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U.S. AWOL Soldier André Shepherd’s Request for Asylum
The European Court of Justice: Having published its preliminary ruling, what is the next move?
by Rudi Friedrich
On February 26, 2015, the European Court of Justice (ECJ), having been asked by the Munich Administrative Court (Verwaltungsgericht) to submit a decision on U.S. AWOL soldier André Shepherd’s request for asylum, published its preliminary ruling. As many media observers now believe that Mr Shepherd’s prospects of being granted asylum status are very remote, Rudi Friedrich from Connection e.V. has now summarized his initial thoughts on whether pessimism is indeed justified and what ramifications the court's preliminary ruling will have. (ed.)
André Shepherd, a US soldier deployed to Iraq in 2004 as a helicopter maintenance mechanic, left his unit while stationed in Germany. In 2008, he filed a request for asylum, invoking the European Union’s Qualification Directive, legislation designed, amongst other things, to protect those no longer participating in wars or in actions in breach of international law and those, who for this reason could face persecution.
After the German Federal Office for Migration and Refugees rejected his asylum request in 2011, André Shepherd lodged an appeal against this decision before the Munich Administrative Court. In turn this court then referred the case to the ECJ in Luxembourg, requesting a preliminary ruling on the interpretation of the Qualification Directive, specifically concerning the “point at which being involved in military hostilities gives a member of the armed forces the right to desert under refugee law, on account of which he is being punished”.
It is worth noting, then, that the ECJ had not been asked to pass judgement on the asylum request itself, but rather to provide guidance on how the Munich Administrative Court should proceed in reviewing the asylum request and what factors it needed to consider. At the hearing held to this end before the ECJ in June 2014, the European Commission, a number of EU member states' advocates and André Shepherd’s lawyer submitted written observations. After chairing the hearing, E.U. Advocate General Eleanor Sharpston, having considered and consulted the opinions and documents presented her, in November 2014, published her Opinion and proposed a wording for the Court of Justice’s preliminary ruling, the contents of which are broadly summarized as follows1:
- The scope of protection offered by the Qualification Directive also extends to military personnel who do not directly participate in combat where such personnel could, in performing military service, contribute to actions which violate human rights. This point had previously been rejected by the German Federal Office for Migration and Refugees.
- Contrary to the demand by the German Federal Office for Migration and Refugees, the deserter does not need to prove, as part of the asylum request that he/she was or would be involved in actions which violate human rights. A forecast based on an assessment of facts and circumstances suffices.
- Even a UN mandate for the military action in which the deserter was deployed or was to be deployed does not necessarily preclude the possibility of being recognised as a refugee.
- The deserter must demonstrate, as part of the asylum procedure, that he/she has undergone an existing conscientious objector procedure or was unable to do so for specific reasons.
- In assessing the question whether a conscientious objector is a member of a particular social group within the meaning of refugee law, it is necessary to evaluate whether that person holds a conviction of sufficient cogency, seriousness, cohesion and importance, and equally, whether the members of that group are discriminated against in their home country.
Although the ECJ often accepts the Advocate General’s proposals unequivocably, in André Shepherd’s case it took a very different direction.
The ECJ first noted that "all military personnel, including logistical or support staff"2 could invoke the pertinent provision of the Qualification Directive. This point is worth stressing because during the hearings a number of E.U. State advocates had argued that only personnel directly involved in combat were allowed to invoke the provision – a view that would have excluded André Shepherd, given his military duties as an Apache helicopter mechanic. The ECJ therefore expressly stated that Mr Shepherd and the services he performed were covered by the Qualification Directive. However, the ECJ qualified this remark in the following paragraph of its ruling, stating that it must be "reasonably likely" that, by the performance of his tasks, Shepherd would provide "indispensable support" to the preparation or execution of war crimes.
The ECJ took a very restrictive line concerning André Shepherd's obligation to prove that he would have been forced to participate in war crimes, had he been redeployed to Iraq. While the ECJ held that it was possible that war crimes might have been committed, it noted that "an armed intervention engaged upon on the basis of a resolution adopted by the Security Council guarantees, in principle, that no war crimes will be committed and that the same applies, in principle, to an operation which is supported by an international consensus." In that case, even if the possibility of war crimes being committed could not be ruled out, the Court stated, these two factors nonetheless needed to be taken into account in the trial's proceedings.
Specifically, the armed intervention by the U.S., Britain and their allies in Iraq in March 2003 occurred without a Security Council resolution. A Security Council resolution, condemning the war, was vetoed by the United States and Britain. Shortly afterwards, in May 2003, the Security Council defined ground rules for the occupational regime comprised of the United States, Britain and other members of the “coalition of the willing”. It is disputable under international law whether, by doing so, the Security Council sanctioned the following war. The United States and its allies no doubt assume that these ground rules constituted a mandate.
The ECJ took a similarly restrictive view of the existence of legal scope for penalizing war crimes. "The existence, in the legal system of those States, of legislation penalizing war crimes and of courts which ensure the effective punishment of those who commit such crimes is liable to render implausible the hypothesis that a soldier of one of those States could be led to commit such crimes."
Another precluding criterion for the ECJ should also be highlighted: If the asylum seeker "did not avail himself of a procedure for obtaining conscientious objector status," he would be excluded from “any protection” under the Qualification Directive "unless that applicant proves that no procedure of that nature would have been available to him in his specific situation."3
The ECJ has taken sides against deserters and for the sovereignty of countries waging war. Notably the statement that a war sanctioned by the UN Security Council was a guarantee that no war crimes would be committed is extremely alarming. In Andre's case, unsubstantiated allegations have been used to distort reality. What is more, the ECJ relied solely on the belligerent countries' legal systems, which supposedly ensure the punishment of those committing war crimes – a wholly incomprehensible conclusion. We remember only too well reports of indiscriminate bombing of cities, atrocities in Abu Ghraib and similar news.
Anyone who has read reports by human rights organizations, will immediately be reminded of the many accounts, often detailed, of Iraq war crimes.4 These crimes are normally not prosecuted in the United States, as Army reports alone usually claim that military offensives had only killed “insurgents”. How is this to be understood? As an example, one of many: On December 24, 2005, the Washington Post published a detailed report on possible civilian victims of “Operation Steel Curtain”, a military offensive, to the west of Baghdad along the Euphrates. According to the account, apart from “insurgents'”, countless civilian lives had also been lost, mostly in air strikes. Just how many civilians were among the dead was disputed, the Washington Post reported, but hospitals, medical personnel and other eye witnesses had claimed that “scores of noncombatants” had been killed during the 17-day military offensive. The US army counted only 139 killed “insurgents” and ten fallen US Marines.5
The other precluding criterion defined by the ECJ – whether the option of conscientious objection was available to Shepherd– just does not apply. Mr Shepherd had made it clear from the outset that he was certainly no pacifist and that any application for recognition as a conscientious objector would have been rejected under US military law anyway.
The ECJ did not decide under which conditions conscientious objectors could avail themselves of protection according to asylum law. Advocate General Eleanor Sharpston had clearly stated in her opinion, that an objector who refused, on grounds of conscience, to participate in certain war activities can fall within the scope of protection offered by the Directive, even without being a pacifist, if there was an “insurmountable conflict between the obligation to serve in an army and a person’s conscience”. If conscientious objectors are prosecuted or discriminated against, the Advocate General argued, this could make them members of a particular social group within the meaning of refugee law. Since the ECJ did not pass a preliminary ruling on this matter, the question of how much bearing a decision of conscience has on the asylum request will also need to be addressed by the Munich Administrative Court.
André Shepherd will persist with his legal action. The next item on the legal agenda is the main proceedings before the Munich Administrative Court. As the ECJ has essentially decreed that Mr Shepherd must prove the likelihood of his involvement in war crimes, the main court hearings must address this very topic. In 2005, the German Federal Administrative Court (Bundesverwaltungsgericht), acquitted German Major Florian Pfaff, who had refused orders supporting the Iraq war and as a result had been disciplined. According to the verdict of the civil court, there “were and still are serious legal objections” to the war against Iraq “relating to the UN Charter’s prohibition of the use of violence and other provisions of international law”6. All such questions will again be raised in the Munich trial. Assuredly, the warfare waged by the United States and the war crimes committed during the Iraq war will be major topics during the court proceedings. A tribunal? It certainly looks that way!
In the end will André Shepherd be granted asylum? Of course, court decisions are also political decisions, and granting Mr Shepherd asylum status might be seen, in official U.S. eyes, not as constructive criticism, but as an affront on the part of its German ally. We continue to firmly believe that there is a solid and good basis for André Shepherd’s case and that he has provided a reasonable and detailed account of why he had no choice but to desert and file a request for asylum status.
2 Wording of the ECJ’s preliminary ruling www.connection-ev.org/pdfs/2015-02-26_JudgmentECJ.pdf.
3 Wording of the ECJ’s preliminary ruling www.connection-ev.org/pdfs/2015-02-26_JudgmentECJ.pdf, Point 45
4 See inter alia Consumers for Peace: War Crimes Committed by the United States in Iraq and Mechanisms for Accountability, 10 October 2006; US War Crimes in the 'Surge', 6 September 2007; US War Crimes in Iraq 2007-2008 - An Update. 1 April 2008.
5 “US Airstrikes Take Toll on Civilians - Eyewitnesses Cite Scores Killed in Marine Offensive in Western Iraq", Washington Post, 24 December 2005; see also Dahr Jamail, "Operation Steel Curtain", 7 November 2005 and Bill Van Auken, "Steel curtain in Iraq - another US war crime”, WSWS, 8 November 2005
6 German Federal Administrative Court case reference number BVerwG 2 WD 12.04.
Rudi Friedrich: U.S. AWOL Soldier André Shepherd’s Request for Asylum - The European Court of Justice: Having published its preliminary ruling, what is the next move? March 10, 2015.