Brussels, 26/02/2015 (Agence Europe) - A member of military staff from a third country who deserts the army can request asylum in the EU on condition that it is “highly likely” that during his service he was brought to participate, even indirectly, in war crimes. To this end, he will have to prove that he was not able to obtain conscientious objector status or, when he cannot prove the risk of participating in war crimes, that his refusal to perform military service would have provoked acts of persecution which go beyond a prison sentence or discharge from the army. This is what was established by the Court of Justice of the EU (CJEU) in a judgment (Case C472/13) on Thursday 26 February.
The case concerns André Shepherd, an American citizen, who enlisted in the US army in 2003 and was sent to Iraq as an Apache helicopter maintenance mechanic in 2004. In 2007 he was stationed at a US base in Germany and deserted. He requested asylum in this country, invoking the EU directive on refugee status (2004/83/EC), which provides for this status being granted to anyone who risks suffering an act of persecution, especially as a result of lawsuits or sanctions for refusal to perform military service in a case where a conflict or crimes could be committed. The administrative court of Munich asked the CJEU to define the conditions in which a deserter from a third state can be granted asylum in the EU.
In its judgment, the CJEU did not fully follow the opinion of Advocate General Eleanor Sharpston of November 2014 (see EUROPE 11196). Indeed, the judges considered that if the asylum seeker refrained from using legal means to escape military service (by using a procedure, for example, to obtain conscientious objector status), any protection under this directive is excluded. In Shepherd's case, while he did not effectively use such a procedure with the US army, it still remains to determine if he could, as a result of his decision to desert just after being re-enlisted in the army. This point will still have to be clarified by the German jurisdiction with regard to US law.
The CJEU sets out a certain number of other conditions relating to obtaining asylum. Thus, the fact that Shepherd was not part of a combat unit has no importance, because the protection from which a third-country deserter can possibly benefit who invokes the risk of committing war crimes in the course of his service can just as equally be applied to a member of a non-combatant unit, like logistics or support personnel. Consequently, it is enough for the interested party to risk participating indirectly in possible crimes by bringing, as part of his duties, essential support to the army.
But, how can it be established if war crimes were committed or if a plausible risk exists that this will happen? According to the CJEU, a deserter does not necessarily need to prove that such crimes have already been committed; it is enough to establish that it is “highly likely” that this will happen. Whether crimes have already been committed or whether it be “highly likely” that this happens, it is up to the national authorities in all events, under the control of the judge, to assess the facts on the basis of a body of evidence as to the plausibility of the alleged crimes, taking into account the context of the country of origin of the interested party and his personal situation.
Contrary to what the advocate general recommended, the CJEU considered that the evaluation of military intervention with regard to its legitimacy (United Nations mandate or consensus of the international community) must be taken into consideration by the national authorities when they deal with this type of case. The fact that the state or states conducting the military operations prosecute military operations is equally relevant.
The Munich court at the same time asked if the sanctions provided for by the US law for a deserter are discriminatory or disproportionate. It is a case of knowing if, in the case of it being impossible for Shepherd to determine that his army was able to commit or was able to be brought to commit war crimes, the interested party risked suffering an act of persecution in the US if refugee status in the EU was not granted. The CJEU replies negatively to this question because the two measures that the US law foresees - that is, a prison sentence varying from 100 days to 5 years and discharge from the US army (desertion is a major crime) - cannot be considered as discriminatory or disproportionate measures, according to the European judges. (Jan Kordys)