Can we desert the deserters? What does CSR tell us about Russian war resisters?
Sold-out or extraordinarily expensive flights from Moscow to Belgrade have been making the headlines for the past few days. The rise in popularity of Belgrade as a destination for Russian citizens was arguably prompted by Vladimir Putin's decree on partial mobilisation in Russia announced last Wednesday, September 21. The announcement of the mobilisation was met with widespread civil opposition, where over a thousand demonstrators who took to the streets that same evening were arrested.
In reaction to these developments in Russia, Baltic states stated that conscientious objection was not a sufficient basis for obtaining political asylum, and like Finland, explicitly stated that they will not open their doors to Russian citizens fleeing mobilization in their country. On the other hand, Germany had expressed its willingness to accept Russian deserters, stressing that citizens who chose to oppose Putin deserved international protection and could apply for asylum based on fear of political persecution.
Convention Relating to the Status of Refugees and Russian Deserters
Considerations of asylum and flight from persecution prompt us to consult international law and the response that the Convention Relating to the Status of Refugees would give to the issue of Russian deserters. The well-known Article 1(A)(2) of the Convention Relating to the Status of Refugees defines this category as "a person who […], owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
Therefore, according to the Convention, there is a clearly defined set of criteria that a person would need to fulfil in order to be recognised as a refugee. The sine qua non criterion is the existence of a well-founded fear of persecution based on one of the five enumerated grounds. The justification of that fear is assessed in each individual case, in light of general circumstances. In the case at hand, could it be said that Russian citizens who leave their country due to the refusal of military service are justified in fearing persecution in their country, due to the existence of one of the above-mentioned five grounds? Two of those five are directly relevant to the answer to this matter - belonging to a particular social group, and political opinion.
Is it possible to equate refusal to serve in the army with political activity?
As in the case of other grounds of persecution, when it comes to political opinion, Goodwin-Gill and McAdam remind us of the fact that an individual fleeing political persecution need not actually be a political opponent. It is sufficient, namely, that the actor who perpetrates the persecution perceives the individual as such and imputes that opinion to them (UNHCR, Guide to Article 1 of the Convention, para. 25). Therefore, refusing to comply with military service and leaving the country could be interpreted as a political act (Goodwin-Gill and McAdam, p. 125), regardless of whether each individual actually openly expresses his opposition to Russia's policies.
Likewise, it should be noted that another relevant basis for the existence of justified fear, one of belonging to a particular social group, was intentionally left in such broader terms. Although the Convention and the refugee definition outlined earlier were created seventy-one years ago, it was precisely this category of belonging to a particular social group that allowed the Convention to accord the protection provided by refugee law to individuals who needed it, and whose justified fear, in accordance with global social circumstances, was not based on one of the explicitly enunciated grounds (including gender, sexual orientation, social class, family ties). UNHCR recognises two approaches to defining “belonging to a particular social group” - either according to intrinsic, fundamental characteristics of a person and a given group, or according to the social perception that identifies a certain group as such (UNHCR, Guidelines on International Protection, paras. 10-13).
In the context of the practice of mistreatment of lower military ranks in certain states (dedovshchina), and of persons who, as a result of such practice or fear of it, left or avoided military service, the UNHCR stated that the Convention allows an interpretation according to which "belonging to a certain social group" includes categories such as "young men who have left/evaded military service" (UNHCR, Response, paras. 21-29). Given the reasoning behind this conclusion, and in the context of persons who wish to avoid mobilisation due to the certainty of involvement in the armed conflict in Ukraine, there is nothing inherent in the Convention that would oppose the qualification of this category of Russian citizens as a distinct social group.
Does it amount to persecution?
However, in addition to the fact that the consequences in a given case would be based on political opinion or belonging to a particular social group, it is necessary to review whether it can be said that the treatment they would be subjected to would amount to persecution. In other words, can the implementation of a legal obligation, in this case mandatory military service, be characterised as an act of persecution, or as an act that causes fear of the same? Although not explicitly found in the Convention, international legal scholars state that generally applicable laws can indeed be employed as an instrument of persecution, if the law is discriminatory or if it is applied in such a way (Goodwin-Gill and McAdam, pp. 124-125). Upon evaluating a law or policy as discriminatory or contrary to human rights, refugee law refers to international human rights law. When it comes to refusing military service, this branch of law is now considered to recognise the right to conscientious objection (Goodwin-Gill and McAdam, p. 127). The European Court of Human Rights stated in the Savda v. Turkey judgment that this right is not limited to cases where conscientious objection is based on religion, but also on pacifist and anti-militaristic views (Savda v. Turkey, paras. 96, 98; cited in Goodwin-Gill and McAdam, pp. 128-129). The Human Rights Committee underlined in the Atasoy case that "there can now be no limitation or possible justification under the Covenant (on Civil and Political Rights) for forcing a person to perform military service" (Atasoy v. Turkey, para. 13; cited in Goodwin-Gill and McAdam, p. 130). When it comes to conscientious objection, these two authors state that the factors to be evaluated as relevant are the genuineness of a person's convictions – in this case, opposition to war actions – as well as the seriousness of the consequences that the person is believed to suffer in the event of persevering with their conviction. In the case of Russia, the media reports that refusing a call for mobilisation may result in a prison sentence of ten, or even up to fifteen years according to the new law that is due to enter into force. Therefore, it could well be argued that the second criterion related to consequences would be met. On the other hand, because it first requires a review of the sincerity of a person's convictions, invoking conscientious objection would require a more detailed determination of the individual circumstances of each person who invokes it.
Nonetheless, as the UNHCR states in its Handbook on International Refugee Protection, desertion as such, or mere disagreement with a state's military action, is not in itself sufficient for a person to be deemed as ipso facto fleeing persecution. Alongside the right to conscientious objection, UNHCR states however that even “mere” desertion and avoidance of military service can constitute a sufficient reason for requesting international protection when the military action required of a given person involves participation in an armed conflict that is condemned by the international community (UNHCR, Handbook, paras. 170-174). An example of this practice is US citizens who were deserters or evaded military service in the Vietnam War, and whose refugee status was recognised by Sweden.
Admittedly, one could reasonably ask why it would be necessary that, in addition to being forced to participate in an armed conflict, that same armed conflict would need to be condemned by the international community. Shouldn't every armed conflict provoke that reaction, insofar as, outside the realm of self-defence, it violates the principle of the prohibition on the use of force in international relations? If it is not the case that every armed conflict reaches the qualification of international condemnation, it would be necessary to introduce more precise qualifiers in what makes an armed conflict "additionally” devastating – its civilian toll, duration, degree of destruction of civilian objects? Is it rather conduct contrary to international humanitarian law, or perhaps the number of indications of international crimes having been committed during the conflict? No matter what the criterion is, numerous international reports suggest that it would be met in the event of an armed conflict in Ukraine. Additionally, persons who do not invoke their right to conscientious objection would have the right to claim that their requests for international protection are justified due to the fact that military service would entail participation in the armed conflict in Ukraine, condemned by the international community.
Asylum in Serbia?
In addition to answers provided by international refugee law, there remains, certainly, the preliminary question as to whether Russian citizens who fled their country from mobilisation intend to seek asylum in Serbia. For instance, in its semi-annual report, the Belgrade Centre for Human Rights states that only 14 persons of Russian citizenship have applied for asylum in the Republic of Serbia in 2022 so far, (with the total number of submitted applications being 1,981 - see BCHR, Right to Asylum 2022, p. 6) while only 6 persons did so during the previous year (BCHR, Right to Asylum 2021, p. 17). In the eyes of potential asylum seekers, it is very likely that one of the relevant factors is their assessment of the chance of actually obtaining asylum in a State that maintains relations of friendship at the highest level and strategic partnership with the actor they are fleeing from. Given the open opposition of Sweden's political leadership to American conduct in Vietnam, it was expected that it was prepared to pay this "price" in its relations with the US for harbouring American deserters in 1968. Being cognisant of the notable number of cases of Turkish political opponents who had sought, and had not received, asylum in Serbia (see also AIDA, Report 2021, p. 117), in what manner could we expect that Serbia weighs out the recognition of international protection against the political implications of such a decision this time?
