Last week UNHCR published new Guidelines on claims for refugee status by deserters and persons avoiding service in State armed forces, as well as forced recruitment by non-State armed groups. UNHCR states that new guidelines are necessary because of considerable developments both in the practice of States and in the restrictions placed on military service by international law.

The right of States to require military service is recognised by the right to self-defence in Article 51 of the UN Charter. However, there is also a right to conscientious objection to State military service, derived from the right to freedom of thought, conscience and religion contained in Article 18 of the Universal Declaration of Human Rights. The Guidelines explore the detail of these two competing rights.

UNCHR outlines five common types of claim alleging persecution relating to military service: (1) Objections to State military service for reasons of conscience; (2) Objections to a particular unlawful armed conflict or to the means and methods of warfare used (i.e. war crimes); (3) Objections to the conditions of State military service; (4) Claims concerning forced recruitment and/or conditions of service in non-State armed groups; (5) Child recruitment.

As with all refugee claims, the Geneva Convention requires the well-founded fear of persecution to be ‘for reasons of’ race, religion, nationality, membership of a particular social group or political opinion. The examples in the Guidelines include a refusal to perform military service based on religious convictions, the act of desertion or evasion as an expression of political views, and a situation where conscripts from a particular racial group face harsher conditions than other recruits. The Guidelines also note that ‘conscientious objectors’ are a particular social group for the purposes of the Geneva Convention.

UNHCR notes that “given their young age, dependency and relative immaturity, special procedural and evidentiary safeguards are required for claims to refugee status by children”. The severe trauma experienced by former child soldiers may inhibit their ability to present a clear account in their asylum application. UNHCR calls for appropriate interviewing techniques, a higher burden of proof on decision makers, and child-sensitive age assessment procedures.



This article originally appeared in the ECRE Weekly Bulletin of 13 December 2013
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