17 Oct Which Russians Fleeing Military Service Should be Recognized as Refugees? The Answer is More Complicated and More Interesting Than Politicians Think
[Daniel Davies is a lawyer and forced migration specialist who has worked with refugees in the Middle East, East Africa, and the Asia-Pacific region.]
“Estonia is home to our people, not for convenience refugees of an aggressor state.”Kaja Kallas, Estonian Prime Minister of Estonia
“Lithuania will not be granting asylum to those who are simply running from responsibility. Russians should stay and fight. Against Putin.”Gabrielius Landsbergis, Minister of Foreign Affairs for Lithuania
While politicians are happy to share soundbites about the asylum claims of Russians fleeing military service, these claims raise a fascinating set of questions for refugee law and international humanitarian law. Given that over 400,000 Russians have fled and many may yet flee, the answers are hugely consequential.
Refugee Law Refresher
When politicians speak of “convenience refugees” and of “running from responsibility”, a review the definition of a refugee is in order. Under Article 1(A) of the Convention relating to the Status of Refugees (the 1951 Refugee Convention), a refugee is someone who,
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Additionally – and especially relevant here – a person who meets the above criteria can be “excluded” from refugee status if
“there are serious reasons for considering that [inter alia]
(a) he has committed a crime against peace, a war crime, or a crime against humanity”Refugee Convention, Art. 1(f)
In 2011, the EU issued Directive 2011/95 in an effort to develop common criteria among Member States for adjudicating refugee claims. Unlike the 1951 Refugee Convention, Directive 2011/95 helpfully provides a list of examples of what constitutes ‘persecution’ (as does its predecessor, Directive 2004/83):
“Acts of persecution … 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).”
Article 12(2) includes commission of “a crime against peace, a war crime, or a crime against humanity”.
Protecting Russians From Waging an Aggressive War
The invasion of Ukraine likely constitutes a crime against peace. People who committed crimes against peace are excluded from refugee status. As the European Asylum Support Office indicates, “[s]ince international armed conflicts are normally being waged by States or State-like entities, a crime against peace is usually committed by individuals in a high position of authority representing a State or State-like entity”. Were Putin or his generals to flee, they could certainly be excluded from refugee status on this ground. As Professor Tom Dannenbaum notes, “there has been some ambiguity as to whether … refugee protections attach to lower-level troops and officials who refuse to participate in aggressive wars [i.e. crimes against peace].”
If asylum adjudicators agree with Professor Dannenbaum’s (convincing) argument that lower-level troops should receive protection from participating in a crime against peace (I recommend reading his analysis in full), the ‘persecution’ element of the refugee definition is satisfied, at least under EU law: Russians fleeing military service are at risk of prosecution for refusal to perform military service in an aggressive war.
If asylum adjudicators disagree with Professor Dannenbaum, they would need to determine whether performing military service would include committing a war crime or crime against humanity. This raises multiple questions. How likely would the crimes have to be, to count? Would someone at risk of prosecution for fleeing having to indirectly support the crimes have a claim to persecution, or does it only attach to people fleeing having to directly perpetrate the crimes? What about conscientious objectors? For answers, we turn to the cases of an American fleeing participation in the 2003 US-Iraq War and a Syrian fleeing conscription into the Syrian army in the 2011 Syrian civil war.
While it Isn’t EZ, Precedent Can be Our Shepherd
In April 2007, an enlisted American helicopter maintenance mechanic named André Shepherd went Absent Without Leave (AWOL) from the U.S. army base in Katterbach, Germany and claimed asylum. Shepherd stated that he feared prosecution and social ostracism on account of his refusal to continue to participate in a war he considered illegal. German authorities rejected his refugee claim, so he appealed, and his case was referred to the European Court of Justice (ECJ).
Seven years later, a Syrian man referred to as EZ fled Syria after having received a conscription letter. He too claimed asylum in Germany, but was granted subsidiary protection instead. EZ appealed, and the case reached the European Court of Justice.
In Shepherd’s case, the ECJ clarified that, under Article 9(2), a person refusing to perform military service would need “to invoke only the likelihood of [acts falling under the grounds of exclusion] being committed” (para. 39, emphasis added). It would not be necessary to show that the asylum seeker’s particular unit had committed the war crimes or crimes against humanity already, nor that the International Criminal Court had found the acts to be war crimes or crimes against humanity (para. 39).
Additionally, the asylum seeker would not need to show that they would have been serving directly in combat. This is especially relevant for people who fled conscription prior to having been assigned a particular role. Rather, Article 9(e)(2) “concerns the situation in which … it is reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes” (para. 46, emphasis added). The court built upon this in EZ’s case, where they used “the fact that the Syrian army, including the units composed of conscripts, repeatedly and systematically committed war crimes” to determine that “it should be assumed that the performance of his or her military service will involve committing, directly or indirectly, such crimes or acts, regardless of his or her field of operation”.
Two points follow. First, Russians fleeing conscription into the Russian military would not need to establish that they would have been directly committing the war crimes/crimes against humanity, nor that they would certainly have had to commit war crimes/crimes against humanity. Reasonable likelihood is sufficient. Second, asylum adjudicators in the EU will have to judge how likely it is that the Russian military – and, going forward, conscripts in particular – will commit further war crimes and crimes against humanity in Ukraine. Collection and publication of evidence of war crimes and crimes against humanity committed by Russia therefore takes on further significance.
Interestingly, the court also notes in Shepherd that if the committing State’s legal system ensures effective punishment of people who commit war crimes, this “is liable to render implausible the hypothesis that a soldier of one of those States could be led to commit such crimes” (para. 42). Further, Article 9(e)(2) only applies where there is no available procedure for obtaining conscientious objector status (para. 46). As such, adjudicators would additionally need to keep an eye on how Russia is dealing with people accused of having committed such crimes and on Russia’s approach to conscientious objectors.
Connecting the Persecution and the Political Opinion
Under refugee law, there must be a connection between the risk of persecution and one or more protected ground (race/religion/nationality/membership of a particular social group/political opinion). While there is a “strong presumption” of a connection between refusal to perform military service and the protected grounds of the Refugee Convention, the connection is ultimately a factual determination for the asylum adjudicator to make (EZ, 61). Further, as Article 10 of Directive 2011/95 clarifies,
1(e) the concept of political opinion shall, in particular, include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.
Therefore, while Facebook posts in opposition to the war could strengthen a refugee claim, they are not necessary. Even beyond that, Article 10 of Directive 2011/95 further provides that
2. When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.
At very least, then, an adjudicator could determine that evidence of public opposition to the invasion of Ukraine or the crimes committed by the Russian forces is not necessary for someone to demonstrate a well-founded fear of persecution on account of political opinion. As odious as this may be to some people, an adjudicator could even reasonably determine that a Russian who fled conscription after having cheered on the military could still be found to have a well-founded fear of persecution based on their imputed political opinion, if (a) the Russian authorities perceived fleeing the country and claiming asylum elsewhere opposition to the government and persecuted them accordingly; and (b) the asylum seeker was aware of this and stated this in their asylum application as a reason they are unwilling to return.
On National Security Concerns
It is perhaps not surprising that Russia’s neighbors have baulked at the prospect of letting in tens of thousands of military-aged Russian men shortly after Russia invaded another neighbor. Both the 1951 Refugee Convention and Directive 2011/95 allow States to revoke or refuse to renew the refugee status where “there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present” (Directive 2011/95, Article 14(4)). However, this cannot be done on account of nationality alone: the 1951 Refugee Convention explicitly provides that a country can only take provisional measures “which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security” (1951 Refugee Convention, Article 9, emphasis added). To understand why, recall that the 1951 Refugee Convention was drafted in the wreckage of World War II, where multiple countries had interned nationals of enemy states. Following extensive debate, the delegates at the drafting of the Convention agreed to include “the words ‘in his case’ [to] indicate that such measures may not be taken against all or certain categories of refugees but may only be taken on the merits of the individual case” (p. 59).
What’s Next: Determining who Counts
Although Russian officials said that only people with prior combat experience would be selected, in practice others are being conscripted. When EZ fled Syria, he had already received notice that he would been conscripted, while Shepherd was already part of the US military when he went AWOL. In assessing Russians’ claims, adjudicators will need to determine to what extent Article 9(2) applies to people who fled before receiving their conscription notice. This is a fraught balancing act. Require too much, and the EU could unintentionally conspire with Putin’s desire to increase troop numbers, putting Russians and Ukrainians at risk in Ukraine. Require too little, and the EU could receive a huge number of claims from people who probably would not have been conscripted, while also overwhelming services that were set up for Ukrainians who fled the conflict.
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