Canada's top military judge has upheld an Air Force flight engineer's right to refuse anthrax vaccine on grounds that the inoculation amounts to unsafe medical treatment.
In staying a charge of insubordination last week against Sgt. Mike Kipling, Col. Guy Brais has acted very differently from his American counterparts on an issue that has vexed armed services both north and south of the border.
Military commanders in both countries have insisted that the vaccine is necessary to meet the demands of combat readiness, and that discipline requires orders to be followed. The US Defense Department has charged 350 American service personnel who have refused the vaccine with failure to obey military orders.
In the case of Sergeant Kipling, however, Colonel Brais ruled that the vaccination requirement infringes upon the serviceman's right to life, as well as liberty and security of a person, as enshrined in the Canadian Charter of Rights and Freedoms.
The decision will be precedent-setting, and Kipling's lawyer, Jay Prober, hailed it as "a very powerful decision in favor of human rights for the Canadian Forces."
Anthrax - a deadly bacteria that primarily affects animals - is of concern in a military context because it could be used in biological warfare. Such concerns were reinforced after the Gulf War, when arms inspectors discovered stockpiles of anthrax in Iraq, and North Korea is long believed to have anthrax in its arsenals.
According to the Pentagon, of the 4.2 million service members, 240,000 have already been administered the vaccine over the past two years. But a significant minority have claimed harmful side effects, and even questioned its effectiveness against a biological weapons' attack. While the Pentagon does accept that the inoculations can lead to serious heath problems in rare cases, it says the risks are comparatively lower than that of other vaccines.
Still, some soldiers have misgivings about accepting a vaccination they feel may be unsafe. Many American reservists, in particular, are leaving the military rather than take the inoculations.
Kipling was first injected with the vaccine when he was serving in Kuwait during the Gulf War. His own research into the vaccine and its possible health effects led him to refuse subsequent inoculations. Colonel Brais found no culpability on the part of the Canadian Forces, but was convinced on the basis of pretrial evidence that the vaccine used was "unsafe and hazardous and could be responsible for the important symptoms reported by so many persons who took that vaccine." Consequently, the charge of willfully disobeying a military order was stayed - meaning that it will not be prosecuted.
Brais based his decision on the Canadian Charter of Rights and Freedoms. Adopted in 1982, the document has been described as leading to "the Americanization of the Canadian justice system," by giving individual Canadian citizens the kind of absolute guarantees of individual rights that are found in the Bill of Rights in the US Constitution. Military prosecutors in the Kipling case had argued that Charter rights had only limited application in a military context.
The anthrax vaccine issue plays out at a time when the military establishments in both countries face public credibility gaps for not providing comprehensive answers to health problems such as the Gulf War syndrome. The rallying case has been that of Canadian military police officer Terry Riordon who died last year after battling a host of bizarre illnesses. An independent American medical team attributed his illness to depleted uranium that was used during the Gulf War.
In recent weeks, Canadian Defense Minister Art Eggleton has had to face criticism that his department prematurely dismissed concerns over exposure of soldiers to depleted uranium munitions in the Balkans. After initially stonewalling, the Department of National Defense is now moving to make medical testing available to those who may have been affected.
(c) Copyright 2000. The Christian Science Publishing Society