Canadian Court Denies AWOL Soldiers Refugee Status

[Kanastrous]

Canada court: AWOL U.S. soldiers not refugees
Rejection of appeal by Supreme Court clears way for deserters' deportation

The Supreme Court of Canada on Thursday refused to hear an appeal by two U.S. military deserters who sought refuge in the country to avoid deployment to Iraq, a conflict they argued is “immoral and illegal.”

The announcement ends a bid by American soldiers Jeremy Hinzman and Brandon Hughey, the plaintiffs in the case, to win refugee status and opens the way for them to be deported to the United States, where they could face court martial for going AWOL and missing troop movements. It also could lead to deportation of dozens of other American soldiers who have filed formal applications for refugee status.

“Theoretically they (are) facing immediate removal,” said Jeffry House, a Toronto lawyer who represents most of the U.S. refugee applicants, including Hinzman and Hughey. The Supreme Court’s refusal to hear the case, “vastly advances the government’s agenda to remove them,” he said.

The rejection also closes off that legal avenue for other U.S. military personnel who have gone to Canada and remained illegally. House estimates there are at least 300 AWOL U.S. soldiers living in Canada.

Board deems legality of conflict irrelevant

Hinzman and Hughey both deserted from the U.S. Army and came to Canada to avoid imminent deployments to Iraq. Their case for refugee status rested on the argument that the military action in Iraq is illegal and, based on the United Nations convention on refugees, they cannot be prosecuted for failure to serve in an illegal conflict.

The men’s argument failed to sway Canada’s Immigration Review Board and two Canadian courts before their appeal was rejected by the Supreme Court.

“The immigration board said, with input from the government, that the illegality of the war is irrelevant to these immigration claims, “ said Michelle Robidoux, a Toronto-based activist with the War Resisters Support Campaign. “We believe it is very much connected.”

Canada, under then-Prime Minister Jean Chretién did not commit troops to the 2003 invasion of Iraq and most Canadians do not support the war, polls show. The country does have troops serving in Afghanistan.

The U.S. Department of Defense did not respond to a request for comment from msnbc.com on the deserters’ cases prior to Thursday’s announcement.

Canadian immigration officials said that no more than 40 refugee claims have been filed by American soldiers. House, however, said the number is significantly higher, noting that he has handled 45 to 50 claims himself. Based on the number of inquiries he has received from AWOL U.S. soldiers, he estimates there are about 300 American military deserters living in Canada, adding that many of them entered the country after serving combat tours in Iraq.

Support from Vietnam era runaways

The new arrivals have been coached, housed and supported by some of the Vietnam era anti-war activists and draft dodgers who took advantage of Liberal Prime Minister Pierre Trudeau’s famous declaration of his country as a “refuge from militarism.”

House himself left the United States and came to Canada in 1970 after he was drafted.

There are significant differences between Canada’s position on the Vietnam War and the war in Iraq, however. The most obvious is that the current deserters were not conscripted, but signed up to serve in a volunteer military.

And the current exodus to Canada is small in comparison to the Vietnam era, when an estimated 20,000 to 50,000 Americans moved to Canada to avoid military duty, many of them settling there permanently.

With Thursday's setback, activists with the War Resisters Support Campaign in Canada are focusing on securing a political solution. They organized "emergency rallies" in six Canadian cities Thursday night in an effort to pressure members of Parliament to forge a provision to allow resisters and their families to stay in Canada.

The activists are betting on popular support for the soldiers and among liberal parliamentarians, in the face of a harder line taken by Conservative Prime Minister Stephen Harper, who is seen as a close ally of the Bush administration.

In June, a poll in Ontario found that 64.6 percent of 605 respondents said U.S. soldiers should be allowed to settle in Canada, while 27.2 percent favored sending them home. The remainder of those surveyed said they were unsure or declined to answer the question.

More than 3,300 deserted last year

Today, the majority of U.S. military deserters are from the Army, according to statistics obtained by the Associated Press through a Freedom of Information Act request. In 2006, 3,301 soldiers deserted from the Army, compared to 2,659 in 2005, and 2,450 in 2004, it reported.

Under military law, desertion during war time is a crime punishable by death. In practice, though, a small percentage of deserters are court-martialed and sentenced to serve time in prison. Most are dishonorably discharged and leave the military without benefits and with a black mark on their record.

For Brad McCall, a 20-year-old American soldier who applied for refugee status after arriving in Canada in September, Thursday's rejection was a surprise and a blow. Though his own case and others technically remain in play, he sees grim writing on the wall.

"If I was talking to a soldier considering Canada right now, I would tell him to research every other available place to go … that would accept him as a war resister, because it’s still not safe enough here," McCall told msnbc.com, speaking from Vancouver where he is staying with sympathizers. "The Canadian government is obviously not on our side."

http://www.msnbc.msn.com/id/21794024/

[Knife]

Oh, poor babies.

Grown men signing a contract, already knowing going into it that there is a war going on. Pfft. I don't feel sorry for them. Hope the US garnishes their wages for the rest of their lives to recoup training costs along with their DHD.

[TheKwas]

Regardless of their contract, they are not supposed to follow orders if it contradicts international law and/or laws concerning humanity, no? Is that not why we hung Nazis?

[Sea Skimmer]

Regardless of their contract, they are not supposed to follow orders if it contradicts international law and/or laws concerning humanity, no? Is that not why we hung Nazis?

Doesn’t matter. While a solider is not required to follow an order they know to be illegal, that in absolutely no way makes desertion permissible or legal.

[consequences]

Regardless of their contract, they are not supposed to follow orders if it contradicts international law and/or laws concerning humanity, no? Is that not why we hung Nazis?

We hung specific Nazis for specific war crimes. We didn't go out and hang every member of the Wermacht, or even every member of the SS. We especially didn't hang them simply because their leader was a dick who got their country involved in an unjust war on false pretenses.

If they were ordered to commit illegal actions and the IG tried to sweep it under the rug when they reported it through the channels they were supposed to, then they'd have reason to desert. I haven't seen anything of the sort.

As a side note, the twenty year old mentioned at the bottom of the article gets precisely zero sympathy. Even with parental consent he wouldn't have been able to join before 2004.

[Knife]

Regardless of their contract, they are not supposed to follow orders if it contradicts international law and/or laws concerning humanity, no? Is that not why we hung Nazis?

The illegal order being in this case? Also, if you want legalities, you don't follow the order, what you don't do is go UA (AWOL is an old term). So if you were given an illegal order, you don't follow it and it goes through the chain of command and UCMJ. In there, no where, is the idea of 'illegal order=I can dessert'.

[Aaron]

Get the order in writing as well, then when you refuse to follow it and it goes up the chain you have proof.

[Elaro]

Considering that the occupation of Iraq is unsanctioned by the U.N., thus illegal, any order to go there could be interpreted as an illegal order.

Of course, there remains the objection of volunteer service. Frankly, with the constant news regarding, TPIL*, "aggressive" recruiters, I'm surprised you guys are so tough on these people. However, the morality of accepting them is really dependant on when they joined the U.S. military, and what they were promised. Details, in other words.

Which is why actually having a trial would've been an excellent idea to clear the fog. But nooo, because our Supreme Court apparently decided when you're in the military, you're a stooge to your leader, no matter what. This is maddening.

*To Put It Lightly

[Uraniun235]

Considering that the occupation of Iraq is unsanctioned by the U.N., thus illegal, any order to go there could be interpreted as an illegal order.

Of course, there remains the objection of volunteer service. Frankly, with the constant news regarding, TPIL*, "aggressive" recruiters, I'm surprised you guys are so tough on these people. However, the morality of accepting them is really dependant on when they joined the U.S. military, and what they were promised. Details, in other words.

Which is why actually having a trial would've been an excellent idea to clear the fog. But nooo, because our Supreme Court apparently decided when you're in the military, you're a stooge to your leader, no matter what. This is maddening.

*To Put It Lightly

If... if you had to write it out anyway, why did you even bother with the abbreviation?!

[Rogue 9]

Considering that the occupation of Iraq is unsanctioned by the U.N., thus illegal, any order to go there could be interpreted as an illegal order.

Bullshit. The United States is a sovereign nation; the UN doesn't get control of our, or any other nation's, military in that way.

[Kamakazie Sith]

Considering that the occupation of Iraq is unsanctioned by the U.N., thus illegal, any order to go there could be interpreted as an illegal order.

I'm pretty sure "Need UN permission" isn't anywhere in our laws regarding military operations.

Of course, there remains the objection of volunteer service. Frankly, with the constant news regarding, TPIL*, "aggressive" recruiters, I'm surprised you guys are so tough on these people. However, the morality of accepting them is really dependant on when they joined the U.S. military, and what they were promised. Details, in other words.

Yes, recruiters are about as aggressive as a sales rep, but that doesn't relieve those people of their responsibility. Why do so many people always try to pass blame?

Which is why actually having a trial would've been an excellent idea to clear the fog. But nooo, because our Supreme Court apparently decided when you're in the military, you're a stooge to your leader, no matter what. This is maddening.

*To Put It Lightly

Can you cite the case number or name?

[CmdrWilkens]

Considering that the occupation of Iraq is unsanctioned by the U.N., thus illegal, any order to go there could be interpreted as an illegal order.

Of course, there remains the objection of volunteer service. Frankly, with the constant news regarding, TPIL*, "aggressive" recruiters, I'm surprised you guys are so tough on these people. However, the morality of accepting them is really dependant on when they joined the U.S. military, and what they were promised. Details, in other words.

Which is why actually having a trial would've been an excellent idea to clear the fog. But nooo, because our Supreme Court apparently decided when you're in the military, you're a stooge to your leader, no matter what. This is maddening.

*To Put It Lightly

So you are saying we should have a trial...which is EXACTLY what would have happened had they REFUSED the order to deploy.

Lets play a scenario here:

Pvt Joe is told that his unit has orders to deploy and is given those orders (you actually receive a nice 20-30 page stack of orders indicating the scpe of the mobilization and deployment including overseas service, combat conditions, etc).

Pvt Joe objects to the war and refuses the order

Pvt Joe's comanding officer, Captain Dan, can't just leave the guy there nor can he force the guy to sign. What he can do is formally charge Pvt Joe under the UCMJ with insubordination in failing to follow a lawful order.

Captain Dan can now resolve this with NJP (non-judicial punishment) however Pvt Joe can refuse NJP and request a General Court Martial. Alternatively Pvt Joe can accept NJP then appeal if the decision is against him.

Captain Dan now turns the matter over the the Judge Advocate who assigns a prosecuting officer who must prove Pvt Joe disobeyed a lawfull order and a defense attorney (unless Pvt Joe declines and choses civilian attorney out of his own pocket) who is free to argue that the order was illegal due to the unlawful nature of the combat.

There will then be a trial, just as everywhere else, where a military judge will rule on the defendant's claim that the combat operation is illegal and thus the order to participate is unlawful. If, as many suspect would be the case, the Judge rules in favor of the prosecution then the defense is free to appeal first to the US Court of Appeals for the Armed Forces and then on to the Supreme Court.

So basically if the jackass had actually faced the music then he would be able to argue all the way up to the Supreme Court that the war is illegal and by extension the order to deploy is illegal. Long story less long THAT is how you object to an illegal order not by running the fuck away and bitching from afar.

[Knife]

Considering that the occupation of Iraq is unsanctioned by the U.N., thus illegal, any order to go there could be interpreted as an illegal order.

And away we go. Prove it's illegal in the US since that is where it matters for it to invalidate a contract between joe blow and the US goverment.

Of course, there remains the objection of volunteer service. Frankly, with the constant news regarding, TPIL*, "aggressive" recruiters, I'm surprised you guys are so tough on these people. However, the morality of accepting them is really dependant on when they joined the U.S. military, and what they were promised. Details, in other words.

I think the crux of the problem here, show where an over enthusiastic salesman trumps the actual wordage of the contract that a person signs after he declares that he/she has read said contract. In the contract, the fucking thing says you could be subject to involuntary extensions. It also says, via th oath, that you are subject to the dictates of the goverment, not your own sensibilities.

To have the contract void via 'false pretenses' you actually have to have the text of the contract shown to be violated, not what you think is on the contract nor what you wish is on the contract. So, prove the contract is voilated if you want to go down that track.

Which is why actually having a trial would've been an excellent idea to clear the fog. But nooo, because our Supreme Court apparently decided when you're in the military, you're a stooge to your leader, no matter what. This is maddening.

Or you know, the Candadian SC decide that if you violate a contract in the US, is irrelevant to your bullshit claim of repression.

[Dominus Atheos]

Considering that the occupation of Iraq is unsanctioned by the U.N., thus illegal, any order to go there could be interpreted as an illegal order.

And away we go. Prove it's illegal in the US since that is where it matters for it to invalidate a contract between joe blow and the US goverment.

Article Six of the United States Constitution:

...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

Since the United States signed the United Nations Charter, that makes it law.

Chapter I, Article 2 of the United Nations Charter:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

[Tsyroc]

Article Six of the United States Constitution:

...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

Since the United States signed the United Nations Charter, that makes it law.

Chapter I, Article 2 of the United Nations Charter:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

That's a pretty good argument, which would have been worth a try in court for the deserter. He'd most likely lose though. The UN rarely is percieved well in the US. There have even been US military members who've tried to claim that wearing the UN Flag or serving under a UN command is an unlawful order.

I would think this is part of the basis for the reasoning about the legality of going into Iraq being violations of the cease fire signed after the first Gulf War because GWI and the cease fire involved the UN.


I think the problem with deserters who are trying to claim conscientious objector status, or that they've recieve illegal orders, is that in most circumstances they still have to play the game they signed up for, and yes it's stacked against them. It's going to suck one way or another but if the person really objects then it's up to him to make a stand. A stand which could end up in personal sanctions, jail time, and in the extreme even death.

[Knife]

Article Six of the United States Constitution:

*sigh* There have been huge amounts of threads about this very subject, unfortunatley for the deserters, neither the UN nor the SC or the National Command Authority have declared the war illegal. I'm well aware of all the arguments saying it is though.

Though, as the squid just said, if the deserter had taken that to court, he stood the possibility of having a court say the war was illegal and thus could have gotten his contracted voided.

But it's not what he did.


Edit
On second thought, I don't want to have this debate so I conceed my position.

[Chardok]

as a personal anecdote, my Best friend did exactly that, deployed twice, then got stop lossed under orders to deploy with his now new unit. He protested not the order to go, but the stop-loss, as I understand it, and his 8 year enlistment contract was up (Not his active, but both his active and IRR.) He was put in jail to await court martial, and, end result: Honorable discharge.

I may have some of the details skewed, having not been there, but the end result was that he stayed within the system and ultimately was none the worse for wear when his time was up.

[Elaro]

Huh...

Okay, I semi-concede on the "there should have been a trial", save that if the deserters didn't have a trial over there, they could have it over here, where the judge may be less biased.

[CmdrWilkens]

Huh...

Okay, I semi-concede on the "there should have been a trial", save that if the deserters didn't have a trial over there, they could have it over here, where the judge may be less biased.

Look either concede or don't, and if you are going to claim there would be bias I'm wondering how you could even think to show that.