JOSHUA KEY - IMMIGRATION AND REFUGEE BOARD HEARING
5 June 2009 source:
http://wmtc.blogspot.com/2009/06/joshua-key-irb-hearing-part-one.html
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About 20 of us
gathered on Victoria Street in downtown Toronto to make a
visible presence outside this very significant hearing. A
campaigner handed out about 200 leaflets; later in the day,
on our way back from a break, someone in the elevator told
us she had read the flyer. She looked at Josh and said,
"Good luck." There were only a few seats for spectators in the small hearing room. I was fortunate to attend, by virtue of writing about the proceedings for all of you. Among our little group were three reporters, Canadian author Lawrence Hill, who wrote The Deserter's Tale and is a friend of Josh's, and the wonderful woman who gave the Keys a home when they first came to Canada. (She is named in The Deserter's Tale, but since I didn't ask her permission, I'll leave her anonymous here.) The Immigration and Refugee Board member who heard the case - the person who will render the decision - was Ken Atkinson. The Ministry of Citizenship and Immigration was represented by James Railton. |
The Refugee Protection
Officer, who is supposed to be a neutral party and ensure that the
refugee claimant is given due process, was Robert Gould.
Every spectator also had to identify her- or himself for the record,
spelling our names and indicating our reason for being there.
Much of the morning was taken up with procedural business, and
through much of that, we waited in the hall outside the hearing
room. Josh looked very sharp in his suit jacket and tie, and very
nervous. He was eager to get it over with.
Even during the procedural part of the hearing, the Ministry was up
to dirty tricks. Among the documents they wanted to introduce was an
National Crime Information Center (NCIC) search showing no listing
for Joshua Key.
Lawyer Alyssa Manning asked them to explain the relevance of the
document. The NCIC shows only one thing: whether a person has a
criminal record in the United States. In other words, an NCIC search
is a historical document. It shows the past; it doesn't show the
future. Josh has never been convicted of a crime, so he doesn't have
a criminal record. Similarly, an FBI search on his name would come
up clean.
No one has ever alleged that Joshua Key had a criminal record. So
what was the Ministry up to?
One of the points the Conservatives always make is that the war
resisters aren't really wanted in the US, they may not even be
prosecuted, and if they are, they'll get off with a slap on the
wrist. Showing that Joshua Key's name doesn't come up in an NCIC
search supposedly makes this point.
But the NCIC doesn't show that.
The IRB did not accept the document as evidence.
That gave me a good feeling at the outset.
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"An 'excluded
person' cannot be admitted into Canada. Someone who has
committed war crimes is by definition an excluded person.
You can do the maths". |
It's important to note
that most of Josh's case would not be re-heard. All the evidence
from his first hearing is already on record. That was an all-day
ordeal in which Josh, suffering from serious post-traumatic stress
disorder, told his story in detail, possibly for the first time. My
campaign friends who were there tell me it was gruelling and
heart-wrenching.
This second hearing would focus on two issues, in light of the
Federal Court decision by Justice Robert Barnes. The decision is a
fascinating lesson on refugee law and human rights. For our
purposes, the most relevant portion are the following paragraphs.
29. It is clear from the
above passages that officially condoned military misconduct falling
well short of a war crime may support a claim to refugee protection.
Indeed, the authorities indicate that 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. I have, therefore, concluded that the Board erred
by imposing a too restrictive legal standard upon Mr. Key.
30. I would add that the Board's assertion that Mr. Key's past
combat participation would not be sufficient to support his claim to
asylum unless it constituted excludable conduct cannot be correct.
This would give rise to an unacceptable "Catch 22" situation where
the factual threshold for obtaining protection would necessarily
exclude a claimant from that protection.
An "excluded person" cannot be admitted into Canada. Someone who has
committed war crimes is by definition an excluded person. You can do
the math.
The first issue in today's IRB hearing would be state protection. A
refugee claimant must show that his country of origin cannot or will
not offer him adequate state protection from harm or persecution.
Justice Barnes said the IRB did not properly address this in its
original decision on Josh.
The second issue is prosecution vs persecution. In certain
circumstances, prosecution is
persecution, and sections 96 and 97 of the Immigration and Refugee
Protection Act (IRPA) apply. Section 96 says:
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is unable
or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country of
their former habitual residence and is unable or, by reason of that
fear, unwilling to return to that country.
Section 97 is the same, but instead of "refugee," it applies to "a
person in need of protection". This is a slightly different status,
but for our purposes, not an important distinction.
| "Any male occupant over five feet tall was removed from the home. These men and boys were forced to strip naked, then were cuffed, hooded and loaded into trucks - and taken away". |
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Then, finally, the meat of the hearing began.
The Refugee Protection
Officer (RPO) went first.
He started out asking Josh questions about his book. (And if you
haven't read this yet, you must! You'll understand this issue in a
lot more depth after you read
The Deserter's Tale.)
In Iraq, Josh was involved in house raids. In these raids, US
soldiers, in the middle of the night and without warning, would use
explosives to blow the door off an apartment. While some of them
shouted commands in English at the terrified occupants, holding them
at gunpoint, others would search the apartment - often destroying
all the contents, as well as taking whatever they wanted for
themselves.
Any male occupant over five feet tall was removed from the home.
These men and boys were forced to strip naked, then were cuffed,
hooded and loaded into trucks - and taken away.
I want to note here that Josh Key's credibility is not an issue
here. Contrary to what his wingnut detractors say, the IRB found
Josh's claims truthful.
Mr Gould asked Josh more details about the raids. In his IRB first
hearing, Josh thought he had participated in about 75 raids.
However, when working on the book with Lawrence Hill, carefully
going over how long he was in Iraq and how often the raids were
conducted, piecing together the chronology, Josh realized that the
number of raids he participated in was closer to 200.
This is an important point, because in order to be considered a
refugee for refusing illegal orders, the orders have to have been
systematic and standard - not something out of the ordinary that
someone was asking to do once, but something that soldiers had to do
all the time. Clearly 200 raids in seven or eight months constitutes
systematic. And now that was in the record, too. I think that may
have been the RPO's intentions.
Mr Gould asked Josh about the details of the raids. Did you (meaning
the squad) treat the occupants roughly? Yes. Did you beat them? Yes.
Why? This was Operating Procedure.
Were you trained to do this? Yes. Did your superior officers
demonstrate how to do this? Yes. But not in the US, only in Iraq.
Did they instruct you to cuff the men? Yes. To hood them? Yes.
Mr Gould delicately and hesitantly mentioned that the book says the
"detainees were de-clothed"? Yes.
Where did they remove their clothes? In a room or separate area? No.
Out in the open.
What was the purpose of their being de-clothed? "To dehumanize,
sir."
"What was that?"
"To dehumanize."
"Were you told that?"
"Yes."
"By whom?"
"By our chain of command."
Mr Gould established that this was done to all males over five feet
tall who were found in randomly chosen homes. They were placed on
trucks, and Josh never saw them again, and doesn't know what
happened to any of them.
In this manner, the RPO had it read into the record that the US
soldiers in Iraq were under orders to systematically degrade and
humiliate civilians. I'm thinking this man Gould - at least that day
- was on our side.
Did any soldiers comment on the rough treatment given to these
detainees or to the women in the households? Yes.
What were they told? That they would stop complaining or be charged.
Who said that? My lieutenant, sir.
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"How important was the treatment of detainees in your decision to not return to Iraq?" "It played a very big role....At first, it was an adrenaline rush. Then seeing the faces of the people....it played on me then, and it plays on me now." |
The RPO then asked Josh
about the two weeks while he was in the US on leave, trying to get
out of going back to Iraq. Josh made two anonymous phone calls to a
JAG (military) lawyer, as well as a call to a relative who is a
lawyer. Josh was willing to stay in the military and complete any
other assignment. Anything, as long as he didn't have to go back to
Iraq.
The RPO easily established that Josh learned he had two options: go
to Iraq, or go to jail. And after jail, he could be sent to Iraq
anyway.
He asked, "How important was the treatment of detainees in your
decision to not return to Iraq? How strongly did you feel, what role
did it play in your decision?"
Josh said, "It played a very big role. At first, it was an
adrenaline rush. Then seeing the faces of the people, it played on
me. It played on me then, and it plays on me now. I didn't know if
what we did was illegal, but I know it was immoral."
The RPO asked Josh what would happen if he were sent back to the US.
Josh told him he'd be hazed, then sent to prison. Josh mentioned
Robin Long, who was sentenced to 15 months.
Would you be charged with desertion? Yes.
Would you be given a trial? A military court martial.
Would you be able to raise a defense? No.
Josh testified, truthfully, that his specific orders in Iraq - that
is, his reason for deserting - would be excluded from the court
martial. War resister Camilo Mejia was not allowed to show any
evidence, including his attempts to file for conscientious objector
status. War resister Ehren Watada was not allowed to give evidence
about what he witnessed in Iraq, or to bring expert witnesses to the
court martial. War resister Kevin Benderman was not allowed to
testify in his own defense.
Josh testified to the names of other war resisters who were selected
for prosecution and punished more severely because they spoke out
against the war. James Burmeister. Kevin Benderman. Camilo Mejia.
Robin Long. Clifford Cornell.
When you decided to speak out, to write your book, did you know your
sentence would be increased? No, sir. That was before these men were
sentenced.
Why did you speak out? Because I wanted to get my story out there. I
wanted the truth to be known.
Mr Gould asked about hazing or "smoking," as it is also known in the
military. Josh testified about the verbal, mental and physical abuse
soldiers are subjected to, which often includes forced physical
labour until the point of muscle failure. Under military guidelines,
a soldier is required to be given four hours of sleep per day, so
hazing often includes 20 hours of forced physical labour. War
resisters Christian Kjar and Matt Lowell were both subjected to this
kind of hazing.
Mr Gould asked if a soldier could refuse hazing, or get someone
else, such as a chaplain or JAG lawyer, to stop it. In the hearing,
I thought he was being naive or patronizing. Now, however, I think
he was purposely establishing the brutality of the military.
At one point, he asked Josh, what do you think is the point of this
hazing? Josh said, "To have complete, total control over you. To
have total control."
Mr Railton, counsel for
the Ministry, went next.
His first incomprehensible, scattered questions set the tone for his
examination. He asked Josh where certain pieces of evidence were
located in the record, which Alyssa pointed out was a question for
counsel, not the claimant.
He asked about the Army Chain of Command, as if he never heard of
such a concept.
He asked Josh why he believed he would be treated more harshly
because of his book, meaning, because he had spoken out. Then,
incredibly, Railton said, "I understand there is a cult of celebrity
in the the US. If you were sent back to the US, wouldn't it be good
publicity for your book?" He asked Josh if his "celebrity status"
would protect him from punishment.
It was all we could do to not get up and object ourselves!
Celebrity status?! The
idea that Josh Key has "celebrity status" in the US is completely
absurd. The idea that the military would care about such a thing is
beyond absurd. Can you just see it now?
I understand, Mr Key, that you may
want to appear on Oprah in the future. Therefore, we will not charge
you with desertion or put you in jail.
Next Railton set out to paint a picture of Iraq during the first
month Josh was there. (He got the dates wrong, whether by accident
or to trick Josh into assenting to incorrect dates, therefore
introducing an inconsistency in his testimony, I don't know. Josh
simply corrected the dates.) Railton mentioned the belief that there
were weapons of mass destruction, about the "Sunni triangle," about
the contractors who were killed, about snipers and suicide bombers.
Alyssa asked, "Excuse me, how is this relevant?"
"I want to establish that Iraq during that time was not a walk in
the park."
"Nowhere in the evidence does anyone assert that Iraq was 'a walk in
the park'. This is not relevant."
Railton said he was establishing that the aggressive stance taken by
the US in the house raids may have been taken out of necessity.
Josh said, "The violence was what
we created. Myself and
my fellow soldiers. There would have been no violence if not for us.
We never saw a combatant face to face the whole time we were in
Iraq."
"At what point did you conclude that?"
"We all knew that if the positions had been reversed, if Iraq had
invaded the US, there would have been ten times the violence. We
were bringing death and destruction on Iraq. People may call them
terrorists, but they are also freedom fighters. They are doing what
anyone would do, what we would do: fighting for their families,
fighting for what is theirs."
Railton asked if Josh objected to the house raids at the time, and
Josh talked about what happened to people who objected even
slightly, how they were punished, threatened with having their pay
cut off, so their families would have no way to support themselves,
threatened with jail time.
Did you object? "I did what I was told, sir."
Railton tried to get Josh to pinpoint the time when he realized what
they were doing was wrong. Josh described an evolution of thought,
rather than an epiphany moment. "When I first went, I believed in
the mission. It took a while for me to see the reality."
"And what was the reality as you saw it?"
"That the US was terrorizing the Iraqi people."
Railton took Josh through his time back in the US, trying to
establish that Josh had other options besides jail, Iraq or Canada.
It was clear there were no other options, certainly none that Josh
was aware of.
Josh said the military brought him as far as Atlanta, then he made
his way back to Fort Carlson, Colorado, where his family was living
on base, on his own. At this point, the IRB member interrupted, "You
mean the military transported you from there?"
"No sir. We had to make our own way."
"You had to buy your own ticket?"
"From the hub, which in my case was Atlanta, yes."
Incredulous, Mr Atkinson asked, "Were you reimbursed for that?"
"No, sir."
Josh mentioned someone from his squad who went home on leave, and
finding "he had nothing there," reported back for duty early. I made
note of that heartbreaking fact.
Railton continued asking
Josh about his two weeks of leave, and then about the 14 months he
and his family spent living in hiding in Philadelphia. Josh
described "living in the shadows" in a paranoid state.
Railton helpfully pointed out that he recently did a Google search
for things like "army deserter needs help" and "AWOL need help," and
found the GI Rights Hotline and "four or five civilian lawyers who
bragged that they could get AWOL soldiers off without jail time".
Josh pointed out that he was in hiding in 2004. Much has changed.
[Railton made the GI Rights Hotline sound like a federal agency.
It's a coalition of peace activists! It bothered me that this wasn't
clarified.]
Railton continued questioning Josh about his time in Philadelphia,
trying to establish that Josh didn't try hard enough, or didn't try
at all, to find a way out of the Army. Josh was steady, consistent
and perfectly clear. There was no way out. There was no one to help.
There was either jail or Iraq.
Did you seek a civilian lawyer? "No. I was scared of being sent to
jail or back to Iraq. At that time, I had never seen a lawyer in my
life. I didn't know what you told a lawyer was private and
confidential."
Did you see a medical doctor? "No. I was afraid of being
apprehended, and being stop-lossed back to Iraq. I also didn't know
that what you told a doctor is private."
[Apparently Railton "doesn't know" that Josh couldn't afford to see
a doctor in the US. Lack of medical insurance for his family was one
of the reasons he joined the Army in the first place!]
Did you seek spiritual counseling? "No, sir. After my time in war,
my spiritual state was a little off."
* * * *
Then Railton went off the rails, asking Josh if he had made plans
for what would happen if he was returned to the US, if he had sought
legal counsel there. Alyssa asked about the relevance of the
questions, and he tried a slightly different approach.
Have you made plans for what you would do in the US? "I focus my
energies on trying to remain in Canada, sir. I want to stay, and I
should be allowed to stay, and I focus all my energies on that,
sir."
He asked why Josh thought he would be sent to prison if returned to
the US.
"Because of the examples of the people who have already been sent
back, sir. Why would it be any different for me?"
Then Railton asked Josh how many copies his book had sold in the US.
Josh didn't know, but Railton pressed on. "Would you say it sold
well? Would you say it sold thousands of copies? I have a friend who
just self-published a book, and he has already sold 8,000 copies--"
The IRB member interrupted. "Be careful, Mr Railton."
We broke for lunch.
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"The violence was what we created. Myself and my fellow soldiers. There would have been no violence if not for us. We never saw a combatant face to face the whole time we were in Iraq." |
After lunch, the RPO asked
a few more questions, about what happens to military deserters in
the US, the hazing they face while waiting for punishment, and if
it's possible to refuse such hazing. Again, I now think he was
helping to establish that Josh would be punished for refusing to
systematically degrade and humiliate people.
Then it was Alyssa's turn. She asked Josh questions which clarified
and further detailed his earlier answers. Details like being taught
how to curse in Arabic, specifically for the purpose of humiliating
Iraqi women in the street, and further enraging Iraqi men. Details
like the names of the captains who ordered the house raids. Details
like the fact that nothing was ever found in any house raid. Ever.
"At first I thought we were there because of weapons of mass
destruction, and because Saddam Hussein was an evil tyrant. But
nothing was ever found. No terrorists, no weapons, nothing. Nothing
but homes being broken into, and soldiers taking whatever they
wanted. Months of this, and it never changed. I had to ask myself,
Why? Why are we here? Why are we doing this?"
Alyssa was typically brilliant about asking simple questions that
prompted Josh to tell parts of his story in more detail. How did you
know you'd be punished if you tried to object?
"One time a lieutenant colonel was coming to speak to us. Our
sergeant instructed us that we were not to ask him any questions. We
were told the colonel would ask if anyone has any questions, but we
were not to ask him anything.
"The lieutenant colonel gave his talk, and sure enough, he asked us,
Are there any questions. One soldier asked why we were using
Vietnam-era body armor, instead of the more effective armor we knew
some other units had. After the lieutenant colonel left, that
soldier's pay was cut in half. For asking one question."
Alyssa asked Josh about the two times he tried to object by filing a
mission statement, which is supposed to be his right as a soldier.
If you've read The Deserter's
Tale, Josh attempted to file mission statements after the
incident with the decapitated head, and with the little girl outside
the hospital. Both times, he was told, "It's none of your concern,
soldier."
Alyssa also asked about some incidents in which soldiers were
punished for their behaviour in Iraq. Nine people were court
martialled for incidents in the Abu Ghraib prison, and two were
court martialled for murdering Iraqi civilians in cold blood.
Doesn't this show that the Army cares about this inhumane treatment?
Josh explained that those actions were outside of normal activity.
"That was insanity. Craziness. But what we did, the house raids,
that was normal. Standard operating procedure. We weren't cowboys.
We were following standard orders."
Alyssa had Josh mention a platoon-mate who deserted and was forcibly
returned to Iraq. The platoon leader told his chain of command,
"You'd better send him somewhere else, because we'll shoot him in
the back."
Josh was able to explain why conscientious objector status, as
defined by the US Department of Defense, does not apply to him. "I
can imagine that some wars could be justified, in the past or
perhaps in the future. Also, it's based only on religious beliefs.
I'm not a particularly religious person. I object to the immorality
of this war."
Do you think the Army might be more lenient with you because of your
PTSD? Josh said, no, if anything it would be the opposite, citing
the example of war resister James Burmeister. The Army views PTSD as
weakness.
Do you think the Army would help you with your PTSD if you were to
return?
"There are thousands of veterans not getting help with their PTSD.
Why would I be any different? 'Drink water and drive on.' That's the
Army's answer to everything.
"No one gets treatment. They're only given medication. The suicide
rate of soldiers returning from Iraq is massive. Iraq vets are
already living on the streets."
Alyssa established how the US military has already tried to silence
Josh, hunting him down in Toronto - not asking to speak to him
through his lawyer, but trying to trick him into being taken into
custody - and changing his record after the fact. A few years ago,
when police pulled Josh over for some car issues, they ran his
license, told him his car was riding too low in the back, and said
have a nice day. Last year, when he was pulled over (the man is
famous for driving junkers), police ran a license check, then pinned
Josh against the car with a gun to his head. Why the difference? His
license check came up as "known for drugs, weapons and explosives".
Since none of that is true, how did the change occur?
Through Alyssa's questions, Josh was able to emphasize how the US
military's policy towards deserters has changed since the invasion
of Iraq, how soldiers who desert because they oppose the war, and
who speak out about that opposition, are selected for prosecution
and then punished more harshly than a soldier who, for example, goes
AWOL to go home to see a dying parent.
Alyssa helped Josh clarify the futility of trying to get out of the
Army through any legal means. It's stay in and do as you're told, or
go AWOL.
The final examination was
from the Immigration and Refugee Board member, Mr Ken Atkinson.
He asked about Josh's attempts to get out of the Army, seemingly
implying that he hadn't tried hard enough. I also thought he tried
to imply that Josh has not received an official diagnosis of PTSD.
Early on, Mr Atkinson asked about Article 15. If you read my post
about
war resister Dale Landry's recent federal court hearing, you'll
recall that the Crown attempted to portray Article 15 of the Uniform
Code of Military Justice as a "dispute resolution mechanism". (See
the reaction of a former member of the US military,
here.)
At this point, Alyssa strenuously objected, and attempted to clarify
what Article 15 actually is: punishment without a court martial. For
a deserter, the outcomes of Article 15 could be jail and a
discharge, or jail and forcible return to Iraq. The outcomes of
court martial: jail and discharge, or jail and forcible return to
Iraq.
The Board member insisted that Article 15 is something less onerous
than court martial. Alyssa was as strong as she could have been, but
it's unwise for a refugee claimant's counsel to go up against the
board member too strongly, and she had to let it drop.
The Board member asked if there has been any change in the
procedures for house raids in Iraq, if the US military is still
stopping Iraqis' cars at checkpoints, and how Iraqi detainees are
now being processed. To Josh's knowledge, nothing has changed. The
IRB member then implied that perhaps Josh is just ignorant of these
changes. And what does this have to do with Josh's claim for refugee
protection? I'm not sure.
In response to a question from the member, Josh briefly described
what it was like to "live in the shadows" for 14 months in
Philadelphia. Driving to work by a different route every day. Seeing
a police car and changing course, driving into a wealthy
neighbourhood and pretending to live there. Never revealing anything
about himself, never trusting anyone, living hour to hour, day to
day.
Mr Atkinson asked a lot of questions about refusing illegal orders,
and about the chain of command. There's clearly a disconnect here,
where the IRB believes - or wants to believe, or uses a feigned
belief as an excuse - that a soldier in the US military can simply
say, "I don't want to participate in this," and continue living a
normal life.
The member brought up an incident in Ramadi, in which Josh's entire
squad objected to an order, an insane suicide mission from which
none of them would have returned. Weren't those orders changed? Josh
explained that (a) that mission was out of the ordinary (unlike the
house raids), and (b) the entire squad, including the squad leader,
had objected.
The Board member seemed to pretend not to understand the difference.
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"The RPO quoted from another decision....that states that any form of punishment, at any level, arising from the soldier's refusal to follow orders constitutes persecution, and thus supports a claim to protection" |
Alyssa's cross-examination
again helped clarify some of the Board member's erroneous
implications.
Is there an appeal from a court martial sentence? There is no appeal
for the charge of desertion. And for any appeal, the soldier serves
time in prison while waiting for the appeals process.
What was the difference between the incident in Ramadi and the house
raids? The orders in Ramadi were for a one-time mission. Also,
tellingly, the refusal to participate was out of concern for the
lives of the US soldiers themselves. It was not a refusal based on
concern for the victims of the mission: the squad was being sent to
blow up a school.
After another break, Mr Gould, the
Refugee Protection Officer, made a closing statement. The Ministry
and Alyssa both asked to make their statements in writing, so Mr
Gould's statement served as the conclusion to the hearing.
This was very interesting, and very surprising. Although he spoke in
the most qualified language imaginable, the RPO was, in fact,
arguing on Josh's behalf.
Nothing was direct. Everything was "...the Board should at least
consider the possibility..." and "...can it fairly be said that this
might possibly be...". At the time, I felt like Josh's clear voice
of truth was being diluted by polite legal language. Imagine an
eyedropper of pure truth being squeezed into a swimming pool of
words. The truth is in there somewhere, but how can you find it?
But later, reading over my notes, I saw that the RPO was on Josh's
side. Granted, he's not the one who renders the decision. That's
done by the Board member, who is a political appointee. But if the
Board member wants to grant refugee status in this case, the RPO has
given him plenty to go on.
Mr Gould said it is necessary to consider the military backdrop
"that permeates the entire claim". Josh's actions or non-actions at
every turn must be seen in terms of violence, fear of a violent
death, the necessity to follow orders, and the consequences of
refusing an order.
He said that in this case, state protection must be seen in a
military context, and that justice in this context would be very
harsh, because the charge of desertion is very serious. While there
must be clear and convincing evidence that state protection is not
available, and that the bar is set very high because the US is a
democracy and the military has a justice system, the Board, still,
must ask several questions.
Will the claimant be in a position to raise a defense?
Will he be given an adequate hearing?
Mr Gould said it's clear that Josh will not be able to mount a
defense, as his motives for desertion would not be allowed as
evidence. "This is the first point where state protection becomes
complicated," he said, noting that we must turn to the Barnes
decision for guidance. He then quoted extensively from it:
...officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection. Indeed, the authorities indicate that 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.
Mr Gould pointed out that Josh was involved in, as a conservative
estimate, some 200 house raids, which he has described in detail,
all involving civilians. Mr Gould said the repetitive nature of
these raids, the fact that the degrading treatment of noncombatants
was inherent in the orders, must be weighed against the issue of
state protection.
The RPO quoted from another decision that speaks to a soldier
refusing orders that are morally repugnant and considered
unacceptable by international standards. That decision states that
any form of punishment, at any level, arising from the soldier's
refusal to follow orders
constitutes persecution, and thus supports a claim to
protection.
He suggested that this should be given considerable weight, saying
there is "clear and convincing evidence" that the claimant will have
no defense at his court martial, and that "similarly situated
people" (an important factor in refugee law) have been dealt with
harshly.
The RPO said that if the IRB accepts that "any level of punishment
in this situation amounts to persecution, it puts a very different
cast on this claim. It is incumbent on the Board at least to
consider this."
He mentioned, again, the US as a democracy, and the extensive
military justice system. But then he returned to Josh's speaking
out, and how similarly situated people have been punished for
speaking out.
He said there was an additional complication: hazing before a court
martial would even take place. "Is that an unfortunate fact of
military life? Or does it amount to persecution in and of itself?"
Can the claimant complain about that harsh treatment? No. Can he
refuse to comply with it? No.
Mr Gould questioned whether Josh's "notoriety," for having written a
book in which he publicly opposes the war, would put him in an even
worse situation if returned to the US.
"The Board should at least consider the possibility that the level
of hazing the claimant is likely to endure may put him at least
within the guidelines of section 97, if the test for section 96
fails."
Now both sides are given time for written submissions: first Alyssa,
then the Ministry's response, then Alyssa's response to that. The
IRB will render its decision in late July.
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"I was raised as a patriotic American, taught to respect my government and to believe in my president.... I would have laughed out loud if somebody had predicted I would become a wanted criminal, live as a fugitive in my own country, and turn my wife and children into refugees as I fled with them across the border." |
