Deserters, Draft Evaders and Refugee Law

The application of refugee law to persons seeking to resist or otherwise avoid military service presents pressing questions given the increased prominence in recent years of armed conflict involving States, and the growth of military service schemes on the part of States. In this RLI blog series, following from an RLI seminar in May 2024, expert contributors from academe and the legal professions address the bearing on desertion and draft evasion of the 1951 Convention relating to the Status of Refugees and/or national refugee laws and practice.

The law of refugee status obviously does not exclude all persons whose claims arise against the background of military service, such as deserters or draft evaders. But ascertaining entitlement to refugee status in such cases can be a highly demanding task. That is in part because enforcement of military service by States is not in itself inconsistent with international law, in the way some other actions- such as arbitrary killing or imprisonment or torture or rape, are. What has to be identified in any particular case is whether a State is acting beyond legitimate bounds creating the prospect of persecution so that an entitlement to refugee status arises. Determining status in such a case is also demanding in part because the correct identification and application of international law norms relevant to that assessment may be complex and uncertain.

The concept of ‘persecution’, at the heart of the refugee definition, is generally interpreted 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 on Legality of the Threat or Use of Nuclear Weapons [1996] ICJ 3 referred to as the ‘fundamental right of every State to survival’. But what exactly does that right allow the State to do as regards military service and engagement in armed conflict, before ? 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 international human rights 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? And should the assessment go further? In particular to what extent can interpretation of ‘persecution’ in military service cases look further, for instance to international humanitarian law, the so-called ‘law of war’?

In the blog pieces below important aspects of this enquiry are addressed by our contributors: Dr Sara Arapiles (Lund University), Professor Özgür H. Çɪnar (University of Greenwich), Eric Fripp (barrister, England and Wales, 36 Public & Human Rights), Professor Karen Musalo (University of California, College of the Law, San Francisco) and Lorne Waldman (barrister and solicitor, Canada, Waldman and Associates). Further papers may be added over time to continue the discussion, given the importance and range of inputs attracted by the topic.