Deserters in the Federal Republic of Yugoslavia

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(1)DEVELOPMENTS. Deserters in the Federal Republic of Yugoslavia ¨ RING∗ KATHARINA SCHNO. 1. Introduction Military service, and the refusal to fulfil one’s obligation to it, is a very sensitive issue because the right to demand military service from its citizens is one of the fundamental rights of every state — namely, the right of defence. Therefore, if a person deserts the army to avoid punishment, he or she cannot simply claim refugee status under the 1951 Convention. The right of defence includes mobilisation and punishment of people who refuse military service. However, human rights must also be taken into account, including the individual’s right of freedom of opinion. This right is increasingly accepted by the international community and several countries have recently begun to accept the right of conscious objection. In the Federal Republic of Yugoslavia, a change finally occurred with the inauguration of a new government. After the Amnesty Law for deserters was accepted in Montenegro on 22 November 1999, the Yugoslav Parliament enacted its own Amnesty Law on 12 January 2001 and accepted the final version on 26 February 2001.1 However, many questions remain open: What will happen to those people who have deserted from Serbian paramilitaries or the KLA? An Amnesty Law will not reach them, yet during the Kosovo war, NATO airplanes dropped leaflets over Yugoslavia to encourage the soldiers of the Yugoslavian Army to desert; to this day, the NATO States refuse to accept responsibility for these men. And again, tensions are rising in southern Serbia, where ∗ The author is currently completing a Masters Degree in International Relations at the HSG University of St Gallen, Switzerland. She has previously worked as an intern at the UNHCR Liaison Office for Switzerland and Liechtenstein, and on a mine awareness project for Kosovo Refugees in Albania during the Summer of 1999. 1 Official Gazette of FRY, No. 9; for text, see Annex below, 171–3. International Journal of Refugee Law Vol. 13 No. 1/2  Oxford University Press 2001. All rights reserved.

(2) 154. Katharina Schno¨ring. Kosovo-Albanian extremists try to increase the territory of Kosovo and it is not clear if a new war will start. An Amnesty Law is always a highly sensitive issue, especially for people who went to war, eventually were injured, or lost friends, suffered for their country, and finally lost the war. These people often feel betrayed by an Amnesty Law which protects those who chose another way. This article examines the question, whether deserters, draft-evaders and conscientious objectors from the Federal Republic of Yugoslavia (FRY) can claim refugee status, in terms of the 1951 Convention and international law.. 2. Refusal of military service as a reason to claim refugee status 2.1 Convention refugee status It will be recalled that, according to Article 1(A)(2) of the 1951 Convention relating to the Status of Refugees, the term ‘refugee’ shall apply to any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside their country of nationality or former habitual residence, if stateless, and unable or unwilling to avail themselves of its protection or to return there. 2.2 Deserters and draft evaders The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status expresses a clear position on this point: A refugee is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.2. A deserter is a person who went to military service and then decided to escape from it. A draft evader, however, is a person who refused to answer his call-up. According to paragraph 169 of the Handbook, desertion alone is not enough to claim refugee status, and to become a refugee the deserter must fulfil additional criteria, such as suffering disproportionately severe punishment for a military offence on account of race, religion, nationality, membership of a particular social group or political opinion. In general, the threat of punishment for persons who refuse to perform military 2 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, para. 168 (UNHCR Handbook)..

(3) Deserters in the Federal Republic of Yugoslavia. 155. service or desert on conscientious grounds relating to religious or other convictions is only accepted as a ground for recognition of refugee status if it seems likely that the individual in question will be punished with disproportionate severity because of the beliefs underlying his refusal to perform military service or his desertion. If there are indications that he will be punished in a disproportionate manner, as compared to the normal sanctions, because of his religion or because he belongs to an ethnic minority, refugee status can be granted to him. Where this cannot be demonstrated, there is still the possibility of granting the individual another type of residence permit on humanitarian grounds, if there are sufficient reasons for doing so. In cases where the military action is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in light of all other requirements of the definition, in itself be regarded as persecution.3 The provision of protection to deserters of whatever type, and on whatever grounds, is also a highly controversial issue. To summarise, according to the Handbook, a deserter can claim persecution if at least one of the following conditions exist: (1) the war is condemned by official international bodies (such as the United Nations) or unofficial bodies whose expertise is generally recognised (for example, Amnesty International);4 or (2) the punishment for the deserter, in case of his return, is disproportionate.5 The same conditions are valid for conscientious objectors, if one considers that the UN is founded on the search for peace, and that the sanction inflicted on a conscientious objector is disproportionate as long as no alternative civil service is proposed. 2.3 Conscientious objectors Paragraph 170 of the Handbook distinguishes between ordinary deserters and conscientious objectors. A conscientious objector is a person who can prove that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to other valid reasons of conscience. This category, for example, would cover Jehovah’s Witnesses. However, according to paragraph 171 of the Handbook, it is not enough to disagree with the government regarding the political justification for a particular military action to be a conscientious objector. When a prosecution concerns ‘all young men without regard to their political or religious opinions’ if they do not fulfil their military service, the objective element is missing. A deserter who simply claims persecution 3 4 5. Ibid. Ibid., para. 171. Ibid., para. 169..

(4) 156. Katharina Schno¨ring. because he left the army for political reasons will fail. His political opinion, which was the motive for leaving the army, has no effect on the recognition so far as every deserter will be prosecuted. Where the asylum seeker does not link the sanctions for conscientious objection to political or ethnic reasons, as mentioned in the 1951 Convention, asylum is mostly not granted.6 The right to refuse to do military service is not yet widely recognised as a human right. Paragraph 173 of the Handbook, which was drafted in 1979, leaves it open for States whether an objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status. No international human rights instrument yet recognises the right of conscientious objection to military service, even though the right of freedom of conscience itself is almost universally approved.7 Nevertheless, the international community appears to be moving towards acceptance of such rights.8 Economic and Social Council Resolution 1998/77, adopted on 22 April 1998, recognises the right of anyone to have a conscientious objection to military service as a legitimate exercise of their right to freedom of thought, conscience and religion.9 In 2000, the Economic and Social Council recalled these rights,10 and requested the Office of the United Nations High Commissioner for Human Rights to prepare a compilation and analysis of best practices in relation to the recognition of the right of the individual to conscientious objection to military service.11 On 12 April 1989 the European Parliament adopted the ‘Resolution on the Declaration of the Fundamental Freedoms’, Article 4 of which provides, ‘Each person has the right to freedom of thought, conscience and religion’. In addition, on 13 October of the same year, the European Parliament adopted the ‘Resolution on Conscientious Objection and Alternative Civilian Service’.12 This resolution starts with the demand: ‘The European Parliament calls for the right to be granted to all conscripts to refuse military service, whether armed or unarmed, on grounds of conscience with full respect to the principles of freedom and equal 6 Carlier, Jean-Yves, et al, eds., Who is a Refugee? A Comparative Case Law Study, The Hague: Kluwer Law International, 1997, 52. 7 Goodwin-Gill, G. S., The Refugee in International Law, Oxford: Clarendon Press, 2nd edn., 1996, 50. 8 Ibid., 55. 9 Commission on Human Rights, ‘Resolutions and Decisions Adopted by the Commission at its Fifty-fourth Session’: UN doc. E/CN.4/1998/177, E/1998/23; http://www.unhchr.ch/ (04.01.01). 10 UN doc. E/CN.4/2000/L.43. 11 Commission on Human Rights, Resolutions and Decisions Adopted by the Commission at its Fifty-sixth Session (20 March–28 April 2000): UN doc. E/2000/23, E/CN.4/2000/167, Res. 2000/ 34, 172; http://www.unhchr.ch/ (04.01.01). 12 ‘The Human Right to Conscientious Objection and the Resolutions of the European Parliament’: http://www.dfg-vk.de/zentralstelle-kdv/ (04.01.01)..

(5) Deserters in the Federal Republic of Yugoslavia. 157. 13. treatment for all members of society.’ On 18 December 1993 the European Parliament tackled this topic again by adopting the recommendations on ‘Conscientious Objection in the Member States of the Community’ in which they deplored ‘the lack of response to its previous resolutions in 1983 and 1989, especially the possibility of refusing, for reasons of conscience, to fulfil an obligation to perform military service.’ Additionally, on 28 October 1993, the European Parliament passed a decision concerning deserters from the forces of the former States of Yugoslavia, in which it asked its member states to guarantee these deserters a legal status instead of sending them back.14 In 1995, the European Parliament asked the Commission and the member states, in the framework of their asylum policy, to take special care of persons who desert military service or private armies during a civil war.15 Again, in May 1999 the European Parliament asked its member states to give deserters from the Yugoslav army temporary protection in the European Union.16 In the ‘Resolution on the Annual Report on International Human Rights and European Union Human Rights Policy in 1999’, released on 16 March 2000, the European Parliament called: . . . in particular on the Council of Ministers and on European Union Member States to grant asylum rights or refugee status to conscientious objectors and deserters from countries where the right to conscientious objection is not recognised and/or where military forces are practising violations of human rights or contravening international law.17. Few European Union governments have responded positively to this call, probably because they are afraid of an increased influx of refugees and the social, economic and political problems that accompany them. These examples show that the European Parliament is willing to change something, although it is not strong enough actually to do it. In addition, paragraph 174 of the UNHCR Handbook points out that the genuineness of a person’s political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background. So it can be relevant if he was drafted into compulsory service or joined the army as a volunteer. The possibility to do alternative service can help to reconcile the situation in a way that promotes community interests in defence and 13. Ibid. Zentralstelle KDV, Kriegdienstverweigerung in Europa, Bremen 1997, 7. Ibid. 8. 16 ‘NATO instrumentalisiert Deserteure aus Jugoslawien’: http://www.connection-ev.de (04.01.01). 17 Resolution A5–006/2000, para. 68. 14 15.

(6) 158. Katharina Schno¨ring. equality of treatment and the individual’s interest in his or her own conscience.18 Another question arises if a particular State recognises the right to refuse to perform military service on conscientious grounds, but does not recognise as conscientious, the objections of an individual conscript to performing military service. If the individual concerned nevertheless evades the draft and requests asylum elsewhere, the question arises as to whether, and if so on what grounds, the State to which the asylum application had been submitted can reassess the objection of the asylum seeker. 2.4 Circumstances which may lead to the recognition of Convention refugee status According to a decision of the Immigration and Refugee Board in Canada in September 1992, when handling a claim for Convention refugee status as a draft evader or deserter, attention should be paid to the following factors: • When compulsory military service exists in the claimant’s country, who is required to serve and the length of that service, as well as the manner in which the service is generally instituted and administered. • Legal recognition of, and procedures for obtaining, conscientious objector status and the ground(s) accepted by that country as valid for conscientious objection. • Availability of alternative service and the nature of that service. • The state of the judicial system in the claimant’s country and its human rights record, particularly evidence of human rights violations by the armed forces. • In addition, regard should be had to the standards and demands of the international community regarding the purposes, means and methods of conscription and use of armed force, including, specifically: Whether the claimant’s draft-evasion or desertion took place in time of war/public emergency, or in peace time; the nature of the particular military activity in which the performance of military service would have required the claimant to participate; the specific reasons (beliefs, convictions, etc) for the claimant’s refusal to perform the required military service, and the credibility of those reasons; the nature and severity of the possible legal penalty and/or extra-legal/extra-judicial treatment to be suffered by the claimant for the refusal to serve; and whether the claimant may, besides his/her fear of prosecution and any harm resulting directly thereof, also have other pertinent reasons for fearing persecution.19 18. Goodwin-Gill, The Refugee in International Law, above n. 7, 58. Refusal to Perform Military Service as a Basis for a Well-Founded Fear of Persecution — Suggested Framework of Analysis. Immigration and Refugee Board Canada; UNHCR CD-ROM RefWorld, July 1999. 19.

(7) Deserters in the Federal Republic of Yugoslavia. 159. In brief, a draft-evader or deserter may have a well-founded claim to Convention refugee status if it can be shown that the claim fits any of the following three situations. 2.4.1 Institutionalised discrimination In this case, the conscription law of the country in question is not one of general application, but is rather designed and implemented in such a manner as to single out or discriminate against the claimant’s racial, religious, national, social, or political group. Or, if the conscription law itself is not discriminatory, the evasion of the draft or desertion would result in a disproportionately severe punishment on account of the claimant’s race, religion, nationality, membership in a particular social group or political opinion. For example, this would concern all KosovoAlbanians, required to fight in Kosovo in the Yugoslavian Army, which would be problematic due to their national feelings. 2.4.2 Conscientious objection As mentioned above, this objection to performing military service for reasons of conscience concerns all ethnic groups in the FRY. 2.4.3 Political objection20 That is, objection to military service because of the person’s total political opposition against the very foundation of the regime in power. Disagreement with the government’s political justification for military service is not in itself a sufficient reason for claiming Convention refugee status. According to paragraph 171 of the UNHCR Handbook, the war must be condemned by the international community. So, for the claim to succeed, it must be shown that the person’s objection to performing military service is governed by his or her tenacious political dispositions against joining any agency of the state. The claimant’s refusal must be motivated by his political make-up, for a finding of well-founded fear of persecution;21 in the circumstances, this concerns all ethnic groups in the FRY.. 3. Yugoslav deserters during the Kosovo war22 Following the signing of the Dayton Peace Accords in 1995 partial mobilisation did not stop in the territory of FRY because of the rising tensions in Kosovo.23 At first, mobilisation of the reserve police corps was 20. Ibid. Ibid. 22 I will use the word ‘Kosovo war’, even though there was never a declaration of war and NATO used the words air campaign. 23 Centre For Antiwar Action, Eyes the Colour of the Frontline, Belgrade: Alnari Print, 2000, 55. 21.

(8) 160. Katharina Schno¨ring. carried out, because it was believed that the situation should be pacified by police operations. However, after the events in early 1998, when massive killings of civilians took place, the Yugoslav Army became involved to a larger extent.24 With the beginning of the NATO air campaign on 24 March 1999, NATO encouraged the soldiers of the Yugoslav Army to desert their units. Millions of leaflets bearing a range of texts were dropped by NATO aircraft over various parts of the Federal Republic of Yugoslavia, including Kosovo.25 Many soldiers answered the mobilisation which followed the proclamation of a state of war,26 but thousands of others expressed their opposition to the conflict, either by refusing to answer the call-up, refusing to accept arms, or deserting their units. Many did so on the basis of their conscientiously held objection or belief. Nevertheless, these deserters did not get strong support from NATO, some of them live now under great personal risk inside the FRY. Others tried to get refugee status in western countries, but most of them now live in Hungary or Bosnia. 3.1 Alternative service in the FRY With the creation of the FRY out of two republics of the former Yugoslavia in 1992, the right to conscientious objection was acknowledged in the Federal Constitution with the words: Citizens who because of religious or other reasons of conscience who do not wish to fulfil their military obligation under arms, will be allowed to fulfil their military obligations by serving in the Yugoslav Army without arms or in civilian service, in accordance with federal law.27. Although the Constitution was promulgated in April 1992, it was two years before this right was realised, when the Law on the Yugoslav Army came into force in May 1994.28 This alternative service is punitive, lasting twenty-four months, instead of the regular twelve month military service. But most importantly, the law is only available for new recruits. They have just fifteen days in which to make a request for conscientious objector status when they are first registered for army service. After this fifteen-day period they have no opportunity whatsoever to seek conscientious objector status.29 That means that this law did not include most men undergoing military service during the Kosovo war. 24. Ibid. Amnesty International: ‘Federal Republic of Yugoslavia’: http://www.web.amnesty.org/ai.nsf/ index/EUR700282000 (11.12.00). 26 The state of immediate threat of war was proclaimed on 24 March 1999 and the state of war lasted from 25 March–24 June 1999: Centre for Antiwar Action (2000), 62. 27 Art. 137, Constitution of the FRY. 28 ‘Federal Republic of Yugoslavia’, above n. 25. 29 Ibid. 25.

(9) Deserters in the Federal Republic of Yugoslavia. 161. In essence, two important rights are not recognised in Yugoslav Law: First, the right to have conscientiously held objections recognised at any time during military service; and second, the right to have conscientiously held objections to service in a particular conflict.30 According to reports from NGOs working in this field, like the European Office for Deserters (EBCO), this law did not work in practice. The reality was more that people who asked for conscientious objector status got their call up very soon, or found themselves back in prison.31 Moreover, since the introduction of the 1994 law on the Army of Yugoslavia, Amnesty International pointed out that they have adopted, as prisoners of conscience, a number of individual conscientious objectors who have been imprisoned after refusing to perform military service and who have been denied access to a genuinely alternative civilian service.32 3.2 Punishments for deserters in the Federal Republic of Yugoslavia According to Article 22 of the Compulsory Military Service Law, all those who are permanent residents of the Federal Republic of Yugoslavia are eligible for conscription. All men aged 18 to 27 have to serve 12 months of compulsory military service; thereafter, they become reservists until the age of 60.33 Draft evasion is covered by Articles 214–217 in Chapter 20 of the Federal Criminal Code. The possible penalties for draft evaders or deserters are as follows (Arts 214, 217 and 226 of the Criminal Code): • Failure to answer a recruitment call. In peacetime: maximum 1 year imprisonment; during war or threat of war: 1 to 10 years imprisonment. • Hiding inside the country with the intent to evade recruitment. In peacetime: 3 month–5 years imprisonment; during war or threat of war 5–20 years imprisonment. • Going or staying abroad with the intent to evade recruitment. In peacetime: 1–10 years imprisonment; during war or threat of war: 5–20 years imprisonment; • Desertion and not returning within 30 days. In peacetime: 6 month to 5 years imprisonment; during war or threat of war: 5–20 years imprisonment • Desertion and leaving the country. In peacetime: minimum 1 year imprisonment; during war or threat of war: 5–20 years imprisonment.34. On 25 March 1999 the Federal Government decided to Proclaim the State of War,35 which meant that much harsher sentences were 30. Ibid. ‘Keine Hilfe fu¨r Deserteure’: http://www.gsoa.ch/kosovo–nato/199905/19990514.1.html (08.12.00). 32 ‘Federal Republic of Yugoslavia’, above n. 26. 33 UNHCR Document: NAT/BiH/POL/2 D. 34 Ibid. 35 Centre for Antiwar Action, above n. 24, 55. 31.

(10) 162. Katharina Schno¨ring. pronounced relative to the prescribed punishment, while the punishment was much higher if the person stayed abroad. Therefore, a refugee would face heavier punishment than an internally displaced person, which was an additional reason for deserters to conceal themselves in the anonymity of Belgrade, rather than going abroad. According to the Centre for Antiwar Action, most of the disputes arose over whether military conscripts had any knowledge about the draft or not. The courts maintained that all conscripts had knowledge about their duties, since it was common knowledge that the country was in a state of war.36 On 26 February 2001, the Parliament of the FRY adopted the Amnesty Law — which includes an amnesty for conscientious objectors to military service in the Yugoslav Army.37 3.3 Deserters from the Kosovo war in international law As mentioned above, paragraph 171 of the Handbook states that a person can claim refugee status after desertion, conscience objection, or draftevasion, if the type of military action with which the individual does not wish to be associated is condemned by the international community as contrary to basic rules of human conduct. The military operation by the Army of Yugoslavia was condemned several times by resolutions of the Security Council of the United Nations and the General Assembly of the United Nations.38 For example, Security Council Resolution 1203 (1998) ‘condemns all acts of violence by any party in Kosovo’. In addition, in 1998 the United Nations Commission on Human Rights adopted a resolution which: encourages States, subject to the circumstances of the individual case meeting the other requirements of the definition of a refugee as set out in the 1951 Convention relating to the Status of Refugees, to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service when there is no provision or no adequate provision, for conscientious objection to military service.39 Therefore deserters should have the possibility to claim refugee status under the 1951 Convention. 3.4 Different groups of deserters in the Kosovo war and their situations It is estimated that around 23,000 men deserted in Serbia, of whom 7,000 hid in Belgrade. The Republic of Montenegro brought legal proceedings 36. Ibid., 63. ‘Conscientious objectors can return to Yugoslavia’: Amnesty International, International Secretariat, News Release, 13 Jan. 2001. 38 See, for example, UN SC res. 1160 (1998) and UN SC res. 1203 (1998). 39 Commission on Human Rights res. 1998/77, para. 7. 37.

(11) Deserters in the Federal Republic of Yugoslavia. 163. against some 14,000 persons who left the army before it passed an Amnesty Law for draft evaders and deserters from the Yugoslav Army on the 30 November 1999.40 However, a general Amnesty Law for deserters, like the one after the war in Croatia, was not enacted immediately after the Kosovo war, and it was nearly eighteen months before the law was adopted in the FRY. 3.4.1 Serbian deserters Unlike the Albanian objectors, who mostly decided not to join the army (draft-evasion), most Serb deserters did their military service and deserted in the beginning of, or during, the war. The experience of the conflicts in Bosnia and Croatia and the decreasing support for the government made the people tired of war. Hence, the number of deserters in the Kosovo war was extraordinarily large.41 On 20 May 1999, the Neue Zu¨richer Zeitung reported that around one thousand soldiers from Kosovo deserted after demonstrations against the war took place in Krusevac. The demonstration started after coffins with soldiers killed in Kosovo arrived.42 Most deserters tried to hide themselves in the anonymity of Belgrade, and a few tried to go abroad; their main problem was to cross the border, because as soldiers they had no passports. 3.4.2 Kosovo-Albanian deserters Almost all Kosovo-Albanians refused to comply with the call-up because they considered Serbia to be a foreign country rather than their own homeland.43 Some Kosovo-Albanians who had reached the age of military service and refused to go there were detained and forcibly taken away for military service, or subjected to military prosecution. Hence those who had been called up for army service, or who feared being called up because of their age, usually went into hiding with relatives. A few went abroad to seek asylum. In practice, however, it is estimated that only about 10 per cent of the Kosovo-Albanians of conscription age received any form of call-up,44 because they were not considered loyal to the State. The problem of deserters from the KLA is dealt with below. 3.4.3 Other minorities Deserters belonging to the Hungarian minority, who came mostly from Voivodina, fled to Hungary and there they tried to start a new life. Unlike the Serbs, because of their knowledge of the language, they had better possibilities of finding work. 40. ‘Belgrads Schadenbilanz’, Neue Zu¨richer Zeitung, 2 Sept. 2000. ‘B92 Interview of the day. Biljana Kovacevic-Vuco’: http://www.freeb92.net/intervju/eng/ 18–08–99–vuco.shtml (18.12.00). 42 ‘Anzeichen von Kriegsmu¨digkeit in Jugoslawien’, Neue Zu¨richer Zeitung, 20 May 1999. 43 OSAR, ‘Repatriate the Expellees’? Swiss Refugee Council, Bern, 1995, 16. 44 ‘Europe Report’, below n. 45. 41.

(12) 164. Katharina Schno¨ring. There is little information about Romas and other minorities who deserted. In the past, they had often joined with the Serbs; which was one reason they were targeted by the radical Albanian forces after the war. However, most people from Muslim minorities were not called up because they were not seen as loyal to the State. In addition to deserters from military service, 2,500 policemen from FRY refused to go to Kosovo and were therefore sacked,45 unlike the deserters, draft-evaders and conscientious objectors, they did not break any law by refusing to go to Kosovo. So, apart from losing their job, they did not have to fear any further consequences. 3.4.4 Deserters from the KLA Although the KLA was not a regular army, it did engage in regular recruitment. The longer the war went on, the more soldiers were needed, and the more brutal were the recruitment methods of the KLA. At the end of March 1999, the KLA ordered a general mobilisation for all Kosova-Albanian men between 18 and 50 years of age within and outside Kosovo; they had from the 1–30 April to register and join the KLA. According to the KLA, three hundred men a day were signing up, and some women also were recruited into the ranks of the rebel group.46 In addition, minors were reported to have been recruited. The FYROM Minister of Interior, Mr Pavle Trajanov, claimed that 1,000 children from Macedonia joined the KLA.47 In the beginning of the war the KLA called young men by phone to tell them that they were needed, and later they stopped refugee columns on their way out of Kosovo and took all men of able-bodied age. Furthermore, the KLA did not hesitate to recruit people from refugee camps near to Kosovo, as well as in western European countries. In Kukes and Tirana, the KLA had recruitment centres close to refugee camps, and it was claimed that in the camps in Kukes, a recruitment video calling on Kosova-Albanian men was broadcast nightly.48 Germany and Switzerland were the two western countries from which most recruits came.49 The Swiss Bundesamt fu¨r Flu¨chtlinge (BFF) announced that they had evidence of forced recruitment in Switzerland, and that if a person recognised as a refugee in Switzerland went to fight for the KLA he would lose his permission to stay in the country.50 In Germany, the more. 45. ‘B92 Interview of the day. Biljana Kovacevic-Vuco’, above n. 43. ‘Untergrundarmee UCK verku¨ndet Generalmobilmachtung im Kosovo’: www.kosova-infoline.de/kil/neustes–nachrichte-2461.html (26.12.00). 47 ‘Europe Report’, above n. 45. 48 Ibid. 49 Ibid. 50 Refugee status or temporary permission to stay in Switzerland. 46.

(13) Deserters in the Federal Republic of Yugoslavia. 165. than 400,000 strong Albanian community was grouped in almost 200 Kosovo clubs, which were used for fund-raising and recruitment.51 3.4.4.1 Persecution by KLA. Not all recruitment by the KLA was voluntary. In cases where people who were called up refused to join, the KLA threatened them and their families.52 It is difficult to find out what really happened to men who refused to join the KLA and did not return to Kosovo, because most deserters are too frightened to talk. Hence, it is hard to say if the facts are sufficient to show quasi-state persecution and therefore a reason to claim refugee status. According to the Handbook, persecution can occur where serious discriminatory or other offensive acts are committed by the local populace, and they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection. It is not possible for the Yugoslavian authorities to protect deserters from the KLA, nor are they the responsible power for these issues in Kosovo. Furthermore, NATO is often unable to protect locals, as has been shown by the many cases of murder and kidnapping of Serbs, moderate Kosovo-Albanians and other minorities, by radical Albanian forces. 3.5 Asylum possibilities for deserters In its October 1999 report, Amnesty International called on the international community to grant effective and durable protection to conscientious objectors who fled the FRY during the Kosovo conflict. Those Yugoslav citizens who left the country in order to avoid call-up to the military clearly risked long prison sentences on return. In addition, during the Kosovo war, a new law forbade men between 18 and 60 years to leave the country; furthermore, soldiers do not have passports, and they can only leave the country and enter another country illegally. There is also no evidence that an internal flight alternative was a reasonable or safe option for deserters, draft-evaders and conscientious objectors. In many European countries, asylum seekers who deserted were required to present a draft order in order to prove their credibility.53 Most of them were unable to do so because they did not accept the draft orders sent by registered mail, or they were called via the media,54 or they did not bring it with them on crossing the border for security reasons, in case of control. 51. ‘Europe Report’, above n. 45. ‘Wie die UCK Kosovo befreit — von den Albanern’: http://www.jungewelt.de/1999/04-08/ 007.shtml (25.12.00). 53 International Helsinki Federation on Kosovo-Albanian Deserters: http://www.fecl.org/circular/ 2608.htm (08.12.00). 54 For example in the case of Nis where conscripts were called via the local TV and radio stations: Centre for Antiwar Action (2000), 77. 52.

(14) 166. Katharina Schno¨ring. Most deserters went to ground in the FRY, in particular many chose the anonymity of Belgrade. Those who could go abroad mostly went to Hungary and Bosnia with an estimated 5,000–6,000 deserters going to Sarajevo,55 especially people from Muslim minorities, who often had relatives in Bosnia. The situation of deserters, draft evaders and conscientious objectors in Hungary was never clear, although the Hungarian Ministry of Interior officially replied to an appeal made by local NGO activists and prominent intellectuals when it announced that all deserters and draft evaders were safe in Hungary and would not be deported back to Serbia. A similar opinion was expressed by the UNHCR office in Budapest, which admitted that conditions were not ideal but tolerable. In this sense Hungary was treated as a safe-third-country, and EU and NATO member states embassies in Budapest rejected every visa application by deserters with the same explanation.56 The number of FRY citizens (Kosovo-Albanians, Serbs, Hungarians from Voivodina, Roma, and so forth) who applied for asylum in Hungary during the period January 1999–August 2000 varied from 5,100 (according to UNHCR), to 50,000 (according to NGOs such as EBCO). The truth is probably somewhere in the middle because precise figures are not available, especially as statistics are not provided by the government.57 In Hungary none was granted Temporary Protection Status, as was the case in Germany and Switzerland, for example. Since the Asylum Law was introduced in March 1998, this status has never been enacted in Hungary. According to UNHCR Budapest, forty-four deserters were granted full Convention refugee status, 1,712 were authorised to stay status, 1,514 were rejected or disappeared, and a few returned to Yugoslavia; 156 claims were still pending as of the end of August 2000.58 Generally speaking, people claiming to be draft evaders/deserters have been granted ‘authorised to stay’ status. Nevertheless, Hungary is the ninth receiving refugee country in Europe and the first one in Central and Eastern Europe.59 In March 2000 the Budapest Central Court issued a judgment on an appeal lodged by a FRY national whose application for asylum in Hungary on the grounds of his conscientious objection to military service had been earlier rejected by the authorities. The court ruled that the decision of the Office for Immigration and Nationality in this instance was not wellfounded as it had not taken into sufficient consideration evidence that 55 ‘NATO instrumentaliserite Deserteure aus Jugoslawien’: http://www.connection-ev.de (04.01.01). 56 ‘Safe House project report — 3.5.2000’: http://extra.hu/prigovor/sfrep35.htm (15.12.00). 57 Interview with Heather Sharp, UNHCR Budapest, 29 Sept. 2000. 58 Ibid. 59 Ibid..

(15) Deserters in the Federal Republic of Yugoslavia. 167. the individual concerned could indeed face persecution on the basis of his expressed political convictions and his resulting claim to be a conscientious objector to military service. The court subsequently instructed the Office for Immigration and Nationality to begin a new procedure to reassess the individual’s claim to refugee status.60 Although the Former Yugoslav Republic of Macedonia is party to the 1951 Refugee Convention, it has not yet passed legislation defining asylum procedures and refugees’ rights. According to Amnesty International most draft evaders and deserters had therefore not tried to seek asylum, but instead stayed with the support of their families or friends in the country. Deserters searching for asylum in Austria came mostly through Hungary, which is a safe third country in this case. So no asylum was given to a conscientious objector from Serbia who feared the death penalty in the event of his return because he ‘had already been safe from persecution in Hungary’.61 But for Kosovo-Albanians the situation was different, and a deserter from the Yugoslav army during the civil war would have been punished for not having joined military actions which conflict with the rules of the ‘community of nations’. The full court in Austria decided that calling-up is persecution if the concerned person does not want to identify himself with such a military action.62 During the Kosovo war, the Minister for Internal Affairs said that, in view of the special political situation in the FRY, deserters from that area had the possibility to get asylum in Austria.63 As a non-NATO Country, Switzerland, together with Germany, was one of the two western countries which were confronted with the highest number of Kosovo-Albanian refugees, and for this reason the Swiss Federal Council decided on 7 April 1999 to grant Temporary Protection Status to all persons from FRY whose last domicile was Kosovo. Deserters, draft evaders, and conscientious objectors whose last domicile was outside Kosovo did not get this status and their claim had to be proved individually.64 Unlike the case of the war in Bosnia, the Swiss Federal Council did not pass a resolution which allowed all deserters and draft evaders to stay in Switzerland. Kosovo-Albanians who had refugee status and were caught by the Swiss authorities on their way to fight in Kosovo for the KLA lost their refugee status. On 10 May 2000, the German Federal Government announced at a session of the Parliamentary Committee on Internal Affairs that it was 60 ‘Federal Republic of Yugoslavia’: http://free.ngo.pl/aizosw/zosw/english/data/yug00.html (15.12.00). 61 Carlier, above n. 7, 36. 62 Ibid. 63 ‘Nun Asyl fu¨r Deserteure’: http://www.salzburg.com/sn/99/04/23/innenpolitik-6564.html (26.12.00). 64 ‘Differenzierte Kommunikation betreffend Kosovo-Flu¨chtlingen’: http://www.parlament.ch/ (17.01.01)..

(16) 168. Katharina Schno¨ring. prepared to grant protection status to a limited number of conscientious objectors and deserters form FRY.65 According to Amnesty International, approximately 250 conscientious objectors and 130 deserters were most likely eligible for this status.66 But after further discussions between the parties, it was decided that the current Asylum Law already included the possibility for deserters and conscientious objectors to claim asylum and so nothing was changed. Another possibility for deserters in Germany was the temporary protection status, which was granted to all people from FRY who sought asylum in Germany during the Kosovo war. However, the German government stopped granting Convention refugee status completely during this period, and the temporary protection status gave a person fewer rights than Convention status; it was a real disadvantage for deserters that nobody looked deeply into their cases. In addition, the possibility existed that cities could do resettlement on their own. For example, Mu¨nster decided in May 1996 to take deserters and conscientious objectors from war areas, with the support of the mayor and a local member of the German Parliament. Visas were issued in November 1999 and two Serbian objectors who had been residing in Hungary arrived;67 they were given a resident permit on humanitarian grounds which enabled them to settle in Germany. According to Amnesty International, at least two men from the FRY were granted de facto refugee status on the grounds of their conscientious objection to military service.68 However, the Danish authorities announced that only objectors who left the FRY between 24 March and 23 June 1999 would be considered eligible for such protection. 3.6 The mistakes of the international community In the 1995 Dayton Peace Agreement a general amnesty for all conscientious objectors, draft evaders and deserters was included. In the 1999 Rambouillet Agreement, however, no amnesty was mentioned, nor was it included in the later signed agreements (UN Resolution 1244, and the Agreement between NATO and FRY). It took eighteen months and a new government in the FRY for an Amnesty Law to be passed. On 26 February 2001, the Parliament of the FRY adopted a law which covers those who refused to take up arms, those who avoided military service or registration for service, and those who deserted from the Yugoslav Army. The Law also provides amnesty to an estimated 1,000 prisoners convicted of ‘criminal acts’ against the Yugoslav military 65. ‘Asyl fu¨r Deserteure mo¨glich’: http://www.bundestag.de/aktuell/ (22.12.00). Amnesty International: ‘Federal Republic of Yugoslavia’, above n. 26. 67 ‘Zuflucht fu¨r jugoslawische Deserteure’: http://home.t-online.de/home/lothar.banspach/ jugoslaw.html (26.12.00). 68 Amnesty International: ‘Federal Republic of Yugoslavia’, above n. 26. 66.

(17) Deserters in the Federal Republic of Yugoslavia. 169. — including those convicted of the offence of ‘association for hostile activity’, under which, according to Amnesty International, 800 ethnic Kosovo-Albanians from Kosovo were then being held in Serbian prisons. However, the Amnesty Law does not include the large number of ethnic Kosovo-Albanian prisoners held on charges of ‘terrorism’, mostly due to their membership of the KLA. In addition, according to Amnesty International, the Yugoslav government intends to provide for a genuine civilian alternative to military service which meets international standards.69 3.6.1 The failed responsibility of NATO During the air campaign NATO airplanes dropped thousands of leaflets over the FRY, calling on the soldiers to desert.70 In addition, political leaders from NATO countries routinely urged the citizens of the FRY actively to refuse to give their support to their government’s military strategy for retaining control over the Kosovo province. In a video address to the Serbian people, broadcast by satellite to the region just after the start of the conflict in March, United States President Clinton and Secretary of State Madeleine Albright sought to assure their audience that NATO operations in the region were not directed against them, but against President Milosevic alone; and they called for the Serbian people to take individual responsibility for their government’s actions.71 Many Yugoslav citizens read these leaflets or saw this video and deserted. They thought that they would get support as soon as they were in one of the NATO countries, and that they would easily receive asylum.72 But this turned out to be wrong. Most deserters escaped to Budapest, where they tried to get asylum in one of the western embassies, but without success. So they ended up in Hungary, from where they could not go back to FRY and felt excluded from the international community, which had promised so much and yet did nothing. That NATO was aware of their situation is clear from a statement by NATO spokesman Jamie Shea, who said that ‘Incidents of desertions are on the rise, and unconfirmed reports have been received of officers warning their soldiers that they will be shot if they attempt to desert’,73 69 ‘Conscientious objectors can return to Yugoslavia’: Amnesty International, International Secretariat, News Release, 13 Jan. 2001. 70 ‘In recent weeks, Serbian police and the army, under direct orders of Slobodan Milosevic, have emptied villages and towns in Kosovo, burning or destroying thousands of houses . . . Hundreds of thousands are fleeing to avoid becoming victims of Milosevic’s pogrom. Don’t let wrongly directed patriotism Land you with his crimes.’ Text of a NATO leaflet air-dropped in the Belgrade area, April 1999; see http://www.web.amnesty.org/ai.nsf/index/EUR701111999 (11.12.00). 71 ‘FRY. The forgotten resisters: the plight of conscientious objectors to military service after the conflict in Kosovo’: http://www.amnesty.it/ode/doc/eur70.111.99.php3 (15.12.00). 72 Wolfgang Minder, ‘Serbische Deserteure: Von der NATO verraten’: Monitor Nr. 464, 25.05.2000: http://www.wdr.de/tv/monitor/ (26.12.00). 73 ‘NATO’s role in Kosovo’, Press Conference, http://www.isn-lase.ethz.ch (04.01.01)..

(18) Katharina Schno¨ring. 170. and further that ‘a large number of young men have taken refuge in Belgrade — have gone underground in the capital — because they know that there they have got a good chance of escaping the draft if they lie low.’74 Interestingly, however, nothing was said about deserters who went abroad. In the light of the statements by NATO leaders, it might be assumed that the plight of conscientious objectors to military service, and those who deserted from the Yugoslav armed forces on account of their religious belief or political opinion, would now be of great concern to these same governments who openly advocated disobedience and resistance. But instead of strenuous efforts to recognise and address the situation in which those who refused to perform military duties now find themselves, the governments who dropped the leaflets urging desertion, and who counselled opposition and an ethic of personal responsibility, appear to take little interest in the uncertain future facing such men and their families. False promises and war propaganda are not punishable under international law, however, and the deserters and conscientious objectors are unlikely to see their rights recognised.. 4. Conclusion Desertion alone is not a reason to claim Convention refugee status, but the Kosovo war was condemned by the international community, and thereafter, according to paragraph 171 of the Handbook, the basis for a claim to such status was established. In addition, the NATO countries summoned the members of the Yugoslav Army to desert, but then denied their responsibility for the problem and the status of those who could not return to the Federal Republic of Yugoslavia for fear of extremely harsh imprisonment. The refusal to bear arms is a political act. This might be one more reason that most states hesitate to accept deserters because they do not wish to get involved in other states’ internal affairs and they are frightened that the next time it will be their soldiers who seek asylum in other countries. There is now an Amnesty Law in the Federal Republic of Yugoslavia, and finally these forgotten victims of the conflict may be able to go back. But the problems in Macedonia and southern Serbia show that it is not. 74. Global Report: Yugoslavia: http://www.child-soldiers.org/ (26.12.00)..

(19) Deserters in the Federal Republic of Yugoslavia. 171. over yet, while for persons who refuse service for the KLA, the new Amnesty Law will remain out of sight and of no effect.. ANNEX Edict on Promulgation of the Amnesty Law∗ Article 1 Amnesty is granted to persons who up to 7 October 2000 committed or are (reasonably) suspected of having committed the criminal acts of: refusal to receive and use weapons pursuant to Article 202, failure to act upon draft summons and avoiding military service pursuant to Article 214, avoiding military service by mutilation or deceit pursuant to Article 215, defection or flight from the Yugoslav Army pursuant to Article 217, avoiding of registration and inspection pursuant to Article 218 and failure to fulfil material requirements pursuant to Article 219 of the Criminal Code of the Federal Republic of Yugoslavia (Official Gazette of SFRY nos. 44/76, 36/77, 34/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90 and the Official Gazette of FRY nos. 35/92, 16/93, 37/93 and 24/94). Amnesty is granted also to persons who in the period from 27 April 1992 to 7 October 2000 committed or are (reasonably) suspected of having committed the criminal acts of: prevention of fight against the enemy pursuant to Article 118, armed uprising pursuant to Article 124, instigation to forcible change of constitutional system pursuant to Article 133, association for hostile activities pursuant to Article 136 and violation of reputation of FRY pursuant to Article 157 of the Criminal Code of the Federal Republic of Yugoslavia (Official Gazette of SFRY nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90 and the Official Gazette of FRY nos. 35/92, 16/93, 37/93 and 24/94). Amnesty in accordance with paragraphs 1 and 2 of the present Article entails acquittal from criminal prosecution, execution of sentence and removal from the register. Article 2 One fourth of a sentence of imprisonment prescribed in final instance is deleted for the persons who had been sentenced up to 7 October 2000 for criminal acts set down in the Criminal Code of FR Yugoslavia, except for persons sentenced in final instance for the criminal act of terrorism ∗ Official Gazette of the Federal Republic of Yugoslavia, No. 9, Friday, 2 March 2001; translation by Mirjana I. Milenkovski. The Amnesty Law hereby promulgated was endorsed by the Federal Parliament at the sessions of the Chamber of Citizens and the Chamber of Republics held on 26 February 2001; President of FR Yugoslavia, Dr Vojislav Kostunica (manu propia)..

(20) 172. Katharina Schno¨ring. pursuant to Article 125, criminal acts against humanity and international law from Chapter XVI, the criminal act of illegal production and sale of narcotics pursuant to Article 245 and criminal acts of creating conditions to enjoy narcotics pursuant to Article 246 of the Criminal Code of FRY (Official Gazette of SFRY nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90 and the Official Gazette of FRY nos. 35/92, 16/93, 37/93 and 24/94). Article 3 If the criminal procedure has not been initiated against persons as set out in Article 1 above, it shall not be initiated at all and in case of an ongoing criminal procedure it shall be suspended. If the person who comes within Article 1 above was sentenced to imprisonment in the final instance he shall be amnestied from serving this sentence on the whole or in the part that has not been implemented. Article 4 The amnesty does not affect any rights of third persons based on the sentence. Article 5 The decision on amnesty shall be passed by the competent first instance court ex officio in respect of the person against whom the criminal procedure is ongoing or has been completed in the final instance. Article 6 If a person within Article 1 to whom the amnesty refers is in detention the competent first instance court shall pass a decision of cancellation of detention. The decision on amnesty from further serving of the sentence shall be passed by the first instance court of general competence in the area where the prison is located for a person within Article 1 who is serving a sentence of imprisonment, while for persons serving a sentence in a military prison this decision shall be made by the competent military first instance court. The decision under paragraphs 1 and 2 of the present Article shall be taken ex officio within three days from the date of coming into effect of this Law. Article 7 In cases mentioned in Article 2 above, the competent first instance court shall define the portion of the sentence from which the convicted person shall be amnestied and the remainder of the sentence that he is to serve. If the remaining part of the sentence is smaller or equal to the portion.

(21) Deserters in the Federal Republic of Yugoslavia. 173. of the sentence being amnestied, the convicted person shall be released immediately. Article 8 The decision under Articles 5 and 7 above may be taken at the request of the charged or convicted person or by a person who may file an appeal on his behalf. Article 9 The decision on application of the amnesty is subject to an appeal filed by the prosecutor, the accused and his defendant, the convicted person and the person authorised to file an appeal on behalf of the accused who had submitted a request. The appeal under paragraph 1 of the present Article does not stay the execution of the decision. Article 10 If the person to whom the decision on amnesty from Article 1 applies is in detention or serving the sentence of imprisonment, the court shall order immediate release. Article 11 Removal from the registries for criminal acts set down in Article 1 above shall be done ex officio by the authorities keeping the penal registries within three days from the date of coming into effect of this Law. Removal from the registries mentioned in Article 1 above shall be done also at the request of a person who is eligible for filing a request for amnesty pursuant to this Law. Article 12 If not otherwise provided for by this Law, the procedure for application of amnesty under this Law shall be governed by the regulations of the Law on Criminal Proceedings. Article 13 This Law shall come into effect on the day following the date of its publication in the Official Gazette of FRY..

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