View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by YorkSpace Paper presented at CRS Brown Bag Seminar on 5 January 2005 Dear Friends, Please note that (i) this paper is a work in progress, and (ii) this paper forms a section of a larger work. For both of these reasons, this paper is made available with the stipulation that it will not be cited without the permission of the author. Should you have any questions or comments about this paper do not hesitate to contact me at [email protected]. Regards, Martin Jones CHAPTER TWO: CANADIAN REFUGEE JURISPRUDENCE ON MILITARY SERVICE EVASION Compulsory military service is practiced in about 100 countries; conscription exists as a reality in a majority of the member states of the United Nations and for an overwhelming majority of the population of the world.1 Compulsory military service has been both denounced as nothing less than the surrender of “the most essential rights of personal liberty”2 and praised as the sine qua non of full citizenship.3 Despite a debate that continues to this date concerning its legitimacy, compulsory military service is a continuing phenomenon that affects the lives of many millions of men around the world.4 Many of the countries requiring military service are a significant source of refugees. Of the top ten source countries for refugees in 2002 at least eight require military service.5 It is not surprising, therefore, that the topic of compulsory military service, and in particular the issue of the status of military service evaders, has been raised in refugee determination proceedings.6 It will be the purpose of this paper to asses the treatment of 1 See infra, at Chapter 1, page Error! Bookmark not defined. et seq., for a discussion of the methodological issues that require any enumeration of the total number of countries requiring compulsory military service to be approximate. 2 Philip Bobbitt “National Service: Unwise or Unconstitutional” in Martin Anderson, ed. Registration and the Draft: Proceedings of the Hoover-Rochester Conference on the All-Volunteer Force (Hoover Institution, Stanford University, 1982) at 61 quoting Daniel Webster’s address to the US Congress in 1814. 3 George Q. Flynn Conscription and Democracy: The Draft in France, Great Britain and the United States (Greenwood Press, Westport CN, 2002) at 15 (referring to the Constitution of the French First Republic which declared “[T]ous les français sont en requisition permanente pour la service des armies”. 4 The male gender will be used to refer to military service evaders and objectors. It is accepted wisdom that language shapes as well as reflects our thinking. While this observation may usually suggest the use of inclusive language, it also requires that inclusive language should not be used where such language would obscure the underlying reality. In the case of military service, almost all of those conscripted into the military every year are male. Only one country (Israel) out of the one hundred countries imposing conscription consistently requires females to perform military service. 5 The top ten source countries for refugees in 2002 were Afghanistan, Burundi, Angola, Sudan, Somalia, the Democratic Republic of the Congo, Iraq, Bosnia- Herzegovina, Vietnam, and Eritrea. Conscription was reported to occur in all countries except Somalia. See UNHCR Refugees by Numbers: 2003 (UNHCR, Geneva, 2003) at 9 and Bart Horeman and Marc Stolwijk Refusing to Bear Arms: a world survey of conscription and conscientious objection to military service (War Resisters International, London, 1998) (hereafter “Refusing to Bear Arms”) q.v. entries for each of the top ten source countries. 6 The term “conscientious objector” is avoided in this paper. While much of the literature employs this term, its meaning is not consistent; the definition of “conscience” varies between authors. Furthermore, it is often used to distinguish those who would military service evaders in the refugee jurisprudence in general, with particular attention to the Canadian jurisprudence. The central thesis of this paper is that the refugee jurisprudence concerning military service evasion has been, up to the present, plagued by fragmentation, incoherence and inattention. As contrasted with refugee law in general, the jurisprudence on military service evasion is parochial and makes very limited use of extra-jurisdictional refugee jurisprudence on the topic, municipal jurisprudence on military service evasion or international human rights jurisprudence.7 These jurisprudential deficits have been accompanied by a lack of legislative and administrative attention to the subject. Notwithstanding the central thesis of this paper, it will be suggested that the deficits in the refugee jurisprudence are not without remedy. A coherent approach to military service evasion which draws upon extra-jurisdictional refugee jurisprudence, municipal experience of conscription and international human rights jurisprudence can yet be formulated. However, such an approach to the status of military service evaders in refugee law, in particular, cannot succeed without recognition of the underlying debate about the legitimacy of military service raised by the topic of military service evasion in general. This paper will be divided into three parts. Firstly, the framework of the definition of refugee will be outlined in the context of the Canadian statutory and jurisprudential framework, including the basic elements as relevant to the determination of claims evade military service on religious grounds from those who would evade military service on other grounds - suggesting a moral or spiritual priority that belies the conclusion that the authors would have us draw both about the worthiness of such objectors to receive protection and the unworthiness of other objectors to receive protection. In order to avoid this confusion and the appearance of bias, the terms “military service evaders” have been used throughout this paper. The use of this term also allows the debate to be expanded beyond an argument over the definition of “conscience”. 7 Indeed, refugee jurisprudence has been generally characterized as being both open to and valuing a diverse range of influences: “In our view, the future of the Convention definition must be linked to the future of international law, and calls for a principled and intellectually creative interpretation by adjudicators. The careful use of refugee law learning from other jurisdictions is already contributing to a transnational refugee law jurisprudence, and there is value in creating an accessible and comprehensive international database of refugee decisions.” (A. M. North and Nehal Bhuta “The Future of Protection: The Role of The Judge” 15 Geo. Immigr. L.J. 479 (2001) at 496) This characterization is adopted not only by scholars and decision-makers, but also by the jurisprudence itself, which in places go so far as to require the consideration of foreign jurisprudence in the interpretation of refugee law: “The exercise I have gone through demonstrates that to construe the statute with a view to [a particular interpretation of membership in a particular social group] requires the weighing of credible evidence in the form of foreign jurisprudence and learned commentary.” (Canada (MEI) v. Mayers [1993] 1 F.C. 154 (F.C.A.) at ¶ 26) involving military service evasion. Secondly, the Canadian jurisprudence thus far on the ability of military service evaders to gain refugee protection will be surveyed and organized. Thirdly, some specific deficits of the Canadian jurisprudence to date will be discussed and suggestions will be made on how to bring the jurisprudence into line with various international human rights instruments and various municipal standards. However, before proceeding to an assessment of the jurisprudence, a few words should be said about the Canadian focus of this paper. I. SIGNIFICANCE OF CANADIAN JURISPRUDENCE This paper will only systematically consider the jurisprudence of Canada – although reference will be made to cases determined in other jurisdictions where appropriate, in particular the jurisprudence of the United States, Australia and the United Kingdom. The focus on Canadian jurisprudence is both coincidental and not without significance. Coincidentally, it is the Canadian jurisprudence with which the author is most familiar and it was the Canadian jurisprudence that first brought the complexities of military service evasion to the attention of the author. Furthermore, the focus on Canadian jurisprudence can be seen as merely the first step in a larger project to assess the common-law refugee jurisprudence on military service evasion in general. However, there are also additional non-coincidental reasons why the study of the Canadian jurisprudence is significant. Canada possesses a well-developed judicial and administrative structure to determine refugee status on an individualized basis.8 Its refugee determination policies have been the subject of much praise; in particular, the Canadian approach to gender-based claims, civil-war situations and child refugee claimants have been recognized for their progressive nature. Canadian jurisprudence has been widely quoted in the jurisprudence of other countries and in scholarly literature as a guiding light in the interpretation of the definition of refugee.9 Furthermore, the Canadian jurisprudence is largely in keeping with the international jurisprudence on many issues raised by military service evasion.