This article is based on a statement issued on 12 October 2022 by MAP (Migration to Asia Peace) and the Refugee Rights Network, and summarises the legal status of people who fled to South Korea to escape Russia’s mobilisation order, along with the demands addressed to the Korean government. It explains why people who came to Korea to avoid conscription should be protected as refugees, and what procedures and rights must be guaranteed for them.
Background
On 30 September 2022, Russian President Vladimir Putin announced what he called a “partial mobilisation order.” The order is reported to have been applied arbitrarily, hitting society’s most vulnerable groups hardest. In its wake, hundreds of thousands of people began fleeing abroad; some reports put the number as high as 200,000.
Because of Korea’s geographic proximity to Russia, a number of Russian nationals attempted to enter Korea by sailing across the East Sea from Vladivostok by yacht, arriving near Donghae, Pohang, and Goseong. According to media reports on 10 and 11 October 2022, more than 20 people had reached Korean waters but were being held there without permission to land. Similar situations have been repeating themselves at various ports of entry both inside and outside Korea.
Five Demands from the Refugee Rights Network
1. Transparent Disclosure of Information
The government must immediately and transparently disclose information about the potential Russian asylum seekers reported in the media, as well as its own response policy.
2. Guarantee Access to the Asylum Procedure
Russian nationals who arrive within Korean territorial waters must be informed about the asylum process and given real access to the protection system. A referral decision must be made promptly in accordance with the Refugee Act.
3. Establish a Plan for Russian Asylum Seekers Already in Korea
A separate plan is needed for Russian nationals already staying in Korea who refuse conscription and apply for asylum.
4. Recognise the Significant Change of Circumstances and Release People from Detention
The mobilisation order constitutes a “significant change of circumstances.” When new asylum applications are submitted on this basis, temporary residency status should be granted and review should proceed under the Refugee Act, whether at the airport or inside the country. Asylum seekers who are currently detained must be released from immigration detention promptly.
5. Immediate Training for Immigration Officers
Officers from the Korea Immigration Service, the Coast Guard, and the National Intelligence Service working at ports of entry across the country must receive immediate training on the relevant norms, standards, and procedures so that they do not become involved in unlawful forced deportations.
Why People Fleeing the Mobilisation Order Are Refugees
Refusing Conscription and Refugee Status
People who have fled to avoid conscription may qualify as refugees under the 1951 Refugee Convention. The reasons people flee wars are many, but refusing to be conscripted is one way an individual can oppose a war. Both conscription itself and disproportionate punishment for refusing conscription can amount to “persecution” within the meaning of the Refugee Convention.
The motivations for refusing military service also vary:
- Conscience or religion: Opposition to war on grounds of conscience or religious belief
- Political opinion: Political conviction opposing Putin’s war of aggression
- Need to survive: Simply fleeing to protect oneself and one’s family
Even in the last case, where there is no clear political conviction, if the authorities regard that person as a “traitor” or “enemy of the state,” this can be recognised as persecution based on Imputed Political Opinion. The Russian authorities have enacted laws treating refusal of conscription as desertion, punishable by up to ten years in prison, and this provides grounds for a finding of persecution.
UNHCR’s Guidelines on International Protection No. 10: Claims to Refugee Status Related to Military Service provides detailed guidance on the relationship between military service refusal and refugee status.
Refusing an Unjust War Can Also Be Grounds for Refugee Status
There is another route by which conscription itself can be a refugee ground, independent of any individual motive: when the war in question is objectively assessed by the international community as one involving war crimes or crimes against humanity. Substantial evidence of such crimes in Russia’s invasion of Ukraine, including the killing of civilians, has already been reported widely.
In its 1988 ruling in M.A. A26851062, the United States Court of Appeals for the Fourth Circuit held that “if the military action is condemned by the international community as contrary to the basic rules of human conduct, punishment of a person for fleeing that military action can itself be regarded as persecution.”
How This Has Been Applied in Practice Internationally
The claim that “war refugees are not refugees” has sometimes been raised in Korea, but it is not correct. The Syrian refugee cases in Europe provide the most relevant precedent. Among the Syrian men who travelled to Germany to escape the war, many had fled conscription by the Assad regime.
German court rulings set out the following standards:
- Saxony Higher Administrative Court (7 Feb 2018, 5A 1245/17.A): A draft-age man from a rebel-held area could be presumed to sympathise with the opposition, and was therefore recognised as a refugee on the basis of imputed political opinion.
- Hesse Higher Administrative Court (6 Jun 2018, 3A 3040/16.A): Regardless of whether a person came from a rebel area, refusal of military service meant the Assad government would regard that person as an enemy; all such persons were therefore found to be refugees based on imputed political opinion.
- Hesse Higher Administrative Court (6 Jun 2018, 3 A 403/18.A): The same conclusion was confirmed on appeal.
Following these decisions, Germany’s Federal Office for Migration and Refugees (BAMF) has been operating in practice to grant Syrian conscription objectors refugee status rather than the lesser category of humanitarian residence status.
The Problem of Violating the Non-Refoulement Principle
Denying entry, prohibiting landing, or detaining potential asylum seekers who have reached Korean territory or territorial waters, without providing them with information about asylum procedures or access to the asylum system, all violate the non-refoulement principle prohibited by the Refugee Convention.
“Rejection at the border” is also a violation of non-refoulement. Multiple Korean court decisions upholding access to asylum procedures at airports support this position. The Ministry of Justice has itself interpreted the forced repatriation of North Korean defectors by sea as a violation of non-refoulement; the same standard applies equally to the treatment of Russian refugees.
Measures Urged of the Korean Government
- Establish a response plan immediately and clearly guarantee access to the asylum procedure.
- Issue instructions without delay so that situations such as handing people over to police in contravention of Refugee Convention Article 31 (which prohibits penalising refugees for illegal entry) do not occur.
- Swiftly prepare guidelines on residency status and the review process for Russian nationals already in Korea who apply for asylum on the grounds that they are of conscription age.
Just as with Ukrainian refugees, the people who have fled Putin’s war deserve a mature, human rights-respecting response. For the most up-to-date information on figures, deadlines, and procedures, please check directly with the Immigration Contact Center (1345) or your local Korea Immigration Service office.
Organisations That Issued This Statement
This statement was issued jointly on 12 October 2022 by MAP (Migration to Asia Peace) and 32 member organisations and 4 special member organisations of the Refugee Rights Network.
Participating organisations: TFC (The First Contact for Refugee), APIL (Advocates for Public Interest Law), Donghaeng (Public Interest Lawyers), Public Interest Law Foundation Jeong, GONG-GAM (Korean Public Interest Lawyers’ Group), DREAM (Public Interest Human Rights Center), Refuge (International Refugee Assistance Organization), Global Hope, Refugee Rights Center, Dongducheon Refugee Community, Dongjak FM, Minbyun International Solidarity Committee (Lawyers for a Democratic Society), Duru Foundation, Seoul On Dream Education Center, Suwon Global Dream Center, Suncheon Migrant Support Center, Friends of Asia, MAP (Migration to Asia Peace), ECOFEMME (Cultural and Economic Community for Migrant Women), Gamdong (Migrant Support Public Interest Center), Uijeongbu EXODUS, Chingu (Migrant Support Center), Peoples Solidarity for Participatory Democracy (참여연대), Naomi (Jeju Diocese Catholic Migrant Ministry Center), Dongcheon Foundation, Hwawoo Public Interest Foundation, Jeju Peace and Human Rights Institute WAT, Paju EXODUS, Korea Migrant Human Rights Center, and others.