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Just desertions

Canada should open its arms to soldiers fleeing the horrors of an illegal American war in Iraq

Lawrence Hill, Citizen Special

Published: Saturday, November 24, 2007

Now that the Supreme Court of Canada has refused to hear the cases of the first two American deserters from the Iraq war to come knocking at its door, the last real hope for U.S. soldiers who have moral objections to the war lies in the hands of Canadians and our elected officials.

Last week, Jeremy Hinzman and Brandon Hughey -- the first two American military deserters to ask Canadian courts to allow them to stay in this country -- came to the end of their legal fight. By refusing them leave to appeal, the Supreme Court upheld decisions by lower courts and by the Immigration and Refugee Board to the effect that they were not genuine refugees and had no right to stay in this country.

Over the last few years, dozens of American soldiers have deserted and fled to Canada to avoid service or continued duty in Iraq. They have argued that they should be allowed to stay in this country rather than being forced to carry out an illegal and immoral war or being jailed for refusing to do so. To date, not one of them has convinced the Canadian Immigration and Refugee Board, or won any support from Canadian judges.

A U.S. soldier interrogates a youth during a raid in the town of Nahrawan, on the outskirts of Baghdad.View Larger Image View Larger Image

A U.S. soldier interrogates a youth during a raid in the town of Nahrawan, on the outskirts of Baghdad.

Erik De Castro, Reuters
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Two facts bear repeating.

First, the Anglo-American attack on Iraq in 2003 was an offensive -- not a retaliatory --strike. The war had no approval from the UN Security Council, and for this reason Canada's prime minister of the day, Jean Chrétien, refused to support it. In 2004, then-UN secretary general Kofi Annan declared explicitly that the U.S.-led war on Iraq was illegal.

Second, according to official UN policy, soldiers who are likely to be punished for having deserted military action "condemned by the international legal community as contrary to rules of human conduct" should be eligible for refugee status. To date, neither fact has been of any concrete assistance to Mr. Hinzman, Mr. Hughey or any of the other U.S. war deserters seeking asylum in Canada.

Sadly, Canadian courts and the Immigration and Refugee Board have danced around the question of whether deserters from the U.S. forces should not be compelled to take part in an illegal war. When she ruled against Jeremy Hinzman last year, Justice Anne Mactavish of the Federal Court of Canada wrote: "It should be noted that the question of whether the American-led military intervention in Iraq is in fact illegal is not before the Court, and no finding has been made in this regard." And when he ruled against Mr. Hinzman the previous year, Brian Goodman of the Immigration and Refugee Board noted that "evidence with respect to the legality of the U.S. embarking on military action in Iraq," would not be "admitted into evidence at the hearing of these claims." "They are ducking the question of whether a soldier can be forced to fight an illegal war and whether a soldier can be jailed for refusing to fight an illegal war," Mr. Hinzman's and Mr. Hughey's lawyer, Jeffry House, said in an interview. As he noted in written arguments to the Supreme Court of Canada, Mr. House pointed out that although our courts have so far refused to grant refugee status to Americans soldiers who are deserting military duty out of moral objection to the war in Iraq, in 1995 the Federal Court of Appeal granted refugee status to a deserter from Saddam Hussein's armed incursion into Kuwait, on the basis that he should not be compelled to take part in an illegal war.

 
 
 

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