10 June 1994

Doc. 7102

1403-9/6/94-1-E

REPORT

on deserters and draft resisters from

the republics of the former Yugoslavia

(Rapporteur: Mr FRANCK,

Sweden, Socialist Group)

Summary

      Refusal to take part in a fratricidal war condemned by the international community because of serious violations of humanitarian law in the former Yugoslavia should be considered as grounds for granting asylum.

      This is what the recommendation on deserters and draft resisters in the republics of the former Yugoslavia asks for, emphasising that it is on these men that we may base our hopes for reconciliation and peace.

I. Draft resolution

1.       The Assembly recalls its Resolution 984 (1992) on the crisis in the former Yugoslavia, its Resolution 1019 (1994) on the humanitarian situation and needs of the refugees, displaced persons and other vulnerable groups in the countries of the former Yugoslavia and its Recommendation 1218 (1993) on establishing an international court to try serious violations of international humanitarian law;

2.       It refers to the European Parliament resolution on deserters from the armed forces of states in the former Yugoslavia adopted on 28 October 1993;

3.       It restates its hope that a lasting negotiated solution will be found which will put an end to the conflict in Bosnia-Herzegovina;

4.       It reiterates its deep concern with the fate of the millions of persons displaced as a result of the conflict;

5.       It notes that the numbers of men who have left the former Yugoslavia because they refuse to take part in the fighting are estimated at at least 100 000;

6.       It is concerned to learn that thousands of men, including very young men, who are refugees or displaced in Serbia, Montenegro, Croatia and in Bosnia-Herzegovina itself, have been forcibly drafted to fight in Bosnia-Herzegovina;

7.       It recalls its Recommendation 816 (1977) on the right of conscientious objection to military service, which it regards as a human right;

8.       It deplores the fact that Croatia, which has special guest status with the Assembly, and the Federal Republic of Yugoslavia do not recognise this right in practice and severely punish men refusing to take part in military operations which have been condemned by the international community as serious violations of humanitarian law, particularly "ethnic cleansing";

9.       It notes that tens of thousands of deserters and draft resisters have taken refuge in member states, which have generally granted them protection on a temporary basis;

10.       It is concerned to learn that several countries have announced their intention to deport deserters and draft resisters to their countries of origin, and that some have even done so already;

11.       It considers that a very prudent approach should be adopted in deciding when the country of origin of the deserters and refugees has become sufficiently "safe" for them to return or whether or not they run the risk of being recruited for operations of ethnic cleansing;

12.       It is aware that deserters and draft resisters will play an important role in re-establishing democracy once the war is over;

13.       Consequently, the Assembly invites the member states:

      i.       to bear in mind, when examining requests for protection from deserters and draft resisters from the former Yugoslavia, the serious risks of persecution these persons would run if they returned;

      ii.       to examine all applications for asylum submitted by deserters and draft resisters from the former Yugoslavia with reference to the Geneva Convention on the Protection of Refugees and the recommendations of the Office of the High Commissioner for Refugees as set out in the "Handbook on procedures and criteria for determining refugee status";

      iii.       to refrain from deporting, or even from threatening to deport, deserters and draft dodgers from the former Yugoslavia until such time as an amnesty has been declared and they can return home in complete safety;

14.       Furthermore, the Assembly:

      i.       calls on Croatia to establish a conscientious objector status enabling the individuals concerned to carry out a genuinely civilian alternative to military service, and to declare an amnesty for deserters and draft resisters;

      ii.       agrees to take account of the Croatian authorities' attitude to these matters when considering this country's application for membership of the Council of Europe;

      iii.       calls on the authorities of Serbia and Montenegro to recognise in practice the right to conscientious objection to military service and to declare an amnesty for deserters and draft resisters.

II. Explanatory memorandum

by Mr FRANCK

Description of the problem

1.       The list of disastrous consequences of the conflict in the former Yugoslavia gets longer and longer as time goes by. One such consequence that the Parliamentary Assembly of the Council of Europe has already dealt with on a number of occasions is the displacement of several million persons from the combat areas. More than one million Bosnians have left Bosnia-Herzegovina; most have sought refuge in the republics of their ethnic kinsmen.

2.       The figures we have received are only a rough guide, because they vary constantly and the statistics are unreliable. Nevertheless, according to the report on the humanitarian situation and needs of the refugees, displaced persons and other vulnerable groups in the countries of the former Yugoslavia (Doc. 6997), the total number of refugees and displaced persons and other persons in need of humanitarian assistance is 4,3 million, of which one million during 1993. Between 80% and 90% of the Moslems are apparently in Croatia, which has more than 500 000 refugees and displaced persons. Serbia has 337 000, Montenegro 41 000, Slovenia 30 000 and FYROM 32 000. The number of refugees from the former Yugoslavia who had arrived in other European countries since 1991 amounted to 750 000. By July 1993, Germany had taken in 350 000 asylum-seekers; Austria had 60 000, Hungary 29 000, Sweden 90 000, Switzerland 72 000 and Turkey 20 000.

3.       The refugees who have left the territory of the former Yugoslavia include considerable numbers of deserters and draft resisters who refuse to take part in a fratricidal, nationalist war. It is difficult to provide precise figures, but estimates vary between 100 000 according to the Anti-War Centre in Belgrade and 300 000 according to "Women in Black", from the Federal Republic of Yugoslavia (Serbia and Montenegro), Bosnia-Herzegovina and Croatia. Some arrived as much as three years ago because they did not want to fight for the federal army in Croatia. Others fled the hostilities in Bosnia-Herzegovina and ethnic cleansing operations.

4.       The report on the situation of the refugees and displaced persons in Serbia, Montenegro and the Former Yugoslav Republic of Macedonia (Doc. 6910) refers to a statement by the Office for Hungarians Living Abroad which confirms the tactics used by the Serbs to encourage Hungarians to leave Vojvodina. "One of the most striking examples consisted in enlisting young men in the Yugoslav Army ..."

5.       This problem of enlistment of young people in the Yugoslav army was not mentioned in Le Livre Noir de l'ex-Yougoslavie (a series of documents published in March 1993 by the French magazine Le Nouvel Observateur and Reporters sans frontières), but since then these tactics have become widespread. The sixth periodic report on the human rights situation in the former Yugoslavia submitted by Mr Mazowiecki in February 1994 mentions reports sent to him on violations of the right to object on grounds of conscience to military service as a legitimate exercise of the right to freedom of thought, conscience and religion and, especially under the present circumstances, of the right to refuse service in those elements of the military forces which have been responsible for "ethnic cleansing" and other grave violations of human rights in Croatia and Bosnia-Herzegovina. Soldiers from Montenegro have been forced to fight with the Bosnian Serb forces, but the report also mentions Croats who have been forcibly enlisted to fight in Bosnia-Herzegovina. Most are persons with dual Croat-Bosnian nationality or Croats born in Bosnia-Herzegovina.

6.       Refugees from Bosnia-Herzegovina in the Federal Republic of Yugoslavia, some as young as sixteen, have also been forcibly enlisted. Many young men have deserted to avoid conscription; if captured, they are subjected to very severe measures.

7.       Many of the refugees in other European countries, particularly in Council of Europe member states, would run the risk of being forcibly conscripted into the armed forces if they were returned to Croatia, Serbia or Montenegro. Ironically, Croatia is now considered as a safe haven to which refugees can be sent.

8.       There are three kinds of problem involved here:

      —fi       rst, forcible conscription is taking place in the Federal Republic of Yugoslavia; it mainly affects members of minorities such as Muslims from the Sandjak area, Gypsies, Hungarians from Vojvodina and Albanians from Kosovo. The Serbs, many of whom refuse to take part in this war, are also affected;—

      —se       cond, in Croatia, refugees of Croatian origin who were forced to flee areas of Bosnia-Herzegovina when they were occupied by the Serbs or Muslims have been returned to Bosnia, where they face forcible conscription. The same applies to Croatian refugees from the Krajina, particularly those born in Bosnia-Herzegovina, or to Croatian citizens of Serbian origin;—

      —fi       nally, the right to object to military service on conscientious grounds is not recognised in practice in either the Federal Republic of Yugoslavia or Croatia, even though it is enshrined in law. The Croatian Constitution provides for alternative non-combatant service but only within the framework of military activities.Si

Situation from the legal viewpoint

9.       Although the Yugoslav Constitution provides for conscientious objection to military service as an expression of the right to freedom of thought, conscience and religion, the implementing regulations have not been adopted and a refusal to serve in the armed forces is punishable by up to twenty years' imprisonment under Section 214 of the Yugoslav Criminal Code. This section covers all Yugoslav citizens who have avoided fighting in the war by going abroad and staying there. All Yugoslav citizens under fifty-five years of age are liable to the penalties provided for in the aforementioned Section 214, which applies even to parties who have not received their draft papers. Proceedings have been instituted against an estimated 15 000 to 20 000 individuals.

10.       In Croatia the problem mainly affects refugees from Bosnia-Herzegovina who are sent back there and forcibly enlisted. Deserters who are deported face not merely a court case and five years' imprisonment, but may be subjected to physical abuse by paramilitary forces or ultra-nationalist groups, discrimination (loss of job or housing, administrative problems). They may also be rejected by their friends and families, or members of their families may be subjected to harassment.

11.       Refugees or asylum-seekers in Council of Europe member states will therefore be placed in grave danger if they are returned to the former Yugoslavia. It should be noted that certain states, particularly Denmark, have decided to deport deserters.

12.       With regard to the Federal Republic of Yugoslavia, the Parliamentary Assembly of the Council of Europe can only issue moral condemnations of human rights violations committed by this country, which no longer has special guest status with the Assembly.

13.       With regard to Croatia, which has special guest status and has applied to join the Council of Europe, the Parliamentary Assembly should take a closer interest in the problem of refugees repatriated to Bosnia-Herzegovina or forcibly enlisted by the Croatian authorities.

Situation from the ethical viewpoint

14.       The United Nations special rapporteur, Mr Mazowiecki, has emphasised that the young men labelled as deserters or draft resisters are actually people who refuse to take part in atrocities such as ethnic cleansing which have been condemned by the international community, or, in other words, who are taking steps to ensure that they do not become war criminals liable to appear before the international court to try serious violations of international humanitarian law. This applies in particular to deserters or draft resisters from Serbia or Montenegro.

15.       We should not forget that these "resisters", who have refused to take part in serious violations of human rights, will be the people with whom democracy can be built and relations established once the war is over.

16.       The men who have refused to take part in a fratricidal war that has been condemned by the international community will play a crucial role in the search for reconciliation and lasting peace in the former Yugoslavia.

17.       Tens of thousands of deserters and draft resisters have sought refuge in member states, which have generally granted them temporary, precarious protection.

18.       Virtually without exception, the member states do not consider that desertion is a ground for granting asylum, and indeed applications by deserters are often rejected as "manifestly unfounded", even though the UNHCR's "Handbook on procedures and criteria for determining refugee status" states that "where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution".

Conclusions

19.       Council of Europe member states should, inter alia:

      —re       frain from deporting, or threatening to deport, refugees from the former Yugoslavia who run the risk of being forcibly enlisted to fight in the war or very severely punished for having refused to do so;—

      —gr       anting protection to deserters until the war is over and they can return in complete safety.20

20.       The Parliamentary Assembly should demand that Croatia cease deporting refugees to Bosnia-Herzegovina and that it give them shelter.

      Reporting committee: Committee on Legal Affairs and Human Rights.

      Budgetary implications for the Assembly: none.

      Reference to committee: Doc. 6949 and Reference No. 1903 of 4 November 1994.

      Draft resolution unanimously adopted by the committee on 6 June 1994.

      Members of the committee: Lord Kirkhill (Chairman), MM. Schwimmer, Jansson, (Vice-Chairmen), Amaral, Andriukaitis, Arnalds, Bentkowski, Berti, Bindig, Borg, Bučar, Candal, Columberg, Croze, Deasy, Espersen, Fogaš (Alternate: Fico), Franck, Frunda, Fry (Alternate: Sir Dudley Smith), MM. Fuhrmann, Galanos (Alternate: Hadjidemetriou), Guenov, Guzzetti, Hagård, Mrs Haller, Mrs Holand, MM. Hunault, Inönü, Mrs Jaani, MM. Jaskiernia, Karas, Karcsay, Kempinaire, Mrs Lentz-Cornette, MM. Loutfi, van der Maelen, Maginas, Polli, Rathbone, Robles Fraga (Alternate: Lopez Henares), Rodotà, Rokofyllos, von Schmude, Severin (Alternate: Lupu), Mrs Soutendijk-van Appeldoorn, MM. Soysal, Stoffelen, Tabajdi, Trojan, Vinçon, Vogel, Mrs Wohlwend, Mr Zapatero.

      N.B.       The names of those members who took part in the vote are printed in italics.

      Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge.