During the Iraq War, which began with the 2003 invasion of Iraq, there were United States military personnel who refused to participate, or continue to participate, in that specific war. Their refusal meant that they faced the possibility of punishment in the United States according to Article 85 of the US Uniform Code of Military Justice. For that reason some of them chose to go to Canada as a place of refuge. The choice of these US Iraq war resisters to go to Canada has led to considerable debate in Canada's society, press, legal arenas, and political arenas. Much of the debate on this issue has been due to the controversial nature of the Iraq War itself. Among the many elements of that debate are Canada's relationship to the Iraq war, and Canada's relationship to the US, its largest trading partner.
The debate has occurred in both the US and Canada. Debate in the US occurred in 2004 when on the Fox News network, the cultural critic and political commentator Bill O'Reilly was so confounded by the fact that the Canadian government, a close ally that was intimately familiar with the UCMJ's policies and procedure for dealing with desertion, yet never found it draconian, or thought to criticize it until the high profile PVT Hinzman and PVT Hughey appear, like some 21st Century political folk heros. O'Reilly perceived the affair as a patronizing insult, leading him to respond by calling for a boycott of Canadian goods if the pair [were] not extradited quickly."[1] Debate in Canada occurred on June 3, 2008 and March 30, 2009, when two motions were passed in the Parliament of Canada in support of the war resisters' efforts to stay in Canada. An Angus Reid Strategies poll taken on June 6 and 7, 2008, showed that 64% of Canadians agreed with that motion.[2][3][4] (The motions' recommendation was non-binding and, after years, was never implemented by the minority Conservative government.) In Sept. 2009, a private member's bill was introduced in Canada's Parliament in an attempt to give effect to those motions, but, in Sept. 2010, it failed to pass second reading.
Debate also occurred internationally. The significance of this issue on Canada's historical international reputation as a place of refuge for "Americans in trouble" is illustrated by this quote from United Kingdom's media, the BBC, when they reported on the precedent-setting case of Iraq war resister Jeremy Hinzman in 2004: "Americans in trouble have been running to Canada for centuries... in the wake of the American Revolution... [in the] Underground Railroad that spirited escaped American slaves to freedom... and in the 1960s, [when] as many as 60,000 young American men dodged the draft..."[1] After Canada deported several of these war resisters in 2008 and 2009, and after they were imprisoned in the US, the US media Newsweek, among others, reported on this historical shift.[5][6]
As of July 2009, there were at least 29 public cases of U.S. war resisters in Canada, or who had been in Canada, plus some families. They live in Canada legally as refugee claimants awaiting legal decisions on their claims. When they first arrived in Canada, they mostly went to Toronto, Ontario; or Vancouver, British Columbia because that is where the majority of the organizing of the War Resisters Support Campaign takes place. An unknown number of US soldiers who have refused to participate in specifically the Iraq war, have come to Canada without going public, and have not applied for legal refugee status.
Some of the Iraq war resisters enlisted in the United States military before the Iraq War, and some enlisted after it began. Before their refusal to participate in that war, some had already initially participated, and some had not. Each had their own reasons for initially deciding to enlist and/or participate in that war. Nevertheless, it's not irrational to assume that the public relations preparations for 2003 invasion of Iraq, and media coverage of the Iraq War played a part in many of those initial decisions. Later, when these soldiers encountered differing views on the 2003 invasion of Iraq and issues of the legality of the Iraq War, they questioned the legitimacy of the 2003 invasion of Iraq. Some of them then became disillusioned with all war, whereas others became "selective conscientious objectors".
Then, at various points in their lives, they became aware of the likelihood of punishment for a refusal to participate in the Iraq War. The September 6, 2003 conviction, and concomitant imprisonment, of Iraq war resister Stephen Funk, and other subsequent imprisonments, provided evidence that punishment was a very real possibility.
Eventually, many Iraq War resisters became aware of the history of draft dodgers being allowed into Canada without prosecution during the Vietnam War (1959–1975). In that era, most of those draft dodgers had simply applied for landed immigrant status once in Canada, which opposed its southern neighbour's military adventures in Vietnam. But immigration rules have been tightened since the Vietnam era, making would-be migrants apply from their home countries. This has pushed war resisters into Canada's refugee system.[1][7]
Unlike draft dodgers who immigrated to Canada as an alternative to mandatory conscription, the Iraq war resisters came to Canada after having voluntarily enlisted. It should be noted that some of the Iraq war resisters faced the involuntary extension of their active duty service under a Stop-loss policy. In any case, there has been some debate about whether or not the voluntary/involuntary enlistment factor even makes a difference in a decision to deport them to face likely punishment in the US.[3][8] The more important factor, according to the two Parliamentary motions which were passed, was whether or not the individuals "have refused or left military service related to a war not sanctioned by the United Nations..."[9][10][11] Those priorities of Parliament have basis in international law: For example, Paragraph 171 of The Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees mentions both draft evasion and desertion in this quote (See full paragraph below):
“Where... the type of military action... is condemned by the international community ... [then] punishment for desertion or draft-evasion could, ... be regarded as persecution.” [12]
The soldiers who have chosen to come to Canada have been referred to using various terms: "deserter", "conscientious objector", "war resister", or "refugee". The decision to choose one of these terms above another is often an indication of one's position on the issue. This has led to discussions concerning general semantics, and discussions concerning specific terminology.
In discussions of specific terminology, it is helpful to point out the distinction between Legal English and Standard English.
Before coming to Canada, some of these soldiers went through an extensive application process to attempt to gain legal status as "conscientious objector" within their own country, the US. For example, in the case of Jeremy Hinzman, Amnesty International notes that "he took reasonable steps to register his conscientious objection through seeking non-combatant status in [August] 2002, an application which was rejected [April 2003]."[13] This means that he tried for eight months, unsuccessfully, to be officially and legally referred to as a "conscientious objector" instead of legally referred to as a "deserter".
In any case, legally speaking, he is not a deserter until he has been convicted of desertion. This is true because in the U.S., an accused is innocent until proven guilty. This also applies to all of those who left the military.
Jeremy Hinzman then came to Canada to apply for legal "refugee status" under Canadian law. But until Jeremy Hinzman gains legal status as a refugee, he cannot be legally referred to as a "refugee".
The two countries involved in this situation, the United States and Canada, may have differing legal definitions of the term "deserter". In that case, the country of citizenship of the individual soldier, not the present residence of the soldier, will determine the legal status and the legal term used to refer to that individual. But again, legally speaking, an individual is not a "deserter" until he or she has been convicted of "desertion".
All of this illustrates that the war resisters are in a legal limbo as far as legal terminology is concerned: Legally speaking, they are not yet conscientious objectors, are not yet deserters, and are not yet refugees.
In international law, specifically the Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR), there is discussion of "refugee status after desertion" as being legitimate under international law.
The federal law-making body of Canada is the Parliament of Canada. The term "war resister" is used in the official documents of the Parliament of Canada.[9] That is the rationale for using it as a default in this article. Even though Wikipedia is internationally used, the highest official level of debate about this issue occurred in the Parliament of Canada.
The common usage of the verb "desert" means "to leave one's duty or post"[16] "Leaving one's post" implies that the soldiers who did not want to participate in the Iraq War actually left the battleground in Iraq. In actual fact, of all the thousands of "desertions" from that war between 2003 and 2006, there was only one reported case of a desertion within Iraq itself.[14]
The press has not been consistent in the terms they use to refer to the Iraq war resisters in Canada: Sometimes the press uses the term "deserter,"[15] and sometimes "war resister."[4][16][17][18][19] Because of this inconsistency, the press cannot be used as an arbiter.
Pursuant to the Treaty between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, US authorities can request Canadian authorities to identify, locate, and take into custody US nationals who have committed a crime that carries a possible sentence of more than a year,[20] and subsequently extradite the target back to the US, as per the Extradition Treaty Between the United States of America and Canada. [21] However, the US government must promise that those extradited will not receive the death penalty, in accordance with the Supreme Court of Canada ruling in United States v. Burns. Thus, deserters who may have had an arrest warrant issued against them in the US are liable for arrest in Canada, unless they legalise their status.
Under Canadian law, status can be legalized by pursuing a refugee claim, which the Immigration and Refugee Board of Canada (IRB) will consider. If the claim is refused, the claimant can appeal the decision in the Federal Court, the Federal Court of Appeal, and finally, the Supreme Court of Canada, if leave is granted. If, however, appeals do not overturn the decision of the IRB, and if there is a removal order, the claimant must leave Canada within 30 days.[22] If this is not done, or departure details are not confirmed with the Canada Border Services Agency, a deportation order is issued, enforceable by any officer of the Queen's peace in Canada.[23]
On the other hand, if the refugee claim is granted, the individual or family is permitted to remain in Canada, eventually moving on to Permanent Resident status and, if the person wishes, to Canadian citizenship.
In 1948, the issue of the right to “conscience” was dealt with by the United Nations General Assembly in Article 18 of the Universal Declaration of Human Rights. It reads: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
Since that 1948 Declaration, the more specific issue of conscientious objection has developed within United Nations international law.
On July 30, 1993, explicit clarification of the International Covenant on Civil and Political Rights Article 18 was made in the United Nations Human Rights Committee general comment 22, Para. 11: “The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief.”[24]
The international definition of conscientious objection officially broadened on March 8, 1995 when the UN Commission on Human Rights resolution 1995/83 stated that "persons performing military service should not be excluded from the right to have conscientious objections to military service."[25] That definition was re-affirmed in 1998, when the United Nations Office of the High Commissioner for Human Rights document called “Conscientious objection to military service, United Nations Commission on Human Rights resolution 1998/77” officially recognized that “persons [already] performing military service may develop conscientious objections.”[26][27][28][29]
In 1998, the Human Rights Commission reiterates previous statements and added “states should... refrain from subjecting conscientious objectors... to repeated punishment for failure to perform military service.” [30] It also encouraged states “to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service....”[29][31]
The Nuremberg Principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to recognize the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.
Nuremberg Principle IV states: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
The Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR) states:
“171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.” [32]
The case of Iraq war resisters clearly became more than a legal issue when Canadian government lawyers entered the situation and presented arguments to the Immigration and Refugee Board adjudicator just prior to the precedent-setting hearing of Iraq war resister Jeremy Hinzman in November, 2004.[33][34] "Government lawyers argued at Hinzman's immigration hearing that the entire question of the war's legality was "irrelevant".... The federal immigration officer adjudicating the case [(Brian P. Goodman)] agreed. He ruled [November 12, 2004] that Hinzman may not use the legal basis of the Iraq war to justify his ... claim."[33] [35] The claim for refugee status was ultimately rejected (March 16, 2005).[36]
Reporting on this decision, the BBC stated that the ruling "did not come as a surprise... [Canadian] officials are aware that accusing Washington of persecuting its own citizens would cause an international diplomatic incident".[36] The government at the time was the Liberal Party of Canada led by Prime Minister Paul Martin; and the lawyer representing that government's Minister of Citizenship and Immigration, Judy Sgro, was Janet Chisholm.[37]
During that government's Parliamentary session, which ended November 29, 2005, the issue would also officially become part of Parliament business: On June 21, 2005, New Democratic Party Member of Parliament Bill Siksay presented to Parliament a petition of 15,000 signatures urging the Liberal government to allow Iraq war resisters to remain in Canada.[38][39] This petition had been organized by the community-based War Resisters Support Campaign.
Jeremy Hinzman, "the first American Iraq war resister to seek refugee status in Canada",[40] filed a refugee claim upon his arrival in Canada, in January, 2004.
Hinzman's first hearing was held from December 6 to December 8, 2004 at the Immigration and Refugee Board of Canada presided over by Brian P. Goodman.[34]
Hinzman's lawyer Jeffry House pointed out[41] a precedent set by federal court Judge Arthur Stone in 1995 who approved refugee status for a deserter from Iraq's 1990 invasion of Kuwait. Stone wrote, "There is a range of military activity which is simply never permissible in that it violates basic international standards. This includes ... non-defensive incursions into foreign territory."[41]
But before the hearing started, however, Goodman had already ruled that the evidence with respect to the legality of the US embarking on military action in Iraq could not be used as an admissible argument in Hinzman's hearing.[42] He did so after hearing government lawyers argue "that the entire question of the war's legality was "irrelevant." [33] The claim for refugee status was ultimately rejected.[36][43]
Justice Anne L. Mactavish presided over the Federal Court case of Hinzman v. Canada, and released her ruling on March 31, 2006 upholding the decision of the Immigration and Refugee Board.[44][45][46][47]
In her decision, Mactavish addressed the issue of personal responsibility as follows: "An individual must be involved at the policy-making level to be culpable for a crime against peace... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper."[44][48][6]
Alex Neve, who taught international human rights and refugee law at Osgoode Hall Law School, expressed concern that Mactavish's decision sets a precedent whereby "those at senior levels who have an objection to war may [seek refugee status], and those who deploy who have an objection may not. This runs contrary to other international law rulings." [44] One of those rulings is Nuremberg Principle IV, which reads, "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
"The main arguments advanced by Hinzman's lawyer, Jeffry House, [were] that the war in Iraq is against international law and that Hinzman ... would have been forced to participate in unlawful acts had he gone."[44]
On Nov 15, 2007, a Coram of the Supreme Court of Canada made of Justices Michel Bastarache, Rosalie Abella, and Louise Charron refused an application to have the Court hear the case on appeal, without giving reasons.[49] [50]
In an editorial for the Ottawa Citizen, Lawrence Hill accused the courts of a double standard concerning the 1995 decision where the Federal Court of Appeal granted refugee status to a deserter from Iraq.[51]
"In the wake of the Supreme Court's decision, NDP immigration critic Olivia Chow asked the federal standing committee on citizenship and immigration to vote in favour of allowing conscientious objectors who have refused or left American military service in Iraq to be allowed to stay in Canada." [51]
On December 6, 2007, after some amendments to Chow's original motion, the parliamentary Standing Committee on Citizenship and Immigration adopted a motion stating: That the committee recommend....
that the government immediately implement a program to allow conscientious objectors and their immediate family members (partners and dependents), who have refused or left military service related to a war not sanctioned by the United Nations and do not have a criminal record, to apply for permanent resident status and remain in Canada; and that the government should immediately cease any removal or deportation actions that may have already commenced against such individuals.[52]
On May 21, 2008, US Iraq war resister Corey Glass, who had applied for refugee status 22 months earlier, was ordered deported and told that he must leave the country voluntarily by June 12, 2008. "The rejection... was based on a failed pre-removal risk assessment by Citizenship and Immigration Canada, which found that, if removed from the country, Glass would not be at immediate risk of death, torture, or cruel or unusual treatment or punishment.... "This first rejection could be a chilling sign of things to come for at least nine other war resisters who have requested a pre-removal risk assessment, Zaslofsky said, and could shut the door to other war resisters' attempts to find a home in Canada."[53]
On June 3, 2008, the House of Commons passed the motion (137 to 110) which recommended that the government immediately implement a program which would “allow conscientious objectors…to a war not sanctioned by the United Nations…to…remain in Canada…” [9][10][11] All parties and all independent Members of Parliament supported the motion, except for Conservative MPs. [10][54][55][56]
The motion gained international attention from the New York Times [17], Britain's BBC [18] and the New Zealand press.[19] .[57][58][59]
However, the next day, the Toronto Star reported that "the motion is non-binding and the victory was bittersweet as the government is likely to ignore it. The motion – which passed 137-110 – comes about a week before 25-year-old Corey Glass is supposed to leave Canada voluntarily after the former national guardsman was rejected as a refugee and ordered out of the country." [60]
Angus Reid Strategies carried out a poll from June 6 to 7, 2008, which revealed that "64% [of Canadians polled] say they would agree to give these U.S. soldiers the opportunity to remain in Canada as permanent residents.....Quebec (70%) houses the highest proportion of respondents who agree with the motion, while Alberta (52%) has the fewest supporters." ("sample of 1,001 adult Canadians. The margin of error for the total sample is +/- 3.1 %, 19 times out of 20")[2] The poll was published on June 27, 2008.[3][4]
On July 4, 2008, Joshua Key won a Federal Court appeal thus forcing the Immigration and Refugee Board of Canada (IRB) to re-examine his claim for refugee status in Canada.[61][62][63][64] [20] This was "an unprecedented court ruling that could affect scores of other U.S. soldiers who have refused to fight in Iraq."[61]
On July 9, 2008 the Toronto Star reported that Corey Glass "is [now] permitted to remain in Canada until the Federal Court makes a decision on ... cases for judicial review."[21]
On July 15, 2008, after the Parliamentary recommendation had been in front of the minority Conservative government for a month and a half, Canada deported Iraq war resister Robin Long. This made him the first U.S. soldier to be deported from Canada to the United States.[65][66][67][68][69]
In July 2008, the Toronto Star quoted Bob Ages, chair of the Vancouver-based War Resisters Support Campaign who said that since the time of slavery, Canada has been known as a place of asylum, and Long's removal marks the first time an army deserter has been deported from Canada to the USA[65] The Globe and Mail also reported this quote from Ages: "Mr. Long's deportation would be a... precedent for Canada, especially given our history of providing sanctuary for war resisters, over 100,000 draft dodgers and deserters during the Vietnam era."[70]
"… in 2003…. I was convinced by the lies of the Bush administration just like Congress and a majority of Americans…..But just because I joined the Army doesn't mean I abdicated my ability to evolve intellectually and morally…” [71]
— Robin Long (first US soldier to ever be deported from Canada[65]), in Long’s letter to then US President-elect Barack Obama, Nov 6, 2008 (written while in prison)
One day later, Daniel Sandate, another U.S. soldier, was also deported. Sandate had not applied for legal refugee status as had Long (see details).
On August 13, 2008, the Canada Border Services Agency ordered Jeremy Hinzman, along with his wife, son, and baby daughter, to leave the country by September 23, 2008.[22] In response to that order, "at a press conference … [Sept 18, 2008], Bob Rae, the Liberal Foreign Affairs Critic joined U.S. Iraq War resister Jeremy Hinzman to make an urgent appeal to the Conservative government to stop the imminent deportation of Hinzman and his family...." [72] "He [also] urged the government to support a motion passed earlier this year by all parties, except the Conservatives, to let [all eligible] conscientious objectors take up permanent residence."[16]
On September 22, 2008 Hinzman “and his family were granted a last-minute stay of deportation Monday by a Federal Court judge while the court decides whether to hear their appeal…."[15]
The day before Hinzman was to have been deported, "Immigration Minister, Diane Finley said ... the government would not intervene if the courts deny his... request [to remain in Canada].” [17] By the time she made this statement, it was public knowledge that the first deportee, Robin Long, had already been sentenced to fifteen months of imprisonment. He was sentenced Aug 22, 2008, a month before Diane Finley’s statement.[18]
Eleven days after Diane Finley's comments there was a nationally televised election debate in which the Conservative party leader Prime Minister Stephen Harper was pressed by Gilles Duceppe into answering a question about his position on the Iraq war: Harper said he erred in calling for Canada's participation in the 2003 U.S.-led invasion of Iraq. At the time, he was Opposition leader. "It was absolutely an error, it's obviously clear," said Harper, adding that the claim of weapons of mass destruction proved false." [73]
After the 40th Canadian Parliament began, the whole process of presenting the war resisters motion had to begin again in order for it to apply to the new Parliament. After coming close to forming a coalition government, Members of the opposition parties confirmed on January 21, 2009, that, if they were in power together in a coalition government, then the June 3, 2008 Parliamentary recommendation concerning war resisters would be implemented.[74]
On January 2, 2009, the Canadian Minister of Citizenship and Immigration, Jason Kenney, responding to a previous article in the Toronto Sun, wrote a public "Letter to the Editor," which included this statement: "Although the IRB will consider each asylum claim on a case-by-case basis, it's our position that, as a general rule, military deserters from the United States are not genuine refugees under the internationally-accepted meaning of the term."[75]
On January 9, 2009, the CBC, following the story, published this statement:
"In an open letter to [Minister of Immigration] Jason Kenney, Elizabeth McWeeny, president of the Canadians Council for Refugees, wrote that it was "highly inappropriate" for Kenney to express his opinions on how he believes board members should make refugee determinations. "To do so gives the strong appearance of political interference," she wrote. "Public comments such as yours only make IRB members’ job more difficult and threaten claimants’ right to an unbiased decision." In an email to CBCNews.ca on Friday [January 9, 2009], Alykhan Velshi, a spokesman for Kenney, repeated that the government doesn't believe these refugee claims are legitimate. "Although the Immigration and Refugee Board is an independent agency that will consider each asylum claim on a case-by-case basis, it's our position as a government that, as a general rule, military deserters from the United States are not genuine refugees under the internationally accepted meaning of the term," Velshi said."[19]
It is noteworthy that spokesperson Alykhan Velshi included the words: "as a government".
Several months later, at an Oct 19, 2009 press conference, US Iraq war resister Rodney Watson was asked the following question: “Jason Kenney, the Immigration Minister has said the government doesn’t believe the military deserters from the US are genuine refugees.…What do you say to that?” Watson replied, “Where’s the weapons of mass destruction? Is Iraq a real threat to the US?...”[76]
On January 23, 2009, Chris Teske was the first war resister to be forced out of Canada who had applied for legal refugee status and did not "fail to comply with bail conditions" as an earlier deportee Robin Long had.[77]
On February 4, 2009, Clifford Cornell was also forced out of Canada. He "was arrested on Wednesday after crossing the border from Canada into Washington State." [78] On February 23, 2009, Cornell was charged with the crime of desertion with the intent to "avoid hazardous duty and shirk important service"[79][80] On April 29, 2009, Clifford was convicted of desertion and sentenced to one year in prison."[81][82]
Cornell was the first deported Iraq war resister to be charged, convicted and sentenced by the United States Military while Barack Obama was its Commander in Chief. His sentence was later reduced to 11 months by the Fort Stewart post commander.[83][84]
On Feb 12, 2009, the Standing Committee on Citizenship and Immigration again passed a non-binding motion which recommended that the government let Iraq War resisters stay in Canada.[85] (With a new Parliament, another motion had to be introduced). A month and a half later, on March 30, 2009, the House of Commons again voted in a non-binding motion 129 to 125 in favour of the committee's recommendation.[4][86]
As of March 30, 2009, this Parliamentary recommendation was now once again in front of the government. Since that time the minority government has not acted on the Parliamentary recommendation. On June 27, 2009, the Vancouver Sun reported that "In more than 300 pages of department briefing notes, e-mails and other documents relating to the issue obtained by Canwest News Service under Access to Information legislation... there... is nothing in the documents that suggests the issue has spurred any debate within government ranks." [87][88]
What was found in those department briefing documents were "notes [that] say refugee hearing officers have been advised to be "particularly vigilant" about refugee claims from such western democracies as the United States.” [87][88] That emphasis on the criteria of "democracy" had also been apparent in Jason Kenney's comment in early January, 2009, when he said, "We're talking about people who volunteer to serve in the armed forces of a democratic country...."[19] That continued emphasis on "the criteria of democracy" appears to forget the July 4, 2008 Federal Court of Canada ruling on the Joshua Key case, which was covered by the Toronto Star in this quote:
"In turning down several similar asylum claims, the refugee board has consistently held that the United States is a democracy, which affords deserters due judicial process. However, the court said the board should hear evidence on whether deserters can rely on the American government to treat them fairly."[89][90]
On June 3, 2009, Joshua Key had a new hearing in front of the Immigration and Refugee Board.[91][92][93][94] Ken Atkinson,[92] the immigration board member who then heard Key's case on June 3, 2009, reserved his decision.[95] Lawrence Hill was present at this hearing,[92] while supporters held a vigil outside.[96] Key was represented by lawyer Alyssa Manning.
Joshua Key was the first war resister to be granted such a re-assessment in Canada's legal system. (It had been granted to him on July 4, 2008 by Federal Court Justice Robert Barnes.)
However, on July 30, 2010, Key was again denied refugee status in this second IRB ruling.
On June 27, 2009, "Immigration critics for the opposition. Liberals Maurizio Bevilacqua, NDP Olivia Chow and Bloc Québécois Thierry St-Cyr sent a joint letter to Kenney... asking him to halt all deportations and to respect the "will" of Parliament, which has approved two motions calling for permanent resident status for the war resisters."[87][88][97]
On September 17, 2009, Gerard Kennedy introduced the binding Bill C-440,[98] which, in his words, was “in response to the refusal of the Minister of Citizenship, Immigration and Multiculturalism, Jason Kenney to show Canadian sensibility.... It basically takes the spirit of two motions that have already been passed by a majority of Parliament and puts them in the form of law that would have to be followed by the minister and the ministry of immigration and citizenship.”[99] (See details.[98])
"Should someone be imprisoned for sharing the views of most Canadians on the Iraq War? That is the question being posed in part by my Bill C-440..."[100]
— Gerard Kennedy, Canadian Member of Parliament, August 18, 2010
The bill had its first hour of debate on May 25, 2010,[101][102][103][104] and its second hour on Sept 27, 2010.[7][105] On Sept 29, 2010, the bill failed to pass[106] at second reading, lacking seven votes (143-136).[107] At least thirteen opposition MPs (11 Liberal and 2 Bloc Québécois), who were present for a vote 30 minutes earlier on a different issue, were not present for the vote on Bill C-440.[108][109] CTV News reported that "[ Liberal party] leader Michael Ignatieff walked out during the vote," and was one of those not present.[106]
On July 22, 2010 the Conservative government issued an instructional bulletin, Operational Bulletin 202, to all Immigration and Refugee Board of Canada (IRB) officers. It was entitled "Instruction to Immigration Officers in Canada on processing cases involving military deserters."[110]
The Toronto Star reported that "critics say the directive’s timing was suspicious."[111] The Bulletin was issued between the first hour and second hour of debate on Bill C-440 (i.e. one month before the scheduled second reading Parliamentary vote in last week of Sept.).[111] One of the four paragraphs in its "Background" section is devoted specifically to deserters from the US military, stating US military law. No other country is specifically mentioned.
Another paragraph discusses those who "applied for permanent residence in Canada based on humanitarian and compassionate considerations.." The Bulletin was issued 16 days after the Canadian Federal Court of Appeal ordered officials to review Jeremy Hinzman's application to remain in Canada on exactly those legal considerations.
Chiding the Conservative Party for politicizing the immigration department, opposition politicians called on Ottawa to withdraw the “prejudicial” directive.[104][111] Alyssa Manning, the lawyer representing several war resisters, said, "This directive could cause significant delay in the processing of war resister applications... [including] applications to remain in Canada based on humanitarian grounds"[111]
In October, 2010, Peter Showler, a law professor at the University of Ottawa and a former chairman of the Immigration and Refugee Board of Canada for three years, said the policy "smacks of government interference." Amnesty International Canada urged Jason Kenney, minister of citizenship, immigration and multiculturalism, to withdraw Bulletin 202.[112]
Legally different and distinct from a "refugee claim," is an application to stay in Canada on "Humanitarian and Compassionate Grounds" (H&C). War resister Jeremy Hinzman's case was the first to test this distinction:
This particular type of case was tested and brought all the way to the higher court, the Canadian Federal Court of Appeal: As an eyewitness to that May 25, 2010 higher court hearing,[102] journalist and blogger Laura Kaminker, described it in the following way (Note: A "Pre-Removal Risk Assessment" is related to a refugee claim, but not to an H&C):
"Much of the submissions were analyses of the decisions in Jeremy's Pre-Removal Risk Assessment (PRRA) and his H&C. The standards for each application are very different. To give a positive decision in a PRRA, the PRRA Officer must find that, if deported, the applicant faces persecution. To find a positive decision in an H&C, the officer must find that the applicant faces undue hardship. Big difference."[113]
On July 6, 2010, the Canadian Federal Court of Appeal ruled unanimously that a Canadian immigration official failed to consider the "hardships" of Hinzman when she denied him permanent residence in Canada. The court said the official’s rejection of Hinzman’s permanent residence application was “significantly flawed” because the officer did not take into consideration Hinzman’s “strong moral and religious beliefs” against participation in war. That means officials must take another look at Hinzman's application to remain in Canada on humanitarian and compassionate grounds.[114]
Hinzman's lawyer, Alyssa Manning, said, "This officer missed the point and only considered refugee-type questions." Refugee cases typically only consider risk to life or risk of persecution. "An H&C [officer] is supposed to consider humanitarian and compassionate values — the questions inherent with a H&C application," Manning said. "Hinzman’s beliefs, his whole reasons for being in Canada in the first place, weren’t considered by the H&C officer, and that’s what was significantly flawed about [the officer’s] decision."[115]
Michelle Robidoux, a spokesperson with the War Resisters Support Campaign, said the appellate ruling is important for other war resisters in Canada as well[115] ([...certain qualified resisters]). (See full length court decision[116])
On April 5, 2011, in a similar situation, the Federal Court ruled in favor of Dean Walcott who was seeking a judicial review of his previous application to remain in Canada on humanitarian grounds. He can now reapply to remain in Canada.[117]
| War Resister | Country | Date Convicted | Convicted of | Sentence | Actual Prison Time |
|---|---|---|---|---|---|
| Stephen Funk | US | Sept. 6, 2003 | ”Unauthorized Absence” | 6 months | 6 months |
| Camilo Mejia | US | May 21, 2004 | ”Desertion” | 12 months | 9 months |
| Abdullah William Webster [23]
( Amnesty International “Prisoner of Conscience” [24]) |
US | June 3, 2004 | ”failing to obey commands from superior
and missing brigade’s movements” |
14 months | 11 months |
| Kevin Benderman | US | July 2005 | ”Missing Movement by Design,” “Desertion with Intent to Avoid Hazardous Duty” | 15 months | 13 months |
| Malcolm Kendall-Smith | UK | April 13, 2006 | ”Refusal to obey a legal order” | 8 months plus fine, etc. | 2 months plus other penalties |
| Agustin Aguayo
( Amnesty International "Prisoner of Conscience"[25]) |
US | March 6, 2007 | ”Desertion” | 7 months | |
| Ryan Jackson [26] | US | May 30, 2008 | ”Desertion” | 100 days | |
| ***James Burmeister [118]
(He voluntarily returned to the US without being given a deportation order.) |
US | July 16, 2008 | ”Desertion” | 9 months | 3 months and 10 days [27] |
| ***Robin Long [28]
(Applied for legal status, but was given a deportation order) |
US | Aug 22, 2008 | "Desertion with the intent to stay away permanently" | 15 months | 12 months[119] |
| Tony Anderson [29] | US | Nov 17, 2008 | "Desertion" | 14 months | |
| ***Daniel Sandate (imprisonment began July 16, 2008; ended January 20, 2009) [120][121][122][123][124][125]
(Did not apply for legal status; was deported) |
US | Nov 17, 2008 | "Desertion" | 8 months | 6 months |
| ***Clifford Cornell [81] [30]
(Applied for legal status, but was given a deportation order) |
US | April 29, 2009 | "Desertion" | one year, later reduced to 11 months[84][126] | 11 months (Released Jan 16, 2010)[126][127] |
"***" - Was in Canada as an Iraq war resister
List from these references:[128][129] and public information sourced from List of Resister Profiles at "Courage to Resist" website which gives evidence that these military personnel are refusing to participate in specifically the Iraq war.
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("IRB" is Immigration and Refugee Board of Canada)
”After carefully considering written submissions, I ruled on November 12, 2004, for the reasons set out in my Interlocutory Reasons of that date, that Mr. Hinzman's allegation that US military action in Iraq is illegal because it is not authorized by the United Nations (UN) Charter, or UN Resolution is not relevant to the question of whether it is “the type of military action” which “is condemned by the international community, as contrary to basic rules of human conduct,” within the meaning of paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status4 (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR). I ruled that, consequently, evidence with respect to the legality of the US embarking on military action in Iraq, would not be admitted into evidence at the hearing of these claims.” See paragraph 10 at this source: "Hinzman Decision, Full Text Decision". IMMIGRATION AND REFUGEE BOARD OF CANADA (Refugee Protection Division). March 16, 2005. http://www.irb-cisr.gc.ca/eng/tribunal/decisions/hinzman/Pages/hinzman.aspx. Retrieved 2009-03-21.
In his decision, Goodman referred to paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR) which states
“171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.” Source: Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees [1]
”After carefully considering written submissions, I ruled on November 12, 2004, for the reasons set out in my Interlocutory Reasons of that date, that Mr. Hinzman's allegation that US military action in Iraq is illegal because it is not authorized by the United Nations (UN) Charter, or UN Resolution is not relevant to the question of whether it is “the type of military action” which “is condemned by the international community, as contrary to basic rules of human conduct,” within the meaning of paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status4 (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR). I ruled that, consequently, evidence with respect to the legality of the US embarking on military action in Iraq, would not be admitted into evidence at the hearing of these claims.” See paragraph 10 at this source: "Hinzman Decision, Full Text Decision". IMMIGRATION AND REFUGEE BOARD OF CANADA (Refugee Protection Division). March 16, 2005. http://www.irb-cisr.gc.ca/eng/tribunal/decisions/hinzman/Pages/hinzman.aspx. Retrieved 2009-03-21.
In his decision, Goodman referred to paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR) which states
“171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.” Source: Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees [2]
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