Is Germany the New Canada? One American Deserter's Request for German Asylum

• Author: Christian L. Deichert
• Position: Judge Advocate, U.S. Army
• Pages: 94-116

94 MILITARY LAW REVIEW [Vol. 205

IS GERMANY THE NEW CANADA? ONE AMERICAN

DESERTER’S REQUEST FOR GERMAN ASYLUM

MAJOR CHRISTIAN L. DEICHERT∗

What if every truck driver suddenly decided that he

didn’t like the whine of those shells overhead, turned

yellow, and jumped headlong into a ditch? The

cowardly bastard could say, “Hell, they won’t miss me,

just one man in thousands.” But, what if every man

thought that way? Where in the hell would we be now?

What would our country, our loved ones, our homes,

even the world, be like?1

I. Introduction

In November 2008, most of the Soldiers of the 412th Aviation

Support Battalion, based in Katterbach, Germany, were getting ready for

their first Thanksgiving home after a fifteen-month deployment to Iraq.

One member of the unit, Specialist André Shepherd, spent his

Thanksgiving formally applying to the German government for political

asylum.2 As Shepherd is the first American deserter to request political

∗ Judge Advocate, U.S. Army. Presently assigned as Instructor, Operations and

International Law Division, U.S. Air Force Judge Advocate General’s School, Maxwell

A.F.B., Alabama; LL.M., 2010, The Judge Advocate General’s School, U.S. Army,

Charlottesville, Virginia; J.D., 2000, Georgia State University College of Law, Atlanta,

Georgia; B.A., 1997, Davidson College, Davidson, North Carolina. Previous

assignments include Office of the Staff Judge Advocate, 1st Armored Division,

Wiesbaden, Germany, 2008–2009 (Chief of Client Services, 2009; Rear Detachment

Officer in Charge, 2008); Darmstadt Legal Center, V Corps, Darmstadt, Germany, 2006–

2008 (Officer in Charge, 2007–2008; Administrative Law Attorney, 2006–2007); Trial

Defense Counsel, U.S. Army Trial Defense Service, Camp Arifjan, Kuwait, 2005–2006;

Trial Defense Counsel, U.S. Army Trial Defense Service, Wiesbaden, Germany, 2004–

2005; Office of the Staff Judge Advocate, U.S. Army Intelligence Center, Fort Huachuca,

Arizona (11th Signal Brigade Trial Counsel, 2003–2004; Chief of Client Services and

Claims Judge Advocate, 2002–2003; Chief of Legal Assistance and Tax Center Officer in

Charge, 2001–2002). Member of the bar of Georgia. The author submitted this article in

partial completion of the Master of Laws requirements of the 58th Judge Advocate

Officer Graduate Course.

1 CHARLES M. PROVINCE, THE UNKNOWN PATTON 32 (1982).

2 See André Shepherd, I Am Petitioning for Political Asylum in Germany, CONNECTION

E.V., Nov. 27, 2008, http://www.connection-ev.de/z.php?ID=371. Although the term

“asylum” has different meaning in different contexts, this article will follow Hemme

Battjes’s example and adopt the definition used by the Institut du Driot International at

its Bath Conference of 1950: “[T]he term ‘asylum’ means the protection offered by a

2010] DESERTER’S REQUEST FOR GERMAN ASYLUM 95

asylum under a new European Union (EU) law,3 the German government

could set a dangerous precedent if it approves his application.

Shepherd, an Apache helicopter mechanic, deserted from his unit

after he learned he would deploy again and lived in hiding until his unit

eventually returned from its second tour in Iraq.4 In his asylum

application, Shepherd stated that he deserted to avoid committing war

crimes in Iraq and to avoid service in what he alleged to be an unlawful

conflict.5 He cited to a 2005 German administrative court decision

reinstating a Bundeswehr (German Army) major who was demoted for

refusing to carry out duties that he felt could contribute to the conflict in

Iraq.6 In evaluating Shepherd’s asylum application, Germany must apply

a 2004 EU Council Directive that expanded the definition of qualified

refugees to include some military deserters.7

André Shepherd is not the first Soldier to object vocally to

deployment to Iraq. As of February 2010, the protest group Iraq

Veterans Against the War claimed to have over 1700 members.8 Nor is

Shepherd the first Soldier to apply for asylum after having deserted. At

the time Shepherd filed his initial asylum application, the Immigration

and Refugee Board of Canada had rejected the asylum applications of at

least ten American deserters, starting with Jeremy Hinzman in 2005.9

State on its territory or elsewhere to an individual who came to seek it.” HEMME

BATTJES, EUROPEAN ASYLUM LAW AND INTERNATIONAL LAW 5–6 (2006) (translating

Institut du Droit International, L’ASILE EN DROIT INTERNATIONAL PUBLIC (1950)).

3 Council Directive 2004/83/EC 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, 2004

O.J. (L 302) 2-12 (EC) [hereinafter Qualification Directive], discussed in Part III infra.

4 See Mike Esterl, U.S. Deserter “Having Time of My Life” as He Seeks Asylum in

Germany, WALL ST. J., Jan. 29, 2009, at A1, available at http://online.wsj.com/article/

SB123318899887026687.html.

5 See Shepherd, supra note 2.

6 Bundesverwaltungsgericht [BVerwG] [Federal administrative court] June 21, 2005, 120

DEUTSCHES VERWALTUNGSBLATT 1455 (2005), discussed in Part IV infra. For an English

summary and discussion of Major Pfaff’s case, see Nikolaus Schultz, Was the War on

Iraq Illegal? The German Federal Administrative Court’s Judgment of 21st June 2005, 7

GERMAN L.J. 25, 26 (2006), Ilja Baudisch, Germany v. N, 100 AM. J. INT’L L. 911 (2006).

7 See Qualification Directive, supra note 3.

8 See IRAQ VETERANS AGAINST THE WAR (Sept. 16, 2010), http://ivaw.org.

9 See, e.g., Hinzman v. Canada (Minister of Citizenship & Immigration), [2007] 1 F.C.R.

561 (Can.). Although one American deserter successfully appealed the denial of her

asylum application in November 2009, the Federal Court based its opinion on the

deserter’s allegations of persecution based on her sexual orientation and not based on her