Advocate General Eleanor Sharpton has released an opinion on the case of Andre Lawrence Shepherd v Bundesrepublik Deutschland, finding that non-combat military personnel who believe that military service amounts to war crimes, may claim asylum under the Qualification Directive.
Mr Shepherd claimed that because his refusal to perform military service puts him at risk of prosecution for desertion, he left the country and applied for asylum in Germany. His application was refused, and while reviewing this decision, a number of questions about the “Qualification Directive” were sent to the Court of Justice of the European Union (CJEU) for interpretation. While awaiting the decision of the CJEU on the matter, Advocate General Sharpton has issued her expert opinion on the case.
The German authorities sought guidance on the meaning of Article 9(2)(e) of the EU “Qualification Directive”. Under the article, "acts of persecution" for the purposes of assessing an asylum claim are defined as including:
“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 [which exclude applicants who have committed war crimes]”
The principle question was whether this section would apply to a person in Mr Shepherd’s position, who was a maintenance mechanic for the armed forces. Advocate General Sharpton found that Article 9(2)(e) applies even to non-combat military personnel. She stated that non-combat military personnel may claim asylum if they consider themselves to be at risk of prosecution or punishment for refusal to perform military service where so doing may involve the commission of war crimes.
The German authorities erred in applying principles of international criminal law to the assessment of his claim, requiring him to prove ‘beyond reasonable doubt’ that he would have been involved in the commission of war crimes if he had stayed. The Advocate General held that the national authorities should instead consider whether there is a direct link between the acts of the applicant, and the reasonable likelihood that war crimes would be committed. Could the applicant be led to participate in the commission of war crimes because his actions comprise a necessary element of those crimes?
The Advocate General also stated that the applicant was not required to exhaust conscientious objection mechanisms in his home country before making an asylum application. She also held that Article 9(2)(e) must operate independently of whether national or international machinery to prosecute and punish war crimes exists and is used.
Click here to read the full opinion of Advocate General Sharpton.