Of Shepherds and Sheepdogs

It is not without irony that the Court of Justice of the European Union (CJEU) decided an asylum case involving a former US army soldier with the surname ​“Shepherd” at the same time US pop culture celebrates a film built around a metaphor of protecting sheep. In Clint Eastwood’s American Sniper, we learn that the US Army’s ​“most lethal sniper,” Chris Kyle, grew up listening to his father preach a story about ​“three types of people in this world: sheep, wolves and sheepdogs.” The father’s story, modeled after a book by US Army Veteran Dave Grossmann, taught Kyle that sheepdogs are ​“blessed with aggression, and the overpowering need to protect the flock” from the wolves. Kyle was part of the rare breed of the sheepdog. During his deployment in the most recent Iraq war, he killed 160 ​“wolves.”

Mr. Andrew Lawrence Shepherd cannot expect the same admiration as his US Army comrade Kyle. Shepherd was first deployed in Iraq from September 2004 to February 2005. Trained as a helicopter maintenance mechanic, he did not directly participate in combat, but repaired and maintained helicopters, in particular Apache combat helicopters. In April 2007, after a two-year deployment in Germany as part of an air support battalion, Shepherd was ordered back to Iraq. Instead of returning to Iraq, however, he left the army. He considered the war in Iraq illegal and alleged that the US Army committed war crimes. Shepherd requested international protection from the German immigration authorities; they refused his claim. On appeal before the Administrative Court of Munich, it was undisputed that Shepherd, if returned to the US, would face prosecution and punishment for his refusal to serve in Iraq. Nor was it contested that, if returned to US, Shepherd would face social ostracism. Shepherd did have a real chance of an objective risk – a well-founded fear, as described by the Refugee Convention. The disputed issue was whether the harm he faced was relevant harm for the notion of ​“being persecuted,” a term EU Asylum law borrows from Article 1A(2) of the Refugee Convention.

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