The law is very limited
in the sense that it does not or hardly takes into consideration the family
circumstances of a specific category of people: Only those who have four or
more children are exempt from mobilization based on their family circumstances.
The scope of citizens, subject to mobilization is defined by the “Law on
Defense” of the Republic of Armenia (Article 29, section 2).
Compared to mandatory
conscription, for which “The law of the Republic of Armenia on military service
and the status of a serviceman” provides numerous grounds for deferment of
conscription or exemptions from military service due to family circumstances,
the legislative body’s approach to persons exempt from military service is
unreasonably strict. According to the Defender, the scope of those people needs
to be reviewed.
It is understandable that
the state policy in terms of the enrollment of conscripts in times of martial
law may be somewhat different, based on specific to emergencies. However, such
a policy must be based on clear logic and be justified, otherwise, the
regulation prescribed by law in certain situations may be arbitrary and
unjustified.
A striking example of this is the exemption of
a parent or brother of a serviceman who is in captivity or whose location is
unknown from mobilization (not including them in it). Although the “Law on Defense” of the Republic of
Armenia does not formally exempt the family member of a serviceman who is in
captivity or whose location is unknown as a result of hostilities from
mobilization, nevertheless, during the war unleashed by Azerbaijan in September
2020, and due to the given situation, the Territorial Subdivisions of
Conscription and Mobilization Service (military commissariats) of the Ministry
of Defense, practically and justifiably refrained from including such people in
the military mobilization.
The Defender deems it
necessary to record that in addition to the above-mentioned, there can be other
cases when mobilizing a person is still unjustified. For example, this may be
applicable in cases when a person does not have 4 or more children (as required
by law to be exempt from mobilization), but they have 3 minor children growing
up without a mother or if they have parents with disabilities. We can list many
examples like these. Therefore, the regulations of the law defining the scope
of the following category of citizens need to be reviewed. Moreover, given that
there is no mechanism in place to take into account the more complex family
conditions, it is necessary to create them so as to take a more individualized
approach for each case.
The Ministry of Defense
informed the Human Rights Defender that the hotline of the Ministry of Defense
had received alarming-calls about the citizens involved in the mobilization
activities regarding their family status (sole guardian of a minor, sole
guardian of a family member with a disability, etc.). The applicants were
informed that the law defines the specific cases when a person is not subject
to mobilization. However, as soon as the complaints were received, the units of
the Ministry of Defense examined the family composition of that specific person
and, if the facts mentioned in the application were true, the military
commissariats refrained from mobilizing these persons as much as possible.
Thus, the practical cases
also confirm the Human Rights Defender's records about the fact that the
current legal regulation regarding citizens who are not subject to mobilization
due to their family circumstances is, in fact, problematic. On the other hand,
the very wide range of discretionary powers when taking an individual approach
for each case can have an opposite and a negative impact, even leading to abuse
of power.
Positively evaluating the
flexible and justified approaches shown in the practice of the Ministry of Defense
system, more specifically, approaches of the Conscription and Mobilization
services, it is necessary to give an institutional solution to the problem with
clear regulation of the law. Limited regulation of the law causes problems in
practice; in this case, it is necessary to either review the scope of persons
not subject to mobilization (and not setting a limit by exempting only those
from mobilization who have 4 children) or provide a mechanism for identifying
and assessing such individual cases, and regularly examine and update the data
on the basis of which it is decided who will be subject to possible
mobilization and who will not.
Therefore, the proposal
is to expand the list of persons not eligible for mobilization based on family
circumstances or, alternatively, to introduce clear mechanisms for an
individual (flexible) approach.
Moreover, it should be
noted that there are also no relevant legal regulations that take family
conditions into consideration when enrolling citizens in training camps and
military exercises.
In this regard, it is
important to note that enrolling citizens in training camps and exercises is
not an end in itself. The logic is to prepare conscripts enlisted in military
reserve forces, to help refresh and improve their military knowledge; and in
the event of hostilities, to ensure the participation of reservists with
appropriate fighting efficiency necessary for military service and operations.
In the following context,
it becomes possible to conclude that in the cases defined by law, the
enrollment of citizens not subject to mobilization in training camps and
military exercises does not serve its targeted purpose.
Therefore, the Defender's
proposal regarding the determination of the scope of persons not subject to
mobilization due to family circumstances is equally relevant to the process of
enrollment in training camps and military exercises.
The proposals will be
officially sent to the Standing Committee on Defense and Security of the
National Assembly of Armenia, as well as the Ministries of Defense and Justice.
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