Duty vs. Conscience

The Supreme Court of Canada announced today that it has refused to hear an appeal of an immigration board's decision to refuse refugee status to American soldiers who deserted their army and fled to our side of the border (for details see the story here).

I have to admit that I felt a twinge of sympathy for at least one of the soldiers in question here. Jeremy Hinzman, has been in the news for a little while now, and from what I remember from having read about him before, he was a member of an Airborne division, and had already served a full tour of Afghanistan before he chose to desert rather than allow himself to be shipped off to Iraq, for fear that he would be forced to commit war crimes. Given that the man has already served a tour, I am having a hard time believing that he is a coward. At first glance it looks to me like the man really does have a moral objection against serving in the Iraq war.

Furthermore, even if he was simply scared for his life and did not want to go to war again, since I am not a veteran, I would have a hard time blaming him knowing that he has already endured war and has a better idea of what he is going back to than I do.

Canada has sheltered American war deserters before, most notably, those that did not want to serve in the Vietnam War. But there is a huge difference here. Jeremy Hinzman was a volunteer, not a draftee. He joined the army of his own free will and voluntarily submitted himself to a soldier’s way of life. You do not have to be a soldier to understand that being in the military means that you do not have much choice about which orders you will or will not follow. One of the few choices you can make is not to follow an illegal order.

If I'm not mistaken Hinzman's lawyer may have argued that his mere presence in Iraq would have been a war crime. I know that people have been convicted before for "crimes against peace" for engaging in aggressive wars but those are usually high ranking generals or statesmen, not regular soldiers. Regular soldiers are usually judged by the actions they perform once they are in foreign countries, as was the case in the Abu Graib prison scandal. From what I've read about Hinzman's situation, and about Irk in general, I see no reason to believe that his presence in Iraq would constitute a war crime. To be fair, I am by no means an expert on international law, so if any of my fellow bloggers out there can offer a more informed opinion about whether or not he would be committing a war crime, I would welcome it.

As I said before, when someone joins the army, they are volunteering to become a soldier and soldiers are subject to a much higher degree of discipline than normal citizens. It has to be this way, since soldiers are often called upon to do things that ordinary citizens would not choose to do, things that very often put their lives in danger, things that can be very unpleasant (such as having to kill). This is a necessary measure that is used to protect our societies, but it is highly vulnerable to abuse, and often leads governments to use well intentioned, patriotic soldiers as thugs. For this reason there are certain safeguards so that soldiers can use their own personal judgment to a certain degree. As I mentioned before, they have the right to refuse illegal orders. In the U.S., they have the right to ask for "conscientious objectors status".

In Hinzman's case, I believe he actually applied for conscientious objectors status it but was denied. Still, I don't think that the answer was to run away to Canada. In my opinion, Hinzman should have refused his orders to go to Iraq and face a court martial, where he could have plead not guilty and attempted to argue that he could not obey orders to go to Iraq on the grounds that doing so would amount to him committing a war crime. His guilt or innocence could be determined, first by a jury made up of his fellow soldiers, and if he is convicted he can still appeal to the American court system. He made a commitment to the U.S. Army and he has an obligation to them. Since the American courts are the competent jurisdiction to decide these matters, it is up to them to make this kind of decision.

I haven't been able to make up my mind as to whether or not Hinzman deserves to go to jail or not, after all, he is clearly not just some coward, but he has committed a crime, so it is a difficult question to answer. What I am certain of is that he needs to face a court martial in the U.S. and extraditing him would not endanger his life or health. Once he is home, he will face neither persecution, nor torture.