A US Army soldier loads rockets onto an AH-64 Apache helicopter in Europe. Credit: US Army.

On Thursday, the European Court of Justice (ECJ) issued a decision holding that American military personnel can, in principle, obtain asylum in the EU if they are at risk of prosecution or punishment for refusing to perform military service that might involve the commission of war crimes. The Court also announced important factors that need to be considered in such cases to grant or deny asylum.

The case came about after André Shepherd, a US Army Apache attack helicopter mechanic stationed in Germany, refused to return to Iraq in 2007 on the ground that he did not want to participate in a war that he considered illegal and in actions that he considered war crimes. He applied for asylum in Germany in 2008, and the case finally percolated up to the ECJ, leading to Thursday’s decision. (Our own Ruchi Parekh analyzed the EU Advocate General’s opinion in the case last November.)

So, under what conditions can Americans who serve in the US military obtain asylum in the EU?

The Court held that important factors include whether the military intervention was authorized by the UN Security Council or supported by “a consensus on the part of the international community.” The subtext here might be to underscore concerns about the legality of the 2003 Iraq war, or of other future wars that lack an international mandate.

But, does it have to be an international legal mandate? A military intervention pursuant to Security Council authorization is notably well grounded in international law as an exception to the prohibition on the use of force. The notion of an intervention supported by a consensus of the international community without a Security Council mandate is more amorphous and has no such basis in international law. Such a category, indeed, will remind many international legal experts of the controversial notion put forth by an international commission in 2000, which concluded that NATO’s intervention in Kosovo without the backing of the Security Council was “illegal but legitimate.” The ECJ judgment in Shepherd’s case breathes new life into such a concept, at least for the purposes of EU asylum law.

The Court also held that another important factor is whether the legal system of the applicant’s home state includes “courts which ensure the effective punishment of those who commit [war] crimes.” Perhaps the message here is: think Abu Ghraib. Whether intentional or not, the Court’s opinion places pressure on countries to prosecute war crimes or else deal with the implications of the EU potentially granting refugee status to members of their military who refuse to serve.

Mr. Shepherd and others like him still face an uphill battle.

First, the Court held that “refusal to perform military service must constitute the only means by which the applicant for refugee status could avoid participating in the alleged war crimes.” The Court injected doubt as to whether Shepherd would satisfy this test because he “not only enlisted voluntarily in the armed forces at a time when they were already involved in the conflict in Iraq but also, after carrying out one tour of duty in that country, re-enlisted in those forces.”

Second, in order to qualify for asylum, the Court ruled that Shepherd would have to prove that it was “highly likely” that war crimes would be committed. What’s more, the Court appeared to suggest that an applicant like Shepherd may have to prove that his unit specifically would be highly likely to commit such acts.

Finally, the Court found that — while the European legislature intended to include non-combat personnel among those who could potentially seek asylum — an applicant would still have to meet a potentially high standard to make a successful claim. The Court defined that standard as showing “that, by the performance of his tasks, he would provide indispensable support to the preparation or execution” of the alleged war crimes (emphasis added). The applicant can’t be just any personnel member; he or she must be integral to the commission of a war crime, either by committing it directly or by being vital to its taking place.

You can find the full opinion below.