Russian defections and political asylum: A complex conundrum - EU Immigration and Asylum Law and Policy

By Joris van Wijk is associate professor criminology and Maarten P. Bolhuis is assistant professor criminology, Vrije Universiteit Amsterdamd , Center for International Criminal Justice

January 2023 a former commander with the infamous Russian mercenary Wagner Group – Andrey Medvedev – sought asylum in Norway. He claims to have deserted the organization, to have witnessed Wagner group members committing war crimes in Ukraine and to be willing to assist in holding them criminally accountable. This case raises a complex conundrum; can and should deserters like Medvedev be granted protection? And at what price?

Shortly after Russia invaded Ukraine a number of commentators, including Peter Schuck, Ilya Somin and David Bier, suggested that Western countries should offer refuge to defecting Russian soldiers. The advantages of such an approach are obvious: it lowers the number of fighters, may disrupt Russia’s political and military structure, could break the Russian morale to continue fighting and – if these defectors are willing to share intelligence and evidence – could strengthen the information position of Ukraine and its NATO allies and be beneficial for international crimes prosecutions.

Article 1F of the 1951 Refugee Convention

Notwithstanding the challenges and risks that Russian soldiers may face in defecting, at least a handful soldiers – including Pavel Filatyev, Nikita Chibrin and an unnamed former Wagner PMC employee and a former FSB officer – have successfully done so and applied for asylum in the West. Although they can play a crucial role in improving the intelligence position of NATO countries and be instrumental in war crimes prosecutions, their asylum applications puts NATO member-states in a difficult situation. Article 1F of the Refugee Convention dictates that asylum applicants should be excluded from protection when there are ‘serious reasons for considering’ that they were implicated in war crimes, crimes against humanity or other serious non-political crimes.

As all NATO countries have ratified the 1951 Refugee Convention or the 1967 Protocol, in principle they have the obligation to apply Article 1F. The standard to exclude – ‘serious reasons for considering’ – is much lower than standards employed in criminal law. Although there is variation amongst countries how this standard is interpreted, there is a significant gap between the evidence needed for refugee exclusion (serious reasons) and the evidence needed for a criminal conviction (beyond reasonable doubt). While several European jurisdictions like Belgium and the UK apply the standards on complicity developed in the legislation and case law of international criminal tribunals, e.g. on aiding and abetting and joint criminal enterprise, a country such as the Netherlands, and possibly others, takes a much broader approach. The Netherlands also applies 1F to facilitators of crimes, and hardly accepts coercion or force majeure as defences. In the Netherlands, Syrian asylum seekers have been excluded for facilitating arrests and torture by giving information to intelligence services (like a civil servant communicating names of car owners after receiving license plates), or maintaining the stocks and storage of a chemical company, which chemicals were later used in chemical attacks. This means that asylum seekers have been excluded for likely having had a relatively minor role in the commission of possible war crimes or crimes against humanity.

When such broad standards are applied to Russian defectors who made it to a NATO country, it is not inconceivable that the ‘serious reasons’-standard is reached for former members of army divisions that have been reported to have been involved in international crimes, if they have contributed to the organisation’s purposes to commit crimes under 1F. Chibrin, one of the defectors referred to above, for example claimed he was part of the 64^th Separate Guards Motor Rifle Brigade, a unit suspected of having committed war crimes in the Kyiv region in March 2022. Although he stressed not to have been involved in any war crimes himself, he might still qualify for exclusion if there is evidence that he was part of the brigade at the time and place where war crimes were committed and even had a minor, facilitating role in them. As noted, such facilitation does not have to be proven beyond reasonable doubt. Similarly, depending on their function and role, former FSB-officers and Wagner commanders and operatives could possibly qualify for exclusion. The Wagner Group already well before the war in Ukraine started is renowned for its involvement in war crimes, while the FSB is reportedly responsible for torture and politically motivated murders, crimes that can lead to 1F exclusion.

A complex conundrum

The legal, moral, practical and security conundrum is evident. Defectors may have information that is valuable to intelligence or criminal justice actors. If they claim asylum, they will have to share what they know, if only to substantiate their claim that they are at risk of persecution. In providing statements, they may actually give rise to ‘serious reasons for considering’ that they were implicated in excludable crimes and the host state may be obliged to exclude them. Particularly problematic is that especially those with best information position and those whose defection might have the most demoralizing effect – those politicians, and members of the army, intelligence services and private military companies who are well-positioned or high-ranking – are most likely to be excluded. In principle, someone who is excluded from asylum will be deemed undesirable and has to return to his country of origin. In case return is not possible for practical or legal reasons, the 1F-excluded individual becomes undesirable and unremovable, forced to live a life in legal limbo. As it stands, based on the non-refoulement principle, Russian defectors would most certainly not be deported. Such exclusion prospects might also scare off Russians to defect to the West.

That said, we should not be naïve. While the current climate of preventing ‘safe havens’ has put stronger emphasis on the obligation of excluding perpetrators from refugee status, states will surely find ways to provide defectors who have valuable information – those considered to be an ‘asset’ for intelligence or criminal justice actors – with an alternative residence status. In such instances, governments could just ignore 1F exclusion, grant residence on humanitarian grounds or use their discretionary powers to still grant them a status. Historical precedents exist where NATO-members have taken such a pragmatic, not to say ‘opportunistic’, approach regarding valuable enemy defectors. After the Second World War former Nazis who were employed as spies during the Cold War were given residence in the United States in exchange for their services. In 2008, France granted asylum to a defected Colombian FARC commander who had helped in the escape of a high level kidnapped politician. A former colonel in the Syrian army’s elite 4th Division has given testimony to German and French judicial officials collecting evidence of alleged war crimes by the Syrian government without being excluded.

Not all defectors, in other words, are treated similarly. Suspected perpetrators with a very strong information position who are willing to cooperate with intelligence or judicial authorities might – at least temporarily – be given a safe haven, whereas those without such an information position might be excluded. We expect these double standards will also be applied vis-a-vis Russian defectors, as a too principled ‘no safe haven’ approach may frustrate the broader goals of ending the war and bringing justice for victims of the international crimes committed. Whether this is a prize worth paying is the difficult issue that decision makers confronted with Russian defectors are to deal with in the coming years.