Ukraine War: Kyiv’s Sex-Selective Martial Law Violates Human Rights – Foreign Policy

On July 5, Ukrainian army generals issued a proclamation dramatically expanding the martial law prohibiting Ukrainian civilian men’s freedom of movement, calling on all those “liable for military service” to remain in their home districts. With the Twitter hashtag #UkraineLetMenOut, citizens had already been complaining bitterly about men being unable to leave the country with their families since Russia’s invasion. After the new proclamation came down, one Ukrainian tweeted, “Now we can’t even leave our cities without permission from military recruitment centers.” Another tweeted, “Animals have more rights in Ukraine than men.”

As a conflict researcher who recently spent time assisting with the humanitarian effort and reporting from the Poland-Ukraine border, I’ve been hearing from young civilian men in Ukraine for months, with some reaching out to me via anonymous Twitter accounts. Even before this proclamation, they felt terrified and desperate. One young man hiding out in Lviv, Ukraine—whom I’ll call Andrij—asked me to share his story but was afraid to use his real name. Andrij was separated from his mother, sister, and fiancee when they fled to London and he was forced to stay behind.

“My fiancée and sick mother need me abroad so that I can work and help them. Now I can’t even help myself, I am left alone with strangers [and] without a home and cannot leave the country,” he said. “My friends and I have no experience and we do not want to hold weapons and cannot physically fight. I live in fear they will send me to war without proper training. My friends were trained for five days and sent to Donetsk. I’m worried about the men in this country, many others are worse off than me.”

Voices like Andrij’s reflect a gender dimension of the Ukraine war seldom covered by the Western media: civilian men separated from their families at the border, vulnerable to conscription but not actually being trained for war, and sitting jobless, helpless, hopeless, and without their loved ones.

It’s all because of a sex-selective martial law the Ukrainian government passed at the onset of the war. Men between the ages of 18 and 60 are not permitted to leave the country except under very specific exemptions. Even male residents of other countries, such as international students home on winter break when the war started, have been trapped behind the front lines. “I came home for a few days and became a hostage of Russian aggression,” one wrote to me in a direct message on Twitter. Many others describe being unable to work, with savings and food running out. Some fear death by bombardment or massacre if they stay in eastern cities.

While some men wish not to join the army, many say what they find most frustrating is that they are not even being conscripted and trained to fight—just held in the country unable to either work to support their families, find employment abroad, or more meaningfully support the war. Another wrote to me on Twitter, “All men in Ukraine now are prisoners … Even more, [a] lot of them have lost their jobs because [of] war, and [the] government doesn’t allow them to go for a job abroad, and can’t give a job inside the country.”

A new random survey of over 3,100 adult Ukrainian internet users conducted by the Human Security Lab shows wide support for changing the law: fewer than half of Ukrainians believe men aged 18-60 should be forced to stay in the country. One respondent explained their answer by saying: “What the point of an unemployed man sitting at home? And who did not hold a machine gun in his hands? I am in favor of releasing men, personally I will be more useful abroad, than just sitting on the couch.” Another wrote, “If men can leave, work in another country, and pay money to the country, we are more likely to win this war.”

But others say it is an issue of the fundamental human rights of freedom of movement and gender equality among civilians. One respondent on the Human Security Lab survey wrote, “We live in a modern world … men and women must have equal rights, the right to choose.” Another wrote, “This law needs to be changed, because not only women can take care of children, and not only men can join the army.”

---

Preventing civilian men from fleeing with their families complicates the protection of women and children as well, however. When women and children flee alone, being separated from their male relatives makes them vulnerable to trafficking and heightens their economic and psycho-social stress.

Families make agonizing choices in such situations. In late March, a young woman named Valentina, whose family name and that of her husband’s I’ve chosen not to use out of concern for their safety, arrived at the Ukraine border nine months pregnant, on foot, and alone with just one pink suitcase. She was one of several refugees who joined my group’s van while I was in the region, shuttling those in flight from the border to the train station in Warsaw, Poland. Valentina had left not only her husband behind, but also her 4-year-old son, whom she left in her husband’s care because, “I didn’t think I could travel nine months pregnant and take care of my child as well, without my husband with me.” Valentina made her way to Amsterdam “to give birth in a safe place,” while her husband and son hid in the western Ukrainian mountains to avoid the risk of shelling or conscription.

When men are forced to stay, families often stay, too. One father left a comment on a petition to the Ukrainian government saying that he wanted the law to change “because I have a wife on the 7th month of pregnancy who incapable of tolerating the things that going on here in Ukraine and she can’t leave Ukraine alone.” Staying means risking death by deprivation or bombardment, like the victims of the recent Russian missile strike on a crowded shopping mall in the Ukrainian city of Kremenchuk. Valentina and I have remained in touch, and she shared with me via Facebook messenger that a friend of hers and their toddler who had decided not to flee were inside the Kremenchuk shopping mall when it was set ablaze by a Russian missile. They made it out safely but were traumatized by the attack.

But civilian men are vulnerable in conflict zones in their own right, not just in their relationships to women and children. As the political scientist Adam Jones has documented, civilian men are often the first to be executed by the enemy on the belief that they are really fighters—as my own research on Srebrenica and the recent massacre at Bucha confirmed. It is one thing to conscript, train, equip, and deploy men and women as soldiers; it is another to hold them as unarmed civilians in a shooting war on the basis of gender. The recent proclamation further limiting men’s movement to their hometowns would have dramatically exacerbated this danger. Andrij was able to flee west to Lviv, at least; young men in more easterly locations would have been prohibited from doing even that.

Ukrainian President Volodymyr Zelensky swiftly rolled back the July 5 proclamation, but the international travel ban remains in place and is perceived by many citizens as violating the human right to freedom of movement and rules against gender discrimination. Human rights groups have also pointed out that gay, bisexual, and transgender men are at particular risk in a war zone and face particular risks if conscripted. Some organizations are working to help individuals flee, with an emphasis on vulnerable groups, paying particular attention to LGBTQ Ukrainians.

But when it comes to the martial law, gay men I spoke with say unequivocally that the discrimination they face is not because they are gay, but simply because they are men. One gay man, who requested anonymity, told me he had attempted to leave the country with his husband. “When we got to the border it was a female guard who turned us back,” he said. “It’s not because I’m gay, it’s because I have a penis,” he added. His husband, an American attorney, was permitted to leave but chose to stay in harm’s way with his husband. Transgender women misidentified as men get similar treatment.

Those who manage to get smuggled out or evacuated by human rights organizations face legal repercussions if they return. Many others either cannot afford to be smuggled out, are not lucky enough to have their number come up on an NGO’s evacuation list, or simply prefer to stay and fight for change rather than break the law. Andrij told me he preferred to stay and work toward changing things so that other men, too, would be able to escape. The refugee mother I transported, Valentina, told me she would not consider sneaking her husband, Artem, out of the country for a practical reason: “We would never be able to return—Artem would be imprisoned.”

For families like theirs, the focus has been on finding a legal way around the martial law through its many exemptions and loopholes: disability, education, occupation. But many of these rules seem arbitrary: Fathers with three or more children can get out, but fathers with only two children must stay behind. The border patrol is strict and selective in how it enforces the law: Bureaucratic categories like “disabled” are open to interpretation.

And everything requires documentation—hard to come by for families who may have had to flee their homes on short notice. Medical exemptions, for example, require paperwork from doctors, but doctors in the country are currently preoccupied with patching up trauma victims. In this context, a small cottage industry has arisen in providing fake documentation, which has only raised suspicion and complicated matters for families searching for genuine ways through the existing rules. Even if they can acquire genuine documents, men are still often turned back at the border.

Families like Valentina’s try not to lose hope. At one point, texting me from Amsterdam, Valentina shared resignedly that she and her husband had decided to divorce. “This will allow Artem to take care of his eldest son and go abroad. It is not a simple solution, but an effective and legal one,” she texted. “Now we are looking for a person who specializes in divorce to do it as soon as possible.” But divorce proceedings in a war zone also require extensive documentation, international proceedings are doubly complicated, and legal aid is scant. Even in peacetime, divorce takes time, and time is not on civilians’ side in war.

---

Human rights organizations focused on civilian protection in the Ukraine war are aware of the issue, but few have addressed it head-on. A representative of one NGO told me their organization had raised concerns about LGBTQI Ukrainians and forced conscription in its advocacy messages, but it had been unsure exactly what to ask of the Ukrainian government.

Admittedly, it is politically difficult for NGOs to criticize a country on human rights grounds whose government is fighting for its people’s very right to life, especially while other countries stand by on the sidelines. But there is another reason that this issue has been tough for human rights organizations to tackle: Discrimination against civilian men attempting to flee with their families in some ways falls through the cracks of existing international law given how different treaty obligations are compartmentalized.

For example, sex discrimination against civilians in a time of war is prohibited under the Fourth Geneva Convention, which also allows civilians the right to flee a war zone. Importantly, however, the Geneva Conventions traditionally bind governments in how they may treat the enemy. This is why, when Russia occupied Crimea and began conscripting Ukrainians to fight in the Russian army, Human Rights Watch called it out for breaking international law.

But the civilian men of Ukraine are facing a law set down by their own country. A group such as Human Rights Watch, for example, cannot as easily invoke the gender provisions of the Geneva Conventions to address Ukrainian rights violations against its own civilians.

There are also rules protecting the right to flee in the Refugee Convention. That convention explicitly states that “the rights granted to a refugee are extended to members of his family”—suggesting male family members of female refugees should be protected as well. But again, the Refugee Convention binds refugee-receiving countries, not the country the refugees are fleeing. If Poland, for example, were forcibly turning back men who get across the border, they might be in violation of those rules. But the refugee convention rules do not require the Ukrainian border patrol to let them across in the first place.

It is a completely different set of treaties—human rights treaties—that addresses how governments should treat their own citizens, and it is here that activists and NGOs could look to encourage a change in the law. The International Covenant on Civil and Political Rights, for example, protects freedom of movement and freedom of thought and conscience, and prohibits gender discrimination.

Even here, however, professional human rights and humanitarian NGOs have been looking at the problem through a lens that makes it hard rather than easy to address: whether military conscription itself violates human rights. Forced labor is prohibited under the covenant, but there is an exception for military conscription.

Marc Garlasco, a military adviser for the Dutch peace organization PAX and frequent consultant to the wider humanitarian NGO community, told me this was the reason for NGOs’ reluctance to address the issue. “I think it’s a hairy issue that touches on international human rights law, and we should consider it,” he said. But, he added, among the wider humanitarian NGO community, “there is a concern that conscription is legal and there isn’t much NGOs can or should do, that yeah, it sucks, but nothing can stop a state from doing that.”

---

The first is the right to conscientious objection. Although not spelled out explicitly in the treaty, the Office of the High Commissioner for Human Rights argues it does inhere in human rights law. Rights NGOs could press Ukraine to ensure that men who have a moral objection to killing have opportunities to serve in other ways, including from abroad. But this right would only apply to those whose choice not to serve was grounded in documentable religious or moral beliefs.

A more basic and far-reaching human rights norm Ukrainian activists invoke is simple gender equality. Since the codification of the International Covenant on Civil and Political Rights in 1966, human rights law has changed markedly to incorporate norms against gender discrimination in all areas of the law. Nearly every human rights treaty includes such language.

Robert Ensor, secretary of the Dutch NGO Transgender Network Netherlands, argues the problem is not the conscription loophole itself but the fact that some countries target only men for this and other forms of legally compulsory labor. “Needless to say, in the context of the Ukraine War, in which male conscripts [from Russia and Ukraine] have been pitted against each other and the civilian population, this is a matter, in my view, of considerable importance,” he wrote in an email.

According to Ensor, NATO expansion could bring the need for a stronger international norm on this issue to a head, with countries like Finland and Ukraine (both of which have a male-only conscription laws) seeking to enter NATO and/or the European Union, requiring women of countries like the Netherlands and Norway (both of which have gender-egalitarian conscription) to potentially defend them.

In this light, human rights NGOs might have another angle on which to influence the Ukrainian government on the issue, particularly given Ukraine’s strong history of inclusion of women in the armed forces. Arguably, Ukraine has every incentive to adopt a more gender-egalitarian and human rights-based policy, in order to align with the more progressive EU and NATO states as part of its bid for membership in NATO and EU candidacy.

Ukrainian citizens also say that ending male-only conscription is part of how Ukraine should distinguish itself from Russia. One commenter on a recent petition wrote:

“Not only is it immense [cruelty] … but it’s gender-based. … I want Ukraine to win … [but] I wouldn’t fight for such country. I would fight for values such as freedom, freedom which has been taken away from Ukrainian men – fathers, students, young boys who have their whole life ahead of them – just like their female friends, who for some reason have a right to live. I want the same right for men. Ukraine does have plenty of volunteers – and only volunteers should fight. … Ukraine please show, that you are not like Russia.”

Instead, Zelensky responded to the petition in June by invoking the Ukraine constitution’s provisions on martial law. There are now rumors that the travel ban and conscription policy might be extended to women as well in October. That might resolve the gender equality issue, but it would also mean male and female civilians facing equal-opportunity violations of another fundamental human right: the right to freedom of movement.

Article 12 of the International Covenant on Civil and Political Rights states: “Everyone shall be free to leave any country, including his own.” Similar rules protect movement within a country. The treaty does permit exceptions to this rule in times of national security crises, and the Ukrainian government appropriately filed a “derogation” from these rules with the U.N. secretary-general before initiating the travel ban.

However, the caveat in Article 4 of the treaty is that such derogations must occur only “to the extent strictly required, provided that such measures are not inconsistent with other obligations under international law.” The customary law rules prohibiting family separation in times of armed conflict come to mind. And once again, the treaty explicitly states (in Article 4) that any national security exceptions cannot involve discrimination solely on the grounds of sex.

As many activists note, it is hard to argue that restricting the freedom of movement of all adult men, or even all men and women, is strictly necessary when Ukraine enjoys a strong and well-trained volunteer force and has had to turn back legions of foreign fighters willing to volunteer. As one activist petition reads: “more than 625,000 individuals [have] expressed their willingness to defend the country. Most of these people have did lots of training, know how to handle weapons, learned tactics & communications and have adequate levels of physical and mental preparedness. We believe that properly trained & motivated people should fight.”

University of Münster doctoral candidate Pia Lotta Storf points out that both civilian men and women as yet unconscripted into the armed forces remain civilians and as such should arguably retain all the mobility rights of other war-affected civilians under the International Covenant on Civil and Political Rights and related treaties, such as the Refugee Convention. If civilian protection organizations such as PAX, Human Rights Watch, the International Committee of the Red Cross, and the Center for Civilians in Conflict are looking for a specific request to bring to the Ukrainian government, perhaps this would be it: to allow freedom of movement and humanitarian access for all civilians, without discrimination on the basis of gender.

Zelensky’s eagerness to disavow the increasingly draconian step by his generals suggests perhaps that he is sensitive to the growing pressure over the human rights implications of the martial law. And there are practical reasons for Ukraine to reconsider this law as well. Already in June, an advisor to the head of the president’s office, Oleksiy Arestovych, told the press that the government was considering relaxing the rules rather than escalating them further, in part because it recognized that the country simply did not have sufficient weapons to arm and train the men being held. Moreover, he argued, Kyiv realized that many men could provide more support to the economy and war effort by working and sending money home.

As things stand, the situation is increasingly desperate for Ukrainian families, paradoxically putting civilian men, women, and children in the line of fire. Recently, I heard from Valentina again. She had given up on bringing her husband and son to join her in Amsterdam and decided to make her way back to Ukraine with her newborn daughter instead. The same grassroots network of volunteers who had helped her travel from Ukraine to Amsterdam to give birth now found ourselves organizing a caravan to shuttle her east across the border, infant in arms, back into a war zone.

The last thing I head from her was a panicked text the morning of July 14 with news of another bombing, this time in Vinnytsia, a city in central Ukraine: “My God, I have no words … twenty people burned alive, three babies killed … sorry, I’m at emotions … I text you, because people at the world think war at Ukraine stop, but it’s not … when we have all the documents for Artem, we try to find shelter at other countries.”

Favorite