U.S. war resister and former soldier André Shepherd, hailed internationally as a hero for refusing to take part in the occupation of Iraq, was just dealt a blow from Europe's highest court in his bid to win asylum in Germany.
The Luxembourg-based European Court of Justice said Thursday that 37-year-old Shepherd, in order to win refugee status, must prove that he would have been forced to commit war crimes in Iraq if he had not refused to serve in the U.S. military.
The court, further, decided that Shepherd is likely not eligible for asylum status on the grounds that he would be persecuted if returned to U.S. custody. According to Shepherd's lawyers, the repercussions would likely be severe, including potential prison time.
However, the court stated: "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 decision goes against the earlier opinion of the ECJ's Advocate General, who urged the European Union to protect resisters of illegal wars who face persecution as a result.
Shepherd's supporters slammed the ruling as "insufficient" and "incomprehensible."
"The ruling by the ECJ does not strengthen the position of conscientious objectors and deserters in political-asylum proceedings," declared Rudi Friedrich of Connection e.V., a Germany-based organization that supports international conscientious objectors.
Maggie Martin, Iraq veteran and organizer with Iraq Veterans Against the War, told Common Dreams, "It's very disappointing to hear the court's decision, when revelations about Abu Ghraib and other act of torture committed by U.S. forces should leave no question about war crimes. We owe resisters of the Iraq War our thanks and it's a shame that Shepherd could be sent to the U.S. to face jail time."
Shepherd, who hails originally from Cleveland, Ohio, was deployed to Iraq for six months in 2004 and 2005 as an Apache helicopter mechanic, during which he developed serious concerns about the occupation. When ordered back to Iraq in 2007, he went AWOL from his base in Absbach, Germany—the country where he sought asylum in 2008.
"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," Shepherd told a news conference in Frankfurt in 2008, according to Reuters. "I could not in good conscience continue to serve."
The first Iraq War veteran to seek refuge in Europe, Shepherd was one of several U.S. service members to refuse to fight in the so-called "War on Terror" on ethical grounds. He attracted widespread support for his cause, and in 2009 was awarded the "Peace through Conviction" Prize by the Munich American Peace Committee.
At the time, Shepherd declared, "I would like to accept this award not just for myself, but for all of the individuals and organizations who have stood up against the crimes against humanity being perpetrated by those in power. The tireless efforts of people in resistance have created conditions such that it is possible to imagine there is light at the end of the tunnel."
Shepherd's bid for asylum was initially refused by authorities in Germany, so he appealed to the German court system, which then turned to the European court for guidance. The ECJ ruling kicks Shepherd's asylum application back to the German court system.
But Shepherd's supporters are still hopeful his years-long battle for refuge will be successful. "André's case gives the German and EU high courts a final chance to render a guilty verdict on the criminal invasion of Iraq by the United States," said Jeff Paterson, project director for Courage to Resist, in an interview with Common Dreams.