Germany: US soldiers applies for asylum

On 27 November 2008, U.S. Army
Specialist Andre’ Shepherd applied for asylum in Germany. After
attending college and failing to find meaningful employment, Shepherd
enlisted in the military early in 2004. The promises of financial
security and international adventure easily trumped working at a fast
food chain. He became an Apache airframe mechanic, hoping to someday
qualify up to the role of helicopter pilot.

His first unit was already deployed to Iraq when he completed his
training, so he joined them immediately, with only one day at his
unit’s home in Germany. Shepherd spent six months on a forward
operating base near Tikrit, working 12-hour days to keep the heavily
armed Apaches (and their signature Hellfire missiles) in the air.

Though he enlisted in order to bring freedom, prosperity and peace,
Shepherd found none of these traits in the locals with whom he
interacted.

“Some had the look of fear, while others looked outright angry
and resentful,” he said of locals contracted for jobs around the
base. “I began to feel like a cruel oppressor who had destroyed the
lives of these proud people.

“Our unit did a lot of good things, giving schools books and
bringing clothes to children,” he said. “These actions helped my
conscience a bit, but I kept thinking to myself, ‘Had we not invaded,
would these people need this aid now?’ ”

Shepherd began researching for himself not just the causes of the Iraq
War, but the wider War on Terror. As inconsistencies in the official
story emerged, the reasons for which he joined the military lost
credence. As the myth of Weapons of Mass Destruction evaporated, so too
did his faith in the mission.

Upon his return to Germany at the end of the deployment, Shepherd
began to investigate the options available to an American soldier who
questions the morality of war. He spoke with a superior about
conscientious objection, but was told the process was lengthy and his
application would probably be denied.

U.S. military regulations also state a conscientious objector must
have an objection to all war in all form. Since Shepherd’s objection
was not in opposition to all war, his application would have required
lying, which would have compromised the moral composition of his
argument.

After months of deliberations, finding no suitable avenue in the
Pentagon’s serpentine regulations, he packed his things on April 11,
2007, and went Absent Without Leave from his Katterbach base in the
middle of the night.

He has lived underground in Germany for nearly two years, waiting
for his unit to return from yet another Iraq deployment, but such a
vaporous life can only be lived for so long.

Andre Shepherd's asylum application is the first case of a US
soldier applying for asylum in Europe. Andre Shepherd faces persecution
for his refusal to participate in the war in Iraq, as defined by
European Union Council Directive 2004/83/EC, Article 9 para 2 (e),
which states: "Acts of persecution as qualified in paragraph 1, can,
inter alia, take the form of: ... (e) prosecution or punishment for
refusal to perform military service in a conflict, where performing
military service would include crimes or acts falling under the
exclusion clauses as set out in Article 12(2);" These exclusion
clause says: "2. A third country national or a stateless person is
excluded from being a refugee where there are serious reasons for
considering that:

(a) he or she has committed a crime against peace, a war crime, or a
crime against humanity, as defined in the international instruments
drawn up to make provision in respect of such crimes;"

According to a judgement of the Federal Administrative Court of
Germany, "there were and still are serious legal objections to the
war against Iraq launched on 20 March 2003 by the USA and the UK,
relating to the UN Charter's prohibition of the use of violence and
other provisions of international law. The US and UK governments could
not use as their basis for the war either decisions of the UN Security
Council authorising them to go to war, or the right to self-defence set
out in Article 51 of the UN Charter" (BVerwG 2 WD 12.04).

Based on this ruling, in theory the chances of Andre Shepherd's asylum
application should be good. However, in practice it will be very
difficult to achieve the right to asylum for Andre Shepherd.

Sources: Connection e.V.: Erster Asylantrag eines US-Deserteurs in Deutschland, 27 November 2008; Military Counseling
Network: André Shepherd seeks German asylum, 27 November 2008; Lawyer Dr. Reinhard Marx: Asylantrag für den US-Verweigerer André Shepherd, 27 November 2008; André Shepherd: "I am petitioning for political asylum in Germany", 27 November 2008; Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees; Federal Administrative Court of Germany: ruling in
the matter BVerwG
2WD 12.0-4 of June 21, 2005