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Hearing to War Resisters of the War in Iraq, March 14, 2006
Refusing soldiers and asylum in the war against Iraq
by Rudi Friedrich
Ladies and Gentlemen,
I’m pleased to have the opportunity today to speak about the kind of protection soldiers need when they refuse to commit violations of international law or declare their conscientious objection.
I work in a German organisation called Connection. For 20 years we have been counselling and helping conscientious objectors from countries like the former Yugoslavia, Turkey, the US, Russia and Eritrea.
Owing to the fact that their conscience and convictions are not accepted by their home countries they are facing repression, prosecution or new recruitment. This is why they seek protection abroad in other countries and in the European Union. But we, as an organisation, learn over and over again that their applications for asylum are rejected. Generally, persecution of conscientious objectors is not regarded as a valid reason to be granted asylum.
Today we are discussing the war against Iraq waged by approximately 40 countries, lead by the United States and Great Britain. Among them are countries such as Estonia, Slovakia, Latvia, Hungary, Poland, Ukraine, South Korea, Thailand, Bulgaria, Romania, Georgia, Kazakhstan and the Philippines. As previous speakers have pointed out and was stated by the European Parliament: The unilateral US invasion of Iraq was not initiated on a lawful decision of the UN Security Council on the basis of Chapter VII of the UN Charter and, therefore, has never been in full compliance of international law. Furthermore, we had to learn about systematic violations of international laws and norms in the invasion and occupation of Iraq as well as of Afghanistan, including irregular arrests and torture.
One US soldier took the necessary step in the beginning of last year. Specialist Blake Lemoine refused orders and wrote to his superiors the following: "It was the soldiers who I fought along side who portrayed these horrors of the human soul. Now that I am aware of the hatred and wrath directed against the Arabic peoples, at least by the US soldiers, I can do nothing but withdraw my gun from service to the US military’s causes. Also I must state that I cannot give the Army any assistance in any way from this day forward". It is very likely, that - due to the fact he exclusively refused to serve in this particular war - an application for conscientious objection would not have been successful. He, finally, was sentenced to five months imprisonment.
The US army is a voluntary army. Most of the soldiers deployed by the War Coalition are professional soldiers. But for them, too, the concrete situation of a war can have dramatic consequences. A third of US soldiers, according to recent reports, are receiving psychological treatment after their mission. A lot of them never want to be sent to Iraq. They hope to be discharged. Some decide to apply for the status of conscientious objection. They have to face long proceedings with a very uncertain ending. Being in trouble, others only see the possibility of going Absent Without Leave (AWOL) or to desert.
In other countries the situation isn’t better. George Solomou already reported about the situation in Great Britain. In member states of the European Union like Estonia, Slovakia, Latvia, Hungary and Poland professional soldiers don’t have the opportunity to ask for discharge if they want to declare their conscientious objection. The same is true for most other countries participating in the war coalition.
This means: If soldiers realize that this mission is incompatible with their own convictions or if the participation in the war is in contradiction to their own conscience there is no legal possibility to leave the military. The soldiers are harassed and threatened with deployment into the war area, repressions and prosecution for disobeying orders. Since a conscientious decision is not reversible, such a prosecution could be repeated again and again. This is in obvious contradiction to the recommendation 1995/83 of the UN Human Rights Commission which affirmed that "persons performing military service should not be excluded from the right to have conscientious objections to military service".
I want to point out a complementary question. A lot of efforts have been made to introduce international courts that are prosecuting violations of international law. One of the fundamental basis of the international judiciary is that every person is responsible for his or her own actions or activities. That means: Soldiers, too, are responsible for their own activities. They can’t prevent prosecution by saying they acted under binding orders.
If a soldier wants to act according to international law and is ordered to perform an act which is in contradiction to it, there is one consequence: The soldier is obliged to refuse. And this, as the case of Blake Lemoine teaches us, could also be a reason to become a conscientious objector, in a particular situation. But the common definition of conscientious objection doesn’t include these kinds of reasons of conscience. As happened in the case of Blake Lemoine soldiers often face prosecution if they want to follow international law.
I would like to take deeper look into the question of asylum for conscientious objectors. Let me repeat the principle I have already mentioned: Persecution of conscientious objectors is usually not seen as a reason for being granted asylum. Only if the sentence against a conscientious objector is prosecuting more than just the disobedience or desertion could this be seen as an additional persecution because of her or his political conviction or religious belief. This is the common legal practice in the European Union. Furthermore you won’t find legal security in the law, to the extent that you could say, on the basis of one case, that the next would be decided in the same way. Here, there is much room for interpretation. And the authorities and the courts in the whole of Europe are interpreting it against the people concerned.
But in the case of a war conducted against the rules of international law the interpretation should be much clearer. It starts with the Handbook of UNHCR which gives rules for the interpretation along the Geneva Convention. In point 171 it states: "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 itself be regarded as persecution."
A broader point of view is found in the Directive of Council of the European Union 2004/83/EC of April 29, 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. This directive defines when persecution according to the Geneva Convention should give the right for protection. The Directive rules in Article 9 and 12 that "acts of persecution can take the form of prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts against peace, a war crime, or a crime against humanity, as defined in the international instruments or 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".
This rule is a contradiction in itself. The European Council Directive doesn’t give the opportunity to grant asylum for citizens of member states of the European Union, because it’s stated in Article 2, that a "refugee means a third country national". But some member states of European Union are participating in the war coalition and, therefore, violate international law.
If you follow the principle of the Directive you have to say: All soldiers who refuse this particular war against Iraq and who have to fear persecution should get refugee status according to the European Council Directive. In contradiction to it – according to the Directive - citizens of member states of the European Union can’t call on it. But, beyond question, protection should be offered to all other nationals, from United States citizens as well as for citizens of other countries participating in the war coalition.
You could object that a decision about it rests with the authorities and the courts. But it is clear that the rules of the UNHCR Handbook have rarely been accepted. It is very important to take the initiative and to stress that the protection of refusers is politically desired.
The Iraq war has made clear the need for the following:
Thank you for your attention.
Speech by Rudi Friedrich at Public Hearing at European Parliament in Strasbourg "The Right of Soldiers to Refuse to Participate in Wars Violating International Law", March 14, 2006