UNHCR's Position on Certain Types of Draft Evasion

1.         In view of the fact that a number of persons have recently made public their refusal to be drafted into the national army and may, particularly in light of latest developments, seek asylum in neighbouring States, it is necessary to recall UNHCR's position on draft evasion in the context of refugee status determination under the 1951 Convention relating to the Status of Refugees.

2.         UNHCR's position on the issue is summarized in the Handbook on Procedures and Criteria for the Determination of Refugee Status (paragraphs 167-174). As it relates to conscientious objection to military service, the UNHCR position is further elaborated in the Amicus Curiae Brief submitted by the Office in late 1988 to the United States Court of Appeals for the Ninth Circuit in the case of Canas-Segovia.

3.         The position can be summarized in the following terms:

a)         Fear of prosecution or punishment for draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Conversely, draft-evasion does not exclude a person from being a refugee. He or she may be a draft evador and a refugee;

b)         There are cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience;

c)         Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after draft-evasion. Where however the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contray to basic rules of human conduct, punishment for draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution:

d)         A person whose refusal to perform military service is based on genuine religious, moral or political convictions can also be considered a refugee, provided that the genuineness of such convictions and the likelihood of prosecution and sanction, or other treatment amounting to persecution, are established.

e)         Assuming that the religious, moral or political conviction advanced is reasonably credible, and surrounding circumstances of the case do not argue otherwise, a draft evador of that description may be accorded refugee status even though the punishment be faces does not differ substantially from that meted out generally for this offence because of simple disinclination to serve.

4.         According to information reproduced in the international media, the persons concerned refuse to serve in the national army because they belong to a nationality group claiming independence for the territory from which they originate, because they view the national army as occupying "their" country and because they fear it may be used to supress human rights and fundamental freedoms there. As they do not want to participate in such activities, they evade the draft.

5.         In view of the preceding, it may be argued that such persons have a prima facie valid claim to refugee status under the 1951 Convention. Should such persons seek asylum in neighbouring countries, they should be protected from refoulement while their status is being determined.

Geneva, January 1991