European Court of Justice
26 February 2015
Facts
The applicant, a U.S. citizen, served in the U.S. Army as a maintenance specialist. After receiving orders for redeployment to Iraq, he left the army, claiming that he no longer wished to participate in what he described as an illegal war in Iraq and in the war crimes being committed there. He applied for asylum in Germany, but his request was rejected.
Questions referred to the CJEU
The national court sought clarification on whether the relevant provisions of the directive governing asylum apply only to persons whose specific military duties involve direct participation in combat operations.
Court decision
The Court held that refusal to perform military service may constitute grounds for asylum if the applicant can prove that he would be forced to participate in war crimes or crimes against humanity. The provisions of the directive apply to all military personnel, including those in logistics or support roles. These provisions are relevant not only where it has been established that war crimes have already been committed or would fall within the jurisdiction of the International Criminal Court, but also where the asylum seeker can demonstrate that it is highly probable such crimes will be committed.
When assessing such cases, national authorities must consider whether the military operations were conducted under a United Nations Security Council mandate or with the consensus of the international community, and whether the state conducting the operations prosecutes war crimes.
Refusal to perform military service must be the only means available to the asylum seeker to avoid participation in the alleged war crimes. Therefore, if the person did not make use of an available procedure for conscientious objection, protection under the directive will not be granted - unless the applicant proves that, in the specific circumstances, he had no genuine possibility of using such a procedure.
The Court provisionally indicated that measures imposed on a soldier for refusing to perform military service - such as imprisonment or dismissal from the armed forces - do not, in principle, appear to be so disproportionate or discriminatory, considering the state’s right to maintain armed forces, as to amount to acts of persecution. However, it is for the national authorities to verify this in each individual case.