Conscientious Objection, Desertion and Asylum
(15.05.2011) In all wars individuals - sometimes only a few, sometimes thousands - try to evade military service, to object military actions or desert from the military. They face prosecution and persecution. Furthermore objectors have to realize that in many countries their conscience and convictions are not accepted. They face repression, prosecution or new recruitment as well. This is why all of them seek protection abroad in other countries. But over and over again such applications for asylum are rejected. Generally, prosecution and persecution of conscientious objectors or deserters is not regarded as a valid reason for asylum.
Some international resolutions and recommendations have been adopted in recent years. I would like to give a summary of these, highlighting different opinions and the existing possibilities for conscientious objectors and deserters to be accepted as refugees. Additionally, I will outline the limits of such possibilities.
In her paper “International Standards on Conscientious Objection to Military Service” Rachel Brett shows the developments of international recommendations on this human right. On the basis of Article 18 of the International Covenant on Civil and Political Rights, the Human Rights Committee made clear that conscientious objection to military service “inheres in the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if this cannot be reconciled with that individual’s religion or beliefs. The right must not be impaired by coercion.”1 Although conscientious objection may be based on a formal, religious position, this is not mandatory. Rather the question is does the obligation to use lethal force seriously conflict with the individual’s freedom of conscience, religion or belief.
Furthermore, as the UN Economic and Social Council stated in 2004, “the right should be available to persons prior to and during military service” and “measures should be taken to ensure conscientious objectors are not subject to repeated punishment for failure to perform military service.”2
In its statement the UN Economic and Social Council stated as well that “asylum should be granted to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service.” Unfortunately we have to realize that no country has put in force this recommendation to grant them asylum.
Soldiers are often excluded
A lot of countries do not give the opportunity to already recruited draftees and professional soldiers to legally declare their conscientious objection.
This means: If a soldier becomes a conscientious objector after joining the military, or if a soldier realizes that a mission is incompatible with his/her own conviction or that participation in the war is in contradiction to his/her own conscience, there is no legal possibility for them to leave the military. The soldiers are harassed and threatened with deployment into the war area, repressions and prosecution for disobeying orders. Since conscientious objection is not reversible, such prosecution may be repeated again and again. This is in obvious contradiction to the stated recommendation of the UN Economic and Social Council.
Nevertheless, there is no provision in other countries to give these soldiers a refugee status.
Repeated prosecution or very harsh prosecution or torture may be seen as politically motivated persecution. On these grounds, Eritrean asylum seekers have been accepted in different countries because, if sent back, they would face torture, incommunicado detention or unlimited punishment up to more than ten years. Also some Turkish objectors were able to get shelter in Europe because they faced repeated punishment and “civil death” which the European Court of Human Rights recognized as inhuman and degrading treatment.3 In all other cases of conscientious objectors, though they have to face prosecution, authorities of other countries will reject their application to be granted as refugees.
In many instances, conscientious objectors and deserters do not base their refusal on fundamental rejection of any military service. Their decision to refuse or to leave the army derives from a specific situation or action. So a lot of the Israeli resisters refuse to serve in the occupied territories in the West Bank. During the wars in former Yugoslavia, many soldiers refused to fight against their own neighbors. Kurdish resisters do not want to fight their own people in Turkey. Some of the US-resisters declare their objection because they see the wars as part of an imperialistic policy. In all these cases the decision is based on a particular background, but it is also based on deep and fundamental personal convictions. Authorities of most countries do not see these reasons for conscientious objection as part of a possibly existing right to conscientious objection.
Internationally condemned war and actions
A lot of efforts have been made to introduce international courts that prosecute violations of international law. One of the fundamental basis of the international judiciary is that every person is responsible for his or her own actions or activities. That means: Soldiers, too, are responsible for their own activities. They can’t claim impunity by saying they acted under binding orders.
If a soldier wants to act according to international law and is ordered to perform an act which is in contradiction to it, there is one consequence: The soldier is obliged to refuse. If he or she does so the typical answers of the military are disciplinary measures or a court martial.
As early as in 1979 the UNHCR mentioned in its handbook on Procedures and Criteria for Determining Refugee Status in Paragraph 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.”
This recommendation was followed only in a few cases. However, it has become more relevant in the European Union and in New Zealand, where a Directive and a court ruling have followed this line.
The European Union adopted a Directive (binding throughout the EU) on the question of asylum in 2004 stating that refugee status could be granted if “acts of persecution take the form of prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts against peace, a war crime, or a crime against humanity”. The rule is in force since 2006. Unfortunately the application of one U.S. AWOL soldier who referred to it was rejected some weeks ago in a decision of the migration office of Germany. In its negative decision, the migration office demands that he should prove that he would have been part of illegal actions. A “potential participation” was not seen as a valid reason to grant asylum. This way, German authorities avoided putting the Directive of the European Union into force. The case is now pending at an Administrative Court.
In New Zealand the Refugee Status Appeals Authority (RSAA) ruled in favor of a Kurdish conscientious objector from Turkey. In deciding the case the RSAA referred to the “proposition that no one can be compelled to undertake military service where a real chance exists that this will require the refugee claimant to commit human right abuses.”4 It reached the conclusion that such a risk existed in light of “the history of the conflict, attendant breaches of the laws of war on a widespread scale in the past and a continuing climate of impunity for those who commit the breaches.” “The likelihood of being compelled to commit humanitarian law violations”, said Karen Musalo for the UNHCR, “transformed his potential imprisonment for resisting service into persecution for a Convention reason.”5
These are first steps to follow a development of international law: If soldiers who participate in internationally condemned wars or actions are personally responsible for these actions, it is only logical for those soldiers who object, disobey orders and face prosecution as a result, to be granted refugee status. But as we can see in the case of Germany, authorities try to annul already existing rules.
The question of conscientious objection is not only a question of a human right. Especially in a situation of war the decision not to participate in military actions questions the rule of order and obedience of any military and warfare fundamentally. Conscientious objectors and deserters, men and women, have taken a conscience-based decision against war and military service. This is a very real, practical contribution to peace. But they are facing great risks of repression, detention and persecution.
As we have seen, only a few initial steps have been made to ensure that if there is no comprehensive right to conscientious objection in a country and if conscientious objectors and deserters are persecuted in that country, this should be viewed as a valid reason for asylum. Authorities often try to annul already existing rules. Different groups of objectors are not included in existing international definitions. But all of them should be encouraged and supported – in their countries of origin as well as in exile. They should feel sure that their decision for conscientious objection or their decision not to participate in wars or crimes in violation of international law will be supported. They must be able to count on receiving protection in case of doubt.
1 Min-Kyou Jeong et al v Republic of Korea (CCPR/C/101/D/1642-1741/2007 of 5 April 2011
2 UN Economic and Social Council, Report of the Office of the High Commissioner for Human Rights, E/CN.4/2004/55 of 16 February 2004
3 European Court of Human Rights: Chamber Judgement Ülke v. Turkey. Strasbourg, 24 January 2006
4 Refugee Appeal No. 75378/05 (2005)
5 Karen Musalo, Conscientious Objection as a Basis for Refugee Status: Protection for the Fundamental Right of Freedom of Thought, Conscience and Religion, Refugee Survey Quarterly, Vol. 26, Issue 2, UNHCR 2007
Rudi Friedrich: Conscientious Objection, Desertion and Asylum. May 15, 2011. The author is General Secretary of Connection e.V. in Germany. The organization collaborates with groups and organizations worldwide opposing war, conscription and the military.