(Editors’ note: This post also appears on Verfassungsblog.)
The European Union (EU) and its member states are reportedly considering offering asylum to Russian deserters. They and other states around the world have a legal obligation to do precisely that. Soldiers who flee punishment for refusing to fight in aggressive wars are properly understood as refugees under international law.
Russia’s Aggressive War
It is now widely recognized that the Russian Federation, with the assistance of Belarus, has initiated and is waging an aggressive war against Ukraine. The action puts both states in clear violation of article 2(4) of the United Nations Charter, the keystone of the contemporary legal order. Waging aggressive war is also a violation of the highest norms (jus cogens pp.66, 76) and a customary international crime, as articulated in the judgments of the International Military Tribunals at Nuremberg and Tokyo in the 1940s, the repeated consensus affirmation of the UN General Assembly, the 2017 agreement of the 123 States Parties to the International Criminal Court (ICC), and the domestic criminal codes of a number of states, including Russia (art. 353), Belarus (art. 122), and Ukraine (art. 437). Experts disagree about the precise boundaries of the crime, but this war does not test those boundaries. It implicates almost every act of aggression listed in the General Assembly (art. 3) and ICC Statute (art. 8 bis(2)) definitions, and its illegal character, gravity, and scale are unambiguous. Russia has advanced no credible justification for its actions.
The Refugee Status of Deserters
Article 1(A)(2) of the UN 1951 Refugee Convention, as updated by its 1967 Protocol, recognizes as refugees those who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [are] outside the country of [their] nationality and [are] unable or, owing to such fear, [are] unwilling to avail [themselves] of the protection of that country.” Importantly, as articulated in the UN High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status, this includes those who face punishment for desertion or draft-evasion when “the type of military action” in which they refuse to participate “is condemned by the international community as contrary to basic rules of human conduct.” (para. 171) This is understood to cover those who face punishment at home for having refused to perpetrate international crimes or other violations of international law implicating the basic rules of human conduct (e.g. here paras. 26, 29, 39, 51). Clarifying the scope of this principle, European Union Council Directive 2011/95 specifies that those facing prosecution for refusing to commit aggression (referenced in this context as a “crime against peace”) qualify as refugees (arts. 9(2)(e), 12(2)(a)).
Because criminal liability for aggression has generally been understood to attach only to leaders (art. 8 bis(1)), there has been some ambiguity as to whether these refugee protections attach to lower-level troops and officials who refuse to participate in aggressive wars (see here pp.865-867). The far better interpretation is that they do. To dismiss resisting troops’ claim to refugee status on the grounds that they are too far removed from the macro wrong of aggression to warrant protection from the burden of participating in it would be to fundamentally misunderstand the nature of the crime. Aggression’s wrongfulness inheres in the fact that it entails the widespread infliction of death, destruction, and human suffering without legal justification. That is why even legitimate territorial grievances may not be solved by the use of armed force. As the UN Human Rights Committee recognized in 2018, all killing inflicted in the course of an aggressive war constitutes a violation of the right to life (para. 70). This is true even when the aggressor forces comply meticulously with international humanitarian law—a standard that does not appear to have been met in the early days of this conflict. What is more, whether the armed conflict is contrary to the basic rules of human conduct should not be turned into a test about criminality. A grave breach of the UN Charter through a war of conquest like Russia’s actions in Ukraine is of the moral and legal character for which the refugee protections were built. It is immaterial who exactly has criminal liability for launching the war.
Recognizing the wrongfulness of the killing and violence inflicted in an aggressive war entails recognizing the burden of inflicting those wrongs on members of the armed forces compelled to carry it out, and accordingly triggers the protected status of those who face punishment for refusing to do it. They deserve protection no less than those who refuse to participate in genocide, crimes against humanity, or war crimes. States who grant that protection would act pursuant to their duty “to protect lives and to oppose widespread or systematic attacks on the right to life, including acts of aggression.” (para. 70).
Asylum and States’ Responsibility to Cooperate to Bring Aggression to an End – and Not to Aid that Aggression
In addition to communicating clearly that they will recognize Russian deserters as refugees, with full status as such under international law, states should also cooperate in sharing the responsibility of facilitating that protection. Article 41(1) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts identifies states’ obligation to “cooperate to bring to an end through lawful means any serious breach” of a jus cogens rule. Cooperating to facilitate the safe exit of those with the courage to refuse to kill, harm, and destroy in the service of an illegal end would undermine Russia’s aggressive campaign and thus contribute to realizing that obligation. Denying such refugee protections could qualify as rendering “aid or assistance” to Russia’s aggression in violation of Article 41(2).
Compatibility with the Prisoner of War Convention
It might be thought that granting asylum to deserting Russian troops would conflict with the requirements of the Prisoner of War Convention, at least insofar as those troops fall into the hands of Ukraine or any other adverse party in the armed conflict. Geneva Convention III provides in article 7 that Prisoners of War “may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention” and in article 118 that they are to be “released and repatriated without delay after the cessation of active hostilities.” As noted in the ICRC’s 2020 Commentary to the Conventions, “Articles 7 and 118 of the Third Convention, if interpreted and applied according to the letter, could mean that a prisoner of war may not refuse to be repatriated” (para. 1181). The Commentary clarifies, however, that this is the one area in which there is an “exception to an ‘absolutist’ application” of article 7, emphasizing that “prisoners of war must be permitted to make an individual decision as to whether they wish to be repatriated, an exception which has existed for as long as the Third Convention has been in force and which is intrinsically linked with the principle of non-refoulement,” as enshrined in human rights and refugee law (para. 1181, see also para. 4469). Indeed, the principle of voluntary repatriation and the related exception to the non-renunciation rule has long been reflected in state practice and in the determinations of multiple legal authorities (see also fn. 71).
When troops lay down their weapons and refuse to use them to prosecute an illegal war, they take significant personal risk to do the right thing by the law’s own lights. States have a collective duty to protect them in that endeavor.