Rules raids on Iraqi civilians violated Geneva
OTTAWA – A Canadian court has sided for the first time with a military deserter who fled to Canada seeking refugee status, ruling that the U. S. soldier witnessed enough human rights abuses during a stint in Iraq that he could qualify for asylum.
The decision yesterday also marked the first time that the Federal Court, which has heard a handful of cases involving deserters, concluded that military action against civilians in Iraq violates the 1949 Geneva Convention, an international prohibition against humiliating and degrading treatment.
Federal Court Justice Richard Barnes ordered the Immigration and Refugee Board to reconsider the failed refugee claim of Joshua Key, a soldier who entered Canada with his wife, Brandi, and their small children in March, 2005.
Mr. Key, an army private, deserted during a two-week break from serving as a combat engineer in Iraq, where he spent eight months in 2003 and says he was involved in military-condoned home invasions against civilians.
Judge Barnes said the immigration board found Mr. Key “was not a conscientious objector in the usual sense of being opposed to war generally, and that his objections to the conflict in Iraq were not politically or religiously motivated. Rather, what Mr. Key objected to were the systematic violations of human rights that resulted from the conduct of the United States Army in Iraq and the requirement that he participate.”
Judge Barnes ruled that the immigration board too narrowly interpreted refugee eligibility by concluding only soldiers who seek protection from committing war crimes need apply.
“Officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection,” said the ruling.
It added, “that military action which systematically degrades, abuses or humiliates either combatants or noncombatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve.”
Judge Barnes said it “cannot be seriously challenged” that some of the conduct in which Mr. Keys participated violated the Geneva Convention.
“This included the responsibility for conducting nighttime raids of private Iraqi homes in search of weapons,” said the decision.
“Pte. Key’s role in this was to blow open the doors with explosives and then to assist in both securing the premises and detaining the adult male occupants. Mr. Key alleged that during these searches he witnessed several instances of unjustified abuse, unwarranted detention, humiliation and looting by fellow soldiers, much of which he said was ignored by his superior officers.”
The Geneva Convention prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment” and “unlawful confinement.”
Lee Zaslofsky, of the Toronto-based War Resisters Support Campaign, said, “This is a real breakthrough. What excites us is this may also apply to other war resisters who took part in Iraq.”
Mr. Key, 30, is the co-author of The Deserter’s Tale, a book about serving in Iraq and his flight from the U. S. military. He was born in Oklahoma in 1978 and enlisted in the military in 2002. He now lives in Spiritwood in northern Saskatchewan and says that he suffers from post-traumatic stress, including insomnia, nightmares and hallucinations that “flash me right back to Iraq.
His lawyer, Jeffry House, said it was not lost on Mr. Key that the ruling was released on July 4, the U. S. national holiday.
“He’s crossing his fingers that he and his family will be able to stay,” Mr. House said.
The decision could affect as many as 100 American deserters who crossed the border into Canada after serving in Iraq, Mr. House added.
One of those is Corey Glass, a 25-year-old American who served in Iraq and has been ordered to leave Canada by July 10. The war resisters’ campaign called on the federal government yesterday to halt deportation proceedings.
Mr. Key’s case is different from U. S. soldiers Jeremy Hinzman and Brandon Hughey, war resisters who failed in their refugee claims, in which they were seeking to stay in Canada as conscientious objectors to the war in Iraq.
Mr. Hinzman and Mr. Hughey, who never served in Iraq, were unable to convince the Federal Court to allow them asylum to avoid participating in a war they contend is illegal.
U. S. soldiers who fled to Canada to escape the Iraq war also won a symbolic victory last month, when a majority of MPs in the House of Commons voted the deserters should be able to stay in the country permanently.
The motion, put forward by the New Democratic Party, is non-binding on the minority Conservative government.