European top court issues preliminary opinion on US soldier seeking asylum in Germany

European top court issues preliminary opinion on US soldier seeking asylum in Germany

[JURIST] The European Court of Justice (ECJ) [official website] issued a preliminary judgment [text] on Thursday that found a US soldier could possible seek asylum in Germany if he can show a proper reason for his desertion. André Shepherd deserted in Germany in 2007 and sought asylum there the following year. He allegedly deserted because he believed the Iraq War was illegal. The ECJ declared Shepherd could possibly seek asylum in Germany, but he must be able to show that he would have been involved in war crimes or that war crimes would have been committed and that desertion was his only alternative. The court left the question of whether “the situation in question makes it credible that the alleged war crimes would be committed” to the German court. The ECJ also left the question of whether the repercussions Shepherd could face upon return to the US “amount to acts of persecution for the purpose” of the provisions of the Council Directive 2004/83/EC of April 29 2004 [European Database of Asylum Law] for the German court to determine. The judgment is in response to a request, issued by the German court, to clarify the “[m]inimum standards for the definition and content of refugee status,” after Shepherd took legal action when the Federal Republic of Germany denied Shepherd refugee status in 2011. The final judgment from the court is expected sometime later this year.

Several other US soldiers have deserted and sought asylum during the Iraq war. In 2005 Spc. Cliff Cornell [advocacy profile] deserted and sought asylum in Canada. His request was denied in 2009 [JURIST report]. Later that year he pleaded guilty to desertion and was sentenced to one year in prison at a court-martial proceeding and was also given a bad conduct discharge. Also in 2005 US Army Pvt. Brandon Hughey [advocacy website], who fled to Canada after refusing a deployment order to Iraq and deserting his unit at Fort Hood, formally asked [JURIST report] the Canadian Immigration and Refugee Board [official website] for asylum. Hughey’s application was denied, and he is currently waiting to find out whether he will be allowed to remain in Canada.