Lawyer wants Canada to let US Iraq deserters stay
Reuters, 9 February 2006

TORONTO - Two U.S. army deserters were unfairly denied asylum in Canada partly because the refugee board would not consider the legality of the U.S.-led invasion of Iraq, their lawyer said on Wednesday.

The soldiers want the Federal Court of Canada to overturn an immigration board decision last March that denied them refugee status in Canada. A decision on this round of the judicial process is not expected for several months, and it could take years to exhaust all legal appeals.

Army privates Jeremy Hinzman and Brandon Hughey sought asylum in Canada in 2004, saying the war in Iraq was illegal and they feared committing atrocities if sent there. They also said they may be persecuted if returned to the United States.

But the board refused to consider the legality of the invasion, dealing a blow to their case.

"It's just very convenient that of all the things in the world, the one thing the (refugee board) can't decide upon is whether the U.S. invaded Iraq illegally," lawyer Jeffry House said outside the courtroom.

"We're asking that this court state that we would have a right to litigate that question and provide evidence on that question."

If the Federal Court agrees to overturn the ruling, the case will go back before the refugee tribunal. If the court declines, it must decide whether to let the cases proceed to the Federal Court of Appeal.

Jeremy Hinzman

Brandon Hughey

The soldiers, who face court martial and up to five years in prison in the United States, may remain in Canada while their case is under appeal.

Hinzman, who had served as a cook in Afghanistan, fled from the 82nd Airborne Division three years ago. Hughey slipped past military police in Texas in 2004, a day before his unit was scheduled to go to Iraq.

The refugee board turned down their claims also because the soldiers were not opposed to war in general, but to a specific war. It said they would not face excessive punishment if they went back to the United States and said Hinzman's willingness to serve, but only in a non-combat role, was "inherently contradictory."

"Our view is that if the United States does not recognize that people have a right, under the U.N jurisprudence, to object to certain types of wars, then they can't go to the U.S for protection, they have to come to Canada," House said.

House said the cases had became politicized and the refugee board had viewed the case through a political prism rather than on the basis of refugee law.

The Immigration and Refugee Board operates at arms-length from the Canadian government, which declined to send troops to Iraq without a U.N. mandate.

There are believed to be some 200 U.S. deserters from the Iraq war in Canada, and several are awaiting hearings on their asylum claims.

It's believed between 40,000 and 60,000 U.S. war dodgers fled to Canada during the Vietnam War.