Germany - Federal Administrative Court, 24 June 2008, 10 C 43.07

Country of Decision:
Country of Applicant:
Date of Decision:
24-06-2008
Citation:
10 C 43.07
Additional Citation:
asyl.net/ M13877
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Fourth Geneva Convention 1949
Fourth Geneva Convention 1949 - Art 3
Additional Protocol II 1977
Additional Protocol II 1977 - Art 1(1)
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Headnote: 

This case concerns the definition of the term “internal armed conflict” within the meaning of Art 15 (c) of the Qualification Directive:

  1. When defining the term “international or internal armed conflict” as set out in Art 15 (c) of the Qualification Directive one has to take into account international law, in particular the four Geneva Conventions on International Humanitarian Law of 12 August 1949 and the Additional Protocols of 8 June 1977.
  2. An internal armed conflict within the meaning of Art 15 (c) of the Qualification Directive does not necessarily have to extend to the whole territory of a state.
  3. An examination of the requirements for subsidiary protection under Art 15 (c) of the Qualification Directive is not precluded if the authorities have issued a general “suspension of deportation”.
Facts: 

The applicants were a married couple from Iraq and of Kurdish ethnicity. They applied for asylum in Germany in 1996 and 1999 respectively, and were granted refugee status in 1996 and 2001 respectively. In April 2005 the Federal Office for Migration and Refugees revoked the refugee statuses of both applicants because the circumstances which led to the recognition of refugee status had ceased to exist. Furthermore, the Federal Office found that a “prohibition of deportation” under Section 60 (2) to (7) of the Residence Act did not apply.

The Administrative Court of Munich annulled the revocation of refugee status in August 2005. The High Administrative Court of Bavaria in turn annulled the lower court's decision and upheld the Federal Office's revocation on 1 February 2007 (on the findings of the High Administrative Court, cf. below). The High Administrative Court granted leave for a further appeal (“Revision”) to the Federal Administrative Court because of the fundamental significance of the legal case.

Decision & Reasoning: 

It was decided that:

1. Art 15 (c) of the Qualification Directive had been implemented in German law as a “prohibition of deportation” under Section 60 (7) Sentence 2 of the Residence Act. In spite of slightly divergent wording the German provision conformed to the standards of Art 15 (c) of the Qualification Directive.

Concerning the situation in Iraq, the High Administrative Court had found that these standards were not fulfilled as there was no countrywide armed conflict taking place in Iraq. In doing so, the High Administrative Court had set the standards for the definition of an armed conflict too high.

When defining the term “international or internal armed conflict” one has to take into account international law, i.e. first and foremost the four Geneva Conventions on International Humanitarian Law of 12 August 1949. Furthermore, for the term “internal armed conflict” there is a more specific definition in Art 1 of the Second Additional Protocol of 8 June 1977. According to Art 1.1 of the Second Additional Protocol an internal armed conflict within the meaning of international law takes place if “dissident armed forces or other organised groups [...], under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” In contrast, Art 1.2 of the Second Additional Protocol excludes “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” from the definition of an armed conflict.

Internal crises which fall in between these two definitions must not be excluded out of hand from fulfilling the standards of Art 15 (c) of the Qualification Directive. However, the conflict has to be marked by a certain degree of intensity and duration. Typical examples are civil wars and rebel warfare. It is not necessary here to come to a definite conclusion whether the parties to the conflict have to be as organised as the Geneva Conventions of 1949 stipulate. In any case, a definition based on the criteria of international law has its limits if it contradicts the purpose of providing protection under Art 15 (c) of the Qualification Directive. On the other hand, this does not imply that a “low intensity war” satisfies the criteria for an internal armed conflict within the meaning of Art 15 (c) of the Qualification Directive. 

The High Administrative Court was not justified in assuming that the existence of a countrywide conflict is a precondition for the granting of protection under Art 15 (c) of the Qualification Directive. In contrast, an internal armed conflict may also take place, if its requirements only exist in a part of a state's territory. Accordingly, the law assumed that an internal protection alternative may be relevant for the determination of a prohibition of deportation under Section 60 (7) Sentence 2 of the Residence Act. This makes clear that an internal armed conflict does not need to take place in the whole territory of a country. Furthermore, Art 1 of the Second Additional Protocol also states that armed groups have to carry out their activities in “part of [the] territory”.

2. The High Administrative Court's also negated a prohibition of deportation under Section 60 (7) Sentence 2 of the Residence Act on the ground that the applicants had access to internal protection in other parts of Iraq. This is also not compatible with Federal Law, as this finding was not based on a sufficient basis of facts. First, the High Administrative Court had not identified regions in Iraq which may be considered as relevant for an internal protection alternative. Secondly, the High Administrative Court had not established whether the applicants could reasonably be asked to take up residence in other parts of Iraq considering the general situation in those parts and the individual circumstances of the applicants.

3. In addition, the High Administrative Court had argued that subsidiary protection in accordance with the Qualification Directive could not be granted since the Bavarian Ministry of Interior had generally suspended deportations of Iraqi citizens from 2003 onwards. According to the High Administrative Court the Ministry of Interior's directives offer “comparable protection against the general risks connected with an armed conflict” and therefore an examination of the preconditions of subsidiary protection was excluded under Section 60 (7) Sentence 3 of the Residence Act.

Indeed, Section 60 (7) Sentence 3 of the Residence Act states that risks to which the population or segments of the population are “generally exposed” shall receive due consideration in decisions by the supreme authorities of the Federal States to suspend the deportation of foreigners (for a period of six months). However, in order to achieve compliance with the Qualification Directive this provision has to be interpreted as not applying to cases in which the requirements for the granting of subsidiary protection under Art 15 (c) of the Qualification Directive are met. This is a result of Art 24.2  of the Qualification Directive according to which beneficiaries of subsidiary protection are in principle entitled to a residence permit. However, a suspension of deportation by the supreme authorities of the Federal states results only in a “toleration” of stay (“Duldung”). It would not be in compliance with the Directive, if a foreigner, who is entitled to subsidiary protection under Art 15 (c) of the Qualification Directive is only granted a “Duldung” instead of a residence permit. Therefore, the examination of the requirements of Art 15 (c) must not be excluded in situations of a general suspension of deportations.

As the High Administrative Court's findings on the necessary criteria under Art 15 (c) of the Qualification Directive were not adequate, the case was referred back. If the High Administrative Court comes to the conclusion that an internal armed conflict is taking place in Iraq either countrywide or in parts of the country (e.g. the applicants’ region of origin), the court will have to examine whether the applicants, as members of the civilian population, face a substantial individual risk to life and limb.

The characteristics of such a substantial individual risk are equivalent to the characteristics of a “serious and individual threat to a civilian's life or person” under Art 15 (c) of the Qualification Directive. For an examination of these criteria it is necessary to establish whether general risks (to which most civilians are exposed in an armed conflict) cumulate in the applicant as to pose a substantial individual risk. This Court assumed that such accumulation may take place and therefore a general risk in an armed conflict may under certain circumstances be sufficient to fulfil the criteria of Art 15 (c) of the Qualification Directive. The exact requirements for this would have to be clarified by the European Court of Justice (cf. the pending preliminary reference from the Dutch Raad van State, C-465/97).

In examining a potential substantial individual risk to life and limb the High Administrative Court will also have to take into account that the risk must result from “indiscriminate violence”. This requirement of Art 15 (c) is not explicitly referred to in Section 60 (7) Sentence 2 of the Residence Act. Nevertheless, the Government's Explanatory Memorandum to the Residence Act makes clear that this provision is modelled on Art 15 (c) of the Qualification Directive. The definition of “indiscriminate violence” is a matter of doubt in the context of European law. In the end it has to be clarified by the European Court of Justice. If the High Administrative Court finds that a clarification of this term is essential for the case at hand, it will have to permit a further appeal (Revision) to this Court in order to pave the way for a preliminary reference to the European Court of Justice.

Outcome: 

The case was remanded to the High Administrative Court of Bavaria.

Observations/Comments: 

An English Translation (commissioned by the Federal Administrative Court, but not officially authorised) is available at:
http://www.bverwg.de/enid/3e5b820bde28769825439f3abdbb540c,0/Decisions_i...

Other sources cited: 

Reinhard Marx, Handbuch zur Flüchtlingsanerkennung – Qualifikationsrichtlinie, 2006.

Wolfgang Graf Vitzhum, ed. Völkerrecht, 4th ed. 2007.

Case Law Cited: 

Germany - High Administrative Court Schleswig-Holstein, 21 November 2007, 2 LB 38/07

ICTY - Prosecutor v Haradinaj et al. (No. IT-04-84-T)

UK - KH (Iraq) CG [2008] UKIAT 00023