Would Russian men fleeing conscription qualify as refugees?

It has been reported that thousands of Russian men are fleeing their country in order to avoid being conscripted into the army. Miles long queues of cars have built up at the border into Georgia. This comes on top of the tens of thousands of young Russians and intellectuals who had already left their country in the months since the invasion of Ukraine, many of whom were reported to have travelled to Turkey and Georgia.

The wells of sympathy in surrounding countries seems to have run dry, though. The latest emigres are receiving a less than warm welcome. There is suspicion that those leaving Russia now are not opposed to the war against Ukraine or even opposed to Putin. They just don’t want to die in his war.

The Baltic states of Latvia, Lithuania and Estonia have all stated that they will refuse to recognise Russians fleeing conscription as refugees. The Estonian foreign minister is quoted by Reuters as saying that “A refusal to fulfil one’s civic duty in Russia or a desire to do so does not constitute sufficient grounds for being granted asylum in another country.” The Estonian Prime Minister apparently argued that Russians should stay in Russia and oppose the war there. The Czech foreign minister has also allegedly adopted the same line, saying that “those running because they don’t want to fulfil a duty imposed by their own government, they don’t meet the criteria for humanitarian visa.”

In contrast, President Zelensky of Ukraine is reported to have addressed Russian soldiers directly. Speaking in Russian, he said that all rules regarding prisoners of war will be followed, promising not to reveal whether a person surrendered or was captured and stating that prisoners will not be returned to Russia against their will. That amounts to a de facto offer of asylum to any Russian soldier.

It is certainly possible to imagine that offering fighting age Russians an alternative to military service might undermine the Russian war effort. But aside from the wisdom or otherwise of offering asylum to Russian soldiers, what does international law say about the position of deserters and conscientious objectors?

Prosecution or punishment?

Being sent to prison is sometimes persecution. A political activist imprisoned for their beliefs is persecuted, for example. But an imprisoned murderer has not been persecuted; they have been prosecuted, convicted and sentenced according to universally accepted principles of criminal law. One is potentially a refugee, but the other is not.

Where the deserter or conscientious objector faces conviction and maybe imprisonment for their refusal to serve, does this amount to persecution or just punishment according to criminal law? After all, even the UNHCR Handbook states that “[f]ear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the [refugee] definition.”

Ultimately, this question is often decided by whether the law in question is compatible with international human rights law. A criminal law forbidding all political protest in all circumstances is not, but a law which prohibits murder is. So how about evading compulsory military service? Is such a person simply being punished under criminal law, or is it because of their political opinion or religious beliefs?

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Right to conscientious objection

Many countries around the world impose an obligation to perform military service. This is in accordance with international law, which forbids forced labour but makes an explicit exception for military service and which nowhere explicitly provides a right to conscientiously object on religious or political grounds.

In the case of Sepet and Bulbul [2003] UKHL 15, the House of Lords rejected refugee claims by two Kurdish men who refused to serve in the Turkish army because of its repression of the Kurdish people. The Lords held that there was insufficient evidence of “a core human right to refuse military service on conscientious grounds” and therefore the men could not show they faced persecution as opposed to merely prosecution. Neither could they show they would be forced to perpetrate war crimes or that they would suffer disproportionate conditions of service or punishment.

That was in 2003. In 2009, the Charter of Fundamental Rights of the European Union came into effect and, with it, a right of conscientious objection at Article 10(2). In 2011, the European Court of Human Rights held in the landmark case of Bayatyan v Armenia [2011] ECHR 1095 that refusal to perform military service was protected by the right to freedom of thought, conscience and religion and that prosecution and imprisonment for refusal to perform military service when no non-combatant alternative was provided was an interference with that right which could not be justified in the circumstances of the case. 

Whether these subsequent developments would lead to a different outcome in Sepet were it heard today is unclear given that the case turned on a partial rather than complete objection to military service. But it is now generally accepted that there is a right to conscientious objection.

Whether any particular Russian man fleeing the country today has a genuinely held and principled objection to military service would have to be determined case by case. Some may be Quakers or Jehovahs Witnesses, for example, or pacifists. If they were found to be telling the truth, they would have an arguable claim to be a refugee.

Refusal to perpetrate war crimes

Another route to refugee status for a person objecting to military service is to show that they would be forced to perpetrate war crimes if they did serve. In the United Kingdom, the starting point is now the Nationality and Boarders Act 2022. As an example of an act of persecution, section 31(3)(e) includes:

prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts as described in Article 1(F) of the Refugee Convention (on which, see section 36).

The “crimes or acts” included in the exclusion clauses under Article 1F of the Refugee Convention include war crimes, crimes against peace or humanity, “serious non-political crime” outside the country of refuge, and “acts contrary to the purposes and principles of the United Nations”. This provision broadly mirrors international law on refugee status as well as the EU’s refugee law directive.

Refusal to serve in these circumstances amounts to an actual or implied political opinion as to the limits of governmental authority. It therefore attracts the protection of the Refugee Convention. There is no need for the specific conflict in question to have actually been condemned by the international community, although this adds weight to an applicant’s case: it is potentially sufficient that the conflict involves breaches of international law (Krotov [2004] EWCA Civ 69). 

The degree of involvement necessary before a person will be eligible for refugee status on this basis has proven difficult to define precisely. The Court of Justice of the European Union takes the view that any military personnel are eligible, including logistical or support personnel, but that there must be a real risk the person will be required to commit or provide indispensable support for the preparation or execution of war crimes (Case C-472/13 Andre Lawrence Shepherd v Germany). It is arguable that any sanction for refusal to serve which is more than negligible, including a non-custodial sanction, will still amount to persecution in these circumstances.

There is considerable evidence of Russian war crimes taking place in Ukraine. Whether any particular Russian conscript would be at risk of being forced to perpetrate or support the perpetration of such crimes is unclear. The courts have rather tied themselves in knots on this question, making it far harder than it ought to be to prove a case.

Disproportionate punishment or conditions of service

Finally, the other route to success for refusal to serve is to prove that you would be subject to disproportionate or discriminatory sanction or particularly arduous or dangerous service for reasons of politics, religion, race or the other convention grounds. In short, if you would be punished far worse than others because of your beliefs or attributes or your conditions of military service would be particularly harsh for the same reasons, you may be a refugee.

This route is not spelled out explicitly in the Nationality and Borders Act 2022 but can and should be read into section 31(3)(c), prosecution or punishment which is disproportionate or discriminatory.

This might arise where those from a particular religious or racial or national group are singled out. The evidence that conscripts from occupied areas of Ukraine are being used as cannon-fodder might potentially give rise to a successful claim on this basis, for example. Similarly, it has been suggested in the media that minority groups from various Russian provinces are being targeted for conscription.

The Baltic states and Czech Republic, who assert they will not recognise Russian draft avoiders as refugees, are signed up to both the Refugee Convention and to the Common European Asylum System, including the refugee law directive. A straightforward refusal to recognise any Russian refugees on political grounds would clearly be a breach of international and EU law. Each and every claim for refugee status needs to be assessed on its merits.

We can see that the law surrounding military service does not make it straightforward for a deserter to prove their case. But there is clearly a tension between asserting that the Russian military is perpetrating war crimes and making a blanket assertion that those refusing to serve are not entitled to asylum.

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