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Deserters and Draft Resisters in the Austrian Asylum-Regime

Deserters in the conflicts in former Yugoslavia - No place between the chairs?
Deserters as Refugees in Western Europe, Practice in Austria, regarding deserters from the Kosovo-war

1. Introduction


Is there really "no place between the chairs" for deserters? If they have left one "chair", e.g. Yugoslavia and made it somehow to the other "chair" - e.g. Austria - where can they sit now?
On the floor.
At the bottom of society.

Although refugees, who deserted from an army in the wars in Yugoslavia, have a special fate in Austria and Western Europe, seen from a more general perspective they share their place with many other migrants and refugees.

By crossing the border, migrants are sitting "between the Rights" - where they are living, they have less rights than the majority, and where they would have equal rights, they (have to) decide not to live.

Deserters have to fear harsh punishment in their "home-country" - and mostly they cannot get asylum in any other country.


Deserteurs- und Flüchtlingsberatung:

This NGO was founded in Vienna in 1991 as one of the answers to the problems of the beginning war in Yugoslavia the peace movement had to react on. It is a branch of the "Arbeitsgemeinschaft für Wehrdienstverweigerung und Gewaltfreiheit" (cooperation for draft resistance and non-violence).

There were many discussions about alternatives to military reactions concerning the Balkan crisis. For the anti-nationalistic and anti-militaristic activists it was very important not to take sides in this nationalistic atmosphere, but to support the ones, who do not want to fight at all.

They wanted their support to be concrete - and they wanted to create a public sphere for these people and their situation. Then it was not planned to build up the long-term and stable institution which the "Deserteursberatung" is now.

At this stage of the project it was direct action for and with deserters from Croatia and Serbia, who had fled to Austria, support in finding accommodation, jobs and contacts to others. They were offered legal advice in their asylum proceedings and the requirement "Asylum for deserters!" was campaigned.

Other NGOs started to send deserters to the new NGO, which had become a meeting point for political activities and also for private contact.

In the beginning mainly deserters from Croatia and Serbia came to the office, later also from Bosnia. After ten years we still have clients from this areas - lately mainly from Serbia and Kosov@ - but also clients out of other reasons and from other regions, e.g. Western Africa.

Many things changed within all this years, not only the name, but some characteristics from the start stayed.

Still most of the work is done voluntarily, by a team of about 10 to 15 people. Still we take our time for our clients and we try to support them in whatever they want and need.

Still we do not want to offer only legal advice, but we also do political work. The campaign from 1999 "No one is illegal" was co-ordinated by our office and remained one of our focuses.

We try not only to take our role in the system the government created for asylum-seekers, migrants and "illegals", we also want to help to change the framework of this system.

Very often this is just wishful thinking.

Networking with organisations and initiatives in and outside of Austria is one important strategy, another is providing information about the experiences our clients are facing and small projects like "Speak Up!" - trainings to empower migrants to speak for themselves - is another example.


Deserters in the conflicts in former Yugoslavia


Media

There is a lot to comment on the role of the media in the wars in former Yugoslavia, and there has been argued a lot so far, even that the wars itself was just a prolonging of the evening news of the local TV-stations. The images, that were produced in the mainstream media in Austria were of course fuel of clichés, mainly about the serbian aggressors. In general it was transported that the war was more or less inevitable, because of an enthusiastically nationalistic or at least completely manipulated population.

There were not too many reports about the financial and economic collapse of Yugoslavia and the reasons for this - and there was not too much said about all the young men, who did not want to take part in these wars. There are no clear figures about the number of people who deserted from the different armies or did not follow their call-up-order - but it is said, that their have never been so many of them in any other war in Europe before in this century.

For people out of the peace-movement this meant hope - and it was "natural" in a way to support these deserters.


Support by the "West"?

How these men and sometimes their families were treated, when they tried to come to Austria, showed very clearly the hypocrisy of official Austrian and "North-western" politics in this question.

On the one hand were all the statements which "convicted strongly" the fighting in Yugoslavia - on the other hand were the decisions of the Asylum Agencies not to accept deserters from this conflict as refugees and often not even to let them in the country. This policy never really changed while all the years of fighting passed.

The treatment of deserters and draft resisters, as well as the negotiations only with the nationalistic leaders of the republics, showed that the politicians of the West were acting and thinking in similar patterns of power like their colleagues Southeast. I do not want to state, that they are "guilty" in the same way in any kind, but that the principles of thinking are more familiar that some would like to believe.

To open the borders for deserters and give them asylum would have been a great opportunity to de-legitimise the institutions and the politicians, which forced the wars in the Balkan. It would have been a big support to all the people, who have been against these wars.

It would have been.



2. Deserters as Refugees in Austria/Western Europe


Desertion as a Reason to grant Asylum

The Convention of 1951 is signed by most states of the world, also by Austria. It is a very general uphold paper (there is nothing about the way the proceedings have to be installed) and it is written in the spirit of the time after WWII and out of these experiences, which has its

special advantages and disadvantages.

In the Handbook on procedures and criteria for determining refugee status of the UNHCR

it is more specified and there are some paragraphs about desertion as a reason for being recognised as a refugee. This Handbook provides the authoritative interpretation of the 1951 Refugee Convention.


Desertion is not per se recognised as a reason for granting asylum.

"Of course nobody is a refugee just because he did fear to fight or did not like to serve - and so decided to desert from the army or did not follow a call-up order."


In the words of the Austrian Supreme Court of Administrative Law:

"Military Service and its enforcement by threatening penalty is a legitimate measure within the rights of a true and sovereign State. For this reason even a dire penalty for refusal of military service as such constitutes no persecution in the sense of the Geneva Convention."


The reasons for this interpretation are not that hard to get. It is the base of the military system and in the end of the system of national states, that this states have the right to call their men to the weapons and these men do not have the right to refuse. In this context the possibility to serve in a "real" civil service is very important - which does mean, it should not be a punishment but a practical alternative.


Generally, we can say that desertion is not seen as a reason to be accepted as a refugee. In the UNHCR-manual there are some possibilities listed, how desertion can be a reason to grant asylum.

Deserters can get asylum, if they face higher sentences for their acting or are treated worse while their military service than others, because of their belonging to a certain social, religious or ethnical group or because of their political opinion. These were important arguments e.g. for Muslims from the Sandzak, who had to serve in the Serbian army.


Deserting or Draft resisting can be the exclusive reason to be recognised as a refugee,

if a person would have to participate in military actions which stand in contradiction to his political, moral or religious belief.


And:

"Where...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." (Chapter V, Section B, paragraph 171)


These already existing paragraphs would be enough to accept deserters from Yugoslavia as refugees.


Resolutions of European bodies

There is a clear resolution of the parliamentary assembly of the Council of Europe concerning deserters from Yugoslavia in the Kosovo War. It is a recall of a resolution of the year 1994.


Main points:

the member states should examine all applications for asylum submitted by deserters and draft resisters with reference to the Geneva Convention and the Handbook of the UNHCR.
generally not to deport deserters and draft resisters as long there is no amnesty law and till they can return safely
It is an interesting detail that although the member states of the European Council have signed the Geneva Convention, it had to be stated that they should follow it.

After the resolution of 1994 an amnesty law was implemented in Yugoslavia, but there were some little traps in it.


In the current situation an addition has been stated:

The Assembly noted that the NATO encouraged soldiers in the Serbian army to desert by throwing tracts from planes.

The Assembly considers that the member countries of NATO should now help those who deserted by providing them with a legal status. In so doing they are coherent with their previous incitation to desertion and they enable those deserters to live where they are as long as the situation is not safe for them to return.


This resolution points out clearly that especially the NATO-states have responsibilities because of the leaflets which were spread in Serbia and the Kosov@.


To quote amnesty international, one of the few organisations campaigning on the behalf of deserters from Yugoslavia:

"Throughout the conflict in Kosovo, Nato member states made repeated calls to those serving in the Yugoslav military to resist their leadership. Now the men who - often at great personal risk - heeded these calls and the prompting of their consciences find themselves in urgent need of protection. But the governments who issued the calls to resistance appear to take little interest in the uncertain future facing these men."


Text of one of the leaflets:

"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."


UNHCR and the Council of Europe stated that "refusal to take part in a war condemned by the international community because of serious violations of international humanitarian law should be considered grounds for granting asylum"


Amnesty titled its report "the forgotten resisters".


What happened to deserters from the latest Balkan war in Austria and other European states?



Practice in Austria, regarding deserters from the Kosovo-war

There are no clear figures about the real number of deserters and draft evaders from the Yugoslavian Army in the Kosovo war - the estimated number is between 15.000 and 50.000 men. Many of them stayed hidden within the country, many fled to the neighbour countries Bosnia and Hungary. Just a small number managed to enter the "Fortress EUrope" - many stranded in the "moat", in this case in camps or substandard flats in Hungary.


Some implications of the Asylum Regime


Very important for the concept of the Fortress is the construction of Safe Third Countries, where refugees need to apply for Asylum. The changed Asylum law in Austria states now, that the authorities have to proof in every single case if a country is safe or not. In the latest decisions of the Independent Asylum Senate of Austria, Hungary is often not any longer seen as a safe country for asylum seekers.

But this concept is just a part of policy to keep refugees away from the Center. There are circles around the Fortress (sanctions against transport-companies, depotation contracts with Non-EU-Memberstates, co-ordinated deportations, common Visa-policy, capital and/or equipment investments in border police and modern technology and lots of other emigration and immigration-obstacles), which make it harder and more expensive for refugees to enter the European Union.

To apply for Asylum in Austria in most cases it is necessary to cross the green border - to enter illegally. There the construction of the "illegals" has it starting point - and the language takes its role - an illegal is much closer to a criminal, than to a refugee - the pictures in the head are changing.


Still some of the deserters made there way to Austria and to Vienna. In this city many migrants from Serbia are living - which means there is an ethnic community, a social network, which is very important for the new-coming refugees.


Some of these deserters came to our institution. Most got support by friends or family members here in Vienna, some were in State Care and some we met first in one of the detention prisons in Vienna or Lower Austria.

Most were in the "normal" asylum procedure, which means they got a temporary residence permit, till the end of the procedure. Others had to wait, if they can be sent back to Hungary or Slovenia - if these are safe third states - and during this procedure, they don´t have a legal permit.

Most came to us, already with their "first negative" of the Federal Asylum Agency, after an interview, very often held in the style of a hostile interrogation.



Decisions of the Federal Asylum Agency

The FAA is using text modules for similar cases. Very often they do not respond on the individual situation. The officials are searching for contradictions in the interview, to proof that the person and their story is not trustable, to be able to refuse granting asylum or even to state, that the application of the person is "unfounded".

In the "normal" decisions of the FAA concerning deserters from Yugoslavia, the missing of the conscription order is sometimes used as an argument, that the told story is not correct.



The usual text module states that the moral of the Serbian army was very low, that there were about 40.000 deserters and draft evaders (which makes it less probable, that a person will be punished). Than they list up the sentences in the Yugoslavian law for these "crimes" - from one up to 20 years.


Of course it is mentioned that desertion per se is not a reason for granting asylum. It is stated, that every individual is facing the same sentences. And, as a very crude argument, it is written, that the state of war is over - and that desertion now again is just a "normal conscientious objection". It is stated, that there is no danger anymore, that the person could be involved in actions against international law, which is an intentional misunderstanding and a cynical argument, to avoid the reasons mentioned in the UNHCR-manual.

Finally Montenegro and sometimes even Kosov@ (! for Muslims from the Sandzak) are mentioned as internal flight alternatives.

The FAA never granted asylum for deserters. Sometimes they decided positively about §8, that means the person is not a refugee, but it is not allowed to deport him, because this would be to dangerous for him. To send back deserters in the "hot phase" of the war, was to "hot", even in the eyes of the FAA. For the deserter and his life circumstances, especially for his access to the labour market, the difference between §7 (asylum) and §8 (temporary protection from being deported) is very large.



Refutations

Our appeals, as those of other NGOs, use partly text modules but we respond in a much higher degree to the individual situations of our clients.

We argue along the line of the handbook of the UNHCR. If somebody is treated differently because of his belonging to an ethnic group - like Sandzak-Muslims - this has to be reason for granting asylum. But also desertion per se should be seen as a political statement - and by the regime of Milosevic (as well as of others), of course it was seen as that.

High Sentences for desertion and draft evading are political sentences.

Even more important is the argument, that the international community did condemn the acting of the Serb army and police in Kosova.


"The 1999 United Nations Commission on Human Rights Resolution 1999/2 of 13 April on the situation of human rights in Kosovo likewise "condemns strongly the widespread and systematic practice of ethnic cleansing perpetrated by the Belgrade and Serbian authorities against the Kosovars..." (paragraph 1)"


That the state of war is over is not relevant, because the desertion took place during this period and the sentences for it are a reaction on that. Even the second instance in the asylum procedure responds on this argument of the FAA with irony.

Important in the argumentation is, that there have been trials and that deserters were imprisoned:


"Trials are apparently held in closed sessions, and information about verdicts and sentences is not generally released by the courts"

Amnesty International has learned that a notable exception to this secrecy was in the city of Kragujevac, where up until 26 April, the district Chief Military Prosecutor appeared regularly on the local television station to announce the names of those individuals who had been convicted for draft evasion. Before the broadcasts ended in late April, more than 300 verdicts - followed up with sentences of up to seven years' imprisonment - were already said to have been delivered."

Estimates of the number of such cases currently before military courts in the Federal Republic of Yugoslavia begin at 4,000 and extend as high as 30,000 .

At least several hundred conscientious objectors, draft evaders and deserters are already said to have been imprisoned in the Federal Republic of Yugoslavia - most of them serving a sentence of at least five years' imprisonment. (arbitrariness against political opponents)."


Montenegro was never a real safe internal flight alternative, because the Montenegrin amnesty law was not accepted by the Federal Yugoslav authorities.


The argumentation of both sides are in a way "historically" now, because of the changes in Yugoslavia and the recent passing of the amnesty law. Still it shows the way the Asylum regime in Austria works. And still there are existing relevant reasons, not to send back deserters from Yugoslavia.




The Independent Federal Asylum Senate and the Austrian Supreme Court of Administrative Law

The second instance in the Austrian Asylum Law, since it was renewed in 1998. Before that the Ministry of Internal Affairs ("Home Office") acted as the second instance, dependent and unfair.

The Independent Federal Asylum Senate (UBAS) bettered the conditions of the asylum procedure. Still it is in many cases some kind of a lottery - it is very important which judge you get. And still the chance to get asylum is quite low (1999 it was about 5%).


In the cases of deserters from the Kosov@ war, it happened in some cases, that they were granted asylum from the UBAS, because they were deserters. For us, it was a sensation, it meant that finally desertion is accepted as a reason for asylum, at least in a war, which is internationally condemned.

The ministry of Internal Affairs made a complaint against these decisions at the High Court of Administrative Law, which was refused this February! Now it is possible to get asylum in Austria as a deserter.


The number of people, who were that lucky (and who knows, how long it will take, until the FAA starts the procedure again to take away the refugee status) was very low. Out of our clients it was 1 (one).


Many received §8, which means, they are not accepted as refugees, but it is not allowed to send them back to Yugoslavia. The reasons the FAA or the UBAS gave for their decisions to grant §8 should be enough to grant asylum too. But it was not, and, strangly enough, for politics these decisions were fitting perfectly. Temporary protection. Not to send back deserters and not really accept them. Let them sit between the chairs.



"CASES"

I have chosen the storys of 4 of our clients, to illustrate what can happen if you try to find a safe place in Austria. Of course, I changed the names and simplified the stories.


DEJAN

Dejan is an 25 years old Muslim from Montenegro, a student, who fled to Austria in July 99. He served in the Serbian army, when the Kosov@ war started, and suffered there already from discrimination because of his ethnicity. His service was prolonged and he was sent to Kosov@, even though he had been promised not to have to go there. The discrimination got harder, he was hit by an officer and sent to the frontline. Finally under big risks, he deserted from the army and fled via Montenegro to Sarajevo and from there to Austria.

He told that he was drugged in the army. He had severe mental problems, a chronic schizophrenia was diagnosed.

First he came to Traiskirchen, where he was kicked out, because he stayed away too long. He had his first interview at the FAA, but the asylum procedure was stopped, because when he lost State Care, he had no address anymore. We got to know him first in a detention prison. His mental problems increased. After we informed the FAA about his new address, the asylum procedure could continue and he was released. He found a girlfriend in Vienna, who was able to support and host him for a while.

He did not get any support by the State, he did not have any kind of insurance. A social-psychatric center started an ambulant therapy with him for free, but it was hard for him to keep the times to go there. The meaningless waiting for an decision of the FAA was very hard for him, as well as his depending of his girl-friend. The FAA decided negative, but gave him §8. We appealed against this decision. The waiting started again. Although he knew, it was not allowed to deport him, his situation did not get better, he was still not insured, nor did he get any support. After a while, we lost contact. It might be, that he tried his luck in another country.



SAMIR

Samir is a 40 year old man from the Yugoslavian region Sandzak. He, as a Muslim, had been suffering from discrimination by the authorities for many years. It was nearly impossible for him to find any stable job. As the war broke out in Kosov@, as he received the call-up-papers, he fled with his wife and his family. He did not want to fight in a senseless war for the aims of a regime, which made him problems every day.

In May 99 he came to Austria, were he and his family applied for asylum. He was supported by relatives, who were living in Vienna since a longer time. He did not get any support by the government. In November 99, the FAA decided negative and even stated, that it was allowed to send him and his family back. They argued that Montenegro and Kosov@ (!!) would be save flight alternatives, where they could go to and that the war is over anyway. Desertion is not a reason for asylum, every State of the world has the right to send its people in a war.

We appealed. The UBAS granted asylum to Samir and his family in February 2000.

Samir is working in Vienna, his kids are going to school. The ministry for Internal Affairs made a complaint against the positive decision, which was refused.



SASA

Sasa is a 30 year old Serb from Yugoslavia. He served in the war in Croatia, where he was traumatised. As the war in Kosov@ started, he crossed the border and fled.

We met him first in an detention prison in Austria, where he was waiting since one month for the decision, if it is allowed to send him back to Hungary or not. The FAA stated yes, but the UBAS decided Hungary is not safe enough for asylum seekers. Sasa was released and the "normal" asylum procedure started.

He did not get any help by the government and lived for some time in a refugee home. He got small support by friends and maybe found sometimes work without papers. Who knows?

The FAA decided that he is not a refugee and that it is allowed to send him back to Yugoslavia. The war is over, desertion is no reason for granting asylum and Montenegro would be a safe and sunny place. We appealed.

In the meantime we lost contact to Sasa, but we heard rumours that he found in another country a girl to marry.



ZORAN

Zoran is 27 years old and out of a mixed family from Yugoslavia. He was a political activist and surely he did not want to fight in a war for Slobodan Milosevic. There was no possibility to make civil service in Serbia. When the conscription order came, he was not at home. The military police started to search for him. In March 99 he came to Austria.

He has relatives in Austria, who gave him a little support. In October 99 the FAA decided negative about §7 and §8. Zoran is a Serb and not discriminated, the state of war is over, desertion is nowhere allowed and Montenegro is a safe place to go. His fears are understandable and his situation for sure not comfortable, but this is not enough for granting asylum.

We appealed. The UBAS decided that he will not get asylum, but it is also not allowed to deport him to Yugoslavia.

We made a complaint at the High Court for Administrative Law, which is not decided yet. He is waiting. He would have found some legal jobs, but he did not get the permission to do them. He does not get any support by the government.


Daily Problems in Austria / Future Perspectives

Most of the deserters and draft evaders in Austria have, like in most other European countries, some kind of temporary protection or they are still waiting for a decision. Very few do have a real secure status with free access to the labour market and stable future perspectives.

Many of "the forgotten resisters" can or want not return to the State, they left in a dangerous situation after a brave decision, where they are still called traitors. But it is obvious, that the chances to get a better status in Austria are extremely low.

How to deal with this situation?

This question does not only concern deserters. Many refugees are in the same position. It is not allowed or possible to send them back or they are waiting for years for the next decision. In the same time they do not get State Care and it is nearly impossible to find a legal job.

Many deserters from Yugoslavia even have some advantages, compared with others. In Vienna exists a large Yugoslavian community, a social network, which can support the "newcomers", can offer help and advice, contacts and accommodation, legal or illegal job-opportunities.

But it keeps being a hard struggle for most of them and the fear of being deported one day is always around.



Initiatives in Germany and Hungary

Many deserters from the Kosov@ War are stranded in Hungary, in the "moat" of the Fortress. They did get one year renewable temporary permit on humanitarian grounds, but not one of them got asylum. Some came with their families, some came alone, some are waiting in camps for the time to pass or for an opportunity to go overseas, some are fighting in Budapest to survive the very next day.

Some had even the energy to build up a project, called SEOBE 99 - a self-organised group of deserters in Budapest, who support each other in their daily problems and make political work on the issue of the forgotten resisters.

[More information: www.seobe99.tripod.com]

In Germany years ago initiatives were built to encourage city municipalities to offer places and support for deserters, not only from the wars at the Balkan. The campaigns are called "Städtepatenschaften in Deutschland" and the long and continuos work and pressure had some success. More and more cities were willing to help deserters and signed declarations, even if the State resists to help. But from this first step it was and is still a long way to practical help. One of the barricades were missing visas for deserters waiting in Hungary to go to Germany. In all these years finally two deserters found a perspective through this idea.

[Further information: www.connection-ev.de]




Return?

Now, in March 2001, the amnesty law passed the Yugoslavian Parliament. It is still not clear, what practical consequences this does have for deserters, but sooner or later, there will be no legal obstacle to return.

But there are others. The political situation is still not stable, many refugees lost their economical ground in Yugoslavia and especially deserters are still seen as traitors in their country. It was a big step to flee and to leave the army and for many it would be a very big step now to return. Some would feel like "strangers in a strange land", they lost their social contacts, often even family members are hostile. Yugoslavia is not waiting with open arms, although the political scenery changed. But "Europe" will try to send them back as soon as possible, that’s one thing I´m sure of.

Last week the first deserters from the Macedonian army were in our office.

Dieses Referat wurde beim Internationalen Kongress "Refugee Studies and Politics: Human and Research Perspectives" im Jänner 2001 an der Uni Wien von Michael Nußbaumer gehalten


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