The Upper Tribunal has handed down a new country guidance decision on draft evaders from Ukraine, PK and OS (basic rules of human conduct) Ukraine CG  UKUT 314 (IAC). The judgment contains important guidance on the relationship between the Refugee Convention and international humanitarian law (IHL), as well as on the present situation in Ukraine. While the legal analysis is helpful in some places, overall the findings will make it difficult for Ukrainian conscientious objectors to succeed in claiming refugee status. PK and OS, who are both Ukrainian draft evaders, will be applying for permission to appeal.
Background: the Ukrainian conflict with Russia
The issue in these appeals was whether refusing to serve in an army which has committed serious breaches of IHL is sufficient for refugee status.
Ukraine has a long-standing conscription system and made extensive use of conscripts in the first few years of the war with Russian-backed militias which began in 2014. More recently the Ukrainian army has stopped deploying conscripts to the front line, using them in support roles instead.
The international community has observed breaches of IHL by both sides. The Upper Tribunal found that the Ukrainian military has committed “widespread and systemic” IHL breaches in its treatment of detained combatants, although it did not find that the Ukrainian military had committed war crimes against civilians.
An earlier Upper Tribunal decision in this case had dismissed PK’s appeal on the basis that a suspended sentence of imprisonment or a fine for refusing to serve in the Ukrainian army would not amount to persecution. As we said at the time, that ruling appeared to ignore Lord Bingham’s speech in Sepet v Secretary of State for the Home Department  UKHL 15. It was later set aside by the Court of Appeal.
This time around, the Upper Tribunal has corrected itself, ruling that any non-negligible punishment would be sufficient:
Where a causal link exists between the likely military role of the conscript or mobilised reservist, the commission of or participation in acts contrary to the basic rules of human conduct, and the punishment to be imposed, punishment including a fine or a non-custodial sentence will be sufficient to amount to “being persecuted” for the purposes of the Refugee Convention, provided it is more than negligible.
Disappointingly, though, the tribunal also made a ruling which will make it significantly more difficult for conscientious objectors to succeed in asylum claims. Citing a decision of the Court of Justice of the European Union — C-472/13 Shepherd v Bundesrepublik Deutschland — it held that the objector must be being required to participate directly or indirectly in the breaches of IHL:
The individual concerned must demonstrate that it is reasonably likely that their military service would involve the commission of acts contrary to the basic rules of human conduct, or that it is reasonably likely that, by the performance of their tasks, they would provide indispensable support to the preparation or execution of such acts.
That is an extremely difficult test to satisfy. Very few armed forces are likely to require conscripts, particularly unwilling conscripts, to actually participate in war crimes or conduct essential support roles for the obvious reason that they are likely to execute their tasks less well than professional soldiers or willing conscripts. The Upper Tribunal’s decision is likely to deprive the Refugee Convention of practical effect in this context.
The ruling also conflicts with the aims and purposes of the Convention, and international law more generally, in preventing gross abuses of fundamental rights. A refusal to participate in any task within a military force that commits war crimes, despite the risk of punishment, should be protected. On the tribunal’s view, someone imprisoned for refusing to fulfil an administrative role in an army that was in the process of committing genocide would not be suffering persecution.
Of course, the tribunal was arguably just following binding Court of Justice authority. Personally I would not criticise it for doing so, although counsel in the case say they will be seeking permission to appeal on this point (see Julian Norman’s very helpful comments below).
Returning to the situation in Ukraine, the tribunal made two findings that will make it very difficult to establish refugee status on the basis of conscientious objection to the conduct of the Ukrainian military.
First, the judges found that it was not likely that Ukrainian conscripts would be forced to directly or indirectly participate in committing breaches of IHL:
The Ukrainian military relies upon professional soldiers in its conflict with Russia-backed armed groups in the east of the country, in the Anti-Terrorist Operation zone (“the ATO”). Forced conscripts or mobilised reservists are not sent to serve in the Anti-Terrorist Operation zone (“the ATO”) and play no part in the conflict there. It is not reasonably likely that conscripts or mobilised reservists would provide indirect support to the Ukrainian military effort in the ATO, for example through working in an arsenal.
Second, it found that draft evaders were not likely to face criminal or administrative sanctions on return, reinforcing earlier country guidance:
It remains the case that, at the current time, it is not reasonably likely that a draft evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act. The guidance given by VB and Another (draft evaders and prison conditions) Ukraine CG  UKUT 79 (IAC) remains in force.
Our note on the VB case is here.
Analysis from counsel in the case
Julian Norman, who acted in the case alongside Anthony Metzer QC, agrees that the judgment is helpful in some respects but says that her clients plan to appeal:
This is a significant step forward in the field of refugee law for those who face unavoidable conscription into a military committing abuses. The Upper Tribunal made clear that such conscription may itself be persecutory, even if the penalty is not itself disproportionate, and the appellants welcome those findings.
The tribunal also found that the Ukrainian military was committing acts contrary to IHL, in that there were episodes of disappearance, torture and inhuman and degrading treatment, committed in a context of state indifference. However, it did not accept that reports by the UN High Commissioner for Human Rights Office of breaches of the principles of distinction, precaution and proportionality amounted to breaches of IHL.
On that basis the tribunal rejected the proposition that the appellants themselves would “participate” to the level of “engaging in” abuses, as they would not be sent to the front line, and dismissed their individual appeals.
The appellants will seek leave to appeal on the basis that the Upper Tribunal, having found that the obligation to serve in such a military was “offensive and abhorrent”, should have concluded that compelled participation short of the front lines would be capable of causing sufficiently serious harm to amount to persecution. They will also invite the Court of Appeal to rule on whether it was properly open to the tribunal to conduct its own assessment of the conflict in its approach to the breaches of the principles of precaution, proportionality and distinction, when not invited by either party to do so.
Finally, the full headnote. It is extremely long but worth reading for an overview of the applicable principles in this area.