“Our
children did not enlist to commit war crimes and crimes
against humanity,” said Cindy Sheehan, the prominent American anti-war
activist who toured Toronto, Vancouver and Ottawa during the first week
of May. Sheehan, who lost her own son Specialist Casey Sheehan in Iraq,
in April 2004; she rose to prominence last year when she camped out at
President George Bush's Texas ranch, demanding answers for the war.
Sheehan called on the Canadian
government to welcome war resisters as refugees. “I believe our war
resisters are legitimate refugees,” she said during a visit to the
Legislature in Ottawa.
The call comes as Canada’s Federal Court of Appeal gets set to hear
appeals from resisters, Jeremy Hinzman and Brandon Hughey. Both are
appealing April 2006 decisions from the Federal Court which upheld the
Immigration and Refugee Board (IRB) findings that the two did not
qualify as Convention refugees. Both the IRB and the appeal court of
first instance appear to have danced around the politically sensitive
issues and existing case law.
Hinzman was a soldier in the elite infantry division, the 82nd Airborne.
He served in Afghanistan in a non-combat position after having applied
for conscientious objector status. After being refused CO status and
returning to America, he learned that he would be deployed to Iraq.
Hinzman did not wish to participate in what he considered to be an
illegal war and in January 2004 he drove to Canada to seek asylum. He is
currently living in Toronto with his wife Nga Nguyen and son Liam.
A native of San Angelo, Texas, Hughey
arrived in Canada in March 2004. He left his Army unit before it shipped
out to Iraq. It was, he says, his obligation to leave. “I feel that if a
soldier is given an order that he knows to not only be illegal, but
immoral as well, then it his responsibility to refuse that order,” he
wrote in response to e-mailed questions from the San Angelo
Standard-Times. “It is also my belief that if a soldier is refusing
an order he knows to be wrong, it is not right for him to face
persecution for it.”
Hinzman and Huey both face court martial and up to five years in jail
as deserters if returned. Yet, their arguments that they did not want
to participate in an illegal war and that they would be punished for
acting on their conscience was rejected by the IRB. The adjudicators
held that they were not conscientious objectors (because they were not
apposed to wars in general); the U.S. was willing and able to protect
them; and that their treatment would not amount to persecution.
Paragraph 171 of UN Handbook on Procedures and Criteria for
Determining Convention Refugee Status provides that when individual does
not wish to be associated with a type of military action which is
condemned by the international legal community as contrary to rules of
human conduct, punishment for desertion could be regarded as
persecution.
In denying both claims, the adjudicators opined that the legal status of
the war in Iraq had no bearing on the analysis of paragraph 171. This
determination was one of the issues on which the matters where appealed
to the Federal Court, but Madam Justice Anne Mactavish, noted in
separate decisions (Hughey v. Canada [2006] F.C. 421 and
Hinzman v. Canada [2006] F.C. 420) that this question was not an
issue before her and did not have to be decided.
The duo’s lawyer, Jeffrey House, says the
decisions at both levels were also based on the erroneous view that
American jurisprudence gives war resisters the right to seek a remedy if
they question the legality of a war. In fact, he argues that this is not
true. The leading case on the “political questions doctrine” which
revolves around whether people can challenge the legality of war based
on their conscience and international law was turned down by the United
States Supreme Court in Callan v. Bush. Given this situation,
the U.S. is not in a position to provide protection to resisters, notes
House.
The existing case law from the Federal Court of Appeal, Al-Maisri v.
Canada [1995] F.C. J. No. 642, appears on point and yet was rejected
by Justice Mactavish as being of “limited assistance.” The case involved
a Yemeni who was denied status by the IRB. Al-Maisri acknowledged he was
prepared to fight for Yemen to protect it from aggression, but was not
prepared to fight for Iraq against Kuwait. Yemen was an Iraqi
supporter. The Court of Appeal held that “non-defensive incursion into
foreign territory” was within the ambit of paragraph 171 and overturned
the IRB decision.
“What is wrong for Saddam Hussein should be wrong for the Americans as
well,” says House, a Vietnam-era draft dodger.
Justice Mactavish held that the legality of the conflict is irrelevant
when analyzing paragraph 171 when “one is considering the claim of a
low-level ‘foot soldier’.” Yet, Al-Maisri was also a “foot soldier.”
Justice Mactavish admitted that “given the decision of the Court of
Appeal in Al-Maisri, it is fair to say that the issue is not entirely
free from doubt,” and proceeded to certify this question, which gave the
two an automatic right of appeal to the Court of Appeal.
Authorities in Canada and the U.S are
closely monitoring the politically sensitive case. Indeed, the case has
become the proverbial public relations “hot potato” for the U.S. At the
initial hearing, a former U.S. Marine testifying in Hinzman's support
stated that American soldiers in Iraq routinely violated international
law by killing unarmed civilians, including women and children.
Affidavits from two International law professors confirming the
illegality of the war and reports from Human Rights Watch and the
International Committee of the Red Cross documenting the abuses and
violations were also filed.
Many U.S. soldiers are no doubt watching the case as well, hundreds of
whom are already in the country. Michelle Robidoux of the War Resisters
Support Campaign says they are aware of at least 20 soldiers who are
trying to gain refugee status. “They see tremendous support among
average Canadians,” says Robidoux “yet they are denied refuge by a
handful of appointed officials.”
House who represents twelve resisters hopes that the court of appeal
will consider the important questions raised by these cases and refer
the matters back for further consideration with directions, principally
the issue of the legality of the war and the claimant’s ability to seek
redress in the U.S.
Given the existing case law, the growing evidence of abuse by U.S.
troops, the international opposition to pre-emptive strikes, the
American position on the Geneva Conventions and the now infamous
“Torture Memos,” the Federal Court of Appeal finds itself at a critical
juncture. During the Vietnam era, Prime Minister Pierre Trudeau said
that Canada must be a “refuge from militarism,” now the court of appeal
must decide if it will remain so.
Faisal Kutty
is a Toronto-based writer and lawyer with the firm of Kutty, Syed &
Mohamed (www.ksmlaw.ca)
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