by Janice Tibbetts

A Canadian court has sided for the first time with a military deserter who fled to Canada seeking refugee status, ruling yesterday that the U.S. soldier witnessed enough human rights abuses during a stint in Iraq that he could qualify for asylum.

The decision also marked the first time that the Federal Court, which has heard a handful of cases involving deserters, concluded that military action against civilians in Iraq violates the 1949 Geneva Convention, an international prohibition against humiliating and degrading treatment.

Federal Court Justice Richard Barnes ordered the Immigration and Refugee Board to reconsider the failed refugee claim of Joshua Key, a soldier who entered Canada with his wife, Brandi, and their small children in March 2005.

Mr. Key, an army private, deserted during a two-week break from serving as a combat engineer in Iraq, where he spent eight months in 2003 and says he was involved in military-condoned home invasions against civilians.

"This is a real breakthrough," said Lee Zaslofsky of the Toronto-based War Resisters Support Campaign. "What excites us is this may also apply to other war resisters who took part in Iraq."

Judge Barnes ruled that the board too narrowly interpreted refugee eligibility by concluding only soldiers who seek protection from committing war crimes need apply.

"Officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection," said the ruling.

The judge said it "cannot be seriously challenged" that some of the conduct in which Mr. Key participated violated the Geneva Convention.

"This included the responsibility for conducting night-time raids of private Iraqi homes in search of weapons," said the ruling. "Pte. Key's role in this was to blow open the doors with explosives and then to assist in both securing the premises and detaining the adult male occupants.

"Mr. Key alleged that during these searches he witnessed several instances of unjustified abuse, unwarranted detention, humiliation and looting by fellow soldiers, much of which he said was ignored by his superior officers."

The Geneva Convention prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment" and "unlawful confinement."

Mr. Key, 30, is the co-author of The Deserter's Tale, a book about serving in Iraq and his flight from the U.S. military. He was born in Oklahoma in 1978, enlisting in the military in 2002. He now lives in Spiritwood in northern Saskatchewan and says he suffers from post-traumatic stress, including insomnia, nightmares and hallucinations that "flash me right back to Iraq."

His lawyer, Jeffry House, said it was not lost on Mr. Key that the ruling was released on July 4, the U.S. national holiday.

"He's crossing his fingers that he and his family will be able to stay," Mr. House said. The decision could affect as many as 100 U.S. deserters who crossed the border into Canada after serving in Iraq, he added.

One of those is Corey Glass, a 25-year-old U.S. citizen who served in Iraq and has been ordered to leave Canada by July 10. The War Resisters Support Campaign called on the federal government yesterday to halt deportation proceedings.
© The Ottawa Citizen 2008