Ukraine’s Travel Ban, Gender and Human Rights
Gendered Impacts of Conflict and the Right to Leave
There is a war in Europe. Since almost three weeks, pictures of bomb attacks on Ukrainian cities, people in shelters and soldiers in tanks have been broadcast all over the world. Almost 3,000,000 refugees have left Ukraine since the start of Russia’s military invasion on February 24. These refugees are mostly women and children, as men between 18 and 60 are currently prohibited from leaving the country; they are meant to stay and fight in the war.
Many Ukrainians have followed the call to stay in the country and fight, but those who are legally assigned male have no choice. The conception of men as soldiers, dying at war and women as mothers, dutifully bearing children, exemplifies the binary of gendered claims of the national state on the bodies of its citizens. This goes hand in hand with gendered and racialized ideas on vulnerability as essential element of refugeehood. Comments, such as those by the former NATO-General Domröse (at 1h14min) differentiating between women, mothers and children as legitimate refugees and [muslim] young men, who should have stayed at home to defend their state, reflect this conception.
By relying on the duties of men in times of war, the travel ban perpetuates stereotypical ideas of gender, vulnerability and legitimacy of seeking refuge. Law provides for one possible intervention against these ideas. Under human rights law, everyone must have a true choice to leave the war zone. My argument is based on four pillars: conscientious objection, the right to life, the right to leave and the non-discrimination principle.
Refuse to Fight Like A Man: Conscientious Objection
The Ukrainian Border Service announced that all Ukrainian male citizens aged 18-60 are banned from leaving the country for at least 30 days, namely, during the period of the martial law. Furthermore, Ukraine started conscripting reservists and conscripts of all genders aged 18-60 for a maximum service period of one year following Decree 69/2020 by President Zelenskiy. While there is a difference between mandatory conscription to military service and a temporary prohibition to leave without formal mobilisation, ultimately, the travel ban seems to be meant to serve as military mobilisation.
The Ukrainian constitution codifies the right to refuse military service on conscientious grounds (conscientious objection) in its Article 35 (see here, p. 21). Under international law, the right to conscientious objection is derived from the freedom of thought, conscience and religion or belief of Art 18(1) of the International Covenant on Economic, Social and Cultural Rights (ICCPR), [Human Rights Committee, General Comment No. 22 (para 11)]. Art. 4(2) ICCPR forbids any derogation from the rights contained in Art. 18(1) ICCPR.
Additionally, in 2011, the European Court of Human Rights (ECtHR) ruled in Bayatyan v. Armenia (para 110) that conscientious objection can be covered by Art. 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In Enver Aydemir v. Turkey (para. 81), the ECtHR specified that Art. 9 ECHR covers conscientious objection where the duty to serve in the military clashes with beliefs which firmly object to the compulsory use of force at the cost of human lives. The ECtHR has not yet adjudicated on the right to conscientious objection in times of war, however, the rights under Art. 9(1) ECHR are not absolute [Arts. 9(2), 15(2) ECHR]. It is yet for the ECtHR to determine how the non-discrimination principle impacts Art. 15(2) and Art. 9 ECHR.
During war, international humanitarian law (IHL) obliges states to respect convictions and religious beliefs (ICRC, rule 104). The right to conscientious objection also applies in times of armed conflict (UNHCR Guidelines on International Protection, No. 10, para. 11). This goes hand in hand with the perspective of refugee law, which considers forcing someone to serve in the military against their conviction as persecution (Office of the United Nations High Commissioner for Human Rights, p. 79).
Thus, based on the right to conscientious objection under Art. 18 (1) ICCPR, not all Ukrainians can be drafted or mobilised. While the travel ban ties in with the mobilisation of male-assigned reservists into the armed forces, it is too broad to fulfil its ultimate objective. However, there might still be an argument that the ban serves non-military, civil tasks. I argue that aside the right to not be forced into military service, male assigned Ukrainians have the right to leave the warzone.
Refuse to Die Like a Man: The Right to Life
Even during times of war, the right to life stipulates that no one may be ‘arbitrarily’ deprived of their life. It is a non-derogable human right, Arts. 2(1), (2), 15(2) ECHR; Art. 6(1), 4(2) ICCPR. However, the meaning of ‘arbitrary’ depends on the circumstances. This is best reflected in Art. 15(2) ECHR, which explicitly exempts “deaths resulting from lawful acts of war” from the non-derogable scope of Art. 2 (1) ECHR.
During war, international humanitarian law (IHL) complements human rights law and specifies the legitimacy of ‘objectives’ and thus, killings (Art. 52 Additional Protocol 1, Geneva Convention). Under IHL, members of the military are such legitimate military targets. When Russian and Ukrainian soldiers kill each other during the war, their states are thus not generally violating the right to life. Even more, civilians can lawfully become ‘collateral damage’, if the attack on a legitimate military target was ‘necessary and proportionate’ (ibid).
However, under Art. 6(1) ICCPR, in a war of aggression, every killing attributable to the aggressor state is “arbitrary” (General Comment No. 36 (2018): Article 6, para. 70). Thus, it might not be excluded that Russia is violating Art. 6(1) ICCPR when its soldiers kill Ukrainians. These considerations show how the travel ban renders lives both factually, but also legally precarious.
Refuse to Stay Like a Man: The Right to Leave
The right to leave accounts for the urge to depart from precarious situations in a state, even though it is not bound to times of crisis. It entails going on vacation as well as going to seek a better life. It is also an essential part of the right to seek and enjoy asylum (as such only half a right) and to flee from persecution and war. The ‘right to leave any country including one’s own and, to return to one’s country’ is contained in Art. 13(1) of the Universal Declaration of Human Rights (UDHR), Art. 12(2) ICCPR and in the largely identical Article 2(2) of Protocol No. 4 ECHR.
Following the proclamation of a public state of emergency in its entire territory on 24 February, Ukraine has notified the UN Secretary General of its derogation from the right to leave under Art. 4(1) ICCPR and Art. 15(1) ECHR. The derogation requires a public emergency which threatens the life of the nation. It is safe to assume that the war on Ukrainian territory satisfies these conditions. Further, Art. 4(1) ICCPR and Art. 15(1) ECHR include a special, double proportionality test. Both, the state of emergency and the derogatory measures must be limited to the extent strictly required by the exigencies of the situation. Moreover, the derogatory measures must be consistent with other obligations under international law. This text will not scrutinize the proportionality of the state of emergency as such. Instead, it will rather focus on the ban as a derogatory measure.
While reservists are the primary target group of the ban, it applies to everyone the state considers a citizen, male and aged between 18 and 60. The very narrow exceptions apply to parents of three or more children, children with disabilities, single parents and to people with medical issues. Yet, the ban also affects those who cannot be mobilised, be it due to conscientious objection or for other reasons. It also includes those who are unfit to perform other, non-military services. And, it includes those who do not want to stay in a warzone and risk becoming ‘collateral damage’. Moreover, the ban fails to recognize those who are primary carers of children (and not single) or carers of other vulnerable members of society. These considerations emphasise the importance of the non-discrimination principle under Art. 14 ECHR and Arts. 2(2), 4 (1) ICCPR. The ECtHR held in Konstantin Markin v. Russia (para 143) that “gender stereotypes, such as the perception of women as primary child-carers and men as primary breadwinners, cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment […]”.
In addition, the situation of trans women and non-binary people as addressees of the exit ban is precarious. In particular, trans women whose official documents have not been adjusted are prevented from leaving the country, thus wrongly being addressed as male. Additionally, they are demonstrably at a higher risk of gender-based violence in conflict. In this vein, IHL obliges states to respect the “specific protection, health and assistance needs of women affected by armed conflict” (ICRC, Customary Rule 134). These specific needs are not as much dependent on a biologist conception of womanhood, rather than the exposition to gender-based violence. Read in the context of human rights, this rule must thus be interpreted in a way to include non-binary persons and trans women whose gender has not been recognized by the state.
While customary rule 134 and other IHL rules (see here and here) oblige states to address the high risk of gender-based violence during war, they do not provide for a justification for an infringement of the right to leave of male assigned citizens. Vulnerability does not solely depend on the gender signifier in a passport. Thus, derogatory measures cannot distinguish only based on gender (General Comment No. 29: Article 4, para. 8) – even if the exigencies of the situation require as many soldiers as possible to fight against an armed attack and, even if a state is forced to rely on military mobilisation. The travel ban only helps enforce the conscription duties of male assigned reservists. It neither concerns all persons potentially under conscription duty equally, nor does it only affect those male assigned persons, who are subject to military conscription. The ban, thus, amounts to unlawful discrimination under the ICCPR and the ECHR.
Conclusion: Legal Interventions Against Gendered Claims
The Ukrainian travel ban for men is just one example for the imprint of gender in law. Especially, when it comes to vulnerability, the gender binary shapes laws and legal practices (Fassin, p. 48). Those who do not fit into the idea of combat-ready men and child-bearing women (let alone the idea of men and women), are often not included into the conception of law. The non-discrimination principle provides for a cross-section claim against such gendered laws and practices. As such it provides for one possible intervention against discrimination based on gender. Those Ukrainians who want to leave but are affected by the ban are currently forced to rely on unsafe and illegalized routes – despite their rights.