(CN) - An American who deserted the U.S. military rather than serve another tour of duty in Iraq and potentially commit war crimes may qualify for asylum in Germany, an advisor to the EU high court said on Veterans Day.
Andre Shepherd, a U.S. citizen, enlisted in the armed forces in 2003. After doing a tour of duty in Iraq repairing Apache helicopters, his unit returned to its base in Germany in February 2005.
Shepherd had doubts about the legitimacy of the United States' involvement in Iraq, and, by the time his unit was ordered to redeploy in 2007, he had decided the conflict violated international law.
Specifically, Shepherd believed his work maintaining Apache helicopters amounted to a war crime, since the craft had been increasingly used to drop bombs indiscriminately - and increasingly catching civilians in the crossfire.
Since Shepherd had also voluntarily re-enlisted at the end of his initial period of service, however, he believed that asking to be deployed elsewhere on grounds of conscientious objection would be an exercise in futility. So he deserted in 2007 and applied for asylum in Germany the next year.
A German immigration court rejected Shepherd's application, finding no fundamental right of conscientious objection and noting that the soldier could have left military service legally. Shepherd challenged that decision in a Bavarian administrative court, believing it wrong to conclude that he must beyond a reasonable doubt that international war crimes would necessarily result from continued military service.
The Munich court asked the European Court of Justice to weigh in on whether EU law viewed the potential court-martial Shepherd faces is an act of persecution that warrants asylum.
Advocate General Eleanor Sharpston opined Tuesday that the EU law in question - dubbed the Qualification Directive and based on the Geneva Convention - extends to all military personnel who believe war crimes are being committed, including helicopter-maintenance mechanics like Shepherd.
"Including support personnel is, moreover, consistent with the Qualification Directive's overarching aim of identifying those persons who are forced by circumstances to seek protection in the European Union and are genuinely in need of it," Sharpston's preliminary opinion for the Luxembourg-based court states. "Where a person is able to show that if he performed military service he would be involved in committing one of the acts identified as reasons for exclusion in the directive, there is no plausible reason for excluding him (there is, indeed, good reason to think that he may genuinely need protection)." [Parentheses in opinion.]
Sharpston acknowledged the difficulties the German court faces in assessing whether Shepherd might have been forced to commit war crimes, since doing so requires considering acts and consequences that have not yet happened. She suggested that the court consider whether there is a direct link between Shepherd's work as an Apache mechanic and any potential war crimes committed through the use of the helicopters.
"The court cannot sensibly propose exhaustive criteria for the national authorities to apply," Sharpston wrote. "For example, military personnel working at a US army base barber shop ensuring that serving personnel all have the standard hair cut are remote from combat operations and would therefore be unlikely to be able to demonstrate such a direct link. However, a person who arms aircraft with bombs or who maintains fighter jets is more likely to be able to show that his role is directly linked to such operations and therefore to the possibility of committing war crimes. In that respect, a serviceman flying or crewing an aircraft or helicopter that aims a missile at, or machine-guns a column of, civilian refugees is clearly closer in the chain of events to the commission of a war crime than the person who armed the aircraft or helicopter and ensured that it was combat ready. However, it does not follow that the maintenance mechanic cannot be 'involved in' (or that there is no likelihood that he could be involved in) committing that crime." [Parentheses in opinion.]
Given that Shepherd has already testified that he does not completely reject the use of armed force but rather how the war in Iraq was carried out, the question of classifying Shepherd as a conscientious objector or deserter should be left to the German court, Sharpston said.
EU law allows member states to punish members of armed forces who desert for reasons other than conscientious objection, the adviser pointed out.
Shepherd has to show that any court-martial, prison time or dishonorable discharge he faces would be applied in a discriminatory way by U.S. military officials, Sharpston said.
"It is likewise impossible to say in the abstract whether a possible prosecution is disproportionate or discriminatory, or whether Shepherd's likely punishment, if he is convicted of desertion, would be disproportionate and thus whether the directive would be triggered," the 13-page opinion states. "In general terms, in assessing whether prosecution or punishment for desertion is disproportionate it is necessary to consider whether such acts go beyond what is necessary for the state concerned to exercise its legitimate right to maintain an armed force. The sentences described by the referring court do not appear to be obviously disproportionate. Ultimately, such matters are again matters for the national authorities to assess in the light of the circumstances of the case."
Declining to say whether Shepherd's situation fit the parameters of the Qualification Directive, Sharpston urged the Court of Justice to look only at the serviceman's case and not "the wider issues of the interface between EU law and international law."
Sharpston's opinion is not binding on the EU high court, which has begun its own deliberations in Shepherd's case.
Shepherd, 37, faces up to 18 months in a military prison if he is ever convicted of desertion. U.S. military authorities did not participate in the man's EU case.