“Our children did not enlist to commit war crimes and crimes against humanity,” said Cindy Sheehan, the prominent American antiwar activist who lost her son. During a visit to Ottawa last week, she called on Canada to welcome war resisters as refugees. The call comes as the Federal Court of Appeal gets set to hear appeals from resisters Jeremy Hinzman and Brandon Hughey.
Last month the Federal Court upheld the Immigration and Refugee Board (IRB) findings that the two did not qualify as Convention refugees. Both the IRB and the court appear to have danced around the politically sensitive issues and existing case law.
Hinzman and Hughey, both of whom crossed into Canada in 2004, 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 were rejected by the IRB. The adjudicators held that they were not conscientious objectors (because they were not opposed 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 where the type of military action with which an individual does not wish to be associated 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 were appealed to the Federal Court, but Justice Anne Mactavish noted in separate decisions (Hughey v. Canada  F.C. 421 and Hinzman v. Canada  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  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 supported Iraq. 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 resister.
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.
House, who represents 12 of them, hopes that the court of appeal will consider these important questions and refer the matter back for further consideration, principally the issue of the legality of the war and the claimants’ 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 preemptive 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 must decide if it will remain so.
This piece originally appeared in The Lawyers Weekly.