Blog post by Eric Fripp, a member of the Bar of England and Wales, joint head of 36 Public & Human Rights, and senior visiting fellow at RLI*. This post is part of the blog series on the application of refugee law in military service-related cases.
In what circumstances does refugee status under the Convention relating to the Status of Refugees 1951 (‘CSR51’) arise in the context of desertion from, or evasion of, national military service, or some other circumstance related to military service? This question, considered in my own paper below and in contributions to a May 2024 RLI seminar and this exchange which has arisen from it, is of immediate and growing relevance today given the greatly increased prevalence of armed conflict globally- including for instance in Ukraine/Russia, the Caucasus, the Middle East, the Sahel, the Sudanese civil war, and Myanmar- the involvement of some countries long dependent upon military service such as Israel, Ukraine, and the Russian Federation, and the mooted further expansion or introduction of military service, including conscription, both in countries already involved in armed conflict such as Israel, Ukraine, Moldova, and the Russian Federation, and elsewhere, in states as diverse as the Nordic countries and Myanmar. Claims to international protection may arise from the threat of punishment as a deserter or draft evader for some reason of personal religious or political conviction, but also may refer to fear of unacceptable phenomena of military service such as ‘hazing’ arising from unhealthy group culture and uneven power dynamics. Claims may also arise from regime change- for instance in the recent flight of military personnel from Syria to Lebanon upon the collapse of the Assad regime followed by their expulsion to their country of origin by Lebanon.[1] Resistance to military service, or indeed the risk of violent recrimination for such service or acts done in its course, seem likely to arise more frequently in the immediate future as a potential basis for seeking recognition as a refugee. This lends particular urgency to mutual learning.
The refugee definition at article 1A(2) CSR51 requires inter alia that an individual possess a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ as regards that person’s country or countries of nationality, or, if stateless, of former habitual residence. In principle, as Lord Steyn observed in the United Kingdom House of Lords[2] in R v Secretary of State for the Home Department[3] ex p Adan; R v SSHD ex p Subaskaran; R v SSHD ex p Aitseguer [2000] UKHL 67; [2001] 2 AC 477, §§517A-B,
‘In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.’
Focussing narrowly on the issue of when the article 1A(2) refugee definition is met and CSR51 engaged in a case with a military service aspect, the primary considerations are often likely to be:
- whether there is a well-founded fear of ‘being persecuted’ within the definition;
- whether the feared persecution would be ‘for reasons of’ an enumerated matter, or ‘Convention reason’ (a question which may also go to whether action would be persecutory- an action might be so when motivated by, say, race or religious discrimination or actual or imputed political opinion, but not so otherwise);
- whether notwithstanding meeting the article 1A(2) CSR51 definition the Convention ‘shall not apply’ to an individual by reason of exclusion under article 1F (‘serious reasons for considering’ an individual responsible for ‘a crime against peace, a war crime, or a crime against humanity’, or a ‘serious non-political crime outside the country of refuge’, or ‘acts contrary to the purposes and principles of the United Nations’).
In this short piece I shall focus on the first two of these- two critical elements in the refugee definition, whose application to military service related cases requires particular problems to be confronted.
The concept of persecution is at the core of the CSR51 refugee definition. In the earliest phase of modern international refugee law, at and after the end of the Second World War. Paul Weis, Legal Adviser first to the International Refugee Organisation and then the newly established Office of the United Nations High Commissioner for Refugees (UNHCR), stated in 1960 that ‘the term “persecution” has nowhere been defined and this was probably deliberate’ (Weis, The Concept of Refugee in International Law (UN publications, 1961 ) ( UN Doc HCR/INF/49 ) 22). Atle Grahl-Madsen, an eminent early commentator, agreed, noting that
‘as pointed out by [Weis], it seems as if the drafters have wanted to introduce a flexible concept which might be applied to circumstances as they might arise; or in other words, that they capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men.’ (Grahl-Madsen, The Status of Refugees in International Law, vol I (A W Sijthoff, 1966, p193, § 82).
This left the task of definition to be addressed incrementally as decades passed. In the words of Lord Bingham 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 856, the leading case on military service and refugee protection in the United Kingdom, persecution ‘is a strong word’. It is most often and authoritatively elucidated by considering it generally to include conduct breaching relevant international human rights law (‘IHRL’) and ius cogens norms (on the elaboration of this ‘human rights interpretation’ see, for instance, Goodwin-Gill and McAdam w/Dunlop, The Refugee in International Law (4th edn, OUP, 2021), 67-71; Hathaway and Foster, The Law of Refugee Status (2nd edn, CUP, 2014) 205; Storey, The Refugee Definition in International Law (OUP, 2023, 298-321)). The phrase ‘human rights interpretation’ in this context does not mean that standards beyond IHRL are irrelevant, and the standards sometimes looked at in this context include international humanitarian law (‘IHL’), containing the so-called ‘laws of war’, and international criminal law. In Sepet & Bulbul the House of Lords (862H, §7) described as ‘valuable guidance’ the statement of Professor James Hathaway that ‘In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community.’
An important starting point to the application of CSR51 to refugee protection is that international law seeks to regulate but does not prohibit participation by states in armed conflict, whether international or non-international. Relevantly to international armed conflict, article 2(4) of the Charter of the United Nations declares that ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’. Article 43 sets out that United Nations member states undertake to make available to the Security Council armed forces for the purpose of maintaining peace and security, and article 51 of the Charter refers to the ‘inherent right of individual or collective self-defence’, in turn cited by the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJReports 1996, p 226) (§96) as grounding ‘the fundamental right of every State to survival, and thus its right to resort to self-defence… when its survival is at stake’. International law bars the threat or use of force in international armed conflict only conditionally. This albeit conditional accommodation of armed conflict by international law is consistent with the aphorism that ‘international law is not a suicide club for States’[4]– at a foundational level its standards are not intended to undermine the survival of the states which are the primary subjects of international law. Further to the scope for legitimate military preparedness and action by states under international law, neither IHRL nor IHL purports to disbar states from the maintenance of national systems of military service, including by imposing conscription on citizens.
However, it is critical to understanding the relevance of armed conflict to the article 1A(2) CSR51 refugee definition that neither armed conflict nor military service creates a ‘state of exception’ from which international standards in assessing state or individual conduct are excluded. International standards, including most conspicuously IHRL and IHL, very obviously have potential to apply to military service and related situations.
Given that international law accommodates military service but also provides protective norms, including in particular IHRL and IHL, what exactly does the right to maintain armed forces allow the state to do in imposing military service on its citizens? And looking at the converse issue, when can an individual claim that participation is incompatible with international standards, and when do the circumstances provide a viable basis for refugee status? Somewhat surprisingly, intensive examination of these questions spanning the range of possible cases, rather than focussing on a single instance, seems to have been relatively rare. In light of this, it seems that an overall picture can only be assembled by gathering and assessing different aspects of a relatively fragmentary overall canvas.
The effort to reach a ‘human rights interpretation’ of the term ‘being persecuted’ in the context of military service, is a demanding task because it requires analysis of any of a range of situations, against a range of IHRL and/or IHL standards determined by the factual context. But some introductory observations seem opposite:
- Because imposition of military service is not categorically prohibited, a claim must be made good by reference to well-founded fear of breach of a relevant IHRL or other norm, not simply by the fact of a requirement to perform military service. Against this backdrop, determining whether a claim to refugee status shows a well-founded fear of persecution in article 1A(2) CSR51 terms requires principled distinction between conduct compliant with applicable norms of international law, including IHRL, and conduct which is not. In the examination of the concept of ‘being persecuted’ applying a ‘human rights interpretation’, any of a very wide range of standards may be relevant- including most obviously the right to life and prohibition of arbitrary deprivation of life (article 6 ICCPR, article 2 ECHR), the prohibition of torture or cruel inhuman or degrading treatment or punishment (article 7 ICCPR, article 3 ECHR), standards outlawing slavery and servitude and forced or compulsory labour (article 8 ICCPR, article 4 ECHR), rights to liberty and security of the person (article 9 ICCPR, article 5 ECHR) and freedoms of thought, conscience and religion and of expression (articles 18-19 ICCPR, articles 9-10 ECHR);
- Whether a relevant breach of IHRL protections is threatened has to be evaluated in what is generally an especially complex determination, looking both at facts in a context of armed conflict and/or military service that may be unfamiliar to, and indeed may be particularly alien to the understanding of, an assessor, and at the way in which particular IHRL provisions are interpreted, reflecting in the case of each provision the understanding that neither armed conflict nor military service is categorically prohibited by international law. One important feature rendering such cases complex is the provisional legitimacy of the underlying state requirement for military service, and the fact that this may be supported by general laws: a noteworthy early historical error in interpretation of the bearing of CSR51 on military service was to conclude that punishment for desertion or evasion of such service was per se an operation of domestic laws and therefore necessarily ‘prosecution’, not ‘persecution’: see for instance the decision of the Canadian Federal Court of Appeal in Zolfagharkhani v Canada (Minister of Employment and Immigration) [1993] FC 540 identifying this error in the decision before it. Military service cases parallel other categories in which the need to distinguish persecution from legitimate state activity is characteristic- for instance where the background includes operation of a domestic system of civil or criminal justice, or state conduct in relation to a field such as nationality or citizenship. Such cases are notably more complex, to experience, than those in which there is a well-founded fear of a form of conduct which is clearly and unambiguously prohibited, such as torture or rape (the point was expressed with characteristic directness by Laws LJ (Lord Justice Laws) in Sepet v SSHD; Bulbul v same [2001] EWCA Civ 681, §63
- ‘There are some classes of case in which the threatened conduct is of such a kind that it is universally condemned, by national and international law, and always constitutes persecution: torture, rape (though of course it is not necessarily persecution for a Convention reason). In those instances, the question whether or not there is persecution is straightforwardly a matter of fact. But it is not always so…There are other classes of case in which the threatened conduct is by no means necessarily unjustified at the bar of law or opinion: imprisonment is a plain instance (where its length is not disproportionate and its conditions are not barbarous). In such a case some further factor is required to turn the treatment in question into persecution. Torture is absolutely persecutory; imprisonment only conditionally so.’)
- Military service involves a very broad range of possible situations. It implies at least the possibility of participation in armed conflict. It also implies the possibility of deployment in support of public order or public security. But even beyond these things, military service is a broader experience, possessing a self-contained aspect with considerable loss of individual liberty, in which features of civilian life are replaced by military institutions, for instance discrete systems of military discipline and military justice in place of civilian justice. In addition, military service involves action by a range of actors- not only state agents acting as such, but ‘agents of persecution’ such as fellow soldiers or members of the wider population if relevant acts are knowingly tolerated by the authorities, or if the authorities refuse, or are unable, to offer effective protection (UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/1P/4/Eng/REV.2, 1979, re-issued 1 February 2019), §19). Concomitantly with the scope of military service as a form of state institution, the range of possible contacts with IHRL or other international standards is wide;
- IHRL is not the only branch of international law potentially applicable to situations involving military service. The separate branch of international law immediately relevant to armed conflict, and distinct from IHRL, is IHL. This has sometimes been said to oust IHRL, with the Latin maxim lex specialis derogat legi generali (‘a specific law modifies/repeals a general one’) pleaded in support of the proposition that, when engaged, IHL as the ‘lex specialis’ applicable to armed conflict excludes from application other branches of law, notably IHRL- the so-called ‘theory of separation’ between IHL and IHRL. The better view, set out by the International Committee of the Red Cross among others, is that IHL and IHRL are in general complementary, that neither excludes the other per se, and that they can apply simultaneously (see W Kälin and J Künzli, The Law of International Human Rights Protection (2nd edn 2019, OUP), pp 174-176). In light of this it is clear that IHL does not displace but may apply in parallel to IHRL;
- The scope for direct relevance of IHL- or some elements of IHL- in establishing the definition of ‘persecution’, is, I believe, not fully settled. But IHL instruments can have considerable significance in assessing the scope of ‘being persecuted’ in article 1A(2) CSR51 by a separate application of lex specialis, informing the content of open ended IHRL provisions for instance the prohibition of cruel, inhuman or degrading treatment (article 7 ICCPR, article 3 ECHR)- which underlies the definition of persecution for article 1A(2) CSR51 purposes. To take one example of IHRL provisions potentially relevant in this way, common article 3 of the 1949 Geneva Conventions, relating to non-international armed conflict, requires that noncombatants and those who have laid down their arms or become hors de combat through sickness, wounds, detention, or any other cause, ‘shall in all circumstances be treated humanely’ without impermissible discrimination on the basis of race, colour, religion or faith, sex, birth or wealth, or similar criterion, prohibiting, inter alia violence to life and person, in particular murder, mutilation, cruel treatment and torture, hostage taking, humiliating and degrading treatment, and the passing of sentences and the carrying out of executions without adequate legal process. Given relevance to interpretation of CSR51 standards via IHRL and lex specialis in any event, whether IHL provisions are directly relevant to the refugee definition may ultimately remain a theoretical question. The possible relevance of IHL standards either as lex specialis or otherwise is however potentially a significant factor in interpreting the article 1A(2) definition applied in the military service context;
- In addition, there may be provisions of IHRL and/or wider international laws which are geared to the particular situation of a specific group- for example children. For instance, recruiting and using children under the age of 15 as soldiers is prohibited under IHRL by article 38(3) Convention relating to Rights of the Child 1989 and by IHL, and ‘conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities’ is defined as a war crime by articles 8(2)(b)(xxvi) and (e)(vii) of the 1998 Statute of the International Criminal Court and individuals have been convicted of this and other acts against children in the context of armed conflict by that Court. Sexual and gender based international crimes in the context of armed conflict equally possess potential relevance to interpretation of CSR51;
- The application of relevant IHRL norms may itself be affected by matters specific to one or more rights. Derogation and the exclusion from some standards of military service are important examples of this:
- Derogation-Within this body of standards some- but importantly not all- may be derogated from, in extreme circumstances- in the case of ICCPR article 4(1) ICCPR in the event of ‘public emergency which threatens the life of the nation and the existence of which is officially proclaimed’, in that of ECHR, article 15(1) ECHR in the event of ‘war or other emergency threatening the life of the nation’. But the scope for state derogation is limited to that required by the circumstances, and a number of critical rights and prohibitions can never be derogated from by a state- in the case of the ECHR, article 2 may be derogated from only in respect of deaths resulting from ‘lawful acts of war’ and no derogation at all is permitted in respect of the article 3 prohibition on torture or inhuman or degrading treatment or punishment, the article 4(1) ban against holding a person in slavery or servitude, or the article 7 prohibition of punishment without law. Article 4(2) ICCPR provides a list of non-derogable rights more extensive than that of ECHR including not only the right to life (article 6), prohibition of torture or cruel inhuman or degrading treatment or punishment, but also freedom of thought, conscience, and religion under article 18 ICCPR;
- Exclusion of ‘service of a military character’- the prohibition of ‘forced or compulsory labour’ (article 8(3)(a) ICCPR, article 4(2) ECHR) does not include, inter alia ‘any service of a military character’ (article 8(3)(c)(ii) ICCPR, article 4(3)(b) ECHR)- though the proscription of slavery and servitude (article 8(1)-(2) ICCPR, article 4(1) ECHR) does not- these remain unequivocally prohibited in a military context as in any other. And the exception from the prohibition on forced and compulsory labour of ‘any service of a military character’ begs the question of what is properly to be considered excluded from breach of IHRL under this category. Examining this in MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC) the Upper Tribunal (Immigration and Asylum Chamber) in the United Kingdom held that Eritrean military service ‘considered as a whole’ did not constitute enslavement or servitude contrary to article 4(1) ECHR but did constitute forced labour under article 4(3), because the abuse of conscripts turned to forced labour on non-military projects, and the conditions of work and service for conscripts, meant that this was not ‘service of a military character’ excluded from the definition of ‘forced or compulsory labour’ by article 4(3)(b) ECHR;[5]
- Article 51 of the UN Charter, by which armed conflict is permitted to a state in self-defence, protects the right to self-defence of a state, not that of any other community. Under international law only the state is permitted to operate a system of conscription for the purpose of self-defence, a factor which is reflected in the application or otherwise of various provisions of IHRL and IHL. In a non-state situation assessment of such norms is complicated by the need to assess how the distinction between state and non-state affects the bearing of IHRL and IHL standards on the particular situation;
- The assessment of claims arising from the military service context is complicated by interaction with another concept, that of conscientious objection. Exact definitions of this vary. In Bayatyan v Armenia – 23459/03 [2011] ECHR 1095, §110 the European Court of Human Rights described conscientious objection as ‘opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs’. Some, perhaps many, conscientious objectors may become refugees, but the two groups are not identical- a person may be one without being the other, even given other factors such as alienage being satisfied. For instance, the conscientious objector whose objection would be respected by his or her state by the substitution of reasonable civilian service would not under CSR51 be entitled to refugee status in another state. Conversely, a deserter or evader with no claim to conscientious objection who possesses a well-founded fear of torture by reason of an enumerated matter such as actual or imputed political opinion or religious belief- would, other factors allowing, be a refugee, even if not a conscientious objector according to whatever definition of that term is applied. Conscientious objection is obviously a deserving topic of concern. But overly exclusive focus on it may risk obscuring the wider relevance of article 1A(2) in a much wider range of cases with a link to military service.
These factors, which render interpretation of ‘being persecuted’ in the article 1A(2) CSR51 refugee definition particularly difficult and burdensome in military service cases, obviously complicate any attempt to provide guidance addressing the whole range of potential cases or even a significant subset. The UNHCRHandbook on Procedures and Criteria for Determining Refugee Status in 1979 (on ‘deserters and persons avoiding military service’: §§167-174), at a time when there had been little or no judicial examination of relevant concepts, and the UNHCR’s helpful Guidelines on International Protection No 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees published in 2013 necessarily seek to provide a broad outline rather than exhaustive guidance.
As shown above, the multiplicity of relevant international standards, including those within IHRL and/or IHL, and the range of potential situations which may lead to a claim to protection, mean that a ‘human rights interpretation’ of the CSR51 definition will itself be multifaceted, reflecting the particular factual context of the case and the norms of international law applicable to those facts.[6] This complexity underlies the need for focussed exploration of the CSR51 refugee definition in the context of military service, to assist state authorities, non-governmental organisations, judges, advocates, claimants and potential claimants, and others. That need has become ever greater in recent years given the escalating proliferation of armed conflict globally.
*Eric Fripp is a barrister and Joint Head of 36 Public and Human Rights. He has appeared in many leading cases concerning refugees; immigration, including personal and corporate immigration; nationality and human rights. In addition, he is recognised internationally as a particular authority on nationality and statelessness and their interaction with the Refugee Convention 1951 and other protective instruments.
[1] Lebanon is not a party to CSR51 and news reports did not make clear whether any application for protection was made.
[2] The House of Lords was then the highest appeal forum in the United Kingdom. The judicial functions of the House passed to the newly instituted United Kingdom Supreme Court in October 2009.
[3] Abbreviated elsewhere in this post to ‘SSHD’.
[4] The observation is that of Professor Patrick Thornberry, discussing the friction in international law between self-determination/secession and territorial integrity of states: Thornberry, The Democratic or Internal Aspect of Self Determination with Some remarks on Federalism, in Tomuschat, ed, The Modern Law of Self-Determination (Brill, 1993) pp 101-138, 137). It obviously parallels earlier sentiments such as the American ‘the Constitution is not a suicide pact’. And such statements may obviously be misused in attempts to excuse or blunt criticism of non-compliance with law, whether domestic or international.
[5] The application of article 8 ICCPR/ article 4 ECHR to refugee status determination, and the decision of the Tribunal in MST, will be addressed by Sara Arapiles in her post in this series.
[6] In my further post in this series I describe the unsuccessful attempt in the United Kingdom to avoid complexity, at least in the subcategory of conscientious objection, by asserting an expansive IHRL right to conscientious objection. This was rejected by the House of Lords in Sepet v SSHD; Bulbul v same [2003] UKHL 15; [2003] 1 WLR 856
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