U.S. Deserter’s Refugee Claim—A Threshold Set Too Low

A threshold set too low

The Globe and Mail
July 7, 2008

Letting U.S. army deserters make refugee claims in Canada because they object to counterinsurgency tactics in Iraq sets the bar too low. Nothing in the precedents cited by the Federal Court of Canada on Friday remotely resembles the case brought by Joshua Key of the United States. There is a reason for that: A soldier ordered to roust people from their homes is not one of the world's persecuted. Also, refugees are those with no recourse to a fair hearing inside their own country. Mr. Key lives in a democracy, and he appears to have run from the U.S. without pleading his case first.

To be clear, Mr. Justice Robert Barnes did not grant Mr. Key refugee status. But he did seem willing to bend over backward to give him a second chance to make his claim.

It is hard to see how Joshua Key deserves refugee status. After enlisting in the U.S. Army in 2002, he took part in nighttime raids on Iraqi homes looking for weapons. Objecting to these raids as a violation of human rights, he deserted while on temporary leave in the U.S., came to Canada and claimed refugee status in 2005. The Immigration and Refugee Board ruled, reasonably, that he was not persecuted, because the acts in which he was required to participate fell short of war crimes or crimes against humanity. Judge Barnes found that too high a bar. He would lower it to include military action that systematically degrades, abuses or humiliates combatants or civilians, an elastic phrase that some might try to stretch to reach counterinsurgency tactics used by Canadians, too.

“None of them was pleasant,” the Immigration and Refugee Board wrote of the scores of raids that Mr. Key was part of. “In the blackness of night, doors blown in, homes ransacked, personal effects looted, residents violently roused from their beds and forced outdoors by heavily armed and uniformed soldiers hollering in a foreign language, Muslim women shamed by their exposed bodies, boys too tall for their age, and men cuffed and hauled away for interrogation in their nightclothes, regardless of weather conditions, never, at least as far as Mr. Key could ascertain, to return.” Tough stuff. Unpleasant, as the IRB put it. But hardly persecution.

The bar had been far higher. In a previous case cited by Judge Barnes, an Iranian man was granted refugee status after deserting his country's military when he learned of the intention to use chemical warfare against the Kurdish people. Judge Barnes said the threshold is arrived at with acts “contrary to basic rules of human conduct,” acts that meant a reasonable person “would not be able to wash his hands of guilt.” The cases he cited tend to define violations as including genocide, deliberate killing of civilians, taking civilians hostage, rape, torture, and execution and ill-treatment of prisoners. Those cases suggest a threshold Mr. Key doesn't meet.

Before Mr. Key sought refugee status in Canada, he had an obligation to exhaust legal channels in the United States; roughly 94 per cent of deserters receive a less than honourable discharge, and are not jailed. He went to a legal official in the military who told him that if he did not present himself for duty within two weeks, he would be imprisoned. He then fled to Canada. But when the IRB heard his refugee claim, it did not consider whether he had fully tested his legal options in the U.S. Judge Barnes would give him the chance to do so; he added that even if Mr. Key did not bother to press his case in the U.S., he might still win his refugee claim by showing that he did not have a realistic chance in the U.S. system.

To be a refugee is to be stateless, and on the run from oppressive cruelty. Mr. Key appears to have been neither, when he came to Canada.