Military Service Evasion

Section: ,


Martin Jones is a lecturer in international human rights law at the Centre for Applied Human Rights at the University of York.

Martin has previously taught and served as a visiting researcher at Osgoode Hall Law School (Canada), Queen’s University (Canada), the Centre for Refugee Studies (Canada), the University of East London (UK), Georgetown University (USA), the University of Michigan (USA), the American University in Cairo (Egypt) and, most recently, the University of Melbourne (Australia). Martin has been a member of the executive committee of the International Association for the Study of Forced Migration and was chair of its 11th biennial conference in Cairo.


Military service evasion – whether it is labelled “draft dodging”, “conscientious objection”, or a myriad of other terms – is a common issue in refugee status determination. As such, refugee status decision makers and advocates are frequently confronted with the question: Under what circumstances can fear of compulsory military service provide the basis for international protection as a “refugee”? There is no simple or uncontested answer to this question; the jurisprudence is somewhat divided and policy makers such as UNHCR have been largely silent.

What these web pages attempt to do is very basic: provide some background on the phenomenon of compulsory military service in the context of refugee claims and to begin to sketch out two types of military service evasion claim: claims based upon (i) prohibited forms of military service due to the nature of the conscriptor or the conscript, and those based upon (ii) prohibited mistreatment related to the specific tasks entailed by military service.  The traditional and most commonly known example of military service evasion, “conscientious objection”, is located in the first category. The more recent and more controversial example of Iraqi war “resisters” (such as Jeremy Hinzman in Canada) are located in the second category.

Military service evasion and forced migration

Compulsory military service is practiced in about 100 countries; conscription exists as a reality in a majority of the member states of the United Nations and for an overwhelming majority of the population of the world.[1] Compulsory military service has been both denounced as nothing less than the surrender of “the most essential rights of personal liberty”[2] and praised as the sine qua non of full citizenship.[3] Despite a debate that continues to this date concerning its legitimacy, compulsory military service is a continuing phenomenon that affects the lives of many millions of men around the world.[4]

Many of the countries requiring military service are a significant source of refugees.  Of the top ten source countries for refugees, eight require military service.[5] It is not surprising, therefore, that the topic of compulsory military service, and in particular the issue of the status of military service evaders, has been raised in refugee determination proceedings.[6]

  1.  The historical context of compulsory military service

In the context of the western developed world, four countries of which will provide the focus of this overview, compulsory military service permeates the theology, literature and societal structures.  This is not to suggest that compulsory military service is an inherent characteristic of societies in the western developed world, or any other societies, but rather to underscore at the outset the historical diversity of influences upon any analysis of compulsory military service.[7]

The earliest religious texts of the Judeo-Christian religion make reference to conscription.  The Old Testament (or Hebrew Bible) explicitly mentions both impressment into military service[8] and the presence of a more formalized program of conscription.[9] Early theological literature also comments on the tension between religious and secular duties that compulsory military service brings into play.  For example, Rabbi Elazar of Modi’in of the Third century, relying upon the alliteration of the Hebrew words for sword (saifa) and scroll (safra), taught  that “if you observe the torah which is written in the one, you will be saved from the other; if not, you will be smitten by it”[10] While this teaching of the mutual exclusivity of the scroll and the sword has not gone without challenge, it does provide the dichotomy between conscience and military service – or more fundamentally the differing conceptions of duty – that continues to be at the centre of the issue of compulsory military service.

Some of the earliest dramatic literature of the Western canon also refers to and deals with conscription.[11] In particular, the mythology of the Trojan War, including the Illiad, contains lengthy storylines detailing the conscription of Philoctetes, Odysseus, Achilles and Iphigenia.[12] Notwithstanding the frequently stated proposition in some of the literature that opposition to military service evasion is a product of modern individualism, military service evasion was neither an unusual or a completely condemned phenomenon in pre-modern times.

In a modern sense, formal conscription began to exist in Europe since at least the later half of the seventeenth century in the form of decreed service in a standing milice (militia).[13] The English language term “conscription”, in its current military sense, entered our vocabulary in the 16th century.[14] An expansion of the use of conscription and a linkage between compulsory military service and citizenship occurred following the French Revolution of 1789.  In August 1793, the National Convention governing France declared that, as part of what was known as a “levée en masse”, the young, unmarried men of France were to go forth to battle under banners bearing the inscription “The French people risen against tyranny”.[15] The French levée en masse of August 1793 whereby, as an act of patriotism and egalitarianism, all young unmarried men were required to serve in the nation’s armed forces is conventionally viewed as the beginning of the modern age of compulsory military service.[16] As will be seen later, the genesis of modern conscription in the levée en masse of 1793 is neither without controversy nor significance.

Despite its modern prevalence, there is no universally accepted definition of compulsory military service.[17] Consequently, there is no universally accepted count of the number of nations currently imposing compulsory military service; depending upon the definition applied the number of states imposing compulsory military service ranges slightly above or below one hundred.  As noted at the outset of this overview, what is uncontested is that a majority of nations impose compulsory military service on a majority of the world’s population.

  1.  The current reality of compulsory military service

The Secretary General in his report to the Commission on Human Rights in late 1999 found that 99 out of the 170 countries surveyed imposed conscription.[18] This report was based, for the most part, upon an earlier report by the Secretary General, also submitted to the Commission on Human Rights, which found that 93 out of 162 countries imposed conscription.[19] However, in both reports the implicit definition of conscription was very broad, including extra-legal conscription and conscription of those voluntarily enrolled in national military secondary schools.[20] The length of conscripted service among the states surveyed ranged widely, from three days to four years.[21]

In a separate study, also conducted in 1997, the Quaker United Nations Office found that 34 out of 52 countries surveyed imposed conscription.[22] However, the definition of conscription which was applied included states imposing “selective” conscription.  Notwithstanding this definitional issue, extrapolated to the full 191 member states of the United Nations, the Quaker survey is consistent with the Secretary General’s survey.

Finally, the non-governmental group War Resisters International (the “WRI”) completed a survey in 1998 of countries imposing conscription.  Although the WRI report does not tabulate its results, a count of its entries reveals 96 of 177 states surveyed to be imposing compulsory military service.[23]

All surveys seem to agree that a majority of UN member states have conscription.  However, the precise listing of many countries varies between the lists.[24]  The assessment of whether a particular nation imposes compulsory military service is complicated by inherent difficulties in interpreting national legislation, policy and frequently varying executions of legislation and policy in different regions of the country.[25]

These obstacles that arise in the categorization of states as either imposing or not imposing conscription are frequently cited in the refugee jurisprudence.


[1] See below for a discussion of the methodological issues that require any enumeration of the total number of countries requiring compulsory military service to be approximate.

[2] Philip Bobbitt “National Service: Unwise or Unconstitutional” in Martin Anderson, ed. Registration and the Draft: Proceedings of the Hoover-Rochester Conference on the All-Volunteer Force (Hoover Institution, Stanford University, 1982) at 61 quoting Daniel Webster’s address to the US Congress in 1814.

[3] George Q. Flynn Conscription and Democracy: The Draft in France, Great Britain and the United States (Greenwood Press, Westport CN, 2002) at 15 (referring to the Constitution of the French First Republic which declared “[T]ous les français sont en requisition permanente pour la service des armies”.

[4] The male gender will be used to refer to military service evaders and objectors.  It is accepted wisdom that language shapes as well as reflects our thinking.  While this observation may usually suggest the use of inclusive language, it also requires that inclusive language should not be used where such language would obscure the underlying reality.  In the case of military service, almost all of those conscripted into the military every year are male.  Only Israel consistently requires females to perform military service.

[5] At the time of the last global service of military service (in 2003), the top ten source countries for refugees in were Afghanistan, Burundi, Angola, Sudan, Somalia, the Democratic Republic of the Congo, Iraq, Bosnia-Herzegovina, Vietnam, and Eritrea.  Conscription was reported to occur in all countries except Somalia.  See UNHCR Refugees by Numbers: 2003 (UNHCR, Geneva, 2003) at 9 and Bart Horeman and Marc Stolwijk Refusing to Bear Arms: a world survey of conscription and conscientious objection to military service (War Resisters International, London, 1998) (hereafter “Refusing to Bear Arms”) q.v. entries for each of the top ten source countries.

[6] The term “conscientious objector” is avoided in this overview.  While much of the literature employs this term, its meaning is not consistent; the definition of “conscience” varies between authors.  Furthermore, it is often used to distinguish those who would evade military service on religious grounds from those who would evade military service on other grounds – suggesting a moral or spiritual priority that belies the conclusion that the authors would have us draw both about the worthiness of such objectors to receive protection and the unworthiness of other objectors to receive protection.  In order to avoid this confusion and the appearance of bias, the terms “military service evaders” have been used throughout this overview.  The use of this term also allows the debate to be expanded beyond an argument over the definition of “conscience”.

[7] Many non-Western countries have histories of conscription beyond those fostered through colonial relations.  However, there is also a history of interplay between colonialism, nascent independent states and military service.  For one of the earliest examples of this interplay see Khaled Fahmy All the Pasha’s Men: Mehmed Ali, his army and the making of modern Egypt (Cambridge University Press, Cambridge, 1997).

[8] “There was hard fighting against the Philistines all the days of Saul; and when Saul saw any strong man, or any valiant man, he attached him to himself.” 1 Samuel 14:52

[9] See references to the census of able men over twenty years of age and the basis of exemptions from military service, at, respectively, Numbers 1:1-3 and Deuteronomy 20.

[10] Reuven Hammer, transl. and ed., Sifre: A Tannaitic Commentary on the Book of Deuteronomy (Yale University Press, New Haven, 1986) at para. 40:7 at 122 as quoted in Stuart A. Cohen “The Scroll or the Sword? Tensions between Judaism and Military Service in Israel” at 254 in Stuart A. Cohen, ed. Democratic Societies and Their Armed Forces: Israel in Comparative Context (Frank Cass Publishers, London, 2000).

[11] See in relation to the comedies of Aristophanes in particular I. C. Storey “The ‘blameless shield’ of Kleonyrnos” Rheinisches Museum 132:247-261 and in relation to Greek drama more generally Matthew R. Christ “Draft evasion onstage and offstage in classical Athens” The Classical Quarterly Volume 51, Issue 1, May 2004: 33-58.

[12] Matthew R. Christ “Draft evasion onstage and offstage in classical Athens” The Classical Quarterly Volume 51, Issue 1, May 2004: 44-55.

[13] Isser Woloch “Napoleonic Conscription: State Power and Civil Society” Past and Present, Number 11, July 1986: 102.  Other authors have also linked the modern form of conscription to earlier Swedish practice of “allotment” (indelningsverket).

[14] Oxford English Dictionary, q.v. “conscription” and “conscribe”. Although used to describe forced military service in general before the French Revolution, after the French Revolution the term came to refer specifically to the lottery method used to select conscripts in revolutionary France (although a more general colloquial usage persists).

[15] Richard B. Challenger, The French Theory of the Nation in Arms, 1866 – 1939 (Russel and Russell, Inc. 1965) at 3 quoting Jean B. Duvergier, ed. Collection complète des lois, dérets, ordonnances, réglements, avis du conseil d’etat . . . de 1788 à 1830 (30 vols., Paris: Guyot, 1834 – 1838), volume VI at 108.

[16] See W. Doyle The Oxford History of the French Revolution (Clarendon Press, Oxford, 1989) at 205.  Coincidentally, the levée en masse is also seen as the origin of “total war”, a type of complete dedication of the population to the war effort that would culminate in the devastating wars of the Twentieth Century.  See Challenger, supra., at fn.18 .

[17] Nor do surveys of conscription often state the definition of compulsory military service that is being applied.  All four of the subsequently mentioned surveys suffer from this flaw (although at least two of the four attempt to distinguish between different forms of compulsory military service).

[18] In the Annex to the “Report of the Secretary General submitted pursuant to Commission resolution 1998/77: Civil and Political Rights, Including the Question of Conscientious Objection to Military Service” 56thSession of the Commission on Human Rights, E/CN.4/2000/55 (17 December 1999).

[19] In Annex II to the “Report of the Secretary General prepared pursuant to Commission resolution 1995/83: The Question of Conscientious Objection to Military Service” 53rd Session of the Commission on Human Rights, E/CN.4/1997/99 (16 January 1997).

[20] El Salvador and Chad, respectively.  Ibid.

[21] Denmark (for reserve conscripts) and China. Ibid.

[22] Table I in Rachel Brett and Joanne Constable “The Human Rights Committee and the Right to Conscientious Objection to Military Service” Quaker United Nations Office, Geneva (September 1997) (online at quno/co.html, last accessed on 11 August 2004).

[23] The exact status of compulsory military service was ambiguous or not known in seventeen of the countries surveyed.  Curiously, or perhaps to underscore the difficulties in determining the exact numbers, the House of Lords, in its decision in Sepet and another v. Secretary of State for the Home Department [2003] UKHL 15 (hereafter Sepet), incorrectly stated that Refusing to Bear Arms listed the total number of states imposing conscription as 95 out of 180.

[24] Most notably the United States of America (along with Honduras, the example used below) is listed variously as a country imposing conscription and a country not imposing conscription.

[25] Differing criteria of eligibility for compulsory military service may exist in different geographical regions or administrative units of a country (as is the case with China).  Of course, differing criteria may also be applied to different segments of the population (typically as defined by ethnicity; age; gender; and, familial and educational pedigree).

Can military service evasion provide the basis for protection as a refugee?

Given the prevalence of compulsory military service, it is not surprising that many of the countries requiring military service are a significant source of refugees.  There is presumably at least a weak correlation between conscription, engagement in internal or external conflict and consequent refugee outflows.

As noted earlier, of the top ten source countries for refugees in 2002 at least eight require military service; a similar reality exists in 2010.[1] A consequence of this correlation between compulsory military service and refugee source countries is that the topic of compulsory military service, and in particular the issue of the status of military service evaders, has been raised in many refugee determination proceedings.

The precise frequency of military service evasion being raised in refugee determination proceedings is difficult to determine due to the in cameranature of most refugee determination (RSD) proceedings.  However, a brief survey of reported decisions in the major common-law jurisdictions, reveals that military service evasion is not an infrequent consideration in refugee determination proceedings.[2] Informal consultations with UNHCR RSD officers and legal aid providers confirm that military service evasion is a frequent issue in UNHCR RSD.

Nor is the issue of military service evasion in refugee determination proceedings a purely abstract consideration.  According to a 1995 report of the United Nations High Commissioner for Refugees, as many as thirty-five civil wars and a much larger number of low-intensity conflicts were being fought around the world.[3] At least eight of the top ten source countries for refugees in 2002 were home to civil war or low-intensity conflict.[4] While not all military service evaders fear military service because of participation in actual combat, armed conflict is not an infrequent precipitator of military service evasion, subsequent flight and a request for protection.

In Canada, there have been at almost one thousand reported refugee claims involving the evasion of military service.[5] In the USA, there have been about one hundred Federal Court challenges to refugee determination decisions involving the issue of military service evasion and an unknown, but likely much greater, number of refugee determination decisions involving the same issue.[6] In Australia, there have been at least 200 first instance decisions involving military service evasion.[7] In the United Kingdom, there have been only about one dozen judicial considerations of military service evasion and about two dozen reported decisions involving military service evasion in refugee determination proceedings.[8]

In all of these countries, military service evasion in the context of refugee determination decision has been considered in depth by either the ultimate or penultimate judicial body.[9] In addition, all of these countries consider the issue of military service evasion important enough to canvass all claimants as to whether their claim relates to the issue.[10]

Yet despite the relative prominence of military service evasion as an issue in refugee proceedings, the jurisprudence of each jurisdiction surveyed remains incoherent and displays a notable ignorance of the jurisprudence of the other jurisdictions – a deficit that will be the subject of further comment later.  In the comment of a Canadian tribunal on the topic of “conscientious objection” can equally be extended to the more general topic of military service evasion:

The question of whether a conscientious objection to performing military service can provide grounds for a valid claim to Convention refugee status is one that has caused difficulty for Canadian and international adjudicators alike.[11]

The difficulty encountered by the tribunals and judiciary encountering the issue of military service evasion has expressed itself in the form of an analytically flawed jurisprudence. [12]


[1] The top ten source countries for refugees in 2002 were Afghanistan, Burundi, Angola, Sudan, Somalia, the Democratic Republic of the Congo, Iraq, Bosnia-Herzegovina, Vietnam, and Eritrea.  Conscription was reported to occur in all countries except Somalia.  See UNHCR Refugees by Numbers: 2003 (UNHCR, Geneva, 2003) at 9 and Bart Horeman and Marc Stolwijk Refusing to Bear Arms: a world survey of conscription and conscientious objection to military service (London, War Resisters International, 1998) (hereafter “Refusing to Bear Arms”) q.v. entries for each of the top ten source countries.

[2] For a more thorough analysis of the jurisprudence see Chapter 2, infra.

[3] UNHCR, The State of the World’s Refugees 1995: In Search of Solutions (New York, Oxford University Press, 1995) at 25.

[4] See fn. 4, Chapter 1, supra.  Civil war or low-intensity conflict occurred in 2002 in Afghanistan, Burundi, Angola, Sudan, Somalia, the Democratic Republic of the Congo, Bosnia-Herzegovina, and Eritrea.  It is arguable that Iraq should also be included on this list as well.

[5] A search of the reported decisions of the Immigration and Refugee Board (the “IRB”) since its inception lists almost one thousand reported refugee determination decisions discussing military service evasion.  A review of these cases reveals that in about 100 of these cases the status of an evader of military service was a determinative issue.  Reported IRB decisions are limited to cases that are “correct” in law and of “interest” to the Board or the public.  A search of Federal Court of Canada (and appellate) decisions reveals about 24 decisions discussing the evasion of military service.  The IRB decisions date back to its creation in 1989; the Federal Court decisions date back to a similar date.

[6] A search of reported US Federal Court (and appellate) decisions lists slightly less than 100 reported decisions discussing military service evasion. A review of published Board of Immigration Appeal (the “BIA”) decisions reveals about 12 decisions discussing the evasion of military service.  However, published BIA decisions are restricted to decisions of a “precedential” nature.  The BIA was created in 1983.  The BIA decisions date back to 1983; the Federal Court decisions date back to 1990.

[7] A search of reported Refugee Review Tribunal (the “RRT”) decisions lists almost 1000 decisions involving in some manner military service evasion.  However, the vast majority of these decisions (about 800) involve the issue only peripherally, often simply to rule out the issue as relevant to the case at hand.  In recent years, the RRT has only published decisions declared to be of “particular interest”.  The judicial and other appellate bodies decisions include less than a dozen decisions by appellate administrative bodies.  All decisions date back to the early 1990’s.

[8] A search of reported UK judicial decision and United Kingdom Immigration Appeals Tribunal (the “IAT”) reveals about a dozen judicial considerations of military service evasion and about twice as many decisions of the IAT involving military service evasion.  However, IAT decisions are largely available only since May 2003.  Even after May 2003, the IAT has only published decisions of noteworthy character or having precedential value.

[9] The highest level judicial decision in each country are as follows (listed by country and whether the decision was of the ultimate or penultimate judicial body):  Zolfagharkhani v. Canada [1993] 3 F.C. 540 (FCA) (Canada, penultimate); INS v. Elias-Zacarias, 502 U.S. 478 (USCA, 9th Circuit) (USA, penultimate) and INS v. Canas-Segovia, 502 U.S. 1086 (1992) (USSC) (USA, ultimate); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (31 May 2001) (Australia, ultimate); and, Sepet and Another v Secretary of State for the Home Department [2003] UKHL 15 (20 March 2003) (HL) (UK, ultimate).

[10] The subject is canvassed primarily in the written biographical surveys all refugee claimants are required to complete.  The questions relating to military service in each country are as follows: Questions 8(a) through (z) of the Personal Information Form (Canada); Questions 76 and 77 of the Primary Application Form (Australia); Questions 3A and 3B of Part B of the I-589 form (USA); and in the Statement of Evidence Form (UK).

[11] T95-06356  (CRDD, B. Kalvin and W.M. Avery, 30 September 1997) at 20 of the decision of Avery.

[12] On this, see Martin Jones “The Refusal to Bear Arms as Grounds for Refugee Protection in the Canadian Jurisprudence” IJRL Vol. 20:1 (2008) at 123-165.

The starting point of the analysis of the issue

 International refugee law

Yet, notwithstanding the frequency and significance of military service evasion as an issue in refugee determination proceedings, there is little by way of legislative or administrative guidance on the subject.  The governing documents of contemporary refugee law are silent on the subject.[1] The only official pronouncement by the UNHCR on the topic of military service evasion can be summarized as follows:

Fear of prosecution and punishment for desertion or draft‑evasion does not in itself constitute well‑founded fear of persecution under the definition. Desertion or draft‑evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft‑evader.[2]

This statement was drafted in 1979 at the very start of UNHCR’s active engagement with the then nascent refugee caselaw.   After three decades, tens of thousands of cases, and countless UNHCR position papers on other topics, the agency has been unable to supplement this guidance in other than an ad hoc, population-specific manner. In other words, while evasion of military service is recognized as a “special case”, there is no clear or definitive method of evaluating such cases and the UNHCR position on military service evasion can, at best, be described as ambivalent.

Municipal refugee protection legislation implementing the 1951 Convention and 1967 Protocol also does not explicitly address the issue.  The only exception to the international and municipal silence on this subject is that military service evaders who have already been enrolled in the military may be excluded from protection if they have been party to serious human rights abuses.[3] When municipal administrative directions speak of military service evasion it is usually in manner similar to the following: “The courts have established some very basic points of departure for the analysis of such claims.”[4] Indeed, it has been left to the jurisprudence to establish whether and how military service evaders may gain protection as refugees.

The lack of specific legislative and administrative guidance on the topic of military service evasion is not without precedent either in refugee law or international law in general.  Much of refugee law is based upon the jurisprudential interpretation of Article 1 of the 1951 Convention.[5] However, in recent years, legislative and administrative provisions have been introduced in order to deal with other “special cases”, notably the cases of female refugees.[6] While military service evaders may not be the numerical equivalent of female refugees, when the focus is narrowed to the basis for claim, the number of claims based upon military service evasion is comparable with the number of claims based upon the female gender.[7] As will be seen later, the comparison to the administrative and legislative treatment of refugee claims based on the female gender and child refugee claimants is also not without implications for the substantive treatment of military service evasion in the refugee jurisprudence.

Ironically, even the development of the jurisprudence has been shaped by the legislative and administrative silence of international and municipal legal regimes regarding military service evasion; in an oddly recursive manner, the silence itself has occasionally been used as a starting point of analysis by the jurisprudence.  The House of Lords, commenting on the contrast between the gap in addressing military service evasion in international legal legislation (particularly, the ICCP) and the general direction of the jurisprudence (noted by Waller, LJ in the English Court of Appeal) which suggests an increasing tolerance for the protection of military service evaders, commented as follows:

Despite my genuine respect for the care and thoroughness with which Waller LJ has put forward his conclusions, and with a measure of reluctance since they may well reflect the international consensus of tomorrow, I feel compelled to accept the view of the Court of Appeal majority on the state of the law today as revealed by the abundant materials before us [indicating the lack of explicit legislative guidance with respect to any type of military service evader].

The absence of much legislative and administrative direction on refugee claimants evading military service evasion is particularly striking given the municipal experiences of many refugee receiving countries, including the countries surveyed in this overview.

 International human rights law

With a few notable exceptions, mainly in the jurisprudence of the United Kingdom, the jurisprudence of the UN Committee on Human Rights and the European Court of Human Rights has not been considered in the refugee jurisprudence.[8] This is startling given that both bodies have explicit jurisdiction to interpret individual complaints relating to international statutes that specifically address the issue of military service and that the jurisdiction of both bodies include numerous jurisdictions that continue to practice compulsory military service.

Specifically, the UN Human Rights Committee has dealt with military service through complaints and directives under Article 8 of the International Covenant on Civil and Political Rights which, while prohibiting forced or compulsory in general, allows an exemption from this prohibition for “any service of a military character”.[9] Similarly, the European Court of Human Rights (and its predecessor bodies, the European Commission on Human Rights and the Court of Human Rights) have adjudicated complaint involving an almost identical provision in Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms.[10] Both of these supranational bodies have developed a significant jurisprudence, numbering in the dozens of cases, which has all but been ignored by the refugee jurisprudence.  As the proposed analysis of this overview will suggest, guidance can be drawn from this jurisprudence.  The underlying framework of international human rights law provides a useful structure for the analysis of military service evasion in refugee law.

In addition to international human rights law, there also exists a body of international law specifically developed to address the propriety of military conduct during armed conflict: international humanitarian law.  Taking its most concrete form in the series of international instruments negotiated in Geneva following the Second World War, international humanitarian law does address the scope of permissible conduct by members of a military force engaged in occupation and in conflict.  As is clear from even a cursory analysis of the jurisprudence, the claims of many military service evaders are based upon critiques of the past and prospective conduct of the military force into which the individual will be, is or has been conscripted.  While perhaps the most obvious example of this can be found in the recent series of cases of American citizens seeking refugee protection in Canada as a result of the war in Iraq, there are also many other prominent examples.  However, international humanitarian law also addresses very specifically the issue of conscription into armed forces engaged in conflict and occupation.  It proscribes the conscription of certain categories of individuals.  Despite the clear relevance of international humanitarian law, both in terms of an evaluation of the legality of the actions to be taken during conscripted service and the act of conscription itself, the jurisprudence makes scant explicit reference to its provisions.[11]

 Other areas of law

Consistent with the prevalence of conscription, many refugee receiving countries impose conscription.[12] While none of the countries surveyed in this overview fall into this category, all four countries have had recent and significant experience with conscription. Each of the countries surveyed will be briefly reviewed in sequence below; a more elaborate evaluation of the municipal context of conscription in these countries will be conducted throughout this overview.[13]

Conscription in Canada dates back to 1793.[14] Conscription existed most famously – and with much controversy – during both the First and Second World Wars.  However, the conscription imposed during the Second World War was restricted to conscripted domestic military service; overseas military service remained voluntary.[15] This not uncommon form of conscription led to Canada possessing what has become known as the “largest all volunteer army ever fielded”.[16] Canada no longer imposes conscription.[17]

Some Canadian municipal jurisprudence was produced as a result of individual challenges to conscription during these conflicts.  More recently, in the early 1970’s, Canada was home to at least 30,000 military service evaders from the USA – almost all of whom were ultimately accorded permanent resident status through a special immigration procedure.  The media have recently paid a significant amount of attention to the, at the present time, small phenomenon of military service evaders fleeing to Canada in order to avoid service in the US military in Iraq.

In the USA, conscription, at least at a state level, dates back to the War of Independence.[18] Conscription also existed during the Civil War and during both the First and Second World Wars.[19] Following the Second World War, conscription continued to be practiced until 1973, most notably during the Korean crisis and the Vietnam War.  The practice of conscription in the USA during the Vietnam War also led, as noted above, to the migration of a significant number of military service evaders from the USA to Canada.  Since 1980, the USA has required the registration of able bodied men under the Selective Service Act.  However, the imposition of conscription in the USA would require both legislative and executive consent. The recent controversy over the potential reinstatement of conscription during the late stages of the 2004 presidential elections suggests that the resumption of conscription in the USA would be politically difficult.

In terms of jurisprudence, significant municipal jurisprudence exists on the issue of conscription dating largely to the Vietnam War.  There exist a plethora of judicial decisions reviewing the actions of the “Selective Service Boards” that administered conscription in the USA.[20] In recent years, various manpower policies of the USA military have been challenged as constituting unlawful conscription.  These challenges have not yet been ruled on by the courts.

In Australia, there are no constitutional provisions regulating compulsory military service.[21] However, compulsory military training (beginning as young as age 12) was introduced in 1905.  This measure was met with much resistance.[22] Conscription for domestic service was imposed during the First World War.  However, conscription for overseas military service was twice rejected in national referenda.  During the Second World War, conscription for both domestic and overseas service (the latter coming in 1942) was uncontroversial – not surprising given the attacks on Darwin and other Australian cities during the war.[23] Between 1966 and 1971, Australia imposed, with much controversy, conscription for service in the Vietnam War.[24] Conscription ended in Australia in 1973.

In terms of jurisprudence, the presence of conscription (and significant opposition to conscription) has resulted in substantial municipal jurisprudence.  In addition to ruling on prosecutions of military service evaders, between 1970 and 1973 the courts of Australia ruled on the “possible status [of individuals] as conscientious objectors”.[25]

In the United Kingdom, conscription dates back to the feudal era.  Even the English language term “conscription” was used in Britain its current military sense long before the Napoleonic era, arguably as early as the 16th century.[26] As early as 1704, the British Parliament allowed the forced recruitment of “such able bodied men as do not follow or exercise any lawful Calling or Employment of do not have some other lawful and sufficient Support and Maintenance, to serve his Majesty as Soldiers.”[27] In the modern era, conscription existed in the later stages of the First World War.  Conscription (or, as it later became known, “national service”) was also introduced in the United Kingdom and continued until 1960.  The period of conscription between the end of the Second World War and the end of national service was the only time in British history that peacetime conscription occurred.

Military conscription has produced a vast jurisprudence in the United Kingdom.  Conscription was administered by administrative tribunals during both the First and Second World Wars.  The numerous exemptions, and in particular the allowance for some forms of conscientious objection, has produced a substantial body of decisions that has hitherto gone unnoted in British refugee jurisprudence on military service evasion.[28]

As this brief overview reveals, military service has existed in all of the countries surveyed in this overview.  The existence of military service has produced a significant body of municipal jurisprudence.  Yet, despite this significant jurisprudence and the number of refugee determination proceedings in which military service is raised as an issue, the municipal jurisprudence on military service (including military service evasion) has not been cited in a single refugee determination decision or subsequent judicial review (including appellate decisions).   Again, one finds a shocking silence, albeit of a different nature.

There is a substantial municipal legislative and administrative history with respect to military service and military service evasion.  Surprisingly, to date none of it has been cited in the refugee jurisprudence.  In the context of such a abundance of municipal history and jurisprudence, the silence is troubling.  The municipal history and jurisprudence address many of the issues of central importance in the determination of claims based upon military service evasion: the legitimacy of conscription; the possible limitations on conscription; and any recognized exemptions from conscription.  As an important source and in order to avoid the segregation from refugee law that has so far plagued the municipal experience, the municipal history and jurisprudence of military service evasion will be integrated into the analysis of refugee law jurisprudence on the subject.


[1] Both the 1951 Convention and the subsequent Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force 4 October 1967 (hereafter the “1967 Protocol”) do not address the status of military service evaders.

[2] Handbook at para. 167.

[3] This exclusion from protection in municipal legislation would occur either at the stage of the preliminary determination of their eligibility to apply for protection or in the later substantive determination of protection.  In the Canadian context, see IRPA ss. 31(1) and 101(1) respectively.  However, this exclusion of a claimant occurs qua human rights abuser and not qua military service evader.

[4] Immigration and Refugee Board “Interpretation of the Convention Refugee Definition in the Case Law (Legal Services, Immigration and Refugee Board, Ottawa, December 2002) at § 9.3.6 (emphasis added).

[5] Article 1 of the 1951 Convention defines the term “refugee”.

[6] On women refugees, see for example: Immigration and Refugee Board, “Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution” (November 25, 1996) (Canada); Immigration and Naturalization Service, “Gender Guidelines: Considerations for Asylum: Considerations for Asylum Officers Adjudicating Asylum Claims from Women” (26 May 1995) (USA); Department of Immigration and Multicultural Affairs, “Guidelines on Gender Issues for Decision Makers” (July 1996) (Australia); Dutch Immigration and Naturalisation Service, “Work Instruction No. 148: Women in the Asylum Procedure” (1997) (The Netherlands); Immigration Appellate Authority, “Asylum Gender Guidelines” (November 2000) (UK); and Executive Committee of UNHCR “Conclusion No. 39 (XXXVI): On refugee women and international protection” (1985) (International). The Swedish legislature also inserted a specific provision in the Aliens Act in 1997 that people persecuted on account of their gender are entitled to a humanitarian residence permit. A 1998 amendment to the Swiss Asylum Act stipulates that gender-specific flight motives must be taken into account.  Section 1(1) of the Irish Refugee Act 1996 defines “membership of a particular social group” so as to include membership of a group of persons whose defining characteristic is their belonging to the female or the male sex.  For a good review of developments with respect to women refugees, see Rodger Haines “Gender-Related Persecution (UNHCR Commissioned Background Paper)” (UNHCR, Geneva, 10 August 2001).   See also on child refugees: Immigration and Refugee Board, “Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues” (30 September 1996); Immigration and Naturalization Service, “Guidelines for Children’s Asylum Claims” (10 December 1998) (USA); Directorate of Immigration Finland “Guidelines for Interviewing (Separated) Minors” (March 2002) (Finland); and UNHCR, “Guidelines On Policies And Procedures In Dealing With Unaccompanied Children Seeking Asylum” (1997) (International)  For a good review of developments with respect to child refugees, see Alice Edwards “Age and Gender Dimensions in International Refugee Law” 46 to 80 in UNHCR Global Consultations.  Interestingly, with respect to child military service evaders, the US child refugee claimant guidelines provide some guidance, albeit in-passing, on so called “child soldiers” (see § III(c) and III(e)(3)).

[7] In other words, the number of claims based upon being a refugee qua female or a refugee qua child is more roughly comparable to the number of claims of being a refugee qua military service evader.  While an exact numerical comparison is difficult, the Canadian IRB reported finalizing 2,331 refugee claims with reference to female gender issues between 1993 and 2004.   This is comparable, on a scale of magnitude level, with the numbers cited earlier with respect to military service evasion (over 1000 claims mentioning military service evasion).  Furthermore, the number of female gender based claims during this period was undoubtedly boosted by the issuance of the IRB’s gender guidelines in 1993.  See Immigration and Refugee Board, “Backgrounder: Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution” (Press Release) (4 March 2003).

[8] See for example of an exception, the House of Lords’ recent decision in Sepet and another v. Secretary of State for the Home Department [2003] UKHL 15.

[9] International Covenant on Civil and Political Rights (the “ICCPR”) G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force Mar. 23, 1976)

[10] Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention”), 213 U.N.T.S. 222 (entered into force Sept. 3, 1953, as amended by subsequent Protocols).

[11] The possible exception to this statement is the application of exclusion criteria under Article 1(F)(a) of the Refuge Convention.  These criteria are usually applied to individuals based upon their prior conduct during military service (and more specifically their complicity in war crimes or crimes against humanity during that service).

[12] Of the ten countries hosting the most refugees, eight impose conscription (Iran, Germany, Tanzania, Serbia and Montenegro, the Democratic Republic of the Congo, Sudan, and China) and two do not impose conscription (Pakistan and the USA).  The presence of conscription in these countries is made for rhetorical purposes only.  As UNHCR makes refugee status determinations in many of these countries the influence of municipal conscription regimes is, at best, indirect.  UNHCR Refugees by Numbers: 2003 at § “Numbers at a Glance” and Refusing to Bear Arms q.v. entries for each of the top ten source countries.

[13] See below for an analysis of the phenomenological organization of this overview; the municipal conscription jurisprudence will be integrated into this structure.

[14] William Janzen and Janice Greaser Sam Martin Whent to Prison: The Story of Conscientious Objection and Canadian Military Service (Kindred Press, Toronto, 1990) at 41 (refering to the Militia Act of the Assembly of Upper Canada).

[15] Overseas military service became compulsory near the end of the Second World War.  However, by the cessation of hostilities, no conscripts had actually been deployed to an overseas theatre of war.

[16] Other countries of the then-British Empire / now-Commonwealth, including Australia (see infra) also distinguished between conscription for domestic service and conscription for overseas service.

[17] The Canadian government’s official position is that “[a]t present there are no national laws that entitle the government to launch a conscription or compulsory military service scheme.” (Correspondence from the Canadian Department of National Defense to WRI in response to CONCODOC questionnaire, 2 August 1996 as cited in [WRI].  Notwithstanding this declaration and similar declarations in other international surveys, the Emergencies Act R.S., 1985, c. 22 does allow for the theoretical imposition of conscription (insofar as it provides for “the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide” in all categories of emergency, including “international emergencies”, see ss. 8(1)(d), 19(1)(d), and 30(1)(e)).  However, while the Emergencies Act does not contemplate a specifically military conscription, it may nonetheless be imposed through the general provisions of the Emergencies Act given the Supreme Court’s ruling in Re: Gray (1918), 57 S.C.R. 150 and the Privy Council’s concurrence (albeit likely in obiter dicta) in Attorney-General For Canada And Another v. Hallet & Carey Ld. And Another [1952] AC 427 (Judicial Committee of the Privy Council).  In any case, executive and post facto legislative approval is required to invoke the Emergencies Act.  The National Defense Act (R.S. 1985, c. N-5) neither specifically precludes nor authorizes conscription (see the definition of “to enroll” and the provisions for the creation of a “special force”, s. 2(1) q.v. enroll and s. 16, respectively.  The creation of a special force requires executive approval.

[18] States required compulsory military service in “militias”, see for example the Pennsylvania Constitution, 1776, Bill of Rights, Article 8.  In addition, Massachussets and other New England states fulfilled their “requisitions” for the Continental Army through the imposition of conscription, see John Marshall Life of George Washington (Crissey and Markley, Philadelphia, 2nd ed, 1848) at Volume 1 at 37 and 38 as quoted in John Remington Graham, A Constitutional History of the Military Draft (Ross and Haines Inc., Minneapolis, 1971) at 26.  Such an action was condoned both by George Washington and the Continental Congress, see Resolution of 26 February 1778 which read: “Whereas the well being and safety of these States require that a powerful army be brought into the field . . . Resolved that the several States be required forthwith to fill up by drafts from the militia or any other means that shall be effectual their respective battalions of continental troops” (quoted in Graham at 26 and 27).

[19] Conscription was actually introduced (in 1940) before the commencement of US involvement in the Second World War.  Walter Millis Individual Freedom and the Common Defense (The Fund for the Republic, New York, 1958) at 13.

[20] These judicial decisions can be found through a general search of the jurisprudence of (especially) the Vietnam War era.  In addition, various reporting services, including the Selective Service Law Reporter, provide a specialized focus on legal challenges to conscription.

[21] However, “civil conscription” of medical professionals is governed by s. 51(XXIIIA) of the Commonwealth Constitution.  For an interesting analysis of this provision, see Danuta Mendelson “Devaluation of a Constitutional Guarantee: The History of Section 51(XXIIIA) of the Commonwealth Constitution” Melbourne University Law Review, 1999, 14.

[22] Between 1911 (the expansion of the conscription measure) and 1914, there were 27,000 prosecutions launched against parents of youths for failure to register their children. While the usual penalty was a fine, 5,732 youths were sentenced to imprisonment in military or civil jails.  L. C. Jauncey, The Story of Conscription in Australia, (Macmillan, Melbourne, 1968) at 49-50.

[23] Eric Fry “Conscription then and now” Australian Left Review, October-November 1966, 34-39.

[24] H. Smith, Conscience, law and the state: Australia’s approach to conscientious objection since 1901Australian Journal of Politics and History 35(1): 13-28, 1989.

[25] Ibid, at 23 et seq..

[26] See supra, fn. 17. Although used to describe forced military service in general before the French Revolution, after the French Revolution the term, including its present general usage, came to refer specifically to the lottery method used to select conscripts in revolutionary France (although a more general colloquial usage persists).

[27] 30 Geo. II c. 25 (1757).  See also 4 Anne c. 10 (1704), 29 Geo. II. C. 4 (1756), 30 Geo. II c. 8 (1757), 18 Geo. III c. 53 (1778), 19 Geo. III c. 10 (1779).

[28] The jurisprudence was largely produced by local tribunals set up in each country and also, after 1939, by the Central Board for Conscientious Objectors.  While the jurisprudence does not itself reference the municipal jurisprudence this does not entail that advocates have not attempted to cite such jurisprudence in furtherance of refugee claims involving military service evasion.  There is anecdotal evidence that use was made of municipal jurisprudence in argument, most significantly in the early stages of the claim that became Sepet.  See Personal correspondence with Guy S. Goodwin Gill, December 2004.

Military service evasion and the definition of “refugee”

The definition of refugee can be mainly broken down, for the purpose of the analysis of military service evasion, into three components: (a) the requirement of a well-founded fear of being persecuted; (b) the requirement that the persecution in question be for one of the five proscribed reasons; and, (c) the requirement that a claimant’s government be unable or unwilling to offer protection.  The interpretation of each of these requirements in the jurisprudence as they relate to military service evasion will be briefly discussed in sequence.

The definition of refugee does not define what it means to have a “well-founded fear of being persecuted”.  Drawing upon scholarly analysis, the jurisprudence has come to define “persecution” as a key denial of a core human right.  As stated by the Supreme Court of Canada, “[t]he essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way.”[1] Reference is made in the Canadian jurisprudence to both internationally and municipally defined human rights.[2] While repetition and persistence are frequently characteristics of persecution, a serious violation of an individual’s human rights need not be repeated in order to constitute persecution.[3] However, by all accounts, not just any violation of an individual’s human rights will constitute persecution; only serious violations of an individual’s human rights will qualify.  At issue with the issue of military service evasion is not only whether forced military service per se constitutes a denial of a core human right but also whether the punishment that is meted out to an individual who evades compulsory military service is severe enough to amount to persecution.

However, not all claimants who are at risk of persecution are considered by law to be refugees. Only those claimants whose risk arises “for reasons of race, religion, nationality, membership of a particular social group or political opinion”[4] will be considered as refugees.  The requirement that persecution occur “for reasons of” one of the five enumerated grounds is often referred to as the requirement of “nexus”.

Nexus can be interpreted quite broadly.  Mixed motives or perceptions do not preclude a nexus, as long as some motives or perceptions are tied to an enumerated ground.[5] Ultimately, it is the perception of the agent of persecution, which may or may not conform with reality, that is the most important aspect of the analysis.[6] However, in cases of military service evasion, the motivation of the claimant may also be considered.  In the Canadian jurisprudence, neutrality may be a political opinion.[7]

Although related to the requirement of a well-founded fear of persecution insofar as it links the fear to an enumerated reason, the requirement of nexus is an independent and necessary condition for a successful refugee claim.  While in some cases, a nexus may be a component of persecution (as in the case where a finding of an “arbitrary arrest” may require proof of an improper motive for the arrest), it is not a condition precedent for a finding of persecution.  Notwithstanding this statement, some of the jurisprudence continues to link persecution and nexus.[8] As will be seen in the assessment of the jurisprudence, the undue linkage of persecution and nexus plagues, inter alia, the military service evasion jurisprudence.

Political opinion and religion are often cited grounds of nexus in military service evasion cases.  While a few military service evasion cases also make use of membership in a particular social group this is a decidedly underdeveloped part of the jurisprudence.[9] In addition, it has yet to become apparent whether the expansion of the jurisdiction of the Board to include “persons in need of protection” (who do not require a nexus) will significantly affect the military service evasion jurisprudence.[10]

State protection is seldom explicitly discussed in the context of military service evasion.  However, it is an important concept to remember in assessing the claims of military service evaders.  The latter half of the Canadian statutory definition of refugee addresses the need for a failure of state protection: a refugee must be “unable or, by reason of [his] fear, unwilling to avail [himself] of the protection of [his country of nationality].”[11]

Generally, there is a presumption that a state can protect its citizens.  In order to rebut this presumption, a claimant must present “clear and convincing evidence” of a state’s inability to offer protection.[12] Such evidence can include evidence of the state’s past failure to offer protection to the claimant or the state’s failure to offer protection to similarly situated individuals.  However, notwithstanding a state’s obligation to provide protection, there is neither an obligation nor an expectation of perfect protection by the state.

As mentioned earlier, the requirement of state protection is seldom dealt with explicitly in the military service evasion jurisprudence.  Yet state protection is an important consideration in many military service evasion cases.  To take but two of the most obvious examples, claims based upon fear of conscription by guerillas and claims based upon the availability (or lack thereof) of alternate military service for conscientious objectors both require a careful analysis of the steps taken by the state in question to protect the claimants from persecution.  The issue of state protection in a broader sense, lies at the heart of military service evasion and the underlying issue of compulsory military service: how should a state reconcile its competing obligations to itself and its citizenry?

The issue of state protection has been dealt with all too inadequately.[13] The case-law more often deals with state protection implicitly; there have been all too few explicit incorporations of the requirement of the state’s inability to offer protection into the determinations of the case-law.


[1] Chan v. Canada (M.C.I.)  [1995] 3 S.C.R. 593 (La Forest, in dissent)  While LaForest’s remark was obiter dicta, as the case was decided by both himself and the majority on a different ground, his encapsulation of the meaning of persecution remains accurate.

[2] Ibid.

[3] Muthuthevar v. Canada (M.C.I.) [1996] F.C.J. No. 207 at 12: “I think it is settled law that, in some instances, even a single transgression of the applicant’s human rights would amount to persecution.”

[4] Article 1(A) of the 1951 Convention.

[5] Zhu v. Canada (M.E.I.) [1994] (FCA).

[6] Zolfagharkhani. See also Rizkallah v. Canada (M.E.I.), [1992] 156 N.R. 1 (FCTD) and Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689 at 747.

[7] Insofar as neutrality may be perceived as opposition to a political interest it can provide a nexus.  This can be contrasted with the commonly understood denial of neutrality as providing nexus represented by the US Supreme Court’s decision in USA (INS) v.Elias-Zacharias (see above at fn. 17) (involving a Guatemalan man who fled recruitment by the guerillas).  However, I think that Elias-Zacahrias can be understood better as a case of judicial appellate deference to a finder of fact than as precluding actual neutrality as a political opinion.  With respect to this interpretation, see for example Adhiyappa v. United States (I.N.S)., 58 F.3d 261 (6th Cir. 1995).

[8] Mousavi-Samani v. M.C.I. Federal Court Trial Division file no. IMM-4674-96.

[9] This is not to say that none of the Canadian jurisprudence categorizes military service evaders as members of a particular social group.  See for example, T89-03954 (CRDD, 16 March 1990) and, for further discussion on the Canadian approach to membership in a particular social group, Fullerton, “A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group” (1993) 26 Cornell International Law Journal 505 at 539.  However, the Canadian jurisprudence has largely not adopted the particular social group approach for military service evaders.  In this respect, it can be distinguished from the Australian jurisprudence which has dealt with the issue of whether military service evaders have a nexus through membership in a particular social group on several occasions: see for example Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411; Applicant M v Minister for Immigration & Multicultural Affairs [2001] FCA 1412 (5 October 2001); and, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (31 May 2001).

[10] “Persons in need of protection” are defined, in short, as individuals at personal risk of (i) torture; (ii) risk to life; or, (iii) risk of cruel and unusual punishment (see. IRPA s. 97).  However, the exemption of risks under category (ii) and (iii) of any risk “inherent or incidental to lawful sanctions” would seem to undermine the utility of the category of persons in need of protection to military service evaders.  Furthermore, the threshold of mistreatment appears to be higher than that required for persecution.  To date, no refugee claimants have been granted protection as “persons in need of protection” qua military service evaders.  For an analysis of military service evasion as a ground for membership in the category “persons in need of protection” see Ozunal v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 709 and Loshkariev v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 850

[11] IRPA, s. 96

[12] This often quoted phrase is taken from Ward, [1993] 2 S.C.R. 689 at 725.

[13] Interestingly, the Hinzman case may be the most recent and most notable exception to this premise (although the facts on the issue of state protection were surprisingly muddled given the ease of gathering information about the American process of in-service objection and appeal).

Overview of the analysis of compulsory military service as a basis of claim

Any reorganization of the jurisprudence and attempt to fill the gap in policy must confront the reality that claims raising military service evasion are neither factually nor legally homogenous.  Military service occurs in many settings and may be raised in a refugee claim in a variety of factual contexts.  In many of these contexts, it is not military service per se which is at issue, but rather some ancillary feature of how the claimant will be treated.  In such claims, that the mistreatment will occur during compulsory military service is legally coincidental.  While these claims will be discussed, the primary focus of the reorganization will be upon claims in which the propriety of compulsory military service is being challenged; in other words claims in which the fact of compulsory military service itself provides the basis of claim.

The reorganization of the jurisprudence will follow this distinction and will be divided into the category of claims in which the fear of military service itself is the basis of claim and those in which an ancillary aspect of military service is the basis of the claim. As each category will be discussed and defined in terms of the conditions which are required to base a successful refugee claim, the categories can be redefined as (i) prohibited forms of military service due to the nature of the conscriptor or the conscript, and (ii) prohibited mistreatment related to the specific tasks entailed by military service.[1]

As is discussed at greater length below, what is conventionally labelled as “conscientious objection”[2] would most properly fit within the first category.  However, given the attention to this subcategory in the jurisprudence and the popular discourse, it will be dealt with as a separate, intermediate, category.  All three categories (the two noted categories and that of conscientious objectors) and their constituent subcategories will be dealt with in sequence in the following Chapters.


[1] This approach is in keeping with the overall purpose of this article to provide an analytical framework that is useful to the act of refugee status determination.

[2] See fn. 6 above for a more detailed overview of the critique of this term.

Other resources and further reading

The UNHCR’s “Guidelines on Military Service“, examines what the conscience means for those seeking protection from service in State and non-State armed forces.

The NGO War Resisters International actively campaigns to promote the right to conscientious objection (the “right to refuse to kill”) and researches the prevalence of conscription and the right to conscientious objection worldwide.  Its World survey of conscription and conscientious objection to military service was last comprehensively updated in 2005 – although some revisions have been made since that date.

The Coalition to Stop the Use of Child Soldiers promotes the prohibition on the conscription of children worldwide.  It collects data on child conscription on an annual basis and publishes it in an annual report entitled “Global Report on Child Soldiers”.
The 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 replaces the UNHCR’s Position on Certain Types of Draft Evasion (1991). The Guidelines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and should be read alongside the UNHCR’s Guidelines on International Protection No. 6: Religion-Based Refugee Claims and Guidelines on International Protection No. 8: Child Asylum Claims.