A US soldier who deserted to avoid serving in the Iraq war and claimed asylum in Germany because he believed the war to be illegal has to prove that the US was committing war crimes in Iraq to qualify as a refugee, Europe’s highest court has ruled.



The ruling on Thursday from the European court of justice in Luxembourg also said Andre Shepherd would probably be unable to claim asylum on the grounds of fear of imprisonment or persecution in the US.

“It does not appear that the measures incurred by a soldier because of his refusal to perform military service, namely the imposition of a prison sentence or discharge from the army, may be considered … so disproportionate or discriminatory as to amount to acts of persecution,” the court found.

Shepherd deserted and applied for refugee status in Germany, where he was based with the US military, in 2008 after learning that he was being posted to Iraq where he served for six months as an aircraft maintenance mechanic four years earlier near Tikrit.

His application for asylum was rejected by the German authorities and Shepherd turned to the German courts, which referred the matter for guidance to the European court.

It said on Thursday that for the refugee application to be valid, Shepherd would need to establish that the Americans were committing or were likely to commit war crimes in Iraq.

“Shepherd believed that he should no longer participate in a war he considered unlawful and in the war crimes that were, in his view, committed in Iraq,” said the court summary of the case.

For Shepherd’s asylum plea to be upheld, it does not need to be previously proven that the Americans perpetrated war crimes in Iraq, the court said.

But it added that “the factual assessment ... must be based on a body of evidence capable of establishing ... that the situation in question makes it credible that the alleged war crimes would be committed.”

The onus was on the asylum applicant to prove “that the military service Mr Shepherd refused to perform would have included the commission of war crimes.”

Seeking asylum on the grounds of fear of persecution at home would also require Shepherd to prove that he had not sought exemption from Iraq service on the grounds of conscientious objection, the court ruled.

“When I read and heard about people being ripped to shreds from machine guns or being blown to bits by the Hellfire missiles I began to feel ashamed about what I was doing,” the Cleveland, Ohio, soldier said in Germany in 2008 after deserting, according to Reuters. “I could not in good conscience continue to serve.”



