Belgium – Council for Alien Law Litigation, 23 October 2008, Nr. 17.522

Country of Decision:
Country of Applicant:
Date of Decision:
23-10-2008
Citation:
Nr. 17.522
Additional Citation:
Published in: T. Vreemd. 2009, nr. 2, 14; Rev. dr. étr., 2008, nr. 150, p. 511
Court Name:
Council for Alien Law Litigation
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Headnote: 

This case concerned the definition of an “internal armed conflict.” Relying on international humanitarian law and in particular on the Tadic decision of the International Criminal Tribunal for the former Yugoslavia (ICTY), the CALL defined  an “internal armed conflict” as continuous conflict between government authorities and organised armed groups, or between such groups within a State. The Call also found that a ceasefire did not necessarily mean that such a conflict had ended.

Facts: 

The applicant, a Burundian national, lodged an appeal against a decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refusing to grant him refugee or subsidiary protection status. With regard to the subsidiary protection claim, the CGRS had reasoned that, given the May 2008 ceasefire that had been signed, the situation in Burundi could no longer be considered as an “internal armed conflict.”

Decision & Reasoning: 
The debate before the CALL mainly concerned the definition of “internal armed conflict” and the factors that need to be considered in order to determine when such a conflict ceases.

In order to define the concept of “internal armed conflict”, the CALL relied on international humanitarian law (as neither the Belgian Alien Law nor the travaux préparatoires of that law provide a definition), and in particular on the Tadic decision of the ICTY and proposed the following definition:

“a continuous armed conflict between government authorities and organised armed groups, or between such groups within a State.”

Further relying on Tadic, the CALL ruled that “international humanitarian law continues to apply until a peaceful settlement is achieved, whether or not actual combat takes place there.” For the CALL a ceasefire does not suffice, but it is required that the fighting parties give “tangible and unambiguous signals of disarmament, bringing about a durable pacification of the territory”. Based on that definition the CALL decided that it was premature to conclude that the May 2008 ceasefire had ended the conflict in Burundi. The situation in Burundi was still to be considered as an internal armed conflict.

The CALL further examined the other conditions that must be fulfilled: indiscriminate violence, serious threat to a civilian’s life or person, and a causal link between the two. With regard to “indiscriminate violence,” the CALL referred to its earlier case law, in which it had defined the concept as: “indiscriminate violence that subjects civilians to a real risk to their lives or person even if it is not established that they should fear persecution on the basis of their race, religion, nationality, their belonging to a particular social group, or their political opinions in the sense of Art 1(A)(2) of the 1951 Refugee Convention.”

For the CALL it therefore needed to be established that there was, in a situation of armed conflict, “endemic violence or systematic and generalised human rights violations.” In the case at hand the CALL found that those conditions were met.
 
Outcome: 

The decision of the CGRS was overruled and the applicant was granted subsidiary protection.