Steve Peers
Nearly twelve years
since the conflict began, the Iraq war is still controversial, with many
believing that Tony Blair and George W. Bush launched an ‘illegal war’. For
these critics, the only satisfying result would be the trial of Bush and Blair
on war crimes charges. I think this will happen one day – on the condition that
the jury consists of flying pigs. (Perhaps they flew off with the mythical
weapons of mass destruction).
For now, then, in
light of the mysterious death of a scientist and the dubious delay in a planned
investigation of the war, critics of the conflict have to litigate these issues
indirectly. There is a link to EU law here – as set out in yesterday’s Shepherd judgment of the CJEU.
Unfortunately that judgment is highly problematic, not because the Court avoids
the key issue of the war’s legality, but because of its unconvincing
interpretation of some key issues concerning the status of deserters in EU
asylum law.
Background
The Geneva
Convention on refugee status defines a refugee as a person outside his or her
country of origin, who is unwilling or unable to return to that country due to
a well-founded fear of persecution on grounds of race, religion, nationality, particular
social group or political opinion. But it excludes refugee status from those
who have committed particularly heinous acts, including war crimes.
These rules are set
out again, and further elaborated, in the EU’s Qualification Directive. In
particular, there is a further definition of the concept of ‘persecution’,
which (among other things) includes legal or policing measures, or prosecution
or punishment, which is ‘disproportionate or discriminatory’ (the ‘unfair
punishment’ rule), and ‘prosecution or punishment for refusal to perform
military service in a conflict’, if ‘performing military service would include crimes
or acts falling under the exclusion clauses’ (the ‘military service’ provision).
The Shepherd case concerns an American soldier
who developed doubts about the legitimacy of the Iraq war. Although he was not
in combat, but rather carried out maintenance work on helicopters, he feared
that he was contributing to the commission of war crimes. So he deserted from
the US army, but expected that he would be prosecuted in the USA as a result.
To avoid this, he applied for asylum in Germany, and the German courts sent
questions to the CJEU to clarify the interpretation of the Qualification
Directive.
Judgment
The Court began by
confirming that it would only interpret the rules in the Directive on the concept
of persecution, although the Advocate-General’s opinion had also examined the
rules on the grounds of persecution
and exclusion. As a result, the Court’s judgment says nothing (for instance)
about the definition of ‘war crimes’.
Next, the Court
made four main points about the interpretation of the ‘military service’
provision. First of all, the definition of ‘military service’ included support
staff, and the circumstances surrounding enlistment in the military were
irrelevant. Implicitly it doesn’t matter whether the soldier was conscripted or
volunteered. However, the Court stated that being part of the military was a ‘necessary
but not sufficient’ condition for the rule to apply.
Secondly, the Court
elaborated upon the conditions for applying the provision, setting out four
elements to be considered: there must be a relationship with an actual
conflict; the rule can apply even to indirect participation in a conflict, if
the soldier’s tasks could ‘sufficiently directly and reasonably plausibly, lead
them to participate in war crimes’ (the possibility of prosecution before the
International Criminal Court being irrelevant); there must be a likelihood of
war crimes being committed in future (again, the possible role of the International
Criminal Court is irrelevant); and the past conduct of the unit is not an
automatic indicator that war crimes will be committed in future. Overall, the
test is whether ‘there is a body of evidence which alone is capable of
establishing’ whether it is ‘credible’ that war crimes will be committed.
Thirdly, the Court
examined the context of the conflict in question, addressing three issues. If
there was a Security Council resolution authorising the conflict, there was ‘in
principle, every guarantee’ that war crimes will not be committed, although this
was not an absolute rule. This also applied to an ‘operation which gives rise
to an international consensus’. And if national law of the country of origin
provided for the ‘possibility’ of prosecution of war crimes, then it was ‘implausible’
that such crimes will be committed. Overall, the asylum-seeker has to show that
there is ‘sufficient plausibility’ that his unit is ‘highly likely’ to commit
war crimes.
Fourthly, the Court
looked at the soldier’s individual circumstances. Desertion has to be the only
way in which he could avoid participation in war crimes, and the Court pointed
out that Mr. Shepherd had enlisted and then re-enlisted in the US armed forces.
Finally, the Court
interpreted the ‘the ‘unfair punishment’ rule. The starting point was that
Member States are entitled to maintain an armed force, including by means of
punishing soldiers who desert. A penalty of up to five years in prison was not disproportionate,
in the CJEU’s view. Nor was Mr. Shepherd’s punishment discriminatory, since there
was no comparator for him. And the social ostracism that might result from his
desertion was legally irrelevant, since it was only a consequence of the
punishment.
Comments
Let’s begin with
the parts of the judgment which are fairly convincing. The Court’s definition
of ‘military service’ makes sense in light of the wording of the Directive, as
does its interpretation of the conditions for applying this provision.
Unfortunately, the
majority of the Court’s reasoning is not as persuasive. As regards the ‘unfair
punishment’ rule, the Court should have made clearer why a lengthy prison
sentence is acceptable for a deserter, but not (according to prior case law) an
LGBTI refugee. (The obvious answer is that an expression of human sexuality is
prima facie an exercise of the human right to a private life). On discrimination,
the Court’s failure to find a comparator stems from its unwillingness to look
at the grounds of persecution: obviously Mr. Shepherd could claim
discrimination as compared to persons in other social groups or holding other
political opinions. And as for social ostracism, the Court simply asserts that
such ostracism cannot be severed from the punishment for desertion. But this is
not necessarily correct. However, it should be noted that the judgment leaves
open the possibility that social ostracism can exist in the absence of official
punishment in another case.
The Court’s reasoning
on the context of military conflict is quite implausible. Why should the mere
existence of a Security Council resolution amount to a ‘guarantee’ that war
crimes will not be committed? In any event, this begs the enormous question as
to whether the Iraq war was indeed authorised by such a resolution. This line
of reasoning is inconsistent with the Court’s ruling in the Kadi line of cases that the mere
existence of a Security Council process was insufficient to guarantee human
rights. Many people start out as naive idealists about international law, but end
up as disappointed cynics; the Court seems to have undertaken this journey the
other way around.
The idea that an ‘international
consensus’ could lead to the same result is baffling. Unlike a Security Council
resolution, which is clearly a real thing (leaving aside the question of how to
interpret one), there is no reference to ‘international consensus’ in the
Directive, and the Court makes no suggestion that such a concept exists in
international law. How would it even be defined? The State being invaded
clearly does not participate in such a ‘consensus’, and if there were such
widespread international agreement, why would it not have resulted in a
Security Council resolution anyway? The only plausible explanation for this
part of the judgment is that Tony Blair hacked into the Court’s computer
system, integrating his beliefs about liberal intervention into the heart of EU
law. Let’s hope he didn’t charge the Court his usual fee.
Nor is it
convincing that the ‘possibility’ of national prosecution for war crimes is
sufficient. If it were, why has the international community spent decades
building an international criminal court system? The Advocate-General’s opinion
gives several examples (such as My Lai) where such a possibility was clearly
insufficient.
Finally, as regards
the soldier’s individual circumstances, the Court failed to consider the
possibility that the conduct of the war changes, that facts about war crimes
come to light, or that the solider simply changes his mind. The latter
possibility is clearly relevant, since public opinion hardened against the Iraq
war as it went on, and the Advocate-General spells out how Mr. Shepherd came to
change his own mind. But the final word on this point should go to Bob Dylan:
Yes, how many times can a
man turn his head
Pretending he just doesn't
see?
Yes, how many ears must
one man have
Before he can hear people
cry?
Yes, how many deaths will it take till he knows
That too many people have
died?
The answer my friend is blowin' in the wind
The answer is blowin' in
the wind.
Barnard &
Peers: chapter 26
Very disappointing indeed. Presumably, had the CJEU existed at the time of the Third Reich it would have reached a similar verdict for deserters from the German army. Just political conformism, one presumes: the judges have no appetite to enter into political controversy, so they affirm the almighty power of the State.
ReplyDeleteThere is a lesson to be learned here. Anyone who thinks that the CJEU will aid a rescue of the impending politico-economic disaster of the eurozone is just hallucinating.
But most observers believe that the Pringle judgment and the Gauweiler opinion show that the CJEU is willing in principle to back the political initiatives to save the single currency, whatever legal argument may be made against them.
DeleteOnce again a truly excellent post, Steve! Yet why does it commence with "... many believing that Tony Blair and George W. Bush launched an ‘illegal war’."? All reputable international lawyers agree that the Iraq incursion was illegal. The then Secretary-General of the UN expressed himself in similar, unequivocal terms(http://news.bbc.co.uk/2/hi/middle_east/3661134.stm). The Dutch Committee of Inquiry reached the same conclusion (http://netherlandsmission.org/article.asp?articleref=AR00000874EN). Not so much a question of "believing" that the war was illegal then - rather, an irrefutable fact.
ReplyDeleteThanks, Henri. I avoided expressing any conclusion on the illegality of the Iraq war because that was not the main point of the judgment.
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