Conscientious Objection and Asylum
(15.05.2021) In the 1990s, several hundred conscripts from Turkey applied for asylum in Germany and other countries. They went public with their conscientious objection, made it clear in front of the Turkish consulate, at press conferences or on other occasions that they were not willing to serve in the Turkish military, especially in protest against the war then waged in southeast Turkey. In many cases, their applications were initially rejected by the authorities. In some cases, they actually succeeded in obtaining protection under refugee law. Quite often this outcome derived from the fact that they had to expect additional criminal prosecution because of their public conscientious objection.
However, as the number of such cases increased, the German authorities tried to develop a line of reasoning enabling them to reject asylum applications. In one case, for example, it was finally argued that there was in fact no longer any threat of persecution since there were now so many cases that the Turkish authorities would no longer take action against conscientious objectors in each individual case. There was therefore no longer any danger of persecution. Such an assessment was upheld even when there was evidence that corresponding criminal proceedings had been initiated.1 Obviously, the German authorities tried to close this door in order to develop, once again, a blueprint for the rejection of conscientious objectors from Turkey in asylum proceedings and thus deny them protection under asylum law.
In the following article, I will examine the current situation of conscientious objectors from Turkey in asylum proceedings in the light of the current repressive policies of the Turkish government and newly issued directives and judgments at European and international level.
Preliminary remark: an emancipatory step is outlawed
For Connection e.V., the focus is on the women and men who, often because of their very concrete situation, say no and evade, defy, refuse or desert military service. Such a decision is courageous, especially in view of threatening criminal consequences and being ostracised as a traitor. However, conscientious objection or desertion has another meaning as well: conscientious objectors and deserters provide examples of possible courses of action in the societies that are involved in a war outside the logic of war, which only knows allies and enemies, only military confrontation and combat. They demonstrate that while there is a compulsion to join and stay with the military, their decision does not subject itself to this compulsion. The principle of order and obedience, without which the military with its hierarchical structures would not function, is questioned. It is a step of emancipation, towards the idea of ending the war. Although there are only a few cases when the number of deserters and conscientious objectors alone was at least a cause to really end the war, their example has had an impact on (their respective) societies.
Moreover, for many such a step is the only way to ward off implication in war crimes or having to shoot at own neighbours. The motives are manifold and rarely match up with those that here in Germany are considered to constitute instances of conscientious objection to military service, i.e. a general rejection of any war deployment. The motives of deserters and conscientious objectors relate much more to their concrete situations, to the wars that are being waged in each case. They do not are not orientated towards international conventions, but rather towards their own conscience.
How the asylum procedures evolved
Turkey still does not accept the human right to conscientious objection. Since the early 1990s, more than 1,000 conscripts in Turkey have declared their conscientious objection. Hundreds of thousands have evaded conscription in other ways or have gone into hiding. Several hundreds faced with persecution have sought asylum abroad.
In their asylum proceedings, however, they often found that their decision of conscience and the resulting criminal prosecution were not considered grounds for asylum. In one such case, the Higher Administrative Court of Lower Saxony ruled that a right to conscientious objection could not be derived from Article 9 of the European Convention on Human Rights, freedom of thought, conscience and religion, since it follows from Article 4 (3) of the Convention that general conscription is recognized as a right of every state under international law and that there is no obligation to offer alternative service. “Since Turkey punishes anyone who refuses military service, regardless of their motivation, the punishment is merely regulatory in nature.” Protection against deportation should also be rejected. “It is true that the Qualification Directive of the European Union has come into force in the meantime. But when performing military service in Turkey, no actions are required, such as participation in a war that is contrary to international law or actions that contravene international law.”2
In the meantime, since 2007, the higher court jurisprudence has changed in the wake of rulings of the European Court of Human Rights and the European Court of Justice regarding conscientious objection and regarding the granting of asylum in case of conscientious objection. Among other things, there have been the following landmark decisions and guidelines:
In 2004, the EU Qualification Directive was presented, which defined the criteria according to which persons may be recognized as refugees and as being entitled to subsidiary protection. The directive was revised. The revised version was to be implemented in all member states of the European Union by December 21, 2013. It is intended to protect those who are flee a war or acts contrary to international law, and who face persecution.3
In 2006, the European Court of Human Rights ruled in the case of Ülke v. Turkey that there was a violation of Article 3 of the European Convention on Human Rights because, with regards in particular the numerous criminal proceedings brought against a conscientious objector, “the cumulative effects of the ensuing criminal convictions and the constant alternation between prosecution and imprisonment, together with the possibility that he would face prosecution for the rest of his life, are disproportionate to the aim of ensuring that he performs his military service.” The Court characterized resultant life of secrecy forced onto the applicant as a “civil death”.4
In the case of Bayatyan v. Armenia in 2011, the European Court of Human Rights ruled that the conviction of a conscientious objector violated Article 9 of the European Convention on Human Rights (ECHR), also the right to freedom of thought, conscience and religion. At the same time, it recognized the human right to conscientious objection.5 Similar rulings were also made with regard to conscientious objectors from Turkey.6
In 2013 the UNHCR submitted the Guidelines on International Protection No. 10 defining the treatment of claims of Refugee Status related to Military Service within the context of the Geneva Convention.7
In 2012 the UN-Human Rights Council resolved a resolution which encourages states to consider granting asylum to those conscientious objectors to military service who harbour well-founded fear of persecution in their country of origin because of their refusal to perform military service.8
a) The principle
In June 2020, Julia Idler presented a detailed study on how the refugee recognition of conscientious objectors and deserters under the Geneva Refugee Convention has developed.9 In particular, she examined the case law in Germany and the Anglo-American states. She concludes that in the European Union, as well as in Canada, the United States, and Great Britain, the case law of the higher courts continues to point out “that conscription is a general state duty that affects all citizens (or at least all citizens of military age and, if applicable, of the male sex) equally; prosecution and punishment for refusal are therefore classified as legitimate state action.”10 Only Australia takes a less restrictive stance in this regard.
b) Refugee protection under the Geneva Convention
As a result, despite developments in high court jurisprudence, persons who refuse to perform military service in Turkey and who face persecution continue to be denied refugee protection under the Geneva Convention. Punishment in itself is not considered sufficient. Only if additional persecution can be shown, if the punishment is disproportionate, or if purposeful persecution for political reasons can be shown, will the authorities and courts consider recognizing them as refugees.
In recent years, for example, there have been several cases of conscientious objectors from Turkey who were subjected to additional criminal prosecution due to their political work in Turkey and were able to prove this. Particularly relevant here is prosecution under Article 318 of the Turkish Penal Code, which criminalizes “alienating the people from the army” and thus critical statements about the military or even calls for conscientious objection. Relevant is article 7/2 of the Anti-Terrorism Law as well. It has been used repeatedly to prosecute the expression of non-violent opinions, of conscientious objectors, supporters and peace activists because of “making propaganda for a terrorist organization”. In this regard, there have been recognitions in Cyprus and France.11
c) Subsidiary protection
In article 15, the European Union Qualification Directive provides subsidiary protection in the case of torture or inhuman or degrading treatment or punishment of an applicant. This goes back to Article 3 of the European Convention on Human Rights (ECHR). It should be noted here, in particular, that the European Court of Human Rights had found a violation of Article 3 ECHR in the case of Ülke v. Turkey, as explained above, due to the repeated punishment of a conscientious objector. In this sense, there was a judgment in Germany, for example, concerning an Azerbaijani conscientious objector. Here the court found that “an Azerbaijani national who permanently refuses military service (...) in Azerbaijan (must) reckon with repeated and thus in sum disproportionately long prison sentences. This constitutes a risk of humiliating and degrading punishment disproportionate to the purpose of ensuring the performing of military service.”12 However, the court only reached this decision in this case because it was convinced “that the plaintiff is indeed refusing military service on grounds of conscience”.
d) Human rights to conscientious objection
Even though the European Court of Human Rights has defined conscientious objection as a consequence of freedom of thought, conscience and religion, this is still not reflected in refugee law. Article 9 of the European Union’s Qualification Directive de facto excludes fundamental protection for conscientious objectors and relates possible protection status solely to the refusal of acts or wars contrary to international law.
In the case of an asylum application, however, an additional examination is made as to whether there has been a violation of the European Convention on Human Rights. In Germany, an obstacle to deportation must then be pronounced in accordance with Section 60 (5) of the Residence Act, the worst possible status. It says: “A foreigner may not be deported insofar as the application of the Convention of November 4, 1950, for the Protection of Human Rights and Fundamental Freedoms shows that deportation is inadmissible.”
e) Selective conscientious objection
Not all conscientious objectors make an absolute decision against any war deployment. Often, especially in the case of war or tension, this decision is made because of a particular personal or social situation. In Turkey, for example, there are many conscripts who refuse to serve in the eastern part of the country, which is inhabited primarily by the Kurdish population. But even such a selective decision reflects the conviction that one does not participate in military operations and rejects the armed force involved. In its guidelines, the UNHCR points out that conscientious objection also exists when individuals are convinced that “the use of force is justified in some circumstances but not in others, and that therefore it is necessary to object in those other cases”13. The Advocate General of the European Court of Justice, Eleanor Sharpston, also noted in a November 11, 2014 opinion that the term conscientious objection “may also refer to persons who object to a particular conflict on legal, moral, or political grounds or who object to the means and methods used to prosecute that conflict.”14 This reasoning has not yet been reflected in asylum proceedings.
f) Illegal war or actions in violation of international law
As noted above, the EU Qualification Directive is intended to protect those who are evade a war or acts in violation of international law and face persecution. Applied to the situation in Turkey, this means that an asylum applicant would have to prove that the Turkish military is committing such war crimes and that he or she would very likely be forced to participate in them as a conscript. As things stand at present, it can be assumed that this proof can only rarely be provided and that the level for proof required is set particularly high.
g) Credibility of a conscientious objection
Authorities and courts base their decisions on very high standards as regards conscientious objection. In Germany, for example, the courts are guided by the jurisdiction that has developed over the past decades on the proceedings concerning German conscientious objectors. In the case of a Kurdish conscientious objector, the Saarland Administrative Court stated: “Such a decision of conscience presupposes a moral decision that the conscientious objector inwardly experiences as binding on him and against which he cannot act without falling into severe moral dilemma. What is required is a decision of conscience against the killing of people in war and thus one’s own participation in any use of weapons. It must be absolute and may not be situation-specific.”15 Since the applicant had not explained his refusal in the required manner, his application for asylum was rejected.
Conscientious objectors need asylum!
Therefore, in principle, we must conclude that prosecuting conscientious objection or military draft evasion is not regarded as persecution within the meaning of the Geneva Convention; accordingly, a case is made for a mere prosecution of an offense, i.e. military draft evasion or desertion, but no targeted action is taken against the person concerned in the sense of political persecution. The decision of conscience is disregarded. In our opinion, this view is no longer acceptable in the light of legal developments.
Refugee recognition according to the EU Qualification Directive is possible if the person concerned has refugee status according to the Geneva Convention and there is an act of persecution in this regard. The Qualification Directive states accordingly: “One of the conditions for qualification for refugee status within the meaning of Article 1(A) of the Geneva Convention is the existence of a causal link between the reasons for persecution, namely race, religion, nationality, political opinion or membership of a particular social group, and the acts of persecution or the absence of protection against such acts.”16
a) Membership to a particular social group
With regard to persons who refuse military service, membership to a particular social group, in particular, to date almost completely been disregarded. In its guidelins the UNHCR has defined social group in more detail. It is stated:
“A particular social group involves a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.”17 Similarly, the European Union’s Qualification Directive also defines a social group in Article 10 (d).
Accordingly, UNHCR concludes in Guidelines No. 10 that conscientious objectors are to be considered a specific social group, “given that they share a belief which is fundamental to their identity and that they may also be perceived as a particular group by society. (...) This may also be the case for draft evaders or deserters, as both types of applicants share a common characteristic which is unchangeable; a history of avoiding or having evaded military service. In some societies deserters may be perceived as a particular social group given the general attitude towards military service as a mark of loyalty to the country and/or due to the differential treatment of such persons [for example, discrimination in access to employment in the public sector] leading them to be set apart or distinguished as a group. The same may be true for draft evaders. Conscripts may form a social group characterized by their youth, forced insertion into the military corps or their inferior status due to lack of experience and low rank.”18
b) Acts of persecution
In addition, individuals who refuse or evade military service are subject to both criminal prosecution and persecution in Turkey through so-called “civil death” status. This is a 2006 definition by the European Court of Human Rights, as outlined above. This excludes them from a whole range of civil rights. The decisive factor for prosecution is not what the motives for their acts are. Only the act itself is considered contrary to the goals of state action. For example, they are subject to lifelong conscription, which means that once they have been punished, they are called up again and are thus subject to repeated punishment. People who refuse to perform military service are effectively deprived of their civil rights. They cannot obtain a passport, they cannot take legal employment, their freedom to travel is restricted, they are at constant risk of being recruited and prosecuted again, they cannot open a bank account, and they cannot vote in elections. Conscientious objectors thus face far-reaching administrative measures that exclude them from society, deprive them of essential civil and human rights, and effectively force them into an illegal status.
Conscientious objectors also face public social stigmatization and discrimination reinforced by the administrative measures, and thus persecution that goes beyond criminal sanctions.
Based on these considerations, it is imperative that persons who evade military service in Turkey, refuse or desert, and who are therefore exposed to persecution, must be considered as a social group within the meaning of the Geneva Convention on the one hand, and must be granted protection under asylum law on the basis of persecution on the other. The fact that people who refuse to participate in war and war crimes are denied refugee protection and are being deported constitutes an untenable state of affairs. This puts them at the mercy of the very warlords who are responsible for the wars.
1 Jugdment of Administrative court Gießen in the case of Er, January 25, 2006
2 Higher Administrative Court Niedersachsen, Decision March 2, 2007 – AZ 11LA 189/06; to the Directive please see footnote 3
3 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons eligible for subsidiary protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, L 337/9, article 9 par. 1e, https://kurzelinks.de/fkof
4 European Court for Human Rights, Jugdment, January 24, 2006, application no. 39437/98
5 European Court for Human Rights, Jugdment, July 7, 2011, application no. 23459/03
6 Yunus Erçep v. Turkey, 43965/04, 22/11/2011; Feti Demirtaş v. Turkey, 5260/07, 17/01/2012; Halil Savda v. Turkey, 42730/05, 12/06/2012; Mehmet Tarhan v. Turkey, 9078/06, 17/07/2012
7 UNHCR: Guidelines on International Protection no. 10. December 3, 2013, HCR/GIP/13/10. corrected November 12, 2014: http://www.unhcr.org/529efd2e9.html
8 UN Human Rights Council. A/HRC/RES/24/17, 27. September 2013, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/24/17
9 Julia Idler: Die Flücht-lingsanerkennung von Wehrdienstverweigerern und Deserteuren nach der Genfer Flüchtlingskonvention, Nomos Verlag, Baden-Baden 2020.
10 Julia Idler, p. 126f
11 e.g. decision of Asylum Service of the Republic of Cyprus case Halil Savda. 24.10.2017, F17-02131 R
13 UNHCR, loc. cit.
14 European Court, Opinion of General Advocate Sharpston, C-472/13, Punkt 53. https://en.connection-ev.org/pdfs/14StSh-en.pdf
15 Administrative court Saarland, 21.11.2018 - 6 K 1091/17 - asyl.net: M27072, https://www.asyl.net/rsdb/m27072/
16 Directive 2011/95/EU, (29)
17 UNHCR, Guidelines on International Protection, HCR/GIP/02/02, May 7, 2002
18 UNHCR, Guidelines on International Protection No. 10, November 12, 2014, HCR/GIP/13/10/Corr. 1, par. 58
Rudi Friedrich: Conscientious Objection and Asylum. May 15, 2021. Published in the booklet "Conscientious Objection in Turkey", May 2021. Editors: Connection e.V., War Resisters International and Union Pacifiste de France