Judicial Judgment of the Iraq War: United States Armed Forces Deserters and the Issue of Refugee Status
68 Pages Posted: 24 May 2009 Last revised: 28 May 2010
Date Written: May 23, 2009
As with any conflict, the Iraq war has seen a spike in the number of deserters from the United States military. Convenience and relative ease of access has made Canada an attractive destination for these individuals. Yet at least some of them are not content to simply reside in Canada under guise, and since 2004 a number of U.S. Army deserters have claimed refugee status under international and Canadian law. The instant article seeks to confront this issue: whether, on an objective reading of the relevant law, U.S. deserters from the Iraq war can qualify as refugees. After reviewing the international framework for refugee protection, including the UNHCR Handbook, and the relevant Canadian law, including the Immigration and Refugee Protection Act and the Federal Court’s decision in Zolfagharkhani, the individual cases of the deserters will be examined. These cases, except for those of Joshua Key and Corey Glass, have ended with disappointment for the deserters, who have so far been denied refugee status in Canada. The final section criticizes the Key and Glass decisions for incomplete and inaccurate reasoning, before independently judging the claims of the deserters under the principle of “state protection” and the language of paragraph 171 of the Handbook. It is the conclusion of this article that the deserters cannot establish any facts that would rebut the presumption of state protection, a failure that is dispositive of their claim. Nonetheless, I also conclude that they have failed to establish that the U.S. military conduct in Iraq falls within the purview of paragraph 171. That conduct, although it does include violations of human rights and humanitarian law, is not widespread or systematic, nor is it indicative of either an official policy of the United States or indifference of the military. Thus, these deserters are not deserving of refugee protection in Canada, even if a political solution to their dilemma might still be forthcoming.
Keywords: international law, Canadian law, immigration law, refugee and asylum law, comparative law, human rights law, humanitarian law
Suggested Citation: Suggested Citation