Friday, December 17, 2004

The Validity of Jeremy Hinzman’s Refugee Claim

Last week a Canadian Immigration and Refugee Board (IRB) heard the case of Jeremy Hinzman, a U.S. army deserter who is seeking refugee status in Canada. The hearing lasted about three days, and as far as I am aware no ruling has been issued and I don’t know when one will be. Hinzman is seeking refugee status in Canada. "We are allowed to argue that the conduct of the war on the ground is sufficiently outside the Geneva Conventions that Mr. Hinzman ought not to be associated with it. He should not be compelled to participate in an activity which is in violation of the Geneva Conventions," said his lawyer Jeffrey House. However, the IRB accepted the government’s ruling that the illegally of the Iraq war is irrelevant to the hearing, and that Hinzman’s refugee claim must be accepted on the basis of expected harm should he return to the United States.

I think the IRB’s decision is blatantly wrong. When one joins the army one makes a commitment to defend one’s country in return for certain benefits, including pay and education. Whether or not everyone who joins the army believes this, it seems evident that most people who volunteer for the army believe they will only be fighting in just wars. That is wars that satisfy the criteria of just war theory, that is both jus ad bellum and jus in bello. This is a reasonable expectation that most soldiers have; they do not join the army believing they will be called to duty to engage in wars that are fought for unjust purposes, be they imperial, territorial or unjust in some other manner.

To force someone to go to jail or face other persecution for disobeying an unjust order is criminal. We would not punish a policeman who disobeyed a commander’s order and refused to shoot an unarmed burglary suspect. We would not punish someone who disobeyed a commander’s orders in Vietnam and refused to engage in a village massacre. In fact, we would likely consider both men to be moral examples; heroes, in some manner. If one accepts the Iraq war as illegal, or even if one does not believe it conforms to the standards of just war theory, and I agree with both arguments, then I cannot see how Mr. Hinzman should be denied refugee status. Canada does not extradite murder suspects if they face the death penalty because as a society we consider the death penalty to be cruel and unusual punishment. So it seems hypocritical to send Mr. Hinzman to face punishment for refusing to participate in something our society refused to participate in and which, while the government may not say so directly, we consider to be a wrong action.

Margaret Wente wrote a column about a week ago where she said we shouldn’t recognise Mr. Hinzman’s claim because there are plenty of gay Jamaicans facing persecution because of their sexual orientation. While that is true and the attitudes towards gays and lesbians in Jamaica is abhorrent, this is, as far as I can tell, a false dichotomy. I do not believe that granting Mr. Hinzman and his family refugee status will immediately lead the IRB to pick up the phone and tell a homosexual Jamaican, a Libyan democracy-advocate and an adulterous Saudi Arabian female that Canada can no longer accept their claims and that they must return to their home countries. I don’t believe the refugee system works with an exact quota like that, and if it does then it is quite an illogical and harmful way to operate. While Ms. Wente may have a case if Mr. Hinzman’s successful claim which allowed him to avoid 5 or 10 years in jail meant that someone had to return to Libya to face execution, it’s not the way the refugee system works. A successful claim by Mr. Hinzman will not have any substantial effect on the success or failure of anyone else’s claim, besides setting a precedent for similar cases.

At least in her column Ms. Wente recognised that Mr. Hinzman’s conscientious claim seemed to be legitimate and not the case of someone who joined the army but then found himself in over his head. Many people portray Mr. Hinzman as someone who wanted the benefits the army had to offer, but was unwilling to actually engage in warfare when the time came. He was a naïve and cowardly youngster who didn’t appreciate the consequences of what he committed to and one cannot accept such a refugee claim, the thinking goes. This line of thinking overlooks certain facts, which I found curiously underreported in most coverage of the Hinzman case. The fact that most contradicts this portrayal of Mr. Hinzman is that he served in active duty in Afghanistan, making many parachute jumps before transferring to non-combative duties. Despite already beginning his familiarity with the Quaker movement, Mr. Hinzman participated in the Afghanistan war. His pacifistic tendencies are obviously legitimate, but Mr. Hinzman did not desert from his duties in Afghanistan. He only did so in Iraq because he believed that war was unjust. His is an honest refugee claim founded on the basis of objection to a war that he believed is unjust, and therefore it would be unjust to participate in. There can be no basis for denying his claim, but by eliminating the legality question which serves as the basis for the objection, I fear the IRB board is setting themselves up to do just that.

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