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Commentary: Russians fleeing to avoid conscription in Ukraine war should be treated as refugees

Hundreds of thousands of Russians are fleeing their country in order to avoid Russia’s first mobilisation since the second world war. They must be given protection, says a law professor.

Commentary: Russians fleeing to avoid conscription in Ukraine war should be treated as refugees

Fearing the border may close "forever" after the Russian President's mobilisation order for the war in Ukraine, Russians are rushing to flee across Finland's Vaalimaa border crossing. (Photo: AFP/Alessandro Rampazzo)

YORK, England: People fleeing across borders is a hallmark of armed conflict. We first saw millions of Ukrainians flee the country when the Russians invaded Ukraine in February this year. Now there are reports of hundreds of thousands of Russians fleeing their country in order to avoid Russia’s first mobilisation since the second world war.

So how should the West respond to young Russian men fleeing to avoid military service? Politically and legally, according to international law, they must be given protection.

Conscription into military service has a long history dating back at least to ancient Egypt. But it has been slowly disappearing with the professionalisation of the world’s militaries. However, conscription remains a rite of passage in more than 100 countries – including Russia which has a long and difficult practice of conscription.

Refusal to perform military service also has a long history. In Europe, Saint Maximilian of Tebessa (in Algeria) was executed in 295 AD for refusing to serve in the Roman legions because of his religious beliefs – the first record of a conscientious objector.

In more recent decades, tens of thousands of Americans fled to Canada to avoid the Vietnam War, Kurds have sought protection in the UK to avoid service in Turkey’s war against them, and US soldiers have deserted to avoid service in the invasion of Iraq.

PROVIDING PROTECTION UNDERMINES RUSSIA'S WAR IN UKRAINE

Today, international human rights law and international humanitarian law impose limits on conscription and international refugee law requires states to offer protection to some of those who flee it.

While border states are worried about the mass influx of young Russian men, there are a range of practical reasons for other countries to provide Russians fleeing conscription with protection.

Most obviously, providing sanctuary abroad undermines Russia’s ability to raise an army to continue its fight in Ukraine. It also further strengthens the Russian expatriate community and its opposition to the invasion.

European politicians from the start of the conflict have debated providing special allowances for Russians deserting from or evading military service.

Beyond strategic self-interest, there is a requirement to offer protection to at least some of those who flee based on the international humanitarian, human rights and refugee treaties we have signed.

In general, human rights law prevents states from sending individuals back to cruel and inhuman conditions. And, while refugee law doesn’t automatically protect Russians evading conscription, it has historically recognised a range of circumstances in which individuals fleeing conscription are entitled to protection.

WHAT THE LAW SAYS

Applying these obligations to the case of Russians fleeing conscription is complicated (recent UK government guidance on asylum seekers fleeing conscription runs to 14 pages) but we can identify at least three overlapping categories of individuals entitled to our protection.

Firstly, a person is entitled to protection if their conscription is extralegal, discriminatory or results in inhuman treatment. Within the occupied territory of Ukraine, it is illegal (and a war crime) for civilians to be conscripted into military operations against their own country, even by the proxy governments in power (like the self-declared Luhansk People’s Republic).

There is also growing evidence that the way in which conscription is happening in Russia (like in so many other places) is not just haphazard but targeted. Protesters who demonstrate against conscription have been immediately served with conscription orders and ethnic minorities seem disproportionately at risk of conscription.

Once in the military, some recruits face more than simply the risk from battle. Hazing can be extreme and living conditions are often desperate.

Secondly, a person is entitled to our protection if their conscription will have a substantial possibility of involving them in internationally condemned acts. This includes war crimes and crimes against humanity. From Bucha to Izyum, evidence is emerging of the execution and torture of civilians and prisoners of war.

FORCED TO BE ACCOMPLICE TO WAR CRIMES

Although it is dangerous to generalise, the commission of such acts seems so widespread (and committed with such impunity) that there is a substantial possibility that any Russian soldier in the Ukraine could forcibly become an accomplice to such crimes.

Thirdly, a person is entitled to our protection because of their personal beliefs or circumstances. Like Saint Maximilian, many hold religious beliefs that prohibit taking up arms, regardless of whether the war is one of self-defence or aggression. Such conscientious objection has long been recognised as providing a ground for protection as a refugee.

Others may have personal circumstances that make military service particularly hazardous. Racism, religious discrimination and homophobia are endemic to the Russian military, resulting in targeted mistreatment and deliberately placing such individuals into more risky situations.

But while it is clear that we must offer protection to large numbers of Russians fleeing conscription, international law and policy have their limits. While the numbers are likely to be much smaller and the politics more difficult, we must remember that international law also applies to Ukrainian men fleeing conscription.

But international law also has its limits, as revealed by it use of oxymoronic terms like “military justice” and “law of war”. When it comes to conscription, we have also yet to fully resolve the blatant sexism embedded in the Russian (and more widespread) practice of conscripting only men.

In practical terms, the ability of potential conscripts to flee has also been limited by our desire to collectively punish Russians for the invasion through the imposition of border closures and stricter visa requirements. The shift from refugee flows of Ukrainian women and children to Russian men will inevitably affect public opinion in Europe and beyond.

In order to live up to the international human rights obligations that Western countries often cite to underpin their support of Ukraine, the West must publicly commit to providing refuge to those ordinary Russian men who are opposed the war and want to avoid conscription.

Martin Jones is a professor of international human rights law at York Law School, University of York. This commentary first appeared on The Conversation.

Source: Others/aj
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