Protection and asylum in the event of conscientious objection and desertion in the time of the Ukraine war

by Rudi Friedrich, Connection e.V.

In Russia and Belarus, people are evading involvement in the war against Ukraine, which is in violation of international law. There are also conscientious objectors in Ukraine. Despite international decisions on conscientious objection, and despite regulations in EU law concerning objection to wars in violation of international law, German asylum decisions go in a different direction.

More and more people in Russia and Belarus do not want to participate in the illegal war against Ukraine. And there are also conscientious objectors in Ukraine. Due to clear provisions, in EU law and international judgments and regulations, on objection to wars in violation of international law that recognize a right to conscientious objection, these groups of persons must be granted asylum.

The current war in Ukraine is a war of aggression by Russia, which the UN General Assembly condemned on March 2, 2022. The deployment of the Ukrainian military is thus at the same time legitimized under international law.

Soldiers who take part in this war on the side of Russia or Belarus are part of an operation in violation of international law. If they evade service, refuse, or desert, they face prosecution. This can justify protection under the EU Qualifications Directive.

Also in Ukraine, there are conscientious objectors who, for various reasons, do not want to participate in the fighting. Moreover, for all sides, the human right to conscientious objection, as determined by the European Court of Human Rights in 2011, must be recognized.

Currently, all Ukrainian citizens registered in Ukraine as of February 24, 2022 are entitled to humanitarian stay in the European Union. That is gratifying. It should nevertheless be borne in mind with respect to conscientious objectors that, when this regulation expires, there will be an issue as to whether and how conscientious objectors will be persecuted in Ukraine.

High Court Decisions

In the past 15 years, there have been some notable rulings by the European Court of Human Rights and the European Court of Justice concerning the granting of asylum in cases of conscientious objection or desertion. Leading decisions and guidelines:

• In 2004, the EU Qualifications Directive was presented, which defined who can be recognized as a refugee and who is entitled to subsidiary protection. The currently valid guideline of 2011 extends protection to those who evade a war, or actions, that violates international law and who are at risk for persecution.  This did not, however, establish a fundamental protection for conscientious objectors.

• In 2011, the European Court of Human Rights ruled in the case of Bayatyan v. Armenia that the conviction of a conscientious objector violates Article 9 of the European Convention on Human Rights (ECHR)--that is, the right to freedom of thought, conscience, and religion. At the same time, it recognized the human right to conscientious objection (decision of 7 July 2011, Application No. 23459/03).

• In 2014, UNHCR presented the revised Guidelines on International Protection No. 10,  which deal with the treatment of applications for refugee status regarding military service in the context of the Geneva Convention.

• In 2013, the UN Human Rights Council adopted a resolution encouraging states to consider granting asylum to those conscientious objectors who have a well-founded fear of persecution in their country of origin because of their refusal: UN Human Rights Council. A/HRC/RES/24/17, 27 September 2013.

• In 2015, in the case of US deserter André Shepherd,  the European Court of Justice (ECJ) determined that "all military personnel, including logistical and support personnel," can rely upon  the qualification directive, which provides refugee protection for those who have to fear persecution because of their refusal to participate in actions or wars that are contrary to international law. In the court’s view, this also included the repair of helicopters used in the war zone. Shepherd was a helicopter mechanic in the U.S. Army and deserted in 2007 after it became public that soldiers in Iraq had fired on civilians from helicopters.

At the same time, the Court set high standards as to whether the helicopters’ operations were actually war crimes. And, finally, the Court made it clear that the applicant must first enter into a conscientious objection proceeding if this is available.

• In 2020, in the case of EZ, a Syrian military service evader, the European Court of Justice found that, in certain cases, it may be irrelevant whether the person concerned can prove before the deployment that he or she would have been involved in war crimes. The court ruled that, "in a context of a general civil war characterized by the repeated and systematic commission of war crimes or crimes against humanity by the army using conscripts, it is irrelevant that the person concerned does not know his future military area of operation."

In addition, the ECJ determined that, "if the possibility of refusing military service is not provided for by law in the country of origin, it cannot be relied upon against the person concerned that such person has not formalized his/her refusal in a particular proceeding and has fled his/her country of origin without making him/herself available to the military administration."

The basic principle: conscription as a general duty

In June 2020, Julia Idler presented a detailed study on how refugee recognition has developed in the case of conscientious objection and desertion under the Geneva Refugee Convention. She examined in particular the jurisprudence in Germany and in the Anglo-American states. She concludes that, in the European Union--as well as in Canada, the USA, and Great Britain--the higher court case-law considers "that conscription is a general obligation owed the state that affects all citizens (or at least all citizens of military age and, as the case may be, of the male sex) equally; prosecution and punishment for refusal are therefore classified as legitimate state action."

Refugee protection under the Geneva Convention

As a result of this principle, despite developments in higher court case law, persons who refuse military service and face persecution still, as a general rule, do not receive refugee protection under the Geneva Convention. The punishment in and of itself is not considered sufficient for refugee protection. Only if additional persecution can be demonstrated, if the prosecution is disproportionately high, or if targeted persecution for political reasons can be demonstrated, will the authorities and courts consider recognition of refugee status.

Deployment contrary to international law or war in violation of international law

The UN Convention on Refugees recognizes as refugees those who are "outside the country of which they are nationals because of the well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group or on account of their political convictions and who are unable or unwilling to avail themselves of the protection of that country because of these fears" (Article 1 (A)(2) of the UN Convention on Refugees of  1951 as amended by the 1967 Protocol).

As set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, this also includes persons punished for desertion or conscientious objection if "the nature of the military action with which the person concerned does not wish to identify him/herself is condemned by the international community as contrary to the basic rules of human conduct" (para. 171). This refers to those who are punished in their own country for refusing to commit international crimes or other violations of international law that violate the basic rules of human conduct (e.g. paras. 26, 29, 39, 51).

Directive 2011/95 of the Council of the European Union clarifies the scope of application of this principle and establishes that persons prosecuted for refusing to commit aggression (referred to in this context as ’crimes against peace’) are considered refugees (Art. 9(2)(e), 12(2)(a)8; see also The Legal Obligation to Recognize Russian Deserters as Refugees. With the judgment in the Shepherd case, the European Court of Justice has provided the definition that this refers to "all military personnel, including logistical and support personnel"--that is, not just to those in command.

The war of aggression launched by Russia in February 2022 is the main cause of death, destruction, and human suffering and cannot be justified. As the UN Human Rights Committee noted in 2018, any killing in the context of a war of aggression constitutes a violation of the right to life (paragraph 70). The serious violation of the UN Charter by Russia’s actions in Ukraine thus has the character that establishes refugee protection under the Qualification Directive. It is irrelevant who exactly bears the criminal responsibility for starting the war. And this means that those who evade this injustice and fear persecution are to be granted protective status.

Even so, some limitations must be taken into account, which will probably only become apparent in practice as the case law develops.

Thus, quite a few people from Russia and Belarus evaded recruitment or deserted even before the beginning of the war–and in the case of Belarus before the country entered the war. They saw what could happen and drew their conclusions in time. In the asylum proceedings, however, they will hardly be able to prove that they would have been used specifically in Ukraine during the war because they can neither provide proof of recruitment nor of an area of operation.

German authorities and courts could also come up with the idea that even if recruitment to the military is assumed, it is not really likely that the person in question will really be deployed in the war zone. That would affect even those who could submit proof of conscription.

It is also unclear how German authorities will assess that there are only very limited possibilities in Russia and Belarus to apply for conscientious objector status (see article "Conscientious objection and desertion in Belarus, Russian Federation, and Ukraine"). Even though, in Russia and Belarus, reservists are excluded from applying (and in Belarus only religious objectors are recognized), according to the case law of the ECJ, an attempt should still have been made to submit an application. This cannot really, however, be expected in light of a situation escalating within a few days, which led to entry into the war.

The consequence, however, would be that the military conscript or military personnel who cannot provide clear proof of their deployment in Ukraine or who cannot prove that they have made an attempt to be recognized for conscientious objection would be rejected in asylum proceedings.

Human right 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 Qualifications Directive of the European Union effectively excludes fundamental protection for conscientious objectors and refers to a possible protection status solely for the refusal of acts contrary to international law or wars in violation of international law.

When applying for asylum, however, it is also to be examined whether there has been a violation of the European Convention on Human Rights. If so, in Germany, according to Section 60 (5) of the Residence Act, an injunction halting deportation must then be issued, the lowest possible status. It states: "A foreigner may not be deported if it follows from the application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 that the deportation is impermissible."

Situational conscientious objection

Not all conscientious objectors make an absolute decision against every war deployment. They often make a decision, especially in a case of war or tensions, based on a special personal or social situation. But, even in the case of such a situational decision, the conviction reflects that one does not want to be involved in military operations and rejects the associated armed violence. The UNHCR points out in its guidelines that conscientious objection also exists when persons are convinced that "the use of force is justified in certain circumstances, but not in others, and that they must therefore refuse service in these other cases."

The Advocate General of the European Court of Justice, Eleanor Sharpston, also made it clear in an opinion of 11 November 2014 that the term conscientious objection "may also refer to persons who, for legal, moral, or political reasons, reject a more concrete conflict or the means and methods of carrying out this conflict." This reasoning, however, has not yet been reflected in German asylum proceedings.

Credibility of conscientious objection

Authorities and courts assume very high standards for conscientious objection. In Germany, for example, the courts are guided by the case law that has developed over the past decades in proceedings concerning German conscientious objectors–and reject a situational decision. In the case of a Kurdish objector, for example, the Saarland Administrative Court stated: "Such a decision of conscience presupposes a moral decision, which the conscientious objector experiences internally as binding for oneself and against which one cannot act without falling into severe distress of conscience. What is required is a decision of conscience against the killing of people in war and thus one’s own participation in every use of weapons. It must be absolute and not situational."

Since the applicant had not demonstrated his refusal in the manner required by the court, his application for asylum was rejected. It is highly recommended that conscientious objectors contact counselling centres in order to prepare for hearings.

Political demands

Thus, it becomes clear that military conscripts or military personnel who have persecution to fear because they want to exercise the human right to conscientious objection or want to evade a war of aggression are not sufficiently protected in Germany. Therefore, PRO ASYL and Connection e.V. demand that both Russian and Belarusian as well as Ukrainian conscientious objectors and deserters be granted protection and asylum. Germany and all other EU countries must take in these people who are fleeing deployment to war, without red tape and bureaucracy, and must make it possible for them to have a right to long-term stay.

Rudi Friedrich, Connection e.V., 24. März 2022

Keywords:    ⇒ Asylum   ⇒ Belarus   ⇒ CO and Asylum   ⇒ Conscientious Objection   ⇒ Desertion   ⇒ Russia   ⇒ Ukraine