Last Updated on November 11, 2011 by Steven Meurrens
When can military deserters can claim refugee status?
In Kirkoyan v. Canada (Citizenship and Immigration), 2011 FC 1217, an Israeli refused to serve as a reservist in the Israeli Defense Forces.
In analyzing whether the Immigration and Refugee Board applied the correct law on the issue of whether a country’s punishment for desertion can constitute persecution, the Court reiterated the three categories of desertion that qualify for refugee status as follows:
- Where the desertion pertains to conscription for a legitimate and lawful purpose that is conducted in a discriminatory way, or if the punishment for desertion is based in relation to a Convention ground.
- Where the evasion reflects an implied political opinion that the military service is fundamentally illegitimate under international law (i.e. – where it is intended to violate basic human rights, non-defensive incursions into foreign territory, or action in breach of the Geneva Convention. To rely on this category, it is necessary to show that, on a balance of probabilities, the claimant would have been required to carry out the activities. (Ozunal v Canada (Minister of Citizenship and Immigration)
- Principled objections, or conscientious objectors.
What is Required to Show that One is a Conscientious Objector?
For a deserter to show that he is a genuine conscientious objector, he bears the onus to demonstrate that his opinions in that regard are genuine. The Court noted that:
Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.
Where an individual completes military assignments, or fails to contact relevant military committees to obtain exemptions from specific assignments, a claim will be difficult to establish. (Goltsberg v Canada)
Deserting Alone Isn’t Sufficient
Opposition to military service is not sufficient to obtain refugee status. A serious possibility of persecution stemming from deserters must be demonstrated (Adjei v Canada (Minister of Employment and Immigration).
As the Federal Court of Appeal found in Ates v Canada (Minister of Citizenship and Immigration), general imprisonment does not constitute persecution in the case of deserters. In such a situation, the Applicant needed to demonstrate to the Board that the sentence awaiting him would amount to persecution.
Imprisonment alone is not sufficient. In Moskvitchev v. Canada (Minister of Citizenship and Immigration), a sentence of between six months to five years for draft evasion was found not to constitute persecution.
The UNHCR on Desertion
Finally, and perhaps most useful for individuals curious on the issue, the Court reproduced the following from the UNHCR on the issue.
167. In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably considered a criminal offence. The Penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft-evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft-evader.
168. A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.
169. A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.
172. Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.
173. The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered in the light of more recent developments in this field. An increasing number of States have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of recommendations by international agencies.24 In the light of these developments, it would be open to Contracting States, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.
174. The genuineness of a person’s political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background. The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations. Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions.