Published Tuesday, November 30, 2004 by the Toronto Star
Deserter Poses a Problem for Ottawa
by Thomas Walkom
For a good many Canadians, the legal status of George W. Bush's Iraq war is an abstraction. True, polls show that most don't approve of the U.S.-led invasion.
But, the argument goes, why should Canadians irritate the duly elected president of the most powerful nation in the world by dwelling on his shortcomings?
If Bush wants to wage war, isn't it safer for Canadians to nod politely, change the subject and talk about things that matter, like softwood lumber or cattle exports?
For 25-year-old Jeremy Hinzman, however, the legality — or illegality — of the U.S. invasion of Iraq is anything but abstract.
Hinzman is an American deserter. A specialist with the 82nd Airborne Regiment, he served in Afghanistan and was due to be enrolled in the army's elite ranger school.
But in 2002, about a year after he voluntarily enlisted (in part, to pay his way through college), his views on war changed. He applied for conscientious objector status but was refused.
In late 2003, his unit was told it would be deployed from South Carolina to Iraq.
A few days later, Hinzman — along with his wife Nga Nguyen and their 2 1/2 year old son Liam — fled to Canada. He is applying to stay as a refugee.
Hinzman argues he is being asked to participate in an illegal war. At one level, this is a practical necessity; Canada does not usually grant refugee status to people simply because they have broken the law in their home countries. Hence, if Hinzman wants to stay, he has to prove that the law he broke is fundamentally illegal.
Yet, Hinzman also puts the Canadian government in a difficult position. His claim is not just self-serving. It is also correct according to international law experts and, in fact, was implicitly used by Ottawa as its justification for not joining Bush's war.
Throughout early 2003, then prime minister Jean Chrétien made it clear that Canada would join a war against Iraq only if it were authorized by the United Nations Security Council
"If there is to be a war in Iraq, we want it approved by the Security Council," Chrétien told the Commons then.
The reason, as University of Toronto law professor Jutta Brunée explains, is that since 1945 international law has been quite clear: With two key exceptions, war is illegal. Those exceptions are wars conducted in self defence and wars authorized by the Security Council.
In an affidavit filed on behalf of Hinzman, Brunée points out that the war on Iraq fits neither category. It was not conducted in self-defence; Iraq had not attacked the U.S. nor was it planning to do so.
Indeed, the U.S. never attempted to argue self-defence. Moreover, says, Brunée, events at the U.N. in the spring of 2003 demonstrated convincingly that, contrary to British and American claims, the war was not authorized explicitly or implicitly by the Security Council.
Hence, it was a violation of the U.N. Charter. Hence, it was illegal.
Jules Lobel makes the same point. A law professor at the University of Pittsburgh, he writes in another affidavit filed on behalf of Hinzman that Iraq war "was illegal because it was undertaken neither in self defence or pursuant to a United Nations Security Council Resolution."
Which, in his own way, is what Chrétien was saying back in 2003 and which is why Canada did not take part.
Curiously, however, Ottawa is now trying to deny Hinzman the right to make the same argument. Government lawyers argued at Hinzman's immigration hearing that the entire question of the war's legality was "irrelevant."
Earlier this month, the federal immigration officer adjudicating the case agreed. He ruled that Hinzman may not use the legal basis of the Iraq war to justify his still unresolved claim.
This, in itself, is odd reasoning. As Hinzman's lawyer Jeff House points out, Canada has accepted the illegal war argument before.
In 1995, a federal court judge ruled that a deserter from Saddam Hussein's army was entitled to refugee status because he had been ordered to participate in Iraq's illegal 1990 invasion of Kuwait.
Citing what he labelled an authoritative text, Judge Arthur 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."
For much of the political glitterati sitting down to dine with the U.S. president tonight at Gatineau's Museum of Civilization, all of this is best left forgotten. Sure, Bush may the perpetrator of illegal wars. But no one is perfect. And there are those all-important border issues.
For Hinzman and other potential American military resisters, however, it is deadly important. Canada cited questions of legality to avoid the Iraq war. Why can't they?
Thomas Walkom writes every Tuesday for the Toronto Star.
© 2004 The Toronto Star