Conscientious objectors from the U.S. military have run into many obstacles in seeking refugee status in Canada. Many including individuals such as Robin Long have been denied refugee status and have already been deported to the U.S. Long sought refugee status in U.S. as he had heard about war crimes being committed in Iraq and was fearful that if he served in the army, he would become a participant to these war crimes. Some of these stories that Long heard included soldiers bragging about their "first kills" and showing pictures of people they shot or ran over with tanks in Iraq. Long, like all military refugees from the U.S. feared return to his native country as he felt that his desertion from the army would result in him being denied justice by the U.S. military authorities. Other’s in Long’s situation have similarly faced hurtles with the Canadian immigration system. The Supreme Court of Canada has also refused to hear a former U.S. soldier’s case which was based on the Iraq War violating international law and being a "supreme crime of aggression."
One can just guess at the flawed legal principles that the Immigration and Refugee Board in Canada relies on when coming to their conclusions in these cases. By contrast, the courts in the U.S., which perpetrated this "supreme crime of aggression" against Iraq, have a more straight forward approach on individuals seeking refuge in the U.S. based on their failure to serve in the military of their home country. In Ramos-Vasquez v. INS, the U.S. Court of Appeals for the 9th Circuit, the highest appellate court in the west coast region of the U.S., stated that "If a soldier deserts in order to avoid participating in acts condemned by the international community as contrary to the basic rules of human conduct, and is reasonably likely to face persecution should he return to his native country, his dissertation may be said to constitute grounds for asylum based on political opinion." 57 F.3d 857, 864 (9th Cir. 1995). The court further stated that conscientious objection to military service is a valid relief from deportation where service in the military would result in inhuman conduct to others. Similarly, in Nuru v. Gonzales, the court ruled that persecution based on an opposition to the war between Eritrea and Sudan can constitute a valid claim for asylum. 404 F.3d 1207, 1219 (9th Cir. 2005). The court in coming to its conclusion stated that "Warfare still continues to produce cruel, inhuman, and degrading acts of torture sanctioned or tolerated by government officials and committed even in lands that consider themselves civilized." Similarly, the court said in another decision that conscientious objector status is not limited to those who "refuse to be conscripted into the military because of dictates of conscience," but extended "to include those who, after submitting to mandatory conscription, are placed in a position that requires them to betray their conscience by engaging in inhuman conduct and refuse to engage in such conduct" as defined by the UN. Barraza Rivera v. INS, 913 F.2d 1443, 1451 (9th Cir. 1990).[i]
One can ponder why the courts in Canada would be more conservative in their legal reasoning than those in the U.S., the country that illegally invaded Iraq and produced the soldier refugees. Many commentators have pointed at the election of the conservative government in Canada since 2006 and their eagerness to support U.S. foreign policy. Others have stated that the Canadian courts do not believe that the military deserters will face persecution or cruel and unusual punishment in a democracy like the U.S. However, while most U.S. military deserters have generally spent three months or less in jail in the U.S., they could possibly get the death penalty according to army regulations, as the war is ongoing. Long has received the maximum possible sentence of 15 months of confinement and a dishonorable discharge for his desertion from the military. Matt Lowell, another U.S. conscientious objector has stated that he had already suffered severe abuse by military officials after he publicly voiced his opposition to the war in Iraq. This abuse included being punched and kicked by officers daily, being deprived of sleep every night, having officers shout profanities at him constantly and being subjected to an unofficial punishment called "smoking" during which he was forced to repeat strenuous exercise until overcome by physical exhaustion – sometimes experiencing muscle failure and vomiting.
According to the legal standards of asylum in U.S. courts, such prolonged imprisonment due to political opinion along with mistreatment by officials can constitute persecution for asylum purposes. Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004). The 9th Circuit Court of Appeals stated in Tagaga v. INS, that a former military officer who fears a court martial or a trial for treason and subsequent imprisonment in his home country has met the standard for future persecution for asylum purposes. 228 F.3d 1030, 1034 (9th Cir. 2000).
It is likely that the real reason the Canadian courts take a more conservative stance with U.S. military refugees are because they are scared to tackle U.S. foreign policy head on. This has been true of other countries like Germany and Iceland which have declined to prosecute U.S. statesmen responsible for war crimes in Iraq. While the populations in all of these countries overwhelmingly are against U.S. crimes of aggressions, the institutions of those nation states do not want to find themselves in the awkward position of giving a remedial mandate to the most powerful nation in the world. Most of these nation states recall the U.S.’ reaction to the World Court’s decision on Nicaragua finding them responsible for aggressive acts and ordering them to pay reparations. The U.S. responded to the world court decision by waging a propaganda campaign against the court and the entire UN system. The U.S. again replicated this behavior after the world court ruled against Israel in 2004. Many judicial systems want to avoid the same fate for the nation states where they operate in. For similar reasons, U.S. Federal courts have declined to take any adverse decision on issues involving U.S. foreign policy, especially as the U.S has continued to mock the UN system.
Despite this conservatism on the part of these judicial systems, public pressure must continue to be placed on these institutions and governments to hold the U.S. responsible for their aggressive acts. Pressure must also be put on judicial systems in countries like Canada to uphold the principles of asylum law and expose any double standard that may exist in the area. In a promising sign, the federal Courts in Canada have kept in line with popular public pressure and granted stays of deportation to several individuals while they review the denial of their refugee claims by the Immigration and Refugee Board.
Nikhil Shah is an Immigration Attorney in Los Angeles and a board member of the Los Angeles National Lawyers Guild.
[i] The 9th Circuit Court of Appeals tends to be more liberal in its interpretation of immigration law than other circuits. However, litigating international law issues (as they pertain to immigration law) in the circuit court has continued to be an uphill battle.
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