Germany: The Unlawfulness of the Extradition of a Ukrainian Citizen Due to National and Gender-Based Discrimination
Photo by Gerd Eichmann, CC BY 4.0, via Wikimedia Commons.
The decision of the Federal Court of Germany (BGH) on January 16, 2025, permitting the extradition of a Ukrainian citizen despite his conscientious objection to military service, constitutes a clear case of national and gender-based discrimination. This decision violates international legal norms, particularly Article 14 of the European Convention on Human Rights (ECHR) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR), both of which prohibit discrimination based on nationality and gender. Furthermore, the risk of forced conscription upon extradition raises serious concerns under Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment.
1. National Discrimination in the Application of Extradition Law
The European Court of Human Rights (ECHR) and several European Union member states have previously refused to extradite individuals facing forced conscription or political persecution in their home countries. However, a different standard is being applied in the case of Ukraine, violating the principle of equal treatment under international law.
Precedents Where Extradition Was Denied Due to Forced Conscription Risks
• M.S. v. Italy (ECHR, 2019) – Italy refused to extradite a Libyan national due to the risk of forced conscription into armed groups.
• S.A. v. Netherlands (ECHR, 2016) – The Netherlands granted asylum to a Syrian citizen, recognizing that forced military service under the Assad regime constituted persecution.
• H.K. v. Sweden (ECHR, 2018) – Sweden ruled that an Afghan citizen faced the risk of forced recruitment by armed groups and granted him asylum.
Moreover, on January 20, 2025, the Administrative Court of Berlin granted subsidiary protection to two Russian draft evaders, citing the threat of forced conscription and participation in a war that violates international law. The court recognized that returning to Russia posed a high risk of being sent to the front, where they would either be killed or forced to commit war crimes. This decision highlights that forced conscription can be grounds for protection if it entails human rights violations.
Discriminatory Approach Toward Ukrainian Nationals
Despite these precedents, Germany is now extraditing a Ukrainian citizen, ignoring the same risks that led to protection for Syrians, Libyans, and Afghans. Treating individuals differently under identical circumstances based on their nationality is a direct violation of Article 14 of the ECHR and Article 26 of the ICCPR, which prohibit discrimination in the application of legal protections.
2. Gender-Based Discrimination in Extradition Policy
Ukraine’s military draft policies primarily target men, while women are largely exempt from compulsory service. By extraditing a male Ukrainian citizen who is highly likely to face forced conscription, Germany is effectively endorsing a policy that disproportionately affects only men.
Violation of Gender Equality Protections
• Article 14 of the ECHR prohibits discrimination based on sex in the application of legal protections.
• Article 3 of the ICCPR ensures equal rights for men and women in all spheres, including protection from persecution.
• The EU Charter of Fundamental Rights (Article 21) explicitly bans discrimination based on sex.
The extradition of a male conscientious objector to a country where only men are subject to forced conscription constitutes systemic gender discrimination, violating the aforementioned legal provisions.
3. Violation of the Prohibition Against Inhuman or Degrading Treatment
International Legal Framework Against Extradition Leading to Human Rights Violations
• Article 3 of the ECHR prohibits extradition if the person faces a risk of torture, inhuman, or degrading treatment in the receiving country.
• Article 3 of the UN Convention Against Torture (CAT, 1984) bars extradition where there is a substantial risk of cruel or degrading treatment.
In This Case:
• The Ukrainian government has criminalized conscientious objection and imposed harsh penalties for draft evasion.
• There is substantial evidence that individuals forcibly conscripted in Ukraine face harsh, often inhumane conditions at the front.
• European courts have previously ruled that extradition to a country where a person may be forcibly conscripted violates Article 3 of the ECHR.
By extraditing a Ukrainian citizen under these conditions, Germany ignores well-established international legal norms and sets a dangerous precedent for selective legal protection.
Precedent: Saadi v. United Kingdom (ECHR, 2008)
The European Court of Human Rights (ECHR) ruled that the United Kingdom could not deport a Tunisian national who faced a risk of torture or degrading treatment.
The fact that Germany is ignoring these legal standards in the case of a Ukrainian citizen demonstrates double standards that are both unlawful and discriminatory.
4. Absence of an Official State of War Between Ukraine and Russia
Germany justifies the extradition by referring to the “armed conflict” in Ukraine, yet:
• Ukraine has not officially declared war on Russia, making forced conscription legally questionable.
• Under Article 4(2) of the ICCPR, certain rights—including protection from forced conscription—cannot be restricted in conditions other than a formally declared state of war.
This further undermines the legality of extraditing a civilian who is not a military serviceman but may be forcibly conscripted.
Conclusion: Germany Must Reverse This Unlawful Extradition
The extradition of a Ukrainian citizen under the following circumstances:
• Clear risk of forced conscription and inhuman treatment (ECHR Article 3, CAT Article 3)
• Discrimination based on nationality, compared to Syrians, Libyans, and Afghans (ECHR Article 14, ICCPR Article 26)
• Gender-based discrimination, as only men are forcibly conscripted (ECHR Article 14, ICCPR Article 3, EU Charter Article 21)
• Legal uncertainty in Ukraine’s conscription system, due to the absence of a formal war declaration (ICCPR Article 4(2))
Germany is violating its international human rights obligations and setting a dangerous precedent for selective legal enforcement.
An immediate review of this decision is required to ensure full compliance with international legal norms and non-discrimination principles.
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