27 February 2015

The Court of Justice of the European (CJEU) has held that members of the military participating indirectly in a conflict can be granted asylum for desertion. Whilst, past commission of war crimes does not have to occur for protection to be applicable, evidence must be provided that there is a high likelihood that war crimes will be committed and that the individual’s tasks are sufficiently linked to the participation in war crimes.

In the case of the US mechanic André Shepherd who had applied for asylum in Germany, the CJEU held, however, that a possible five year custodial sentence in the US for military desertion was not so disproportionate or discriminatory as to amount to acts of persecution.

Shepherd was deployed to Iraq in 2004, where he worked for six months as a helicopter engineer, before returning with his unit to its base in Germany. Upon reenlisting in the military, Shepherd refused to return to Iraq in 2007 on account that continued participation in the US armed forces would lead to the commission of war crimes. “When I read and heard about people being ripped to shreds from machine guns or being blown to bits by the Hellfire missiles I began to feel ashamed about what I was doing (…) I could not in good conscience continue to serve.”  Mr Shepherd, said in 2008.

Noting that the EU Qualification Directive does define an act of persecution as prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include the commission of war crimes, the CJEU highlighted that the likelihood of war crimes being committed could be indicated by past conduct or previous criminal sentences of a military unit. The Court underlined that it would be unlikely that a soldier would be led to commit war crimes if the intervention was legitimised by a UN Security Council mandate or an international consensus and if domestic legislation effectively prosecuted war crimes.

The CJEU further highlighted that the acts of persecution complained of must, and can only, arise from the applicant’s refusal to perform military service. In the present case, given voluntary enlistment and subsequent reenlistment, the applicant had not availed himself of a procedure for obtaining conscientious objector status.

The case is back now to a Munich court for a final decision that takes the CJEU’s judgment into account.


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This article originally appeared in the ECRE Weekly Bulletin of 27 February 2015. You can subscribe to the Weekly Bulletin here.