Steve Peers

Almost twelve years after it began, the Iraq war remains a point of contention, with many believing Tony Blair and George W. Bush initiated an unlawful conflict. These critics believe only a trial for war crimes for both Bush and Blair would be a satisfactory outcome. While I believe this may happen someday, it would require a jury of highly improbable individuals. (Perhaps those individuals disappeared alongside the supposed weapons of mass destruction).

Given the recent unexplained death of a scientist and questionable postponement of a planned inquiry into the war, those who opposed the conflict must now find indirect legal avenues to address these matters. This is where EU law comes in, as illustrated in yesterday’s Shepherd judgment from the Court of Justice of the European Union (CJEU). Regrettably, this judgment is deeply flawed, not because the Court skirts the core issue of the war’s legality, but because its analysis of crucial points regarding the treatment of deserters under EU asylum law is unconvincing.

Background

The Geneva Convention pertaining to refugee status defines a refugee as an individual outside their home country who is unwilling or unable to return due to a well-founded fear of persecution based on race, religion, nationality, belonging to a specific social group, or holding certain political views. However, it excludes those who have committed particularly atrocious acts, including war crimes, from being recognized as refugees.

These regulations are reiterated and expanded upon in the EU’s Qualification Directive. Specifically, it provides a more detailed definition of ‘persecution’, which encompasses legal or law enforcement actions, as well as prosecution or punishment that is ‘disproportionate or discriminatory’ (the ‘unfair punishment’ rule). Additionally, it includes ‘prosecution or punishment for refusal to perform military service in a conflict’ if ‘performing military service would include crimes or acts falling under the exclusion clauses’ (the ‘military service’ provision).

The Shepherd case involves a US soldier who developed reservations about the Iraq War’s legitimacy. Despite not being in a combat role, but instead performing helicopter maintenance, he was concerned that his actions contributed to the execution of war crimes. Consequently, he deserted the US Army, anticipating prosecution in the US for his actions. To evade this, he sought asylum in Germany. Subsequently, the German courts referred questions to the CJEU for clarification on the interpretation of the Qualification Directive.

Judgment

The Court stated at the outset that it would only interpret the rules within the Directive related to the concept of persecution. This is despite the Advocate-General’s opinion also examining the rules on the grounds of persecution and exclusion. As a result, the Court’s judgment makes no pronouncements on matters like the definition of ‘war crimes’.

Subsequently, the Court put forward four key points concerning the ‘military service’ provision’s interpretation. First, it stated that the definition of ‘military service’ encompasses support personnel and that the circumstances of a soldier’s enlistment are not relevant. This implies that it doesn’t matter if a soldier was drafted or enlisted voluntarily. However, the Court clarified that being a member of the military is a prerequisite but not the sole requirement for the rule to be applicable.

Second, the Court elaborated on the conditions for using the provision, outlining four factors to consider: a connection with an active conflict must exist; the rule can apply even to indirect participation in a conflict if the soldier’s duties could ‘sufficiently directly and reasonably plausibly, lead them to participate in war crimes’ (the potential for prosecution at the International Criminal Court is not a factor); a likelihood of future war crimes must exist (again, the possible involvement of the International Criminal Court is not relevant); and the past actions of the unit are not an automatic predictor of future war crimes. In essence, the test hinges on whether ‘there is a body of evidence which alone is capable of establishing’ the ‘credibility’ of war crimes being committed.

Third, the Court examined the specific context of the military conflict, focusing on three points. It posited that if the Security Council had passed a resolution authorizing the conflict, there was ‘in principle, every guarantee’ that no war crimes would occur, though this wasn’t an absolute. The Court also argued this applied to an ‘operation which gives rise to an international consensus’. Additionally, it stated that if the national law of the country of origin allowed for the ‘possibility’ of prosecuting war crimes, then it was ‘implausible’ such crimes would occur. In summary, the burden of proof is on the asylum-seeker to demonstrate ‘sufficient plausibility’ that their unit is ‘highly likely’ to commit war crimes.

Fourth, the Court considered the individual circumstances of the soldier. It argued that desertion must be the only way to avoid participating in war crimes, highlighting that Mr. Shepherd had both enlisted and re-enlisted in the US military.

Finally, the Court interpreted the ‘unfair punishment’ rule. It stated that member states have the right to maintain armed forces, including punishing soldiers who desert. The CJEU determined that a prison sentence of up to five years was not excessive. Additionally, it found Mr. Shepherd’s punishment was not discriminatory, as there was no basis for comparison in his case. Lastly, it deemed the potential social isolation stemming from his desertion legally inconsequential, as it was merely a byproduct of the punishment.

Comments

It is worth beginning with the aspects of the judgment that hold merit. The Court’s definition of ‘military service’ aligns with the Directive’s language, as does its interpretation of the requirements for applying this provision.

However, the majority of the Court’s rationale is unconvincing. Regarding the ‘unfair punishment’ rule, the Court should have provided a clearer explanation as to why a lengthy prison sentence is acceptable for a deserter, but not, according to previous case law, an LGBTI refugee. (The evident answer is that expressing one’s sexual orientation is, on its face, exercising the human right to privacy). Concerning discrimination, the Court’s inability to identify a comparator arises from its reluctance to address the grounds of persecution: Mr. Shepherd could reasonably claim discrimination compared to individuals in other social groups or with different political beliefs. As for social ostracism, the Court asserts this is inseparable from the punishment for desertion, which is not inherently true. It is important to note that the judgment doesn’t preclude the possibility of social ostracism existing without formal punishment in other cases.

The Court’s logic regarding the context of military conflicts is implausible. Why should the mere existence of a Security Council resolution serve as a ‘guarantee’ that war crimes will not be committed? This raises a significant question about whether such a resolution genuinely authorized the Iraq War. This reasoning contradicts the Court’s ruling in the Kadi cases, where it determined the mere existence of a Security Council process wasn’t enough to guarantee human rights. Many begin as idealistic about international law but become jaded; the Court seems to have undergone the reverse transformation.

The notion that an ‘international consensus’ could yield the same outcome is perplexing. Unlike a Security Council resolution, which is tangible (setting aside the question of interpretation), the Directive does not mention ‘international consensus’, and the Court doesn’t assert this concept exists in international law. How would one even define it? The invaded nation is clearly excluded from such a ‘consensus’, and if widespread international agreement existed, wouldn’t a Security Council resolution have been adopted? The only logical explanation for this part of the judgment is that Tony Blair, injecting his beliefs about liberal intervention into the core of EU law, tampered with the Court’s system. Let’s hope he didn’t invoice the Court his usual fee.

The idea that the ‘possibility’ of domestic prosecution for war crimes being sufficient is also unconvincing. If that were the case, why has the global community spent decades establishing an international criminal court system? The Advocate-General’s opinion cites examples (like My Lai) where such a possibility clearly wasn’t enough.

Lastly, regarding the individual soldier’s circumstances, the Court failed to consider the possibility of changes in the war’s execution, the emergence of facts about war crimes, or the soldier simply changing their mind. This last possibility is relevant, as public opinion towards the Iraq War soured over time, and the Advocate-General details how Mr. Shepherd’s own views evolved. However, the final word on this point should come from Bob Dylan:

Yes, how many times can a man turn his head

Pretending he just doesn’t see?

Yes, how many ears must one man have

Before he can hear people cry?

Yes, how many deaths will it take till he knows

That too many people have died?

The answer my friend is blowin’ in the wind

The answer is blowin’ in the wind.

Barnard & Peers: chapter 26