2.5. Deserters from armed forces

COMMON ANALYSIS
Last updated: June 2019

This profile addresses the issue of desertion from the army, PMU, ISF, and the Peshmerga.

COI summary

a. Army 
[Targeting, 1.8.1]

According to the Military Penal Code, ‘Whoever is absent without proper legal justification from his unit or place of duty or exceeds the duration of his leave at time of peace for more than (15) fifteen days for lower ranks and (10) ten days for officers, shall be punishable with imprisonment not exceeding (3) three years’.

Certain offences which incorporate an element of desertion are punishable by the death penalty. The most important ones being:
▪ 
desertion to join the enemy;
▪ 
 
 
relating to failure of personnel to perform their duty in the circumstances leading to the surrender of themselves or other members of the armed forces and surrender of military installations and military objects or territory;
▪ 
passing of secret documentation or information to hostile powers during peace or wartime;
▪ 
inciting revolt, desertion, or defection of members of the armed forces to the enemy;
▪ 
inciting insubordination or disobedience among other members of the armed forces;
▪ 
disclosing military operations and military secrets to the enemy;
▪ 
spreading panic within the armed forces through misinformation; and
▪ 
communicating secretly with enemy forces.

During the rise of ISIL, many military staff deserted and were threatened with harsh punishments.

A 2016 decision halted the legal pursuit of security officers and granted them amnesty. The gathered information suggests that the Military Penal Code is not strictly enforced to its full extent and no court cases against deserters are known.

b. PMU
[Targeting, 1.8.1; Actors of protection, 5.4.2]

PMU are voluntary forces and no draft applies. There is no information on consequences for deserters; however, some sources noted that ‘desertion of low-level members of the PMU would have no consequence or retribution whereas for high-level members there would be repercussions’.

c. Iraqi Security Forces
[Targeting, 1.8.2]

The Internal Security Forces Penal Code applies to all officers and enlisted ranks of the Internal Security Forces who are in service, students at facilities in training with ISF, and retirees or those out of ISF service who committed applicable crimes while in service. Special Internal Security Forces Criminal Courts have been set in five cities.

The Internal Security Forces Penal Code does not contain any provisions relating to ‘desertion’, however, it addresses ‘the crime of absence’. The punishment varies depending on the position of the individual, including, for example, deduction of salary for a policeman who has been absent for less than 15 days during ordinary circumstances, and ‘at least one year’ for Internal Security Forces personnel who have been absent for more than 10 days during disturbances or states of emergency.

A report from 2014 notes that a general amnesty was issued for members of the Internal Security Forces who had been absentee or left without permission. In accordance with it, civilians who left their jobs without permission were deemed to have resigned after ten days.

d. Peshmerga
[Targeting, 1.8.3]

The Peshmerga recruits sign a contract for a fixed period, after which the individual is free to leave. Several sources have noted that ‘it can be more difficult for high-ranking Peshmerga to leave, and there can be repercussions, but not for low-ranking Peshmerga.’ One source has observed that ‘the punishment for desertion, depending on the circumstances, goes from cancellation of contract and all the way up to death sentence’; however, no such cases had been brought before a court of law before 2015 or become known in more recent reports.

Risk analysis

Prosecution and punishment for desertion in itself, when proportionate, is not considered persecution, except if Article 9(2)(e) QD applies.

The death penalty would amount to persecution. Desertion is only punishable by the death penalty where certain additional circumstances apply (e.g. being perceived as escaping to join or communicate with the enemy).

Based on the fact that there are no reports of the death penalty being imposed by courts for desertion-related offences, the risk is considered very low. The individual assessment of whether or not there is a reasonable degree of likelihood for the applicant to face persecution should take into account risk-impacting circumstances, such as: which forces the applicant belongs to, rank/position of the applicant, situation during which the desertion occurred (e.g. during disturbances or state of emergency), etc.

Nexus to a reason for persecution

According to available information, if well-founded fear of persecution could be substantiated in the individual case, such persecution would be for reasons of (imputed) political opinion.

 
 Exclusion considerations could be relevant to this profile (see the chapter on Exclusion).

 

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