Military Service and Conscientious Objection
On March 3, 2022, according to the Parliamentary Press Service, the Ukrainian Parliament adopted the Presidential Decree “On General Mobilization”, initiating the general mobilization of Ukraine. During mobilization, military service is compulsory for all citizens assigned male at birth between the ages of 18 and 27, indefinitely. Previously, the duration of military service was limited to 18 months in general and 12 months for students.
In Ukraine, military service is compulsory for all persons who are assigned male at birth. Since we want to point out that this also includes persons who are not male or do not identify as such, we use gender-neutral language.
On March 3, 2022, according to the Parliamentary Press Service, the Ukrainian Parliament adopted the Presidential Decree “On General Mobilization”, initiating the general mobilization of Ukraine.
During mobilization, military service is compulsory for all citizens assigned male at birth between the ages of 18 and 27, indefinitely. Previously, the duration of military service was limited to 18 months in general and 12 months for students. Likewise, the possibility of “alternative service” was eliminated at the beginning of the war. The maximum age for military service currently varies between 45 and 65, depending on the rank, so Ukrainian citizens assigned male at birth can be recruited up to the age of 60. Since February 25, 2022, they have not been allowed to leave the country in legal ways. People who have lived in the occupied territories of eastern Ukraine and who, according to the Geneva Convention on Refugees, are not allowed to be mobilized, are also affected by the mobilization.
Citizens assigned female at birth are still not subject to military service in Ukraine and are therefore allowed to leave the country. However, all citizens – regardless of gender – between the ages of 18 and 60 must register for military service if they are in a profession that appears on a list issued by the Ministry of Defense of Ukraine and are suitable for military service due to their health and age. As early as December 27, 2021, the Military.Com website (a news and information website for military personnel, veterans, and their families) reported a significant expansion of the listed professions. According to the updated law, Ukrainian citizens assigned female at birth between the ages of 20 and 40 can be mobilized for military service as regular soldiers, and between the ages of 20 and 50 for service as officers. They will not be recruited without their consent, but risk not finding work if they do not register.
According to the Law on Military Service (Part 1, Art. 14), Ukrainian citizens serving sentences in prisons are not subject to compulsory registration. In times of peace, certain groups of persons were exempt from compulsory military service due to illness, exceeding the age limit of 25 years, or caring for relatives. The Ukrainian Law on Conscription and Military Service also lists various reasons that can lead to a deferral of conscription, based on family, educational, and professional reasons (Part I, Article 17).
In the meantime, however, the eligibility criteria have been expanded, exemptions restricted and penalties increased. Covered by the exemption are only nationals assigned male at birth who are granted a six-month deferral for health reasons; have sole custody, at least three dependent children, or a disabled child under the age of 18; are pursuing certain academic professions in higher education or are studying in full-time or dual-track programs. The United Nations High Commissioner for Refugees (UNHCR) reported that citizens assigned male at birth of military serviceable age (18-60 years) with disabilities are allowed to leave the country if they present documents certifying their disability, and therefore they are no longer obliged.
For more information on the legal situation of conscientious objection in Ukraine, see the 2022/23 Annual Report of the European Bureau for Conscientious Objection (EBCO).
Repression of Conscientious Objection
Since the beginning of the war, Ukraine has intensified the crackdown on conscientious objectors. The right to conscientious objection has been suspended, although it is a generally recognized component of the right to freedom of conscience, which Ukraine is obliged to guarantee under Article 18 of the International Covenant on Civil and Political Rights. In addition to being enshrined in the European Convention on Human Rights (Art. 9), the Ukrainian Constitution also guarantees that this right may not be suspended by mobilization (Art. 35). In practice, conscientious objectors face years of imprisonment or even deployment to the front. Some conscientious objectors pay large sums in bribes to avoid conscription.
In the meantime, numerous convictions of conscientious objectors have become known. In 2022 alone, 298 people were convicted of refusing to mobilize (Art. 335, Art. 336). According to the Ukrainian Pacifist Movement Kucherov Dmytro Mykolayovych, Kapats Maryan Vitaliyovych, and Korobko Oleksandr Olehovych were each sentenced to three years on probation while Kucher Andrii Volodymyrovych was sentenced to four years on probation. Conscientious objector Vitaliy Alekseienko, who refused to serve in the Ukrainian army on religious grounds, was sentenced to one year in prison by a court in Ivano-Frankivsk in September 2022 for “refusing military service during mobilization” (Article 336). He successfully appealed the sentence and was released from prison on May 25, 2023. The Supreme Court of Ukraine subsequently ordered the retrial before the court of first instance.
According to estimates, more than 175,000 Ukrainian citizens of military service age have already left the country, mostly for the European Union. Up to July 2022, Ukrainian authorities have opened 5,000 criminal cases for draft evasion and desertion. In addition, there are 8,000 cases of illegal border crossings. Another 3,000 people were detained by Ukrainian border guards for false documents. In addition, at least 15 people died in 2022 while trying to cross the Romanian border undetected. Many are still hiding to avoid being recruited.
Residence and Asylum in Germany
Those who have made it into the European Union can stay there for the time being. A decision of the Council of the European Union in March 2022 allowed the application of the Temporary Protection Directive (2001/55/EC). Following the implementation of the Temporary Protection Directive on March 14, 2022, Ukrainian nationals and non-Ukrainians with a permanent residence permit in Ukraine, who have a valid passport and were living in Ukraine on February 24, 2022, enjoy the right to temporary humanitarian residence in the member states of the European Union – whether they are subject to military service is irrelevant.
According to current European case law, the Temporary Protection Directive expires after a maximum of three years, which is in March 2025. What will happen afterward is still unclear. Until then, it will not be possible to consolidate residence (e.g. through a settlement permit), as this requires a 5-year stay in the EU. Accordingly, it may well be that Ukrainian refugees – and with them military conscripts – will have to return to Ukraine. However, some military conscripts find themselves already in a difficult situation: if they do not have a valid passport, they must go to a Ukrainian consulate to not lose their humanitarian stay in the EU; there, they face the threat of being forced to report to the military.
In September 2023, Ukrainian President Volodymyr Selenskyji announced to submit extradition requests to the EU. Therefore, we assume that Ukrainian consulates and embassies may receive instructions to no longer renew or issue passports to force Ukrainian citizens to leave the country. In this case, they still have the option of applying for asylum. Nonetheless, it is questionable whether the reason for impending prosecution for conscientious objection in Ukraine is sufficient to obtain protection. Jurisdiction recognizes conscientious objection and desertion as worthy of protection in only two cases: (a) when the persecution of those affected is considered a political act or (b) when there is “excessive punishment”. It still does not apply to military draftees. Protection against deportation could come into question when the human right to conscientious objection as written in the European Convention on Human Rights is not respected in Ukraine.
The Ukrainian president’s announcement to submit extradition requests to the EU is aimed at recruiting all those Ukrainians who have fled military service and currently enjoy temporary humanitarian residence in European Union states due to the implementation of the Temporary Protection Directive (2001/55/EC) of March 14, 2021. However, it is still unclear whether he only refers to a certain group of nationals such as people who are subjected to military service and paid bribes or forged documents to leave the country, or whether Selenskyji refers to all people who are subject to military service. In any case, extradition proceedings are a complicated and lengthy process.
In addition, Article 4 of the European Convention on Extradition excludes extradition for military offenses. The rendition of military conscripts (who have not committed any other criminal offenses, such as forgery of documents) is therefore illegal – this applies to all member states of the European Union.
In September, both the Austrian Ministry of Justice and the Swiss Ministry of Justice officially confirmed that they would not extradite Ukrainian deserters and military draftees to Ukraine. The German government only stated that it would rely on the European Convention on Extradition in the event of extradition requests by Ukraine but didn’t specifically oppose Selenskyji’s announcement.
Marah Frech: Country report Ukraine – Military Service and Conscientious Objection. October 8, 2023