Egy az amerikai hadseregből az egysége által állítólagosan elkövetett háborús bűncselekmények miatt dezertált katona menedékjog iránti kérelme az Európai Unióban

Absztrakt

Amid the many refugee cases the Court of Justice has been dealing with in recent years, there appeared an odd one, grabbing even the media’s attention. Contrary to the traditional refugee cases, which originate in the persecution of individuals mostly on grounds of their nationality, ethnicity or religion in well-known conflict areas of the World, this one concerned the asylum application of an Iraqi war veteran, a US Army helicopter mechanic.

Convinced that the Apache fighter helicopters of his unit had participated in the killing of unarmed Iraqi civilians and, hence, in the perpetration of war crimes, he refused to obey a new order to return to the Arab country, left his unit based in Germany and applied for asylum with the German authorities. He based his application on a provision of the European Directive on refugee status (2004/83/EC), which provides protection not only to persecuted civilians but also to soldiers, who refuse to perform military service in a conflict, where performing such service would include crimes.
The Court found that the helicopter mechanic qualified as a soldier within the meaning of the Directive, and that his indirect implication in the perpetration of war crimes by his unit’s helicopters might suffice for him to seek protection.
However, the Court set out that an armed intervention engaged upon on the basis of a UN resolution guarantees, in principle, that no war crimes will be committed. Likewise, the existence, in the legal system of the States participating in such interventions, of legislation penalising war crimes and of courts which ensure the effective punishment of their perpetrators, is liable to render implausible the hypothesis that a soldier of these States could commit such crimes.

In addition, the fact that the helicopter mechanic enlisted voluntarily in the US Army at a time when it was already involved in the conflict in Iraq and that he also re-enlisted after his first tour in Iraq, seriously calls in question whether his desertion was for him the only way to seek remedy, as required by the Court, to avoid participating in war crimes.

Finally, the Court held that the sanctions (a prison sentence or discharge from the army) the helicopter mechanic faces in the US do not amount to acts of persecution for the purpose of the directive.