According to the Federal Office for Migration and Refugees, there are currently almost 200,000 Ukrainian men of so-called military age, i.e. between 18 and 60 years old, living in Germany. According to Eurostat data, there are around 650,000 Ukrainian men of this age in the EU as a whole. The more distressed Ukraine gets in its defensive battle against the Russian invaders, the more frequently calls from Kiev to these men that they should return to their homeland are becoming more frequent. And questions also arise for Germany as host. According to Ukrainian law, some of the men were not allowed to leave their country at all. What do German and international law say? Here are some answers.
If Kiev recalls its citizens, will Germany have to extradite them?
No. There can be no question of having to. The Ukrainian Defense Minister Rustem Umjerov may appeal to his refugee compatriots to report to the Ukrainian armed forces’ recruiting centers. That’s what he said in an interview a few days ago Picture-Newspaper done. After some political excitement, he made it clear afterwards that this was just an “invitation” to his fellow countrymen who had fled – and that there was no threat of coercive measures or punishment. However, the German state does not necessarily have to be impressed by this – at least legally.
Germany and Ukraine are two sovereign states – and there is expressly no obligation to extradite under the relevant European extradition convention. According to Article 4 of this agreement, extradition for offenses that consist solely of breach of military duties is excluded. This also applies to “desertion” and “evasion of service through deception”, two offenses that can also be found in the German military criminal law, in paragraphs 16 and 18. It is also unclear how many of the 200,000 men are actually fit for military service.
Is Germany obliged to grant these men asylum?
Here too the answer is no. Germany is not obliged in one direction or the other. The Bundestag’s scientific services recently looked into this topic, and they found an old ruling by the Federal Administrative Court from 1981, according to which the Basic Law sentence “People who are politically persecuted enjoy the right to asylum” does not also include people who just want to avoid military service abroad. Mere conscientious objection is not grounds for asylum.
Germany is currently granting Ukrainians a voluntary right of residence on the basis of the EU’s so-called mass influx directive. But it would be possible to end this at any time, even selectively, i.e. only for certain groups of Ukrainians. The decision lies with the Federal Office for Migration and Refugees or – more importantly – with the federal government in Berlin.
Can Ukrainians invoke the fundamental right to refuse military service?
Again: no. This fundamental right is very important in Germany; it is included as part of freedom of belief and conscience in Article 4, Paragraph 3 of the Basic Law: “No one may be forced into military service with a weapon against their conscience. The details are regulated by a federal law.” Some committed lawyers such as the Hanover immigration lawyer Peter Fahlbusch argue that international solidarity should extend so far that Germany should also allow all foreigners to refuse to do so on grounds of conscience. Ultimately, it’s about human dignity. But the courts are dismissing it.
Several higher administrative courts made it clear in the 2000s that a deportation from Germany does not have to be stopped just because a foreigner invokes Article 4, Paragraph 3 of the Basic Law. If someone is threatened with torture or inhumane treatment – sure, then that is a reason for asylum. But if someone is simply threatened with military service against their conscience, then not. The law is cool here: When a US soldier named André Shepherd, who had deserted because of the Iraq War, applied for asylum in Germany, Even the European Court of Human Rights ultimately waved it off: Even with a conscientious decision that is so understandable under international law, Germany is not obliged to grant asylum.
Isn’t this a strange attitude: Germany supplies tanks and howitzers to Ukraine, but on the other hand doesn’t want to help the Ukrainians send back their own conscripts?
It seems contradictory, yes – at least until you consider how Germany relates to the Russian-Ukrainian war. Germany is not a party to the war. Germany is helping Ukraine by sending weapons and humanitarian goods. Not by using violence itself. Legally, this is a crucial difference.
If Germany were to start deporting around 200,000 Ukrainian men, it would require a lot of coercion. A lot of arrests, a lot of detention places. The specifications as to who should be deported and who not would ultimately come from the Ukrainian Ministry of Defense – and Germany’s police would act as its extended arm. That would be an unusually high level of “solidarity”. It would be an interference in Ukrainian domestic politics, which is very unusual internationally.