First published on April 5, 2007 in Eye Weekly Magazine

By Reuben Apple

Americans, insurgents, militiamen and others have killed 30,000 Iraqis, if you believe George Bush, or some 600,000 according to researchers at Johns Hopkins University. The United States did not invade in self-defence, and the United Nations did not say America could attack. The new Iraqi oil law and Abu Ghraib are examples of systematic plunder and torture.

The International Criminal Court has a statute that says soldiers must refuse to participate in this sort of behaviour. Now Americans who deserted their army and have come to Canada are asking our Federal Court of Appeal for the right to say six words, one for every 100,000 dead: "We think this killing is unlawful."

If they are allowed to make that claim, the hundreds of US soldiers who have come here may be able to stay. If not, they and future deserters could spend years in American prisons for quitting a mission they know constitutes, in legal terms, an "aggression" and more than one "war crime." In 2005, the Immigration and Refugee Board ruled that the war's legality, which is central to these soldiers' claims for refugee status, is not relevant. It is. The soldiers deserted largely because they realized they had been deceived by their government and were participating in serious crimes. Soon, the Court of Appeal will be able to tell the Board to either hear that the Iraq War is illegal or grant these soldiers refugee status immediately.

Lawyer Jeffry House evaded the draft during the Vietnam War and, he says, "reported to Canada instead." At the cost of his time and energy, he advocates for Iraq War deserters, people who can't pay standard fees, if any. House is the kind of citizen Canada earns when we accept the moral best that America cannot always keep for itself. House says that "to imprison someone for refusing to participate in war crimes is persecution," exactly what our refugee policy is designed to prevent, but he knows this case has a "political component." Prime Minister Stephen Harper should not be so considerate of Presidential feelings.

Prime Minister Trudeau welcomed soldiers who deserted during the Vietnam War saying, "Canada should be a refuge from militarism." The story goes that when President Nixon said our Prime Minister was an "asshole," Trudeau observed that he had "been called worse things by better people." It has never been in Canada's interest to kneel before a thug, and this "middle power" was once capable of great leadership. For the 50,000 young Americans we took in during the war in Vietnam, we provided dear relief. In the short term, it was a small contribution for peace, much better than none.

Decades later, we saved lives by not joining the invasion of Iraq, but we would save more if today we opposed the violence actually and not just in principle. Further, protecting conscientious deserters will make future commanders-in-chief and dictators pause to wonder how many of their troops would follow an illegal order.

The historic and legal precedent set by Trudeau, the merit of the resisters' case, and the benefits to Canada and the larger world are reasons to think deserters should be allowed to stay, but the best argument may be the character of the soldiers themselves. They are typical American youth who have made unusual sacrifices, first to fight, as they thought, for their country, and now to resist war. Resister Ryan Johnson says Canadians "need to wake up and get involved with something, nuclear disarmament, the Canadian Peace Alliance, the War Resisters Support Campaign, anything, because it's the people that can end this." In his place, facing 2,000 days within three cement walls and a fourth of iron, would I be thinking about nuclear disarmament? Maybe.

Then there is Jeremy Hinzman's testimony to the Refugee Board. In plain language, Hinzman replayed the moral struggle that forced him to desert. The result is a lesson in practical ethics and an account of integrity against military coercion. Search "Hinzman" at the Immigration and Refugee Board website and enjoy. At some point in the next few months, the Court of Appeal could decide in Hinzman's favour and send his case back to the Refugee Board, which would then have to hear his argument that the Iraq War is illegal. If they decide against him, he will have to apply to the Supreme Court for a hearing.

Three weeks ago, another soldier, Joshua Key, spoke at the Bloor Street United Church. He shared his experiences of Fallujah and Ramadi, of his return to the United States, and of his escape to Canada where he wrote his story and published it as The Deserter's Tale. In his small-town Oklahoma accent, he told a Toronto audience why he fled the army and gave up his extended family, his friends and his country. He said he could not keep blowing the doors off Iraqi houses and arresting every man inside because after a hundred home invasions he never found anything illegal apart from the occupation. Like Hinzman, Key is waiting for the result of the appeal.

Members of the War Resisters Support Campaign provide housing, friendship and sometimes money to people like Joshua Key, but someone with power recently gave a strange reward for this generosity. Two weeks ago, three big men in trench coats, "Toronto police," they said, came with questions to the home of Winnie Ng, a campaigner who once hosted Key. According to reports in the Toronto Star, it seems American military authorities would like to speak with Key. If they want to discuss The Deserter's Tale with its author they can go to his next talk or they can call his lawyer, Jeffry House. Key has legal status in Canada as a refugee claimant and officials should tell the American government that our police, if those men were our police, are not their messengers.

The immediate problem though, is that the Refugee Board has said American deserters could not argue that their government has been committing war crimes, even though the Board regularly lets applicants from other countries make that claim. If this error is not corrected it will ensure persecution. Fortunately, the Constitution gives us a Court of Appeal "for the better administration of the laws of Canada." The Court is hearing the case now and this is their chance to better the administration of our laws.

But Stephen Harper should not spend our legal resources to avoid making a political decision. Until he says deserters are generally welcome the Refugee Board will slog through claims case-by-case. The US Army admits that 27 per cent more of its soldiers deserted in 2006 than in 2005, for a total of 22,500 over the past six years, and President Bush is now "staying the course" by "surging" another 20,000 Americans into Baghdad where the situation is already "grave and deteriorating," according to a US Congressional Commission. Add a bit more stay-the-course to grave-and-deteriorating and Canada can expect a surge of Americans who will report to Canada instead. Harper can simply ask his immigration minister to start an efficient process by which these people can begin their new lives as Canadians. Inflicting years of instability on people coming from a war would be cruel, but that is what we are doing now.

Eventually, unless he is saved by the loss of an election, Stephen Harper will have to let US war resisters stay in Canada, or explain why he won't. We should keep these soldiers who refused to commit war crimes - we can use such motivated, moral people. As a bonus, Americans will see that we oppose what they're doing to Iraq, and we might help end this war a few bodies sooner.