Andrew Y. Kim
It is perhaps widely recognized and supported by international law and humanitarian principles that individuals forced to flee their homeland due to armed conflict or war should be granted refugee status. It is difficult to dispute that these individuals have often endured unimaginable hardships and atrocities in their home countries, and it is our moral obligation to provide them with protection and assistance.
However, the question of whether individuals who fled their home country to avoid conscription into a war initiated by their own country should be granted refugee status is a complex and nuanced one. This is particularly the case if their home country is classified as a “safe nation” where they do not fear of being persecuted for their race, religion, nationality, membership of a particular social group, or political opinion. While these individuals may have legitimate concerns about their safety and well-being if they were to participate in the war, the fact that their home country initiated the war may raise questions about their eligibility for refugee status. This complex issue recently came up for legal discussion in the Republic of Korea (“Korea”), where a court was tasked with determining the eligibility for applying for refugee status of Russian men who fled Russia to avoid a call-up into a war initiated by their country.
Here are the facts. Three Russian men arrived at Incheon International Airport seeking asylum in October and November 2022.[1] However, the Korean government rejected their asylum application.[2] The Ministry of Justice of Korea rejected their applications for refugee status, saying that avoiding military service did not qualify as a valid reason for receiving asylum in Korea.[3] As a result, they had been stranded at the departure area for months, being provided only one meal a day, living off the rest of their day with bread and drinks, and washing their clothes by hand with bathroom soap.[4]
Article 2(1) of the Refugee Act of Korea defines a refugee as a foreign national who is unable or unwilling to avail him/herself of the protection of his/her country of nationality owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.[5] Yet, Article 5(1) of the Enforcement Decree of the Refugee Act provides several exceptions where the Ministry of Justice may not refer applicants to refugee status screening.[6] For example, the Ministry may not refer applicants for refugee status screening if they are natives of a nation considered safe from persecution, or if their application for refugee status is deemed incontestably groundless.[7] In this case, the government rejected the applications for refugee status screening submitted by the three Russian men on the grounds that they were: (1) from a safe nation where there is no possibility of facing persecution; or (2) that their application was incontestably groundless.[8] The three men have appealed the decision.[9]
On February 14, 2023, the court granted two out of the three individuals the right to apply for refugee status, permitting them entry into the country.[10] The court reasoned that one individual had participated in an antigovernment demonstration, and the other belonged to a minority group within Russia, which could make them eligible for asylum.[11] The two will end their months-long airport stay and be settled in Korea while undergoing the asylum recognition process, which could take years.[12] Since the court rejected the third person’s plea, he will have to remain at the airport, but he still has the right to appeal.[13]
I reckon that this result stems from the fact that Korea has a narrow meaning of refugee defined in law. The Korean Refugee Act limits its definition of refugee to a person facing a well-rounded fear of “persecution.”[14] The plain meaning of the word ‘persecution’ refers to acts of harassing or oppressive treatment, especially because of religious or political beliefs, ethnic or racial origin, gender identity, or sexual orientation.[15] However, the definition that the UN Refugee Agency (“UNHCR”) uses is much broader. According to the UNHCR, refugees are individuals who have fled their home country due to war, violence, conflict, or persecution and have crossed an international border in search of safety.[16] If the Korean Refugee Act broadly defined the term ‘refugee,’ the three Russian men would qualify to seek asylum. Perhaps this is the reason why Korea accepts just a handful of asylum seekers each year.[17]
How should we view Russians fleeing their homeland to avoid conscription? Are they simply trying to avoid military service, or are they ‘refugees’ fleeing from unwanted war and violence? It is a question that cannot be answered easily. Yet, we know that Russian men arriving in Korea to avoid military conscription may not be considered ‘refugees’ because the narrow definition of ‘refugees’ in Korean law may not apply to them.
[1] Michelle Ye Hee Lee, These Russians, evading call-up to Ukraine, live in a Seoul airport, Wash. Post (Jan. 25, 2023, 5:00 AM), https://www.washingtonpost.com/world/2023/01/25/russians-flee-ukraine-war-seoul-incheon-airport/.
[2] Id.
[3] Russians who fled war win case to end stay at South Korea airport, Al jazeera (Feb. 14, 2023), https://www.aljazeera.com/news/2023/2/14/russians-who-fled-war-win-case-to-end-stay-at-south-korea-airport.
[4] Yoonjung Seo & Heather Chen, Five Russian Men Fleeing Military Conscription have been living at a South Korea Airport for Months, CNN, https://www.cnn.com/2023/01/27/world/russia-men-conscription-refugees-incheon-airport-intl-hnk/index.html?utm_source=twCNN&utm_medium=social&utm_content=2023-01-28T20%3A30%3A06&utm_term=link (Jan. 28, 2023, 7:37 AM).
[5] Nanminbeob [Refugee Act] art. 2 para 1 (S. Kor.).
[6] Nanminbeob sihaenggyuchik [Enforcement Decree of the Refugee Act] art. 5 para. 1 (S. Kor.).
[7] Nanminbeob sihaenggyuchik [Enforcement Decree of the Refugee Act] art. 5 para. 1 subpara 4, 7 (S. Kor.).
[8] Junyeop Lee, 4개월 공항 노숙 끝에 난민 ‘심사‘ 자격 얻은 러시아인들 [Russians who spent four months sleeping in the airport granted ‘refugee status’ eligibility], YTN, https://n.news.naver.com/mnews/article/052/0001849787?sid=102 (Feb. 15, 2023).
[9] Id.
[10] AFP, 2 Russians stranded at South Korea Airport for Months Win Right to Apply for Refugee Status, South China Morning Post (Feb. 14, 2023), https://www.scmp.com/news/asia/east-asia/article/3210132/2-russians-stranded-south-korea-airport-months-win-right-apply-refugee-status.
[11] Lee, supra note 8.
[12] AFP, supra note 9.
[13] Id.
[14] Nanminbeob [Refugee Act] art. 2 para 1 (S. Kor.).
[15] Dictionary.com, https://www.dictionary.com/browse/persecute (last visited Feb. 26, 2023).
[16] The UN Refugee Agency USA, https://www.unhcr.org/en-us/what-is-a-refugee.html (last visited Feb. 26, 2023).
[17] AFP, supra note 9.