Canada rules US Army deserter not a refugee

TORONTO - A US soldier who deserted because he opposed the war in Iraq does not qualify as a refugee and would not face excessive punishment for his actions if sent home, Canada's Immigration and Refugee Board has ruled.

Jeremy Hinzman, 26, was the first of several US deserters to file asylum claims in Canada. He fled from the 82nd Airborne Division two years ago and sought refugee status in Canada.

Hinzman had maintained the US-led war in Iraq was illegal and he feared committing atrocities if he was sent there.

The ruling said Hinzman's reasons for refusing to fight in Iraq were "inherently contradictory" because he was willing to serve but only in a non-combat role.

"Surely an intelligent young man like Mr Hinzman, who believed the war in Iraq to be illegal, unjust and waged for economic reasons, would be unwilling to participate in any capacity, whether combatant or non-combatant," the refugee board said in its decision.

"The Federal Court ... clearly sets out that one cannot be a selective conscientious objector. "

The ruling also noted that Hinzman was also not opposed to war given that he supported US actions in Afghanistan.

"He decided to desert because he was opposed to the US military incursion into Iraq, not because he was opposed to war generally," the decision read.

The refugee board said Hinzman had not given enough evidence to indicate he would be denied due process if sent back to the United States or treated especially badly because he was a deserter.

Hinzman's lawyer immediately said he would appeal the decision to the federal courts.

Hinzman, who could face up to five years in prison if he is returned to the United States, will be allowed to remain in Canada during the appeal.

The US army has said a decision on whether to courtmartial Hinzman or grant him an administrative discharge can only be reached once he returns. His appeals could take several years to be completed.

"He is defined as a deserter in the United States army so when he is returned to military control, at that time, he's going to still be a soldier," said Amy Hannah, a spokeswoman for the 82nd Airborne in Fort Bragg, North Carolina.

Hannah said Hinzman would get "the rights and privileges " of any soldier and would not be treated differently.

"That being said, at this point he is in Canada. "

The refugee tribunal also rejected the asylum claims of Hinzman's wife and young son.

Hinzman, who served in a non-combat role in Afghanistan, said he decided to leave after military brass ignored his requests to be registered as a conscientious objector.

The soldier, born in Rapid City, South Dakota, enlisted in 2000 to get college funds. In a December refugee hearing, he said he refused to go to Iraq because he was "unwilling to kill babies. "

His case was undercut by the refugee board's refusal to consider the legality of the US-led war in Iraq, a major pillar of Hinzman's refugee claim.

It is estimated there are about 100 US soldiers who have deserted to Canada since the start of the Iraq war, almost exactly two years ago.

Canada did not send troops or support the Iraq war as it was not sanctioned by the United Nations.

- REUTERS