To make a short story long:

Under Canada's Immigration and Refugee Protection Act a Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion... is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries.

While there may be reasonable arguments to be articulated on behalf of the soldiers in question, it is virtually impossible that the Immigration and Refugee Board would find that they have a well founded fear of persecution. It shouldn't be difficult for them to cobble an argument that they belong to a social group (army deserters) or persons with a political opinion (belief war is illegal or unfounded). But it is a monumentally insurmountable hurdle for them to persuade the Board and any court on judicial review that they have a "well founded fear of persecution". The decision makers understand fully the political implications of such holdings and even an adventurous decision at first instance is virtually certain to be overturned.

One of the issues that should concern the courts here (and won't) is the degree to which nations may have an international law obligation to harbour army deserters fleeing from an illegal war or one with questionable legality. Individual soldiers can be individually and personally liable for the killing of civilians in an armed conflict and are not able to avail themselves of a defence on the basis that they were following orders. Can the international community legitimately move toward imposing that kind of criminal liability on an individual who does not make a judgement call contrary to his orders without providing a corresponding obligation on states to protect him once he makes that judgement? Does the individual even have to be right to receive protection? Tough calls that I doubt the Canadian courts will spend much time considering.

[edit on 20-10-2004 by G_Scard]

Originally posted by GradyPhilpott

I would hope that their names would be as well known as that of William Calley, Benedict Arnold, John Kerry, or Jane Fonda. On second thought, maybe they could have careers in show business or politics.

You would hope? And that hope of yours would equate to what, a trial for treason, desertion? SA verdict of imprisonment, death? What? I have asked you a direct question, which you have yet to answer, why?

By the way, Neither Kerry nor Fonda fit that label you love to attach to them, unless of course you wish to rewrite your own constitution. More appropriately, Eisenhower, Nixon and Reagan seem to be the men you harbour animosity toward.

[edit on 10/20/04 by SomewhereinBetween]

Originally posted by G_Scard
The decision makers understand fully the political implications of such holdings and even an adventurous decision at first instance is virtually certain to be overturned.
...
Tough calls that I doubt the Canadian courts will spend much time considering.

Thanks for the info G Scard.

There are huge political implications which is why I think the feds will get involved with this case. I think refugee claims are reviewed by a tribunal so the SCC (Supreme Court of Canada) is not involved yet. If the SCC gets to look at the case I would not underestimate their analysis. It's usually quite thorough.

Personally I feel that since the US is not in a draft type situation this application should fail.

Under the conditions of a draft though the situation is quite different.