Major Upper Tribunal judgment on draft evaders and Ukraine

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 [2020] 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.

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.

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 barrister, who acted in the given case 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.