American war resister wins another victory in federal court

U.S. war resister Jeremy Hinzman [1] has won the right to appeal his deportation order, setting the stage for a new immigration review process for all those Iraq- and Afghanistan-assigned American soldiers who came to Canada as conscientious objectors.

The Federal Court of Appeals ruled in a unanimous three-judge decision on July 6 that the immigration officer in charge of Hinzman's refugee case in 2008 was in error to deny his application for permanent residence status because she didn't take into account his pacifist religious beliefs [2]. 

This appeal allows Hinzman, his wife Nga, and their two young, Canadian-born children Liam and Meghan, to remain in this country as his case is bounced back to Immigration Canada for a new review of his Humanitarian and Compassionate (H&C) Ground application.

Hinzman's lawyer, Alyssa Manning, described herself as "very happy" about the decision. "It's a great decision, it's going to be great for Jeremy and Nga and Liam but also for the other resisters and for the campaign."

Manning said that the Hinzman case will be re-decided through a different lens this time, as more emphasis will be placed on the "sincere, moral, religion and political beliefs" of resisters that motivated them to leave the military.

The ruling states: "The H&C Officer had the duty to look at all of the appellants' personal circumstances, including Mr. Hinzman's beliefs and motivations, before determining if there were sufficient reasons to make a positive H&C decision (ibidem, Chapter 5, section 11.3). She did not. Had the Applications Judge addressed the appellants' ground of complaint, as stated at paragraph 57 of his Reasons, I am convinced that he would have concluded as I do and found that the H&C decision was significantly flawed and therefore unreasonable."

In a broader context, the ruling also noted the lack of attention paid to the potential for conscientious objector cases to frame debate in International Law.

"The beliefs and motivations of Mr. Hinzman were of important significance to the ultimate decision, given the context of an H&C application. The appellants had also provided some evidence that the right to conscientious objection `is an emerging part of international human rights law' [Zoljagharkhani v. Canada (Minister of Employment and Immigration), (1993) 3 F.C. 540 (FCA), at paragraph 15]. The Officer had given some weight in her PRRA decision to the views of Amnesty International. Still, there is no assessment of these factors in her H&C decision."

Background

Before deciding to come to Canada in 2004, Hinzman attempted to apply for Conscientious Objector (C.O.) status while still enlisted in the United States Army as a paratrooper with the 82 Airborne Division. He enlisted in early 2001 and his unit was deployed to the Afghanistan theatre in 2002.

Hinzman was placed in a non-combat role while his conscientious objector application was being processed. He was ultimately denied C.O. status, forcing him to return to his regular unit. It is when his unit received orders to join in the Iraq war that Hinzman fled to Canada with his wife and son.

Jeremy Hinzman went to court on May 25, 2010 where the Federal Court of Appeal "certified a question" regarding whether Hinzman got a fair Humanitarian and Compassionate Grounds hearing. If the court ruled he did not, this would give his lawyer another shot at securing Hinzman's right to remain in Canada as a refugee as the appeal would trigger a stop to the deportation order against the family and a new review of his case.

The July 6 ruling of a new appeal was celebrated by the War Resister Campaign [3] which called it a victory for resisters' right to remain in Canada as conscientious objectors.

"This decision is important for all Iraq War resisters in Canada," said Michelle Robidoux, of the War Resisters Support Campaign. "The Federal Court of Appeal has clearly said that immigration officers can no longer ignore the sincerely held beliefs of these soldiers. Canadians understand and support the decision these soldiers made in rejecting the Iraq War. It's time for the Harper government to stop deporting them and to let them stay in Canada."

Conscientious objectors

The United Nations defines a conscientious objector [4] as an "individual who, on religious, moral or ethical grounds, refuses to participate as a combatant in war or, in some cases, to take any role that would support a military organization." 

Amnesty International believes that the right to refuse military service for reasons of conscience is inherent in the notion of freedom of thought, conscience and religion as recognized [5] in Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). 

To the Canadian government, these individuals are considered refugee claimants with the emphasis on immigration rather than conscientious objector status under international law, and, thus, they have to apply for Permanent Resident status. Minister of Citizenship and Immigration Jason Kenney went so far as to call war resisters, "bogus refugees," when outlining his government's opposition in allowing them to remain in Canada.

Canadian federal parliament

Kenney is also proposing changes to Canada's refugee determination system by introducing Bill C-11. [6] This bill was passed by the Senate on June 29, 2010 and now awaits Royal Assent before it can become law [7]. 

This bill is opposed for a variety of reasons due to its impact on all immigrants and refugees seeking to make Canada their new home. Both Amnesty International and the Canadian Council for Refugees publically support the war resister campaign.

Bill C-11 has the potential to affect war resisters claiming refugee status here in Canada by limiting the availability to review mechanisms such as Pre-Removal Risk Assessments and Humanitarian and Compassionate Grounds applications; both have been used extensively by council representing war resisters in federal courts in an attempt to stop deportations.

Bill C-440

Bill C-440 is a private member's bill [8]brought forward by Liberal MP Gerard Kennedy on September 17, 2009 and seconded by New Democrat Bill Siksay.

It is one of the solutions the War Resister Campaign has put forward to deal with what it claims is a Conservative government's bias on this issue. Federal parliament -- with its Conservative minority -- has already voted twice in support of U.S. war resisters on June 3, 2008, and March 30, 2009, but these motions were both non-binding and ignored by Prime Minister Stephen Harper. The introduction of the Bill C-440 bill puts forward the same motion but in a fixed way that ensures if passed, it will theoretically have to be made into law. The motion would allow war resisters to settle in Canada and stop all deportation orders [9]. 

The War Resister Campaign notes that "since the first motion was adopted, Iraq War resisters Robin Long and Cliff Cornell have been forced back to the U.S. where they were court-martialled, convicted of desertion and jailed. Iraq war veteran and resister Rodney Watson remains in sanctuary in the First United Church in Vancouver where he sought refuge last September after being ordered deported by the Harper government."

Support for the war resister issue binds the Bloc, NDP and Liberals together. But while the Liberal government has shown support for Bill C-440, there are some reservations as to whether this support will hold its course. The campaign has the Liberal pledge of support on paper -- after all, it was Gerard Kennedy who put forth the private member's bill -- but it will take every Bloc, NDP and Liberal MP to vote to support the bill for it to pass in parliament.

The second hour of debate on this motion is scheduled for September 27, 2010; and will be followed by a vote.

Krystalline Kraus writes the G8/G20 Communique blog [10] for rabble.ca. 

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