Saturday, July 05, 2008

In which the Federal Court surprises me...pleasantly!...with new US deserter decision

U.S. deserter could qualify as refugee: court (CBC)

Joshua Key is one of multiple US military deserters who have come to Canada. Several of them have unsuccessfully claimed refugee status.

I'm of two minds about these cases. On the one hand, I think we regularly deny/deport more deserving claimants. These people just don't rank extremely high on my righteous-indignationometre. On the other hand, the Refugee Board and the courts have refused to consider key legal issues in the cases, such as whether the war in Iraq is illegal and therefore being forced to participate in it would constitute persecution. Instead, these central issues have been brushed off as irrelevant and outside the jurisdiction of refugee law, which I find hypocritical. Under international law, participants in illegal military actions could be prosecuted for participation. Logic suggests that if we would prosecute someone for doing something, then we should not condone his government for forcing him to do that same thing.

Of course, logic and international law...even "law" and international law...are often at odds.

The gist of the ruling:

[Federal Court Justice Robert] Barnes said the board erred “by concluding that refugee protection for military deserters and evaders is only available where the conduct objected to amounts to a war crime, a crime against peace or a crime against humanity."

Citing a case from the U.S. Federal Court of Appeal, Barnes said officially condoned military misconduct could still support a refugee claim, even if it falls short of a war crime.

"The authorities indicate that military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve," Barnes wrote.

Barnes said the board imposed a legal standard that was "too restrictive" on Key, who lives in Saskatchewan.

While I would not be surprised to see this appealed and superior courts to cop out, I am delighted to see this decision conforming with the internationally agreed-upon rules and standards we claim to live by in Canada.

Also via CBC, some of the others:

Also interesting: the House of Commons--yes, that's right, the organ of representative democracy in this country--passed a motion to allow the deserters to remain in Canada. However, it was a non-binding motion, and the government kiboshed it. See this? This is my shocked face.

3 comments:

Amaury said...

"I'm of two minds about these cases. On the one hand, I think we regularly deny/deport more deserving claimants. These people just don't rank extremely high on my righteous-indignationometre. On the other hand, the Refugee Board and the courts have refused to consider key legal issues in the cases, such as whether the war in Iraq is illegal and therefore being forced to participate in it would constitute persecution. Instead, these central issues have been brushed off as irrelevant and outside the jurisdiction of refugee law, which I find hypocritical. Under international law, participants in illegal military actions could be prosecuted for participation. Logic suggests that if we would prosecute someone for doing something, then we should not condone his government for forcing him to do that same thing.

Of course, logic and international law...even "law" and international law...are often at odds".--- totally agree.

Anonymous said...

Interesting post! I have a question though. And I'm not a law student (just wait a year!) and I don't have much knowledge in this area, so please bear with me!

In Joshua Key's own book (The Deserter's Tale), he admits to participating in what he calls war crimes. Whether Canada recognizes them as such, I'm not sure. But I've seen refugee cases where government employees and police officers (from countries with history of human rights abuses) have been denied for suspicion of having committed crimes against humanity. Wouldn't this same issue apply to Key's refugee claim (and other deserters)?

Sarah L Boyd said...

@anonymous:
I'll admit that I haven't had a chance to read Key's book yet, but you are correct, people are excluded from refugee protection for participating in war crimes. It is part of article 1, paras. E and F of the Refugee Convention, and is entrenched in Canadian refugee law.

From the cases I've read however, the actions of the men in Canada don't clearly cross over into the war-crimes area--for instance, ordering an attack on what you know to be a civilian target is clearly a war crime, but carrying out the attack when you don't know until it's too late does not.

At the same time, the deserters are basically asking Canada's help to protect them from being forced to commit further crimes. From a policy standpoint, you want people in any army to know that they can leave that situation and find asylum, rather than commit crimes or further crimes. Otherwise, if there is nowhere for them to go, then they will feel they have no choice but to stay with the country ordering them to commit the crimes. Granted, Canada does sometimes deport or refuse refugee claimants on flimsy evidence of participation, as a way of getting rid of political hot potatoes. But we also accept people who have, for instance, stood by and watched war crimes continue, provided they didn't command, or fully participate, and that they got out as soon as they could. I think anyone in the military runs the risk of being caught in that type of situation, and not being able to do anything about it at the time, and only being able to flee after the fact.