Anne Mactavish - Ruling Regarding Nuremberg Principle IV

Ruling Regarding Nuremberg Principle IV

Justice Mactavish has taken a role in hearing at least two well publicized cases: those of Jeremy Hinzman and Robin Long. They were both Iraq War Resisters who claimed that the international law Nuremberg Principle IV put them under legal obligation to avoid participating in the invasion of Iraq and the Iraq war. In order to avoid the punishment for desertion which they would face if they returned to the U.S., they applied for refugee status in Canada.

When Mactavish ruled against Jeremy Hinzman's application for refugee status on March 31, 2006, there was the following press coverage: Coverage included the following criticism from Alex Neve, who taught international human rights and refugee law at Osgoode Hall Law School, and who was appointed an Officer of the Order of Canada, in honour of his human rights work.:

"Mactavish argued,... "An individual must be involved at the policy-making level to be culpable for a crime against peace. The ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper." Amnesty International's Canadian...secretary general Alex Neve, expresses concern that Mactavish's decision sets a precedent... runs contrary to other international law rulings .""

Mactavish's ruling against Jeremy Hinzman also later drew the following criticism from Lawrence Hill in the Ottawa Citizen:

"Sadly, Canadian courts and the Immigration and Refugee Board have danced around the question of whether deserters from the U.S. forces should not be compelled to take part in an illegal war. When she ruled against Jeremy Hinzman last year, Justice Anne Mactavish of the Federal Court of Canada wrote: "the question of whether the American-led military intervention in Iraq is in fact illegal is not before the Court, and no finding has been made in this regard."

That quote from Mactavish referred to the earlier decision of Brian P. Goodman to dissallow evidence concerning the legality of the Iraq war in the Hinzman case: That earlier ruling by Goodman had been covered by the Toronto Star with this statement:

"... the federal immigration officer ... ruled that Hinzman may not use the legal basis of the Iraq war to justify his ... claim. This, in itself, is odd reasoning. As Hinzman's lawyer Jeff House points out, Canada has accepted the illegal war argument before. In 1995, a federal court judge ruled that a deserter from Saddam Hussein's army was entitled to refugee status because he had been ordered to participate in Iraq's illegal 1990 invasion of Kuwait. Citing what he labelled an authoritative text, Judge Arthur Stone wrote, "There is a range of military activity which is simply never permissible in that it violates basic international standards. This includes ... non-defensive incursions into foreign territory."

After the Mactavish ruling against Hinzman on March 31, 2006, the case was appealed to the Supreme Court of Canada. But on November 15, 2007, a Coram of the Supreme Court of Canada made of Justices Michel Bastarache, Rosalie Abella, and Louise Charron refused an application to have the Court hear the Hinzman case on appeal, without giving reasons.

“... in written arguments to the Supreme Court of Canada, Mr. House pointed out that although our courts have so far refused to grant refugee status to Americans soldiers who are deserting military duty out of moral objection to the war in Iraq, in 1995 the Federal Court of Appeal granted refugee status to a deserter from Saddam Hussein's armed incursion into Kuwait, on the basis that he should not be compelled to take part in an illegal war.

"The courts are taking one stance for Saddam Hussein's soldiers and another one entirely for American soldiers," Mr. House said.”

In the later similar case of Robin Long on July 14, 2008, "Madam Justice Anne Mactavish of the Federal Court of Canada cleared the way for deportation..." Robin Long was the first U.S. soldier to be deported from Canada to the US.

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