While war resisters form a human chain on university today to try to head off the deportation of Corey Glass, they’re also basking in the first-ever ray of sunshine in the generally bleak landscape of peace soldier refugee claims.
Last Friday, July 4, the Federal Court ordered the refugee board to reopen the case of resister Joshua Key, a ruling destined to shape the fate of many other claimants.
In a stunning decision, Judge Robert Barnes ruled that Key, who served in Iraq for eight months, is entitled to a new hearing because Immigration and Refugee Board officials refused to consider his defence that was forced to engage in acts of humiliation and abuse against Iraqi civilians.
In a rebuke to the board, Barnes instructed adjudicators to consider Key’s argument – even if his conduct didn’t constitute a war crime.
"Officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection,” Barnes wrote.
Lawyer Jeffry House hails the decision as a major victory for other soldiers who’ve fled to Canada and for those thinking of coming.
“This potentially opens doors for all resisters who served in Iraq,” he says.
Key, in his testimony to the refugee board, said he had participated in 70 nighttime raids, blowing open home doors to allow his comrades to round up male Iraqis, shame Muslim women by exposing them in states of undress and deny captives basic humanitarian aid.
“[Key’s] account coincides perfectly with [findings by] the International Red Cross,” writes Barnes.
But despite the sense of hope offered by the ruling, House is disappointed that it won’t help the cases of other resisters whose claims have already been dead-ended in the Canadian system. Jeremy Hinzman, who was rejected for conscientious objector status on the eve of his deployment to Iraq, had his appeal turned away at the Supreme Court.
Brandon Hughey, who left his army unit before it shipped out to Iraq, was also refused leave to appeal by the Supreme Court.
“They are in trying situations,” says House.
Judge Barnes, however, had another instruction to the board loaded with consequences for future claims. He specifically instructed the board to hear evidence on whether deserters can rely on the U.S. government to treat them fairly upon returning.
The board had refused to discuss this issue, saying that because the U.S. is a democracy, Key has access to judicial process.
“No doubt Key would face some form of punishment,” Barnes wrote cryptically.
Already, one resister returning from Canada has done time in a U.S. jail. Marine Lance Corporal Ivan Brobeck served in Iraq in 2004, where he says he witnessed killing of civilians at military checkpoints. He fled to Canada and in 2007 turned himself in. Court-martialed at Quantico, Virginia, he received an eight-month jail term and a bad conduct discharge. He was released after two months.
The feds are currently studying the implications of Barnes’s ruling and have 10 days to appeal.
But all this may not be enough to keep Glass, a National Guard sergeant who served in Iraq for five months, from having to leave his Parkdale home for the U.S. today.
Glass’s lawyers made an appeal at Federal Court on Monday to stop his deportation and has also issued a special plea for asylum on YouTube to Stephen Harper.
According to lawyer Alyssa Manning from the Parkdale Legal Clinic, the ruling on Key won’t have much affect on her client, because “only those who haven’t had their pre-removal assessment will be able to invoke Key’s victory.”
Still, she says it’s possible Glass might get the Federal Court appeal decision in time for the deportation deadline. Supporters are pressing for asylum today (Thursday, July 10) by forming a human chain from the Federal Court to the U.S. Consulate.
Observers were startled last week by media reports that the U.S. military had quietly discharged Glass after he went AWOL and that he would face no looming punishment. But reps from the War Resisters Support Campaign aren’t buying it.
“It’s like the Pentagon’s sending up a smokescreen,” says the group’s Lee Zaslofsky, a former draft resister from the Vietnam era. Glass, he says, has been reassigned to the Individual Ready Reserve and is eligible for deployment to Iraq.
“A disturbing level of brutality”
Excerpt from Justice Robert Barnes’s July 4 decision ordering the Immigration and Refugee Board to rehear Iraq war resister Joshua Key’s claim for refugee status.
Key performed at least 70 raids on the homes of Iraqi citizens. In the blackness of night, doors blown in, homes ransacked, personal effects looted, residents violently roused... men cuffed and hauled away in their nightclothes...never, at least as far as Key could ascertain, to return.
The [Refugee] Board was of the view that unless the events Key described were sufficiently egregious as to constitute war crimes or crimes against humanity, they could not justify his desertion.
The Board found that some of the events described by Key that arguably did constitute war crimes were isolated events or otherwise based upon speculation.
Nevertheless, the Board’s observations that some of that conduct reflected “a disturbing level of brutality” and violations of the Geneva Convention cannot be seriously challenged.
In my view, the Board erred in its interpretation of the UNHCR Handbook. The language of the UNHCR Handbook is not the language either of direct participation or even complicity; rather, it speaks to unwanted association with objectionable military action.
Indeed, the [legal] authorities indicate that military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve.