U.S. deserter wins appeal in fight for refugee status
TU THANH HA
July 5, 2008
The Immigration and Refugee Board was wrong when it decided that an American deserter couldn't claim refugee status in Canada because the military transgressions he was evading weren't severe enough to be war crimes or crimes against humanity, the Federal Court ruled yesterday.
The judgment lowers one of the bars that the recent wave of American deserters need to clear when they seek asylum in Canada.
It said that dodging orders that are "contrary to the basic rules or norms of human conduct" is enough grounds to apply for refugee protection.
"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," wrote Mr. Justice Robert Barnes, who is also a court-martial appellate judge.
However, the ruling didn't address another legal hurdle faced by American deserters: proving that they'll face undue hardship if sent back to the United States.
Instead, Judge Barnes ordered the IRB to re-examine the application of Joshua Key, a former private who deserted in 2003 while on a two-week leave from his unit in Iraq.
"Mr. Key did not have the opportunity to present a meaningful case on that issue [of military punishment]," Judge Barnes wrote.
The ruling is one of the first in favour of U.S. soldiers who fled to Canada, following the failure last year of deserters Jeremy Hinzman and Brandon Hughey to persuade Canadian courts that they would be unfairly treated if they are court-martialed in the United States.
"While the Hinzman decision has certainly set the bar very high for deserters from the United States military," Judge Barnes wrote, it would still be possible for a deserter to prove he had tried all avenues to evade overseas duty or unfair punishment in the United States.
Having deserted while he was on furlough, "Private Key would have been deployed back to Iraq within two weeks of his arrival in the United States, the opportunity to pursue a release or re-assignment may not have been realistic," Judge Barnes wrote.
Mr. Key had told the IRB that while in Iraq with a unit of combat engineers, he took part in at least 70 raids on civilian homes. The IRB found that the actions Mr. Key witnessed had "a disturbing level of brutality" but weren't war crimes involving deportation, slave labour or civilian hostage-taking, or crimes against humanity, with systematic use of torture and murder against civilians.
"In my view, the Board erred in ... 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," Judge Barnes wrote in yesterday's ruling.
Mr. Key, who is living in Saskatchewan with his wife and their four children, was happy with the decision. "He thought it was a good Fourth of July present to him," said his lawyer, Jeffry House.
Mr. House said yesterday's ruling would apply to deserters who had already seen service in Iraq, not those who deserted before they were shipped overseas.
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