After another break, Mr Gould, the Refugee Protection Officer, made a closing statement. The Ministry and Alyssa both asked to make their statements in writing, so Mr Gould's statement served as the conclusion to the hearing.
This was very interesting, and very surprising. Although he spoke in the most qualified language imaginable, the RPO was, in fact, arguing on Josh's behalf.
Nothing was direct. Everything was "...the Board should at least consider the possibility..." and "...can it fairly be said that this might possibly be...". At the time, I felt like Josh's clear voice of truth was being diluted by polite legal language. Imagine an eyedropper of pure truth being squeezed into a swimming pool of words. The truth is in there somewhere, but how can you find it?
But later, reading over my notes, I saw that the RPO was on Josh's side. Granted, he's not the one who renders the decision. That's done by the Board member, who is a political appointee. But if the Board member wants to grant refugee status in this case, the RPO has given him plenty to go on.
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Mr Gould said it is necessary to consider the military backdrop "that permeates the entire claim". Josh's actions or non-actions at every turn must be seen in terms of violence, fear of a violent death, the necessity to follow orders, and the consequences of refusing an order.
He said that in this case, state protection must be seen in a military context, and that justice in this context would be very harsh, because the charge of desertion is very serious. While there must be clear and convincing evidence that state protection is not available, and that the bar is set very high because the US is a democracy and the military has a justice system, the Board, still, must ask several questions.
Will the claimant be in a position to raise a defense?
Will he be given an adequate hearing?
Mr Gould said it's clear that Josh will not be able to mount a defense, as his motives for desertion would not be allowed as evidence. "This is the first point where state protection becomes complicated," he said, noting that we must turn to the Barnes decision for guidance. He then quoted extensively from it:
...officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection. Indeed, the authorities indicate that military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve.
Mr Gould pointed out that Josh was involved in, as a conservative estimate, some 200 house raids, which he has described in detail, all involving civilians. Mr Gould said the repetitive nature of these raids, the fact that the degrading treatment of noncombatants was inherent in the orders, must be weighed against the issue of state protection.
The RPO quoted from another decision that speaks to a soldier refusing orders that are morally repugnant and considered unacceptable by international standards. That decision states that any form of punishment, at any level, arising from the soldier's refusal to follow orders constitutes persecution, and thus supports a claim to protection.
He suggested that this should be given considerable weight, saying there is "clear and convincing evidence" that the claimant will have no defense at his court martial, and that "similarly situated people" (an important factor in refugee law) have been dealt with harshly.
The RPO said that if the IRB accepts that "any level of punishment in this situation amounts to persecution, it puts a very different cast on this claim. It is incumbent on the Board at least to consider this."
He mentioned, again, the US as a democracy, and the extensive military justice system. But then he returned to Josh's speaking out, and how similarly situated people have been punished for speaking out.
He said there was an additional complication: hazing before a court martial would even take place. "Is that an unfortunate fact of military life? Or does it amount to persecution in and of itself?" Can the claimant complain about that harsh treatment? No. Can he refuse to comply with it? No.
Mr Gould questioned whether Josh's "notoriety," for having written a book in which he publicly opposes the war, would put him in an even worse situation if returned to the US.
"The Board should at least consider the possibility that the level of hazing the claimant is likely to endure may put him at least within the guidelines of section 97, if the test for section 96 fails."
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Now both sides are given time for written submissions: first Alyssa, then the Ministry's response, then Alyssa's response to that. The IRB will render its decision in late July.
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