A United States soldier who deserted because he thought the Iraq war was illegal could have grounds for seeking asylum in Germany, but only if he can show he would have been involved in war crimes, Europe's highest court said on 26 February, 2015.
The European Court of Justice added that even if Andre Shepherd could prove war crimes were very likely to have been committed, he would still have to show he had no alternative to desertion, such as becoming a conscientious objector.
Shepherd said that cases like his proved that the rules on conscientious objection needed clarifying, as he did not disagree with all wars.
Speaking at the house of one of his supporters, Shepherd said:
"Well, I would say that it is quite interesting. Honestly, I'm really happy that every soldier has a right to apply for asylum. The negative side of it is that there's still open questions that should have been clarified years ago, for example the legality of the war, the question of conscientious objection, what happens when you have a soldier such as myself who isn't a conscientious objector from the perspective that I want to reject every single war, because of course defensive wars I find to be okay.
"You have to defend yourself, of course. But Iraq wasn't one of those. They didn't help the Iraqi people at all, they certainly didn't help the American people at all, and all we have is senseless death and destruction and, of course, the rise of ISIS. So why would I want to take part in that?"
The Luxembourg-based court was asked for guidance by a German court after Shepherd took legal action when German authorities rejected his asylum application. The final decision will be taken by the German court in accordance with the European court's ruling.
"Well, the situation is tentative, I would say. Simply from the fact that we don't know what the future's going to bring because of course this hasn't been done before in Germany and sometimes you have your highs, like there was in November, and then you have your low points, which, unfortunately was today. However, it is not finished. I would say that come Munich, we will be definitely prepared to give everything we've got and in order to hopefully get a positive decision," Shepherd said.
Shepherd, who served in Iraq between September 2004 and February 2005 as an Apache helicopter mechanic in the 412th Aviation Support Battalion, deserted in 2007 after being ordered to return to Iraq. He applied for asylum in Germany, where he was based. He remains in Germany.
Shepherd believed he should no longer participate in a war he considered unlawful and in war crimes he believed were committed in Iraq. He said he risked criminal prosecution in the United States because of his desertion.
"Well, I would be arrested. And then I would be taken to military prison, stand for court martial for desertion, which, especially at this point, I would be guaranteed at least six months to about five years in jail.
"Then I would be released from prison and my life in the United States would be over, because, of course, getting a dishonourable discharge with charges of desertion does not sit well with the American people.
"So, finding a decent job is next to impossible, decent career gets next to impossible, some states you can't even vote... It makes absolutely no sense to even be in the United States anymore," said the army specialist from Cleveland, Ohio.
The court said the European law on refugees did cover people who feared prosecution for refusing to perform military service in a conflict where they were "highly likely" to be involved in war crimes.
However, to qualify as a refugee under the EU law, Shepherd would have to present evidence showing it was credible that war crimes would have been committed during his service in Iraq.
Shepherd said that his position on the Iraq war was linked to his view that the American government is "completely out of control".
"It seems to me that they're looking for world domination, on the surface, we don't know what the real reason is because from my perspective I do not see any benefit from any of these actions in the last 15 years. But however they have it in their minds that they have to take these actions and they're dragging everyone along with it. But then at the same time, they want to stand there and say that they have a squeaky clean record and people like myself should be punished for being the only ones to do the right thing and say, 'Hey, wait a minute, we're not going to do this.'"
Shepherd would also have to show that desertion was the only way he could have avoided participating in war crimes and that he could not have applied to be a conscientious objector, the European court said.
Failing that, the court said Shepherd was unlikely to qualify as a refugee. The prison term Shepherd might receive in the United States for desertion did not seem to amount to the persecution that would make him eligible for refugee status.