"OUR CHILDREN did not enlist to commit war crimes and crimes against humanity," said Cindy Sheehan, the prominent American anti-war activist who toured Toronto, Vancouver and Ottawa during the first week of May. Sheehan, who lost her own son, Specialist Casey Sheehan, in Iraq in April 2004, rose to prominence last year when she camped out at President George W. Bush's Texas ranch, demanding answers for the war.

Sheehan called on the Canadian government to welcome American war resisters as refugees. "I believe our war resisters are legitimate refugees," she said during a visit to the legislature in Ottawa.

The call comes as Canada's Federal Court of Appeal prepares to hear appeals from resisters Jeremy Hinzman and Brandon Hughey. Both are appealing April 2006 Federal Court decisions which upheld findings by the Immigration and Refugee Board (IRB) that the Americans did not qualify as refugees under the 1951 GenevaConvention. In their rulings, both the IRB and the appeal court of first instance appear to have danced around politically sensitive issues and existing case law.

Hinzman was a soldier in the U.S. Army's elite 82nd Airborne division. After having applied for conscientious objector (CO) status, he served in Afghanistan in a non-combat position. Upon his return to America, his CO application rejected, Hinzman learned that he would be deployed to Iraq. Because he did not wish to participate in what he considered an illegal war, in January 2004 Hinzman drove to Canada to seek asylum. He currently is living in Toronto with his wife, Nga Nguyen, and son, Liam.

Hughey, a native of San Angelo, Texas, arrived in Canada in March 2004. He left his Army unit before it shipped out to Iraq because, he says, it was his obligation to do so. "I feel that if a soldier is given an order that he knows to be not only illegal, but immoral as well, then it his responsibility to refuse that order," he wrote in response to e-mailed questions from the San Angelo Standard-Times. "It is also my belief that if a soldier is refusing an order he knows to be wrong, it is not right for him to face persecution for it."

Hinzman and Huey both face court martial and up to five years in jail as deserters if they are ordered returned to the U.S. Nevertheless, the IRB rejected their arguments that they did not want to participate in an illegal war and that they would be punished for acting on their conscience. The adjudicators held that, because they were not opposed to war in general, the two were not conscientious objectors; that the U.S. was willing and able to protect them; and that their treatment would not amount to persecution.

Paragraph 171 of the U.N.'s Handbook on Procedures and Criteria for Determining Convention Refugee Status provides that where the type of military action with which an individual does not wish to be associated is condemned by the international legal community as contrary to rules of human conduct, punishment for desertion could be regarded as persecution.

In denying both claims, the Canadian adjudicators held that the legal status of the war in Iraq had no bearing on the analysis of paragraph 171. This determination was one of the issues on which the matters were appealed to the Federal Court, but Madam Justice Anne Mactavish noted in separate decisions (Hughey v. Canada [2006] F.C. 421 and Hinzman v. Canada [2006] F.C. 420) that this question was not an issue before her and thus did not have to be decided.

According to Jeffrey House, the attorney for both Hinzman and Hughey, the decisions at both levels also were based on the erroneous view that American jurisprudence gives war resisters the right to seek a remedy if they question the legality of a war. In fact, he argues, this is not true. The leading case on the "political questions doctrine"-which revolves around whether people can challenge the legality of war based on their conscience and international law-was turned down by the United States Supreme Court in Callan v. Bush. Thus, notes House, the U.S. is not in a position to provide protection to resisters.

Although the existing case law from the Federal Court of Appeal (Al-Maisri v. Canada [1995] F.C. J. No. 642) appears to be on point, it was rejected by Justice Mactavish as being of "limited assistance." That case involved the IRB's denial of refugee status to a Yemeni who acknowledged he was willing to fight for Yemen to protect it from aggression, but was not prepared to fight for Iraq against Kuwait. (Yemen was a supporter of Iraq.) Determining that "non-defensive incursion into foreign territory" was within the ambit of paragraph 171, the Court of Appeal overturned the IRB decision.

Justice Mactavish held that when "one is considering the claim of a low-level "˜foot soldier,'" the legality of the conflict is irrelevant when analyzing paragraph 171. Al-Maisri, however, also was a "foot soldier." Admitting that "given the decision of the Court of Appeal in Al-Maisri, it is fair to say that the issue is not entirely free from doubt," Justice Mactavish proceeded to certify this question, which gave Hinzman and Hughey an automatic right of appeal to the Court of Appeal.

Canadian and U.S. authorities are closely monitoring the politically sensitive case, which has become the proverbial public relations "hot potato" for Washington. At the initial hearing, a former U.S. Marine testifying in Hinzman's support stated that American soldiers in Iraq routinely violated international law by killing unarmed civilians, including women and children. Also filed were affidavits from two international law professors confirming the illegality of the war, and reports from Human Rights Watch and the International Committee of the Red Cross documenting the abuses and violations.

Many U.S. soldiers-hundreds of whom already are in Canada-are no doubt watching the case as well. Michelle Robidoux of the War Resisters Support Campaign says they are aware of at least 20 soldiers who are trying to gain refugee status. "They see tremendous support among average Canadians," said Robidoux, "yet they are denied refuge by a handful of appointed officials."

House, who represents 12 American resisters, hopes the Court of Appeal will consider the important questions raised by these cases and refer the matters back to the lower courts with directions for further consideration-principally on the issue of the war's legality and the claimants' ability to seek redress in the U.S.

Given existing case law, the growing evidence of abuse of Iraqi civilians by U.S. troops, the international opposition to pre-emptive strikes, the U.S. position on the Geneva Conventions, and the now infamous "Torture Memos," the Federal Court of Appeal finds itself at a critical juncture. During the Vietnam era, Prime Minister Pierre Trudeau said that Canada must be a "refuge from militarism." The Court of Appeal now must decide if it will remain so.

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Faisal Kutty is a Toronto-based writer and lawyer with the firm of Kutty, Syed & Mohamed (), where he can be reached at . His articles are archived at .

This article was published in the July 2006 edition of the Washington Report on Middle East Affairs. It is used here with permission.