French leave

Global Miliary Justice Reform blog brings us news of action in Europe in regard to a U.S. deserter seeking refugee status in Germany – he was avoiding deployment to the AOR.

On 1 January 1977, President Carter pardoned a large number of civilians who had gone to Canada to avoid the draft. The pardon did not extend to deserters, approximately 1000. Many had fled to Canada and were well received there.

During the more recent deployments to Iraq and Afghanistan a number of U.S. military personnel took French leave to Canada, although not solely to Quebec province. Several succeeded in being allowed to remain. Canada must be an interesting place – remember the recent incident of some Afghani officers being among several going AWOL to Canada while here on an educational cruise. As noted below, the Canadian courts have nixed refugee claims of U.S. military personnel.

Now we have the case of Andre Lawrence Shepherd who took French leave from his unit, and is in Germany.

In a press release of Court of Justice of the European Union PRESS RELEASE No 147/14, Luxembourg, 11 November 2014 —

According to Advocate General Sharpston, non-combat military personnel may claim asylum if they consider themselves to be at risk of prosecution or punishment for refusal to perform military service where so doing might involve commission of war crimes.

Shepherd was on a subsequent enlistment and had already served at least one tour in Iraq. He does not claim conscientious objector status because he is not against war per se, just how the Iraq war was going. Apparently he re-enlisted because he was told he would not be deploying to Iraq anymore.  His objection is a little more nuanced compared to several U.S. military personnel who have refused to deploy for “political” reasons. See e.g., United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995)(granted clemency and early release from confinement); or the case of 1Lt Watada; or who have disobeyed orders for similar reasons. See e.g., United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999).

The AG’s lengthy full opinion may be read at Andre Lawrence Shepherd v. Bundesrepublik Deutschland.

But the AG’s opinion doesn’t close the case – the opinion is not binding. And, it must still be determined whether he meets the German criteria. We do know that the German government is loath to relinquish jurisdiction under the SOFA over servicemembers who face the death penalty, or others who face the death penalty if extradited to the U.S. But this appears to be new ground they are treading.

You will be aware that Canada does not consider Iraq war related AWOL soldiers as refugees. See, Hinzman, et. al. v. [Canadian] Minister of Citizenship & Immigration, FC 420, [2007] 1 F.C.R. 561.

Keep your eyes tuned to future developments.