Hinzman Decision
Iraq, Law, National Politics Comments (2)
Jeremy Hinzman lost his application for refugee status in Canada back on the 16th. A copy of the Hinzman Decisions (TA4-01429, TA4-01430, TA4-01431), before the Government of Canada, Immigration and Refugee Board is here. Please note that this does not mean that he will be deported from Canada to face charges, only that he may not remain in Canada as a refugee. Hinzman does plan to appeal.
There were apparently several fatal flaws to his case.
71. Mr. Hinzman has failed to offer sufficient evidence to establish that he was, or would be, denied due process with respect to his application for conscientious objector non-combatant status, or that he would be denied due process or be treated differentially, were he to return to the US and be court-martialled.
72. I find that Mr. Hinzman has not rebutted the presumption that the US system of military justice, including court-martialling, is fair and independent, nor has he established any persecutory intent toward him on the part of enforcement officials, prosecutors or judges within the US military justice system.
73. Mr. Hinzman’s failure to rebut the presumption of state protection by the US is fatal to his claims under both sections 96 and 97 of the Act. In view of the public interest in these claims, I have nevertheless proceeded to consider other issues associated with Mr. Hinzman’s claim.
This means that because the US military has a justice system that affords proper protection to servicemembers, even deserters like Hinzman, that this case was lost. In order to have won, Hinzman would have been forced to prove that he could not recieve a fair court-martial. Since he could not, the rest of the document serves really only to bolster the hearing officer’s reasoning when reviewed upon appeal.
88. I find that the evidence demonstrates that, although Mr. Hinzman was no doubt guided by this moral code at the time he made his decision, on January 2, 2004, to come to Canada and claim refugee protection rather then reporting to his unit for deployment to Iraq, he decided to desert because he was opposed to the US military incursion into Iraq, not because he was opposed to war generally. (emp. added)
Several times through the course of the decision reference is made to Hinzman’s statements that he could
- use force to defend himself
- use force to defend his family
- use force to defend somewhere that he might be be stationed (such as an airfield)
when attacked. Thus, he really has not shown himself to be a conscientious objector to war and violence, but someone is opposed to this conflict in particular.
89. My finding is supported by the fact that Mr. Hinzman states, in his PIF narrative and in the notes prepared by the immigration officer when he and his family came to Canada, that the war with Iraq was the immediate reason for his decision to refuse military duty in its entirety.
90. First, he felt the war was contrary to international law in that it lacked legal underpinnings, and had been waged on false pretences. In his testimony, he explained these false pretences as being the presence of weapons of mass destruction in Iraq, the assertion that Iraq was linked to international terrorist organizations and that Iraq posed a threat to the US.91. Second, he asserted, in his PIF narrative, that he was not willing to kill or be killed in the service of ideology and economic gain.
92. Third, because he had been denied non-combatant status, he would be required to take part in any offensive operation his command deemed justified, even though such commands were in violation of his conscience, religious principles, and probably international law and would constitute a crime.
93. In this connection, it is important to note that Mr. Hinzman objected to participating in any offensive operation in Iraq because he believed the war in Iraq to be manifestly illegal and unjust. However, he was prepared to serve in a non-combatant role in Iraq, for example as a medic.
94. I find Mr. Hinzman’s position to be inherently contradictory. Surely an intelligent young man, like Mr. Hinzman, who believed the war in Iraq to be illegal, unjust and waged for economic reasons, would be unwilling to participate in any capacity, whether combatant or non-combatant.
95. The Federal Court, in its decision in Ciric, clearly sets out that one cannot be a selective conscientious objector:
The applicants can hardly be described as �conscientious objectors’ because they were prepared to serve in the Yugoslavian military and in fact did, but to protect national sovereignty if it was threatened and not to bear arms against their friends.
This next section is also important. This gets to the core of what a conscientious objector (CO) really is. It is not someone who is willing to take up arms on a limited basis or when they agree with the cause. A conscientious objector is someone who is unwilling to bear arms against anyone, friend or foe, at any time so long as their beliefs are held. That leads us to the final note on his CO status:
105. I find that Jeremy Hinzman is not a conscientious objector because he is not opposed to war in any form, or to the bearing of arms in all circumstances due to of his genuine political, religious or moral convictions, or to valid reasons of conscience.
106. As a result, punishment that he may receive under the UCMJ as a consequence of his decision to desert is not inherently persecutory. (emp. added)
The whole thing is an interesting read. The hearing officer does his best to be level-headed about things, even dealing with the possibility that Hinzman could be executed for desertion. This is something that has not happened since World War II and has historically has only happened to someone who deserts in the face of enemy fire.
The summary of the findings:
- Jeremy Hinzman is not a consciencious objector
- Being punished for deserting his unit before it was deployed to Iraq does not constitute persecution
- There is not much chance that Hinzman will face penalties for his desertion that are more severe than normal.
Even though Hinzman plans to appeal, there does not look to be a light at the end of the Canadian tunnel for him. The opinion appears to be well-reasoned, well-researched and airtight. The only way this gets overturned is if the Canadian Federal Court decides to disregard their own decisions.
MickC @ March 24, 2005