Asylum and Conscientious Objection
In April 2022, the President of the European Council, Charles Michel, called on Russian soldiers to desert and promised protection. What has become of this announcement?
On April 6, 2022 the President of the European Council, Charles Michel, addressed the Russian soldiers, saying: "I have just one message for the Russian soldiers on the battlefield: if you want no part in killing your Ukrainian brothers and sisters, if you have no desire to be a criminal, then lay down your arms, stop fighting, leave the battlefield."1 Charles Michel, as president of the European Council, represents the heads of government of the European Union. He also noted in his statement that some members of the European Parliament had proposed granting asylum for those soldiers who disobey Russian orders: "In my opinion, this is a valuable idea that should be pursued."
At the level of the European Council, almost nothing has happened since. Some individual countries have responded. For example, the German Interior Ministry has told the Bundestag that Russian deserters should be recognized as refugees because their desertion is considered a political act against Russia, for which they would face heavy penalties.2 A number of countries offer the possibility of temporary residence status if those persons are self-employed. It is unclear how this will continue.
The pertinent legislation in the EU is very disappointing
Connection e.V. and Pro Asyl had originally assumed that on the European level, with regard to asylum procedures for Russian deserters and objectors, a regulation of the European legislation is relevant, the so-called Qualification Directive. It regulates who can be recognized as a refugee in the European Union. There is a passage stating that refugee protection should be granted in cases of prosecution for refusing to participate in wars or actions that violate international law. That would be the case for Russian objectors and deserters. This could also be the case if, as Belarusian organizations have feared for months, Belarus also enters the war and sends its own troops to Ukraine.
The European Court of Justice, the highest court in the European Union, has already ruled twice on this passage of the Qualification Directive. This has defined a number of conditions which, in view of the current situation, make it unlikely that protection can actually be achieved for the persons concerned. They would have to have previously applied for conscientious objection to military service, which was rejected or at least did not prevent them from being sent to the war zone as part of the fighting force. They would have to prove that they were genuinely recruited and that there was a serious threat of deployment to war. Hardly anyone will be able to meet these criteria. These judgments in fact hinder the recognition of legitimate claims.
The German approach seems to be more practicable and helpful. The assumption that desertion is understood by Russian authorities and military as an oppositional act may indeed lead to refugee protection according to current case law. Nevertheless, deserters will have to prove this in each individual case, so the hurdles remain high. Unfortunately all draft evaders are excluded explicitly from the regulation. As far we are aware, this regulation is applied only in Germany.
Those smart enough to withdraw in time will not receive protection
The question remains as to how draft evaders are dealt with. The term is not often used. Draft evaders are persons who are in principle liable to military service, but who have evaded the obligation to register, to attend a medical check or to attend other appointments at the military commissariat before being called up for military service. They were thus clever enough to evade the grasp of the authorities in a timely fashion. If they now manage to enter the European Union and apply for asylum, none of the regulations will apply to them. The Qualification Directive would provide no recourse nor would a regulation like the German government’s, because it explicitly refers to desertion. This means, in effect, that the vast majority of those refusing to go to war in Ukraine will remain unprotected.
EU states also refuse to issue visas
In May 2022, we established contact with a group of Russian draft evaders who had fled to Turkey. They turned to us because some of them had expired passports. In other cases they were close to the end of the deadline to stay in the country as tourists. Through diplomatic channels their requests were forwarded to all the representations of the European governments. They received either no reply at all or a rejection of their plea. We received similar reactions at other levels. It was repeatedly stated that there is a valid procedure in Turkey for recognition as a refugee. The draft evaders themselves, on the other hand, feared that they would be deported because of the Turkish government’s policy towards Russia. With the restriction of visas at the beginning of September, access to the European Union has become even more difficult, including for opposition members.
If we look at the numbers of Russian draft evaders and deserters who are abroad, we find that really only a fraction of them have come to the European Union. According to our estimate, there are nearly 100,000 who have fled at least in part to escape participation in the war. But in the European Union since January 2022 there are only a few thousand asylum applications from Russian citizens. Among them, according to our estimate, there are about 1,100 applications for asylum from deserters and draft evaders.
It is irresponsible to call for desertion but offer no protection
We thus note that the offers made so far to protect and receive Russian deserters and military draft evaders will only really help a fraction of them. Let’s listen once again to Charles Michel: "Lay down your arms, stop fighting" and further "In my opinion, the idea (of granting asylum) is a valuable idea that should be pursued." This is nothing but an irresponsible policy towards the people concerned. They need protection and a perspective now.
1 European Council, 6 April 22, https://tiny.one/255da47x