The delegation included military veterans, a Catholic priest, an expert on international law, and resisters of U.S. wars, present and past. Four delegation members had lived in Canada during the Vietnam War.

The delegation delivered a letter to Peter MacKay, Canada’s Minister of Foreign Affairs, and Monte Solberg, Minister of Citizenship and Immigration. The letter was received by Tristan Landry, Consul, Political/Economic Relations and Public Relations, who listened respectfully as each of his visitors stated their support for sanctuary for U.S. war resisters in Canada.

Delegation members gave a brief overview of the plight of U.S. war resisters in Canada, telling the Canadian Consul that several hundred AWOL GIs were estimated to be in Canada, and that 25 of them had applied for political refugee status. The first two, Jeremy Hinzman and Brandon Hughey, had their claims for refugee status denied, but their cases were being appealed in Canada’s Federal Court system.

Jacqueline Cabasso, executive director of the Western States Legal Foundation, argued that the U.S. war in Iraq was illegal. “It must be opposed not only as a matter of law, but as a matter of principle,” she said.

Several Vietnam War resisters spoke about Canada’s traditional role, in the words of former Prime Minister Pierre Trudeau, as a “refuge from militarism.” Keith Mather, Evangeline Lantana Mix, and Steve Grossman each thanked Canada for providing them with a viable alternative to going to war or to prison during the Vietnam War.

Father Louis Vitale, who recently finished a six-month prison sentence for peacefully protesting the School of the Assassins at Fort Benning, Georgia, was nonetheless passionate about supporting the troops. “Our military people are really in danger,” said Father Vitale. “They’re really at high risk. Some of them are threatening suicide, or are on the border of suicide. Some of them are tortured in prison. Some of them give in and do go to Iraq and do get killed. They really need the humanity that exists in Canada to accept them and give them sanctuary.”

Jeff Paterson, an organizer for Not In Our Name, said, “During the first Gulf War, I was a United States Marine. “I considered that war unjust and immoral and I applied for a discharge as a Conscientious Objector. The Marine Corps told me I was sincere, but not sincere enough. I quickly found myself serving months in the military brig.

“Political persecution is a reality for people opposing the war within the U.S. military,” continued Paterson. “That’s why a safe haven in Canada is a necessity. It’s not a theoretical thing; it’s not a political stunt we’re trying to do.”

One after another, members of the delegation explained how the current system for applying for Conscientious Objector status was inadequate and arbitrary. Very few GIs are granted this status, just enough for the military to claim there is an “alternative.” Many soldiers are never told of their option to apply for Conscientious Objector status. Or they are told that COs are cowards and homosexuals to be scorned and abused.

Some GIs do manage to apply for CO status, a serious process of soul-searching and intensive writing, only to have their applications “lost” or “thrown away” by the military. Others wishing to apply for CO status have been told to wait until after they are in Iraq or Afghanistan.

In 2004 Sergeant Kevin Benderman, a 10-year Army veteran, returned from the Iraq War and became a Conscientious Objector. The Army violated its own procedures, denied him CO status, and ordered him to Iraq. Benderman refused to return. Last July he was given a General Court Martial, usually reserved for high crimes. He was convicted of “missing movement” and sentenced to 15 months in prison and received a Dishonorable Discharge.

Delegation members also explained that the U.S. military grants Conscientious Objector status only to those who can prove they are opposed to all wars, such as religious pacifists. This narrow definition does not take into account a soldier’s obligations under international law.

AWOL: A Counseling Memo

The War Resisters Support Campaign in Toronto has been actively supporting U.S. war resisters in Canada since early 2004, helping them and their families find lawyers, housing and jobs, and coordinating hundreds of media and speaking engagements, benefit concerts, and a national petition campaign calling on the Canadian government to provide sanctuary for all war resisters. The Campaign supports individual war resisters who are currently seeking political refugee status in Canada, and closely monitors the progress of all relevant legal proceedings.

For over two years now, AWOL U.S. soldiers, sailors, and marines have been arriving in Canada, most of them after receiving orders to deploy (or re-deploy) to the Iraq War. So far, not one of them has been deported to the U.S.

The Pentagon estimates there are about 8,000 AWOL GIs in the U.S. With proper counseling, some have been able to gain administrative discharges from the military. Canada’s immigration laws have tightened considerably since the Vietnam War, when as many as 100,000 U.S. citizens moved to Canada. Current regulations require would-be immigrants to apply from outside Canada, to have much needed job skills and/or substantial financial resources, and to wait up to two years for a response.

The only exceptions are where the U.S. citizen is married to a Canadian citizen or is a permanent resident (“landed immigrant”) or is the son/daughter of a parent who has Canadian citizenship or permanent residency.

Privates Jeremy Hinzman and Brandon Hughey arrived in Canada in early 2004 and became the first two U.S. war resisters to seek political refugee status in Canada. In 2005, they both were denied refugee status by the same single member of Canada’s Immigration and Refugee Board, Brian Goodman. But, in a promising legal victory, Canada’s Federal Court agreed to hear Hinzman’s and Hughey’s appeals, based in part on Goodman’s refusal to allow evidence of the illegality of the U.S. war in Iraq.

Canada’s Federal Court heard Hinzman and Hughey’s appeal on February 8, 2006. The appeals were denied by a decision handed down on March 31, 2006. Justice Anne Mactavish said that while high-level policy makers could argue the war violates international law, it’s not clear whether soldiers can make the same claim for refugee status.

Because Canada’s Federal Court has agreed that their arguments are sufficiently solid to merit careful consideration, Hinzman and Hughey may be allowed to appeal all the way to Canada’s Supreme Court, if necessary. This process, which will ultimately bear on the refugee claims of other AWOL GIs, may take years, during which time Hinzman and Hughey will be allowed to live and work legally in Canada.

International Law Favors War Resisters

The struggle to achieve political refugee status for U.S. war resisters in Canada can be seen as one of many efforts worldwide to defend the primacy of international law. The Geneva Conventions on War and the Nuremberg Principles make clear that soldiers have not only the right, but also the responsibility to refuse to participate in war crimes. Such war crimes include illegal wars of aggression, indiscriminate or purposeful killing and wounding of civilians, and torture and abuse of prisoners.

According to the “United Nations Handbook on Procedures and Criteria for Determining Refugee Status,” soldiers who refuse to fight in wars that are “condemned by the international community as contrary to basic rules of human conduct” should be considered as refugees.

The “Handbook” states that there are “also cases where the necessity to perform military service may be the sole ground for a claim of refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.”

At least two soldiers have been granted refugee status in Canada in recent years. One, an Iranian medic, had refused to participate in the illegal use of chemical warfare. The other, a Yemeni citizen who was enlisted in the Iraqi Army, went AWOL after refusing to participate in Saddam Hussein’s 1990 invasion of Kuwait. Significantly, both men were initially denied refugee status by the Immigration and Refugee Board before receiving relief from the Federal Court of Canada.

There are as many as 200 or more AWOL U.S. military personnel in Canada today, according to the War Resisters Support Campaign. As of April 2006, about 25 of them had filed claims for political refugee status. Significantly, most of the recent arrivals are men who have already served one tour in Iraq. While the presence of female GIs in Canada is rumored, none have yet applied for refugee status.

From Visitors to Refugees

These GIs traveled to Canada as visitors and, after seeking legal advice, submitted their refugee claims to Canada’s Immigration and Refugee Board. It is also possible, but not normally preferable, to declare oneself a refugee to Canadian officials at the U.S.-Canada border, or other point of entry, such as an airport.

Once a person has applied for refugee status, he or she is automatically protected under Canadian refugee law and may live legally in Canada without fear of arrest or deportation, as long as their claim is pending. This may take several months to several years. Refugee applicants also have access to Canada’s universal health-care system.

After several months, refugee applicants are able to receive Canadian work permits if they can demonstrate that they do not have substantial funds and would otherwise be dependent on welfare, called “social assistance” in Canada.

AWOL soldiers already in Canada should seek legal assistance and apply for refugee status as soon as possible. This will legalize their status as long as their refugee claims are being processed, up to a year or more. If they do not apply for refugee status, they do not benefit from the legal protections granted to refugee applicants, and leave themselves vulnerable to possible arrest and deportation.

Several AWOL U.S. soldiers have traveled to Canada with their wives or partners and some with children. All of these family members are included as refugee applicants under the primary refugee claim of the war resister.

Even if a U.S. war resister is eventually denied refugee status, there are other avenues. Refugee applicants from around the world often appeal to the Immigration Minister to be allowed to remain in Canada for “humanitarian and compassionate” reasons. Because they and their families have lived in Canada for some time and have established themselves as self-supporting, responsible residents, the Minister has the leeway to allow them to immigrate.

U.S. war resisters seeking sanctuary in Canada enjoy considerable political support among Canadians. Most Canadians strongly oppose the war in Iraq and are grateful that the Canadian government chose not to join “the coalition of the willing.” They do not want their government to deport war resisters back to the U.S., where they would face prison for refusing to fight in a war that Canadians oppose.

The New Democratic Party, which supports sanctuary for U.S. war resisters, made significant gains in the last election. Although it is a small, progressive party (polling about 18 percent of Canadian voters), it can be expected to exercise considerable leverage over the minority Conservative government, which does not have enough votes to pass legislation on its own. In the immediate future, nothing will change.

Most AWOL GIs going to Canada have traveled to Toronto, about a four-hour drive north of Detroit, Michigan, or a two-hour drive north of Niagara Falls or Buffalo, New York. At most busy crossings, cars are waved across without much scrutiny. One can also cross by bus, train, by plane (but one-way tickets may bring questions from immigration officials).

Those heading for Canada should have some ID to show, ideally a U.S. passport. Otherwise, a picture ID such as a driver’s license and a birth certificate will do. Military identification may be used in a pinch and will not necessarily raise eyebrows. But this should not be the first choice.

If a GI comes under particular scrutiny at the border, does not have the requested identification, or otherwise is facing the possibility of being turned back to the U.S., then and only then should she/he tell Canadian border officials they are seeking refugee status in Canada. At least one GI did this recently, without problems.

Thirty thousand Vietnam War resisters from the U.S. are productive Canadian citizens, many of them prominent in the media, arts, business, academia, and the law. Quite a few of them are actively involved with the War Resisters Support Campaign. Many other Vietnam era resisters who sought sanctuary in Canada, Sweden, England, France, and other countries were eventually able to return to the U.S. with little or no punishment, due to widespread disenchantment with the war and a broad-based movement for amnesty for Vietnam War resisters.

It remains to be seen whether the U.S. movement against the Iraq War will spawn broad sentiment for amnesty or leniency for AWOL GIs. But is the absence of a draft or outright amnesty, a blanket pardon for AWOL GIs is unlikely.

Non-U.S. citizens who go AWOL and leave the U.S. may possibly be barred from re-entry to the U.S., even if their charges are later cleared up. Those who advise GIs to go AWOL or UA (Unauthorized Absence) could theoretically be charged with criminal offenses, even though there is no record of this happening, during the Vietnam War or since. But, for both legal and ethical reasons, counselors should not tell people what to do.

GI counselors provide the most objective information possible to active duty personnel, their families, and friends. Providing this information is completely legal. Once they know all of their options, GIs can assess the legal and practical consequences of each, and make a well-informed choice best suited to them.
AWOL in the United States

Thousands of AWOL military personnel remain in the United States. For the first 30 days or so of their absence, the military issues a misdemeanor warrant that is not normally available to local law enforcement officials; those in small towns, in particular, may still be vulnerable to being apprehended. Generally speaking, AWOLs are not (as of 3/06) actively pursued by the military, although the Marines recently have been practicing a more aggressive policy of apprehension and there have been cases of pursuit and apprehension in every branch. GIs who surrender themselves before 30 days reported absent commonly receive non-judicial punishment and are retained in the service, provided no other reason for discharge manifests. Discharge is possible, but unlikely. This decision is made by the command they left.

After 30 to 60 days or more, the names of AWOL GIs are dropped from the rolls and the military issues felony warrants. These felony warrants are available to local police authorities through the National Crime Information Center (NCIC) and may be discovered in the course of a routine traffic stop, for example. This may result in apprehension by local authorities who hold the AWOL GIs in jail for several days before military police arrive to take them into custody. If a GI surrenders to the military, the felony warrant is lifted.

When AWOL GIs are dropped from their units’ rolls, the military puts them in “deserter” status. In order to scare GIs into returning from AWOL before 30 days, the military likes to confuse deserter status with the crime of desertion. But actual court martials for desertion are currently extremely rare and wouldn’t apply to someone who is in deserter status.

GI Rights Hotline

The GI Rights Hotline is a national (U.S.) network of independent, nonprofit, nongovernmental organizations that provides free counseling to active duty personnel, those in the Delayed Enlistment Program (DEP), reservists and National Guard members who want out of the military or who seek assistance in dealing with abuse, harassment or grievances. Hotline counselors help GIs who are pursuing discharges.

The GI Rights Hotline also gets calls from GIs who are AWOL or UA. With proper counseling, many AWOL military personnel have been able to turn themselves in at certain military bases where they have a good chance of receiving an Other-Than-Honorable administrative discharge from the military. Before exercising this or other options, military personnel are advised to call the GI Rights Hotline and speak with a trained counselor.

Administrative Discharge?

Before AWOL GIs make a decision to go to Canada, they owe it to themselves to learn all of their options, as do those who counsel them. Certain categories of GIs are eligible for discharge in lieu of court-martial, depending on branch of the military, length of time in the military, length of time AWOL or UA, and administrative status (dropped from their unit’s rolls or not). Those who may be eligible for administrative discharge include:

those in the Army who (a) have not completed Basic Training and Advanced Infantry Training (AIT), or (b) are stationed outside the Continental United States, such as in Germany, Korea, Alaska, or Hawaii (being deployed in Iraq, Afghanistan, or Kuwait is different)
those in the Marines, but this is uneven and ever changing
those in the Navy, but not those in the Air Force, which often court-martials even short-term AWOLs
those in the Army National Guard or Army Reserves. High school age youth who have been recruited via the Delayed Enlistment Program (DEP) are not yet in the military. They can get out of their enlistment very easily, either by sending a letter to the recruiter commander stating they wish to withdraw or by not showing up on the ship date. Most, but not all, military recruiters lie to their DEP recruits about getting out, threatening them with things like dishonorable discharges and jail, even though the recruiters’ regulations forbid them from threatening or harassing DEP recruits
In general, GIs eligible to be administratively discharged from the military, and who choose this option, will be put into an administrative holding company and processed out with an Other Than Honorable (OTH) discharge. The time this will take can vary between four days and two months, depending on the branch of the military and other factors. An OTH is not a criminal conviction. In a minority of cases, a Special Court-martial may be given, with a brig or stockade sentence varying from nothing to a few months or more (maximum one year) and a Bad Conduct Discharge (BCD). A BCD is a misdemeanor conviction. A Dishonorable Discharge (DD) can only result from a General Court-martial conviction and is equivalent to a felony conviction.
Dishonorable Discharges are quite rare (and almost never just for AWOL), although the term is thrown around constantly by the military.

Discharges that are not under honorable conditions, whether OTH, BCD or DD, will result in the forfeiture of all military benefits, including educational assistance, housing loans, and access to Veterans Administration medical care, (although VA medical care is something that veterans with otherthan-honorable discharges can still fight for). General discharges (under honorable conditions) will give all benefits except for educational benefits.

Whatever path a GI takes to avoid going to war is, arguably, a good one. Canada is one option that does have the advantage of being easily accessible from many points in the United States. For some military personnel, even a temporary stay in Canada may help them to avoid deployment to war while they explore their options. The War Resisters Support Campaign does its best to support U.S. war resisters who come to Canada. It will continue to press the Canadian government to provide a permanent sanctuary for resisters.

-- Gerry Condon works with U.S. war resisters, their lawyers, and the War Resisters Support Campaign in Canada. The counseling memo was compiled for the War Resisters Support Campaign and Soldier Say No/Project Safe Haven.