed to stop a communist takeover of the African continent. Conversely, the autocratic nature of the Islamic State pushed many Western volunteers to join Kurdish groups during the Syrian Civil War. The point is that the status of foreign fighters is in fact impossible to understand unless opposing conceptions of freedom are considered. As will be shown in the following sections, cultural figures are often associated with these opposing visions.

Back to the plenary meeting of September 1937. The representatives of France and the United Kingdom again defended the policy of non-intervention. This time, however, they also made clear the real purpose of such a policy. While recognizing the rhetorical force of del Vayo’s speech, Delbos stated in fact that ‘all Europe realized how important it was to prevent Spain from becoming the theatre of … conflicting interventions’.Footnote ³³ Elliot (United Kingdom) asserted instead that ‘the urgent and essential need was to prevent the Spanish conflict from overflowing the borders of Spain and engulfing the whole of Europe’.Footnote ³⁴ Much has been written about the policy of non-intervention, and it is not the aim here to return to it. But these words sum up extremely well the political attitude of the two countries that made all possible efforts to establish a parallel system to the League, fearing that the Spanish Civil War could spark a world conflict.

Conversely, the Russian representative Litvinoff reminded his colleagues that ‘in accordance with international law, it was to give no help to the rebels against the lawful Government’Footnote ³⁵ but that ‘immediately after signing the Non-Intervention Agreement it became known to the whole world that supplies were still being sent to the rebels’.Footnote ³⁶ Litvinoff concluded his speech by remarking how the non-intervention had bluntly failed. While Norway, Austria and Poland sided with France and the United Kingdom, the speech of the Mexican representative Isidro Fabela was perhaps the most critical about the shortcomings of the League. At the same time, Fabela focused on the issue of volunteers. After denouncing the ‘war of aggression’Footnote ³⁷ at the hands of a ‘foreign army fighting in Spain against the lawful government’,Footnote ³⁸ Fabela again noted the distinction between legitimate and illegitimate volunteers:

Significantly, the differentiation between organized and non-organized groups returns in the Mexican representative’s speech. In particular, in his view, the large number of troops trained abroad made their home states directly responsible.Footnote ⁴⁰ To prove this point, Fabela affirmed that the tribute received in the countries of origins clearly made these volunteers organs of the state. Conversely, if they were soldiers leaving their countries to serve in a foreign army, they would have been outlawed:

The remark made by Fabela is interesting precisely because it points to the homage received by the fascist volunteers upon their return to Italy.Footnote ⁴² Two visions of the heroic nature of the foreign combatant are made clear: on the one hand the leftist idealists who joined the International Brigades, and on the other the brave legionaries who fought in Spain to defeat the Bolshevik enemy.

Nothing resulted from that September session, however, and no formal act was passed.Footnote ⁴³ It took another seven months for the League to hold another session on the Spanish question. Del Vayo first sent a letter from Barcelona on 19 April 1938, and then a formal telegram to the Secretariat on 30 April, requesting the issue be placed on the agenda. Restating all the main issues concerning the situation in Spain, during the 101st session of the Council, held in Geneva on 11–13 May 1938, the Spanish representative also emphasized how the conditions of the war had worsened. There, del Vayo gave his final passionate speeches, stressing once again that characterizing the conflict in Spain as a civil war did not do justice to the actual situation on the ground:

The cruelty of the fascist troops was at the heart of the matter. Once again, no resolution was adopted. Lord Halifax (United Kingdom) and Henri Bonnet (France) reassured the League that a plan for the withdrawal of volunteers was in the hands of the Committee of Non-Intervention.Footnote ⁴⁵ But it was only in September 1938 that an agreement was finally reached. This time a resolution was approved, which included the dispatch of an International Commission, with the United Kingdom, France and Iran appointed as the three members to supervise its work.Footnote ⁴⁶ The very last meeting on the Spanish situation held by the countries still standing at the League was held in January–February 1939. It was there that the International Commission presented the Council with a provisional report on the ‘Withdrawal of Non-Spanish Combatants from Spain’.Footnote ⁴⁷ Two years had passed since the border closure plan was set up by the Non-Intervention Committee in February 1937. The withdrawal of volunteers was the last act in a dramatic situation that had lasted for almost four years. A few months later, in April 1939, Franco proclaimed his victory over the Republicans, putting an end to the civil war. In September of the same year, Hitler invaded Poland, opening a new page in the history of warfare and of armed intervention.

1.2 The End of Freebooters

While the League’s discussions provide the ideological background to frame the dichotomy between ‘good’ and ‘bad’ volunteers, it is significant to note how the Spanish Civil War ignited debates among famous international lawyers of the time. McNair, Padelford, Lauterpacht and Jessup are among those Anglo-American scholars who published articles and books on the topic.Footnote ⁴⁸ These debates give a first-hand account of the sources, conventions and principles utilized during the interwar era, together with offering a good entry point to the doctrine of neutrality.Footnote ⁴⁹ Yet these discussions are also revealing of important cultural aspects lingering behind the legal characterizations of volunteering abroad. In particular, one can see how the predominant figure at play in the imaginary of these internationalists is that of the adventurer, understood as a free individual not pursuing any state policy. In contrast to this, the image of the freebooter is indicative of a discomfort at the idea of citizens of third states venturing into civil wars for pecuniary reasons or to seize other nations’ territories. But let us look into these aspects more closely.

A first, significant article that came out in January of 1937 was one by Philip Jessup.Footnote ⁵⁰ Distancing himself from political quarrels and from any discussion on the ‘present political alignments of Europe … with fascism arrayed against democracy’,Footnote ⁵¹ the well-known American jurist focused instead on the most pressing legal problems arising from the situation on the Spanish peninsula. For lawyers like Jessup, the object of contention was first to assess the legal status of both factions in the war; whether the conflict in Spain was to be considered a civil war (or only an internal rebellion); and what rights and obligations other states held towards the belligerents.Footnote ⁵² In his article, Jessup argues that there existed a difference in international law between ‘helping the established government and helping a revolutionary group which has not yet been accorded recognition’.Footnote ⁵³ Recognition of belligerency, he explains, put the two factions in the war on an equal footing, conferred them the same rights and duties, and entailed neutrality by other foreign states.Footnote ⁵⁴ Jessup then continues by listing the ways in which the belligerency of a rebel group can be recognized, not ultimately by enforcing a blockade, as he recalls the famous precedent of the American Civil War.Footnote ⁵⁵

Here one can have a sense of the legal background in which the debates over foreign volunteers were taking place. As seen at the League, these were pressing issues for the Spanish government, given the aid Rome and Berlin had provided to the rebels, together with their recognition of Franco’s government. As Jessup notes: ‘the extension of recognition by Italy and Germany is that … for them the Franco government is the government of Spain and the established government is merely a rebellious group … following the principles outlined above, Italy and Germany would now be legally free to supply aid to the Franco group just as previously any states would have been free to supply aid to the established government’.Footnote ⁵⁶ Naturally, Jessup is aware of the Non-Intervention Agreement which should have precluded any foreign aid reaching either party in the war, yet he also acknowledges the purpose of that policy: prevent the spillover of the conflict in Europe.Footnote ⁵⁷

We have already seen how the pact of non-intervention was highly criticized by the Spanish government. What is more interesting for our purpose is looking at how Jessup deals with the problem of volunteers. He does so in few lines, recalling that ‘the enlistment of volunteers is within the control of any government’ and that ‘if the laws of neutrality are applicable, all governments are under a duty to prevent such forms of assistance’.Footnote ⁵⁸ Quite concise, to say the least. At the same time, Jessup does not miss the opportunity to point out how the present situation differed from what has happened in the past: ‘it cannot be denied that one of the burdens which must be accepted by totalitarian state or dictatorial government is an enhanced international responsibility for the acts of its individual citizens’.Footnote ⁵⁹

This is one of the recurring tropes used by lawyers and experts discussing the reappearance of foreign fighters in war scenarios. While recognizing that volunteers have always taken part in conflicts abroad, they tend to distinguish the current situation (be it of mercenaries during decolonization or of terrorists today) from what occurred previously. This break between the past and the present is always done with the purpose of advancing a particular project: emphasizing enhanced state control over its citizens – as in the case of Jessup – or differentiating between old and new actors on the battlefield. Yet this tactic of distancing from the past is accompanied by the persistence of certain figures lingering in their imaginary, as we shall see.

The British legal scholar Arnold McNair discussed the problem of volunteers more extensively than his American counterpart.Footnote ⁶⁰ Adopting a similar attitude to Jessup’s, he distances himself from the politics of the Spanish Civil War. McNair starts his discussion by recalling the principles laid out by the Institut de Droit International concerning the duties of foreign powers during an insurrection. McNair asserts that in the event of a civil war third states have an obligation not to interfere, for instance by sending weapons, ammunition, military equipment, or financial aid. Likewise, no duty exists to help the legitimate government suppress an insurrection.Footnote ⁶¹ He then moves on to discuss the very central legal problem: the recognition of belligerency by a foreign government and its consequences.Footnote ⁶² Again, it is not the purpose here to enter into a technical debate concerning the recognition of belligerency, or how such a doctrine developed during the long nineteenth century. Mention of these principles are intended to offer an idea of the context in which legal debates on foreign volunteers were taking place.

What really preoccupies McNair is how to justify the British attitude towards the Spanish Civil War.Footnote ⁶³ He points out that under international law the United Kingdom had a right to recognize the belligerent status of Franco’s faction, yet his government opted for a policy of non-intervention. He praises this latter option by recalling that ‘recognition of belligerency would have been entirely consistent with a policy of “neutrality” … but … our Government and the French Government took the view that the grant of any such recognition … would in fact bring considerable prestige to General Franco and be tantamount to an intervention in his favour’.Footnote ⁶⁴ McNair is of course aware that the Spanish Civil War was not fought on purely legal grounds, but also in the sphere of international diplomacy.

His analysis of the current law in relation to foreign volunteers is more elaborated than Jessup’s. McNair starts from the general acknowledgement that ‘a foreigner who enlists in the forces of either belligerent when an international war is in progress … commits no crime against the other belligerent, who is not entitled to punish him if captured’.Footnote ⁶⁵ Yet he also recalls that many countries had passed specific legislation to criminalize those who join a foreign war. He mentions the UK Foreign Enlistment Act of 1870, which was re-enacted in January 1937. Such acts were common in nineteenth-century British foreign policy and were directed at preventing citizens enlisting in foreign armies, but were also intended as a manifest form of neutrality towards a foreign conflict.Footnote ⁶⁶ Having discussed the meaning of the act, McNair turns to examine the question of volunteers. His words mirror those spoken at the League by various states’ representatives. In particular, he asserts that:

McNair makes no distinction here between the volunteers fighting for personal gain and those going to fight abroad following their ideals, as they are a common feature of many civil wars. In this sense, the figure of the volunteer evoked by McNair is a hybrid between an adventurer, a mercenary and a committed idealist. Like Jessup, he is more interested in establishing a separation between the past and the present: volunteers from the so-called totalitarian states possess for him a degree of organization that makes them part of a ‘hostile expedition’.Footnote ⁶⁸

McNair substantiates his arguments by resorting to the 1907 Hague Conventions which made legal the crossing of frontiers by single persons willing to join one of the belligerents. We have already encountered this idea in the proceedings of the League. Specifically, in the intervention by Viénot in December 1936, when the French representative reiterated the idea of small groups of men crossing borders, as opposed to entire and organized military units. McNair is careful to remind his readers that a hostile military expedition prepared in the territory of a neutral state is to be considered illegal. The expeditions evoked by McNair represent a cornerstone against which the problem of volunteers was being read and understood by the Anglo-American internationalists of the 1930s.Footnote ⁶⁹ It is thus essential to elucidate this point further.

The topic is addressed by Hersch Lauterpacht in an article published in the American Journal of International Law in 1928.Footnote ⁷⁰ His study is noteworthy because it discusses the meaning of ‘hostile acts’ of private persons directed towards a foreign state. Lauterpacht outlines a difference existing between the Russo-German attitude on the one side and the Anglo-Saxon one on the other. For the former countries, hostile acts included a large pool of activities (such as revolutionary propaganda and conspiracies), whereas for the latter, these were ‘organized acts of force directed against a foreign territory’ (which included military expeditions).Footnote ⁷¹ Lauterpacht then regroups states’ responses to such acts into two main categories, underlining that the United Kingdom and United States adopted a ‘rigid distinction between the duties of the state and those of its subjects’.Footnote ⁷² On the contrary, countries like Russia, Germany, or Austria are described by Lauterpacht as reactionary, given that they treated ‘revolutionary acts of a treasonable character against a foreign government … as criminal offences’.Footnote ⁷³ Reference is made to the German, Austrian and Russian penal codes, which all contained extremely strict provisions regarding the actions of their citizens at home and abroad. Thus, Lauterpacht notes a strict centralization by this group of states regarding their own citizens, including the duties owned to foreign governments.

Seeking to define what principles states should generally follow when it comes to preventing hostile military expeditions, Lauterpacht opts for the Anglo-Saxon tradition of neutrality laws. However, he does recognize a limit to the freedom given to the subjects of neutral countries, in such a way that ‘it must prevent them from committing such as acts as would result in the neutral territory becoming directly a base for the military operations of either party. They must not build or fit out ships to the order of belligerents … they must not leave the neutral territory in organized military units’.Footnote ⁷⁴ In other words, a neutral state must not host or become the base for military operations in foreign countries, and – most importantly for our purpose – individuals who wish to fight abroad should not cross borders in organized military units. But where did this idea come from, and on what cultural background is it based?

The answer is offered by Emerson Curtis in a fascinating article dated 1914.Footnote ⁷⁵ There, Curtis discusses the American legal responses to such expeditions in the nineteenth century. By resorting to some famous examples, Curtis aims to demonstrate the crystallization of a duty preventing these activities in international law.Footnote ⁷⁶ What is most significant, though, is how these expeditions are characterized. By equating them with the actions of privateers, Curtis draws a distinction between these actors and the volunteers going to fight in wars abroad. The American William Walker is used to make the point:

Figure 1.1 Portrait of William Walker (1824–1860) by Mathew Benjamin Brady.

Source: Library of Congress Prints and Photographs Division, Brady–Handy Photograph Collection, DC 20540 USA

The figure of Walker is used to show how expeditions aimed at conquering the territory of other states were extremely dangerous to peaceful relations among sovereign states. It is not the point of this study to retrace the history of piracy and privateering in the long nineteenth century. Suffice to say that these actors – which were more or less tolerated by states in previous times – contributed to structuring diplomatic and foreign relations among countries.Footnote ⁷⁸ But the figure of the pirate does not remain confined to that era and reappears in other periods. However, for scholars like Curtis, freebooters were seen as a dangerous legacy of the past. His position thus attests to a discomfort with their activities, as opposed to the image of the adventurer engaging in wars abroad following higher ideals. The dichotomy between ‘good’ and ‘bad’ foreign fighters is drawn based on moral judgements concerning the cause pushing people to take up weapons abroad, and is supported by precise cultural figures, in this case Walker.

Going back to the Spanish Civil War, if during the first months of hostilities the focus was on the recognition of belligerency, as the numbers of foreigners increased, references to the problem of volunteers became more frequent. In an article by Francis O. Wilcox in the American Political Science Review in April 1938, one can see how the topic is given increasingly more space.Footnote ⁷⁹ Referring back to the Hague Conventions, and the principles of the Institut of Droit International, Wilcox reasserts the idea that there is no responsibility on a neutral state in a civil war when separate individuals are crossing borders. States are however free to pass legislation to prevent that from happening, or to criminalize such conduct.Footnote ⁸⁰ Oppenheim in particular is a central source for international lawyers of the time, since he devoted the whole second book of his famous Treatise to war and neutrality. Interestingly, Oppenheim confirms the doctrine in relation to foreign volunteers in these terms:

This point will be elucidated when looking at the travaux of the 1907 Hague Conventions, which reveal a certain laissez-faire attitude on the part of states towards their citizens taking up arms abroad.Footnote ⁸² As seen in Lauterpacht, this way of looking at the problem is mainly drawn from the Anglo-Saxon tradition on neutrality, a tradition which prevailed over those of the German-speaking countries and of Russia. This points to a division in the former countries between the private and public spheres, with the legal scenario changing the moment organized groups move across borders. That has perhaps radically changed today, if one considers the security concerns informing current legislation on foreign fighters in the global war on terror. This aspect will be analysed in more detail later, but it is important to start drawing some parallels to see what of the original neutrality doctrine has endured and what has drastically changed. It is interesting to note how the private/public distinction – a pillar of the interwar period – starts to shift during the Spanish Civil War, as a direct effect of the fascist/totalitarian volunteers present on the Iberian Peninsula.Footnote ⁸³ Let us delve into this aspect further.

We have seen how foreign volunteers were generally read by the international lawyers of the time through the prism of neutrality. For most of those lawyers, volunteers should have been dealt with using ad hoc legislation, such as the British Foreign Enlistment Acts, or the US neutrality laws.Footnote ⁸⁴ If one takes a look at the latter, it can be seen how the delivery of war materiel was much more central than the volunteers themselves. Under such laws, American citizens were forbidden to travel on belligerent ships during war, but were not strictly forbidden to enlist in foreign armies.Footnote ⁸⁵ An article by James W. Garner published in January 1937 asserts that:

Garner thus aligns himself with those international lawyers who wanted to break with the past. He points nonetheless to a division existing between the private and public spheres, given that the duty of non-interference in a foreign conflict was traditionally put solely on the state, and not on private individuals trading with the factions at war.Footnote ⁸⁷ Another American internationalist, Vernon O’Rourke, discusses the private nature of the aid to be furnished to insurgents in these terms:

O’Rourke also shares the opinion that private trade with the belligerents is now to be forbidden and welcomes the Non-Intervention Agreement. Then he turns to discuss the acts passed in the United Kingdom and France to prevent citizens from going to fight abroad. This comes as a confirmation that the two issues – trade and fighting – were seen as distinct spheres. Hence, for many international lawyers of the time, single, private citizens were free to enlist abroad, unless national legislation prevented them from doing so. But there is a curious ambivalence in the figure of the private citizen evoked by these American jurists. On the one side, they acknowledge that modern law requires a shift from a duty of non-intervention put solely on states to one addressing single, private individuals; on the other hand, the private character they refer to seems to involve only the material transactions of subjects with the belligerents, remaining silent on physical engagement in war. In this sense, the figure that underpins their vision is still the one of the nineteenth-century adventurer, devoid of any financial motivation. An ideal kind of fighter who has nothing to do with privateering activities, as we have seen with reference to the image of Walker.

To conclude with the Spanish Civil War, perhaps the most complete work produced by a legal scholar at the time is that by Norman Padelford. The American academic addresses all the main legal problems of the war, while examining extensive material taken from the archives of the Non-Intervention Committee.Footnote ⁸⁹ His take on volunteers is objective and neutral. By confining himself to the actual practice of states, he concludes that:

Padelford regards volunteers as a problem to be addressed using ad hoc legislation, affirming that there was no urgent need for a norm in international law to regulate the question – perhaps a further confirmation that foreign fighters at the time were not making the headlines in international legal scholarship. The fact that most of these internationalists referred to the domestic context is not to be overlooked, however. On the contrary, it proves how the legal dynamics connected to foreign fighters inevitably passed from the national level as well. In fact, it was in January 1937 that countries started to discuss legislation to prevent their citizens’ recruitment and departure for Spain. The British Houses and the French Parliament are privileged venues to understand how states were dealing internally with these individuals, particularly because they reveal significant cultural aspects informing the discourse of policymakers, aside from the doctrine of neutrality as seen in the work of the Anglo-American internationalists.

1.3 Evoking Past Heroes

Following a new influx of Italian troops into Spain in autumn 1936, many European states began to debate internally the problem of volunteers.Footnote ⁹¹ Belgium, Switzerland and Poland were among those countries where strict legislation to prevent the recruitment and departure of volunteers was enforced. Our focus will be on the United Kingdom and France, not only because these were the two main promoters of the Committee of Non-Intervention, but also because the numbers of their citizens going to fight in Spain were the highest during those years.Footnote ⁹² Additionally, many of the volunteers were reaching Spain through France, making the country an important place of transit. As already pointed out, some important personalities who were active on the Iberian Peninsula were British and French. The focus on these two countries is thus useful on the one hand to show a continuation with the League’s debates and, on the other hand, because French and British parliamentary debates reveal fascinating cultural aspects framing the figure of the foreign fighter in the interwar period.

In France, a law for the interdiction of volunteers is discussed at the Chamber of Deputies on 15 January 1937. A proposal to criminalize French nationals going to fight in Spain had already been filed in December by Council President Louis Rollin.Footnote ⁹³ By the end of the month, Jean Desbons, a deputy from the Haute-Pyrénées had deposited formal draft legislation to outlaw French nationals fighting in Spain with either side. The draft included the stripping of their nationality, six months’ imprisonment with a fine of 10,000 francs for those who helped the recruitment process, and the banning of all propaganda activities in France.Footnote ⁹⁴

The proposal by Desbons was examined on 12 January 1937, but it was later abandoned. The government of Leon Blum wished to remain in line with the United Kingdom, and more generally with the decisions taken by the Non-Intervention Committee. Blum himself, on 13 January, filed a draft bill on volunteers, which was approved a few days later. It is interesting to look at the parliamentary debate following this proposal, as it gives a first-hand account of the arguments deployed by the various blocs of the Parliament, and as they contextualize the cultural references flooding the imaginary of the French legislator.

The session of 15 January was opened by Raymond Vidal, the special rapporteur of the civil and criminal commission. Vidal reminded the audience that although at the beginning foreign volunteers were just ‘des isolés qui, mus par leur seul idéal, allaient combattre sous le drapeau de leur choix, pour une cause qu’ils croyaient juste et bonne’,Footnote ⁹⁵ after some time their character had changed: ‘nous avons assisté à l’arrivée en Espagne de techniciens, d’ingénieurs; de pilotes; récemment, les départs sont devenus collectifs, ils ont même paru inspirés, suscités, organisés’.Footnote ⁹⁶

Here one can see the idea already contained in the League’s debates and highlighted by the Anglo-American internationalists: the actions of individual foreign volunteers could not be deemed illegal. Conversely, the moment they organized in military units, the legal scenario changed. What is crucial to highlight in this debate, however, is how a distinction was drawn between the volunteers and those who recruited them. Having briefly commented on the retroactivity of the law for those already on Spanish soil, Vidal takes a clear stance by pointing out that:

Vidal is suggesting introducing different punishments for the volunteers who travelled to Spain and those who recruited them, judged as individuals who sought to profit from the actions of the volunteers. This could be an early suggestion of the main division which would later on distinguish volunteers from mercenaries. But it is interesting to note that the same figure which underlaid the discourse of the Anglo-American international lawyers remerges here: the free, committed adventurer who is engaging in a war abroad not for material reasons. It is by following this line of thinking that Vidal wished to punish the recruiters more severely than the actual volunteers.

Next, Grumbach, the rapporteur for the Commission of Foreign Affairs, reminded his colleagues that the Spanish situation was endangering the peace of Europe, and the hostilities were exacerbated by the presence of foreigners on both sides. Taking a seemingly pacifist stance, he sided with Blum’s proposal, stating that: ‘d’accord avec le Gouvernement, la commission des affaires étrangères, à l’unanimité, estime que l’état de choses actuel constitue un immense danger pour la paix’.Footnote ⁹⁸ To that end, Grumbach contrasted the proposal made by Vidal for establishing a different degree of criminal offences for the volunteers and the recruiters. Although realizing that ‘si cruellement injuste qu’il soit d’être oblige … de mettre sur le même plan les volontaires – les vrais volontaires – quelle que soit leur nationalité, quelles que soient leurs opinions, qu’ils se battent par conviction et enthousiasme républicains, dans les rangs des gouvernementaux, ou mus par un idéal opposé au nôtre, dans le camp des rebelles’Footnote ⁹⁹, Grumbach saw no other way to end the conflict but to ban all forms of volunteering, perhaps one of the clearest statements of realpolitik of those years.

It was then the turn of Marcel Héraud, representative of the Républicains indépendants et d’action sociale, who took a strong stance against the proposal by Blum, praising instead the original draft prepared by Desbons. In particular, Héraud saw the stripping of nationality as the right penalty to deter volunteers from volunteering in Spain: ‘ne vous rendez-vous pas compte combien ces sanctions sont dérisoires? … Pensez-vous qu’un homme qui va risquer sa vie pour son idée puisse être empêché de le faire par la menace d’une amende? Pouvez-vous imaginer que recule devant la prison celui qui ne recule pas devant la mort?’Footnote ¹⁰⁰

These interventions make clear what criminal sanctions the French legislator was envisaging for foreign volunteers. It is also here that some famous cultural references start to appear. Another deputy, Brun, responded vehemently to Héraud’s intervention with the following question: ‘Qu’attendez-vous alors pour dire que Garibaldi a eu tort et pour condamner La Fayette?’Footnote ¹⁰¹ The famous communist deputy Gabriel Péri was even more direct than his colleague:

The images of former foreign fighters are evoked to characterize the French nationals fighting for freedom, and to distinguish them from those totalitarian volunteers sent by Italy and Germany. Garibaldi, Byron and Lafayette are regarded as honourable volunteers, and are used to draw a moral divide with the military expeditions sent to Spain by totalitarian states.Footnote ¹⁰³

Leon Blum was not averse to such references either. In recalling to the Chamber how both the British and French governments wanted to push for a common policy to prevent their citizens from going to Spain, he stated:

Two opposed notions of freedom – and thus of reasons for fighting abroad – are at play here: embracing an ideal or following the commands of a government. Two versions had already been discussed at the League, and that will return, reversed, in the period of decolonization.

Nonetheless, it is important to note that not everyone in the room shared Péri’s view. A few moments earlier some right-wing representatives had reacted to the comparisons drawn by the communist deputy, shouting from their benches: ‘[M. François de Saint-Just] c’est votre avis, ce n’est pas le notre [M. Charles des Isnards] Et les pèlerins de Moscou?’Footnote ¹⁰⁵ In other words, the figure of the good foreign fighter evoked by some politicians is split: on the one side, there might well be the Garibaldis, the Lafayettes, the Byrons, taken as examples of an honourable form of volunteering; while on the other, the figure of the Soviet soldier is thrown into the discussion to show that their vaunted heroism may contain a dark, twisted side. These two versions of the foreign combatant (the idealist volunteer and the cynical/opportunist soldier) reappear decades later, both at the UN General Assembly, and in contemporary debates over foreign terrorist fighters.

The point is that political actors stand on different moral grounds, and as Blum was trying to convince the Chamber of Deputies to vote in favour of the proposed bill on volunteers, the representatives of the right felt compelled to react to the unlawful invasion of Spain at the hands of the Bolshevik enemy. As already seen at the League, civilization and barbarism were the two poles around which the legitimacy of foreign fighters was debated: be it the savagery of the Moorish troops, the cruelty of fascist soldiers, or conversely the fear of an end to Christian civilization at the hands of the Russians.Footnote ¹⁰⁶

The draft law proposed by Blum was finally passed on 21 January. It ended up being more far-reaching than the one proposed by Desbons. It authorized the French government to take ‘all the necessary measures’ to hamper (a) the engagement and acts tending to the engagement of persons in either of the fighting forces of Spain; (b) the departure and transit of all persons going to Spain in order to fight; (c) the engagement in the above forces of French nationals who were outside of the national territory. It did not, however, include the removal of nationality.

Reference to past volunteers is also present on the other side of the Channel. The problem of British citizens going to fight abroad was addressed by Westminster in winter 1936. On 1 December, while the House of Commons was discussing the implementation of a specific bill outlawing the carriage of munitions to Spain on merchant shipping, Philip Noel-Baker – representative of the Labour Party – raised the issue of volunteers. Fiercely criticizing the pact of non-intervention and suggesting that the League was instead the right venue to deal with the Spanish situation, he pointed the finger at the troops fighting on the side of Franco.Footnote ¹⁰⁷ In particular, Noel-Baker feared that when the Non-Intervention Committee extended the embargo on volunteers, Italy and Germany would maintain their battalions on Spanish soil. As noted by the communist representative William Gallacher: ‘if you stop the volunteers from this country [Russia] the Germans will still be there. If Germany signed a Non-intervention Pact which included no volunteers, the Germans would still be there, and so would the Italians’.Footnote ¹⁰⁸

A few days before, on 25 November, the Secretary of Foreign Affairs Anthony Eden had made clear that ‘the question of the enlistment of volunteers is not covered by the Agreement regarding Non-Intervention in Spain, which relates only to the prohibition of the export of war material’,Footnote ¹⁰⁹ while advancing the idea that the Committee in London was taking into consideration a general prohibition on all volunteers. A certain distrust of such provisions was evident – especially from the Labour Party’s side – as made clear by the words of the Welsh representative Morgan Jones: ‘I should be glad to see volunteers and all instruments of warfare stopped, so long as they are stopped all round … If there is to be a ban on volunteers therefore, let it not he unilateral, but multilateral, all nations taking part in it.’Footnote ¹¹⁰

Nevertheless, the Foreign Enlistment Act came into force on 11 January 1937. It proscribed British subjects from going to Spain. Anthony Eden returned to the question of volunteers on 19 January, the same day that the French National Assembly was discussing Blum’s draft law. Eden made reference to the discussions held at the Committee of Non-Intervention, highlighting how the issue of volunteers had become a more serious matter. As well as introducing the idea of a frontier control system, Eden focused on an aspect that we have already seen debated in the French context – the differentiation between volunteering and recruiting. In the words of the British prime minister:

Eden replied to a remark that those being paid were the volunteers fighting for Franco: ‘it is not a question here of someone going to fight in Spain for their political principles; it is a question of recruiting going on, of offering individuals money to go and take part’.Footnote ¹¹² In other words, Eden stressed that the legality of British citizens going to fight abroad was initially raised because of the issue of recruitment.Footnote ¹¹³ This position attests to a significant cultural detail. On the one side, it shows how the UK authorities were more worried about the organized enrolment of individuals on British soil, an aspect that might be linked to the prohibition of hostile military expeditions. On the other hand, the net distinction made by Eden between recruiters and volunteers points once again to the images found in the writings of the internationalists: the idealist adventurer fighting abroad following his political faith, as opposed to the freebooter seeking personal profit from wars and revolutions.

In the session of 19 January, the discussion was diverted to the question of volunteers already present on Spanish soil. Clement Attlee, president of the Labour Party, challenged Eden: ‘now we have the question of volunteers. You cannot call the German and Italian troops in Spain and Morocco volunteers. You cannot volunteer, if you belong to a Fascist State, unless you manage to escape from it. They are in no sense volunteers; they are instruments of dictatorship’.Footnote ¹¹⁴ The differentiation between totalitarian and genuine volunteers is once again drawn and it reflects the tense political climate of those years. The session of 19 January essentially continued with the discussions concerning the most suitable rule to stop all volunteers, whether the Foreign Enlistment Act was passed in time, and if Italy and Germany would have respected the Non-Intervention Agreement.

Noel-Baker – one of the strongest adversary of non-intervention – again questioned Anthony Eden in a subsequent session: ‘can [Mr. Eden] give the House any information concerning the last meeting of the Non-Intervention Committee, and the proposals made in the notes from Germany and Italy concerning the despatch of volunteers from Spain?’Footnote ¹¹⁵ To the answer provided by Eden, that both Germany and Italy had declared themselves favourable to the prohibition on sending their volunteers, the Labour representative replied: ‘shall we not have the same situation as there was previously, with one-sided observance at the expense of the Madrid Government?’Footnote ¹¹⁶ And in a heated debate at the House of Lords in March 1937, Baker evoked those noble figures who had already been mentioned in the French Chamber of Deputies:

Many other discussions about foreign volunteers were held during those years. From proposing specific legislation to hamper their recruitment and departure, to the stripping of their citizenship, to the question of repatriation at the end of the hostilities, a complete review of state practice would be impossible. France and the United Kingdom were chosen as the main promoters of the policy of non-intervention, but also for the important cultural references evoked in their Parliamentary debates. The images of past, noble adventurers stand as proof of how the foreign fighter is a category which cannot be reduced to technicalities alone. The figure of the foreign volunteer is constantly evoked in lawmaking processes, to help characterize the legitimacy and the illegitimacy of their cause. If the debates at the League were played mainly on ideological grounds, the writings of the internationalists revealed a set of cultural ideas behind the outlawing of certain practices related to volunteering abroad. Here, the images of former adventurers reappeared from the past, flooding the imaginary of British and French policymakers, and epitomizing different conception of freedom. However, an analysis of how the foreign fighter as a cultural category entered the scene of modern international law cannot ignore the Hague Conventions of 1907. It is there that a first codification of its status is found, and the two opposing figures of the adventurer come into play. The Hague Peace Conferences represent a logical step to show how the volunteers of the interwar era moved on to the codification in the Geneva Conventions, before the next historical period, and the appearance of other foreigners fighting in wars abroad.

1.4 Brave Highlanders or Scary Adventurers?

The Hague Peace Conferences provide a privileged venue to explore the codification of early norms on volunteering abroad, but also to capture different cultural references relating to foreign fighters, as a mirror of specific fears, desires and fantasies at play in the delegates’ discourses. The Conferences of 1907 are also the only humanitarian conventions in which the question of foreign volunteers was openly debated, given that in the subsequent Geneva talks, volunteers would be assimilated into the armed forces of one of the contracting parties.

An aspect worth mentioning is how these early codifications were strongly influenced by the doctrine of neutrality. Therefore, one can advance the argument that they have been formally replaced by the Geneva texts and especially by Additional Protocol I (AP I). Their present relevance also remains doubtful because the doctrine of neutrality has been gradually overshadowed by the collective security system under the UN Charter.Footnote ¹¹⁸

Conversely, it is interesting to note how neutrality has reappeared today: some academics and policymakers have in fact advanced the argument that a return to neutrality laws would represent a practical way to counteract the phenomenon of foreign fighters in our time.Footnote ¹¹⁹ That the doctrine of neutrality did not completely disappear – even with the advent of the UN – is a topic extensively discussed in the literature, and which goes beyond the scope of this book.Footnote ¹²⁰ But neutrality was a pivotal concept in the early modern period for assessing the relations of states at war, as evidenced by the works of important internationalists like Oppenheim.Footnote ¹²¹ Again, the aim is not to retrace the debates around this doctrine, but rather to understand how it formed the legal lens through which volunteering abroad was understood in The Hague.Footnote ¹²²

In particular, Convention V relating to the Rights and Duties of Neutral Powers and Persons in War on Land contains six articles on foreign volunteers. Interestingly, an important distinction was made at the time between the rights and duties of a neutral power (a state) and of neutral persons (individuals). Although this differentiation has been criticized by many international lawyers, it remains central to the debates and to the subsequent codification in 1907.Footnote ¹²³ Chapter I of Convention V – headed ‘Rights and Duties of Neutral Powers’ – contains at least two important articles in relation to volunteers:

Here we can finally see the rules mentioned in the previous sections of the chapter, and that were alluded to in the writings of the internationalists and in the debates at the League: the idea that corps of combatants (such as hostile military expeditions) should not be organized in the territory of a neutral state; or conversely, that a state’s neutrality in a foreign war was preserved when there were few single individuals crossing the frontier to join one of the belligerents.Footnote ¹²⁵ Additionally, as we read Art. 7, it is clear that the neutrality of a state is not called into question for commercial transactions with one of the belligerents.Footnote ¹²⁶ Here lies that distinction between the public and the private spheres evoked earlier, as private individuals could enlist in the army of one of the belligerents but could also continue their normal business transactions with them.Footnote ¹²⁷ Let us turn then to the first two articles – those relating to the formation of corps of combatants and to the individuals crossing borders – to see their genesis and codification.

It was on the suggestion of the French delegation that the subject was brought to the fore during the conferences’ meetings. In particular, the French were dissatisfied with the 1899 Hague Regulations, which in their opinion dealt with the question too vaguely. Their delegation took inspiration from various municipal laws on neutrality, with the aim of codifying them in international law.Footnote ¹²⁸ The original French proposal read as follow:

Supporting the French text, the Belgians stressed that neutral Powers not only had duties but also rights: ‘being themselves strangers to the hostilities they have the primordial right to demand that they be not implicated in them directly or indirectly’.Footnote ¹³⁰

The Belgian delegation wanted to emphasize that the territory of a neutral state should remain free from any involvement in the hostilities and, as they put it, ‘[be] inviolable’.Footnote ¹³¹ Colonel Borel from the Swiss delegation expressed his agreement with the Belgian view, but reminded the other delegates that ‘a neutral State has no other obligation than to repress acts in violation of neutrality which might be committed on its territory, and this obligation is limited by its frontiers’.Footnote ¹³² The view of the Swiss delegate is interesting – given the traditional attitude of his country – as Borel put forward the distinction between ‘the recruiting or organizing of groups of combatants on the territory of the neutral State’ (as acts that would entail responsibility) and ‘the crossing of the frontier separately by individuals’ (towards which the neutral state had no obligation).Footnote ¹³³ In support of his latter point, Borel added that: ‘the control of individual passages can, moreover, never be carried into practice for it is impossible to scrutinize the intentions of each one and an attempt to exercise such control would raise intolerable obstacles to the passage of individuals from one State to another’.Footnote ¹³⁴

This passage is fascinating if compared with the security concerns of the post-9/11 landscape. As states increasingly possess extensive information on their citizens, this can be used at border controls and airports to detect potential foreign fighters. The idea of scrutinizing the intentions of individuals is today much debated in counter-terrorism discourse, especially when used to identify radicalized individuals operating in Western states. Certainly, the expansion of the technological apparatus has changed the rules of the game since 1907. But it is fascinating to see how these very problems were already present back then when dealing with citizens crossing borders to join a belligerent abroad.Footnote ¹³⁵

It was the Germans that raised one of the most important issues in relation to volunteers. Baron Mareschall von Bieberstein made clear that there had to be a distinction between neutral powers and neutral persons. In particular, the reservation made by Germany aimed at forbidding ‘neutral persons from rendering war services to belligerents … the second part of the French text does not make this point sufficiently clear’.Footnote ¹³⁶ This was indeed a very strong counterclaim. It contradicted the whole idea of freeing states from their responsibility when numbers of individual citizens were crossing borders to join a belligerent abroad. The issue was not pushed forward by the German representative, and it was dropped during the fourth meeting on 19 July, but it became central during the subsequent one on 26 July. There, the German delegation proposed to include in the Convention a chapter relating to the rights and duties of neutral persons, by filing the following proposition:

The German proposal is probably one of the most comprehensive in terms of banning foreign volunteers in the armies of one of the belligerents. This time von Bieberstein took the floor for a long introduction, stressing that there was a need to regulate the status of neutral persons in the territory of the belligerents: ‘in the majority of States there are hundreds of thousands of inhabitants belonging to another nationality … what is then their position with respect to belligerents? What treatment shall they receive? Can they be enrolled in the ranks of the belligerents’ armies and render to them other person services in promoting the war?’Footnote ¹³⁸ For the Germans, such individuals were to lose their neutral status if they enlisted in the ranks of either side conducting hostilities. Conversely, furnishing the belligerents with loans or other material/supplies was not regarded as an action endangering the status of being neutral. Thus, if Art. 63 remained in line with the idea shared by many other states (leaving their citizens free to conduct commerce with the belligerents in time of war), Art. 62 was in direct contradiction with the original French proposal. It is here that a particular cultural image emerges. This is summarized by the words of von Bieberstein:

The German delegation was worried not only that allowing the possibility of enlisting would open the door for any sort of adventurers, but that the presence of foreign individuals in another nation’s army would endanger the proper conduct of hostilities. The figure of the adventurer evoked by the German delegation is very different from the idealized image of the noble volunteer we have encountered in the Anglo-American doctrine or in domestic debates. The figure of individuals flooding into a civil war ‘from all parts of the world’ reappeared many decades later, when the Security Council passed resolutions to stop the influx of ‘faceless, nameless terrorists’ joining jihadist groups in the Syrian Civil War. At the same time, such a characterization points to a tangible fear among the Germans that the inflow of foreigners to wars abroad posed a potential threat to good relations among states.Footnote ¹⁴⁰ Certainly, this position confirms the analysis by Lauterpacht about those reactionary countries which saw no separation between their citizens and the rights and duties of the state on the international arena. As already pointed out, countries like the United Kingdom and France were instead adopting a more liberal view, and so did their delegations in The Hague.

It was in fact the British representative Lord Reay who first opposed the German proposition: ‘[it] forbids a Government to compel a neutral resident within its territory to take up arms; but [it permits it] to treat a neutral, as far as concerns his property or lands, or the payment of taxes, in time of war, in the same manner and to the same extent as it does its own citizens’.Footnote ¹⁴¹ The British delegate was thus glossing over the issue of foreigners travelling to join another state’s army abroad, and rather focused on the status of those foreigners already present in the territory of one of the belligerents. This is not surprising, given the large colonies with many non-British citizens who could have enlisted in the army, if they wanted to.Footnote ¹⁴² As Lord Reay continued his intervention, the British delegation wished to clarify ‘whether it is desirable that the neutrals established on the territory of a belligerent be put … on a footing of complete equality with the ressortissants of the State in which they reside or whether they should be accorded a distinct position’.Footnote ¹⁴³ The British were mainly interested in understanding how to treat neutral citizens in their colonies, rather than worrying about the question of foreigners going to fight abroad.

However, the German proposal found a strong ally in the US delegation. Although praising the original French draft, General Davis thought that the German proposal was more advanced in establishing a clear status for neutral inhabitants in a belligerent territory: ‘the rules which have been submitted by the German delegation … define the rights, the duties, and the immunities of a neutral inhabitant of a belligerent State in time of war … immunity from burdens of a specifically military nature … in all other respects his situation is not changed. His property is taxed to support the civil administration’.Footnote ¹⁴⁴ The Americans were also overlooking the issue of foreigners going to fight abroad, and rather focused their attention on those citizens of neutral states already residing in belligerents’ territory. The reason given to support the German proposal is interesting though, as the American delegate stressed that the status of foreigners was to ‘conform to the conditions of modern commerce’Footnote ¹⁴⁵ and that ‘commercial operations are no longer confined to a single State, but extend to several States’.Footnote ¹⁴⁶ The Americans were thus particularly concerned with maintaining normal commercial relations during warfare, as they agreed with the idea of authorizing ‘supplies furnished or loans made to one of the belligerent parties’ by their own nationals. This position was very much in line with the US Neutrality Acts, which prevented the state from supplying and trading war materiel, but not commercial transactions by private individuals, as previously seen.

So much for the general discussion, the various delegates started to debate the specific articles of the German proposal and suggested possible amendments to it. In particular, various delegations wanted to clarify the meaning of ressortissants, so as to elucidate whether the term concerned ‘persons … domiciled in the territory of a belligerent State but who [were] not its nationals’.Footnote ¹⁴⁷ The doubt was soon resolved thanks to the intervention of Colonel Borel, and the delegates agreed to change the word ressortissants to nationals.Footnote ¹⁴⁸ The Swiss delegate then proposed an interesting amendment to the text. He advanced the idea that, when deciding no longer to observe neutrality, a neutral person should not be treated differently, or deemed ‘guilty of a special infraction’.Footnote ¹⁴⁹ As he praised the efforts of the German delegation to ameliorate the negative effects of the hostilities, Borel emphasized that ‘his failure to observe neutrality implies in itself alone no other consequence for the neutral than the loss of his neutrality in itself’.Footnote ¹⁵⁰ This proposition is important, as it put the person who enlisted in a foreign army on an equal footing with the nationals of the belligerent party. Here one can see crystallizing a particular attitude towards foreign fighters of the time, something that has perhaps radically changed under today’s counter-terrorism discourse.

The discussion soon returned to the problem of the enlistment in a foreign army. In particular, the French delegate Louis Renault opposed the propositions contained in both Art. 64 and Art. 65, as they prevented belligerents enlisting foreigners in their army. In the words of the French delegate:

As much as for the British, the French delegation saw no issue in enlisting foreigners in their army, the only real obligation being to prevent the formation of organized groups within their territory. In the event that a country wanted to stop the departure of its own citizens, it could resort to the provisions of domestic law. The Belgian delegate found himself in line with his French colleague, as he deplored the German proposal by stating that ‘[it was] going too far; such a general and absolute prohibition arbitrarily limits the authority of the belligerent while at the same time infringing the right of individual liberty of the neutrals’.Footnote ¹⁵² The Japanese delegate aligned himself with Germany, stating that it was not desirable to have foreign elements in a regular army. For their part, the delegates of the United States and the United Kingdom limited their intervention by restating the examples of their Neutrality Laws and Foreign Enlistment Acts.

Faced with mounting opposition, the German delegate tried to soften his position by admitting that ‘it would not be possible for the neutral State to prevent its subjects, by Draconian methods, from enlisting in the service of such or such belligerent … but one might imagine the case where thousands of neutral ressortissants come to enlist voluntarily in the ranks of one of the belligerent armies’.Footnote ¹⁵³ The French delegation immediately replied by saying that what was worrying the Germans was ‘the fact that the subjects of a neutral State might cross its frontier en masse to go into the service of one or the other of the belligerents’, but that scenario was already been envisioned by Art. 2 of the original proposal. It placed an obligation on the state not to allow the formation of organized groups of combatants to leave its territory to fight abroad.Footnote ¹⁵⁴

The fifth meeting ended with France and the United Kingdom reaffirming their disagreement with the Germans, specifically on the proposed Art. 65, which envisaged a strict prohibition on the part of neutral powers towards their citizens in performing military services in the armed forces of either belligerent. In the last words before the meeting was adjourned Lord Reay stated: ‘we believe we should maintain with respect to the neutrals only this negative obligation not to favor any of the belligerents and not to depart from a strict impartiality with regard to them’.Footnote ¹⁵⁵

But the tone of the conversation was not reconciled in the next discussion, held on 2 August. There, the Dutch delegation returned to the original problem of citizens of a neutral state already in the territory of one of the belligerents. The Dutch were as worried as the British that if the German proposal was accepted, their colonial troops would be hampered from enlisting volunteers. General Jonkheer den Beer Poortugael made his country’s position clear:

Quite an interesting statement, especially if compared with how Alvaro del Vayo would some years later characterize the Army of Africa, as a group of barbaric mercenaries ‘shocking the conscience of the civilized world’. Here one can see emerging a very different image from the adventurer evoked some days earlier by the German delegation. The figure of the bon sauvage, depicted as an intrepid man who loves danger and mountain climbing, is clearly imbued with patronizing tones. This image reveals the visceral attachment of the Dutch to their colonies, a sentiment that will re-emerge strongly during decolonization in the discourse of certain European states. There, it will be significant to see how the same image imbued the discourse of British policymakers when they will take pride in the services rendered by their colonial troops.

Going back to The Hague, the Dutch delegation suggested an amendment to Art. 64, excluding the citizens of a neutral State who at the beginning of the hostilities were already in the ranks of the army of a belligerent.Footnote ¹⁵⁷ The point was backed by the Norwegian delegation, as his representative Hagerup underlined that: ‘when war breaks out, a country cannot deprive itself of the services of all those who are not its nationals’.Footnote ¹⁵⁸ If the situation was not complicated enough, the Italian representative brought to the fore the problem of double nationals. In particular, he found it problematic to reconcile their status in light of Art. 65. How could the obligations of the state where they resided at the beginning of hostilities be solved if they had to be forced to fight against their country of nationality? Faced with mounting difficulties, most states at The Hague finally voted to reject the German proposal, although not in its entirety.Footnote ¹⁵⁹ The status of neutral persons in the Hague Convention V would finally be codified in three articles, forming Chapter III and regulating the Neutral Powers and Persons in Land Warfare:

As can be seen, the most difficult questions were removed from the final text. The articles did not contain much detail in defining the meaning of hostile acts, or what to do with double nationals. Contrary to the German proposal, a neutral person was free to enlist voluntarily in an army, at the cost of ‘availing himself of his neutrality’. However, following the Swiss amendment, such a person would not risk a worse treatment than was reserved to the nationals of the countries at war. Finally, the supplies and loans furnished by single individuals to both parties in the conflict were not seen as endangering their neutrality.

If paired with final Arts. 4 and 6 of the same Convention, these three additional articles give a comprehensive view of how the foreign volunteer was codified in the early laws of war. As a general laissez-faire attitude prevailed among states at The Hague, under international law citizens of neutral countries were free to enlist in a foreign army. However, no groups or expeditions with the intent to join a belligerent were to be formed within a neutral state’s territory. All in all, most European delegations understood the problem of volunteers as something to be dealt with via domestic legislation, when and if it was deemed necessary. This points to a distinction existing at the time between the private and public spheres, an aspect further exemplified by the separation between the state and its citizens with regard to the furnishing of supplies and loans to one of the belligerents. As already pointed out, this vision was already being questioned in the 1930s and then radically changed in the 1950s, when internationalists like Brownlie would lament the vagueness and ineffectiveness of the Hague Conventions, calling for their revision.

Nevertheless, one important aspect emerging from the Hague was the contrasting and ambivalent images of the foreign fighter, as expressed by the German, Dutch and British delegations. On the one side, one can find the figure of the adventurer who can endanger the normal conduct of warfare; on the other, the image of the bon sauvage was evoked by those representatives whose states included colonial troops in their armies. But the figure of the foreign fighter in the early modern period would not be complete without looking at the codification of this actor as part of the personnel a state can resort to in warfare. After all, this was the point raised by both the British and Dutch delegations in the Hague. For them, the problem was not so much about foreigners travelling to fight abroad, but rather not to exclude the volunteers already residing in their colonies or enlisted in their armies. The qualification of ‘militia or volunteer corps’ as a lawful actor within the rules of humanitarian law came from the Lieber Code of 1863, and reached Art. 4 of the 1949 Geneva Conventions. To be clear, the following digression will not enter into the specific historical details.

The early modern norms on belligerent qualification are found in the Lieber Code of 1863, including the first distinction between civilians and combatants.Footnote ¹⁶¹ In particular, the Code recognized ‘partisans’ as regular troops that could be used in warfare, and it distinguished them from irregular fighters not belonging to an organized army, such as scouts or single soldiers (to be treated as spies), armed prowlers (to be treated as robbers) and war-rebels.Footnote ¹⁶² Although the intention of the Lieber Code was to differentiate between partisans and other (irregular) combatants, one can imagine how the former could have included the many volunteers who enrolled with both sides during the four years of the conflict.Footnote ¹⁶³ Naturally, the Code remains a first incomplete draft of the modern laws of war, and it was affected by the context of the American Civil War.Footnote ¹⁶⁴ In fact, it was with the Brussels Peace Conference of 1874 that European powers started to take into consideration a wider and more encompassing project for the codification of international norms to be respected in warfare. And it was in this venue that an article recognizing ‘militia and volunteer corps’ as lawful belligerent was codified:

This article contains the four criteria that need to be fulfilled by ‘volunteers and militia corps’, and which survived more or less intact until the Geneva Conventions of 1949.Footnote ¹⁶⁶ At the time of the Brussels Conference, two of the most pressing problems were represented by the levée en masse and the role of franc-tireurs.Footnote ¹⁶⁷ It was with the Franco-Prussian war of 1870–1871 that these issues had risen to the fore, and as such they informed the discussions of states representatives.Footnote ¹⁶⁸ What worried the German delegation was to regulate the spontaneous taking up of arms of a local population (levée en masse).Footnote ¹⁶⁹ In other words, the Germans, in their desire to see anyone who could take arms against them in uniform, in order to be able to identify them, wished to regulate the levée en masse as much as possible through the criteria set out by Art. 9. The issue became animated, especially because states such as Belgium, Spain and the Netherlands did not want to relinquish the possibility, in case of an invasion, of making use of other kinds of troops outside of their standard army. The discussions in Brussels thus saw two contrasting sentiments at play. On the one side, the patriotism asserted by smaller states to support their population and the right to defend their motherland. On the other, the German fear of brigands and looters flooding the battlefield.Footnote ¹⁷⁰ This was the same kind of feeling that was manifest in The Hague through the figure of the adventurer endangering the good conduct of hostilities.Footnote ¹⁷¹

The Germans would eventually relinquish their dream, understanding that it was impossible to demand that an entire population could be provided with uniforms during an occupation in times of war.Footnote ¹⁷² Nevertheless, what needs to be emphasized here is: when state representatives in Brussels included volunteers and militia corps under Art. 9, no mention was made of foreign fighters. Evidently, they were not the problem that the delegates had in mind, and the fact that volunteers could have been foreign did not make the headlines in 1874. In fact, the same article was transposed in an almost identical form in both the 1899 and 1907 Hague Regulations on the Laws and Customs of Land Warfare. Again, no mention was made of foreign volunteers or foreign militia troops. The article on belligerent qualification as codified in the Hague Convention IV of 1907 read as follows:

Volunteers who respected these four criteria – no matter if foreigners or not – were equated with the soldiers of a standard army.Footnote ¹⁷⁴ Moreover, in those countries where volunteers and other militias formed the national armed forces – like Switzerland – those troops would have been recognized as the lawful regular army.Footnote ¹⁷⁵

Despite two world wars and notably the Spanish Civil War, the story of this article did not undergo significant changes, at least from the point of view of foreign fighters. The representatives of the states gathered in post-war Geneva dealt with a wider, more encompassing codification for the status and the treatment of prisoners of war, following the previous text of 1929.Footnote ¹⁷⁶ This time the francs-tireurs would no longer be the central preoccupation of the various delegates, but rather how to include resistance movements and partisans, for their fundamental role played in World War II. As noted by Jean Pictet in the famous commentaries to the Geneva Conventions: ‘the problem was finally solved by the assimilation of resistance movements to militias and corps of volunteers’.Footnote ¹⁷⁷

The final Art. 4 section (A) (1) (2), which included the new wording of resistance movements and the four criteria for belligerent qualification, as codified in Geneva Convention III, is as follows:

Naturally, other issues surrounding militia and corps of volunteers occupied a good part of the preparatory works of Art. 4, yet not that of foreign volunteers.Footnote ¹⁷⁹ It seems that from 1907 the problem had vanished. What was the legacy left by those three dramatic years (1936–1939) which had held Europe and the League in suspense? As noted by many commentators, the Spanish Civil War was central in the development of another, no less important norm coming out of the Geneva talks: common Art. 3.Footnote ¹⁸⁰ Codifying the existence of non-international armed conflicts, this article represented a great incremental step in the protection of the victims of the warfare that had devasted the Spanish peninsula.Footnote ¹⁸¹ Perhaps the bloodshed and the sacrifice of the International Brigades – and of the many Italian and German troops sent to Spain by their governments – was not completely in vain.Footnote ¹⁸²

But what of foreign fighters after the Spanish Civil War? As we move from the League to the United Nations system and towards the decolonization era, a young assistant lecturer at the University of Leeds advances some reflections on volunteering abroad. That young lecturer is Ian Brownlie.Footnote ¹⁸³ As previously explained, the vagueness of Hague Convention V relating to the status of neutral powers and persons in warfare had come under fierce critique already during the interwar years.Footnote ¹⁸⁴ Back in 1939 Friedmann had commented on Art. 6 of the convention: ‘this rule presupposes a community in which an individual may make a decision, such as volunteering for a foreign war on his own responsibility, independently of his government. That this condition no longer exists generally among the members of the family of nations became obvious in the Spanish Civil War’.Footnote ¹⁸⁵ Shifting from neutrality towards the collective security system, the idea of a volunteer detached from any form of state control also starts to crumble. Far from disappearing, the issue of volunteers re-emerged twice in the years immediately following the creation of the UN: the Israeli War of Independence of 1948 and especially the Korean War of 1950–1953. It was exactly three years after the armistice ending the Korean War that Brownlie devoted a sharp, compelling article on the question of foreign volunteering. He makes clear that the purpose of his study is to criticize the ‘ambiguities, gaps and opportunities for abuse’ of the present law.Footnote ¹⁸⁶ One can thus find a clear parallel with those international lawyers who, already in the 1930s, wanted to break with the past. Most importantly, Brownlie asserts that: ‘the use of pseudo-volunteers as an instrument of government policy and for purposes of aggression gives increasing significance to the shortcomings of … the law’.Footnote ¹⁸⁷

What catches the attention is the categorization of our actor as an ‘instrument of government policy’. We are very far from the image of the idealist adventurer going to fight abroad following his ideals. Volunteers are now depicted as linked to a governmental plan, ideally closing that public/private gap which existed at the beginning of the century.Footnote ¹⁸⁸ To sustain his point, Brownlie further argues that: ‘the individualism and laissez-faire once prevalent [is] now increasingly replaced by the integration of the individual on the State corpus. With an increase in the definition and comprehensive nature of the citizen’s rights and duties vis-à-vis the State, there must be a change in the character of the volunteer’.Footnote ¹⁸⁹ In other words, the volunteer can no longer be understood as detached from the state apparatus. In fact, he is seen as an actor advancing some governmental policy: ‘other historical instances of threats to the peace caused by the operations of volunteers include the occupation of Karelia and Olonets by Finnish volunteers in 1919, and D’Annunzio occupation of Fiume’.Footnote ¹⁹⁰ The figure of D’Annunzio evoked in this passage points to a shift from the image of the noble adventurer as a legacy of the nineteenth century, towards one of an actor under the direct patronage of a state’s foreign policy.Footnote ¹⁹¹

To conclude, one can see how in the first years of the Cold War a clear change over the cultural understanding of volunteering abroad was taking place. Brownlie’s position attests to the inadequacies of the Hague Conventions and more generally to the perceived gaps in the law. Still in 1962, Manuel Garcia-Mora conducted an in-depth study centred on the international responsibility for hostile acts of individuals against foreign states.Footnote ¹⁹² In his book, Garcia-Mora dedicates an entire chapter to volunteers. There, he asserts that: ‘the years that have elapsed since the adoption of the Hague Conventions have made crystal clear that volunteers are really instruments of international policy and not simply innocent foreigners who for ideological reasons join belligerent forces’.Footnote ¹⁹³

This quote seems appropriate to end the first chapter and to move to the next historical period. Between 1960 and 1963, the Katangese province of the Congo started a rebellion to gain its independence. Nigeria, Rhodesia and Angola experienced violent civil wars in the same years. The period commonly known as decolonization began a few years before with Algeria and would now set on fire the rest of the African continent. It is here that other foreign fighters are found in the battlefield. Yet they are portrayed very differently from their predecessors on the Iberian Peninsula. They do not seem to fight for an ideal, but rather for mere personal profit. The mercenaries have made their reappearance on the world’s stage.

1.5 Conclusion

The Spanish Civil War was a vantage point to examine how the figure of the foreign fighter entered the legal debates in the early twentieth century. Fought around two opposing ideologies, namely fascism and communism, this war was also described as a battle between Christian civilization and the barbarity of Bolshevism. Overall, these ideological struggles were important to understand foreign policy decisions, and to foreground the cultural figures through which legal actors defined who was a lawful and who an unlawful foreign combatant.

The chapter opened in May 1937 at Council of the League of Nations (Section 1.1). There, the Spanish minister of foreign affairs del Vayo was pleading his case against the Italian aggression. To mark the difference between legitimate and illegitimate volunteers, del Vayo characterized the legitimate ones as those idealists who came to Spain following their political faith, and not the dictates of a government. The differentiation between ‘good’ and ‘bad’ volunteers were reiterated during the League’s discussions, taking diverse connotations: barbaric and civilized troops, organized and disorganized contingents, heroic fighters and fascist militias. Through these distinctions, a battle was waged between different notions of freedom.

Section 1.2 looked at the debates in the Anglo-American doctrine during the Spanish Civil War years. Although Jessup, Lauterpacht and McNair devoted less attention to the issue of volunteers, when compared to the regulation of armed conflict, one can still trace what figure lingered in their imagination. The organized and state-sponsored nature of fascist militias fighting in Spain was in fact perceived by these internationalists as highly problematic. When differentiating the legitimate volunteers from hostile military expeditions, interesting cultural references appeared. The figure of the American freebooter William Walker was evoked to support the argument that expeditions organized within the territory of a state and aimed at conquering or looting other states’ territories should now be considered illegal. The activities of freebooters – vestiges of the long nineteenth century – were thus contraposed with the image of the noble adventurer fighting for his political beliefs.

The figure of the adventurer could also be traced in domestic discussions in France and the United Kingdom in the early months of 1937 (Section 1.3). It was here that, along with the usual foreign policy concerns, cultural references entered the lawmaking process. The figures of Byron, Garibaldi and Lafayette were evoked by the French and British legislators: they were taken as a reference to characterize the good side of the Spanish struggle, and thus to legitimize those French and British subjects who were joining the Republicans. Nonetheless, some reacted to this noble lineage by pointing the finger at the cynical and opportunist Russian Comintern soldier. Thus, the figure of the volunteer was split in two: on the one side, there were idealists travelling to the Iberian Peninsula to follow their political faith; on the other hand, opportunist soldiers were also present. This differentiation highlighted a split in the consciousness of the legislator, an aspect that would reappear in subsequent periods.

Finally, the chapter traced a further genealogy at the international level (Section 1.4). As such, it offered a window on the travaux préparatoires of the 1907 Hague Peace Conferences, where specific rules on volunteers were codified. At The Hague, opposing images were at play in the discourse of representatives of states. The fear of seeing ‘adventurers of all sorts’ endangering the good conduct of hostilities underlay the discourse of the German delegation. This version of the ‘bad’ adventurer was distinguished from that of the bon sauvage evoked by the British and the Dutch to portray the foreigners present in their colonial armies.

The end of the chapter placed the figure of the foreign fighter in connection with other important humanitarian debates, specifically the Brussels Peace Conference of 1874 and the 1949 Geneva Conventions. This was done on the one hand to explain the passage from the doctrine of neutrality towards the codification of the famous combatant status and, on the other hand, to attest to a shift in the cultural perception of the foreign fighter. As we reach the 1950s, the romantic, idealist adventurer which haunted the imagination of a large part of international lawyers and national policymakers had disappeared. The example of the Italian intellectual Gabriele D’Annunzio was used by Ian Brownlie to prove that volunteers could no longer be understood as detached from a state’s foreign policy, but rather was a direct manifestation of it. We thus moved into a new era with a new sensibility. And Brownlie was extremely receptive to these changes: by sketching a new figure of the foreign fighter he claimed that ‘the volunteer is the relic of the eighteenth-century toleration of the supply of mercenaries’.Footnote ¹⁹⁴