Note: This is from C.I.'s "And the war drags on" that will post later tonight.
The Canadian Press notes the finding of Judge Robert Barnes of Canada's Federal Court, issued Friday, which found that, contrary to the Immigration and Refugee 'Board''s opinion, "Officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection." ["Board" because the full committee does not hear the claims or the appeals, one person does.] The individual's case under review was Joshua Key who stated, "It's quite a statement." Earlier Canada's Supreme Court refused to hear the appeals of Jeremy Hinzman and Brandon Hughey who were the first US war resisters to go to Canada this decade and attempt to receive refugee status. In refusing to hear their appeals, the Court allowed the lower courtss findings to stand. Key was among those cases of appeal winding their way through the Canadian court system following the Immigration and Refugee 'Board' turning down his claim for asylum. Judge Barnes' decision does not reverse the finding of the 'Board,' it merely requires that it re-examine the decision (and the 'board' has ten days to appeal to decision).
The War Resisters Support Campaign has issued a press release and appear to have left out a word or too when offering Jeffry House's legal summary of the judge's opinion: "summarized the decision saying that the court found that Key was required to systematically violate the Geneva Conventions as part of his military service in Iraq and that he was justified in doing so." Something's missing before "and that he was justified in doing so." Judge Barnes did not find that anyone was justified in violating the Geneva Conventions. A better take would be House "summarized the decision saying that the court found that Key was required to systematically violate the Geneva Conventions as part of his military servince in Iraq and that was justified in REFUSING to do so." Without "refusing" in there, the summary makes no sense and does not reflect either Judge Barnes' legal opinion issued Friday or what he can legally do.
Barnes' opinion rests on recognized, acceptable legal human behaviors, it does not reject Geneva, it does note that Geneva Conventions but it also notes other standards (and states the standards the "Board" used were "too restrictive"). He did not find that someone "was justified" in violating Geneva. He did find that someone could be justified in refusing any action that was "contrary to the basic rules of norms of human conduct."
Barnes found that the "Board" had issued a decision which stated that there were "violations of the Geneva Convention prohibition against humilitary and degrading treatment".From Barnes' decision, "The authorities indicate that military action which systematically degrades, abuses or humiliates eitehr combatants or non-combatants is capable of supporting a refugee claim where that is proven reason for refusing to serve." The decision does cite Hinzman's case (Hinzman v. Canada, 2006) as well as the Immigration and Refugee Board's findings on Jeremy's claim:
It is apparent to me that the Board in Hinzman did not have before it the kind of evidence that was presented by Mr. Key and, therefore, neither the Board nor Justice [Anne] Mactavish were required in that case to determine the precise limits of protection afforded by Article 171 of the UNHCR Handbook. I do not consider Justice Mactavish's remarks to be determative of the issue presented by this case -- that is, whether refugee protection is available for persons like Mr. Key who would be expected to participate in widespread and arguably officially sanctioned breaches of humanitarian law which do not constitute war crimes or crimes against humanity.
Judge Barnes points out that if Key had returned the US military any review (by the US military) would have been unlikely ("may not have been realistic") because he would have been deployed back to Iraq.
From the decision: "In November, 2003, Mr. Key returned to the United States on a 2-week furlough. He was then suffering from debilitating nightmares. Instead of reporting back to his unit, Pte. Key anonymously sought legal advice from a Judge Advocate General (JAG) representative who apparently told him to return to duty in Iraq or face imprisonment. Pte. Key elected to desert and he and his family relocated to Philadelphia. On March 8, 2005, the family came to Canada and they initiated their claims for refugee protection three days later."
The justice further found, "The idea that a refugee claimant in such circumstances ought to be returned to his home country to face such a dilemma is repugnant and inimical to the futherance of humanitarian law."Barnes notes that the "Board" found Key credible and "truthful" but also found his objection to the Iraq War was not "religiously motivated. Rather what Mr. Key objected to were the systematic violations of human rights that resulted from the conduct of the United States Army in Iraq and the requirement that he participate. The Board summarized Mr. Key's evidence concerning these events and compared his experiences to the observations of the International Committee of the Red Cross (ICRC) detailed in its report from 2003. It is apparent that the Board found Mr. Key's experiences to be consistent with the ICRC findings".
Judge Barnes wrote that an error was made by the 'Board' when they found "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."
Again, there's at least one word missing in the War Resisters Support Campaign's press release when they summarize Jeffry House's summary of Judge Barnes' decision. PDF format warning, the decicision can be found online here (23 pages).
UPI notes, "The Friday ruling may pave the way for other American deserters who try to claim refugee status in Canada, The Globe and Mail in Toronto reported." Tu Thanh Ha (Globe and Mail) points out, "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." Brett Clarkson (Toronto Sun) observes, "It's also the first time a court in Canada has sided with the deserters' movement, which has won both the support of Parliament and a majority of Canadians, according to various recent polls, but has been rebuffed by the Immigration and Refugee Board and Harper government." R. Robertson (Indybay Media) covers the decision here. Joe Schneider (Bloomberg News) covers it here, CBC covers it here, BBC here and AP here.