Flight from the fight 
Anne McIlroy,The Guardian, Tuesday April 13, 2004

Two American soldiers have deserted, claiming asylum in Canada rather than serve in Iraq. They argue that the war is illegal under international law.

Brandon Hughey is a teenager living among strangers, thousands of miles from his friends, family and home in San Angelo, Texas. The 18-year-old is one of two American servicemen who recently deserted their units and fled to Canada to claim asylum as refugees. "We plan to argue that the war in Iraq is illegal under international law and that I have a right not to choose to participate," he says. 

Hughey, who has been taken in by a Quaker couple in the Ontario city of St Catharines, spends his days preparing his legal case. For breaks, he takes solitary walks downtown. He seems mature, composed, and hopeful that he will be able to build a new life for himself in Canada. 

Hughey signed up for the army when he was 17, during his final year in high school. "I joined because it was the only way I was going to get a college education," he says. He went through basic training, and in his spare time began learning about the campaign in Iraq on the internet. He says he became increasingly uncomfortable about the mission, then so disturbed that he considered killing himself. He brought his questions to a commanding officer, who told him to stop thinking so much. 

Then, through the internet, he met a stranger who offered help getting to Canada. He decided to leave and drove away from his base on March 2, the night before his unit was due to ship out for the Middle East. Now he was a deserter, terrified he would be stopped for speeding as he drove for 17 hours to meet a peace activist who took him across the Canadian border. They pretended to be basketball fans, on their way to a game in Toronto. 

Through the Quaker church he met his lawyer, Jeffry House, who came to Canada from the US in 1970 after he was drafted to fight in Vietnam. He had graduated from college by then, and went on to earn a reputation in Toronto as a lawyer with a strong sense of social justice. Representing Hughey, who he says is "really just a sweet kid", and Jeremy Hinzman, 25, a private who fled to Canada with his wife and child in January, has brought back memories for him. 

But it will take more than youthful appeal to win over the Canadian immigration and refugee board. Last year, a record 317 Americans applied for refugee status in Canada. Some were marijuana smokers claiming persecution. Others were Muslims who said they faced human rights abuses in the US. None was accepted as a legitimate refugee. In fact, only one American has ever been accepted as having a well-founded fear of persecution, and the courts overturned that decision. 

House, however, believes the soldiers have a fair chance. He plans to make his case by producing at least one high-profile expert - possibly one of the British international law specialists who have condemned the Iraq war as illegal - to argue that the campaign there violates international law and cannot be justified. He says his clients are using the same legitimate legal grounds to refuse as soldiers throughout history have used when their superior officers order them to do something illegal - such as shooting civilian children. 

House knows of only been one similar case argued before the refugee board. An Iranian soldier who deserted claimed refugee status because he didn't want to use poison gas on the Kurds during his country's war with Iraq. The board was unsympathetic, but the Canadian courts eventually ruled in his favour, and he was permitted to stay. 

He also plans to cite a ruling of the English court of appeal two months ago in the case of a Russian conscript, Andrey Krotov, who deserted from the Russian army after he was sent to Grozny to fight in the Chechen war. The court ruled that refugee status could be available to a conscript who refused to serve when the service would require him to violate basic rules of human conduct as defined by international law. 

House is hoping that Canada's stand on the invasion of Iraq will help his clients. The prime minister at the time, Jean Chrétien, never said the war was illegal under international law, but Canada decided not to participate. 

To win refugee status in Canada, as in Britain, applicants have to convince the refugee board that they face a well-founded fear of persecution at home. This can be difficult for people from countries where arbitrary arrest and torture are routine, let alone for citizens of the US, Canada's closet ally. The law also specifies that fear of persecution is not the same as fear of prosecution. 

In the past, says House, the board has accepted that refugees face persecution if they risk, for example, years in jail simply for reading a banned book. "It all comes down to whether it is justified to prosecute in these circumstances." 

House points out that in the US the maximum penalty for desertion during a time of war is death. He concedes that the death penalty hasn't been used since the second world war, and his clients are more likely to face five years in jail if they return home. "But there is no guarantee," he says. In Canada the courts have ruled that someone cannot be deported to another country where they face the death penalty. 

He doesn't see much difference between dodging the draft, as he did in 1970, and deserting the military when you joined voluntarily, as his two clients did. "It's hard to argue that you give up your entire moral personality once you are employed as a soldier." 

Jeremy Hinzman, the other soldier claiming refugee status in Canada, agrees. He enlisted on January 17 2001, four months after the September 11 terrorist attacks, but before it became clear that President Bush would go to war in Iraq. He joined the army shortly after he got married, hoping, like Hughey, to earn money for college. 

He had dabbled in Zen, and in January 2002 he and his wife Nga Nguyen began attending church at the Quaker House. He felt at home with the Quaker philosophy of non-violence, and was uncomfortable with the idea that his basic army training seemed to be about breaking down the natural human inhibition against killing. He began preparing his application for conscientious objector status. Then his unit was deployed to Afghanistan, where he worked in the kitchen. Last April, his commanding officer suddenly pulled him aside at Kandahar airport and told him it was time for his hearing. Hinzman was not allowed to have a lawyer or witnesses present. The hearing took 20 minutes and his application was rejected. 

Hinzman's unit returned to Fort Bragg, North Carolina, last April, but in December he received his orders to go to Iraq. In January he, his wife and their 21-month-old son Liam fled to Toronto. They too were taken in by Quakers, but now have an apartment of their own. Hinzman has become active in the peace movement in Canada, speaking at anti-war rallies. Hughey is contemplating a similar role. 

As in Britain, the process of seeking refugee status can take years, if the applicant wants to draw it out. Refugee applicants can appeal against rulings in the federal court. There is also the possibility that the minister of immigration will intervene and issue a permit to allow a rejected applicant to stay in Canada. This is thought to be unlikely under the current government, led by Paul Martin, who is trying to rebuild relations with Washington. 

It was a lot simpler in the late 1960s and early 1970s, when House and around 60,000 other US citizens opposed to the Vietnam war were able simply to sign up for landed immigrant status once they crossed the border. House, however, says he is confident of getting a fair hearing for his clients, and believes they may be the first of many. He has already received an email from a US woman soldier planning to go to the west coast city of Vancouver, asking for the names of lawyers there. 

Iraq, some say, could turn out to be Bush's Vietnam. How many more will follow the path to permanent exile blazed this time round by Hinzman and Hughey? House is not expecting many at the moment, but there are rumblings in the US media about the possibility of a draft in 2005 if defence secretary Donald Rumsfeld's prediction of a "long, hard slog" in Iraq and Afghanistan proves accurate. "If there is a draft," says House, "I would say the numbers could be massive."


refusing to kill