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7th December 2020
BY Alex Schymyck

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Major Upper Tribunal judgment on draft evaders and Ukraine

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Table of Contents

The Upper Tribunal has handed down a new country guidance decision on draft evaders from Ukraine, PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC). The judgment contains important guidance on the relationship between the Refugee Convention and international humanitarian law (IHL), as well as on the present situation in Ukraine. While the legal analysis is helpful in some places, overall the findings will make it difficult for Ukrainian conscientious objectors to succeed in claiming refugee status. PK and OS, who are both Ukrainian draft evaders, will be applying for permission to appeal.

Background: the Ukrainian conflict with Russia

The issue in these appeals was whether refusing to serve in an army which has committed serious breaches of IHL is sufficient for refugee status.

Ukraine has a long-standing conscription system and made extensive use of conscripts in the first few years of the war with Russian-backed militias which began in 2014. More recently the Ukrainian army has stopped deploying conscripts to the front line, using them in support roles instead.

The international community has observed breaches of IHL by both sides. The Upper Tribunal found that the Ukrainian military has committed “widespread and systemic” IHL breaches in its treatment of detained combatants, although it did not find that the Ukrainian military had committed war crimes against civilians.

General findings

An earlier Upper Tribunal decision in this case had dismissed PK’s appeal on the basis that a suspended sentence of imprisonment or a fine for refusing to serve in the Ukrainian army would not amount to persecution. As we said at the time, that ruling appeared to ignore Lord Bingham’s speech in Sepet v Secretary of State for the Home Department [2003] UKHL 15. It was later set aside by the Court of Appeal.

This time around, the Upper Tribunal has corrected itself, ruling that any non-negligible punishment would be sufficient:

Where a causal link exists between the likely military role of the conscript or mobilised reservist, the commission of or participation in acts contrary to the basic rules of human conduct, and the punishment to be imposed, punishment including a fine or a non-custodial sentence will be sufficient to amount to “being persecuted” for the purposes of the Refugee Convention, provided it is more than negligible.

Disappointingly, though, the tribunal also made a ruling which will make it significantly more difficult for conscientious objectors to succeed in asylum claims. Citing a decision of the Court of Justice of the European Union — C-472/13 Shepherd v Bundesrepublik Deutschland — it held that the objector must be being required to participate directly or indirectly in the breaches of IHL:

The individual concerned must demonstrate that it is reasonably likely that their military service would involve the commission of acts contrary to the basic rules of human conduct, or that it is reasonably likely that, by the performance of their tasks, they would provide indispensable support to the preparation or execution of such acts.

That is an extremely difficult test to satisfy. Very few armed forces are likely to require conscripts, particularly unwilling conscripts, to actually participate in war crimes or conduct essential support roles for the obvious reason that they are likely to execute their tasks less well than professional soldiers or willing conscripts. The Upper Tribunal’s decision is likely to deprive the Refugee Convention of practical effect in this context.

The ruling also conflicts with the aims and purposes of the Convention, and international law more generally, in preventing gross abuses of fundamental rights. A refusal to participate in any task within a military force that commits war crimes, despite the risk of punishment, should be protected. On the tribunal’s view, someone imprisoned for refusing to fulfil an administrative role in an army that was in the process of committing genocide would not be suffering persecution.

Of course, the tribunal was arguably just following binding Court of Justice authority. Personally I would not criticise it for doing so, although counsel in the case say they will be seeking permission to appeal on this point (see Julian Norman’s very helpful comments below).

Ukraine-specific findings

Returning to the situation in Ukraine, the tribunal made two findings that will make it very difficult to establish refugee status on the basis of conscientious objection to the conduct of the Ukrainian military.

First, the judges found that it was not likely that Ukrainian conscripts would be forced to directly or indirectly participate in committing breaches of IHL:

The Ukrainian military relies upon professional soldiers in its conflict with Russia-backed armed groups in the east of the country, in the Anti-Terrorist Operation zone (“the ATO”). Forced conscripts or mobilised reservists are not sent to serve in the Anti-Terrorist Operation zone (“the ATO”) and play no part in the conflict there. It is not reasonably likely that conscripts or mobilised reservists would provide indirect support to the Ukrainian military effort in the ATO, for example through working in an arsenal.

Second, it found that draft evaders were not likely to face criminal or administrative sanctions on return, reinforcing earlier country guidance:

It remains the case that, at the current time, it is not reasonably likely that a draft evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act. The guidance given by VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC) remains in force.

Our note on the VB case is here.

Analysis from counsel in the case

Julian Norman, who acted in the case alongside Anthony Metzer QC, agrees that the judgment is helpful in some respects but says that her clients plan to appeal:

This is a significant step forward in the field of refugee law for those who face unavoidable conscription into a military committing abuses. The Upper Tribunal made clear that such conscription may itself be persecutory, even if the penalty is not itself disproportionate, and the appellants welcome those findings.
The tribunal also found that the Ukrainian military was committing acts contrary to IHL, in that there were episodes of disappearance, torture and inhuman and degrading treatment, committed in a context of state indifference. However, it did not accept that reports by the UN High Commissioner for Human Rights Office of breaches of the principles of distinction, precaution and proportionality amounted to breaches of IHL.
On that basis the tribunal rejected the proposition that the appellants themselves would “participate” to the level of “engaging in” abuses, as they would not be sent to the front line, and dismissed their individual appeals.
The appellants will seek leave to appeal on the basis that the Upper Tribunal, having found that the obligation to serve in such a military was “offensive and abhorrent”, should have concluded that compelled participation short of the front lines would be capable of causing sufficiently serious harm to amount to persecution. They will also invite the Court of Appeal to rule on whether it was properly open to the tribunal to conduct its own assessment of the conflict in its approach to the breaches of the principles of precaution, proportionality and distinction, when not invited by either party to do so.

Finally, the full headnote. It is extremely long but worth reading for an overview of the applicable principles in this area.

The official headnote

1. Acts contrary to the basic rules of human conduct

a. Where a person faces punishment for a refusal to perform military service that would or might involve acts contrary to the basic rules of human conduct, that is capable of amounting to “being persecuted” on grounds of political opinion for the purposes of the Refugee Convention.

b. The term “acts contrary to the basic rules of human conduct” refers to the core of humanitarian norms generally accepted between nations as necessary and applicable to protect individuals in war or armed conflict and, in particular civilians, the wounded and prisoners of war. It includes, but is not limited to, the indicative examples listed in Krotov v Secretary of State for the Home Department [2004] EWCA Civ 69 at [30] to [36].

c. In order to engage the Refugee Convention, the conduct in question must be committed on a systematic basis, as the result of deliberate policy or official indifference to the widespread actions of a brutal military. In practice, the term conveys an elevated threshold.

d. It is not necessary for there to be specific international condemnation of the conflict in question for the conduct of the military to be categorised as engaging in acts contrary to the basic rules of human conduct. The international community of states as a whole has already condemned conduct which is contrary to the basic rules of human conduct through its recognition of the existence of international norms from which no derogation is possible, and through the adoption of international legal instruments recognising the prohibitions against such conduct.

e. However, where there is specific international condemnation of such acts, that is likely to provide an evidential basis for concluding that it is reasonably likely that the military force in question is engaging in acts contrary to the basic rules of human conduct on a widespread and systemic basis.

f. The individual concerned must demonstrate that it is reasonably likely that their military service would involve the commission of acts contrary to the basic rules of human conduct, or that it is reasonably likely that, by the performance of their tasks, they would provide indispensable support to the preparation or execution of such acts.

g. The political opinion of the person concerned must be to oppose the commission of acts contrary to the basic rules of human conduct. In practice, it is unlikely to be necessary for a person to adduce significant evidence that their political opinion is to oppose such conduct. It is only where there is evidence to the contrary that any real doubt is likely to arise, for example where there is evidence that the individual concerned has previously and voluntarily been responsible for acts contrary to the basic rules of human conduct. Such an individual may well fall foul of the exclusion clauses in the Refugee Convention in any event.

h. There must be no other way to avoid military service, for example through the individual concerned availing him or herself of a conscientious objector process.

i. Where a causal link exists between the likely military role of the conscript or mobilised reservist, the commission of or participation in acts contrary to the basic rules of human conduct, and the punishment to be imposed, punishment including a fine or a non-custodial sentence will be sufficient to amount to “being persecuted” for the purposes of the Refugee Convention, provided it is more than negligible.

2. Country guidance: the conduct of the Ukrainian military in the conflict in the Anti-Terrorist Operation Zone (“the ATO”)

a. Elements of the Ukrainian military engage in the unlawful capture and detention of civilians with no legal or military justification. The detention of some detainees will be justified by military necessity or otherwise permissible under international humanitarian law (“IHL”), but a large number of detentions feature no such justification and are motivated by the need for “currency” for prisoner exchanges with the armed groups.

b. There is systemic mistreatment of those detained by the Ukrainian military in the conflict in the ATO, which is in the east of the country. This involves torture and other conduct that is cruel, inhumane and degrading treatment contrary to Article 3 of the ECHR. Even where such detainees are eventually transferred into the judicial detention process, there is likely to be official indifference to the mistreatment they have received.

c. There is an attitude and atmosphere of impunity for those involved in mistreating detainees. No one has been brought to justice. Pro-Kyiv militia have been rewarded for their work by formal incorporation into the military. Lawyers are afraid of taking on cases due to the risk of retribution.

d. The systemic and widespread detention practices of the Ukrainian military and law enforcement officials involving torture and Article 3 mistreatment amount to acts contrary to the basic rules of human conduct.

e. The Ukrainian military has had to engage with armed groups that have embedded themselves in towns, residential areas, and civilian installations along the contact line. Legitimate military targets are often in close proximity to areas, buildings or people protected by IHL. The Ukrainian military’s adherence to the principles of distinction, precaution and proportionality when engaging with such targets has been poor, despite that being a task which calls for surgical precision, especially in the context of a conflict in which legitimate military targets have been embedded within civilian areas, properties and installations. The widespread civilian loss of life and the extensive destruction of residential property which has occurred in the conflict will, in part, be attributable to poorly targeted and disproportionate attacks carried out by the Ukrainian military, but the evidence does not suggest that it is reasonably likely that there was targeting of civilians on a deliberate, systemic and widespread basis.

f. Water installations have been a particular and repeated target by Ukrainian armed forces, despite civilian maintenance and transport vehicles being clearly marked and there being an established practice of negotiating “windows of silence” on some occasions, and despite the protected status such installations enjoy under IHL. The background materials suggest a continued focus on water and similar civilian installations, but the evidence does not demonstrate that those targeting decisions were part of a policy and system. Often such installations serve both sides of the contact line, militating against the conclusion that government forces sought to deprive armed group territory of basic services through the prosecution of the strikes and attacks.

g. Most civilian casualties have been from indirect fire rather than specific targeting.

h. Civilian casualties continue to fall.

i. Damage to schools appears to have been collateral or accidental rather than intentional.

j. It is not clear whether Ukraine was responsible for laying any of the anti-personnel mines documented in the background materials. Mines are no longer deployed by either side, and Ukraine is committed to complying with its international legal obligations under the Ottawa Convention to clear mines that are in areas under its jurisdiction.

k. While regrettable, we do not consider the use of civilian property without payment or reparation, or looting, to amount to acts contrary to the basic rules of human conduct.

l. Ukraine has begun steps to establish a register of missing persons. It is not an act (or omission) contrary to the basic rules of human conduct not to have established that register with greater success or resolve.

m. There is no evidence that the Ukrainian military is engaged in the forced movement of civilians.

3. Country guidance: conscripts and mobilised reservists in Ukraine

a. The Ukrainian military relies upon professional soldiers in its conflict with Russia-backed armed groups in the east of the country, in the Anti-Terrorist Operation zone (“the ATO”). Forced conscripts or mobilised reservists are not sent to serve on the contact line in the ATO and play no part in the conflict there. It is not reasonably likely that conscripts or mobilised reservists would provide indirect support to the Ukrainian military effort in the ATO, for example through working in an arsenal.

b. It remains the case that, at the current time, it is not reasonably likely that a draft evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act. The guidance given by VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC) remains in force.

c. Although the Ukrainian criminal code provides at Articles 335 and 336 respectively for sentences of imprisonment for conscripts and reservists who have unlawfully avoided military service, absent some special factor, it is highly unlikely that a person convicted of such an offence will be sentenced to a period of imprisonment.

d. It is not reasonably likely that conscripts and mobilised reservists who have avoided military service would be identified as such at the border. Where a person has been convicted and sentenced in absentia, the guidance given in VB concerning their likely treatment at the border remains applicable.

e. It is possible to defer military service as a conscript on grounds of ill health, under Article 14 of the 1992 law, or on one of the bases set out in Article 17 of the 1992 law. Whether those exceptions would be available as a fact-specific question.

f. There is no evidence that it is reasonably likely that the ID card system introduced in 2016 will lead to an increased risk in a draft evader or mobilised reservist being prosecuted.

g. It is highly unlikely that a draft evader would be detained pending trial at the border, given that the enforcement focus is on fines, rather than custody.