International Journal of Refugee Law Advance Access originally published online on April 2, 2008
International Journal of Refugee Law 2008 20(1):123-165; doi:10.1093/ijrl/een008
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The Refusal to Bear Arms as Grounds for Refugee Protection in the Canadian Jurisprudence
The evasion of compulsory military service is an issue raised very frequently in claims for refugee protection. In Canada, the determination of these claims follows the decision of the Federal Court of Appeal in Zolfagharkhani. Unfortunately, this decision is flawed in several respects and has led to notable deficiencies in the jurisprudence. Rather than continuing to reply upon the ad hoc approach of Zolfagharkhani, the article suggests that the jurisprudence should be re-organized and understood in terms of a more comprehensive analytical framework. Such a framework would be based upon a distinction between claims based upon the characteristics inherent in military service and those based upon ancillary features of military service. In the former category, three subcategories of claims based upon inherent features of compulsory military service: prohibited forms of compulsory military service, prohibited conscriptors, and prohibited subjects of compulsory military service. In the first subcategory are refugee claimants fearing conscription into possibly illegal conflicts. In the second subcategory are non-state conscriptors and extra-legal state conscriptors. In the third subcategory are refugee claimants who may not be conscripted due to some aspect of their identity, including children, various other possible categories and so-called conscientious objectors. In the latter category, individuals fearing an ancillary aspect of compulsory military service may also ground a claim, including due to discriminatory mistreatment before, during and after their military service.
* Graduate student at Osgoode Hall Law School at York University, research associate of the Centre for Refugee Studies. He previously practiced as a refugee lawyer in Vancouver. He would like to thank his colleagues at Osgoode Hall and at the University of Michigan, where this article was completed, for their support, ideas and guidance. This article is a statement of the law as of Sept. 2006.