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5th Jul 2022

Military deserters may claim EU asylum

  • Military deserters can claim EU asylum, an EU judge has said (Photo: Andrew Willis)

Military personnel may claim asylum in the EU if they consider themselves to be at risk of prosecution or punishment for refusal to perform military service which might involve committing war crimes, according to an opinion by the EU's top court

In a legal opinion released Tuesday (11 November), Eleanor Sharpston, the advocate general for the European Court of Justice, stated that it was "not necessary to establish beyond reasonable doubt that violations of international criminal law can be expected to occur."

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"What matters is the likelihood that the applicant risks committing war crimes," she added.

The case focuses on Andre Shepherd, a US maintenance mechanic who worked on Apache helicopters after being enlisted in the military in 2003 and was sent to Iraq the following year.

After deciding following his first tour that the conflict was in breach of international law, he deserted the US army in April 2007 before being deployed for his second tour of duty and sought asylum in Germany where he had been stationed.

Germany's migration and refugee authorities rejected Shepherd's application on the grounds that he had failed to prove 'beyond reasonable doubt' that his work in the US army would have led to war crimes being committed.

Shepherd's lawyer told the Luxembourg-based court that his client faced a possible 18 month jail sentence and a dishonourable discharge for desertion.

He did not the make a request not to be deployed on grounds of conscientious objection because he did not completely reject the use of war and force.

Sharpston's opinion is not legally binding but advocate general opinions often form the basis for future court judgements and are seldom over-ruled by the court.

The final court ruling on the case is not due until early 2015.

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