Man seeks asylum in Germany as home nation forces him to commit crimes

hullaballoo

http://online.wsj.com/articles/eu-court-opinion-says-former-u-s-soldier-can-claim-asylum-in-eu-1415703852

The headlines (both in the article and my above thread-title) are not quite accurate to describe the situation but there is an ex-US army soldier, André Shepherd, living in Bavaria who has applied for asylum there on the basis that he will be prosecuted for desertion by the US.

He argues that the Iraq war is illegal under international law and he refused to return there after having served one tour of duty.

The article is quite misleading since the opinion is that of the Advocate General and therefore non-binding. However, the Advocate General does seem to have bought into some of the legal arguments made for Mr Shepherd.

The AG's opinion is here: http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1415792779219&uri=CELEX:62013CC0472

Obviously, the political implications of a favourable outcome for Mr Shepherd would be far-reaching but what about the legalities?

It's too convoluted for my absolute fool idiot brain on here but the "political opinion" ground for granting asylum under the Geneva Convention has been diluted and there must be a question as to whether conscientious objection can be regarded as a valid "political opinion" within that jurisprudence.

Still, though, my first thoughts were that being prosecuted and convicted by your home State for refusing to carry out what you believe is a criminal offence (and with some objective merit at least) must be wrong.

NormalBob Ubiquitypants

It is going to be very interesting to read the decision of that case particularly since both Poland and more prominently the United Kingdom were involved in the invasion forces.

RobYourBuilder

It's blocked by paywall. Would you mind posting the full article?

Happdog

Interesting case, raising the spectre of the Nuremberg trials with the suggestion of war crimes. The only point that I can see him having an arguable case is Article 9(2)e under the directive:

“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);”

I would have thought that the courts will be aware of diplomatic repercussions and there will be no forensic examination of “war crimes”. AG’s quote at paragraph 26:

“In my view, the Court should refrain from exploring the wider issues, which have not been adequately addressed in argument before it, when providing answers for the referring court; and I shall accordingly not address those wider issues in this Opinion”

It is of import that he is not claiming status as a conciseness objector, but rather he believes that war crimes are being committed in Iraq, Paragraph 4 of the AG’s opinion:

“Mr Shepherd did not want to risk participating in war crimes in the context of his unit’s deployment in Iraq. He did not consider the possibility of making a request to the US authorities not to be deployed on grounds of conscientious objection (2) because he does not completely reject the use of war and force. He had, indeed, re-enlisted at the end of his initial period of service. He believed that an application to refuse to perform military service would not have protected him from further deployment in Iraq. He therefore decided to leave the US army before commencing a second tour of duty there; and deserted on 11 April 2007. Refusal to perform military service in Iraq puts him at risk of prosecution for desertion. From a US perspective, a conviction for that offence subsequently restricts one’s life. In August 2008 Mr Shepherd therefore applied for asylum in Germany.”

In his conclusion he states:

“A person who refuses to perform military service cannot qualify for refugee status under Article 9(2)(e) of Directive 2004/83 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.”
He would not qualify under the US system as a conciseness objector, it being an all or nothing belief so it is arguable that such a path was not open to him. Of note is the United States v. Webster, 65 M.J. 936 (2008) which dealt with the refusal to grant Conscientious Objector status where the service member refused to fight in war against Muslim opposition.

So he has possibly has a point in regards not having any course of action open to him, however it would still be necessary under this heading to be able to identify the “crime” being committed. If the court refuses to do this, and it is almost certain that they will refuse, he is on his way back to the States to take his licks.

Good to see it is not just the Irish media that cannot report accurately on legal matter.

Manach

The American military judiciary regard desertion as a major offence. From my reading of accounts from the Vietnam War era, they are keen to prosecute even decades after the incident. Although host countries, especially Canada, usually ignored pressure to hand over deserters.

In this case, this will likely run into the choppy minefield of how war is viewed in International law. Legal sceptics like Eric Posner would likely point out while the UN has effectively outlawed War except in very rare self-defence occasions, that in practical effect that international law works well if it private to state/state economic benefit. However in terms of national security that unless it is a type of bilateral treaty, then declaring a war illegal might fly in academic circles but runs into all sort of ack-ack fire in reality.

hullaballoo

RobYourBuilder wrote: »

It's blocked by paywall. Would you mind posting the full article?

Strange, the link works from Facebook - can you access it by clicking on this Facebook post? https://www.facebook.com/wearerabble/posts/797455193633329

Beano

Happdog wrote: »

... He had, indeed, re-enlisted at the end of his initial period of service...

why re-enlist if he objected so much? did he think he could pick and choose where he was sent? Leavenworth awaits him i think.

Victor

Happdog wrote: »

So he has possibly has a point in regards not having any course of action open to him, however it would still be necessary under this heading to be able to identify the “crime” being committed.

War (belligerence) is a war crime.

hullaballoo wrote: »

He argues that the Iraq war is illegal under international law and he refused to return there after having served one tour of duty..

Happdog

Sorry I should have quoted the passage in full from the AG's opinion paragraph 26:

The circumstances giving rise to Mr Shepherd’s request for asylum may be thought to trigger wider issues, such as the interface between EU law and international law. However, the referring court has focussed on narrower questions in its order for reference. Essentially, it wishes to know whether Article 9(2)(e) of the Qualification Directive applies to this case and if so how the application for asylum should be assessed. Article 9(2)(e) provides that there is an act capable of qualifying as an act of ‘persecution’ where a person is at risk of prosecution or punishment for refusal to perform military service in a conflict, where so doing would involve committing certain acts, including crimes against peace, war crimes and crimes against humanity within the meaning of Article 12(2) of that directive. In my view, the Court should refrain from exploring the wider issues, which have not been adequately addressed in argument before it, when providing answers for the referring court; and I shall accordingly not address those wider issues in this Opinion

I think that this significantly narrows the issue and the broad question of the invasion of Iraq will not figure in the courts deliberations. From my reading of paragraph 40-46 it looks like the serviceman will have to show that his actions in maintaining helicopters will lead to a war crime. The helicopter opening fire on civilians for example.