Image: US Army private Hinzman
Mike Cassese  /  Reuters file
U.S. Army Pvt. Jeremy Hinzman, his wife, Nga Nguyen, and their 2-year-old son, Liam, are seen in Toronto in a Dec. 6, 2004 file photo.
By Kari Huus Reporter
msnbc.com
updated 11/15/2007 5:21:24 PM ET 2007-11-15T22:21:24

The Supreme Court of Canada on Thursday refused to hear an appeal by two U.S. military deserters who sought refuge in the country to avoid deployment to Iraq, a conflict they argued is “immoral and illegal.”

The announcement ends a bid by American soldiers Jeremy Hinzman and Brandon Hughey, the plaintiffs in the case, to win refugee status and opens the way for them to be deported to the United States, where they could face court martial for going AWOL and missing troop movements.  It also could lead to deportation of dozens of other American soldiers who have filed formal applications for refugee status. 

“Theoretically they (are) facing immediate removal,” said Jeffry House, a Toronto lawyer who represents most of the U.S. refugee applicants, including Hinzman and Hughey. The Supreme Court’s refusal to hear the case, “vastly advances the government’s agenda to remove them,” he said.

The rejection also closes off that legal avenue for other U.S. military personnel who have gone to Canada and remained illegally. House estimates there are at least 300 AWOL U.S. soldiers living in Canada.

Board deems legality of conflict irrelevant
Hinzman and Hughey both deserted from the U.S. Army and came to Canada to avoid imminent deployments to Iraq. Their case for refugee status rested on the argument that the military action in Iraq is illegal and, based on the United Nations convention on refugees, they cannot be prosecuted for failure to serve in an illegal conflict.

The men’s argument failed to sway Canada’s Immigration Review Board and two Canadian courts before their appeal was rejected by the Supreme Court.

“The immigration board said, with input from the government, that the illegality of the war is irrelevant to these immigration claims, “ said Michelle Robidoux, a Toronto-based activist with the War Resisters Support Campaign. “We believe it is very much connected.”

Canada, under then-Prime Minister Jean Chretién did not commit troops to the 2003 invasion of Iraq and most Canadians do not support the war, polls show. The country does have troops serving in Afghanistan.

Canadian immigration officials said that no more than 40 refugee claims have been filed by American soldiers. House, however, said the number is significantly higher, noting that he has handled 45 to 50 claims himself.  Based on the number of inquiries he has received from AWOL U.S. soldiers, he estimates there are about 300 American military deserters living in Canada, adding that many of them entered the country after serving combat tours in Iraq.

Support from Vietnam era runaways
The new arrivals have been coached, housed and supported by some of the Vietnam era anti-war activists and draft dodgers who took advantage of Liberal Prime Minister Pierre Trudeau’s famous declaration of his country as a “refuge from militarism.”

House himself left the United States and came to Canada in 1970 after he was drafted.

There are significant differences between Canada’s position on the Vietnam War and the war in Iraq, however. The most obvious is that the current deserters were not conscripted, but signed up to serve in a volunteer military.

And the current exodus to Canada is small in comparison to the Vietnam era, when an estimated 20,000 to 50,000 Americans moved to Canada to avoid military duty, many of them settling there permanently.

With Thursday's setback, activists with the War Resisters Support Campaign in Canada are focusing on securing a political solution. They organized "emergency rallies" to take place in six Canadian cities Thursday night in an effort to pressure members of Parliament to forge a provision to allow resisters and their families to stay in Canada.

Move to mobilize popular support
"We're disappointed about the decision (the Supreme Court) made, but I don’t think it’s the whole of Canada speaking," said Lee Zaslofsky of the Campaign.

The activists are banking on popular support for the soldiers and among opposition party parliamentarians, in the face of a harder line taken by Conservative Prime Minister Stephen Harper, who is seen as a close ally of the Bush administration.

Zaslofsky said two opposition parties have expressed clear support for the war resisters and they are hopeful the Liberal party — the party of Trudeau — will take a similar position.

"What we need is for the (Liberal) party as a whole to take a stance on this," said Zaslofsky. "Together (the three parties) have a majority, and if they act together they can put something through the House of Commons."

In June, a poll in Ontario found that 64.6 percent of 605 respondents said U.S. soldiers should be allowed to settle in Canada, while 27.2 percent favored sending them home. The remainder of those surveyed said they were unsure or declined to answer the question.

More than 3,300 deserted last year
Today, the majority of U.S. military deserters are from the Army, according to statistics obtained by the Associated Press through a Freedom of Information Act request. In 2006, 3,301 soldiers deserted from the Army, compared to 2,659 in 2005, and 2,450 in 2004, it reported.

Under military law, desertion during war time is a crime punishable by death. In practice, though, a small percentage of deserters are court-martialed and sentenced to serve time in prison. Most are dishonorably discharged and leave the military without benefits and with a black mark on their record.

"If a service member were returned and apprehended by federal authorities, the person would then be turned over to the respective service for further action," said Defense Department public affairs officer Jonathan Withington. He referred other questions about the Canada-based U.S. deserters to the Department of Justice.

For Brad McCall, a 20-year-old American soldier who applied for refugee status after arriving in Canada in September, Thursday's rejection was a surprise and a blow. Though his own case and others technically remain in play, he sees grim writing on the wall. He's already looking into other options and possible destinations.

"If I was talking to a soldier considering Canada right now, I would tell him to research every other available place to go … that would accept him as a war resister, because it’s still not safe enough here," McCall told msnbc.com, speaking from Vancouver where he is staying with sympathizers. "The Canadian government is obviously not on our side."

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