“Our children did not enlist to commit war crimes and crimes againsthumanity,” said Cindy Sheehan, the prominent American anti-war activist whotoured Toronto, Vancouver and Ottawa earlier this month. Sheehan,who lost her own son Specialist Casey Sheehan, in Iraq in April, 2004, rose toprominence last year when she camped out at President George Bush’s Texasranch, demanding answers about the war.

Sheehan called on the Canadian government to welcome war resisters as refugees. “I believe our war resisters are legitimate refugees,” she said during a visitto Parliament in Ottawa.

The call comes as Canada’s Federal Court of Appeal gets set to hear appealsfrom resisters, Jeremy Hinzman and Brandon Hughey. Both are appealing April2006 decisions from the Federal Court which upheld the Immigration and RefugeeBoard (IRB) findings that the two did not qualify as Convention refugees. Boththe IRB and the appeal court of first instance appear to have danced around thepolitically sensitive issues and existing case law.

Hinzman was a soldier in the élite infantry division, the 82nd Airborne. Heserved in Afghanistan in a non-combat position after having applied forconscientious objector status. After being refused CO status and returning toAmerica, he learned that he would be deployed to Iraq. Hinzman did not wish toparticipate in what he considered to be an illegal war and in January 2004 hedrove to Canada to seek asylum. He is currently living in Toronto with his wifeNga Nguyen and son Liam.

A native of San Angelo, Texas, Hughey arrived in Canada in March 2004. He lefthis Army unit before it shipped out to Iraq. It was, he says, his obligation toleave. “I feel that if a soldier is given an order that he knows to not only beillegal, but immoral as well, then it his responsibility to refuse that order,”he wrote in response to emailed questions from the San Angelo Standard-Times.“It is also my belief that if a soldier is refusing an order he knows to bewrong, it is not right for him to face persecution for it.”

Hinzman and Hughey both face court martial and up to five years in jail asdeserters if returned. Yet, their arguments that they did not want toparticipate in an illegal war and that they would be punished for acting ontheir conscience were rejected by the IRB. The adjudicators held that they werenot conscientious objectors (because they were not opposed to wars in general);that the U.S. was willing and able to protect them; and that their treatment wouldnot amount to persecution.

Paragraph 171 of UN Handbook on Procedures and Criteria for DeterminingConvention Refugee Status provides that where the type of military action withwhich an individual does not wish to be associated is condemned by theinternational legal community as contrary to rules of human conduct, punishmentfor desertion could be regarded as persecution.

In denying both claims, the adjudicators opined that the legal status of the warin Iraq had no bearing on the analysis of paragraph 171. This determination wasone of the issues on which the matters were appealed to the Federal Court, butMadam Justice Anne Mactavish, noted in separate decisions (Hughey v. Canada[2006] F.C. 421 and Hinzman v. Canada [2006] F.C. 420) that this question wasnot an issue before her and did not have to be decided.

The duo’s lawyer, Jeffrey House, says the decisions at both levels were alsobased on the erroneous view that American jurisprudence gives war resisters theright to seek a remedy if they question the legality of a war. In fact, heargues that this is not true. The leading case on the “political questionsdoctrine” which revolves around whether people can challenge the legality ofwar based on their conscience and international law was turned down by theUnited States Supreme Court in Callan v. Bush. Given this situation, the U.S.is not in a position to provide protection to resisters, notes House.

The existing case law from the Federal Court of Appeal, Al-Maisri v. Canada[1995] F.C. J. No. 642, appears on point and yet was rejected by JusticeMactavish as being of “limited assistance.” The case involved a Yemeni whowas denied status by the IRB. Al-Maisri acknowledged he was prepared to fightfor Yemen to protect it from aggression, but was not prepared to fight for Iraqagainst Kuwait. Yemen was an Iraqi supporter. The Court of Appeal held that“non-defensive incursion into foreign territory” was within the ambit ofparagraph 171 and overturned the IRB decision.

“What is wrong for Saddam Hussein should be wrong for the Americans as well,”says House, a Vietnam-era draft evader.

Justice Mactavish held that the legality of the conflict is irrelevant whenanalyzing paragraph 171 when “one is considering the claim of a low-level’foot soldier’.” Yet, Al-Maisri was also a “foot soldier.” JusticeMactavish admitted that “given the decision of the Court of Appeal inAl-Maisri, it is fair to say that the issue is not entirely free from doubt,”and proceeded to certify this question, which gave the two an automatic right ofappeal to the Court of Appeal.

Authorities in Canada and the U.S are closely monitoring the politicallysensitive case. Indeed, the case has become the proverbial public relations“hot potato” for the U.S. At the initial hearing, a former U.S. Marinetestifying in Hinzman’s support stated that American soldiers in Iraq routinelyviolated international law by killing unarmed civilians, including women andchildren. Affidavits from two International Law professors confirming theillegality of the war and reports from Human Rights Watch and the InternationalCommittee of the Red Cross documenting the abuses and violations were alsofiled.

Many U.S. soldiers are no doubt watching the case as well, hundreds of whom arealready in the country. Michelle Robidoux of the War Resisters SupportCampaign says they are aware of at least 20 soldiers who are trying to gainrefugee status. “They see tremendous support among average Canadians,”says Robidoux “yet they are denied refuge by a handful of appointedofficials.”

House who represents 12 resisters hopes that the Court of Appeal willconsider the important questions raised by these cases and refer the mattersback for further consideration with directions, principally the issue of thelegality of the war and the claimant’s ability to seek redress in the U.S.

Given the existing case law, the growing evidence of abuse by U.S. troops, theinternational opposition to pre-emptive strikes, the American position on theGeneva Conventions and the now infamous “Torture Memos,” the Federal Courtof Appeal finds itself at a critical juncture. During the Vietnam era, PrimeMinister Pierre Trudeau said that Canada must be a “refuge frommilitarism.” Now the court of appeal must decide if it will remain so.