André L. Shepherd, a U.S. Army deserter who applied for political asylum in Germany, answers a reporter's question at a press conference in Frankfurt, Germany, in 2011. Shepherd said he will appeal the ruling that rejected his application for asylum.

KAISERSLAUTERN, Germany — An American soldier who claimed asylum in Germany after deserting the Army to avoid the Iraq war will have to prove he would have been forced to take part in war crimes in Iraq to win refugee status, Europe’s highest court has ruled.

The ruling also said “it does not appear” that the possible court charge and punitive discharge that former helicopter mechanic Andre Shepherd would face if denied asylum amounts to “persecution,” the European court of Justice in Luxembourg ruled Thursday.

A German court in Munich requested the ruling more than a year ago. The Munich court is expected to continue hearing Shepherd’s asylum appeal.

The Luxembourg ruling appears to back Germany’s earlier rejection of Shepherd’s asylum request, which was turned down in 2011. Germany’s Interior Ministry then said the soldier’s fear of persecution for deserting was not substantial enough to merit refugee status under European law.

The European court ruling appears to back that decision.

Thursday’s ruling said Shepherd could qualify for asylum if he could prove his military service “would itself include … the commission of war crimes,” even if his participation were indirect.

“It does not exclusively concern situations in which it is established that war crimes have already been committed … but also those in which the asylum seeker can establish that it is highly likely that such crimes would be committed.”

But he will also have to demonstrate that his “refusal to perform military service” was the only means by which he “could avoid participating in the alleged war crimes” and that he attempted to follow procedures for obtaining conscientious objector status. Failing to avail himself of conscientious objector procedures could disqualify him from qualifying for asylum “unless he proves that no procedure of that nature would have been available to him in his specific situation,” the European court ruling said.

Neither Shepherd, nor his lawyer could immediately be reached for comment.

Shepherd deployed to Iraq for six months in 2004-2005 and re-enlisted after returning from the deployment. He left his unit, the 12th Combat Aviation Brigade, in 2007 while it was preparing for another deployment and applied for asylum in 2008, becoming a vocal opponent of the Iraq war.

millham.matthew@stripes.com

Twitter: @mattmillham