posted on Oct, 20 2004 @ 12:07 AM
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]