Many men in military service from Russia, Belarus, and Ukraine flee to escape war. Photo: Diego Gonzalez/ Unsplash

In 2022, many German politicians agreed that Russian deserters, draft evaders and conscientious objectors should be protected. But the German Federal Office for Migration and Refugees (BAMF) is creating other facts. PRO ASYL and Connection e.V. demand clear improvements for conscientious objectors from all sides who do not want to fight in this war

At the end of Janu­ary 2023, the Fede­ral Office for Migra­ti­on and Refu­gees (BAMF) rejec­ted the asyl­um appli­ca­ti­on of a Rus­si­an refu­ser who had eva­ded pos­si­ble recruit­ment, wri­ting in the decis­i­on: »It can­not be assu­med with con­sidera­ble pro­ba­bi­li­ty that the appli­cant would be for­ci­b­ly con­script­ed into the armed forces against his will.«

How could this be? As recent­ly as Sep­tem­ber 2022, the­re was a rare cross-par­ty agree­ment in Ger­ma­ny that Rus­si­an draft eva­ders, con­sci­en­tious objec­tors and deser­ters should be pro­tec­ted. The BAMF, howe­ver, crea­tes facts, rejects a draft eva­der and refers to argu­ments that have long been out­da­ted. The ques­ti­on ari­ses as to how many such decis­i­ons have been issued by the Fede­ral Office for Migra­ti­on, which so bla­tant­ly vio­la­te the rights of the applicants.

Outdated reasoning

The Fede­ral Office­’s reaso­ning reads in detail: »Howe­ver, it can­not be assu­med with any con­sidera­ble pro­ba­bi­li­ty that the appli­cant, a (40-plus-year-old) natio­nal of the Rus­si­an Fede­ra­ti­on who, accor­ding to his state­ments, has not per­for­med any mili­ta­ry ser­vice and thus does not have any pre­vious mili­ta­ry know­ledge or any other (mili­ta­ri­ly rele­vant) spe­cial know­ledge, would be con­script­ed into the armed forces against his will at all. Accor­ding to § 22 of the Fede­ral Law »On Con­scrip­ti­on and Mili­ta­ry Ser­vice«, all male Rus­si­an citi­zens bet­ween the ages of 18 and 27 are cal­led up for com­pul­so­ry ser­vice in the Rus­si­an army. On the basis of the available infor­ma­ti­on, it does not appear that the Rus­si­an Fede­ra­ti­on would call up addi­tio­nal age groups bey­ond the abo­ve-men­tio­ned age group for the armed forces in the con­text of a par­ti­al or gene­ral mobi­li­sa­ti­on, or that such a mobi­li­sa­ti­on would be immi­nent in the fore­seeable future. Such mobi­li­sa­ti­on is also con­side­red unli­kely in other respects, espe­ci­al­ly as it would be incom­pa­ti­ble with the Rus­si­an nar­ra­ti­ve of a plan­ned, limi­t­ed »spe­cial ope­ra­ti­on« and would be dif­fi­cult to con­vey dome­sti­cal­ly.« This decis­i­on was issued in Janu­ary 2023, four months after the par­ti­al mobi­li­sa­ti­on was announ­ced in Russia.

The rest of the fac­tu­al situa­ti­on is also asses­sed quite dif­fer­ent­ly by orga­ni­sa­ti­ons that have been working on the­se issues for many years. The Inter­na­tio­nal Fel­low­ship of Recon­ci­lia­ti­on sta­ted in an exper­ti­se for the United Nati­ons in mid-Octo­ber 2022: »In prac­ti­ce, sum­mons to con­scripts are sent to the mail­box wit­hout a signa­tu­re. The date of appearance may be indi­ca­ted out­side the draft peri­ods. And ins­tead of the spe­ci­fic pur­po­se of the call, the sum­mon indi­ca­tes the gene­ral wor­ding »cla­ri­fi­ca­ti­on of data«. When visi­ting a Mili­ta­ry com­mis­sa­ri­at in such a situa­ti­on, a con­script can be cal­led up for mili­ta­ry ser­vice imme­dia­te­ly on the day of the visit.«

For­mal­ly, accor­ding to the law, offi­ci­al per­so­nal deli­ver­ed let­ters are requi­red for regis­tra­ti­on, for mus­ter and call up papers. The con­script must con­firm receipt with his signa­tu­re. This for­mal pro­ce­du­re is the­r­e­fo­re no lon­ger fol­lo­wed in Russia.

Con­tra­ry to what the BAMF claims, recruit­ment is also pos­si­ble bey­ond the age of 27. On 25 May 2022, the Duma pas­sed a law wher­eby men up to the age of 65 can also be con­script­ed into the army.

Raids and street checks for recruitment

During the par­ti­al mobi­li­sa­ti­on in Sep­tem­ber and Octo­ber 2022, the­re were raids and street checks for recruit­ment, the exper­ti­se con­ti­nues: : „Sin­ce the begin­ning of the mobi­liza­ti­on, a wide­spread prac­ti­ce in lar­ge cities is that poli­ce offi­cers stop men on the streets, check their docu­ments, and try to hand a sub­poe­na. Late­ly, ano­ther prac­ti­ce was intro­du­ced in the form of raids. On Octo­ber 9, the poli­ce came to the »hea­ting cen­ter« for the home­l­ess in Moscow and detai­ned seve­ral dozen peo­p­le. The­re were also raids at workers dor­mi­t­ories. In St. Peters­burg, poli­ce offi­cers blo­cked exits of seve­ral resi­den­ti­al buil­dings and han­ded out sub­poe­nas.« Moreo­ver, during the recruit­ments, the aut­ho­ri­ties had no infor­ma­ti­on about with­dra­wals or defer­rals. This explains why even offi­ci­al Rus­si­an agen­ci­es con­ce­ded the figu­re of 9,000 ille­gal­ly recrui­ted in the cour­se of the par­ti­al mobi­li­sa­ti­on. The actu­al num­ber is unknown.

EU member states must also find solutions for military draftees

Thus, the EU count­ries must not only deve­lop new cri­te­ria for deser­ters with regard to asyl­um or ano­ther resi­dence sta­tus, as the Ger­man govern­ment has done. It is also a mat­ter of fin­ding solu­ti­ons for the lar­ge num­ber of tho­se who eva­ded the draft to mili­ta­ry ser­vice. For if they have to return to Rus­sia, they are sub­ject to recruit­ment for a war that is ille­gal under inter­na­tio­nal law.

As part of the pro­ject #Object­War­Cam­paign fun­ded by PRO ASYL, Con­nec­tion e.V. has coll­ec­ted num­e­rous facts and drawn con­clu­si­ons and deve­lo­ped demands from them tog­e­ther with PRO ASYL.

To under­stand and assess the legal back­ground and asyl­um opti­ons, it is important to defi­ne the terms:

Most abs­con­ding mili­ta­ry ser­vice con­scripts are draft eva­ders. They have eva­ded the grasp of the mili­ta­ry befo­re pos­si­ble recruitment.

In terms of num­bers, deser­ters are signi­fi­cant­ly fewer. They have at least recei­ved a  their call-ups and are the­r­e­fo­re con­side­red sol­diers. Deser­ters flee after recei­ving a draft or during mili­ta­ry service.

Con­sci­en­tious objec­tion is a per­so­nal decis­i­on not to join the mili­ta­ry. It is often declared to the aut­ho­ri­ties or the mili­ta­ry. Con­sci­en­tious objec­tion has been reco­g­nis­ed as a human right by the Euro­pean Court of Human Rights in 2011.

Hundreds of thousands flee on all sides

In Sep­tem­ber 2022, Con­nec­tion e.V. had pre­sen­ted a detail­ed ana­ly­sis of how many men sub­ject to mili­ta­ry ser­vice have fled from Rus­sia, Bela­rus and Ukrai­ne. Such figu­res can only be esti­ma­tes. The­re are no clear sta­tis­tics on the num­ber of peo­p­le who have left the respec­ti­ve count­ries. It is not real­ly known whe­ther fle­e­ing recruit­ment is their only or the decisi­ve reason. It is also unknown how many of the refu­gees can cla­im exemp­ti­ons in their coun­try of origin.

Nevert­hel­ess, accor­ding to a con­ser­va­ti­ve esti­ma­te, Con­nec­tion e.V. con­cluded in Sep­tem­ber 2022 that more than 150,000 men sub­ject to mili­ta­ry ser­vice have left Rus­sia, more than 145,000 men sub­ject to mili­ta­ry ser­vice have left Ukrai­ne and more than 22,000 men sub­ject to mili­ta­ry ser­vice have left Belarus.

Under the same con­di­ti­ons, the result for Febru­ary 2023 is as fol­lows: For Rus­sia, no new figu­res are available, so the esti­ma­te of more than 150,000 mili­ta­ry ser­vice men having left the coun­try remains. For Ukrai­ne, the num­ber of mili­ta­ry ser­vice men who have come to Wes­tern Euro­pe rises to 175,000. For Bela­rus, no new figu­res are available, so it remains at an esti­ma­ted 22,000 mili­ta­ry ser­vice men who have left the country.

Number of asylum applications by Russian conscientious objectors rises at low level

The­re has been a signi­fi­cant increase in the num­ber of asyl­um appli­ca­ti­ons from Rus­si­an refu­sers in Ger­ma­ny. Rus­sia moved into the top 10 asyl­um see­kers for the enti­re year in Decem­ber 2022, mea­ning the num­bers increased signi­fi­cant­ly over the cour­se of 2022. Accor­ding to the BAMF, more than 500 peo­p­le from Rus­sia made their first asyl­um appli­ca­ti­on in both Novem­ber and Decem­ber 2022, up from 150 to 250 a month pre­vious­ly. It can be assu­med that the­re is a con­nec­tion here with the par­ti­al mobi­li­sa­ti­on in Rus­sia in Sep­tem­ber 2022. In total, bet­ween March and Decem­ber 2022, an esti­ma­ted 600 men bet­ween the ages of 18 and 60 who were sub­ject to mili­ta­ry ser­vice sub­mit­ted a first asyl­um appli­ca­ti­on in Germany.

For Wes­tern Euro­pe, Euro­stat pro­vi­des data on asyl­um appli­ca­ti­ons. Accor­ding to this, from Janu­ary to June 2022, an esti­ma­ted 1,200 men sub­ject to mili­ta­ry ser­vice had sub­mit­ted an asyl­um appli­ca­ti­on in one of the 27 Wes­tern Euro­pean count­ries. This num­ber is likely to have increased to 2,800 one year after the war began in Febru­ary 2023. Appli­ca­ti­ons for asyl­um from Bela­ru­si­an natio­nals have bare­ly chan­ged in recent months, accor­ding to Euro­stat, and ran­ge from 300 to 500 per month across Europe.

Dublin III Regulation

The Dub­lin III Regu­la­ti­on deter­mi­nes which Wes­tern Euro­pean coun­try in the Schen­gen area is respon­si­ble for the asyl­um pro­ce­du­re. Often, Rus­si­an or Bela­ru­si­an draft eva­ders or deser­ters enter the coun­try with a visa from ano­ther coun­try, for exam­p­le Fin­land, Pol­and, the Czech Repu­blic, Croa­tia, Ita­ly or Spain. Due to Dub­lin-III, this coun­try is then usual­ly respon­si­ble for pro­ces­sing the asyl­um appli­ca­ti­on, even in cases whe­re they would recei­ve exten­si­ve sup­port here in ano­ther coun­try from more distant rela­ti­ves or friends.

Main countries of refuge include Kazakhstan, Georgia and Turkey

Howe­ver, only very few draft eva­ders and deser­ters from Rus­sia and Bela­rus have fled to count­ries in Wes­tern Euro­pe. The main count­ries of refu­ge are Kazakh­stan, Geor­gia, Arme­nia, Tur­key, Ser­bia and Isra­el. The main reason for this is the very rest­ric­ti­ve hand­ling of visa issu­an­ce by the count­ries of the Schen­gen area. The situa­ti­on in the main count­ries of refu­ge is part­ly pre­ca­rious. Tur­key – and sin­ce the end of Janu­ary also Kazakh­stan – only grants Rus­si­an citi­zens a limi­t­ed resi­dence sta­tus of three months, which can­not be exten­ded at will.

The situa­ti­on is dif­fe­rent for Ukrai­ni­an refu­sers. Like all other Ukrai­ni­an citi­zens, they have the right to enter the Euro­pean Uni­on wit­hout a visa and are gran­ted at least a tem­po­ra­ry huma­ni­ta­ri­an resi­dence sta­tus under sec­tion 24 of the Resi­dence Act. Howe­ver, Ukrai­ne clo­sed the bor­der to men sub­ject to mili­ta­ry ser­vice when the war began. At the end of 2022, it was repor­ted that almost 12,000 suspec­ted refu­sers were appre­hen­ded at the borders.

All three count­ries have com­pul­so­ry mili­ta­ry ser­vice, to which all men bet­ween the ages of 18 and 27 are sub­ject. Rus­sia has rai­sed the age for pos­si­ble con­scrip­ti­on to 65, Ukrai­ne to 60. Every per­son should have the right to app­ly for con­sci­en­tious objec­tion at any time. This is not gua­ran­teed in any of the three countries.

In Rus­sia and Bela­rus, an appli­ca­ti­on is only pos­si­ble until  having recei­ved a call-up. The­re is no right for reser­vists and sol­diers to app­ly. For revie­w­ing appli­ca­ti­ons, this would have to be done by an inde­pen­dent body. In fact, howe­ver, in Rus­sia and Bela­rus the mili­ta­ry is invol­ved in the decis­i­ons. In Bela­rus, the right is also limi­t­ed to reli­gious con­sci­en­tious objectors.

Con­sci­en­tious objec­tors would have to have the opti­on of ser­ving inde­pendent­ly of mili­ta­ry ser­vice. Bela­rus only pro­vi­des for unar­med ser­vice in the mili­ta­ry. In Rus­sia, too, a chan­ge in the law has made it pos­si­ble that con­sci­en­tious objec­tors have to ser­ve in the mili­ta­ry.

Tho­se who do not join the mili­ta­ry face punish­ment of seve­ral years‘ impri­son­ment. Deser­ti­on is pro­se­cu­ted more sever­ely, espe­ci­al­ly during a war.

In the sepa­ra­tist are­as the­re is forced recruit­ment. The­re is no right to con­sci­en­tious objec­tion. Con­sci­en­tious objec­tors are sent to the front or imprisoned.

Ukrai­ne sus­pen­ded the exis­ting law on con­sci­en­tious objec­tion with mar­ti­al law on 24 Febru­ary 2022. Pre­vious­ly, mem­bers of ten small reli­gious com­mu­ni­ties could app­ly. The sus­pen­si­on has depri­ved them of this right. Some con­sci­en­tious objec­tors have been sen­ten­ced to seve­ral years in pri­son.

Asylum: Only few doors open

As a gene­ral rule, con­sci­en­tious objec­tion and deser­ti­on are not con­side­red grounds for asyl­um. The case law of the hig­her courts points out that com­pul­so­ry mili­ta­ry ser­vice is a gene­ral sta­te duty that affects all citi­zens (or at any rate all citi­zens of mili­ta­ry age and, whe­re appli­ca­ble, of the male sex) equal­ly; pro­se­cu­ti­on and punish­ment for a refu­sal is the­r­e­fo­re clas­si­fied as legi­ti­ma­te sta­te action. Accor­ding to the ruling of the Euro­pean Court of Human Rights, pro­se­cu­ti­on for con­sci­en­tious objec­tion is only con­side­red a vio­la­ti­on of the Euro­pean Con­ven­ti­on on Human Rights by courts in indi­vi­du­al cases, which means that only pro­tec­tion against depor­ta­ti­on can be considered.

Only in the case of Rus­si­an deser­ters does the Ger­man Fede­ral Minis­try of the Inte­ri­or see it dif­fer­ent­ly, becau­se it assu­mes that they are threa­ten­ed with per­se­cu­ti­on for poli­ti­cal reasons. In a com­mu­ni­ca­ti­on of the Fede­ral Minis­try of the Inte­ri­or of May 2022, it lite­ral­ly sta­tes that »it can be assu­med that threa­ten­ed acts of per­se­cu­ti­on are usual­ly lin­ked to a reason for per­se­cu­ti­on (§ 3b AsylG). Sin­ce even the term »war« in rela­ti­on to the attack on Ukrai­ne, can be punis­hed in the Rus­si­an Fede­ra­ti­on as an oppo­si­tio­nal poli­ti­cal state­ment, deser­ti­on – as an acti­ve state­ment against the con­duct of war – can be con­side­red an expres­si­on of an oppo­si­tio­nal conviction.«

Howe­ver, the Fede­ral Minis­try of the Inte­rior’s com­mu­ni­ca­ti­on expli­cit­ly goes on to sta­te that Rus­si­an »draft eva­ders are not cover­ed by the remarks«. PRO ASYL and Con­nec­tion e.V. have been cri­ti­cis­ing this for months.

Refusal to participate in a war  violating international law

In the asyl­um pro­ce­du­res of Rus­si­an deser­ters and refu­se­niks, a regu­la­ti­on of Euro­pean legis­la­ti­on is appli­ed, the so-cal­led Qua­li­fi­ca­ti­on Direc­ti­ve. Artic­le 9 of this direc­ti­ve regu­la­tes who can be reco­g­nis­ed as a refu­gee in the Euro­pean Uni­on. The­re is a pas­sa­ge that sta­tes that this is the case if the­re is a thre­at of pro­se­cu­ti­on for refu­sing to par­ti­ci­pa­te in wars that vio­la­te inter­na­tio­nal law. Rus­si­an con­sci­en­tious objec­tors, draft eva­ders and deser­ters face such pro­se­cu­ti­on. This could also be the case if, as Bela­ru­si­an orga­ni­sa­ti­ons have feared for months, Bela­rus also enters the war and sends its own tro­ops to Ukrai­ne. In case law, howe­ver, the ques­ti­on is rai­sed under which cir­cum­s­tances this regu­la­ti­on applies.

The Euro­pean Court of Jus­ti­ce, the hig­hest court of the Euro­pean Uni­on, has alre­a­dy ruled on this twice. This has defi­ned a num­ber of con­di­ti­ons which, unfort­u­na­te­ly, in view of the cur­rent situa­ti­on, make it unli­kely that pro­tec­tion can actual­ly be achie­ved for tho­se affec­ted. This is becau­se the per­sons con­cer­ned would have to have pre­vious­ly made a for­mal appli­ca­ti­on for con­sci­en­tious objec­tion in their coun­try, 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 have been genui­ne­ly recrui­ted and that the­re is a serious thre­at of deploy­ment in the war. Hard­ly anyo­ne will be able to meet the­se criteria.

Refugee protection in cases of political persecution or excessive punishment

In asyl­um juris­pru­dence, per­se­cu­ti­on for con­sci­en­tious objec­tion and deser­ti­on is only con­side­red rele­vant if the act is con­side­red a poli­ti­cal act by the per­se­cu­ting sta­te or if the­re is exces­si­ve punish­ment. The Fede­ral Minis­try of the Inte­ri­or qua­li­fied the for­mer as a given in its state­ment of May 2022 with regard to deser­ters from Rus­sia, as out­lined abo­ve. If this is real­ly going to be imple­men­ted in this way, then at least tho­se who can pro­ve to get the call-up or to be deser­ted would have to recei­ve refu­gee protection.

Draft eva­si­on, on the other hand, is not inter­pre­ted in this way. The fear of pos­si­ble recruit­ment for a war in vio­la­ti­on of inter­na­tio­nal law, if the per­son con­cer­ned is forced to return, is appar­ent­ly not con­side­red wort­hy of pro­tec­tion. Even a pos­si­ble punish­ment – albeit to a les­ser ext­ent – has so far not led to a dif­fe­rent assess­ment by the Ger­man authorities.

On the practice of the Federal Office for Migration

So far, Con­nec­tion e.V. has only recei­ved two decis­i­ons deal­ing with asyl­um appli­ca­ti­ons from mili­ta­ry draf­tees from Rus­sia. In one case, the appli­cant was reco­g­nis­ed, but not becau­se of the mili­ta­ry draft, but becau­se of his public poli­ti­cal acti­vi­ties. The other, a mili­ta­ry draf­tee over 40 years old, was rejec­ted; the decis­i­on was quo­ted at the begin­ning of this text. The core the­sis the­r­ein is: »It can­not be assu­med with con­sidera­ble pro­ba­bi­li­ty that the appli­cant would be com­pul­so­ri­ly con­script­ed into the armed forces against his will.« Abo­ve it is explai­ned why PRO ASYL and Con­nec­tion e.V. con­sider this decis­i­on gross­ly negligent.

»Considerable probability« becomes decisive

A decisi­ve point in the asyl­um pro­ce­du­re is the ques­ti­on of how likely the per­son con­cer­ned is to be recrui­ted in Rus­sia. So far, it can be assu­med that this will be denied by the Ger­man aut­ho­ri­ties as a rule, even in view of reports show­ing that the par­ti­al mobi­li­sa­ti­on in Octo­ber 2022 took place on an arbi­tra­ry basis and that the­re were seve­ral thousand cases in which men were wron­gly recrui­ted. Con­scripts are also recrui­ted on an arbi­tra­ry basis. Tho­se affec­ted will have to pro­ve in each indi­vi­du­al case that they of all peo­p­le would have been con­script­ed with a very high probability.

Human right to conscientious objection also for Ukrainians

No one is tal­king about it yet, but in the future the­se issues will also affect men from Ukrai­ne. As things stand at pre­sent, the huma­ni­ta­ri­an sta­tus for Ukrai­ni­an refu­gees will expi­re in two years. This may mean that Ukrai­ni­an refu­gees – and with them men lia­ble for mili­ta­ry ser­vice – will then have to return to Ukraine.

In the event of pos­si­ble pro­se­cu­ti­on, they could only plead that the­re was no pos­si­bi­li­ty for them to decla­re con­sci­en­tious objec­tion in Ukrai­ne. Alre­a­dy in 2014 and 2015, when seve­ral thousand came to Ger­ma­ny from Ukrai­ne, it was deter­mi­ned by Ger­man aut­ho­ri­ties and courts that this was not a suf­fi­ci­ent reason to cla­im pro­tec­tion of any kind.

Demands on politics

The prac­ti­ce of the BAMF does not cor­re­spond to the dra­ma­tic and life-threa­tening situa­ti­on in which tho­se see­king pro­tec­tion find them­sel­ves. In view of the cur­rent flight move­ments from Rus­sia, Bela­rus and Ukrai­ne, PRO ASYL and Con­nec­tion e.V. demand:

- Rus­si­an citi­zens should also be able to app­ly for admis­si­on to the Euro­pean Uni­on from count­ries out­side Rus­sia. An unbu­reau­cra­tic solu­ti­on is nee­ded to pro­tect them from depor­ta­ti­on from ano­ther coun­try back to Rus­sia. Huma­ni­ta­ri­an visas are an opti­on that the Ger­man govern­ment and the other EU sta­tes should make grea­ter use of. This is the only way to give peo­p­le the chan­ce to come to Ger­ma­ny legal­ly and ask for pro­tec­tion here. This must also app­ly to refu­gees of other nationalities.

- Bor­ders must be ope­ned! Refu­gees must have the pos­si­bi­li­ty to reach count­ries that can grant them a safe stay. Cur­rent visa regu­la­ti­ons pre­vent many from rea­ching safe count­ries. Recep­ti­on of tho­se see­king pro­tec­tion can only suc­ceed if ille­gal push­backs are stop­ped and peo­p­le are given access to a fair asyl­um procedure.

- Regar­ding the gran­ting of asyl­um or other resi­dence sta­tus, EU count­ries must not only deve­lop cri­te­ria for deser­ters, but abo­ve all find solu­ti­ons for the lar­ge num­ber of mili­ta­ry draf­tees, e.g. for draft eva­ders. They would be sub­ject to recruit­ment for war if for­ci­b­ly retur­ned to Russia.

- The EU should adopt a recep­ti­on pro­gram­me so that tho­se Rus­si­an citi­zens who have tur­ned away from their country’s govern­ment at gre­at risk are given oppor­tu­ni­ties for trai­ning and employment.

- Ukrai­ni­an con­sci­en­tious objec­tors who face mul­ti-year pri­son sen­ten­ces as a result of their decis­i­on also deser­ve the EU’s sup­port and must be given the chan­ce of pro­tec­tion here. Ukrai­ne should be cal­led upon to imple­ment the human right to con­sci­en­tious objection.

Tho­se who eva­de war deser­ve pro­tec­tion. Based on this con­vic­tion, PRO ASYL sup­ports and finan­ces the #Object­War­Cam­paign of the asso­cia­ti­on Con­nec­tion e.V..

Rudi Fried­rich, Con­nec­tion e.V.