By Edward Grodin, Journal of Transnational Law & Policy Editor-in-Chief
Can an American servicemember qualify for asylum protections in Europe where he deserted for fear of committing war crimes? This question was recently answered in the affirmative by the Court of Justice of the European Union.
Andre Shepherd enlisted in the U.S. military in late 2003 and was deployed to Iraq from September 2004 to February 2005, working in a non-combat role as a helicopter maintenance mechanic. He voluntarily re-enlisted, but when the Army sought to return him to Iraq in April 2007, he deserted and ultimately applied for asylum in Germany in August 2008. Shepherd argued that he had come to believe that the war in Iraq was illegal and felt that his continued participation would contribute to war crimes.
The German asylum authorities denied his application. On appeal, the Bavarian Administrative Court in Munich made a reference for preliminary ruling to the Court of Justice, asking a number of questions including whether under E.U. law prosecution for refusal to perform military service constitutes persecution.
The Court of Justice held that where a servicemember risks prosecution for refusal to perform military service that would result in the commission of a war crime during a “conflict,” he is eligible for refugee status under the Qualification Directive (which governs the minimum standards for asylum that apply throughout the European Union). This applies even to an indirect participant who solely provides logistical support (such as Shepherd) where the support is “indispensable” to the preparation or execution of war crimes. However, the servicemember must first exhaust other methods of avoiding the commission of war crimes, primarily through an application for “conscientious objector” status where available. Lastly, and perhaps most controversially, the national authorities must carry out an assessment of the conflict to determine whether “the situation in question makes it credible that the alleged war crimes would be committed . . . .” This includes an analysis of whether the conflict is backed by a U.N. Security Council resolution or international consensus. Though the court left it to national authorities to decide the likelihood of war crimes, it added that prosecution (resulting in imprisonment or military discharge) would probably not rise to the level of persecution.
The assessment of the likelihood of war crimes, and the extent to which the conflict held the support of the international community, puts German asylum authorities in the delicate role of deciding the legality of America’s involvement in Iraq. In other words, German asylum authorities would have to find that Shepherd’s service in Iraq was likely to result in the commission of war crimes in order to grant protection. This may seem like an awkward venue to adjudicate one of the great political and legal debates of our time. However, it highlights what Matthew Price has referred to as the “political conception of asylum”: grants of refugee status serve an expressive function, allowing a state to condemn the acts of the foreign state at issue.
Combined with the International Criminal Court’s recent preliminary report on its investigation into war crimes committed (by the United States) in Afghanistan, Shepherd’s case illustrates the potential ways in which the moral and legal underpinnings of American intervention may be questioned in various foreign legal arenas. This is no longer the realm of polling or protests; the prospect of Shepherd’s legal protection depends in part on the legality of the warzone itself.
In the end, the Court of Justice has qualified the baseline eligibility for asylum for those in Shepherd’s position with so many thresholds that Shepherd himself is unlikely to prevail. In fact, if Shepherd were German and had applied for asylum in the United States, he would probably not receive asylum. However, the court’s judgment has opened the door (within certain asylum cases) to a wholesale evaluation of the Iraq war and other conflicts by low-level officials in E.U. countries. That is, if nothing else, a powerful tool for challenging the historical narrative of these conflicts.
 Case C‑472/13, Shepherd v. Bundesrepublik Deutschland, Celex No. 613CJ0472 (Feb. 26, 2015).
 A reference for preliminary ruling essentially serves as a proactive, advisory-oriented method for any court at any level within the European Union to ask the Court of Justice (the highest E.U. judicial body) for an interpretation of E.U. law.
 Shepherd, Celex No. 613CJ0472 at para. 46.
 Id. The court noted that “an armed intervention engaged upon on the basis of a resolution adopted by that Security Council offers, in principle, every guarantee that no war crimes will be committed . . . .” Id. at para. 41. However, commenters have criticized this conclusion. See, e.g., Steven Peers, The Iraq War and EU Asylum Law: The CJEU’s Answers Are Blowin’ in the Wind, EU Law Analysis (Feb. 27, 2015), http://eulawanalysis.blogspot.com/2015/02/the-iraq-war-and-eu-asylum-law-cjeus.html (calling the court’s reasoning “quite implausible”).
 Matthew Price, Persecution Complex: Justifying Asylum Law’s Preference for Persecuted People, 47 Harv. Int’l L.J. 413, 418 (2006).
 See David Bosco, The War over U.S. War Crimes in Afghanistan Is Heating Up, Foreign Policy (Dec. 3, 2014), http://foreignpolicy.com/2014/12/03/the-war-over-u-s-war-crimes-in-afghanistan-is-heating-up-icc-hague/.
 See also Glenn Greenwald, Bush and Blair Found Guilty of War Crimes for Iraq Attack, Salon (Nov. 23, 2011, 12:17 PM), http://www.salon.com/2011/11/23/bush_and_blair_found_guilty_of_war_crimes_for_iraq_attack/, for a summary of an interesting case carried out in absentia against President George W. Bush and other high-ranking officials for war crimes committed in Iraq.
 Cf. Matter of Canas, 19 I. & N. Dec. 697, 709-10 (BIA 1988) (absent a showing of religiously motivated persecution, conscientious-objector Jehovah’s Witnesses did not show that possible prosecution for refusal to perform military service rose to the level of persecution required for asylum eligibility). Moreover, if asylum authorities decided that Shepherd had already contributed to war crimes during his 2004-05 service in Iraq, he would be ineligible for asylum from the outset under the “persecutor” bar.