The court said, however, even if Andre Shepherd could prove war crimes were committed, he would then still have to prove he had no alternative to desertion, by becoming a conscientious objector.
In August 2008, Shepherd sought asylum in Germany, having left his Unit which had been stationed in Germany since April 2007, after receiving an order to return to Iraq. Shepherd believed that he should no longer participate in a war he considered unlawful and in the war crimes that were, in his view, committed in Iraq.
During his first tour of duty in Iraq, near Tikrit, between September 2004 and February 2005, he had not participated directly in neither military action nor combat operations, but had worked as a helicopter maintenance mechanic.
He claims that, as a result of his desertion, he is at risk of criminal prosecution. Since desertion is a serious offence in the US, he said it would affect his life by putting him at risk of social ostracism in his country.
His asylum application was rejected by the German Federal Office for Migration and Refugees, so Shepherd asked the Bavarian Administrative Court in Munich to annul that decision and order that he be granted refugee status.
War Crimes Defence?
The European Court of Justice was asked by the Bavarian court to interpret the European Directive on refugee status. In its judgement, initially handed down in November 2014, with confirmation in a final ruling on February 26, 2015, the court held that the directive sets out, among other things, the factors which support a finding that the acts constitute acts of persecution.
It found that an act of persecution can take the form of prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes. The Court held that the protection granted in such a situation covers all military personnel (not just those on the front line).
The refusal to perform military service must constitute the only means by which the asylum seeker could avoid participating in the alleged war crimes and, consequently, if he did not avail himself of a procedure for obtaining conscientious objector status, any protection under Article 9 (2)(e) of the directive is excluded, unless he proves that no procedure of that nature would have been available to him in his specific situation, the court judgement said.
However, Shepherd had said he could not apply for conscientious objection because US military regulations state a conscientious objector must have an objection to all war in all form. Shepherd's objection was not in opposition to all wars under any circumstances, only that the war was illegal.
Relying on trying to prove the Iraq War was illegal as the basis for his request for asylum and defence against an extradition claim by the US is likely to prove extremely exacting, if not impossible. His failure to become a conscientious objector makes that doubly formidable. His case now returns for a further hearing at the Bavarian Administrative Court in Munich, as his battle against extradition goes into its seventh year.