A US soldier, who no longer wanted to fight in Iraq and went Awol, sought asylum in Germany. However, his application was denied by the authorities, so now the European Court of Justice is set to review the case.
We know who Edward Snowden is, but who is Andre Shepherd? Both are American. But they have more than that in common; namely, their struggle against the US, at least against part of its legal system.
Both face prison, to a greater or lesser degree. But both Snowden and Shepherd have moved beyond the grasp of US authorities. The whistleblower is in unintentional exile in Moscow; Shepherd, a soldier, refused to return to the war in Iraq and has been holed up in southern Germany since 2008, defying the US government from the backwaters of Bavaria.
It's become a potentially explosive political case for Germany and the EU. After all, Shepherd comes from a democratically legitimized country and has requested asylum in another democratically legitimized state.
That is no contradiction, says Rudi Friedrich of Connection e.V., an international support organization for conscientious objectors and deserters seeking asylum. "The question is whether a person faces political persecution," he says, adding that can happen in a democratic country, too. As a deserter, Shepherd faces 18 months in prison in the US.
Germany rejected asylum application
Shepherd, who is 37 years old, was stationed in Bavaria when he received his second mission order for Iraq in 2007. He left the base and vanished, absent without leave. He went into in hiding from the US military police for 19 months.
On November 26, 2008, he became the first US soldier to request asylum in Germany.
Ever since, the young man has represented a diplomatic crisis between Berlin and Washington - even more so after the Federal Office for Migration and Refugees refused his application. Shepherd's lawyer Reinhard Marx filed a lawsuit with the Munich administrative court, but the court refused to act without a ruling by the Luxembourg-based European Court of Justice (ECJ).
"Fallujah opened my eyes"
The ECJ took over the case with the file number C-472/13. The prospects are not entirely bleak for the American, according to Eleanor Sharpston, a legal expert with the top EU court. Rudi Friedrich also reassured the plaintiff: "Shepherd is invoking the EU's so-called qualification guideline, which means it's about EU law." His case, the Connection e.V. advocate added, really is a precedent.
That is why the Munich court referred the case to the ECJ. The Luxembourg court will have to come up with answers to several questions, Eleanor Sharpston said. Would Shepherd automatically have been involved in crimes of war if stationed in Iraq? Sharpston said Shepherd's argumentation that as an Apache helicopter mechanic who is not part of a combat troop, he could still have been involved in breaches of international law, is basically sufficient for an asylum application.
Shepherd participated in the second battle of Fallujah in 2004 in which about 1,500 Iraqis were killed. Thanks to Wikileaks and the cockpit video "Collateral Murder," we now know that US soldiers deliberately killed civilians and innocent people from their Apache helicopters. Despite this, the court in Munich refused to grant Shepherd asylum in 2011. It saw "no indication" for Shepherd's forced participation in war crimes. But his experiences in Fallujah were what triggered Shepherd's application for asylum.
Waiting for the European court
No time frame has been set for a decision from the European Court. It's not just lawyers who are waiting for the results of this potentially precedent-setting case. For Rudi Friedrich, it is mainly about "the extent to which human rights are taken seriously with regard to conscientious objection, so that conscientious objectors who fear prosecution can be protected."
Following the court's verdict, the case will move back to the judges at the Munich court. If they grant Shepherd asylum, it will certainly set a precedent for follow-on cases from other conscientious objectors – as well as lay the ground for diplomatic friction between Berlin and Washington.