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The claimant's problems may be connected with a disinclination to serve in the military. Either the claimant entered the military and left it without authorization (i.e., the claimant deserted); or the claimant was ordered to report for service, but refused to report or refused to be inducted; or the claimant has not yet received a call-up, but anticipates that the order will be forthcoming and does not wish to comply.
The courts have established some very basic points of departure for the analysis of such claims.Thus, conscientious objectors and army deserters are not automatically included in the Convention refugee definition, nor is a person precluded from being a Convention refugee because the person is a conscientious objector or deserter. It is not persecution for a country to have compulsory military service. An aversion to military service or a fear of combat is not in itself sufficient to justify a fear of persecution...
Zolfagharkhani indicates that it is not the claimant's motivation for refusing to serve which is relevant, but rather the intent or principal effect of the conscription law. In accordance with this guideline, one must ask whether the reaction of the authorities to the claimant's refusal to serve would be a function of some Convention attribute which the claimant has, or would be perceived by the authorities as having (a political opinion often being the likeliest possibility). Even where the claimant has no strong convictions which should be permitted to interfere with the claimant's serving, his refusal might be regarded by the authorities as an indication of an opinion which is frowned upon by them.
However, it would seem that the motivation of the claimant has not been completely discarded as a factor in claims concerning military service, although the cases do not make clear to which element or elements (nexus, serious harm) it may relate, and exactly how it should be worked into the consideration of a particular element. In Zolfagharkhani itself, the Court of Appeal focused on the claimant's reason of conscience for not wishing to serve, and laid considerable emphasis on the fact that the particular combat technique to which the claimant objected was abhorred by the international community; but the Court did not provide much explanation as to how such attending to the claimant's reason of conscience was to be reconciled with the view that the claimant's motivation is not relevant. Furthermore, in subsequent decisions, the Trial Division has repeatedly considered the claimant's conscience, as well as the attitude of the international community to operations criticized by the claimant...
...there is some debate - and some confusion - about the meaning of the term "conscientious objector." In Popov, the Trial Division indicated that, "in the usual sense", this term applied to a person who "was a pacifist or was against war and all militarism on the grounds of principle, either religious or philosophical." It may be correct to reserve this particular term for persons who are opposed to all militarism; but at the same time, it must be appreciated that what is important for the determination of a claim is not whether this particular label fits.
The important question is whether a claimant's reason of conscience will be sufficiently significant only if it entails an opposition to all militarism (or is otherwise broad in scope). In Zolfagharkhani, the Court of Appeal indicated that a claimant's objection may be entitled to respect even if it is more specific: where the claimant did not object to military service in general or to the particular conflict, but was opposed to the use of a particular category of weapon (namely, chemical weapons), the Court found his objection to be reasonable and valid. Similarly, the Trial Division has held that a claimant may object to serving in a particular conflict, rather than objecting to military service altogether, and may still be a Convention refugee.
This is not to say that any narrow or limited objection of conscience will suffice.The objection may be regarded as sufficiently serious if the military actions objected to are judged by the international community to be contrary to basic rules of human conduct. However, a military's operations are not to be characterized as contravening international standards if there are only isolated violations of those standards.Instead, there must be offending military activity by the military forces which is condoned in a general way by the state.
The serious harm that is a requisite for persecution may be found in the forcing of the claimant to perform military service; where reasons of conscience are involved, there is also a violation of the claimant's freedom of conscience; where military actions violate international standards, the claimant might be forced into association with the wrongdoing. One must also bear in mind that some conscription activities may be extra-legal, and may therefore lack any basis for claiming to constitute legitimate exercises of state authority.An organization may have de facto authority and an ability to coerce persons into performing military service, yet not be a legitimate government, and have no right to conscript.
If a call-up for military service would not necessarily result in the claimant's being compelled to perform military service, the injury to the claimant's interests is less, and the legitimacy of the demands placed on the claimant by the state looms large. Therefore, where objections of conscience may enable the claimant to obtain an exemption from service, or assignment to alternative service (i.e., non-military service, or non-combat service, or service outside a particular theatre of operations), the conscription law may not be inherently persecutory.
Nor is there persecution if the penalties for refusing to serve are not harsh, except perhaps where the refusal to serve occurs in the context of a military operation condemned as contrary to basic rules of human conduct. The Refugee Protection Division must consider the actual practice in the treatment of deserters, and not just the penalty prescribed by law.
Somewhat akin to the idea that the claimant would not be persecuted if he would not be forced into military activity is the notion that the Refugee Protection Division should not endorse an objection to compulsory military service in the country of reference if the claimant chose to immigrate to that country, knowing that compulsory service existed there...
