U.S. deserter seeks refuge in Canada

http://www.theglobeandmail.com/servlet/story/RTGAM.20040707.whinz0707/BNStory/National/

U.S. deserter seeks refuge in Canada

By JEFF GRAY

A U.S. soldier who refused to fight in Iraq and wants to live in Canada appeared Wednesday before the Immigration and Refugee Board in Toronto.

Believing that the war in Iraq is a “criminal enterprise,” 25-year-old Jeremy Hinzman fled to Toronto from his North Carolina base in January, just before his unit was sent to Iraq. Once in Canada he made a refugee claim on the grounds that he would face persecution for his political beliefs if he is sent home to face military justice.

At the core of Mr. Hinzman's argument are affidavits from international law professors which declare the invasion of Iraq illegal. He hopes to use these to argue that any punishment for refusing to participate in an illegal war would amount to persecution, instead of legitimate prosecution. If such an argument stands, he would be entitled to refugee protection in Canada.

Brian Goodman, the member of the refugee protection division who oversaw Wednesday's proceedings, discussed with Mr. Hinzman and his lawyers what will be at issue in the case. He also asked Mr. Hinzman's lawyers to produce more documents to back up the refugee claim, which will receive a full, three-day hearing in October.


..more..

They saved a lot of my compatriots during Vietnam and told Nixon to stick it in his ear.

This fellow's chances seem better than they did a month ago. The release of Fahrenheit 911 might have helped his cause too.

I actually went to see it on Canada Day, July 1. It seemed appropriate since Micheal Moore often uses Canada as a point of reference in his work (although, as we all know he was born in Flint, Michigan).

The theatre was fairly full for an early afternoon matinee. Applause at the end, plenty of audience reaction. Nice use of a Niel Young song during the credits.

They've already refused to turn him over to American officials. I remember O'rielly ranting about it and threatening boycotts... yadda yadda...

Our government already knows how fruitless this war is.

I thought this was going to be about Bush. :-(

wouldn't want..

they will re-consider establishing some sort of asylum status for these soldiers.

as bush calls up more and more who thought they were out... his form of draft without calling it what it truly is... reservists don't belong in this illegal war by a war criminal president....

I posted this a few days ago in another thread. For anyone interested in how it works, it goes like this.

... oh crap. It seems to have been someplace active like LBN and to have dropped off into the archives, and advanced search isn't working.

Okay, briefly, here's the definition of "Convention Refugee" from the 1967 Protocol to the Convention on the Status of Refugees; this definition is applied in Canada in assessing claims for protection:

A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

And here's the

OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees

http://www.hrea.org/learn/tutorials/refugees/Handbook/hbtoc.htm
http://www.hrea.org/learn/tutorials/refugees/Handbook/hbpart1.htm#Handbook Chapter Five

CHAPTER V – SPECIAL CASES

B. Deserters and persons avoiding military service

167. In countries where military service is compulsory, failure to
perform this duty is frequently punishable by law. Moreover,
whether military service is compulsory or not, desertion is invariably
considered a criminal offence. The Penalties may vary from country
to country, and are not normally regarded as persecution. Fear of
prosecution and punishment for desertion or draft-evasion does not
in itself constitute well-founded fear of persecution under the
definition. Desertion or draft-evasion does not, on the other hand,
exclude a person from being a refugee, and a person may be a
refugee in addition to being a deserter or draft-evader.

168. A person is clearly not a refugee if his only reason for desertion
or draft-evasion is his dislike of military service or fear of combat.
He may, however, be a refugee if his desertion or evasion of military
service is concomitant with other relevant motives for leaving or
remaining outside his country, or if he otherwise has reasons, within
the meaning of the definition, to fear persecution.

169. A deserter or draft-evader may also be considered a refugee if
it can be shown that he would suffer disproportionately severe
punishment for the military offence on account of his race, religion,
nationality, membership of a particular social group or political
opinion. The same would apply if it can be shown that he has
well-founded fear of persecution on these grounds above and
beyond the punishment for desertion.

170. There are, however, also cases where the necessity to perform
military service may be the sole ground for a claim to refugee status,
i.e. when a person can show that the performance of military service
would have required his participation in military action contrary to
his genuine political, religious or moral convictions, or to valid
reasons of conscience.

171. Not every conviction, genuine though it may be, will
constitute a sufficient reason for claiming refugee status after
desertion or draft-evasion. It is not enough for a person to be in
disagreement with his government regarding the political
justification for a particular military action. Where, however, the
type of military action, with which an individual does not wish to be
associated, is condemned by the international community as
contrary to basic rules of human conduct, punishment for desertion
or draft-evasion could, in the light of all other requirements of the
definition, in itself be regarded as persecution.

172. Refusal to perform military service may also be based on
religious convictions. If an applicant is able to show that his
religious convictions are genuine, and that such convictions are not
taken into account by the authorities of his country in requiring him
to perform military service, he may be able to establish a claim to
refugee status. Such a claim would, of course, be supported by any
additional indications that the applicant or his family may have
encountered difficulties due to their religious convictions.

173. The question as to whether objection to performing military
service for reasons of conscience can give rise to a valid claim to
refugee status should also be considered in the light of more recent
developments in this field. An increasing number of States have
introduced legislation or administrative regulations whereby persons
who can invoke genuine reasons of conscience are exempted from
military service, either entirely or subject to their performing
alternative (i.e. civilian) service. The introduction of such
legislation or administrative regulations has also been the subject of
recommendations by international agencies. 24 In the light of these
developments, it would be open to Contracting States, to grant
refugee status to persons who object to performing military service
for genuine reasons of conscience.

174. The genuineness of a person's political, religious or moral
convictions, or of his reasons of conscience for objecting to
performing military service, will of course need to be established by
a thorough investigation of his personality and background. The
fact that he may have manifested his views prior to being called to
arms, or that he may already have encountered difficulties with the
authorities because of his convictions, are relevant considerations.
Whether he has been drafted into compulsory service or joined the
army as a volunteer may also be indicative of the genuineness of his
convictions.

I should have mentioned that the UNHCR Handbook does not have the force of law in Canada, which is why argument is being heard regarding the relevance of the legality of the invasion and occupation of Iraq ("war") in international law.

I prepared an argument based on the earlier version of this guideline myself some years ago, in representing a refugee claimant (not from the US) who, if he had returned to his country, would have been drafted to participate in a war then going on that involved the use of weapons outlawed by international treaty. Fortunately for him, an amnesty came along before the case was heard, and he was admitted to Canada without having to make his case. Fortunately for me too; as a test case, someone who had a habit of saying that his country's enemy in the war deserved everything it got wasn't the best choice.

The lawyer handling this case can be counted on to make it as well as it can be made. Some background:
http://colhrnet.igc.org/newscont/499tribunal.htm
I guess I'll forgive that Colombian source for incorrectly calling Jeff an "attorney"; Canadian lawyers do not use that title, although Canadians who watch too much USAmerican teevee often don't know this. The excuse does not apply to this source:
http://www.jsonline.com/news/state/may04/228355.asp

You can donate to contribute to paying Jeremy Hinzman's legal expenses (or sent best wishes / get updates) here: http://www.jeremyhinzman.net/index.html


(edited to complete incomplete thought about donations)

that is really very interesting and I learned a lot from your posts.
I guess a lot will hinge on this and other recent cases.
This is probably just the beginning.