The Volokh Conspiracy

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More on Offering Asylum to Russian Soldiers Who Surrender in Ukraine

The idea has gained additional adherents, and there are various proposals on how to implement it.


Russian soldiers captured in Ukraine (Ukrainian Armed Forces).


Last week, I wrote a post making the case for granting refuge to Russian soldiers who surrender in Ukraine, an idea first advanced by Duke economist Timur Kuran. Since then, the proposal has gained additional adherents. Time has an article on the subject:

As world leaders attempt to isolate and punish Russia with sanctions and trade bans for its invasion of Ukraine, a handful of American academics are pushing a more unconventional idea: the United States and Europe should offer refuge to Russian soldiers who defect and surrender.

Peter Schuck, a former Yale Law School professor, and Ilya Somin, a George Mason University's Anontin Scalia Law School, each published op-eds on the subject—in The Wall Street Journal and The New York Times, respectively—and Timur Kuran, an economist at Duke University tweeted the idea on Feb. 26. "Don't assume Russian soldiers and officers like what they are doing," he wrote. "Some…must be willing to break ranks, if only they have options. Let [European Union] and NATO countries offer asylum to Russian military defectors."

Michelle Mittelstadt, director of communications at the Migration Policy Institute, a nonpartisan research institution, says it's an idea countries should consider. "Countries should certainly offer safe harbor to Russians who run afoul of the Russian government and have protection needs," she says….

The Time article also notes some ways the proposal could be implemented:

Somin suggests that Russian defectors could utilize the U.S.'s humanitarian parole program, which offers temporary protections from deportation for people on humanitarian grounds—a quick fix considering the state of the U.S.'s refugee system. Nearly all of the Afghans who resettled in the U.S. since the withdrawal last summer are in the country under humanitarian parole.

It's also possible, although not likely, that Congress could act to welcome Russian military defectors. "This is the sort of thing that is just common sense. It's not a left wing idea or a right wing idea," Kuran tells TIME.

In his Wall Street Journal article, referenced by Time, Peter Schuck outlines some advantages of the plan, explaining that even a relatively small number of defections could potentially make a significant difference:

Such a scheme is likely to be effective because even a few initial defections can have a cascading effect, especially if other troops fear that the offer may be time-limited. The scheme would entail no risk to NATO forces (quite the contrary) and cost the NATO countries essentially nothing, particularly if the defectors are spread among them. In the U.S., the idea should have bipartisan political support; it both exploits the "soft power" that liberals claim America has forfeited and advances U.S. foreign-policy interests.

Meanwhile, the proposal has also been backed by economist Bryan Caplan (who suggests some improvements), Canadian political commentator Scott Gilmore (I discussed his ideas here), and David Frum, among others. Legal scholar Tom Dannenbaum argues that surrendering Russian soldiers are entitled to asylum under international refugee law, because of the illegal nature of Russia's war of aggression.

Historian Paul Matzko, another supporter, notes the successful historical precedent of American efforts to incentivize defections by Hessian German troops hired by the British during the Revolutionary War:

For all the Hessians who died on American battlefields, nearly as many remained behind under kinder circumstances. Many Hessians who arrived in this lush, free land quickly realized they were fighting for the wrong side. Approximately 3,000 Hessians deserted during the course of the war, fully a tenth of the entire force.

That was in part the result of a policy choice, one of the earliest actions of the new Continental Congress. In August 1776, Congress commissioned agents of German ancestry to go and pass out handbills near Hessian encampments on Staten Island, offering them clemency if they deserted. More than a few absconded to the already established German immigrant settlements in Pennsylvania and the mid-Atlantic states. That led to growing frustration among the German princes in the old country as they struggled to find capable replacements in order to avoid defaulting on their mercenary contracts. It was a brilliant strategic decision. Whether dead on the battlefield in White Plains, New York, or alive and farming a field in Lancaster, Pennsylvania, it meant one fewer Hessian soldier in the fight for American independence.

As the Time article notes, so far support for the idea is largely limited to academics and political commentators. It has not yet been adopted by the US government or any of its allies. But, hopefully, they might yet come round to it. The sooner the better. As I and others explained to Time, it's a cheap and easy way to degrade the Russian military, at little, if any cost ourselves.