EU Law Meets a U.S. Army Deserter

A German Court considering the appeal of a U.S. soldier Andre Shepherd who sought asylum in Germany after deserting his Iraq bound unit in 2007, has made a preliminary reference on the European Law dimensions of his claims to the European Court of Justice (ECJ).  The reference procedure is a way for national courts to seek clarity on issues of European Union law.   The relevant European Union provision is a 2004 Directive (Council Directive 2004/83/EC) establishing common guidelines for adjudicating and processing individuals seeking refugee status within any of the 28 member states of the EU.   It was incorporated into German law in 2007.  The interpretation of the Court will be binding on the referring national court.

Shepherd is one of a significant number of US soldiers to desert European Army bases, but he is the only one known to have sought asylum. Shepherd has maintained that he refused to deploy to Iraq because he feared being a party to war crimes. The EU directive specifies situations that amount to “severe violations of basic human rights, by virtue of their nature or repetition” and could be deemed to constitute “persecution”.  These specified situations open the door to a claim of refugee or asylum status.  They include “a series of prosecution or punishment applied in a disproportionate or discriminatory manner or for refusal to perform military service that would include extremely serious crimes, such as war crimes and crimes against humanity.”

Shepherd’s counsel has maintained that his client’s fear was sufficiently real to merit refugee status under European law.  Until now the domestic legal wrangling on the merits of the case in Germany has been preoccupied with the relevant standard of proof.  The first German court to review maintained that Shepherd had to show fear of involvement in war crimes that was “beyond a doubt”.  Shepherd’s appeal was grounded on the position that the relevant standard to assess his status entitlement was a “well-founded fear” of persecution.  The phrase is the one that is well known to US courts as it is derived from the text of the 1951 Refugee Convention.   Thus the core question, at least from the deserter’s perspective, is the standard of proof to be applied in the European asylum system.

The decision has obvious political and legal consequence in Europe and beyond.  For observers of European asylum law clarity from the ECJ on the applicable standard of proof for asylum seekers will be welcome.  Human rights oriented observers will hope for consistency with the language of the 1951 Refugee Convention.  For policy makers and states preoccupied with ongoing debates about accountability for occupation and war-time violations committed by US forces in Iraq, the case continues to focus attention on the claims of atrocity and tolerance by the military and political establishment during the period in question.  Specifically, the meaningful possibility that a human rights minded court such as the ECJ finds the fear of engagement in war crimes to be “well-founded” poses a significant embarrassment factor for the United States.  It also demonstrates that the ‘bite’ of international law for individuals within the US military is both meaningful and accessible when soldiers are deployed overseas. To all those watching for the ECJ’s decision there is no immediate answer in sight.  ECJ references face a substantial backlog and the likely decision will take two years.  In the meantime Shepherd lives and works outside Munich. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).