Along with his wife, Nga Nguyen, he began attending meetings of the Religious Society of Friends in January 2002. His newfound pacifist beliefs and the birth of his son, Liam, in May 2002, were among the reasons he cited for applying for conscientious objector status in August 2002. Amnesty International notes that Hinzman "took reasonable steps to register his conscientious objection through seeking non-combatant status in [August] 2002, an application which was rejected [April 2003]."[4] This means that he tried for eight months, unsuccessfully, to be officially and legally referred to as a "conscientious objector".
His unit was deployed to take part in the war in Afghanistan later in 2002. Hinzman fulfilled a non-combat role there while his conscientious objector application was being processed. It was ultimately denied, and he then returned to his regular unit, serving as its armorer. When his unit received orders to join in the Iraq War, Hinzman deserted, crossing the border into Canada with his wife and son.
If and when his legal options are exhausted, Hinzman will then face the prospect of deportation from Canada and extradition to U.S. military custody. If he is ultimately deported, he faces court-martial in the U.S. Army. If the Army pursues a general court-martial, he could be sentenced to the punishment of up to five years in prison and a dishonorable discharge for the crime of "desertion with intent to avoid hazardous duty or to shirk important service."
Amnesty International considers Mr Jeremy Hinzman to have a genuine conscientious objection to serving as a combatant in the U.S. forces in Iraq. Amnesty International further considers that he took reasonable steps to register his conscientious objection through seeking non-combatant status in 2002, an application which was rejected. Accordingly, should he be imprisoned upon his return to the United States, Amnesty International would consider him to be a prisoner of conscience.[4]
Experience with the Canadian legal and political systems
Hearing at the Immigration and Refugee Board of Canada
His lawyer, Jeffry House, pointed out[9] a precedent set by federal court Judge Arthur Stone in 1995 who approved refugee status for a deserter from Iraq's 1990 invasion of Kuwait. Stone wrote, "There is a range of military activity which is simply never permissible in that it violates basic international standards. This includes ... non-defensive incursions into foreign territory."[9]
The case of Iraq War resisters became more than a legal issue when Canadian government lawyers entered the situation and presented arguments to the IRB adjudicator just before this precedent-setting hearing. "Government lawyers argued at Hinzman's immigration hearing that the entire question of the war's legality was 'irrelevant.'... The federal immigration officer adjudicating the case [Brian P. Goodman] agreed. He ruled [November 12, 2004] that Hinzman may not use the legal basis of the Iraq War to justify his...claim."[10][11]
The claim for refugee status was ultimately rejected.[12][13] The government at the time was the Liberal Party of Canada led by Prime MinisterPaul Martin; and the lawyer representing that government's Minister of Citizenship and Immigration, Judy Sgro, was Janet Chisholm.[14]
Reporting on Goodman's decision, the BBC stated that the ruling "did not come as a surprise...[Canadian] officials are aware that accusing Washington of persecuting its citizens would cause an international diplomatic incident."[12]
Federal Court Appeal
Justice Anne L. Mactavish presided over the Federal Court case of Hinzman v. Canada, 2006 FC 420,[15] and released her ruling on 31 March 2006, upholding the decision of the Immigration and Refugee Board.[16][17][18]
In her decision, Mactavish addressed the issue of personal responsibility as follows:
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 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 war-time conduct is otherwise proper.[15][16][19]
Alex Neve, who taught international human rights and refugee law at Osgoode Hall Law School, expressed 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."[16] One of those rulings is Nuremberg Principle IV, which reads, "The fact that a person acted under order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was, in fact, possible to him."
"The main arguments advanced by Hinzman's lawyer, Jeffry House, [were] that the war in Iraq is against international law and that Hinzman ... would have been forced to participate in unlawful acts had he gone."[16]
Following the Supreme Court's decision, NDP immigration critic Olivia Chow asked the parliamentary Standing Committee on Citizenship and Immigration to vote in favour of allowing conscientious objectors who refused or left U.S. military service in Iraq to be allowed to stay in Canada.[22]
On 6 December 2007, after some amendments to Chow's original motion, the Standing Committee adopted a motion recommending that:
the government immediately implement a program to allow conscientious objectors and their immediate family members (partners and dependents), who have refused or left military service related to a war not sanctioned by the United Nations and do not have a criminal record, to apply for permanent resident status and remain in Canada; and that the government should immediately cease any removal or deportation actions that may have already commenced against such individuals.[23]
On 3 June 2008, the Parliament of Canada passed a motion (137 to 110) that recommended the government immediately implement a program which would "allow conscientious objectors...to a war not sanctioned by the United Nations...to...remain in Canada."[24][25][26] The motion gained international attention from the New York Times,[27] Britain's BBC,[28] and the New Zealand press.[29]
On July 22 that year, Officer S. Parr issued a negative decision on the Hinzman application to stay in Canada on "humanitarian and compassionate grounds." On July 25, she also issued a distinctly separate negative decision on the Hinzman application to stay in Canada as refugees (in their "Pre-Removal Risk Assessment").[30]
That following August 13, the Canada Border Services Agency ordered Hinzman, along with his wife, son, and baby daughter, to leave the country by 23 September 2008.[31] In response to that order, at a press conference on September 18, Bob Rae, the LiberalForeign Affairs Critic, joined Hinzman to make an urgent appeal to the Conservative government to stop the imminent deportation of Hinzman and his family.[32] He also urged the government to support a motion passed earlier that year by all parties, except the Conservatives, to let all eligible conscientious objectors take up permanent residence.[33]
Stay of deportation
On 22 September 2008, Hinzman and his family were granted a stay of deportation at the last minute by a Federal Court judge while the court decided whether to hear their appeal. The judge's decision would allow the family to remain in Toronto while the court decided whether to review a decision by Citizenship and Immigration officials not to let the Hinzmans remain in Canada on "humanitarian and compassionate grounds."[34] (This was a distinctly separate legal effort from the refugee application and its accompanying Pre-Removal Risk Assessment.)[30][34]
At the hearing on that day, Hinzman's lawyer Alyssa Manning told Justice Richard Mosley that new evidence demonstrated that outspoken critics of the American-led invasion of Iraq in 2003 faced harsher treatment than other deserters. For example, she said, deserter Robin Long was sentenced to 15 months in prison the previous month after prosecutors made mention of a media interview he had given in Canada before he was deported in July.[35]
The issue of "differential" treatment for those who had spoken out against the U.S.-led invasion appeared to trouble Justice Mosley, who said: "I don't know how it is an aggravating feature or element to be introduced in sentencing." In his 3-page endorsement, Mosley said: "Based on the evidence and submissions before me, I am satisfied that the applicants would suffer irreparable harm if a stay were not granted pending determination of their leave application."[35]
In order to win the stay of deportation, Manning had to show that her client would suffer "irreparable harm," if returned to the United States as noted in Justice Mosley's quote above. Manning also argued that this legal criterion of "irreparable harm" were met in another way: the permanent loss of voting privileges in the country of one's residence (which accompanies the felony of desertion in the US) also constitutes "irreparable harm," Manning argued.
Humanitarian and compassionate grounds
On 10 February 2009, Federal Court Justice James Russell[36] heard the appeal of the decision in the Hinzman family's "humanitarian and compassionate grounds" (H&C) application (not an appeal of their refugee claim).[37][38] On April 24 that year, the judge upheld the negative decision in the Hinzmans' application.[39] (His judgment was officially issued June 2.)[40]
On 6 July 2010, the Court of Appeal ruled unanimously that a Canadian immigration official (S. Parr) decision (22 July 2008),[30] and also the lower court's upholding of that decision (2 June 2009),[40] both failed to consider the "hardships" of Hinzman. The court said the rejection of Hinzman's permanent residence application was "significantly flawed" because the officer did not take into consideration Hinzman's "strong moral and religious beliefs" against participation in the war. That means officials must take another look at Hinzman's application to remain in Canada on humanitarian and compassionate grounds.[42]
Hinzman's lawyer, Alyssa Manning, said, that his "officer missed the point and only considered refugee-type questions." Refugee cases typically only consider risk to life or risk of persecution. "An H&C [officer] is supposed to consider humanitarian and compassionate values — the questions inherent with an H&C application," Manning said. "Hinzman's beliefs, his whole reasons for being in Canada in the first place, weren't considered by the H&C officer, and that's what was significantly flawed about [the officer's] decision."[43]
It has been widely argued that Hinzman is not a prisoner of conscience because he has not been persecuted for his claimed new-found beliefs. In the United States military, desertion is a crime, specifically a federal offense under Article 85 of the Uniform Code of Military Justice, despite his claimed motivation. Hinzman's application for conscientious objector status was denied due to the fact that he was known to have made statements to the effect that he would consider participating in certain types of defensive actions. Conscientious objector status is only granted to those in the U.S. military who object to all warfare, not to military personnel who object to a specific war or conflict.[citation needed]
Hinzman enlisted voluntarily in the Army, volunteered for infantry duty, and further volunteered for airborne training, a series of deliberate and conscious decisions on Hinzman's part which would practically guarantee combat duty.[citation needed] These circumstances cause critics to be skeptical as to the sincerity of Hinzman's claims to being a conscientious objector. Such critics have suggested that, if Hinzman were sincere in his beliefs, he would return to the United States voluntarily and accept whatever consequences his actions and beliefs might bring about.[46]
Key to this discussion are three questions: (1) whether soldiers are legally allowed to change their minds if they encounter new information; (2) whether Hinzman encountered new information; and (3) at what point in his service did Hinzman acquire new information. The answer to the last two questions have been answered in Hinzman's sworn testimony.
In regard to whether soldiers are legally allowed to change their minds if they encounter new information, the answer is "yes" according to the following international statutes. On 8 March 1995, the UN Commission on Human Rights (UNCHR) resolution 1995/83 stated that "persons performing military service should not be excluded from the right to have conscientious objections to military service."[47] That position was re-affirmed in 1998, when the U.N. Office of the High Commissioner for Human Rights document called "Conscientious objection to military service, United Nations Commission on Human Rights resolution 1998/77" officially recognized that "persons [already] performing military service may develop conscientious objections."[48][49][50][51] In 1998, the UNCHR reiterated previous statements and added "states should...refrain from subjecting conscientious objectors...to repeated punishment for failure to perform military service."[52] It also encouraged states "to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service."[51][53]
In popular culture
A live theater production entitled, The Hearing of Jeremy Hinzman was staged in August 2012, in Toronto, as part of the annual Summerworks Theatre Festival. It was written by Josh Bloch and Oonagh Duncan, produced by Foundry Theatre Company, and directed by Richard Greenblatt.[54] According to Toronto's Now Magazine, the drama was based "on the real-life case of an Iraq War deserter who was put on trial in 2004 to determine his status as a refugee in Canada, this example of verbatim theatre debates the legality of the 2003 U.S. invasion, and the rights of individual soldiers to think for themselves."[55]
Peace Has No Borders is a 2016 feature-length documentary about Iraq and Afghan War resisters from the U.S. seeking refuge in Canada, directed by Deb Ellis and Denis Mueller.[56]
^In an indirect reference to the Immigration and Refugee Protection Act, the word used by the Toronto Star is "prosecution." But, for purposes of clarity and precision, this has been replaced with a quote taken directly from the Immigration and Refugee Protection Act, paragraph 97(b), which uses the phrase, "a risk of cruel and unusual treatment or punishment." [1][permanent dead link]
After carefully considering written submissions, I ruled on November 12, 2004, for the reasons set out in my Interlocutory Reasons of that date, that Mr. Hinzman's allegation that US military action in Iraq is illegal because it is not authorized by the United Nations (UN) Charter, or UN Resolution is not relevant to the question of whether it is "the type of military action" which "is condemned by the international community, as contrary to basic rules of human conduct," within the meaning of paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status4 (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR). I ruled that, consequently, evidence with respect to the legality of the US embarking on military action in Iraq, would not be admitted into evidence at the hearing of these claims." See paragraph 10 at this source: "Hinzman Decision, Full Text Decision". IMMIGRATION AND REFUGEE BOARD OF CANADA (Refugee Protection Division). March 16, 2005. Archived from the original on July 28, 2012. Retrieved 2009-03-21.
In his decision, Goodman referred to paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR) which states
"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." Source: Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees [2]
^"Hinyman vs. Canada". Hinzman v. Canada (Citizenship and Immigration) (2009 FC 415) IMM - 3813-08. Federal Court Decisions. April 24, 2009. Retrieved May 14, 2009.
