Can Russians refusing to perform military service claim asylum under EU law?

As Professor Elspeth Guild and I discuss in a recently published PROTECT Policy Brief, in both international refugee law and in EU law, people fleeing punishment or persecution for seeking to avoid conscription to fight in a conflict in which war crimes are taking place are entitled to seek and enjoy protection as a refugee.

EU states which seek to hinder or prevent entry and asylum claims from persons fleeing punishment or prosecution for avoiding being drafted to fight on behalf of a party to a conflict where the UN Special Rapporteur has found that war crimes are being committed are acting in violation of international and EU law.

The 2011 EU Qualification Directive (EUQD)

EU law sets out common standards for qualification for international protection (and its contents) in the 2011 EU Qualification Directive (EUQD).

The Directive is based on the 1951 Convention relating to the Status of Refugees and must be interpreted in line with this instrument (Recital 3 EUQD).

Yet, the Directive is in many ways more specific than the Convention. Thus, it contains an illustrative list of measures which may constitute persecution (Article 9(2)), including a provision which states that persecution may 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 falling within the scope of the grounds for exclusion as set out in Article 12(2)’. Article 12(2), in turn, excludes a third-country national or a stateless person from being a refugee where there are serious reasons for considering that

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity,

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations

An individual assessment

Anyone claiming asylum in the EU is entitled to an individual assessment of their claim.

When considering the applicability of Article 9(2)(e) EUQD, a number of questions will need to be answered. Is the applicant at risk of prosecution or punishment for refusal to perform military service? Does the military service in question entail a risk of committing the crimes and acts falling within the scope of Article 12(2) EUQD?

In C-472/13, the CJEU has held that only individuals who would ‘sufficiently directly and reasonably plausibly’ be involved in the commission of war crimes can claim protection (para 38) and that refusal to perform military service ‘must constitute the only means by which that applicant could avoid participating in the alleged war crimes’ (para 44).

A real risk

Assuming that there is a real risk that an individual will be prosecuted or punished for refusal to perform military service and assuming that there is also a real risk that this will entail committing the relevant crimes and acts, another requirement must be fulfilled for recognition as a refugee.

There must be a connection between the persecution feared and the applicant’s race, religion, nationality, political opinion or membership of a particular social group.

Individuals fleeing military service in Russia may be able to establish this connection in a number of ways.

For example, there are reports of the mobilisation targeting in particular ethnic minorities. Membership of such a group may establish a sufficient link to the grounds race or nationality. Further, in C-238/19, the CJEU stated that ‘in many situations, refusal to perform military service is an expression of political opinions – whether they consist of the rejection of any use of military force or of opposition to the policy or methods of the authorities of the country of origin – or of religious beliefs, or is motivated by membership of a particular social group. In those cases, the acts of persecution to which that refusal may give rise are also linked to the same reasons’.

Inclusion or exclusion

Assuming then that a connection between the persecution feared and the applicant’s race, religion, nationality, political opinion or membership of a particular social group can be established, it must nevertheless still be assessed whether the individual in question should be excluded from refugee status.

Thus, if there are serious reasons for considering that the individual in question has already committed any of the acts and crimes listed in Article 12(2) EUQD, this person will be excluded from refugee protection.

It should be noted that security reasons do not play a role when it comes to exclusion from refugee status, although refugee status may be revoked for security reasons (EUQD Article 14(4)). However, an outright refusal of protection based on security ground as apparently envisaged by certain Member States is not in line with EU law.

In conclusion

Based on the fact that the Russian military’s actions in Ukraine may well fall within the scope of Article 12(2) EUQD, there is a strong presumption that individuals fleeing military service in Russia may be eligible for refugee status both in international and EU law. Such individuals must be allowed to arrive at the border and to make an asylum claim. An individual assessment of the asylum claim must then be conducted in each case.