(Canadian) Federal Court to review U.S. military deserter case

[GliderGuider]

Supporters of an American military deserter rallied outside a Toronto courtroom Wednesday ahead of a Federal Court review of a decision that denied Jeremy Hinzman refugee status in Canada.

Hinzman, 27, left his U.S. Army unit in 2004 to avoid service in Iraq. He fled to Canada with his wife and young son.

He applied for refugee status, arguing that the U.S. invasion of Iraq violated international human rights and was illegal.

An immigration panel in March 2005 denied Hinzman political asylum, saying he failed to convince them he would be persecuted if he returned to the U.S.

Hinzman has become a cause celebre up here. Here's hoping the appeal bears fruit.

Federal Court to review U.S. military deserter case

[iverglas]

1. deep background

I hadn't looked up the decision of the Immigration and Refugee Board (Convention Refugee Determination Division). It's here:

http://www.irb-cisr.gc.ca/rtf/reflex/fulltext/258c/rpd/TA401429S_e.rtf
Google's cached html version

ISSUES

6. I have addressed the issues with respect to the principal claimant, Mr. Hinzman, under the following headings: Identity, Credibility, State Protection, Conscientious Objection, Objection to Service in Iraq, and Punishment for Desertion: Prosecution or Persecution?

7. As they relate to the principal claimant, the substantive issues include:

1. Has Jeremy Hinzman rebutted the legal presumption that the government of the US will be willing and able to protect him?

2. Is Jeremy Hinzman a Convention refugee by reason of a well-founded fear of persecution by the US government and its military for reasons of political opinion, religion, or membership in a particular social group, namely, conscientious objectors to military service in the US army?

3. Is the type of military action, with which Mr. Hinzman does not wish to be associated in Iraq, condemned by the international community as contrary to basic rules of human conduct?

4. Is Jeremy Hinzman a person in need of protection, in that his removal to the US would subject him personally to a risk of cruel and unusual treatment or punishment by the US government and its military? Is the risk of punishment to Mr. Hinzman for desertion from the US military inherent or incidental to lawful sanctions, imposed in conformity with accepted international standards?

... DETERMINATION

9. I find that the claimants are not Convention refugees, as they have not established that they have a well-founded fear of persecution for a Convention ground in the US. ...

On a side note, this is *exactly* the process described to me by a regular-joe working-class kid who deserted the US military around 1970, whom I assisted in settling in Canada:

Mr. Hinzman testified that the first couple of weeks of basic training consisted of a pretty intense time of being converted from a civilian to a soldier. He described this process as "dehumanising" and "desensitising" the soldiers to the enemy as other human beings. He stated that, beginning in basic training, the trainees would march to the mess hall, chanting about wanting to kill, rape and pillage. Their officers encouraged them to chant more loudly. He testified that he first thought it was all in good fun, and then he started to question it in his own mind. This was the beginning of the self-questioning process that led to his application for non-combatant status.

Getting to the point --

It is also Mr. Hinzman's position that, the type of military action with which he does not wish to be associated in Iraq is condemned by the international community as contrary to basic rules of human conduct, and therefore punishment for desertion should, in itself, be regarded as persecution.

He testified that he was aware, through reading and the media, of the conditions at the Guantanamo prison facility and the position of the US Administration with respect to the Geneva Convention,56 and that, since the chain of command was referring to Iraqis as terrorists, they could expect to receive the same treatment as the prisoners at Guantanamo. At the time he returned from Afghanistan, he had some understanding that people being detained at Guantanamo prison were not being treated in accordance with the Geneva Convention.

... Mr. Hinzman claims that the type of military action (namely offensive, potentially involving the killing of innocent civilians) with which he does not wish to be associated in Iraq, falls into this category and accordingly, any punishment for desertion due to his political opinion concerning the US military incursion in Iraq should be regarded as persecutory.

And now here's the punch line:

36. I find that Mr. Hinzman has failed to establish, that if deployed to Iraq, he would have engaged, been associated with, or been complicit in military action, condemned by the international community as contrary to basic rules of human conduct. He has not shown that the US has, either as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of humanitarian law.

... 40. Mr. Hinzman has failed to adduce sufficient evidence to establish that the military action in which he could be involved in Iraq, would be condemned by the international community as contrary to basic rules of human conduct. Therefore, any punishment Mr. Hinzman receives as a consequence of his desertion is not persecutory.

The tribunal had conveniently decided earlier:

I subsequently wrote to the parties, and requested submissions. After carefully considering written submissions, I ruled on November 12, 2004, for the reasons set out in my Interlocutory Reasons of that date, that Mr. Hinzman's allegation that US military action in Iraq is illegal because it is not authorized by the United Nations (UN) Charter, or UN Resolution is not relevant to the question of whether it is "the type of military action" which "is condemned by the international community, as contrary to basic rules of human conduct," within the meaning of paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR). I ruled that, consequently, evidence with respect to the legality of the US embarking on military action in Iraq, would not be admitted into evidence at the hearing of these claims.

Define the issue out of existence, and there's no issue.

A major problem would appear to be that although the US had no problem prosecuting WWII war criminals for the undefined crime of "aggression", there has since been no international agreement on what aggression is, and on outlawing it. Were there such a definition and agreement, then argument on that point, to establish the international community's condemnation of the US's invasion and occupation of Iraq (as set out in international agreements, regardless of what anyone might be saying at this time about this specific aggression), might have been heard.

[HuffleClaw]

2. a LOT of political pressure was put on the canadian government over

this case. i'm not sure our courts will see it the same way though, especially if it gets to the supreme court, where the charter of rights and freedoms is paramount.