Canadian Federal Court of Appeal to Hear U.S. War Resister Refugee Cases

By Faisal Kutty

“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, 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 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 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 Husain 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 ( http://www.ksmlaw.ca ).
An abridged version of this article appeared in Lawyers Weekly. 
Visit Faisal Kutty’s site at http://www.faisalkutty.com