Refugee or deserter?

Days before Jeremy Hinzman was to be deployed to Iraq in January 2004, the young United States military paratrooper, his wife, and toddler son piled into their Chevy and drove 18 hours from Fort Bragg, N.C., to Canada.

Mr. Hinzman deserted the 82nd Airborne Division, he later said, to avoid committing acts that would violate his conscience, religious principles, and international law.

Temperatures in Canada were bone-chilling that month. But Hinzman, a specialist and crack infantryman, hoped for a warm reception from the Canadian government, which he thought might recognize deserters from the US war in Iraq as refugees.

But last month, Canada's Immigration and Refugee Board in Toronto dismissed Hinzman's request for asylum, stating that it was unconvinced that he would risk his life and face possible persecution and cruel or unusual punishment for desertion - the standard for claiming refugee status - if he returned to the US.

More than 5,500 US military personnel have deserted since the invasion of Iraq, but Hinzman is the first US soldier to apply for refugee status in Canada.

As many as 100 US war deserters may be in hiding in Canada, says the Toronto-based War Resisters Support Campaign, an antiwar coalition petitioning the Canadian federal government to allow soldiers opposed to fighting in Iraq to stay in Canada.

The Hinzman case once again raises questions long attached to cases of those who quit military duty for what they say are reasons of conscience.

When such soldiers are brought to trial are they being prosecuted - or persecuted? Can adherence to conscience and convictions ever override the need to honor duty and contract obligations?

The dismissal of Hinzman's asylum petition, analysts say, has particular meaning for this generation of US war deserters. It tells those who had hoped to find legal refuge in Canada that doing so will be an uphill battle.

Over the years, many conscientious objectors fleeing military service have succeeded in their refugee claims in Canada, says Audrey Macklin, law professor at the University of Toronto. But all faced conscription in nondemocratic countries. No US citizen has ever won asylum in Canada.

During the Vietnam War, Canada did not have a refugee determination system, so US draft dodgers were treated as immigrants and permitted to remain.

Hinzman's future, however, is much less certain. For the moment, he is working as a bike courier to support his family in Toronto, while his lawyer, Jeffry House, says they are awaiting a response to their appeal from the Federal Court of Canada. If that fails, Hinzman's last chance would be to appeal to the Canadian immigration minister on compassionate grounds.

Mr. House, who also represents nine other US military deserters currently living in Canada, will take some of their refugee claims before the immigration board starting in June. The circumstances that led to the desertions of House's other clients vary. Half of them had served in the Iraq war before escaping another deployment.

However, the soldiers applying for refugee status in Canada are essentially making the same argument as Hinzman. They say they are opposed to fighting in the Iraq war for reasons of conscience.

The crime of desertion during wartime does carry a possible death penalty in the US. However, House acknowledges, wartime deserters like Hinzman are more likely to be court-martialed and serve up to five years in jail if they return to the US.

Canadian adjudicator Brian Goodman, the immigration board member who denied Hinzman's claim, acknowledges that Hinzman might encounter job bias and social discrimination if he returns to the US. However, he ruled, discrimination and a jail term were not human rights violations.

In the US, some disagree. "To the extent that most employment contracts don't include incarceration or possible death for breach of contract, the argument could be made that in the case like this, the punishment would be considered excessive and therefore persecution," says Jan Brown, attorney and chairman of the New York State Bar Association's Immigration and Nationality Committee.

House, a former Vietnam draft dodger who came to Canada in 1970, says he is frustrated that the Canadian immigration board - and courts worldwide - have not been willing to tackle the question of the "legality" of the US invasion of Iraq.

Mr. Goodman ruled that Hinzman's view that the Iraq war was illegal was irrelevant to his asylum claim.

But House insists that the point is central to Hinzman's case.

"The case law in Canada and throughout the world says that where the soldier is forced to participate in an illegal war, he or she shouldn't do it," says House, referring to the Nuremberg principles that came out of World War II stating that military personnel must defy unlawful orders.

House points to the UN Charter signed by the US in 1945 stating that it would not attack countries that had not threatened it. Hinzman may have broken his contract with the government, says House, but the government also broke a contract when it invaded a country that had not attacked it.

"Hinzman, when he signed [his] contract, the war in Iraq wasn't even on the drawing board," points out House. "So in what way did he sign up for this illegal war?"

But insisting on the illegality of the war is unlikely to prove a persuasive argument in any desertion case, says Jeffrey Addicott, who served as a senior legal adviser in the US military for 20 years.

"One may personally not like the war in Iraq, but no significant legal body in the civilized world has concluded that it was an illegal war," says Dr. Addicott, director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio, Texas. The United Nations Security Council had passed two unanimous resolutions affirming the occupation and new government in Iraq, he points out.

It was after Hinzman enlisted in the US Army in 2000 that he began attending Quaker meetings, and became interested in Buddhism and meditation, according to his testimony from last December's immigration hearing. As a result, he started questioning the meaning of military life and violence. Such reflections prompted him to apply for conscientious objector noncombatant status in 2002.

His application was rejected, however, because he failed to meet the US criteria for a conscientious objector. Rather than objecting to any participation in any war - the definition of a conscientious objector under US law - Hinzman admitted that he would fight in a defensive operation.

War deserters like Hinzman won't be likely to get a fair hearing in the US, contends Bill Galvin, counseling coordinator for the Center on Conscience and War in Washington, D.C., who calls it "wrong" for the US military to have dismissed Hinzman's conscientious objector claim.

But Goodman found that Hinzman had not done enough in the US to appeal or further pursue his claim.

Hinzman is one of a class of people legitimately recognized by the United Nations as conscientious objectors, says Mr. Galvin, but not by US law.

The US, however, is a signatory of the UN Declaration of Human Rights that calls for the protection of freedom of thought, conscience, and religion, and recognizes as conscientious objectors individuals who object to a particular war, or a particular aspect of war, says Galvin.

One argument Hinzman made during his hearing before the Canadian board was that he could have been forced to commit war crimes in Iraq.

However, Goodman found Hinzman failed to prove that the US, as a "deliberate policy or official indifference," required its soldiers to commit widespread violations of humanitarian laws in Iraq.

Hinzman's case is made particularly difficult by the fact that he deserted during war, says Addicott.

Military desertion is a "very serious crime, particularly during wartime," since the lives of soldiers in a deserter's unit are put at risk.

Punishing the deserter, says Addicott, is a necessary deterrent for other soldiers. "He is not being punished for his beliefs," he says, "but rather for his actions."