Resistance to Military Conscription Or Forced Recruitment by Insurgents As a Basis for Refugee Protection: A Comparative Perspective

This Article discusses certain instances in which claims for refugee protection could be recognized, even though they are asserted in the context of armed conflict and based on objection to participation in the conflict. While other nations rely on international principles to interpret treaty-derived terms in statutes governing refugee matters, the United States Supreme Court has ignored this convention in taking a restrictive approach to refugee protection. By narrowly construing the term "political opinion" and unduly focusing on the persecutor's state of mind, the Court has limited the scope of protection for thousands of legitimate asylum seekers. The decisions of a number of relevant foreign tribunals show that the Supreme Court's rationale runs contrary to established international standards.

This Article urges Congress to bring the doctrinal position of the United States back into conformity with international standards and comparative jurisprudence.