Slave Soldiers and their Protection under International Refugee Law

Can compulsory military service breach human rights protections against slavery, servitude or forced or compulsory labour contrary to Article 8 of the International Covenant on Civil and Political Rights (‘ICCPR’) (and/or equivalent provisions in regional human rights instruments) and, in doing so, meet the threshold of persecution under the 1951 Convention Relating to the Status of Refugees? The decision of the United Kingdom’s Upper Tribunal (Immigration and Asylum Chamber) (‘UTIAC’) in MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC) (‘MST’) represents, to my knowledge, the first case in which an asylum court or tribunal was engaged substantively with this question. While I suggest that the factual and legal analysis in MST is imperfect, the UTIAC’s examination of the claim encompassing the protections I have identified deserves acknowledgement. Prior to this case, courts and tribunals worldwide had generally, in military service cases, focused (as some still do) instead on the risk of inhuman treatment contrary to Article 7 of the ICCPR (and/or its regional counterparts) on return for the type of punishment for desertion or draft evasion, and/or due to the conditions under which service takes place. The Country Guidance case in MST, although issued almost a decade ago, still stands as an authoritative factual conclusion in the UK regarding Eritrean asylum claims and military service. The critical discussion that now follows is important for this reason, but also because of the increased significance of military service today due to the escalation in armed conflicts globally and the reemergence of compulsory military service, including conscription, in various states.