Canada and Iraq War resisters

During the Iraq War, which began with the 2003 invasion of Iraq, there were United States military personnel who refused to participate, or continue to participate, in that specific war. Their refusal meant that they faced the possibility of punishment in the United States according to Article 85 of the US Uniform Code of Military Justice. For that reason some of them chose to go to Canada as a place of refuge. The choice of these US Iraq War resisters to go to Canada has led to considerable debate in Canada's society, press, legal arenas, and political arenas. Much of the debate on this issue has been due to the controversial nature of the Iraq War itself. Among the many elements of that debate are Canada's relationship to the Iraq War, and Canada's relationship to the US, its largest trading partner.

Background circumstances

Some of the Iraq war resisters enlisted in the United States military before the Iraq War, and some enlisted after it began. Before their refusal to participate in that war, some had already initially participated, and some had not. Each had their own reasons for initially deciding to enlist and/or participate in that war. Nevertheless, it's not irrational to assume that the public relations preparations for 2003 invasion of Iraq, and media coverage of the Iraq War played a part in many of those initial decisions. Later, when these soldiers encountered differing views on the 2003 invasion of Iraq and issues of the legality of the Iraq War, they questioned the legitimacy of the 2003 invasion of Iraq. Some of them then became disillusioned with all war, whereas others became "selective conscientious objectors".

Then, at various points in their lives, they became aware of the likelihood of punishment for a refusal to participate in the Iraq War. 6 September 2003 conviction, and concomitant imprisonment, of Iraq War resister Stephen Funk, and other subsequent imprisonments, provided evidence that punishment was a very real possibility.

Eventually, many Iraq War resisters became aware of the history of draft dodgers being allowed into Canada without prosecution during the Vietnam War (1959–1975). In that era, most of those draft dodgers had simply applied for landed immigrant status once in Canada, which opposed its southern neighbour's military adventures in Vietnam. But immigration rules have been tightened since the Vietnam era, making would-be migrants apply from their home countries. This has pushed war resisters into Canada's refugee system.

Unlike draft dodgers who immigrated to Canada as an alternative to mandatory conscription, the Iraq War resisters came to Canada after having voluntarily enlisted. Some of the Iraq War resisters faced the ''involuntary extension'' of their active duty service under a stop-loss policy. In any case, there has been some debate about whether or not the voluntary/involuntary enlistment factor even makes a difference in a decision to deport them to face likely punishment in the US. The more important factor, according to the two Parliamentary motions which were passed, was whether or not the individuals "have refused or left military service related to a war not sanctioned by the United Nations..."

The soldiers who have chosen to come to Canada have been referred to using various terms: "deserter", " conscientious objector", "war resister", or " refugee". The decision to choose one of these terms above another is often an indication of one's position on the issue.

Legal landscape

See also the case for allowing certain qualified war resisters to stay in Canada on Humanitarian and Compassionate Grounds.

The Canada/U.S. Extradition Treaty

Pursuant to the Treaty between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, US authorities can request Canadian authorities to identify, locate, and take into custody US nationals who have committed a crime that carries a possible sentence of more than a year, and subsequently extradite the target back to the US, as per the Extradition Treaty Between the United States of America and Canada.
However, the US government must promise that those extradited will not receive the death penalty, in accordance with the Supreme Court of Canada ruling in '' United States v. Burns''. Thus, deserters who may have had an arrest warrant issued against them in the US are liable for arrest in Canada, unless they legalise their status.

Canadian law

Under Canadian law, status can be legalized by pursuing a refugee claim, which the Immigration and Refugee Board of Canada (IRB) will consider. If the claim is refused, the claimant can appeal the decision in the Federal Court, the Federal Court of Appeal, and finally, the Supreme Court of Canada, if leave is granted. If, however, appeals do not overturn the decision of the IRB, and if there is a removal order, the claimant must leave Canada within 30 days. If this is not done, or departure details are not confirmed with the Canada Border Services Agency, a deportation order is issued, enforceable by any officer of the Queen's peace in Canada.

On the other hand, if the refugee claim is granted, the individual or family is permitted to remain in Canada, eventually moving on to Permanent Resident status and, if the person wishes, to Canadian citizenship.

Political involvement during the first legal case progress towards Supreme Court

The case of Iraq War resisters clearly became more than a legal issue when Canadian government lawyers entered the situation and presented arguments to the Immigration and Refugee Board adjudicator just prior to the precedent-setting hearing of Iraq war resister Jeremy Hinzman in November 2004. "Government lawyers argued at Hinzman's immigration hearing that the entire question of the war's legality was "irrelevant". ... The federal immigration officer adjudicating the case Brian_P._Goodman).html" ;"title="Brian_P._Goodman.html" ;"title="Brian P. Goodman">Brian P. Goodman)">Brian_P._Goodman.html" ;"title="Brian P. Goodman">Brian P. Goodman)agreed. He ruled [12 November 2004] that Hinzman may not use Legality of the Iraq War, the legal basis of the Iraq War to justify his ... claim."
The claim for refugee status was ultimately rejected (16 March 2005).

Reporting on this decision, the BBC
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