EU Court Calls Flight From Syrian Military Grounds for Asylum

Syrian army soldiers flash the victory sign as they patrol the village of Tallet Shweihna, in Aleppo province, Syria, on Feb. 16. (SANA via AP)

LUXEMBOURG (CN) — People fleeing compulsory military service in Syria can claim refugee status in the EU, the union’s highest court ruled Thursday

Determining that conscription refusal is a form of political expression, the Court of Justice of the European Union held this morning that a Syrian man whose beliefs brought him to Germany qualifies for asylum.

“In the context of armed conflict, particularly civil war, and where there is no legal possibility of avoiding military obligations, it is highly likely that the authorities will interpret the refusal to perform military service as an act of political opposition, irrespective of any more complex personal motives of the person concerned,” the Luxembourg-based court wrote. 

When he left Syria in 2014, E.Z., as the man is identified in court documents, was given a deferment to finish his university studies that would run out in 2015. 

The German government allowed E.Z. to stay on a temporary basis but ultimately rejected his asylum application, claiming that he hadn’t been exposed to persecution. E.Z. appealed, arguing that by leaving the country to avoid military service, he would certainly face prosecution if forced to return home.

An Administrative Court in Hanover then referred the case to the EU’s high court, asking it to clarify who qualified for protected status within the 27-member political and economic union. A 2011 EU directive lays out the criteria for applying for asylum, based on the Geneva Convention which gives refugee status for victims of discrimination based on race, religion, nationality, political beliefs or belonging to a certain social group. 

“It is clear that the EU legislature did not intend to make it more difficult for conscientious objectors to obtain refugee status by imposing an additional condition for obtaining that status,” the three-judge panel wrote. 

This is not the first time the court had ruled in a conscientious-objector case. In proceedings known as the Shepherd case, the court determined that EU asylum law does protect people who are highly likely to be forced to commit war crimes during their service. This case centered on the U.S. soldier Andre Shepherd who fled to Germany to avoid serving in the Iraq War.

E.Z. also argued that he would be involved in war crimes if forced to serve, but Germany argued that this argument was premature because the man didn’t know what his status would be in the military.

Not quite persuaded of this, the European court was mindful of “the context of all-out civil war characterized by the repeated and systematic commission of [war crimes] by the army using conscripts.”

“It should be assumed that the performance of his or her military service will involve committing, directly or indirectly, such crimes or acts, regardless of his or her field of operation,” the ruling continues.

The high court left it for the German court to determine if the man’s objection to serving was related to one of the five criteria for refugee status. It noted that “there is a strong presumption that refusal to perform military service … relates to one of the five reasons.”

Syria has been embroiled in a civil war since 2011 and the court describes all parties in the conflict as having “committed — and continue to commit — serious and systematic violations of international humanitarian law.” The country requires two years of military service for all men over the age of 18 and does not recognize conscientious objection.

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