American Deserters In Canada: Refugees Or Criminals
The first, A Convention refugee (refers to the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol.) is someone seeking to enter Canada: "who is outside of their country of nationality or habitual residence and who is unable or unwilling to return to that country because of a well-founded fear of persecution for reasons of race, religion, political opinion, nationality or membership in a particular social group"
The second, Person In Need Of Protection, is a person: "in Canada whose removal to their country of nationality or former habitual residence would subject them to the possibility of torture, risk to life, or risk of cruel and unusual treatment or punishment."
It is up to the applicant in both instances to offer sufficient proof to the refugee board that any of the above conditions would apply to them if they had to return to their country of origin. There are of course provisos to these clauses to prevent their abuse. Canada, much to the surprise of certain American talk show hosts, doesn't want to find itself a haven for terrorists fleeing "persecution", will not grant such status to those "determined to be inadmissible on grounds of security, human rights violations, serious criminality or organized criminality"
Unfortunately there are a lot of grey areas in this whole situation. Obviously some of the above definitions, especially security and criminality, will depend on the claimant's country of origin. If the country is one that denies its citizens basic liberties, and the person applying for shelter is in opposition, any records obtained from their home country would show them as a criminal and security threat.
Would Canada allow in someone who had actively participated in violent acts against that government? Or would we only allow those who through no fault of their own, or who through peaceful activity found themselves if peril. In most cases it would be no to the first instance and yes to the second.
Obviously there are mitigating circumstances in both instances. A person who can prove that their acts of violence were in self-defence would probably be admitted. On the other hand a person who hasn't committed a violent act, but is proven to have financially or otherwise provided substantial support to acts of terror may not be allowed in the country.
During the Viet Nam war Canada became a safe haven for American youth seeking to elude the draft. Quite a few of them ended up becoming permanent citizens. I'm not actually certain on how that whole process worked, but I think a great many of them simply immigrated and didn't apply for refugee status. In those days it was far easier to just immigrate if you had someone to sponsor your application. (If anyone knows otherwise I would be very interested in finding out, a quick search of the web didn't reveal much of use)
None of these individuals were actually members of the American armed forces at the time of their coming to Canada. They were fleeing the prospect of becoming soldiers so they could legitimately claim to be conscientious objectors, which may have been sufficient grounds to apply for refugee status.
This is one of the major differences in the case that is currently being heard by the Federal Court of Canada in the matter of Jeremy Hinzman's appeal of the Refugee Board's decision to refuse his application for refugee status. Mr. Hinzman had been enlisted in the 82nd Airborne Division when he left the U.S. to come to Canada to avoid serving in the Iraq War.
He is not just a draft dodger, but a deserter from the American army. He has requested asylum in Canada because he fears he will face persecution in the United States for his refusal to take part in the Iraqi war. He claims that he would have considered himself to be committing a crime if he had killed anyone during the course of the war, because the war itself is illegal.
During his initial application the Refugee Board refused to allow arguments to be entered on the legality of the war. They claimed all that mattered was the circumstances Mr. Hinzman would face if he were returned to the United States. They also questioned the veracity of his claim to be a conscientious objector because he had enlisted in the armed forces.
But the biggest question of all is what constitutes persecution. According to the Refugee Board because the United States is a democracy with a justice system. That any prosecution brought against Mr. Hinzman could not be equated with persecution.
There have been two arguments raised in an effort to rebut that statement. Amnesty International claims that because Mr. Hinzman took reasonable steps to obtain exemption from combat duty on the grounds of conscientious objection, that the potential prison term he faces is unjust.
Mr. Hinzman's lawyer, who is also representing another man in the same circumstances, argued that placing his client in the hands of the American justice system would be like asking to be "thrown into the fire". In other words he is questioning the potential of his client(s) to obtain a fair trial.
While the argument presented by Amnesty International stumbles against the "why was he in the military in first place if he was a conscientious objector" question, and thus loses some validity, his lawyer's objection is worth considering. Although the mood in the United States is decidedly less pro-war then earlier, there is still sufficient sentiment in its favour that would make a fair trial a difficult proposition.
Although desertion during wartime is no longer a capital offence in the United States, the underlying emotions behind that sentence are still prevalent in the American psyche. It is taken as a betrayal of the worse kind; a rejection of your patriotic duty. Accusations of cowardliness and treachery are sure to be directed at Mr. Hinzman and any of the other young men who are now seeking asylum in Canada on these grounds.
While he can no longer be sentenced to death, the maximum sentence is five years for Mr. Hinzman, consider what his life would be like after he is released from prison. What kind of social stigma would be attached to him for the rest of his life? He will be forever known as a deserter, a traitor, and unpatriotic.
What kind of quality of life can he expect to live under those conditions? Persecution does not just come in the form of what a government can do to you directly; it can also come from the attitudes created by that government. The Bush administration has created an us or them mentality in the Untied States.
If you support the war in Iraq you are a good American, if you don't you are unpatriotic and working against the well being of your fellow citizens. What would that attitude make of a person who was in the army, but refused to go fight in this war? Especially if he says this war is illegal.
The government of the United States wouldn't need to persecute Mr. Hinzman or any of the other deserters hiding in Canada. The atmosphere they have created, aided and abetted by huge portions of the media, would accomplish it without them. They can sit back and pretend their hands are clean while Mr. Hinzman is ripped to pieces.
One of the grounds for applying for refugee status in Canada is a well-grounded fear of persecution for reasons of political opinion. Well I think it's safe to say that Mr. Hinzman will be heavily persecuted on many fronts for his political opinions. While he may not come to any physical harm, the psychological trauma to him and his family would undoubtedly be severe.
If for no other reason than that, Mr. Hinzman, and any other deserters should be given refugee status in Canada. They are not going to be welcomed back with open arms into their country of origin by any stretch of the imagination, so we should offer them a chance for a new life.