US Army Deserters, and Refugee Applications

Recently, the case of a couple of American soldiers who went AWOL from their units and came to Canada has been in the news. The cases themselves are relatively mundane but for the fact that it is former American troops asking for refugee status. An American looking for refugee status is an odd creature to say the least.

But, let's consider their reasons for desertion, and subsequent application for refugee status:

1. They believed (or knew) that they would be asked to take part in actions in Iraq that they believed were immoral or illegal.

2. In the case of Mr. Hinzman, he had applied as a 'conscientious objector' with regards to being sent to duty in Iraq. This was declined.

3. In terms of punishment, he faces anything from years in military prison to the death penalty. (Although rare, desertion is one of the charges in the US military penal code that carries the possibility of a death penalty) "Observers" apparently think he'll spend approximately 5 years in lockup if returned to the United States. With GW Bush (aka "The Texecutioner") acting as C in C, I wouldn't be so sure about that personally.

I don't hold any particular belief about the merits of this case - I simply don't know enough about the details and the rules of refugee status under Canadian Immigration law to be make any useful comment.

However, a number of commentators have been making the "Go face your punishment like a man" cries. To a degree, there is some truth to what these people are saying - after all, the US army is a volunteer army at the moment. In theory, you signed up knowing full well what you were getting into.

But, there is another aspect or two to the story to be considered. While in the army, one's duty is primarily to follow orders and get the job done - whatever that job may be, and however your commanders tell you to do it. As the post-WWII prosecution of Nazi soldiers has demonstrated, there's a new consideration. A trooper on the 'front lines' of a situation cannot defend their actions with "I was just following orders". The world seems to have concluded that individual troops have a legal and moral responsibility for their actions.

Therefore, in the aftermath of war, individual troopers may well be held personally responsible for whatever happened in that war - regardless of where the orders came from. There are those, even within the US, that believe the Iraq war to be illegal. Worse, actions that have been carried out by members of the US military (e.g. Abu Ghraib ) that are as egregious as any war crimes perpetrated elsewhere.

On those grounds alone, an individual trooper may well be quite justified in refusing to obey orders, or resorting to desertion as in this case, if they have reason to believe that they will be ordered to take part in events that they could later be held criminally responsible for in the future. (Notably, we continue to hunt down and prosecute former Nazi soldiers some 60 years after WW II ended!)

The legal precedent and practical events exist to substantiate the worries that these soldiers have expressed. Perhaps, in light of the world's approach to war crimes in the last half century they have a point?