2.2.2. Military deserters and defectors

 
Common analysis
Last updated: September 2020

This profile refers to men who have left military service (duty or post) without permission. In accordance with the terms of the Syrian Military Penal Code, a ‘fugitive military person or military-equivalent person’ is considered: any military person or equivalent person who is absent from his squad or detachment without permission for a certain period qualified by the law; and any military person who travelled alone from one place to another or from point-to-point and his vacation has ended and he has not returned within a certain time period from the date fixed for his arrival or return. The applicable durations of absence depend on whether the offence takes place in peace or war time, the duration of service, and whether the person crosses an international border.[21]

See also the general COI summary under Persons who evaded or deserted military service.

COI summary

According to the Military Penal Code (Articles 100, 101), desertion is punishable by one to five years imprisonment in peacetime and can result in a prison sentence double up in wartime. [Targeting, 2.3.2]

Those who have left the country following desertion can be punished with a penalty of up to 15 years imprisonment in wartime. Desertion to the enemy is punishable by life imprisonment or the death penalty. Deserters are punished more severely than draft evaders. [Targeting, 2.3.2]

Reporting for the period between mid-July 2018 and mid-January 2019, the Independent International Commission of Inquiry on the Syrian Arab Republic (CoI) assessed that conscript deserters were among the groups most likely to be detained arbitrarily by the GoS forces. In previous years, deserters were often punished in the same way as those who actively joined the opposition. In targeted campaigns, the government systematically arrested defectors and military personnel suspected of sympathising with the opposition. According to a 2015 report, the Syrian government arrested defectors and had them forcefully disappeared. [Targeting, 2.3.2]

Amnesty laws were issued on several occasions since Syria’s crisis began in March 2011 to grant draft evaders or deserters amnesty from prosecution. Legislative Decree No 18 issued in October 2018, granted a general amnesty to certain individuals in Syria or abroad, accused of deserting or avoiding military service. However, the amnesty did not exempt the person to whom it was granted from military service. The amnesty had to be taken up within four months for those residing within the country, or six months for those living abroad. Those who fought on the side of the armed opposition or dissented against GoS were excluded from the amnesty. [Targeting, 2.4]

In November 2018, sources assessed that very few individuals would be interested in using the amnesty law, the main reasons being that it did not pardon them for fulfilling the military service. Other sources also mentioned that GoS has not respected prior amnesties and reconciliation agreements, fuelling distrust among Syrians. [Targeting, 2.4]

Despite the October 2018 amnesty law, the GoS issued new lists of persons called for emergency military service, which contained 400 000 names, including a large number of youths whose names had just been removed from the list by virtue of the amnesty measure. [Targeting, 2.4]

The grace period of four to six months granted by the amnesty expired on 9 April 2019. Information on whether the amnesty was renewed could not be found. [Targeting, 2.4]

In the recaptured areas, for defectors or other non-civilians who meet the conditions, the reconciliation process starts immediately. They are given 30 days to clarify their status (instead of the ‘grace period’ of six months applied to others), before being sent back to the same unit or another unit to continue their service [Recaptured areas, 2.7].

Risk analysis[22]

Military deserters and defectors could be exposed to other acts which are of such severe nature that they would amount to persecution (e.g. forced disappearance, death penalty).

Moreover, in accordance with Article 9(2)(e) QD, ‘acts of persecution [as qualified in paragraph 1] can, inter alia, take the form of: prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2)’. In the case of the ongoing armed conflict in Syria, where various excludable acts have reportedly been committed by the Syrian Armed Forces, this is found to apply [see the chapter Exclusion] and well-founded fear of persecution would in general be substantiated. In exceptional cases, where it is clearly established that the role in which the applicant would be deployed would exclude participating in excludable acts, additional factors may be required to substantiate a well-founded fear of persecution.

Taking into account the absence of a procedure for obtaining, or recognition of, the status of conscientious objector and the absence of alternative service in Syria, in the case of individuals considered to be conscientious objectors, well-founded fear of persecution would also in general be substantiated. The individual assessment whether someone is a conscientious objector should look into whether the opposition to military service is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance.

In the case of military deserters and defectors, a well-founded fear of persecution would in general be substantiated.

Nexus to a reason for persecution

Available information indicates that in the case of defectors persecution is for reasons of (imputed) political opinion. In the case of military deserters, persecution may also be for reasons of (imputed) political opinion.

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


 

[21] Article 100, Syria: Law No. 61 of 1950, as amended (Military Penal Code) [Syrian Arab Republic],  16 February 2017, unofficial translation by UNHCR, available at https://www.refworld.org/docid/58a5e1b34.html. [back to text]
[22] See also CJEU, Shepherd. [back to text]
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