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Court of Justice of the European Union: Conscientious Objectors May Claim Asylum in the EU

(Nov. 24, 2014) On November 11, 2014, Eleanor Sharpton, the Advocate General (AG) of the Court of Justice of the European Union, issued an opinion in Case C-472/13, on the question of whether conscientious objectors are eligible to seek asylum in the EU. The Court held that non-combat military personnel may seek asylum in the EU if they believe that they may be subject to prosecution or punishment for refusing to perform military service when doing so may entail the commission of war crimes. (Press Release, Court of Justice, No. 147/14, Advocate General’s Opinion in Case C-472/13, Andre Lawrence Shepherd v Bundesrepublik Deutschland (Nov. 11, 2014).)

The issue arose before the Court of Justice as a preliminary question posed by the Bavarian Administrative Court (BAC) in Munich, Germany. The BAC requested an opinion on a number of issues raised by the case and, in particular, as they related to article 9, paragraph 2 (e), of the EU Directive of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted. (Directive 2004/83/EC, 2004 O.J. (L 304) 12.)

Article 9, paragraph 2 (e), provides that prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include committing war crimes, is an act of persecution for the purposes of the Directive. (Id.)

The key question in the case was whether the applicant fell within the scope of article 9, paragraph 2 (e), and if so, whether the article was correctly applied in his case.


The facts of the case involve a Mr. Shepherd, a U.S. citizen who served in the U.S. armed forces in 2003 as a maintenance mechanic for Apache helicopters. In 2004, he was sent to Iraq to perform maintenance work on helicopters. A year later, his unit returned to Germany, where it was based. When his unit was ordered in 2007 to go again to Iraq, Shepherd had already started to develop doubts as to the legitimacy of the war in Iraq. He was particularly disturbed by the fact that due to military operations, a number of civilians were killed and the use of Apache helicopters had contributed to those deaths. (Press Release, supra.) Even though he was appalled by the indiscriminate killing of civilians, he decided against asking the U.S. authorities not to send him again to Iraq on grounds of conscientious objection because he did not completely object to the use of force during war time, and also, as he thought, making such an application would not necessarily prevent his being sent to Iraq. (Id.)

In 2007, Shepherd left the U.S. military and sought asylum in Germany. His request for asylum was denied by the German Federal Office for Migration and Refugees (FOMR) on three grounds:

(a) the lack of a fundamental right to conscientious objection;

(b) the option of the applicant to leave the military legally; and

(c) the case did not fall within the scope of article 9, paragraph 2(e). (Id.)

Shepherd subsequently challenged this decision in the BAC, arguing that the FOMR had not applied article 9, paragraph 2 (e), correctly and had reached the wrong conclusion that a person who refuses to perform military service may be granted refugee status only if that person can prove “beyond reasonable doubt” that, had he remained in the military, he would have been found guilty of the commission of an offense under international criminal law. (Id.)

Advocate General’s Decision

The AG opined that the language of article 9, paragraph 2 (e), stating “where performing military service would include [committing war crimes],” should be interpreted as encompassing all military personnel, including support staff such as helicopter maintenance mechanics. In her opinion, the article did not include language that limited its application only to combat personnel. On the issue of whether such a person “would” participate in the commission of war crimes, the AG stated that it is hard to make such a determination, because the national authorities must take under consideration acts and their effects that have not yet been committed/determined. Thus, the AG held that the national authorities must consider whether there is a direct link between the acts of the person concerned and the reasonable likelihood that war crimes might be committed. (Id.)

As to the issue of whether the applicant qualifies as a refugee within the meaning of the EU Directive, the AG stated that national authorities must first establish a link between the reasons for prosecution listed in that Directive under article 10 and the acts of persecution as set forth in its article 9. The AG stated that national authorities must determine whether Shepherd is a member of a particular social group and whether he possesses conviction of “sufficient cogency, seriousness, cohesion and importance regarding the conflict in question.” (Id.) Then the authorities would have to examine whether, on the basis of the material available to them, it is reasonable to assume that persons in Shepherd’s specific position are handled differently in the United States and are subject to a particular kind of treatment by the U.S. public. (Id.)

The German Court also requested that the Court of Justice determine whether the stigma and negative effects of a dishonorable discharge constitute acts of persecution within the meaning of the Directive. The AG took into account the fact that a person is entitled to refugee status only when an act of persecution is connected with a reason for persecution. the AG noted that because the applicant had argued in his claim that he was being persecuted because of his membership in a particular social group, the national authorities must apply the three-prong requirement, as stated by article 10 of Directive 2004/83/EC, and consider:

(a) whether there are social groups in the U.S. that are similar to the one to which Shepherd claims to belong,

(b) whether his group is more likely than similar groups to face discrimination, and

(c) whether this difference in treatment could be justified.

The AG deferred to the national authorities, however, in the matter of assessing whether discrimination had occurred in Shepherd’s case, on grounds that there was not enough evidence in the record of the case for the AG to reach such a conclusion. (Id.)