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.The federal law-making body of Canada is the Parliament of Canada.
[3][4][5][6][7][12][13] There was some controversy when the Canadian Supreme Court refused to hear the appeals of two American army deserters, Jeremy Hinzman and Brandon Hughey, whose requests for refugee status were denied.
Lawyer Faisal Kutty argued that the IRB and the court appear to have danced around the politically sensitive issues and existing case law.
The adjudicators held that they were not conscientious objectors (because they were not opposed to wars in general); the U.S. was willing and able to protect them; and that their treatment would not amount to persecution.
Paragraph 171 of UN Handbook on Procedures and Criteria for Determining Convention Refugee Status provides that where the type of military action with which an individual does not wish to be associated is condemned by the international legal community as contrary to rules of human conduct, punishment for desertion could be regarded as persecution.
[15] In denying both claims, the adjudicators opined that the legal status of the war in Iraq had no bearing on the analysis of paragraph 171.
This determination was one of the issues on which the matters were appealed to the Federal Court, but Justice Anne Mactavish, noted in separate decisions (Hughey v. Canada [2006] F.C.
The leading case on the "political questions doctrine" which revolves around whether people can challenge the legality of war based on their conscience and international law was turned down by the United States Supreme Court in Callan v. Bush.
The Court of Appeal held that "non-defensive incursion into foreign territory" was within the ambit of paragraph 171 and overturned the IRB decision.
[15] Justice Mactavish held that the legality of the conflict is irrelevant when analyzing paragraph 171 when "one is considering the claim of a low-level 'foot soldier'."
Indeed, the case became the proverbial public relations "hot potato" for the U.S. At the initial hearing, a former U.S. Marine testifying in Hinzman's support stated that American soldiers in Iraq routinely violated international law by killing unarmed civilians, including women and children.