Arguments
See also: Canada and Iraq War Resisters and List of Iraq War resisters#Legal and Political- The March 16, 2005 IRB Decision full text can be found at: Hinzman Decisions Immigration and Refugee Board of Canada
It has been widely argued that Hinzman is not a prisoner of conscience because he has not been persecuted for his claimed new-found beliefs. In the United States military, desertion is a crime, specifically a federal offense under Article 85 of the Uniform Code of Military Justice, despite his claimed motivation. Hinzman's application for conscientious objector status was denied due to the fact that he was known to have made statements to the effect that he would consider participating in certain types of defensive actions. Conscientious objector status is only granted to those in the US military who object to all warfare, not to military personnel who object to a specific war or conflict.
Hinzman enlisted voluntarily in the Army, volunteered for infantry duty, and further volunteered for airborne training, a series of deliberate and conscious decisions on Hinzman's part which would practically guarantee combat duty. These circumstances cause critics to be skeptical as to the sincerity of Hinzman's claims to being a conscientious objector. Such critics have suggested that, if Hinzman were sincere in his beliefs, he would return to the United States voluntarily and accept whatever consequences his actions and beliefs might bring about.
Key to this discussion are three questions: 1. Are soldiers legally allowed to change their minds if they encounter new information? 2. Did Hinzman encounter new information? 3. At what point in his service did Hinzman acquire new information? The answer to the last two questions have been answered in Hinzman's sworn testimony (see above links to court cases). The answer to the first question one is "yes" according to the following international statutes:
On March 8, 1995, the UN Commission on Human Rights resolution 1995/83 stated that "persons performing military service should not be excluded from the right to have conscientious objections to military service." That position was re-affirmed in 1998, when the United Nations Office of the High Commissioner for Human Rights document called “Conscientious objection to military service, United Nations Commission on Human Rights resolution 1998/77” officially recognized that “persons performing military service may develop conscientious objections.”
In 1998, the Human Rights Commission reiterates previous statements and added “states should . . . refrain from subjecting conscientious objectors . . . to repeated punishment for failure to perform military service.” It also encouraged states “to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service . . . .”
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