The Commission on Human Rights... encourages States, subject to the circumstances of the individual case meeting the other requirements of the definition of a refugee as set out in the 1951 Convention relating to the Status of Refugees, to consider granting 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 military service.
(Resolution 1998/77, OP7)
It is interesting to note that the 1951 Convention is based on a long tradition of refugee and extradition law which predates the Universal Declaration of Human Rights, and which gives at least as much attention to questions of political dissidence and the legality of armed action as motives for evading or refusing military service.
In fact neither the 1951 Convention nor the 1967 Protocol mention conscientious objection as such, which first appears in the 1979 UNHCR Handbook, - an authoritative interpretation which however itself lacks the force of law. Even in the Handbook it is not treated as a topic in its own right, but within the section on
Deserters and persons avoiding military service.
This has led to some confusion; a lot of jurisprudence in refugee cases seems to have applied to conscientious objectors the criteria appropriate to all those avoiding military service, namely that this does not prevent them from qualifying for refugee status on other grounds, is not a ground for refusing refugee status, but that prosecution for evasion or desertion would not in itself constitute persecution supporting a refugee claim, that is unless it could
be shown that he 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. (Paragraph 169 of the Handbook)
In fact, however, according to Paragraph 170,
the necessity to perform military service may be the sole ground for a claim to refugee status ... 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.
Much attention in recent refugee cases has focussed on paragraph 171:
Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, 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.
In the case of Krotov in the UK courts, it was established with advice from UNHCR, that this criterion could be applied not only to the legality of the war itself, but also to abuses in its conduct. On that basis, Krotov, a deserter from the Russian army in Chechnya, was, on appeal, granted asylum. It also seems clear that in the circumstances covered by this paragraph the punishment for desertion or draft evasion does not necessarily need to be disproportionate or discriminatory in its application in order for it to be a valid consideration in a refugee claim.
Indeed, if it is not to be seen as in contradiction to the surrounding paragraphs, the limitation in Paragraph 171 must be read as applying essentially to political objections, not to
religious or moral convictions, or to valid reasons of conscience, which are treated in Paragraphs 172 and 173, respectively.
Paragraph 172 states:
...If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status.
Paragraph 173 notes that:
An increasing number of States have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of recommendations by international agencies,and concludes,In the light of these developments, it would be open to Contracting States, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.The rather weak wording is put into context by the fact that as an example is quoted only a 1977 Recommendation from the Council of Europe Parliamentary Assembly. This is a reminder that the Handbook was drafted long before the recent developments in standard-setting and State practice.
In fact, a much clearer and more contemporary statement of UNHCR's interpretation of the law is to be found in Paragraph 26 of its 2004 Guidelines on religion-based refugee claims:
Where military service is compulsory, refugee status may be established if the refusal to serve is based on genuine political, religious, or moral convictions, or valid reasons of conscience. Such claims raise the distinction between prosecution and persecution. Prosecution and punishment pursuant to a law of general application is not generally considered to constitute persecution, ... In conscientious objector cases, a law purporting to be of general application may, depending on the circumstances, nonetheless be persecutory where, for instance, it impacts differently on particular groups, where it is applied or enforced in a discriminatory manner, where the punishment itself is excessive or disproportionately severe, or where the military service cannot reasonably be expected to be performed by the individual because of his or her genuine beliefs or religious convictions. Where alternatives to military service, such as community service, are imposed there would not usually be a basis for a claim. Having said this, some forms of community service may be so excessively burdensome as to constitute a form of punishment, or the community service might require the carrying out of acts which clearly also defy the claimant's religious beliefs. In addition, the claimant may be able to establish a claim to refugee status where ... the individual has a well-founded fear of serious harassment, discrimination or violence by other individuals (for example, soldiers, local authorities, or neighbours) for his or her refusal to serve.
-  Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4/Eng/REV.1. Although the Handbook was reissued in 1992, the UNHCR's amicus brief to the UK House of Lords in the case of Sepet and Bulbul points out (paragraph 3.44) that the 1979 text had not been revised.
-  Chapter V, B. (paragraphs 167 - 174)
-  Krotov v Secretary of State for the Home Department 2004 EWCA Civ 69 (11 February 2004)
-  GUIDELINES ON INTERNATIONAL PROTECTION: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees HCR/GIP/04/06