A Just Deserter

By Matt Mernagh, NOW. Posted December 21, 2004.

After three days of listening to graphic testimony at the refugee hearing of South Dakota war resister Jeremy Hinzman, one observer sitting near me shakily remarks, "If you're not a pacifist after sitting through this then nothing will make you into one." In this harshly lit hearing room on Victoria, a refugee board adjudicator is going to have to rule on a most shocking proposition: whether this former soldier of the U.S. 82nd Airborne ought to be granted asylum because he fears participating in war crimes in Iraq.

Those packing the room - mostly Quakers and other peace types - are busy trying to send subliminal messages to presiding member Brian Goodman through their anti-war buttons and peace quilts.

Round one has already been lost. A technical legal ruling forbids Hinzman's counsel, Jeffry House, from arguing the illegality of the war in Iraq and a soldier's duty not to participate in such a war. House considers the ruling a huge ground for appeal should Hinzman be denied refugee status.

But House has another card up his sleeve - an Ontario Court of Appeal precedent in the case of Fereidoon Zolfagharkhani, who deserted from the Iranian military upon learning that Iran intended to gas Kurds. Zolfagharkani was a paramedic, and it would have been his job to treat Kurdish people who didn't die from the attacks so they could withstand interrogation. He won the right to asylum in Canada, and House hopes a similar logic will work in Hinzman's case.

The point at issue is whether Hinzman, as a member of the 82nd, would have been forced to kill civilians or participate in violations of the Geneva Convention during his tour of duty. So House has entered exhibits of media reports from the Washington Post, Democracy NOW and Human Rights Watch with such titles as U.S. Military Attacks On Population Centers, U.S. Military Attacks On Health Clinics and U.S. Military Attacks On Civilians.

Info relating specifically to the exploits of the 82nd Airborne are easy enough to Google. I did the search myself and found a Human Rights Watch report documenting actions of the 82nd Airborne that resulted in the deaths of seven unarmed civilians.

As that report details, "soldiers from the 82nd Airborne's 3rd Battalion, 505th Parachute Infantry Regiment raided the apartment of Fadhil Hamza Hussain al-Janabi in al-Mahmudiyya on the outskirts of Baghdad after receiving a tip from a local pool hall about 'bad guys' in the neighborhood... Al-Janabi's 19-year-old daughter Farah was killed, as was a neighbor."

Outside reports of the 82nd, Hinzman's case turns on how well he can articulate the growing worries he harbours about becoming a killing machine. During his wife's pregnancy back in South Dakota, Hinzman began to disdain his training, which included chanting, "Trained to kill! Kill we will!" Fatherhood, he says, cemented his belief that, unlike the other soldiers, he couldn't make the grass grow with bright red blood.

Two months after his baby's birth and several months before shipping out to Afghanistan, he filed a very complicated conscientious objector (CO) application. "I didn't feel I could kill. I could have done other jobs in the Army," Hinzman says.

What happened then isn't entirely clear. Somehow, the papers were lost and Hinzman resubmitted his CO application. At this point he was in Afghanistan doing kitchen duty. Then one day while scrubbing pots, he says, superiors pulled him from his duties, brought him in front of a tribunal and quickly denied him CO status.

Upon returning to the U.S., he came to realize his only option was to flee to Canada. He led a hard double life, he says - by day training to deploy to Iraq and by night planning an escape route north.

"We were going to Iraq to jack up terrorists. We were told this was a new kind of war, that these people weren't human and that they were not to be treated in a humane way. We were told by commanders in pep talks that these people are evil."

Needing more specifics on who the army considered evil, presiding member Goodman asks, "Who were they referring to as terrorists?"

Hinzman chillingly replies, "They associate everyone in the area as a terrorist."

"The entire population of Iraq was considered a terrorist?" Goodman asks.

"We referred to Iraqis, Saudis, Kuwaitis, Yemenis, Iranians as terrorist, as they came from the Middle East," comes Hinzman's reply.

Somewhat disbelieving, Goodman asks again, "All Arabs from that region were terrorists?"

"Correct, sir."

Though the war in Iraq isn't on trial, House manages to highlight U.S. soldiers' propensity to kill Iraqi civilians. When he introduces his star witness, Marine Staff Sgt. Jimmy J. Massey, immigration rep Janet Chisholm weakly objects. "He doesn't have a similar position in the Army," she says of Massey, and suggests he couldn't possibly be an expert on the Geneva Convention.

The soft-spoken, bespectacled Massey, who is suffering from post-traumatic stress disorder from his tour in Iraq, was not only trained in the Geneva Convention since boot camp but was also assigned to ensure firefights were clean - i.e., carried out according to the army's Standing Operating Procedures and the Geneva Convention.

Within Massey's first 48 hours in Iraq, his platoon of 45 had slaughtered 30 unarmed men, women and children at checkpoints. Marines are trained to set up checkpoints according to a set procedure, but Massey testifies that military fearmongering "was giving us the mindset that every Iraqi was a terrorist."

Now the former Marine even questions whether their procedure for trying to stop a vehicle entering a checkpoint could have been sending the wrong message to approaching Iraqis. As cars moved towards them, a Marine would flash what they believed was the international "Halt" hand symbol, a closed fist in the air. Of course, it is easily mistaken for the internationally recognized brotherhood or solidarity gesture, which is exactly the same.

All this happened in a matter of seconds as the fear of suicide bombers created itchy trigger fingers. "We fired at a cyclic rate. We pulled the trigger and didn't stop," Massey says.

"I witnessed Marines putting rounds into enemy combatants who were expiring. It is not uncommon for a Marine to put rounds in the head of someone playing possum," he says.

Besides trying to establish the realities of soldiering in Iraq, the hearing also puts Hinzman's religious beliefs under the microscope. The war resister and his family attend twice-weekly Quaker gatherings. They are tenders, not members, but Hinzman says that after years of quiet contemplation, he would apply to become a member.

The other question before the refugee board is whether Hinzman is a refugee by reason of a well-founded fear of persecution. To establish this, he would have to show that the U.S. government and its military would persecute him for reasons of political opinion, religion or membership in a social group - namely conscientious objectors to military service in the U.S. Army in Iraq.

All this Goodman will have to weigh to determine if the horrors that he repeatedly heard in gross, exacting detail meet the requirements set out by the Court of Appeal. With written submissions from House and Chisholm not due until the end of January, a ruling probably won't drop until March. Then the world will learn whether Canada considers the actions of the U.S. Army in Iraq to be so dire that conscientious objectors are in need of our protection.

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