Soldier deserts. Now what?

[Machjo]

The Minister of Immigration has just hired you as his consultant and would like you to write up criteria the staff of Immigration Canada would be expected to follow in determining whether to grant asylum to a deserter from another country. What would be your criteria?

I think I would follow the following standards:

1. the military he was enrolled in had ordered him to violate either a national law of his country's or an international law,

2. he was not given the option of refusing that order, even if he'd offered alternative duty in compliance with national and international laws,

3. he does not trust that he'd have a fair trial in his country.

If all of these points are met, then I'd send him to the International Court of Justice to face his country there, and let the ICJ decide his fate, whether he should go back to his home country and face justice there or be granted asylum in this country.

I think such a policy or similar would:

1. make it difficult for one to desert to this country without a valid reason, and

2. make him prove his case in the most rigorous of manners. After all, unless he sincerely believes what he's saying, he's not likely to feel comfortable to take his country to court to face justice on the international stage, especially if he's aware that if he loses the case he may be sent back to his home country to face justice and public opinion there. But if he is sincere in his beliefs, he'd likely welcome such a chance and would feel confident in his victory.

Interesting video here:

YouTube - Canada gives US deserter second chance

According to this video, a judge recommended that simply fighting in Iraq in contravention of international law does not suffice; the soldier must prove that he personally was ordered to violate the Geneva Convention. What international laws say on this I don't know, but it is an interesting take on it.

The arguments the soldier in the video uses though are pathetic. He uses emotional appeals aimed at pitying his case. If he was a legitimate deserter, he'd be basing his case on violations of the law on the part of the US military.

Now this guy might have a more legitimate claim:

YouTube - Another us army DESERTER - "more & more stories will come.."

Then again why did he not refuse orders? Certainly his claims need to be explored in further depth.

Then again, as a deserter, he would have an interest in saying what he'd said, but still worth investigation.

 

[FiveParadox]

I would have issues in allowing the International Court of Justice to make any decisions or orders as to whether Canada ought to accept a refugee for any reason at all. However, Canada should make progressive allowances for accepting refugees in situations where a nation has acted unreasonably to conscript soldiers, particularly when the operations of that nation’s armed forces are questionable in the eyes of the international community. I think it might be very difficult to come up with concrete criteria for accepting refugees or asylum seekers; the minister (and by extension, the minister’s staff) needs to have a degree of discretion when it comes to such requests in order for the process to function properly.

 

[Machjo]

I would have issues in allowing the International Court of Justice to make any decisions or orders as to whether Canada ought to accept a refugee for any reason at all. However, Canada should make progressive allowances for accepting refugees in situations where a nation has acted unreasonably to conscript soldiers, particularly when the operations of that nation’s armed forces are questionable in the eyes of the international community. I think it might be very difficult to come up with concrete criteria for accepting refugees or asylum seekers; the minister (and by extension, the minister’s staff) needs to have a degree of discretion when it comes to such requests in order for the process to function properly.

I have an issue with penalizing conscription itself though. There may be times when a country, even Canada itself, needs to turn to conscription for legitimate reasons of national defence.

I also have an issue with making a decision based on actions being 'questionable in the eyes of the international community'. It's just too vague. It ought to be based on clear violations of international law.

As for concrete criteria, I think we do need them as the could then prevent arguments of inconsistent application of criteria across the board.

As for the ICJ, maybe you're right, but then some kind of concrete measurement ought to be adopted anyway. One possibility is, as was described in one of the videos above, whether or not a soldier defected so as to avoid carrying out a direct order in violation of the Geneva Convention. That I think would be a concrete and at least somewhat measurable yardstick to go by. As for proof, we could give the soldier the benefit of the doubt unless the other country decides to fight the case and provide evidence of its own that there was no such order given, in which case then the soldier would have to go back to his home country if evidence suggests the unlikelihood of his claims.