Earlier this month, the EU’s Advocate General Eleanor Sharpston concluded that non-combat military personnel may claim asylum in the EU if they are at risk of prosecution or punishment for refusing to perform military service, where such service might involve the commission of war crimes.
(See here for a description of the role of the Advocate General; their Opinions are non-binding and do not need to be followed by the Court of Justice of the European Union (CJEU)—but generally have persuasive influence on the outcome of the CJEU.)
Sharpston delivered her Opinion (full text) in the case of former U.S. Army soldier, Andre Lawrence Shepherd, that is before the CJEU. Shepherd, a U.S. citizen, enlisted in the Army in 2003, and was trained as a mechanic for Apache attack helicopters. He was deployed to Iraq in 2004-05 where he carried out maintenance, but did not take part in direct combat. By the time he received an order to redeploy to Iraq in 2007, he had formed the view that the war was contrary to international law and violated international humanitarian law—because of what he considered to be the systematic, indiscriminate, and disproportionate use of weapons, particularly Apache helicopters, without regard to the civilian population. He thus left the Army before his enlistment was over and applied for asylum in Germany, citing the risk of prosecution in the U.S. for desertion. German authorities refused his request for asylum, which Shepherd challenged before the Bavarian Administrative Court. In this context, the German Court made a request for a preliminary ruling to the CJEU on the scope of the European Council’s Directive 2004/83/EC on minimum standards for the qualification of refugees, the “Qualification Directive.”
The Qualification Directive—based on the “full and inclusive application” of the 1951 Geneva Convention on the status of refugees—establishes minimum standards and common criteria for the recognition of refugees and the identification of persons in need of international protection. To qualify for refugee status, an individual must, among other things, demonstrate that they have been subjected to, or have reason to fear, acts of persecution as defined in Article 9 of the Qualification Directive. Per Article 9(2)(e), 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 or acts falling under the exclusion clauses as set out in Article 12(2)”
Article 12(2) crimes include: “a crime against peace, a war crime, a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”
In order to qualify for refugee status, the act of persecution under Article 9 must be connected to a reason for persecution under Article 10. Before the CJEU, Shepherd relied on Article 10(1)(d):
“a group shall be considered to form a particular social group where in particular:
– members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
– that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.”
The German Court asked the CJEU a series of questions to clarify the scope of these provisions and whether they applied to all members of the U.S. military or solely combat troops.
All military personnel covered
The Advocate General is of the view that “performing military service” necessarily covers all military personnel, “including logistical and support staff,” relying on the plain wording of other relevant provisions as well as considering the Qualification Directive’s overarching aim. Sharpston concludes that the relevant asylum protection “extends to military personnel who do not directly participate in combat.”
Ex ante assessment
Whether military participation in military service “would include crimes” such as those set out in Article 12(2) clearly refers to “possible future actions, rather than acts that have occurred in the past.” Thus, the Advocate General holds that this stage requires an ex ante assessment of the individual’s position, which is fundamentally different from the ex post inquiry conducted in criminal proceedings.
Ultimately, however, the final assessment is one for the national authorities to make based on the facts. While refraining from proposing exhaustive criteria, Sharpston states:
“In essence, it seems to me that the national authorities must consider whether there is a direct link between the acts of the person concerned and the reasonable likelihood that war crimes might be committed, such that the person concerned could be led to participate in the commission of war crimes because his actions comprise a necessary element of those crimes. Essentially, the test is whether, without that contribution or all the contributions made by individuals in the situation of the person concerned, the war crimes or acts would not be possible.”
Sharpston also adds an objective element to the test: national authorities must assess “whether there is a direct link between the acts of the person concerned and the reasonable likelihood that war crimes might be committed” and “whether there are objective grounds for considering that the person concerned could be involved in committing war crimes” (emphasis added). This does not require the individual to establish “beyond reasonable doubt” that international humanitarian law violations can be expected to occur (the standard that the German court had applied).
International criminal law irrelevant
Sharpston holds that principles derived from international criminal law play no part in the assessment under Article 9(2)(e). She writes that the standards for a successful war crimes prosecution “are completely different (they are much higher),” distinguishing this from the purpose of the Qualification Directive, which is to offer protection to those wishing to “avoid committing such acts.”
Prosecution of war crimes in applicant’s country irrelevant
The existence of national or international mechanisms to prosecute war crimes cannot in itself guarantee compliance with international humanitarian law, writes Sharpston. Thus, Article 9(2)(e) “must operate independently” of such machinery if it is to offer real protection to persons at risk of participating in the commission of war crimes.
UN Security Council mandate irrelevant
A UNSC mandate similarly cannot be determinative of this assessment; UNSC authorization does not override, or preclude, the claims for refugee status under the Directive.
National procedures for conscientious objector are relevant
Under Article 9(2)(e), an individual cannot qualify for refugee status “unless either he has first had recourse, unsuccessfully, to any available procedures for claiming the status of conscientious objector or no such procedures are plausibly available to him”
Scope of Article 10(1)(d)
Sharpston was unable to offer greater guidance on whether Shepherd is a member of a “particular social group” as defined in Article 10(1)(d) on account of insufficient information before the CJEU on this issue.
In assessing whether an individual may be considered to be a member of a “particular social group” as defined in Article 10(1)(d), Sharpston writes that the national authorities must consider three questions:
- Whether the individual “holds a conviction of sufficient cogency, seriousness, cohesion and importance.”
- Whether the “objection stems from a belief that is fundamental to his conscience.” The Advocate General recognizes that where there is only partial objection to the use of force, as in this case, an individual may find it more difficult to prove credibility.
- Whether individuals who “hold such convictions are perceived as being different in their country of origin.”
Act of persecution
Sharpton was also unable to offer detailed guidance on the final question from the German Court, namely, whether a dishonorable discharge and a prison sentence constitute an act of persecution, as defined by Article 9(2)(b) or (c).
Article 9(2)(b) refers to “legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner.” Where relied upon, the Advocate General holds that national authorities should assess whether the discharge and prison sentence “is discriminatory because the applicant is a member of a particular social group.” A comparison will need to be made with other comparable social groups in the country, as well as an assessment of whether any difference in treatment could be justified.
Article 9(2)(c) refers to “prosecution or punishment, which is disproportionate or discriminatory.” Where relied upon, the national authorities must ask themselves “whether such acts go beyond what is necessary for the State concerned to exercise its legitimate right to maintain an armed force.”
Sharpston’s Opinion may appear to take a wide view of the circumstances in which military deserters, who fear participating in the commission of specific international crimes, may claim asylum in the EU. However, her Opinion contains nuances and qualifications (especially including the definition of a social group) which, if adopted by the CJEU, are likely to be picked up by the competent national authorities to whom the ultimate assessment of refugee status falls. In the context of Mr Shepherd, in particular, German national authorities will not easily overlook the overarching context of important diplomatic and military ties with the United States.
The CJEU’s ruling will be handed down in due course, and only time will tell how it will approach the scope of the Qualification Directive in this controversial context.
In the meantime, Just Security readers may be interested in the UN High Commissioner for Refugees’ recent guidelines on claims to refugee status relating to military service (within the context of Article 1A(2) of the 1951 Geneva Convention). The guidelines deal with refugee claims based on objection to military service in conflicts “contrary to the basic rules of human conduct”—covering both jus ad bellum and jus in bello arguments.