US War Resisters and the Legality of the Iraq War

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The entry of U.S. Army deserters who are refusing to fight in Iraq into Canada has brought into focus the legal issue of conscientious objection as a basis for making a claim for protection of Canada as a Convention refugee. It also raises political questions about our relationship with our powerful neighbour to the south.

American “War resisters,” who desert the United States Army and if they are forced to return to the United States, they face court martial before a military tribunal and possibly years in prison. The death penalty remains on the books in the U.S. as a possible punishment for desertion during wartime. However, it is interesting to note that the court marshal of Ist. Lt. Ehren Watada, for refusing to fight in Iraq ended in a mistrial.

During the Vietnam War (1965-1973), more than 50,000 Americans came to Canada, refusing to participate in what they felt was an immoral war. Canada accepted them into our country. At the time, Prime Minister Pierre Trudeau said: "Those who make a conscientious judgment that they must not participate in this war… have my complete sympathy, and indeed our political approach has been to give them access to Canada. Canada should be a refuge from militarism." Thirty years later, Canada is faced with the same moral and legal issue – the question of giving refuge to those who refuse to fight in a US-led war.

In January of 2004, Private First Class Jeremy Hinzman, a soldier in the 82nd Airborne Division, came to Canada seeking refugee status with his wife, Nga, and son, Liam. Hinzman had fought in Afghanistan and considers himself an American patriot. Pte Hinzman said: "I signed up to defend my country, not carry out acts of aggression." He refused to fight in Iraq, a war he termed illegal.

This issue "is being watched with interest by fellow servicemen on both sides of the border." According to reports, "At least 20 others have already applied for asylum and there are an estimated 400 in Canada out of more than 9,000 who have deserted since the conflict started in 2003."

In December 2004, the Canadian government intervened in Hinzman’s hearing before Canada’s Immigration and Refugee Board, asserting that the legality of the war in Iraq had no relevance to his claim. The Board Member agreed that the legality of the war was not an issue in the claim for refugee protection. Many disagree with this legal finding.

After the Second World War, the Nuremberg Tribunal set out important principles of international law. Those principles established that soldiers have a moral duty, not a choice, to refuse to carry out illegal orders. It is the opinion of noted International law expert Francis Boyle that George W. Bush’s War against Iraq is a war of aggression and constitutes a Crime against Peace as defined by the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950) as well as by paragraph 498 of U.S. Army Field Manual 27-10 (1956).

After the massive human rights abuses in the Second World War and the Nazi persecution of the Jews, the International Military Tribunal at Nuremberg described the waging of aggressive war as "essentially an evil thing … to initiate a war of aggression … is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

The chief prosecutor at the Nuremberg Tribunal and Associate United States Supreme Court Justice Robert Jackson wrote: "No political or economic situation can justify" the crime of aggression. Justice Jackson also said: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

A war of aggression has been termed a Crime against Peace and is considered a War Crime. Wars are only deemed legal under International law if they are genuine acts of self defense or if they are expressly approved by the United Nations Security Council.

Arthur Schlesinger, Jr., the distinguished American historian, and an advisor to President John F. Kennedy made the following comment on the Bush doctrine of unilateral pre-emptive war: "Unilateral preventive war is neither legitimate nor moral. It is illegitimate and immoral."

Schlesinger drew an analogy to the Japanese attack on Pearl Harbour: “One of the astonishing events of recent months is the presentation of preventive war as a legitimate and moral instrument of U.S. foreign policy This has not always been the case. Dec. 7, 1941, on which day the Japanese launched a preventive strike against the U.S. Navy, has gone down in history as a date that will live in infamy. During the Cold War, advocates of preventive war were dismissed as a crowd of loonies.”

Schlesinger also made the following observation: “The policy of containment plus deterrence won the Cold War. After the collapse of the Soviet Union, everyone thanked heaven that the preventive-war loonies had never got into power in any major country.”

Schlesinger also said, “Today, alas, they appear to be in power in the United States. Rebaptizing preventive war as preemptive war doesn’t change its character. Preventive war is based on the proposition that it is possible to foretell with certainty what is to come.”

The rationale given by the Bush Administration for invading Iraq; namely that Saddam Hussein had links to the attacks on September 11, 2001 and had ties to Al Qadea have been proven to be false. In a poll conducted in September 2006 by Opinion Research Corporation for CNN, a sample of American adults was asked: "Do you think Saddam Hussein was personally involved in the 11 September terrorist attacks, or not?" Forty-three percent of those polled answered yes.

The alleged Weapons of Mass Destruction have also proven to be non-existent. Virtually all of the "evidence" presented to support claims of the Bush administration for the invasion including the "biological weapons trailers" and "Niger Yellow Cake Uranium" have proven false or were outright fabrications.

The United States Senate Intelligence Committee has found no evidence of links between the regime of Saddam Hussein and al-Qaeda. In its Report on the Iraq War “it also found that there was little or no evidence to support a raft of claims made by the US intelligence community concerning Iraq’s weapons of mass destruction.” The Senate Committee studied the problem for three years and its 400-page report is the most definitive public account of the intelligence used to provide a rationale for the invasion of Iraq.

No one has been prosecuted for presenting this false or misleading information, or for manufacturing fake evidence to support the drive to invade Iraq. However, the Courts in Europe are increasing recognizing that the invasion of Iraq was a criminal act and have accepted this argument as a defense for political action against the war.

According to the U.N. High Commissioner for Human Rights Louise Arbour, the U.S.-led “war on terror” has undermined the global ban on torture, weakening American moral authority on human rights worldwide. "The principle once believed to be unassailable — the inherent right to physical integrity and dignity of the person — is becoming a casualty of the so-called war on terror," Arbour said in a statement on Human Rights Day.

Arbour is a former Canadian Supreme Court justice and a chief prosecutor for the U.N. war crimes court for the former Yugoslavia. She praised past U.S. leadership on expanding political and civil rights because it allowed the Americans "to lecture others about their performances." "To the extent that there’s a perception that there is a withdrawal from the high-water mark of commitment to civil and political liberties, I think it makes it a lot more difficult for the United States to exercise that kind of moral leadership on all human rights issues," Arbour said.

The UN Commissioner of Human Rights “decried two practices in particular: holding prisoners in secret detention centers, which she said was a form of torture, and rendering suspects to third countries outside normal extradition procedures, that is, without independent oversight.” Arbour said "There are a lot of human rights that can be set aside in cases of emergency, lots of them, but not the right to life and not the protection against torture." The United States has denied practicing torture but it has avoided denying or confirming a Washington Post report that the CIA runs secret centers in Eastern Europe to interrogate terrorism suspects.”

The United States has also come under heavy criticism for prisoner abuse and torture at the Abu Ghraib prison in Iraq and the Guantanamo Bay prison in Cuba. The heavy loss of civilian life and the conduct of U.S. troops have been heavily criticized in the on going occupation of Iraq. Even British Prime Minister Tony Blair has admitted, “Iraq is a disaster.”

Jeremy Hinzman lost his "conscientious objection" refugee case at the IRB. He then applied to the Federal Court for a judicial review of the Immigration and Refugee Board decision rejecting his claim. However, the Federal Court upheld the negative decision but the case has been referred to the Federal Court of Appeal.

The key issue is whether or not the legality of the war is a relevant issue to the claim for protection. It will be interesting to see the decision of the Federal Court of Appeal. This legal question may ultimately be decided by the Supreme Court of Canada.

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