Waver v State Secretary for Justice

Date09 Agosto 1972
CourtRoyal Decree (Netherlands)
The Netherlands, Royal Decree (Administrative Decision).
State Secretary of Justice

The individual in international law Miscellaneous Refugees Geneva Convention on the Status of Refugees, 1951 Article 1(A)(2) Definition of Refugee Naval deserter Conscientious objector Attempt to avoid being handed over to national state by application for refugee status Test of whether any well-founded fear of persecution because of political opinions The law of the Netherlands

Summary: The facts:On 26 June 1970 Waver deserted from the U.S.S. Marias, an American naval vessel, at that time stationed in the port of Rotterdam. Waver stayed in the Netherlands until 21 July 1970 and then went to Sweden. He came back to the Netherlands on 29 August 1970. On 5 and 27 May 1971 the American military authorities requested that he be detained and handed over. In his efforts to avoid being handed over to the U.S. authorities1 under the NATO Status of Forces Agreement 1951, Waver applied for admittance as a refugee under Article 15 of the Dutch Aliens Act 1965.2 Both his original application and his request for revision of the unfavourable decision on his application were rejected on 2 July 1971 and 30 August 1971 respectively. Thereupon Waver appealed to the Crown.

Held:The appeal was dismissed. Waver could not be considered to be an alien originating from a country in which he had a well-founded fear of persecution on the grounds of his political opinions. Prosecution for desertion from the armed forces did not constitute persecution in the absence of disproportionate punishment based on the political reasons for the offence or discriminatory prosecution.

The following is the text of the relevant part of the judgment of the Court:

The contested decision is based on the consideration that, even taking account of all the facts and circumstances, the alien cannot be regarded as originating from a country where he has a well-founded fear of being persecuted for his political opinion within the meaning of the Aliens Act.

Against this, the appellant alleges that, through no fault of his own, he found himself in a situation in which, on the one hand, he had to perform his military service, and, on the other hand, was conscientiously convinced that he could no longer be part of military forces which, in his opinion, had been committing war crimes for many years in the name of freedom and democracy.

Whilst in military service on board an American naval vessel he felt this conflict...

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