Opinion of the Advocate General — ECLI:EU:C:2014:2360
Date: 2014-11-11
Language of the case: German
Subject matter: Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the dispute in the main proceedings. 4 – Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, entered into force on 22 April 1954 (‘the Geneva Convention’). It was supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967. That Protocol is not relevant to determining the present request for a preliminary ruling. 5 – 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 or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) (‘the Qualification Directive’ or ‘the directive’). That directive was repealed and replaced in recast form by Directive 2011/95/EU (OJ 2011 L 337, p. 9). The wording of the relevant provisions has not changed materially. 6 – First subparagraph of Article 1(A)(2) of the Geneva Convention. 7 – Article 1(F)(b) and (c) of the Geneva Convention provide respectively that it does not apply to a person who commits a serious non-political crime outside the country of refuge; or is guilty of acts contrary to the purposes and principles of the United Nations. 8 – Signed at Rome on 4 November 1950 (‘the ECHR’). 9 – OJ 2010 C 83, p. 389. 10 – Recitals 1 to 4. See also Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) (‘the Procedures Directive’), which applies to all applications for asylum made within the territory of the Union. 11 – Recitals 1 to 4, 6, 7, 8, 10, 11 and 17. 12 – Recital 10. 13 – Recital 11. 14 – Article 2(c). 15 – Article 4(1). 16 – Article 6. 17 – Article 7(1). 18 – Article 7(2). 19 – The indefeasible rights under Article 15(2) of the ECHR are the right to life (Article 2), the prohibitions against torture and slavery and forced labour (respectively Articles 3 and 4) and the right not to be punished without prior due legal process (Article 7). 20 – Article 9(1). 21 – Article 9(2)(b). 22 – Article 9(2)(c). 23 – Article 9(2)(e). The English version of that provision does not mention the commission of crimes or acts, I consider the English text’s use of the word ‘include’ to be odd. The French text states: ‘… en cas de conflit lorsque le service militaire supposerait de commettre des crimes ou d’accomplir des actes …’. That seems to come closer to the sense of the provision. See further points 35 and 37 below. 24 – Article 9(3). 25 – Article 12(2)(a). The wording of Article 12(2)(b) and (c) is similar to Article 1(F)(b) and (c) of the Geneva Convention; see footnote 7 above. 26 – Article 12(3). 27 – Article 13. 28 – See Paragraph 3(1) and (2) of the Asylverfahrensgesetz (Law on asylum procedure). 29 – Paragraph 60(1) of the Aufenthaltsgesetz (Law on residence). 30 – Statute of the International Criminal Court, signed at Rome on 17 July 1998, which entered into force on 1 July 2002 (‘the Rome Statute’). The referring court explains that the Bundesamt considers that participation in the commission of a crime generally requires that the act in question be committed with intent and knowledge (see Article 30 of the Rome Statute). 31 – See further points 47 to 60 below. 32 – See the Introductory Note to the Geneva Convention by the office of the UNHCR, dated December 2010; and see further Article 35 of the Geneva Convention, Articles 8(2)(b) and 21 of the Procedures Directive and recital 15 in the preamble to the Qualification Directive. The UNHCR has produced helpful documents including Guidelines on International Protection No 10 concerning claims to refugee status related to military service within the context of Article 1(A)(2) of the Geneva Convention (‘the UNHCR Guidelines No 10’) and Guidelines on the application of the exclusion clauses: Article 1(F) of the Geneva Convention (‘the UNHCR Guidelines on exclusion clauses’). Neither of those documents is legally binding, but they nevertheless reflect established principles of international law. 33 – See recital 15 in the preamble to the Qualification Directive. 34 – Judgment in Salahadin Abdulla and Others, C‑175/08, C‑176/08, C‑178/08 and C‑179/08, EU:C:2010:105, paragraph 52; judgment in Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 47; and judgment in X, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 39. 35 – Judgment in X, EU:C:2013:720, paragraph 40. See also Article 10 of the Charter. 36 – The elements mentioned in Article 4(1) are listed in detail in Article 4(2) of the Qualification Directive. See also judgment in M.M., C‑277/11, EU:C:2012:744, paragraph 73. 37 – Emphasis added. 38 – Article 12(3) indicates that Article 12(2) applies to persons who instigate or otherwise participate in the commission of war crimes or acts mentioned therein. 39 – See recitals 1 and 6 in the preamble to the Qualification Directive. 40 – See footnote 23 above. 41 – The Qualification Directive was adopted on 29 April 2004. At the time of its adoption, the official languages of the European Union were Danish, Dutch, English, French, Finnish, German, Greek, Italian, Portuguese, Spanish and Swedish. Article 9(2)(e) is expressed in the conditional tense in those languages (albeit not in every linguistic version as the present tense is used in the Dutch text). 42 – The purposes and principles of the United Nations (‘UN’) are set out in Chapter I of its Charter (the Charter of the United Nations and Statute of the International Court of Justice signed in San Francisco on 26 June 1945 (‘the UN Charter’)). In relation to its Members, those principles include the recognition of sovereign equality, the settlement of international disputes by peaceful means and abstinence from the threat or use of force in their international relations (Article 2 of the UN Charter). 43 – Charter of the International Military Tribunal, signed at London on 8 August 1945. 44 – See, for example, paragraph 11 of the UNHCR Guidelines on exclusion clauses. 45 – See, for example, paragraph 13 of the UNHCR Guidelines on exclusion clauses. 46 – The referring court points out that Mr Shepherd considered the war in Iraq to be contrary to international law (see point 3 above). The question of the legality of that war is not for this Court or the national authorities to decide in Mr Shepherd’s case. That issue remains a matter of debate between legal experts in international law and indeed political leaders. On 16 September 2004 Mr Kofi Annan (the then Secretary-General of the UN) said that the 2003 invasion of Iraq was contrary to the UN Charter. However, subsequent to that statement a number of UN Security Council (‘UNSC’) resolutions relating to Iraq were adopted. 47 – See recital 11 in the preamble to the Qualification Directive; see further Article 8 of the Rome Statute. 48 – See, for example, paragraph 12 of the UNHCR Guidelines on exclusion clauses. 49 – See point 37 above. 50 – See Article 13 of the Qualification Directive. 51 – Eur. Court H. R., Bayatyan v. Armenia [GC], no. 23459/03, paragraph 110, ECHR 2011. 52 – Whether Article 10(2) of the Charter is relevant to Mr Shepherd’s case thus depends on the national laws governing conscientious objection of the Member State (Germany) where he has sought asylum. That is a matter for the relevant national authorities to assess, subject to review by the national courts. As to Mr Shepherd’s position as a US national and a former member of the US armed forces; see points 74 and 75 below. 53 – See, for example, paragraph 3 of the UNHCR Guidelines No 10. 54 – I note that, since the US is not a Contracting Party to the ICC, the terms of that court’s Statute could not be applied in Mr Shepherd’s case in any event. 55 – An infamous example is the Mӱ Lai Massacre committed in the Vietnam War. Of the 26 US soldiers prosecuted for committing criminal offences at Mӱ Lai only Lieutenant William Calley Jr. was convicted. More recently the Prosecutor of the ICC has opened cases concerning situations in Uganda and the Democratic Republic of the Congo. In relation to the latter, a conviction was obtained in Prosecutor v. Thomas Lubanga Dyilo. 56 – Indeed, much thought and ink has been expended in analysing whether and in what circumstances a war may be characterised as ‘legitimate’ and/or ‘just’. Just war theory (jus bellum iustum), initially explored by St Augustine of Hippo (354 to 430), was famously expounded by St Thomas Aquinas (1225 to 1274) in the Summa Theologica. Subsequent analysis has gradually distinguished between the rules that govern the justice of war (jus ad bellum), those that govern just and fair conduct (jus in bello) and the responsibility and accountability of warring parties after the war (jus post bellum). The principles of the justice of war are commonly held to be: having just cause, being a last resort, being declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used. Each element is open to critique. 57 – Article 9(3). 58 – The order for reference states that, ‘[t]he Bundesamt has established that the applicant is facing a prison sentence for desertion of between 100 days and 15 months, although the sentencing range extends up to five years’. 59 – In particular the indefeasible rights identified in Article 15(2) of the ECHR: see footnote 19 above.