Decision of the European Court of Justice in the case of U.S. AWOL soldier André Shepherd
Connection e.V. and PRO ASYL: Much that is negative and little that is positive in the outcome
(26.02.2015) The network for conscientious objection Connection e.V. and PRO ASYL criticize today’s decision by the European Court of Justice (ECJ) in the case of U.S. AWOL soldier André Shepherd (37) as insufficient and in part quite incomprehensible in its argumentation. “The ruling by the ECJ does not strengthen the position of conscientious objectors and deserters in political-asylum proceedings. The Court avoided some fundamental questions, and answered others unacceptably, contrary to the opinion submitted by the Advocate-General.” said Rudi Friedrich of Connection e.V.
The Court’s statements regarding wars that are mandated by a resolution of the U.N. Security Council are especially dubious. Bernd Mesovic of PRO ASYL said, “It is scandalous that the Court more-or-less decrees for such cases that no war crimes ‘are committed’ in such wars, and that this also applies to operations about which there is some other international consensus. Reality is turned on its head by an assertion of fact here.” The Court relies solely on the legal systems of states waging war, under which they punish war crimes. In her final submission, the Advocate-General had taken the opposite position.
André Shepherd announced that in the further proceedings before the Munich Administrative Court, he would refer to statements by former U.N Secretary-General Kofi Annan about the invasion of Iraq. Annan found that it was in violation of the U.N. Charter, and said that it was illegal in his view.
Furthermore, the European Court of Justice made no ruling about when conscientious objectors can claim asylum protection. In her submission, the Advocate-General Eleanor Sharpston had made it clear that a CO who object to a particular war on reasons of conscience – even without being a pacifist – may fall within the scope of the Directive if there is an "insurmountable conflict" between his military duties and his conscience. The Advocate-General stated that if conscientious objectors were prosecuted or discriminated against, they might be members of a particular social group in the meaning of refugee law. “At the European level, conscientious objection has been recognized as a human right for several years,” said Rudi Friedrich. “A clarification that conscientious objectors can expect asylum protection if they are prosecuted or persecuted in their country of origin is long overdue. This is a severe weakness in today’s ruling.
According to today’s ruling by the ECJ, measures that a member of the military may be subject to for refusing duty, such as a prison sentence or discharge from the armed forces, are not to be considered disproportionate or discriminatory in the sense of persecution, in view of the right of every state to maintain armed forces. Although the ECJ claims that it is up to the authorities of the state concerned to consider this, with its footnotes and comments it has already taken sides, against deserters and for the sovereignty of states waging war.
Connection e.V. and PRO ASYL: Press release, February 26, 2015