Latest court decision leaves refugee claims of Iraq war refuseniks in doubt
by Matt Mernagh, Toronto NOW, published May 18, 2006 

When American anti-war activist Cindy Sheehan blew through town the week before last, she brought with her some pointed criticisms of the Harper government’s Bush-like warmongering in Afghanistan.

She also made an emotional plea for the feds to follow the example set by Canuck governments of the Vietnam War era and offer refuge to U.S. soldiers currently AWOL from Iraq.

Time is running out. And their legal options are shrinking now that the Federal Court of Canada has soundly rejected Jeremy Hinzman’s appeal of an earlier Immigration and Refugee Board decision denying him refugee status.

The Federal Court’s decision, handed down by Justice Anne Mactavish on March 31, leaves very little wriggle room not only for Hinzman, but also for other Iraq War deserters whose cases are scheduled to wend their way through the courts in the weeks and months ahead.

Some legal observers say Justice Mactavish’s decision, one that troubles Amnesty International and other human rights advocates, all but hammers the door closed to future refugee claims by U.S. soldiers.

Mactavish gave little credence to the main arguments advanced by Hinzman’s lawyer, Jeffry House, that the war in Iraq is against international law and that Hinzman, a conscientious objector, would have been forced to participate in unlawful acts had he gone.

The judge also held that a soldier’s moral, political or religious convictions against a war, no matter how deeply held, are not sufficient grounds for this country to offer refuge.

While there is no question that freedom of thought, conscience and religion are fundamental rights recognized in international law, Mactavish said there is no internationally recognized right to object to a particular war, except under the circumstances described in paragraph 171 of the UN High Commission on Refugees Handbook.

That section stipulates that "it is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action." To qualify as a refugee, there also needs to be evidence to demonstrate that "the type of military action with which an individual does not wish to be associated is condemned by the international community as contrary to the basic rules of human conduct."

House introduced legal opinions prepared by the U.S. attorney general for the president (the so-called Gonzales opinions) on the unconstitutionality of U.S. laws implementing the UN Convention Against Torture as evidence that "the United States… has conducted itself with relative impu-nity, and… a completed disregard for international norms in its… so-called war against terror."

Mactavish ruled that "while the content of the Gonzales opinions is unquestionably disturbing… the opinions are just that – legal opinions prepared for the president. They do not represent a statement of American policy."

House also raised the absence of a UN Security Council resolution sanctioning the war in Iraq as further evidence of the U.S.’s disregard for international law.

Where questions have been raised by human rights groups about the conduct of U.S. soldiers, in particular as they relate to the killing of Iraqi civilians and conditions at the Guantánamo Bay detention centre in Cuba and Abu Ghraib prison in Iraq, Mactavish said the U.S. has been quick to take corrective action.

"It is generally accepted," the judge reasoned, "that isolated breaches of international humanitarian law are an unfortunate… inevitable reality of war."

But there is no evidence, she said, that the U.S. "as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of humanitarian law."

The judge cited several Canadian legal precedents that require a "reasonable fear on the part of the objector that he will be personally involved in such acts (against humanity), as opposed to a more generalized assertion of fear or opinion based on reported examples of individual excesses of the kind which almost inevitably occur in the course of armed conflict."

Mactavish found "no merit" in House’s contention that Hinzman would have been called upon to participate in violations of humanitarian law had he gone to Iraq.

There’s "no suggestion," Mactavish argued, "that the United States Army is an organization that is principally directed to a limited, brutal purpose such that mere membership in the organization could be sufficient to meet the requirements of personal and knowing participation in international crimes.

"An individual must be involved at the policy-making level to be culpable for a crime against peace. The ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper."

Amnesty International’s Canadian head honcho, secretary general Alex Neve, expresses concern that Mactavish’s decision sets a precedent whereby "those at senior levels who have an objection to war may [seek refugee status], and those who deploy who have an objection may not. This runs contrary to other international law rulings."

Neve adds, "All soldiers, all government officials should be constantly assessing what their government or military is asking them to do. This sets a dangerous precedent [that] the poor lowly soldier shouldn’t tangle himself up with thinking conflict through. He should just go with the flow."

Noah Novogrodsky, director of U of T’s international human rights program, says Mactavish’s decision will force other resisters to "walk this fine line." On the one hand, they have to be able to prove they were close enough to meet the participation test; on the other, admitting to taking part in war crimes will make them ineligible for refugees status.

"It’s not a very thorough examination of how close to the atrocity one has to be."

Despite the Mactavish decision, groups here helping AWOL American GIs are counselling them not to stay underground. There are plenty of good reasons, they argue, for U.S. war resisters to make a refugee claim – access to health care and a work permit after six months among them.

Lee Zaslofsky, a spokesperson for the War Resisters Support Campaign, says, "We need to ensure that they have status in Canada [as visitors or refugee claimants] at all times."

Yet few seem to be following that advice. Of an estimated 200 GIs thought to be AWOL in Canada, only 20 have so far filed a refugee claim.

Mactavish’s ruling won’t help the cause of other Iraq War vets who came here to bide their time, hoping for the war to end or for political pressure to push the feds into offering legal ex-emptions.

Says House, "We should be helping the powerless."