By Eric Fripp, a barrister at 36 Public & Human Rights, practising in public/international law re immigration, nationality, statelessness.
On 21 September 2022, in the wake of serious military, diplomatic, and economic failures surrounding the invasion of Ukraine, President Putin of Russia announced what was described as a ‘partial mobilisation’ to increase numbers of military personnel available to the state. There has followed a chaotic and seemingly often arbitrary process, with individuals selected for service on bases which are often opaque, and training and organisation grossly inadequate. Officially aimed at adding 300,000 soldiers recruiting only those with military experience, but rumoured to target much higher numbers, the mobilisation has been met with compliance in some instances, but also drastic levels of evasion. Interest in topics like ‘how to break an arm at home’ spiked on internet search engines, and since then an estimated 400,000 Russians have left their country. While many have gone to states not requiring visas for Russians, such as Kazakhstan, Georgia, Mongolia, Turkey, Serbia, and the UAE, others have gone directly or indirectly to various countries in Europe. Some have gone still further afield- on 6 October the New York Times reported that two Russians had travelled by boat across the Bering Sea to seek asylum on an island off Alaska.
This wave of human displacement obviously brings back to the forefront the issue of military service and refugee status, which has in many states including the United Kingdom attracted little attention in recent years. This may be because in the decades since 1989, obligatory military service has become significantly rarer, particularly but not only in Europe. Part of the reason has been the perceived decline of need for mass armies after the end of the Cold War. In addition, obligatory military service removes participants from civilian skill formation at an important life stage, hurting development of the ‘knowledge economy’, and there is room for doubt as to whether it strengthens or weakens loyalty to the state or its institutions (see for instance Bove, di Leo, and Giani here). Even where military service obligations have continued, in practice the number of persons required to perform this has decreased, so the need for extreme measures of compulsion are likely to have reduced.
The relevant law has been touched on elsewhere in recent pieces by Maarten den Heijer (on Verfassungsblog) and Colin Yeo (on Free Movement). It is clear that the requirement to perform military service, though not mentioned specifically in the refugee definition at article 1A(2) Convention relating to the Status of Refugees, may be part of the factual nexus which brings an individual within the Convention. The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees expressly cites ‘Deserters and Persons avoiding military service’ under the heading of ‘Special Cases’, at §§167-174, and the UNHCR Guidelines on International Protection No 10, of 12 November 2014, specifically address ‘Claims to Refugee Status related to Military Service’ within the Convention. Additionally, article 9(2) of Council Directive 2004/83/EC of 29 April 2004 (‘The Qualification Directive’) provides that ‘Acts of persecution as qualified in paragraph 1 can, inter alia, take the form of:… (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2) [including crimes against peace, war crimes, crimes against humanity, acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.]
In the United Kingdom the most senior and far reaching decision concerning military service and refugee law remains that of the House of Lords in Sepet v Secretary of State for the Home Department; Bulbul v Secretary of State for the Home Department [2003] UKHL 15; [2003] 1 WLR 853, which is now approaching 20 years of age. The appellants in that case were Turkish nationals of Kurdish background who sought asylum in the United Kingdom on the basis that if returned to Turkey they would be required to perform compulsory military service, and imprisoned if they refused. Importantly, they did not claim to have a conscientious objection to military service based on religion, but each stated that he was opposed to the policies of the government of Turkey in respect of Kurdish people, their culture, and Kurdish areas of the country (§§3-4). Citing Canadian and American decisions, the principal speech delivered by Lord Bingham, with which other members of the House agreed, held that there ‘is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment’ (§8). But looking to broader evidence of international law there was not demonstration of an international consensus regarding a broad right to resist or avoid military service, which was necessary to found a claim to refugee status in cases such as those before the House (§§18-20). On the facts the appellants would be punished for the fact of refusal or evasion of military service, not for their political opinions (§23):
‘The victims’ belief that the treatment is inflicted because of their political opinions is beside the point unless the decision-maker concludes that the holding of such opinions was the, or a, real reason for the persecutory treatment. On the facts here, that would not be a tenable view, since it is clear that anyone refusing to serve would be treated in the same way, whatever his personal grounds for refusing.’
Advocates and practitioners representing asylum seekers gave Sepet at best an equivocal welcome, even though the decision turned on the facts of the cases, in which individuals would not face (additional) recrimination by reason of their protected characteristic (personal political views). Since then however domestic law has developed in other ways, so that the overall picture is likely now more promising. Domestically, decisions of the Supreme Court in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31; [2011] 1 AC 596 and RT (Zimbabwe) and ors v SSHD [2012] UKSC 38; [2013] 1 AC 152, establish in the first case that individuals are entitled to refugee protection if they would have to hide a protected characteristic to avoid persecution, and in the second that this applies even in the case of those uncommitted- the ‘politically neutral’) if they would on return be forced to feign support. The decision of the Court of Appeal in WA (Pakistan) v SSHD [2019] EWCA Civ 302; [2020] All ER (D) 148 (Mar) clarifies inter alia that an additional requirement of ‘particular importance’ cannot be founded on the back of reference to the decision of the Grand Chamber of the Court of Justice of the European Union in Bundesrepublik Deutschland v Y & Z [2012] EUECJ C-71/11). Further, in Shepherd v Germany (Case C-472/13) [2015] QB 799, the CJEU examined military service and refugee status holding inter alia that participation could be offensive whatever the applicant’s level in the military hierarchy or task, and in Bayatyan v. Armenia – 23459/03 [2011] ECHR 1095 and Adyan & ors v Armenia – 75604/11 [2017] ECHR 882 the Strasbourg Court has clarified, in the article 9 ECHR context, the requirement for fully civilian alternative service.
None of these intervening developments overturns the principle of the decision in Sepet, but the gradual exploration of applicable principles both in the refugee and in the human rights contexts, has coloured the treatment of facts in newer cases. For instance, the senior specialist tribunal in the United Kingdom has without reversal or adverse comment been able to conclude in MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC) (headnote §12, text §431(1)), a ‘country guidance’ decision which junior tribunals are required to follow absent good reason, that military service in Eritrea is factually so politicised that evasion will likely attract recrimination for reason which qualifies the affected individual for refugee status: ‘Where it is specified above that there is a real risk of persecution in the context of performance of military/national service [in Eritrea], it is highly likely that it will be persecution for a Convention reason based on imputed political opinion.’ That judgment is consistent with the UNHCR Guidelines on International Protection No 10, §10, by which ‘Depending on the facts… an objection to military service- especially… based on a view that the conflict violates basic rules of human conduct- may be viewed through the prism oof actual or imputed political opinion.’ And as Maarten den Heijer has observed, the CJEU has recently, in a case concerning a Syrian draft evader, EZ v Bundesrepublik Deutschland C-238/19 [2020] EUECJ C-238/19, gone further, as regards those situations, where performance of military service would require persons to commit crimes against peace, war crimes, or crimes against humanity: ‘in the context of armed conflict, particularly civil war, and where there is no legal possibility of avoiding military obligations, it is highly likely that the authorities will interpret the refusal to perform military service as an act of political opposition, irrespective of any more complex personal motives of the person concerned’ (§60) so that there is a ‘strong presumption’ of relevant motivation on the part of potential persecutors (§61).
So, in company with the other commentators named above, I believe that Russian draft evaders would be able to make good claims to protection if in the United Kingdom or in any country with a parallel interpretation of its obligations under international refugee law. Such claims may ultimately come in much greater numbers than heretofore not just from Russia but elsewhere, given the apparent defrosting of post-Soviet ‘frozen conflicts’ such as between Armenia and Azerbaijan and recent conflict in Central Asia between Kyrgyzstan and Tajikistan. Indeed, depending on the practice concerning conscientious objection in Ukraine, it should be acknowledged that refugee claims might arise even from countries which are deservedly receiving extensive support from the United States, United Kingdom, and European Union.
For the moment, the reaction of states in the European area to Russian draft evaders seeking entry has been decidedly mixed, particularly in the Baltic states where there are particular historical and demographic concerns. But all states will have to consider how to address these claims, not only by considering applications when individuals are able to enter the territory to make them, but also by considering whether the range of non-entrée measures they have routinely deployed against potential asylum seekers, and their frequent resistance to burden-sharing among states, have to be reconsidered. The longer term moral and political, as well as legal, credibility of combining opposition to Russian conduct in its conflict with Ukraine, with effective victimisation of human beings trying to avoid contributing to Russia’s efforts, is minimal. As a leader in the Economist recently urged, European states bent on exclusion of potential asylum seekers presently risk undermining their credibility as defenders of human rights and alienating those from Russia most strongly aligned with the West: ‘If Europe shuts its borders to all Russians, it is handing Mr Putin tangible evidence that he is right’.
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