What does Canadian law expect foreign soldiers to do when they are ordered to participate in a conflict that they feel is morally or legally questionable?
If these soldiers participate in such conflicts and later try immigrate to, or even visit, Canada they may be deemed inadmissible if they are found to have committed an offence listed in our Crimes Against Humanity and War Crimes Act.
If they have participated in such a war and then run to Canada claiming a fear of persecution in their own country, our laws will deny them refugee protection if there are serious reasons for believing that they have committed or supported a war crime. Accordingly, it seems pretty clear that we expect soldiers to avoid such acts if they are ever to consider stepping foot on Canadian soil. So how will we receive draft dodgers and deserters in such circumstances? Will we protect them if they face persecution back home for their principled stand? Historically, the answer has been yes.
Canada’s Immigration and Refugee Board (IRB) has always treated the UN’s Handbook on Procedures and Criteria for Determining Refugee Status as a “highly persuasive authority” in deciding who deserves protection.
It states, at paragraph 171, that where 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 itself be regarded as persecution.”
Jeremy Hinzman and Brandon Hughey were amongst hundreds of American soldiers who fled to Canada to avoid participating in the invasion of Iraq. They argued that since the war was not sanctioned by the UN, was possibly illegal, and was subsequently condemned by the international community, any punishment they might receive would constitute, by definition, “persecution.”
At his refugee hearing, Hinzman tried to lead evidence proving that the war in Iraq was illegal. In a pre-hearing process, the board prevented him from doing so, thereby completely gutting his, and subsequently Hughey’s, case.
When Hinzman appealed to the Federal Court Trial Division, Madam Justice Mactavish found no error in this ruling and stated that “the question of whether the American-led military intervention in Iraq is in fact illegal is not before the Court, and no finding has been made in this regard.” In certifying a question upon which Hinzman could appeal her verdict, she asked “whether a given conflict may be unlawful in international law (is) relevant to the determination which must be made by the (IRB) under paragraph 171 of the UNHCR Handbook”.
Last Monday, the Federal Court of Appeal thwarted Hinzman’s and Hughey’s quest to get an answer to this central question.
Justices Decary, Sexton and Evans ruled that “several protective mechanisms are potentially available to the appellants in the United States” and “for the foregoing reasons, (we) would refrain from answering the certified question.”
Our courts’ refusal to answer this important question leaves foreign soldiers with little guidance when they ask themselves “What is the right thing to do?”
Guidy Mamann practises law in Toronto at Mamann & Associates and is certified by the Ontario Law Society as an immigration specialist. Reach him confidentially at 416-862-0000 or at metro@migrationlaw.com
