Deserters, Draft Evaders and Refugee Law

The interaction of military service and refugee status has attracted little recent consideration by lawyers and judges.  The law of refugee status obviously does not exclude persons whose claims arise against the background of military service, such as deserters or draft evaders.  But ascertaining entitlement to refugee status can involve particular difficulties in such cases. 

The key term ‘persecution’ in the qualifying formula of the Convention relating to the Status of Refugees is generally defined by reference to international human rights and/or ius cogens norms.  These do not prohibit States from imposing military service on citizens, and both Article 51 of the UN Charter and customary international law recognise the right of a State to self-defence, pursuant to what the ICJ Advisory Opinion in the Nuclear Weapons case referred to as the ‘fundamental right of every State to survival’.  But what exactly does that right to self-defence allow the state to do?  Conversely, what is it prohibited from doing by, in particular, international human rights and/or ius cogens norms?  In assessing what is permitted, and what is not, any of a range of standards may be relevant- including most obviously the right to life, the prohibitions against torture or cruel, inhuman or degrading treatment or punishment, and slavery or servitude or forced or compulsory labour, the right to liberty and security of person, and freedom of thought, conscience, and religion, and of expression.  But how is each of them to be applied in the particular and often extreme context of military service, and what is the overall end point of the work of definition?

Given the resurgence in armed conflict involving States, the application of refugee law in these circumstances presents pressing questions, which in some or many jurisdictions have not been examined sufficiently.  This RLI blog series, following from a seminar at RLI in May 2024 examines the relationship between academic work and practice focused on migrants’ rights under the European Convention on Human Rights (ECHR).