CJEU - C-472/13, Andre Lawrence Shepherd v Bundesrepublik Deutschland

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Country of Applicant: 
United States
Date of Decision: 
26-02-2015
Citation: 
C-472/13
Court Name: 
Second Chamber of the CJEU
Headnote: 

The judgment concerns the status of military deserters under the Qualification Directive (2004/83/EC) and the definition to be accorded to persecutory acts following on from a refusal to perform military service. Whilst the definition of military service is to include support staff the CJEU has held that there must be a sufficient link between the asylum seeker’s actions and the preparation or eventual commission of war crimes.  

The individual must establish with sufficient plausibility that his unit is highly likely to commit war crimes and that there exists a body of evidence capable of credibly establishing that the specific military service will commit war crimes. Moreover, desertion is the only way to avoid participation in war crimes and disproportionate and discriminatory acts should be assessed in light of a State’s domestic prerogatives.  

Facts: 

The case concerns an American national enlisted in the American armed forces as a mechanic and who, following on from a second order of deployment to Iraq, deserted the US army on grounds of conscientious objection to the war. Basing his asylum application on the risk of prosecution by the US authorities for desertion, the German Federal Office for Migration and Refugees refused his claim advancing that the applicant had no direct or indirect links to the commission of war crimes or crimes against peace and it was within the State’s legitimate interest to prosecute desertion. Appealing against this decision to the Bavarian Administrative Court the applicant claimed that the Office had misapplied principles of international criminal law and had neglected the reasons for persecution (notably the applicant’s membership of a social group) and instead focused on the act of persecution. The Administrative Court decided to stay proceedings and refer  the following questions for a preliminary ruling to the CJEU:

 (1)      Is Article 9(2)(e) of [the Qualification Directive] to be interpreted as meaning that the protection afforded extends only to those persons whose specific military duties include direct participation in combat, that is armed operations, and/or who have the authority to order such operations (first alternative), or can other members of the armed forces also fall within the scope of the protection afforded by that legislation if their duties are confined to logistical, technical support for the unit outwith actual combat and have only an indirect effect on the actual fighting (second alternative)?

(2)      If the answer to Question 1 is that the second alternative applies:

      Is Article 9(2)(e) of [the Qualification Directive] to be interpreted as meaning that military service in a conflict (international or domestic) must predominantly or systematically call for or require the commission of crimes or acts as defined in Article 12(2) of [the Qualification Directive] (first alternative), or is it sufficient if the applicant for asylum states that, in individual cases, crimes, as defined in Article 12(2)(a) of [the Qualification Directive], were committed by the armed forces to which he belongs in the area of operations in which they were deployed, either because individual operational orders have proved to be criminal in that sense, or as a result of the excesses of individuals (second alternative)?

(3)      If the answer to Question 2 is that the second alternative applies:

      Is refugee protection granted only if it is significantly likely, beyond reasonable doubt, that violations of international humanitarian law can be expected to occur in the future also, or is it sufficient if the applicant for asylum sets out facts which indicate that such crimes are (necessarily or probably) occurring in that particular conflict, and the possibility of his becoming involved in them therefore cannot be ruled out?

(4)      Does the intolerance or prosecution by military service courts of violations of international humanitarian law preclude refugee protection pursuant to Article 9(2)(e) of [the Qualification Directive], or is that aspect immaterial?

      Must there even have been a prosecution before the International Criminal Court?

(5)      Does the fact that the deployment of troops and/or the occupation statute is sanctioned by the international community or is based on a mandate from the [UN Security Council] preclude refugee protection?

(6)      Is it necessary, in order for refugee protection to be granted pursuant to Article 9(2)(e) of [the Qualification Directive], that the applicant for asylum could, if he performs his duties, be convicted under the statutes of the [ICC] (first alternative), or is refugee protection afforded even before that threshold is reached and the applicant for asylum thus has no criminal prosecution to fear but is nevertheless unable to reconcile the performance of the military service with his conscience (second alternative)?

(7)      If the answer to Question 6 is that the second alternative applies:

      Does the fact that the applicant for asylum has not availed himself of the ordinary conscientious objection procedure — even though he would have had the opportunity to do so — preclude refugee protection pursuant to the abovementioned provisions, or is refugee protection also a possibility in the case of a particular decision based on conscience?

(8)      Does a dishonourable discharge from the army, the imposition of a prison sentence and the social ostracism and disadvantages associated therewith constitute an act of persecution within the meaning of Article 9(2)(b) or (c) of [the Qualification Directive]?’

Decision & Reasoning: 

Examining questions 1-7 together the Court initially notes that it will not provide a ruling on the grounds of persecution, given that it is not disputed the applicant faces prosecution for military desertion. Instead, a determination of the circumstances necessary for prosecution and punishment to constitute acts of persecution in Article 9(2)(e) will be ruled upon.    

Turning to the first question the Court advances that the purpose of the Directive is to identify persons who are genuinely in need of international protection and thus the scope of Article 9(2)(e) is not to be delimited to “certain personnel.” The provision, therefore, covers “all military personnel, including logistical or support staff” [33].

However, the Court notes that for 9(2)(e) to apply membership of the military is a necessary but not sufficient condition, there must also be a conflict situation for the protection under the Article to be triggered. 

Secondly, Article 9(2)(e) applies to military service which would involve war crimes, but not where the applicant has committed these crimes personally. Thus, indirect participation in alleged war crimes or a lack of criminal responsibility under international criminal law does not preclude the applicant from falling under 9(2)(e). However the provision will only extend to individual’s tasks which could “sufficiently directly and reasonably plausibly” lead to the participation in such acts (war crimes)[38].

Thirdly, the Court holds that in light of the purpose of 9(2)(e), notably that an individual does not wish to run the risk, in the future, of committing acts referred to in Article 12(2) of the Qualification Directive, the Court submits that “the likelihood of such acts being committed”[39] is sufficient to trigger the protection of the 9(2)(e).

Fourthly, it is up to the domestic authorities to assess with regards to past conduct or previous criminal sentences of the specific military unit “that the situation of that military service makes it credible that such acts will be committed” [40].The test is, therefore, whether there is a body of evidence which is alone capable of credibly establishing that the specific military service will commit war crimes.

Fifthly, regarding the context of the conflict importance should be attached to international consensus, an intervention mandate from the UN and domestic legislation effectively prosecuting war crimes which is “liable to render implausible the hypothesis that a soldier of one of those States could be led to commit such crimes” [42]. Therefore, it is up to the applicant to “establish with sufficient plausibility that his unit carries out operations assigned to it… in such conditions that it is highly likely that acts such as those referred to in that provision will be committed” [43].

The Court goes on to note that the acts of persecution complained of must and can only arise from the applicant’s refusal to perform military service. In the present case given the applicant’s voluntary enlistment and subsequent re-enlistment, the applicant had not availed himself of a procedure for obtaining conscientious objector status. The only exception to this would be where the applicant could prove why an analogous procedure was not available to his/her specific claim [45].

Lastly, considering whether a prison sentence, dishonourable discharge or social ostracism for military desertion could constitute acts of persecution under Article 9(2)(b) and (c), the Court notes that “it is necessary to consider whether such acts go beyond what is necessary for the State concerned in order to exercise its legitimate right to maintain an armed force”[50]. 

Notwithstanding that the applicant could risk up to 5 years of a custodial sentence, the Court holds that there “is nothing in the file submitted suggesting that such measures clearly go beyond what is necessary for the State concerned to exercise its legitimate right to maintain an armed force.” It is however for the national authorities to examine all relevant facts of the country of origin, including laws and the manner they are applied as well as any comparable situations when assessing whether an act is discriminatory or disproportionate. Moreover, the Court finds that social ostracism is a consequence of acts under 9 (2)(b) and (c) and “cannot, therefore, be regarded as acts of persecution for the purpose of those provisions”[55]. The Court thus finds that in this particular case the measures accompanied with the refusal to perform military service are not so disproportionate or discriminatory as to amount to acts of persecution for the purpose of 9(2)(b) and (c)[56].

Outcome: 

The Court ruled:

1.      Article 9(2)(e) of Council Directive 2004/83/EC 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 must be interpreted as meaning that:

–        it covers all military personnel, including logistical or support personnel;

–        it concerns the situation in which the military service performed would itself include, in a particular conflict, the commission of war crimes, including situations in which the applicant for refugee status would participate only indirectly in the commission of such crimes if it is reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes;

–        it does not exclusively concern situations in which it is established that war crimes have already been committed or are such as to fall within the scope of the International Criminal Court’s jurisdiction, but also those in which the applicant for refugee status can establish that it is highly likely that such crimes will be committed;

–        the factual assessment which it is for the national authorities alone to carry out, under the supervision of the courts, in order to determine the situation of the military service concerned, must be based on a body of evidence capable of establishing, in view of all the circumstances of the case, particularly those concerning the relevant facts as they relate to the country of origin at the time of taking a decision on the application and to the individual position and personal circumstances of the applicant, that the situation in question makes it credible that the alleged war crimes would be committed;

–        the possibility that military intervention was engaged upon pursuant to a mandate of the United Nations Security Council or on the basis of a consensus on the part of the international community or that the State or States conducting the operations prosecute war crimes are circumstances which have to be taken into account in the assessment that must be carried out by the national authorities; and

–        the refusal to perform military service must constitute the only means by which the applicant for refugee status could avoid participating in the alleged war crimes, and, consequently, if he did not avail himself of a procedure for obtaining conscientious objector status, any protection under Article 9(2)(e) of Directive 2004/83 is excluded, unless that applicant proves that no procedure of that nature would have been available to him in his specific situation.

2.      Article 9(2)(b) and (c) of Directive 2004/83 must be interpreted as meaning that, in circumstances such as those in the main proceedings, it does not appear that the measures incurred by a soldier because of his refusal to perform military service, such as the imposition of a prison sentence or discharge from the army, may be considered, having regard to the legitimate exercise, by that State, of its right to maintain an armed force, so disproportionate or discriminatory as to amount to acts of persecution for the purpose of those provisions. It is, however, for the national authorities to ascertain whether that is indeed the case.

Observations/Comments: 

The Advocate General Sharpston’s opinion in the case is available here. Her conclusion focuses far more on the grounds of persecution and exclusion and therefore explores the definition of war crimes in detail. Thus, in terms of the reasons for persecution as listed in Article 10 of the Qualification Directive the Advocate General surmises that the applicant’s objection would fall under 10(1)(e) (political opinion), however in regard to Article 10(1)(d) (particular social group) Sharpston distinguishes between a deserter and a conscientious objector, the latter more likely to meet the requirements of 10(1)(d) than the former.

Moving on to subsequent questions the AG confirms that using the benchmark of prosecution of a war crime in front of the International Criminal Court has no bearing on whether the applicant falls under Article 9(2)(e). The Court does not explore any of these questions and as a result arguably finds it difficult to find a comparable situation of discrimination, something which may have been more evident if they were to explore persecution for reasons of a political opinion. 

Case comment:

The judgment has been criticised on many fronts with examples below, not least because the Court appears to advance that the existence of a Security Council mandate, international consensus or an effective domestic system for prosecuting war crimes acts as a guarantee that war crimes will not be committed.

The Iraq war and EU asylum law: the CJEU’s answers are blowin’ in the wind, February 2015

http://eulawanalysis.blogspot.be/2015/02/the-iraq-war-and-eu-asylum-law-cjeus.html

Of Shepherds and Sheepdogs – Andre Lawrence Shepherd v. Bundesrepublik Deutschland before the Court of Justice of the European Union, March 2015

http://www.reflaw.org/of-shepherds-and-sheepdogs-andre-lawrence-shepherd-v-bundesrepublik-deutschland-before-the-court-of-justice-of-the-european-union/#sthash.aiWyMPGE.dpuf

Attachment(s): 
Authentic Language: 
German
Country of preliminary reference: 
Germany
National / Other Legislative Provisions: 
Germany - AsylvfG (Asylum Procedure Act) - § 3