Academic journal article Refuge

Seen in Its True Light: Desertion as a Pure Political Crime

Academic journal article Refuge

Seen in Its True Light: Desertion as a Pure Political Crime

Article excerpt

Introduction

Soldiers play important roles in the defence of their nation. However, there are reasonable legal limitations to what they should be expected to do in the name of defending their country or in combatting an internal insurgency against the state. The legal limitations can be located in international conventional and customary law as well as domestic law. Throughout history, and despite the presence and development of these norms over the past century, many governments (including those elected in democratic states) have required their soldiers to engage in armed conflict that is not defensive (despite claims to the contrary). In many other situations, even where the lawfulness of the armed conflict itself may not be in question, governing authorities have ordered soldiers to commit acts that are unlawful and in violation of the laws of war. Just as soldiers play an important role in defending their nation, they also serve an important function as legal agents by deserting the military as a way of refusing to (further) engage in unlawful actions that violate international norms. In these particular circumstances, they may be viewed as temporary and context-dependent public office-holders at international law (1) stepping in to act where superiors, states, and/or the international community have failed to do so.

Nevertheless, desertion as a form of political resistance comes at a significant price to the principled military resister. Some will submit to the home state's punishment, while others will also legitimately seek asylum in other countries to avoid it. There is a logical reason why soldiers who desert in order to refuse participation in violations of international law seek protection from a third-party state. Deserting soldiers face prosecution and potentially severe punishment for their resistance. In some jurisdictions, this includes the possibility of a death sentence. (2) It is therefore a serious crime. (3) Are such individuals eligible for political asylum under international law? Indeed, soldiers who desert the military as an act of resistance to unlawful military actions and who then seek asylum in a third-party state to avoid prosecution as a form of persecution in their countries of nationality have been deemed eligible to obtain refugee status under the 1951 Convention Relating to the Status of Refugees (4) and/or the 1967 Protocol Relating to the Status of Refugees. (5) There is a fairly well-established jurisprudence confirming this. (6)

Not every foreign military resister has been able to obtain this protection in Canada, however. Soldiers from fellow democratic states who have sought refugee status in Canada, for example, have been largely unsuccessful. As I discuss in this article, this includes US soldiers who have deserted to avoid (further) participation in military operations in Iraq following the illegal invasion of the country in 2003. When military resisters seek refugee status to avoid prosecution and punishment, they must--like all other such asylumseekers--prove that they have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion. (7) Yet demonstrating a fear of prosecution for desertion may not be easily conducive to showing a well-founded fear of persecution. (8) It is contingent on the proof of certain elements. Asylumseekers must show, as part of a well-founded fear of persecution, that their country of nationality is unable to provide adequate protection. (9) In the case of US military resisters, many Canadian judges and adjudicators have determined that because the US military court system provides adequate protection through procedural safeguards, their claims for refugee status fail. (10) Typically, if sufficient state protection is unavailable, it must be determined whether the conduct that is alleged to be persecutory provides an objective basis for a well-founded fear of persecution. …

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