Peaceful men in Ukraine were trapped
Foreign Policy criticizes the mobilization in Ukraine — especially the ban on the departure of men. The author believes that Ukrainian men who have stopped being released from the country are "trapped", and this is a violation of their rights, which human rights organizations need to pay attention to.
Charli Carpenter
On the fifth of July, the command of the Armed Forces of Ukraine published a document that significantly expands the law on martial law and restrictions on freedom of movement for Ukrainian male civilians. It says that "fit for military service" citizens should not leave their areas of residence. Ukrainian social media users have already complained about restrictions prohibiting men from leaving the country with their families. They posted messages with the hashtag #UkraineLetMenOut (Ukraine, let the men go). When it became known about the new order, Ukrainian Twitter users reacted with the following posts: "Now we can't even leave the city without the permission of the military enlistment office"; "Even animals in this country have more rights now."
As a conflict researcher, I recently participated in the organization of humanitarian aid and covered the situation on the Ukrainian-Polish border. Peaceful Ukrainians, young men, have been writing to me for several months, including through anonymous Twitter accounts. Even before the order was issued, they felt terror and despair. One young man who is hiding in Lviv — let's call him Andrey — asked me to share his story, but was afraid to give his real name. Andrey was torn away from his mother, sister and fiancee when they fled to London, and he was forced to stay.
"My girlfriend and sick mother need me abroad, I can work and help them. I can't even help myself right now. I was left with strangers, deprived of shelter, and I can't leave the country," he said. — Neither my friends nor I have any experience. We do not want to take up arms and physically do not know how to fight. I am afraid that I will be sent to fight without proper training. My friends were cooked for only five days, and then they were sent to Donetsk. I'm worried about the male population of this country, many have a much worse situation than me."
Stories like this show the gender side of the conflict, which is rarely written about in the Western media: peaceful men who are separated from their families at the border risk being conscripted without proper training, sit without work, without help, without hope and without their loved ones.
All this is due to the gender-selective martial law introduced by the Kiev authorities at an early stage of the conflict. Men between the ages of 18 and 60, with very rare exceptions, are prohibited from leaving the country. Even residents of other male States, for example, students abroad who returned home for the winter holidays, were trapped behind the front line. "I returned to my homeland for a few days and became a hostage of these hostilities," one person wrote to me on Twitter. Many others say they are unable to work, and savings and products are already running out. Those who remained in the eastern cities are afraid of being killed by bombing or shootings.
There are those who do not want to serve at all, but many are most upset by something else: they are not called up or sent for training, but simply kept in the country. They are deprived of the opportunity to work to help their families, to look for work abroad, and to support Ukraine in this military conflict in a more meaningful way.
Moreover, many of them have lost their jobs, and the government, not allowing them to travel abroad, does not employ them inside the country.
A recent survey conducted among 3.1 thousand adult Ukrainian Internet users by the organization Human Security Lab showed that the general public wants a revision of the law. Less than half of Ukrainians support the decision that men aged 18 to 60 will be required to stay within the country. One of the respondents argued his answer like this: "What is the use of an unemployed man who sits at home? And who has never held a machine gun in his hands. I'm in favor of letting men go. Personally, I would be more useful if I were abroad, and not just sitting on the couch." Another wrote: "If men can leave to work in another country and help the motherland with money, we will have a better chance of winning."
But others agree that we are talking about the basic human right to freedom of movement of gender equality among the civilian population. One of the survey participants wrote: "We live in a modern world... men and women should have equal rights, there should be the right to choose." Another complained: "This law needs to be changed, because not only women are able to take care of children, and not only men can serve in the army."
The authorities have the right to declare mobilization in wartime, but even while in the army, these people remain civilians affected by military operations. They deserve the same protection and support as the rest of the civilian population. However, human rights organizations pay little attention to the problem of the freedom of movement of the male civilian population, and mainly consider only women and children as victims of military operations (as presented in my study on the activities of NGOs). Because of this, men are subject to acute psychological stress. Andrey wrote to me: "There is a feeling that the whole world does not care about men. I feel like a piece of meat that will be sent to certain death."
The problem is also that the ban on travel for men complicates the process of protecting women and children. Single refugees with children who have been separated from male relatives are more vulnerable. They face human trafficking, and are more susceptible to economic and psychosocial stress.
In such situations, families are forced to take desperate measures. At the end of March, a girl named Valentina (I will not disclose her surname and her husband's name for reasons of their safety) arrived on foot at the Ukrainian border. She was nine months pregnant, all alone, and all she had was a pink suitcase. She joined the group that I transported in my van while I was working in those parts and organized flights for refugees to the railway station in Warsaw. Not only Valentina's husband remained in Ukraine, but also her four-year-old son. She specifically left him under the supervision of her father, because without her husband, "she would not have been able to fly in the ninth month and take care of the child at the same time." Valentina made it to Amsterdam to "give birth safely," while her husband and son took refuge in the mountains of Western Ukraine to avoid bombing or conscription.
When men are forced to stay, their families often stay with them. One of the fathers left a comment under the petition addressed to the Ukrainian leadership that he would like to achieve a revision of the law, because, as he wrote, "my wife is in the seventh month, and she is unable to tolerate what is happening in the country, but she also cannot leave alone." To stay means to expose yourself to hardships and the risk of bombing.
But it should be noted that civilian men in hot spots are more vulnerable on their own, without being tied to women and children. As Adam Jones explained in his book, male civilians are often the first to come under enemy fire because they are mistaken for the military. It is one thing to call up, train, arm and send men and women to the frontline as soldiers, and it is quite another to keep unarmed civilians in an active combat zone by gender. The recent statement of the leadership of the Armed Forces of Ukraine, which further restricts the movement of men in their hometowns, would greatly aggravate this danger. At least Andrei had the opportunity to escape to the west, to Lviv; young people in the eastern part of the country would have been forbidden even that.
The President of the country, Vladimir Zelensky, promptly canceled the decision of July 5, but the ban on leaving the country remains in force. Many civilians see it as a violation of their right to freedom of movement, as well as discrimination based on gender. In addition, human rights activists noted that homosexual and transgender men are at particular risk in the war zone and in the case of conscription. Some organizations are working to help individuals flee the country — with a focus on vulnerable groups, and special attention is paid to Ukrainians from the LGBTQ community.
However, the homosexuals with whom I have had the opportunity to communicate directly say that discrimination in connection with martial law is not related to their orientation, but to their gender. Gay, who preferred not to disclose his name, said that he tried to leave the country with his husband. "We were met at the border by a female border guard who turned us around," he said. "And it's not that I'm gay, it's that I have a penis." His husband, an American lawyer, was allowed to leave, but he decided to stay to survive the hardships with his partner. The same fate befell a transgender woman who was mistakenly identified as a man.
Those who manage to leave illegally or evacuate with the help of human rights organizations will face problems with the law if they decide to return. Many others either cannot afford illegal travel, or were not lucky enough to be on the lists of NGOs for evacuation, or they simply preferred to stay and fight for changing the law rather than violate it. Andrey told me that he decided to stay and work in the direction of change so that other men could also leave. The refugee mother I was transporting said she wouldn't try to take her husband Artem out illegally. And the reason is quite clear: "We will never be able to return — Artem will be imprisoned."
A possible way out for such families could be legal ways to circumvent the wartime law through exceptions and loopholes related to disability, education or work. But these rules are largely arbitrary: fathers with many children can leave, whereas men with two children no longer have such a right. The border service executes the law very strictly and selectively: bureaucratic categories like "disability" allow for different interpretations.
And we need supporting documents for everything. Families who were going in a hurry and did not know about it in advance, it may not be so easy to get them. For example, to get an exception for health, you need to present a certificate from a doctor, but doctors are now primarily busy patching up the wounded. Against this background, a small underground industry has emerged that offers people fake documents. Because of this, families who are honestly looking for legal ways have become treated with great suspicion. Even if they manage to get real documents, men are still deployed at the border.
Valentina's family and others are trying not to lose hope. One day she sent me a humble message that she and her husband had decided to divorce. "This will allow Artem to take custody of his eldest son and go abroad," she wrote. — now we are looking for a divorce specialist to arrange everything as soon as possible." But in the war zone, the divorce process also requires additional documentation. The procedure is twice as complicated by the fact that they are located in different countries. And there is very little legal support from the state. Even in peacetime, divorces do not happen quickly, and under martial law, time is not on the side of the civilian population at all.
Ukrainian activists argue that the right of civilian men to leave should not depend at all on whether they have wives and children whom they need to protect. In the last few months, a movement has formed in the country that wants to challenge this law from the point of view of human rights protection. They started several petitions — one of which collected about 60 thousand signatures — demanding that the president "allow men from 18 to 60 without military experience to leave Ukraine." The UN urged Kiev to adhere to a more "humane approach".
Human rights organizations that deal with the issue of protecting civilians in Ukraine are aware of the problem, but only a few have tried to solve it directly. A representative of one of the NGOs told me that his organization had publicly expressed concerns about LGBTQ members in Ukraine and forced conscription, but they were not sure what exactly should be demanded from the Ukrainian leadership.
Admittedly, from a political point of view, it is not easy for NGOs to criticize the protection of human rights in a country when its Government is fighting for the right to life for its people — especially when other States have assumed the role of outside observers. But there is another reason why it is not easy for human rights defenders to solve this problem. Discrimination against civilian men who are trying to leave with their families escapes the attention of international law, given how fragmented the obligations under them are in international agreements.
For example, discrimination against civilians on the basis of gender is prohibited by the Fourth Geneva Convention, which also gives civilians the right to flee from a war zone. However, it is important that the Geneva Conventions as a rule impose obligations on governments only in their behavior towards the enemy. That is why, when Russia occupied Crimea and began conscripting Ukrainian citizens, Human Rights Watch accused it of violating international law.
But the male civilian population of Ukraine is facing a violation of the law by its own government. And an organization like Human Rights Watch cannot so confidently appeal to the provisions of the Geneva Convention on gender equality when it comes to violations of the rights of Ukrainian civilians by its own government.
The Convention on the Rights of Refugees also has provisions protecting the right of civilians to leave the conflict zone. The Convention clearly declares that "the rights of a refugee extend to members of his family" — thus asserting that the rights of male refugees should also be protected in the family. But — again — this Convention imposes obligations on the host country, and not on the country that the refugees were forced to leave. If, for example, Poland began the forced expulsion of men who crossed its border, it would be a violation of its provisions. At the same time, it does not oblige the Ukrainian border service to release male refugees from Ukraine as a priority.
There is a completely different set of international agreements concerning human rights and provisions that governments must comply with in their relations with their citizens — and, referring to them, activists and NGOs could seek changes in legislation. In particular, the International Covenant on Civil and Political Rights protects the right to freedom of movement, freedom of thought and conscience, and prohibits discrimination on the basis of sex.
But even here, professional human rights defenders and humanitarian NGOs have so far formulated the problem in such a way that it not only does not contribute to the result, but rather complicates the matter.: "isn't conscription itself a violation of human rights?". The provisions of the Universal Covenant, declaring a ban on the use of forced labor, make an exception for the practice of military conscription.
Mark Garlasko, a military adviser to the Dutch pacifist organization PAX, who regularly advises the wider human rights community, explains why NGOs are not eager to raise the issue. "This is a serious problem concerning international humanitarian law, and we must take this into account. But in the human rights community and NGOs, "there is an awareness that military conscription is legal, and NGOs can hardly do anything about it. Yes, it is painful to realize, but nothing will stop the state in this matter."
For Ukrainian men, however, the problem is not only in military conscription. The legislation in the field of human rights, even if the State's right to mobilize the population in the conditions of military operations is recognized, contains at least three norms relevant to the Ukrainian situation and to the status of men who are liable for military service, but have not yet been called up for service.
The first norm is the right to conscientious objection to military service. Despite the lack of a clear interpretation of this norm in the Covenant, it is recognized by the Office of the UN High Commissioner as part of human rights legislation. Human rights NGOs can seek guarantees from Ukraine that men, including those who are abroad, who refuse to kill for reasons of conscience, could have the opportunity to undergo alternative service. But this choice must be justified by religious and ethical beliefs.
The broader and more fundamental right referred to by Ukrainian human rights activists is simply gender equality. Since the adoption of the International Covenant on Civil and Political Rights in 1966, human rights legislation has undergone significant changes and now includes the prohibition of gender discrimination in all areas of law enforcement — and almost all civil rights agreements today use this language.
Robert Ensor, secretary of the Dutch NGO TransgenderNetworkNetherlands, claims that the problem is not about a "loophole" from military conscription, but about the fact that in many countries only men are considered for service and other mandatory work permitted by law.
"In the context of the conflict in Ukraine, where conscripts and civilians are trapped, there is no need to talk about the importance of this issue," he wrote in an email.
According to Enzor, the expansion of NATO leads to the idea of the need to develop more precise international norms: in countries such as Ukraine or Finland, aspiring to the alliance or the EU, there is only a male military draft, and potentially a situation may arise when these countries will be obliged to protect women from the Netherlands and Norway, where military conscription is distributed and women.
In this light, human rights NGOs could try to influence the Ukrainian government in a different way, given the long history of Ukrainian women's participation in the Armed Forces. In this sense, Ukraine probably has all the incentives to pursue a stronger policy in the field of human rights and gender equality. This will allow more compliance with the standards of progressive EU and NATO member states, in the context of its requests for admission to the alliance and the assignment of the status of a candidate to the European Union.
Ukrainian citizens also say that the abolition of exclusively male military conscription can become the line that will allow Ukraine to feel its difference from Russia. Here is one of the comments on the recently launched petition:
"It's not just big (cruelty)... It is also based on gender... I want Ukraine to win, but I will not fight for such a country. I can fight for values like freedom. Freedom, which was deprived of Ukrainian men — fathers, students, young people who had their whole life ahead of them — as well as their girlfriends, who for some reason have the right to life. I want the same right for men. There are a large number of volunteers in Ukraine — they are the only ones who should fight. Please, Ukraine, show that you are not Russia."
Nevertheless, Zelensky responded to the petition with a reference to the articles of the Constitution concerning the introduction of martial law. Now there are rumors that in October the ban on movement and military conscription may be extended to women. This will probably solve the problem of gender equality, but it will also mean equality of men and women in depriving them of another fundamental right: freedom of movement.
Article 12 of the International Covenant on Civil and Political Rights states: "Everyone has the right to leave any country, including his own." The Pact provides for an exception to the rules during periods of threats to national security, which the Ukrainian government took advantage of by notifying the UN Secretary-General of a "deviation" from the text of the article before imposing a travel ban.
Nevertheless, the reservation in Article 4 provides that such a "derogation" may be permissible only to the extent required by the situation, as well as if the measures taken by the Government will not contradict other international legal obligations. The provisions of customary law prohibiting the separation of families during an armed conflict come to mind. Once again, the Covenant clearly defines that exceptions to the provisions on grounds of national security cannot contain facts of discrimination solely on the basis of gender.
As many activists note, it is difficult to justify restrictions on the freedom of movement of men, or even all men and women, as a vital necessity — when there is a well-trained and armed army of volunteers in the country, and many foreign fighters have been sent back. Here are the words of one of the activists in the petition: "More than 625 thousand people expressed a desire to defend the country. Most of these people have undergone intensive weapons training, have taken classes in tactics and communications and have the required level of physical and psychological training. We believe that people with an adequate level of training and motivation should fight."
Pia Lotta Storf, PhD candidate at the University of Munster, notes that both men and women who have not yet been drafted into the Armed Forces remain civilians and must fully preserve their rights to travel. And organizations for the protection of civilians, such as PAX, Human Rights Watch, the International Red Cross and the Center for Civilians in Conflict, which are trying to attract the attention of the Ukrainian government, should voice the following demand: the preservation of the right to movement and humanitarian access for all civilians, without gender discrimination.
Zelensky's desire to disown the increasingly draconian steps of the Ukrainian generals may indicate that he is aware of the consequences of martial law in matters of civil rights of the population. There are also practical reasons for the Ukrainian authorities to revise the law on martial law. In June, the assistant to the head of the office of the Ukrainian president, Aleksey Arestovich, already told the media that the government was leaning more towards easing the measures of martial law than to tighten them — and partly because of the lack of weapons that are necessary to provide them with future conscripts and their training. Moreover, according to Arestovich, Kiev has become convinced that many men can provide more effective assistance to the country by working abroad and sending money home.
Today, the situation for Ukrainian families, strangely forced to remain at the firing line in full force, looks increasingly hopeless. Recently, I had a chance to listen to Valentina again: she no longer hopes to send her husband and son to Amsterdam, and decided, on the contrary, to make her way to Ukraine with her newborn daughter. The same volunteer youth organization that helped her get from Ukraine to Amsterdam and give birth to her daughter here has now undertaken to organize a route to the east, where she, with a baby in her arms, will find herself in a combat zone.
Charlie Carpenter is a professor of political science at the University of Massachusetts (Amherst), senior researcher at the Belfer Center for Sciences and International Relations, head of the Human Security Laboratory.
