European Court of Justice Advocate General Reinforces Rights of Refusers

In the legal case of U.S. AWOL soldier André Shepherd (37) the European Court of Justice Advocate General, Eleanor Sharpton, today published her final opinion. This official statement contains guiding deliberations for the interpretation of the so-called Qualification Directive of the European Union. Amongst other considerations, these rules state that those endangered by prosecution or punishment for refusal to perform military service involving an illegal war or commital of war crimes, should be protected by the European Union.

André Shepherd, former U.S. Army helicopter mechanic in the Iraq War, during leave in Germany, left his unit and in 2008, requested asylum in that country. 2011, the German Federal Office for Migration and Refugees refused Shepherd's application. Shepherd's resulting court action challenge resulted in the Munich Administrative Court's asking for the opinion of the European Court in Luxemburg on significant questions concerning the interpretation of the Qualification Directive. The Justice Advocate General came to the following conclusions:

  • The protection guaranteed by the Qualification Directive is also applicable to soldiers not directly involved in combat, when their duties could support war crimes. The German Federal Office for Migration and Refugees has as yet failed to respect this definition.
  • Within the asylum application process, a deserter is not obliged to prove that he was or could be involved in war crimes, as the German Federal Office for Migration and Refugees required. Necessary is only the evidence of war crime probability, based on past occurrences.
  • Even a U.N. mandate for a war, in which the deserter was, or could have been involved, cannot serve as grounds for rejection of his rights as a refugee.
  • The deserter must prove that he either had already been involved in a military service refusal case, or that for concrete reasons, he could not take advantage of this right.
  • In deciding the question, whether the military service objector is a member of a social or ethnic group as defined within the framework of E.U. Refugee Rights, the national authority should not only consider the degree and importance of his convictions, but also the degree of discrimination experienced in his own country.
  • The national authorities must investigate whether the asylum applicant's membership in a social or ethnic group could in probability lead to discriminative treatment as the result of a military court action or even dishonorable discharge.

Connection e.V. and PRO ASYL, which have supported André Shepherd for years, are convinced, as is Shepherd's attorney, Dr. Reinhard Marx, that protection for deserters is possible through the precepts of the E.U. Qualifications Directive.

Rudi Friedrich of Connection e.V. stated today:

“Should the European Union Court of Justice respect the Advocate General's final opinion, the position in asylum cases of military service refusers and deserters will be significantly reinforced.”

Bernd Mesovic of PRO ASYL declared:

“Should the Court acknowledge the content of the advocate general's final opinion, their verdict would set basic precedence. I hope that deserters will soon have better protection in all of Europe.”

André Shepherd, upon reading Sharpton's decision:

“The final opinion gives me new reason for optimism, both in my own case, and for the rights of other deserters.”

More information on this case can be found in the EU Official Journal: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62013CN0472:EN:PDF

Comment