Germany - Federal Administrative Court, 16 February 2010, 10 C 7.09

Country of Decision:
Country of Applicant:
Date of Decision:
16-02-2010
Citation:
10 C 7.09
Additional Citation:
asyl.net/M17021
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Fourth Geneva Convention 1949
Fourth Geneva Convention 1949 - Art 3
Additional Protocol I 1977
Additional Protocol I 1977 - Art 37
Additional Protocol I 1977 - Art 44
Additional Protocol II 1977
Additional Protocol II 1977 - Art 13
Rome Statute of the ICC
Rome Statute of the ICC - Art 31
Rome Statute of the ICC - Art 8
Rome Statute of the ICC - Art 8.2
Rome Statute of the ICC - Art 8.2(c)(iii)
Rome Statute of the ICC - Art 8.2(e)(ix)
Rome Statute of the ICC - Art 9
Rome Statute of the ICC - Art 25
Printer-friendly versionPrinter-friendly versionPDF version of SummaryPDF version of Summary
Headnote: 

This case concerns exclusion from refugee status due to the alleged participation of a civilian in war crimes. It was found that an act committed by a civilian can be a war crime if this act is connected to an armed conflict. In the course of an internal armed conflict, war crimes can be directed not only against the civilian population but also against combatants of the opposing party.

Facts: 

The applicant is a Russian citizen from Chechnya. He applied for asylum in 2002. According to his statements in the asylum procedure he got involved with the armed conflict in Chechnya after his brother was arrested by Russian security forces in a raid in the spring of 2002. In order to obtain his brother's release, he and a Chechnyan resistance fighter attacked three Russian soldiers in a marketplace, killing two of them and taking the third hostage. The hostage was later exchanged for his brother.

The Federal Office for Migration and Refugees rejected the asylum application in 2003, on the grounds that it considered the applicant's statements implausible. On appeal, the Administrative Court Magedeburg annulled the Federal Office's decision in June 2005, ruling that the applicant was entitled to refugee status.

This decision in turn was challenged by the “Federal Commissioner for Asylum Matters” (the now defunct “Bundesbeauftragter für Asylangelegenheiten”). The High Administrative Court of Saxony-Anhalt upheld the Administrative Court's decision in November 2008 on the grounds that the applicant was at risk of politically motivated persecution because the Russian authorities would consider him to be a member of the resistance movement in Chechnya. The High Administrative Court did not see sufficient reason to exclude the applicant from refugee status as his acts had not been directed against civilians and therefore could not be classified as war crimes. Furthermore, these acts did not constitute serious non‑political crimes as they were not comparable with “classic terrorist” acts such as bomb attacks or the hijacking of planes. 

Following a request from the German authorities a review (“Revision”) of the High Administrative Court's decision was granted by the Federal Administrative Court because of the significance of the case.

Decision & Reasoning: 

1) The court did not object to the High Administrative Court's reasoning that the applicant was at risk of persecution within the meaning of the refugee definition. It had been sufficiently established that the applicant was facing a risk of disproportionate or discriminatory criminal prosecution as the Russian authorities would suspect him of being a supporter of the Chechen resistance.

2) However, the High Administrative Court's conclusion that there were no reasons for an exclusion from refugee status in the present case, was not upheld by the Federal Administrative Court. Therefore, the matter had to be referred back to the High Administrative Court. The High Administrative Court was asked to give due consideration to the following aspects:

a) It can be assumed that the situation in Chechnya constitutes an internal armed conflict, at least for the relevant period of the so-called “Second Chechen War”.

b) Although the applicant most likely has to be considered a civilian, this does not rule out the possibility that he could be the perpetrator of a war crime under Art. 8.2 of the International Criminal Court (ICC) Statute. This article only defines the acts which constitute war crimes and who may be a relevant victim, however, it does not offer a definition of the group of perpetrators. According to the decisions of the international criminal courts and to other sources on international law, a civilian can be a perpetrator of war crimes as a matter of principle. However, there has to be a functional connection (“sufficient nexus”) between the act and the armed conflict. A connection between the perpetrator and one of the conflicting parties may serve as an indicator of the existence of such a functional connection, but it is not a necessary precondition. In the present case the applicant’s statements show strong indications that a sufficient connection between the act and the conflict existed.

c) It is possible that the two Russian soldiers who were killed, and the Russian officer who was taken hostage in the incident, can be considered as victims of a war crime.

However, it is unlikely that either the killings or the hostage taking constitute war crimes under Art 8.2 (c) (iii) of the ICC Statute as the applicant’s statements show no indications that the Russian combatants had laid down their arms or had expressly declared their surrender in the incident.

What the High Administrative Court had to examine thoroughly is the element of “killing or wounding treacherously a combatant adversary” under Art 8.2(e)(ix). The fact that both the applicant and the resistance fighter who accompanied him wore civilian clothes and initially hid their arms might indicate that this element may be fulfilled. Another indicator could be that the soldiers had turned their back to the applicant when they were attacked.

3) Furthermore, the High Administrative Court's reasoning that the concept of “non-political serious crime” as a ground for exclusion does not apply as it is not based on sufficient evidence. The High Administrative Court had classified the applicant's act as “political” without sufficiently establishing the political motivation. However, according to the facts as they were presented to date, there are strong indications that the applicant had committed a serious (non-political) crime.

The High Administrative Court should also take into consideration the fact that the Federal Administrative Court considered possible further grounds for the exclusion of the applicant based on serious non-political crime (risk of recurrence, proportionality) as being in need of clarification. Therefore, it referred several questions on Art 12.2(b) of the Qualification Directive (Directive 2004/83/EC) to the European Court of Justice for preliminary rulings.

Outcome: 

The case was referred back to the High Administrative Court of Saxony-Anhalt. A new decision by the High Administrative Court was not known as of May 2011.

Observations/Comments: 

Case availabe at http://www.asyl.net/fileadmin/user_upload/dokumente/17021.pdf

An English Translation (commissioned by the Federal Administrative Court, but not officially authorised) is available at:
http://www.bverwg.de/enid/Decisions_in_Asylum_and_Immigration_Law/BVerwG...

Other sources cited: 
Case Law Cited: 

Germany - Federal Administrative Court, 14 October 2008, 10 C 48.07

Germany - Federal Administrative Court, 25 November 2008, 10 C 46.07

ICTR - Georges Anderson Nderubumwe Rutaganda v. The Prosecutor (Appeal Judgement), ICTR-96-3-A, 26 May 2003

ICTY - Prosecutor v. Zlatko Aleksovski (Trial Judgement), IT-95-14/1-T, 25 June 1999