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30 June 1994
Doc. 7117
OPINION
on deserters and draft resisters
from the republics of the former Yugoslavia
(Rapporteur: Mr BRITO,
Portugal, Socialist Group)
1. The Committee on Migration, Refugees and Demography recalls Recommendation 1205 (1993) on the situation of refugees and displaced persons in several countries of the former Yugoslavia, which highlighted "the particular protection needs of deserters who are faced with a high risk of persecution if returned".
2. The war in the former Yugoslavia has taken a particularly reprehensible form in that the civilian population is a prime target of the warring parties. "Ethnic cleansing" operations are often carried out by paramilitary groups which have very little in common with a regular army.
3. It is generally accepted that these practices are for the most part attributable to the Serb forces, who were also the first to use them. Nevertheless, it is likely that the other parties to the conflict have also, to a lesser extent, used similar tactics.
4. It is estimated that over a hundred thousand men have refused to take part in operations of this nature. These people, termed deserters and draft resisters, form part of the millions of refugees and other people displaced by the war in the former Yugoslavia.
5. Deserters and draft resisters who refuse to take part in fighting which is contrary to their moral convictions and their conscience are liable to severe punishment if they return, or are returned, to their country. For this reason, they must be accorded refugee status, whether they are in the countries of the former Yugoslavia or elsewhere in Europe.
6. As was rightly emphasised by the Rapporteur to the committee asked to report, they can be granted this status under the provisions of the Geneva Convention and its 1967 Protocol, as interpreted by the Office of the United Nations High Commissioner for Refugees (UNHCR) in its "Handbook on procedures and criteria for determining refugee status". This document states that punishment for deserters and draft resisters who refuse to take part in military action condemned by the international community as contrary to basic rules of human conduct can be regarded as persecution. Equally, it must be emphasised that there are forms of persecution other than prosecution, including dismissal, social exclusion or harassment of family members.
7. Similarly, punishment imposed on conscientious objectors for refusing to serve in the armed forces where civilian service is not offered as a genuine alternative should also be interpreted as persecution in terms of the above cited texts and hence confer the right to refugee status.
8. For these reasons, as well as on humanitarian grounds, the committee joins the Committee on Legal Affairs and Human Rights in requesting member states to refrain from deporting, or even from threatening to deport, deserters and draft resisters to the former Yugoslavia until an amnesty has been declared.
9. Article 3 of the European Convention on Human Rights, which states that "no one shall be subjected ... to inhuman or degrading treatment ...", is relevant in this connection. The relevance of this article becomes clear bearing in mind the threats by both state bodies and nationalist and paramilitary groups which deserters and draft resisters would face if they were returned.
10. According refugee status to deserters and draft resisters is often a matter of life or death for these people. Nevertheless, it affords only temporary protection. A lasting settlement of their situation can only be achieved by ending hostilities and concluding peace agreements. Thus, it is absolutely essential that clauses declaring a general amnesty for deserters and draft resisters be included in these agreements.
11. Consequently, the committee proposes that the Assembly should invite the member states:
"to consider each case involving the return of deserters and draft resisters in the light of Article 3 of the European Convention on Human Rights, which states that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment"." .
12. It is also important to draw attention to the situation of refugees from Bosnia-Herzegovina in Serbia, Montenegro and Croatia who are often forcibly drafted with no account taken of their nationality. Therefore, the Assembly should request these states:
"to recognise and respect the refugee status of people fleeing the fighting in Bosnia-Herzegovina and, in particular, to refrain from drafting them against their will".
Reporting Committee: Committee on Legal Affairs and Human Rights (Doc. 7102)
Committee for an opinion: Committee on Migration, Refugees and Demography
Reference to committee: Doc. 6949, Reference No. 1903 of 4 November 1993
Draft opinion: unanimously approved by the committee on 29 June 1994
Secretaries to the committee: MM. Newman and Sich