Protection from internal armed conflict and the relationship between EU Qualifications Directive 2004/83 and the Geneva Conventions
What is an internal armed conflict for the purposes of EU law? That question was answered by the Court of Justice of the European Union (CJEU) in the case C-285/12 on the 30th of January in a preliminary ruling referred by the Conseil d’État (Council of State, Belgium).
The issues concern the interpretation of Directive 2004/83 and its relation to International humanitarian law (IHL). The Directive sets out a minimum standard of benefits for persons in need of international protection and it has the objective of creating common criteria for the identification of such persons. Directive 2004/83 is essentially the first step on EU level to harmonize member state provisions on asylum and to create a common policy.
Factual circumstances of the case
The case concern Mr. Diakité, a Guinean national, that applied for subsidiary protection at the Commissaire général aux réfugiés et aux apatrides (Commissioner General for Refugees and Stateless Persons) in Belgium. The application was rejected by the Belgian authorities on the ground that the situation in Guinea did not fulfill the requirements of indiscriminate violence or armed conflict as stipulated by Belgian law.
Mr. Diakité appealed the decision to the Conseil d’État (the referring Belgian court) on the grounds that the definition of armed conflict, used by the Belgian authorities, was based on the definition of armed conflict as established by the case law of the International Criminal Tribunal for the Former Yugoslavia.
Mr. Diakité relied on Directive 2004/83 in his submission and claimed that the definition of internal armed conflict for the purposes of art. 15(c) of Directive 2004/83, must be interpreted differently and independently of the definition established by International humanitarian law.
The Conseil d’État took notion of that submission and referred two questions to the CJEU. Firstly, must internal armed conflict, as stipulated in art. 15(c) of Directive 2004/83 be interpreted so as to have the same meaning as in the Common art. 3 of the Four Geneva Conventions and Protocol II? Secondly, if internal armed conflict is to be interpreted independently, then what criteria should be applied to determine when an internal armed conflict exists?
Non-international armed conflict and internal armed conflict
The definition of a non-international armed conflict in the common art. 3 of the Geneva Conventions and in the complementing protocol II, contain requirements, that a government armed force must be involved and that the conflict must be of a certain intensity. Whether the conflict is intense enough is dependent on the length of the conflict, the geographical size of the conflict and what kind of weapons that are used, etc. It is a definition that excludes internal disturbances and tensions, such as riots or temporary acts of violence, thus excluding conflicts where the parties don’t reach the substantive level of organization and intensity.
Art. 2(e) of Directive 2004/83 stipulates that a third country national or a stateless person who does not qualify as a refugee but suffers a factual risk of serious harm as defined in art. 15, if being sent to country of residence or former habitat, is eligible for subsidiary protection.
Art. 15 contain three different criteria where criteria 15(c), which is relevant for the case at issue, states that serious harm consist of serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Considering the wording of the provision, eligibility of subsidiary protection is thereby conditional of indiscriminate violence due to an armed conflict, wherefore the interpretation of internal armed conflict will affect asylum seekers directly.
Hermeneutical coherence
Since the Directive lacks a definition of the meaning of internal armed conflict the French, German and Belgium governments submitted that the interpretation must be in conformity with the interpretation of non-international armed conflict in IHL, to avoid the creation of two different definitions binding upon the member states. Furthermore, the German government held that an interpretation that is coherent with an international treaty, that is binding upon the member states, fulfill the requirement for the purpose of establishing a common definition within the member states.
Advocate General Mengozzi recognized in his opinion, the Union’s obligation to respect international law in accordance with art. 3(5) TEU and the importance of considering a conform interpretation of Union Law in relation to international law (see to that effect Poulsen and Diva Navigation, Kadi and Al Barakaat). AG Mengozzi continued however, stating that it is not established that the Union is obligated to a conform interpretation of treaties which it is not a party to, such as the Geneva conventions, and held that in any case the principle of conform interpretation is not applicable if there is no hermeneutical coherence between the respective provisions.
According to AG Mengozzi, the aim and purpose of Directive 2004/83 is essentially different to the common art. 3 of the Geneva Conventions. This reasoning was later followed by the CJEU in its decision where the Court emphasized on the fact that IHL is designed to be applicable for the protection of civilians within a conflict zone, where by contrast, the Directive is applicable for the protection of civilians outside the conflict zone and outside the territory of the conflicting parties. The CJEU also mentioned the direct link between International Humanitarian Law and International Criminal Law as a clear distinctive feature from Union law. By putting focus on the different features and aims of art. 3 of the Geneva Conventions in relation to the art. 15(c) of Directive 2004/83 the Court concluded that it is not possible to condition the eligibility of subsidiary protection to the definition of non-international armed conflict in international humanitarian law.
Definition of internal armed conflict
The CJEU then continued with the aim of subsidiary protection, focusing on the purpose to complement and add protection to persons seeking international protection from a de facto threat. The Court held that in the light of the purpose of the provision it is unnecessary to state material and objective conditions, such as the length of the conflict or to which level the armed forces are organized, to the definition of internal armed conflict,
Rather the Court submitted that it is sufficient that the applicant must be able to show, with a substantial ground, that the violence is of such nature that the mere presence of the applicant would bring the threat to the fore. Following that reasoning the more an applicant can show that particular and personal circumstances affect its case, the lower the level of indiscriminate violence objectively is needed to fall within the scope of subsidiary protection. Consequently, the CJEU ruled that it is not necessary, for internal armed conflict to be defined as a non-international armed conflict as stipulated in international humanitarian law, to give rise for subsidiary protection within the EU.
Effects
The decision could be viewed as an elaboration of the CJEU’s case law on the relationship between EU law and international law, a symbol for the tendency of fragmentation of the different legal orders. A decision in line with Kadi and Al Barakaat, putting emphasize to the Union’s and the Court’s autonomy in relation to international treaties that the member states are parties to, but which the Union have not ratified. It seems however that the lack of hermeneutical coherence is the trigger point in this case and that the decision does not affect the principle of conform interpretation.
As AG Mengozzi mentions, the provisions of the Geneva Conventions are not binding due to the written agreement, rather as Mengozzi indicates, the provisions are a part of customary international law reflected in the agreement and could therefore be binding not only to the member states but also to the Union. The CJEU does not reject this line of argumentation, wherefore the principle implications of Diakité concerning the relation between IHL and Union law, cannot be drawn further than that to recognize the different features, purpose and applicability of art. 2 in conjunction with art. 15(c) Directive 2004/83 in relation to the common art. 3 of the Geneva Conventions and complementary Protocol II.
For the matter of the substantive interpretation of internal armed conflict, the decision increases the protection for civilians, without refugee status seeking international protection, since the definition of internal armed conflict is made conditional to de facto risk of serious violence rather than formal conditions as stipulated within the definition of protocol II to the Geneva Conventions.
The decision puts an obligation on member state authorities to consider whether conflicts, with less intensity and organization than those included in the definition in IHL, can put to the fore a real threat of suffering serious harm for civilians. Furthermore, the decision introduces a more flexible way of identifying persons in need of international protection and broadens the scope of art. 15(c). A broader and more flexible scope however, might lead to a bigger leeway within member states’ domestic implementation and a subjective test might increase the burden of proof on the asylum seeker.
What is an internal armed conflict for the purposes of EU law? That question was answered by the Court of Justice of the European Union (CJEU) in the case C-285/12 on the 30th of January in a preliminary ruling referred by the Conseil d’État (Council of State, Belgium).
The issues concern the interpretation of Directive 2004/83 and its relation to International humanitarian law (IHL). The Directive sets out a minimum standard of benefits for persons in need of international protection and it has the objective of creating common criteria for the identification of such persons. Directive 2004/83 is essentially the first step on EU level to harmonize member state provisions on asylum and to create a common policy.
Factual circumstances of the case
The case concern Mr. Diakité, a Guinean national, that applied for subsidiary protection at the Commissaire général aux réfugiés et aux apatrides (Commissioner General for Refugees and Stateless Persons) in Belgium. The application was rejected by the Belgian authorities on the ground that the situation in Guinea did not fulfill the requirements of indiscriminate violence or armed conflict as stipulated by Belgian law.
Mr. Diakité appealed the decision to the Conseil d’État (the referring Belgian court) on the grounds that the definition of armed conflict, used by the Belgian authorities, was based on the definition of armed conflict as established by the case law of the International Criminal Tribunal for the Former Yugoslavia.
Mr. Diakité relied on Directive 2004/83 in his submission and claimed that the definition of internal armed conflict for the purposes of art. 15(c) of Directive 2004/83, must be interpreted differently and independently of the definition established by International humanitarian law.
The Conseil d’État took notion of that submission and referred two questions to the CJEU. Firstly, must internal armed conflict, as stipulated in art. 15(c) of Directive 2004/83 be interpreted so as to have the same meaning as in the Common art. 3 of the Four Geneva Conventions and Protocol II? Secondly, if internal armed conflict is to be interpreted independently, then what criteria should be applied to determine when an internal armed conflict exists?
Non-international armed conflict and internal armed conflict
The definition of a non-international armed conflict in the common art. 3 of the Geneva Conventions and in the complementing protocol II, contain requirements, that a government armed force must be involved and that the conflict must be of a certain intensity. Whether the conflict is intense enough is dependent on the length of the conflict, the geographical size of the conflict and what kind of weapons that are used, etc. It is a definition that excludes internal disturbances and tensions, such as riots or temporary acts of violence, thus excluding conflicts where the parties don’t reach the substantive level of organization and intensity.
Art. 2(e) of Directive 2004/83 stipulates that a third country national or a stateless person who does not qualify as a refugee but suffers a factual risk of serious harm as defined in art. 15, if being sent to country of residence or former habitat, is eligible for subsidiary protection.
Art. 15 contain three different criteria where criteria 15(c), which is relevant for the case at issue, states that serious harm consist of serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Considering the wording of the provision, eligibility of subsidiary protection is thereby conditional of indiscriminate violence due to an armed conflict, wherefore the interpretation of internal armed conflict will affect asylum seekers directly.
Hermeneutical coherence
Since the Directive lacks a definition of the meaning of internal armed conflict the French, German and Belgium governments submitted that the interpretation must be in conformity with the interpretation of non-international armed conflict in IHL, to avoid the creation of two different definitions binding upon the member states. Furthermore, the German government held that an interpretation that is coherent with an international treaty, that is binding upon the member states, fulfill the requirement for the purpose of establishing a common definition within the member states.
Advocate General Mengozzi recognized in his opinion, the Union’s obligation to respect international law in accordance with art. 3(5) TEU and the importance of considering a conform interpretation of Union Law in relation to international law (see to that effect Poulsen and Diva Navigation, Kadi and Al Barakaat). AG Mengozzi continued however, stating that it is not established that the Union is obligated to a conform interpretation of treaties which it is not a party to, such as the Geneva conventions, and held that in any case the principle of conform interpretation is not applicable if there is no hermeneutical coherence between the respective provisions.
According to AG Mengozzi, the aim and purpose of Directive 2004/83 is essentially different to the common art. 3 of the Geneva Conventions. This reasoning was later followed by the CJEU in its decision where the Court emphasized on the fact that IHL is designed to be applicable for the protection of civilians within a conflict zone, where by contrast, the Directive is applicable for the protection of civilians outside the conflict zone and outside the territory of the conflicting parties. The CJEU also mentioned the direct link between International Humanitarian Law and International Criminal Law as a clear distinctive feature from Union law. By putting focus on the different features and aims of art. 3 of the Geneva Conventions in relation to the art. 15(c) of Directive 2004/83 the Court concluded that it is not possible to condition the eligibility of subsidiary protection to the definition of non-international armed conflict in international humanitarian law.
Definition of internal armed conflict
The CJEU then continued with the aim of subsidiary protection, focusing on the purpose to complement and add protection to persons seeking international protection from a de facto threat. The Court held that in the light of the purpose of the provision it is unnecessary to state material and objective conditions, such as the length of the conflict or to which level the armed forces are organized, to the definition of internal armed conflict,
Rather the Court submitted that it is sufficient that the applicant must be able to show, with a substantial ground, that the violence is of such nature that the mere presence of the applicant would bring the threat to the fore. Following that reasoning the more an applicant can show that particular and personal circumstances affect its case, the lower the level of indiscriminate violence objectively is needed to fall within the scope of subsidiary protection. Consequently, the CJEU ruled that it is not necessary, for internal armed conflict to be defined as a non-international armed conflict as stipulated in international humanitarian law, to give rise for subsidiary protection within the EU.
Effects
The decision could be viewed as an elaboration of the CJEU’s case law on the relationship between EU law and international law, a symbol for the tendency of fragmentation of the different legal orders. A decision in line with Kadi and Al Barakaat, putting emphasize to the Union’s and the Court’s autonomy in relation to international treaties that the member states are parties to, but which the Union have not ratified. It seems however that the lack of hermeneutical coherence is the trigger point in this case and that the decision does not affect the principle of conform interpretation.
As AG Mengozzi mentions, the provisions of the Geneva Conventions are not binding due to the written agreement, rather as Mengozzi indicates, the provisions are a part of customary international law reflected in the agreement and could therefore be binding not only to the member states but also to the Union. The CJEU does not reject this line of argumentation, wherefore the principle implications of Diakité concerning the relation between IHL and Union law, cannot be drawn further than that to recognize the different features, purpose and applicability of art. 2 in conjunction with art. 15(c) Directive 2004/83 in relation to the common art. 3 of the Geneva Conventions and complementary Protocol II.
For the matter of the substantive interpretation of internal armed conflict, the decision increases the protection for civilians, without refugee status seeking international protection, since the definition of internal armed conflict is made conditional to de facto risk of serious violence rather than formal conditions as stipulated within the definition of protocol II to the Geneva Conventions.
The decision puts an obligation on member state authorities to consider whether conflicts, with less intensity and organization than those included in the definition in IHL, can put to the fore a real threat of suffering serious harm for civilians. Furthermore, the decision introduces a more flexible way of identifying persons in need of international protection and broadens the scope of art. 15(c). A broader and more flexible scope however, might lead to a bigger leeway within member states’ domestic implementation and a subjective test might increase the burden of proof on the asylum seeker.
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