Melbourne man Jamie Williams risked his life and prosecution by Australian Federal Police when he joined Kurdish forces in north-eastern Syria in 2017. Just 26 at the time, he says there are many reasons people like him choose to become foreign fighters.

“There’s everything from the worst intentions to the best intentions,” he says. “Some people were motivated to fight because of attacks they’d seen in their home countries. The ideological people want to go and support the revolution.

“And then there are just people that miss serving in the military, the camaraderie of it. And the glory seekers.”

Williams made no secret of his activities, appearing in the media including in a 2018 ABC 4 Corners report from Raqqa and posting pictures of himself on the ground on social media. He was clear about his ambition on an earlier 2014 attempt to join the fight against Islamic State when Australian Federal Police stopped him at Melbourne airport. Charges brought against him then under Australia’s foreign fighter legislation were dropped in 2016, but a fresh investigation into his 2017 trip remains – to the best of his knowledge – open.

The thought of leaving the safety and prosperity of Australia to fight someone else’s war in a foreign land, as some Australians are now doing in Ukraine, is perplexing to most of us. Depending on the conflicts they’re involved in, forces they fight with, and motivations for going, foreign fighters have been labelled liberators, terrorists, mercenaries or just battle-hungry fools.

In the eyes of Australian authorities, however, they are also potentially criminals. Prime Minister Scott Morrison has cautioned anyone considering fighting in Ukraine that they risk breaking Australian law. But despite the government’s warnings, the legality of the situation remains unclear.

Foreign fighters have always been controversial. While the Ukrainian conflict has brought attention back to the issue, Australia has a long history of foreign fighters and they continue to present significant challenges for the Australian government.

Australia’s history of foreign fighting

As private citizens, Australians have been fighting in foreign conflicts for almost as long as we have been a federation.

Stretching back to the Spanish Civil war in the 1930s, where an estimated 70 Australians participated on both sides of the conflict, Australian foreign fighters have joined actions all over the world including Zimbabwe, Angola, Israel, Papua New Guinea, the former Yugoslavian republics, Afghanistan and, more recently, Syria and Iraq.

While numbers are sketchy, there have been reports of Australians joining the fighting in Ukraine, including this recent interview with one of them, not identified, by SBS’s Dateline program.

Andrew Zammit, a researcher and PhD candidate at Monash University studying Australian foreign fighters, says that the issue remained largely out of the government and media spotlight for many years. But that changed when a group of Croatian-Australians attempted to overthrow the Tito regime in Yugoslavia in the 1970s.

“They were all arrested shortly after their arrival and it caused diplomatic problems between Yugoslavia and Australia,” says Zammit.

The Fraser government’s response was to introduce the Foreign Incursions and Recruitment Act in 1978, which criminalised acts of aggression towards foreign governments. But the issue really gained national importance with the rise of jihadist groups fighting in the 1990s.

“It becomes a bigger issue after 9/11… which led to a greater understanding that what begins as foreign fighting can become terrorist attacks back in the homeland,” says Zammit.

He says the zenith of Australian foreign fighting occurred after ISIS declared an Islamic caliphate in Syria and Iraq in 2014.

Since then, government figures claim 230 Australians have travelled to fight for and against jihadist groups in the region. The issue has re-emerged in the past few weeks as the Ukrainian government openly calls for foreigners to join the Ukrainian International Legion.

Dr Sara Meger is an international relations expert at the School of Social and Political Sciences at the University of Melbourne and has been conducting research on foreign fighters in Ukraine. She estimates around 20-30 Australians have fought in the conflict since 2013 and predicts this number will continue to grow.

Heroes, terrorists or just plain stupid? Who are foreign fighters?

Jamie Williams says joining the fight against ISIS was an easy choice. He saw the conflict between ISIS and the left-wing Kurdish forces he fought with as a battle of “good versus evil”.

“I was bullied a bit growing up … and I guess I felt like I had to stick up for people that were sort of the underdog,” he says.

“I wasn’t really a good public speaker or anything and this was how I could help.”

Despite their ideological differences, foreign fighters share many things in common. Meger explains that, like Williams, who trained with the French Foreign Legion in 2011, a significant number of fighters have had previous military experience. She says many of the Australians she has interviewed fighting in Ukraine over the past few years appear to miss the experience and general thrill of combat.

Meger also observes that nearly all foreign fighters have been men in their twenties and thirties, often drawn to more extreme ideologies.

“A convergence of factors such as the decline of democracy, feelings of alienation, disenfranchisement, the widening gap between rich and poor, and fewer legitimate job opportunities leads young men towards radicalisation,” she says.

“We also find this sort of synergy between their political ideology and their expression of manhood.

“There’s this romanticism around foreign conflicts in which they see it as a chance to fulfill their ideals of what it means to be a man.”

Meger says that regardless of their ideologies, many foreign fighters view the localised conflicts they engage in as part of a larger global battle. Whether it is between imperialism and freedom, capitalism and socialism or ethno-religious statehood and multiculturalism, they are often drawn by ideals that go beyond the borders of the battles they fight.

Is it legal to fight for another nation?

Australia’s laws dealing with foreign fighters are confusing to say the least. The Foreign Incursions and Recruitment Act, introduced in 1978, aimed to limit foreign fighters engaging in hostile activities overseas, but notably excludes those fighting for the official armed forces of a foreign country.

Under these laws, nothing prevents citizens from serving foreign armed forces that are not at war with Australia, observed Professor Ben Saul, Challis chair of international law at the University of Sydney and associate fellow of the world-leading policy institute Chatham House, London, writing in The Australian in March. This includes any armed force under the effective control of the government of that country, including irregular forces such as the Ukrainian International Legion.

But here is where it gets complicated. Australia’s counter-terrorism laws prohibit “committing acts of violence intended to coerce or intimidate any foreign government to advance a political cause”. The only people exempt from these laws are Australia’s own military personnel. Professor Saul argued that this meant those fighting in conflicts for foreign armed forces risked breaking Australia’s counter-terrorism laws.

It is also illegal to advertise and recruit for foreign armed forces. The Ukrainian ambassador to Australia has been able to publicly advocate for and assist Australians joining the Ukrainian International Legion through the Ukrainian embassy only because he has diplomatic immunity, according to Saul.

The Abbott government introduced new laws under the Foreign Fighters Act to limit the flow of Australians to Iraq and Syria in 2014. Zammit suggests that while these laws have helped prosecute those fighting for designated terrorist groups like ISIS, they have made it more difficult to prosecute fighters who don’t fit neatly into these categories.

“It’s taken away a bit of [law enforcement’s] flexibility in prosecuting foreign fighters. It’s harder now to say ‘we don’t think you’re a terrorist, but you’re still not meant to do that, you’ll face a few years in jail, rather than 30 years of jail,’” he says.

“I have a sense that it’s caused a bit of confusion, and the courts themselves are still figuring out exactly what this means.”

Williams has experienced this confusion first-hand. While the 2014 charges against him, out of his earlier 2014 attempt to get to Syria, failed, he has been under investigation for the last four years under these laws as a consequence of his 2017 visit to Raqqa to fight for the YPG, the western-backed military of the de facto autonomous region of Rojava in north-eastern Syria.

Of his 2017 trip into the region to join Kurdish forces, he argues that because the government of Rojava was exercising effective governmental control of the area, his service with the YPG provides him immunity from prosecution.

“In my opinion there’s no legal justification for them to be able to lay charges,” he tells The Citizen. He’s unsure of the current status of the investigation, saying he’s had no contact from any authorities on the matter for some time.

“They’ve had all my mobile phones, SD cards, communications, everything for the past four years to investigate. So if there were any concerns I’m sure they would have found something by now to charge me with. I know there’s nothing there. The best they can do is keep the investigation ongoing to hold my passport and stop me from travelling.”

So why can’t the Australian Government just ban foreign fighters? Sara Meger says that because millions of Australians have dual citizenship with another nation, and conscription is still mandatory in many of these nations, the government can do little to change the laws.

Zammit adds that despite public opinion weighing firmly against people joining terrorist groups such as ISIS, many Australians still support the right to fight in what they view as noble causes, such as against Russia in Ukraine.

Do foreign fighters make a difference?

The extent to which foreign fighters are useful for the forces they serve is contested. Reflecting on his time in Syria, Williams says this depends on the amount of military experience and preparedness the fighter has.

“There were ex-military guys that could be useful in combat, but there were a lot of people who had no military experience that are really useless,” he says.

Meger says that foreign fighters can often do more harm than good for the forces they serve.

“I spoke with a senior general in the Ukrainian armed forces, and he described them as irritating flies circling the shit of war. Many of them don’t speak the language, and they can get in the way and frustrate operations,” she says.

Williams says there can also be other benefits of foreign fighter’s involvement.

“It was good for the morale of the local forces to see that they’re not alone, that people do care and want to come and help,” said Williams. “Foreigners in a conflict zone draws international attention.

“The more people’s attention it grabs, then the more international help and assistance comes.”

A threat to domestic security?

Experts agree that while some foreign fighters return intent on committing terrorist attacks on Australian soil, the threat is very low. It is what Zammit calls the ‘foreign fighter paradox’.

“The overwhelming majority do not pose a risk on return, but a very small number have proven to be extremely dangerous. And that’s what makes it such a perplexing policy problem. Governments are in the position where they’ll get blamed if one really bad attack happens, but if they try to take measures to prevent this risk it’s going to capture a large range of other people too, and often prove controversial.”

Meger says that foreign fighters’ experience can cement their often-extreme ideological stances and prove a threat to security when they return.

“So what do we do with men with extreme political views, combat experience and disillusionment with democratic political systems when they return? I don’t think simply criminalising it will help. But we certainly should be aware of it, as it is a potentially destabilizing factor for our liberal democracy.”

She also points out that these soldiers can pose a risk to the often-vulnerable civilians of the places where they fight.

“We know that every time you parachute a bunch of soldiers into a foreign country there’s a real risk that they’ll end up sexually exploiting and abusing locals. There are many humanitarian concerns and risks of war crimes being committed.”

Back at home base

Williams said it was hard returning to Australia after his time in Syria.

“I basically spent the first six or seven months in my bedroom not really wanting to partake in society. There’s not the support that [Australian Defence Force] personnel have available if you’re struggling … I had to figure out how to navigate reintegration myself, really.”

It is clear from Australia’s history that while there are conflicts raging overseas, there will be Australians intent on fighting in them, regardless of the law. Research has shown that holistic measures – reintegration and de-radicalisation programs that go beyond simply imprisoning or revoking the citizenship of returning foreign fighters­ – could be more successful in managing the threat that they pose. Meger suspects that these punitive laws run the risk of further radicalising fighters and plays into the hands of recruiters.

Williams has no regrets.

“Of course, everybody has an opinion. Some people believe you’re just a glory seeker or a murderer. Other people believe that it’s not your war, you shouldn’t be there,” he says.

“At the end of the day, that’s only their opinion and I just focus on how I live my life and how I feel about the situation.”