Due to the numerous conflicts around the world, a fear of being conscripted into the military is often a claim that arises in political asylum cases. Recently, the United Nations High Commissioner on Refugees (UNHCR) issued some guidelines for persons who have been harmed or fear harm in the future if they were required to serve in their country’s military. The Guidelines are known as, “UNHCR Guidelines on International Protection No. 10.” U.S. asylum law is based on international law as described in UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“UNHCR Handbook”). The guidelines expand topics in the Handbook by further describing a claim of refugee status based on military conscription so they are worth reviewing in preparing an application for asylum.
First, the Guidelines note that countries have a right of self-defense under both the UN Charter and customary international law. Countries are allowed to require citizens to perform military service for military purposes and this does not in itself violate an individual’s human rights. Thus, it is not enough for a person to say that he does not want to serve in the military because he does not want to learn how to shoot a gun. There has to be a basis for it under refugee law which is described further in the Guidelines.
The Guidelines describe that there is a right to conscientious objection and there is an absolute prohibition on child soldiers and their participation in hostilities. The Guidelines describe five situations in which claims may relate to military service:
1.Objection to State Military Service for Reasons of Conscience (absolute or partial conscientious objectors)
2.Objection to Military Service in Conflict Contrary to the Basic Rules of Human Conduct
3. Conditions of State (Country) Military Service
4.Forced Recruitment and/or Conditions of Service in Non-State Armed Groups
5. Unlawful Child Recruitment