Hinzman v. Canada (Minister of Citizenship and Immigration)

Hinzman v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-03-31
Neutral citation
2006 FC 420
File numbers
IMM-2168-05
Notes
Reported Decision
Decision Content
Date: 20060331
Docket: IMM-2168-05
Citation: 2006 FC 420
Ottawa, Ontario, March 31, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
JEREMY HINZMAN (A.K.A. JEREMY DEAN HINZMAN)
LIAM LIEM NGUYEN HINZMAN (A.K.A. LIAM LIEM NGUYE HINZMAN)
AND NGA THI NGUYEN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
PARA.
I. Introduction...............................................................................................................................1
II. Factual Background................................................................................................................6
III. The Board's Preliminary Evidentiary Ruling.........................................................................35
IV. The Board's Decision with Respect to the Merits of the Applicants' Claims ......................48
i) State Protection...............................................................................50
ii) Did Mr. Hinzman Have a Well-founded Fear of Persecution in the
United States?..............................................................................................................60
iii) Section 171 of the UNHCR Handbook....................................................69
iv) Punishment for Desertion: Prosecution or Persecution?...........................................78
v) The Claims of the Other Applicants........................................................87
V. Issues............................................................................................................................88
VI. Did the Board Err in Finding that Evidence as to the Alleged Illegality of the
American Military Action in Iraq was Irrelevant to the Determination
That Had to Be Made in Accordance with Paragraph 171 of the UNHCR Handbook?................................................................................................................................90
i) The Applicants' Position.....................................................................92
ii) Preliminary Question.........................................................................99
iii) In Light of the Evidence Before the Board, Was the Question of Whether
the American-led Military Action in Iraq Had Been Sanctioned by a
Security Council Resolution Ultimately Germane to the Outcome of
this Case?....................................................................................................................102
iv) Paragraph 171 of the Handbook - Standard of Review.................................112
v) The Status and Purpose of the UNHCR Handbook.....................................115 vi) Individual Culpability for Crimes Against Peace.......................................152
vii) Other Potential Relevance of the Disputed Evidence...................................161
viii) Conclusion..................................................................................164
PARA.
VII. Did the Board Err in Finding That the Applicants had Failed to Establish That the
Violations of International Humanitarian Law Committed by the American Military
in Iraq Rise to the Level of Being Systematic or Condoned by the State?..........................168
VIII. Did the Board Err in Imposing Too Heavy a Burden on the Applicants to
Demonstrate That Mr. Hinzman Would Have Been Involved in Unlawful Acts,
Had He Gone to Iraq?............................................................................................................179
IX. Conclusion to this Point........................................................................................................188
X. Did the Board Err in its Analysis of the State Protection and Persecution Issues
i) The Applicants' Position...................................................................191
ii) Standard of Review.........................................................................198
iii) Analysis....................................................................................201
iv) Conclusion .................................................................................228
XI. Summary of Conclusions....................................................................................................234
XII. Certification..........................................................................................................................236
Judgment.............................................................................................................240
I. Introduction
[1] Jeremy Hinzman is an American soldier who deserted the United States Army after his unit was deployed to fight in Iraq. Mr. Hinzman says that he deserted because of his strong moral objections to the war in Iraq, and his belief that the American-led military action in that country is illegal.
[2] After deserting the military, Mr. Hinzman came to Canada, accompanied by his wife and infant son. Shortly thereafter, the family claimed refugee protection, asserting that they had a well-founded fear of persecution in the United States, based upon Mr. Hinzman's political opinion. The family's claims were rejected by the Refugee Protection Division of the Immigration and Refugee Board, which found that the family were neither Convention refugees nor persons in need of protection.
[3] Mr. Hinzman and his family now seek judicial review of the Board's decision, asserting that the Board erred in refusing to allow them to lead evidence with respect to the alleged illegality of the American military action in Iraq. The Board further erred, they say, in ignoring evidence with respect to the alleged condonation of ongoing human rights violations perpetrated by the American military in Iraq, and with respect to the systemic nature of those violations.
[4] In addition, the applicants say that the Board imposed too heavy a burden on them to demonstrate that Mr. Hinzman would himself have been involved in unlawful acts, had he gone to Iraq. Finally, the applicants argue that the Board erred in failing to properly consider the fact that an objection to a particular war is not recognized as a legitimate basis on which to grant conscientious objector status in the United States. Given that Mr. Hinzman's sincere conscientious objections to the war in Iraq were not taken into account by the United States Army, the applicants say that any punishment that he may receive for having deserted automatically amounts to persecution.
[5] For the reasons that follow, I have concluded that this application for judicial review must be dismissed. It should be noted that the question of whether the American-led military intervention in Iraq is in fact illegal is not before the Court, and no finding has been made in this regard.
II. Factual Background
[6] As the Federal Court of Appeal observed in Zolfagharkhani v. Canada(Minister of Employment and Immigration), [1993] 3 F.C. 540, conscientious objector cases are often fact-specific. It is therefore necessary to review the facts underlying the applicants' refugee claims in some detail, particularly as they relate to the nature of Mr. Hinzman's objection to military service generally, and to serving in the war in Iraq in particular.
[7] Mr. Hinzman enlisted in the United States Army in November of 2000. Mr. Hinzman acknowledged that, in joining the Army, he was motivated by both the financial assistance that the military provided to recruits, which would have allowed him to attend university upon completion of his term of enlistment, and by the "higher and noble purpose" that the Army represented.
[8] Mr. Hinzman could have signed up for a term of two, four or six years. He chose a four year term of service. He also had a choice of positions within the army, and elected to be an Infantryman. He explained that "... if I was going to be in the army ... I was going to experience the essence of the army, which is what the Infantry is. I mean, when you watch a war movie and you see the people shooting back and forth or whatever else, that's the feel."
[9] Although he says that he was a practising Buddhist prior to enlisting in the Army, it appears that, at the outset of his military service, Mr. Hinzman did not have any qualms about bearing arms or otherwise participating in active military service.
[10] Mr. Hinzman explained that as he went through basic training, he was exposed to a process of desensitization, involving a dehumanization of the enemy. This process included having the recruits repeat chants about killing, raping and pillaging. Mr. Hinzman initially thought that this was all done in good fun, but subsequently began to question his involvement in such activity.
[11] Mr. Hinzman evidently excelled in his military training, achieving the rank of Private, First Class, with a "Specialist" rating. He was one of the select few chosen for the "pre-Ranger course". The Ranger program is an elite leadership training course which enables individuals to deal with combat situations successfully, by making the right decisions with limited resources. Obtaining the Ranger certification would have greatly enhanced Mr. Hinzman's career prospects within the army.
[12] Before the Board, Mr. Hinzman testified that during this period, he was "kind of living a double life". While he continued to do very well at his military training, the concerns about killing that Mr. Hinzman had started to develop in basic training had continued to grow, as he explored a world view framed by Buddhist teachings, which resulted in a deepening of his religious beliefs. He says that he gradually came to realize that he had a significant inhibition against the taking of human life, stating that his concerns in this regard came to a head as he was on the verge of starting the pre-Ranger course, when he realized that he was "at a point of no return", and that he "couldn't do it anymore".
[13] Mr. Hinzman says that he did not discuss his concerns with anyone outside his family at this time. He did, however, become aware that the US Army allows personnel to apply for conscientious objector status. This policy allows soldiers to be reassigned to non-combatant duties where the soldier objects to bearing arms, and also permits the complete separation of the individual from the military, where the individual objects to war of all kinds.
[14] In August of 2002, Mr. Hinzman decided to seek reassignment to non-combatant duties as a conscientious objector. He testified that he did not ask to be discharged from the Army, as he felt an obligation to complete his four year contract, and was willing to continue to serve as a medic, truck driver, cook, administrator or any other position that did not require him to kill anyone.
[15] While he acknowledged that an early release from the Army would have limited the educational benefits to which he would be entitled, Mr. Hinzman says that this was not a factor in his decision to seek reassignment while remaining in the Army.
[16] In his application for conscientious objector status, Mr. Hinzman stated that it was his belief that war in any guise was wrong, and that he could no longer be part of a unit that was trained to kill. While Mr. Hinzman stated that he was not a member of a religious sect or organization, he did explain how his involvement with principles of Buddhism and meditation, as well as his attendance at meetings of the Society of Friends, or "Quakers", had influenced the evolution in his beliefs.
[17] In accordance with the military's conscientious objector procedures, within three days of submitting his application for conscientious objector status, Mr. Hinzman was reassigned to guard the entrance gate at the Fort Bragg base. This position involved checking license plates of cars entering the base. He was subsequently transferred to work in the dining facility at Fort Bragg.
[18] The evidence is not very clear as to what happened to Mr. Hinzman's initial conscientious objector application. It seems to have somehow gone astray, and was never dealt with by the Army on its merits.
[19] At the end of October, 2002, when Mr. Hinzman realized that his application had not been dealt with, he submitted a new application. By this point, it had become clear to Mr. Hinzman that his unit was to be deployed to fight in Afghanistan as part of "Operation Enduring Freedom". Because of the timing of Mr. Hinzman's second application, it appeared that his application had been precipitated by his learning of his imminent deployment to Afghanistan, when in fact this was not the case.
[20] Although Mr. Hinzman did not know whether the American military action in Afghanistan had been sanctioned by a resolution of the Security Council of the United Nations, he was nonetheless of the view that the United States had a legitimate basis for going into Afghanistan. Mr. Hinzman explained that he was satisfied that there were links between the Taliban regime then in power in Afghanistan and al-Qaeda, al-Qaeda being the terrorist organization responsible for the September 11, 2001 attacks on the United States.
[21] Accordingly, Mr. Hinzman went with his unit to Afghanistan, where he was assigned kitchen duties.
[22] A hearing with respect to Mr. Hinzman's conscientious objector application was held in Kandahar on April 2, 2003. Mr. Hinzman has complained that he was unable to call any witnesses at the hearing because the hearing was held in Afghanistan, and the witnesses that he might have called, including his wife and the Quakers with whom he had attended meetings, were all in the United States. However, although Army Regulation 600-43, which governs conscientious objector procedures, expressly contemplates the adjournment of hearings for good cause at the request of the applicant, Mr. Hinzman never sought to have the hearing adjourned until his return to the United States so as to permit him to call witnesses.
[23] After the hearing, the First Lieutenant assigned to hear the case concluded that while Mr. Hinzman sincerely opposed war on a philosophical, societal and intellectual level, his beliefs were not congruent with the definition of conscientious objector set out in the Army regulations. In coming to this conclusion, the First Lieutenant appears to have been influenced by the fact that while Mr. Hinzman was unwilling to participate in offensive combat operations, he was prepared to participate in defensive operations. The First Lieutenant concluded that Mr. Hinzman could not choose when or where he would fight and, as a result, his application was denied.
[24] The First Lieutenant also found that Mr. Hinzman was using his conscientious objector application as a way to try to get out of the Infantry. This conclusion was based, in part, on a negative, and apparently erroneous, inference drawn from the First Lieutenant's belief that Mr. Hinzman had not claimed conscientious objector status until shortly after he found out that he was to be sent to Afghanistan.
[25] Although there is a right of appeal from a negative first-level decision, Mr. Hinzman did not appeal the First Lieutenant's decision, nor did he take any steps to investigate his rights in this regard. He continued to perform kitchen work for the remainder of his deployment in Afghanistan, and upon his return to the United States in July of 2003, Mr. Hinzman resumed his normal duties as an Infantryman.
[26] Mr. Hinzman testified that he did not pursue his claim for conscientious objector status on his return to the States because he was "worn out", and because he felt that there would be no point to pursuing the matter. He also testified that he did not want to go through another long process of waiting, and did not want to have to do menial tasks while a decision was pending.
[27] He also stated that while he was still in Afghanistan, he began thinking about the fact that he could be deployed to fight in Iraq, and that he resolved at that time that he would not go. At his refugee hearing, Mr. Hinzman was asked why, if that was the case, did he not desert upon his return from Afghanistan. He said that once he returned to the States, he was back with his family and the thought of deserting had simply not occurred to him, even though by this point he knew that it was inevitable that he would be sent to Iraq.
[28] Mr. Hinzman says that he decided not to fight in Iraq because, in his view, the American military action in that country was illegal. He based this opinion on the fact that even though Iraq was supposed to be in possession of weapons of mass destruction, after months of investigation, no such weapons had been uncovered. Similarly, no links to terrorist organizations had been established, even though these ostensible links had been offered as a pretext for the United States going into Iraq. Finally, given his belief that Iraq posed no threat to the United States, Mr. Hinzman was of the view that there was no justification for such a non-defensive incursion into foreign territory.
[29] In December of 2003, Mr. Hinzman was told that his unit was to be deployed to Iraq on January 16, 2004. Having resolved not to go, Mr. Hinzman had two options - he could refuse the order to deploy, or he could desert. If he chose to refuse the deployment order, Mr. Hinzman could have been prosecuted under the Universal Code of Military Justice. Instead, he opted to desert.
[30] Mr. Hinzman arrived in Canada with his family on January 4, 2004, and the family filed their applications for refugee status some three weeks later. Their applications were based on Mr. Hinzman's political beliefs. In his Personal Information Form (or 'PIF'), Mr. Hinzman describes his reasons for deserting in the following terms:
The war with Iraq was the immediate reason for my decision to refuse military duty in its entirety. First, I feel that the war is contrary to international law and waged on false pretenses. Second, I am not willing to kill or be killed in the service of ideology and economic gain.
[31] Mr. Hinzman further claimed that participating in the war in Iraq would violate both his conscience and his religious principles, although his refugee claim was based only upon his political opinion.
[32] Mr. Hinzman says that because the military occupation of Iraq was without a proper legal foundation, he would be a criminal if he were to take part in it. At the same time, however, he acknowledged that he would have been prepared to serve in Iraq in a non-combatant role, even though he was of the view that this limited participation would still make him complicit in an illegal war.
[33] If he were returned to the United States, Mr. Hinzman says that he would be prosecuted for desertion. While acknowledging that the vast majority of military deserters merely receive a dishonourable discharge from the military, and are not prosecuted, Mr. Hinzman is of the view that he has "ruffled enough feathers" that he would probably be court-martialled, and would likely receive a sentence of anywhere from one to five years in a military prison.
[34] While Mr. Hinzman acknowledges that he would receive a fair trial in the United States, before an independent judiciary, he nonetheless asserts that any form of punishment that he would incur for merely following his conscience would amount to persecution.
III. The Board's Preliminary Evidentiary Ruling
[35] In the pre-hearing process leading up to the hearing of the applicants' refugee claims, counsel for the applicants indicated that he intended to lead evidence at the hearing as to the alleged illegality of the American military action in Iraq.
[36] This evidence primarily took the form of affidavits from two professors of international law, both of whom focused on the lack of United Nations Security Council approval for the American government's use of force in Iraq. Both professors observe that the Charter of the United Nations, 26 June 1945, Can T.S. 1945 No. 7 [UN Charter], permits the use of force by one country against another in only two situations: in cases of self-defense, and where there is Security Council approval.
[37] Both professors observe that the United States did not invoke self-defense as a legal justification for its military intervention in Iraq. They further argue that none of the Security Council resolutions relied upon by the United States to justify its conduct condoned military action against Iraq in the present circumstances. The professors specifically refer to Security Council Resolution 1441, which recognizes further breaches by Iraq of its disarmament obligations, and requires that any further non-compliance be reported to the Security Council for reassessment. Although this Resolution does not expressly contemplate the need for an additional resolution authorizing force, the professors argue that, given the deep disagreements that led to the adoption of this compromise Resolution, it is impossible to read the Resolution as either an express or implied authority for the use of force.
[38] One of the professors also discusses a developing view of humanitarian intervention as a third possible justification for one State to use armed force against another. However, the professor observes that President Bush made no attempt to justify the American invasion of Iraq as a humanitarian intervention.
[39] Both professors conclude that, in the absence of either Security Council approval or a sound case for self-defense, no legal justification exists for the war in Iraq. As a consequence, each concludes that the American invasion of Iraq was carried out in violation of the prohibition on the use of force enshrined in Article 2(4) of the UN Charter, and was thus illegal.
[40] The other evidence which the applicants sought to adduce was to a similar effect.
[41] The Board decided to address the admissibility of this evidence in advance of the hearing, receiving submissions on the following question:
... [W]hether the allegation that the United States' military action in Iraq was not authorized by the UN Charter and UN Resolution is 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. If it is relevant, how so?
[42] In a lengthy and detailed ruling, the Board answered this question in the negative, determining that the legality of the American military action in Iraq was not relevant to the question of whether it was "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 United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status: United Nations, Office of the United Nations High Commissioner for Refugees; Geneva, 1988.
[43] Paragraph 171 of the Handbook provides that:
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 the 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. [emphasis added]
[44] The Board found that when Canadian and international courts have considered this provision in order to determine whether an individual meets the definition of "Convention refugee", it has almost invariably been the nature of the acts that the evading or deserting soldier would be expected to perform or be complicit in, rather than the legality of the conflict as a whole, that have dictated the result.
[45] Based upon this understanding of the relevant test, the Board found that evidence as to the alleged illegality of the war in Iraq was not relevant to the analysis to be carried out in accordance with paragraph 171 of the Handbook.
[46] The Board also rejected Mr. Hinzman's submission that the alleged illegality of the war in Iraq was relevant to his claim because it made it more likely that there would be widespread and systematic violations of international humanitarian law going on in Iraq, in which Mr. Hinzman himself would be required to participate. In the Board's view, this argument was purely speculative.
[47] As a consequence, the Board refused to admit the evidence regarding the legality of the American military action in Iraq, ruling that this evidence was irrelevant to the applicants' refugee claims.
IV. The Board's Decision with Respect to the Merits of the Applicants' Claims
[48] The Board identified four substantive issues raised by the applicants' refugee claims. These were:
1. Had Mr. Hinzman rebutted the legal presumption that the government of the United States would be willing and able to protect him?
2. Was Mr. Hinzman a Convention refugee? That is, did he have a well-founded fear of persecution by the American government and its military because of his political opinion, religion, or membership in a particular social group, namely conscientious objectors to military service in the United States Army?
3. Is the type of military action with which Mr. Hinzman does not wish to be associated condemned by the international community as contrary to basic rules of human conduct within the meaning of Section 171 of the UNHCR Handbook?
4. Is Mr. Hinzman a person in need of protection, in that his removal to the United States would subject him personally to a risk of cruel and unusual treatment or punishment by the American government and its military? In this regard, the Board also considered whether the risk of punishment for desertion faced by Mr. Hinzman was inherent or incidental to lawful sanctions imposed in conformity with accepted international standards.
[49] Insofar as the other applicants were concerned, the Board characterized the issues presented by their claims as firstly, whether there was a serious possibility that they would be persecuted because of their membership in a particular social group, namely members of Mr. Hinzman's family, and secondly, whether they were persons in need of protection because of a risk to their lives or a risk of cruel and unusual treatment or punishment.
i) State Protection
[50] With respect to the issue of State protection, the Board noted that the responsibility to provide international protection is only engaged when State protection is not available to a claimant in his or her home country. The Board further observed that there is a rebuttable presumption in refugee law that, in the absence of a complete breakdown of the State apparatus, a State will be able to protect its own nationals. Moreover, the more democratic the State, the greater the obligation on a claimant to exhaust all courses of action available in the claimant's country of origin, prior to seeking refugee protection abroad.
[51] Citing the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Satiacum (1989), 99 N.R. 171, the Board found that refugee claimants from the United States must establish the existence of 'exceptional circumstances', such that the claimant would not have access to a fair and independent judicial process.
[52] That is, Mr. Hinzman would have to establish that he would not have full access to due process, or that the law would be applied against him in a discriminatory manner, if he were to return to the United States and face court-martial proceedings. The Board found that the Universal Code of Military Justice (UCMJ) and the Manual for Courts-martial of the United States reveal a sophisticated military justice system that respects the rights of service personnel, and guarantees appellate review, including limited access to the United States Supreme Court.
[53] Noting that the UCMJ is a law of general application, the Board then reviewed the approach set out by the Federal Court of Appeal in Zolfagharkhani, previously cited, to determine whether the prosecution of Mr. Hinzman under an ordinary law of general application would amount to persecution.
[54] The Board thus found that the onus was on Mr. Hinzman to show that the American law was either inherently persecutory, or for some other reason was persecutory in relation to a Convention ground. In the Board's view, he had failed to satisfy this onus.
[55] In coming to this conclusion, the Board found that Mr. Hinzman had not brought forward any evidence to support his allegation that he would not be accorded the full protection of the law in the court-martial process.
[56] The Board also observed that the United States has military regulations in place that allow for exemption from military service, as well as for alternative, non-combatant service for persons who can invoke genuine reasons of conscience. The regulations also recognize that conscientious objections can be long-standing, or can result from an evolution in a person's belief system resulting from their military experiences.
[57] The Board recognized that American military regulations do not permit a conscientious objection to be founded on an individual's objection to a particular war, noting that this limitation had been upheld by the Supreme Court of the United States in the Vietnam-war era decision in Gillette v. United States, 401 US 437 (1971).
[58] The Board concluded that Mr. Hinzman had failed to offer sufficient evidence to establish that he was denied due process with respect to his application for non-combatant status, or that he would be denied due process or be treated differentially, were he to return to the United States and be court-martialled.
[59] Having failed to rebut the presumption that State protection would be available to him in the United States, it followed that Mr. Hinzman's claim under both sections 96 and 97 of the Immigration and Refugee Protection Act had to be dismissed.
ii) Did Mr. Hinzman Have a Well-founded Fear of Persecution in the United States?
[60] Even though the Board's conclusion on the issue of State protection was determinative of the applicants' claims, the Board went on to consider the other issues raised by the claims, starting with the question of whether any punishment that would be imposed upon Mr. Hinzman as a consequence of his refusal to serve in a combative capacity in Iraq would be inherently persecutory, given his political and moral views.
[61] The Board also considered Mr. Hinzman's argument that had he gone to Iraq, he would have been ordered to engage in offensive operations, contrary to his genuine convictions against killing other than in self-defence, and that this would also have amounted to persecution.
[62] The Board began by reviewing the relevant paragraphs of the UNHCR Handbook, the full text of which are appended to this decision. In this regard, the Board noted that, in certain circumstances, the political and religious beliefs of an individual may be grounds for refusing military service, and may also form the foundation for a successful refugee claim.
[63] The Board then proceeded to examine Mr. Hinzman's own beliefs. In this regard, the Board found Mr. Hinzman to be an intelligent and thoughtful individual, whose moral code was in a state of evolution.
[64] Based upon statements made by Mr. Hinzman in his PIF, at his conscientious objector hearing in Afghanistan, and at his refugee hearing, the Board found that Mr. Hinzman decided to desert because he was opposed to the American military incursion into Iraq, and not because he was opposed to war in general. While accepting the sincerity of Mr. Hinzman's objections to participating in the war in Iraq, the Board went on to find that Mr. Hinzman's position was "inherently contradictory".
[65] In this regard, the Board noted that while Mr. Hinzman was of the view that the military occupation of Iraq was illegal, and that, as a result, any actions that he might take in relation to the war would therefore also be illegal, he was nevertheless prepared to serve in Iraq in a non-combatant role.
[66] Citing the decision of this Court in Ciric v. Canada(Minister of Employment and Immigration), [1994] 2 F.C. 65, the Board held that one cannot be a selective conscientious objector. The Board further found that Mr. Hinzman's failure to pursue his conscientious objector application in the United States, and his resumption of regular infantry duties on his return from Afghanistan, were each inconsistent with his claim to be a conscientious objector.
[67] In addition, the Board found that Mr. Hinzman had also not properly explained why he had not sought an adjournment of his conscientious objector hearing in Afghanistan. Moreover, the Board rejected as 'unacceptable' Mr. Hinzman's explanation that he had not investigated possible avenues of appeal in relation to the negative decision he had received because he was "worn out".
[68] Thus, while seemingly accepting the sincerity of Mr. Hinzman's objections to participating in the war in Iraq, the Board nevertheless concluded that Mr. Hinzman was not a conscientious objector because he was not opposed to war in any form, or to the bearing of arms, due to his genuine political, religious or moral convictions, and that, as a result, any punishment for desertion would not be inherently persecutory.
iii) Section 171 of the UNHCR Handbook
[69] The Board also rejected Mr. Hinzman's assertion that the type of military action with which he did not wish to be associated in Iraq - that is, the specific acts that he would personally have been called upon to perform - were ones that were "condemned by the international community as contrary to basic rules of human conduct", as that phrase is used in section 171 of the UNHCR Handbook, and that, as a result, any punishment that he might receive for deserting would be persecutory.
[70] In support of his contention that he could well have been called upon to commit human rights violations, had he gone to Iraq, Mr. Hinzman pointed to evidence regarding conditions at the Guantanamo prison facility in Cuba, to incidents of torture at the Abu Ghraib prison in Iraq, and to two legal opinions prepared by the American Department of Justice (the "Gonzales opinions"), suggesting that the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, UN Doc. A/39/51, 1984, entered into force June 26, 1987, might not apply to the interrogation of 'enemy combatants' held by the United States.
[71] According to Mr. Hinzman, this evidence demonstrates that the United States has conducted itself with relative impunity, and has evidenced a complete disregard for international norms in its conduct on the various fronts of its "War Against Terror".
[72] Before the Board, Mr. Hinzman contended that if he were required to participate in offensive action in Iraq, potentially killing innocent civilians, he would be excluding himself as a Convention refugee or person in need of protection by virtue of s. 98 of the Immigration and Refugee Protection Act. In such circumstances, Mr. Hinzman submitted that any punishment that he might receive for deserting would be persecutory per se.
[73] After reviewing the evidence adduced by Mr. Hinzman, the Board concluded that Mr. Hinzman had not shown that the United States had, either as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of international humanitarian law. Citing the decision of this Court in Popov v. Canada(Minister of
Employment and Immigration) (1994), 24 Imm. L.R. 242, the Board noted that isolated instances of serious violations of international humanitarian law will not amount to military activity that is condoned in a general way by the State.
[74] In coming to this conclusion, the Board considered the findings of a Human Rights Watch report that documented the killing of civilians by American forces in Iraq. While observing that there had been questionable deaths, the report acknowledged that the American military has taken steps to reduce civilian deaths, and to investigate specific incidents where deaths had occurred.
[75] The Board further noted that the use of "embedded" media representatives in Iraq indicated an attitude of openness and accountability on the part of the American military.
[76] Finally, the Board reviewed the evidence of United States Marine Corps Staff Sergeant Jimmy Massey, who served with Mr. Hinzman's division in Iraq, and was involved in manning a vehicle checkpoint. The Board accepted Staff Sergeant Massey's testimony that the standard operating procedure at such checkpoints tried to minimize harm to civilians.
[77] The Board thus concluded that Mr. Hinzman had failed to adduce sufficient evidence to establish that if deployed to Iraq, he would have personally been engaged in, been associated with, or been complicit in acts condemned by the international community as contrary to basic rules of human conduct.
iv) Punishment for Desertion: Prosecution or Persecution?
[78] Having previously found that Mr. Hinzman was not a conscientious objector, the Board observed that any punishment that he would face would not automatically be persecutory in nature. The Board held that to establish that he faced a risk of persecution, Mr. Hinzman had to establish either that the punishment that he feared he would receive for desertion, if he were returned to the United States, would result from a discriminatory application of the UCMJ, or would amount to cruel or unusual treatment or punishment.
[79] In this regard, the Board noted that Mr. Hinzman had testified that he would likely face between one and five years in a military prison, and that because he had "probably offended ... military sensibilities", he would likely be treated more harshly than other deserters.
[80] Noting that the Handbook recognizes that desertion is invariably considered to be a criminal offence, the Board found that penalties for desertion will not ordinarily be considered to be persecutory. However, the Board also observed that paragraph 169 of the Handbook provides that a deserter may be considered to be a refugee if it can be shown that he or she would suffer disproportionately severe punishment for the military offence on account of his or her race, religion, nationality, membership in a particular social group or political opinion. A deserter may also be considered to be a refugee where it can be shown that he or she has a well-founded fear of persecution on the enumerated grounds, above and beyond the punishment for desertion.
[81] On the totality of the evidence before it, the Board concluded that the treatment or punishment that Mr. Hinzman fears in the United States would be punishment for nothing more than a breach of a neutral law that does not violate human rights, and does not adversely differentiate on a Convention ground, either on its face, or in its application.
[82] The Board did not accept Mr. Hinzman's argument that he would be punished more severely because of the publicity that has surrounded his case, finding that there was insufficient evidence to justify this assertion.
[83] Moreover, the Board concluded that the punitive articles in the UCMJ were not grossly disproportionate to the inherent seriousness of the offence of desertion. Although the UCMJ