This page provides information on Military Service Evasion in the Refugee Status Determination process. The page is divided into the following sections: UNHCR’s treatment of Military Service Evasion, the European Union’s Approach to Military Service Evasion, relevant Case Law, and Useful Resources.
Introduction
Under what circumstances do people fleeing military service qualify as refugees? The exodus caused by Russia’s September 2022 announcement that they would mobilize over 300,000 people for their invasion of Ukraine reinvigorated this question. However, asylum claims related to military service evasion have long been relevant for Syrians, Eritreans, and even the occasional American, among others. As a result, legal aid practitioners can draw from existing caselaw and norms when representing people who fled military service.
UNHCR’s treatment of Military Service Evasion
The 1951 Refugee Convention does not explicitly address military service evasion. However, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees includes a section on “deserters and persons avoiding military service”.
167. In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably considered a criminal offense. The Penalties may vary from country to country and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft evasion does not in itself constitute well‑founded fear of persecution under the definition. Desertion or draft evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft evader.
168. A person is clearly not a refugee if his only reason for desertion or draft evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.
169. A deserter or draft‑evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offense on account of his race, religion, nationality, membership of a particular social group, or political opinion. The same would apply if it can be shown that he has a well‑founded fear of persecution on these grounds above and beyond the punishment for desertion.
170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.
172. Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim for refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.
173. The question as to whether an objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered in light of more recent developments in this field. An increasing number of States have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of recommendations by international agencies. In light of these developments, it would be open to the Contracting States, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.
174. The genuineness of a person’s political, religious, or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background. The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations. Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions.
For a more detailed overview of the topic, see UNHCR’s November 2014 Guidelines on International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees. The Guidelines examine the position of individuals who seek international protection to avoid recruitment by and service in, State armed forces, as well as forced recruitment by non-State armed groups.
The European Union’s Approach to Military Service Evasion
The European Union (EU), in contrast, explicitly addresses military service evasion in Directive 2011/95 (replacing 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) [including crimes against peace, war crimes, crimes against humanity, acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations].
Further, decisions from the Court of Justice of the EU have fleshed out the Directive (see Caselaw below).
In practice, however, European countries have taken divergent approaches to people fleeing military service. For example, a large percentage of Eritrean asylum seekers’ claims are related to conscription. While the demographics of Eritrean asylum-seekers do not seem to vary meaningfully between States, the States’ treatment of their claims does. While the average refugee recognition rate of Eritreans in the EU has been over 50 per cent since 2014, the Netherlands in that time has never granted refugee status to more than one per cent of Eritrean asylum-seekers, and Malta has only done so in 2017. See a visualisation of the percentage of Eritrean asylum seekers who were granted refugee status between 2012 and 2021 here.
Case Law
Two cases have fleshed out the EU’s approach to asylum seekers evading military service: Andre Lawrence Shepherd v Bundesrepublik Deutschland; and EZ v Bundesrepublik Deutschland.
Andre Lawrence Shepherd v Bundesrepublik Deutschland concerns an enlisted American helicopter maintenance mechanic named André Shepherd who 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 that he considered illegal. German authorities rejected his refugee claim, so he appealed, and his case was referred to the Court of Justice of the European Union (CJEU).
The CJEU 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” (Shepherd, C‑472/13, EU:C:2015:117, paragraph 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 (id.).
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” (id., 46, emphasis added).
EZ v Bundesrepublik Deutschland concerns 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 CJEU. The court reasoned that because “the Syrian army, including the units composed of conscripts, repeatedly and systematically committed war crimes”, “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”.
US law builds upon UNHCR’s guidance that, when an individual is punished for refusing to participate in a military action that is condemned by the international community, the punishment may amount to persecution.
- “When an alien does not wish to be associated with a military that engages in universally condemned acts of violence, ‘the only relevant factor is the likelihood that the alien will be punished.’” (Mojsilovic v. Immigration & Naturalization Service, 156 F.3d 743 (1998), quoting M.A. [ AXXXXXXXX ] v. INS, 858 F.2d 210, 214-15 (4th Cir.1988).
- “Military action” covers both (a) specific military actions that would be internationally condemned; and (b) refusal to serve in a military unit or army that engages in internationally condemned activities.
- The Fourth Circuit requires the adjudicator to determine whether the evidence shows that the persecutor is motivated by the applicant’s opposition to the condemned acts. Gomez-Mejia v. INS, 56 F.3d. 700, 703 (5th Cir. 1995); Matter of A-G-, 19 I. & N. Dec. 502 (BIA 1987), aff’d, 899 F.2d 304 (4th Cir.1990).
Useful Resources
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (published in 1979 and re-issued in 1992 and in 2019) includes a section explicitly dedicated to military service evasion, quoted above. See paras. 167-174.
Guidelines on International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (2014) cover refugee claims related to military service in greater depth.
The European Union Agency for Asylum COI Report on Military Service focuses on the question of military service in the Russian Federation after Russia’s invasion in Ukraine on 24 February 2022. It describes the structure of the Russian Armed Forces, obligatory military service, and conscription under the ‘partial’ mobilisation order of 21 September; as well as the possibilities to obtain exemptions and deferrals. In addition, the report covers Russia’s use of mercenaries and prison convicts in the ongoing hostilities, military recruitment in Chechnya, and instances of violations of humanitarian and international human rights law committed by the Russian military in Ukraine.
The International Refugee Assistance Project (IRAP) has recently made public a collection of hundreds of USRAP documents obtained through Freedom of Information Act requests, including USCIS’s Refugee Asylum & International Operations trainings. Materials on conscription can be accessed here (Highlighted topic / USCIS training modules / Most Recent Training Modules / Nexus and the Protected Grounds). On pp 37-39 USCIS discusses military conscription claims and conscientious objection, noting where US law deviates from the UNHCR handbook.
The documents clarify what USCIS considers to be the standard. However, there are often positions or arguments available to push for refugee eligibility that USCIS doesn’t include, so it is worth reading the cases themselves.
The article provides an account of the military service evasion in Russia in light of the military offensive that began in February 2022. Noting that the military offensive resulted in more than 400,000 people leaving Russia and drawing case law, Fripp argues that “Russian draft evaders would be able to make good claims to protection if in the United Kingdom or in any country with a parallel interpretation of its obligations under international refugee law.”
Resource Person
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