Not too long ago, I helped a Jehovah’s Witness who was persecuted for refusal to serve in the military get asylum in immigration court. In some countries, conscientious objectors are treated very poorly (including torture). The US will generally not grant asylum to people who fear harsh punishment for refusing to serve in the military, but there are certain exceptions. The two main exceptions are (1) when a draft dodger would suffer disproportionately because of race, religion, nationality, social group, or political opinion; and (2) when the military takes the type of actions condemned by the international community as contrary to the basic rules of human conduct.
Sovereign nations have the right to enforce draft laws and punish evaders, but when they single out certain draft dodgers because of their race, religion, ethnic or national origin, social group or political opinion, such punishment is persecution. See UNHCR Refugee Handbook ¶169. For example US courts have stated that asylum should be granted to Jehovah’s Witnesses from Eritrea, who are subjected to torture and other harsh treatment for refusal to serve in the military. Ghebremedhin v. Ashcroft, 385 F. 3d 1116, 1120 (7th Cir. 2004).
In addition, there are some cases where a person can claim asylum for refusing to serve in an unpopular military. Although the standard stated is when the refusal to serve in the military is based on genuine political, moral, or religious convictions, those convictions must involve opposition to military actions that are internationally condemned. UNHCR Refugee Handbook ¶¶170-174. As the Refugee Handbook states at ¶171:
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.
The key is whether the military is committing acts beyond the normal atrocities of war, such as ethnic cleansing, or other crimes against humanity. As Fourth Circuit has stated, “It is the possibility that an unwilling conscriptee may be associated with the commission of atrocities which places him in a different predicament from that of a conscriptee who merely disagrees with the political justification of a conflict.” M.A. v. INS, 858 F.2d 210, 215 (4th Cir.1988). The court has to believe that the objection is genuine, however, and that the objector will actually be punished. Mojsilovic v. INS, 156 F. 3d 743, 747 (7th Cir. 1998).
The examples where US courts have granted asylum for conscientious objection, however, have generally involved action against one’s own countrymen or ethnic group:
- Slovenian Serb deserting military service in Serbia, because of his refusal to fight Slovenians. Vujisic v. INS, 224 F. 3d 578, 581 (7th Cir. 2000).
- Afghan national who fled “dragooning” and refused to join Soviet-controlled Afghan army against rebels. Matter of Salim, 18 I&N Dec. 311 (BIA 1982).
- Salvadoran refused to join El Salvador military as spy to seek out anti-government activity, when the military was known to commit human rights abuses. M.A. v. INS, 858 F.2d 210, 217-18 (4th Cir.1988).
- a Mexican Army Captain granted asylum in El Paso for refusal to kill Zapatista rebels.