Anti-war protests and sold-out flights out of Russia forecast a wave of forced reservists and anti-war protesters seeking asylum in the neighbouring countries. Meanwhile, measures are being discussed, and have already introduced, limiting the influx of people fleeing the mobilization. However, denying the right to seek asylum can be illegal.

On 21 September 2022, Vladimir Putin signed an executive order declaring partial mobilization in the Russian Federation as of that day. The total number of reservists to be drafted in the partial mobilization is 300,000.

Is There a Threat?

Duma’s Defense Committee listed the categories of people to be drafted according to which of the following analysis will be applicable to any Russian reservist up to 60 years old, whether serving or in risk to be drafted.

Everyone has the right to seek asylum. Human rights do not change based on race, religion, sex, or nationality. On the other hand, compulsory military service is not illegal and fleeing persecution for refusal to join armed forces should meet certain criteria.

UNHCR Draft Guidelines No.10 examines the position of individuals seeking international protection to avoid recruitment by and service in the armed forces. These recommendations, drafted in 2013, refer to various situations. For instance, desertion, which involves abandoning a military duty or post. Or resisting the call-up for military duties based on conscientious or other reasons. Or draft evasion, when a person does not register for, or does not respond to, a call-up or recruitment for compulsory military service. As described in the guidelines, the evasive actions may result in the evader fleeing abroad, or may involve, inter alia, returning call-up papers to the military authorities. In the latter case, the person may sometimes be described as a draft resister rather than a draft evader. Draft evasion may also be pre-emptive in the sense that action may be taken in anticipation of the actual demand to register or report for duty.

Not every evasion is ground for asylum. A claim for international protection can only be considered based on the following three situations: i) where there is punishment that amounts to persecution for objecting to military service for reasons of conscience, ii) where the person has objected to carry out military acts that violate standards prescribed by international law, iii) where conditions of service amount to torture or other cruel or inhumane treatment.

War, Conscience and Punishment

The first situation refers to the unfounded persecution for the refusal to join the army. The right to conscientious objection to State military service is based on an interpretation of the right to freedom of thought, conscience and religion contained in Article 18 of the Universal Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). In the interpretation of the UN Human Rights Committee (UNHCR): the right ‘entitles the individual to an exemption from compulsory military service if this cannot be reconciled with the individual’s religion or beliefs. The right must not be impaired by coercion.’

As it is stated, ‘partial mobilization’ will affect 300,000 servicemen in reserve, which means men who have already completed their compulsory service. As a result, a conscientious rejection of military service might not apply in such case. However, opposition to the imperialistic aims of taking over parts of the territory of a neighbouring country would fall under this category. According to the Russian minister of defense, the purpose of ‘the partial mobilization’ is to retain control of territories adjacent to the front line. Even though the stated Russian objectives in Ukraine are constantly changing, it is realistic to believe that people are being drafted to assist the government in annexing parts of the neighbouring country by military means.

It can be claimed that persecution for the conscientious rejection of military service will be strict enough to amount to persecution in terms of the Refugee Convention. While assessing judgments from Crimean courts on criminal draft evasion cases between 2017 and 2019; Human Rights Watch (HRW) found that under Russian law, draft evasion is penalized under arts. 21.5, 21.6, and 21.7 of the Code of Administrative Offenses and art. 328 of the criminal code. As a criminal offense, draft evasion is punishable by a fine or up to two years in prison. Most judgments reviewed by HRW state that the accused were ‘either failing to appear for military medical certification or failing to appear at the military base to begin service’. The report underlined that people who have served out penalties for draft evasion remain obligated to serve in the armed forces. This eventuality itself constitutes as ground for asylum in cases where conscientious draft evasion has been established. When actual prison sentences are involved, asylum seekers may also claim that its conditions would be so severe as to make deportation a breach of their rights under Article 3 of the ECHR. Whether this is true has to be decided for each individual case.

In a similar study, the European Union Agency for Asylum (EUAA) examined the threats Syrian draft evaders are faced with when returning to their home country and stresses that the act of having left the country itself could have implications for the treatment of an individual upon return. It has been confirmed that returnees face a lack of rule of law, widespread human rights violations, and poor economic prospects. Family members, merely due to their relation to the refugee, may also be at risk of persecution to such extend that it could be the basis for refugee status. In wartime, according to the Syrian Military Penal Code (Articles 98, 99), draft evasion is a criminal offense, punishable by up to 5 years in prison and individuals will still have to complete their military service. In practice, draft evaders were usually sent directly to the military after sentencing. The UNCHR analysis of the draft evasion in the former Yugoslavia could be useful as well.

War Crimes

Another situation arises when it comes to war crimes. Several cases of war crimes were reported and documented in Ukraine. There have been calls for a special tribunal to be established to investigate the atrocities committed by Russian troops. War crimes and crimes against humanity are serious violations which result in an individual responsibility directly under international law. No one can be prosecuted for refusing to take part or denied asylum for fleeing forced participation to this.

It cannot be claimed that every conscript will be sent to commit war crimes in Ukraine. However, according to Court of Justice of the European Union (CJEU), even if this possibility covers all military personnel, including logistical or support personnel. Application for asylum based on this ground concerns situations in which the military service performed would itself constitute to the committing of war crimes. This includes situations in which the applicant for refugee status would only be participating indirectly if it can be reasonably assumed that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes. It would also concern situations in which the applicant for refugee status can establish that it is highly likely that such crimes will be committed.

Another requirement is that the refusal to perform military service must constitute the only means by which the applicant for refugee status could avoid participating in the alleged war crimes and, consequently, if he did not avail himself of a procedure for obtaining conscientious objector status.

Conditions of Service

Long-term deployments and lack of training, support, food and equipment are reported as common service conditions in the Russian army in the war against Ukraine. Reports claim that hundreds of Russian soldiers have been illegally imprisoned by their own commanders in the east Ukrainian conflict zone after refusing to take any further part in the war.

Corruption, lack of logistics, and intentional losses of life may indicate that the conditions for military service amount to persecution. The applicant, however, might need to prove why he should be singled out as being part of a group of people who were at real risk of being subject to such treatment and that the treatment was incurred for a Convention reason, for example on the basis of ethnicity.

The UNHRC Guidelines cite the following unbearable conditions: i) the terms or conditions of military service amount to torture or other cruel or inhuman treatment; ii) violate the right to security and integrity of the person; or iii) involve forced or compulsory labour, or forms of slavery or servitude. (para 31).

Assessment and National Security Exemption

‘A refusal to fulfil one's civic duty in Russia or a desire to do so does not constitute sufficient grounds for being granted asylum in another country,’ the Estonian foreign minister told the media. The Latvian foreign minister has also said that: ’due to security reasons, Latvia will not issue humanitarian or other types of visas to those Russian citizens who avoid mobilisation. ‘

However, the credibility assessment of asylum applications refers to the process of determining whether, in light of all the information available to the decision maker, the statements of the applicant can on balance be accepted. No one can arbitrarily be denied right to ask for asylum.

In a very recent decision C-72/22, the CJEU stated very clearly that Lithuanian national law, which denies foreigners the right to asylum based on the declared emergency situation, is incompatible with EU laws. In the words of the Court: ‘the mere declaration of a state of war or a state of emergency cannot effectively deprive foreigners of the possibility of having access to the procedure for examining an application for international protection.’

As the Court notes in para 88, the concept of ‘national security’ covers both the internal security of a Member State and its external security. This implies a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests. These circumstances must be proven in order to apply this exception.

Failing such ground, the question of whether persecution is directed against an individual for a Convention reason must be decided for each individual situation. Additional protection criteria must also be taken into consideration. For example, complementary protection obligations established by Convention against Torture and the ICCPR or Article 3 ECHR: the absolute prohibition on torture and inhuman or degrading treatment or punishment. Complementary protection has been further manifested in the European Union (EU) concept of ‘subsidiary protection’, as defined in the European Qualification Directive.

Apart from the relevant facts in regard to the Russian Federation, it is important to consider, for each individual case, the relevant statements and documentation presented by the applicant as well as the individual position and personal circumstances and the experiences of the applicant. In assessing the risk of persecution, it is important to take into account not only the direct consequences of one’s refusal to perform military service, but also any negative indirect consequences.

Final Remarks

International law does not preclude a military duty as such. In case C472/13, the CJEU confirmed that measures incurred by a soldier because of his refusal to perform military service, such as the imposition of a prison sentence or discharge from the army, may be considered as a legitimate exercise, by that State, of its right to maintain an armed force, so disproportionate or discriminatory as to amount to acts of persecution for the purpose of those provisions. It is, however, up to the national authorities of the country where the applicant has requested asylum to ascertain whether that is indeed the case (para 56).

The aggression and war crimes committed by the Russian Federation in Ukraine cannot justify denying international protection to its citizens when fleeing persecution in their own country. The security challenges of the thousands of Russian refugees, adding to tens of thousands of Ukrainians already settled in the Baltic States, must be assessed but not politicized.