The International Arrest Warrant for Conscientious Objectors – issuing an Interpol Red Notice
First, the Ukraine or Russia prosecution authorities would have to issue a national arrest warrant against the conscientious objector and issue the arrest warrant internationally (requesting the issuance of an Interpol Red Notice). In contrast to the European Arrest Warrant, this cannot be executed directly, so a distinction must be made between the question of the arrest warrant and the question of extradition. The German authorities check the conditions for downstream extradition.
In the absence of membership in the European Union, a European Arrest Warrant cannot be applied for by either Ukraine or Russia.
Based on a national arrest warrant and an Interpol Red Notice, extradition of conscientious objectors to Ukraine/Russia is possible in principle if the conditions for extradition are met.
Like Ukraine and Russia, Germany is also a party to the European Convention on Extradition (EuAlÜbk). Consequently, the requirements are based on the EuAlÜbk and its additional protocols. These regulations place strict requirements on extradition in terms of formal and substantive law.
Of paramount importance here are the substantive requirements. In particular, the principle of reciprocity and the mutual punishability and prosecutability of the offence in question. The principle of reciprocity presupposes the reasonable expectation that the requesting state would also extradite in a comparable case. In the context of the EuAlÜbk, this already results from the existing mutual contractual obligations.
However, the most essential substantive requirement is the existence of mutual criminal liability and prosecutability, according to Art. 2 (1) of the Brussels Convention. This principle states that the offence on which the extradition request is based must be punishable under the law of the requesting state and the law of the requested state. Here, the offence in the procedural sense is decisive. Therefore, the facts of the extradition request must be punishable under German law.
This matter is legally quite unclear in connection with conscientious objectors.
Various offences can be considered in Germany concerning the withdrawal of military service. In particular, those of military criminal law.
Desertion under the German Code of Military Criminal Law
The Code of Criminal Law for the Armed Forces makes desertion a punishable offence in Section 16: “(1) Any person who unauthorisedly leaves or absents himself from his unit or post to evade his obligation to perform military service permanently or for the duration of an armed deployment, or to bring about the termination of his military service relationship, shall be punished by imprisonment for a term of up to five years.”
Withdrawal/Refusal of Basic Military Service
The obligation to perform military service is enshrined in Section 1 of the Compulsory Military Service Act (WPflG). However, this has been suspended in Germany since March 2011.
According to § 2 WPflG, the other provisions of the Military Service Act apply exclusively in cases of tension and defence. This is not the case in Germany, but the situation in Ukraine can undoubtedly be interpreted as a case of defence within the meaning of Article 115a (1) of the German Constitution.
As a consequence, it seems quite possible that conscientious objection is punishable by both sides. However, basic military service in Germany is anchored in the German Constitution. According to Article 12a (1), “[males] may be required to serve in the armed forces, in the Federal Border Guard or in a civil defence unit from the age of eighteen.”
Nevertheless, the German Constitution does not recognise any obligation to serve in the armed forces. Art. 4 para. 3 sentence 1 GG states, “No one [may] be compelled to military service with weapons against his conscience.” The Ukrainian constitution does not have such a constitutional anchoring.
In Ukraine, only members of ten small religious communities are allowed to refuse military service (cf. brief information of the Scientific Services of the German Bundestag “Das Recht auf Kriegsdienstverweigerung in der Ukraine”, WD 2 – 3000 – 127/14).
Due to the suspension of compulsory military service and the severely restricted fundamental right to refuse to serve in the armed forces, the double criminality in the EuAlÜbk is more than questionable in our view.
Ukrainian conscientious objectors can commit other offences when leaving the troops or when leaving the country. For example, forged marching orders (§ 267 StGB), identity papers (§ 281 StGB) or even health certificates (§ 279 StGB) can be used to evade military service. In these cases, both parties would, in any case, be liable to prosecution and punishment.
Despite the uncertainty regarding extradition on the grounds of double criminality, the obstacle to extradition under Article 4 of the Brussels Convention will regularly exist.
Art. 4 of the Convention states that the Convention “shall not apply to extradition for military offences which are not offences punishable under common law […]”.
Insofar as the possibility exists to enact deviating regulations, Germany has not made use of this. The legislative intention not to extradite for solely military offences is made clear, in particular by the provision of § 7 IRG. This provision states that “extradition [is] not permissible for an offence consisting exclusively in the violation of military duties”. Furthermore, the IRG legislator has deleted the wording “under German law”, which can still be found in the DAG, without replacing it.
The question of whether a violation of “military obligations” has occurred is the responsibility of the requested state, i.e. Germany. If the requesting state prosecutes the offence as a military one, this at least has an indicative effect and must be considered in the classification.
Violation of “Military Duties
The violation of military duties is based on two key points:
- It must be directed against military legal interests.
- It must be a special professional offence committed by persons with military obligations.
Consequently, persons performing civilian service can also commit military offences in this sense since the offences in §§ 52, 53 ZDG are modelled on §§ 15, 16 WStG.
In this respect, only purely military offences, such as desertion, are covered by the obstacle to extradition in Article 4 EuAlÜbk.
The purely military offences are those that exclusively fulfil an element of the offence that is foreign to the common criminal law and based on the special military duty relationship. These are, in particular, absence (§ 15 WStG) or desertion (§ 16 WStG).
The obstacle to extradition does not cover mixed military-military offences or connection-military offences. The term “mixed military-military offences” refers to offences that would be punishable under general criminal law but have been transformed into special offences in the military context.
A withdrawal from military service that was made possible by coercion (§ 240 StGB), forgery of documents (§ 267 StGB) or the like thus remains extraditable.
In contrast, extraditions from Germany to Russia are much less likely. Russia left the Council of Europe on 16.03.2022. When the termination of membership takes effect, Russia’s membership in the European Convention on Human Rights and its protocols ratified by Russia will also end.
In contrast, Russia remains a party to “open conventions”. These are the conventions that are open to non-members in addition to Council of Europe members. According to Art. 30 para. 1 EuAlÜbk, “the Committee of Ministers may invite any State which is not a member of the Council of Europe to accede to this Convention.” To date, Russia has not terminated its membership under Article 31 of the Convention. Extraditions based on the European Extradition Convention thus remain theoretically possible but are at least subject to the above requirements.
In practice, according to current knowledge, extraditions to Russia are suspended.
Nevertheless, the political situation is currently subject to strong fluctuations, and individual cases can differ fundamentally. In particular, it always depends on the individual case and the alleged offence. In this respect, this article cannot replace legal advice in this context.