Private First Class Kimberly Rivera had been seeking leave to remain in Canada “on humanitarian and compassionate grounds” to avoid prosecution for deserting her post in the U.S. Army.  Her claim, like the claims of other U.S. soldiers seeking to avoid further duty in the Iraq War in Canada, has been rejected, and, unless that decision is reversed, she is supposed to return to the U.S. by January 27th.

I was a bit startled the first time I heard about U.S. soldiers seeking refugee status in other countries to avoid serving, or continuing their service, in the Iraq War.  There have been a number of such cases in Canada, and at least one in Germany.  (And I should note before continuing that I’m not sure that “humanitarian and compassionate grounds” are quite the same as asylum; still, the remainder of this post focuses on these soldiers’ ability to establish asylum.)

Under U.S. law, the basic definition of a “refugee” is someone who “is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” and Canada’s definition is similar.  Generally speaking, as students in my refugee law seminar learn, volunteer soldiers who desert their posts do not qualify as “refugees” under this definition.

Volunteer soldiers who fear prosecution for deserting have difficulty proving two important elements of the claim.  First, that they face “persecution,” rather than prosecution. Second, even if being tried and imprisoned for desertion is “persecution,” that the trial and imprisonment is “on account of” any of the forbidden grounds.  Having volunteered to become soldiers, it is difficult for them to establish genuine religious or political objections to service.  Furthermore, it is difficult to establish that the government targets them for punishment due to any of their beliefs or characteristics; rather, they are targeted along with anyone else who refuses to serve in the army as promised.

But the question of exactly what sort of service the soldiers promised to provide is the window through which some U.S. soldiers have tried to establish refugee status, arguing that their service in Iraq went beyond what they had volunteered for.  In July, a Canadian appeals court ruled that “dodging orders that are ‘contrary to the basic rules or norms of human conduct’ is enough grounds to apply for refugee protection. ‘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. . . . ‘”  

In other words, if the soldiers could demonstrate that what they were being required to do was not what they agreed to do, but something terrible and against the law, i.e., “contrary to the basic rules or norms of human conduct,” then, this court held, they could perhaps demonstrate that their punishment was on a forbidden ground.

Even were that the case, however, circling back around to the first issue I raised, it seems unlikely that trial and imprisonment for desertion in the United States will be deemed severe enough to rise to the level of “persecution.”  This BBC article states that the only U.S. soldier that Canada has deported so far was sentenced to 15 months in prison when he returned here.  In the end, whether to deem a punishment “persecution” or “prosecution” is a judgment reflecting the decision-maker’s impression of societal values, and it is difficult to imagine a Canadian decision-maker determining that a volunteer soldier’s 15-months sentence for desertion was so unfairly punitive as to rise to the level of persecution.