A real risk of persecution exists where a military personnel refuses to perform service on the basis of a conscientious belief that there is a direct link between his acts and the reasonable likelihood that war crimes will occur, concludes Advocate General Sharpston of the Court of Justice of the European Union. The Advocate General further submits that it is for the person concerned to show why he believes that he would be at risk of committing such crimes if he performed his military duties.

The Advocate General concludes that prosecution or punishment for refusal to perform military service where such service could lead to the commission of war crimes can be considered an act of persecution as defined in the Qualification Directive. Moreover, this applies when the applicant is not involved in actual combat, in this case a US helicopter mechanic who deserted from the armed forces in Iraq.

In addition the Advocate General has held that the reason for persecution within the Qualification Directive can be fulfilled on the basis that conscientious objection constitutes a political opinion, although this belief is less likely to meet the requirements of a particular social group given that he would have to prove that individuals who hold such convictions are perceived as being different in their country of origin.

The Advocate General lastly rules that a person who refuses to perform military service cannot qualify for refugee status under the Qualification Directive unless he has first had recourse, unsuccessfully, to any available procedures for claiming the status of conscientious objector or no such procedures are realistically available to him.



This article originally appeared in the ECRE Weekly Bulletin of 14 November 2014. You can subscribe to the Weekly Bulletin here.