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 my previous post for this series I sought to elucidate both the reasons why focussed examination of refugee protection in military service seems to me urgently called for, and to describe some introductory considerations which complicate application of the ‘human rights interpretation’ to the refugee definition in the context of military service, but should, when understood and applied, advance the application of the definition to such cases.
I focussed in my earlier post on the international law definition, rather than the parochial matter of domestic jurisprudence in the United Kingdom.[1] But this does not reflect any complacency on my part regarding the relevant law and practice in the United Kingdom. I suggest below that there is an acute need in the United Kingdom for revisitation and increased understanding and appreciation of the refugee definition as applying in the context of military service.
A survey of authoritative decision making in the United Kingdom shows a surprising paucity of domestic jurisprudence in the more than 20 years since the decision of the House of Lords in Sepet v Secretary of State for the Home Department[2]; Bulbul v SSHD [2003] UKHL 15; [2003] 1 WLR 856 (‘Sepet & Bulbul’), the leading United Kingdom case addressing the article 1A(2) Convention relating to the Status of Refugees (‘CSR51’) refugee definition as bearing on conscientious objection and military service.
I have already identified in the previous paper the complexity and initial difficulty of interpreting the reach of the CSR51 refugee definition in the military service context, including but not only in cases advanced as based on conscientious objection to such service. That complexity has encouraged at least one ambitious attempt to circumvent complexity by establishing a much more expansive sphere of protection.
That attempt gave rise to the Sepet & Bulbul decision. The appellants in that case, two Turkish Kurds who objected to political and military activities of the Government of Turkey focussing on Kurds, were accepted as having strong political views opposed to state activity, but it was held by tribunals in each case that the individual did not possess a well-founded fear of torture or inhuman or degrading treatment, and would not be required to engage in acts contrary to basic rules of human conduct. In light of this they did not qualify for refugee status.
The appellants in Sepet & Bulbul attempted to elide the diversity and complexity of applicable IHRL and other standards by asserting the existence of a fundamental right to refuse to undertake military service on grounds of individual conscience, in light of which prosecution and punishment, assuming the latter to be sufficiently severe to constate persecution for purposes of article 1A(2) CSR51. In this regard the House of Lords was effectively asked to decide a single question- whether in a case of political objection to a particular conflict or Government policy- in that case the armed suppression of Kurdish fighters in Anatolia and other military activities there on the part of the Turkish authorities-, IHRL provided the appellants with a general right to refuse military service, in light of which punishment for desertion or evasion if sufficiently harsh would constitute article 1A(2) persecution (863F-864B, §9). The House of Lords held that no such general right existed (871C, §20), though conceding (863C-D, §8) that there was:
‘…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: see, for example, Zolfagharkhani v Canada (Minister of Employment and Immigration) [1993] FC 540; Ciric v Canada (Minister of Employment and Immigration) [1994] 2 FC 65…’
On the facts this did not assist the appellants- as noted above, in both cases it had been found that there was not any relevant prospect of military service entailing the commission of atrocities or relevant IHRL abuses, or participation in an internationally condemned conflict (860E-861D, §§3-5), and that there was no Convention reason for punishment, unless this could be identified through the fact of a recognised human right to refuse military service, the Convention reason being identifiable by reference to the posited right (871C, §20). The appeals failed because the House of Lords declined to accept the existence in IHRL of the general right claimed by the appellants, who had (87G-H, §53):
‘not made out their case for saying that there exists a core human right to refuse military service on conscientious grounds which entails that punishment of persons who hold such views is necessarily discriminatory treatment. The existence of such a right is not supported by either a moral imperative or international practice.’
Through practice in this field over many years I have come to suspect that in the United Kingdom a body of practitioners and even judges assume that the decision in Sepet & Bulbul marks out the entirety of scope for entitlement in the context of military service, excluding the possibility of qualification otherwise, either in non-qualifying conscientious objection cases or in cases raising no claim of conscientious objection at all. The risk of error may be increased by the length of time which has passed since the decision more than 20 years ago and the relative paucity of further examination in the superior courts since then.
An assumption that the decision of the House of Lords represents an exhaustive consideration of the scope for refugee protection in military service related cases would obviously be wrong. The House of Lords was considering cases on particular facts- Lord Bingham expressly observed that ‘in any asylum case the facts are all-important and these cases are no exception’ (860E, §3). The decision turned on the particular issue before the House- whether there was in international law a wide general right to refuse military service on the basis of political disagreement, protected by refugee status in the event of sufficient punishment being faced. The decision of the House of Lords, that there was no such general right, created binding precedent on that point. On a secondary point, accepting the basis of entitlement to refugee status in the desertion or evasion of military service context on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or in equivalent circumstances identified by Canadian cases including Zolfagharkhani v Canada, the decision in Sepet & Bulbul did not have binding effect, though its persuasive value is considerable.[3]
The decision in Sepet & Bulbul therefore risks being treated wrongly, as pointing to a very limited scope for refugee status in the United Kingdom, reserved exclusively to the narrow Zolfagharkhani subset of a set restricted to conscientious objection cases. This is not actually so, viewing the decision with an understanding of the bearing of common law precedent, or stare decesis. On the facts the appellants had to succeed on an expansive submission as to the content of IHRL, and failed in the attempt to do so. No precedent was set that excluded the possibility of the article 1A(2) definition being met in a military service case based on an interpretation of ‘well-founded fear of being persecuted’ following from analysis of applicable international norms including core provisions of IHRL.
Although Sepet & Bulbul is the sole decision of the highest court in the United Kingdom addressing the article 1A(2) definition in the context of military service,[4] the Upper Tribunal (Immigration and Asylum Chamber) in MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC) (‘MST’), addressed military service in Eritrea. Strikingly, the Tribunal did not refer to the earlier decision in Sepet & Bulbul at all, and its decision reflects a notably careful application of the ‘human rights interpretation’ described in my earlier post. The Tribunal found that given the particular characteristics military service at that time in Eritrea, and the surrounding politico-legal and human rights situation, it was the case (headnote, §7) that ‘a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR’, this wide category being subject to very limited exceptions itemised by the Tribunal. The Tribunal also found (headnote, §11) that ‘Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion.’ MST is designated as a Country Guidance decision of the Upper Tribunal, to be treated as authoritative by equivalent or more junior tribunals as regards factual circumstances to which it applies absent change of circumstances or new evidence (Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (2018), §12.2). It does not create a binding precedent on any point of law, but the Tribunal’s careful development and application of the ‘human rights interpretation’ of persecution for purposes of article 1A(2) provides a valuable model.[5]
In addition to the fact that the main point of the Sepet & Bulbul decision was a narrow one, rejecting the ambitious submission made by the appellants, even the decision it made might no longer be held binding in every circumstance given developments in the wider law. There have inter alia been substantial developments as regards understanding of the application of IHRL to both armed conflict and military service capable of informing the definition of ‘being persecuted’. There is, looking forward, a far more substantial body of material to guide interpretation as to whether an individual possesses a well-founded fear of being persecuted, in a case arising from a military service background. Some particularly apposite examples of development in understanding of IHRL and military service since the decision in Sepet & Bulbul include the following:
- The European Court of Human Rights has found the prohibition of arbitrary deprivation of life (article 6 ICCPR, article 2 ECHR) breached in military service cases- for instance finding in Gvozdeva v Russia – 69997/11 [2022] ECHR 248, that procedural aspects of the right to life under article 2 ECHR had been breached by an insufficient investigation of a young conscript’s suicide during military service, and in Filippovy v Russia – 19355/09 [2022] ECHR 250 that both the substantive and the procedural elements of article 2 had been breached by failure to suppress endemic brutal ‘hazing’ of recruits, and then failure of adequate investigation after another conscript’s suicide.
- As regards the prohibition of torture or cruel inhuman or degrading treatment or punishment (article 7 ICCPR, article 3 ECHR) the Court in Chember v Russia – 7188/03 [2008] ECHR 591 expressly applied this to ‘hazing’ inter alia referring to earlier cases [underlining added]:
- ‘49. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). Mandatory military service often involves such an element, as do measures depriving a person of his liberty. However, many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill-treatment when they occur in the armed forces, provided that they contribute to the specific mission of the armed forces in that they form part of, for example, training for battlefield conditions (see, mutatis mutandis, Engel and Others v. the Netherlands, 8 June 1976, § 57, Series A no. 22).
- 50. Nevertheless, the State has a duty to ensure that a person performs military service in conditions which are compatible with respect for his human dignity, that the procedures and methods of military training do not subject him to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline and that, given the practical demands of such service, his health and well-being are adequately secured by, among other things, providing him with the medical assistance he requires (see, mutatis mutandis, Kılınç and Others v. Turkey, no. 40145/98, § 41, 7 June 2005, and Álvarez Ramón v. Spain (dec.), no. 51192/99, 3 July 2001). The State has a primary duty to put in place rules geared to the level of risk to life or limb that may result not only from the nature of military activities and operations, but also from the human element that comes into play when a State decides to call up ordinary citizens to perform military service. Such rules must require the adoption of practical measures aimed at the effective protection of conscripts against the dangers inherent in military life and appropriate procedures for identifying shortcomings and errors liable to be committed in that regard by those in charge at different levels (see Kılınç and Others, cited above, § 41 in fine).’
- the Court has expressly held other rights to apply in the context of military service. In Engel and Others v The Netherlands – 5100/71 [1976] ECHR 3 (which predates but was not referred to in Sepet & Bulbul, almost certainly because of the narrow focus in that appeal on the claim of an overarching general right to conscientious objection) it considered complaints regarding disciplinary measures imposed on conscripts alleged to breach the article 5 ECHR right of liberty and security of person. It found no violation but observed (§57) that ‘the great majority of the Contracting States possessed defence forces’ and that [underlining added] ‘…a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of the members of these forces limitations incapable of being imposed on civilians… does not in itself run counter to their obligations… Military discipline, nonetheless, does not fall outside the scope of Article 5 para. 1’;
- in relation to conscientious objection, the Court found article 3 ECHR breached by punishment for draft evasion in Ülke v Turkey – 39437/98 [2009] 48 EHRR 48, which concerned a pacifist forced to serve. It has also moved on from the previous line of authority of the Commission relating to article 9 ECHR and conscription. In Bayatyan v Armenia – 23459/03 [2011] ECHR 1095, §110, the Court defined conscientious objection (far more widely than had the House of Lords in Sepet & Bulbul) as ‘opposition to military service… 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’ and addressed it as appropriate for consideration by reference to article 9 ECHR because seen as ‘a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9’ so that ‘[w]hether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case.’ A considerable body of jurisprudence treating conscientious objection within article 9 ECHR now exists as shown in the ECtHR factsheet. The Court of Justice of the European Union has also addressed conscientious objection by reference to IRL itself, as translated into European law, in cases including Shepherd v Bundesrepublik Deutschland [2015] EUECJ C-472/13; [2015] QB 799 and EZ v Bundesrepublik Deutschland [2020] EUECJ C-238/19.
The decision in MST strikingly addressed a significant range of applicable IHRL provisions, though focussing most closely on article 4 ECHR (§377, §§378-431). MST is also potentially significant in its dealings with the important point, not arising in Sepet & Bulbul, of ‘Convention reason’. In the Canadian Federal Court of Appeal case of Zolfagharkhani, MacGuigan JA, in the sole substantive judgement, held at 555i-556b that resistance to military service on the facts of the case was ‘a political act’, citing Professor Hathaway as stating (The Refugee in International Law (1983), 34) that ‘Military service and objection thereto, seen from the point of view of the state, are issues which go to the heart of the body politic. Refusal to bear arms, however motivated, reflects an essentially political opinion regarding the permissible limits of state authority, it is a political act.’ MacGuigan JA concluded that on the facts of the case there could be ‘no doubt’ that the appellant’s ‘refusal to participate in the military action against the Kurds would be treated by the Iranian government as the expression of an unacceptable political opinion.’ The Tribunal in MST held that on the evidence ‘desertion or draft evasion may be regarded by the authorities as an expression of political opposition or treason’, and that if there arose a real risk of persecution in the context of military/national service in Eritrea (§430) ‘it is highly likely that it will be persecution for a Convention reason based on imputed political opinion’.
This is consistent with the UK authority regarding Convention reason generally, as well as a broad current of comparative jurisprudence relating to military service cases. In EZ v Bundesrepublik Deutschland [2020] EUECJ C-238/19 the European Court of Justice acknowledged (§47)that refusal to perform military service was in many cases an expression of political opinion or religious beliefs, or otherwise motivated by membership of a particular social group, and that where this was so ‘the acts of persecution to which that refusal may give rise are also linked to the same reasons’, though it was necessary to be alert to other non-qualifying reasons, such as fear of combat (§48). In light of intervening developments in understanding, it seems highly probable that if the facts of Sepet & Bulbul were re-examined by junior tribunals today, by reference to IHRL standards, their prosecution and punishment would be recognised as ‘for reasons of’ political opinion or other Convention reason’- the active question would then be whether the nature of prosecution or punishment brought the case within the scope of one in which there was a well-founded fear of ‘being persecuted’.
Given the very limited question it raised, and the extent to which jurisprudence has advanced elsewhere in the intervening period, the decision in Sepet & Bulbul seems to me not to establish any binding legal precedent that would restrict future jurisprudence in the United Kingdom from developing the ‘human rights interpretation’ of article 1A(2) much more fully, when judges are confronted by appeal or judicial review relating to refugee status arising from a military service context. But it is important to acknowledge that the absence of other senior authority during the intervening period of more than two decades has created something of a vacuum. It seems likely that this will not continue- that global insecurity and conflict will lead to more cases of this type arising. When this happens, or in anticipation of it coming to pass, it will be necessary to develop a better understanding in the United Kingdom of the human rights interpretation to refugee entitlement arising against a military service background. To develop this may demand at least the following:
- application in military services cases of ongoing jurisprudence addressing the article 1A(2) definition of ‘well-founded fear of being persecuted’ since Sepet & Bulbul, such as the HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31; [2011] 1 AC 596 line of cases rejecting the proposition that an individual will not be a refugee on the basis that that concealment of a protected identity to avoid persecution eventuating can be relief:RT (Zimbabwe) and ors v SSHD [2012] UKSC 38; [2013] 1 AC 152, WA (Pakistan) v SSHD [2019] EWCA Civ 302; [2019] All ER (D) 124 (Mar);
- extensive reliance upon comparative law for guidance relating both to interpretation of CSR51 in military service cases, and to the international laws underlying the definition of ‘being persecuted’ including IHRL and IHL. This may in particular require close attention by administrative decision makers, domestic practitioners, courts, and tribunals, to the jurisprudence of other jurisdictions, including Canada, Australia, New Zealand, the United States[6], the European Union, and the European Court of Human Rights and to decisions of United Nations bodies.
Such an effort to develop jurisprudence fully facing the question of entitlement to refugee status in military service cases seems called for by the importance of the issues, as regards both the interests of those affected and the public interest. This underlines the significance for United Kingdom officials, judges and legal practitioners, of exchanges with others in contexts like the present.
[1] The United Kingdom encompasses three distinction legal jurisdictions: (i) Scotland, (ii) Northern Ireland, and (iii) England and Wales. However the treatment of refugee law is substantially common amongst these.
[2] Abbreviated elsewhere in this post to ‘SSHD’.
[3] The development of the jurisprudence in Canada, is addressed by Lorne Waldman in his post in this series. The Zolfagharkhani category has not always been elucidated in the UK, to my experience, in a manner giving close attention to relevant provisions of IHRL, but I would suggest that an individual with a well-founded fear of sufficiently serious punishment for refusal in the Zolfagharkhani circumstances may well potentially face treatment within the scope of inhuman or degrading treatment or punishment prohibited by article 7 ICCPR/ article 3 ECHR, read in conjunction with other IHRL and perhaps IHL standards.
[4] The UK Supreme Court has addressed exclusion under article 1F, in R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 15; [2011] AC 184.
[5] The application of article 8 ICCPR/ article 4 ECHR to refugee status determination, and the decision of the Tribunal in MST, is addressed in greater detail by Sara Arapiles in her post in this series.
[6] The relevant law in the United States is addressed separately by Karen Musalo in her post for this series.
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