He enlisted in the U.S. Army as a paratrooper with the 82nd Airborne Division and deserted in 2004 to avoid participating in the Iraq War. "He fled to Canada with his wife and preschool-age son. Now living in Toronto and working as a bike courier, Hinzman faces a court martial and a possible five-year prison sentence if he returns to the United States. Hinzman said he sought refugee status because he opposed the war in Iraq on moral grounds and thought the U.S. invasion violated international human rights standards."
He was one of the first to have his application [for refugee status] rejected - a decision he unsuccessfully appealed to the Federal Court and the Federal Court of Appeal. His request to appeal the decision to the Supreme Court was rejected in November 2007. At that time, he filed for a pre-removal risk assessment with the citizenship and immigration department, which determines if a denied refugee applicant would be subject to torture, death or a risk of cruel and unusual treatment or punishment if returned to their country of origin.
Distinct from his application for refugee status, he also filed for permanent residency on "humanitarian and compassionate grounds." Using this approach, he achieved a major step forward on July 6, 2010.
Along with his wife, Nga Nguyen, he began attending meetings of the Religious Society of Friends in January 2002. His newfound pacifist beliefs and the birth of his son, Liam, in May 2002, were among the reasons he cited for applying for conscientious objector status in August 2002. Amnesty International notes that Hinzman "took reasonable steps to register his conscientious objection through seeking non-combatant status in [August] 2002, an application which was rejected [April 2003]." This means that he tried for eight months, unsuccessfully, to be officially and legally referred to as a "conscientious objector".
His unit was deployed to take part in the war in Afghanistan later in 2002. Hinzman fulfilled a non-combat role there while his conscientious objector application was being processed. It was ultimately denied, and he then returned to his regular unit, serving as its armorer. When his unit received orders to join in the Iraq War, Hinzman deserted, crossing the border into Canada with his wife and son.
He filed a refugee claim upon his arrival in Canada, in January 2004. He is one of at least 28 soldiers actively seeking refugee status in Canada after deserting the United States military out of opposition to the Iraq conflict. While waiting for various legal decisions to be made on his case, Hinzman and his family continued to live in Toronto, Ontario. Hinzman, along with fellow deserter Brandon Hughey, has become a popular figure in the anti-war movement. He occasionally travels to other Canadian cities to speak on campuses and at peace rallies. Hinzman has also drawn criticism, and during his hearing stated that he has received death threats from American citizens.
If and when his legal options are exhausted, Hinzman will then face the prospect of deportation from Canada and extradition to U.S. military custody. If he is ultimately deported, he faces court martial in the US Army. And if the Army pursues a general court-martial, he could be sentenced to punishment of up to five years in prison and a dishonorable discharge for the crime of "desertion with intent to avoid hazardous duty or to shirk important service."
In a May 12, 2005 Media Briefing, Amnesty International stated:
Amnesty International considers Mr. Jeremy Hinzman to have a genuine conscientious objection to serving as a combatant in the US forces in Iraq. Amnesty International further considers that he took reasonable steps to register his conscientious objection through seeking non-combatant status in 2002, an application which was rejected. Accordingly, should he be imprisoned upon his return to the United States, Amnesty International would consider him to be a prisoner of conscience.
Hinzman's first hearing was held from December 6 to December 8, 2004 at the Immigration and Refugee Board of Canada presided over by Coram Brian P. Goodman. It was the first of similar refugee applications.
Hinzman's lawyer Jeffry House pointed out a precedent set by federal court Judge Arthur Stone in 1995 who approved refugee status for a deserter from Iraq's 1990 invasion of Kuwait. 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."
The case of Iraq War resisters clearly became more than a legal issue when Canadian government lawyers entered the situation and presented arguments to the Immigration and Refugee Board adjudicator just prior to this precedent-setting hearing. "Government lawyers argued at Hinzman's immigration hearing that the entire question of the war's legality was "irrelevant."... The federal immigration officer adjudicating the case [(Brian P. Goodman)] agreed. He ruled [November 12, 2004] that Hinzman may not use the legal basis of the Iraq War to justify his ... claim." The claim for refugee status was ultimately rejected. The government at the time was the Liberal Party of Canada led by Prime Minister Paul Martin; and the lawyer representing that government's Minister of Citizenship and Immigration, Judy Sgro, was Janet Chisholm.
Reporting on Brian P. Goodman's decision, the BBC stated that the ruling "did not come as a surprise ... [Canadian] officials are aware that accusing Washington of persecuting its own citizens would cause an international diplomatic incident".
Justice Anne L. Mactavish presided over the Federal Court case of Hinzman v. Canada, and released her ruling on March 31, 2006 upholding the decision of the Immigration and Refugee Board.
In her decision, Mactavish addressed the issue of personal responsibility as follows: "An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper."
Alex Neve, who taught international human rights and refugee law at Osgoode Hall Law School, expressed concern that Mactavish's decision sets a precedent whereby "those at senior levels who have an objection to war may [seek refugee status], and those who deploy who have an objection may not. This runs contrary to other international law rulings." One of those rulings is Nuremberg Principle IV, which reads, "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
"The main arguments advanced by Hinzman's lawyer, Jeffry House, [were] that the war in Iraq is against international law and that Hinzman ... would have been forced to participate in unlawful acts had he gone."
On Nov 15, 2007, a quorum of the Supreme Court of Canada made of Justices Michel Bastarache, Rosalie Abella, and Louise Charron refused an application to have the Court hear the case on appeal, without giving reasons.
In an editorial for the Ottawa Citizen, Lawrence Hill accused the courts of a double standard concerning the 1995 decision where the Federal Court of Appeal granted refugee status to a deserter from Iraq.
"In the wake of the Supreme Court's decision, NDP immigration critic Olivia Chow asked the federal standing committee on citizenship and immigration to vote in favour of allowing conscientious objectors who have refused or left American military service in Iraq to be allowed to stay in Canada."
On December 6, 2007, after some amendments to Chow's original motion, the parliamentary Standing Committee on Citizenship and Immigration adopted a motion recommending that "the government immediately implement a program to allow conscientious objectors and their immediate family members (partners and dependents), who have refused or left military service related to a war not sanctioned by the United Nations and do not have a criminal record, to apply for permanent resident status and remain in Canada; and that the government should immediately cease any removal or deportation actions that may have already commenced against such individuals."
On June 3, 2008, the Parliament of Canada passed a motion (137 to 110) which recommended that the government immediately implement a program which would "allow conscientious objectors ... to a war not sanctioned by the United Nations ... to ... remain in Canada." The motion gained international attention from the New York Times, Britain's BBC, and the New Zealand press.
On July 22, 2008, Officer S.Parr issued a negative decision on the Hinzman application to stay in Canada on "Humanitarian and Compassionate Grounds." On July 25, 2008, she also issued a distinctly separate negative decision on the Hinzman application to stay in Canada as refugees (in their "Pre-Removal Risk Assessment")
On August 13, 2008, the Canada Border Services Agency ordered Jeremy Hinzman, along with his wife, son, and baby daughter, to leave the country by September 23, 2008. In response to that order, "at a press conference ... [Sept 18, 2008], Bob Rae, the Liberal Foreign Affairs Critic joined U.S. Iraq War resister Jeremy Hinzman to make an urgent appeal to the Conservative government to stop the imminent deportation of Hinzman and his family. ..." "He [also] urged the government to support a motion passed earlier this year by all parties, except the Conservatives, to let [all eligible] conscientious objectors take up permanent residence."
On September 22, 2008 Hinzman "and his family were granted a last-minute stay of deportation Monday by a Federal Court judge while the court decides whether to hear their appeal. ... The judge's decision will allow the family to remain in Toronto while the court decides whether to review a decision by Citizenship and Immigration officials not to let the Hinzmans remain in Canada on 'Humanitarian and Compassionate grounds'." (This was a distinctly separate legal effort from the refugee application and its accompanying Pre-Removal Risk Assessment.)
At the September 22, 2008, hearing, "Hinzman's lawyer Alyssa Manning told Justice Richard Mosley that new evidence suggests outspoken critics of the 2003 American-led invasion of Iraq face harsher treatment than other deserters. For example, she said, deserter Robin Long was sentenced to 15 months in prison last month after prosecutors made mention of a media interview he had given in Canada before he was deported in July. ... The issue of "differential" treatment for those who have spoken out against the U.S.-led invasion appeared to trouble Mosley.
"Based on the evidence and submissions before me, I am satisfied that the applicants would suffer irreparable harm if a stay were not granted pending determination of their leave application," Mosley said in his three-page endorsement."
In order to win the stay of deportation, Hinzman's lawyer, Alyssa Manning, had to show that her client would suffer "irreparable harm," if returned to the U.S. as noted in Justice Mosley's quote (above). Manning also argued that this legal criteria of "irreparable harm" is met in another way: The permanent loss of voting privileges in the country of one's residence (which accompanies the felony of desertion in the US) also constitutes "irreparable harm," Manning argued.
On February 10, 2009, Federal Court Justice James Russell heard the appeal of the decision in the Hinzman family's "Humanitarian and Compassionate Grounds" application, (not an appeal of their refugee claim). This was an application to allow the Hinzman family to stay in Canada on "Humanitarian and Compassionate Grounds" ("H&C"). On April 24, 2009, the judge upheld the negative decision in the Hinzmans' H&C application. (His judgment was officially issued June 2, 2009.)
On July 6, 2010, the Canadian Federal Court of Appeal ruled unanimously that a Canadian immigration official (S. Parr) decision (July 22, 2008), and also the lower court's upholding of that decision (June 2, 2009), both failed to consider the "hardships" of Hinzman. The court said the rejection of Hinzman's permanent residence application was "significantly flawed" because the officer did not take into consideration Hinzman's "strong moral and religious beliefs" against participation in war. That means officials must take another look at Hinzman's application to remain in Canada on humanitarian and compassionate grounds.
Hinzman's lawyer, Alyssa Manning, said, "This officer missed the point and only considered refugee-type questions." Refugee cases typically only consider risk to life or risk of persecution. "An H&C [officer] is supposed to consider humanitarian and compassionate values -- the questions inherent with a H&C application," Manning said. "Hinzman's beliefs, his whole reasons for being in Canada in the first place, weren't considered by the H&C officer, and that's what was significantly flawed about [the officer's] decision."
Hinzman's case will now go back for another hearing before a different immigration officer. Michelle Robidoux, a spokeswoman with the War Resisters Support Campaign, said the appellate ruling is important for other war resisters in Canada as well. (See full length court decision)
It has been widely argued that Hinzman is not a prisoner of conscience because he has not been persecuted for his claimed new-found beliefs. In the United States military, desertion is a crime, specifically a federal offense under Article 85 of the Uniform Code of Military Justice, despite his claimed motivation. Hinzman's application for conscientious objector status was denied due to the fact that he was known to have made statements to the effect that he would consider participating in certain types of defensive actions. Conscientious objector status is only granted to those in the US military who object to all warfare, not to military personnel who object to a specific war or conflict.
Hinzman enlisted voluntarily in the Army, volunteered for infantry duty, and further volunteered for airborne training, a series of deliberate and conscious decisions on Hinzman's part which would practically guarantee combat duty. These circumstances cause critics to be skeptical as to the sincerity of Hinzman's claims to being a conscientious objector. Such critics have suggested that, if Hinzman were sincere in his beliefs, he would return to the United States voluntarily and accept whatever consequences his actions and beliefs might bring about.
Key to this discussion are three questions: 1. Are soldiers legally allowed to change their minds if they encounter new information? 2. Did Hinzman encounter new information? 3. At what point in his service did Hinzman acquire new information? The answer to the last two questions have been answered in Hinzman's sworn testimony (see above links to court cases). The answer to the first question one is "yes" according to the following international statutes:
On March 8, 1995, the UN Commission on Human Rights resolution 1995/83 stated that "persons performing military service should not be excluded from the right to have conscientious objections to military service." That position was re-affirmed in 1998, when the United Nations Office of the High Commissioner for Human Rights document called "Conscientious objection to military service, United Nations Commission on Human Rights resolution 1998/77" officially recognized that "persons [already] performing military service may develop conscientious objections."
In 1998, the Human Rights Commission reiterates previous statements and added "states should ... refrain from subjecting conscientious objectors ... to repeated punishment for failure to perform military service." It also encouraged states "to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service."
A live theater production entitled, The Hearing of Jeremy Hinzman was staged in August 2012, in Toronto, as part of the annual Summerworks Theatre Festival. It was written by Josh Bloch & Oonagh Duncan, produced by Foundry Theatre Company, and directed by Richard Greenblatt (playwright). According to Toronto's Now Magazine, the drama was "Based on the real-life case of an Iraq War deserter who was put on trial in 2004 to determine his status as a refugee in Canada, this example of verbatim theatre debates the legality of the 2003 U.S. invasion, and the rights of individual soldiers to think for themselves."
In his decision, Goodman referred to paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR) which states
After carefully considering written submissions, I ruled on November 12, 2004, for the reasons set out in my Interlocutory Reasons of that date, that Mr. Hinzman's allegation that US military action in Iraq is illegal because it is not authorized by the United Nations (UN) Charter, or UN Resolution is not relevant to the question of whether it is "the type of military action" which "is condemned by the international community, as contrary to basic rules of human conduct," within the meaning of paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status4 (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR). I ruled that, consequently, evidence with respect to the legality of the US embarking on military action in Iraq, would not be admitted into evidence at the hearing of these claims." See paragraph 10 at this source: "Hinzman Decision, Full Text Decision". IMMIGRATION AND REFUGEE BOARD OF CANADA (Refugee Protection Division). March 16, 2005. Archived from the original on July 28, 2012. Retrieved .
"171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution." Source: Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees