US Deserter Jeremy Hinzman Denied Asylum in Canada
Published on Friday, March 25, 2005 by the Toronto Star
U.S. Deserter Denied Asylum
Board Says Former Paratrooper not Legitimate Refugee
Loss of Innocent Lives in Iraq War Called `Regrettable'

by Tracey Tyler

More than a year after setting out on a life-altering drive across the border and a legal process that ended yesterday with a denial of his refugee claim, Jeremy Hinzman confronted his future with a soldier's resolve.

"I don't want to burden the government. I'm sure this has cost Canada a pretty penny and for that I apologize," said the U.S. army deserter, who says he fled to Canada because he believes the war in Iraq is illegal and because he didn't want to become a "killing machine."

Hinzman, 26, plans to appeal the decision and joined other U.S. military resisters last night at a rally on University Ave.

"Canada has a history of being a haven for people of conscience and, hopefully, when this is all said and done, that legacy can continue," he said.

Hinzman is "an intelligent, thoughtful young man with an inquisitive mind," but does not qualify for refugee status because he hasn't shown a "well-founded fear of persecution," or that he would be subjected to cruel and unusual punishment if returned to the U.S. for court-martial, Immigration and Refugee Board adjudicator Brian Goodman ruled yesterday.

Instead, the former paratrooper with the 82nd Airborne Division would be sent back to a democracy that offers its citizens due process of law and a "sophisticated" military justice system, and is not a person in need of protection, he said in yesterday's 70-page decision.

Goodman also found Hinzman was not a conscientious objector because he was not, for political or religious reasons, opposed to war in all forms. He dismissed refugee claims filed by Hinzman's wife, Nga Thi Nguyen, and their son, Liam, 2.

Hinzman's lawyer, Jeff House, who represents seven other American deserters, said he will ask the Federal Court of Canada to review the ruling. Goodman did his "level best," he said. "But I think there is a deferential attitude towards the U.S. government that is out of place."

In assessing Hinzman's claim, Goodman said his role doesn't involve making judgments about U.S. foreign policy. But he did have to decide whether military action in Iraq was condemned by the international community for violating the basic rules of human conduct.

Hinzman argued that's pretty much how the world sees it and that punishing him for walking away from such a war would amount to persecution.

But simply disagreeing with the U.S. government's reasons for war isn't enough to ground a refugee claim, Goodman said.

Hinzman failed to establish that, if deployed to Iraq, he would have been complicit in military action denounced by the rest of the world or that the U.S., as a matter of "deliberate policy" or "official indifference," required its soldiers in Iraq to engage in widespread violations of humanitarian law, he said.

That doesn't mean there have not been "serious" international human rights violations, such as the beating and chaining of naked prisoners at Abu Ghraib prison, Goodman conceded.

But there was no evidence the U.S. military was "indifferent" to alleged abuses by its soldiers. And it investigated and disciplined such behaviour, he said.

It was "certainly possible," he said, that if Hinzman had gone to Iraq, he too could have been involved in some of the same "activities" described by former U.S. Marine Staff Sgt. Jimmy Massey, who testified in support of Hinzman's claim at a refugee hearing in December.

Massey estimated members of his unit killed 30 innocent Iraqis in one 48-hour period, including unarmed protestors.

Most of those killed, however, were in vehicles that failed to stop for military checkpoints, despite being given ample warnings, Goodman said. "While loss of life and, in particular innocent lives, should be minimized at all times, it is regrettably virtually impossible to eliminate loss of civilian life during times of armed conflict," he wrote. "Unfortunately, there will always be the collateral damage associated with the fog of war."

According to the U.S. military's manual for court-martial, desertion in a "time of war" can be punishable by death. But recent cases suggest Hinzman would likely be sentenced to between one and five years in prison, be dishonourably discharged and required to forfeit his pay.

With Files from Megan Ogilvie and Canadian Press

Copyright 2005 Toronto Star Newspapers Limited