Status and Treatment of Deserters in International Armed Conflicts [1 ed.] 9789004308848, 9789004308831

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Status and Treatment of Deserters in International Armed Conflicts

International Humanitarian Law Series VOLUME 47

Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiři Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare – questions of application of the various legal regimes for the conduct of armed conflict – issues relating to the implementation of International Humanitarian Law obligations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law. The titles published in this series are listed at brill.com/ihul

Status and Treatment of Deserters in International Armed Conflicts By

Heike Niebergall-Lackner

LEIDEN | BOSTON

Cover illustration: Eastern Front, Russian campaign 1941/42: Deserters from the Red Army. Copyright ANP, The Netherlands. Library of Congress Cataloging-in-Publication Data Names: Niebergall-Lackner, Heike, author. Title: Status and treatment of deserters in international armed conflicts / By Heike Niebergall-Lackner. Description: Leiden : Brill Nijhoff, 2016. | Series: International humanitarian law series ; volume 47 | Includes bibliographical references and index. | Description based on print version record and CIP data provided by publisher; resource not viewed. Identifiers: LCCN 2015045122 (print) | LCCN 2015044036 (ebook) | ISBN 9789004308848 (E-book) | ISBN 9789004308831 (hardback : alk. paper) Subjects: LCSH: Desertion, Military. | Military deserters--Legal status, laws, etc. | War (International law) Classification: LCC K4746.D47 (print) | LCC K4746.D47 N54 2016 (ebook) | DDC 341.6--dc23 LC record available at http://lccn.loc.gov/2015045122

Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1389-6776 isbn 978-90-04-30883-1 (hardback) isbn 978-90-04-30884-8 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.





Meinen Eltern

Contents Acknowledgements xi Introduction xii 1 Defining Desertion 1 A When Soldiers Stop Fighting 1 B Desertion in Domestic Military Law 4 I Definitions of the Military Offence 5 Ii Punishment Ranges 14 IiI Summary 17 C Desertion in the Context of International Law 19 I International and Multinational Forces 19 Ii Desertion in International Law Literature 20 Iii Summary 22 D The Use and Meaning of the Term Desertion in the Present Study 23 2 The Deserter and His or Her Home Country 24 A Desertion in Past Conflicts – A History of Severe Punishment and Reluctant Forgiveness 24 I Punishment of Deserters 24 1 German Deserters during World War ii 25 2 Soviet Deserters during World War ii 28 3 u.s. Deserters during World War ii 28 4 Contemporary Conflicts 30 Ii Acts of Clemency 30 1 Amnesties 31 2 Pardons 47 3 Clemency Denied 48 Iii Legal Rehabilitation 51 1 Rehabilitation of Wehrmacht Deserters 52 2 Rehabilitation of Deserters of the Nationale Volksarmee 55 3 Dutch Deserters during the Indonesian War of Independence 59 Iv Summary 60

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B  Contemporary Standards of International Law and their Impact on the Punishment of Deserters 62 I Procedural Guarantees for Criminal Trials 65 1 The Prohibition of Extra-judicial Executions 65 2 The Right to a Fair Trial 66 3 Derogation in Time of War 70 4 Summary 74 Ii The Right to Conscientious Objection to Military Service 75 1 Recognition of a Right to Conscientious Objection 76 2 Impact on the Right to Punish Deserters 86 3 Summary 88 Iii International Criminal Law 88 1 Liability for Crimes under International Law 89 2  Disobedience to Unlawful Orders in National Military Law 101 3  The Paradigm of a Legitimate Desertion Under International Law 107 4 Summary 114 Iv Conclusion 115 3 The Deserter and the Enemy Party 117 A Treatment in Past Conflicts – Contempt, Strategic Use and Cautious Solidarity 120 I Prisoner of War Status 121 1 Deserters Who Crossed over to, or were Captured by the Enemy 121 2 Defectors Who were Re-captured by their Home Country 122 Ii Use of Enemy Deserters in the Military Forces 123 Iii Repatriation of Deserters 126 1 Repatriation after World War i 127 2 Repatriation of Allied and Russian Prisoners of War after World War ii 129 3 Repatriation of Wehrmacht Deserters 131 Iv Summary 133 B The Protection of Deserters under Contemporary International Humanitarian Law 134 I The Deserter’s Legal Status under International Humanitarian Law 136 1 Primary Status after Desertion 136 2 Secondary Status when in Enemy Hands 137 3 Summary 146

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Rights and Obligations of the Enemy Party with Regard to the Deserter 148 1 Use in Enemy Forces 149 2 Criminal Prosecution 152 3 Internment and Other Security Measures 154 4 Notification of the Deserter’s Home Country 155 5 Transfer to Another Power 157 6 Repatriation 158 7 Prohibition of Refoulement Under International Human Rights Law 163 8 The Treatment Afforded to Women Deserters 172 Iii Conclusion 174 4 The Deserter in a Country of Refuge 177 A The Deserter as a Beneficiary of International Protection 177 I Territorial Asylum 179 1 Right to Grant Asylum 179 2 Duty to Grant Asylum 180 Ii Refugee Status According to the Geneva Refugee Convention 181 1 Well-founded Fear of Persecution 182 2 Persecution Related to Convention Grounds 202 3 Exclusion on the Basis of Article 1 F of the Geneva Refugee Convention 205 4 Summary 206 Iii Refugee Protection at a Regional Level – the European Example 207 1 Limitation to Third-country Nationals 209 2 Well-founded Fear of Persecution 210 3 The Shepherd Case 212 Iv Complementary or Subsidiary Protection 219 1 Subsidiary Protection Status 219 2 Temporary Protection Status 221 v The Prohibition of Refoulement 223 1  Non-refoulement under the Geneva Refugee Convention 224 2 The Prohibition of Refoulement at the Regional Level 227 3 Non-refoulement in a Human Rights Context 228 4  Non-refoulement as a Principle of Customary International Law 229 vI Conclusion 230

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B C

Obligations under the Law of Neutrality 232 I Duty to Intern Foreign Troops 233 Ii Summary 234 Extradition of a Deserter to His Home Country 234 I Duty to Extradite 235 Ii Principles of Extradition Law 236 1 Military-offence Exception 238 2 Political-offence Exception 240 3 The Death-penalty Exception 245 Iii Conclusions Regarding the Obligation to Extradite 246

5 Conclusion and Outlook 248 Bibliography 255 Index of Cases 270 Index 272

Acknowledgements The study contained in this book is the dissertation I submitted to the law faculty of the Johann Wolfgang Goethe-Universität Frankfurt am Main as part of the doctoral degree I obtained in June 2015. As such, it represents the completion of a project that I began many years ago, abandoned for some time, and then eventually revived and finished under the invaluable guidance of Prof. Dr. Dr. Rainer Hofmann. I am deeply grateful to Professor Hofmann for his stimulating advice, critical suggestions and continuous support over the past years. I would also like to thank Prof. Dr. Wolff Heintschel von Heinegg for his support during early stages of my work on this study, and Prof. Dr. Michael Bothe for his insightful criticism as a second examiner of the dissertation. This study was written before I joined the icrc. It reflects my views alone and not necessarily those of the icrc. Throughout the years I received help and encouragement from many people. In particular, I would like to thank Ayda and Sergio Duroux, Kirsten Young and Eve La Haye for their friendship and support; and Christiane Wandscher for her enthusiasm and assistance at a crucial moment. Very special thanks go to Norbert Wühler for his trust and continued support, which allowed me to balance my studies with my work. My deep gratitude goes to my family, above all my parents, who have always enabled and supported my ambitions without hesitation. It is thus with sincere appreciation that I dedicate this book to my mother and to the memory of my father. I am grateful to my sister-in-law, Gudrun, and my father-in-law, Karl, for their encouragement. Special thanks go to my children Luise and Emil for their smiles and happiness whenever I returned home from studying. Finally, my deepest thanks go to my husband. This study would never have been finished but for the loving support and encouragement of Johannes who, with the humour and understanding that only a writer can muster, helped me through it all until completion.

Introduction Desertion is a criminal offence and regarded by the military as one of the severest forms of violation of a soldier’s duty. Desertion has also proved to be a controversial and emotionally-charged socio-political issue. While little attention is usually paid to desertion in peacetime, emotions can run high during times of conflict or crisis, when a nation relies on its military to secure peace, or even fight for its survival. The reasons why a soldier deserts are manifold and, despite research by psychologists, sociologists, historians and lawyers, it has proved impossible to explain comprehensively the various psychological as well as sociological aspects that might underlie the act of desertion even in individual cases. Motives range from concerns about the conflict’s legality, legitimacy or justification to very personal ones, such as religious conviction, fear, exhaustion and homesickness. Each act of desertion is likely to be based on a number of these motivations and considerations.1 How desertion is judged within the military and in civil society ranges from utter disdain to glorification and depends on personal attitudes towards the military and on the context and nature of the conflict itself. For some, the deserter is nothing but a coward or traitor, who turns his back on his country and comrades. For others, the deserter is a pacifist hero, and the act of desertion is seen as a form of political resistance that should not be punished.2 A slogan used by the peace movement in Germany in the 1980s went as follows: Stell Dir vor, es ist Krieg und keiner geht hin.3 While taking the idea to an almost comical extreme, the slogan nevertheless illustrates that the peace movement saw conscientious objection and desertion as tools for opposing war and achieving peace. While desertion generally has not received much attention in the past, more recently the issue has been the focus of a number of studies that have analysed its sociological, psychological, as well as historical aspects, much of which is beyond the scope of this study.4 1 Wolfgang Benz, Verweigerung im Alltag und Widerstand im Krieg, p. 4. 2 Rainer Beckmann, Der Streit um die Rehabilitierung der Wehrmachtsdeserteure, 2 NZWehrr 1998, p. 46. 3 This slogan originates from the English poem The People, Yes, which was written by Carl Sandburg in 1936. The corresponding line reads: “Sometimes they’ll give a war and nobody will come.” 4 See for example: Ulrich Bröckling/Michael Sikora (eds.), Armeen und ihre Deserteure – Vernachlässigte Kapitel einer Militärgeschichte der Neuzeit, Göttingen, 1998; Martin Stief,

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This study looks at desertion from the standpoint of international law. In what ways does international law regulate the treatment of soldiers who unilaterally withdraw from their military duties without authorisation during an international conflict? Can deserters benefit from the protection afforded to individuals under international humanitarian law and international refugee law? To what extent are their status and treatment dependent on the legality of the conflict they are fleeing? These questions are discussed against the background of the duties of soldiers under international law, as well as the soldiers’ criminal responsibility under international law in the event of a violation of these duties. Traditionally, soldiers had to obey orders without question. For centuries, the unchallenged wisdom of successful warfare has been that soldiers must obey rather than think. Demanding such unconditional discipline left little or no room for the individual soldier to assess the sense or legality of an order. The crimes of World War ii changed this thinking. International law today not only distinguishes between lawful and unlawful use of force but also between lawful and unlawful orders, and rejects obeying a superior’s order as a defence to the criminal liability of soldiers for international crimes, such as war crimes, or crimes against humanity. As such, it obliges the individual soldier to evaluate independently orders received during a conflict. It is the accountability of the soldier prescribed by modern international law that makes the examination of the status of deserters under that law particularly interesting. The individual soldier’s legal responsibility to assess his own as well as his superior’s actions can easily conflict with the realities of combat and military life. Military conflicts in recent decades have shown that, in practice, soldiers often find themselves in a personal dilemma over the demands of military discipline on the one hand and the demands of international law on the other. As examples throughout this study will show, in such situations desertion might be, or might appear to the soldier to be, the only way out of this dilemma. The examination starts with an overview of the criminal-law provisions contained in domestic military law and defines the term ‘deserter’ for the purposes of this study in Chapter 1. Chapter 2 examines the rights and duties of the home country vis-à-vis deserters. If deserters are seized by their own side and brought to account for their dereliction of duty under domestic military and criminal law, then their Desertion im geteilten Berlin. Bekämpfung von Fahnenfluchten aus den Reihen der Bereitschaftspolizei im Jahr des Mauerbaus, Berlin, 2011, who provides additional references in footnote 26.

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­ unishment will, first and foremost, be determined by the laws of their own p country. In such cases, the question arises as to the extent to which the home country is bound by international law when punishing deserters. What are the relevant standards of international law that provide certain minimum guarantees for deserters during times of armed conflict? To what extent is it relevant that the conflict in which the country is engaged violates international law? Chapter 3 discusses the situation of deserters who end up in the hands of the enemy, because they ran over or fell into the hands of the other side during an international armed conflict. In these cases, their legal status and hence the way in which they are to be treated by the enemy are determined by international humanitarian law, most notably the four Geneva Conventions and Additional Protocol I. Are deserters to be considered prisoners of war? What protection does international humanitarian law afford to them when in enemy hands? Chapter 4 deals with the situation of deserters who succeed in fleeing to a third country not involved in the conflict. In this case, the protection of thirdcountry nationals under international law becomes relevant. Do deserters have refugee status under the 1951 Refugee Convention? Or does a subsidiary protection status apply? And, connected to this, the question arises as to whether deserters can be extradited to their home country. Finally, Chapter 5 attempts an evaluation of the legal analysis and summarises the questions that remain unclear or inconsistent in international law with regard to the status and treatment of deserters during international armed conflicts. The study focuses on international armed conflicts, i.e. those between two sovereign states, and does not address the rights and duties of states and nonstate armed groups during non-international armed conflicts. While desertions are known to have occurred in every army since ancient times, both in times of peace and war, this study does not attempt to paint a comprehensive or even representative picture of this phenomenon throughout history. Nevertheless, reference is made to certain examples from the twentieth century when desertion was a prominent issue, because of either the high desertion rate or the legal questions and political repercussions that desertions provoked during and after the conflict. Such reference, particularly in relation to historic examples, relies on secondary literature only; no original sources have been consulted.

chapter 1

Defining Desertion A

When Soldiers Stop Fighting

Desertion is just one of many reasons why soldiers stop fighting for their country during an armed conflict.1 They may be incapacitated by injury or die during battle; they may surrender to the enemy on the battlefield; or they may be captured by enemy forces. Or, they might secretly abandon their troops, go into hiding, or run over to the other side and offer their support to the enemy. Finally, before being sent to the battlefield, soldiers might object to military service in general, or to a particular military engagement, based on previous experiences, or the circumstances surrounding an armed conflict. If the decision to stop fighting is a personal one, there may be different reasons and motives behind it. These include political, ethical and religious convictions, concerns for personal safety, worry about family at home, homesickness, fear, battle fatigue and physical weakness. But the soldier may also have strategic thoughts about the sense or senselessness of continuing to fight. In practice, it can be difficult to assess both why and how soldiers stopped fighting, as the underlying subjective and objective factors are hard to ascertain in retrospect. This is particularly true for the subjective factors, given that it is unlikely that the decision to stop fighting was based on a single motive. In addition, soldiers might be reluctant to talk openly about their motives and might even conceal some of them in order to protect themselves in the event of being questioned in court, by the enemy, or by border guards of countries where they seek refuge.2 Deserters appearing before German courts-martial during World War ii had to avoid any suggestion of anti-fascism or political opposition if they were to escape the death penalty.3 Not surprisingly, the most common motives listed in the World War ii records of German courts-martial are ‘missing one’s mother, family, wife or girlfriend’, or fear of punishment for 1 For other aspects of ‘how fighting ends’, see: Holger Afflerbach/Hew Strachan, A ‘True Chameleon’, Some Concluding Remarks on the History of Surrender, p. 436. 2 Rainer Beckmann, Der Streit um die Rehabilitierung der Wehrmachtsdeserteure, 2 NZWehrr 1998, p. 63. 3 Volker Ullrich, Den Mut haben, davonzulaufen, in: Gehorsam bis zum Mord?, Zeit-Punkte No. 3, 1995, p. 66.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308848_002

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other (less grave) military offences. In contrast, the interrogation records of the border police of countries where deserters sought refuge, such as Switzerland or Sweden, include political motives, as it was advisable to adopt an anti-fascist attitude in order to be recognised as a political refugee who rejected Nazi Germany and its war.4 The example of Soviet soldiers who ended up serving in the Wehrmacht during World War ii illustrates how difficult it can be to determine in retrospect whether a soldier was captured, defected, or surrendered. While some ran away and joined the Wehrmacht out of hatred for Stalin’s Russia and with the political motivation to overthrow the Soviet regime, others offered their service to the German side in the simple hope of better treatment in the Wehrmacht than in the Red Army. Many others had no intention of defecting initially but, after having been taken prisoner, they were forced out of starvation to don German uniforms, or were persuaded by promises of better living conditions in the army than in German prisoner camps.5 Once the war had ended, it was impossible to establish fully what initially had happened to the thousands of Soviets found on the territories of the Western Allies6 – either because they had been captured in German uniforms by the Allied Forces, or because they had been liberated from German prisoner of war or work camps – and the question of their treatment quickly became a thorny issue between the Allies and the Soviet Union.7 How their home countries judge soldiers who are discovered on the enemy side either actively fighting in their ranks or as prisoners of war has always been influenced by culture, as well as political and military agendas. In some cultures, being captured is considered dishonourable, or even on a par with treason.8 Particularly in times of war, countries have applied very broad definitions to ‘desertion’9 and have used the term politically to denounce soldiers 4 See: Franz Seidler, Fahnenflucht, p. 268 and pp. 311–319, generally expressing doubts that any reliable conclusions can be drawn about desertion motives from statements made afterwards. 5 Antony Beevor, Stalingrad, Preface xxii. 6 Alexander Dallin, Book Review: Pawns of Yalta: Soviet Refugees and America’s Role in Their Repatriation by Mark Elliot, Political Science Quarterly, Vol. 98, No. 1, 1983, p. 139. 7 On the difficult negotiations regarding repatriation of Soviet citizens after World War ii, see: Mark Elliot, The United States and Forced Repatriation of Soviet Citizens, 1944–47, Political Science Quarterly, Vol. 88, No. 2, 1973, pp. 253–275. See also the discussion on repatriation in past conflicts in Chapter 3, A iii. 8 Knut Dörmann / Laurent Colassis, International Humanitarian Law in the Iraq Conflict, p. 336. 9 Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 13.

Defining Desertion

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who blurred the distinction between desertion and treason. The Nazi regime treated every soldier who surrendered as a traitor and deserter.10 Similarly, the Soviet Union’s demand of “unqualified wartime devotion”11 left no room for surrender to, or capture by the enemy. Both the Red Army field manual and Stalin’s Decree No. 270 of 1942 considered surrender and being captured alive by the enemy tantamount to treason and desertion, irrespective of the soldiers’ motives or reasons.12 During the Korean War, the u.s. adopted a policy that regarded as deserters all u.s. soldiers who converted to Communism during their internment in Korea and refused to be repatriated.13 More recent cases demonstrate that the legal status of soldiers refusing or ceasing to fight for their country remains contentious, as does the question of how different scenarios are to be judged. An example is the 2011 case of Bayatyan v. Armenia14 before the European Court of Human Rights, which concerned the conviction of an Armenian national, Mr. Bayatyan, who refused to perform military service on grounds of conscience. Mr. Bayatyan, a Jehovah’s Witness, claimed to be a conscientious objector, while his home country considered him a draft-evader and sentenced him to prison.15 Another example in this context is provided by the refusenik movement in Israel. The movement consists of soldiers from the Israeli Defense Force (“idf”) who, based on moral and political grounds, defy orders to take part in specific assignments related to Israel’s occupation of the Palestinian population of that region. Their refusal is selective, as these soldiers generally declare their willingness to carry out other military duties. While such ‘selective refusal’ could be classified as a form of conscientious objection, the Israeli government does not recognise it as such, and soldiers are usually tried for insubordination and receive prison sentences.16 Bearing in mind the practical difficulties in ascertaining the facts and motives behind a soldier’s decision to stop fighting during an armed conflict, 10

Holger Afflerbach and Hew Strachan, A ‘True Chameleon’, Some Concluding Remarks on the History of Surrender, p. 436. 11 Mark Elliot, The United States and Forced Repatriation of Soviet Citizens, 1944–47, Political Science Quarterly, Vol. 88, No. 2, 1973, p. 260. 12 Ibid. p. 258/259. 13 Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 13. 14 ECtHR, Bayatyan v. Armenia, Application No. 23459/03 of 07.07.2011. 15 For more on this case, see Chapter 2, B ii 1 (a) (2). 16 Peretz Kidron, Refuseniks! Israel’s Soldiers of Conscience, pp. 2–4. See also: Christa Luter­ bacher, Die Flüchtlingsrechtliche Behandlung von Dientsverweigerung und Desertion, p. 172, with reference to various newspaper articles on the refusenik movement in footnote 2.

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and being aware that the distinction between the different scenarios can be particularly hard to make on the battlefield, the following sections look at the legal definitions of desertion in domestic military laws. The examples presented give an overview of the subjective and objective elements of the offence and an understanding of what, in the eyes of national governments, make soldiers who cease fighting deserters. B

Desertion in Domestic Military Law

Desertion has been one of the classic military offences since ancient times. Countries have always been aware of the potential dangers associated with the act of desertion and have tried to combat any sign of disintegration within their forces to protect morale and discipline and thus the vigour of their military forces. The term ‘desertion’ comes from Latin, and refers to the act of a desertor, a treacherous runaway and a traitor.17 Roman military law used a number of terms to describe the different factual circumstances under which a soldier could absent himself from his troops without permission: emansio, desertio, as well as fugitivi and transfugae. Emansio connoted the less serious offence of temporary absence, where a soldier returned to his unit voluntarily after a certain time. Desertio referred to a longer unauthorised absence from the army, or an absence that was terminated against the will of the soldier, e.g. because the deserter was captured by his own side. Desertio covered both cases in which the runaway soldier was forced to return and those in which the soldier never returned to his unit. In the latter group, Roman law further distinguished between fugitivi (fugitives), i.e. those who went into hiding and did not return at all, and the transfugae, i.e. soldiers who had either voluntarily gone over to the enemy or had fallen into enemy hands involuntarily, by being taken prisoner, but had not returned despite having had a chance to escape.18 17

The Oxford English Dictionary defines desertion in law as the “wilful abandonment of an employment or of duty, in violation of a legal or moral obligation; esp. such abandonment of the military or naval service.” As such, the deserter is “one who forsakes or abandons a person, place or cause; usually with implied breach of duty or allegiance.” In the military context, deserter refers to “a soldier or seaman who quits the service without permission, in violation of oath or allegiance.” The Oxford English Dictionary, Vol. iii D-E, 1978, p. 241. 18 Definitions are taken from: Lothar Wierschowski, Roma naturaliter bellicosa? – Kriegs­dientsverweigerung und Fahnenflucht im Römischen Reich, p. 141.

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i Definitions of the Military Offence The following overview lists the provisions regarding desertion in either the national penal codes or military laws of Germany, Switzerland, the United Kingdom, France, the Republic of Serbia, the United States, Colombia, China, India, Malaysia, Ethiopia and the Republic of the Sudan. While these examples do not provide a comprehensive comparative overview, they do represent a broad political, cultural, economic and demographic range of countries. Germany The German Military Penal Code (Wehrstrafgesetz – “WStG”),19 in its section on acts contrary to the duty to render military service, distinguishes between absence without leave and desertion, with intent to permanently evade military service being required for the latter.20 While the Latin term desertion is often used in the German documentation on the subject, the WStG itself uses the more Germanic term Fahnenflucht, which literally means, “fleeing the flag.” The term Fahnenflucht has the connotation of not only abandoning your duties but also cutting ties with your entire country (represented by the flag). Fahnenflucht is a special crime (Sonderdelikt) that can only be committed by soldiers who are subject to the military service duties under German law usually pursuant to a military oath.21 According to § 16 (i) WStG, a soldier commits Fahnenflucht if he leaves his unit or place of duty, or remains absent from it, without authorisation, with the intention of avoiding his military obligations permanently, or for the duration of an armed engagement, or in order to terminate his military service: Wer eigenmächtig seine Truppe oder Dienststelle verlässt oder ihr fernble­ ibt, um sich der Verpflichung zum Wehrdiesnt dauernd oder für die Zeit eines bewaffneten Einsatzes zu entziehen oder die Beendigung des 19

Wehrstrafgesetz (WStG) of 24.05.1974, BGBl. 1974 i, p. 1213, last amended on 22.04.2005, BGBl. 2005 i, p. 1106. 20 Absence without leave (Eigenmächtige Abwesenheit) is defined in § 15 WStG as follows:  (1) Wer eigenmächtig seine Truppe oder Dienststelle verlässt oder ihr fernbleibt und vorsätzlich oder fahrlässig länger als drei volle Kalendertage abwesend ist, wird mit Freiheitsstrafe bis zu drei Jahren bestraft.  (2) Ebenso wird bestraft, wer außerhalb des räumlichen Geltungsbereichs dieses Gesetzes von seiner Truppe oder Dienststelle abgekommen ist und es vorsätzlich oder fahrlässig unterlässt, sich bei ihr, einer anderen Truppe oder Dienststelle der Bundeswehr oder einer Behörde der Bundesrepublik Deutschland innerhalb von drei vollen Kalendertagen zu melden. 21 Joachim Schölz, Wehrstrafgesetz – Kommentar, § 16, Margin No. 2.

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Wehrdienstverhältnisses zu erreichen, wird mit Freiheitsstrafe bis zu fünf Jahren bestraft. The WStG therefore defines desertion in subjective terms, primarily on the basis of the attitude and intent of the offender. One essential element of the offence is that the soldier wishes to sever his ties with the armed forces permanently, and not just temporarily – he wishes to cease being a soldier in the German federal army.22 Switzerland The Swiss Military Criminal Code defines desertion and refusal to carry out military service in Article 81, Chapter 1. According to this Article a soldier will be punished with up to 18 months in prison, or a fine in cases where he does not report for duty, or leaves his place of duty without authorisation, or where he does not obey a military order given to him during his service, if his intention is to refuse to carry out his military service: Mit Freiheitsstrafe bis zu 18 Monaten oder Geldstrafe wird bestraft, wer in der Absicht, den Militärdienst zu verweigern: a. nicht am Orientierungstag oder an der Rekrutierung teilnimmt; b. eine Militärdienstleistung, zu der er aufgeboten ist, nicht antritt; c. seine Truppe oder Dienststelle ohne Erlaubnis verlässt; d. nach einer rechtmässigen Abwesenheit nicht zurückkehrt; e. nach Antritt der Militärdienstleistung einem an ihn gerichteten Befehl in Dienstsachen nicht gehorcht.23 United Kingdom The British Armed Forces Act 2006 also requires intent to avoid military duties and defines desertion in Article 8, Sections 1 and 2 as follows: (1) A person subject to service law commits an offence if he deserts. (2) For the purposes of this Act a person deserts if he is absent without leave and (a) he intends to remain permanently absent without leave; or (b) he intends to avoid a period of active service.24 22 23 24

Ibid. § 15, Rdnr. 2. Schweizerisches Militärstrafgesetz (MStG) of 13 June 1921 (last amended on 1 January 2011), available at: http://www.admin.ch/ch/d/sr/321_0. Armed Forces Act 2006 (c. 52), available at: http://www.legislation.gov.uk/ukpga/2006/52/ pdfs/ukpga_20060052_en.pdf.

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France The French Military Code of Justice deals with desertion in its chapter on violations of the military order. The provisions relating to desertion and the punishment ranges for the offence span 15 articles.25 The definition of the offence can be found in Article L321-2, which states: Est déclaré déserteur […] qui : (1) S’évade, s’absente sans autorisation, refuse de rejoindre sa formation de rattachement ou ne s’y présente pas à l’issue d’une mission, d’une permission ou d’un congé; (2) Mis en route pour rejoindre une autre formation de rattachement située hors du territoire national, ne s’y présente pas; (3) Se trouve absent sans autorisation au moment du départ pour une destination hors du territoire national du bâtiment ou de l’aéronef auquel il appartient ou à bord duquel il est embarqué. […] Dans les cas prévus au (1), le militaire est déclaré déserteur à l’expiration d’un délai de six jours à compter du lendemain du jour où l’absence sans autorisation est constatée ou du lendemain du terme prévu de la mission, de la permission ou du congé. Aucun délai de grâce ne bénéficie au militaire se trouvant dans les circon­ stances des (2) et (3). En temps de guerre, tous les délais mentionnés au présent article sont réduits des deux tiers. Under the French Military Code of Justice, therefore, the offence is committed on the basis of absence without authorisation for six days, or two days during wartime; intent to remain away permanently is not an additional requirement. Republic of Serbia The 2005 criminal code of the Republic of Serbia26 mentions desertion in Article 399, in a chapter dealing with criminal offences against the army: (1) A serviceman who is absent without leave from his unit or service for minimum five days, or less if such absence occurs several time 25 26

See Articles L321–2 to L321–21 of the Code de Justice Militaire (nouveau), consolidated version of 25 August 2012, available at http://www.legifrance.gouv.fr/initRechCodeArticle.do. Criminal Code of the Republic of Serbia, Official Gazette of rs, Nos. 85/2005, 88/2005, 107/2005, translated by the osce Mission to Serbia and Montenegro, February 2006, available at: http://www.legislationline.org/documents/section/criminal-codes/country/5.

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(2)

(3) (4) (5) (6) (7)

in one year, or who deserts his unit or service during execution of an important assignment, or during heightened combat readiness of the unit shall be punished with fine, or imprisonment up to one year. A serviceman who hides in order to evade service in the army or who is absent without leave from his unit or service for more than thirty days shall be punished by imprisonment of three months to three years. A serviceman who leaves the country or remains abroad in order to evade military service shall be punished by imprisonment of one to eight years. A serviceman who prepares to desert abroad in order to evade military service shall be punished by imprisonment of three months to three years. Whoever calls upon or instigates several persons to commit the offence specified in paragraph 1 of this Article shall be punished by imprisonment of one to eight years. Whoever calls upon or instigates several persons to commit the offence specified in paragraphs 2 and 3 of this Article shall be punished by imprisonment of two to twelve years. The offender specified in paragraphs 2 and 3 who voluntarily reports to a competent government authority to discharge his military service may receive mitigation of punishment.

United States The Uniform Code of Military Justice (“ucmj”)27 of the u.s. lists desertion in its punitive articles, i.e. those offences that, if committed, can be tried by courtmartial. Article 85 defines the offence as follows: (a) Any member of the armed forces who – (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or

27

Uniform Code of Military Justice, ucmj 64 Stat. 109, 10 u.s.c. Chapter 47, available at http://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47.

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9

(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States is guilty of desertion. (b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. According to the ucmj, the intent to remain away permanently is the key element of the offence, and the one that distinguishes desertion from absence without leave defined in Article 86 of the ucmj.28 Colombia The Colombian Military Penal Code deals with desertion in Articles 128 to 131.29 Similar to the French Military Code of Justice, committing the offence does not require intent to permanently evade military service, but it is tied to an unauthorised absence of more than five days. Article 128 provides: Whoever exhibits any of the following conducts while incorporated in military service shall be subject to a period of detention from six (6) months to two (2) years: 1. Leaves the location where he is serving without permission for more than five (5) consecutive days. 2. Does not appear before the respective superior officers within five (5) days of the completion date of a period of leave, a leave of absence, sick leave, a permit, the termination of a commission or other service activity, or to report for transfer.

28

29

Article 86 ucmj provides: “Any member of the armed forces who, without authority – (1) Fails to go to his appointed place of duty at the time prescribed; (2) goes from that place; or (§) absents himself or remains absent from his unit, organization or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct.” Ley N° 522 por medio de la cual se expide el Código Penal Militar [ ], 12 August 1999, available at: http://www.refworld.org/docid/4c56c1912.html.

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3.

Breaches without authorisation the camp limits indicated by the unit commander during military operations. 4. The prisoner of war who regains his freedom on national territory and does not present himself within the time period stipulated in the preceding paragraphs. 5. The prisoner of war who regains his freedom on foreign soil and does not present himself to any consular authority, or does not return to national territory within a period of thirty (30) days, or after having returned to national territory does not report to the military authority within five (5) days. Those convicted of this offence shall continue their military service for the remainder of the time, once the sentence has been completed.30 China In China, desertion is mentioned in Chapter 10 of the Criminal Law of the People’s Republic of China,31 which deals with criminal violations of duty by military personnel. As well as desertion, these include surrender to the

30

Geneva Center for the Democratic Control of the Armed Forces, Military Justice Legislation Model, Republic of Colombia, Toolkit- Legislating for the Security Sector 5.4, 2010, p. 29. The Spanish original reads as follows: “Incurrirá en arresto de seis (6) meses a dos (2) años, quien estando incorporado al servi­ cio militar realice alguna de las siguientes conductas: 1. Se ausente sin permiso por más de cinco (5) días consecutivos del lugar donde preste su servicio. 2. No se presente a los superiores respectivos dentro de los cinco (5) días siguientes a la fecha en que se cumpla un turno de salida, una licencia, una incapacidad, un permiso o terminación de comisión u otro acto del servicio o en que deba presentarse por traslado. 3. Traspase sin autorización los límites señalados al campamento por el jefe de las tropas en operaciones militares. 4. El prisionero de guerra que recobre su libertad hallándose en territorio nacional y no se presente en el término previsto en los numerales anteriores. 5. El prisionero de guerra que recobre su libertad en territorio extranjero y no se presente ante cualquier autoridad consular o no regrese a la patria en el término de treinta (30) días, o después de haber regresado no se presente ante la autoridad militar, en el tér­ mino de cinco (5) días. Los condenados por este delito, una vez cumplida la pena, continuarán cumpliendo el servicio militar por el tiempo que les falte.” 31 Criminal Law of the People’s Republic of China [ ], 1 October 1997, available at: http://www .refworld.org/docid/3ae6b5cd2.html.

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11

enemy of one’s own accord,32 flight from battle,33 and leaving a post without permission.34 Article 435 of the Criminal Law establishes desertion as a crime without further defining the offence; instead, it refers to military service laws and regulations: Those who desert their troops in violation of military service laws and regulations shall be sentenced to not more than three years in prison or criminal detention if the circumstances are serious. Those who commit the crime mentioned in the preceding paragraph in wartime shall be sentenced to not less than three years and not more than seven years in prison. A separate provision, Article 430 of the Criminal Law, deals with desertion by aircraft or on board vessels: Those who endanger national and military interests by leaving their posts without permission, fleeing the country, or defecting while outside the country during the course of performing official duties shall be sentenced to not more than five years in prison or criminal detention. If the circumstances are serious, they shall be sentenced to not less than five years in prison. 32

“Those who care for nothing but their own lives on the battleground and lay down their arms and surrender to the enemy of their own accord shall be sentenced to not less than three years and not more than 10 years in prison. If the circumstances are serious, they shall be sentenced to not less than 10 years in prison or life imprisonment. Those who work for the enemy after their surrender shall be sentenced to not less than 10 years in prison, life imprisonment, or death.” Article 423 of the Criminal Law of the People’s Republic of China. 33 “Those who flee from battle shall be sentenced to not more than three years in prison. If the circumstances are serious, they shall be sentenced to not less than three years in prison and not more than 10 years in prison. If they cause major losses in combat or battle, they shall be sentenced to not less than 10 years in prison, life imprisonment, or death.” Article 424 of the Criminal Law of the People’s Republic of China. 34 “Commanders and personnel on duty who cause serious consequences by leaving their posts without permission or by neglecting their duties shall be sentenced to not more than three years in prison or criminal detention. In the event of especially serious consequences, they shall be sentenced to not less than three years and not more than seven years in prison. Those who commit the crimes mentioned in the preceding paragraph in wartime shall be sentenced to not less than five years in prison.” Article 425 of the Criminal Law of the People’s Republic of China.

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In the event of desertion by aircraft or on board vessels, or other especially serious circumstances, those involved shall be sentenced to not less than 10 years in prison, life imprisonment, or death. India In India, desertion is regulated by the Army Act of 1950.35 Section 38 of the Act provides: (1) Any person subject to this Act who deserts or attempts to desert the service shall, on conviction by court-martial, if he commits the offence on active service or when under orders for active service, be liable to suffer death or such less punishment as is in this Act mentioned; and if he commits the offence under any other circumstances, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned. (2) Any person subject to this Act who knowingly harbours any such deserter shall, on conviction by court-martial, be liable to suffer imprisonment for a term, which may extend to seven years or such less punishment as is in this Act mentioned. (3) Any person subject to this Act who, being cognizant of any desertion or attempt at desertion of a person subject to this Act, does not forthwith give notice to his own or some other superior officer, or take any steps in his power to cause such person to be apprehended, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned. Malaysia In Malaysia also, the offence is regulated by a special Armed Forces Act.36 Section 54 of the Act provides that: (1) Every person subject to service law under this Act who (a) deserts; or (b) persuades, endeavours to persuade, procures or attempts to procure any person subject to service law under this Act to desert, 35 36

The Army Act, 1950, Act No. 46 of 1950 [20th May, 1950], republished by the Commonwealth Legal Information Institute, available at http://www.liiofindia.org. Malaysia Armed Forces Act 1972, republished by the Commonwealth Legal Information Institute, available at: http://www.commonlii.org/my/legis/consol_act/afa1972117/.

Defining Desertion

13

shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided by this Act: Provided that a person shall not be liable to be imprisoned for more than two years unless – (i) the offence was against paragraph (a), he was on active service or under orders for active service at the time when it was committed; or (ii) the offence was against paragraph (b), the person in relation to whom it was committed was on active service or under orders for active service at that time. (2) For the purposes of this Act a person deserts who – (a) leaves His Majesty’s Service, or when it is his duty to do so, fails to join or re-join His Majesty’s Service, with (in either case) the intention, either subsisting at the time of the leaving or failure or formed thereafter, of remaining permanently absent from his duty; (b) absents himself without leave with intent to avoid serving at any place overseas or to avoid service or any particular service when before the enemy; (c) in the case of a sailor having been warned that his vessel is under sailing orders, is absent without proper authority, with the intention of missing that vessel; or (d) being an officer enlists in or enters any of the armed forces without having been relieved of his commission, or being a serviceman enlists in or enters any of the armed forces without having been discharged from his previous enlistment, and references in this Act to desertion shall be construed accordingly. (3) In addition to or in lieu of any punishment provided by subsection (1), the court-martial by whom a serviceman is convicted of desertion may direct that the whole or any part of his service previous to the period in respect of which he is convicted of having been a deserter shall be forfeited. Ethiopia The 2005 Penal Code of the Federal Democratic Republic of Ethiopia regulates desertion in Title iii, Chapter i, entitled “Military Crimes” in Article 288:37

37

Criminal Code of the Federal Democratic Republic of Ethiopia 2004 [Ethiopia], Proclamation No. 414 of 2004, 9 May 2005, available at: http://www.refworld.org/docid/49216b572.html.

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(1) Any member of the Defence Forces who, with intent to evade military service, quits his unit, post or military duties without proper authority, or fails to return to them after being absent with leave, is punishable with rigorous imprisonment not exceeding five years. (2) Where the crime is committed in time of emergency, general mobilisation or war, the criminal is punishable with rigorous imprisonment from five years to twenty-five years, or, in the gravest cases, with life imprisonment or death. Republic of the Sudan For the Sudan People’s Armed Forces, which are the regular forces of the Republic of the Sudan, the Armed Forces Act 200738 regulates in Article 169: (1) There shall be deemed to have committed the offence of desertion whoever deserts military service, or departs, without legal justification, from his unit, in which he serves, and does not return thereto, or instigates any person therefor, shall be punished, with imprisonment, for a term not exceeding five years, together with the possibility of withdrawal of all, or part of the pension, or privileges. (2) For the purposes of sub-section (1) above, absence that exceeds the periods specified by the regulations and systems shall be deemed desertion. ii Punishment Ranges With respect to punishment for desertion, sanctions under the domestic military laws range from a monetary fine to imprisonment for life, or, in times of war or a military engagement, the death penalty. The Swiss Military Criminal Code and the German Wehrstrafgesetz stipulate relatively light punishments. In Switzerland, desertion is punished with a 38

Armed Forces Act 2007 [Sudan], 5 December 2007, available at: http://www.refworld.org/ docid/4c037f1d2.html. For the members of the army of the Republic of South Sudan, the Article 23 of the Sudan People’s Liberation Army (spla) Act of 2003 provides: “Any person subject to the Act who deserts or attempts to desert the Force, or who persuades or endeavours to persuade or procures or attempts to procure any person subject to military law to desert from the Force, shall on conviction by court-martial, if he committed such offence when on active service or under orders for actives service, be punished with death or less punishment; and if he committed such offence under any other circumstances, be punished with imprisonment or less punishment.” See: Sudan People’s Liberation Army (spla) Act, 2003 [Sudan], 29 June 2003, available at: http://www.refworld.org/docid/469e0bbd2.html.

Defining Desertion

15

monetary fine or imprisonment of up to 18 months, while the German Wehrstrafgesetz establishes a maximum penalty of five years’ imprisonment for all desertions, including those during active service.39 The criminal provisions of other countries, however, distinguish between desertion in peacetime and desertion during active service, such as an armed conflict or a military mission abroad, with the latter carrying considerably harsher punishments. The British Armed Forces Act 2006 generally foresees a maximum sentence of two years’ imprisonment for desertion, but specifically allows imprisonment for life, if the offender intended to avoid a period of active service.40 The harsher punishment for desertions to avoid periods of active service was introduced in 2006 during the u.s./u.k.-led military action in Iraq. Critics of the Iraq war claimed that the introduction of the 2006 Act was a reaction to the fact that the number of soldiers deserting from the Army had tripled since the invasion of Iraq and that the Government was attempting to repress this trend in the military.41 The French Military Code of Justice contains elaborate provisions concerning punishment ranges. It differentiates between desertions while stationed in France and while stationed abroad, as well as desertion in the presence of the enemy and defection to the enemy.42 While in-country desertion in peacetime is punishable by up to three years in prison, this punishment increases in wartime to ten years. Harsher punishment is foreseen for soldiers who desert in the presence of the enemy – up to 20 years for soldiers and even life imprisonment for officers. Life imprisonment is also the maximum penalty for all soldiers who defect to the enemy. Similarly, the Colombian Military Penal Code stipulates that the punishment for desertion increases by half if the offence is committed in times of civil war, disturbances, or rebel activity and is doubled in times of international armed conflict. In contrast, the punishment is mitigated if the deserter reports voluntarily himself within eight days of the commission of the offence.43 39 40 41 42 43

See Article 81, Section 1 Swiss Military Penal Code and § 16 (i) WStG. Armed Forces Act 2006 (c. 52), Part 1 Article 8 (4). Colin Brown, New law could hand out life sentences for Iraq deserters, The Independent, 20 May 2006, p. 21. Articles L321-3 to L321-14 Code de Justice Militaire (nouveau), consolidated version of 25 August 2012, available at http://www.legifrance.gouv.fr/initRechCodeArticle.do. “Artículo 129. Agravación punitiva. La pena prevista en el artículo anterior se aumentará hasta en la mitad cuando el hecho se cometa en tiempo de guerra o conmoción interior, o ante la proximidad de rebeldes o sediciosos, y hasta el doble en tiempo de guerra exterior.” And “Artículo 130. Atenuación punitiva. Las penas de que tratan los artículos anteriores se reducirán hasta en la mitad cuando el responsable se presentare voluntariamente

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The u.s. Uniform Code of Military Justice (ucmj) allows for an extremely harsh punishment for desertion during wartime. Article 85(c) ucmj provides that desertion committed in time of war shall be punished “by death or such other punishment as a court-martial may direct,” but excludes the death penalty for desertion in peacetime. Of the countries studied, the death penalty for desertion during wartime is also foreseen in the codes of China, India, Ethiopia and Sudan. In the context of punishment for desertion during wartime, it is interesting to note the developments at the Council of Europe regarding the abolition of the death penalty. While the Sixth Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty adopted in 198344 contained an exception for “non-ordinary” crimes and allowed a state to “make a provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war,” 45 the adoption of Protocol No. 13 in 2002 led to the abolition of capital punishment in all circumstances.46 Consequently, Europe became the only region in the world where the death penalty is no longer applied, including for acts committed in time of war.47 At the global level, the Second Optional Protocol to the International Covenant on Civil and Political Rights of 1989,48 aiming at the abolition of the death penalty, allows for a specific reservation for crimes of a military nature. Article 2(1) allows for a reservation “that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.”49 Of the currently dentro de los ocho (8) días siguientes a la consumación del hecho.”See: Ley N° 522 por medio de la cual se expide el Código Penal Militar [ ], 12 August 1999, available at: http://www .refworld.org/docid/4c56c1912.html. 44 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty, Strasbourg, 28 April 1983, e.t.s., No. 114, as amended by Protocol No. 11, e.t.s. No. 155. 45 Article 2 of Protocol No. 6. 46 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances, signed 1 May 2002, entry into force 01 July 2003, e.t.s. No. 187. 47 See: http://hub.coe.int/web/coe-portal/topics [accessed 9 September 2013]. 48 Second Optional Protocol to the International Covenant on Civil and Political Rights, adopted and proclaimed by g.a. res. 44/128 of 15 December 1989, 44 un gaor Supp. (No. 49) at 207, u.n. Doc. A/44/49, entered into force July 11, 1991. 49 See Article 2 (1) of the Second Optional Protocol to the International Covenant on Civil and Political Rights.

Defining Desertion

17

only 75 Parties to the Second Optional Protocol, five states – Azerbaijan, Brazil, Chile, Cyprus and Greece – have made such a reservation.50 While the number of reservations filed to the Second Optional Protocol is relatively low, the very fact that the possibility of such a reservation was included at all when the text of the Second Optional Protocol was adopted shows that it was expected that many states that might otherwise agree with the abolition of the death penalty during peacetime would continue to insist on the possibility of using it for military offences such as desertion during times of war.51 iii Summary The overview of the national legal systems studied shows that they do not differ greatly regarding the definition and characterisation of desertion as a criminal offence. In particular, no distinct difference can be identified between civil-law and common-law countries, or between developed or developing countries. For the perpetration of the criminal offence the decisive elements are that a soldier, unilaterally and without authorisation, decides to stop fighting and fulfilling his military duties for his home country. In addition, some countries, such as Germany, the u.k., the u.s., Ethiopia and Malaysia take a subjective approach and require intent to stay away permanently, or for the duration of the conflict. Other countries, such as France and Colombia, take an objective approach, based on external circumstances, i.e. a certain duration of unauthorised absence.52 While some countries have the special offence of draft evasion for refusal to answer a conscription call (e.g. u.s. law), other countries, such as Germany, assume that military service commences with the notification of the conscription call and consider a person who does not answer the call guilty of desertion. For the offence, most of the national military laws do not distinguish between a soldier who goes into hiding, one who flees to another state, or one who defects to the enemy but rather treat all of these scenarios as desertion. 50

51 52

Status as at 29.11.2012 reported at: http://treaties.un.org. Malta and Spain, which had initially made reservations, have since notified the Secretary General of their decision to withdraw these. Christine Van Den Wyngaert, Military Offences, The Military Law and the Law of War Review, No. 27, Vol. 1, 1988, p. 90. Peter van Krieken, Yugoslav War Resisters, Heroes or Villains? awr Bulletin, Vol. 34, No. 1/2, 1996, pp. 21–22.

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However, a deserter who joins enemy ranks might also be guilty of additional crimes, such as treason,53 or, as in the laws of China and Malaysia, the specific offence of “defecting to and aiding the enemy.”54 A number of countries do, however, distinguish between such scenarios in terms of punishment ranges, and it is in this regard that the national laws differ most. While most countries provide for harsher punishment explicitly during times of war or active service, including imprisonment for life or the death penalty, the Criminal Code of the Republic of Serbia also calls for harsher punishments if the soldier flees to and hides in a foreign country.55 It is interesting to note that, with regard to punishment, no further distinction is made between the different types of soldiers that might be present in the armed forces, such as career soldiers and those only fulfilling temporary military service duty, or those who are mobilised from the reserve, or are additionally drafted during a conflict. The French Military Code of Justice explicitly provides for harsher punishments only if the deserter had the rank of officer. The legal definitions and punishment ranges for the offence are guided by the need for military discipline and the countries’ ability to punish soldiers who, by ceasing to serve their country, threaten their military striking power. In this regard, the soldier’s motives are irrelevant and do not form part of the legal definition. As such, the question whether the soldier’s act is based on battle fatigue, political or moral objections to the war, or on the motivation to join enemy ranks is not relevant for the perpetration of the offence itself. 53

Ebrahim Afsah, Deserters, in R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, 2012, p. 50. 54 Article 108 of the Criminal Law of the People’s Republic of China deals with defection to the enemy in Chapter 1 of the Criminal Law, entitled “Crimes Endangering National Security” and states: “Whoever defects to the enemy and turns traitor is to be sentenced to not less than three years and not more than ten years of fixed-term imprisonment; when the circumstances are serious or when it is a case of leading a group of armed personnel, people’s police, or militia to defect to the enemy and turn traitor, the sentence is to be not less than ten years of fixed-term imprisonment or life imprisonment.” Criminal Law of the People’s Republic of China [ ], 1 October 1997, available at: http:// www.refworld.org/docid/3ae6b5cd2.html. See also Article 38 criminalising the act of “aiding and abetting the enemy” in the Malaysia Armed Forces Act 1972, republished by the Commonwealth Legal Information Institute, available at: http://www.commonlii.org/my/legis/consol_act/afa1972117/. 55 Article 399 Paragraph 2 of the Criminal Code of the Republic of Serbia, Official Gazette of rs, Nos. 85/2005, 88/2005, 107/2005, translated by the osce Mission to Serbia and Montenegro, February 2006, available at: http://www.legislationline.org/documents/­section/ criminal-codes/country/5.

Defining Desertion

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19

Desertion in the Context of International Law

i International and Multinational Forces While desertion is regarded in domestic military law as one of the most serious offences that can be committed by a soldier, the concept does not exist in international law and there is no equivalent offence at the international level for members of international military forces. Generally, the command structures in un Peacekeeping operations and the jurisdiction over un Peacekeeping personnel are determined by a number of international instruments,56 but discipline and good order among the military personnel remain the responsibility of the respective national contingent commanders, and the criminal jurisdiction over military personnel during peacekeeping operations rests exclusively with the contributing state.57 The same applies to members of military units under nato command. nato member states that assign national troops to nato multinational forces delegate operational command within the integrated command structures of nato but do not surrender national command, or Full Command,58 of their forces. Matters relating to personnel administration, such as pay, promotion and discipline, remain with the national commander “as inherent manifestations of national sovereignty”.59 As a result, a soldier who deserts during a un Peacekeeping operation or a nato assignment is in breach of the duties he owes to the country that has 56

These include the Memorandum of Understanding between the contributing state and the un, the Status of Forces Agreement, the Convention on the Privileges and Immunities of the United Nations, and Directives for Disciplinary Matters involving Military Members of National Contingents (Military Disciplinary Directives). See: Melanie O’Brien, The Ascension of Blue Beret Accountability: International Criminal Court Command and Superior Respon­ sibility in Peace Operations, Journal of Conflict and Security Law, Vol. 15, No. 3, 2010, p. 535. 57 James W. Houck, The Command and Control of United Nations Forces in the Era of “Peace Enforcement,” 4 Duke J. Comp & Intl Law 1993, p. 12; Frank Adaka, The Enforcement of Military Justice and Discipline in External Military Operations: Exploring the Fault Lines, The Military Law and the Law of War Review, Vol. 47, No. 1/2, 2008, p. 257. Michael Bothe, Streitkräfte internationaler Organisationen, p. 140. See also: Art 7 ter ‘Discipline’; Art 7 quinquiens ‘Exercise of jurisdiction by the Government’ of the u.n. Model MoU, which can be found in A/C.5/60/26, Ch 9, at 148. The final draft was adopted by A/RES/61/291 on 24 August 2007. 58 Full Command refers to “the military authority and responsibility of a commander to issue orders to subordinates. It covers every aspect of military operations and administration and exists only within national services.” See: nato Standardization Agency, Full Command, nato Glossary of Terms and Definitions, aap-06 (2012)(2). 59 Jon Whitford / Thomas-Durell Young, Command Authorities and Multinationality in nato: The Response of the Central Region’s Armies, pp. 59–60.

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sent him, not to the un or nato. The violation of his military duties is judged according to the provisions of the military laws of his home country; there are no international legal norms dealing with the matter. ii Desertion in International Law Literature For a long time, the issue of desertion received little attention in literature on international law, and the few mentions that could be found dated back some considerable time. More recently, however, likely prompted by the experiences of desertion during the war in the former Yugoslavia, the issue has attracted more attention, particularly the question of refugee status for deserters who seek refuge in a third country during an armed conflict. In December 2013, the Office of the United Nations High Commissioner for Refugees issued Guidelines on International Protection No. 10,60 which deal specifically with claims for refugee status related to military service and the treatment of deserters and persons avoiding military service under the 1951 Convention relating to the Status of Refugees. According to unhcr Guidelines No. 10, “desertion involved abandoning one’s duty or post without permission, or resisting the call up for military duties.”61 In the Max Planck Encyclopedia of Public International Law, Afsah defines desertion as “the unauthorised individual or collective abandonment of a given military duty or post.”62 While the definitions provided by unhcr and in the Encyclopedia of Public International Law are broad and see the ‘abandoning of military duties’ as the main element of desertion, other authors have attached additional elements, depending on the focus of their studies. Wilhelm, in an article dating back to the 1950s on prisoner of war status under the Third Geneva Convention, defines the deserter as follows: By deserters we mean individuals who elude the military duties to which they are subjected in their own countries and who, if they join the enemy, clearly state their intention of abandoning their own armies.63 60

61 62 63

unhcr, Guidelines on International Protection No. 10 “Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees”, HCR/GIP/13/10 of 3 December 2013, hereafter referred to as “unhcr Guidelines No. 10.” unhcr Guidelines No. 10, Paragraph 3. Afsah, Ebrahim, Deserters, in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, p. 50. René-Jean Wilhelm, Can the Status of Prisoners of War be altered? irrc, 1953, p. 28.

Defining Desertion

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In 1985, Sassoli, also exploring the treatment, status and repatriation of deserters under international humanitarian law, suggested a definition that stressed the intent to sever allegiance with their home country rather than the mere avoidance of military duties: A deserter is a member of the armed forces who terminates individually and unilaterally his military services with the intention of escaping his military obligations. He acts upon his intent to sever his allegiance to the Power he was serving by abandoning his forces to go to neutral or enemycontrolled territory or, in a combat situation, by abstaining from fighting immediately prior to falling into the power of the enemy and seizing the first opportunity to confirm [to] the Detaining Power his willingness to sever his allegiance to the Power on which he depends.64 Regarding the extent to which the enemy is obliged to accord a deserter prisoner of war status, both authors add a further criterion to the definitions found in domestic military law: a deserter who falls into the hands of the enemy must immediately show his willingness to desert, or make that willingness clear to the enemy. However, while the requirement that a deserting soldier show his willingness to desert addresses the enemy’s practical problem of recognising a soldier who has fallen into his hands as a deserter, it is not an essential element of the military offence of desertion and so should not form part of the definition of the term. In contrast, in a 1976 study on the legal status of prisoners of war, Rosas considers the severance of allegiance as the distinguishing factor between deserters and defectors when he notes that the latter are “persons who wish to give up their former allegiance and to pass over to the enemy side,” while deserter “is used to denote persons who simply want to avoid military service without any specific intent to serving the enemy.”65 Another author, Levie, distinguishes between deserters and defectors as follows: […] the word deserter is used to connote one who absents himself from his place of duty without the permission of his proper authorities. In the context of this study he thereafter comes into the custody of the enemy armed forces. Perhaps by voluntary surrender, seeking the dubious refuge 64 65

Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 13. Allan Rosas, The Legal Status of Prisoners of War, p. 388.

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of a prisoner-of-war camp primarily as a means of escaping from the fears and dangers of the battlefield. His change in status is motivated by a lack of amenability to military life in general, and to combat in particular, and not by ideology. The word defector, on the other hand, is used to connote one who deliberately seeks refuge with the enemy because he disagrees with the policies and politics of his own Government and agrees with those of the enemy. He is motivated by ideological considerations, and when he leaves his place of duty he probably desires and intends, if possible, to join the enemy armed forces in order to help hasten the attainment of his ultimate objective: the victory of the enemy and the defeat of his own country.66 For Levie, the decisive question that defines and distinguishes between the terms ‘deserter’ and ‘defector’ is whether or not the soldier acts out of ideological conviction. Such a distinction is helpful only in purely ideological conflicts, however; it cannot be applied to ethnic or religious conflicts. According to Levie, the actions of a deserter are always devoid of ideological or political motives. This is questionable, as such a definition unjustifiably limits the motivations of soldiers who cease fighting to battle fatigue or homesickness, and fails to take account of the possibility that a soldier may decide to stop fighting because of his or her opposition to the war itself. iii Summary A legal concept of desertion cannot be found in international law, and international legal norms stipulating penal or disciplinary consequences for desertion do not exist. Soldiers who serve in units that take part in international military engagements as part of un Peacekeeping missions or multilateral military alliances, and who violate their military duties, are held responsible according to their own national military laws regulating their military service and the service relationship with the country contributing them. While not a concept under international law itself, desertion and the treatment of deserters have been discussed in international legal literature mainly in relation to prisoner of war status under international humanitarian law, or refugee status under international refugee law. As part of these examinations, academic authors have provided definitions for the term desertion that are based on the subjective and objective elements of the offence found in domestic 66

Howard S. Levie, Prisoners of War in International Armed Conflict, u.s. Naval War College, International Law Studies, Vol. 59, p. 76.

Defining Desertion

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­ ilitary laws, with some attaching different political or non-political motives or m certain factual circumstances to the definition to tailor it to the specific focus of their study. D

The Use and Meaning of the Term ‘Desertion’ in the Present Study

Given the many forms desertion can take during an international armed conflict, with respect to not only the personal reasons behind the decision to desert but also the underlying factual situations, a comprehensive examination of the status and treatment of deserters under international law requires a broad and inclusive rather than restrictive definition of the term, so as not to exclude any scenarios from the study. The present study does not therefore adopt any one definition of a particular national military law, nor does it attempt to develop one for the purposes of an examination from an international-law perspective. Rather, the use of the terms ‘deserter’ and ‘desertion’ in the present study encompasses all cases in which soldiers who stop fighting for their home country are considered guilty of desertion or treated as deserters according to the laws or the policies applied by their home countries during an armed conflict. As such, the qualification as a deserter depends on the de-facto legal and extra-legal consequences that a soldier must expect as a result of his decision not to, or no longer to fight. The term ‘defector’ is understood to refer to a certain sub-category of deserters, namely those who join the military forces of the enemy in order to fight against their home country, irrespective of any underlying reasons, or political motives. Furthermore, the study is not limited to soldiers who abandon their military duties out of certain motives pertinent to international law, such as the alleged illegality of a conflict, or the commission of war crimes. Instead, regardless of underlying motives, it refers to all soldiers who, in their home country, face regular criminal charges or extra-judicial punishment as well as the social and military stigma of being a deserter because they stopped fighting for their home country during an international armed conflict. Such a broad understanding of the concept of desertion aims to ensure that all cases in which soldiers face severe, and often capital punishment for ceasing to fight are covered, and that the protection that international law provides for these women and men is examined in a comprehensive way.

chapter 2

The Deserter and His or Her Home Country The Chapter starts with an overview of the treatment that deserters have received in past military conflicts, as well as of the conciliatory measures that countries have taken regarding deserters following termination of an armed conflict by a peace treaty, in the form of a national amnesty or rehabilitation programmes. This overview is followed by an examination of contemporary international legal norms relevant to the relationship between a deserter and his or her home country, as well as of the rights and duties stipulated by international law regarding the home country’s treatment of deserters from its national forces during an armed conflict. A

Desertion in Past Conflicts – A History of Severe Punishment and Reluctant Forgiveness

i Punishment of Deserters Throughout the history of armed conflict the punishment of deserters has been known to be severe. Deserters were considered outlaws1 and, in some cases, ransoms were paid to anybody who captured and handed them over. Once caught, deserters faced either the death penalty or a long prison sentence, loss of citizenship2 and, in some cases, other cruel punishments, such as mutilation.3 In addition, deserters have been stigmatised not only as military criminals but also as cowards and traitors to their country. An example is the treatment of deserters by the Australian Imperial Force during World War i: their names were published in the newspapers at home, in order to bring shame on their entire family.4 During World War i, the Austro-Hungarian Army 1 Bodo Scheurig, Desertion und Deserteure, Frankfurter Hefte, Vol. 4, 1979, p. 39. 2 In the u.s., this punishment was declared to be in violation of the Eighth Amendment and thus unconstitutional by the u.s. Supreme Court in 1957, see: Trop v. Dulles, Secretary of State et. al., 356 u.s. 86. See below in this section under 3. 3 Franz Seidler, Fahnenflucht, pp. 27–31, with further examples of forms of punishment for deserters throughout history. 4 Unlike the British Army, Australia refused to inflict the death penalty on deserters during World War i, but the alarming increase in absences without leave and desertions led to the use of other penalties instead, such as publication of lists of offenders in Australian newspapers.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308848_003

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faced particularly high rates of desertion. As early as 1914, in response, the Army High Command (Armeeoberkommando) ordered a number of ad-hoc measures to prevent soldiers from deserting, which included summary execution for desertion, or for encouraging desertion.5 Many armies shared the general belief that, if it is to have a deterrent effect on soldiers, the punishment of deserters has to be extremely harsh and has to outweigh the risks that soldiers anyways face in a wartime theatre.6 1 German Deserters during World War ii The treatment of German deserters during World War ii is notorious for the merciless punishments handed out by the distorted military legal system of the Nazi regime.7 Early on in the regime, military jurists emphasised the political nature of desertion. The deserting soldier was seen as breaking his allegiance to the Führer and soldiers accused of desertion were denounced as vermin of the military force.8 In April 1940, the military criminal code (Militärstrafgesetzbuch “MStGB”) was revised and provisions regarding the punishment of deserters were tightened.9 While ordinary desertion remained punishable by between 6 months’ and 15 years’ imprisonment according to § 70(i) MStGB, the possibility of mitigated punishment was removed.10 Aggravated desertions – in particular, desertions during wartime – were to be punished with jail sentences for life, or death according to § 70(ii) MStGB. With regard to the application of this provision, Hitler issued a special directive. In it, he requested broadly that the death penalty be handed down in all cases in which the soldier acted out of personal fear, on the basis that this was necessary to maintain military discipline (Manneszucht), as well as in cases of repeated desertion, group desertion, or

5 6 7

8 9 10

See: Australian War Memorial Encyclopedia, Desertion and the Death Penalty, available at: http://www.awm.gov.au/encyclopedia/desertion.htm. Alon Rachamimov, pows and the Great War, p. 32. Christine Van Den Wyngaert, Military Offences, The Military Law and the Law of War Review, No. 27, Vol. 1, 1988, p. 93. Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 93; on the practice of the military courts of the Wehrmacht in general, see: Manfred Messerschmidt, Wehrmachstjustiz 1933–1945, pp. 173–199. Manfred Messerschmidt, Die Wehrmachtsjustiz 1933–1945, p. 173. § 70 MStGB of 16 July 1935 (RGBl. i p. 1021) and 10 October 1940 (RGBl. i p. 1347). Oliver C. Prinz, Der Einfluss von Heeresverfassung und Soldatenbild auf die Entwicklung des Militärstrafrechts, p. 235.

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desertion with an attempt to flee abroad.11 More generally, with slogans such as ‘While a soldier may die on the battlefield, the deserter must die’,12 the Nazi regime aimed to portray the death penalty as the only appropriate response to desertion, and to leave no room for the milder punishment that would have been possible under the applicable military criminal law at the time. Of the estimated 35,000 convictions for Fahnenflucht during World War ii, the death penalty was handed down by German military courts in approximately 22,000 cases, resulting in at least 15,000 executions.13 Wehrmacht deserters who managed to avoid the death penalty were sometimes given the chance to serve on the front line instead (Frontbewährung). As this usually meant being assigned to the most dangerous missions, this punishment was also referred to as “suicide command.”14 In addition to the harsh punishments of the German military courts, Wehrmacht deserters faced irregular punishments by civil ad-hoc courts and executions by the Gestapo (Geheime Staatspolizei), the official secret police of Nazi Germany.15 Nazi fanatics and “flying courts-martial” sought to hunt down deserters until the very last days of World War ii.16 Their ruthless activities led to punishments for desertion even after the formal surrender of Germany on 8 May 1945.17 In this 11 12

13

14

15 16

17

Richtlinien des Führers und Obersten Befehlshabers der Wehrmacht für die Strafzumessung bei Fahnenflucht vom 14. April 1940, RGBl. I, p. 1353. See interview with Ludwig Baumann in: Jan Korte / Dominic Heilig (eds.), Kriegsverrat, p. 20. See also: Franz Seidler, Fahnenflucht, p. 325, with the following quotation from Adolf Hitler, Mein Kampf, München 1937, p. 587: “Es muss der Deserteur wissen, dass seine Desertion gerade das mit sich bringt, was er fliehen will. An der Front kann man sterben, als Deserteur muss man sterben.” Manfred Messerschmidt / Fritz Wüllner, Die Wehrmachtjustiz im Dienste des National­ sozialismus. Die Zerstörung einer Legende, pp. 87 and 91. Wolfgang Benz, Verweigerung im Alltag und Widerstand im Krieg, p. 4. Alfred de Zayas, Stellungnahme vor dem Rechtsausschuß des Deutschen Bundestages zu den Drucksachen 13/353 und 13/354 betreffend Unrechtsurteile wegen Fahnenflucht/Desertion, Wehrkraftzersetzung oder Wehrdienstverweigerung während des Zweiten Weltkrieges, 1 huvi 1996, pp. 18 and 21. Dieter Knippschild, Deserteure im Zweiten Weltkrieg: Der Stand der Debatte, p. 223. Richard Bessel, Germany 1945, pp. 60–63, quoted in: Richard Bessel, The German Surrender of 1945, in: Holger Afflerbach and Hew Strachan (eds), How Fighting Ends: A History of Surrender, Oxford, 2012, p. 400. See the report on the cases of Bruno Dorfer and Rainer Beck in: Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, pp. 93–113. Seidler reports a case of a Landwachtpostenführer, a commander of the civil militia, who had two soldiers who put on civilian clothing after the surrender shot on

The Deserter And His Or Her Home Country

27

regard, it is interesting to note that despite Germany’s having committed crimes of unprecedented magnitude during World War ii, the Allied Forces did not question Germany’s right to punish deserters from its own ranks. Canadian forces who took control of Amsterdam following the capitulation of Germany in Holland on 5 May 1945 handed two German deserters over to the German military units for punishment rather than declaring them prisoners of war, and provided weapons for the demilitarised German army so that the two deserters could be executed.18 British forces handed over two German seamen, who had been looking for help on the Norwegian home front to flee to Sweden, to the Seekommandanten Kristiansand after the capitulation of Germany.19 Of interest is the treatment of soldiers from the ranks of the Deutsche Volksliste (German People’s List)20 who, after deserting and joining enemy forces, were captured by Germany or defected back to the German side.21 The detailed account by Manfred Messerschmidt shows that the judiciary of the Wehrmacht struggled with the question of how these soldiers should be treated. Different approaches were chosen for the different ethnic groups, often based on political rather than legal considerations.22 While some were punished not only for desertion but also for Kriegsverrat (treason during wartime) and received severe punishments – which, in some cases, were extended to their families – others received more lenient treatment, as propaganda method to encourage defection back to the German side.23 However, these strategic considerations do not alter the fact that it was accepted that the right to punish one’s own nationals trumped any duty under the laws of war to accord prisoner of war status to captured military personnel of the enemy.24 13.05.1945 for treason and desertion, in: Franz Seidler, Fahnenflucht, p. 334, with further examples on pp. 331–335. 18 Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 96; also reported in: Der Spiegel, „Im Interesse der Manneszucht“, 12.05.1997, Vol. 20, 1997, pp. 72 and 74. 19 Franz Seidler, Fahnenflucht, pp. 332–333. 20 The Deutsche Volksliste was an instrument established by the Nazi Party to classify the inhabitants of German occupied territories into categories of desirability according to the criteria systematised by Heinrich Himmler. First established in occupied Poland, the instrument was also established in occupied France, the Ukraine, Yugoslavia and the Soviet Union. 21 See also the example of the Vlasow Army in Chapter 3, A iii 2. 22 Manfred Messerschmidt, Wehrmachtsjustiz 1933–1945, 2005, p. 423. 23 Ibid. p. 427. 24 See Chapter 3, A i below.

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2 Soviet Deserters during World War ii The Soviet Union applied a similar, if not even greater harshness to deserters during World War ii. In August 1941, Joseph Stalin issued Order No. 270, which required superiors to shoot deserters on the spot25 and allowed for the arrest of the deserter’s family as an extra punishment and warning.26 Counter-intelligence agencies in the Red Army are reported to have executed 158,000 soldiers for desertion during World War ii,27 sometimes shooting deserters in front of an audience of fellow soldiers from their division. The unforgiving attitude of the Soviet regime towards its own soldiers is demonstrated by the total figure of 13,500 summary and judicial executions during the battle of Stalingrad alone for crimes classified as ‘extraordinary events’. Apart from desertion, these crimes included retreating without orders, malingering through the self-infliction of wounds, crossing over to the enemy, corruption and anti-Soviet activities.28 Red Army soldiers were also liable for failure to shoot immediately any comrades trying to desert, or surrender to the enemy.29 Punishment was particularly harsh for those Red Army deserters who defected and served in the Wehrmacht, as they were seen as traitors to the Great Patriotic War. Hundreds of thousands of men were executed during the war by smersh.30 Labelling these men former Russians summarily stripped them of their national identity and served “to suppress any hint of disaffection” among Soviet soldiers from the Stalinist regime.31 3 u.s. Deserters during World War ii In comparison, the nearly 50,000 American soldiers who deserted from the u.s. military during World War ii were mainly sentenced to years of hard labour, but only a small number – 49 – received the death penalty.32 Of the reported death sentences, only one case of desertion, that of Eddie Slovik, ended in the execution of the convicted deserter, while the other deserters were successful

25 26 27 28

29 30 31 32

Geoffrey Roberts, Stalin’s Wars: From World War to Cold War, 1939–1953, p. 98. Antony Beevor, Stalingrad, p. 169. Paul Sheehan, Patriots ignore greatest brutality, The Sydney Morning Herald, 13 August 2007. Soldiers who had been captured during battle but managed to escape from German custody and reported back to duty were treated as deserters and punished by the Soviet side. See Antony Beevor, Stalingrad, pp. 166–167. Ibid. p. 167. smersh was the Chief Directorate of Soviet Counter-Intelligence during World War ii. Antony Beevor, Stalingrad, p. 181. Charles Glass, Deserter – The Last Untold Story Of The Second World War, p. ix.

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in their appeals to have their sentences commuted.33 As Eddie Slovik was the first u.s. deserter to be executed since the American Civil War, his case received considerable attention, with some openly regretting that the most extreme penalty provided by law had been applied again after such a long time.34 Others argued that it had been necessary and just, and instead they questioned the fairness of only one execution for desertion in all of World War ii in light of the 225,618 battle deaths of loyal u.s. servicemen during that conflict.35 The harsh punishment of Slovik has been explained by the sensitive timing both of his court-martial during the November fighting in the Hürtgen Forest, where Slovik’s division suffered thousands of casualties, and of his appeal for commutation in early 1945 during the German counter-offensive known as the Battle of the Bulge, when military commanders felt they needed to deter others from following his example by leaving no room for clemency.36 In addition to the punishment under u.s. military laws, § 401 of the u.s. Nationality Act of 1940 foresaw the loss of u.s. citizenship for those convicted by court-martial of desertion in time of war and a dismissal or dishonourable discharge from the military.37 In 1957, in the case of Trop v. Dulles, Secretary of State et al., the u.s. Supreme Court put a halt to denationalisation as a form of punishment for deserters. The case concerned a former u.s. serviceman who deserted his unit in 1944 while serving in French Morocco. A court-martial convicted him of desertion and sentenced him to three years hard labour, forfeiture of all pay and allowances and a dishonourable discharge. When he applied for a u.s. passport in 1952, he was declared to have lost his United States citizenship and became stateless. The u.s. Supreme Court ruled that provision § 401 was unconstitutional and that the use of denationalisation as a punishment was not allowed under the Eighth Amendment, which prohibits excessive bail, excessive fines and cruel and unusual punishments.38 33 34

35 36 37 38

Manfred Messerschmidt, Die Wehrmachtsjustiz 1933–1945, p. 445; Dieter Knippschild, Deserteure im Zweiten Weltkrieg: Der Stand der Debatte, p. 222. The case became public knowledge in 1954 when William Bradford Huie published a book called “The Execution of Private Slovik.” In the 1970s, Slovik’s story was adapted for a television film with Martin Sheen playing the title role. Frederick B. Wiener, Lament for a Skulker, Combat Forces Journal, 1954, p. 40. Charles Glass, Deserter – The Last Untold Story Of The Second World War, p. ix; Frederick B. Wiener, Lament for a Skulker, Combat Forces Journal, 1954, p. 36. § 401 (g) of the Nationality Act of 1940, 54 Stat. 1168, 1169, as amended, 58 Stat. 4, 8 U. S. C., § 1481 (a) (8). Trop v. Dulles; Secretary of State, et al., 356 u.s. 86, pp. 88 and 101. The Eighth Amendment, which was adopted as part of the Bill of Rights of 1791, states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

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4 Contemporary Conflicts Accounts from a number of recent international and internal armed conflicts testify to the fact that deserters often face the risk of being punished not only harshly but also without any consideration for the rule of law and their dueprocess rights. During the conflict in South Lebanon in the early 1990s, it was reported that deserters from the South Lebanese Army (“sla”) were subject to imprisonment for an unspecified period of time during which they had to endure beatings and torture by the sla. Deserters were often held incommunicado and members of their family were imprisoned as proxies.39 During the Ba’athist Regime in Iraq, the country’s military courts reportedly ordered deserters’ ears to be mutilated, in addition to prison sentences, to “serve as a permanent reminder to everyone” that the person had been a deserter.40 News coverage of the Syrian internal armed conflict that started in 2011 provides a similarly cruel picture, with reports about deserters from the Syrian national army being hunted down and shot on the spot when caught while attempting to defect to the anti-government side.41 ii Acts of Clemency While countries vigorously and sometimes ruthlessly protect their military striking power during an armed conflict and thus tend to pursue avidly violations of military duties, the interest in pursuing military offenders becomes less strong once the armed conflict is over. As a result, even countries that displayed an unforgiving attitude towards deserters during an armed conflict took a less firm approach to them once the military engagement ended and their focus shifted towards reconciliation and peace-building.

39

40 41

Immigration and Refugee Board of Canada, Lebanon: Information on the treatment of Muslims who join the South Lebanese Army (sla), the treatment afforded deserters, whether Muslim deserters are treated differently than other deserters, and the treatment afforded deserters who have returned to Lebanon, 1 June 1994, LBN17673.E, available at: http://www.unhcr.org/refworld/docid/3ae6ab3450.html. unhcr, Iraqi refugees in Pakistan, histories as complex as Iraq, News Stories, 17 March 2003. bbc News Middle East, Syria unrest: Dozens of army deserters ´gunned down´, 20 December 2011, available at http://www.bbc.co.uk/news/world-middle-east-16258387?print=true; Agence France-Press, Syria forces kill deserters as nato nixes intervention, 21 May 2012, available at: http://reliefweb.int/report/lebanon/syria-forces-kill-deserters-nato-nixes -intervention.

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Without attempting to give a comprehensive historic overview of post-war treatment of deserters, the following sections present some examples of where acts of clemency in the form of amnesties or pardons either explicitly or inexplicitly benefited deserters. The terms ‘amnesty’ and ‘pardon’ are sometimes used interchangeably, but different definitions are applied.42 The current study understands amnesty as the decision by a government not to prosecute and punish offenders for particular crimes or offences committed within a fixed period of time, or in a specified situation.43 Once proclaimed, an amnesty provides immunity in law and, as such, protects the offender from criminal, administrative, disciplinary and civil proceedings.44 In contrast to this, a pardon is understood as a discretionary decision of a sovereign, i.e. head of state, to sidestep the courts in individual cases and cancel a penalty after conviction.45 1 Amnesties Under international law, the decision to introduce an amnesty is recognised as part of the state’s sovereignty.46 Under international law, and particularly in the areas of international humanitarian law, human rights law and international criminal law, treaty-based duties are increasingly being established to prosecute grave breaches of international humanitarian law and certain serious human rights violations.47 The duty to restrict the right to declare an 42

43 44 45

46 47

See for example: Anja Seibert-Fohr, Amnesties, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Vol. 1, p. 359; Andreas O’Shea, Amnesty for Crime in International Law and Practice, p. 2; Louis Joinet, Study on amnesty laws and their role in the safeguard and promotion of human rights, 21 Jun2 1985, E/CN.4/Sub.2/1985/16, paragraph 5. Anja Seibert-Fohr, Amnesties, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Vol. 1, p. 359. Andreas O’Shea, Amnesty for Crime in International Law and Practice, p. 2. Anja Seibert-Fohr, Amnesties, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Vol. 1, p. 359. Andreas O’Shea, Amnesty for Crime in International Law and Practice, p. 2/3. Jessica Gavron, Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court, 51 iclq 1, 2002, p. 94. See Article 49 Geneva Convention i, Article 50 Geneva Convention ii, Article 129 Geneva Convention iii and Article 146 Geneva Convention iv. The duty to prosecute can be found in Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 December 1948, 87 unts 277, as well as a number of other international human rights treaties. See: Jessica Gavron, Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court, 51 iclq 1,

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amnesty for these crimes has also been established under international law.48 The decision whether to prosecute other crimes and offences, however, rests firmly with each sovereign state. (a) Amnesties Benefiting Deserters Amnesties for those who desert from government forces are usually introduced once the armed conflict has ended, either unilaterally by a government, or as part of a negotiated peace agreement or treaty.49 Such amnesties for deserters do not serve a strategic military purpose but rather support a country’s internal reconciliation and healing process. (1)

Peace Treaties

The inclusion of amnesties in peace treaties has been a common measure to protect combatants from criminal prosecution after the end of a conflict and thus facilitate the transition to peace.50 For instance, the 1782 Preliminary Articles of Peace between Great Britain and the United States of America excluded prosecution for acts carried out in connection with the American War of Independence. Article 6 of this treaty provided: That there shall be no future confiscations made, nor any prosecutions commenced against any Person or Persons, for by reason of the part which he or they may have taken in the present War, and that no person shall in that account suffer any future Loss or Damage either in Person, liberty or Property[…].51 Similarly, the Treaty of Adrianople of 1829 ending the Russo-Turkish War of 1828/1829 contained a clause granting

48 49 50

51

2002, pp. 103–116. Anja Seibert-Fohr, Amnesties, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Vol. 1, pp. 360–362. For details on crimes under international law, see Section B. iii. in this Chapter below. Louise Mallinder, Amnesty, Human Rights and Political Transitions – Bridging the Peace and Justice Divide, pp. 85–88 and p. 379. Leslie Vinjamuri / Aaron P. Boesenecker, Accountability and Peace Agreements – Mapping trends from 1980 to 2006, p. 18; Anja Seibert-Fohr, Amnesties, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Vol. 1, p. 358. See: Hunter Miller, Treaties and Other International Acts of the United States of America, Vol. ii, Doc. No. 7, p. 99.

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a general pardon and full and entire amnesty to all those of their subjects of whatever condition they might be who in the course of the war, luckily terminated, today, should have taken part in the military operations or manifested either by their conduct or by their opinions their attachment to one or the other of the Contracting Powers.52 The inclusion of such complete amnesty clauses in peace treaties became the usual practice of Russia during the 19th century and they can be found in other peace treaties it concluded with Turkey in 1774 and 1878. Another example can be found in the Treaty of Peace between Russia and Sweden of 17 September 1809.53 Amnesty clauses like these generally manifested the wish of the parties for a clean break from the past rather than addressing the injustices committed during the armed conflict. Such general amnesties benefited all combatants, including those who had defected to the enemy during the course of the conflict, or who had abandoned their military duties to their home country by deserting. In some cases, peace treaties contained amnesty clauses that mentioned deserters, or rather defectors, specifically. Article 5 of the 1856 Treaty of Paris, for example, which ended the Crimean War and was signed by Russia on one side and by Great Britain, France, Sardinia-Piedmont and Turkey on the other, expressly stated that each party should extend the amnesty to those of its nationals who had fought on the side of another belligerent party during the conflict.54 It is notable that, in some cases, amnesty clauses specifically for deserters acknowledged the fact that the war “had been fought on an issue of principle, and that desertion from one side to another was not a dishonourable action, but an act of faith.”55 An example is the treaty signed on 26 November 1820 at Trujillo ending the wars of independence in Spanish America, which contained a clause that deserters already recaptured by their home country should not be put to death.56

52 53 54 55 56

See Paragraph xiii of the Treaty of Adrianople, September 2/14 September 1829, in: Fred L. Israel (ed.), Major Peace Treaties of Modern History 1648 – 1967, Vol. ii, p. 937. L.B. Schapiro, Repatriation of Deserters, Brit.yb.Int.’l L., 1952, pp. 313/314. Ibid. p. 314. Ibid. p. 317. Ibid. p. 318.

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chapter 2 World War i

The approach to amnesties and a ‘clean-break policy’ changed after World War i, when peace treaties differentiated between victorious and defeated parties, foreseeing unilateral amnesties for the victors only and prosecutions of war criminals for the defeated aggressor state.57 Nevertheless, these amnesties not only benefited nationals of the victorious states but also those nationals of the defeated states who had acted against their own state.58 The Treaty of Versailles of 28 June 1919 between the Allied and Associated Powers on the one hand and Germany on the other provided: Prisoners of war or other German nationals who do not desire to be repatriated may be excluded from repatriation; but the Allied and Associated Governments reserve to themselves the right either to repatriate them or to take them to a neutral country or to allow them to reside in their own territories. The German Government undertakes not to institute any exceptional proceedings against these persons or their families, nor to take any repressive or vexatious measures of any kind whatsoever against them on this account.59 The peace treaty that the Allied and Associated Powers entered into in SaintGermain-en-Laye with Austria contained a similar provision.60 With the unilateral obligations thus stipulated in the Treaty of Versailles and the Treaty of Saint-Germain-en-Laye, the German and Austrian Governments were prevented from prosecuting prisoners of war, or other German or Austrian nationals, or from taking any retaliating measures against them and their families. Amnesties benefiting deserters were also agreed upon in bilateral treaties, such as the German-Polish Treaty of 1 October 1919, concerning the liberation

57

Jessica Gavron, Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court, 51 iclq 1, 2002, p. 91. 58 Fania Domb, Treatment of War Crimes in Peace Settlements – Prosecution or Amnesty? p. 308. 59 See Articles 220 (2) and 3 of the Peace Treaty between Germany and the Allied and Associated Powers, signed on 28 June 1919, 140 RGBl. 1919 ii, 685, 975. 60 “The Austrian Government undertakes not to institute any exceptional proceedings against these persons or their families, nor to take any repressive or vexatious measures of any kind whatsoever against them on this account.,” Article 166 (3) of the Peace Treaty between Austria and Allied and Associated Powers signed on 10 September 1919, [1919] ukts 11 (Cmd. 499); [1920] ats 3.

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of captured persons and the granting of an amnesty.61 In Article 6 of the treaty, both parties committed to granting impunity, among other things, for criminal political or military acts that had benefited the other party and for breaches of military-service duties. As such, deserters and defectors were given impunity.

Czechoslovak Legion

A special agreement was brokered for members of the so called Czechoslovak Legion, who had fought in Russian uniforms and had been recruited largely from among Czech and Slovak deserters and prisoners of war from the AustroHungarian Army: At the beginning of World War i, Austria-Hungary had drafted thousands of Czechs, Slovaks and other Slavs into its army, who were then organised in special Slavic divisions and sent to fight against Russia on the Eastern Front. As many of these men had been recruited against their will and had long despised living under the Habsburg rule, desertions as well as voluntarily surrender to the Russians were widespread.62 A number of reasons have been given to explain the high desertion rate particularly among Czech troops from the Austro-Hungarian Army, including “incompetent officers, abusive training methods and a collapse of morale, which had been reported long before the troops reached the front.”63 In addition, the decisions to stop fighting were likely prompted by a desire to join the Czech Druzina, a special military unit under Russian command that had initially been formed by Czechs and Slovaks living in Russia and which was part of a larger international political movement striving for an independent Czechoslovakia.64 By the time the new Bolshevik government ended the war in 1917 and the Treaty of Brest-Litovsk was signed, the number of Czechs in Russian army ranks had increased drastically owing to a massive recruitment of Czech deserters and prisoners of war in Russia.65 From the group of approximately 250,000–300,000 Czech and Slovak prisoners of war in Russian captivity, around 50,000 Czechs and 20,000 Slovaks joined the Czech divisions.66 61 “Deutsch-Polnischer Vertrag über die Entlassung festgehaltener Personen und die Gewährung von Straffreiheit,” RGBl. 1919, pp. 1803–1809. 62 Alon Rachamimov, pows and the Great War, p. 32. 63 Ibid. p. 33. 64 Edgar Chen / Emily van Buskirk, The Czech legion’s long journey home, mhq: The Quarterly Journal of Military History, Vol. 12, No. 2, 2001, p. 42. 65 Ibid. p. 43. 66 Alon Rachamimov, pows and the Great War, p. 195. The numbers differ though, Chen and van Buskirk referring to “more than twenty-two thousand,” Edgar Chen / Emily van Buskirk,

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Under the Treaty of Brest-Litovsk of 3 March 1918,67 which ended Russia’s participation in World War i, the parties had agreed that all prisoners of war were to be immediately repatriated to join their forces in the west.68 However, as a return home would have meant certain death for the Czech and Slovak defectors in Russia, who were regarded as traitors by the Central Powers, a special solution was reached between the Allied Powers and the new Bolshevik government in January 1918, according to which the Czech divisions of the Russian Army were to be integrated into the French Army as the ‘Czechoslovak Legion’ in order to support the Allies’ war efforts on the Western Front. The agreement foresaw their evacuation via the port of Vladivostok on Russia’s Pacific coast and their transport by sea to France, for which they were granted safe passage through Russia. However, rather than peacefully transiting as a neutral army through Russia, the Czechoslovak Legion became entangled in the Russian Civil War, resulting in a two-year violent retreat to the east, until the last Czech Legionnaires eventually left Vladivostok for France in September 1920. The story of the Czechoslovak Legion is probably best known for its brutal control of the Siberian railroad for more than two years and the attempts of the Allies and parties of the Russian Civil War to exploit the Legion for their ever-changing political interests. However, the initial agreement reached between the Allies and the Bolshevik government serves as an interesting example of a political agreement that is concluded in order to protect enemy deserters and defectors from punishment in the wider context of a peace treaty. Given the extremely high number of soldiers from the Austro-Hungarian Army who were captured during World War i – the total is estimated to be 2.77 million, with about 2 million captured by Russia69 – the percentage that defected to the Russian side, or anti-Habsburg military units was, in fact, small. Nevertheless, these men were received with distrust and suspicion upon their repatriation, as the Army High Command had suspected throughout the war “that many pows had either allowed themselves to be captured by the Russians,

67 68

69

The Czech legion’s long journey home, mhq: The Quarterly Journal of Military History, Vol. 12, No. 2, 2001, p. 43. The Treaty was signed between the new Bolshevik government of Russia and the Central Powers German, Austria-Hungary, Bulgaria and Turkey. See Article 8 Friedensvertrag zwischen Deutschland, Österreich-Ungarn, Bulgarien und der Türkei einerseits und Russland andererseits, signed at Brest-Litovsk on 3 March 1918, 77 RGBl. 1918, pp. 480–621. See also discussion below on repatriation after World War i in Chapter 3, A iii 1. Alon Rachaminov, pows and the Great War, p. 31.

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or deserted outright into enemy hands.”70 As a result, the Repatriation System (Heimkehrwesen) required that former prisoners of war needed to be cleared upon their repatriation, so a screening system was established, which involved “disciplinary re-education” measures and “justification proceedings.”71 ii

World War ii

iii

The Dayton Peace Agreement

Following World War ii the Allied and Associated Powers signed peace treaties with Germany’s former wartime allies Bulgaria, Finland, Hungary, Italy and Romania. Under the heading Political Clauses, the treaties contained guarantees of basic human rights and amnesty clauses under which the defeated nations agreed to abstain from prosecuting those who had collaborated with the Allied and Associated Powers.72 The World War ii peace treaties aimed to protect those who had sided with the Allied and Associated Powers but also to ensure prosecution of crimes committed by Germany and its allies. In order to benefit from the amnesty, therefore, deserters from the German Army, or from one of its allies, had to have defected. Those deserters who simply ran away and went into hiding were not covered and thus not protected from being prosecuted by their home country. A more recent example of the inclusion of an amnesty in a peace agreement can be found in the General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Peace Agreement,73 which ended the three-and-a-half-year war in Bosnia, one of the armed conflicts connected to the break-up of the Socialist Republic of Yugoslavia.74 Annex 7 of the Dayton Peace Agreement contained the Agreement on Refugees and Displaced Persons. It reaffirmed the right of all refugees and internally displaced persons to return freely to their homes of origin and contained an amnesty for these groups: 70 71 72 73

74

Ibid. p. 193. Ibid. p. 194. However, Rachamimov reports that of the 120,272 pows screened by May 1918, 1,620 were not cleared and 514 were labelled “suspected of disloyal activity.” Ellinor von Puttkamer, Peace Treaties (1947), in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Vol. viii, p. 114. Also referred to as the Dayton Accords, Paris Protocol or Dayton-Paris-Agreement, as the Peace Accord was reached in Dayton, Ohio, in 1995 and formally signed in Paris on 14 December 1995. The General Framework Agreement for Peace in Bosnia and Herzegovina is reproduced in un Doc. A/50/790-S/1995/999 or in 35 ilm 89 (1996), also at http://www.ohr.int.

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Any returning refugee or displaced person charged with a crime, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since January 1, 1991 or a common crime unrelated to the conflict, shall upon return enjoy an amnesty. In no case shall charges for crimes be imposed for political or other inappropriate reasons or to circumvent the application of the amnesty.75 The amnesty provision in the peace agreement was aimed specifically at refugees and displaced persons in order to encourage them to return to their prewar places of residence and thus reverse the ethnic cleansing that had taken place during the war.76 While not mentioned in the provisions of Annex 7, the un High Representative for the Implementation of the Peace Agreement worked to ensure that the implementing legislation by the two political entities of Bosnia and Herzegovina included deserters and draft-dodgers as beneficiaries of the amnesty. The Federation of Bosnia and Herzegovina passed an amnesty law in 1996 that covered deserters and draft-dodgers.77 The Republika Srpska eventually followed in 1999, when it amended the existing amnesty law to include deserters and draft-dodgers, thus allowing them to return to their places of origin without fear of being prosecuted for having deserted.78 A recent study by the Centre for Humanitarian Dialogue79 of peace treaties and agreements concluded between 1980 and 2006 shows that amnesties remain one of the most common justice mechanisms contained in such instruments. Thirty of the 77 peace treaties or agreements examined included an amnesty, with 22 of these being general amnesties and therefore covering all individuals 75 76 77

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Article 6, Chapter 1 of Annex 7 to the General Framework Agreement for Peace in Bosnia and Herzegovina. Paul C. Szasz, The Protection of Human Rights Through the Dayton / Paris Peace Agreement for Bosnia, ajil Vol. 90, No.2, 1996, p. 312. Office of the High Representative, 1st Report by the High Representative for the Implementation of the Peace Agreement to the Secretary-General of the United Nations (Covering the period October to December 1998), 14.06.1996, para. 63, available at: http:// www.ohr.int/other-doc/hr-reports/archive.asp?sa=on. Office of the High Representative, 14th Report by the High Representative for the Implementation of the Peace Agreement to the Secretary-General of the United Nations (Covering the period October to December 1998), 16.07.1999, para. 33, available at: http:// www.ohr.int/other-doc/hr-reports/archive.asp?sa=on [accessed on 04.10.2013]. The Centre for Humanitarian Dialogue is an independent and impartial foundation, based in Geneva, which promotes and facilitates dialogue to resolve armed conflicts and reduce civilian suffering, see www.hdcentre.org.

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and all violations or crimes associated with the conflict. In the remaining eight cases, the amnesty was limited, meaning that war crimes, crimes against humanity and genocide were excluded.80 Such a distinction between limited and general amnesties is not of relevance for the current study, however, as both types of amnesty would cover the military offence of desertion. (2)

National Amnesty Proclamations

i

Amnesties in France – the malgré-nous of Alsace-Lorraine

Amnesties might also be proclaimed independently of a peace agreement or peace treaty. The proclamations in the cases discussed below were specifically addressed to war-resisters, or deserters and defectors and followed a country’s controversial and critical examination of its role in a particular armed conflict. Amnesties played a major part in the post-World War ii justice process in France. Immediately after the war, the French government passed a number of amnesty laws benefiting those who had fought with the French resistance movement.81 Later on, however, during the years of 1950–1952 amnesty laws were also passed in favour of those who had been convicted of collaboration following the liberation of France,82 rapidly reducing the number of collaborators in French prisons.83 More controversial, however, was the amnesty law passed in 1953 for the so-called malgré-nous (‘against our will’) that represented a key aspect of the reconciliation and justice process with respect to the border regions of Alsace and Lorraine in France after World War ii. Following the de-facto annexation of the two provinces by Germany in 1940, military service in the German Army was made obligatory for men born between 1920 and 1924. While approximately 40,000 evaded the service by fleeing to other parts of France, or by deserting, Germany recruited between 130,000 and 160,000 men from Alsace and Lorraine into the Wehrmacht.84 While some 80

Leslie Vinjamuri / Aaron P. Boesenecker, Accountability and Peace Agreements – Mapping trends from 1980 to 2006, p. 16. 81 See: loi n° 46–729 du 16 avril 1946 portant amnistie, jo 17-04-1946 pp. 3222–3224; loi n° 47–1504 du 16 août 1947 portant amnistie, jo 17-08-1947 pp. 8055–8059. 82 loi n° 51–18 du 5 janvier 1951 portant amnistie, instituant un régime de libération anticipée, limitant les effets de la dégradation nationale et réprimant les activités antinationales, jo 06-01-1951 pp. 260–262, available at: http://www.legifrance.gouv.fr/. 83 Sarah Farmer, Postwar Justice in France: Bordeaux 1953, p. 195. 84 Laird Boswell, Should France be Ashamed of its History? Coming to Terms with the Past in France and its Eastern Borderlands, p. 83; Sarah Farmer, Postwar Justice in France: Bordeaux 1953, p. 197.

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of these recruits openly collaborated with Nazi Germany and voluntarily joined the German Army, many others, commonly referred to as the malgré-nous, were forcefully recruited, with the lines between the two groups likely blurred at the time and certainly difficult to distinguish in retrospect after the war had ended. Accordingly, the first years after the war were characterised by largescale purges in the Alsace and Lorraine provinces and resulted in the highest percentage of guilty verdicts in the country for Nazi collaborators.85 In the early 1950s, however, the French government started to be more and more concerned about reconciliation and re-integrating the economically strong provinces into the French nation. At the same time, in Alsace, an association of malgré-nous veterans, called the Association des déserteurs, évadés et incorporés de forces (“adeif”),86 was gaining increasing support for recognition of the malgré-nous as victims of the war rather than traitors to their home country. When 21 members of the Waffen SS were put on trial in Bordeaux for the massacre in Oradour-sur-Glane in 1953, the guilty verdict for the 14 Alsatians among them87 resulted in uproar in the Alsace region and large-scale civil protests led by the adeif. To prevent further alienation of the border regions and end the impending national crisis, the French government passed a law in 1953 that guaranteed amnesty for all those who had been forcefully incorporated into the German Army for all crimes committed by the units in which they had served.88 The amnesty law has been criticised as an act of political expediency, which interfered with a judicial process and nurtured an exaggerated sense of victimhood in the Alsace region rather than fostering an open debate about the different facets of the region’s World War ii history.89 In the months that followed the trial, the president pardoned the two men who had been sentenced to death at the Oradour trial and, by 1958, all those convicted by the

85

Laird Boswell, Should France be Ashamed of its History? Coming to Terms with the Past in France and its Eastern Borderlands, p. 83 with additional references in Footnote 19. 86 Asscoiation of Deserters, Escapees and Forcibly Conscripted Soldiers. 87 Farmer reports that one of them had volunteered while the other 13 had been drafted in late 1943/early 1944 and transferred to the ss a few weeks later, see: Sarah Farmer, Postwar Justice in France: Bordeaux 1953, p. 194. 88 “Art. 1 : Amnistie pleine et entière est accordée aux français incorporés de force dans l’armée allemande, pour tout fait qualifié crime ou délit commis au cours d’une action criminelle accomplie par l’unité dans laquelle ils avaient été versés.,” Loi no 53–112 du 20 février 1953 portant amnistie en faveur des Français incorporés de force dans les formations militaires ennemies parue au Journal officiel de la République française 21-02-1953 p. 1747 [available at www.legifrance.gouv.fr]. 89 Sarah Farmer, Postwar Justice in France: Bordeaux 1953, p. 204.

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Bordeaux court had been freed.90 Following the 1953 amnesty law for the malgrénous, nobody from Alsace or Lorraine has been tried for crimes committed during World War ii.91 ii

Presidential Clemency Program of 1974 in the u.s.a.

Another example of a national amnesty proclamation is the so-called Presidential Clemency Program that was enacted under President Gerald R. Ford in 1974. The Program can be viewed as a result of the political and public controversy that surrounded the u.s. engagement in Vietnam, which divided American society like no other previous international military engagement of u.s. troops, with many questioning the legality of the u.s. operation.92 This controversy also reflected society’s attitude towards deserters and war-resisters, and the question whether their criminal prosecution was justifiable or not. Young Americans, in particular, developed an aversion to military service and refused to carry out certain orders related to service in Vietnam.93 Between 1964 and 1973, nearly 507,000 cases of draft evasion and desertion were recorded, a far higher rate than in World War ii and the Korean War.94 In the resulting courts-martial, many deserters and draft-evaders invoked the illegality of u.s. action, and argued that although “waging an aggressive war may not be a crime for which common soldiers are guilty, nevertheless a court’s determination that a war is aggressive would invalidate any induction orders.”95 However, during the ongoing u.s. military engagement in Vietnam, these arguments were not successful before the home government.96 90 91

92

93 94

95 96

Ibid. p. 205. 70 years after the end of World War ii, four malgré-nous veterans attended for the first time the celebrations commemorating the landing of the Allied Forces in Normandy on 6 June 1944, reported in: L’alsace.fr, Des Malgré-Nous aux cérémonies du Débarquement, 13.05.2014. Richard Falk, Six Legal Dimensions of the United States Involvement in the Vietnam War, pp. 234/235; Anthony D’Amato / Harvey Gould / Larry Woods, War Crimes and Vietnam: The “Nuremberg Defense” and the Military Service Resister, p. 453; Beverly Bell / Bruce Bell, Desertion and Antiwar Protest – Findings from the Ford Clemency Program, Armed Forces and Society, Vol. 3, No. 3, 1977, p. 433. Donald A. Peppers, War Crimes and Induction: A Case for Selective Nonconscientious Objection, Philosophy and Public Affairs, Vol. 3, No. 2, 1974, p. 131. Sydney Axinn, A Moral Military, p. 57; see also data of the u.s. Department of Defense reported in: Paul Savage / Richard Gabriel, Cohesion and Disintegration in the American Army – an alternative perspective, Armed Forces and Society, Vol. 2, No. 3, 1976, p. 347. Beverly Woodward, Nuremberg Law and us Courts, Dissent, 1969, reprinted in: Richard Falk (ed.), The Vietnam War and International Law, Vol. 3, pp. 480/481. See for example: United States v. Johnson, 17 uscma 246, 38 cmr 44 (1967); Captain Dale E. Noyd, fr 28084, Appellant v. Honorable Robert S. McNamara, Secretary of Defense et al.,

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Many saw the high desertion rate in the u.s. military during the Vietnam War as an expression of political protest against the u.s. engagement in Vietnam.97 Others argued that the high desertion rate was a result of the lack of support for the military within American society in general, and the poor and unmotivated management style of the army leadership.98 Efforts to explain the extremely high desertion rate in the u.s. forces during the Vietnam War resulted in numerous sociological and criminological studies. One important contribution was a study by the Army Research Institute for the Behavioral and Social Sciences on the link between ideology and desertion, which asked Vietnam deserters about their motives. Of the persons questioned who had evaded the draft, 79 per cent cited opposition to war in general as the main reason, while only 12 per cent stated that their desertion resulted from objections to this specific war.99 In 1974, President Ford attempted a political solution to reconcile u.s. society, which remained deeply divided over the Vietnam War. Under the auspices of the Presidential Clemency Program an amnesty was proclaimed for all deserters and draft-resisters who evaded military service between 4 August 1964 and 28 March 1973. Essentially, the programme provided for an administrative solution in cases where there had not yet been a conviction, if the person committed to fulfil a period of alternative service of 24 months’ duration.100 For those who had already been convicted by a civilian or military court, the programme established a clemency review board to decide on a case-by-case basis whether or not the deserters or war-resisters should be pardoned.101 When announcing the clemency programme, President Ford stressed that “the primary purpose of this program is the reconciliation of all our people and Appellees, 378 F. 2d 538 (1967). See also the discussion below on a right to a partial or selective conscientious objection in Chapter 2, B ii. 97 Beverly Bell / Bruce Bell, Desertion and Antiwar Protest – Findings from the Ford Clemency Program, Armed Forces and Society, Vol. 3, No. 3, 1977, p. 433. 98 Paul Savage / Richard Gabriel, Cohesion and Disintegration in the American Army – an alternative perspective, Armed Forces and Society, Vol. 2, No. 3, 1976, pp. 340–376; Franz Seidler, Fahnenflucht, p. 439. 99 Beverly Bell / Bruce Bell, Desertion and Antiwar Protest – Findings from the Ford Clemency Program, Armed Forces and Society, Vol. 3, No. 3, 1977, p. 437. 100 Edward Shils, A Profile of the Military Deserter, Armed Forces and Society, Vol. 3, No. 3, 1977, p. 429. 101 Gerald R. Ford, Proclamation 4313 – Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters, 16 September 1974. Online by Gerhard Peters and John T. Wooley, The American Presidency Project. http://www.presidency.ucsb.edu/ ws/?pid=4714.

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the restoration of the essential unity of Americans within which honest differences of opinion do not descend to angry discord and mutual problems are not polarized by excessive passion.”102 Three years later, President Jimmy Carter revisited the issues and granted a “full, complete and unconditional pardon” to civilians who had evaded the draft during the Vietnam War.103 Like the Presidential Clemency Program of 1974, the Carter Proclamation of Pardon was, in fact, a combination of an amnesty that prevented future criminal prosecution of draft-evaders and a pardon that cancelled the penalties of those already convicted, provided that no force or violence had been used when committing the offence. Following the Proclamation of Pardon, pending indictments were dismissed, pending investigations terminated, and no further investigations were initiated. Furthermore, those who had received a conditional clemency or pardon under the 1974 Clemency Program received full and unconditional relief if they otherwise qualified under the terms of the Carter Proclamation.104 iii

Amnesties following the Yugoslav Wars

As mentioned above, the internationally-brokered Dayton Peace Agreement for Bosnia and Herzegovina contained a general amnesty provision that was then implemented through the national amnesty laws of the two political entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. In the aftermath of the violent break-up of the Socialist Federal Republic of Yugoslavia, other newly-established states also enacted amnesty laws that benefited deserters. The Republic of Montenegro, one of the two republics that constituted the Federal Republic of Yugoslavia,105 passed an amnesty law for deserters in 1999.106 The Republic of Serbia followed with an amnesty law in

102 See: Gerald R. Ford, Remarks on Clemency for Vietnam Era Draft Evaders, 16 September 1974, transcript available at: http://millercenter.org/president/speeches/detail/3522. 103 Proclamation 4483 of 21 January 1977, Granting pardon for violations of the Selective Service Act, August 4, 1964 to March 28, 1973, 42 fr 4391, 3 cfr, 1977, Comp., p. 4. 104 Jimmy Carter, Executive Order 11967 – Relating to violations of the Selective Service Act, August 4, 1964 to March 28, 1973, 21 January 1977, 42 fr 4331, 3 cfr, 1977 Comp., p. 91. 105 The Federal Republic of Yugoslavia was established in 1992 from the two republics of Serbia and Montenegro. It existed until 2003, when it was reconstituted as the State Union of Serbia and Montenegro. As Montenegro became an independent state in 2006, the Republic of Serbia became the legal successor of the State Union. The Republic of Serbia has yet to recognise the independence of Kosovo, which was declared in 2008. 106 Katharina Schnöring, Deserters in the Federal Republic of Yugoslavia, International Journal of Refugee Law, Vol. 13, No. 1 / 2, p. 153.

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early 2001,107 which covered thousands of young Serbs and Montenegrins who evaded military service between 27 April 1992 and 7 October 2000.108 According to Article 1 of this law, an amnesty is granted for, among other reasons, failure to act on a draft summons and avoiding military service pursuant to Article 214, avoiding military service by mutilation or deceit pursuant to Article 215, defection or flight from the Yugoslav Army pursuant to Article 217. In October 1996, Croatia granted a general amnesty to perpetrators of criminal acts committed during and related to the aggression, armed rebellion or armed conflicts in the Republic of Croatia during the period from 17 August 1990 to 23 August 1996.109 While not specifically mentioning deserters, the wording of Article 1 of the law, which only excluded the most serious violations of international humanitarian law and constituting war crimes, clearly seems to cover the military offence of desertion committed during the relevant period. In July 2003, the Republic of Macedonia passed an amnesty law specifically addressing offences related to military duties. The law provides an amnesty for persons who have evaded military service, or who arbitrarily departed and fled from the armed forces.110 As the law only applies to persons who, on the date it was passed, were more than 30 years old, it covers exclusively desertions and draft evasion during the period of the break-up of the Socialist Republic of Yugoslavia in the 1990s and the insurgency of ethnic Albanians in 2001. With the amnesties for deserters and draft-dodgers, the new states acknowledged the ethnic tensions within society and the ambiguous role of the military during the Yugoslav wars. The amnesties send a clear signal that, in light of the inter-ethnic violence and the atrocities committed during the wars in the Balkans, those who refused to take up arms against their countrymen and participate in military actions that led to massive human rights abuses and violations of international humanitarian law must not be punished.111 107 Edict on Promulgation of the Amnesty Law [Serbia], 26 February 2002, available at: http:// www.refworld.org/docid/3dd512232.html. 108 Louise Mallinder, Amnesty, Human Rights and Political Transitions – Bridging the Peace and Justice Divide, p. 87. 109 Article 1 of the Law on General Amnesty [Croatia], 5 October 1996, available at: http:// www.refworld.org/docid/3ae6b4de2c.html. 110 Law on Amnesty of Citizens of the Republic of Macedonia Who Did Not Complete Their Military Obligation [The former Yugoslav Republic of Macedonia], 25 July 2003, unofficial translation available at: http://www.refworld.org/docid/3fcb355c2.html. 111 The Commission on Human Rights had repeatedly encouraged States to consider granting, and effectively implementing, amnesties and restitution of rights, in law and in practice, for those who had refused to undertake military service on grounds of conscientious

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(b)  Excursus: Amnesties for Members of Non-state Armed Forces in Internal Conflicts A distinction needs to be made between the above examples of amnesties for deserters from government forces and amnesties proclaimed during an internal armed conflict for members of rebel groups, or non-state militias who desert their military units, or defect back to government forces. While desertion or defection from non-state armed groups in internal armed conflicts do not fall within the scope of this study, the amnesties proclaimed with regard to such desertions warrant mentioning here, given their recent importance as a political or transitional justice tool for governments trying to overcome internal conflict and win support for a peace deal.112 During fragile peace and reconciliation processes, promises of an amnesty are commonly made to show a government’s willingness to accept former adversaries as stakeholders in a peace process and to provide an incentive for non-state actors to lay down arms.113 For example, in an attempt to end the conflict with the Lord’s Resistance Army (“lra”), the Government of Uganda passed an Amnesty Act in 2000 as a motivation to the lra combatants to denounce violence and return to their communities.114 While not part of a concrete peace agreement with the lra, the amnesty was aimed at weakening the opposition forces by

objection. See, for example: Analytical report of the Office of the High Commissioner for Human Rights on best practices in relation to conscientious objection to military service, E/ CN.4/2006/51, Paragraph 17 and un Commission on Human Rights, Resolution 2004/35 on Conscientious Objection to Military Service, 19 April 2004, E/CN.4/RES/2004/35. For more on the right to conscientious objection, see below in Chapter 2, B ii. 112 Mallinger reports “that the most common beneficiaries of amnesty laws are opponents of the state, with protection explicitly granted to this group in three times the number of amnesty laws as for state agents,” Louise Mallinder, Amnesty, Human Rights and Political Transitions – Bridging the Peace and Justice Divide, p. 84. 113 The imbalance under domestic law between belligerents from state militaries and those from non-state armed groups in non-international conflicts was acknowledged in ap ii through the inclusion of a call for amnesty at the end of hostilities. Article 6 (5) of ap ii provides: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.” 114 The 2000 Amnesty Act is available online at the Uganda Legal Information Institute: http://www.ulii.org/ug/legislation/consolidated-act/294 . See also: Integrated Regional Information Networks (irin), Uganda: Amnesty or prosecution for war criminals?, 17 May 2012, available at: http://www.refworld.org/docid/4fba2c412.html.

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enticing rebel fighters to desert from their military units and reintegrate into Ugandan society. One of the most widely discussed examples of the use of amnesties as “carrots for peace” comes from the protracted peace process in Colombia. Since the mid-1960s, Colombia has witnessed political violence arising from an internal armed conflict between the Colombian State, left-wing rebels and right-wing paramilitaries, which terrorised the civilian population and resulted in the displacement of almost 4 million people between 1985 and 2007.115 Over the past decades, the Colombian government has repeatedly offered peace deals that included amnesties for those members of paramilitary and guerrilla groups who voluntarily disarmed.116 A recent attempt, in 2005, involved the adoption of the controversial Law on Justice and Peace, which, among other things, establishes a complex system of amnesties for demobilised guerrilla fighters.117 The international debate and criticism that have accompanied the peace process in Colombia illustrate the tension that exists between amnesties and justice in the context of peace agreements. International and national human rights organisations have criticised the granting of impunity to perpetrators of the horrendous atrocities committed during the conflict and the disregard for the victims’ rights to truth, justice and reparations.118 The Colombian government, however, has continued

115 Julián Guerrero Orozco / Mariana Goetz, Reparations for Victims in Colombia: Colombia’s Law on Justice and Peace, in: Carla Ferstman, Mariana Goetz and Alan Stephens (ed.), Reparations for victims of genocide, war crimes and crimes against humanity: systems in place and systems in the making, 2009, p. 436. 116 Julián Guerrero Orozco and Mariana Goetz, Reparations for Victims in Colombia: Colombia’s Law on Justice and Peace, p. 437. bbc NEWS, Colombia seeks rebels’ surrender, 27.08.2008, available at: http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/7582292.stm. bbc news, New French life for ex farc rebel, 10.12.2008, available at: http://news.bbc.co.uk/go/ pr/fr/-/2/hi/americas/7774648.stm. 117 Law on Justice and Peace (Ley N° 975 por la cual se dictan disposiciones para la reincorpo­ ración de miembros de grupos armados organizados al margen de la ley, que contribuyan de manera efectiva a la consecución de la paz nacional y se dictan otras disposiciones para acuerdos humanitarios), adopted by Congress on 25 July 2005, Daily Official Journal 45,980, available at: http://www.refworld.org/docid/46d68e2c2.html. 118 See for example: José E. Arvelo, International Law and Conflict Resolution in Colombia: Balancing Peace and Justice in the Paramilitary Demobilization Process, Georgetown Journal of International Law Vol. 37, 2006, pp. 419–425. Paula Torres / Yaneth Giha / Sergio Jaramillo, Transitional Justice and ddr: The Case of Colombia, International Center for Transitional Justice, June 2009, available at http://www.ictj.org/sites/default/files/ICTJ -DDR-Colombia-ResearchBrief-2009-English_0.pdf.

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to offer amnesties to members of the guerrilla and paramilitaries as an incentive to move the peace process forward. In the cases of Uganda, Colombia and other internal conflicts,119 amnesties serve as a strategic tool in the war against or the peace-making attempts towards these adversaries and, as such, are aimed exclusively at members of other parties to the conflict. Members of state forces who desert during the internal conflict do not benefit from these amnesties. On the contrary, as shown above, the Colombian military penal code stipulates that the punishment for desertion increases by half, if the offence is committed in times of internal war, or rebel movements.120 2 Pardons In addition to the clemency initiatives of us presidents in the 1970s described above, Russia offers a surprising example of a pardon benefiting deserters after the end of World War ii. Stalin’s 1945 Pardon In 1945, Josef Stalin granted a pardon in connection with Russia’s celebration of its victory over Germany. The pardon primarily benefited offenders of petty crimes and those sentenced under Stalin’s harsh wartime decrees, but it also called for the release of people sentenced for military crimes, such as the failure to report for mobilisation or the draft, failure to follow orders or commands, and desertion. While there was a tradition in Russia of granting pardons to ordinary criminal offenders on the occasion of celebratory or special anniversaries, such as the formation of the Soviet Union and the

See also: Human Rights Watch, Colombia: Letting Paramilitaries Off the Hook, Jan 2005, available at: http://reliefweb.int/sites/reliefweb.int/files/resources/5D91FE2DB1731D1BC1 256F8E00499031-hrw-col-18jan.pdf. Position Paper of the Association of Family of Detained and Disappeared, Asociación de Familiares de Detenidos Desaparecidos (asfaddes), available at: www.asfaddes.org.co/fdocumentacion.htm. Julián Guerrero Orozco / Mariana Goetz, Reparations for Victims in Colombia: Colombia’s Law on Justice and Peace, p. 440. 119 Other examples are Somalia and Afghanistan. For Somalia’s treatment of disengaged combatants from the anti-government armed insurgents, see: Workshop Summary, International Lesson-Sharing Workshop on Disengaged Former Combatants, 21–22 June 2011, Entebbe, Uganda, published by the International Organization for Migration [on file with the author]. For the amnesty proclaimed in Afghanistan for Taliban fighters, see: Jon Boone, Afghanistan quietly brings into force Taliban amnesty law, The Guardian, Thursday 11 February 2010. 120 See Chapter 1, B ii.

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October revolution, the pardon proclaimed in 1945 represented an unprecedented release of prisoners from the ussr’s notorious labour camps. Of the reported 620,753 prisoners released under the pardon, 15 per cent, or 95,407 prisoners, were serving time for military offences.121 Individual Pardon for World War i Deserter An example of an individual pardon for a deserter is the case of the Australian soldier Walter Lesley Schwarz, who deserted from the Australian Imperial Force (“aif”) during World War i while stationed in England. Schwarz, who claimed that he had been discriminated against in the aif because of his German name, later joined the Royal Fusiliers, became a lieutenant and won a number of military medals. King George v pardoned him for his desertion in 1921.122 Decision not to Pursue Criminal Prosecution While not a pardon for a deserter in the strict sense, the case of the Iraq War objector Ehren Watada presents another interesting example in this context. In June 2006, Ehren Watada was the first commissioned officer in the u.s. armed forces to refuse to deploy to Iraq. Watada claimed that the war in Iraq was illegal and that participating in it would make him party to war crimes under the doctrine of command responsibility. He was discharged and court-martialled. After the first court-martial ended in a mistrial, he was court-martialled in a second trial. However, when President Obama took office in 2009, the Justice Department decided not to pursue the case further, leading to its dismissal by the Court in May 2009.123 3 Clemency Denied Despite the fact that amnesties and pardons are common tools used by governments in support of post conflict peace-building and reconciliation processes, the proclamation of a clemency specifically for deserters of government forces 121 All information about the decree “On Amnesty in Connection with the Victory over Hitler’s Germany” of 7 July 1945 is taken from: Golfo Alexopoulos, Amnesty 1945: The Revolving Door of Stalin’s Gulag, Slavic Review, Vol. 64, No. 2, 2005, pp. 276–280. While Alexopoulos uses the term “amnesty,” the decree qualified as a pardon, as it cancelled the penalty of persons already convicted rather than preventing their criminal prosecution. 122 See: Australian War Memorial, Encyclopedia, Desertion and the Death Penalty, available at: http://www.awm.gov.au/encyclopedia/desertion.htm [accessed on 3 October 2013]. 123 Michael Wong, The Truth Set Him Free: Ehren Watada vs. the u.s. Army, 25 March 2011, In the Mind Field – News and Commentary From Veteran Writers, available at: http://www .inthemindfield.com/2011/03/25/the-truth-set-him-free-ehren-watada-vs-the-u-s-army/.

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remains an exception, and punishment is usually severe. As the following two contemporary examples show, the granting of clemency is, above all, a political decision and, as such, entirely dependent on the political climate within a country. (a) 2002/2003 Iraq War Given the clemency measures extended by the u.s. government under both Republican and Democratic Administrations following the Vietnam War, the difference in the approach towards deserters during the 2002/2003 invasion of Iraq and the occupation that followed is noteworthy. While the legality of the u.s. military engagement in Iraq was possibly more controversial than that in Vietnam,124 the general attitude of the American public towards deserters seemed to be one of indifference. The reasons for this most certainly include the fact that the draft ended in 1973, which meant that only those who had at some point voluntarily joined the us military were forced to serve in Iraq. Furthermore, since the terrorist attacks on the u.s. on 11 September 2001, the u.s. public had a different attitude towards military engagements that claim to address a direct security threat against the u.s. In any event, no programme of clemency has been announced for those who deserted during the Iraq war, and these men and women, if captured or deported to the u.s., face being court-martialled and punished.125 While the vast majority of u.s. deserters have been dealt with administratively by being released with a less-than-honourable discharge, others have been prosecuted and imprisoned.126 An example is the case of Private First Class Kimberly Rivera, a mother of four and pregnant with her fifth child, and who was 124 Rainer Hofmann, International law and the use of military force against Iraq, pp. 9–34; Michael Bothe, Der Irak-Krieg und das völkerrechtliche Gewaltverbot, Archiv des Völkerrechts, Vol. 41, No. 3, 2003, pp. 255–271; Wolff Heintschel von Heinegg, Irak-Krieg und ius in bello, Archiv des Völkerrechts, Vol. 41, No. 3, 2003, pp. 272–294; International Commission of Jurists, icj Deplore Moves toward a War of Aggression on Iraq, Press Communication of 18 March 2003, available at: http://www.icj.org/; see also: BVerG 2WD 12.04 , 21 June 2005, pp. 72–80 and the judgment’s review by Nikolaus Schultz, Was the War on Iraq Illegal? – The German Federal Administrative Court’s Judgment of 21st June 2005, German Law Journal, Vol. 7, No 1, 2005, pp. 25–44. 125 On asylum claims of us deserters in Canada, see also Chapter 4, A ii 1 (b). 126 In the joined cases of Hinzman v. Canada and Hughey v. Canada, 2007 fca 171, the Canadian Court referred to statistics adduced by the Crown, which indicate that approximately 94% of deserters from the u.s. army received an administrative discharge; cited in: Penelope Mathew, Draft dodger/deserter or dissenter? Conscientious objection as grounds for refugee status, p. 192.

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sentenced to 14 months in military prison following her desertion in 2006. She deserted during a two-week home leave in December 2006, citing opposition to the Iraq war as a reason for her decision not to return for a second tour of duty in Iraq. In early 2007 she fled with her family to Canada, where they lived until 2012 when, following a deportation order by the Canadian authorities, she voluntarily presented herself at the u.s. border. Following a plea agreement she was given a bad-conduct discharge and her sentence was reduced from 14 to 10 months.127 (b) South Lebanon Army Another interesting example can be found in the cases of former members of the South Lebanon Army (“sla”) in Israel. Having constituted itself from a fragmented Lebanese Army Unit in 1976, the sla received military and humanitarian support from Israel and became Israel’s ally during the Israeli occupation of South Lebanon. As such, the members of the sla can be characterised as deserters from the Lebanese Army who defected to the enemy during the war in South Lebanon. When Israel unilaterally withdrew from Lebanon in 2000, the sla was not able to maintain control of the South, and, fearing reprisals from Hizbollah and Shiite supporters in South Lebanon, thousands of sla members and their families fled to Israel.128 While many lower-ranking sla members eventually returned to Lebanon, where they were tried and given generally moderate prison sentences,129 the senior sla members and those belonging to its feared intelligence apparatus, have remained in Israel, making their return to Lebanon dependent on an assurance of an amnesty that would protect them from criminal prosecution and punishment. The Lebanese government, however, remains divided over the issue. Some fear that an amnesty for and return of sla fighters to Lebanon would risk a renewed Israeli influence in Lebanon.

127 abc News, Army Deserter arrested at Border; Opposed Iraq War, 22 September 2012; Democracy Now, Kimberly Rivera, Pregnant Mom of 4, Sentenced to Military Prison for Refusing to Serve in Iraq, 30.04.2013, available at: http://www.democracynow.org/2013/4/30/ kimberly_rivera_pregnant_mom_of_4. For other examples see: War resister’s Support Campaign, War resisters in Canada, available at: http://www.resisters.ca/resisters_stories.html. 128 Mordechai Nisan, Did Israel Betray Its Lebanese Allies?, Middle East Quarterly, December 2000, p. 31. 129 Nicholas Blanford, The quandary of an sla amnesty, Commentary Daily Star Lebanon, 16 August 2005, available at: http://www.dailystar.com.lb/Opinion/Commentary/Aug/16/ The-quandary-of-an-SLA-amnesty.ashx#axzz2h24a8hch.

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Others see the sla fighters as victims of circumstances in the complex conflict over Lebanese, Israeli and Syrian interests in South Lebanon and have called for a general pardon and reintegration of the militiamen into Lebanese society.130 With clemency initiatives in Lebanon being blocked politically, Israel eventually decided in March 2004 to grant the former Lebanese militiamen permanent residency status.131 iii Legal Rehabilitation As a last point in the overview of the treatment of deserters by their home country during – or rather, with regard to – armed conflicts, the legal rehabilitation of deserters needs to be mentioned. In international law, the term ‘rehabilitation’ is mainly used to mean a type of reparation, in the context of a right to remedy for victims of serious human rights abuses. The Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law132 mention rehabilitation together with restitution, compensation, satisfaction and guarantees of non-repetition. Nevertheless, the exact meaning of rehabilitation under international law remains unclear and, depending on the circumstances of the case, might involve medical, legal, financial or in-kind measures to respond to the harm experienced by those who suffered serious human rights violations.133 In the context of the rehabilitation of deserters, the term is understood as the sovereign act of annulling a criminal conviction in order to restore a person’s legal reputation and place him or her in the same position as if the conviction had never happened. The most pertinent examples for such legal rehabilitation of deserters come from Germany, from two different periods of the country’s 20th-century history: first, World War ii deserters convicted by the Nazi regime, and second, 130 Ibid. 131 Gideon Alon, Bill comes to grant former sla militia members permanent resident status, Haaretz, 18 March 2004, available at: http://www.haaretz.com/print-edition/news/ bill-comes-to-grant-former-sla-militia-members-permanent-resident-status-1.117215. 132 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution 60/147, 16 December 2005, para. 18. 133 For a discussion of the remedy under un human rights treaty law and other un instruments, as well as under regional human rights law, see: Clara Sandoval Villalba, Rehabil­ itation as a Form of Reparation under International Law, Redress Trust, December 2009.

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deserters convicted during the rule of the Sozialistische Einheitspartei Deutschlands (“sed”)134 in the former German Democratic Republic (“gdr”). 1 Rehabilitation of Wehrmacht Deserters (a) Germany Immediately after the end of World War ii, different legal, political and sociological aspects of Nazi rule in Germany, the Holocaust and the horrific war crimes committed by Germany during the war began to be examined, and “coming to terms with Germany’s Nazi past” has been an integral part of the country’s internal and international reconciliation and rehabilitation proc­ esses ever since. A relatively late part of this process has been the legal rehabilitation of those who were politically persecuted under the Nazi regime and whose convictions were in violation of fundamental principles of the rule of law.135 Deserters first became part of these discussions in the late 1980s, when public debates began in some cities on the subject of dedicating memorials to Wehrmacht deserters. Supporters of the memorials stressed that the deserters’ decision to no longer fight in Germany’s illegal war of aggression was a heroic act and, given the crimes committed, must be considered as having been “the right thing to do.” Critics perceived memorials as an attempt generally to discredit military values, such as courage, discipline, obedience and sense of loyalty and duty, and, as such, as an attack on the present-day German army (Bundeswehr).136 Some cities, e.g. Bremen, Erfurt, Göttingen, Cologne and Potsdam, went ahead and erected memorials to deserters. Others were prompted to examine the fate of Wehrmacht deserters in their communities – in Wuppertal, for example, information was compiled and published for the first time on the shooting of young military deserters on the outskirts of the city during the last months of World War ii.137 In 1990, the parliamentary group of the Green Party (Die Grünen) filed a petition in the German Parliament asking for the rehabilitation of and compensation

134 The Sozialistische Einheitspartei Deutschlands, the Socialist Unity Party, was the only political party that existed in the gdr. 135 See: “Gesetz zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrecht­ spflege vom 25. August 1998” (BGBl. I S. 2501), last amended on 24 September 2009 (BGBl. I S. 3150). 136 For further information about the discussions at the municipal level, see the Chapter “Der Streit in den Kommunen” in: Seidler, Fahnenflucht, pp. 477 ff. 137 See, for example in Wuppertal: Informationen aus dem Stadtarchiv, Deserteure in Wup­ pertal, Dokumentation zu den Erschießungen 1944/45, Vol. 7, Wuppertal, 1992.

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for deserters “persecuted” during the Nazi regime.138 The extended parliamentary debates that were conducted during multiple parliamentary terms revealed how emotionally charged the topic of World War ii desertions remained in present-day Germany, as it touches on broader questions of the role of the Wehrmacht during World War ii and the guilt of those who continued to serve in the military until Germany’s ultimate defeat.139 Members of the Social Democratic Party (spd) and the Green Party demanded that all convictions for desertion during the Nazi regime be declared as unlawful, without an individual examination of each case.140 It was argued that these convictions did not represent judgments of independent courts of law but acts of a terror regime. Those who refused to take part in an illegal war of aggression should not bear the stigma of a criminal conviction.141 The governing coalition of the Christian Democratic Union (cdu), the Christian Social Union (csu) and the Free Democratic Party (fdp), on the other hand, was against any indiscriminate rehabilitation of deserters, as they feared that such an act would be perceived as devaluing all those soldiers who had fought until Germany’s capitulation in the belief that they owed the performance of their duty. It took almost seven years of parliamentary and public debate until all parties in the German Parliament agreed on a resolution. The parliamentary resolution of May 1997 established that convictions by the military courts of the Wehrmacht for desertion, refusal to join the military and undermining of military strength (Wehrkraftzersetzung) were in violation of basic principles of justice and thus unlawful, unless the act at the time would also be considered illegal according to today’s standards.142 138 See Petition of the Die Grünen of 29.08.1990, “Rehabilitierung und Entschädigung der unter der NS-Herrschaft verfolgten Kriegsdienstverweigerer, Deserteure und ‘Wehr­ kraftzer­setzer’,” BT-Drs. 11/7754. 139 See Alfred de Zayas, Stellungnahme vor dem Rechtsausschuß des Bundestages zu den Drucksachen 13/353 und 13/354 betr. Unrechtsurteile wegen Fahnenflucht/Desertion, Wehrkraftzersetzung oder Wehrdienstverweigerung während des Zweiten Weltkrieges, 1 huvi 1996, pp. 18–27; Rainer Beckmann, Der Streit um die Rehabilitierung der Wehrmachtsdeserteure, 2 NZWehrr 1998, pp. 45–67; Reports regarding the Parliamentary Hearing of the Judicial Committee on 29 November 1995 in the Frankfurter Rundschau on 20.11., 21.11, 30.11., 1.12.1995 and the Süddeutschen Zeitung on 30.11. and 1.12.1995; Der Spiegel, Tür auf, Todesurteil, No. 20/1997 of 12 May 1997. 140 See: “Anträge der 13. Wahlperiode,” BT-Drs. 13/353 (Bündnis 90/Die Grünen) and BT-Drs. 13/354 (spd). 141 See: Frankfurter Allgemeine Zeitung of 24 April 1997, p. 5; Volker Ullrich, Den Mut haben, davonzulaufen, ZEIT-Punkte, No. 3, 1995. 142 Entschließung des deutschen Bundestages vom 15.05.1997, Bundestagsdrucksachen, 13. Wahlperiode, BT-Drs. 10/848.

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A year later, the German Parliament passed a law on the repeal of National Socialist convictions and judgments (“NS-AufhG”).143 The NS-AufhG allowed for the legal rehabilitation of those whose conviction in violation of basic principles of justice took place after 30 January 1933 and the aim of which was to enforce or maintain the unlawful National Socialist regime, and which was based on political, military, racial, religious or ideological reasons.144 While the law automatically annulled certain convictions, convictions for desertion required an examination and positive determination by the office of the prosecutor in each individual case. With regard to deserters, the law fell short of what had been foreseen in the initial petition of the Green Party. In 2002, the then governing coalition of the Social Democratic Party and the Green Party, together with the Party of Democratic Socialism (pds), changed the NS-AufhG to the extent that convictions of German military courts according to Articles 69 and 70 of the Military Criminal Code, i.e. desertion, were deemed to be annulled without prior individual examination.145 In 2009, the NS-AufhG was amended again,146 in order to include in the cases that were annulled without prior individual examination the sizeable number of convictions for treason in wartime (Kriegsverrat) according to Articles 57, 59 and 60 of the Military Criminal Code.147 The Nazi regime had extended the application of the provisions of Kriegsverrat to avenge a variety of acts committed against the perverted war interests of Nazi Germany, including attempts to save the life of Jews, or transmitting reports about their 143 Gesetz zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege und von Sterilisationsentscheidungen der ehemaligen Erbgesundheitsgerichte (NS-AufhG), 25.08.1998, BGBl. I S. 2501. 144 “Durch dieses Gesetz werden verurteilende strafgerichtliche Entscheidungen, die unter Verstoss gegen elementare Gedanken der Gerechtigkeit nach dem 30. Januar 1933 zur Durchsetzung oder Aufrechterhaltung des nationalsozialistischen Unrechtsregimes aus politischen, mil­ itärischen, rassischen, religiösen oder weltanschaulichen Gründen ergangen sind, aufgehoben. Die den Entscheidungen zugrunde liegenden Verfahren werden eingestellt.,” Article. 1, § 1 des Gesetzes zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege und von Sterilisationsentscheidungen der ehemaligen Erbgesundheitsgerichte, 25.08.1998, BGBl. I S. 2501. 145 Additional changes suggested by the pds to provide financial compensation for rehabilitated victims and to include rehabilitation for all convictions for treason (“Landesverrat”) according to § 91b of the Criminal Code of the German Reich did not win a majority of votes; BTDrucks 14/5612. 146 See Zweites Gesetz zur Änderung des NS-AufhG of 24 September 2009, BGBl. i, p. 3150. 147 A document of the political debate leading to the 2009 amendment can be found in: Jan Korte und Dominic Heilig (eds.), Kriegsverrat, 2011.

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persecution and murder to the Allied Forces. Convictions for Kriegsverrat also included working with the resistance movement and defecting to partisan groups in the course of the war.148 Given this obvious overlap between convictions for desertion and for Kriegsverrat, the 2009 amendment of the NS-AufhG was important to ensure the full and unconditional rehabilitation of deserters from the Wehrmacht during World War ii. (b) Austria The political decision process on the rehabilitation of Austrian deserters during the Nazi regime was similarly, if not even more hesitant than in Germany.149 Initial attempts in the 1990s regarding the rehabilitation of Austrians who had deserted from the Wehrmacht met strong political resistance from the conservative wing in the Nationalrat, the Austrian Parliament. When the Austrian Parliament eventually passed a law in 2005 on the rehabilitation of victims of Nazi justice, deserters were not included.150 After further lobbying by victim-interest groups and members of the Austrian Social Democratic Party and the Green Party, the Nationalrat passed a new law in October 2009, the so-called Aufhebungs- und Rehabilitationsgesetz, which provided for the annulment of all judgments of German military courts against Austrian nationals and a blanket rehabilitation of Austrian deserters who had been convicted during the Nazi regime.151 2 Rehabilitation of Deserters of the Nationale Volksarmee With the reunification of the Federal Republic of Germany (“frg”) and the German Democratic Republic (“gdr”) on 3 October 1990, the issue of legal rehabilitation of deserters arose once again, albeit in a different context, i.e. regarding deserters of the Nationale Volksarmee (“NVA”), the military forces of the gdr. The nva, which had been officially founded in 1956, faced high desertion rates throughout its 30 years of existence. While precise numbers are lacking 148 See reasons for the draft 2nd Amendment of NS-AufhG of 25 October 2006, BTDrucks 16/3139, p. 4. 149 For a summary of the political process leading to the rehabilitation of deserters in Austria and references to the national and international press coverage thereof, see: Personenkomitee Gerechtigkeit für die Opfer der NS-Militärjustiz, Langes Ringen um Rehabilitierung, available at: http://www.pk-deserteure.at/index.php?id=30. 150 Anerkennungsgesetz of 11.08. 2005, BGBl. I Nr. 86/2005. 151 § 1 of the „Bundesgesetz, mit dem ein Aufhebungs- und Rehabilitationsgesetz erlassen wird“, 17.11.2009, BGBl. I Nr. 110/2009.

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and statistics differ from source to source, the number of desertions during the period from 1956 to 1989 is estimated to be over 10,000.152 Those who deserted in order to flee to West Germany represented a particular segment of the Republikflucht phenomenon faced by the gdr throughout its existence. Defections of soldiers to the West not only meant an embarrassing loss of face for the political regime153 but also bore the risk of military intelligence being shared with the West.154 While nva deserters initially had the possibility to move to the Western zones “freely” and begin a life under a different political regime without facing any judicial consequences,155 defections to the West became much more difficult once the wall had been built and the border was closed in 1961. Thereafter, the majority of deserters who managed to flee to West Germany came from border-patrol units who served at the inner-German border.156 Upon arrival in West Germany these deserters obtained the status of political refugee, but they also underwent extensive questioning by Western intelligence services.157 Given the high stakes involved, the gdr, from an early stage, took a hard line on desertion and, in particular, on defection to the West, marking deserters as traitors of the ‘Socialist Homeland’ and ostracising close family members who had remained behind.158 The military criminal code of 1962 differentiated between ordinary desertion and grave cases of desertion, which, among other things, included desertion with the aim of leaving the gdr.159 From 1968, military crimes were dealt with in a specific chapter of the criminal code (“StGB/GDR”) and desertion was regulated in § 254 StGB/ GDR. Again, § 254 (2) StGB/GDR classified desertion with the aim of leaving or not returning to the gdr as a grave case, punishable by up to 10 years’ 152 Martin Stief, Desertion im geteilten Berlin. Bekämpfung von Fahnenfluchten aus den Reihen der Bereitschaftspolizei im Jahr des Mauerbaus, pp. 14–17; Rüdiger Wenzke, Die Fahnenflucht in den Streitkräften der ddr, p. 282. 153 Damian van Melis, Republikflucht – Flucht und Abwanderung aus der sbz/ddr 1945–1961, p. 7. 154 Rüdiger Wenzke, Die Fahnenflucht in den Streitkräften der ddr, p. 253. 155 Ibid. p. 270. 156 Ibid. p. 282. 157 Ibid. p. 273/274. 158 Ibid. p. 256. Records of the Stasi, the East German secret service, show that in some cases, attempts were made to eliminate defectors in the West, or to forcefully return them to the East, see: Focus Magazin, Todesurteil aus Ostberlin, 17.03.1997, Nr. 12 (1997), available at: http://www.focus.de/politik/deutschland/stasi-todesurteil-aus-ostberlin _aid:163476.html. 159 § 4 Militärstrafgesetz (“MStG”) of 24 January 1962, GBl. ddr i, p. 25.

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imprisonment, as opposed to the maximum penalty of six years for ordinary desertion regulated in §254 (1) STGB/GDR.160 In addition to these criminal provisions, the so-called Schiessbefehl, a standing order issued in 1961 instructing members of the East German border patrols to stop persons attempting to flee to the West by all means, including by shooting them, probably represented the greatest deterrent for soldiers planning to desert and defect to the West and resulted in the deaths of many.161 After reunification in 1990, former nva deserters brought a number of lawsuits requesting that their convictions under the East German system be annulled.162 While the Unification Treaty163 foresaw in principle that judgments of gdr courts remained valid after reunification,164 it also provided that those persons who had been victims of politically motivated convictions, or whose convictions represented gross violations of fundamental principles of human rights should be rehabilitated.165 In 1992, the German Parliament passed a law on the rehabilitation of victims of the East German criminal justice system (Strafrechtliches Rehabil­ itierungsgesetz –“StrRehaG”).166 According to this law, a criminal conviction by a gdr court during the period of 8 May 1945 to 2 October 1990 is to be annulled upon request if it violates the fundamental principles of the rule of law, particularly if the conviction served the aim of political persecution. Further, the law provides a list of gdr criminal provisions for which it is to be assumed 160 § 254 stgb/ddr; GBl. ddr I p. 1, 45. 161 Martin Stief, Desertion im geteilten Berlin. Bekämpfung von Fahnenfluchten aus den Reihen der Bereitschaftspolizei im Jahr des Mauerbaus, p. 55. See also: Documentation on nva deserter Michael Kollender, who was killed by gdr border patrols on 26 April 1966 when attempting to flee to the West, Gedenkstätte Berliner Mauer, available at: http://www.berliner-mauer-gedenkstaette.de/de/1966-314,396,2.html. The exact number of persons who lost their lives at the border when attempting to flee to West Germany is unknown. Reports vary between 421 deaths to more than 1000 deaths. 162 Ilko-Sascha Kowalczuk, „Ich bin kein Verbrecher“ – Die Deserteure der nva, Bundeszentrale für politische Bildung, 30.09. 2005, available at: http://www.bpb.de/geschichte/deutschegeschichte/kontraste/42503/deserteure-der-nva. 163 See Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands (“Unification Treaty”) of 31.08.1990, BGBl.1990 ii, p. 889. 164 Article 18 of the Unification Treaty. 165 Article 17 of the Unification Treaty. 166 Strafrechtliches Rehabilitierungsgesetz (“StrRehaG”) of 29 October 1992 (BGBl. i, p. 1814), newly passed on 17 December 1999 (BGBl. i p. 2664), last amended on 22 June 2011 (BGBl. i p. 1202).

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that conviction served the purpose of political persecution. This list includes convictions for conscientious objection according to § 256 StGB/GDR,167 as well as convictions for unlawful crossing of gdr borders according to §213 StGB/GDR. It does not include convictions for ordinary desertion according to § 254 (1) StGB/GDR, as ordinary desertions were not considered to be a political offence per se.168 For nva deserters, this meant that the law differentiated between those who remained in the gdr and those who fled to the West. Those who defected to West Germany and were convicted in absentia for a grave case of desertion in conjunction with unlawful crossing of gdr borders according to §§ 254 (ii) 1 and 213 StGB/GDR could have their conviction annulled according to § 1 (1) (e) StrRehaG,169 while those deserters who had remained in the gdr had to show a violation of fundamental principles of the rule of law in their specific case. In 1999, the German Federal Constitutional Court approved the approach taken by the German Parliament to differentiate between nva deserters.170 The case before the court concerned a nva soldier who had been convicted for ordinary desertion and sentenced to two years’ imprisonment, whose request for rehabilitation according to the StrRehaG had been denied in the lower courts. The court held that convictions for desertions according to § 254 StGB/GDR during the sed regime did not violate fundamental principles of the rule of law per se, and thus a rehabilitation according to § 1 (i) StrRehaG was dependent on a positive finding of such a violation in each individual case.171 Unlike Wehrmacht deserters, for whom the stigma of a criminal conviction was removed fully and unconditionally in Germany in 2002, criminal conviction by a military court of the gdr for ordinary desertion remains valid unless the convicted person can show that the judgment against him violated fundamental

167 The gdr introduced obligatory military service in 1962, i.e. one year after the erection of the Wall. Conscientious objection for religious reasons was introduced in 1964, giving conscientious objectors the possibility to work in the military construction unit (so called “Bausoldaten”), a service that did not involve bearing arms. See: Rüdiger Wenzke, Die Fahnenflucht in den Streitkräften der ddr, p. 272 with further references in footnote 59. 168 Deutscher Bundestag, Drucksache 12/2820, p. 28. 169 Rüdiger Wenzke, Die Fahnenflucht in den Streitkräften der ddr, p. 279. 170 BVerfG, 2 BvR 1533/94 vom 7.12.1999, Absatz-Nr. (1–127), http://www.bverfg.de/entscheid ungen/rs19991207_2bvr153394.html. 171 In the particular case, the Constitutional Court nevertheless sent it back to the lower court for retrial, as the court had not sufficiently investigated the question of a politically motivated conviction in this specific case.

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principles of the rule of law, particularly if it represented political persecution for the decision no longer to serve in the army of the gdr. 3 Dutch Deserters during the Indonesian War of Independence Another example of a struggle for rehabilitation comes from the Netherlands, where surviving members of the so-called Indië-deserteurs are attempting to have their convictions for desertions during the Indonesian War of Independence annulled. The Indonesian War of Independence started with Indonesia’s declaration of independence in 1945, following the capitulation of Japan and the end of the Japanese occupation of the archipelago during World War ii. The Netherlands’ renewed claim to sovereignty over what was known as Dutch East Indies172 and its military efforts to reinstate its pre-World War ii colonial rule resulted in an armed conflict that lasted until the end of 1949 when, under pressure from the international community, particularly the United Nations173 and the u.s. Government, the Dutch eventually recognised Indonesia’s independence.174 At the outset of the war and with the experiences and trauma of World War ii still fresh, the Dutch Government struggled to recruit sufficient numbers of volunteers for the war in the East Indies, which it referred to as police actions (politionele acties), in order to stress the internal nature of the new military engagement. Forced to enhance the military units overseas, the Government introduced a draft in 1946 and, between 1946 and 1949, approximately 111,653 conscripts, commonly referred to as Indiëgangers, were sent to Indonesia.175 Between 1946 and 1950, around 1900 draftees claimed to be conscientious objectors; 300 of these did not report for service when their claim was denied.176 In addition, approximately 4,025 Dutch recruits deserted prior to being sent to 172 The Dutch referred to their colony as Nederlands-Indië or Oost-Indië, sometimes also ons Indië („our India“). 173 The un Security Council supported Indonesia’s struggle for independence and between 1947 and 1949 passed at total of 13 resolutions on “The Indonesian Question” demanding among other things the release of imprisoned members of the Nationalist movement and a peaceful transition to Indonesia’s independence. For references, see the last one of these: un Security Council Resolutions of 28 January 1949, S/RES/67 (1949). 174 For an overview of the Indonesian War of Independence also referred to as the Indonesian National Revolution, see Adrian Vickers, A History Of Modern Indonesia, 2005, 2013, Chapter 4, pp. 87–116. 175 See: Museum voor Vrede en Geweldlooshe, Indië-weigeraars – Tropenkolder of idealisme, p.3, available at: http://www.vredesmuseum.nl/. 176 Ineke Jungschleger, Het waren geen deserteurs, maar dienstweigeraars, Archief, Volkskrant, 20.01.1995, available at: http://www.volkskrant.nl.

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the Dutch East Indies. Of these, close to 2600 were convicted for the military offence of desertion,177 usually to four to five years’ imprisonment.178 While the war fought in the East Indies generally received little attention in The Netherlands, it moved to the front of the Dutch people’s minds in 1969, when revelations by a veteran prompted the Dutch Government to commission an official examination of the abuses committed by Dutch troops in the East Indies. This resulted in the publication of the so-called Excessennota (Excesses Reports).179 These reports acknowledged, for the first time, the commission of war crimes by Dutch soldiers during the war, although they shied away from using the term ‘war crime’, referring instead to ‘excesses’.180 The issue of the Indië deserters gained considerable public attention in 2013, when two convicted deserters filed a request with the Dutch Supreme Court to have their criminal convictions reviewed. Their claim was based on the argument that the knowledge of abuse committed by Dutch troops that has become available as a result of and since the revelations in the Excesses Reports was not available at the time of the conviction, and if it had been, it may have led to a different decision.181 In June 2013, the Supreme Court rejected the request, stating that the question of rehabilitation of deserters during the war in the East Indies was to be dealt with at the political level. It remains to be seen whether a political movement for the rehabilitation of Indië deserters will gain momentum and lead to a legal re-evaluation of their decisions not to fight.182 iv Summary Desertion constitutes one of the most serious military offences that a soldier can commit. Particularly if committed during an armed conflict, it is seen as a serious threat to the military striking power of a country and is thus punished rigorously, often ruthlessly, and in deliberate disrespect of the rule of law. The conflict examples referenced above reveal that deserters are likely to be among the first to experience the deterioration of judicial and administrative 177 Loe de Jong: Het Koninkrijk der Nederlanden in de Tweede Wereldoorlog, Vol. 12, Den Haag, 1985, pp. 800–805. 178 As The Netherlands was not officially at war, the courts could not apply the harsher punishment foreseen for desertion during war. 179 Haus der Niederlande, Dekolonisierung in den Niederlanden, available at: http://www .uni-muenster.de/HausDerNiederlande/Zentrum/Projekte/Schulprojekt/Lernen/ Dekolon/index.html. 180 Wim van den Doel, Das kleine Land mit dem großen Imperium. Die moderne niederlän­ dische Kolonialgeschichte, pp. 285–287. 181 “Indië-deserteurs willen herziening Hoge Raad,” 13.05.2013, Nieuwsuur, www.nieuwsuur.nl. 182 Hooge Raad der Nederlanden, Strafkamer, nr. S13/00067 H and nr. S 13/00068 H, 25 Juni 2013.

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structures of a country in times of war. As such, the severity of punishment seems to increase with the military, or even existential threat that a country feels during an armed conflict, as the punishment of deserters is used as a deterrent to enforce military discipline among the troops. With the punishment of deserters often being conducted within the military structure and even ‘on the battlefield’, it is prone to violations of the rights of judicial process, and even extrajudicial punishments and executions. With regard to German military courts during the Nazi era, the German Federal Social Court noted, in a groundbreaking decision relating to death sentences during World War ii, that the legality of military court judgments handed down since the beginning of the war could not be assumed, and the legality of those handed down since January 1942 could not be argued at all.183 While attitudes towards those who refused to fight might soften once the conflict has ended, the public and political debates surrounding clemency or rehabilitation processes testify to the fact that forgiveness does not come easily for deserters. Even when committed during conflicts that blatantly violated international law, deserters have been seen as turning their back on their home country and undermining the sacrifices made by those who duly served within the military. As such, the argument always lingers that pardoning or rehabilitating deserters also serves to belittle those who fought for their country. Nevertheless, the clemency and reparation processes with regard to desertions during World War ii, the Vietnam War, or the war in the Balkans highlight the political dimension of the issue. They illustrate how changes in social attitudes towards armed conflict may ultimately also be reflected in attitudes towards those who refused to continue to fight. Desertion, more than any other military offence, is embedded in and judged according to the political context of the armed conflict in which it is committed. As such, determining whether a deserter’s decision to abandon his or her military duties was right and moral seems to depend as much on the political perspective on a particular conflict and its outcome as on the national legal norms qualifying the action as a criminal offence.184 183 The case concerned the right of the widow of a soldier who had been executed in 1945 to receive financial support under a Federal law (Bundesversorgungsgesetz), Bundessozi­ algericht, Judgment of 11 September 1991, 9a rv 11/90. For a discussion of this decision and further references, see: Martin Rath, Militärstrafjustiz vor dem bsg: 1991 – Ein anderer 11. September, ein anderer Krieg, Legal Tribune ONLINE, 11.09.2011, http://www.lto.de/recht/feuilleton/ f/militaerstrafjustiz-vor-dem-bsg-1991-ein-anderer-11-september-ein-anderer-krieg/. 184 For a general discussion on an offender’s reasons for committing a crime as justification for an amnesty, see Louise Mallinder, Amnesty, Human Rights and Political Transitions – Bridging the Peace and Justice Divide, pp. 92/93.

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B

Contemporary Standards of International Law and their Impact on the Punishment of Deserters

As presented in Part A, the relationship between a deserter and the home country is characterised first and foremost by the country’s interest in punishing soldiers for the dereliction of military duties, in order to prevent any disintegration within the military forces and to safeguard its military striking power. Under international law, such punishment of deserters has long been recognised as a necessary aspect of a country’s right to maintain and secure its military forces as part of its sovereign right of self-defence under both Article 51 of the un Charter and customary international law.185 While the right to punish soldiers for the dereliction of military duties stands undisputed in international law, this right is nevertheless subject to binding standards under international law, in particular the international human rights standards that have evolved since World War ii.186 These standards limit the areas of absolute sovereignty and require states to adjust their legal regimes at the national level. Applicability of International Human Rights Law during Times of Conflict Times of emergency or war provide the ultimate test for human rights protections, as it is during these situations of crisis that most human rights violations occur.187 The question of the applicable legal framework during armed conflicts and the interplay between international human rights law and international humanitarian law has been raised repeatedly in periodic debates between states and human rights supervisory bodies, as well as in scholarly 185 Ebrahim Afsah, Deserters, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International law, p. 50; James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 19 with further references in footnote 14. Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Margin No. 243, with reference to the jurisprudence of the German Federal Administrative Court (e.g. BVerwGE 81, 41 (42)) and the Federal Constitutional Court (BVerfG (Chamber), B.v. 2.9.1991 – 2 BvR 939/89). 186 Hitomi Takemura, International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders, p. 15; Jessica Gavron, Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court, 51 iclq 1, 2002, p. 91. 187 Andreas Zimmermann, The Right to a Fair Trial in Situations of Emergency and the Question of Emergency Courts, p. 747.

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research,188 and a detailed discussion of this question is beyond the scope of this study. It shall suffice to refer to the International Court of Justice’s (“icj”) widely supported findings in two Advisory Opinions that the protection of human rights law does not cease in times of war and is subject only to derogations, and that when both international humanitarian law and international human rights law are applicable, international humanitarian law presents the lex specialis.189 Despite the facts that the two Advisory Opinions of the icj are not legally binding and there have been consistent objections to this proposition by some countries, most notably the United States and Israel, the icj’s pronouncement is generally supported by all relevant un human rights special procedures and human rights treaty bodies, un General Assembly and Security Council resolutions, and many un member states.190 The recently revised Joint Service Regulation 15/2 of the German Bundeswehr on humanitarian law in armed conflicts, for example, explicitly acknowledges that the two areas of law complement each other, even though it describes the rules of international humanitarian law as lex specialis and hence as the primarily relevant legal framework for soldiers.191 Lex Specialis in International Humanitarian Law? On the question of the existence of lex specialis in international humanitarian law with regard to the punishment of deserters by their home country, the relevant observation is that the rules of international humanitarian law applicable 188 For a summary of the discussion, see Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1, pp. 299–306; Hans-Joachim Heintze, Theorien zum Verhältnis von Menschenrechten und humanitärem Völkerrecht, 1 huvi 2011, pp. 4–11; Gerd Oberleitner, Humanitarian Law as a Source of Human Rights Law, pp. 290– 294; Cordula Droege, The interplay between international humanitarian law and human rights in situations of armed conflict, Israel Law Review, Vol. 40, No. 2, 2007, pp. 310–355, and the references therein. 189 icj, Legality or Threat of Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para. 25; icj, The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 106; icj, Case concerning armed activity on the terri­ tory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, paras. 216–220. 190 Françoise Hampson, The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body, irrc, Vol. 90, No. 871, 2008, p. 550. 191 Dieter Weingärtner / Andrea Fischer, Die neue Zentrale Dienstvorschrift 15/2 der Bundeswehr: “Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch”, huvi, Vol. 26, No. 3, 2013, p. 119.

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in international armed conflicts do not regulate a state’s treatment of its own citizens.192 As a consequence, these provisions are not applicable to members of a party’s own national forces who are still under the command of that party.193 Nevertheless, international humanitarian law provides for certain fundamental guarantees, which “are overarching rules that apply to all persons” in times of armed conflict.194 In light of the interplay between the application of international humanitarian law and international human rights law in situations of armed conflict, these fundamental guarantees can be relevant to define further the treatment proscribed during an international armed conflict.195 Accordingly, the un Human Rights Committee has stated in its General Comment on Article 4 ccpr that “during an armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in Article 4 and Article 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers.”196 As such, these fundamental guarantees will be taken into consideration when exploring international rules applicable to the punishment of deserters during an international armed conflict. Following, aspects of international human rights law as well as international criminal law are explored that can impact either the “how” or the “if” of a state’s right to punish deserters during an armed conflict: Section i examines the procedural guarantees for criminal trials stipulated under international human rights law and explores to what extent these guarantees are binding on the home country in time of war. Section ii looks at the protection of the right to freedom of thought, conscience and religion and thus the right to conscientious objection to military 192 Mary Ellen O’Connell, Historical Development and Legal Basis, in: Fleck (ed.), The Handbook of International Humanitarian Law, Margin No. 103. 193 Those provisions of international humanitarian law, which apply expressly to the relationship between a state and its nationals, i.e. Article 3 common to the four Geneva Conventions and the Second Additional Protocol, concern non-international conflicts and are thus not applicable in the context of the current study of desertions during international armed conflicts. 194 Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1, p. 299. 195 See the reference to the icj’s analysis of the interplay between international human rights law and international humanitarian law with regard to the non-derogable human right not to be arbitrarily deprived of life in the Nuclear Weapons case in: Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1, p. 300. 196 un Human Rights Committee, General Comment No. 29, CCPR/C/21/Rev.1/Add.11, Para. 3.

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service, and discusses under what circumstances the existence of such a right under international law might prohibit the punishment of deserters. Lastly, Section iii examines how the legal obligations of the individual soldier under international criminal law might conflict with his or her national military duties and how such conflict might create exceptions to the right to punish desertion. i Procedural Guarantees for Criminal Trials For the punishment of deserters by their home country the minimum standards for criminal trials under international human rights law are of most relevance. Generally speaking, these procedural guarantees do not require state parties to refrain from doing something but rather to undertake extensive positive measures to ensure that certain minimum standards are met and respected throughout the criminal proceedings.197 As such, they dictate the “how” rather than the “if” of a deserter’s punishment. 1 The Prohibition of Extra-judicial Executions Given the examples of brutal treatment of deserters during past conflicts, including their extra-legal and summary execution, the starting point of the discussion has to be one of the most fundamental principles of lawful punishment, namely the prohibition of extra-judicial execution and arbitrary deprivation of life. The prohibition of arbitrary deprivation of life has been outlawed in many international human rights instruments: at the global level, by the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights (“ccpr”); and, at the regional level, by Article 4 (1) of the American Convention on Human Rights (“achr”), Article 4 of the African Charter on Human and Peoples’ Rights (“achpr”), and Article 2 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“echr”). There have been multiple efforts by the United Nations to stop the deplorable practice of arbitrary killings, most notably the Economic and Social Council’s appointment in 1982 of a Special Rapporteur to study the questions related to summary or arbitrary executions198 and the adoption and endorsement in 1989 of the “Principles on the Effective Prevention and Investigation of 197 Manfred Nowak, u.n. Covenant on Civil and Political Rights – ccpr Commentary, Article 14, Margin No. 3. 198 e.s.c. res. 1982/35 of 7 May 1982.

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Extra-Legal, Arbitrary and Summary Executions” by the same body and the un General Assembly.199 Paragraph 1 of the Principles could not be clearer in reiterating the absolute prohibition on arbitrary, summary and extra-legal executions under all circumstances: Governments shall prohibit by law all extra-legal, arbitrary and summary executions and shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences. Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. Such executions shall not be carried out under any circumstances including, but not limited to, situations of internal armed conflict, excessive or illegal use of force by a public official or other person acting in an official capacity or by a person acting at the instigation, or with the consent or acquiescence of such person, and situations in which deaths occur in custody. This prohibition shall prevail over decrees issued by governmental authority. The right not to be arbitrarily deprived of life is non-derogable and obliges a government, even in time of war, to prevent extra-legal, arbitrary and summary executions and thus to ensure that, even on the battlefield, deserters are punished following a criminal trial conducted according to the rule of law. 2 The Right to a Fair Trial The requirements for a criminal trial under international human rights law have been defined in the large body of global and regional human rights treaties. Minimum standards for criminal trials are provided for in Articles 14 and 15 ccpr, as well as in regional human rights treaties, i.e. Articles 6 and 7 echr, Articles 8 and 9 achr and Articles 7 and 26 achpr.200 199 e.s.c. res. 1989/65, annex, 1989 u.n. escor Supp. (No. 1) at 52, u.n. Doc. E/1989/89 (1989) and General Assembly Resolution 44/162 of 15 December 1989. 200 Article 7 achpr provides: “Every individual shall have the right to have his cause heard. This comprises: (a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) The right to be presumed innocent until proved guilty by a competent court or tribunal;

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Additionally, the United Nations General Assembly has adopted two sets of Principles that provide further guidelines on what is needed to ensure independent and impartial judicial proceedings – the Basic Principles on the Independence of the Judiciary and the Basic Principles on the Role of Lawyers.201 Procedural guarantees and certain aspects of the right to a fair trial can also be found in a number of specialised international human rights treaties, which aim to protect particularly vulnerable groups, such as children and migrants.202 While these provisions are of no direct relevance to the punishment of deserters, they testify to the importance that international law places on procedural guarantees for adequate protection of human rights. The right to a fair trial represents the core of the procedural guarantees. With respect to criminal cases, this right is further developed by a number of concrete rights and principles, such as the principle of equality of arms between the prosecutor and defendant,203 the presumption of innocence,204 the right to be informed of the charge,205 the right to defence206 and to calling



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203 204 205 206

(c) The right to defence, including the right to be defended by counsel of his choice; (d) The right to be tried within a reasonable time by an impartial court or tribunal. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender…” Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the treatment of Offenders, Milan, 26 August to 6 September 1985, un Doc. A/CONF.121/22/Rev.1, p. 59 (1985), endorsed by the un General Assembly in its resolutions 40/32, 29 November 1985 and 40/146, 13 December 1985. See also: Basic Principles on the Role of Lawyers, adopted by the eighth United Nations Congress on the Prevention of Crime and the treatment of Offenders, held in Havana (Cuba), from 27 August to 7 September 1990, endorsed by the un General Assembly in its resolution 45/166 of 18 December 1990. See, for example, Articles 5 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, Articles 12 and 40 of the Convention on the Rights of the Child, Articles 18 and 19 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 12 of the Convention on the Rights of Persons with Disabilities. Manfred Nowak, u.n. Covenant on Civil and Political Rights – ccpr Commentary, Article 14, Margin No. 29. Art. 14 ii cppr, Art. 6 ii echr, Art. xxvi (1) American Declaration on the Rights and Duties of Men (“adhr”), Art. 8 ii achr and Art. 7 (1) (b) achpr. Art. 14 iii (a) cppr, Art. & iii (a) echr, Art. 8 ii (a) and (b) achr. Art. 14 iii (b) cppr, Art. 6 iii (b) echr, Art. 8 ii (c) achr.

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and examining witnesses,207 and the principle of non-retroactivity of the law.208 The prohibition of arbitrariness contained in Article 9 (1) ccpr, which protects the liberty and security of a person and prohibits arbitrary arrests and detention, further emphasises the procedural rights, as it “contains the AngloAmerican principle of due process of law.”209 While the procedural guarantees contained in the international and regional human rights treaties are binding on the respective state parties only, some of the due-process guarantees are recognised to form part of international customary law and are therefore considered legally binding on all states. In its General Comment on reservations under Article 41 ccpr, the Human Rights Committee has listed the right to a fair trial, the prohibition of inhumane or degrading treatment or punishment, and the prohibition on arbitrarily depriving persons of their lives as rights under the Covenant to which no reservations are allowed and which can be assumed to belong to customary international law.210 The icrc study on customary international humanitarian law also listed the right to a fair trial as a rule of customary international humanitarian law.211

Trials by Military Courts

Article 14 (1) ccpr, as well as Article 6 (1) echr and Article 8 (1) achr hold “the primary institutional guarantee”212 that rights and obligations in criminal charges are to be heard and decided by a competent, independent and impartial tribunal established by law before which all persons shall be equal. The equality clause in Article 14 (1) ccpr has to be read in conjunction with the prohibition of discrimination in Article 2 (1) ccpr, which lists the impermissible grounds 207 Art. 14 iii (e) cppr, Art. 6 iii (d) echr, Art. 8 ii (f) achr. 208 Principle of nullum crimen, nulla poena sine lege praevia, see: Art. 15 (1) cppr, Art. 7 (1) echr, Art. 9 achr and Art. 7 ii achpr. 209 Manfred Nowak, u.n. Covenant on Civil and Political Rights – ccpr Commentary, Article 9, Margin No. 29. 210 un Human Rights Committee (hrc), ccpr General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, CCPR/C/21/Rev.1/Add.6, Paragraph 8, available at: http://www.unhcr.org/refworld/docid/ 453883fc11.html[accessed 9 November 2012]. 211 “No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarentees.” Jean-Marie Henckaerts / Louise Doswald-Beck, Customary Inter­ national Humanitarian Law, Vol. 1, Rule 100, p. 352. 212 Manfred Nowak, u.n. Covenant on Civil and Political Rights – ccpr Commentary, Article 14, Margin No. 23.

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for distinction as sex, race and colour, language, religion, political or other options, national or social origin, property, birth or other status. As Article 2 (1) ccpr does not expressly disapprove of the distinction between civil and military persons, it has generally been held that the existence of military courts does not violate Article 14 cppr, as long as the guarantees in terms of competence, independence and impartiality with regard to these special courts are met.213 Therefore, the trial of deserters before military courts as foreseen in a number of national military laws does not, in principle, violate the procedural guarantees laid down in Article 14 ccpr. However, cases before the European Court of Human Rights (“ECtHR”) with regard to Article 6 (1) echr, and the Inter-American Court of Human Rights regarding Article 8 (1) achr show that the supervisory bodies take a critical approach towards military courts and carefully examine the military courts’ impartiality and independence.214 The cases of Grieves v. The United Kingdom215 and Cooper v. The United Kingdom216 before the European Court of Human Rights, for example, both concerned claims by British servicemen – members of the British Navy and the Royal Air Forces, respectively – that their convictions by courts-martial had violated Article 6 echr on the basis that their courts-martial had not been independent. While rejecting the general submission that the trials by military courts were by definition in violation of Article 6 echr, the European Court of Human Rights specified that “in order to establish whether a tribunal can be considered ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.”217 The cases show that states whose national laws foresee the trial of military personnel by military courts are required to take heightened precautions in the setting up and running of these courts with regard to the separation of powers 213 un Human Rights Committee, Annual Report 1984, p. 15; Manfred Nowak, u.n. Covenant on Civil and Political Rights – ccpr Commentary, Article 14, Margin No. 7. 214 ECtHR, Grieves v. The United Kingdom, Application No. 57067/00, Judgment of 16 December 2003; ECtHR, Cooper v. The United Kingdom, Application No. 48843/99, Judgment of 16 December 2003; Inter-American Court of Human Rights, Loayza-Tamayo v. Peru, Judgment of September 17, 1997 (Merits), available at: http://www.corteidh.or.cr/ docs/casos/articulos/seriec_33_ing.pdf. 215 ECtHR, Grieves v. The United Kingdom, Application No. 57067/00. 216 ECtHR, Cooper v. The United Kingdom, Application No. 48843/99. 217 ECtHR, Grieves v. The United Kingdom, Application No. 57067/00, Judgment of 16 December 2003, para. 69.

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between the executive and the judiciary, and the question of control over the military judges by non-judicial entities, particularly military commanders. 3 Derogation in Time of War As discussed above, the protection provided under international human rights law, including the procedural guarantees for criminal trials, remains applicable during armed conflicts. Nevertheless, international covenants and treaties contain derogation clauses that allow states to modify the scope of certain of their human rights obligations in time of war, public danger, or other emergency. Article 4 ccpr provides for the possibility of derogating “in time of public emergency, which threatens the life of the nation and the existence of which is officially proclaimed.” The Human Rights Committee has stressed that the derogation does not happen automatically but has to be invoked by the government. Measures taken under Article 4 are of an exceptional and temporary nature and may last only as long as the “life of the nation” concerned is threatened.218 The echr and the achr also contain derogation clauses. Article 15 (1) echr applies to “war or other public emergency threatening the life of the nation,” and Article 27 (1) achr requires “time of war, public danger, or other emergency that threatens the independence or security of a State Party.” The European Court of Human Rights and the Inter-American Court of Human Rights have applied thresholds for the derogation, “stressing the need for safeguards so that the essence of the right is not totally eliminated, as well as the need for proportionality.”219 In contrast to this, neither the African Charter of Human and Peoples’ Rights nor the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contain a derogation clause and thus cannot be derogated from during an armed conflict. Article 4 (2) ccpr stipulates which rights may be restricted and which are to be considered non-derogable.220 Article 4 (2) ccpr has to be read in conjunction with the Second Additional Protocol to the ccpr, which provides that 218 See Human Rights Committee, General Comment No. 29, CCPR/C/21/Rev.1/Add.11. 219 Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1, p. 301. 220 According to this Article, states cannot modify, among other things, the safeguards of the Convention relating to the right to life, the prohibition of torture, inhuman or degrading treatment or punishment, the prohibition of slavery, and the principle of non-retroactivity of the law. Article 4 ccpr also upholds the prohibition of ex post facto laws as contained in Article 15 ccpr.

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those states that have abolished the death penalty may not derogate from this obligation under Article 4 ccpr unless they have made a specific reservation under which they may still apply capital punishment in times of war for serious military offences.221 At the European level, Protocol 13 to echr, which has been ratified by all members of the Council of Europe with the exception of Russia, Armenia and Azerbaijan, prohibits the death penalty in all circum­ stances, including time of war, and thus excludes any possibility of derogation for capital punishment.222 Importantly, however, the procedural guarantees for criminal trials contained in Article 14 cppr and the prohibition of arbitrary arrests and detentions are not among the non-derogable rights, thus making it possible for states to restrict, although not remove, these guarantees in times of proclaimed emergencies. The derogation clauses of the echr and achr lead to the same result, allowing for derogation from procedural guarantees during proclaimed emergencies. Given the importance of fair-trial standards for the protection of other rights, and their frequent violation during states of emergency, this result seems unsatisfactory from a “protection point of view,” and there have been numerous calls for recognition of a “non-derogable core” of derogable rights, particularly of Articles 9 and 14.223 In 2001, the un Human Rights Committee, in its General Comment No. 29 on Article 4 ccpr, stated: Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rules of law require that 221 See Article 2 of the Second Additional Protocol. 222 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances, cets No. 187; ratification status as of 14.07.2014. 223 Alfred de Zayas, The United Nations and the Guarantees of Fair Trial in the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 670; on the need to extend the list of non-derogable rights, see: Theodor Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 ajil (1983), p. 602.

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fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence.224 This approach could already be found in the 1984 Siracusa Principles225 developed by the un Sub-Commission on Prevention of Discrimination and Protection of Minorities, which stressed that respect for the fundamental rights enshrined in Articles 9 and 14 of the Covenant “is essential in order to ensure enjoyment of non-derogable rights and to provide an effective remedy against their violation.” Concretely, the Siracusa Principles stated that any person charged with an offence shall be entitled to a fair trial by a competent, independent and impartial court established by law, as well as at least to those rights necessary to ensure a fair trial. According to Paragraph 70 (g) of the Siracusa Principles, those rights are: the right to be informed of the charges promptly, in detail and in a language the person understands; the right to have adequate time and facilities to prepare the defence, including the right to communicate confidentially with his lawyer; the right to a lawyer of his choice, with free legal assistance if he does not have the means to pay for it; the right to be present at the trial; the right not to be compelled to testify against himself or to make a confession; the right to obtain the attendance and examination of defence witnesses; the right to be tried in public, except where the court orders otherwise on grounds of security, with adequate safeguards to prevent abuse; the right to appeal to a higher court. That same year, 1984, the “Minimum Standards of Human Rights Norms in a State of Emergency” were developed by the International Law Association at its Paris meeting. These standards called upon states to ensure that the independence of the judiciary and of the legal profession remain intact when emergency powers are assumed or exercised, and listed the right to a fair trial as a non-derogable right.226 Finally, a call to safeguard certain aspects of the right to a fair trial during emergencies can also be found in the Turku Declaration of Minimum Humanitarian Standards adopted by a meeting of 224 un Human Rights Committee, General Comment No. 29, CCPR/C/21/Rev.1/Add.11, Para. 16. 225 United Nations, Economic and Social Council, u.n. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, un Doc E/CN.4/1984/4 (1984). 226 See Section (B) 3 (c) and Section (C) Article 7 of The Paris Minimum Standards of Human Rights Norms in a State of Emergency, reprinted in: Richard Lillich, Current Developments: The Paris Minimum Standards of Human Rights Norms in a State of Emergency, American Journal of International Law, Vol. 79, 1985, p. 1072.

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experts in Abo/Turku, Finland in 1990 and revised in 1995.227 These standards call for the right to a fair trial to be upheld in all situations, without derogation, “to all persons, groups and authorities, irrespective of their legal status and without any adverse discrimination.”228 Despite having been on the international agenda for decades, the above principles and declarations have not been formally adopted by the un229 and are thus not binding on states. Nevertheless, the un Human Rights Committee has been hesitant to allow states to opt out of basic aspects of the right to a fair trial and habeas corpus, in order to safeguard those minimum guarantees necessary to vindicate non-derogable rights.230 In its General Comment 29 on Article 4 ccpr of 2001, the Human Rights Committee asked states to pay attention to the developments within international law as to human rights standards applicable in emergency situations.231 For the identification of these core, non-derogable aspects of the right to a fair trial, support can be drawn from the contents of the right to a fair trial under international humanitarian law applicable during armed conflicts. The icrc study on customary international humanitarian law identifies the following components for the customary right, all of which can also be found in some form or another in the respective treaty law of international humanitarian law: trial by an independent, impartial and regularly constituted court; presumption of innocence; information on the nature and cause of the accusation; necessary rights and means of defence; trial without undue delay; examination of witnesses; assistance of an interpreter; presence of the accused at the trial; 227 Declaration of Minimum Humanitarian Standards, reprinted in Report of the SubCommission on Prevention of Discrimination and Protection of Minorities on its fortysixth Session, Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, un Doc. E/CN.4/1995/116 (31 January 1995) [hereinafter Turku Declaration]. The standards were submitted to the un Sub-Commission on Prevention of Discrimination and Protection of Minorities and, later on, elevated to the Commission of Human Rights. 228 Article 2 of the Turku Declaration. 229 Regarding the stagnating adoption process of the Turku Declaration on Minimum Humanitarian Standards (later referred to as “Declaration of Fundamental Standards of Humanity”), see Emily Crawford, Road to Nowhere? The Future for a Declaration on Fundamental Standards of Humanity, 14 April 2011, available at: http://ssrn.com/abstract =1810151 or http://dx.doi.org/10.2139/ssrn.1810151. 230 Alfred de Zayas, The United Nations and the Guarantees of Fair Trial in the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 674. 231 See Paragraph 10, General Comment No. 29 – States of Emergency (Article 4), CCPR/C/21/ Rev.1/Add.11 31 August 2001.

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prohibition on compelling accused persons to testify against themselves, or to confess guilt; public proceedings; advising convicted persons of available remedies; and the principle of ne bis in idem.232 4 Summary The procedural guarantees for criminal trials provided by international human rights law prescribe minimum standards for a fair trial and due process to which states have to adhere when punishing soldiers for desertion. Arbitrary or summary executions of deserters are unlawful under all circumstances, and the death penalty for deserters is not available to those who ratified the Second Optional Protocol to the ccpr without making any reservations, or who ratified Protocol 13 to the echr – no matter how heavy the pressure to prevent further disintegration within the military has become during a conflict. Additionally, neither the existence of an armed conflict nor the special status of members of the armed forces allows the state to dilute or entirely forego, at its discretion, the international guarantees with regard to criminal trials. Irrespective of whether and which human rights treaties a country has joined, it is bound by customary international law, of which the right to a fair trial and the prohibition of inhumane and degrading punishment, as well as the prohibition of arbitrary deprivation of life, are recognised to be a part, even though the exact contours of the customary right to a fair trial remain unclear. With regard to conventional procedural guarantees, the exact standards applicable to the punishment of deserters in a certain case will depend on a number of parameters, including whether and to which international treaty and protocol the home state has become a party, what reservations the state has made upon ratifying same, and whether the state has effectively proclaimed a derogation of certain rights. In principle, states have the right to restrict the procedural guarantees during an armed conflict, provided that they follow the derogation procedures foreseen in the relevant human rights treaties to which they are a party. However, there is a clear trend towards recognising certain core aspects of the right to a fair trial to be non-derogable, making these core aspects applicable in all circumstances, including time of war. While international efforts are ongoing to identify those core, non-derogable aspects of the right to a fair trial, the content of the right to a fair trial under 232 For further details see: Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1, pp. 352–371 with references to the relevant treaty law.

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international humanitarian law appears to indicate that, as a minimum, the right to be tried by a competent, independent and impartial court, the presumption of innocence and the right to be informed about pending charges belong to these core aspects. A state that does not or cannot ensure during an international armed conflict that its deserters are tried by a competent, independent and impartial court and informed about the charges pending against them violates international law. ii The Right to Conscientious Objection to Military Service The basic right of states to maintain military forces in order to preserve their existence and defend themselves also includes the right to establish a compulsory military service for its nationals. The unavoidable restrictions on the rights of the individual inherent in compulsory military service in times of war and peace, together with the greater restrictions on freedom within the armed forces, are generally seen as justified by the security interests of the state.233 Accordingly, international human rights instruments exempt the obligation to do military service from the prohibition on forced or compulsory labour.234 While the right to subject nationals to compulsory service in the armed forces is recognised under international law, the past decades have seen a continuing debate on the right of the individual to refuse military service for reasons of conscience within the framework of international human rights law. While this discourse has mainly circled around a right to ‘conscientious objection’ to military service, i.e. an objection that is openly expressed before 233 See: un Human Rights Committee, m.j.g. (name deleted) v. Netherlands, CCPR/C/32/D/ 267/1987, 24 March 1988, available at: http://www.unhcr.org/refworld/pdfid/50b8eca22 .pdf, para. 3.2; see, similarly, the earlier case of r.t.z. (name deleted) v. Netherlands, CCPR/ C/31/D/245/1987,5 November 1987, available at: http://www.unhcr.org/refworld/pdfid/ 50b8ed122.pdf. For a critical assessment of the judicial acceptance of compulsory military service, see: Elizabeth Chadwick, No comity in error: Asylum and ‘Wars of Choice’, The Military Law and the Law of War Review, Vol. 44, No. 1–2, 2005, pp. 51–81. 234 See, for example, Article 8 Paragraph 3 of the International Covenant on Civil and Political Rights: “No one shall be required to perform forced or compulsory labour. (…) For the purposes of this paragraph the term ‘forced or compulsory labour’ shall not include: (…) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (…).” A similar provision can be found in Article 4 Paragraph 3 (b) echr, as well as in Article 6 (3) (B) of the American Convention of Human Rights.

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relevant authorities and seeks official exemption from the obligation to perform military service, there is a proximity to, or rather an overlap with certain cases of desertion that justifies a closer examination of this issue in the context of this study. This section therefore explores the relationship between the state’s right to request military service from its nationals (and consequently to punish those who refuse to carry out such service) and the individuals’ right to claim conscientious objection to military service under international law. In particular, it will be examined whether and under what circumstances the protection of decisions of conscience under international human rights law might limit the home country’s right to punish the dereliction of military duties or, more concretely, whether it might limit the right to punish deserters. 1 Recognition of a Right to Conscientious Objection When exploring the right to conscientious objection and its possible impact on the punishment of deserters, a distinction needs to be made between absolute conscientious objection and partial or selective conscientious objection. Absolute conscientious objection refers to persons refusing to serve in the armed forces, as their deeply and genuinely held religious or other beliefs forbid them to perform military service.235 Selective conscientious objectors refuse only to serve in a particular military engagement while accepting the legitimacy of some military action.236 (a) Absolute Conscientious Objection It was long held that conscientious objection to military service was not protected under international human rights law. However, recent developments both in global and regional human rights systems indicate a shift towards a recognition that conscientious objection can constitute a legitimate exercise of the right to freedom of thought, conscience and religion, as provided for in Article 18 ccpr, Article 9 echr and other regional human rights instruments.237 235 See un Human Rights Committee, General Comment No. 22, Para.11. http://www.ohchr .org/EN/Issues/FreedomReligion/Pages/IstandardsI3k.aspx. It should be noted that conscientious objection also exists outside the military context – for example, in the refusal of doctors and medical personnel to assist in abortions on religious or ethical grounds. The present study is concerned with conscientious objection to military service only. 236 ohchr, Conscientious Objection to Military Service, HR/PUB/12/1, 2012, p. 20. 237 See Article 8 of the African Charter on Human and Peoples’ Rights and Article 12 of the American Convention on Human Rights.

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United Nations Human Rights System

The former Commission on Human Rights,238 in its Resolution 1989/59, explicitly recognised for the first time the right to conscientious objection as a legitimate exercise of the right to freedom of thought, conscience and religion under Article 18 of the Universal Declaration of Human Rights.239 Thereafter, and until its dissolution in 2006, the Commission repeatedly confirmed this recognition and called on states to review their laws and practice in the light of its resolutions, even encouraging states to consider granting amnesties and restitution of rights to those who had previously refused to undertake military service on grounds of conscientious objection.240 The un Human Rights Committee held the view for a long time that Article 18 ccpr did not provide for the right to conscientious objection, as the provision makes no explicit reference in this regard.241 In its reasoning, the Human Rights Committee also referred to Article 8 § 3 (c) (ii) ccpr, which states that military service and, in countries in which conscientious objectors are recognised, national service, which the law may provide for in lieu of military service, do not fall under the prohibition of forced or compulsory labour.242 It held that while Article 8 ccpr does mention the possibility of conscientious objection or alternative service, its wording makes it clear that the right of the individual to refuse military service depends on the state concerned having recognised or provided for the option of refusal. However, the un Human Rights Committee started shifting its approach in the early nineties, when the Committee acknowledged for the first time in an obiter dictum that the right to hold, express and disseminate opinions and convictions under Article 18 ccpr included conscientious objection to military activities and expenditures.243 The Committee further developed its position 238 The Commission on Human Rights concluded its 62nd and last session on 27 March 2006. Shortly before, on 15 March 2006, the General Assembly adopted resolution A/RES/60/251 establishing the Human Rights Council, the body that replaces the Commission on Human Rights. 239 In previous resolutions, the Commission had only appealed to States to recognise that conscientious objection should be considered a legitimate exercise of the right to freedom of thought, conscience and religion; see Resolution 1987/46. 240 See Resolutions 1993/84, 1995/83 and 1998/77 and, regarding the call for amnesties, Resolution 2004/35. 241 l.t.k. v. Finland (Communication No. 185/1984), Admissibility decision of 9 July 1985, un Doc. CCPR/C/OP/2. 242 Article 8 § 3 (c) (ii) iccpr states. 243 j.p. v. Canada, Communication No. 446/1991, U.N Doc. CCPR/C43/D446/1991, 7 November 1991.

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in the cases of Yeo-Bum Yoon v. Republic of Korea and Myung-Jin Choi v. Republic of Korea, in which it stated that Article 8 ccpr itself neither recognises nor excludes a right of conscientious objection and that the claims of two Jehovah’s Witnesses who had been convicted for refusing military service thus had to be assessed solely in the light of Article 18 ccpr.244 In its general comment No.22 on Article 18 ccpr, the un Human Rights Committee stated that while the Covenant does not explicitly refer to a right to conscientious objection, the Committee believed that such a right can be derived from Article 18, in as much as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.245 Importantly, the Committee also stated that the right to claim conscientious objection is not limited to persons who are conscripted but also extends to those who voluntarily joined the military, and that the claim could also be made by persons who are already performing military service and are developing a conscientious objection during their service.246 The right to claim conscientious objection to military service has also been addressed by the United Nations Working Group on Arbitrary Detention under its individual petitions procedure in connection with repeated detentions of conscientious objectors. While the Working Group had found that repeated punishment and incarceration of conscientious objectors were arbitrary on the grounds that they violated the principle of ne bis in idem,247 it went further in 2008 and held that a single detention of a conscientious objector in Turkey amounted to arbitrary detention.248 With this finding, the Working Group on Arbitrary Detention confirmed the trend within the United Nations human rights system towards a full recognition of the right to conscientious objection as a protected exercise of the right to freedom of thought, conscience and religion, which must not be punished. (2)

European Human Rights System

At the regional level, recognition of the right to conscientious objection is most advanced within the European human rights system. Although a similar 244 Yeo-Bum Yoon v. Republic of Korea and Myung-Jin Choi v. Republic of Korea, Communications Nos. 1321/2004 and 1322/2004, u.n. Doc. CCPR/C/88/D/1321-1322/2004, 23 January 2007. 245 See United Nations Human Rights Committee General Comment 22, Para. 11: “Special Rapporteur on freedom of religion or belief. Framework for communications. Conscientious Objection” http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/IstandardsI3k.aspx. 246 un Commission on Human Rights, Conscientious objection to military service, 22 April 1998, E/CN.4/RES/1998/77, available at: http://www.unhcr.org/refworld/docid/3b00f0be10 .html [accessed 5 September 2012]. 247 See Opinion No. 36/1999 (Turkey) and Opinion No. 24/2003 (Israel). 248 See Opinion No. 16/2008 (Turkey).

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trend towards recognition can at least be observed in the Inter-American Commission for Human Rights,249 the study will use developments at the European level as an example here, bearing in mind that they are more advanced than in other regions. At the European level, recognition of the right to claim conscientious objection to military service as an exercise of the rights protected under Article 9 echr has followed a similar process to the one described under the un human rights system. With reference to Article 4 Abs. 3 (b) echr,250 both the former Commission and the European Court of Human Rights held for a long time that Article 9 echr did not impose on a state the obligation to recognise conscientious objectors and, consequently, to make special arrangements for the exercise of their right to freedom of conscience and religion as far as it affected their compulsory military service.251 In 2011, in the case of Bayatyan v. Armenia (Application no. 23459/03, 1/6/2011),252 the Grand Chamber of the European Court of Human Rights reversed this interpretation of the Convention and for the first time ruled that states had a duty to respect individuals’ right to conscientious objection to military service as part of their (the states’) obligation to respect the right to freedom of thought, conscience and religion set out in Article 9 echr. The Court held that the criminal conviction of the applicant for his refusal to serve in the military was a violation of Article 9 echr. The Court reasoned that while Article 9 echr does not explicitly refer to a right to conscientious objection, “opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient 249 See Written Comments submitted by Amnesty International and others to the European Court of Human Rights in the case of Vahan Bayatyan v. Armenia, Application No. 23459/03, Para. 13. 250 Article 4 Paragraph 3 (b) echr states: “For the purposes of the article the term ‘forced or compulsory labour’ shall not include any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service.” 251 The initial position of the European Commission of Human Rights was set out in the cases of Grandrath v. the Federal Republic of Germany (no. 2299/64, Commission report of 12 December 1966, Yearbook, Vol. 10, p. 626) and x. v. Austria (n. 5591/72, Commission decision of 2 April 1973, Collection 43, p. 161). 252 European Court of Human Rights, Bayatyan v. Armenia, Application no. 23459/03, 07.07.2011. The case concerned a Jehovah’s Witness who was sentenced to two-and-a-half years in prison following his refusal of military service on the grounds of conscientious objection.

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cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.”253 There have also been numerous initiatives at the European Union level to endorse the right to conscientious objection to military service, including from the Committee of Ministers of the Council of Europe in 1987,254 and the European Parliament.255 Article 10 (2) of the Charter of Fundamental Rights of the European Union, which entered into force on 7 December 2000, explicitly recognises the right of conscientious objection to military service as part of freedom of thought, conscience and religion, establishing the right to claim conscientious objection firmly as a fundamental right within the European Union.256 Finally, in 2004, the Organization for Security and Co-operation in Europe (osce) issued Guidelines for Review of Legislation pertaining to Religion or Belief, which noted that although there was no controlling international standard, the clear trend in most democratic states was to allow those with serious moral or religious objections to military service to perform alternative (nonmilitary) service, and which asked states not be unduly harsh on those who could not serve in the military for reasons of conscience.257 (3)

National Laws and State Practice

State practice confirms this general trend towards recognition of the right to conscientious objection in case of compulsory military service. At the European level, with the exception of Turkey, all of the member states of the Council of Europe that still have, or at some point had, compulsory military service introduced laws recognising the right to conscientious objection.258 253 European Court of Human Rights, Bayatyan v. Armenia, Application no. 23459/03, 07.07.2011, Paragraph 110. 254 Committee of Ministers of the Council of Europe, Recommendation No. R(87)9 of 9 April 1987 regarding Conscientious Objection to Compulsory Military Service. 255 European Parliament resolution of 7 February 1983 on conscientious objection and European Parliament resolution of 13 October 1989 on conscientious objection and alternative civilian service. 256 Article 10 (2) Charter of the Fundamental Rights of the European Union, http://www .europarl.eu.int/charter/default_en.htm. 257 See Guidelines for Review of Legislation pertaining to Religion or Belief, prepared by the osce/odihr Advisory Panel of Experts on Freedom of Religion or Belief in Consultation with the European Commission for Democracy through Law, 18 June 2004, pp. 22–23, available at http://www.osce.org/odihr/13993. 258 The only country in the Council of Europe that does not recognise conscientious objection is Turkey. For detailed information on the member states of the Council of Europe,

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While the recognition process has been considerably slower at the global level, more and more states are developing and improving provisions for conscientious objection to military service so as to comply with existing human rights norms, and the number of states that continues to refuse to allow conscientious objection despite having a compulsory military service is slowly decreasing.259 In most countries that recognise conscientious objection, provisions can be found either in the constitution or in national legislation, while in some countries, the recognition of conscientious objection is effected via an administrative decision.260 Despite this trend towards recognition of the right in principle, there is no uniform practice as to the implementation of the right.261 For example, there are differences with respect to the exact grounds for granting conscientiousobjector status, the application procedures to be followed, the body responsible for deciding on the claim, as well as the length and conditions of the alternative service. Noteworthy for the present study are the differences regarding the time limits for applying for conscientious-objector status, particularly the questions of whether persons already performing military service see Report to the Council of Europe, The right to conscientious objection in the Council of Europe Member States, European Bureau for Conscientious Objection, 18 July 2011, available at www.ebco-beoc.eu. 259 Countries that have compulsory military service, yet continue to refuse any form of conscientious objection include: Republic of Korea, Syria, Tajikistan, Morocco (where compulsory military service is a fallback option only in case of lack of sufficient recruits), Vietnam, Azerbaijan, Dominican Republic, Venezuela, Kuwait, and Mexico, see: Written Comments Submitted By Amnesty International, Conscience and Peace Tax International, Friends World Committee for Consultation (Quakers), International Commission of Jurists, and War Resisters’ International, in the case of Vahan Bayatyan v. Armenia, ECtHR, Application No. 23459/03. See also the 2004 and 2006 reports of the Office of the High Commissioner for Human Rights to the Commission on Human Rights on Civil and Political Rights, including the Question of Conscientious Objection to Military Service, E/CN.4/2004/55 and E/CN.4/ 2006/51. 260 In Israel, a Committee for Granting Exemptions from Defence Service for Reasons of Conscience decides about individual applications from conscientious objectors. 261 In this regard, human rights institutions continue to express concern with state practice that appears to violate international human-rights norms protecting the right to conscientious objection. Also, the jurisprudence of human-rights bodies shows that some states do not implement the right to conscientious objection in a manner consistent with human-rights standards. See Office of the High Commissioner for Human Rights, Civil and Political Rights, including the Question of Conscientious Objection to Military Service, E/ CN.4/2006/51 Paragraph 11.

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may develop conscientious objection and whether the right is extended to professional soldiers who joined the military by choice. For example, a study conducted in 2005 by the Quaker Council for European Affairs found that in 18 of the 29 European countries with active conscription programmes, applications for conscientious-objector status could only be made prior to starting the military service,262 and only a small number of countries extended the right to professional soldiers, i.e. those who had joined the army voluntarily.263 A number of states limits the right to claim conscientious objection after the start of the military service to peacetime, while denying it to soldiers during times of active combat. (4)

Summary

The developments within the human rights system both at the global and regional levels indicate that the right to absolute conscientious objection nowadays forms part of international human rights law and, increasingly, enjoys protection under the right to freedom of thought, conscience and religion. While the un Human Rights System is strongly advocating for a recognition of this right, and the jurisprudence of the European Court of Human Rights has by now firmly established it at the European level, it needs to be stressed that the recognition of this right continues to evolve at different speeds within the geographic regions. It is still almost entirely lacking on the African continent and it appears that the African human rights systems have not been used to advance the recognition of the right to conscientious objection in any African country.264 Furthermore, the implementation of this right is far from uniform, particularly in terms of the timelines that apply to claiming the right. Based on the case-law of the supervisory bodies, it can nevertheless be argued that in cases where military service is compulsory, states are required to make provisions of some form in their national laws that create the possibility for the individual not to bear arms if his or her conscience so dictates. The establishment of a process and the definition of the substantive conditions 262 Quaker Council for European Affairs, The Right to Conscientious Objection in Europe: A Review of the Current Situation, Brussels, April 2005. 263 Countries that recognise that military personnel may change their religious or other beliefs include Canada, Croatia, Germany, The Netherlands, the United Kingdom and the United States, ohchr, Conscientious Objection to Military Service, HR/PUB/12/1, 2012, p. 55. 264 See: War Resisters’ International, Quaker United Nations Office Geneva, Conscience and Peace Tax International and the ccpr Centre (ed.), A Conscientious Objector’s Guide to the International Human Rights System, 2012, p. 98.

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for recognising a conscientious objector and the implementation of the possibility not to serve in a military function are left to the individual states to be regulated by national laws. (b) Selective Conscientious Objection In contrast to the right to absolute conscientious objection, a trend towards recognition of a right to selective conscientious objection cannot be discerned under international law at this point. Support for selective conscientious objectors was exceptionally expressed in the un General Assembly Resolution of 1978, in which the General Assembly called on states to grant asylum to conscientious objectors and deserters who had been forced to leave their country to avoid active participation in and support for the apartheid regime.265 This resolution was passed as part of the international condemnation of apartheid, though, and given its specific context at the time, it cannot be interpreted as representing general international support for the recognition of a right to selective conscientious objection.266 Otherwise, state practice and national courts have consistently rejected the idea of a right to selective conscientious objection.267 States tend to view selective conscientious objection as an expression of political disagreement with a government’s defence and foreign policies rather than an attempt to resolve a conflict with deeply-held religious or conscientious beliefs.268 By reducing 265 u.n.g.a. Res. 33/165, December 20, 1978: “[…]grant asylum or safe transit to another State, in the spirit of the Declaration on Territorial Asylum, to persons compelled to leave their country of nationality solely because of a conscientious objection to assisting in the enforcement of apartheid through service in military or police forces; and [urges] Member States to consider favourably the granting of such persons of all the rights and benefits accorded to refugees under existing legal instruments […].” 266 It can be seen as an indication, though, that a differentiated view of desertions is called for, which takes the legality of the military activity into account; see Chapter 5. 267 The only exception reportedly being Australia, which allows it for conscripts, though not volunteers, who hold conscientious beliefs that forbid them participation in a particular war or military engagement. ohchr, Conscientious Objection to Military Service, HR/ PUB/12/1, 2012, p. 58 citing: Lieutenant Colonel Ian Wing, “Selective conscientious objection and the Australian Defence Force,” Australian Defence Force Journal, No. 137 (July/ August 1999), pp. 31–40. 268 Cecilia M. Bailliet, Assessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Georgetown Immigration Law Journal, 2005–2006, p. 345; Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight?, 31 Va. J. Int’l L. 1990–1991, p. 450.

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selective conscientious objection to ‘selective non-conscientious objection’, however, national courts exclude any protection under the right to freedom of thought, conscience and religion under the international human rights treaties. The Israeli Supreme Court, for example, has ruled in connection with Israeli soldiers’ refusing to serve in the occupied territories that a right to selective conscientious objection did not exist, as selective conscientious objection was based on ideological or political convictions that could affect the security concerns of Israel.269 This approach is also reflected in the jurisprudence of u.s. courts. In addition to the cases relating to the Iraq War discussed in Section A of this Chapter,270 examples can be found in court cases from the Vietnam era. In the cases of Gillette v. United States and Negre v. Larsen before the u.s. Supreme Court, both petitioners stated a conscientious objection to participation in the Vietnam conflict and claimed recognition as conscientious objectors under Section 6 (j) of the Military Selective Service Act of 1967.271 According to this provision of the Act, no one shall be subject to “service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” The u.s. Supreme Court held that “the exemption for those who oppose ‘participation in war in any form’ applies to those who oppose participating in all war and not to those who object to participation in a particular war only, even if the latter objection is religious in character.” Selective objectors, even if they are selective conscien­ tious objectors, are thus excluded from the exemption clause of the Military Selective Service Act. The u.s. Supreme Court argued that selective or partial objection was a conscientious objection of indeterminate scope that would be “difficult, variable, potentially erratic or discriminatory, subjective, and impossible to be conducted in a fair and consistent manner.”272 In line with this, the 269 hcj 7622/02 Zonstein v Judge Advocate-General [2002] (unreported decision) quoted by: Cecilia M. Bailliet, Asssessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Georgetown Immigration Law Journal, 2005–2006, p. 350. 270 While these cases related to desertion, nevertheless they indicate the refusal on the side of the u.s. Government to consider the refusal of career soldiers to serve in Iraq as a form of conscientious objection. See Chapter 2, A ii 3 (a). 271 Gillette v. United States, 401 u.s. 437 (1971), decided 8 March 1971 together with No. 325, Negre v. Larsen et al., on certiorari to the United States Court of Appeals for the Ninth Circuit. 272 Cecilia M. Bailliet, Asssessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Georgetown Immigration Law Journal, 2005–2006, pp. 349/350.

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2006 u.s. Army Regulation on Conscientious Objection restricts the possibility of conscientious objection exclusively to “a firm, fixed and sincere objection to participation in war in any form or the bearing of arms, because of religious training and belief.”273 An example of recognition by a national court that the refusal to participate in a particular military engagement can represent a decision of con­ science can be found in a 2005 decision of the German Federal Administrative Court.274 The decision concerned the review of a disciplinary measure for disobedience and demotion of a member of the German army following his refusal to work on a software programme that might be used during the Iraq conflict, one which the soldier strongly believed to be unjust and illegal. The Federal Administrative Court reversed the disciplinary measures and demotion. The Court held that the soldier had not violated his duty to obey and follow military orders under the national military laws,275 as his decision not to follow the order met with the strict constitutional standards required to qualify as a decision of conscience. It is important to note, however, that the Court decided that the refusal was protected under the constitutional right to freedom of thought under Article 4 (1) of the German Basic Law and not under Article 4 (3), which provides for the right to conscientious objection. The Court explicitly noted that the right to conscientious objection under Article 4 (3) of the Basic Law refers to absolute conscientious objection only and does not extend to selective or partial conscientious objection.276 Nevertheless, the Court held that by qualifying as a decision of conscience, the soldier’s refusal was protected and trumped the duty to follow orders under the national military laws. The Court reached its decision following an extensive examination of the indicia through which a decision of conscience can be established. In its assessment, the Court looked at both external indicia, such as the character and legality of the military engagement, and subjective indicia, which included the seriousness and depth of the soldier’s reflections, the extent to which his actions were guided by profound ethical convictions about good and evil, his overall credibility and the extent to which he had looked for alternatives to his refusal. While the judgment of the German Court is notable for its recognition that a refusal to serve in a particular military assignment can qualify as a decision 273 Army Regulation 600–43, Conscientious Objection, Headquarters Department of the Army Washington, dc, 21 August 2006, p.31. 274 BVerwG 2 wd 12.04. 275 For details on these, see below Chapter 2, B iii 2. 276 BVerwG 2 wd 12.04, p. 69.

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of conscience, it represents an exceptional example that remains unthinkable in the vast majority of countries. As a rule, even those countries that recognise a right to absolute conscientious objection seem to adhere to an interpretation of selective refusal as a political statement rather than a decision of conscience. Granting a right to ‘selective objection’ would mean granting soldiers the right to “pick and choose which military actions to engage in,”277 or, in other words, have each soldier’s political views override those of the government. As this would not only threaten military discipline but, more generally, a country’s military striking power in the event of a military engagement, it is doubtful that states will ever move towards recognising a right to ‘selective objection’ without first accepting that a refusal to participate in a certain military action can represent a decision of conscience. 2 Impact on the Right to Punish Deserters Given the emergent right to absolute conscientious objection at the international level, it needs to be asked whether such recognition might protect the deserter from being punished for his decision to stop fighting for his country. As pointed out above, desertion and conscientious objection are two distinct issues relating to military duties and, in most cases, the act of desertion is easily distinguishable from the exercise of the right to claim conscientious objection: while the conscientious objector uses official channels to express his objection to the authorities, the deserter usually abandons his troops in a clandestine way and goes into hiding in order to avoid prosecution or reprisals from his home country. In addition, there is only one motive behind conscientious objection – namely, avoiding or ending the deep and genuine personal conflict with one’s religious or other beliefs that military service creates. Desertion, on the other hand, can be based on many very different motives that might or might not relate to a person’s conscience or religious beliefs. It is clear that a soldier whose desertion is based on motives unrelated to his deeply and genuinely held religious or other beliefs cannot benefit from any protection that derives from the protected right to freedom of thought, conscience and religion. Nevertheless, in situations where the distinction between desertion and an exercise of the right to claim absolute conscientious objection cannot be made, or, in other words, where the desertion represents, in fact, an exercise of the right to absolute conscientious objection, the protection provided under 277 Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight?, 31 Va. J. Int’l L. 1990–1991, p. 450.

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international human rights law for those who claim absolute conscientious objection is to be extended to deserters: This would be the case in the narrow category of scenarios, where a person (1) is drafted into the military against his or her will, and (2) is denied any possibility whatsoever to claim conscientious objection, and (3) deserts after having joined the army in order to end the deep and genuine personal conflict with one’s religious or other beliefs that the military service creates. In these cases, it can be argued that – while in principle committing the offence of desertion under national military law – the person should be considered as exercising his or her right to claim conscientious objection under international human rights law. If, indeed, the country did not foresee any process for the forcefully drafted soldier to claim conscientious objection, then punishing him for desertion would violate his rights under Article 18 ccpr, or relevant regional instruments. As only a small number of states continues categorically to deny all forms of conscientious objection to compulsory military service, this scenario has limited relevance in practice. It would be more difficult to argue that a deserter who raised an absolute conscientious objection during his or her service, rather than claiming it at the start, should not be punished under the right to conscientious objection. If his or her objection develops after the time limits set by the home country for filing a claim for conscientious objection have passed, deserting might be the only way for the soldier to end the personal conflict with his or her religious, or other beliefs. Nevertheless, it would be difficult to argue that such cases represent a legitimate exercise of the right to absolute conscientious objection. As has been outlined above, there is no right in international law to claim absolute conscientious objection at any time before, during, or after conscription or performance of military service, even though it is advocated within the United Nations and regional human rights systems.278 Granting the right to conscientious objection at any time during the performance of military service creates obvious risks to the striking power of the military, particularly during times of conflict. Current state practice shows that the international community 278 See Commission on Human Rights Res. 1998/77 as well as Council of Europe recommendation 1518 (2001). The Commission on Human Rights also repeatedly encouraged States to consider granting, and effectively implementing, amnesties and restitution of rights, in law and in practice, for those who had refused to undertake military service on ground of conscientious objection. See for example: Analytical report of the Office of the High Commissioner for Human Rights on best practices in relation to conscientious objection to military service, E/CN.4/2006/51, para. 17 and un Commission on Human Rights, Resolution 2004/35 on Conscientious Objection to Military Service, 19 April 2004, E/CN.4/ RES/2004/35.

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remains divided over the issue and that, generally, there is a much narrower recognition of the right to claim absolute conscientious objection. Therefore, punishing a soldier for desertion who abandons his troops because of a deep and genuine conflict with his conscience does not violate international law if the right to claim conscientious objection is foreseen in the national laws but the stipulated timeline for exercising the right has passed. The same goes for those soldiers whose claim of conscientious objection has been denied, and who desert in order to end the military service forced upon them despite their objection. The protection for absolute conscientious objection deriving from the right to freedom of thought, conscience and religion requires states to establish a national procedure so that compulsorily drafted individuals can claim to be conscientious objectors but not every person who claims it has to be recognised and granted the status. 3 Summary The trend to recognise conscientious objection, while continuously evolving at the regional and global levels, currently only relates to absolute objection to all forms of military service. Selective objection to participating in a particular military activity is not accepted as a decision of conscience. The emerging right to absolute conscientious objection under international human rights law is limited. Principally, it obliges states that make military service compulsory for their nationals to provide those who are drafted with the possibility to object to the military service if such service would conflict with their genuine religious or other beliefs. This limited recognition of the right to absolute conscientious objection means that where such possibility to object to compulsory military service is not provided, an individual’s conscientious objection may be legitimately expressed through draft evasion or desertion.279 In such cases, a state that insists on punishing a soldier for his dereliction of military duties would violate its obligation under international law to protect the individual’s right to claim conscientious objection as derived from the right to freedom of thought, conscience and religion. iii International Criminal Law Sections i and ii above examined situations where international law stipulates the rights of the individual that have to be respected by the home country at the national level and which affect the country’s right to punish deserters. In contrast, the following section looks at how international law, through the 279 See also unhcr Guidelines No. 10, Paragraph 4.

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provisions of international criminal law, places obligations on the individual and how the fulfilment of these obligations can lead to a conflict with the individual’s national duties. The cases considered here describe situations in which the soldier deserts because of a conflict between, on the one hand, principles of international law that address him or her directly through the provisions of international criminal law, and, on the other hand, policies or official as well as unofficial actions of his government that filter through to him in the form of military orders on the battlefield.280 Put differently, they concern situations in which the soldier deserts in order to prevent any further participation in military activities that would render him or her criminally liable under international law. In examining this conflict of interest and its repercussions on the home country’s right to punish deserters, this section will first outline the obligations that international law stipulates for the individual through the provisions of international criminal law. For which violations of international law is the individual soldier held criminally responsible? Does the fact that the soldier was bound by the military structures of order and obedience make a difference? To understand properly the possible conflict between obligations under international law and military orders, the national military laws that regulate military life and define the soldier’s rights and duties must also be considered. Of particular interest for the discussion here are the national regulations regarding disobedience of unlawful orders. Following this is an exploration of the circumstances under which a soldier could claim that, in practice, the conflict between international law and military orders could not be reconciled within the framework of existing national military laws and that desertion represented, therefore, a legitimate, if not the only, way to fulfil his or her duties under international law. 1 Liability for Crimes under International Law The general principles and substantive provisions of international criminal law were, to a large extent, developed in reaction to the atrocities committed during armed conflicts, in particular the horrors committed during World War ii,281 making this area of law particularly important for members of military forces. 280 For an examination of this type of conflict in the context of selective objection to military service, see: Donald A. Peppers, War Crimes and Induction: A Case for Selective Nonconscientious Objection, Philosophy and Public Affairs, Vol. 3, No. 2, 1974, p. 130. 281 Gerhard Werle, Principles of International Criminal Law, Margin No. 123.

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The sources of international criminal law are the same as those of public international law in general and include customary international law, international treaties and the general principles of law recognised by the world’s major legal systems.282 The Statute of the International Criminal Court (“icc Statute”) consolidated customary international law and the partial codification of international criminal law by other international treaties and today represents the main source of international criminal law.283 The following overview is therefore limited to the icc Statute. (a) Individual Criminal Responsibility While public international law has traditionally related only to states, the twentieth century witnessed the development of two areas of law that relate directly to the individual: international human rights law recognises the individual as a bearer of rights under international law, and international criminal law establishes direct obligations on the individual and, in case of a violation, his or her criminal responsibility.284 According to the principle of individual criminal responsibility, a person who commits a crime under international law is directly liable for punishment under international law.285 The principle of individual criminal responsibility was established during the trials of German and Japanese military leaders before the International Military Tribunal in Nuremberg (“imt”)286 and the International Military Tribunal for the Far East in Tokyo (“imt (fe)”),287 respectively, in the wake of World War ii.288 The imt stressed the importance 282 283 284 285

Article 38 (1) icj Statute, 39 ajil Supp. 215 (1945). Gerhard Werle, Principles of International Criminal Law, Margin No. 137–139. Ibid. margin no. 123. Article 25 of the icc Statute. For details, see: Werle, Principles of International Criminal Law, Margin No. 440 ff. 286 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945, ajil 1945, Suppl., p. 257; re-published in: D.Schindler / J.Toman, The Laws of Armed Conflicts, pp. 912–919. 287 The International Military Tribunal for the Far East (Tokyo 1948) was established on 19.01.1946 by a special proclamation of General MacArthur as the Supreme Commander in the Far East for the Allied Powers, tias No. 1589. 288 While practically unknown before World War i, the principle of individual criminal responsibility under international law had already been mentioned in the Treaty of Versailles, which stipulated not only the prosecution of Kaiser Wilhelm ii by an international tribunal but also the right of the Allied Forces to prosecute members of the German military for war crimes, see: Articles 227 and 228 of the Versailles Treaty, RGBl. 1919 ii, p. 685. As the Kaiser successfully sought refuge in The Netherlands, which refused to extradite him, no international criminal trial was held after World War i. Germany refused to extradite its own nationals, but under pressure from the Allied Forces it prosecuted war

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of the principle for the enforcement of international law when it held that “crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”289 In 1950, the International Law Commission codified the principle of individual criminal responsibility in a report entitled “Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal”.290 Today, the principle forms part of customary international law291 and is one of the cornerstones of modern international criminal law. It has formed the basis for the criminal justice efforts of the ad-hoc tribunals of the United Nations for Yugoslavia292 and Rwanda,293 the special criminal courts with international elements, such as the Special Court for Sierra Leone,294 the Extraordinary Chambers in the Courts of Cambodia295 and the Panels for Serious Criminal Offences in East Timor.296

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crimes before the Reichsgericht in Leipzig. See: Leslie Green, Superior Orders in National and International Law, p. 197; Bassiouni, Crimes against humanity in international criminal law, p. 199; see also McCoubrey, The Concept and Treatment of War Crimes, p. 124, who writes: “The presupposition of guilt and the transparently vindictive motivation of these proceedings would have tainted them with victor’s vigilantism that their ultimate failure can only in retrospect be thought fortunate.” Judgment of the International Military Tribunal, in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, London, 1950, p. 447. “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.” Principle i of the Nuremberg Principles, formulated by the International Law Commission in 1950, see Report of the International Law Commission to the General Assembly, 2 ybilc 374–378 (1950), and adopted by the United Nations General Assembly during the same year, unga Res 177(ii)(a), un Doc A/ CN.4/SER.A/1950. Gerhard Werle, Principles of International Criminal Law, Margin No. 453. See Articles 6 and 7 Statute of the International Criminal Tribunal for the Former Yugoslavia, annexed to un Security Council Resolution 827 (1993) (with later amendments), 32 i.l.m. 1203 (1993). Articles 5 and 6 Statute of the International Criminal Tribunal for Rwanda, annexed to un Security Council Resolution 955 (1994) (with later amendments), 33 ilm 1598 (1994). Article 6 of the Statute of the Special Court for Sierra Leone, Enclosure to un sc, report of the Secretary-General on the establishment of a Special Court for Sierra Leone, un Doc. S/2000/915 (October 2000). Article 29 of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, available at: www.eccc.gov.kh/en. Section 14 of Regulation No. 2000/15 On the Establishment of Panels with Exclusive Juris­ diction over Serious Criminal Offenses, taet Reg. 2000/15, un Doc. UNTAET/REG/2000/15.

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Article 25 ii and iii of the icc Statute297 provides a detailed regulation of the modalities of individual criminal responsibility and distinguishes between several modes of criminal participation, which, as well as direct commission of a criminal act also includes ordering, soliciting, inducing or assisting in the commission of a crime under international law.298 In addition, Article 28 of the icc Statute explicitly extends individual criminal responsibility to military commanders for crimes committed by subordinates. Military commanders can be held criminally responsible under international law if they either knew or, based on the circumstances at the time, should have known that forces under their command were committing, or about to commit crimes and failed to take all necessary and reasonable measures within their power to prevent or repress the crimes, or to submit the matter to the competent authorities for investigation and prosecution.299 Prominent examples of convictions of military commanders for crimes committed by their subordinates are the World War ii cases of Kurt Meyer,300 who was convicted by a Canadian military court for the execution of prisoners of war by members of his brigade,301 and of the Japanese General Tomayuki Yamashita,302 who was sentenced to death by a u.s. military commission in 1945 because of his failure to prevent the war crimes of his subordinates.303 (b) Crimes under International Law The lists of crimes under international law contained in the statutes of the international ad-hoc tribunals, Special Courts and the icc testify to the fact that crimes committed during armed conflicts, and commonly by members 297 1998 Rome Statute of the International Criminal Court, 2187 unts 90. 298 Gerhard Werle, Principles of International Criminal Law, Margin No. 446. 299 See also Article 7 (3) icty Statute, Article 6 (3) ictr Statute; Article 6 (3) scsl Statute. Today, command responsibility is recognised to be part of customary international law, see icty, The Prosecutor v. Tihomir Blaškic, IT-95-14-T, 3 March 2000, para. 290. 300 1945, 4 unwcc, Law Reports of Trials of War Criminals, 97; see also excerpts of trial protocols in: Leslie Green, Superior Orders and Command Responsibility, p. 198/199. 301 For information on further convictions, see: Rauer, 1946, 4 unwcc, Law Reports of Trials of War Criminals, p. 113; Baba Masao, 1947, ii ibid., p. 56; von Leeb, 1948, 12 ibid., p. 1; von Manstein, 1949, 15 ibid., p. 63–78. 302 1945, 4 unwcc, Law Reports of Trials of War Criminals i, 34–35. 303 Leslie Green, Superior Orders and Command Responsibility, p. 195. See also Judgment of the us Supreme Court rejecting a habeas corpus claim of Yamashita: re Yamashita, 327 u.s. 1 (1946). For a critical analysis of the Yamashita Case see: Cherif Bassiouni, Crimes against humanity in international criminal law, p. 216, and Telford Taylor, Nuremberg and Vietnam – an American Tragedy, pp. 91/92.

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of armed forces, represent the crimes that are of most concern to the international community as a whole today.304 The ad-hoc tribunals for the former Yugoslavia, Rwanda and Sierra Leone were all set up to punish crimes committed during the particular armed conflicts in the respective countries. As such, they had the power to prosecute grave breaches of international humanitarian law and the laws or customs of war,305 crimes against humanity306 and genocide.307 Likewise, the Statute of the icc demonstrates a focus on crimes committed predominantly in armed conflicts, underlining the importance of international criminal law for members of the armed forces. According to Article 5 icc Statute, the court’s jurisdiction encompasses the crime of genocide,308 crimes against humanity,309 war crimes310 and, as already foreseen for the future, the crime of aggression.311 Within the group of crimes under international law, the crime of aggression holds a unique position in the icc Statute.312 While it had been included as one of the core crimes within the icc Statute in Rome in 1998, a definition of the crime of aggression, and of a regime under which the Court would exercise its jurisdiction over the crime, were only agreed upon during the Review Conference of the Rome Statute held in Kampala, Uganda in 2010.313 Article 8 bis of the icc Statute adopted in Kampala incorporates the wording of Article 3 304 See Paragraph 4 of the Preamble of the Rome Statute of the International Criminal Court. 305 Articles 2 and 3 icty Statute, Article 4 ictr Statute, Articles 3 and 4 Statute for the Special Court for Sierra Leone. 306 Article 5 icty Statute, Article 3 ictr Statute, Article 2 Statute for the Special Court for Sierra Leone. 307 Article 4 ii icty Statute, Article 2 ii ictr Statute. 308 Article 6 icc Statute. 309 Article 7 (i) icc Statute. 310 Article 8 icc Statute. 311 Article 8bis icc Statute. 312 The following examination will be limited to the crime of aggresssion in the icc Statute. Regarding the crime of aggression under customary international law, see: Gerhard Werle, Principles of International Criminal Law, Margin No.1322 ff. 313 The conditions for entry into force decided upon in Kampala provide that the Court will not be able to exercise its jurisdiction over the crime until after 1 January 2017, when a decision is to made by States Parties to activate the jurisdiction. According to the agreement reached at the Review Conference in Kampala, the Court will not be able to exercise its jurisdiction over the crime of aggression until: at least 30 States Parties have ratified or accepted the amendments; and a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017. See Article 15 bis and Article 15 ter of the icc Statute.

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of the Definition of Aggression adopted by the General Assembly in 1974314 and defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” While war crimes, crimes against humanity and the crime of genocide can be committed by any person, and, as such, by any member of the armed forces, irrespective of his or her rank, the definition of the crime of aggression limits the circle of potential perpetrators to those in a leadership position.315 The leadership element for the crime of aggression is not new. The imt in Nuremberg limited the crime of aggression to a few persons at the highest decision-making level with direct and concrete influence on the planning and execution of government policies. In the landmark case of United States of America v. Ernst von Weizsäcker et al. (the Ministries case)316 the imt ruled that Ernst von Weizsäcker, the State Secretary in the Foreign Office in Berlin from 1938 to 1943, was not criminally responsible for the crime of aggression with regard to the attack on Poland, as he “was an implementer and not an originator” who “could oppose and object, but […] not override.”317 In summary, the use of military force by one state against another that constitutes a violation of the un Charter318 does not lead to the criminal responsibility of every individual soldier who participated. In other words, the mere fact that his country is waging an illegal war of aggression does not make the serving soldier guilty of the crime of aggression under international law. The soldier who commits or participates in any of the acts listed in the definitions of the crime of genocide, crimes against humanity or war crimes is, however, individually criminally responsible for these crimes. As crimes under international law, these acts are directly punishable under international law, 314 un General Assembly Resolution 3314 (xxix) of 14 December 1974, Albrecht Randelzhofer/ Oliver Dörr, Article 2 (4), in: B. Simma / D.-E. Khan / G. Nolte / A. Paulus (eds.), The Charter of the United Nations, Margin No. 70. 315 Gerhard Werle, Principles of International Criminal Law, Margin No. 1347. 316 u.s. Military Tribunal Nuremberg, Judgment of 11 April 1949, in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. xiv, pp. 308ff, see Historical Review, pp. 5–83, paras. 166–259. 317 Rolf Eimar Fife, Criminalizing individuals for acts of aggression committed by States, p. 60. 318 Albrecht Randelzhofer/Oliver Dörr, Article 2 (4), in: B. Simma, D.-E. Khan, G. Nolte, and A. Paulus (eds.), The Charter of the United Nations, Margin No. 14–43.

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irrespective of whether or not the home state has also declared them criminal at the national level.319 (c) Defences Defences are a principal part of the system of individual criminal liability of soldiers under international criminal law and place important limitations on the scope of punishable conduct.320 While jurisprudence on defences from criminal tribunals is scarce, the literature on international law discusses various grounds for excluding criminal responsibility without distinguishing between grounds that are a justification for the offence and those that are an excuse of the offender. These grounds include, for example, individual necessity and necessity of the State, duress, self-defence, obedience to superior orders, mistake of law or fact, mental incapacity, intoxication, immunity.321 With regard to the criminal liability of members of the military during an armed conflict the most pertinent defences are duress and obedience to superior orders. The main aspects of these two defences will be presented below. (1)

Duress

The defence of duress may exempt a person from criminal liability if the person was coerced into committing the acts that constitute a crime by another person through the threat of imminent death or serious bodily harm. While not mentioned in the statutes of the imt and imt (fe), the defence was raised in a number of trials before the former. The imt rejected the defence in cases that concerned the killing of innocent persons.322 The un War Crimes Commission recorded in the 1949 Law Reports that “duress may prove a defence 319 For other international crimes, such as piracy, crimes against air traffic and maritime navigation, certain narcotics crimes, counterfeiting, torture and acts of terrorism, the basis of prosecution and punishment is domestic law; international law merely creates a treaty-based obligation for states to declare these offences criminal. See: Cherif Bassiouni, International Criminal Law, p. 47; Gerhard Werle, Principles of International Criminal Law, Margin No. 114. 320 Robert Cryer [et al.], An Introduction to International Criminal Law and Procedure, p. 402. 321 See list of defences in: Albin Eser, Defences in War Crime Trials, p. 251. 322 See: Trial of Max Wielen and 17 Others (“Stalag Luft iii” case), Law Reports, Vol. xi, p. 33; Trial of Valentine Feuerstein and Others (“Feuerstein” case), Proceedings of a Military Court held at Hamburg, 4–24 August, Public Record Office, Kew, Richmond, file no. 235/525, Law Reports, Vol. xv, p. 173; Trial of Robert Hölzer and Two Others (“Hölzer” case), Record of Proceedings of the Trial by Canadian Military Court of Robert Hölzer, Walter Weigerl and Wilhelm Ossenbach held at Aurich, Germany, 25 March–6 April 1946 Vol. 1.

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if (a) the act charged was done to avoid an immediate danger both serious and irreparable; (b) there was no other adequate means of escape; (c) the remedy was not disproportionate to the evil.”323 Despite the un War Crimes Commission’s findings, duress was not included in the statutes of the un ad-hoc tribunals for the former Yugoslavia and Rwanda. Nevertheless, the icty dealt with the defence extensively in one of its first cases – the case of Prosecutor v. Drazen Erdemovic.324 Mr. Erdemovic was accused of crimes against humanity (Article 5 icty Statute) and violations of the customs and laws of war (Article 3 icty Statute) in connection with the massacres of Muslim men in Srebrenica in July 1995.325 In his defence, Mr. Erdemovic claimed that he participated in the killings only because his superior threatened to kill him if he refused: Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: “If you are sorry for them, stand up with them and we will kill you too.” I am not sorry for myself but for my family, my wife and son, who then was nine months, and I could not refuse because then they would have killed me. That is all I wish to add.326 This and similar statements led the icty to examine whether, under international law, duress resulted in the exclusion of criminal liability of a soldier who is accused of killing innocent persons.327 The majority of the Appeals Chamber

The only exception being the so called Einsatzgruppen case, where a us Court held that in case of extreme coercion the defence might exempt the perpetrator from criminal liability even for the killing of innocent persons: “Let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever,” Trial of Otto Ohlendorf et al. (Einsatzgruppen case), Trials of War Criminals, Vol. iv, p. 480. 323 Law Reports of Trials of War Criminals, un War Crimes Commission (hm Stationery Office, London 1949), Vol. xv, p. 174. 324 icty Case No. IT-96-22-A. 325 For details on the facts of the case, see IT-96-22-T and IT-96-22-A. 326 Transcript, The Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T, 31 May 1996, p. 9 (“Trial Transcript”). 327 See IT-96-22-A, particularly the Joint Separate Opinion of Judge McDonald and Judge Vohrah, “Can duress be a complete defence in international law to the killing of innocents?” p. 25.

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held that while it may be taken into account by way of mitigation, “duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings.”328 In its reasoning, the icty pointed to the post-World War ii case law that had limited the defence to cases that did not involve the killing of innocent persons. In Article 31 (1) (d) icc Statute, the defence has now been codified for the first time at the international level. Covering both duress and necessity, Article 31 (1) (d) icc Statute provides that “a person shall not be criminally responsible if, at the time of that person’s conduct: (d) The conduct […] has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.” For the defence of duress to apply, there must be a threat of “imminent death or of continuing or imminent serious bodily harm” issued by another person, which goes beyond the level of coercion and pressure that is to be expected from colleagues in a group activity such as a military mission.329 Article 31 icc Statute further stipulates that the person does not intend to cause a greater harm than the one sought to be avoided. It remains to be seen how the icc will interpret the requirement to weigh up the different interests in practice, and whether it will establish a hierarchy of legally protected interests. However, it is difficult to foresee a situation in which duress would excuse or justify some of the grave crimes with which international criminal law is concerned, particularly crimes against humanity, or genocide.330 (2)

Obedience to Superior Orders

The defence obedience to superior orders is likely to be of greatest importance for soldiers, given the strict hierarchic structures within the military and the paramount influence of the principle of discipline on military life. The defence has a long history in international law,331 ranging from the theory of respondeat superior, which removed any responsibility from the subordinate for crimes 328 Erdemovic, icty, Appeal Chamber Decision of 7 October 1997, para. 19. 329 Robert Cryer [et al.], An Introduction to International Criminal Law and Procedure, pp. 410–411. 330 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, p. 439. 331 See: Yoram Dinstein, The Defence of “Obedience to Superior Order” in International Law, pp. 93–103.

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committed following an order,332 to the theory of absolute liability of the subordinate for all his actions, irrespective of an order.333 The imt and the imt (fe) attempted a compromise between the complete negation of responsibility on the one hand and the absolute disregard of the fact that a soldier acted on an order on the other hand. Article 8 imt Statute provided: The fact that the defendant acted pursuant to order of his government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.334 In its judgments, the imt complemented this rule with the so-called moralchoice test: That a soldier was ordered to kill or torture in violation of the international law of war has never been recognised as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of punishment. The true test, which is found in varying degrees in the criminal law of most nations is not the existence of the order, but whether moral choice was in fact possible.335 332 The theory of respondeat superior was supported by Oppenheim, who, in 1906, wrote: “Violations of the rules regarding warfare are war crimes only when committed without an order of the belligerent Government concerned. If members of the armed forces commit violations by order of their Government, they are not war criminals and cannot be punished by the enemy; the latter can, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members may not be punished, for the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy.” L.F.L. Oppenheim, International Law, Vol. ii, “War and Neutrality,” p. 253. 333 In French law, the theory of absolute liability was also referred to as the theory of baio­ nettes intelligentes, Peter Fuhrmann, Der höhere Befehl als Rechtfertigungsgrund im Völkerrecht, p. 43. 334 Article 6 imt(fe) read: “Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to the order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crimes with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.” 335 Nuremberg Trial Judgment, Cmd. No. 6964, p. 43.

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The ilc included the moral-choice test as part of the defence in Principle iv of the Nuremberg Principles.336 The strict classification and application of the moral-choice test in post-World War ii literature was, however, controversial and raised questions about the relationship between the defences of obedience to superior orders and duress. While the majority opinion held that the existence of a choice was a necessary element for the establishment of criminal responsibility, and hence called for an acquittal of the accused if he could show that he had no choice, others considered the test relevant for the level of punishment only.337 There was no mention of the defence in the Convention on the Prevention and Punishment of the Crime of Genocide,338 nor in the Geneva Conventions of 1949, and it was explicitly excluded in the 1984 un Convention Against Torture, Cruel, Inhuman and Other Degrading Treatment or Punishment.339 It was included in the Statute of the icty, which used the wording of Article 8 imt Statute without mentioning the moral-choice test applied by the imt.340 The International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone did not recognise superior orders as a defence but accepted them as mitigation of punishment.341 A new definition of the defence can now be found in the icc Statute. Article 33 icc Statute provides that obedience to superior orders cannot be invoked 336 Principle iv of the i.l.c. Nuremberg Principles: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.,” adopted by the i.l.c. on 2 August 1950, 2 ybilc (1950), p. 374. 337 Yoram Dinstein, The Defence of “Obedience to Superior Orders” in International Law, p. 152, Christiane Nill-Theobald, “Defences” bei Kriegsverbrechen am Beispiel Deutschland und der usa, p. 93; Morris Greenspan, The Modern Law of Land Warfare, p. 493; Quincy Wright, The Outlawery of War and the Law of War, 47 a.j.i.l. 1959, p. 373. 338 Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 December 1948, entered into force 12 January 1951, 78 unts 277. 339 Article 2 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, Vol. 1465, p. 85. 340 In drafting the icty Statute the Security Council restricted itself to applying international humanitarian law that formed part of customary international law. See Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), para. 34, S/25704 (3 May 1993). 341 Article 6 (1) of the ictr Statute and Article 6 (4) of the Statute of the Special Court for Sierra Leone. A similar approach has been taken by the Special Panels to hear Serious Crimes in East Timor and by the Iraqi Special Tribunal, see: Martha Minow, The Dilemma of the Superior Orders Defence, 52 MCGill l.j. 2007, p. 22.

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as a defence to criminal responsibility unless three cumulative conditions are fulfilled: (1) The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. (2) For the purpose of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.342 The first condition, an obligation to obey, is unproblematic in the military context, given that military discipline is a central principle in all armies. The second and third condition, however, are more problematic, as they oblige the soldier to assess the orders he or she receives during military operations. Furthermore, they require a post de-facto assessment of what the soldier knew and could be expected to know at the time the order was given. As a result, the defence of obedience to superior orders, as applicable in the context of the icc trials, may relieve a soldier of criminal responsibility in the rather narrow category of cases in which the soldier committed a war crime (rather than the crime of genocide, or a crime against humanity) because he or she followed an order that was unlawful though not manifestly unlawful, and without realising that the order was unlawful. (d) A Modern Understanding of the Military The rules regarding individual criminal responsibility and defences testify to a modern understanding of the military that entrusts each soldier with responsibility for his or her acts. International criminal law attempts a ‘watertight’ system that establishes the criminal responsibility of both superiors for the acts of their subordinates and of subordinates for having acted under an order. A soldier can no longer ‘blindly’ obey orders – he or she has to evaluate them in terms of their legality before acting on them. Obedience to superior orders exempts from criminal responsibility only in the narrowest category of cases, where the soldier is not at fault in not recognising the unlawfulness of the acts ordered. 342 Article 33 icc Statute.

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While the defence of duress acknowledges that a person cannot be held responsible for acts that he committed under threats to his own life or physical integrity, the application of the defence is limited to those situations where the threat is severe and imminent and where the harm caused is not greater than the one sought to be avoided. In practice, and despite not being specifically excluded for these crimes, this might well mean that duress, like obedience to superior orders, is inapplicable in cases of crimes against humanity and genocide. 2 Disobedience to Unlawful Orders in National Military Law International criminal law aims to ensure respect for international legal principles and to prevent violations of international law through pursuing perpetrators of the most serious crimes under international law. However, given the constraints on prosecuting these crimes at the international level,343 national efforts to ensure respect for international human rights law and international humanitarian law remain of utmost importance. The prosecution of crimes under international law and other violations of international humanitarian law before national courts represents one aspect of these efforts at the national level.344 The four 1949 Geneva Conventions make explicit provision for a duty of States Parties to prosecute and extradite offenders who committed ‘grave breaches’ of the Conventions.345 Equally important to criminal prosecution, however, are the preventive measures that countries adopt to ensure that soldiers act in conformity with 343 Apart from practical limitations due to its limited resources, the icc’s jurisdiction is only complementary to that of national courts, see Article 17 icc Statute. 344 See Michael Bothe, Complementarity: Ensuring compliance with international law through criminal prosecutions – whose responsibility? Friedens-Warte, Vol. 83, No. 4, 2008, pp. 59–72; For Germany, see: Völkerstrafgesetzbuch, of 26 June 2002 (BGBl. I S. 2254) which explicitly incorporates the crime of genocide, crimes agains humanity and war crimes into national law and establishes jurisdiction of German national courts for these crimes. 345 See Art. 49 gc I, 75 unts 31, 62; Art, 50 gc ii, ibid, 85, 116; Art. 129 gc iii, ibid, 135, 236; Art. 146 gc iv, ibid, 287, 386. Also Art. 85 (1) of 1977 Additional Protocol i. Independently of the existence of an international armed conflict, a number of human rights conventions, such as the 1948 Genocide Convention, the Apartheid Convention and the 1984 Convention Against Torture also contain an obligation to prosecute and punish perpetrators of serious human rights violations, Art. v and vi of the Genocide Convention; Art. iv and v of the International Convention on the Suppression and Punishment of the Crime of Apartheid, un ga Res of 30 November 1973, A/RES/3068(XXVIII); Art. 4 to 7 of The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, 24 ilm 535.

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international law. Such measures entail, on the one hand, the ‘translation’ of the internationally agreed rules of the law of armed conflict into national instructions for the armed forces”346 and, on the other, the teaching and dissemination of these rules within the military. The four Geneva Conventions of 1949 specifically call on the High Contracting Parties to disseminate the text of the Conventions as widely as possible, and to develop instruction programmes, so that the principles of the Geneva Conventions may become known to the armed forces and to the civilian population.347 Of special interest for the present study are those domestic military rules that regulate military discipline and define the soldier’s duties and rights within the strict and hierarchic structures of military life. The following paragraphs provide an exemplary overview of national rules and regulations regarding military discipline and the limits of obedience, i.e. the regulation of disobedience to unlawful orders.

German military law

In Germany, military discipline is regulated in the Soldatengesetz (“sg”), an act regulating the legal status of military personnel.348 According to § 11 Section 1 sg, the soldier has to obey his superiors and has to follow their orders. Disobedience is punishable by imprisonment of up to three years if the consequences of the disobedience are grave,349 or by disciplinary measures according to the Wehrdisziplinarordnung (“wdo”),350 the regulation on military discipline. However, § 11 sg also states that it is not considered disobedience if the orders not followed violate the dignity of the recipient, or lack an official military purpose.351 Importantly, Section  2 provides that the soldier 346 Frits Kalshoven, Instructions for the Armed Forces (General Report), The Military Law and the Law of War Review, Vol. 28, No. 1/2, 1989, p. 319. 347 Article 47 gc i, Article 48 gc ii, Article 127 gc iii, Article 144 gc iv. This obligation is reaffirmed in the 1977 Protocols additional to the Geneva Conventions; see Article 80 (2) ap i. 348 Legal Status of Military Personnel Act (Soldatengesetz – „sg“) of 30.05.2005, BGBl. i p. 1482, last amended on 21. 07.2012, BGBl. i p. 1583. 349 See § 19 (1) wstg. According to § 2 Nr. 3 wstg, grave consequences are a danger to the security of the Federal Republic of Germany, to the vigour of the military forces, to the body or life of a person or to property of considerably value that does not belong to the soldier. 350 See Wehrdisziplinarordnung (“wdo”) of 16 August 2001, BGBl. i, p. 2093, last amended 21 July 2012, BGBl. i, p. 1583. 351 “(1) Der Soldat muß seinen Vorgesetzten gehorchen. Er hat ihre Befehle nach besten Kräften vollständig, gewissenhaft und unverzüglich auszuführen. Ungehorsam liegt nicht vor, wenn ein Befehl nicht befolgt wird, der die Menschenwürde verletzt oder der nicht zu dienstlichen Zwecken erteilt worden ist; die irrige Annahme, es handele sich um einen solchen Befehl,

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must disobey an order if following that order would entail committing a criminal offence.352 As such, § 11 Section 2 sg establishes a duty at the national level to disobey and determines that prohibitions under criminal law always trump military orders.353 Equivalent regulations can be found in the Wehrstrafgesetz (“wstg”), the German Military Penal Code, and the German Völkerstrafgesetzbuch (“VStGB”), which establishes jurisdiction of German Courts for the crime of genocide, crimes against humanity and war crimes.354 § 22 (1) wstg provides that disobeying an order is not punishable if the order was not binding, and that orders are not binding when they violate the dignity of the recipient, when they lack an official purpose, or when following the order would entail committing a criminal offence. Importantly, § 22 (2) wstg establishes that a soldier who disobeys an order because he believes, erroneously, that following the order would result in committing a criminal offence is not guilty of disobedience if he could not avoid the error. As there is no duty to obey non-binding orders, § 5 wstg provides that acting under superior orders is not an excuse if the soldier recognised that the act he or she was ordered to perform constituted a criminal offence, or if this was obvious from the circumstances known to him or her. These principles of § 5 WStG can also be found in § 3 VStGB, which excludes the defence of superior order for cases in which the soldier recognised the unlawfulness of the order, or the order was manifestly unlawful. These legal provisions have been ‘translated’ for soldiers into the Handbuch zum humanitären Völkerrecht (“Handbook on Humanitarian Law”). The Handbook on Humanitarian Law calls the respect for the rules of international humanitarian law a “self-evident duty” of the soldier355 and emphasises that there is a legal duty not to obey unlawful orders.356

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befreit den Soldaten nur dann von der Verantwortung, wenn er den Irrtum nicht vermeiden konnte und ihm nach den bekannten Umständen nicht zuzumuten war, sich mit Rechtsbehelfen gegen den Befehl zu wehren.” Section 11, subsection 1 sg. § 11 Section 2 sg reads: “(2) Ein Befehl darf nicht befolgt werden, wenn dadurch eine Straftat begangen würde. Befolgt der Untergebene den Befehl trotzdem, so trifft ihn eine Schuld nur, wenn er erkennt oder wenn es nach den ihm bekannten Umständen offensichtlich ist, daß dadurch eine Straftat begangen wird.” See also Begründung zu § 9 des Regierungsentwurfs zum Soldatengesetz vom 23.09.1955, Drucksache II/1700, p. 20. Völkerstrafgesetzbuch, of 26 June 2002 (BGBl. I S. 2254). Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, Section v, Margin No. 139. Christopher Greenwood, Scope of Application of Humanitarian Law, in: Fleck (ed.), The Handbook of International Humanitarian Law, Margin No. 146, p. 42.

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In summary, German military law distinguishes between unlawful orders that do not result in punishment if disobeyed and those unlawful orders that would result in committing a criminal offence. With regard to the latter, national military law forbids obedience and establishes a positive duty to disobey.

u.s. and British military law

Similar rules and regulations can be found in u.s. and British military law. Both the British Manual of Military law and the u.s. Rules of Land Warfare initially excluded criminal responsibility for the soldier if he followed an order, and only held the superior who had given the order responsible.357 Shortly before the end of World War ii, when the Allied Forces began preparing for the criminal prosecution of war crimes by Nazi Germany,358 both the British and the u.s. rules were changed so that a superior order could only be taken as a mitigating factor for the punishment.359 The u.s. rules were changed again after World War ii, and, since 1956, The Law of Land Warfare360 has laid down the standards for members of the u.s. military. The Law of Land Warfare establishes a general duty to obey military orders and, at the same time, specifies that members of the armed forces be bound to obey lawful orders only. Consequently, The Law of Land Warfare also states that in cases where the law of war has been violated, the fact that the soldier acted pursuant to an order of a superior does not “constitute a defence in the trial of an accused, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful.”361 357 British Manual of Military Law (1914), Art. 443: “Members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy […].” see also: us Rules of Land Warfare (1917), p. 130. 358 Gary D. Solis, The Law of Armed Conflict, p. 351. 359 See us Basic Field Manual, Rules of Land Warfare (para. 345), Change No. 1, Nov. 15, 1944: “Individuals and organisations who violate the accepted laws and customs of war may be punished therefore. However, the fact that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defence or in mitigation of punishment […].” 360 Department of the Army, fm 27–10, The Law of Land Warfare, (Washington: gpo, 1956). 361 “In considering…whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received; At the same time

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According to the u.s. Manual of Courts-Martial, an order is “lawful unless it is contrary to the Constitution, the laws of the United States, or to lawful superior orders or for some other reason is beyond the authority of the official issuing it.”362 The Manual of Courts-Martial stipulates further that an order requiring the performance of a military duty or act may generally be inferred to be lawful, unless it is “a patently illegal order, such as one that directs the commission of a crime.”363 Such manifestly unlawful orders must not be obeyed.364 The u.s. Uniform Code of Military Justice does not define what constitutes patently or manifestly unlawful orders. The lawfulness of an order is a question of law to be determined by the military judge.365 However, it is interesting to note that the Manual of Courts-Martial explicitly excludes a person’s conscience, religious beliefs, moral judgment, or personal philosophy as a basis to manifest illegality of an order, or to justify or excuse disobedience to an otherwise lawful order.366 u.s. courts have also held that manifest illegality of an individual order cannot be based “on the asserted illegality of a nation’s resort to force in violation of the jus ad bellum and that in fact an unlawful order applied only to ‘a positive act that constitutes a crime’.”367 Similarly, British military law limits the duty to obey to lawful orders. Disobedience under Section  12 of the u.k. Armed Forces Act of 2006 is not punishable if the command was unlawful. The explanatory notes to the Armed Forces Act state explicitly that an order to do something that would amount to a crime would not be lawful.368 And the u.k. Manual of Service Law specifies that, to be lawful, “the command must not be contrary to English or international law.”369 Importantly, the Manual now states explicitly that a soldier is under a legal duty to refuse to carry out an order if the order is manifestly illegal. In

362 363 364 365 366 367 368 369

it must be borne in mind that members of the armed forces are bound to obey only lawful orders.” Department of the Army, fm 27–10, The Law of Land Warfare, (Washington: gpo, 1956), para. 509 a. u.s. Manual for Courts-Martial (2012 Edition), Part iv, para. 16 c. (1) (c). u.s. Manual for Courts-Martial (2012 Edition), Part iv, para. 14 c. (2) (a) (i). Gary D. Solis, The Law of Armed Conflict, p. 359. u.s. Manual for Courts-Martial (2012 Edition), Part iv, para. 14 c. (2) (a) (ii). Manual for Courts-Martial, 1995, Part iv, para. 14c (2) (a) (iii). Gary D. Solis, The Law of Armed Conflict, p. 359, referring to a case in relation to Operation Desert Storm, i.e. u.s. v. Huet-Vaughn, 43 m.j. (1995), 105, 107. uk Armed Forces Act Explanatory notes, para. 68, p.10, available at: http://www.legislation .gov.uk/ukpga/2011/18/notes/division/1?view=plain [accessed on 25.06.2013]. Ministry of Defence, Manual of Service Law (2011), Vol. 1, Chapter 7, p. 43.

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line with this, the Manual states that in the case of a criminal offence, a superior order will not excuse the soldier if the order was manifestly unlawful, though the existence of a superior order might be a mitigating factor in the punishment.370 In the context of this study it is not possible to undertake a comprehensive comparative examination of the national military rules and regulations concerning obedience or disobedience to orders. Reference is made to the records of the work of the Society of Military Law and Law of War, which, in 1989, examined the question of “Implementation of International Humanitarian Law at the National Level, with special reference to Developments of Modern Warfare.”371 A questionnaire circulated among members for this purpose addressed the specific issue of disobedience to unlawful orders by asking the following two questions: Could a soldier be punished for disobeying orders if he is ordered to violate international humanitarian law? Is it lawful to disobey orders to commit acts contrary to international humanitarian law generally or in particular cases?372 Despite the fact that the examination dates back to the 1980s and that answers came mainly from developed Western countries,373 the national reports provide an interesting (albeit not all-encompassing) insight into how obedience/ disobedience to unlawful orders is handled at the national level. With the exception of very few countries, the national reports affirmed that disciplinary or criminal liability of soldiers for disobeying orders is excluded if following the order would entail a violation of international humanitarian law.374 In addition, a number of countries, including Germany, the u.k. and 370 Ministry of Defence, Manual of Service Law (2011), Vol. 1 Chapter 12, p. 8. 371 The records of the work, including the national responses to a questionnaire prepared by the Society on the topic, are published in the Military Law and Law of War Review No. 28, Volumes 1 and 2, 1989. 372 Questions 3.1. and 3.2. of the Questionnaire, Military Law and Law of War Review No. 28, Volumes 1 and 2, 1989, p. 59. 373 Answers to the questionnaire were received from the following nations: Argentina, Australia, Austria, Belgium, Brazil, Canada, Denmark, The Federal Republic of Germany, Finland, Indonesia, Israel, Italy, The Netherlands, Norway, Sweden, Switzerland, the United Kingdom, and the United States of America. 374 m.t. Fugard, Implementation of International Humanitarian Law at the National Level with Special Reference to Developments of Modern Warfare, General Report, Military Law and Law of War Review Vol. 28, No. 1/2, 1989, p. 43.

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the u.s.a, reported an explicit duty of soldiers to disobey orders that would constitute committing a criminal offence. Other countries did not state a positive duty to disobey, but provided that having acted under an order does not prevent criminal liability if the unlawfulness of the order was, or could reasonably be expected to be evident,375 or if the order was “manifestly illegal.”376 The brief overview shows that national military rules and regulations incorporate the principles of international humanitarian law and international criminal law into the national schemes regulating military life and defining the soldier’s duties and rights. As a result, military discipline is no longer absolute. Soldiers are asked to differentiate between lawful and patently or manifestly unlawful orders, and to object to those orders that would lead to the commission of a criminal act. As such, the respect of international humanitarian and international criminal law has been made part of soldiers’ national service duties. 3 The Paradigm of a Legitimate Desertion Under International Law (a) The Soldier’s Dilemma Reports and testimonies about military atrocities, which have surfaced in connection with almost all conflicts since World War ii, testify to the fact that, in many cases, there is a gap between the theory and practice of warfare. It is in this gap that the conflict between obligations under international law and the realities of military life manifests itself for soldiers. There are different reasons why superiors give unlawful orders, or soldiers independently choose to ignore international rules of warfare during an armed conflict. War crimes can occur because of ‘wrong’ “values and attitudes brought into the military by individuals,” or because of the “conditions affecting individuals because of their military service,” such as the conditions in the warzone, or the nature of the weapons involved.377 In the most extreme cases, war crimes, crimes against humanity and genocide might be part of a deliberate strategy and be used as tools of warfare by the respective party. This was true of 375 See, for example, Section 14 of the Australian Defence Force Discipline Act 1982; W. Rolfe, Implementation of International Humanitarian Law at the National Level with Special Reference to Developments of Modern Warfare (National Report Australia), The Military Law and Law of War Review, Vol. 28, No. 1/2, 1989, p.77. 376 Under Section  125 of the Israeli Military Justice Law, a soldier shall not bear criminal responsibility for not complying with an order given to him when the order is manifestly illegal; see: Implementation of International Humanitarian Law at the National Level with Special Reference to Developments of Modern Warfare (National Report Israel), The Military Law and Law of War Review Vol. 28, No. 1/, 1989, p.233. 377 Peter Karsten, Law, soldiers, and combat, p. 32.

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the crimes of Nazi Germany during World War ii, the aim of which was the extinction of the Jews in Europe, and of the heinous crimes against the civilian population in the former Yugoslavia, Rwanda, Sierra Leone and the Democratic Republic of Congo. In other cases, a perceived climate of impunity or the collapse of internal justice and political-control systems might result in a brutalisation of the conflict and, with it, occasional or systematic disregard of international law within the military. In addition, personal factors play a role, such as the individual ability to cope with the stress and to keep a sense of one’s values and of what is right and wrong in the exigent circumstances of war.378 For example, in one of the trials of u.s. soldiers in connection with the massacre committed by u.s. troops of the Vietnamese civilian population in the village “Son My”379 in March 1968, the defence argued before a u.s. military court that by the time the troops entered the village the soldiers had lost any sense of what was right and wrong owing to the stress and trauma experienced during the conflict in Vietnam.380 In the context of the present discussion, the most pertinent question relates therefore to the ability or inability of a soldier to reject an unlawful order in a combat situation. What does it take for soldiers to divert from the general rule of military obedience and resist orders entailing illegal acts? To what extent can the realities of warfare create a de-facto necessity to comply with superior commands, which, in the case of unlawful orders, result in a conflict with international legal obligations and the criminal responsibility of the soldier? (1)

Factual and Legal Uncertainties

One factor in the ability to oppose an unlawful military order is the practical question of whether the soldier has the necessary background and specific information to make an educated decision about the lawfulness or unlawfulness of that order.381 Modern warfare relies heavily on technology and complex intelligence that is accessible by senior commanders and decision-makers, but not necessarily by the operational soldier. In a combat situation, soldiers have to rely extensively on the orders given to them and have to trust that the military actions demanded are justified and lawful. Apart from this, armed conflicts and military engagements often give rise to debates about their legal classification (e.g. international or non-international) 378 Martha Minow, The Dilemma of the Superior Order Defence, 52 McGill L. J. 2007, p. 6. 379 Also known as “My Lai.” 380 Gerry J. Simpson, War Crimes: A Critical Introduction, p. 14–15. A similar argument can be found in Telford Taylor, Nuremberg and Vietnam – an American Tragedy, p. 159. 381 Martha Minow, The Dilemma of the Superior Orders Defence, 52 McGill L. J. 2007, p. 9.

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at the highest political and scholarly levels.382 The legal classifications of the conflict in the former Yugoslavia,383 for example, or of the so-called War on Terror,384 have not been straightforward and have resulted in uncertainties about which legal regimes are to be applied.385 While the un Security Council assumed that the conflict in the former Yugoslavia was international, the Appeals Chamber of the icty in the Dusko Tadic case386 decided that the conflict in the former Yugoslavia had both internal and international characteristics, depending on the parties involved at any given time.387 During a military engagement, commanders have to give and soldiers have to implement orders and make decisions about their lawfulness, despite such legal controversies and factual uncertainties. In cases where the order is not manifestly unlawful, but the soldier might have doubts – for example, regarding the presence of civilians at a location that he is ordered to attack – the soldier is left with a dilemma regarding his liability that will be determined ex post facto: he can obey the order and risk having to live with the guilt of having 382 See: Peter Rowe, Implementation of International Humanitarian Law at the National Level with Special Reference to Developments of Modern Warfare (National Report United Kingdom), The Military Law and the Law of War Review, Vol. 28, No. 1/2, 1989, p. 199. 383 Applicable law was a critical issue during the conflict in the former Yugoslavia, as the applicable regime of international humanitarian law depended on whether, at any given time, the conflict was internal or international. See: Chandra Lekha Sriram / Olga MartinOrtega / Johanna Herman, War, conflict and human rights: theory and practice, p. 78. 384 Following the attacks on the Twin Towers on 11.09.2001, the u.s. Administration took the controversial stand that the Geneva Conventions do not protect as prisoners of war members of the al Qaeda network, the Taliban militia, or persons in detention suspected of these memberships. See: Martha Minow, The Dilemma of the Superior Orders Defence, 52 McGill l.j. 2007, p. 7. 385 Similarly, the legality of a military engagement under the jus ad bellum is rarely undisputed, an area that displays the limits of international law and thus the influence of political agendas in international affairs. The legality and justification of the u.s./u.k.-led invasion of Iraq in 2002/2003, for example, remains controversial to this day. See the two conflicting views on the legality of the 2002/2003 invasion in Iraq presented by Professor Stein and us Associate Counsel Guy Roberts in the Military Law and the Law of War Review in 2003. Torsten Stein, The War Against Iraq and the “Ius Ad Bellum,” The Military Law and the Law of War Review, Vol. 42, No. 3/4, 2003, pp. 459–465; and Guy B. Roberts, The un Charter Paradigm On The Brink: The Legal and Policy Predicates for Use of Force Against Iraq, The Military Law and the Law of War Review, Vol. 42, No. 3/4, 2003, pp. 44–58. Nikolaus Schultz, Was the War on Iraq Illegal? – The German Federal Administrative Court’s Judgment of 21st June 2005, German Law Journal, Vol. 7, No 1, 2005, pp. 25–44. 386 Prosecutor v. Dusko Tadic ( Jurisdiction), ilr 105 (1997), 419, para 77. 387 Jessica Gavron, Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court, 51 iclq 1, 2002, p. 104.

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committed a crime and potentially being liable under international criminal law, or he can disobey and face punishment for military disobedience.388 (2)

Group Solidarity and Peer Pressure

Group solidarity within military units is considered one of the most important factors in ensuring a sustained will to fight and resist the enemy.389 A direct consequence of this is that peer pressure is a common reality of military life and “is one of the key mechanisms through which obedience to higher authority works.”390 As such, it can represent a serious challenge to the ability of the individual soldier to resist illegal acts when ordered to commit them. Resisting peer pressure is hard in any circumstance, but particularly so in the “psychological and organisational contexts in which soldiers find themselves”391 during active service, when their mental and physical well-being is dependent on their comrades’ support.392 The example of Reserve Police Battalion 101 in World War ii, which was responsible for the killing of approximately 38,000 Jews, stands as an extreme case in point: interviews conducted after the war with members of the battalion indicate that their decision to participate in the massacre was largely based on “group conformity and the desire not to be seen as cowards by others, or to be ostracised by the battalion.”393 The issue of peer pressure touches on the general question of how much courage and psychological strength can and must be expected from soldiers during a military operation. As has been outlined with regard to the defence of duress, the seriousness of the crimes prosecuted under international criminal law dictates that soldiers must be expected to withstand the “normal level” of peer pressure that is generally experienced within a military unit, and peer pressure alone cannot justify the application of the defence of duress. However, 388 Peter Rowe, Implementation of International Humanitarian Law at the National Level with Special Reference to Developments of Modern Warfare (National Report United Kingdom), The Military Law and the Law of War Review, Vol. 28, No. 1/2, 1989, p. 199. 389 Donald Peppers, War Crimes and Induction: A Case for Selective Nonconscientious Objection, Philosophy and Public Affairs, Vol. 3, No. 2, 1974, p. 155. 390 Martha Minow, The Dilemma of the Superior Orders Defence, 52 McGill l.j. 2007, p. 34. 391 Ibid, p. 5. 392 See also the discussion on three model responses to pressure in an organisation – ‘loyalty’, ‘voice’ and ‘exit’ – in: Ruth Linn, Soldiers with a Conscience Never Die – They are just ignored by their Society. Moral Disobedience in the Israel Defence Forces, Journal of Military Ethics, 2002, p. 59. 393 Martha Minow, The Dilemma of the Superior Order Defence, 52 McGill L. J. 2007, p. 34, with reference to Christopher Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland, New York, 1992.

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while not amounting to a legal defence per se, peer pressure needs to be acknowledged as a serious factor that makes resistance to unlawful orders not only harder but conceivably impossible. (3)

Feasibility

Finally, an overall brutalisation of the conflict might seriously impact the soldier’s ability to refuse a military command in order to avoid personal involvement in war crimes.394 In cases where war crimes are being used as a deliberate tactic, refusing an order on the grounds that it is illegal might be unrealistic and possibly extremely dangerous for the soldier, leading to extrajudicial punishment threatening his life.395 Strategies for Kosovo, dip Statement, 18 June 1999. Similarly, in cases where the system of military and civil control has deteriorated or become impotent, disobedience to unlawful orders might no longer be a feasible option. As a result, it can become practically impossible for the individual soldier to act in conformity with international law as long as he or she remains part of the military. The above considerations show that the more the gap between theory of international legal principles and actual practice of warfare widens on the battlefield, the harder it will become for the soldier to recognise and resist unlawful superior orders. Lack of access to information, overwhelming peer pressure, or a general brutalisation of the conflict can lead to situations in which the individual soldier’s ability to reconcile the conflict between international legal principles and unlawful orders through disobedience has realistically vanished. International criminal law acknowledges this and relieves the soldier of his criminal liability in the most extreme cases, i.e. if the soldier did not and could not have been expected to recognise the unlawfulness of the order, or if he acted under an imminent threat to his own life. However, for cases below the threshold of criminal defences, and in cases where the soldier simply aims to avoid participation in the commission of war crimes in the first place, a fundamental dilemma remains, if disobedience is not a ‘doable’ option. 394 Hans Göran Franck, Issues of Individual Responsibility in the Vietnam War, p. 28. 395 Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Paragraph 9, Margin No. 189. The testimony of Mr. Drazen Erdemovic before the icty serves as a good illustration of this, see above in this Section under 1, (c), (1). See also the reported testimony of a deserter from the Serbian army at an unhcr office, in Erika Feller’s presentation at an international conference on the conflicts in Bosnia and Kosovo: Erika Feller, Rape is a War Crime. How to Support the Survivors: Lessons from Bosnia.

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(b) Parameters for a Legitimate Desertion If disobedience is not reasonable or possible under the specific circumstances, running away might be the only option for the soldier to avoid participation in illegal acts. From a national-law perspective this would constitute desertion. From an international law perspective, however, first and foremost it presents the decision to avoid participation in war crimes and, as such, a legitimate paradigm for which the soldier must not be punished. The principle that respect for the norms of international law must not lead to punishment at the national level was expressed by the un General Assembly in its Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms of 1999. Article 10 of the Declaration states: No one shall participate, by act or by failure to act where required, in violating human rights and fundamental freedoms and no one shall be subjected to punishment or adverse action of any kind for refusing to do so.396 Consequently, the home country loses its right to punish the deserter in cases where a soldier ran away, because any further participation would have essentially forced him or her to partake in the commission of crimes under international law, as the home country cannot demand obedience and fulfillment of national duties if that would lead to a crime under international law.397 From the perspective of the military, any form of ‘legitimisation of desertion’ is likely to be seen as an attack on fundamental military principles, such as obedience, perseverance and comradeship, and, consequently, as a threat to the discipline and functioning of an army during a conflict. However, the following parameters for its application can help address these concerns: (1)

Personal Connection to the Violations Committed

Firstly, not every violation of international law, or unlawful order during an armed conflict triggers the legitimisation of desertions. Rather, it is reserved 396 Article 10 of General Assembly Resolution 53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, un Doc. A /Res/53/144 of 8 March 1999. 397 Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Paragraph 9, Margin No. 190.

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for those cases in which a soldier claims that continuing to serve would have led to his or her participation in the most serious crimes under international law and which would result in his or her individual criminal liability. Consequently, soldiers who desert because they assert that their home country’s military engagement violates international law, be it the jus ad bel­ lum or jus in bello, but cannot assert that they personally would have become liable for these violations, cannot claim this exception. Given this requirement of a personal connection to the violations committed during an armed conflict, deserters during the Vietnam War who claimed that their desertion was an expression of protest against the u.s. engagement in Vietnam would not have been automatically covered. Nor would those American and British servicemen and women who deserted during the u.s./u.k-led war against Iraq in 2002/2003, claiming that they could not serve in Iraq because of their (internationally shared) concerns that the war itself was illegal. Rather, an individual assessment would have to be carried out of the actual risk that the individual soldiers faced, based on their position and concrete assignments during the armed conflict, of being de facto forced to participate in the commission of crimes under international law, incriminating them personally. (2)

Corresponding Motives

(3)

Evidentiary Standards

Secondly, the legitimisation exception can only apply to soldiers who desert in order to avoid criminal liability, i.e. whose motives are linked to the conflict between the postulates of international law and the realities of military life during a military engagement. Consequently, soldiers who desert for reasons unrelated to the postulates of international law (e.g. because of homesickness, or economic pressures at home), or who are unaware of any violations of international law, cannot claim in retrospect that their desertion was legitimate. It is obvious that the implementation of this legitimisation exception for desertion will pose evidentiary challenges with regard to the deserter’s assertion that running away was the only option to respect the postulates of international law in the circumstances at the time. In most cases, the deserter will not be able to present conclusive evidence, witnesses might be unavailable or unwilling to testify on his behalf for fear of implicating or testifying against themselves, and the reconstruction of events in a post-facto examination will be extremely difficult. In order to ensure that legitimisation exception does not become an empty action in practice, the evidentiary standard must take these difficulties into account. The soldier who does not desert and commits a crime will

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be sentenced according to whether he or she “reasonably could have known” that the order leading to the crime was illegal. It is suggested here that, in view of this standard, it should be asked whether the soldier could “reasonably assume” that continuing to serve would have forced him or her to participate in the commission of crimes. A number of external criteria can help substantiate the reasonableness of the deserter’s assumption, such as: – – –

(4)

The general prevalence of illegal conduct during the armed conflict and the number of atrocities committed; The willingness and ability of the home country to supervise and control the conduct of its armed forces; The willingness and ability of the home country to ensure that inter­ national humanitarian law is respected, in particular whether those responsible for past abuses (commanders and soldiers alike) were brought to justice.398 Forfeiture of the Right to Punish

A complete forfeiture of the right to punish deserters, and with it an application of the legitimisation exception to all cases of desertion, irrespectivie of the underlying facts of each individual case, should only be considered in the most extreme cases of proclaimed, or de-facto lawlessness and blatant disregard of international legal principles, as, in these cases, the home country’s interest in preserving its military striking power is no longer worth protecting. In these extreme cases, the motives behind desertion should be considered secondary, and any soldier who lays down his or her arms should be protected under international law from punishment by his home country. 4 Summary The developments in international criminal law since World War ii have changed understanding of the military and lent weight to the concept of a soldier as a responsible individual capable of independent thought. With the affirmation of the principle of individual responsibility in modern international criminal law, each soldier has been personally tasked to ensure respect for the rules of international humanitarian law. As has been shown, this duty under international law is reflected at the national level through corresponding provisions and duties in national military laws. 398 Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight?, 31 Va. J. Int’l L. 1990–1991, pp. 464–467.

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Nevertheless, as reports about human rights violations and atrocities committed during armed conflicts show, violations of international humanitarian law are a fact of every armed conflict and range from isolated incidents to widespread and sometimes systematic abuses that serve a country’s perverted strategic military objectives. These reports demonstrate that there is a gap between the theory of national and international laws regulating warfare and its reality. It is this gap that creates a conflict for the soldier between the postulates of international law and the orders given to him on the battlefield. When this gap has widened to an extent that the soldier can escape criminal liability only by ceasing to fight, then his desertion is legitimate and the home country loses its right to punish him for a military offence. Mindful of the challenges that the concept of a legitimate desertion creates for the military, this section has attempted to identify parameters for the application of the legitimisation exception, namely the existence of a credible assertion that the soldier faced a concrete and personal risk of criminal liability and that his or her motivation was based on the wish to respect the postulates of international law and avoid criminal liability. iv Conclusion The examination in this Section has shown that the new standards of international law impact the home country’s right to punish deserters in a number of ways. Judicial guarantees for criminal standards have evolved as important human rights standards, with the right to a fair trial being a core aspect. While this is not listed as one of the non-derogable rights in international and regional human rights treaties, core aspects of the right to a fair trial under international human rights law are increasingly recognised as being non-derogable, making it impossible for states to divert from in times of armed conflict when punishing their own nationals. If fully respected, these guarantees would prevent the cruel and extra-legal treatment that deserters have faced in past conflicts and guarantee that deserters are tried and sentenced by a competent, impartial and independent court of law that respects fundamental principles of criminal law, particularly the presumption of innocence, and which respects the deserter’s right to defence counsel throughout the proceedings. Despite certain overlaps between desertion and conscientious objection, with both concepts representing conscious decisions of a person not to or no longer to participate in military activities of his or her home country, the emergent recognition of a right to conscientious objection under international human rights law has only little impact on the right to punish deserters: as

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selective conscientious objection is not recognised as an expression of conscience at all, a deserter’s decision to stop fighting because of a strong disagreement with his home country’s decision to use force, or with the choice of means and methods of warfare in a particular situation or conflict is not protected under the emergent right to conscientious objection as part of the right to freedom of thought, conscience and religion.399 In contrast to this, however, there is a slight impact with regard to absolute conscientious objectors. Continuing advocacy by un and regional human rights treaty bodies for the recognition of a right to absolute conscientious objection under the right to freedom of thought, conscience and religion has led to a slowly growing trend to recognise that such a right exists at least in cases of compulsory military service. Based on this trend, it is argued here that a person who was drafted against their will into the military service of their country with no possibility whatsoever of objecting to this service on the basis of religious or other beliefs, and who deserts from that military service, can claim that their desertion was a legitimate expression of their protected right to absolute conscientious objection. As a result, the punishment of the absolute conscientious objector for the military offence of desertion would violate the person’s right under Article 18 ccpr and corresponding regional provisions applicable in the particular case. Developments in international criminal law and the individual responsibility consequently placed on soldiers for their actions on the battlefield have had a bigger impact on the right to punish deserters. Based on the principle that the individual must not be punished for respecting the postulates of international law, desertion must be regarded as a legitimate paradigm in cases where the soldier is forced to make a choice between the demands of international criminal law and the national orders given to him, and where the realities on the battlefield leave him no reasonable or realistic way to reconcile these two.

399 See Article 18 ccpr, Article 9 echr, Article 12 achr, and Article 8 of the African Charter on Human and Peoples’ Rights.

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The Deserter and the Enemy Party There are many circumstances under which deserters could find themselves in the power of the enemy during an international armed conflict. They might be captured by enemy troops while abandoning their own military unit, or get caught while in hiding days, weeks or even months after the desertion. In other cases, deserters might place themselves voluntarily into the hands of an adverse party, either because they hope for better conditions on the enemy side and safety from punishment by their home country, or because they wish to defect, i.e. join the enemy in fighting against their own state. Whether deserters will actively try to reach the enemy will largely depend on the treatment that they can expect in a given conflict, both from their home country and from the other belligerent. Would they face the death penalty at home? Would they be enslaved, or treated humanely in captivity by the enemy? Would they be accepted into the army of the enemy, or would they risk being handed over for ransom?1 The answers to these questions depend on the political and legal regimes in the respective belligerent countries and the extent to which these countries respect the rule of law during the conduct of hostilities. But they also depend on the nature of the armed conflict itself, i.e. whether the lines of battle are mostly drawn along the lines of ethnicity, geo-political interests, or fundamental ideological beliefs.

Desertions Welcome, but not Deserters

Belligerents have long recognised the tactical and psychological benefits that individual and mass desertion from the enemy forces can bring to their own war effort.2 As such, propaganda appealing to the ideological convictions of the soldiers, or promising good treatment or rewards in order to encourage 1 See also Afflerbach and Strachan, who point out the the overlap between the question of surrender to the enemy and the treatment of prisoners of war, in: Holger Afflerbach and Hew Strachan, A ‘True Chameleon’, Some Concluding Remarks on the History of Surrender, p. 437. 2 James D. Clause, The Status of Deserters Under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 15; L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 315. For examples of calls to desert during World War ii, see Chapter 2 in: Franz Seidler, Fahnenflucht, p. 61 ff.

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desertions have been commonly used by belligerents as part of psychological warfare.3 Generally speaking, good treatment of enemy deserters is in the interest of a belligerent party, in as much as it might encourage further desertions,4 just as the fear of being mistreated by the enemy might prevent soldiers from deserting or surrendering voluntarily, even if they have lost their will to fight.5 In the Peninsular War of 1807–1814, the British promised safety and financial reward to every soldier who deserted from Napoleon’s army and defected to the British forces.6 During the course of World War ii, the Headquarters of the Commander of Allied Forces in north-west Europe included a division on psychological warfare, which actively sought to undermine German morale and to encourage desertion by German troops by dropping leaflets behind German lines promising safe conduct and good treatment to potential German deserters.7 Similarly, during the battle of Stalingrad in World War ii, Soviet aircraft encouraged soldiers fighting on the German side to desert by dropping leaflets written in Hungarian, Italian and Romanian, which urged soldiers not to die needlessly for the Germans.8 Inciting enemy combatants to desert is considered to be a lawful tool of psychological warfare, and belligerents are free to distribute defeatist propaganda in order generally to disparage the war efforts of the enemy combatants’ home country, or openly to induce them to revolt or desert.9 For aerial warfare this right has been explicitly mentioned in the 1923 Hague Rules of Air Warfare, 3 Stefan Oeter, ‘Methods and Means of Combat’, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 231. 4 James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, pp. 15 and 38; L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 315. 5 Beevor quotes from an interview of a Ruthenian deserter questioned by the Russian side, who reported that soldiers were afraid to desert because they believed the stories that the Russians would torture and shoot them, in: Antony Beevor, Stalingrad, p. 182. 6 “Ne craigniez pas la vengeance du Tyran, elle ne scaurait vous atteindre. Les enfants toujours victorieux de la glorieuse Albion vous protégeront…” – a leaflet by the British addressing the Napoleonic troops in 1810 as quoted by L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 316. 7 Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 98. 8 Antony Beevor, Stalingrad, p. 181. 9 See: Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, p. 240; L.B. Schapiro, Repatriation of Deserters, p. 323; K.J. Madders, War, Use of Propaganda in, 4 epil p. 1394; Stefan Oeter, ‘Methods and Means of Combat’, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 231. See also: Jean-Marie Henckaerts/Louise

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which state that the “use of aircraft for the purpose of disseminating propaganda shall not be treated as an illegitimate means of warfare.”10 Defeatist or other propaganda continues to be used in contemporary conflicts. During the Iraqi invasion of Kuwait in 1990/1991, U.S-led forces dropped leaflets and broadcasted radio programmes into occupied Kuwait, urging Iraqi soldiers to desert and even giving instructions on how to signal their wish to defect to the coalition forces. It was reported that Saudi forces held close to 1000 Iraqis who had deserted their posts in Kuwait.11 Another example is the Kosovo war in 1998/1999, during which nato airplanes distributed leaflets, which urged soldiers of the Yugoslavian Army to abandon the war.12 While desertions from the ranks of the enemy are encouraged, enemy deserters in search of protection are not necessarily welcomed. It seems that the general disdain for the crime when committed in their own ranks influences the attitude towards those who commit it on the enemy side, and deserters have faced the same dangers and uncertainties that are generally experienced on falling into the hands of an enemy party during an armed conflict. This Chapter examines the rules of contemporary international humanitarian law13 with regard to the treatment of enemy deserters who are in the power of a belligerent party – following either voluntary surrender or involuntary capture. The examination of contemporary international humanitarian law is preceded by an overview of the legal rules and of the treatment that deserters received from belligerent parties prior to the adoption of the 1949 Geneva Doswald-Beck, Customary International Humanitarian Law, Vol. 1, Rules, pp. 203/204, where the sending of “bogus messages or bogus newspapers with a view to their being intercepted by the enemy” is listed as a permissible ruse under customary international humanitarian law (Rule 57). 10 Article 21 of the The Hague Rules of Air Warfare, see: Parliamentary Papers, Cmd. 2201, Miscellaneaous No. 14 (1924). 11 Caryle Murphy, Saudis Trying to Lure Iraqi Defectors, Vow to treat them as ‘Arab Brothers’, The Washington Post, 20 January 1991. 12 Katarina Schnöring, Deserter in the Federal Republic of Yugoslavia, International Journal of Refugee Law, Vol. 13, Nos. 1/2, p. 153. 13 ‘International humanitarian law’ is the term used to describe the contemporary rules of the jus in bello, i.e. the body of international law that has evolved out of the so-called Hague Law and Geneva Law. See for example: Advisory Option on the Legality of the Threat or Use of Nuclear Weapons, [1996] icj Rep. 226, 256, where the International Court of Justice expressed the view that a distinction between the Hague Law and the Geneva Law was no longer justifiable. Other authors prefer the term ‘law of international armed conflict’ to avoid confusion with international human rights law and to avoid the false impression that all the rules governing hostilities are of a humanitarian nature, Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, p. 19.

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Conventions and the 1977 Additional Protocols. While this overview does not give a complete account of state practice regarding enemy deserters in past conflicts, it highlights the particular issues connected to deserters in enemy hands, which distinguish the situation of deserters from that of other military or civilian captives in the power of the enemy. A

Treatment in Past Conflicts – Contempt, Strategic Use and Cautious Solidarity

From the second half of the 19th century onwards, the jus in bello, including rules stipulating the rights and duties of belligerents towards nationals of an adverse party who fall into their power, were progressively codified. One of the first attempts at codifying the traditional rules and customs of war was the Lieber Code of 186314 issued by the u.s. War Department to regulate the behaviour of the Northern Forces during the American Civil War.15 The Lieber Code is noteworthy in the current context in so far as it contained a specific regulation on desertion, asserting the United States’ right to punish defectors from its own ranks by death and confirming the right of enemy belligerents to punish deserters who had joined American forces as deemed fit.16 While the Lieber Code influenced European policy and practice17 and provided a format for the multilateral treaties that followed,18 later codifications no longer directly addressed any aspect of the treatment of deserters. The conventions adopted at the two International Peace Conferences in The Hague in 1899 and 1907 laid out rules for prisoners of war and occupation, but they did not codify any rules and customs regarding the rights and duties of belligerents towards deserters.19 Equally, the parallel codifications of rules for the protection of victims of armed conflict, the so-called Geneva Law, contained no provisions 14 15 16 17 18 19

The Lieber Code was issued as u.s. Army General Order No. 100, reprinted in: D. Schindler and J. Toman (eds.), The Laws of Armed Conflict, pp. 3–23. D. Schindler and J. Toman (eds.), The Laws of Armed Conflict, Introduction, p. 3. See also below in Section i on question of prisoner of war status for deserters. Horst Fischer, Protection of Prisoners of War, in: Fleck (ed.) The Handbook of International Humanitarian Law, p. 368. Elizabeth Chadwick, The Second Death of Ilya Pavlovitch Bjuscheff: The Legal Position of Prisoners, Spies and Deserters During World War i, 13 Nottingham L.J. 1, 2004, p. 4. D. Schindler and J. Toman, The Laws of Armed Conflicts, p. 49 and p. 53. The most significant of these treaties was Hague Convention (iv) Respecting the Laws and Customs of War on Land, of 18 October 1907 and its Annex containing the “Hague Regulations,” D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp. 69–93.

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that specifically regulated the legal status of deserters, or the manner in which they were to be treated by an enemy party to a conflict. Indeed, the word “deserter” does not appear in any of the Geneva Conventions.20 Likewise, customary international law contained no rules establishing specific duties of the belligerents towards enemy deserters who fall into their hands. How enemy deserters were received and treated by a belligerent thus varied greatly from one conflict to another, with no discernible uniform practice among belligerents. Despite the tactical advantage gained from desertion in the ranks of the enemy, deserters were often met with suspicion and contempt. Lacking a general and binding regulation, the treatment of enemy deserters largely depended on political and military strategic considerations of belligerents and was left to the mercy of the belligerent party. i Prisoner of War Status 1 Deserters Who Crossed over to, or were Captured by the Enemy With specific rules lacking, the decision to grant enemy deserters the status of prisoner of war and the special treatment associated therewith was left to the discretion of the belligerent party.21 The British Military Manual published by J.E. Edmonds and L. Oppenheim in 1912 is an example of the discretionary approach taken by countries. The Manual provided that “deserters from the enemy should be treated as prisoners of war unless special circumstances rendered it desirable to liberate them.”22 The Manual also explicitly stated that deserters had “no right to claim the treatment as prisoners of war, or the benefits of the laws of war.” As “traitors to their own country” they “cannot be regarded as enemies in the military sense of the term” and could not benefit from “the privileges of the members of the armed forces of the enemy.”23 20

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The first Geneva Convention adopted was the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, of 1864. This convention was revised in 1906 and again in 1929, when a Convention relative to the Treatment of Prisoners of War was added. See Geneva Convention Relative to the Treatment of Prisoners of War, 27 July 1929, D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp. 341–364. Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, International Institute of Humanitarian Law, Yearbook 1985, p. 20; James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 22; Manuel R. Garcia-Mora, International Law and Asylum as a Human Right, p. 106; Alan Rosas, The Legal Status of Prisoners of War, p. 389. J.E. Edmonds and L. Oppenheim, Land Warfare: An Exposition of the Laws and Usages of War on Land for the Guidance of Officers of His Majesty’s Army, para. 64. Ibid. paras. 36 and 38.

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The decision whether or not to grant prisoner of war status could be a matter of life and death, given that other protection schemes were lacking before 1949.24 Denying them prisoner of war status left deserters practically outlawed and unprotected from abuse by the enemy military and from lynching by angry civilians.25 The detailed account by Alexander Gillespie of the treatment of soldiers in enemy hands during World War ii illustrates how crucial respect for the laws of war on prisoners was for the survival of soldiers in enemy hands.26 The disregard for even the most basic standards regarding prisoners of war under the 1907 Hague Convention led directly to the execution of hundreds of thousands of soldiers in enemy hands27 and the death of millions more due to physical abuse and starvation in captivity. From a purely legal point of view, the decision to grant deserters prisoner of war status bore only limited legal consequences for belligerents under the pre1949 law, as it was generally possible for prisoners of war to renounce their status while in captivity.28 This also meant that, whenever convenient, a belligerent could claim that violations of the law on prisoners of war, or a change in the prisoners’ status altogether had happened with the prisoners’ consent.29 2 Defectors Who were Re-captured by their Home Country The status and treatment of deserters who crossed over to or were captured by the enemy described above need to be distinguished from the status and treatment of defectors who, after having joined enemy forces, were re-captured by their home country in the course of a military conflict. As mentioned above, the Lieber Code of 1863 had addressed this particular issue. Article 48 of the Lieber Code provided as follows: 24

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26 27

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With the exception of the special protection for those wounded in armies in the field, according to the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Gillespie reports on the German practice of not protecting Allied airmen who parachuted out over German-held territory and who were lynched by angry civilians; Alexander Gillespie, A History of the Laws of War: Volume i, p. 187. Ibid. pp. 185–212. According to the Prosecution at the Tokyo War Crimes Trials, as many as one million Chinese prisoners were executed by the Japanese. Other estimates put this figure at about 400,000. See: Alexander Gillespie, A History of the Laws of War: Volume i, p. 186. A possibility that no longer exists under Article 7 gc iii, which prescribes that prisoners of war may in no circumstances renounce in part or in full the rights secured for them by the Convention. Horst Fischer, Protection of Prisoners of War, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 380.

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Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American Army; and if a deserter from the enemy, having taken service in the Army of the United States, is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation.30 The regulation clearly determined that according to the laws and customs of war at the time, the right of states to punish their own nationals for the violation of national laws trumped duties towards captured military personnel under international law. As a result, those who signed up to fight with enemy forces were without any protection and took a great risk. This general rule further explains the pressure felt by large numbers of Czechs and Slovaks and other ethnic groups fighting in Russian uniform during World War i, following their desertion from the Austrian-Hungarian or German armies, or capture by Russia. These men would have met certain death as traitors and deserters if re-captured by the advancing German Army, or if apprehended while trying to return home after Russia had officially ended its participation in March 1918.31 The merciless treatment of defectors during World War ii, particularly that of defectors from units of the Deutsche Volksliste by Germany and of Cossack units and the Vlasov Army by the Soviet Union, shows that those who were captured by their home country were, if not shot immediately, harshly punished for desertion as well as for the aggravated crime of treason.32 ii Use of Enemy Deserters in the Military Forces Before and right through World War ii, it was generally accepted that belligerents were allowed to recruit enemy deserters into their own forces.33 30 Article 48 of the Lieber Code. Desertion is mentioned a second time in Article 127 of the Lieber Code, which stipulates that persons who give parole without a proper commission will be punished by death as deserters. 31 See also information on the Czechoslovak Legion in Chapter 2, A ii 1 (a) (1). 32 See Chapter 2, A i above and below in this Chapter 3, A iii. 33 “We receive deserters by the law of war; that is, it is not contrary to the law of war to receive him who abandons the side of the enemy and chooses our own.” Grotius, De Jure Belli ac Pacis Libri Tres, bk. 3, Ch. 1, § 22 (Translation Kelsey, 1925); also: Du Payrat, Le Prisonnier De Guerre Dans La Guerre Continentale, p. 151; James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 18;

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For example, Schapiro reports that during the Peninsular War, the British government had doubts regarding the reliability of deserters from Napoleonic units and hence questioned the overall usefulness of integrating them into the British forces. Those were pragmatic rather than legal concerns, however, and no legal argument was raised against the lawfulness of using enemy deserters.34 Integrating enemy deserters into military forces can not only have a demoralising effect on the enemy’s troops but also confer a tactical advantage, as they might bring with them important military information about the other side.35 The permissibility of accepting enemy deserters into the military forces was independent of the question of whether the belligerent had initially treated them as prisoners of war. As it was generally possible before the 1949 Convention for prisoners of war to renounce their status, deserters, just as any other prisoner of war, could forsake their prisoner of war status in order to join the enemy forces. One restriction existed, however, under the traditional laws of war: the recruitment of an enemy citizen – be it a prisoner of war, a deserter or a civilian – was only permissible if the person signed up voluntarily. According to Article 23 ii of the Hague Regulations it was forbidden “to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war.” This prohibition on compelling also protected enemy deserters from being drafted to fight against their home country against their will. It did not, however, prohibit accepting defectors who offered to join the military forces voluntarily. World War ii witnessed an unprecedented number of defections in the European war theatre and resulted in entire battalions changing sides. The reasons for this were, on the one hand, changing allies on the side of the Axis powers and, on the other hand, growing opposition to Stalinist politics in the Soviet Union. The highest number of desertions was by defectors from the Soviet Army, who, motivated by hatred of the tyranny established by Stalin, joined Nazi Germany in order actively to fight for liberation from Stalinist rule.36 The most prominent Soviet defector is the Russian General Andrei

34 35 36

Ebrahim Afsah, Deserters, in R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Vol. iii, p. 51. L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L., 1952, p. 317. James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 18. Mark Elliot, Andrei Vlasov: Red Army General in Hitler’s Service, Military Affairs, Vol. 46, No. 2, 1982, p. 84.

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Vlasov, who, after falling into Nazi hands in July 1942, lent his name to Germansponsored units of Soviet collaborators and became the figurehead of the Russian Liberation Army.37 While in the aftermath of World War ii, the International Military Tribunal at Nuremberg confirmed the right of belligerents to accept voluntary service by prisoners of war,38 experiences have shown that ‘voluntariness’ is a problematic concept in times of armed conflict and that the requirement of voluntariness has been insufficient to protect from abuse. Soviet prisoners of war of Nazi Germany are a case in point. As both parties violated even the most fundamental guarantees for the treatment of prisoners of war under the 1907 Hague Conventions and the rules of customary law,39 many Soviet soldiers in German prison camps were left starving, dying of disease or of untreated war wounds, or were worked to death as slave labourers.40 Given that out of the 5.7 million Soviet prisoners of war in German custody throughout World War ii an estimated 3.3 million died, it is apparent that the applicable legal regime for the protection of prisoners of war had very little, or no impact.41 To make things worse, once captured by the enemy these men were largely abandoned by the Soviet Union. Surrender and even being captured alive by the enemy 37 38

Ibid. p. 84. “Ordinarily a national of a country, whether or not he is in military service, who gives aid or comfort to the enemy, is a traitor to his country. But we have never before heard it suggested that the enemy who takes advantage of his treason is guilty of a breach of international law. We hold that the cited prohibitions of the Hague Convention prohibit the use of prisoners of war in connection with war operations, and apply only when such use is brought about by force, threats, or duress, and not when the person renders the services voluntarily.” us v. von Weizsäcker [The Ministries Case] 667, available at: http://www .worldcourts.com/ildc/eng/decisions/1949.04.13_United_States_v_Weizsaecker.pdf. 39 The ussr had not signed the 1929 Geneva Convention relative to the treatment of prisoners of war, so this Convention was not binding between Germany and Russia. 40 See Horst Fischer, Protection of Prisoners of War, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, pp. 369/370. For a detailed account of the mistreatment of Russian prisoners by Germany, see: Alexander Gillespie, A History of the Laws of War: Volume i, pp. 196/197. 41 See Horst Fischer, Protection of Prisoners of War, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 370. On the German side, at least one million of the 3.3 million German prisoners captured by the Soviet Army were dead when the war ended; and approx. 68,000 of the 600,000 Japanese soldiers who were captured by the Soviets towards the end of the war died of starvation. Alexander Gillespie, A History of the Laws of War: Volume i, p. 197. Regarding the question of repatriation of the surviving prisoners of war after World War ii, see below in this Chapter under A iii.

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was considered tantamount to treason, according to the Red Army field manual and Stalin’s Decree Number 270 of 1942,42 and, in the case of officers, could even result in the arrest of the officer’s family.43 For many captured Soviet soldiers, ‘voluntarily’ signing up for service in the German army thus simply represented the best among the options before them and a slim chance of survival. As such, while initially not intending to abandon their home country and despite the enormous risk entailed in being recaptured, desperation rather than a political or ideological conviction might have turned many of these soldiers into defectors who ‘voluntarily’ signed up to serve in German units. iii Repatriation of Deserters Repatriation of prisoners of war at the end of hostilities has always been a central and controversial question in the evolution of legal standards for the treatment of prisoners of war.44 Repatriation became common practice towards the end of the 19th century, as a rapid release and return was increasingly recognised to be required in the interest of humanity. The first Peace Conference in The Hague in 1899 had already given attention to this issue and included a provision in Convention (ii) Respecting the Laws and Customs of War on Land that specified: After the conclusion of peace, the repatriation of prisoners of war shall take place as speedily as possible.45 A similar provision was contained in the 1929 Convention relative to the Treatment of Prisoners of War, which, in Article 75, additionally encouraged belligerents to include provisions concerning repatriation in armistice agreements. While provisions regarding the repatriation of prisoners of war were indeed provided for in many bilateral and multilateral peace treaties and ceasefire 42 43 44 45

Elliot, Mark, The United States and Forced Repatriation of Soviet Citizens, 1944–47, Political Science Quarterly, Vol. 88, No. 2, 1973, p. 259. Alexander Gillespie, A History of the Laws of War: Volume i, p. 198. Jeffrey E. Rockwell, The Right of Nonrepartriation of Prioners of War Captured by the United States, The Yale Law Journal, Vol. 83, No. 2, 1973, p. 358. Article 20 of the Regulations concerning the Laws and Customs of War on Land annexed to the Convention (iv) respecting the Laws and Customs of War on Land of 18 October, D. Schindler and J. Toman, The Laws of Armed Conflicts, pp. 69–93.

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agreements, deserters were usually not specifically mentioned and these documents give no indication that deserters were either included or excluded.46 By abandoning their troops, deserters and defectors had committed a crime and made themselves liable to severe punishment by their home country, but they had also rendered a service to the enemy by weakening the military force of the opponent. State practice shows that countries were concerned about the fate that awaited deserters in their home country:47 One the one hand, such concern for the deserters’ fate manifested itself in the form of amnesty clauses included in peace agreements and peace treaties, from which deserters benefited if they were to be returned to their home country as, or together with, prisoners of war.48 On the other hand, it was also evidenced by the fact that belligerents generally recognised the possibility of not repatriating deserters at all.49 This was likely to be the case where deserters had served in the enemy’s forces, where they had been given special security guarantees, or where, as in the case of an ideological conflict, they could be expected to suffer particularly severe punishment if repatriated. 1 Repatriation after World War i Many of the peace treaties concluded at the end of World War i included the possibility not to repatriate those who did not want to be returned. While not aimed exclusively at those who had deserted or defected during the war, deserters and defectors who feared punishment from their home country could benefit from these provisions and elect not to be repatriated, or to be sent to a neutral country. The peace treaty between Germany and Finland concluded on 7 March 1918, for example, while generally providing for a prompt repatriation of prisoners of war of the respective parties, also entailed a provision that allowed prisoners of war to elect to stay in the other country: 46

One rare exception mentioned by Schapiro was the Oran peace treaty of 26 February 1834 between France and Abd-el-Kadar, which stated explicitly that deserters were to be repatriated, see: L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 312. 47 L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, pp. 310/211. 48 See Chapter 2, A ii 1 (a). 49 Melysa H. Sperber, John Walker Lindh and Yaser Esam Hamdi: Closing the Loophole in International Humanitarian Law for American Nationals Captured Abroad While Fighting with Enemy Forces, 40 Am. Crim. L. Rev. 2003, p. 198; L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 318/319; James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 20.

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German prisoners of war in Finland and Finnish prisoners of war in Germany shall be exchanged as soon as possible, within definite periods of time agreed upon by the Finnish-German commission and including reimbursement for expenses used on them unless they, with the consent of the capturing state, desire to remain within the latter’s territory or betake themselves into another country.50 The peace treaties signed at Brest-Litovsk, which ended World War i at the Eastern Front, equally contained provisions that allowed exceptions: the peace treaty that Germany, Austria-Hungary, Turkey and Bulgaria signed with Russia generally provided that prisoners of war would be allowed to return home.51 The German-Russian supplementary agreement then specified the prisoner of war exchange further in Article 17: The prisoners of war of both parties shall be set at liberty to return home, in so far as they do not desire, with the consent of the state which took them prisoners, to remain within its boundaries, or leave for another country.52 The peace treaty that the Central Powers had signed in Brest-Litovsk with Ukraine one month before had taken the same approach and, in principle, allowed prisoners of war the choice to remain within the boundaries of the country holding them captive.53 In contrast, the peace treaties that followed the defeat of Germany and its allies included a unilateral possibility for the Allied and Associated Powers only to exclude individuals from repatriation. With regard to German prisoners of war in their captivity, the Treaty of Versailles of 28 June 1919 provided that:

50 51

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Article 18 of the Treaty of Peace between Finland and Germany, signed in Berlin on 7 March 1918. Finnish Collection of Decrees No. 153/1918; 85 RgBl. 1918, pp. 701–711. See Article 8 of the Friedensvertrag zwischen Deutschland, Österreich-Ungarn, Bulgarien und der Türkei einerseits und Russland andererseits, signed at Brest-Litovsk on 3 March 1918, 77 RGBl. 1918, pp. 480–621. See Article 17 of the Deutsch-Russischer Zusatzvertrag zu dem Friedenvertrage zwischen Deutschland, Österreich-Ungarn, Bulgarien und der Türkei einerseits und Russland andererseits, 77 RGBl. 1916, pp. 622–654. See Article 6 of the Friedensvertrag zwischen Deutschland, Österreich-Ungarn, Bulgarien und der Türkei einerseits und der Ukrainischen Volksrepublik andererseits, signed at BrestLitovsk on 9 February 1918, 107 RGBl. 1918, pp. 1009–1056.

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Prisoners of war or other German nationals who do not desire to be repatriated may be excluded from repatriation; but the Allied and Associated Governments reserve to themselves the right either to repatriate them or to take them to a neutral country or to allow them to reside in their own territories.54 Equally, the Peace Treaty of Saint-Germain-en-Laye concluded between the Allied and Associated Powers and Austria on 10 September 1918 provided that: Prisoners of war or Austrian nationals who do not desire to be repatriated may be excluded from repatriation; but the Allied and Associated Governments reserve to themselves the right either to repatriate them or to take them to a neutral country or to allow them to reside in their own territories.55 By including a unilateral amnesty clause for nationals of the defeated powers56 and by reserving a right not to repatriate only for the Allied and Associated Powers with regard to certain German or Austrian nationals, the Allied Powers also protected deserters and defectors from the German or Austro-Hungarian forces from being punished by their home countries, but otherwise ensured the prompt and unconditional repatriation of their own nationals who were held captive by Germany and its allies. 2 Repatriation of Allied and Russian Prisoners of War after World War ii In the aftermath of World War ii, the repatriation of prisoners of war posed a major challenge to the former war parties who were already burdened with massive civilian population shifts caused by the war and the demobilisation and return of their own troops from the theatre of war. The displacement of Soviet citizens had been particularly large. In addition to soldiers from the Soviet Army who were in German captivity, the displaced included the Ostarbeiter who had been relocated as forced labour in the German economy, or recruited to serve in German units during Germany’s invasion of the Soviet Union. As a result, well over five million 54 55 56

See Article 220 (2) and (3) of the peace treaty between Germany and the Allied and Associated Powers, signed on 28 June 1919, 140 RGBl. 1919 ii, p. 975. Article 166 (2) of the peace treaty between Austria and Allied and Associated Powers signed on 10 September 1919, [1919] ukts 11 (Cmd. 499); [1920] ats 3. See discussion in Chapter 2, A ii 1 (a) above.

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Soviet citizens found themselves in the areas held by the Western Allies at the end of the war.57 During the political negotiations about prisoner exchanges between Western Allied Forces and the Soviet Union, the latter insisted on the repatriation of not only prisoners of war but all Soviet citizens who had been liberated by Western Allied Forces.58 While negotiations about prisoner exchanges had been held at the military level as early as the summer of 1944 without an agreement being reached,59 the heads of government of the United States, the United Kingdom and the Soviet Union eventually agreed at the Yalta Conference in February 1945 that all Soviet citizens who found themselves in the zones of the Western Allies would be handed over to the Soviet Union.60 In exchange for the repatriation of all Soviets, the Soviet Union committed to repatriate more than 100,000 Western Allied prisoners of war whom the Soviet Army had liberated from German prisoner of war camps.61 Aware of Stalin’s merciless approach towards not only deserters and defectors but even soldiers who had surrendered, many prisoners of war feared that repatriation would mean death or a lengthy term of imprisonment. In particular, those Soviet prisoners of war who had defected and fought alongside Nazi Germany during the war62 desperately tried to avoid being repatriated. It is reported that 154 Soviet citizens who had been captured in German uniforms and who had been interned by u.s. forces in Fort Dix, New Jersey, attempted mass suicide when faced with being repatriated to the Soviet Union. The American military police intervened and prevented all but three suicides and, in the interests of reciprocity and of bringing its servicemen home as quickly as possible, the u.s. repatriated the rest of the prisoners despite the fate that awaited them in their home country.63 57 58 59 60 61 62

63

Alexander Dallin, Book Review: Pawns of Yalta: Soviet Refugees and America’s Role in Their Repatriation by Mark Elliot, Political Science Quarterly, Vol. 98, No. 1, 1983, p. 138. Mark Elliot, The United States and Forced Repatriation of Soviet Citizens, 1944–47, Political Science Quarterly, Vol. 88, No. 2, 1973, p. 260. Timothy K. Nenninger, United States Prisoners of War and the Red Army, 1944–45: Myths and Realities, The Journal of Military History, Vol. 66, 2002, p. 762. u.s. Department of State, Foreign Relations and the United States, Conferences at Malta and Yalta, 1945, u.s. Government Printing Office, pp. 985–987. Alexander Gillespie, A History of the Laws of War: Volume i, p. 199. Elliot reports that four months after the invasion of France, the Western Allied Forces already held 28,000 Soviet nationals captured in German uniforms. Mark Elliot, The United States and Forced Repatriation of Soviet Citizens, 1944–47, Political Science Quarterly, 1973, Vol. 88, No. 2, p. 258. Ibid. p. 253.

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The British forces faced an even bigger crisis when it began to repatriate members of the Cossack units. The Cossack units had defected from the Soviet Army to fight alongside Germany and sought refuge with the British forces upon Germany’s capitulation. They were subsequently held in a British prisoner of war camp in Lienz, Austria. When, despite initial promises of safety, the British eventually forcefully transported them to a prison where the Soviets assumed custody, hundreds of Cossacks committed suicide in the city of Lienz in order to avoid being handed over.64 The former Soviet Army general and eventual leader of the Russian Liberation Army, Andrei Vlasov, met a similar fate. Having retreated with his units to Prague during the last weeks of the war, Vlasov and his army fled west from the approaching Soviet Army and surrendered to Western Allied Forces. Vlasov was taken into u.s. captivity in Austria and forcibly repatriated to the Soviet Union, where he was tried and sentenced to death by hanging.65 While exact numbers remain unknown, reports suggest that of those handed over to the Soviet side and not executed right away, 20 per cent received a death sentence or 25 years in a Gulag upon their return to the Soviet Union.66 As the laws of war applicable at the time did not regulate the question of repatriating unwilling civilians or soldiers, international law did not prohibit parties to a conflict from agreeing the forcible return of prisoners of war, as occurred at Yalta. Nevertheless, the sweeping repatriation of all prisoners of war, including deserters and defectors, and the tragedies that occurred as a result raised serious humanitarian concerns on the Western side. Such concerns were, however, trumped by the interest of the Western Allies in bringing prisoners of war in Soviet hands home as quickly as possible.67 3 Repatriation of Wehrmacht Deserters Given the total defeat of Germany, the repatriation of deserters from the Wehrmacht took a different form. With military rule by the Four Powers replacing the government of the defeated Nazi state, including the German judicial system, the defectors who had fought alongside Allied Forces had nothing to fear on their return to Germany. 64 65 66 67

Ibid. p. 253. Mark Elliot, Andrei Vlasov: Red Army General in Hitler’s Service, Military Affairs, 1982, Vol. 46, No. 2, p. 86. Alexander Gillespie, A History of the Laws of War: Volume i, p. 200. Alexander Dallin, Book Review: Pawns of Yalta: Soviet Refugees and America’s Role in Their Repatriation by Mark Elliot, Political Science Quarterly, Vol. 98, No. 1, 1983, p. 138.

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The situation was different for ordinary deserters who had abandoned their units and gone into hiding without joining the Allied Forces in their fight against Nazi Germany. Examples from the early days after Germany’s unconditional surrender show that these men were considered as deserving of punishment and, in many cases, were handed over to the German military for trial and punishment. The case of two German deserters, Bruno Dorfer and Rainer Beck, who had been successfully hiding in the Netherlands and who contacted the Canadian forces for protection after the capitulation of Nazi Germany, provides an example.68 Rather than protecting these two men from vengeful punishment by the German side, the Canadian military handed them over to German military units. The Germans sentenced them to death in a court-martial and executed them the same day with the permission of the Canadian commander. The Canadian approach reflected the general policy taken by the Western Allied governments of relying on German military structures for their own logistics and the repatriation of German troops until the eventual dissolution of the German military in December 1945.69 More importantly, Canadian military as well as certain protecting powers generally treated surrendered German soldiers not as prisoners of war but as “Surrendered Enemy Personnel.”70 They argued that under the 1929 Geneva Convention, prisoner of war status was obligatory only for those soldiers who had been “captured by the enemy” and had not been intended for combatants who surrendered.71 The Canadian military applied this interpretation to the two deserters who had placed themselves into its hands and thus did not accord them prisoner of war status. As a result, they did not benefit from the protection of the 1929 Convention Relative to the Treatment of Prisoners of War, which, according to Article 45, would have meant they were “subject to the laws, regulations, and orders in 68

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Cases reported in: Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 96. The complete dissolution of all German military units and military training was ordered on December 1, 1945 by Allied Control Authority Law No. 8, available at: Enactment and Approved Papers of the Control Council and Coordinating Committee, Allied Control Authority Germany, 1945,Vol. v 223–224. Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 96; Horst Fischer, Protection of Prisoners of War, in: Fleck (ed.), The Handbook of International Humanitarian Law, p. 369. icrc, Report on Activities during the Second World War, Vol. 1 (1048), pp. 539–543; Pictet, iii. Geneva Convention–Commentary, Art. 4, p. 50.

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force in the armies of the detaining Power.”72 This would have prevented a trial and punishment by German military courts and thus likely spared their lives.73 The deaths of the two German men and other deserters who were handed over after the war to the German military and executed seem particularly cruel and absurd, given that the war was over and they had turned to the Canadians for help. The Canadian military commanders at the time, as well as other Western Allied Forces who handed over ordinary deserters to the German military,74 were unable to see anything but a contemptible dereliction of duty and were unwilling to evaluate the men’s decisions to stop fighting in light of the unlawfulness of Germany’s war efforts and the crimes committed by Germany throughout the war. iv Summary While the Lieber Code of 1863 provided expressly that deserters who defected to serve in the army of an enemy party were to be punished by death, later codifications of the Hague and Geneva Laws did not contain any rules addressing the status and treatment of deserters during an armed conflict. Customary international law did not regulate this question in any form, either. Consequently, the treatment of deserters from the enemy army depended on political and military considerations and left deserters in the hands of the enemy, with no right to a particular status, or measures of protection. During the two World Wars, which were both characterised by exceptionally high levels of desertion, defection and recruitment of prisoners of war, particularly on the Eastern Front, the lines between these groups were blurred. The 72 73

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Article 44 of the 1929 Convention Relative to the Treatment of Prisoners of War. Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 105. In addition, the execution of the two men on the same day as the trial would have been forbidden under Article 66 of the 1929 Geneva Convention, which provided that death sentences “shall not be executed before the expiration of a period of at least three months” after communication to the protecting Power. For additional examples, see: Franz Seidler, Fahnenflucht, pp. 331–333; Madsen quotes from a war diary of a 1st Canadian infantry division, which states: “With the sanction of our Headquarters the Germans shot a half-dozen of their deserters who had been tried by German Court-Martial. Canadian Infantry Brigade reported that nbs have picked up 12 more German deserters in the jails of Rotterdam. They were turned over to German Commanders in the concentration area at Ijmuiden.” See: Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 99.

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lack of protection for these men resulted in extra-legal executions, starvation, and recruitment against their will to fight with the enemy. The peace treaties concluded towards the end of World War i included provisions allowing for an exemption from the general obligation to repatriate prisoners of war if these desired to remain in the country in which they were held captive. While such clauses might have been abused with regard to ordinary prisoners of war, because they enabled countries to withhold prisoners of war and use them for labour, they benefited those who feared being severely punished by their home country on their return. Following Germany’s defeat in World War ii, the peace treaties that were concluded by the Allied and Associated Governments with Germany and its allies then took a different approach. These treaties contained a provision that limited the possibility to grant an exemption from repatriation only to the Allied and Associated Governments. This indicates that the victorious nations were mindful of the fact that deserters and defectors had rendered them a service and they should not be returned against their will. The repatriation after World War ii involved a number of human tragedies, particularly with regard to the forced repatriation of Soviet nationals who had deserted, defected, or simply become prisoners of war and who were executed without trial upon their repatriation. B

The Protection of Deserters under Contemporary International Humanitarian Law

The suffering during World War ii of members of the armed forces and the civilian population alike testified to the need for an extension and clarification of the jus in bello regarding the protection of individuals during armed conflict.75 Under the auspices of the International Committee of the Red Cross, four new Geneva Conventions relating to the Protection of Victims of Armed Conflict76 were adopted in 1949, to which there are currently 196 parties77 75 76

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Horst Fischer, Protection of Prisoners of War, in: Fleck (ed.), The Handbook of International Humanitarian Law, p. 371. Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 u.n.t.d. 31; Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 u.n.t.s. 85; Convention (iii) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 u.n.t.s. 135; Convention (iv) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 u.n.t.s. 287. Hereafter, the four Geneva Conventions of 1949 will be referred to as gc i, gc ii, gc iii and gc iv. Ratification status as at 25.08.2015, available on icrc website: http://www.icrc.org/ihl.nsf/ INTRO/375?OpenDocument.

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binding practically all states.78 Furthermore, it is generally recognised that at least the most basic provisions of the Third Convention constitute customary law.79 With the adoption of further instruments, in particular the two Protocols Additional to the Geneva Conventions of 1977,80 contemporary international humanitarian law specifies a robust and comprehensive protection system for all persons from adverse or neutral parties who fall into the hands of a belligerent during an international armed conflict.81 However, these efforts of the international community to improve and extend the rules of international humanitarian law regarding the treatment of individuals in enemy hands did not include any attempts to clarify the status of deserters. The records of the Diplomatic Conference convened to draw up the Third Geneva Convention of 1949 do not indicate that the parties wished to include rules regarding belligerents’ rights and duties with respect to deserters.82 The status and legal position of deserters were not discussed at the diplomatic conference, nor at the negotiations that preceded it,83 and the term ‘deserter’ is absent from the 1949 Conventions, as it was from the previous Conventions of 1929. The same is true of the two Additional Protocols of 1977. While Additional Protocol i included, for the first time, concrete rules regarding spies and mercenaries and allowed for gaps in the protection of these groups in enemy hands,84 regulations for deserters were not included. 78 79

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Michael Bothe, Customary International Humanitarian Law: Some Reflections on the icrc Study, Yearbook of International Humanitarian Law, 2005, Vol. 8, p. 147. Robert M. Chesney, Prisoners of War, in R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Vol. viii, p. 437; Leslie Green, The contemporary law of armed conflict, p. 188; Sandra Krähenmann, Protection of Prisoners in Armed Conflict, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 365. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (ap i) and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (ap ii), both of 8 June 1977; Source: Protocols additional to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva, 1977, pp.3–87 and pp. 89–101. Knut Dörmann and Laurent Colassis, International Humanitarian Law in the Iraq Conflict, p. 296. Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 20; Alan Rosas, The Legal Status of Prisoners of War, p. 388. Alan Rosas, The Legal Status of Prisoners of War, p. 388. With regard to spies, Article 46 (1) ap i provides: Notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.

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Although no specific rules regarding the rights and duties of belligerents towards deserters have been added to the instruments of international humanitarian law, the evolution of an all-encompassing protection scheme for individuals since World War ii merits a closer examination of how the contemporary rules apply to this group. i The Deserter’s Legal Status under International Humanitarian Law The first question to be examined is the status under contemporary international humanitarian law of the deserter when in enemy hands – essentially, whether he is to be given prisoner of war status and thus can benefit from the protection provided under the Third Geneva Convention and Additional Protocol i or, otherwise, under the Fourth Geneva Convention. 1 Primary Status after Desertion Military desertion is a national offence that can only be committed by soldiers who are members of a state’s armed forces. Soldiers undoubtedly come under the application of Article 4 gc iii and are combatants according to Article 43 (2) ap i.85 By deserting, however, soldiers act on their wish to stop fighting during a conflict. In most, though not necessarily all cases, desertion will reflect a general wish to stop being a soldier, which raises the question of whether the act of desertion changes a soldier’s primary status from combatant to civilian. International humanitarian law itself regulates the consequences of being or not being a member of the armed forces, but it does not regulate when a person is to be considered a member of the armed forces, or when and how such membership ends. Rather, the modalities of becoming or ceasing to be a member of the armed forces are left to the discretion of the individual states and are regulated by domestic laws.86

Similarly, Article 47 (1) ap i states, regarding mercenaries: “A mercenary shall not have the right to be a combatant or a prisoner of war.” 85 Knut Ipsen, Combatants and Non-Combatants, in: Fleck (ed.), The Handbook of International Humanitarian Law, pp. 84/85. 86 icrc, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, p. 25; Horst Fischer, Protection of Prisoners of War, in: Fleck (ed.), The Handbook of International Humanitarian Law, p. 384. In exercising this discretion the state is, however, bound by international conventions prohibiting the recruitment of children below a certain age, and may be bound by national laws, e.g. excluding women from military service, Knut Ipsen, Combatants and Non-Combatants, in Fleck (ed.), The Handbook of International Humanitarian Law, pp. 86/87.

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From a domestic-law perspective, soldiers cannot terminate their membership of the armed forces unilaterally. Soldiers are subject to a specific service relationship, which imposes upon them an obligation of loyalty that they cannot ignore at will. On the contrary, violating this obligation makes them liable to be punished by their home country. At most, therefore, the act of desertion constitutes a de facto separation between the soldier and the armed forces; the action is contrary to the legal service relationship but does not end it. As far as the home country is concerned, soldiers who have deserted continue to be members of the armed forces – albeit members who have committed an illegal act and may therefore be punished under national military law.87 As a result, deserters remain members of their armed forces or armed group within the meaning of Article 43 ap i and hence combatants for the entire duration of the conflict, or until they are formally discharged from the army, or deactivated as reservists.88 2 Secondary Status when in Enemy Hands As noted above, under customary international law belligerents have a right to treat enemy deserters in their power as prisoners of war but they are under no customary duty to do so.89 Given the changes in and extensions to international humanitarian law since World War ii, a closer examination is warranted to see whether and under what circumstances contemporary treaty law might stipulate such a duty. According to Article 4 gc iii, any member of the armed forces of a party to the conflict who has “fallen into the power of the enemy” is to be given prisoner of war status.90 Similarly, Article 44 (1) ap i explicitly provides that any combatant who “falls into the power of an adverse party” shall be a prisoner of war and thus reinforces the link between the status of combatant status and that of prisoner of war.91

87

Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 19; Alan Rosas, The Legal Status of Prisoners of War, p. 430. 88 icrc, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, p. 25. 89 See above in Chapter 3, A i. 90 In addition to members of the armed forces Article 4 gc iii includes members of other militias and volunteer corps, as well as organised resistance movements. 91 Horst Fischer, Protection of Prisoners of War, in: Fleck (ed.), The Handbook of International Humanitarian Law, p. 383. In this regard, Ipsen states that prisoner of war status is the obligatory secondary status for all persons in enemy hands who hold the primary status of combatants, Knut

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The term ‘fallen into the power of the enemy’ was introduced in the Third Geneva Convention of 1949 and describes a situation in which a combatant comes into the power of the enemy without being able to exert any control over the situation.92 It was the expressed will of the parties to the Third Geneva Convention not to limit the protection of prisoner of war status to those persons who had been captured by the enemy, as had been the case under the 1929 Geneva Convention,93 but to extend it to soldiers who have surrendered to the enemy without a fight, or during a mass capitulation.94 It is therefore no longer necessary for an individual to be overcome during a fight by the direct use of force on the part of the enemy as a form of vis absoluta. For the presumption that a combatant has fallen into the power of the enemy, it is now sufficient that the combatant was compelled to surrender by the circumstances, in the sense of a vis compulsiva for example, because all resistance had become pointless in a specific combat situation.95 Whether deserters fall into the power of the enemy in the sense of Article 4 gc iii and Article 44 (1) ap i depends on the different circumstances under which they end up in the power of an enemy party during a conflict: (a) Deserters Who Cross Over to the Enemy “Crossing over” to the enemy can take different forms. Soldiers might voluntarily change sides during a combat situation, which, in practice, would probably mean that they pretend to surrender and immediately declare their intent to sever their allegiance,96 i.e. to abandon their military duties and break from their home country. As the act of desertion only manifests itself at the moment the soldiers come into contact with the enemy, it is important that the deserters declare their intent to break from their home country without delay so as to clearly distinguish themselves from combatants who are genuinely surrendering and keeping their allegiance to the

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Ipsen, Combatants and Non-Combatants, in Fleck (ed.), The Handbook of International Humanitarian Law, p. 79. Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 19; René-Jean Wilhelm, Peut-on Modifier le Statut des Prisonniers de Guerre?, irrc, 1953, p. 682. Jean S. Pictet, Development and Principles of International Humanitarian Law, p. 38. Final Record of the Diplomatic Conference of Geneva 1949, Vol. II-A, p. 237. René-Jean Wilhelm, Peut-on Modifier le Statut des Prisonniers de Guerre, p. 682. See: Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 14.

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home country.97 The timing of the declaration is crucial in light of Article 7 gc iii, which stipulates an absolute prohibition on any changes in the prisoner of war status during captivity.98 Deserters must therefore declare their intent to the enemy at the first possible moment. The intention to desert is most obvious in the case of defectors who declare a willingness to fight alongside the enemy against their home country in the future. However, the deserters’ plea for refuge from their own army, or a demand not to be interned with former comrades can be a way for soldiers to manifest their intention to desert.99 In another scenario, deserters might cross over to the enemy long after the act of desertion took place and they have been hiding as fugitives from punishment in their home country for some time. They might actively seek out the enemy from their hiding place, or they might voluntarily place themselves in enemy hands on first coming into contact with the enemy. In all these scenarios, the deserter places himself in the power of the enemy, but does not fall into it. Given the voluntary nature of the deserter’s action, the condition stipulated in Article 4 gc iii and Article 44 (1) ap i of having fallen into the power of the enemy is not fulfilled. Consequently, there is no treaty obligation on the belligerent to grant prisoner of war status, and deserters who cross over to the enemy have no right to demand the protection of the Third Geneva Convention.100 Needless to say, deserters who voluntarily place themselves in the hands of the enemy still require protection, if the experiences of past conflicts are anything to go by. Their decision to cross over to the enemy might have been prompted by enemy propaganda and false promises101 and the notion of

97 98 99

Ibid. p. 15. Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 7, p. 89. Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 18. 100 G.I.A.D. Draper, The Red Cross Conventions, p. 53. The uk Manual of the Law of Armed Conflict of 2004 reflects this finding when it states “defectors from the enemy are considered not to be entitled to be treated as prisoners of war”, United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, margin no. 8.14. p. 147. 101 Seidler provides examples of promises to deserters made by the Western Allies during World War ii – for example, post-war careers in the civilian aircraft industry for German pilots – but states that such promises were ‘obviously not sincere’, see: Franz Seidler, Fahnenflucht, pp. 61–63.

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safety may be relative, in as much as it also depends on the treatment that the deserter can expect from his home country and the overall circumstances of the specific conflict.102 Thus, it needs to be ascertained to what extent this group of combatants is nevertheless protected under international humanitarian law, and specifically whether they are protected under the Fourth Geneva Convention. At first glance, the applicability of the Fourth Geneva Convention is questionable, given that its title “Convention (iv) relative to the Protection of Civilian Persons in Time of War” suggests it is limited to civilians. The wording of Article 4 (1) gc iv does not indicate such a narrow scope, however, defining “persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”103 In this regard, the icrc Commentary on Article 3 gc iv clarifies that “the definition of ‘protected persons’ includes members of the armed forces – fit for service, wounded, sick, or shipwrecked – who fall into enemy hands. The treatment that such persons are to receive is laid down in special Conventions to which the provision refers. […] But if, for some reason, prisoner of war status – to take one example – were denied to them, they would become protected persons under the present [Fourth] Convention.”104 The broad definition of protected persons is in accordance with the purpose of the revisions made after World War ii, which aimed to ensure that every person in enemy hands has some status under international law,

102 See Chapter 3, A iv above. 103 A broader applicability of the Convention is implied by the wording of not just Article 4 (1) gc iv but also the subsidiarity clause in Article 4 iv gc iv. This clause specifies that the Fourth Geneva Convention is to cover only those persons in the power of the enemy who are not already protected by one of the other three Geneva Conventions. This subsidiarity clause shows that there is no necessary and exclusive link between the primary status of a civilian and the application of the Fourth Geneva Convention, such as exists between combatant status and prisoner of war status under the Third Geneva Convention: if the Fourth Geneva Convention only covered civilians, there would have been no need for a subsidiarity clause specifying that the special protection for combatants conferred by the first three Geneva Conventions takes precedence over the protection of the Fourth Geneva Convention. Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 4, p. 45. 104 Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 4, p. 51.

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without overlooking any groups.105 As such, the Fourth Geneva Convention protects not only those persons whose primary status is that of civilian but also all persons who “at a given moment and in any manner whatsoever” find themselves in the power of a party to a conflict or an Occupying Power and who are not already covered by one of the first three Geneva Conventions.106 This approach is also supported by the judgment of the icty in the case of Prosecutor v. Delalic et al. where the Trial Chamber held that “if an individual is not entitled to be protected by the Third Geneva Convention as a prisoner of war (or of the First or Second Conventions), he or she necessarily falls within the ambit of the Fourth Convention, provided that its Article 4 requirements are satisfied.”107 It follows from the above that if, at any point during an armed conflict, a deserter voluntarily places himself into the hands of the enemy and the enemy does not grant him prisoner of war status, he is to be accorded the protection of the Fourth Geneva Convention.108 The belligerent party must consider him a protected person and comply with the provisions of that convention.109 (b) Deserters Who are Captured Against their Will In armed conflicts where enemy lines are drawn according to ethnicity or religion rather than ideology, deserters might be fleeing not only from their military duties and the punishment of their home country but equally from hatred and mistreatment by the enemy. In cases where deserters fear the enemy as much as, or even more than, their home country they will try to

105 Ibid: “Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status.” 106 Leslie Green, The contemporary law of armed conflict, p. 223; Jürg Schmid, Die völkerrecht­ liche Stellung der Parisanen im Kriege, pp. 172–173. 107 icty, Prosecutor v. Delalic et al., Case No. IT-96-21-T, para. 271. 108 The only exception to this is stipulated in Article 4 (2) gc iv, which demands that the home country of the individual in question must have ratified gc iv. 109 See also Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 21 ff. Sassoli, whose focus is on desertions during ideological wars, provides a definition of deserters that is generally tied to the criterion of severing allegiance, which, in practice, only includes those deserters who cross over to the enemy.

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avoid being apprehended and to stay in hiding, or reach a safe third country. If they are seized by the enemy against their will, these deserters “fall into the power of the enemy” within the meaning of Article 4 gc iii and Article 44 (1) ap i. In such situations, the belligerent is under a treaty duty to grant the deserters protective custody as prisoners of war, which protects them from reprisals or judicial punishment for belligerent acts committed before their desertion.110 During an armed conflict, a belligerent might have doubts about the deserter’s combatant status and thus his entitlement to prisoner of war status. This is particularly the case if the deserter is in civilian clothing and unable to present his military identity card or otherwise prove his membership of the armed forces.111 For cases of doubt as to whether a person in enemy hands is entitled to prisoner of war status, Article 5 (2) gc iii obliges belligerent parties to grant that status “until such time as their status has been determined by a competent tribunal.”112 The general rule of Article 5 (2) gc iii that a person should be treated as a prisoner of war while and until a formal determination is made was further supplemented and clarified through Article 45 (1) ap i, which lists cases in which a presumption of prisoner of war status is to apply: if the person claims that status, if he appears to be entitled to such status, and if the Party on which he depends claims such status.113 Applying Article 5 (2) gc iii and Article 45 (1) ap i to deserters, it follows that a belligerent party is obliged to treat deserters as prisoners of war in cases where they are apprehended against their will and they claim prisoner of war status. If doubts exist about the deserters’ combatant status – for example, because they are disguised as civilians – the belligerent must nevertheless 110 Yasmin Naqvi, Doubtful prisoner of war status, irrc, Vol. 84, No 847, p. 571; Horst Fischer, Protection of Prisoners of War, in: Fleck (ed.), The Handbook of International Humanitarian Law, p. 379. G.I.A.D. Draper, The Red Cross Conventions, p. 54. 111 Knut Ipsen, Combatants and Non-Combatants, in: Fleck (ed.), The Handbook of International Humanitarian Law, p. 96. 112 See Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 5 (2) gc iii, p. 77, where deserters are explicitly mentioned as a group of persons to which Article 5 (2) gc iii applies. See also: Yves Sandoz/Christophe Swinarski/Bruno Zimmermann, Commentary on the Additional Protocols, Article 45 ap i, paras. 1730–1749. 113 Michael Bothe, Karl Josef Partsch und Waldemar Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, p. 260. An overview of State practice with regard to the Article 5 (2) gc iii rule is provided by: Yasmin Naqvi, Doubtful prisoner of war status, irrc, Vol. 84, No. 847, 2002, pp. 584–593.

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grant them prisoner of war status until a competent tribunal has determined this or another status. (c) Deserters Who Hide Among the Civilian Population Another scenario to be considered is that of deserters who are successfully hiding among the civilian population and who fall into the power of the enemy as part of the enemy’s occupation of the territory in which they are hiding. If they keep their cover as civilians and do not reveal their membership of the armed forces, the fugitive deserters are not distinguishable as combatants and, irrespective of whether or not the deserters find themselves in the power of the enemy against their will, they will be considered as protected persons under the Fourth Geneva Convention. (d) Defectors Who are Recaptured by their Home Country As a last point, it needs to be examined whether contemporary international humanitarian law has brought about changes to the legal status of defectors who are captured by their home country, specifically whether contemporary international humanitarian law stipulates a duty of the Detaining Power to grant prisoner of war status to nationals of that power if captured in enemy uniforms. The question as to whether the post-1949 law has altered the right of belligerents not to treat defected nationals as prisoners of war is contentious: In 1951, i.e. immediately after the adoption of the Geneva Conventions, Oppenheim’s International Law stated that members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former could not claim prisoner of war status.114 As humanitarian law generally does not attempt to regulate the relationship between a state and its citizens,115 it is argued that a Detaining Power is not precluded “from denying prisoner of war status to its own nationals serving in the armed forces of an enemy.”116 In 1967, the Privy Council of the British House of Lords also adopted this view, in the case of Public Prosecutor v. Oie Hee Koi,117 an appeal to the Privy 114 H. Lauterpacht, Disputes, War and Neutrality, in: Oppenheim International Law – A Treatise, Vol. ii, p. 268. 115 Mary Ellen O’Connell, Historical Development and Legal Basis, in: Fleck (ed.), The Handbook of International Humanitarian Law, Margin No. 103. 116 Reported in: Michael Bothe/Karl Josef Partsch/Waldemar Solf, New Rules for Victims of Armed Conflicts–Commentary on the Two 1977 Protocols Additional to the Geneva Convention of 1949, p. 271. 117 Public Prosecutor v. Oie Hee Koi (and Associated Appeals), Privy Council, 4 December 1967, 42 ilr 441 (1971), cited in: 60 Int’l L. Stud. Ser. us Naval War Col. 1979, pp. 737–746, p. 743.

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Council as the appellate court of last resort of the Federation of Malaysia. In the case, Malaysian nationals appealed against a criminal conviction by a Malaysian court. During the Indonesia-Malaysia war, these men had fought as members of an armed force of paratroopers under the command of Indonesian Air Force officers. When they were captured by Malaysian forces in the course of the armed conflict, they were convicted for unauthorised possession of firearms, ammunition or explosives in a security zone, violating Sections  57 and 58 of the Internal Security Act 1960 of the Federation of Malaysia. The accused challenged the conviction, claiming that they had been lawful combatants of the Indonesian Army and, as such, were entitled to prisoner of war status under Article 4 A gc iii upon their capture. The Privy Council denied the appeal and held that Article 4 gc iii did not extend the protection given to prisoners of war to nationals of the Detaining Power who owe a duty of allegiance to the Detaining Power. In support of this finding, the Privy Council relied on the wording of Article 87 gc iii and Article 100 gc iii, which, in their call for lenient sentencing, refer to the fact that “the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance.”118 The u.s. government’s practice towards u.s. citizens captured abroad while fighting with enemy forces would support the view taken by the Privy Council.119 In the case of John Walker Lindh, who was captured fighting with Taliban forces in Afghanistan, for example, the u.s. government used the domestic criminal justice system to prosecute him, rather than the legal mechanisms set out under the Geneva Conventions.120 However, the relevance of this state practice is doubtful given that the u.s.a. are not a party to Additional Protocol i, and the u.s. government’s approach is therefore not necessarily in line with the solution provided by the whole body of contemporary international humanitarian law. It is questionable whether such a categorical approach, which allows a state to deny prisoner of war status to nationals who fight with the enemy, is tenable, given the increasing complexities involved in questions of nationality, including the possibility that the defector might have multiple nationalities, 118 Public Prosecutor v. Oie Hee Koi (and Associated Appeals), 60 Int’l L. Stud. Ser. us Naval War Col. 1979, p. 741. 119 The u.s. Government is not a party to ap i. 120 Melysa H. Sperber, John Walker Lindh and Yaser Esam Hamdi: Closing the Loophole in International Humanitarian Law for American Nationals Captured Abroad While Fighting with Enemy Forces, 40 Am. Crim. L. Rev. 2003, p. 161.

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or that a nationality was initially forced upon him.121 More importantly, it seems impossible to reconcile such an approach with the specific standards under international humanitarian law aimed at protecting persons lawfully participating in an armed conflict. The link between the statuses of combatant and prisoner of war that was reiterated by Article 44 (2) ap i “is one of the fundamental principles of international humanitarian law.”122 Therefore, the decision as to whether the defector must be given prisoner of war status upon capture by his home country should, first and foremost, hinge on whether or not he could become a regular member of the enemy forces. If the enlistment by belligerents of defectors from enemy forces is a recognised right under international law, as is the majority view in the literature and indicated by state practice,123 it must follow that the recruitment of the defector into the armed forces of the enemy also provides him with regular combatant status according to Article 43 (2) ap i – and as such, with the rights and duties attached to this status. According to Article 4 gc ii and Article 44 (2) ap i, the most important right attached to this status is the entitlement to be treated as a prisoner of war if the combatant falls into the hands of an adverse party. As already stressed by René-Jean Wilhelm in 1953, the granting of prisoner of war status does not categorically impede the home country from punishing the defector under national criminal laws for his initial desertion.124 Prisoner of war status and criminal prosecution are not mutually exclusive,125 and while the status would render the captured defector immune from punishment for the mere fact of fighting in the ranks of the enemy, it would not prevent punishment for other crimes previously committed in violation of the captor’s law, such as the violation of military duties.126 From a protection point of view, however, the prisoner of war status would ensure that the defector 121 Mary Ellen O’Connell, Historical Development and Legal Basis, in: Fleck (ed.), The Handbook of International Humanitarian Law, Margin No. 103. 122 Sandra Krähenmann, Protection of Prisoners in Armed Conflict, in: Fleck (ed.), The Handbook of International Humanitarian Law, Margin No. 707. 123 For details, see this Chapter 3, B ii 1. 124 René-Jean Wilhelm, Peut-on modifier le statut des prisonniers du guerre?, 35 Revue Internationale de la Croix-Rouge, 1953, p. 684; also: Leslie C. Green, The contemporary law of armed conflict, p. 144 and Richard R. Baxter, The Privy Council on the Qualifications of Belligerents, 63 Am. J. Int’l L. 1969, pp. 290–296. 125 Ka Ho Tse, The Relevancy of Nationality to the Right to Prisoner of War Status, 8 Chinese J. Int’l L., 2009, p. 398. 126 Leslie Green, The contemporary law of armed conflict, p. 238.

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would benefit from the judicial guarantees in Articles 99 to 108 gc iii, which could protect him from vengeful and expedited punishment while the conflict is ongoing.127 Such an approach seems to distribute the benefits and risks of recruiting enemy defectors in a more even-handed way. It would also ensure that the individual is not reduced to a pawn without rights and protection in the conduct of hostilities of belligerent states: if states have the right to recruit enemy deserters to the benefit of their own war efforts (sharing of military intelligence, boost of morale and additional manpower, etc.), they should, in turn, be obliged to respect the adverse party’s right to do the same, and recognise a defector’s combatant and eventual prisoner of war status. It is therefore submitted here that defectors who have been formally accepted into the military forces of an enemy party must, upon capture by their home country, be treated as prisoners of war. In order to ensure that the individual is granted the protection foreseen under contemporary international humanitarian law, including protection from extra-judicial punishments or denial of a fair trial during an armed conflict, the essential link between the statuses of combatant and prisoner of war is to trump the sovereign rights of the home country over its nationals for the duration of the armed conflict and obliges the belligerent to grant the prisoner of war protection under the Third Geneva Convention. Once the conflict has ended and prisoners of war are released, however, the home country can prosecute defectors in ordinary criminal trials for the military offence of desertion and other offences applicable under the national military laws of the country. 3 Summary The examination shows that under contemporary international humanitarian law the legal status of deserters who find themselves in the power of the enemy depends on the circumstances under which they come into that power. By definition, all deserters in an international armed conflict have the p ­ rimary status of combatant and do not lose this status when they desert. The decisive criterion for their secondary status when in enemy hands is whether they fell into the hands of the enemy, i.e. whether coming into the power of the enemy was against their will and beyond their control. If that is the case, the belligerent must treat deserters as prisoners of war. If not, deserters are to be treated as protected persons and granted the protection provided by the Fourth Geneva Convention. 127 In this regard, it has been noted that “wars awaken such waves of nationalism and public passion that the possibility of obtaining a fair trial for deserters is almost non-existent.” See: Garcia-Mora, International Law and Asylum as a Human Right, p. 10.

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The following table summarises the findings for the different scenarios: Circumstances of coming into the power of the enemy:

Legal status Prisoner of war (gc iii)

X

Soldier crosses over “Surrenders” and in a combat situation immediately declares intent to break with home country Deserter in hiding asks for protection, or to join enemy forces upon coming into contact with enemy

Voluntarily places himself in enemy hands

Deserter unsuccessful in his attempt to flee to third country or to hide from enemy

Captured by the enemy

Deserter is ­successfully hiding among civilian population

Comes into the power of the enemy as part of civilian population

X

Enemy is aware of combatant status

X

Deserter claims prisoner of war status upon arrest

X

Enemy in doubt about deserter’s combatant status

X

Civilian cover not detected

X

Special Case: Defector captured by his home country in enemy uniform

Falls into the hands of the home country

Protected person (gc iv)

X (contro­ versial)

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Rights and Obligations of the Enemy Party with Regard to the Deserter The rights and obligations of a belligerent party with regard to deserters in its power depend on the legal status of these persons. For those who are to be treated as prisoners of war, the Third Geneva Convention contains numerous rules – some of them very detailed – regarding the protection that international humanitarian law confers upon prisoners of war from punishment, degrading or discriminatory treatment, and reprisals on the part of the enemy.128 The legal position of deserters who are protected persons, and the manner in which they are to be treated, are governed by the extensive third part of the Fourth Geneva Convention.129 The primary purpose of these rules is to protect against violence and arbitrary behaviour on the part of the enemy.130 Article 27 gc iv states this purpose in a general fashion by stipulating that protected persons are entitled, in all circumstances, to respect for their person, their honour, their family rights, their religious convictions, practices and customs, that they shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof, and against insults and public curiosity. Article 27 Paras. 2 and 3 gc iv provides additional and particular protection for women and prohibits adverse distinction based on race, religion, or political opinion. The following sections look more closely at how these two sets of rules deal with issues that have particular relevance for deserters in enemy hands, specifically: their use in enemy forces (1), their criminal prosecution (2), their internment or other security measures against them (3), the notification of their home country (4), their transfer to another power (5), and their repatriation once the armed conflict has ended (6). In addition, the principle of nonrefoulement under international human rights law is examined, as well as its limitations on transferring deserters to another power or back to their home country (7). Finally, the provisions in the two Geneva Conventions dealing with women are examined with regard to the treatment prescribed for women deserters (8). ii

128 See Articles 13, 14 and 16 gc iii. 129 Another set of rules, first codified in the 1907 Hague Regulations annexed to hc iv, ­provides for the protection of the civilian population against direct effects of military operations and other acts of hostility. Hans-Peter Gasser and Knut Dörmann, Protection of the Civilian Population, in: Fleck (ed.) The Handbook of International Humanitarian Law, p. 231. 130 Hans-Peter Gasser and Knut Dörmann, Protection of the Civilian Population, in: Fleck (ed.) The Handbook of International Humanitarian Law, p. 231.

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1 Use in Enemy Forces As stated above, historically, the right of belligerents to enlist deserters who voluntarily offered their service has been recognised under international law and has been widely acted upon by belligerent parties, in particular during World War ii, while the compulsory enlistment of nationals of a hostile power was prohibited under Article 23 of the Hague Regulations.131 The 1949 Geneva Conventions confirm and strengthen this prohibition: Article 50 gc iii defines the “permissible limits of prisoner of war utilization” by prohibiting any labour and activity of a military purpose132 and Article 130 gc iii lists the forced recruitment of a prisoner of war to serve in the forces of a hostile power as one of the grave breaches of the Conventions. Similarly, Article 51 gc iv stipulates a prohibition to compel protected persons to serve in the armed forces of the Occupying Power and Article 147 gc iv defines it as a grave breach of the Convention to do so. This prohibition applies even if that person was in the belligerent’s service before the beginning of the armed conflict.133 Given these clear prohibitions, the ‘brainwashing’ of Iraqi prisoners of war by Iran in order to turn them into zealous supporters of Ayatollah Khomeini, as reported during the Iraq-Iran war, constituted a grave breach of the Fourth Geneva Convention by Iran.134 The matter is less clear with regard to the right to accept voluntary service of deserters under contemporary international humanitarian law, and the following sections examine this question with regard to deserters who are prisoners of war and those who are protected persons. (a) Deserters Who have Prisoner of War Status Whether or not a belligerent may accept the voluntary service of prisoners of war who, at some point during captivity, express a wish to join the military forces of the Detaining Power depends on the possibility of changing the person’s status during captivity. In response to the experiences during World War ii, when states had pressured prisoners of war to give up their status, the 1949 Geneva Conventions introduced an important new safeguard regarding the non-renunciation of

131 See Chapter 3, A ii. 132 James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 23. 133 Jean S. Pictet, Commentary on the Fourth Geneva Convention, Article 147, p. 600. 134 Leslie Green, The contemporary law of armed conflict, p. 145 referencing the Toronto Globe and Mail of 2 September 1988.

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rights in an article common to the four Geneva Conventions.135 According to Common Article 7/7/7/8 of the Geneva Conventions, a person may in no circumstances renounce in part or in full the rights secured for him or her by the respective Convention. The draft Article 7 gc iii that was originally submitted to the Diplomatic Conference only prohibited causing prisoners of war to renounce their status by compulsion or some form of force. However, the conviction that it is practically impossible for a soldier who has been taken prisoner to act fully in accordance with his free will, together with the consideration that it would be difficult to prove the use of force against prisoners of war, and hence any abuse by a party to a conflict, led to the adoption of the existing, stricter version of Article 7 gc iii by the Diplomatic Conference in 1949.136 Given the well-documented intent of the drafters, it is generally accepted that Article 7 gc iii prohibits a belligerent party from responding to a person’s wish or statement made in captivity in a way that would result in the loss of the person’s rights or legal status under the Convention. This also means that a belligerent may not act on the voluntary offer of service that a prisoner of war makes during captivity.137 While evidently intended to protect those prisoners of war who were captured while loyally fighting for their home country, the safeguards established by Article 7 gc iii equally apply to deserters who fell into the hands of a hostile power against their will and control. With regard to their relationship with the Detaining Power, these deserters have more in common with ordinary prisoners of war than with defectors who cross over to the enemy and, as such, are in equal need of protection under the Convention from any pressure to give up their rights. Furthermore, the same has to apply in cases where the belligerent took the decision to treat a deserter or defector who voluntarily came into its power as 135 See discussions of the draft article in: Final Record of the Diplomatic Conference of 1949, Vol. II-B, p. 17. 136 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 7, p. 89, James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, pp. 26 and 27. 137 Leslie Green, The contemporary law of armed conflict, p. 144; Morris Greenspan, The modern law of land warfare, p. 104; James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 25; Alan Rosas, The Legal Status of Prisoners of War, pp. 433–434. This view is also reflected in military manuals such as: Australia, Manual of the Law of Armed Conflict, 2006, Section 10.32; United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 141; United States, Field Manual 27–10, paragraph 87.

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a prisoner of war. Allowing the belligerent to change the status at will in such cases would open the door to uncertainties in the handling of prisoners of war during an armed conflict and, as such, ultimately undermine the purpose of Article 7 gc iii. It follows from the above that deserters in the hands of the enemy who have been given, or are entitled to the status of prisoner of war cannot renounce it and must retain it until their release and repatriation at the end of hostilities. Consequently, the belligerent party may not accept their voluntary offer of service and is prohibited from recruiting them into its military forces. (b) Defectors and Deserters Who are Protected Persons In contrast, it is generally accepted that a belligerent party may accept the voluntary offer of deserters in its power if these are not prisoners of war.138 The wording of Article 51 (1) gc iv itself indicates how far an Occupying Power may go in requesting the services of the population specifically for military purposes:139 The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted. While on the one hand Article 51 (1) gc iv prohibits the forced enlistment of protected persons in its first sentence, it goes on to prohibit “pressure or propaganda which aims at securing voluntary enlistment”, in order to protect the inhabitants of occupied territories from attempts to undermine their allegiance to their home country.140 The fact that the drafters included a qualification regarding propaganda and pressure shows that otherwise they considered the voluntary enlistment of protected persons to be a right of belligerents. Furthermore, Article 8 gc iv,141 which stipulates the non-renunciation of rights of protected persons, does not preclude a belligerent from accepting voluntary enlistment of protected persons. Unlike the status of prisoner of war and the protection that comes with it, it is not an “either/or question”: the 138 Alan Rosas, The Legal Status of Prisoners of War, pp. 434–435; Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 22; Wolfgang Hasenclever, Freilassung und Heimschaffung der Kriegsgefangenen bei Beendigung der Feindseligkeiten, p. 155. 139 Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 51, p. 291. 140 Ibid. p. 293. 141 This Article is common to all four Geneva Conventions.

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rights and protection of protected persons as provided by the Fourth Geneva Convention are not incompatible with being recruited into the military forces of the Occupying Power.142 This result corresponds to the protection needs and interests of deserters who voluntarily place themselves into the power of the enemy. Those who do so in search of protection from their own country may not be forced to enlist and continue fighting. But those who cross over with the specific intention of supporting the enemy’s military efforts against the home country can offer their service and may be recruited. 2 Criminal Prosecution When considering the extent to which a party to a conflict may prosecute and punish enemy deserters in its power, one must distinguish between punishment for having previously participated in hostile acts against that party and punishment for war crimes committed before the desertion. As clarified above, deserters are combatants and, as such, they are entitled to take direct part in the hostilities according to Article 3 of the Hague Regulations and Article 43 (2) ap i. Consequently, they cannot be punished for the mere fact of having fought against the enemy. Importantly, this does not include the commission of war crimes, and neither the deserters’ combatant status nor, possibly, their prisoner of war status protects them from trial or punishment for war crimes committed before their desertion and capture.143 On the contrary, the four Geneva Conventions require states to enact any legislation necessary to provide effective penal sanctions for persons committing grave breaches listed in the four Conventions.144 (a) Deserters Who have Prisoner of War Status For those deserters who are prisoners of war, Article 85 gc iii contains an important modification to the situation that existed under the 1929 Geneva Convention relative to the treatment of prisoners of war. As the 1929 Convention contained no provisions regarding prosecutions of crimes committed before 142 While the icrc Commentary to Article 7 gc iii points out that the prohibition on enlisting prisoners of war was one of the intended purposes of this Article, no such comment regarding protected persons can be found in the Commentary on Article 8 gc iv, although this might be due to the fact that the status of a protected person had not existed before and there had been no precedent regarding the renunciation of rights by civilians. 143 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Art. 85, p. 413; Leslie Green, The contemporary law of armed conflict, p. 238. 144 See Articles 48 and 49 gc i, Articles 49 and 50 gc ii, Articles 129 and 130 gc iii and Articles 146 and 147 of ga iv.

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capture, many domestic courts during World War ii had denied persons accused of war crimes the protection under the 1929 Prisoner of War Convention,145 arguing that a person who violated the laws of war may not avail him- or herself of the protection which they afford.146 Article 85 gc iii makes it clear that prisoners of war who are accused, convicted or sentenced under the laws of the Detaining Power for acts committed prior to their capture continue to enjoy the benefits of the Convention.147 The application of Article 85 gc iii has been controversial, though, with many state parties arguing that it merely referred to the national laws of the Detaining Power and not war crimes. In reference to the clear and unequivocal will of the drafters, as documented in the records of the xvii Diplomatic Conferences, the icrc has insisted, however that Article 85 gc iii also applies in cases where the prisoner was accused of war crimes.148 This principle was unequivocally included in Article 44 (2) ap i. This provision states explicitly that a violation of the rules of international law applicable in armed conflict “shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war.” (b) Defectors and Deserters Who are Protected Persons For deserters and defectors who fall under the protection of the Fourth Geneva Convention, Article 70 gc iv is relevant. According to that Article, the Occupying Power may generally not arrest, prosecute or convict a protected person for acts committed before the occupation, but it may prosecute the person for breaches of the laws and customs of war.149 145 A prominent example is the case of the Japanese General Yamashita, who was tried for war crimes committed during World War ii, In re Yamashita, Supreme Court of the United States, 327 us 1 (1946); see also references to other national jurisprudence in: Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Art. 85, p. 413. 146 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Art. 85, p. 414. 147 In particular, Articles 99 to 108 gc iii, regarding judicial proceedings against prisoners of war, remain applicable and a Detaining Power that holds an enemy deserter criminally responsible for crimes under its national laws or war crimes that he or she committed prior to deserting must grant the accused the rights to due process set out in Articles 99 to 108 gc iii. 148 In this respect it is important to note that many countries of the Eastern Bloc filed a reservation with regard to Article 85 gc iii. For details, see: Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 85, pp. 423–426. 149 Leslie Green, The contemporary law of armed conflict, p. 270. Article 70 gc iv refers to the entire body of international humanitarian law, including customary law, see: icrc, Commentary on the Fourth Geneva Convention, Article 70, p. 350.

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Consequently, when defectors or deserters who crossed over to the enemy are guilty of breaches of the laws and customs of war before they deserted, the enemy belligerent is entitled to arrest and prosecute them. In doing so, however, the belligerent is bound by the judicial guarantees contained in Articles 71 to 75 gc iv stipulating, among other things, a right to a regular trial by a competent court, the right of defence and the right of appeal. 3 Internment and Other Security Measures Internment denotes “the non-criminal detention of a person based on the serious threat that his or her activity poses to the security of the detaining authority in an armed conflict.”150 (a) Deserters Who have Prisoner of War Status Traditionally, a belligerent party has a right to intern prisoners of war. This right was explicitly confirmed in Article 21 gc iii and further defined in the elaborate set of rules in the Third Geneva Convention regarding the conditions of captivity.151 Internment of prisoners of war is meant to be a security measure, rather than punishment, in order to prevent the prisoners from taking further part in hostilities.152 Despite the deserter’s decision to no longer fight for his home country, the enemy party might find internment necessary for security reasons. However, the rules regarding the conditions of captivity in which prisoners of war shall be kept are problematic when applied to deserters. An example is Article 22 (3) gc iii, which obliges the Detaining Power to assemble prisoners of war in camps, or camp compounds according to their nationality, language and customs. While this obligation is meant to improve the conditions of captivity for ordinary prisoners by enabling them to form ties and assist each other,153 being interned with former comrades is most likely detrimental to deserters, as it exposes them to acts of vengeance, or even lynching. (b) Defectors and Deserters Who are Protected Persons Article 27 (4) gc iv confers on parties to a conflict the right to take such measures of control and security with regard to protected persons as may be 150 icrc, International Humanitarian Law and the challenges of contemporary armed conflicts, Report to the 31st International Conference of the Red Cross and Red Crescent (2011), 31IC/11/5.1.2, p. 16. 151 See Articles 21 to 48 gc iii. 152 Sandra Krähenmann, Protection of Prisoners in Armed Conflict, in: Fleck (ed.) The Handbook of International Humanitarian Law, margin no. 702, p. 367. 153 Ibid, margin no. 719, p. 395.

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necessary as a result of the war. The “measures of control” are not further specified. They may range from relatively mild measures, such as an obligation to report to the Detaining Power regularly and carry particular identity papers, to measures that significantly restrict the individual’s personal freedom, such as curfew, house arrest or internment.154 Articles 41 and 42 gc iv, however, make it clear that assigned residence and internment of protected persons are the most severe measures of control that a party to the conflict may apply and may only be ordered if it is absolutely necessary for the security of that party to the conflict.155 As stated above, it is reasonable to assume that, in many cases, the party to the conflict will initially consider internment of enemy deserters necessary for security reasons. In case of internment, the provisions of Articles 79–135 gc iv apply. These are largely inspired by the provisions of the Third Geneva Convention regarding the protection of prisoners of war156 and include rules concerning places of internment, hygiene and medical attention, religious, intellectual and physical activities, administration and discipline, release and hospitalisation in a neutral country. For deserters, Article 84 gc iv contains an important obligation for the ­belligerent party, namely the requirement to accommodate and administer interned protected persons separately from prisoners of war and from persons deprived of liberty for any other reason. Deserters who crossed over to the enemy and are interned by that party as a protected person may not, therefore, be accommodated with members of the armed forces of their home country who were captured and are held as prisoners of war. This provision is of significance and possibly life-saving importance for deserters, as it protects them from the vengeance of their former comrades. 4 Notification of the Deserter’s Home Country Article 14 of the Hague Regulations had already called for the establishment of so-called ‘inquiry offices’ to receive and answer questions regarding prisoners of war. As this mechanism had proved extremely valuable during World War i, provisions to this effect were included in the 1929 Geneva Convention157 and,

154 Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 27 Paragraph 4, p. 207. 155 Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 42, p. 258. 156 Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 22. 157 See Articles 77 to 80 of the 1929 Geneva Convention Relative to the Treatment of Prisoners of War.

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with additional detail, for both prisoners of war and protected persons in the Third and Fourth Geneva Conventions, respectively.158 (a) Deserters Who are Prisoners of War According to Article 122 gc iii, upon the outbreak of a conflict, or in case of occupation, each of the parties to the conflict is to institute an official Information Bureau for prisoners of war who are in its power. That Bureau is required to forward information regarding prisoners of war to the enemy parties to the conflict and to the Central Agency provided for in Article 123 gc iii. In addition, Article 70 gc iii gives the prisoner of war the right, immediately upon capture, to send a card directly to his family and another to the Central Prisoners of War Agency, informing them of his fate. These regulations constitute a major achievement of modern international humanitarian law, as the separation of families and the uncertainty as to the fate of family members causes a great deal of suffering during armed conflicts.159 At the same time, they are not necessarily in the interests of deserters captured by the enemy who have no interest in their current location and details of their desertion becoming known. While Article 70 gc iii merely requires that the parties to the conflict give the prisoner of war the opportunity to send an information card to his family, but leaves it up to the prisoner do decide whether or not to do so,160 Article 122 gc iii imposes an absolute obligation on the party concerned to inform the power on which the prisoner depends and the Central Agency. The literature does allow an exception to this strict rule only in the exceptional circumstance where it is known that the power on which the prisoner depends would abuse the right to be notified by misusing the information to conduct reprisals against prisoners and their families. In such cases, it should be sufficient to notify the Central Prisoners of War Information Agency only, and not the prisoner’s home country.161 Whether such an exception would be justified in the case of a captured deserter would thus depend on the circumstances of the conflict. While the mere fact that the deserter might face judicial 158 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 122, pp. 573–574 and Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 136, p. 522. 159 Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 28. 160 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 70, p. 343. 161 Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, p. 28. Sassoli argues that the Detaining Power might rely on the prohibition of an abuse of rights as generally recognised by international law.

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prosecution and punishment by his home country would not suffice to justify an exception to the notification rule, well-founded fear of reprisals and stigmatisation of the deserter’s family during the conflict by the home country would allow the Detaining Power to limit the notification to the Central Prisoners of War Information Agency. (b) Deserters Who are Protected Persons Articles 136 to 141 gc iv provide for a system to transmit information regarding protected persons to the adverse party upon the outbreak of an armed conflict. Regarding the Information Bureaux for prisoners of war, however, the Fourth Geneva Convention explicitly provides for the exception that is lacking in the Third Geneva Convention: according to Article 137 (2) gc iv the Information Bureau can decide not to transmit the information to the protecting power, if transmitting information concerning a protected person might be detrimental to the person concerned, or to his or her relatives. The information must still be passed to the Central Agency, but can be transmitted with an indication that it is to be treated in confidence. Article 43 (2) gc iv allows a party to a conflict not to inform the adverse party of the internment or release of one of its nationals if the person objects, and thus allows deserters who crossed over to the enemy to prevent their home country from discovering their location or fate. 5 Transfer to Another Power The issue of transfer of detainees in the power of an enemy party is particularly pertinent in cases of operations by multinational forces on one or both sides of an international armed conflict. This was the case, for example, with the Multi-National Force operating in Iraq and the participating states in the nato-led International Security Assistance Force (isaf) in Afghanistan. For any transfer of persons during an international armed conflict from the Detaining Power to another Power, international humanitarian law stipulates an obligation for the Detaining Power to ensure that the transferee Power is both willing and able to apply the terms of the Conventions as a whole.162 (a) Transfer of Deserters Who are Prisoners of War With regard to the transfer of prisoners of war, Article 12 (2) 1 gc iii provides that: 162 Mike Sanderson, The Syrian Crisis and the Principle of Non-Refoulement, 89 INT’L. stud. (2013), p. 797; Emanuela-Chiara Gillard, There’s no place like home: states’ obligations in relation to transfers of persons, irrc, Vol. 90. No. 871, 2008, p. 710.

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Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. Article 12 (2) gc iii addresses the question of responsibility for the treatment of prisoners of war during an international armed conflict, in particular in cases of multinational forces who share the tasks of interning and guarding prisoners of war following their capture by one of the belligerent powers.163 This provision aims to ensure that prisoners of war are not transferred to a state that is not bound to accord prisoners the treatment provided for in the Third Geneva Convention and, as such, precludes the transfer of the prisoner if any of the rights and protections of the Third Geneva Convention cannot be assured.164 (b) Transfer of Deserters Who are Protected Persons Similarly to Article 12 gc iii, Article 45 gc iv provides that protected persons shall not be transferred to a Power that is not a party to the Convention, and if the transferee Power is a party to the Convention such persons may be transferred by the Detaining Power only after the latter has satisfied itself of the willingness and ability of the transferee Power to apply the present Convention. Finally, Article 45 (3) gc iv stipulates an absolute prohibition on transfer in all cases where there is a risk that the protected person might be subjected to discriminatory treatment or persecution.165 It follows from the above that the enemy party in whose power deserters find themselves in the course of an armed conflict cannot escape its responsibility regarding the treatment of deserters by transferring these men and women to another Power, e.g. its military allies, without assuring that the other Power will ensure a treatment in accordance with the provisions of the Third and Fourth Geneva Convention. 6 Repatriation The delays in the repatriation of prisoners of war after World War ii and the suffering that resulted from the fact that prisoners of war were still being held by their captors in the early 1950s clearly demonstrated that prompt and 163 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 12, pp. 131–137. 164 Emanuela-Chiara Gillard, There’s no place like home: states’ obligations in relation to transfers of persons, irrc, Vol. 90. No. 871, 2008, p. 710. 165 Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 45, p. 269.

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unconditional repatriation of prisoners of war after the cessation of hostilities is one of the most important aspects of the protection of prisoners of war under international humanitarian law. The experiences after World War ii prompted an overhaul of the provisions on repatriation to prevent the possibility of unjustifiably keeping prisoners of war in captivity in the future,166 or of using them as cheap labour following the cessation of hostilities.167 For example, both France and the Soviet Union kept German prisoners of war for a number of years after World War ii and employed them for reconstruction work, with Russia delaying the completion of the repatriation procedures until 1956.168 While the repatriation of prisoners of war who remained loyal to their country is a pressing humanitarian concern, the prospect of being repatriated is likely to be worrying for deserters and dependent on both the punishment they are to expect and the treatment and conditions they face while in the hands of the enemy. Unless an amnesty has been agreed as part of a peace agreement, or independently proclaimed for deserters, the home country will prosecute him or her for the military offence. Additionally, as experiences in past conflicts have shown, depending on the circumstances prevailing in the home country, being repatriated might entail a variety of serious risks, including ill-treatment and retribution, extra-judicial punishment, or criminal proceedings leading to the imposition of the death penalty. So, unlike for ordinary prisoners of war and nationals of an enemy party, it needs to be asked whether and under what circumstances the enemy party is permitted, or even obliged to refrain from repatriating deserters. In answering these questions, both international humanitarian law and international human rights law apply.169 (a) Repatriation of Deserters Who are Prisoners of War Leaving aside special regulations applying to seriously ill or injured prisoners of war, the basic rule of international humanitarian law is Article 118 (1) gc iii, which requires that parties release and repatriate prisoners of war without 166 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 118, p. 541. 167 See also: Alan Rosas, The Legal Status of Prisoners of War, pp. 478–479. Rosas also points out that in ideological conflicts the prompt and unconditional repatriation of prisoners of war protects prisoners from excessive influence and pressure by the Detaining Power wishing to claim that many prisoners of war chose to remain in its country. 168 Horst Fischer, Protection of Prisoners of War, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 370. 169 Aspects of international human rights law are discussed in this Section below, under 7.

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delay after the cessation of active hostilities.170 This rule has proved problematic in many conflicts since the Third Geneva Convention was signed, and forced repatriation remains controversial and lacks consistent state practice.171 After the wars in Korea and Vietnam, the war between Iraq and Iran, and the Second Gulf War, in particular, prisoners of war demanded not to be repatriated.172 In the Korean War, the question of repatriating prisoners of war delayed the signing of a cease-fire agreement for several months.173 North Korea and the Communist states insisted that all prisoners of war be repatriated, without exception, while the states forming the un contingent, especially the U.S, were of the view that repatriation should not be carried out by force, against the will of the prisoner of war concerned.174 Advocates of compulsory repatriation called for a strict interpretation of the wording of Article 118 gc iii, arguing that this Article required unconditional repatriation and left no room for further interpretation.175 They also cited the provision of Article 7 gc iii, under which prisoners of war cannot renounce the rights accorded to them under Article 118 gc iii.176 Others, however, insisted on interpreting Art. 118 gc iii in the light of the protection purposes of the Third Geneva Convention, which, if necessary, 170 See also Article 5 (1) gc iii defining the temporary scope of the Third Geneva Convention and stating that it shall apply to the persons referred to in Article 4 until their final release or repatriation. 171 Regarding the repatriation practice and resulting problems post-1945, see this Chapter 3, A iii. 172 Sandra Krähenmann, Protection of Prisoners in Armed Conflict, in: Fleck (ed.) The Handbook of International Humanitarian Law, margin no. 735, pp. 409–410; see also Richard Falk, International Law Aspects of Repatriation of Prisoners of War during Hostilities, ajil, Vol. 67, No 3, 1973, pp. 465–478. 173 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 118, pp. 543–545. 174 Jan P. Charmatz and Harold M. Wit, Repatriation of Prisoners of War and the 1949 Geneva Convention, Yale Law Journal, 1953, Vol. 62, No. 3, p. 391. At the time of the Korean War none of the Parties had ratified gc iii and it was therefore not legally applicable. The Parties had, however, stated their intention of respecting the principles of the Geneva Conventions at the beginning of the hostilities, see: Jean S. Pictet (ed.), Commentary on the Fourth Geneva Convention, Article 118, p. 543. 175 Despite the fact that gc iii was legally not applicable during the Korean War, as none of the Parties had ratified it, nevertheless it was partially applied, since the Parties had stated their intentions at the beginning of the hostilities to respect the “principles” of the Geneva Conventions, see: Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 118, p. 543. 176 Statement of Mr. Vyshinski to the 514th Meeting of the Political and Security Committee of the United Nations, Oct. 29. 1952, u.s. Deleg. Doc. U.S./A/C.1/2538, pp. 86–87 (1952).

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should allow for the protection of prisoners of war from their own country.177 They maintained that repatriation was primarily a right of the prisoner and, as such, should not be enforced against the express will of the right-holder himself. Rather, the spirit of the Convention indicated that prisoners of war should be repatriated on a voluntarily basis only and that repatriation by force should be prohibited. In support of this view, they cited reports of repatriated prisoners of war suffering breaches of human rights in Communist countries.178 In an attempt to end the deadlock, the General Assembly passed a resolution stating “that force shall not be used against prisoners of war to prevent or effect their return to their homelands”, which eventually led to the acceptance of repatriation on a voluntary basis.179 The question of how Article 118 gc iii should be interpreted arose again during the Second Gulf War, when about 15,000 Iraqi prisoners of war refused to be repatriated. The u.s. Government took the view that a duty according to Article 118 gc iii was conditional on the prisoner’s consent and refrained from repatriating prisoners against their will.180 The icrc has stressed in its Commentary on the Third Geneva Convention that the approach taken in the Korean War should not constitute a generally binding interpretation of Article 118 gc iii. The danger of unacceptable influence and pressure being exerted on prisoners of war, together with the danger of deliberate delay in repatriating them, result in the need for a basic duty on belligerent parties to repatriate all prisoners of war following the end of hostilities.181 Nevertheless, the humanitarian tragedies that accompanied the forced repatriation of deserters, defectors and prisoners of war after World War ii testify to the need for the option of refraining from repatriating persons if they fear human rights violations and discrimination in their home country.182 177 Jaro Mayda, The Korean Repatriation Problem and International Law, 47 ajil 1953, pp. 414–438; Jan P. Charmatz and Harold M. Wit, Repatriation of Prisoners of War and the 1949 Geneva Convention, Yale Law Journal, 1952, Vol. 62, No. 3, pp. 391–415; Richard Baxter, Asylum to Prisoners of War, British Yearbook of International Law, 1953, Vol. 30, pp. 489–498; Manuel R. Garcia-Mora, International Law and Asylum as a Human Right 1956, p. 112. 178 Jan P. Charmatz and Harold M. Wit, Repatriation of Prisoners of War and the 1949 Geneva Convention, Yale Law Journal, 1952, Vol. 62, No. 3, p. 392. 179 ga Res. 610 (vii) of 3 December 1952. 180 See reference to statements made by the u.s. Department of Defense at: Sandra Krähenmann, Protection of Prisoners in Armed Conflict, in: Fleck (ed.) The Handbook of International Humanitarian Law, margin no. 735, p. 410. 181 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 118, p. 546. 182 A proposal made by Austria at the 1949 Diplomatic Conference is interesting in this respect. The proposal was that a rule be added to the provisions concerning repatriation,

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As such, it is acknowledged that exceptions must be possible and a Detaining Power may refrain from repatriating prisoners of war where there are serious grounds for believing that these prisoners of war may be subjected to “measures contrary to the general principles of international law for the protection of the human being”.183 Past conflicts show that there is no uniform practice regarding the application of Article 118 gc iii. Repatriation has to depend on the nature of the conflict and the parties involved. The International Committee of the Red Cross has applied this principle in a number of conflicts since the Korean War, such as the Iran/Iraq War, the 1990 Gulf War and the war between Ethiopia and Eritrea.184 It follows from the above that deserters who have been captured as prisoners of war cannot, in general, claim a right to oppose repatriation in order to avoid criminal prosecution by their home country. However, in cases where there is a risk that the punishment by the home country would constitute a discriminatory measure against the life and liberty of deserters, in contravention of international law and the principles of international protection of human rights, the country holding the deserters captive can refrain from repatriating them. As will be seen below, by allowing for such an exception to the general duty to repatriate, international humanitarian law is in line with the principle of non-refoulement under international human rights law, which precludes states from transferring persons within their control to another state if there is a real risk that they may face violations of certain fundamental rights.185 (b) Repatriation of Deserters Who are Protected Persons Unlike in the case of prisoners of war, international humanitarian law does not stipulate a general obligation on a Party to a conflict to return interned protected persons to their home countries at the end of hostilities, i.e. to repatriate them. Articles 132 to 135 gc iv merely provide for the immediate release giving prisoners of war the right to choose to be transferred to a country other than their home country, if that country were willing to accept them: “Prisoners of war, however, shall be entitled to apply for their transfer to any other other country which is ready to accept them.” While such a provision would have taken account of the particular situation of deserters who had been taken prisoner of war, the majority of state representatives rejected the Austrian proposal. See: Final Record of the Diplomatic Conference of Geneva, Vol. II-A, pp. 324 and 462; Alan Rosas, The Legal Status of Prisoners of War, p. 482. 183 Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, Article 118, p. 548. 184 See icrc Annual Report 1989, p. 87; icrc Annual Report 1991, p. 100; icrc Annual Report 2006, p. 97 and icrc Annual Report 2007, p. 102. 185 See in this Chapter 3, B ii. 7.

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of interned protected persons at the end of hostilities, or when the reasons for internment no longer apply. While Article 134 gc iv states that the Parties to the conflict must endeavour to ensure the return of all internees to their last place of residence, or to facilitate their repatriation, the decision regarding repatriation is left to the protected person him- or herself, and the Party to the conflict is only required to facilitate the return. As a result, the humanitarian problems that arise in connection with the repatriation of deserters who are prisoners of war do not exist in the case of those who are protected persons, since there is no obligation on the enemy state to repatriate them. 7 Prohibition of Refoulement Under International Human Rights Law As alluded to above, in addition to the rules provided under contemporary international humanitarian law regarding the transfer to another Power and the repatriation to the home country, the principle of non-refoulement under international law needs to be considered in all cases where the Detaining Power needs to consider handing over deserters to the authorities of another country. While the principle of non-refoulement represents one of the cornerstones of international refugee protection and, as such, will be discussed in Chapter 4 in the context of the rights and obligations of countries of refuge,186 refoulement is also prohibited under international human rights law,187 which stipulates that states cannot transfer persons within their control to another state if there is a real risk that they may face violations of certain fundamental rights there.188 If applicable, this prohibition would protect deserters irrespective of their legal status under international humanitarian law and would preclude any form of transfer whatsoever, with the formal description of the transfer being irrelevant.189 As such, it is pertinent to any type of removal of deserters from the Detaining Power to another Power – be it as part of repatriation to the deserter’s home country following a formal request of extradition, or another form of transfer to the home country or another Power. The human rights-based principle of non-refoulement can be found both in global and regional human rights treaties, but it has developed and continues 186 See below Chapter 4, A v. 187 Regarding the applicability of international human-rights law in times of armed conflict and its relationship to international humanitarian law, see above in Chapter 2, B. 188 Emanuela-Chiara Gillard, There is no place like home: states’ obligations in relation to transfers of persons, irrc, Vol. 90, No. 871, 2008, p. 704. 189 Cordula Droege, Transfers of detainees: legal framework, non-refoulement and contemporary challenges, irrc, Vol. 90. No. 871, 2008, p. 671; Emanuela-Chiara Gillard, There’s no place like home: states’ obligations in relation to transfers of persons, irrc, Vol. 90. No. 871, 2008, p. 712.

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to evolve mainly through judicial and quasi-judicial interpretation,190 with the most dynamic developments occurring at the European level through the jurisprudence of the European Court of Human Rights. (a) The Prohibition of Torture and the Principle of Non-refoulement Non-refoulement in the human rights context initially derived from the prohibition of torture.191 At the global level, the principle is most expressly provided for in Article 3 (1) of the 1984 Convention against Torture, Cruel, Inhuman and Other Degrading Treatment or Punishment, which states: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Furthermore, the principle of non-refoulement is an implicit component of Article 7 iccpr. This article, which primarily establishes a prohibition of torture and cruel, inhuman or degrading treatment or punishment, has been interpreted by the Human Rights Committee in its General Comment No. 20 of 1992 as containing an absolute prohibition of refoulement. Based on this interpretation, the Human Rights Committee has consistently held that States party to the ccpr are prohibited from exposing individuals to “the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”192 Differences in formulation aside, the prohibition of refoulement in the case of a risk of torture, cruel, inhuman or degrading treatment or punishment can also be found at the regional level, in particular Article 5 (2) achr,193 Article 5 achpr,194 and Article 3 echr.195 190 Christopher Michaelsen, The Renaissance of Non-refoulement? The Othman (Abu Qatada) Decision of the European Court of Human Rights, iclq, Vol. 61, 2012, p. 753. 191 Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 155. 192 See: Human Rights Committee, General Comment 20/44 of 3 April 1992 [Prohibition of Torture], para 9; and Human Rights Committee, General Comment No. 31, (2004), para. 12. 193 Article 22 para.8 of the American Convention on Human Rights provides: “In no case may an alien be deported or returned to a country, […] if in that country his right to life or personal freedom is in danger of being violated.” 194 African (Banjul) Charter on Human and Peoples’ Rights, adopted 27 June 1981, oau Doc. CAB/LEG/67/3 rev. 5; 21 I.L.M. 58 (1982), entered into force 21 October 1986. 195 European Convention on the Protection of Human Rights and Fundamental Freedoms, entered into force on 3 September 1953, 213 unts 221, Euro. ts No. 5. For a detailed overview of the jurisprudence of the European Court of Human Rights with respect to

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Article 3 echr provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” While the European Commission on Human Rights had already stated in earlier decisions that Article 3 echr contained a non-refoulement component,196 the European Court of Human Rights has gone further and, ever since the groundbreaking judgment in the case of Soering v. United Kingdom in 1989,197 it has consistently held that Article 3 echr prohibits the removal of a person from the territory of a State Party (through expulsion or extradition) if there are substantial grounds for believing that the individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another state. In a long line of cases, the European Court of Human Rights has since reaffirmed the extra-territorial effect of Article 3 echr and held that the absolute prohibition provided by Article 3 echr against ill treatment equally engaged the responsibility of Contracting States not only in extradition cases but also in expulsion cases.198 Article 3 echr applies therefore to all and any forms of removal or return, including extradition, expulsion, or rendition.199 Importantly, this also includes the removal to an intermediary country in circumstances in which there is a danger of subsequent refoulement of the individual to a territory where the person would be at risk.200 Furthermore, the European Court of Human Rights has repeatedly held that the prohibition of non-refoulement provided by Article 3 echr is non-derogable and absolute, and allows no exception whatsoever.201

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non-refoulement, see: Rainer Hofmann, Der Europäische Gerichtshof für Menschenrechte und Extraordinary Renditions, pp. 449–458. Amerkane v. uk (no. 596/72), 16 yb 356 (1973). Soering v. uk (No. 14038/88), Judgment 7 July 1989. The case concerned the extradition by the United Kingdom of a suspected murderer to the United States, where he faced a genuine threat of capital punishment. The Court held that the so-called “death-row-phenomenon” amounted to inhumane and degrading treatment and punishment. Cruz Varas v. Sweden (No. 15576/89), Judgment 20 March 1991, para. 69; Vilvarajah v. uk (No. 13163/87), Judgment 30 October 1991, para. 102; Chahal v. uk (197), 23 ehrr 413, Court Judgment para. 80. Rainer Hofmann, Der Europäische Gerichtshof für Menschenrechte und Extraordinary Renditions, p. 450; Guy S. Goodwin-Gill and Raza Husain, Overview of History and Current Scope of Non-Refoulement, and Current Attacks on the Principle, 2006, p. 16; Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of non-refoulement: Opinion, p. 157. T.I. v. United Kingdom, Application No 43844/98, Decision as to Admissibility, 7 March 2000, [2000] inlr 211 at 228. European Court of Human Rights, Tomasi/France, Judgment of 27.08.1992, Series A, Vo. 241 (1993), § 115; Ahmed v. Austria, Judgment of 17.12.1996. Reports 1996-VI, No. 26, p. 2195,

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(b) Extending the Principle of Non-refoulement to Other Grounds Specific treaties and instruments have extended the prohibition of nonrefoulement to cases of threats of other violations of human rights protected under these instruments: It is expressly referred to in Article 16 (1) of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, which precludes refoulement of persons if this may expose them to a risk of enforced disappearance.202 The un Principles on the Effective Prevention and Investigation of ExtraLegal, Arbitrary and Summary Executions, which affirm the absolute prohibition of extra-judicial and arbitrary execution in wartime, provide that no one shall be involuntarily returned or extradited to a country where there are substantial grounds for believing that he or she may become a victim of extralegal, arbitrary, or summary execution in that country.203 The Human Rights Committee has specified in its General Comment No. 31 of 2004 that Article 2 iccpr, which requires that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control, also entailed an obligation not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Articles 6 and 7 iccpr.204 The Human Rights Committee thus extended the protection from refoulement to cases where there was a risk of a violation of the right to life. In the past, such a violation of the right to life has been seen, for example, in the imposition of the death penalty without guarantee of fair trial.205 In 2003, the Human Rights Committee went even further when it held that “for countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, these countries may not remove, either by deportation or extradition, individuals from their

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3 40. Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of non-refoulement: Opinion, p. 162. un General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, United Nations, Treaty Series, vol. 2715, un Doc.A/61/448. General Assembly Resolution 44/162 of 15 December 1989. Human Rights Committee General Comment No. 31, Nature of the General Legal Obligation Imposed on States party to the Covenant, 26 May 2004, un Doc. CCPR/C/21/ Rev.1/Add.13, para. 12. Human Rights Committee, General Comment on Article 6, un Doc. HRI/GEN/1/Rev.1, 29 July 1994, para. 7.

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j­ urisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out.”206 The view of the Human Rights Committee confirms a trend towards preventing states that have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, or which have ratified Optional Protocols No. 6 or No. 13 to the European Convention of Human Rights from transferring a person to a state where he or she would face the death penalty.207 The jurisprudence of the European Court of Human Rights regarding the death penalty and refoulement developed in a similar vein. The European Court of Human Rights found in the 2003 case of Öcalan v. Turkey that the imposition of the death penalty in case of manifestly unfair trials amounted to inhuman treatment per se and, as such, a violation of Article 3 echr, even if the sentence was not executed in the end.208 In 2010, given the evolving prohibition of the death penalty in all circumstances with the ratification of Protocol 13 to the echr,209 the European Court of Human Rights went further and confirmed the responsibility of States party to the echr for the imposition and execution of the death penalty in another state, thus linking Article 2 echr to the principle of non-refoulement. The case of Al-Saadoon and Mufdhi v. United Kingdom210 concerned the question of whether the transfer of two Iraqi nationals who were detained by British Forces in Iraq into the custody of Iraqi authorities violated their rights under Articles 2, 3, 6, 13 and 34 echr and Article 1 of Protocol No. 13. The Court held that “Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another state where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there.”211 206 Human Rights Committee, Roger Judge v. Canada, Communication No. 829/1998, Views of the Human Rights Committee of 20 October 2003, para. 10.4. 207 Emanuela-Chiara Gillard, There’s no place like home: states’ obligations in relation to transfers of persons, irrc, Vol. 90. No. 871, 2008, pp. 721–722. 208 ECtHR, Öcalan v. Turkey, Application No. 46221/99, Judgment of 12 March 2003, para. 213, confirmed by the Judgment of the Grand Chamber of 5 May 2005. 209 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances, cets No.: 187, which, as of 14.07.2014, had been ratified by all Member States of the Council of Europe, with the exception of Russia, Armenia and Azerbaijan. 210 ECtHR, Al-Saadoon and Mufdhi v. The United Kingdom, Application No. 61498/08, Judgment of 2 March 2010. 211 ECtHR, Al-Saadoon and Mufdhi v. The United Kingdom, Application No. 61498/08, paragraph 123.

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Given the ruthless and extra-judicial punishments that deserters have received in past conflicts and considering the fact that the death penalty is foreseen in many national military laws for the offence of desertion in wartime, the extension of the principle of non-refoulement to cases beyond the threat of torture is important. For States party to the echr, at least, this means that the principle of non-refoulement can be invoked in cases of transfer to a country where the offence of desertion is punishable by death. It is not possible in the context of this study comprehensively to present the wealth of case law and jurisprudence of the different human rights supervisory bodies and courts regarding the application of the principle of non-refoulement.212 Whether or not the principle applies in an individual case has to be determined in accordance with the relevant human rights treaties213 and the jurisprudence of the respective human rights supervisory bodies. The European Court of Human Rights is currently expanding the list of relevant risks furthest and thus it provides the highest standards of protection from refoulement. It shall suffice for the purposes of this study to recognise that the enemy party is prevented from repatriating or transferring deserters to another country in all those cases where there are serious grounds for believing that the deserter would be subjected to ill treatment in the form of torture or cruel, inhuman or degrading treatment or punishment. Furthermore, if the enemy party is a member of the Council of Europe, it would also be prevented from repatriating or transferring deserters if they might face the death penalty for their military offence. Finally, the principle of non-refoulement would also apply in all cases where there are serious grounds for believing that deserters would be subjected to extra-judicial executions or arbitrary punishments, as has been expressly called for in the un Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. Importantly, the prohibition of refoulement means the enemy party is also prevented from transferring or extraditing the deserter to any country which might then subsequently expel or return the deserter to his home country, or to any other country where he or she faces a real risk of ill treatment. As such, the prohibition of refoulement under human rights law goes further than the 212 See Emanuela-Chiara Gillard, There’s no place like home: states’ obligations in relation to transfers of persons, irrc, Vol. 90. No. 871, 2008, pp. 716–722, with multiple references to the jurisprudence of the human rights supervisory bodies. 213 While Article 1 of the Convention against Torture requires the ill treatment to have been ‘inflicted by or at the instigation of or with the consent and acquiescence of a public official or other person acting in an official capacity’, the ccpr and the echr do not contain definitions of the torture or ill treatment that is proscribed.

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prohibition on transfer under international humanitarian law, which limits the responsibility of the Detaining Power to assure treatment conforming to the Geneva Conventions by the transferee Power but not in any subsequent transfer destinations. (c) Evidentiary Standards Regarding the standard of proof that is required to trigger the application of the principle of non-refoulement, the Committee Against Torture, in its General Comment No. 1, has provided a non-exhaustive list of criteria that are to be taken into account when considering the merits of a claim to non-refoulement, which include the human rights record of the destination state, the question of prior ill treatment or torture and the vulnerability of the claimant due to political or other activity.214 The Human Rights Committee’s General Comment No. 20 (1992) refers to “the danger of” torture or cruel, inhuman or degrading treatment or punishment.215 In subsequent cases, the Human Rights Committee referred to a “real risk” of a violation of the rights under the ccpr216 and, as such, used a 214 Committee against Torture, General Comment No. 1, Implementation of Article 3 of the Convention in the context of Article 22, 21 November 1997, un Doc. A/53/44, Annex ix, para. 8: The following information, while not exhaustive, would be pertinent: (a) Is the State concerned one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights (see article 3, paragraph 2)? (b) Has the author been tortured or maltreated by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity in the past? If so, was this the recent past? (c) Is there medical or other independent evidence to support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had after-effects? (d) Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered? (e) Has the author engaged in political or other activity within or outside the State concerned which would appear to make him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be expelled, returned or extradited to the State in question? (f) Is there any evidence as to the credibility of the author? (g) Are there factual inconsistencies in the claim of the author? If so, are they relevant? 215 Human Rights Committee, General Comment No. 20 (1992), HRI/HEN/1/Rev.1, 28 July 1994, para. 9. 216 Human Rights Committee, Chitat Ng v. Canada, Communication No. 469/1991, Views of the Human Rights Committee of 5 November 1993, at para. 14.1.

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f­ormulation that more or less corresponds to the one used by the European Court of Human Rights:217 The European Court of Human Rights established in the Soering case that the principle of non-refoulement applied in cases where it can be shown that the person concerned would be exposed to a “real risk of being subjected to torture or to inhuman or degrading treatment or punishment.” In subsequent cases, such as Chahal218 and T.I.,219 the European Court of Human Rights relied on the formulation provided in Article 3 of the Torture Convention, defining the threshold for the application of the principle as one “where substantial grounds have been shown for believing that [the individual] would face a real risk of being subjected to’ torture, etc.”220 While the Court initially demanded evidence of concrete risk for the individual concerned, more recently it held that in cases of “most extreme cases of general violence,” a real risk of ill treatment can be established “simply by virtue of an individual being exposed to such violence.”221 In subsequent cases, the European Court of Human Rights confirmed that the individual-risk prognosis can be obsolete in cases where the country of destination is characterised by most extreme cases of general violence.222 (d) Diplomatic Assurances While the prohibition of refoulement under international human rights law is absolute and no exception or derogation is allowed, it can nevertheless be circumvented by relying on a diplomatic assurance of the receiving state that the person will not be tortured or otherwise subjected to ill treatment forbidden under the relevant human rights instruments. Diplomatic assurances have gained particular importance in connection with the so-called war on terror,

217 Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 161. 218 Chahal v. uk (197), 23 ehrr 413, Court Judgment para. 80. 219 T.I. v. United Kingdom, Application No 43844/98, Decision as to Admissibility, 7 March 2000, [2000] inlr 211, para. 206. 220 Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 161. 221 NA v. the United Kingdom (No. 41015/04), Judgment of 19 November 2011, para. 115. The case concerned the forced return of a Tamil to Sri Lanka, where he had been repeatedly imprisoned and mistreated in the 1990s. 222 For a more detailed discussion of the recent European case law in this respect, see: Rainer Hofmann, Der Europäische Gerichtshof für Menschenrechte und Extraordinary Renditions, pp. 453–455.

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specifically the wish of states to extradite alleged terrorists to countries that are known to engage in torture.223 The use of diplomatic assurances has been met with considerable scepticism and criticism in the legal literature,224 but the European Court of Human Rights and the Human Rights Committee have neither condemned nor approved the practice outright and have instead made decisions on a case-bycase basis by examining the particular circumstances of each individual situation. A prominent case before the European Court of Human Rights is the case of the alleged terrorist Omar Othman, who resisted his extradition to Jordan from the u.k. The European Court held, however, that the diplomatic assurances received from Jordanian authorities made it possible for the British Government to extradite Omar Othman, despite knowing that torture was “widespread and routine” in Jordanian prisons.225 With references to prior case law the European Court listed criteria for the reliability of diplomatic assurances, which included questions regarding the specificity of the diplomatic assurance in the case at hand, the role and function within the government of the person giving the assurance, past experiences regarding diplomatic assurances and their reliability, and whether there was an effective system for protection from torture in place in the assuring state.226 Diplomatic assurances might be a helpful tool among war allies to facilitate the transfer of prisoners of war and protected persons from the Detaining Power to another Power, including deserters. However, it is unlikely that they will ever become a major tool in the handling of the repatriation of deserters who risk the death penalty, torture and ill treatment in their home country, given that the diplomatic relations between the enemy party and the deserters’ home country will be seriously hampered during and in the immediate aftermath of an armed conflict. 223 See overview of the case law in: Rainer Hofmann, Der Europäische Gerichtshof für Menschenrechte und Extraordinary Renditions, p. 455–457. 224 Christopher Michaelsen, The Renaissance of Non-refoulement? The Othman (Abu Qatada) Decision of the European Court of Human Rights, iclq, Vol. 61, 2012, p. 752; Human Rights Watch, Empty Promises: Diplomatic Assurances No Safeguard against Torture, April 2004; Human Rights Watch, Still at Risk, Diplomatic Assurances No Safeguard Against Torture, April 2005; Guy S. Goodwin-Gill and Raza Husain, Overview of History and Current Scope of Non-Refoulement, and Current Attacks on the Principle, pp. 17–22. See also references in footnote 77 of Rainer Hofmann, Der Europäische Gerichtshof für Menschenrechte und Extraordinary Renditions, p. 455. 225 ECtHR, Omar Othman v. the United Kingdom (No. 8139/09), Judgment of 17 January 2013, paras. 188 and 198. 226 Ibid, paras. 188 and 189.

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8 The Treatment Afforded to Women Deserters The number of women in armed forces has been steadily rising over the past decades, with women increasingly taking on combat roles.227 The case of u.s. deserter Kimberley Rivera, who was sentenced to 14 months in prison following her desertion during the Iraq War, is a good illustration of how the issues discussed in this study can concern both male and female soldiers.228 International humanitarian law is based on the general premise of equality of all people, irrespective of race, religion, ethnic background and sex, and an explicit expression of this principle can be found in all four Geneva Conventions and the first two Additional Protocols.229 The study of a ‘gender perspective’ on international humanitarian law, which, for a long time, was a niche topic addressed mainly by feminist scholars,230 has recently been included in the general discussions held by governments and international organisations on protection needs during armed conflicts.231 While a comprehensive discussion of this topic and the feminist critique is beyond the scope of this study,232 this section provides a brief overview of the rules within the Third and Fourth Geneva Conventions that specifically address the treatment to be afforded to women and which, as such, concern women deserters. (a) Women Deserters Who are Prisoners of War Regarding women prisoners of war, Article 14 (2) gc iii demands that: Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. 227 Helen Durham and Katie O’Byrne, The dialogue of difference: gender perspectives on international humaitarian law, irrc, Vol. 92, No. 877, 2010, p. 37. 228 See above Chapter 2, A ii 3(a). 229 See Article 12 gc i, Article 12 gc ii, Article 16 gc iii and Article 27 gc iv, as well as Article 75 of ap i and Article 4 of ap ii. 230 Laura Sjoberg, Gender, War, & Conflict, p. 3. 231 See the Report Summary of the International Expert Meeting ‘Gender Perspectives on International Humanitarian Law’, 4–5 October 2007, Stockholm, Sweden; icrc, Addressing the Needs of Women Affected by Armed Conflict, Geneva, 2004; both available at: http:// www.icrc.org. 232 For this, see the summaries and references in: Helen Durham and Katie O’Byrne, The dialogue of difference: gender perspectives on international humaitarian law, irrc, Vol. 92, No. 877, 2010, pp. 34–37; Jody M. Prescott, nato Gender Mainstreaming and the Feminist Critique of the Law of Armed Conflict, The Georgetown Journal of Gender and the Law, Vol. xiv, No. 1, 2013, pp. 93–103.

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As such, gc iii demands, on the one hand, that special needs of women resulting from their biological sex are to be considered and, on the other, that they must not be discriminated against for having taken on a combatant role. The principle of equality is also specifically repeated with regard to the execution of penalties in Article 88 gc iii, which prohibits the sentencing of women prisoners of war to a punishment more severe than a male member of the armed forces of the Detaining Power. Additional provisions regarding the treatment of women prisoners of war can be found in Articles 25, 29, 97 and 108 gc iii regarding the conditions of internment and confinement in case of disciplinary punishment. Article 25 (3) gc iii and Article 29 (2) gc iii state that separate dormitories and conveniences shall be provided for men and women. Similarly, Article 97 (4) gc iii and Article 108 (2) gc iii provide that women prisoners of war shall be confined separately from male prisoners of war and shall be under the immediate supervision of women if undergoing disciplinary or penal punishment. The duty of the Detaining Power to separate women deprived of their liberty from men has been characterised as a rule of customary international humanitarian law.233 Not mentioned in gc iii, however, is a right of women prisoners of war to be searched by female officers only,234 or the right to have female guards in the general dormitories.235 Finally, it is interesting to note that the Model Agreement concerning Direct Repatriation and Accommodation in Neutral Countries of Wounded and Sick Prisoners of War includes a provision which foresees the accommodation of women prisoners of war in a neutral country if they are pregnant, or mothers with infants and small children. Furthermore, the Model Agreement foresees the direct repatriation of women prisoners of war in case of “chronic grave gynaecological conditions as well as normal pregnancy and obstetrical disorder” if accommodation in a neutral country is impossible.236 233 Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, Rule 119, Vol. 1, p. 431. 234 Helen Durham and Katie O’Byrne, The dialogue of difference: gender perspectives on international humaitarian law, irrc, Vol. 92, No. 877, 2010, p. 39. 235 Jody M. Prescott, nato Gender Mainstreaming and the Feminist Critique of the Law of Armed Conflict, The Georgetown Journal of Gender and the Law, Vol. xiv, No. 1, 2013, p. 97. 236 Article 110 gc iii, Annex i “Model Agreement concerning direct repatriation and accommodation in neutral countries of wounded and sick prisoners of war,” A. 3 (f) and B. 7.

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(b) Women Deserters Who are Protected Persons Given that, during armed conflicts, the vast majority of women remain part of the civilian population, it is not surprising that gc iv contains the highest number of provisions regulating the treatment and protection to be afforded to women. Article 27 gc iv specifically demands that: Women shall be especially protected against any attack of their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Apart from this, numerous provisions further specify the protection of civilian women during armed hostilities relating to issues ranging from the protection of convoys in which they might move to safer locations to the free passage of food and supplies for expectant mothers. It shall suffice here to point out some of the rules regarding the internment of female protected persons, given the likelihood that a belligerent party will consider it necessary to intern enemy deserters while the conflict is ongoing: According to Article 85 gc iv, women internees who are not part of a family are to be housed separately from men and should be provided with separate hygiene facilities.237 Similarly to the provisions in the Third Geneva Convention, interned women, while being punished, have to be confined in separate quarters from men and supervised by women. In addition to the rules for women prisoners of war, women internees can only be searched by women.238 Finally, while not under a duty to do so, belligerent parties “shall endeavour” to conclude agreements regarding the return of pregnant women and mothers with infants and young children to their home country, or a neutral country.239 iii Conclusion The fundamental basis for the rules of international humanitarian law is the general recognition that persons who fall into the hands of another party during an armed conflict need to be protected from revenge, ill treatment, or discrimination by this party. While the rules prior to the 1949 Geneva Conventions regulated the treatment of specific groups only and left the treatment of deserters to the discretion of the belligerent parties, contemporary international humanitarian law 237 Articles 49 and 85 gc iv. 238 Article 97 gc iv. 239 Article 132 gc iv.

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aims to establish a comprehensive protection system regulating the treatment of all persons from adverse or neutral parties who come into the power of a belligerent during an international armed conflict. Based on this ‘no-gap’ approach, this section examined which legal status is to be accorded to deserters who find themselves in the power of an enemy party during an international armed conflict. It has been shown that according to the rules provided by the Third and Fourth Geneva Conventions and the Additional Protocol i, the legal status of deserters in enemy hands differs depending on the factual circumstances of how the deserter comes into the enemy’s power: those deserters who ‘fall into enemy hands’ against their will are to be treated as prisoners of war, while those who voluntarily go there as defectors or simply in search of protection have the status of a protected person. While it might seem odd that deserters shall receive such distinctly different legal status and treatment under international humanitarian law, this distinction is justified by the very different protection needs that deserters have depending on the nature of the conflict. In armed conflicts where enemy lines are drawn according to religion or ethnicity and where the fact that deserters have stopped fighting does not change the enemy’s attitude towards them, prisoner of war status can provide the best protection for deserters from ill treatment by the enemy party. In any combat situation, “the first moments after capture are breathtakingly dangerous,”240 as the life of the captured person depends entirely on the ability and willingness of the opponent to – in a split second – shift from legitimately killing or aiming to kill the enemy to protecting a person who no longer poses a threat. As experiences from past conflicts show, hatred for the enemy means that the likely alternative to prisoner of war status would be immediate execution.241 The absolute and unconditional duty to grant prisoner of war status to persons who fall into a party’s power against their wish thus represents the best bet to save the deserter’s life. A closer examination of the rules regarding the treatment of prisoners of war under the Third Geneva Convention shows, however, that some of these rules lead to undesirable results when applied to deserters. Having been 240 Robert C. Doyle, The Enemy in Our Hands, University Press of Kentucky, 2010, p. ix (foreword). 241 See the statement of one of the Afghani leaders during the Soviet-Afghanistan War of 1979–1989 when asked about the lack of Soviet soldiers in prisons: “Hatred for the Russians is just too great. Many Mujahedin have lost their families or homes through communist terror: their first reaction when coming across a Russian is to kill him.” Referenced in: Alexander Gillespie, A History of the laws of War, Vol. 1: The Customs and Laws of War with Regards to Combatants and Captives, p. 232.

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designed with the soldier in mind who remains loyal to his home country and the principal danger to whom is posed by the enemy power in whose custody he finds himself, they fail to take account of the particular situation of deserters. This is true with regard to the rules on internment and the Information Bureaux, and especially with regard to the rules and provisions on repatriation after the cessation of hostilities for women prisoners of war in case of pregnancy. By comparison, the provisions of the Fourth Geneva Convention for protected persons generally allow for greater flexibility, and this flexibility is to the advantage of deserters. As protected persons, deserters have the option of fighting on the enemy side; if interned, they have to be kept away from former comrades and they may be able to avoid punishment in their home country by not returning at the end of hostilities and instead remaining with the enemy, or going to a third country. A solution to this at times unsatisfactory result cannot be found in the lex lata of contemporary international humanitarian law. Rather, state practice shows that exemptions have been allowed on an ad-hoc basis when legitimate protection needs of deserters so required. While this was laudable in individual cases, such an approach makes the protection of deserters dependent on the political will of the parties involved rather than established legal standards. Regarding the most problematic issue, i.e. repatriation, protection is nowadays provided through international human rights law, specifically the principle of non-refoulement, which forbids the transfer of a person in cases where he or she might face violations of certain fundamental rights. As such, political agreements on forced repatriation or the handing over of individual deserters while turning a blind eye to the treatment they are likely to receive from their home country is no longer accepted under contemporary international law. If adhered to by belligerent parties in the future, the principle of non-refoulement marks an important step towards preventing the atrocious and extra-legal punishment that deserters have received in the past. Despite the fact that desertion has occurred in every armed conflict from ancient to modern times, states have not seen a need to address it in a mutually binding way – unlike other “unpopular” issues, such as mercenaries and spies. Most likely, there are a number of reasons for this: the issue is seen to be of only minor importance on the scale of problems that armed conflicts pose; there is a general unwillingness within the military to face up to this thorniest of disciplinary problems within its forces; and finally, states might simply prefer the flexibility of handling deserters depending on the nature of the conflict, who is involved and what is at stake for their own army.

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The Deserter in a Country of Refuge Fleeing to a country not involved in the conflict might offer deserters better prospects of protection from the hostilities, capture by the enemy, or punishment by the home country than any attempt to go into hiding in the conflict zones or home country. In such cases, deserters might attempt to reach the territory of another state and seek asylum there, in order to await the end of the conflict and observe political developments at home. This chapter examines the rights and obligations of a country of refuge with respect to foreign deserters who seek protection on its territory, in particular regarding a return of these deserters to their home country – be it in the form of rejection, expulsion, or as part of formal legal assistance through extradition. The examination is based on the premise that the country of refuge is not taking part in the international armed conflict and that it wishes to stay out of it. Part A examines under what circumstances the country of refuge is obliged to grant foreign deserters protection as refugees or on humanitarian grounds based on the nature of the armed conflict they are fleeing from and/or the treatment that they would face if returned to their home country. In addition to international refugee status according to the Geneva Refugee Convention and its 1967 Protocol and regional instruments, complementary protection schemes are examined that have been developed in order to address the protection needs of people who do not qualify as refugees. Following this, Part B and Part C explore rules of international law underlying the relationship between the country of refuge and the deserters’ home country. After briefly discussing the international legal norms on neutrality in Part B, Part C discusses principles of contemporary extradition laws regarding the existence of an obligation to extradite a deserter for the purposes of criminal prosecution and sentencing. A

The Deserter as a Beneficiary of International Protection

A number of different legal concepts can be relevant and relied upon as a basis for the protection provided for deserters in a country of refuge. While the deserter him- or herself is likely to approach the foreign authorities requesting ‘asylum’, a distinction needs to be made between the concepts of territorial

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asylum, recognition as a refugee under the Geneva Refugee Convention and recognition as a beneficiary of complementary protection based on human rights and other treaty law: While the granting of territorial asylum is dependent on the national laws of the respective country, the most elaborate international framework for the protection of refugees is established by the Geneva Refugee Convention and its 1967 Protocol.1 These two instruments have been ratified by almost all countries of the world and have had a major influence on the domestic refugee legislation of signatory states.2 In addition to international refugee status, however, states increasingly provide ‘complementary protection’ based on international human rights obligations for persons who are outside the scope of the Geneva Refugee Convention but who are facing a threat to their life, safety or freedom.3 At the universal level, such complementary protection stems from the un Convention against Torture and the un Covenant on Civil and Political Rights. Regionally – for example, for the Member States of the Council of Europe – the main treaty-based source for complementary protection has been the absolute prohibition by Article 3 echr on torture and inhuman or degrading treatment or punishment. Complementary protection has been further manifested in the European Union concept of ‘subsidiary protection’, as defined in the 2004 and 2011 Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (“European Qualification Directive”).4 1 un General Assembly, Draft Convention relating to the Status of Refugees, 14 December 1950, A/RES/429; The 1967 Protocol removed the initial geographical and temporal limitations on the refugee definition in Article 1 A (2) of the Geneva Refugee Convention, see: Article 1 ii of the 1967 Protocol relating to the Status of Refugees, entry into force on 4 October 1967, 606 unts 267, in the following referred to as “1967 Protocol.” As of 4 March 2014, 145 States are party to the Geneva Refugee Convention and 146 States are party to the 1967 Protocol, numbers available at: https://treaties.un.org/pages/ParticipationStatus.aspx. 2 Kay Hailbronner, Principles of International Law Regarding the Concept of Subsidiary Protection, Definition and Scope of Application, p. 3. 3 Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, p. 285; Kay Hailbronner, Principles of International Law Regarding the Concept of Subsidiary Protection p. 4. 4 Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, Official Journal of the European Union, L304/12; the 2004 Qualification Directive was recast in 2011,

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The European Qualification Directive is the first supranational protection regime that harmonises the standards of eligibility for refugee status and subsidiary protection, and the content of the protection granted for the Member States of the European Union.5 In the following, these legal concepts will be examined further with respect to their eligibility requirements and the protection that deserters could expect when fleeing abroad. I Territorial Asylum 1 Right to Grant Asylum The right of states to grant asylum to aliens on their territory is part of their territorial sovereignty and is recognised in customary international law.6 This being so, granting asylum does not, in principle, constitute on the part of the state in question a hostile act or interference in the internal affairs of another state. This was specifically stressed in the Preamble to the 1967 United Nations Declaration on Territorial Asylum,7 as well as Article ii No.2 of the Convention on the Specific Aspects of Refugee Problems in Africa of 20 June 1974.8 If a state decides to grant asylum to a deserter, be it in response to an obligation under domestic law or on humanitarian grounds, this cannot be interpreted as taking sides, of a compromise of the state’s neutrality. Nor does it constitute unacceptable interference in the conflict, or an attack on the deserter’s home country.

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see: Directive 2011/95/EU of 13 December 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, Official Journal of the European Union, 20.12.2011, L 337/9, in the following referred to as “European Qualification Directive.” Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, p. 325; See also: Article 1 of the Qualification Directive. Kay Hailbronner, Asylum, Territorial, in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 2012, Vol. 1, p. 720, Margin No. 25; Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, p. 414. “Recognizing that the grant of asylum by a State to persons entitled to invoke Article14 of the Universal Declaration of Human Rights is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State,” unga resolution 2312 (xxii) adopted on 14 December 1967. “The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State.” Article 2 No. 2 of the 1969 Convention on the Specific Aspects of Refugee Problems in Africa, entry into force on 20 June 1974, 1000 unts 46.

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2 Duty to Grant Asylum More important from the deserter’s perspective is the question whether the third country is under a duty to grant asylum, or, in other words, whether the deserter might have an individual right to asylum. However, a state has no duty under customary international law to allow aliens either to reside on its territory, or even enter it temporarily.9 Such a duty cannot be derived from treaties guaranteeing the free movement of persons, either, as these treaties generally refer to being on the territory of a signatory state lawfully and make the lawful presence within a territory a condition of free movement.10 Equally, international human rights law does not contain any subjective right to asylum. Article 14 (1) of the Universal Declaration of Human Rights provides that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” However, this is not the same as granting the individual a right to asylum in international law, nor does it equate to a duty under international law for states to grant asylum.11 Equally, it has been held that the European Convention on Human Rights does not contain a right to political asylum or residence.12 Rather, the conditions for obtaining asylum and the form of the right to asylum are governed by the legal systems of the individual states and, in some cases – as, for example, for the members of the European Union – by international treaties regulating conditions for asylum. Generally speaking, many states base their asylum law on the principles of international refugee law. The comments below regarding refugee status may therefore provide at least an indication of the standards applied by states when deciding on a deserter’s application for asylum. In summary, under international law the third country in whose territory a deserter seeks refuge during an armed conflict has the right to grant asylum to 9

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Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, pp. 357–358; Kay Hailbronner, Asylum, Territorial, in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 2012, Vol. 1, p. 722; See also BVerfGE 54, 341 (356). See, for example, Article 12 (1) ccpr: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” Kay Hailbronner, Asylrecht und Völkerrecht, in: Beitz/Wollenschläger (eds.), Handbuch des Asylrechts, Vol. 1, p. 75; the German Federal Constitutional Court equally rejected the idea of a right of the individual to asylum in: BVerfGE 54, 341 (356). This is established case law of the European Court of Human Rights; see, for example, ECtHR, Vilvarajah a.o. v. uk, 30.10.1991, No. 13163/87, Para. 102; ECtHR, Chahal v. uk, 15.11.1996, No. 22414/93, Para. 73.

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the deserter and, if it decides to do so, this does not constitute a hostile act against the deserter’s home country, nor interference in the internal affairs of that state. At the same time, there is no duty to grant asylum, and the deserter does not have a right to be granted asylum by the third country. II Refugee Status According to the Geneva Refugee Convention The general starting point for protection under the Geneva Refugee Convention is the determination whether or not an individual qualifies for refugee status, as defined in Article 1 A (2) of the Geneva Refugee Convention. According to this Article, individuals must fulfil four criteria to qualify for the status: (1) They are outside the country of their nationality; (2) They are unable or unwilling to avail themselves of the protection of that country or return to it; (3) The above is due to a well-founded fear of persecution in the country of their nationality; (4) The persecution of which they are afraid is related to their race, religion, nationality, membership of a particular social group, or political opinion. Other circumstances or reasons for fleeing a country have no bearing on recognition as a Convention refugee. In particular, fear of and the quest for protection from the general effects and dangers of an armed conflict, which frequently lead to streams of people taking flight, do not constitute relevant forms of persecution and cannot result in the granting of refugee status to the persons concerned within the meaning of the Geneva Refugee Convention.13 For deserters who flee to a country that is not part of the armed conflict, the first two criteria of refugee status do not present a problem. They are outside their country of nationality and the fact that they are fleeing from their home country’s reach makes it clear that they do not want to avail themselves of its protection. The other two criteria, however, require a closer look: the following sections examine whether and under what conditions a deserter can claim that he has a well-founded fear of persecution and that this persecution is 13

In contrast to this, the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (“oau Convention”) applies a broader definition and provides that “the term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.” See Article 1 Nr.2 oau Convention, 1000 unts 46.

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related to one or more of the Convention grounds, i.e. to his or her race, religion, nationality, membership of a particular social group, or political opinion. 1 Well-founded Fear of Persecution The term ‘persecution’, on which refugee status hinges, is not defined in the Geneva Refugee Convention itself and there is no universally accepted definition of the term. The unchr Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“unhcr Handbook”)14 provides guidance on the criteria for refugee status and explains the various components of the definition set out in the Geneva Refugee Convention and the 1967 Protocol. Regarding the term ‘persecution’, the unhcr Handbook states that persecution would be established in cases where an individual is at risk of a threat to life or freedom, as well as other serious violations of human rights, or other serious harm on account of race, religion, nationality, political opinion, or membership of a particular social group.15 The Statute of the International Criminal Court contains a legal definition of persecution, which confirms this connection between refugee law and the principles of international human rights protection: ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.16 Persecution has been defined similarly in the European Qualification Directive. Article 9 (1) (a) states that “in order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Persecution can therefore be spoken of in the case of discriminatory and illegal restrictions on, or the denial of, all those rights that are seen as being 14 15 16

In the following, referred to as “unhcr Handbook,” HCR/IP/4/Eng/REV.1, unhcr 1979, Re-edited January 1992. unhcr Handbook para. 51–53; unhcr Guidlines No.10, para. 14. See Article 7 (2) (g) icc Statute.

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fundamental or elementary and which must be granted in order to respect human dignity. As outlined above, a state’s right both to compel nationals to perform military service and to punish them for violations of military duties is recognised under international law as part of the sovereign right to self-defence and with it the right to maintain and secure military forces. A deserter whose only reason for desertion was a “general dislike” of military service or a general fear of combat and who, with his flight to another country, is trying to avoid lawful punishment, cannot claim to have a well-founded fear of persecution, because neither the obligation to serve in the military nor the punishment for the military offence of desertion can, as such, be regarded as an illegal restriction of a fundamental human right. This has recently been reiterated in the unhcr Guidelines on International Protection No. 10 regarding the treatment of deserters and persons avoiding military service, which supplement the unhcr Handbook in light of evolving state practice and the restrictions placed on military service by international law.17 As states generally have a right to punish the dereliction of military duties, the criminal prosecution of the military offence of desertion does not amount to persecution unless other factors are present.18 At the same time, being a deserter does not exclude the possibility of persecution either, if and when other factors are present.19 In the following, it will be examined what these factors are and in what circumstances the deserter’s fear of being punished by his home country amounts to a well-founded fear of persecution. (a) Absolute Conscientious Objection to all Military Service Perhaps the most straightforward scenario of all is the one in which the desertion is based on an absolute conscientious objection to all military service that could not be expressed otherwise.20 As has been outlined in Chapter 2, the right to absolute conscientious objection is increasingly recognised as part of the right to freedom of thought, 17 18

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unhcr Guidelines No. 10, para 31. Atle Grahl-Madsen, The Status of Refugees in International Law, p. 219; James Hathaway, The Law of Refugee Status, p. 169; vg Ansbach, döv 1977, 637; Thomas Discher, Wehrdienstentzug als Asylgrund, 5 zar 1998, p. 221. unhcr Handbook para. 40; James C. Hathaway, The Law of Refugee Status, p. 179; Fritz Franz, Asylrecht für Deserteure, jr 1974, p. 98; Thomas Discher, Wehrdienstentziehung als Asylgrund, 5 zar 1998, p. 217. As defined in Chapter 2, the absolute conscientious objector refers to the true pacifist, i.e. to an individual whose conscience prevents him or her from ever engaging in military service of any kind.

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conscience and religion, as provided for in Article 18 ccpr. Despite the fact that the exact contours of the right still vary considerably from region to region, and state practice differs significantly regarding the implementation of this right, this study argues that a universally recognised minimum scope of protection for absolute conscientious objectors has developed, which requires states with a compulsory military service to provide for the possibility of an exemption or alternative service for persons whose deeply and genuinely held religious or other beliefs forbid the performance of any type of military service.21 In line with this minimum scope of protection argued here, the unhcr Handbook states that a person may be able to establish a claim to refugee status if his or her religious convictions are not taken into account by the authorities of his country in requiring him or her to perform military service.22 The unhcr Guidelines No. 10 further explain that, if at no point during the draft or compulsory conscription process, it is possible for the person to express his or her absolute conscientious objection, and no effective and non-discriminatory alternatives to the military service are made available, the person might legitimately exercise his or her objection through draft evasion or desertion.23 In its resolution 1998/77, the Commission on Human Rights supported this approach when it encouraged states to “grant asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service when there is no provision, or no adequate provision, for conscientious objection to 21 The unhcr generally advocates for a broader understanding of the right to conscientious objection by recognising that persons performing military service might develop conscientious objection and by postulating that the right to conscientious objection applies to absolute, partial, or selective objectors, volunteers as well as conscripts before and after joining the armed forces, during peace time and during armed conflict. See unhcr Guidelines No. 10 para.10 and unchr Res. 1998/77, escor Supp. No. 3 at 253, u.n. Doc. E/ CN.4/1998/77 (1998). To this day, however, only a small number of countries, which includes The Netherlands, Japan, the United States, the United Kingdom and Germany, recognise the right of professional soldiers to claim conscientious objection while in active service, while the vast majority of countries restrict this possibility to those conscripted and to a certain time during the drafting process. See: War Resisters’ International, World Survey of Conscription and Conscientious Objection to Military Service, 1998 (updated 2005), available at http://www.wri-irg.org/co/rtba/index.html. 22 unhcr Handbook, para. 172. 23 unhcr Guidelines No. 10, para. 4; Thomas Spijkerboer, Subsidiarity in Asylum Law. The Personal Scope of International Protection, p. 35, who reports on Dutch case law and policy.

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­military service.”24 While the Commission referred to conscientious objectors only, and thus to those individuals who were able to flee to another country before having been formally integrated into the military, the same must apply to those who only manage to flee after they have been drafted. A leading case in the u.s. in this regard is the case of Canas-Segovia v. ins,25 which showed that u.s. courts are generally amenable to asylum claims from unrecognised absolute conscientious objectors.26 In Canas-Segovia, the United States Court of Appeals for the Ninth Circuit addressed the status of a Jehovah’s Witness who fled to the u.s. to avoid mandatory conscription in El Salvador, claiming that his religion forbade any type of military service. The court held that not recognising absolute conscientious objection might amount to persecution when the applicant’s objection is based on his religion.27 With this finding, the court largely followed the opinion expressed by unhcr, which, acting as amicus curiae, submitted a brief in which it clarified its position further regarding the protection of absolute conscientious objectors under the Geneva Refugee Convention: Especially where there is no provision for alternative service, the imposition of significant sanctions for refusing to perform military service based on conscience, including sincere religious or moral objections, may be considered persecution within the meaning of the 1951 Convention and the 1967 Protocol.28 With regard to the status of deserters it can therefore be concluded that in those cases where a deserter claims that desertion represented an expression of his or her absolute conscientious objections to military service, it needs to 24

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Commission on Human Rights Resolution 1998/77, para. 7, available at: http://www .unhchr.ch/Huridocda/Huridoca.nsf/0/5bc5759a53f36ab380256671004b643a?Open document. Canas-Segovia, 902 F.2d at 720. Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight?, 31 Va. J. Int’l L. 1990–1991, p. 448. Kuzas argues that this rationale can be extended to all absolute conscientious objectors whose objection might be based on secular grounds. See: Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight? 31 Va. J. Int’l L. 1990–1991, p. 450. Guy S. Goodwin-Gill, Susan Timberlake and Ralph G. Steinhardt, Canas-Segovia v. United States Immigration and Naturalization Service. Brief Amicus Curiae of the Office of the United Nations High Commissioner for Refugees, published in: International Journal of Refugee Law, ijrl, Vol. 2, 1990, p. 412.

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be examined whether his or her home country made effective provision for an alternative service or exemption that is punitive neither in nature nor in the way it is being implemented.29 If the option of such alternative service or exemption did not exist at any time during the drafting process, the desertion constituted the only and thus legitimate way to express the right to absolute conscientious objection, and any punishment for desertion would amount to persecution, meaning the deserter could claim a well-founded fear of persecution. (b) Selective Conscientious Objection to a Specific Military Engagement More frequent, but also more complex and controversial from a refugee status perspective, are those cases where the deserter claims to have deserted because he or she wanted to avoid serving in a specific armed conflict rather than in the military in general.30 These asylum claims are usually based on the allegation that the war itself is unjust because of violations of the jus in bello or the jus ad bellum, and that the dictates of the person’s religious or moral conscience therefore forbade participation in this particular armed conflict. As outlined in Chapter 2, it is currently not universally recognised that the right to freedom of thought, conscience and religion provided for in Article 18 ccpr entails a right of the individual to selective conscientious objection. It follows that there is currently no established duty under international law on states to allow for selective or partial conscientious objection in their domestic legal systems. Nevertheless, the unhcr Handbook advocates for protection for selective objectors by stating that in cases where “the type of military action, with which an individual does not wish to be associated is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft evasion could, in light of all other requirements of the definition, in itself be regarded as persecution.”31 According to the unhcr, the individual should not be subject to punishment for desertion if desertion represented the only way to follow the dictates of their conscience and avoid a personal moral guilt stemming from participation in an armed conflict that violates ­international law. The unhcr Guidelines No. 10 further specify that “where an armed conflict is considered to be unlawful as a matter of international law 29 30

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unhcr Guidelines No. 10, paras 17–20. As already mentioned, this type of selective or partial objection forms the core of the refusenik movement in Israel, with refuseniks objecting to serving in the Occupied Palestinian Territories but not to serving in the Israeli military in general. unhcr Handbook, paras. 170–171; unhcr Guidelines No. 10, para. 10.

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[in violation of jus ad bellum], […] the applicant would need to establish that his or her objection is genuine, and that because of his or her objection, there is a risk of persecution.”32 While this approach finds support in the legal literature,33 state practice differs and a vast body of case law shows that deserters claiming asylum based on a claim of selective conscientious objection are generally not granted refugee status under the Geneva Refugee Convention. The cases discussed below will illustrate this further: (1)

u.s. Deserters Objecting to the Vietnam War

Well-known examples of selective objectors seeking protection as refugees in other countries are those who deserted from the u.s. military during the Vietnam War.34 Many of the reported 507,000 draft-evaders and deserters requested asylum in Canada. At the time, the Canadian Prime Minister, Pierre Trudeau, announced that Canada was to be “a refuge from militarism,” and tens of thousands of American draft-dodgers and deserters took refuge there.35 If their units were stationed in Europe before or in between deployments to the war theatres, u.s. deserters also turned to Western European countries, in particular Sweden, which received an estimated 500 to 1,000 deserters during the Vietnam conflict.36 Despite being extremely sympathetic to u.s. draft-evaders and deserters during the Vietnam War, these countries did not grant refugee status under the Geneva Refugee Convention and 1967 Protocol but provided protection by issuing other types of residence permits – for example, a “landed-immigrant” status in Canada and “humanitarian asylum” in Sweden.37 As these residence permits provided fewer rights than a grant of asylum under the Geneva Refugee 32 33

34 35 36

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unhcr Guidelines No. 10, para. 23. James C. Hathaway, The Law of Refugee Status, p. 180 ff; Peter Van Krieken, Yugoslav War Resisters: Heroes or Villans, p. 15; Thomas Discher, Wehrdienstentziehung als Asylgrund, 5 zar 1998, pp. 217–218; Reinhard Marx, Völkervertragliche Abschiebungshindernisse für Flüchtlinge, p. 110; Christa Luterbacher, Die Flüchtlingsrechtliche Behandlung von Dienstverweigerung und Desertion, p. 181, with additional references in footnote 15. See also above at Chapter 2, A ii 1 (b) (2). bbc News, Head-to-head: Refuge for deserters?, 10 June 2008, Available at: http://newsvote .bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/americas/7444116.stm. See: Peter Van Krieken, Yugoslav War Resisters, Heroes or Villains?, awr-Bulletin 1996, No. 1–2, p. 31 and Hans G. Franck, Issues of Individual Responsibility in the Vietnam War, p. 34. Douglas W. Jones and David L. Raish, American Deserters and Draft Evaders: Exile, Punishment or Amnesty? Harv. Int’l. l.j., Vol. 13 (1972), p. 96.

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Convention and 1967 Protocol, some draft-evaders and deserters litigated their claims, but were unsuccessful.38 Case law indicates that West Germany took the same approach and refused to grant refugee status to u.s. deserters from the Vietnam War. In 1972, the Bavarian Administrative Court rejected the refugee claim of a u.s. deserter who claimed that the Vietnam War violated international law and that his desertion had been the only way to follow the dictates of his conscience, given that the u.s. would not recognise his conscientious objection with regard to this particular war. The Court held that an asylum claim could not be based on a selective conscientious objection to a particular war, as the punishment of a selective conscientious objector did not constitute persecution. The Court went on to remark that the nature of military service demanded that a soldier had to take part in military engagements that his home country deemed necessary and that it was not up to the individual soldier to decide whether he wished to participate in a particular military engagement or not.39 Dictates of conscience regarding a particular war could be relevant only in those extreme cases where the military operations are recognisable to all as a crime against humanity,40 which, according to the Bavarian Administrative Court, was not the case in Vietnam. (2) The Krotov Case

More recent case law shows that courts still shy away from granting selective conscientious objectors refugee status under the Geneva Refugee Convention: An example is the case of Krotov v. Secretary of State for the Home Department,41 in which a Russian deserter sought refuge in the u.k. as a selective conscientious objector to the war in Chechnya. Andrey Krotov, a Russian citizen, had been called up for military service in 2000 and, upon receiving three months’ training, was sent to Grozny to fight in the Chechen War. Mr Krotov deserted shortly afterwards, fled to the u.k. and applied for refugee status under the Geneva Refugee Convention and 1967 Protocol. He based his asylum request on, among other things, his conscientious objection to the war 38 39 40

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Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight?, 31 Va. J. Int’l L. 1990–1991, p. 459 with reference to further case law. See decision of the Bavarian Adminstrative Court (Bayerischen Verwaltungsgerichtshof), viii. Senat of 14. December 1972, No. 39 viii 71, p. 18 (unpublished, on file with the author). Decision of the Bavarian Administrative Court of 14 December 1972 (Entscheid des Bayer. Verwaltungsgerichtshofs), viii. Senat, No. 39 viii 71, p.19 (unpublished, on file with the author). ak (Russia-Chechnya deserter) Russia (‘ak’) [2004], United Kingdom Immigration Appeal Tribunal (‘ukiat’) 00294.

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in Chechnya because of the illegitimate use of armed force by Russia, which, as he claimed, amounted to a violation of the jus ad bellum. The Immigration Appeal Tribunal in the u.k. excluded the possibility of refugee status for selective conscientious objection. The Tribunal insisted that for a conscientious objector to be granted protection as a refugee, the applicant had to object to military service in general and not just to a particular conflict,42 thus limiting the protection for conscientious objectors to absolute conscientious objectors.43 (3)

u.s. Deserters Objecting to the Iraq War

Finally, noteworthy case law comes from the court proceedings relating to the u.s. deserters who evaded serving in Iraq following the invasion in 2003 and who sought refuge in third countries, again predominantly Canada.44 With the u.s. Armed Forces consisting entirely of career soldiers since the abolition of the draft in 1973, desertion rates during the Iraq war were generally much lower than during the Vietnam War. Nevertheless, estimates refer to 5,500 desertions by the end of 2004, 8,000 desertions by March 2006, and 25,000 desertions by March of 2008, while other sources report 19,390 desertions between 2001 and 2006 alone.45 Of these, between 225 and 600 deserters are presumed to have fled to Canada, with the majority living underground and only a small group of approximately 20 deserters having officially applied for refugee status in Canada.46 The first case of a u.s. deserter in connection with the Iraq War that has been decided by the Canadian Federal Court of Appeal following the denial of 42 43

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Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight? 31 Va. J. Int’l L. 1990–1991, p. 459. The Immigration Appeal Tribunal also rejected the third ground by ruling it nonjustifiable, see: Elizabeth Chadwick, No Comity in Error: Asylum and ‘Wars of Choice’, The Military Law and the Law of War Review, Vol. 44, No. 1/2, 2005, p. 55. Regarding Mr Krotov’s second claim, see below under (c). For a comprehensive overview of the Canadian case law resulting from refugee-status claims of u.s. deserters in Canada, see: Patrick J. Glen, Judicial Judgment of the Iraq War: United States Armed Forces Deserters and the Issue of Refugee Status, 26 Wisconsin International Law Journal, 2008–2009, pp. 965–1032. Estimates reported by: Patrick J. Glen Judicial Judgment of the Iraq War: United States Armed Forces Deserters and the Issue of Refugee Status, 26 Wisconsin International Law Journal, 2008–2009, pp. 965–1032, p.966 with further references. Patrick J. Glen, Judicial Judgment of the Iraq War: United States Armed Forces Deserters and the Issue of Refugee Status, 26 Wisconsin International Law Journal, 2008–2009, pp. 966–967.

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refugee status by the Immigration and Refugee Board of Canada and the Court of Appeal was that of Jeremy Hinzman.47 Jeremy Hinzman had signed up with the u.s. military in late 2000. In August 2001, based on experiences during his basic training and first months of military service, Mr Hinzman applied internally for conscientious-objector status pursuant to the relevant u.s. Army regulation. While his application was being processed, Mr Hinzman served a tour of duty in Afghanistan but was assigned to non-combatant roles only. During this period, his application for conscientious-objector status was denied on the basis that he had not shown himself to be an absolute objector. When he learned in January 2004 that his battalion was to be deployed to Iraq, he deserted and fled with his wife and child to Canada, where he immediately applied for refugee status under the Geneva Refugee Convention. The Federal Appeals Court rejected the argument that Mr Hinzman was to be granted refugee status as a selective conscientious objector by stating that conscientious objection was protected only if the person was opposed to war in general. The Court refused to consider evidence regarding the legality of the U.S-led invasion of Iraq,48 noting that “when one is considering the case of a mere foot soldier, […] the focus of the inquiry should be on the law of jus in bello, that is, the international humanitarian law that governs the conduct of hostilities during an armed conflict.”49 Canadian courts have affirmed this position on selective conscientious objection in later cases,50 and have generally ruled out the possibility that soldiers who are not in the highest leadership positions could ever rely on a conscientious objection based on a violation of the jus ad bellum. Selective conscientious objection to serving in an unlawful conflict was also an issue in the case of a u.s. deserter who requested refugee status in Germany under the European Qualification Directive. André Shepherd, an Apachehelicopter mechanic who served a first term of duty in Iraq in 2004/2005, 47 See: Hinzman v. Immigration and Refugee Board, File TA4-01429 and Hinzman v. Canada (Minister of Citizenship & Immigration), [2007] 1 f.c.r. 561 (Can.); Hinzman & Hughey v. Min.of Cit. & lmmigr., [2007] f.c.a. 171, para 35 (Can.). See also the cases of Brendan Hughey [Hinzman & Hughey v. Min.of Cit. & lmmigr., [2007] f.c.a. 171, (Can.)]; Corey Glass [Glass (prra), [2008] f.c. 881 (Can.)] and Joshua Key [Key, [2008] f.c. 838 (Can.),] who all became public faces of the u.s. deserter movement in Canada. 48 Patrick J. Glen, Judicial Judgment of the Iraq War: United States Armed Forces Deserters and the Issue of Refugee Status, 26 Wisconsin International Law Journal, 2008–2009, p. 997. 49 Hughey v. Min. of Cit. & Immigr., [2006] f.c. 421, paras. 30–45. 50 See, for example: Key et al, TA5-03896/97/98/99/00/01 (Immigr. & Refugee Bd., Oct. 20, 2006) (Can.).

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deserted from his unit in Katterbach, Germany in April 2007, when he learned that he would be deployed to Iraq for a second time. After spending more than a year in hiding, he eventually applied for asylum in Germany in August 2008, stating in his claim that he deserted (1) to avoid being forced to commit war crimes in Iraq; and (2) to avoid service in what he alleged to be an unlawful conflict.51 The German Federal Office for Migration and Refugees rejected his claim, stating a well-founded fear of persecution could only be assumed in those cases where the participation in a military action would indeed lead to a violation of basic rules of human conduct, or where the military action had been condemned by the international community. In his appeal to the Bavarian Administrative Court, Shepherd relied mainly on the argument that he deserted in order to avoid personal criminal responsibility.52 As of July 2015, the appeal against the rejection by the German Federal Office for Migration and Refugees was pending before the Bavarian Administrative Court. The Bavarian Court had referred the case to the European Court of Justice for a preliminary ruling regarding the interpretation of Article 9 (2) (e) of the Qualification Directive, which the European Court delivered on 26 February 2015.53 (4)

The Requirement of International Condemnation

While the case law regarding u.s. deserters from the Iraq War indicates that Canadian courts generally reject the idea of granting protection to partial or selective conscientious objectors, other courts have been less categorical and, in reference to the wording of the unhcr Handbook, have accepted the possibility of providing refugee status for selective conscientious objectors if the armed conflict in question has been internationally condemned.54 A well-known example of such condemnation is the globally supported condemnation of apartheid by the international community, which was 51

52 53

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For a detailed presentation of the facts of the case, see: Dr. Reinhard Marx, Asylantrag für den us-Verweigerer André Shepherd, Part i, I., available at: http://www.connection-ev.de/ article-362 . Christian L. Deichert, Is Germany the New Canada? One American Deserter’s Request for German Asylum, 205 Mil. L. Rev. 2010, pp. 94–95. See also the discussion of this case in this Chapter 4, A iii 3. Andre Lawrence Shepherd v. Federal Republic of Germany, Case C-472/13, Judgment of the Court (Second Chamber), 26 February 2015, available at: http://curia.europa.eu/jcms/ jcms/j_6/. Cecilia M. Bailliet, Assessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Georgetown Immigration Law Journal, 2005–2006, p. 354.

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repeatedly expressed by the un General Assembly and other un organs from the 1960s.55 In its Resolution 33/165 of 1978, the un General Assembly called on states to grant asylum to conscientious objectors and deserters who had been forced to leave their country to avoid active participation in and support for the apartheid regime, and to treat them as refugees within the meaning of international refugee law.56 Other examples of international condemnation are the international community’s reactions to the wars in the former Yugoslavia in the 1990s57 and the war in Kosovo in 1998/1999, which led to numerous un Security Council Resolutions, the ordering of a weapons embargo, the creation of commissions of inquiry and, last but not least, the establishment of the icty. For deserters from these conflicts the question of refugee status under the Geneva Refugee Convention remained undecided, however, as deserters and draft-evaders seeking refuge in European countries generally benefited from the temporary protection system that was established under the leadership of the unhcr in order to deal with the mass influx of people fleeing the war in the former Yugoslavia.58 While the international condemnation has been fairly straightforward in the cases mentioned above, the legality of a military action and its condemnation by the international community tends to be controversial and politically sensitive in the majority of cases. The unhcr Handbook does not specify further who should have the authority to issue such condemnation and what level of acceptance should be required. .

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For a detailed discussion of the condemnation of apartheid and its relevance for international refugee protection, see Christa Luterbacher, Die flüchtlingsrechtliche Behandlung von Dienstverweigerung und Desertion, pp. 239–245. u.n.g.a. Res. 33/165, December 20, 1978: “[…]grant asylum or safe transit to another State, in the spirit of the Declaration on Territorial Asylum, to persons compelled to leave their country of nationality solely because of a conscientious objection to assisting in the enforcement of apartheid through service in military or police forces; and [urges] Member States to consider favourably the granting of such persons of all the rights and benefits accorded to refugees under existing legal instruments […].” Following declarations of independence by, initially, Slovenia and Croatia and, later, Bosnia-Herzegovina, the war in the former Yugoslavia began in 1991 and lasted until the signing of the Dayton Peace Agreement in 1995. Peter Van Krieken, Yugoslav War-Resisters, Heroes or Villains, awr-Bulletin, Vol 34, 1996, N. 1–2, p. 33. unhcr, A Comprehensive Response to the Humanitarian Crisis in the former Yugoslavia, 24 July 1992, un doc. HCR/IMFY/1992/2; Christa Luterbacher, Die flüchtlingsrechtliche Behandlung von Dienstverweigerung und Desertion, pp. 285–286 and 298–305.

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u.s. courts have taken a restrictive approach and have limited the granting of refugee status for selective conscientious objectors to those cases where the condemnation has been issued by an intergovernmental body, such as the United Nations. In the case of m.a. v. i.n.s.,59 the u.s. Court of Appeals for the Fourth Circuit rejected that condemnation could be inferred from reports by non-governmental organisations and held that an official condemnation by an international governmental body was required. The case concerned a deserter from El Salvador, who had based his claim to conscientious objection on reports from Amnesty International and School of the Americas Watch that documented atrocities committed by El Salvador’s military forces.60 The legal literature has rightly pointed out that economic and diplomatic factors influence the decision of governments and international institutions in issuing a condemnation.61 The un Security Council, in particular, renders political rather than legal decisions and, in many cases therefore, it cannot agree on condemnation of a particular military conflict, as was the case with Darfur, for example.62 Insisting on an official condemnation by governmental or intergovernmental bodies rather than relying also on reports from respected non-governmental institutions, such as Amnesty International and Human Rights Watch, could result in a denial of protection for selective conscientious objectors in practically all cases.63 (c) Avoiding Personal Criminal Responsibility The deserter’s claim of a well-founded fear of persecution might also be based on the allegation that the means and methods of warfare employed by the home country violated international law, and that a continuation of the military service would have forced him or her to participate in the commission of war crimes. Despite often being raised together with a claim to selective conscientious objection in practice, the two grounds have to be clearly distinguished: while the selective conscientious objector claims a well-founded fear 59 60 61

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m.a. v. i.n.s., United States Court of Appeals, Fourth Circuit, 899 F.2d 304 (1990). Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight?, 31 Va. J. Int’l L. 1990–1991, p. 462, citing the case of ma., 899 F.2d at 312. Cecilia M. Bailliet, Asssessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Georgetown Immigration Law Journal, 2005–2006, p. 354. Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Paragraph 9, Margin No. 211. Christa Luterbacher, Die flüchtlingsrechtliche Behandlung von Dienstverweigerung und Desertion, pp. 230–231 with additional references.

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of persecution for doing what he or she feels morally obliged to do, namely end his or her participation in an illegal war, the argument here concerns punishment for doing something that the soldier is legally obliged to do, namely to refrain from participating in the commission of crimes under international law. (1)

Criminal Responsibility under International Criminal Law

It was held in Chapter 2 that if and when running away from an armed conflict is the only feasible option to avoid personal criminal responsibility under international criminal law, the punishment of a deserter by the home country would be unlawful, as it would, in fact, amount to punishing him or her for acting in accordance with international law. In principle, this finding is mirrored in international refugee law: The unhcr Handbook generally states that where “the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.”64 The new unhcr Guidelines No. 10 further specify that a deserter has a well-founded fear of persecution if there is a “reasonable likelihood” that he or she would be forced to commit acts or bear responsibility for acts that violate standards prescribed by international humanitarian law, international criminal law and human rights law, as applicable.65 In support of extending the scope of protection of the Geneva Refugee Convention to those who fear punishment for avoiding personal criminal liability, reference is made to the exclusion clause of Article 1 F (a) of the Geneva Refugee Convention, which excludes from protection those individuals in respect of whom there are serious reasons for considering that they have committed crimes against peace, war crimes, or crimes against humanity, or who are guilty of acts contrary to the purposes and principles of the United Nations. It is argued that, as the Geneva Refugee Convention clearly establishes an obligation on individuals to refrain from violating international law during an armed conflict, its protection must be extended to those who exercise the restraint expected from them.66 At European Union level, this approach was first endorsed by the Council of the European Union in a joint position on the harmonised application of the 64 65 66

unhcr Handbook, para. 171. unhcr Guidelines No. 10, paras. 26 and 27. Ibid, para. 22.

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definition of the term ‘refugee’ in Article 1 of the Refugee Convention, which declared: Refugee status may be granted […] in cases of punishment of conscientious objection or deliberate absence without leave and desertion on grounds of conscience if the performance of his military duties were to have the effect of leading the person concerned to participate in acts falling under the exclusion clauses in Article 1F of the Geneva Convention.67 Persons facing punishment for refusing to participate in or commit one of the crimes listed in the exclusion clauses are therefore deemed to be refugees. This principle was reaffirmed in the European Qualification Directive, which, in Article 9 ii (e), specifically lists the prosecution or punishment for refusal to perform military service in a conflict as an act of persecution, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion, as set out in Article 12 (2) of the European Qualification Directive.68 (2)

Standards of Proof

While the link between a well-founded fear of persecution and punishment for the refusal to commit acts that fall within the scope of the exclusion clause is generally recognized, the standard of proof for such claims remains unclear and case law shows that it has been difficult for applicants to establish that a ‘reasonable likelihood’ or ‘concrete risk’ of being forced to participate in acts leading to criminal responsibility existed in the individual case. 67

68

See : Joint Position of 4 March 1996 (96/196/JHA), available at: http://eur-lex.europa.eu/ smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31996F 0196&model=guichett. Article 12(2) of the Qualification Directive excludes persons from being a refugee “where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.”

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The unhcr Guidelines state that the finding of a reasonable likelihood requires both an evaluation of the armed conflict as such, as well as of the particular role that the deserter him- or herself had in the military, in particular whether he or she had a supporting or combatant role.69 These questions were at issue before the Immigration Appeal Tribunal in the u.k. in the case of the Russian deserter Andrey Krotov, referenced above.70 While the court dismissed Krotov’s claim regarding his right to selective conscientious objection, the Immigration Appeal Tribunal granted Krotov’s asylum claim with respect to his allegation that he would have been forced to participate in the commission of war crimes.71 The Tribunal specified that “breaches of basic rules of human conduct” mentioned in Paragraph 171 of the unhcr Handbook referred to violations of international law, international humanitarian law, and human rights that are committed on a systematic basis as an aspect of deliberate policy, or as a result of official indifference to the widespread actions of a brutal military. The Tribunal further noted that an applicant must demonstrate that there is some risk to him in particular that he will be personally involved in such acts, as opposed to a more generalised assertion of fear or opinion based on reported examples of individual excesses of the kind that almost inevitably occur in the course of armed conflicts.72 The Immigration Appeal Tribunal found that in Krotov’s case, these requirements were met. According to the evidence before it, breaches of the basic rules of human conduct were sufficiently widespread in the Chechen War that it could be inferred that the appellant was at a real risk of being required to participate in such acts, that he would have been formally or informally punished for any refusal to do so, and that fear of the consequences was a significant part of his claim for asylum.73 In contrast, a reasonable likelihood of being required to participate in acts leading to criminal responsibility was denied in the Dutch case of a Vietnamera deserter from the Atlantic fleet of the u.s. Navy who had never been to Vietnam and who had never even been faced with a concrete risk of being transferred there.74 69 70 71

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unhcr Guidelines No. 10, paras. 28 and 30. ak (Russia-Chechnya deserter) Russia (‘ak’) [2004], United Kingdom Immigration Appeal Tribunal (‘ukiat’) 00294. Mr Krotov’s third claim regarding an unlawful use of force was deemed non-justifiable, see: Elizabeth Chadwick, No Comity in Error: Asylum and ‘Wars of Choice’, The Military Law and the Law of War Review, Vol. 44, No. 1/2, 2005, p. 55. Patrick Glen, Judicial Judgment of the Iraq War: United States Armed Forces Deserters and the Issue of Refugee Status, 26 Wis. Int’l l.j. 2008–2009, p. 988. ak, ukiat 00294m, para. 31. Ralph Waver had originally applied for asylum in The Netherlands based on his objection to United States policy in Vietnam. Upon rejection of his claim, Waver argued, based on

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Interesting in this regard is the Canadian court’s determination in the case of Hinzman v. Immigration and Refugee Board,75 mentioned above. Hinzman, who based his claim on reports of abuse at the u.s. detention facility at Guantanamo Bay, had argued that, if deployed to Iraq, he would have to treat Iraqi prisoners in a similar way.76 The court rejected Hinzman’s claim and noted that such argument required either that it had been established “that the violations of international humanitarian law that have taken place in Iraq rise to the level of being systematic or condoned by the State, and that, therefore, an involvement in the war would amount to complicity in a crime”,77 or that it had been shown that the applicant “would have personally been engaged in, been associated with, or been complicit in acts condemned by the international community as contrary to basic rules of human conduct.”78 The court found that the violations in Iraq were neither systematic nor condoned and that Hinzman had not sufficiently shown that he would have been compelled to commit such violations himself. The Norwegian Immigration Appeals Board used a similar line of argument in rejecting the asylum claims of selective objectors, both deserters and draftevaders, from Israel. The Board noted that the applicants had not shown that they faced a ‘real risk’ of being forced to participate in illegal actions. For this assessment, the Board relied on reports from the Norwegian Embassy in Tel Aviv alleging that alternative solutions were usually sought for objectors (such as non-combat placements), which made their exposure to unlawful actions unlikely.79 his conscientious objection to what he considered to be war crimes committed by American forces in Vietnam. The Judicial Committee, without considering the issue of whether the alleged war crimes were so pervasive as to justify Waver’s conscientious objection, quickly dismissed this argument, pointing out that Waver had never been to Vietnam and that his transfer to the region had never even been contemplated. Case reported in: Kevin J Kuzas, Asylum for Unrecognized Conscientious Objectors to Military Service, Is There a Right Not to Fight?, 31 Va. J. Int’l L. 1990–1991, p. 466, with reference to Oostvogels, Foreign Deserters and Asylum in the Netherlands: The Case of Ralph J. Waver, 4 Neth. y.b. Int’l L. 143, 1973, p. 190. 75 Hinzman v. Immigration and Refugee Board, File TA4-01429 and Hinzman v. Canada (Minister of Citizenship & Immigration), [2007] 1 f.c.r. 561 (Can.). 76 For a recitation of the facts of Hinzman’s case, see paras. 23–51 of the Refugee Board’s decision. 77 See Hinzman v. Canada (Minister of Citizenship & Immigration), [2007] 1 f.c.r. at 609. 78 Hinzman v. Canada (Minister of Citizenship & Immigration), [2007] 1 f.c.r. at 587. 79 Cases (unpublished) of the Norwegian Immigration Appeals Board are reported by: Cecilia M. Bailliet, Asssessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Geo. Immigr. L. J., 2005–2006, pp. 373/374.

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(d) Judicial System used as an Instrument of Persecution Additionally, two scenarios are to be mentioned where a deserter can claim a well-founded fear of persecution, but this persecution is not directly related to the fact they have deserted. The first scenario is where the judicial system of the deserter’s home country is generally used as an instrument of p ­ ersecution and where the punishment of that the soldier for the military offence would be particularly harsh because of his race, religion, nationality, membership of a particular social group, or political opiniion.80 Here, the act of desertion itself is not the basis for the persecution – any other criminal offence might result in the same discriminatory treatment – and the criminal prosecution of the deserter under domestic military law is simply used as an instrument of persecution within the meaning of refugee law.81 This subtle form of persecution, in the form of discriminatory use and, hence, abuse of domestic criminal law, is particularly hard for the victim to prove. It was explicitly mentioned in Article 2 (1) of the 1977 Draft un Convention on Territorial Asylum, which emphasises that both the discriminatory use of laws and deliberately discriminatory legislation can constitute persecution within the meaning of international refugee law.82 Where the deserter’s home country deliberately uses domestic criminal law as a means of persecuting the deserter’s religious or ethnic group, and the punishment for the military offence he or she has committed will be harsher on these grounds, then the deserter is to be seen not only as a person fleeing prosecution for a criminal offence but also as a refugee within the meaning of refugee law.83 80 The unhcr Handbook refers to cases where a deserter or draft-evader “would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group, or political opinion,” see: unhcr Handbook, para. 169. 81 Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Paragraph 9, Margin No. 178–180; see also: Thomas Spijkerboer, Subsidiarity in Asylum Law. The Personal Scope of International Protection, p. 35. 82 Article 2 (1) of the Convention states: “Each Contracting State may grant the benefits of this Convention to a person seeking asylum, if he, being faced with a definite possibility of: (a) a persecution for reasons of race, religion, nationality, memebership in a particular social group, or political opinion, or for reasons of struggle against apartheid or colonialism; or (b) prosecution or punishment for reasons directly related to the persecution set forth in (a) is unable or unwilling to return […],” Text: Report of the United Nations Conference on Territorial Asylum: un doc. A/CONF.78/12 (21 April 1977). 83 James C. Hathaway, The Law of Refugee Status, p. 180.

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This has been affirmed in the unhcr Guidelines No. 10, which stipulate that persecution could be established, for example, if the individual would face disproportionate or arbitrary punishment for his desertion, such as an excessive prison term, corporal punishment, or a violation of the right to nondiscrimination, as well as the right to a fair trial and due process.84 In the case of Jeremy Hinzman, the Immigration and Refugee Board of Canada noted that the more democratic a country is, the more an applicant must establish exceptional circumstances to show that he could not expect a fair and independent judicial process in order for a refugee claim to succeed. Considering the status and internal governance of the United States, the Board rejected Mr Hinzman’s claim that he faced a risk of being denied due process, or that the laws would be applied to him in a discriminatory manner.85 The threshold for a well-founded fear of being denied minimum standards of a fair trial and due process would undoubtedly be met in cases where, during an armed conflict, the deserter’s home country reverts to extra-judicial killings of deserters, as has been reported lately in the conflict in Syria,86 but also in all those cases where a general deterioration during the armed conflict has resulted in the disintegration of administrative and judicial infrastructure of the home country so that the minimum standards of fair trial can no longer be guaranteed. (e) Conditions of Military Service Amount to Persecution Finally, deserters may have a well-founded fear of persecution if they can show that the circumstances of the military service itself expose them to illegal and discriminatory restrictions of fundamental rights.87 In such cases, the fact of desertion and the punishment the deserter is likely to receive for the criminal offence are not directly related to the well-founded fear of persecution; rather, the persecution is taking place independently of the soldier’s desertion, in the form of the treatment meted out to him within the armed forces. The military system of which the soldier is part is being misused in order to subject individual soldiers to discrimination or ill treatment on 84 85 86

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unhcr Guidelines No. 10, para. 14. Patrick Glen, Judicial Judgment of the Iraq War: United States Armed Forces Deserters and the Issue of Refugee Status, 26 Wisconsin International Law Journal, 2008–2009, p. 986. bbc News Middle East, Syria unrest: Dozens of army deserters ´gunned down´, 20 December 2011, available at http://www.bbc.co.uk/news/world-middle-east-16258387?print=true. [accessed on 28.11.2012]; Agence France-Press, Syria forces kill deserters as nato nixes intervention, 21 May 2012, available at: http://reliefweb.int/report/lebanon/syria-forceskill-deserters-nato-nixes-intervention [accessed on 23.11.2012]. Thomas Discher, Wehrdienstentziehung als Asylgrund, 5 zar 1998, p. 220.

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account of their race, religion, nationality, membership of a particular social group, or their political opinion. In the context of an armed conflict, this might also include selecting members of particular groups for exceptionally dangerous missions.88 An example of this type of case can be found in the Soviet recruits who deserted their units and fled discriminatory and abusive treatment within the Soviet military forces. Connection e.V. Offenbach, an association for the care of refugees from war zones, estimated that at the end of 1995, there were up to 3,000 deserters from the successor states to the Soviet Union living in Germany, where they had requested political asylum.89 In a case concerning the asylum claim of a conscientious objector under Article 16 (2) of the German Basic Law, the German Federal Administrative Court has made the following comments regarding persecution in the armed forces: The political motivation for a general measure or regulation, such as compulsory military service, is not always apparent. However, this does not mean that such compulsory military service cannot, in addition to serving its general purpose (which is of no relevance to asylum law), also contain an element of persecution. That would be the case, for instance, if it were also intended to impose political discipline and intimidation upon political opponents in the armed forces, to re-educate dissidents or assimilate minorities against their will. Evidence for such intentions could be seen in the nature of the rules that form the basis for compulsory military service, their practical implementation or their role in the general political system of the organization. The political character of regulations governing military service may become apparent if objectors or deserters are seen as traitors to the cause and hence subjected to disproportionately harsh punishment, assigned to exceptionally dangerous duties or generally ostracized.90 Yet, the discrimination or ill treatment perpetrated against a soldier by individual comrades or superiors can only be seen as persecution within the meaning 88 89 90

James C. Hathaway, The Law of Refugee Status, p. 180; Thomas Discher, Wehrdienstentziehung als Asylgrund, 5 zar 1998, p. 217. See: Süddeutschen Zeitung, 3000 Deserteure aus der Ex-UdSSR in Deutschland, 05.12.1995, p. 2. Judgment of the 9th Senat of 31.03.1981, BVerwG 9 C 6.80 [Author’s tranlsation]; ebenso BVerwGE 69, 320 und BVerwGE 81, 41.

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of refugee law if the state can be held responsible for such treatment. That will be the case where there is a corresponding intent on the part of the state, or where the state approves such behaviour, or where the state is unwilling or unable to prevent such acts by protecting the victims and punishing the perpetrators.91 As such, an assessment regarding the redress that is available to soldiers will be necessary, including the question of whether or not there is a possibility for legal discharge or reassignment to a different unit.92 (f) Summary In summary, for the question of a well-founded fear of persecution two types of scenario have to be distinguished: The first type of scenario concerns situations in which the soldier is illtreated or discriminated against based on his or her race, religion, nationality, membership of a particular social group, or political opinion, independently of the military offence of desertion. Among these situations are cases in which the conditions of military service amount to persecution, or where the judicial system is used as an instrument of persecution and the soldier would suffer harsher punishment for the offence than other soldiers because of his race, religion, membership of a particular group, or his political opinion. Proving these types of persecution can be difficult and courts have looked at the extent to which the discriminatory treatment is legally or de-facto condoned by the state and whether effective redress for the ill treatment would be available within the home country. The more pertinent scenarios for this study, however, are those situations in which a well-founded fear can be established on the fact that the desertion is punished at all: Firstly, a well-founded fear of persecution is generally recognised in cases where performing the military service would involve crimes that would constitute a ground for exclusion from refugee protection under Article 1 F (a) of the Geneva Refugee Convention, or Article 9 ii (e) of the European Qualification Directive. In other words, where the continuation of military service would lead to a liability under international criminal law, in particular for war crimes or crimes against humanity, punishment of the act of desertion would amount to persecution. Despite being generally recognised as grounds for a wellfounded fear of persecution, these cases are difficult to prove for the soldier in light of the evidentiary standards applied by national courts requiring the 91 92

unhcr Guidelines No. 10, para. 32; James C. Hathaway, The Law of Refugee Status, p. 127 f. with additional references. unhcr Guidleines No. 10, paras. 33 and 34.

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soldier to show that he or she personally faced a ‘real risk’ of being required to commit acts that would lead to personal criminal responsibility. Secondly, a well-founded fear of persecution has been accepted in cases where an absolute conscientious objector, who had no option to claim an exemption based on deeply and genuinely held religious or other beliefs, flees his country in order to avoid mandatory conscription into the military. It is argued here that the same has to apply to a person who did not manage to flee before being formally integrated into the army and who subsequently deserts in order to flee from the compulsory military service. If the home country did not at any point in the drafting process provide for a possibility to claim absolute conscientious objection, then the desertion is an expression of the right to absolute conscientious objection protected under Article 18 ccpr, and the punishment for desertion would amount to persecution. In contrast to the scenario of absolute conscientious objection, the case law shows that punishment for desertion does not generally amount to persecution in situations where the deserter expressed selective conscientious objection to a particular military engagement. An exception seems to be recognised only in those situations in which the military engagement in question has been internationally condemned, as was the case regarding the South African apartheid regime and the wars in the former Yugoslavia in the 1990s. In the case law examined, however, the threshold for international condemnation was set high, as national courts required condemnation by an intergovernmental body. Such a requirement is likely to limit the application of this scenario to a few rare cases, where international political agreement can be reached on the illegality of the military action, making this scenario generally dependent on political rather than legal evaluations of a conflict. 2 Persecution Related to Convention Grounds For a claim to refugee status to be successful, the persecution the deserter fears, i.e. the treatment complained of, must relate to one or more of the grounds specified in the Geneva Refugee Convention.93 This means that the persecution happens, at least partially also, because of the deserter’s race, religion, nationality, membership of a particular social group, or political opinion.94 The necessary link to one of the Convention grounds exists in all those cases where the desertion is simply a trigger or an excuse for the discriminatory and 93

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T. Alexander Aleinikoff, The Meaning of ‘Persecution’ in United States Asylum Law, Int’l J. Refugee Law, Vol.3, No.1, p.15. Rebecca M.M. Wallace/Fraser A.W. Janeczko, The Concept of Asylum in International Law, p.146. unhcr Guidelines No. 10, para. 47.

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illegal denial of fundamental rights, such as in cases where the deserter must fear a particularly harsh punishment for the criminal offence because of his religion, race, or nationality, or where by deserting he or she escaped discriminatory treatment within the military on the basis of his or her religion, race, nationality, or political beliefs.95 Less obvious are those cases explored in Sections (a) to (c) above, where the punishment of desertion itself amounts to persecution. For these cases, the two Convention grounds religion and political opinion are particularly relevant. (a) Religion The unhcr Guidelines No. 10 state that the ground of religion in the Geneva Refugee Convention “dovetails with Article 18 iccpr and includes broader considerations of thought and conscience, including moral, ethical, humanitarian or similar views,”96 thus going beyond belief systems and covering notions of identity and way of life.97 In those cases where the desertion expressed an absolute or selective conscientious objection, and, as such, was based on a deeply and genuinely held religious or other belief, the link between the persecution and the ground of religion under the Convention is straightforward.98 Regarding selective conscientious objection, this link to the Convention ground is controversial. As discussed above, national courts have generally rejected the idea that selective conscientious objection to a particular military engagement reflected a decision of conscience.99 However, given the broad notion of religion under international refugee law as encompassing moral, ethical and humanitarian views, it is argued here that there is a link to the Convention ground of religion if the refusal to participate in a military assignment is based on a deeply and genuinely-held belief that the assignment violates the jus ad bellum. The Israeli refuseniks who object to serving in the Occupied Palestinian Territories represent a good example in this regard. While certainly also expressing a political opinion regarding the Israeli Government’s politics in general, the personal choice behind the refusal to serve is based on the moral 95 See Sections 1. (d) and (e) above. 96 unhcr Guidelines No. 10, para. 49. 97 See: unhcr, Guidelines on International Protection No. 6: Guidelines on Religion-Based Refugee Claims under Article 1 A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06, 28 April 2004, paras. 4 to 8. 98 unhcr Guidlines No. 10, para. 49. 99 See Chapter 2, B ii 1(b) above.

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and ethical beliefs of each individual soldier and should therefore be covered by the Convention ground of religion. (b) Political Opinion The ground of political opinion encompasses “any opinion or any matter in which the machinery of the State, government, society, or policy may be engaged.”100 In this regard, it has been stressed that in determining a link to the Convention ground, “the focus of enquiry must always be the existence of a de-facto political attribution by the persecutor in the state of origin, notwithstanding the objective unimportance of the claimant’s political acts, his or her own inability to characterise his or her actions as flowing from any political ideology, or even an explicit disavowal of the views ascribed to him or her by the persecutor.”101 It follows from this that, whether the deserter wished to make a political statement or not, an important factor from the perspective of refugee law is that the desertion is likely to be perceived by the deserter’s home country as a political statement.102 As examples from past conflicts show, during an armed conflict desertion is often elevated to an expression of “an allegiance to a particular political cause,”103 or as a betrayal of the home country as such, and “dissident political opinions”104 are attributed to the deserter. In addition to a link based on the perspective of the state, a link can be established according to the deserter’s motives. In cases of selective conscientious objection, i.e. where the desertion is based on disagreement with the home country’s decision to use force, or with the means and methods applied by the home country during the armed conflict, the desertion expresses a political opinion.105 Similarly, the decision to desert in order to avoid personal criminal responsibility follows the decision to put one’s obligations under international law above the duties under national law to follow military orders 100 unhcr Guidelines No. 10, para. 51, referring to the unhcr Guidelines on Gender-Related Persecution. 101 European Council on Refugees and Exiles, Position on the Interpretation of Article 1 of the Refugee Convention, para. 60, available at: http://www.ecre.org/component/downloads/ downloads/136.html [accessed on 23.03.2014]. 102 Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Paragraph 9, Margin No. 186; Reinhard Marx, Völkervertragliche Abschiebungshindernisse für Flüchtlinge, p. 113; Christa Luterbacher, Die Flüchtlingsrechtliche Behandlung von Dienstverweigerung und Desertion, p. 252. 103 unhcr Guidelines No. 10, paras. 52–54. 104 Guy Goodwin-Gill/Jane McAdam, The Refugee in International Law, p. 104. 105 See, with respect to the case of Andrey Krotov: Elizabeth Chadwick, No Comity in Error: Asylum and ‘Wars of Choice’, The Military Law and the Law of War Review, 2005, Vol. 44, Nos. 1–2, p. 54.

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and is, as such, inherently political and thus clearly linked to the ground of political opinion under the Convention.106 3 Exclusion on the Basis of Article 1 F of the Geneva Refugee Convention Given the desertion scenarios discussed above, particularly those in which violations of international law and the risk of personal criminal responsibility under international criminal law played a decisive role in the decision to desert, it may be necessary in individual cases to examine whether the deserter should be excluded from refugee status according to Article 1 F of the Geneva Refugee Convention, even though he or she may have a well-founded fear of being persecuted for one of the Convention reasons. Article 1 F of the Geneva Refugee Convention obliges states to deny the benefits of refugee status to a person if there are serious reasons for considering that: (a) the person has committed a crime against peace, a war crime, or a crime against humanity; (b) the person has committed a serious non-political crime outside the country of refuge prior to that person’s admission to that country as a refugee; or (c) the person has been guilty of acts contrary to the purposes and principles of the United Nations. The purpose behind the exclusion clauses is to ensure that persons guilty of grave and serious crimes do not abuse the concept of refugee status in order to avoid being held legally accountable for their acts. As such, the unhcr has stressed that the exclusion clauses must be applied carefully in order to safeguard the integrity of the international protection system provided under the Geneva Refugee Convention.107 Given the serious consequences facing the person concerned if he or she is deemed not to be entitled to refugee status, the unhcr advocates for a restrictive interpretation and caution in applying the exclusion clause.108 106 Guy Goodwin-Gill/Jane McAdam, The Refugee in International Law, p. 111. 107 unhcr, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/ GIP/03/05, p. 2, para.2. 108 unhcr Handbook, para. 149; unhcr, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, p. 2, para.2.

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The simple fact that a deserter belongs to a unit known to have committed war crimes cannot, in itself, be taken as “serious reasons for considering” that he himself has taken an active part in war crimes.109 Rather, any presumption of individual responsibility requires cautious inquiries into the organisational structure of the military unit to which the deserter belonged, his or her position or level of responsibility, as well as the applicability of defences such as duress in the individual case.110 Generally, the fact that the deserter has severed relations with his armed forces in response to acts of cruelty should be considered before presuming that he or she is guilty of acts that would deprive a person of protection under the Convention. From a procedural point of view, the examination and possible application of the exclusion clause must not result in border or refugee authorities condemning the person without trial as part of admissibility or accelerated procedures. The examination should therefore be carried out as part of the regular refugee status determination procedure so that proper procedural safeguards can be ensured.111 4 Summary The examination has shown that there is a number of scenarios in which a deserter who flees in search of protection to a third country not involved in the armed conflict is to be granted refugee status under the Geneva Refugee Convention. While this is generally the case where the soldier can show that he or she is persecuted independently of the military offence of desertion for reasons of his race, religion, nationality, political opinion, or membership of a particular social group, the conditions of refugee status are also fulfilled in the following scenarios: • In cases where the desertion represented the only available way to express absolute conscientious objection to military service, the punishment of the 109 Guy S. Goodwin-Gill/Jane McAdam, The Refugee in International Law, p. 169; Atle GrahlMadsen, Status of Refugees in International Law, Vol. 1, p. 277 with references to the jurisprudence of International Military Tribunals. 110 unhcr, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, p. 6, paras.19 and 20; See also: unhcr, Deserters and Persons avoiding Military Service Originating from the Federal Republic of Yugoslavia in Countries of Asylum: Relevant Considerations, 1 October 1999, p. 3, paras.14 and 15. 111 unhcr, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, p. 8, para.31.

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military offence amounts to persecution for reasons of a soldier’s religious beliefs. • In cases where the desertion was based on a decision to avoid participation in a military conflict that violated the laws of armed conflict and which has, accordingly, been internationally condemned by an intergovernmental organisation, the punishment of a deserter amounts to persecution for reasons of the soldier’s political opinions. In addition, it has been argued here that such punishment should also be considered as being for reasons of moral and ethical beliefs, which are covered by the Convention ground of religion. • Finally, the conditions of refugee status are fulfilled if the soldier can show that he or she was at real risk of being required to participate in acts that would have resulted in his or her personal liability under international criminal law. The punishment for desertion in such cases would equal a punishment for a refusal to act in accordance with international law and would thus amount to persecution for reasons of political opinion. In the context of armed conflicts that are characterised by violations of the jus in bello and human rights abuses by the military, the deserter’s claim to refugee status will need to be ‘vetted’ in light of the exclusion clause of Article 1 F (a) of the Geneva Refugee Convention, which aims to prevent abuse of refugee status by persons guilty of grave and serious crimes. A soldier who committed war crimes and crimes against humanity before eventually deserting thus cannot benefit from refugee status. It is important to note, however, that the applicability of the exclusion clause is to be determined as part of the regular refugee status determination procedure and procedural safeguards, such as a right of appeal against the decision to reject the status, have to be guaranteed by the authorities of the country of refuge. iii Refugee Protection at a Regional Level – the European Example Using the Geneva Refugee Convention as a basis, the law on the protection of refugees and asylum has been reaffirmed and expanded upon at the regional level.112 The 1969 Organisation for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (“oau Convention”),113 for example, contains a broader definition of the term ‘refugee’ and includes persons who 112 Rebecca M.M. Wallace/Fraser A.W. Janeczko, The Concept of Asylum in International Law, pp. 147 and 149. 113 1000 unts 46.

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had to leave their homes and seek protection outside their home countries on account of external aggression, occupation, foreign domination, or events seriously disturbing public order. Under the oau Convention persons are eligible for refugee status even though they might not have a well-founded fear of persecution under the Geneva Refugee Convention.114 Equally, the 1966 Bangkok Principles on the Status and Treatment of Refugees eventually adopted in 2001 by the Asian-African Legal Consultative Organisation include in the definition of a refugee persons who flee the violence of an armed conflict or events seriously disturbing public order.115 For the Latin American region, the Cartagena Declaration on Refugees of 1984 advocates for a broader definition of refugee than the Geneva Refugee Convention and recommends that it include “persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances which have seriously disturbed public order.”116 114 Article 1 No.2 of the oau Convention states: “The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.” 115 Asian-African Legal Consultative Organisation (aalco), Bangkok Principles on the Status and Treatment of Refugees (“Bangkok Principles”), 31 December 1966, available at: http:// www.refworld.org/docid/3de5f2d52.html [accessed 23 May 2014]; The Final Text of the aalco’s 1966 Bangkok Principles was adopted on 24 June 2001 at the aalco’s 40th Session in New Delhi. Article 1 (2) and (3) of the Bangkok Principles read: : “2. The term ‘refugee’ shall also apply to every person, who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. 3. A person who was outside of the State of which he is a national or the Country of his nationality, or if he has no nationality, the State of which he is a habitual resident, at the time of the events mentioned above and is unable or unwilling due to wellfounded fear thereof to return, or to avail himself of its protection, shall be considered a refugee.” 116 The Cartagena Declaration was adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia, see: Regional Refugee Instruments & Related, Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984, available at: http://www.refworld.org/docid/ 3ae6b36ec.html.

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While not binding, the Cartagena Declaration has been influential in shaping national asylum laws.117 In Europe, refugee protection and asylum laws have been coordinated and dealt with at the European Union level ever since the entry into force of the Treaty of Amsterdam in 1999, which started a harmonisation process, also referred to as the Common European Asylum System (“ceas”). As part of the ceas, a number of key legislative acts was passed,118 of which the European Qualification Directive is the most relevant for this study. The purpose of the European Qualification Directive is to set harmonised standards for the members of the European Union which correspond to and satisfy the obligations regarding international protection stemming from the Geneva Refugee Convention and European human rights law.119 While comprehensive discussion of the refugee protection provided under the European Qualification Directive would go beyond the purposes of this study, the following paragraphs will address some of the features that are particularly important for the protection of deserters seeking refuge in a Member State of the European Union. 1 Limitation to Third-country Nationals Article 2 (d) of the Qualification Directive defines a refugee as follows: ‘[R]efugee’ means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply.

117 Tillmann Löhr, Die Qualifikationsrichtlinie: Rückschritt hinter internationale Standards? p. 87. 118 See Council Regulation (ec) 343/2003 of 18 February 2003, the so-called ‘Dublin’ Regulation, which determines which eu state is responsible for examining an asylum application; Council Directive 2003/9/EC9 of 27 January 2003 stipulates the reception conditions for asylum-seekers; Council Directive (2004/83/EC) of 29 April 2004 defines qualifications for becoming a refugee or a beneficiary of subsidiary protection (“Qualification Directive”); Council Directive (2005/85/EC) of 1 December 2005 deals with asylum procedures. 119 Tillmann Löhr, Die Qualifikationsrichtlinie: Rückschritt hinter internationale Standards?, p. 47.

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As such, the definition of a refugee under the European Qualification Directive is almost identical to that of Article 1 A (2) of the Geneva Refugee Convention, albeit with one important difference: refugee status under the European Qualification Directive is possible for third-country nationals only, or, put differently, nationals of eu Member States are excluded from refugee status.120 As a result, deserters from an army of one of the eu Member States cannot claim refugee status under the European Qualification Directive, irrespective of the other circumstances surrounding their claim of persecution. 2 Well-founded Fear of Persecution As already mentioned above, Article 9 (1) (a) of the European Qualification Directive defines “persecution” as an act sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 9 (2) of the European Qualification Directive then lists a number of specific acts that might qualify as persecution. Of particular relevance in the current context are Article 9 (2) (c), (d) and (e) of the European Qualification Directive, in as much as they reflect the limitations on the home country’s right to punish deserters under international law discussed in Chapter 2 and correspond to the scenarios discussed for refugee status under the Geneva Refugee Convention above:121 According to Article 9 (2) (c) of the European Qualification Directive, acts of prosecution or punishment that are disproportionate or discriminatory can constitute an act of persecution, as can the denial of judicial redress resulting in a disproportionate or discriminatory punishment according to Article 9 (2) (d) of the European Qualification Directive. Article 9 (2) (e) of the European Qualification Directive finally provides that prosecution or punishment for a refusal to perform military service in a conflict, where performing military service would include crimes or acts corresponding to the grounds for exclusion as set out in Article 12 (2) of the European Qualification Directive, might amount to persecution. Article 12 (2) of the European Qualification Directive states that a third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments 120 For a critical discussion of this limitation in the legal literature, see: Tillmann Löhr, Die Qualifikationsrichtlinie: Rückschritt hinter internationale Standards?, pp. 48–50. 121 See above in Chapter 4, A ii 1(a) to (f).

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drawn up to make provision in respect of such crimes.122 By referring to the crimes under international criminal law, Article 9 (2) (e) of the European Qualification Directive codifies the principles discussed for refugee status under the Geneva Refugee Convention with regard to desertion in order to avoid criminal responsibility: when the participation in war crimes can lead to exclusion from refugee protection, punishment for resisting that participation qualifies as persecution.123 In contrast, Article 9 (2) (e) of the European Qualification Directive does not specifically include the situation in which the refusal to perform military service was based on a conscientious objection.124 The fact that persecution for conscientious objection was not addressed in the European Qualification Directive has been criticised in the legal literature in light of the recognition of the right to conscientious objection at the European level,125 and it has been advocated that Members States should be mindful of the human rights-based definition of persecution when applying Article 9 of the European Qualification Directive.126 As already discussed above, depending on the circumstances of the ­individual case, the fact that the application for refugee status is made by a 122 Article 12 (2) of the Qualification Directive states: “A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.” 123 See also: Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Paragraph 9, Margin No. 205/206. 124 Kay Hailbronner/Simone Alt, Council Directive 2004/83/EC of 29 April 2004, p. 1077. 125 See Article 10 (2) of the Charter of Fundamental Rights of the European Union, which recognises the right to conscientious objection in accordance with the national laws governing that right. For a critical view, see: Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 1, Chapter 2, Paragraph 9, Margin Nos. 196–199; see also references in: Kay Hailbronner/ Simone Alt, Article 9 of Council Directive 2004/83/EC of 29 April 2004, Margin No. 43, p. 1077. 126 Tillmann Löhr, Die Qualifikationsrichtlinie: Rückschritt hinter internationale Standards?, p. 62.

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member of the military during an armed conflict might prompt eu Member States to carry out a review with regard to a possible denial of refugee status under the exclusion clause of Article 12 (2) of the European Qualification Directive. For the substantive and procedural aspects of such an examination, general reference can be made to the discussion of Article 1 F of the Geneva Refugee Convention above.127 3 The Shepherd Case The application of Article 9 (2) (e) and Article 10 (1) (d) of the European Qualification Directive to the case of deserters has been put to the test in the matter of the asylum claim filed by the u.s. soldier André L. Shepherd in Germany in 2008. Since André Shepherd was the first u.s. deserter to claim asylum in a European country under the European Qualification Directive, the decision in his case is going to constitute an important precedent for the interpretation of Article 9 (2) (e) of the European Qualification Directive.128 Mr. Shepherd had deserted from a u.s. military base in Germany in order to avoid redeployment to Iraq, where he feared that he would be forced to participate in war crimes. The German Federal Office for Migration and Refugees rejected his claim for refugee status, stating that he had not specified the concrete violations in which his battalion had been involved in order to establish a personal risk. Mr. Shepherd appealed the decision and, as of July 2015, this was pending before the Bavarian Administrative Court in Munich, Germany.129 In the course of the appeal proceedings, the Bavarian Administrative Court requested a preliminary ruling from the European Court of Justice according to Article 267 of the Treaty on the Functioning of the European Union.130 In its reference to the European Court, the Administrative Court sought clarification on the interpretation of Article 9 (2) (e) of the European Qualification Directive, in particular on its substantive scope and the evidentiary standards to be applied, in order to establish whether the military service evaded by the deserter “would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12 (2) [of the European Qualification Directive].”131 The European Court of Justice delivered 127 See in this Chapter 4, A ii 3. 128 Christian L. Deichert, Is Germany the New Canada? One American Deserter’s Request for German Asylum, 205 Mil. L. Rev. 2010, pp. 94–95. 129 For the facts of the case, see above Chapter 4, A ii 1 (b) (3). 130 See also Articles 93 to 118 of the Rules of Procedure of the Court of Justice, 29.09.2012, L 265/1. 131 Andre Lawrence Shepherd v Federal Republic of Germany, Case C-472/13, Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany) lodged on

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its ­judgment on 26 February 2015.132 This judgment is binding on the Bavarian Administrative Court as well as on all of the national courts of the Member States that may have to rule on the same subject in the future. Furthermore, the judgment will constitute a precedence for the European Court of Justice in similar cases.133 (a) Issues before the European Court of Justice In its request for a preliminary ruling, the Bavarian Administrative Court put the following questions regarding Article 9 (2) (e) of the European Qualification Directive to the European Court of Justice: First, the German court asked whether the protection afforded under Article 9 (2) (e) of the European Qualification Directive extended only to those persons whose specific military duties included direct participation in combat, i.e. armed operations, or also to members whose duties were confined to logistical, technical support for the unit with only an indirect effect on the actual fighting. Furthermore, the German court asked whether the military service had to predominantly or systematically call for or require the commission of crimes or acts as defined in Article 12 (2) of the European Qualification Directive, or whether it was sufficient for the applicant to have stated that such crimes were committed in individual cases because of operational orders, or as a result of the excesses of individual members of the armed forces to which the applicant belongs. More specifically on the evidentiary standards, the German court requested clarification of whether violations of international law had to be expected beyond reasonable doubt or it was sufficient to show that such violations are probably occurring, so that the possibility of the applicant becoming involved cannot be ruled out. During the negotiations process of the European Qualification Directive the Member States had discussed such terms as ‘reasonable possibility’, ‘reasonable likelihood’ and ‘considerable probability’ as evidentiary standards, but as they could not agree, the European Qualification 2 September 2013, available at: http://curia.europa.eu/juris/document/document.jsf?text =&docid=143701&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1& cid=591947. 132 Andre Lawrence Shepherd v Federal Republic of Germany, Case C-472/13, Judgment of the Court (Second Chamber), 26 February 2015, available at: http://curia.europa.eu/jcms/ jcms/j_6/. 133 Carl Otto Lenz, The Role and Mechanism of the Preliminary Ruling Procedure, Fordham International Law Journal, Vol. 18, No. 2, 1994, p. 403.

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Directive does not provide for any evidentiary standard.134 In its submission to the European Court of Justice, the German court thus asked whether the strict standard of proof applied in international criminal law (“beyond reasonable doubt”), rather than the more lenient one of “reasonable likelihood” proposed by the unhcr, is to be applied in the context of refugee protection under the Qualification Directive.135 In relation to this, the German court also asked whether the provisions of the icc Statute were relevant for the application of Article 9 (2) (e) of the European Qualification Directive, specifically whether Article 9 (2) (e) was exclusively aimed at persons who might be prosecuted for committing crimes under the icc Statute. Additionally, the court asked whether protection under Article 9 (2) (e) of the European Qualification Directive was precluded in cases where the violations of international humanitarian law were prosecuted by the respective government, or in cases where the military engagement that the deserter evaded had been sanctioned by the international community or was based on a mandate from the United Nations Security Council. The German court also put the question to the European Court whether the fact that an applicant had not availed himself of the “ordinary conscientious objection procedure” – even though he would have had the opportunity to do so – precluded refugee protection pursuant to the European Qualification Directive. (b) The Opinion of the Advocate General Prior to the European Court’s judgment, the Advocate General, Eleanor Sharpston, addressed all these questions extensively in her Opinion delivered on 11 November 2014: The Advocate General interpreted the words “…where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12 (2)” as covering all military personnel, including logistics and support staff, such as a helicopter maintenance mechanics.136 She then argued 134 Kay Hailbronner/Simone Alt, Article 4 of Council Directive 2004/83/EC of 29 April 2004, Margin No. 9, p. 1026. 135 Bailliet points out that both the unhcr and the European Council on Refugees And Exiles (‘ecre’) had criticised the wording of Article 9 (2) (e) of the Qualification Directive as running counter to the standards contained in the unhcr Handbook, see references at: Cecilia M. Bailliet, Asssessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Geo. Immigr. L. J., 2005–2006, p. 368, footnote 139. 136 Andre Lawrence Shepherd v. Federal Republic of Germany, Case C-472/13, Opinion of the Advocate General of 11 November 2014, Margin Nos. 30 – 60, available at: http://curia .europa.eu/jcms/jcms/j_6/.

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that for Article 9 (2) (e) of the European Qualification Directive to be engaged, it was not decisive whether the conflict predominantly or systematically involved the commission of crimes, or whether such acts were committed in individual cases only. Rather, the decisive factor was whether the applicant risked committing war crimes and could show why he or she believed that they would be at risk of committing such crimes if they performed their military duties. As such, it was necessary for the national authorities to assess whether there were objective grounds for considering that the person concerned could be involved in committing war crimes. As a consequence, the Advocate General did not find it necessary to establish beyond reasonable doubt that violations of international humanitarian law could be expected to occur. Nor did she consider the provisions of the icc Statute to be relevant for the application of the European Qualification Directive. Importantly, the Advocate General dismissed the idea that refugee status under Article 9 (2) (e) of the European Qualification Directive might be precluded in cases where the applicant’s country of nationality prosecuted war crimes by pointing out that it was “a sad but inescapable fact that, even though such [prosecution] machinery may exist, war crimes are sometimes committed in the heat of conflict.”137 Similarly, she concluded that the existence of a unsc mandate relating to the conflict in question did not preclude the possibility that war crimes might be committed. With regard to the possibility, or lack thereof, of claiming conscientious objection, the Advocate General stated that it was for the national authorities to verify whether or not a procedure under the national law would be available to the applicant with reasonable prospect of success.138 She noted that in cases where such a procedure was available, it would be difficult to make a claim for refugee status on grounds of persecution if the applicant would have been able to avoid such persecution by making use of the national procedure. (c)

The Judgment of the European Court of Justice

(1) Personal Scope of Article 9 (2) (e) of the European Qualification Directive

In its judgment of 26 February 2015, the European Court of Justice agreed with the Advocate General that all military personnel, including logistics or support staff could invoke the European Qualification Directive. The Court thus declined the notion that certain members of the military were categorically excluded from the scope of Article 9 (2) (e) of the European Qualification 137 Ibid. Margin No. 68. 138 Ibid. Margin No. 75,

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Directive. This is a welcome clarification, as it considers the fact that the specific military duties assigned to a soldier can serve as an indication regarding the level of risk that a person will be forced to participate in war crimes during an armed conflict, but they can never exclude the possibility per se of being forced to commit war crimes. Military personnel who serve the war effort in a more indirect function, such as technical maintenance, might still be involved in maltreatment of prisoners of war, for example, or crimes against the civilian population. The Court stressed, however, that the application of Article 9 (2) (e) of the European Qualification Directive could be extended to persons only “whose tasks could, sufficiently directly and reasonably plausibly, lead them to participate in such acts.”139 (2)

Evidentiary Standards

Regarding the evidentiary standards in the application of Article 9 (2) (e) of the European Qualification Directive, the judgment of the European Court lacks clarity. The Court stated that it was for the national authorities to establish, based on indicia, whether it was “reasonably likely, that by the performance of his tasks, the applicant would provide indispensable support to the preparation or execution of those crimes.”140 The Court then listed the past conduct of the applicant’s unit, or criminal sentences passed on members of that unit as indicating factors. The European Court agreed with the Advocate General that Article 9 (2) (e) of the European Qualification Directive requires an ex ante assessment of the applicant’s position, while the application of Article 12 (2) of the same Directive, as well as a person’s criminal liability for acts committed in general, are based on an ex post assessment. This is an important distinction. Applying the same standards of proof for granting refugee protection as those that are applied for excluding such protection would have undermined the protection purposes of the refugee law and would have placed an evidentiary burden on the applicant that would be extremely difficult, if not impossible, to meet. It is difficult to conceive how an applicant could prove beyond reasonable doubt that something would have happened that did not, in fact, happen. Surprisingly, however, the European Court then went on to note that the fact that the military intervention was based on “a mandate of the United 139 Andre Lawrence Shepherd v. Federal Republic of Germany, Case C-472/13, Judgment of the Court (Second Chamber), 26 February 2015, Margin No. 38. 140 Ibid, No. 1 Para. 2 of the Operative Part of the Judgment.

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Nations Security Council or yet on the basis of a consensus on the part of the international community” offered “every guarantee that no war crimes will be committed.” The European Court further stated that the fact that the state in question prosecuted war crimes further rendered “the hypothesis that a soldier of this State could be led to commit crimes” implausible.141 While the Advocate General had explicitly acknowledged that neither a un Security Council mandate nor the existence of legislation and national courts for the punishment of war crimes could prevent the commission of such crimes, the European Court considered the legality of a military operation under the jus ad bellum a significant indication that the jus in bello would be respected during the military engagement as well – a questionable notion that has proved to be false in the vast majority of past conflicts. Furthermore, while in principle acknowledging that Article 9 (2) (e) requires an ex ante assessment, the European Court, in making this assessment, did not take the perspective of the soldier into account. Rather than asking whether the soldier could reasonably assume that he or she would have been forced to commit war crimes, the Court demanded that the national authorities make a factual assessment based on available indicia as to whether “the situation in question makes it credible that the alleged war crimes would be committed.”142 With these deliberations the European Court established a difficult burden of proof for applicants in arguing that they would have been forced to participate in war crimes had they continued their military service. The judgment of the European Court does not correspond to the standards called for in this study in connection with the discussion of a paradigm of legitimate desertion under international law. The evidentiary standards established by the European Court risk that the “soldier’s dilemma” in the war theatre, which originates from the factual and legal uncertainties confronting the soldier and his or her personal ability (or lack thereof) to decide about the lawfulness or unlawfulness of a military action, is not adequately taken into account.143 (3)

Possibility of Obtaining Conscientious-objector Status

With respect to national procedures to obtain conscientious-objector status, the European Court followed the reasoning of the Advocate General and held that the “refusal to perform military service must constitute the only means by which the applicant for refugee status could avoid participating in the alleged war crimes” and that applicants who did not avail themselves of any available 141 Ibid. Margin No. 42. 142 Ibid, No. 1 Para. 4 of the Operative Part of the Judgment. 143 For the discussion of the “soldier’s dilemma,” please see Chapter 2, B iii 3.

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procedure for obtaining conscientious-objector status would be excluded from protection under Article 9 (2) (e) of the European Qualification Directive.144 This argumentation of both the Advocate General and the European Court of Justice is problematic, as it does not distinguish between conscientious objection, i.e. the objection to a military service as the expression of deeply held religious or conscientious beliefs (be it absolute or selective) on the one hand, and the refusal to partake in a military engagement in order to avoid personal criminal responsibility on the other hand. As discussed in this study, the two grounds must be clearly distinguished. While conscientious objection forms part of a right of the individual under international law, specifically the right to freedom of thought, conscience and religion, the refusal to perform military service in order to avoid criminal liability is based on obligations placed on the individual under international law.145 The wording of Article 9 (2) (e) of the European Qualification Directive and its explicit link to Article 12 (2) show that the former is concerned with the latter type of refusal, namely the wish to respect the postulates of international law and avoid participation in crimes under international law. As such, it is debatable whether the fact that the applicant does not make use of available procedures to obtain recognition as a conscientious objector should lead to an exclusion from protection under Article 9 (2) (e) of the European Qualification Directive. But even leaving this strict distinction aside and assuming that the possibility of claiming conscientious-objector status is relevant to the protection under Article 9 (2) (e) of the European Qualification Directive, a distinction should be made between absolute and selective conscientious objection. In this regard, it must be acknowledged that, at present, the right to selective conscientious objection is not recognised in national legal systems.146 As the European Court of Justice left this question to the national courts and authorities, it is now for the Bavarian Administrative Court to make this distinction and adequately take into consideration that conscientious-objector status was not open to Mr. Shepherd as a selective objector, and that initiating such procedures would have been a vain endeavour in his case. The situation is likely to be the same in future cases of selective refusals, which, in turn, might make the test of available conscientious objection procedures that was stipulated by the European Court of Justice redundant.

144 Ibid, No. 1 Para. 6 of the Operative Part of the Judgment. 145 See the discussion in Chapter 2, B ii and iii. 146 See Chapter 2, B ii 1(b) above.

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IV Complementary or Subsidiary Protection Deserters who do not qualify for refugee status might be able to benefit from complementary protection schemes established at the regional level. The terminology used by states for complementary protection schemes differs and includes “subsidiary protection,” “de-facto refugees”147 or “temporary protection” when referring to a national or regional “manifestation of the broader international legal concept of ‘complementary protection’.”148 The granting of complementary protection mainly consists of “the admission or at least nonrefoulement of persons facing a threat to their life, safety or freedom as a result of indiscriminate violence arising in situation of armed conflict, or as a result of systematic or generalised violations of their human rights.”149 As mentioned above, the oau Convention, the Bangkok Principles and the Cartagena Declaration contain broader definitions of the term ‘refugee’ than the Geneva Refugee Convention and include persons who flee because of violence and armed conflict and/or massive violations of human rights or other events seriously disturbing public order. As such, these regional instruments combine the international refugee protection provided for by the Geneva Refugee Convention and the principles known as complementary protection within one legal scheme. In contrast, a multi-tiered system can be found at the European level, which, in addition to refugee status, consists of subsidiary and temporary protection statuses. 1 Subsidiary Protection Status While complementary protection based on human rights has long existed in the practice of European States150 – starting with the groundbreaking decision of the European Court of Human Rights in the case of Soering v. u.k. in 1989151 – the concept of subsidiary protection was defined for the first time in 2004 in the European Qualification Directive.152 147 Kay Hailbronner, Principles of International Law Regarding the Concept of Subsidiary Protection, p. 3. 148 Guy S. Goodwin-Gill/Jane McAdam, The Refugee in International Law, p. 330. 149 Kay Hailbronner, Principles of International Law Regarding the Concept of Subsidiary Protection, p. 4. 150 Tillmann Löhr, Die Qualifikationsrichtlinie: Rückschritt hinter internationale Standards?, p. 87. 151 European Courts of Human Rights, Soering v. UK, Judgment of 7 July 1989, Appl. No. 14038/88, Paragraphs 91. See also discussion of this case in Chapter 3 above. 152 Council Directive 2004/83/EC of 29 April 2003 recast by Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees, or

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According to Article 2 (f) of the European Qualification Directive, subsidiary protection status is granted to a third-country national who does not qualify as a refugee but in respect of whom substantial grounds have been established for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm. Serious harm is further defined in Article 15 of the European Qualification Directive as consisting of (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. A deserter seeking protection in a Member State of the European Union might benefit from subsidiary protection if he or she, as a third-country national, does not fulfil the requirements for refugee status under the European Qualification Directive but would face a real risk of suffering harm if returned to the home country. As discussed in Chapter 3 above, this would be the case if the deserter was likely to face torture or inhuman or degrading treatment or punishment by the home country for the act of desertion, or if the offence of desertion during an armed conflict were punishable by death in the deserter’s home country. Whether or not this is the case depends entirely on the circumstances in the individual case and the home country’s respect for the rule of law during an armed conflict. The punishment of deserters in past conflicts shows, however, that disrespect for the deserter’s rights and the rule of law tend to be the rule rather than the exception in many conflicts. Similar to refugee status, there are grounds for excluding a person from the institution of subsidiary protection. The exclusion clause for subsidiary protection status is provided in Article 17 of the European Qualification Directive. While the clause repeats the reasons for exclusion that are provided with regard to refugee status in Article 12 (2) of the European Qualification Directive, it extends them to cases where the applicant has committed a serious crime.153 Furthermore, subsidiary protection can be denied pursuant to Article 17 (3) of the European Qualification Directive in cases where the person, prior to his or her admission to the Member State concerned, has committed one or more for persons eligible for subsidiary protection, and for the content of the protection granted, Official Journal of the European Union, 20.12.2011, L 337/9. 153 Article 17(i)(b) of the European Qualification Directive.

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crimes outside the scope of Paragraph 1 that would be punishable by imprisonment had they been committed in the Member State concerned, and if he or she left his or her country of origin solely in order to avoid sanctions resulting from those crimes. As desertion is a military offence punishable by imprisonment in all eu Member States, the country of refuge could, in principle, deny subsidiary protection status based on Article 17 (3) of the European Qualification Directive. Denial under Article 17 (3) is, however, not an obligation but rather it is left to the discretion of the individual Member State.154 In those cases where a deserter does not qualify for refugee status, but where the treatment to be expected in the home country represents a threat to his or her life, safety or freedom, whether or not a eu Member State will deny the subsidiary protection status to deserters based on Article 17 (3) of the European Qualification Directive will depend on the larger political context of the conflict. In any event, as will be discussed in the context of the principle of non-refoulement below, the exclusion of subsidiary protection status based on Article 17 of the European Qualification Directive can only lead to exclusion from the status rights listed in Chapter 7 of the European Qualification Directive, such as access to education and employment, social welfare and health benefits,155 but could not result in disregard for the absolute prohibition of refoulement in so far as it stems from Article 3 echr, Article 3 of the Torture Convention and Article 7 ccpr.156 2 Temporary Protection Status Temporary protection status was developed on the initiative of the unhcr during the conflict in the former Yugoslavia in the 1990s, when neighbouring European countries faced a massive influx of people fleeing from “a conflict characterized, chillingly, by terror, persecution and abuse,”157 and a safe and dignified return of these people was not possible. This temporary protection status was granted without a decision on refugee status under the Geneva Refugee Convention and bestowed fewer rights than refugee status.158 More 154 Tillmann Löhr, Die Qualifikationsrichtlinie: Rückschritt hinter internationale Standards?, p. 90. 155 See Articles 22 to 35 of the European Qualification Directive. 156 Tillmann Löhr, Die Qualifikationsrichtlinie: Rückschritt hinter internationale Standards?, p. 90. See also below Chapter 4, A v. 157 Erika Feller, Rape is a War Crime. How to Support the Survivors: Lessons from Bosnia – Strategies for Kosovo, dip Statements, 18 June 1999, p.1, available at: www.unhcr.org. 158 Christa Luterbacher, Die Flüchtlingsrechtliche Behandlung von Dienstverweigerung und Desertion, p. 284.

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than 600,000 persons were given temporary protection in European neighbouring countries on humanitarian grounds,159 with Germany and Switzelrand receiving the highest numbers of people. Regarding deserters, the European Parliament passed a decision on 28 October 1993 calling on Member States to guarantee deserters ‘a legal status’ and not to refoule them. In response to this call, deserters were granted temporary protection along with the civilian refugee population without examining their cases further regarding a refugee status under the Geneva Refugee Convention.160 The issue of effective protection for deserters resurfaced during the war in Kosovo, when thousands of soldiers from the Yugoslav Army deserted their units following active encouragement by nato, which dropped leaflets during its air campaign in March 1999. While Western European countries again granted temporary protection to deserters who managed to go abroad, the majority of deserters reportedly went into hiding in the Federal Republic of Yugoslavia itself, with an estimated 5,000 to 6,000 deserters hiding in Belgrade.161 Mindful of the gaps in international protection for refugees and the inability to address adequately cases of mass influx and large-scale cross-border movements during armed conflicts or other forms of crisis, the unhcr has been advocating globally for the development of complementary tools to offer sanctuary to those fleeing humanitarian crises. The unhcr Guidelines on Temporary Protection or Stay Arrangements (“tpsa”) published in February 2014 summarise the main principles behind these temporary responses to humanitarian crises and complex or mixed population movements: a complementary form of protection, which, for a limited period of time, provides immediate protection from refoulement and basic minimum treatment where existing responses are not suitable or sufficient.162 In 2001, the European Union adopted legislation laying down standards for Member States163 for providing immediate and temporary protection in the event of a mass influx of displaced persons into the Union.164 Directive 2001/55/EC sets out a scheme of exceptional measures for dealing with mass 159 Peter Van Krieken, Yugoslav War Resisters, Heroes or Villains?, awr-Bulletin 1996, No. 1–2, p. 35. 160 Katharina Schnöring, Deserters in the Federal Republic of Yugoslavia, p. 168. 161 Katharina Schnöring, Deserters in the Federal Republic of Yugoslavia, p. 166. 162 unhcr, Guidelines on Temporary Protection and Stay Arrangements, Division of International Protection, February 2014, available at: ????. 163 Denmark is not participating in the Directive. 164 See: Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.

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arrivals in the European Union (eu) of foreign nationals who are unable to return to their country of origin, particularly to persons who have fled areas of armed conflict or endemic violence, and to persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights.165 Article 3 of Directive 2001/55/EC makes it clear that temporary protection status shall not prejudice refugee status under the Geneva Refugee Convention. However, Member States may choose to delay the examination of asylum or refugee-status applications until after the applicant’s temporary protection period has expired.166 In summary, it can be held that depending on the circumstances that prevail during an armed conflict, particularly the extent of cross-border movements of the civilian population, countries might initiate temporary protection schemes in order to deal with the crisis. In these cases, deserters are likely to be granted temporary protection status according to the tpsa in place, which, in Europe, would be according to the Directive 2001/55/EC. While this will ­provide the deserter with immediate protection in the ­country of refuge, it should not prejudice his or her eligibility for more permanent and elaborate i­ nternational protection through refugee status under to the Geneva Refugee Convention or a complementary protection status, such as the European ­subsidiary protection status under the European Qualification Directive. V The Prohibition of Refoulement The most important consequence of refugee status or complementary protection status is the prohibition of refoulement, which provides that no person shall be sent, expelled, returned or otherwise transferred to a territory where his life, physical integrity or liberty might once again be threatened, and, as such, it “embodies the humanitarian essence”167 of international protection. The principle of non-refoulement is not only contained in global and regional treaties concerning refugee protection but is also affirmed in a number of nonbinding instruments, most notably in the Declaration on Territorial Asylum unanimously adopted by the United Nations General Assembly on 14 December 1947 and, at the regional level, the Cartagena Declaration, the Bangkok Principles and numerous statements of the Council of Europe.168 165 Articles 1 and 2 of Directive 2001/55/EC. 166 Article 17 of Directive 2001/55/EC. 167 Sir Elihu Lauterpacht/Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 107. 168 See: Article 3 of the un ga Declaration on Territorial Asylum; Article iii of the Bangkok Principles on the Status and Treatment of Refugees; Section iii para. 5 of the Cartagena Declaration, which calls for a recognition of the principle as jus cogens; Committee of

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1 Non-refoulement under the Geneva Refugee Convention Article 33 of the Geneva Refugee Convention, which binds any country that is a State Party to either the Convention or the 1967 Protocol,169 provides that: No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The prohibition of refoulement applies to all individuals who fulfil the criteria of refugee status according to Article 1 A (2) of the Geneva Refugee Convention170 and where there are no grounds for excluding him or her on the basis of Article 1 F (a) of the Geneva Refugee Convention. (a) Refoulement at the Border While the literature on this subject is not unanimous,171 the majority view today is that the prohibition of refoulement under Article 33 of the Geneva Refugee Convention also applies to the refusal of entry to a refugee seeking admittance at the border, if he or she would be subject to persecution as a Ministers of the Council of Europe, Recommendation No. R(1984) 1 of 25 January 1984 on the “Protection of Persons Satisfying the Criteria in the Geneva Convention Who are Not Formally Recognised as Refugees.” 169 By operation of Article i (1) of the 1967 Protocol States that are not a party to the Geneva Refugee Convention are nevertheless bound by Articles 2 to 34 inclusive of the Geneva Refugee Convention, see: Erika Feller, pp. 106 and 108. 170 Despite the wording used in Article 33 of the Geneva Refugee Convention “where his life or freedom would be threatened,” no standard other than those required for refugee status itself is required for the prohibition of refoulement. The words “territories where their life or freedom was threatened” in Article 33 and “well-founded fear of persecution” in Article 1 of the Geneva Refugee Convention are to be understood synonymously. As a matter of internal coherence of the Convention, “territories where his life or freedom would be threatened” is to be read as encompassing any territories in respect of which a refugee or asylum-seeker has a “well-founded fear of being persecuted,” be it the person’s home country or another place where the person will be at risk. Paul Weis, The Refugee Convention, 1951, pp. 303 and 341; Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of non-refoulement: Opinion, pp.116 and 123. 171 Some argue that the prohibition of refoulement was not intended to prevent states from conducting checks at their borders, and it applies only to persons who have already entered a country. For details on the debate, see: Ulrike Davy, Asyl und internationales Flüchtling­ srecht, pp. 93–124; Otto Kimminich, Der internationale Rechtsstatus des Flüchtlings, p. 327; Atle Grahl-Madsen, The Status of Refugees in International Law, Vol. ii, p. 94.

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consequence of being refused entry, or as a result of being transferred to the persecuting country by his or her country of residence.172 Given that the prohibition of refoulement also protects refugees who are in a country of refuge illegally,173 the other view would lead to the unsatisfactory situation in which a refugee who has crossed the border illegally enjoyed better protection than one who has formally reported to a border post to request admittance.174 Therefore, the principle of non-refoulement protects a refugee or asylum-seeker irrespective of whether he or she has been formally recognised by the country of refuge.175 (b) Measures Terminating the Stay It is universally accepted that the principle of non-refoulement does not oblige a State party to allow a refugee to reside on its territory indefinitely, or to grant the refugee asylum. Deportation or expulsion to a safe third country within the limits laid down in Article 32 of the Geneva Refugee Convention is therefore not prohibited, as long as it is certain that the refugee is not at risk of being transferred to the persecuting state,176 or “to a territory where he or she may be at risk of subsequent expulsion, return or transfer to another territory where he or she may be at risk.”177 Of particular importance for deserters who, for the reasons outlined above, fear criminal prosecution by their home country is whether the principle of non-refoulement also applies to acts of extradition or is the country of refuge allowed to extradite the deserter within the framework of mutual legal assistance between states. 172 Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 113; Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 3, Chapter 13, Paragraph 46, Margin Nos. 8–26; Walter Kälin, Das Prinzip des non-refoulement, p. 107; Guy S. Goodwin-Gill/Jane McAdam, The Refugee in International Law, pp. 206–208; Kay Hailbronner, in: Graf Vitzthum (ed.), Völkerrecht, p. 258; Ulrike Davy, Asyl und internationales Flüchtlingsrecht, p. 93. 173 Atle Grahl-Madsen, The Status of Refugees in International Law, Vol. ii, p. 108. 174 Gilbert-Hanno Gornig, Das Refoulement-Verbot im Völkerrecht, p. 20. 175 This has been consistently confirmed by the unhcr Executive Committee, see: Conclusion No. 6 (xxviii) 1977, at para. (c); Conclusion No. 79 (xlvii) 1996, para. (j); and Conclusion No. 81 (xlviii) 1997, para. (i). See also: unga Resolution 52/103 of 9 February 1998, A/RES/52/103, 9 Feb. 1998, at para. 5. 176 Kay Hailbronner, in: Graf Vitzthum (ed.), Völkerrecht, p. 258; Walter Kälin, Das Prinzip des non-refoulement, p. 107. 177 Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 123.

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The Geneva Refugee Convention itself contains no provisions on extradition, and different views were expressed during the drafting process, with some states maintaining that the principle of non-refoulement was not to prevent extradition.178 Such an uncertain interpretation of non-refoulement, however, is incompatible with a contemporary understanding of refugee protection, as it would allow states to circumvent the prohibition and thus undermine refugee protection at will by resorting to extradition agreements. Rather, the wording “in any manner whatsoever” in Article 33 (1) of the Geneva Refugee Convention indicates the broad scope of the concept of refoulement without attaching any particular limitations to it. In its Conclusion on Problems of Extradition affecting Refugees of 1980, the unhcr Executive Committee reaffirmed the fundamental nature of the principle of non-refoulement and called upon states to take the principle into account in treaties relating to extradition and in national legislation on the subject.179 A number of standard-setting multilateral conventions in the area of extradition law indicates that extradition agreements are to be subject to the prohibition of non-refoulement.180 The European Convention on Extradition of 1957,181 the 1981 Inter-American Convention on Extradition and the un Model Treaty on Extradition of 1990,182 which have served as models for numerous bilateral and multilateral extradition treaties, contain clauses that prohibit extradition if there are substantial grounds for believing that a person risks being persecuted upon being extradited. It is therefore concluded here that on the basis of international treaties and state practice with regard to extradition, the prohibition on expelling or returning a refugee “in any manner whatsoever” as set out in Article 33 of the Geneva

178 See: Paul Weiss, The Refugee Convention, 1951, pp. 341–342; See also: un doc. A/CONF.2/ SR.24, 10 (uk) as well as sr. 35, 21 (France). 179 unhcr Executive Committee, Conclusion on Problems of Extradition affecting Refugees, No. 17 (xxxi) – 1980, Report of the 31st Session: un doc. A/AC.96/588, para. 48 (2). 180 Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 112. 181 Article 3 ii of the European Convention on Extradition of 1957 provides that extradition shall not be granted “if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.” 182 See Article 3 (b) of the Model Treaty on Extradition, un Doc. A/45/49 (1990), 30 ilm 1407 (1991).

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Refugee Convention also applies to extradition.183 Given that in the case of a deserter it is precisely the home country from which the threat of persecution comes, a country of refuge is barred from extraditing to his or her home country a deserter who has refugee status under the Geneva Refugee Convention. (c) Exclusion under Article 33 (2) of the Geneva Refugee Convention Finally, it should be mentioned briefly here that the prohibition of refoulement under the Geneva Refugee Convention can be disregarded by countries of refuge in cases where there are reasonable grounds for regarding the refugee as a danger to the security of the country, or a danger to the community of that country, the latter requiring the refugee to have been convicted of a particularly serious crime.184 Despite a certain overlap between Article 33 (2) and Article 1 F of the Geneva Refugee Convention, the decisive difference between the two exclusion clauses is that Article 33 (2) of the Geneva Refugee Convention requires an “appreciation of a future threat,” while the exclusion under to Article 1 F of the Geneva Refugee Convention is based on past actions as a result of which the refugee has lost or forfeited any entitlement to the benefits of international protection. Generally, there is no indication that a deserter who stops fighting during an armed conflict would present a danger to the safety of a country of refuge unless other specific factors are present in the individual case. This could be the case if there were reasonable grounds for assuming that the deserter has defected, or wishes to defect to the other side and plans to carry out political and military activities, e.g. recruitment, from the territory of the country of refuge, which might carry a considerable risk of destabilising that country. 2 The Prohibition of Refoulement at the Regional Level The prohibition of refoulement is also found in all regional treaties dedicated to refugee protection, such as the oau Convention for the African continent185 and the Qualification Directive at the European level. 183 Geoff Gilbert, Aspects of Extradition Law, p. 242; Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, p. 262; Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of non-refoulement: Opinion, pp. 112/113. 184 Article 33 (1) of the Geneva Refugee Convention provides that: the benefit of the present provision may not, however, be claimed by a refugee in respect of whom there are reasonable grounds for regarding him or her as a danger to the security of the country in which he or she is, or who, having been convicted by final judgment of a particularly serious crime, constitutes a danger to the community of that country. 185 Article 11 para.3 of the oau Convention.

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The oau Refugee Convention and the Asian-African Refugee Principles prohibit measures that would compel or result in compelling a person to return to or remain in a territory where they would be at risk.186 Article 21 (1) of the European Qualification Directive provides that Member States shall respect the principle of non-refoulement in accordance with their international obligations. With regard to persons who have refugee status, these international obligations are, on the one hand, stipulated by Article 33 of the Geneva Refugee Convention discussed above. On the other hand, they are stipulated by human rights law, in particular Article 3 echr, Article 3 of the unct and, as also discussed in Chapter 3, Article 7 ccpr.187 State practice within Europe indicates that it is fully accepted there that the principle of nonrefoulement applies at the border.188 The principle of non-refoulement thus prevents states in Europe from turning away a deserter at the border who seeks entry to and protection in a European state. Article 21 (2) of the European Qualification Directive allows refoulement in cases when there are reasonable grounds for considering the refugee as a danger to the security of the Member State in which he or she is present; or when he or she, having been convicted by final judgment of a particularly serious crime, constitutes a danger to the community of that Member State. While exclusion from the protection under the principle of non-refoulement is possible for refugees under Article 33 (2) of the Geneva Refugee Convention, it is not under the protection from refoulement provided by international human rights instruments. As discussed above, the European Court of Human Rights has repeatedly held that the prohibition of non-refoulement provided by Article 3 echr is non-derogable and absolute and allows no exception whatsoever.189 3 Non-refoulement in a Human Rights Context In this regard reference is made to the discussion in Chapter 3 regarding the principle of non-refoulement under international human rights law, which precludes any form of removal or return of the deserter in case of a danger of torture, cruel, inhuman or degrading treatment or punishment, irrespective of whether or not the deserter is entitled to refugee status or subsidiary protection 186 See Article 2 (3) of the oau Convention and Article 3 of the Bangkok Principles. 187 Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 3, Chapter 13, Paragraph 47, Margin No. 7 with reference to the annotated draft of the Qualification Directive in: brDs. 1017/01, p. 32. 188 Reinhard Marx, Handbuch zur Qualifikationsrichtlinie, Part 3, Chapter 13, Paragraph 47, Margin No. 27 who, in this respect, speaks of regional customary international law. 189 See Chapter 3, B ii 7(a) above.

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status.190 It follows from this that the country of refuge would be precluded from transferring the deserter to any country where he or she would be at risk of ill treatment proscribed by the applicable human rights treaties if expelled, extradited or otherwise transferred, which has been held to include removing him to an intermediary country in circumstances in which there is a danger of subsequent refoulement of the individual to a territory where they would be at risk. 4 Non-refoulement as a Principle of Customary International Law Alongside the conventional norms discussed above, the principle of nonrefoulement can be found in customary law. Non-refoulement in customary law entails an absolute prohibition on rejecting, returning, or expelling a person in any manner whatsoever where this would compel the person to remain in or return to a territory where it can be shown that there are substantial grounds for believing that he or she would face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment. Furthermore, it entails a prohibition on rejecting, returning, or expelling a person in cases where the person may face a threat of persecution or a threat to life, physical integrity, or liberty, with exceptions being allowed for overriding reasons of national security or public safety, provided that compliance with principles of due process of law is ensured.191 In support of this view, reference can be made to the practice of states over the last 50 years, as well as to the practice and numerous unanimous resolutions and statements of international organisations, especially the un General Assembly.192 As a norm of customary international law, the principle also binds states that have not ratified the Geneva Refugee Convention and 1967 Protocol and prevents them from transferring deserters to countries where they are at risk. While the Geneva Refugee Convention has now been ratified by the vast majority of states, it is noteworthy that many countries in the Middle East and North Africa (mena Region) have so far refrained from acceding to the treaties.193 190 See Chapter 3, B ii 7 above. 191 Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of nonrefoulement: Opinion, p. 163. 192 Guy S. Goodwin-Gill/Jane McAdam, The Refugee in International Law, pp. 346–347. See also the 2001 San Remo Declaration on the Principle of Non-refoulement by the Council of the International Institute of Humanitarian Law, which declared that “the Principle of Non-Refoulement of Refugees incorporated in Article 33 of the Convention relating to the Status of Refugees of 28 July 1951 was an integral part of Customary International Law.” 193 See: Mike Sanderson, The Syrian Crisis and the Principle of Non-Refoulement, 89 INT’L. STUD. (2013), p. 782. Sanderson attributes the reluctance to join the Geneva refugee regime to the continuing concern of Arab States over Palestinian refugee issues.

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Thus, the customary law aspect of the principle is particularly relevant in this region, which has been plagued by international and internal armed conflict for a long time. VI Conclusion A deserter must always be considered a refugee within the meaning of the Geneva Refugee Convention if, independently of the act of desertion, he or she suffers severe deprivation of fundamental rights during recruitment to or service within the armed forces because of personal characteristics such as race, ethnicity or religion. The same applies if the judicial system of the deserter’s home country is used as an instrument of persecution and the desertion is a trigger for discriminatory and unlawful treatment by the judiciary. In contrast, the punishment of a deserter by the home country does not constitute persecution per se and a deserter who flees to a third country simply to avoid punishment for having violated his military duties cannot claim refugee status. A closer examination is nevertheless warranted if one or a number of the following additional factors is present: Deserters can claim a well-founded fear of persecution if they are absolute conscientious objectors who object to any form of military service at all times, and if desertion represented the only way to express this objection because the deserter’s home country made no, or no effective provision for alternative service or an exemption. As the necessary link to the Convention ground of religion exists in these cases, these claimants are entitled to refugee status under the Geneva Refugee Convention. In contrast, desertions based on an objection to a particular military engagement represent the most politically sensitive scenario from a refugee protection point of view. National courts have been reluctant to accept that disagreement with a decision to use force and the conviction that a certain military engagement is illegal are matters of conscience rather than purely political opinions. While absolute conscientious objection is seen as an expression of politically neutral convictions stemming from the person’s religion and conscience, selective objection is considered first and foremost as the expression of a political opinion, which can be trumped by the home country’s sovereign right to decide about military engagements and demand their citizen’s participation in it.194

194 See also Cecilia M. Bailliet, Asssessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Georgetown Immigration Law Journal, 2005–2006, p. 354.

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Nevertheless, short of categorically denying protection in all cases of selective conscientious objection, national courts have relied on the requirement of international condemnation and have granted refugee status in cases where the international community has condemned the armed conflict in question. By interpreting this requirement narrowly as requiring an official condemnation by governmental or intergovernmental institutions, however, the focus of the courts’ determinations in asylum cases has shifted to a technical requirement that renders the individual’s dictates of conscience practically irrelevant and limits the number of cases in which deserters who are partial conscientious objectors can obtain refugee status.195 Those cases in which a deserter claims to have fled from an armed conflict in order to avoid personal criminal responsibility are seemingly less politically sensitive. While it is generally accepted that a deserter can claim a wellfounded fear of persecution in those cases, the exact contours of such claims remain unclear, in particular with regard to the standards of proof to be applied. Following the unhcr Handbook’s guidance, the validity of such claims depends on the particular circumstances of the claim. As such, the factors to be considered for these claims are: • The extent to which war crimes are happening, in particular whether there is systematic violation of the jus in bello; • Whether violations of the jus in bello have been condoned by the state or effectively prosecuted and punished; • The level of risk or likelihood of the applicant having to participate in the illegal actions; • Whether there were realistic and reasonable ways for the soldier to limit the risk of being involved by exploiting internal disciplinary channels. A third country is obliged to admit a deserter who qualifies as a refugee under the Geneva Refugee Convention if he faces persecution by his home country and admission is the only way of protecting him from seizure by that country. While the country of refuge is entitled to deport deserters to a safe third country, the prohibition on refoulement means they cannot be transferred, deported or expelled to their home country, or to any country from which there is a risk of them being deported to their home country. A deserter excluded from refugee status may still be protected as a beneficiary of complementary protection schemes established at the regional level. 195 Ibid.

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Finally, deserters who benefit from neither refugee status nor subsidiary protection status might be protected from return to a country where they are at risk of ill treatment by virtue of international human rights instruments, in particular the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant of Civil and Political Rights which contain an absolute prohibition to transfer an individual to a country where there is a risk that he or she will be subjected to torture or other inhumane and degrading treatment or punishment. B

Obligations under the Law of Neutrality

Following the examination of a country’s obligations to grant foreign deserters who flee to its territory the status of a refugee or another complementary protection status under international law, this part and the following Part C now look at the rules and regulations under international law that concern the relationship between the country of refuge and the belligerent parties. Under international law, a state not taking part in a conflict has the status of neutrality, a status that under the law of neutrality entails specific rights and duties with respect to the relationship between the neutral state and belligerent states.196 The law of neutrality can be found both in international customary law and treaty law, particularly Hague Conventions v and xiii regarding the rights and duties of neutral states in case of war on land or naval war.197 However, neither these treaties nor international customary law contain provisions that explicitly address the treatment of deserters, who flee to the territory of a neutral state, nor “the treatment of military personnel […] of the parties to the conflict which are found on neutral territory is unclear in many respects.”198

196 Michael Bothe, The Law of Neutrality, in: Fleck (ed.), The Handbook of International Humanitarian Law, Margin No. 1101. 197 Convention (v) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 18 October 1907, entered into force January 26, 1910; Convention (xiii) concerning the Rights and Duties of Neutral Powers in Naval war, of 18.10.1907, entered into force 26 January 1910. Both available in: D.Schindler and J.Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp. 942–947 and 951–957. These two conventions largely constitute a codification of customary law. Leslie Green, The contemporary law of armed conflict, p. 260. 198 Michael Bothe, The Law of Neutrality, in: Fleck (ed.), Handbook of International Humanitarian Law, Margin No. 1117.

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i Duty to Intern Foreign Troops Of relevance for the treatment of foreign deserters are Articles 11 and 12 of Hague Convention v, which stipulate that a neutral state must intern troops of parties to a conflict that enter its territory until the end of the conflict and appropriately care for them during their internment. In addition, Article 4 B (2) gc iii stipulates that most of the provisions in the Third Geneva Convention regarding the treatment of prisoners of war also apply to internment by a neutral or non-belligerent state.199 This duty to intern foreign troops is a consequence of the two basic obligations of neutral states under customary law: first, the obligation not to let parties to the conflict use its territory for military action; and, second, the obligation not to give any military support to the belligerents.200 The aim of internment is to ensure that units of a belligerent force cannot continue to take part in fighting from the territory of a neutral state,201 or use neutral territory as a military base or platform from which to launch further military operations.202 While it has been held that deserters remain members of the armed forces of a belligerent party and, as such, combatants under international humanitarian law, there is obviously a difference between battle-ready military troops and a deserter who is unwilling to fight and participate in further hostilities. It will thus be for the country of refuge to decide whether its status of neutrality requires that it intern the deserter. With regard to Article 11 of Hague Convention v, a duty to intern could be derived if the country of refuge has reason to believe that while on its territory the deserter will plan or undertake military actions or combat operations against one of the belligerent parties, be it their home country or another party. To what extent this risk exists will depend on the individual circumstances, including the proximity of the country of refuge to the conflict area, the motives that prompted the soldier to desert, and the extent to which a deserter may be exposed to pressure or propaganda in 199 According to Article 4 B gc iii, Articles 8, 10, 15, 30 Abs. 5, 58 bis 67, 92 and 126 gc iii do not apply in case of internment by neutral states. 200 In addition, there is a prohibition on non-neutral services, which prohibits the movement of troops or supply on neutral territory (Article 2 hc v) and the supply of warships, ammunition, or other war material (Article 6 ha xiii). See: Michael Bothe, The Law of Neutrality, in: Fleck (ed.), Handbook of International Humanitarian Law, Margin Nos. 1109 and 1110. 201 Michael Bothe, The Law of Neutrality, in: Fleck (ed.), Handbook of International Humanitarian Law, Margin No. 1117. 202 Erik Castrén, The Present Law of War and Neutrality, p. 472.

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the country of refuge and hence in danger of being incited to return to military activities. If the country of refuge is convinced of the deserter’s unwillingness to participate in any further hostilities, the risk of his using the territory of the country of refuge for military action might not exist at all, or be so slight as to allow the country to leave the deserter at liberty.203 If the country of refuge decides not to intern these deserters, it risks failing to fulfil its duty under Article 11 of Hague Convention v, if they then go on to resume military activities, with the result that the belligerent parties might question the country’s neutral status. ii Summary The treatment of foreign deserters on the territory of neutral states is not explicitly regulated in the international law of neutrality, be it in international customary law or treaty law. A duty to intern foreign deserters might, however, be derived from Articles 11 and 12 of Hague Convention v, which stipulate a general duty to intern foreign troops in order to prevent the use of neutral territory for military operations in those cases where there is a risk that the foreign deserter might engage in military activities or return to hostilities while on the territory of the neutral state. C

Extradition of a Deserter to His Home Country

International refugee law and the law of extradition are intertwined at numerous levels. While the principle of non-refoulement prohibits any form of transfer, including extradition, international refugee law specifically allows for the extradition of criminals in cases where the person is excluded from refugee status according to Article 1 F of the Geneva Refugee Convention, or through the exception to the principle of non-refoulement in Article 33 (2) of the Geneva Refugee Convention. The latter allows for the transfer of a person entitled to refugee status if there are reasonable grounds for believing that he or she poses a danger to the country in which they took refuge. Similarly, the law of extradition is subject to certain principles of international human rights law, the most important one in the current context being the absolute prohibition of non-refoulement under Article 7 iccpr, Article 3 (1) cat and Article 3 echr, which prohibits the transfer of a person to a state 203 Karl Doehring, Deserters, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Volume i (1992), p. 1015.

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where there are serious reasons to believe that that person would be subjected to violations of certain fundamental rights. As discussed above, whenever applicable, the prohibition of non-refoulement under international human rights law and international refugee law prohibits the country of refuge from handing over the deserter to his or her home country in any manner, including transfer as part of a formal extradition procedure. Bearing these relationships between international human rights law, international refugee law and extradition law in mind, this section now explores the rules and regulations that apply under international law if the principle of nonrefoulement is not applicable, i.e. in situations where the deserter cannot claim any fear of persecution or risk of ill treatment by his home country and where, as a fugitive from justice, he or she is merely trying to avoid criminal prosecution for the military offence. In particular, it will be asked whether and under what circumstances the country of refuge is obliged to extradite the deserter to his or her home country, if the home country so requests. i Duty to Extradite Given the interest of the home country in prosecuting the deserter, the first question to consider is whether there is a general duty under international law on the country of refuge to extradite the deserter if his or her home country so requests. Extraditions as a form of mutual legal assistance between states represent one of the most important aspects of international cooperation in matters of criminal justice.204 While extraditions have always been recognised as a valuable and effective form of legal assistance between states,205 states have accepted a legal obligation to hand over a person to the authority of another state only if a specific extradition agreement had been concluded between them. Extraditions performed in the absence of such an agreement have been

204 Torsten Stein, Extradition, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Volume iii, p. 1058. 205 Such inter-state assistance has to be distinguished from an obligation to surrender suspects to international criminal tribunals. As part of international efforts to prevent impunity for certain grave crimes under international law, the Statutes of the international criminal tribunals and courts foresee an obligation to extradite. Article 29 (2) (e) of the icty Statute, Article 28 (2) (e) of the ictr Statute, and Article 89 (1) of the icc Statute oblige states to hand over suspected war criminals to the respective tribunals.205 Furthermore, Article vii (2) of the Convention on the Prevention and Punishment of the Crime of Genocide requires states to extradite in case of genocide and the other acts listed in Article iii of that Convention.

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regarded merely as acts of friendly cooperation in the form of acts of grace.206 As such, a duty to extradite a criminal offender in the absence of an extradition agreement currently does not exist under international customary law,207 and it is generally recognised that a duty to extradite a person to another state for prosecution arises only where a treaty “fixing the prerequisites for and the exceptions to such an obligation”208 binds the state.209 Whether and within what limits there is a duty to extradite a foreign deserter therefore depends on the rules of the extradition treaty applicable and the specifics agreed upon in a particular case by the two states. ii Principles of Extradition Law While every single surrender of an alleged offender is based on an extradition agreement between the state of residence and the requesting state, numerous bilateral treaties210 and a number of multilateral regional treaties have been drawn up to establish general extradition relations. Examples are the Convention on Extradition for the Americas,211 or the Agreement between the Arab League States Concerning the Extradition of Fugitive Offenders, and the o.c.a.m. Convention on cooperation in judicial matters signed by ­members of

206 Some legal scholars, including Grotius, Vattel, Rutherford, Schmelzinger and Kent had argued that such a legal obligation existed independently of a treaty under the general duty to punish criminals. They argued that states could either punish persons on their territory themselves, or extradite them to the state in which the crime had been committed. See: i. Anthony Shearer, Extradition in International Law, p. 23; Torsten Stein, Die Auslieferungsausnahme bei politischen Delikten, p. 26. 207 Torsten Stein, Extradition, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Volume iii, p. 1059. 208 Ibid, p. 1060. 209 Anthony I. Shearer, Extradition in International Law, p. 23 with additional references; David Kennedy/Torsten Stein/Alfred Rubin, The Extradition of Mohammed Hamadei, 31 HarvILJ 1 (1990), p. 12; Torsten Stein, Die Auslieferungsausnahme bei politischen Delikten, p. 32. 210 While the precise number of existing bilateral extradition treaties is unknown, it is estimated to be approximately 1,500, see: Torsten Stein, Extradition, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Volume iii, p. 1065. 211 Montevideo Convention on Extradition, signed on 26 December 1933, entry into force on 25 January 1935, lnts, Vol. 165, p. 45. The Montevideo Convention has been ratified by 12 North and South American countries, including the u.s. See also: Caracas Agreement on Extradition of 18 July, 1911, in: cts, Vol. 214, p. 129; and The Central American Extradition Convention of 7 February, 1923, in: M.O. Hudson, Interntaional Legislation, Vol. 2, 1922–24 (1931), p. 954.

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the union of former French territories in Equatorial and West Africa.212 Within Europe, the main instrument that governs treaty law on extraditions is the European Convention on Extradition of 13 December 1957,213 together with its two Additional Protocols of 1975 and 1978.214 A comprehensive analysis of extradition law at the international and domestic levels is not possible within the scope of this study. Nevertheless, a number of principles is common to the major extradition instruments and provide a useful indication of the rules applicable to the extradition of deserters.215 These principles concern, on the one hand, the general conditions underlying each extradition, such as the rule that the offence concerned must be punishable under the laws of both countries, the rule of reciprocity, or the rule of speciality. On the other hand, the principles stipulate exceptions to the obligation to extradite, which relate to particular characteristics of the offender, the judicial process, the potential or actual sentence, or the nature of the offence.216 In the context of this study, the discussion can be limited to some of the substantive rules that establish exceptions to the treaty-based obligation to 212 The Agreement between the Arab League States Concerning the Extradition of Fugitive Offenders of 3 November 1952, in: British and Foreign State Papers, Vol. 159, p.606; The General Convention on the Cooperation in judicial matters of the Organisation Communale Africaine et Malgache (o.c.a.m.) of 12 September 1961, in: L.B. Sohn (ed.), Basic Documents of African Regional Organisations, Vol. 2 (1972) p. 616. 213 European Convention on Extradition, 13 December 1957, entry into force on 18 April 1960, unts, Vol. 359, p. 273. 214 Additional Protocol to the European Convention on Extradition, 15 October 1975, entry into force on 20 August 1979, cets No. 86. The Additional Protocol abolishes the politicaloffence exception for crimes against humanity, genocide and grave breaches of the Geneva Conventions. Second Additional Protocol to the European Convention on Extradition, 17 March 1978, entry into force on 5 June 1983, cets No. 98. The Second Additional Protocol relates to fiscal offences, judgments in absentia and amnesty. 215 See: Geoff Gilbert, Aspects of Extradition Law, pp. 1–2; Theo Vogler, Aktuelle Probleme des Auslieferungsrechts, 81 ZStW 10969, pp. 163–187; Hans Schultz, Aktuelle Problem der Auslieferung – Vorläufiger Generalbericht zum vorbereitenden Kolloquium, 81 ZStW 1969, pp. 199–242. 216 There is generally no obligation to extradite if proceedings are pending for the same offence, or if final judgment has been passed by the state of residence (principle of ne bis in idem). Furthermore, extradition treaties involving states with a civil-law system often include an exception regarding extradition of their own nationals. For further examples, see: Torsten Stein, Extradition, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Volume iii, pp. 1060–1064.

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extradite, specifically rules regarding military offences, political offences and the death penalty. 1 Military-offence Exception Within the group of military offences, a distinction is usually made between purely military offences, i.e. those that are related to the peculiarities of military service and not punishable under general criminal law, such as desertion, and mixed military offences, i.e. those that are also punishable under general criminal law.217 Persons alleged to be guilty of purely military offences have always occupied a special position in extradition relations, although state practice has changed over the centuries.218 Whereas in the 17th and 18th centuries many bilateral and multilateral treaties existed specifically to regulate the extradition of deserters, the 19th century brought a change in extradition policy leading to the exclusion of deserters from extradition and restricting extradition of military offenders to cases of mixed military offences.219 (a) Exclusion of Military Offences Contemporary bilateral and multilateral extradition treaties generally contain clauses excluding any obligation to extradite persons in connection with purely military offences. Article 3 (f) of the Montevideo Convention provides that persons who have committed military offences are not to be extradited. In contrast, Article 4 of the European Convention on Extradition is not applicable to purely military offences. As such, it neither obliges nor explicitly prohibits the extradition of military offenders. Rather, it requires that special agreements be drawn up for the extradition of military offenders.220 The exclusion of purely military offences from extradition is justified by the argument that such offences are related to the particular military situation of an individual state and, as such, are not of general international interest.221 Furthermore, extraditing alleged perpetrators of purely military offences is seen not only as an act of legal assistance but also as support for the military discipline and hence the military system of the other country.222 While states 217 Paul-Günther Pötz, Die Auslieferung wegen militärischer Straftaten, p. 60. 218 Fritz Franz, Asylrecht für Deserteure, jr 1974, p. 95. 219 For a detailed account of extradition history, see: Paul-Günther Pötz, Die Auslieferung wegen militärischer Straftaten, p. 58; Karl Doehring, Die allgemeinen Regeln des völkerrecht­ lichen Fremdenrechts, p. 64. 220 Theo Vogler, Aktuelle Probleme des Auslieferungsrechts, 81 ZStW 1969, p. 177. 221 Heinrich Grützner, Aktuelle Probleme der Auslieferung, 81 ZStW 1969, p. 132. 222 Theo Vogler, irg-Kommentar, § 7, Margin No. 2.

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are, in principle, prepared to offer one another mutual assistance in matters of justice, no state has an interest in obliging itself by way of a treaty to support the armed forces of another, even indirectly, as the defence and geo-political objectives of that state could potentially be at odds with its own.223 In cases where a military-offence exception is present in the extradition treaty regulating extradition relations between the country of refuge and the deserter’s home country, no obligation to extradite exists and the country of refuge is free to decide whether to enter into any extradition procedure with the home country regarding the deserter’s surrender. (b) Military and Defence Alliances State practice shows that the reasons for excluding the extradition of persons who have committed military offences cease to apply where states share defence and other military objectives and thus an interest in the strength, discipline and effectiveness of the armed forces of their allies. For example, numerous treaties on the extradition of deserters and conscientious objectors were concluded during World War i, such as the German-Turkish treaty of 11 January 1917.224 According to the preamble to this treaty, the reciprocal extradition of deserters from the army and navy was based on “the wish, in view of the felicitous alliance existing between the two empires, to afford mutual support in the handing of absentees and deserters.”225 Modern extradition law also shows that states no longer exclude the possibility of extradition in connection with purely military offences when they share policy and defence interests. For example, the Agreement on Coopera­ tion of 23 March 1962 between Denmark, Finland, Iceland, Norway and Sweden (the Helsinki Treaty)226 and the treaty concerning extradition and mutual assistance in criminal matters concluded on 27 June 1962 between Belgium, Luxembourg and The Netherlands (the Benelux Treaty)227 stipulate 223 Hans Schultz, Aktuelle Probleme der Auslieferung – Vorläufiger Generalbericht zum vorbereitenden Kolloquium, 81 ZStW 1969, p. 223. 224 RGBl. 1918, 316. 225 See additional examples in: Paul-Günther Pötz, Die Auslieferung wegen militärischer Straftaten, p. 58. 226 Agreement between Finland, Denmark, Iceland, Norway and Sweden concerning Co-operation (the Helsinki Treaty), 23 March 1962, entry into force on 1 July 1962, 434 unts, 145. 227 Treaty between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of The Netherlands concerning Extradition and Mutual Assistance in Criminal Matter (“1962 Benelux Treaty”), signed on 22 June 1962, entry into force on 11 December 1967, 616 unts, 80.

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an obligation on the States Parties to extradite persons wanted in connection with purely military offences. Similarly, an obligation to extradite military offenders might derive from agreements establishing defence alliances, despite not being extradition treaties in the strict sense of the term. All Member States of nato, for instance, generally undertake that they “separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.”228 This general obligation in the North Atlantic Treaty was supplemented by the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces of 19 June 1951,229 which covers conflicts of competence between Member States, especially between a sending state and a receiving state. Article vii (5) obliges nato Member States to assist each other in the arrest of members of a force in the territory of the receiving state and in handing them over to the authority which is to exercise jurisdiction.230 With the European Convention on Extradition specifically excluding military offences from its application, but not prohibiting any special extradition agreements regarding military offenders, European members of nato are free to enter into special agreements with their nato partners in order to accede to requests to hand over military offenders, including deserters.231 2 Political-offence Exception The political-offence exception has long been an undisputed principle of international extradition law; since the 19th century extradition treaties have contained clauses that permit the requested state to refrain from extraditing a person “if the requesting State seeks him, or if the alleged offence was committed, for political reasons.”232 For example, Article 3 (1) of the European Convention on Extradition states that “[e]xtradition shall not be granted if the offence in respect of which it is requested is regarded by the requested party as a political offence, or as an offence connected with a political offence.”233 228 Article 3 of the North Atlantic Treaty of 04.04.1949; 34 unts 243; BGBl. 1955 ii, 289. 229 199 unts 67; BGBl. 1961 ii 1183, 1190. 230 Article vii, para. 5 (a) of the Status of Forces Agreement states as follows: “The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.” 231 Fritz Franz, Asylrecht für Deserteure, jr 1974, p. 96. 232 Ivor Stanbrook/Clive Stanbrook, Extradition Law and Practice, p. 65. 233 See also: Article 3 (e) of the Montevideo Convention: “Extradition will not be granted: (e) When the offence is of a political nature or of a character related thereto.”

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As a result of the expanding international cooperation in the fight against terrorism over the past decades, however, the application of the politicaloffence exception is being increasingly limited, partly as a result of the application of a more restrictive definition of the term ‘political offence’. The 1977 European Convention on the Suppression of Terrorism, for instance, explicitly excludes from the term acts involving the security of civil aviation, diplomats or hostage-taking.234 Similarly, the Convention Drawn up on the Basis of Article K.3 of the Treaty of the European Union on Simplified Extradition Procedure between Member States of the European Union aims to remove this exception altogether for those Member States.235 Efforts also exist at the global level to remove certain actions and crimes from the list of political offences. For instance, Article 7 of the Convention on the Prevention and Punishment of the Crime of Genocide provides that the different forms of the crime of genocide listed under Article 3 of that Convention shall not be considered as political offences for the purposes of extradition.236 Notwithstanding increasing restrictions on the application of the politicaloffence exception, the broad spectrum of reasons and motives behind a soldier’s decision to desert merits a closer look at whether and under what circumstances desertion might be considered a political offence. (a) Definition of Political Offence Despite the fact that the political-offence exception can be found in almost every contemporary extradition treaty, no globally accepted definition of the term ‘political offence’ exists,237 and the decision as to what constitutes a political offence has been left to the authorities of the requested state based on

234 Articles 1 and 2 of the European Convention on the Suppression of Terrorism, 27 January 1977, entry into force on 4 August 1978, 1137 unts 93. 235 Article 5 of the Convention Drawn up on the Basis of Article K.3 of the Treaty of the European Union, on Simplified Extradition Procedure between Member States of the European Union, 10 March 1995, not yet entered into force, oj C 78/2. 236 Similarly, the International Convention for the Suppression of Terrorist Bombings [adopted by the u.n. General Assembly on 15 December 1997, entry into force 23 May 2001, 2149 unts 256] specifies in Article 9 that the offences listed in the Convention shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. International Committee on Legal Problems of Extradition in Relation to Terrorist Offences, Draft Articles on Extradition in Relation to Terrorist Offences, International Law Association (ed.), Report of the 63rd Conference (Warsaw 1988), p. 1032. 237 Torsten Stein, Die Auslieferungsausnahme bei politischen Delikten, p. 63.

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definitions and interpretations contained in their domestic laws.238 Different approaches can be found in the legal literature and the practice of states regarding a definition of the term ‘political offence’.239 For the purposes of this study it shall suffice to point out that a distinction is usually made between absolute political offences, i.e. crimes that are aimed exclusively and directly against the State and the political order, and relative political offences, i.e. those that are, as such, common crimes but which assume a political nature from a pursued political purpose or political context.240 Recognised examples of absolute political offences are the crimes of treason and espionage. It is clear that the military offence of desertion does not fall into the category of absolute political offences, unlike treason or espionage, the exclusive aim of which is to attack the existence and functioning of the State and its political order. (b) Desertion as a Relative Political Offence? The case is less clear with regard to relative political offences, however, and desertion might well be classified as a relative political offence in certain circumstances. This was explicitly acknowledged in the 1962 Benelux Treaty between Belgium, Luxembourg and The Netherlands, which regulates extradition and mutual assistance in criminal matters between these countries. The 1962 Benelux Treaty explicitly provides that within the extradition relations of the States Parties desertion shall not be deemed a political offence.241 In principle, the classification as a relative political offence depends on how much weight is given to the respective elements in a certain case – its nature as a common crime on the one hand and the political motivation on the other. 238 See for example Article 3 (1) of the European Convention on Extradition which explicitly leaves the definition to the requested Party “is regarded by the requested Party as a political offence.” 239 See for example: Geoff Gilbert, Aspects of Extradition Law, pp. 118 – 130, referencing also various national approaches. 240 Anthony Shearer, Extradition in International Law, p. 181; Torsten Stein, Extradition, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Volume iii, pp. 1060–1064. 241 See Article 3 (2) of the Treaty between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands concerning extradition and mutual Assistance in Criminal Matter, signed on 22 June 1962, entry into force on 11 December 1967, available at: http://consilium.europa.eu/ueDocs/cms_Data/docs/polju/en/EJN220.pdf The only other offence explicitly mentioned in Article 3 Para.2 as not qualifying as a political offence is the taking or attempted taking of the life or liberty of a Head of State or a member of the reigning House.

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As such, there is no general answer to whether or not a desertion is to be considered a political offence; it has to be decided according to the circumstances in each special case, in particular the motivation of the soldier. On the one hand, it has been pointed out that a “mere political motive alone is insufficient to characterise a common crime as political.”242 National courts and legal scholars have emphasised that “it is the act not the actor” that constitutes the decisive criterion for characterising an offence as political.243 On the other hand, the motives of the requesting state are relevant and can lead to characterisation as a political offence.244 Many of the examples discussed in the course of this study indicate that in a number of distinctive circumstances, desertions were either politically motivated or were judged as political acts by the deserters’ home country, or by the country where they sought refuge: The phenomenon of mass desertions and draft evasions during the Vietnam War amounted to a political movement, which directly targeted and affected the u.s. Government’s political processes with regard to the military engagement in Vietnam, and which, in light of high numbers of desertions, had the capacity seriously to impact the effectiveness of the armed forces. While each draft evasion and desertion helped enhance the political movement against the war, not every deserter and draft-evader was politically motivated. The political nature of the offence would thus have to be determined according to the motives of the deserter in each individual case. In contrast, it is doubtful that the desertion of the u.s. soldier André Shepherd during the Iraq War could be considered a political offence at all. While Shepherd’s claim that he deserted to avoid being forced to commit war crimes in Iraq and to serve in what he was convinced was an unlawful conflict was based on his political judgment of the war in Iraq, his desertion gained political impact mainly through the public debate surrounding his asylum claims in Germany and the presentations he made in German and foreign media years after the criminal act. It does not seem that the desertion itself was committed at the time with a view to inducing a change in the u.s. Government’s policy that would justify its characterisation as a political offence. In other cases, characterising desertion as a political offence might be justified because of the motives of the state. In the World War ii desertion cases, 242 Ivor Stanbrook and Clive Stanbrook, Extradition Law and Practice, p. 74; Geoff Gilbert, Aspects of Extradition law, p. 120. 243 Geoff Gilbert, Aspects of Extradition law, p. 120. 244 Ivor Stanbrook and Clive Stanbrook, Extradition law and Practice, pp. 69 and 73.

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for example, the political character of desertions would have derived from the way the offence was perceived and treated by the home country in a particular conflict. The merciless punishment of deserters during World War ii by both Nazi Germany and the Soviet Union indicated that desertions were not treated purely as a violation of military duties but as a serious attack on the effectiveness of the armed forces and on the security of the country itself. The stigmatisation of deserters as traitors who betrayed their country added a further political dimension to the crime and would have justified characterising these desertions as relative political offences. Desertions can qualify as political offences when they involve defection to the enemy side during an armed conflict in order to fight against the existing regime in their home country. In these cases, the relative political nature of the offence can be derived from the fact that the desertion is committed in order to prepare for another purely political offence, most notably treason.245 In ideological conflicts, desertion is often held to be the same as taking on the political viewpoint of the opponent, irrespective of whether or not the deserter defects to enemy forces. And in the same way, those who take on the enemy’s political convictions are seen as deserters – as indicated by u.s. policy during the Korean War, which regarded as deserters u.s. soldiers who converted to Communism in Korea and refused to be repatriated.246 (c) Summary Whether the political connotations surrounding desertions in many armed conflicts suffice to characterise the desertions as relative political offences within the meaning of extradition law in the individual case will depend on the broader circumstances of each case, including the legal and political context of the armed conflict and the country of refuge’s attitude towards it, and the way desertions are perceived and treated by the home country. That an offence has a political character can be argued most easily in those cases where the deserter defected, not least in light of the fact that the desertion might go in hand with classical political offences, such as treason or high treason. Furthermore, the political-offence exception might be applicable and 245 Relative political offences are sometimes defined as “those common crimes having a predominantly political character or being directly connected to a purely political offence by preparing, facilitating or ensuring the impunity of the latter,” see: Torsten Stein, Extradition, in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Volume iii, p. 1063. 246 Marco Sassoli, The Status, Treatment and Repatriation of Deserters under International Humanitarian Law, International Institute of Humanitarian Law, Yearbook 1985, p. 13.

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allow the country of refuge to deny a request for extradition in cases where the desertion expressed an objection to a particular conflict and was based on the allegation that the war itself was unjust, in particular if the deserter’s home country perceives it as an attack on or threat to its power structures. 3 The Death-penalty Exception Almost all extradition treaties since World War ii specify that surrender of a person may be denied if the act for which extradition is requested carries the death penalty in the requesting state.247 In such cases, the decision about the extradition rests with the requested state: it is not obliged to extradite, but may do so depending on its domestic extradition and constitutional laws,248 or it might make the extradition dependent on assurances from the requesting state that the death penalty will not be imposed, or will not be carried out.249 The death-penalty exception under international extradition law has to be distinguished from the prohibition on extradition that has evolved as part of the principle of non-refoulement under international human rights law. As discussed in Chapter 3, as part of the progressive protection scheme that has evolved under the echr and the European Court of Human Rights’ jurisprudence, the States party to the echr are prohibited under Article 2 echr and Article 1 of Protocol No. 13 to the echr from extraditing or otherwise transferring a person to another country, if there is a risk that the person might face the death penalty in that country.250 As such, for the member states of the Council 247 See Article 11 of the European Convention on Extradition of 13 December 1957, 359 unts 273. 248 National extradition and constitutional laws of the requested country might contain prohibitions to extradite in case of the death penalty, such as Germany, where the possibility of refusing extradition set out in the European Convention on Extradition, Article 11, in fact always constituted a duty to refuse extradition, in the light of the prohibition of the death penalty contained in the German Basic Law, Article 102, 2, para. 2, Section 2. As a result, Article 8 of the German law on international legal assistance in matters of criminal law (Gesetz über die internationale Rechtshilfe in Strafsachen) specifically provides that extradition from Germany is only allowed if the requesting state guarantees that the person concerned will not be sentenced to death, or that such sentence will not be carried out. See: Schomburg/Lagodny, Internationale Rechtshilfe in Strafsachen, Kommentar, § 11 EuAlÜbk, Rdnr. 2. 249 See also the case of The Netherland v. Short, hr 30 Mar. 1990, nj 249: u.s. authorities requested the extradition under the nato Status of Forces Agreement of a u.s. soldier who was accused of murdering his wife. The Dutch authorities agreed to the extradition only after an assurance that the death penalty would not be asked for or applied. 29 ilm 1375 (1990) and 22 Neth. y.b. Int. Law 432 (1991). 250 See Chapter 3, B ii 7(b).

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of Europe, the mere possibility of refusing extradition under international extradition law is trumped by a duty not to extradite under human rights law.251 Outside the European context, however, the death-penalty exception continues to be relevant, given the fact that many jurisdictions still include the death penalty as possible punishment for wartime desertion.252 The applicability of this exception to the extradition of a deserter therefore depends on the punishment ranges foreseen in the military criminal laws of the deserter’s home country. If desertion during an armed conflict is punishable by death under the law of the home country, this exception clause – provided that it was included in extradition treaties between the two countries – allows the country of refuge to refuse the deserter’s extradition or to make it dependent on diplomatic assurances by the home country that the death penalty would not be imposed or carried out. iii Conclusions Regarding the Obligation to Extradite A state is obliged to extradite a deserter only if a treaty concluded under international law between the country of refuge and the deserter’s home country so requires. Such extradition treaties are widespread, and the vast majority of states are party to such instruments. A number of principles common to most such treaties warrant a few general statements regarding the obligation of a country of refuge to extradite deserters: The rules regarding military offences, which form part of most extradition treaties, are of special significance. Under these rules, persons who have committed purely military offences – a category that includes desertion – are not covered by the general obligation to extradite generally stipulated in extradition treaties. As a result, even if an extradition treaty exists between the requesting and the requested state, the latter has no obligation to extradite a deserter. However, an exception to the military-offence exemption has to be noted for states that share defence and other military interests and that have entered defence alliances, as these alliances are likely to include special agreements regarding the handing over of all military offenders. While the political-offence exception generally has less importance for the extradition of a deserter, it applies when the deserter defects to the enemy and the desertion is linked to an absolute political offence, such as treason. 251 Regarding the possibility to circumvent the prohibition on non-refoulement by obtaining diplomatic assurances, see above Chapter 2, B ii 7(d). 252 See Chapter 1, B ii.

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Furthermore, the political-offence exception should not be ruled out categorically in cases where the desertion is based on an objection to a particular war on the basis that it violates the jus in bello or the jus ad bellum. Here, the exception could be applied in particular if the home country considers the desertion as an attack on the country itself and deserters are stigmatised as traitors. As far as the exception in case of the death penalty is concerned, the decision as to whether to extradite a person who faces the death penalty is at the discretion of the requested state. The requested state can refuse extradition without placing itself in breach of its obligations under the treaty, but under extradition law it does not have to do so. Despite the rejection in Europe of the death penalty as a legitimate form of punishment and the resulting prohibition on extraditing a person in case of capital punishment, large parts of the international community of states retain the possibility of imposing the death penalty in time of war and are thus likely to decide on extradition on a case-bycase basis.

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Conclusion and Outlook This study has looked at regulations of public international law that affect the status and treatment of deserters during an international armed conflict. The examination was structured according to the three factual situations that might arise following a desertion: capture and punishment by the home country, capture or crossing over to the enemy party, and seeking refuge in a country not involved in the conflict. Given that a state, as part of its sovereignty, generally has the right to request military service from its citizens and to punish military personnel for the dereliction of military duties, desertions and the punishment of a deserter are predominantly a matter of domestic law and – in the best of cases – of no concern for international law. Nevertheless, the examples of desertions during past conflicts and the ways in which these desertions have been judged and dealt with by the belligerent parties or by neutral countries illustrate that the act of desertion has many different facets, which, at times, go beyond the perpetration of a criminal offence under domestic law. Categorically reducing deserters to “fair-weather” soldiers or cowards might resonate with the interest of the home country to fight off any attempt to question or discredit their behaviour during an armed conflict, but is untenable from an international law-perspective. To the extent that contemporary international law, through the dissemination and enforcement of international humanitarian law and international criminal law, aims to form and shape each soldier’s personal beliefs and ethical and moral standards,1 it has to be acknowledged that desertion might represent the conscious decision of the individual to act in accordance with these principles of international law. Put differently, the dissemination of international humanitarian law and international criminal law and, generally, the education of soldiers as ‘citizen-soldiers’ aims to create a military that fights with a conscience. Those who decide to stop fighting in order to follow their conscience should be protected from being punished for it. The examination has shown that with regard to the developments in international law since World War ii, its provisions do become particularly relevant for the treatment of deserters in the following situations: 1 Asbjoern Eide, Gewissen und Gewalt. Das Recht auf Militärdientsverweigerung aus Gewissens­ gründen in der internationalen Diskussion, 34 Vereinte Nationen 1986, Vol. 2, p. 62.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308848_006

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• The punishment of deserters by their home country is carried out in contravention of international human rights law; • The desertion expresses a conscience-based objection to all military service; • The desertion expresses an objection to the home country’s illegitimate use of force or to the use of unlawful means and methods of warfare in a particular military conflict; • The desertion represents the only reasonable way to escape participation in crimes under international law. Without wishing to repeat here the more comprehensive summaries at the end of the Chapters or Sections above, the following paragraphs recapitulate and evaluate the main findings with respect to those issues that connect desertion to various aspects of international law: Punishment in Violation of International Human Rights International human rights law stipulates minimum standards and rights of the individual that are applicable during armed conflict and which affect the home country’s right to punish deserters: As in the case of any other national of the deserter’s home country, the deserter is protected by the judicial guarantees under international human rights laws applicable during armed conflicts when being punished by the home country. These guarantees stipulate minimum standards for a fair trial and, in particular, demand that deserters are tried and sentenced by a competent, impartial and independent court of law that respects fundamental principles of criminal law, such as the presumption of innocence and respect for the deserter’s right to defence counsel throughout the proceedings. A violation of these procedural guarantees would, however, only partially evoke a duty of international protection by a country of refuge: The deserter’s fear of punishment in violation of human rights would constitute a well-founded fear of persecution under international refugee law only in those cases where the judicial system is used as an instrument of persecution and the soldier would suffer harsher punishment for the offence than other soldiers because of his or her race, religion or membership of a particular group, or political opinion. Otherwise, the punishment in violation of procedural guarantees for criminal trials does not, as such, create a duty of international protection for the country of refuge. Punishment in violation of human rights becomes relevant for both the country of refuge and the enemy party, however, when these violations lead to

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an imminent and specific danger to the life and personal integrity of the deserter. In that case, the human rights-based principle of non-refoulement protects the deserter from being handed over to the home country by the country of refuge or, equally, by the enemy party as part of a repatriation procedure. During armed conflicts, international human rights law unequivocally prohibits the extra-legal punishments and summary executions that deserters have faced in the past. The unlawful treatment of deserters witnessed during armed conflicts is thus primarily an issue of compliance rather than a lack of clear legal standards.

The Desertion Expresses a Conscience-based Objection to Military Service The emergent recognition of a right to conscientious objection under international human rights law can restrict a country’s right to punish a deserter if he or she claims to object to all military service and was given no other possibility of expressing the absolute objection to all military service. Such absolute conscientious objection against all military activities is increasingly recognised under international human rights law as a protected expression of the right to freedom of thought, conscience and religion, and most human rights treaty bodies now openly advocate for the recognition of this right. International refugee law mirrors this trend. Deserters can claim a wellfounded fear of persecution if they are absolute conscientious objectors who object to any form of military service at all times, and if the desertion represented the only way to express this objection because the deserter’s home country made no, or no effective provision for alternative service or an exemption.



The Desertion Expresses an Objection to the Home Country’s Illegitimate Use of Force, or to the Use of Unlawful Means and Methods of Warfare during a Particular Military Conflict Other objections behind a desertion that relate to a particular armed conflict, in particular a soldier’s objection to the home country’s decision to use force at all or to the means and methods of warfare applied, are not protected under the emergent right to conscientious objection. Consequently, they do not lead to a restriction of the home country’s right to punish deserters.

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Equally, with regard to a protection as a refugee, the authorities of countries of refuge have been reluctant to accept that a soldier’s disagreement with a decision to use force or with the means and methods of warfare applied during a certain military engagement can represent a matter of conscience. Conse­ quently, selective objection to a particular military engagement is considered an expression of a political opinion, which is trumped by the home country’s sovereign rights to decide on military engagements and to demand their citizen’s participation in it. Short of categorically denying protection in all cases of selective conscientious objection, however, national courts have granted refugee status in cases where the armed conflict has been officially condemned by governmental or intergovernmental institutions. As a result, the protection of selective conscientious objectors remains unsatisfactory and methodologically inconsistent. Rejecting the idea that a deserter’s selective objection represents a decision of conscience seems incompatible with the modern understanding of the military, where the individual soldier is expected to internalise the principles of international humanitarian law and international criminal law and conduct armed hostilities accordingly. Rather than tying the protection of selective conscientious objectors to the political requirement of international condemnation, clearer legal standards should be developed that regulate the recognition of selective conscientious objection as an expression of moral, ethical and, as such, ‘conscientious’ values and therefore as deserving protection under the right to freedom of thought, conscience and religion.

The Desertion Represents the Only Reasonable Way to Escape Participation in Crimes under International Law This study argues that desertion becomes a legitimate paradigm in cases where the soldier is forced to make a choice between the demands of international criminal law and the national orders given to him during an armed conflict, because the realities on the battlefield leave no reasonable or realistic choice to reconcile these two. If the soldier could reasonably assume that his or her continued participation in the armed conflict would have forced him or her to participate in crimes under international law, and the desertion therefore represented the only feasible way for the soldier to avoid criminal responsibility, the home country’s right to punish deserters ceases entirely. From the perspective of countries of refuge, a well-founded fear of persecution has been recognised in those cases where a deserter flees from an armed

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conflict in order to avoid personal criminal responsibility. While this recognition under international refugee law is in line with the legitimisation ­exception applicable to the home country, in practice the recognition of deserters as refugees in these cases hinges on the deserter’s ability to prove that there was a “real risk to be compelled to commit a crime”. Such standard of proof is almost impossible to meet for deserters in a post-facto evaluation of the events2 and risks undermining the protection in most cases. It is argued here that it would be more consistent and fair to adopt the standard suggested for the legitimisation exception – namely, that it was reason­ able for the deserter to assume that his or her continued participation in the armed conflict would have forced him or her to commit crimes. Protection of Deserters in Enemy Hands Finally, given the extent to which all armies are faced with the phenomenon of desertion during armed conflicts, it is surprising that not a single conventional rule can be found in international humanitarian law that directly addresses the treatment of deserters. When applying the rules in the Third and Fourth Geneva Conventions and in Additional Protocol I pertaining to the status and treatment of persons in enemy hands during an international armed conflict, the legal status to be conferred upon deserters differs according to the factual circumstances of how they come into the enemy’s power. Those deserters who ‘fall into enemy hands’ against their will are to be treated as prisoners of war. Those who voluntarily place themselves there as defectors, or simply in search of protection, have the status of a protected person. While the provisions of the Fourth Geneva Convention for protected persons generally allow for greater flexibility and better fit the needs of deserters, the rules relating to prisoners of war that were designed with the soldier who remains loyal to his home country in mind fail to take account of the particular situation and protection needs of deserters. A solution to one of the most problematic issues, i.e. repatriation, is nowadays provided through the principle of non-refoulement under international human rights law rather than in the form of an express provision under international humanitarian law. For other questions, however, 2 See also: Donald Peppers, War Crimes and Induction: A Case for Selective Nonconscientious Objection, Philosophy and Public Affairs, Vol. 3, No. 2, p. 164.

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e.g. the internment of deserters separately from other prisoners of war, the rules of international humanitarian law applicable to prisoners of war lead to unsatisfactory results and mean the protection of deserters is left to the political will of belligerent parties rather than being subject to binding legal standards. Adequate and consistent legal protection of deserters during an armed conflict could be enhanced through regulations regarding the following issues: • An absolute prohibition on enlisting deserters, including defectors, in the enemy forces; • A duty to intern deserters separately from former comrades/other prisoners of war; • A prohibition on repatriating deserters against their will and the provision of a possibility to transfer them to a third country following consultations with an independent body, such as the icrc; • A stipulation that exercising the right to incite enemy combatants to desert results in a responsibility to care for those who follow the call and to protect deserters from vengeance and punishment by their home country during and after the armed conflict. To the extent that international law aims to prevent armed conflicts from deteriorating into barbarism and to facilitate a return to peace once armed hostilities have ended, there will always be a need for soldiers who find the “courage to dissent”3 and who act according to the values and standards that form the basis of international human rights law, international criminal law and international humanitarian law, even though others have chosen to disregard them. Such courage can take many forms and, in the best cases, involve the ability to change the course of action through effective leadership or discussions with comrades and superiors. In other cases, however, only less heroic acts might be possible or open to the individual, such as a silent passive standpoint, or desertion. For these cases, international law needs to provide a consistent scheme of rules that ensures that deserters are adequately protected, rather than being punished for their decision to stop fighting and act in accordance

3 Martha Minow, The Dilemma of the Superior Orders Defence, 52 MCGill L.J. 2007, p. 38.

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with international legal principles.4 While such a scheme exists in principle, although compliance is lacking, this examination has shown that certain clarifications are needed and that expanding the rules pertaining to deserters could enhance their protection, particularly when in enemy hands or when seeking refuge in a country not involved in the armed conflict.

4 See also: Cecilia M. Bailliet, Asssessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors seeking Asylum, 20 Georgetown Immigration Law Journal, 2005–2006, p. 338.

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Index of Cases

International Case Law



European Court of Human Rights



European Court of Justice

Al-Saadoon and Mufdhi v. The United Kingdom 167 ECtHR, Al-Saadoon and Mufdhi v. The United Kingdom, Application No. 61498/08, [2010]. Bayatyan v. Armenia 3, 79 ECtHR, Bayatyan v. Armenia, Application No. 23459/03, [2011]. Chahal v. The United Kingdom 170 ECtHR, Chahal v. The United Kingdom, Application No. 22414/93, [1996]. Cooper v. The United Kingdom 69 ECtHR, Cooper v. The United Kingdom, Application No. 48843/99, [2003]. Grieves v. The United Kingdom 69 ECtHR, Grieves v. The United Kingdom, Application No. 57067/00, [2003]. Öcalan v. Turkey 167 ECtHR, Öcalan v. Turkey, Application No. 46221/99, [2003]. Omar Othman v. The United Kingdom 171 ECtHR, Omar Othman v. The United Kingdom, Application No. 8139/09), [2013]. Soering v. The United Kingdom 170 ECtHR, Soering v. The United Kingdom, Application No. 14038/88, [1989]. T.I. v. The United Kingdom 170 ECtHR, T.I. v. The United Kingdom, Application No 43844/98, [2000].

Shepherd Case 190, 212–218 Andre Lawrence Shepherd v. Federal Republic of Germany, Case C-472/13, Judgment of the Court (Second Chamber), 26 February 2015. un Human Rights Committee J.P. v. Canada 77 J.P. v. Canada, Communication No. 446/1991, 7 November 1991.

Myung-Jin Choi v. Republic of Korea 78

Myung-Jin Choi v. Republic of Korea, Communication No. 1322/2004, 23 January 2007. Yeo-Bum Yoon v. Republic of Korea 78 Yeo-Bum Yoon v. Republic of Korea, Communication No. 1321/2004, 23 January 2007.

Index of cases

271

icty Erdemovic Case 96 The Prosecutor v. Drazen Erdemovic, Case No. IT-96–22-T, 31 May 1996. Delalic Case 141 The Prosecutor v. Delalic et al., Case No. IT-96–21-T, 16 November 1998. imt The Ministries Case 94 United States of America v. Ernst von Weizsäcker et al. (“The Ministries case”), u.s. Military Tribunal Nuremberg, Judgment of 11 April 1949.



National Case Law

Canas-Segovia v. I.N.S. 185 Canas-Segovia v. I.N.S., United States Court of Appeals, Ninth Circuit, [1992] 902 F.2d 720. Gillette v. United States 84 Gillette v. United States, United States Supreme Court, [1971] 401 u.s. 437. Hinzman Case 190, 197, 199 Hinzman v. Canada (Minister of Citizenship & Immigration), [2007] 1 F.C.R. 561. Hinzman v. Canada and Hughey v. Canada, [2007] F.C.A. 171. Krotov Case 188, 196 ak (Russia-Chechnya deserter) Russia (‘ak’) [2004], United Kingdom Immigration Appeal Tribunal (‘ukiat’) 00294. M.A. v. I.N.S. 193 M.A. v. I.N.S., United States Court of Appeals, Fourth Circuit, [1990] 899 F.2d 304. Koi Case 143 Public Prosecutor v. Oie Hee Koi (and Associated Appeals), Privy Council, [1967], 42 ilr 441 (1971)

Index Absence without leave 9 Aggression, crime of 93 Alsace-Lorraine 39 Allegiance 21, 138 Amnesty 31 Apartheid regime 192 Arbitrary Execution 65, 166 Asylum 179 Humanitarian Asylum 187 Bangkok Principles 208 Cartagena Declaration on Refugees 208 Carter, Jimmy 43 Chechen War 188 Colombia, Justice and Peace Law 46 Combatant Status 136, 142 Common European Asylum System (“ceas”) 209 Complimentary Protection 219 Conscientious objection 75 Absolute 76, 183 Selective 83, 186 Cossack units 131 Crimes under international law 92 Criminal liability under international law  89, 112, 193 Czechoslovak Legion 35 Dayton Peace Agreement 37, 43 Death penalty 16, 25–26, 28 Extradition Exception 245 Defences in international criminal law 95 Defector 21–22, 117, 122, 138, 143, 151 Capture by home country 122, 143 Derogation in time of war 70 Desertion In peacetime 15 Legitimacy 112 Deutsche Volksliste 27 Diplomatic Assurance 170 Disobedience to unlawful orders 101 Domestic military laws 4 China 10, 16 Colombia 9, 15 Ethiopia 13, 16

France 7, 15 Germany 5, 15, 102 India 12, 16 Malaysia 12 Republic of Serbia 7 Republic of Sudan 14, 16 Switzerland 6, 14 United Kingdom 6, 104 United States 8, 16, 104 Draft evasion 17 Duress 95 Erdemovic, Drazen 96 European Court of Human Rights 69, 79, 164–171, 219, 245 European Court of Justice 191, 212–218 European Qualification Directive 209 Evidentiary standards Legitimate desertion 113 Persecution claims 195 Principle of non-refoulement 169 Excesses Reports 60 Extradition 234 Defence Alliances 239 Military offence exception 238 Political offence exception 240–244 Extra-judicial Executions 30, 65, 166 Fahnenflucht 5 During ww ii 25 Fair Trial 66 Falling into the power of the enemy 137 Ford, Gerald R. 41 Frontbewährung 26 Geneva Conventions of 1949 134 Group Solidarity 110 Hinzmann, Jeremy 190, 197 Indië-deserteur 59 Individual criminal liability 90 Indonesian War of Independence 59 International Condemnation of conflict 191 International Court of Justice 63

273

Index International Criminal Court 90 International Law Commission 91 Nuremberg Principles 91, 99 International Military Tribunal in Nuremberg 90 International Military Tribunal for the Far East in Tokyo 90 International Protection 177 unhcr Guidelines No. 10 183 Internment 154, 233 Iraq War 2002/2003  49, 85, 189 Koi Case 143 Korean War 160 Lieber Code 120 Lord’s Resistance Army (“lra”) 45 Malgré-nous 39 Militärstrafgesetzbuch 25 Motives for desertion 1, 113 Multinational forces 19 Nationale Volksarmee (“nva”) 55 nato 19, 240 Neutrality 232 Non-refoulement see Refoulement Non-state armed forces 45 Non-international armed conflict xii, 45 Notification of Home Country 155 ns-AufhG 54 Nuremberg Principles 91, 99 oau Convention Governing Specific Aspects of Refugee Problems in Africa 207 Obedience to superior orders 97 Oradour-sur-Glane 40 Pardon 47 Peacekeeping Operations 19 Peace Treaties 32–39 American War of Independence 32 Brest-Litovsk 36, 128 Dayton Peace Agreements 37, 43 Saint-Germain-en-Laye 34, 129 Treaty of Adrianople 32 Treaty of Versailles 34, 90n288, 128 Peer Pressure 110 Peninsular War 118

Persecution, well-founded fear of  182–202, 210 Presidential Clemency Program 41 Principle of non-refoulement See Refoulement Prisoner-of-war status 121, 152, 154, 156, 157, 159, 172 For recaptured defectors 143 Procedural Guarantees 65 Propaganda 117 Protected person 140, 151, 153, 154, 157, 158, 162, 174 Punishment 24 Denationalisation 29 Forfeiture of right to punish 114 Recruitment See “use of deserters in military forces” Red Army 2, 28, 125 Refoulement At the border 224 Customary International Law 229 Evidentiary standards 169 Prohibition under human rights law  163–171, 228 Prohibition under refugee law 223–227 Refugee Status 181 unhcr Handbook on Procedures and Criteria 182 Refusenik 3, 84, 203 Rehabilitation 51 Austria 55 Basic Principles and Guidelines on the Right to a Remedy and Reparations 51 National Volksarmee 55 Wehrmacht deserters 52 Repatriation 126, 158 After wwi 127 After wwii 129 Wehrmacht deserters 131 Republikflucht 56 Rivera, Kimberly 49 Russian Liberation Army 125 Schwarz, Walter Lesley 48 Selective refusal 3 Shepherd, André 190, 212–218 Slovik, Eddie 28 Soldatengesetz 102

274 South Lebanese Army (“sla”) 30, 50 Stalin, Joseph 28, 47 Strafrechtliches Rehabilitierungsgesetz 57 Subsidiary Protection 219 Surrender 2, 138 Temporary Protection Status 221 Torture, prohibition of 164 Transfer to another power 157 Turku Declaration of Minimum Humanitarian Standards 72 un Commission on Human Rights 77 un High Commissioner for Refugees 20 un Human Rights Committee 71, 77

Index Use of deserters in military forces 123, 146, 149, 151 Vietnam War 41, 84, 108, 187, 196 Vlasov, Andrei 124, 131 Voluntary service of prisoners of war 125 Watada, Ehren 48 Wehrmacht 2, 25, 39, 52, 131 Wehrstrafgesetz 5, 15 Women deserters 172 Yugoslav Wars 43, 192 ‘Zentrale Dienstvorschrift 15/2’ 63