Clear Demand for Asylum in the Face of a Refusal of Aggressive Warfare
(18.11.2024) Since February 2022, approximately 5,400 Russian men aged between 18 and 45 have applied for asylum in Germany. Only a small fraction of these applications has been granted. These individuals are fleeing an unlawful military deployment and therefore should receive protection against potential persecution.
Connection e.V. has received a number of decisions from the Federal Office for Migration and Refugees (BAMF), primarily rejecting applications from draft evaders and conscientious objectors from Russia. A key criterion for these rejections is that recruitment for the war in Ukraine is deemed "not significantly likely", that they do not have to face a “real risk” of persecution. The implications of this for the affected individuals will be elaborated upon in the following article. We will also examine whether the decision-making practices of the Federal Office for Migration and Refugees (BAMF) align with international law. Before doing so, we will address the contextual conditions in Russia.
We have previously provided detailed accounts regarding the situation of deserters and military service evaders from Ukraine and Belarus elsewhere.
On the Situation in the Russian Federation
Differences: Desertion, Draft Evasion and Conscientious Objection
To understand and assess the legal background and asylum options, it is important to define the terms:
Most individuals who are obligated to serve in the Russian military but refuse to do so are classified as draft evaders. They have already evaded contact with the military prior to any potential recruitment and have not yet received a summons. They are sometimes also referred to as conscription refugees.
In contrast, deserters have received a summons and are considered soldiers from that moment onward, or they are already serving in the military and are fleeing from it.
Conscientious objection to military service was recognized as a human right by the European Court of Human Rights in 2011 and refers to a personal decision not to serve in the military, which is often communicated to the authorities or military. Both draft evaders and deserters may choose to declare their conscientious objection.
Legal Framework: Conscientious Objection and Desertion in Russia
In Russia, there is a mandatory military service obligation that applies to all men between the ages of 18 and 30. On May 25, 2022, a law was passed in Russia allowing for the recruitment of men up to the age of 65 into the army.
An application for conscientious objection can only be submitted prior to receiving a summons. Reservists and soldiers do not have the right to file an objection request. When applications are reviewed, this should ideally be conducted by an independent body; however, in Russia, the military is involved in the decision-making process. The opportunity for conscripts to submit a conscientious objection request at any time, as stipulated by international law, is not guaranteed.
Additionally, a further amendment to the law in November 2022 allows for conscientious objectors who are serving in so-called alternative service to also be conscripted into the military to perform unarmed service.
Desertion is strictly prosecuted, especially during wartime. Mediazona reported on June 18, 2024, that there have been approximately 10,000 criminal proceedings in Russia since the beginning of the war. In separatist regions, forced recruitment occurs, and those who refuse are sent to the front lines or imprisoned.
Rome Statute for the International Criminal Court
Duty to Refuse an Aggressive War
The Rome Statute for the International Criminal Court establishes individual responsibility for the commission of war crimes, particularly genocide and crimes against humanity. A war often involves soldiers being ordered by superiors to, for example, target civilian objectives, thereby committing a war crime. This is even more apparent in the case of Russia’s war against Ukraine, where the war itself constitutes an act of aggression and is therefore unlawful under international law. Article 25(2) of the Rome Statute states: " A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute."
Soldiers thus have a duty to refuse unlawful orders from their superiors. However, in the context of military engagement, this is practically impossible, as being deployed to the front always means making a decision within a hierarchy and value system dictated by military force, in an environment dominated by military power, against an order issued by superiors. Those who do refuse often risk their lives. For those who do not wish to take such a risk, the only option left is to flee the military, that is, to desert. Those who want to avoid such a situation altogether can only consider conscientious objection—provided it is feasible and accepted—or to evade conscription, which is a form of military service evasion.
Thus, conscientious objection—provided it is feasible and accepted—or fleeing from a military that is waging an unlawful aggressive war is the objectively most sensible step to avoid being placed in a situation where one could be compelled to commit war crimes.
Now, in the case of Russia’s invasion of Ukraine, we are unambiguously dealing with an act of aggression that is condemned under international law. Therefore, when assessing the accountability of soldiers, it is no longer solely about the possibility of committing unlawful acts during a war. The war itself, as well as participation in it, must be considered unlawful under international law.
Conversely, it can be stated that anyone facing the threat of forced recruitment has the obligation, in light of the provisions of the Rome Statute, to refuse or evade participation in an unlawful act of aggression.
This general principle is reinforced by another provision of the Rome Statute.
Criminal Responsibility for Complicity
Article 25(3)(c) of the Rome Statute also defines criminal responsibility for complicity. It states: “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime (if that person) (c) aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.” This means that not only can soldiers in combat be held accountable, but also individuals who contribute to or provide assistance that enables such a war to be conducted.
The European Court of Justice addressed this issue in the case of US deserter André Shepherd. André Shepherd, a US soldier who served as a helicopter mechanic in Iraq in 2004, evaded further deployment during a stay in Germany and applied for asylum in 2008. He based his claim on the Qualification Directive of the European Union, which protects, under Article 9, those who evade an unlawful war or unlawful acts and who face the prospect of persecution. In its ruling, the European Court of Justice concluded in paragraph 46 that “Article 9(2)(e) of Directive 2004/83 must be interpreted as meaning that it covers all military personnel, including logistical or support personnel;”
The European Court of Justice states that for the relevance of such complicity, there must be "indispensable support". However, it is clear that a war cannot be conducted without logistics, without the supply of weapons, ammunition, and provisions, without repair and maintenance work, without military infrastructure measures, without medical services, and much more. Furthermore, conscripts do not have the ability to decide where and how they are deployed. They cannot refuse one type of service in order to be assigned to a task that may be deemed less "indispensable supportive." This is a fact that is often overlooked. Again, it holds true that anyone who wants to avoid being placed in a situation where they are compelled to perform work or services that contribute to an unlawful war must evade military access at an early stage.
Focus on Jurisprudence
In the following sections, we will examine the current jurisprudence especially in Germany, particularly regarding deserters and conscientious objectors from Russia who have refused to participate in or have evaded military service or have deserted. There are some positive developments in this area, but it is mostly observed that rejections are issued in asylum procedures.
BAMF: "Significant Probability" versus Internationally Compliant Action
In several decisions from the Federal Office for Migration and Refugees (BAMF) that we have reviewed, persecution is excluded on the grounds that it is "not significantly probable" (not a real risk) that the applicants would be conscripted into the armed forces or sent to the war in Ukraine. Here is an excerpt from a decision dated September 24, 2024: "Due to the sheer number of potentially mobilizable reservists, a future summons of the applicant is not significantly probable. The statistical risk of conscription, given approximately 25 million reservists in Russia, of which about 5.5 million are in the age group up to 35 years (the first mobilization priority), even in the case of a renewed mobilization of 300,000 men, would be less than two or less than six percent." (AZ 10114310 – 160) This text appears repeatedly and is currently a standard response to the concerns of military service evaders seeking refugee protection in Germany.
The argument is fundamentally based on probabilities. Is it likely that a person will actually be conscripted into the military and sent to war upon their return? The fact that a call-up is unlikely does not really help those affected. They left the country in light of a situation where, during the partial mobilization in October 2022, widespread raids occurred, recruitment was made arbitrarily, and there were several thousand cases in which individuals were wrongfully recruited. Now, the decisions argue that such occurrences are not expected in the foreseeable future, and therefore are not "significantly probable".
Let us briefly consider what this means concretely. Of course, applicants have the option to appeal such decisions from the Federal Office for Migration and Refugees (BAMF) and thereby force a hearing before an administrative court. However, it can be assumed that the administrative courts will not rule differently, as demonstrated by the Berlin Administrative Court on November 24, 2023: "The chamber is convinced, based on the evaluation of the available evidence, that at the relevant time of the court’s decision, it is not significantly probable that the plaintiff will be conscripted against his will into the Russian army or drafted and sent to the front in Ukraine in the foreseeable future." (AZ 33 K 499.16 A)
After a rejection by an administrative court, there are still legal avenues available. Ultimately, however, it is to be expected that the judgment will become final sooner or later. And then it is unambiguously stated: "The applicant is required to leave the Federal Republic of Germany within 30 days of notification of this decision; in the event of an appeal, the departure deadline ends 30 days after the final conclusion of the asylum procedure." If the asylum seeker does not comply with this requirement, they may be deported.
This process and the assessment of significant probability applied in asylum law lead to the result that individuals who do not wish to be conscripted into an unlawful war may be rejected and, may also be deported. That there have already been initial deportations was reported by Tagesschau on October 1, 2024.
This means, on one hand, that internationally compliant behaviour, i.e., the refusal to participate in an unlawful war, is not protected. On the other hand, it means that the support for this group mentioned in various resolutions and statements by politicians is not forthcoming. The affected individuals have been and continue to be abandoned.
Recognition Generally Only in Cases of Desertion
It is fundamentally established that the persecution of conscientious objection and desertion is generally not considered a basis for asylum. Judicial rulings indicate that military service obligations are a general State duty that applies equally to all citizens (or at least to all citizens of conscription age and, in some cases, male). Therefore, prosecution and punishment for refusal are classified as legitimate State actions. Although the European Court of Human Rights recognized conscientious objection as a human right in 2011, the persecution of conscientious objectors is only regarded as a violation of the European Convention on Human Rights in individual cases, which only raises the possibility of protection against deportation.
The German Federal Ministry of the Interior, however, views the situation differently specifically for Russian deserters, as it assumes that they face persecution for political reasons.
According to a statement from the Federal Ministry of the Interior in May 2022, it can be "assumed that impending acts of persecution are generally related to a ground for persecution (§ 3b Asylum Act). Since the term ’war,’ in reference to the aggression against Ukraine, can already be penalized as an oppositional political expression in the Russian Federation, desertion—as an active expression against warfare—can be viewed as a manifestation of an oppositional conviction."
However, the statement from the Federal Ministry of the Interior explicitly further clarifies that Russian "conscription refugees are not included in this discussion".
High Rejection Rate of Asylum Applications
This practice of the BAMF clarifies why such a large percentage of asylum applications from Russian citizens are denied. Apart from cases of desertion, refugee protection is generally only granted to individuals who have been politically active and therefore face persecution. Looking at the statistics regarding decisions from 2022 to 2024, we find that only 6.3% of male applicants aged between 18 and 45 receive any form of protection, while 32.6% are rejected.
The number of "formal case closures" is also very high. This term mostly refers to decisions made under the Dublin III Regulation. This regulation determines which European country within the Schengen Area is responsible for processing an asylum application.
Many Russian military service evaders or deserters were only able to reach Germany through illegal escape routes via land through Eastern European countries or entered with a visa through another EU country. As a result of the Dublin III Regulation, that country is usually responsible for processing the asylum application, even in cases where they would receive extensive support from relatives or friends here in Germany.
To counter this, some church congregations have taken Russian conscientious objectors into church asylum. This aims to prevent deportation, particularly to countries such as Lithuania, Poland, or Croatia.
Some Positive Decisions
In the asylum procedures of Russian deserters and conscientious objectors, a provision of European legislation, known as the Qualification Directive, repeatedly plays a role. Article 9 of this Directive governs who can be recognized as a refugee in the European Union.
It includes a clause stating that this applies in cases of impending prosecution for refusing to participate in unlawful wars. Russian conscientious objectors, military service evaders, and deserters face such prosecution. However, jurisprudence raises the question of under what circumstances this provision applies.
The European Court of Justice, the highest court in the European Union, has already ruled on this matter twice. This has defined certain conditions that, unfortunately, make it unlikely that affected individuals will actually achieve protection given the current situation.
The individuals must have previously submitted a formal application for conscientious objection in their country, which was denied, or at least must not have been protected from being sent to the war zone as part of the troops. They must demonstrate that they were indeed recruited and that deployment in the war is a serious threat. Very few will be able to meet these criteria.
However, the Administrative Court in Halle clarified how it could still be possible in a decision dated April 27, 2023. In the case of a subsequent application from a Russian national of Chechen ethnicity, it ruled: “In the case of the plaintiff, there is a subsequent flight basis because, as a 38-year-old Chechen man without health restrictions, he faces the threat of forced conscription for military service in Ukraine upon return to his home country.
Prosecution in the sense of § 3a(1) of the Asylum Act can also include prosecution or punishment for refusing military service in a conflict if the military service would involve crimes or acts that fall under the exclusion clauses of § 3(2) of the Asylum Act. […] The war waged by Russia in Ukraine is an unlawful act of aggression, and according to the evidence presented in the proceedings, it appears significantly probable that the plaintiff, as a healthy Chechen man, will be conscripted against his will for a Chechen combat unit and sent to Ukraine to commit war crimes and crimes against humanity or at least act contrary to the goals and principles of the United Nations.”
Another positive decision was made by the Administrative Court of Berlin on March 20, 2023, in the case of a 17-year-old Chechen: "The plaintiff faces a serious risk of inhumane and degrading treatment, as it is significantly probable that he will be conscripted into military service upon his return, and from that point, there is also a significant risk of being sent to the war in Ukraine, where the plaintiff could expect to be forced to participate in an unlawful act of aggression and in actions that violate international law and/or human rights, or to suffer serious harm to his person and life."
The Grand Chamber of the National Court of Asylum (CNDA) in France ruled on September 6, 2023, that Russian nationals who refuse partial mobilization or forced conscription in the context of the war in Ukraine must be granted refugee status, as they would be compelled to commit war crimes directly or indirectly due to the widespread commission of such crimes by Russian armed forces. However, they must demonstrate that they are indeed at risk of recruitment for the war.
The court also noted that the partial mobilization in September 2022 was broadly defined and that it was not possible to evade military service by performing alternative civilian service. Furthermore, the mobilization was fraught with numerous irregularities affecting both the individuals involved and the mobilization procedures. The CNDA also stated that the partial mobilization is still in effect de jure and de facto, even though the Russian Minister of Defense declared that the mobilization goal was achieved by the end of 2022. Individuals who oppose mobilization must expect criminal prosecution and sanctions.
Higher Administrative Court Sees No Threat
On August 22, 2024, a ruling from the Higher Administrative Court of Berlin-Brandenburg overturned a similar positive ruling from the Berlin Administrative Court (AZ 12 B 17/23). This case involves a young Chechen man who has not yet completed military service in Russia. Although the court assumes that he could be conscripted for military service, it sees no threat. It concludes that he would "not be significantly likely to be deployed in Ukraine and thus in an unlawful war." Artyom Klyga, head of the legal department of the Movement for Conscientious Objection in Russia, contradicts this in a letter November 11, 2024: "No, men can be mobilized even without prior military service. (...) For example, I was personally called up for mobilization, even though I was exempted from regular military service."
Regarding a possible deployment in the Kursk region against the Ukrainian troops that have invaded there, the court states that it "takes place on Russian territory" and serves "to defend against the Ukrainian offensive." The court concludes: "The combat deployment of conscripts does not occur to unlawfully conquer, occupy, or annex the territory of Ukraine or parts thereof." Therefore, the plaintiff faces no "entanglement in the act of aggression against Ukraine."
This ruling is indeed very sobering, as it confirms the practice of rejecting affected individuals due to "not significantly probable" circumstances. On the other hand, it demonstrates that the Higher Administrative Court of Berlin-Brandenburg recklessly divides Russia’s military actions into those within Ukraine and those outside of Ukraine, completely disregarding the concept of complicity, solely to deny any protection. Unfortunately, we must assume that other courts will follow this line of reasoning.
Summary: Against the Logic of Numerical Manipulations
We note that there are different legal approaches to penalizing unlawful acts, acts of aggression, and unlawful wars. There is even the approach through the Qualification Directive of the European Union that individuals who refuse to participate in such unlawful acts and fear persecution should be protected. However, legal practice views this only as an exception that must be proven by the refugee themselves. This is implemented in a particularly obvious manner through the definition of "significant probability" or “no real risk”.
This is unacceptable. International law imposes an obligation—both on states and on individuals—to behave in accordance with international law, meaning they must not engage in war crimes, unlawful acts, or acts of aggression. Individuals cannot be exempted from this duty on the grounds that it is not significantly probable that they will find themselves in such a situation.
In short: if there is a duty to refuse and evade participation, then these individuals must also receive protection if they face any probability of persecution. In asylum procedures, this should mean that authorities must prove that such persecution is not only unlikely but does not exist at all. In other words: in every individual case where an administrative decision leads to an asylum seeker being forcibly recruited for an act of aggression after rejection and deportation, this should be regarded as complicity.
Further information is regularly provided by Connection e.V. as part of the #ObjectWarCampaign, which is a coalition of more than 100 organizations across Europe advocating for the protection and asylum of conscientious objectors and deserters from Russia, Belarus, and Ukraine: www.Connection-eV.org/ObjectWarCampaign and https://objectwarcampaign.org.
Connection e.V.: Klare Forderung auf Asyl bei Verweigerung eines Angriffskrieges. November 18, 2024.
Keywords: ⇒ Asylum ⇒ CO and Asylum ⇒ Conscientious Objection ⇒ Desertion ⇒ Europe ⇒ Germany ⇒ Russia ⇒ War