Sweden - Migration Court of Appeal, 6 October 2009, UM8628-08

Country of Decision:
Country of Applicant:
Date of Decision:
06-10-2009
Citation:
MIG 2009:27
Court Name:
Migration Court of Appeal
National / Other Legislative Provisions:
Fourth Geneva Convention 1949
Fourth Geneva Convention 1949 - Art 3
Additional Protocol I 1977
Additional Protocol I 1977 - Art 1
Rome Statute of the ICC
Rome Statute of the ICC - Art 8.2(f)
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2
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Headnote: 

This case concerned the criteria that needed to be fulfilled in order to establish the existence of an internal armed conflict. It was held that in Somalia’s capital, Mogadishu, at the time of this decision, a state of internal armed conflict was found to exist without an internal protection alternative. The applicant was therefore considered in need of protection.

Facts: 

A Somali applicant from the Midgan clan residing in Mogadishu sought asylum in Sweden on the 9th July 2007. He based his claim on the general situation of violence in Mogadishu and also stated that his clan was unarmed and unable to protect its members. He was arrested in 2006 by the union of Islamic Courts and sentenced to whipping. His wife had also been a victim of attempted rape.

He was denied refugee status even though belonging to a clan was recognised as membership of a particular social group. It was found that the treatment he had suffered was not of an intensity that met the convention requirement, and he had not established that there was a likelihood he would be subjected to persecution on return.

The personal threat to him was not sufficient to grant asylum based on alternative protection grounds according to the Swedish Aliens  Act chapter 4 section 2 paragraph 1 (a well-founded fear of the death penalty or being subjected to corporal punishment, torture or other inhumane or degrading treatment or punishment).  Paragraph 2 states that protection can be granted in cases of an international or internal armed conflict or, because of other severe conflicts in the country of origin, when an applicant feels a well-founded fear of being subjected to serious harm.

(COMMENT: If a person is considered to be fleeing from an internal armed conflict then individual grounds do not have to be present. With respect to “other severe conflicts” on the other hand there must be a nexus between the individual risks feared and the severe conflicts that exist in the country of origin).

 
Decision & Reasoning: 

The Migration Court of Appeal noted that the Elgafaji decision stated that it is not an absolute requirement that threats must be specifically directed against the applicant based on personal circumstances. In situations of indiscriminate violence a person can, by his mere presence, run a risk of being exposed to serious threats.

Regarding internal armed conflict the Court noted that there is no clear definition of the concept in international humanitarian law. Neither the 1949 Geneva Conventions’ common article 3, nor the Additional Protocol (1977), contains a definition of the concept. However, the Protocol does state which non-international conflicts it applies to. These are conflicts that take place on the territory of a party to the convention between its own forces and rebellious armed groups or other organised groups who are under responsible leadership and who have control over part of its territory and can organise cohesive and coordinated military operations as well as implement the protocol. The protocol thus presumes that government forces participate in the conflict and also that the rebels have some territorial control. The International Red Cross drew conclusions in its paper “How is the term “armed conflict” defined in International Humanitarian Law?” March 2008, that it is an extended armed conflict between armed government forces and one or more armed groups or between such armed groups which occurs on the territory of a state. There must be a minimum level of intensity and the parties concerned must exhibit a minimum level of organisation.

Further guidance can be sought in the International Criminal Court (ICC) Yugoslav Tribunal case concerning ICTFY, Prosecutor v Dusko Tadic where the court stated that:

“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state”

From article 8:2 of the ICC it is clear that non-international conflicts are in focus and not situations that have arisen because of internal disturbances or tensions such as riots, individual or sporadic acts of violence or other such acts.

The Migration Court of Appeal concluded that an internal armed conflict cannot be precluded in a state solely on the grounds that the requirement in the protocol from 1977 for territorial control is not met. Nor can it be required that government forces are involved in the conflict since this would mean that persons from a failed state would not enjoy the same possibilities as others to seek international protection.

The Court concluded that an internal armed conflict within the meaning of the Swedish Aliens Act exists if the following conditions are fulfilled:

  1. The conflicts between sections of the population involve long drawn-out and on-going conflicts between armed government forces and one or more organised armed groups or between two or more such groups that struggle against each other.
  2. The conflict goes beyond what can be classified as domestic disturbances or sporadic or isolated violent actions.
  3. The violence must be indiscriminate and so serious that there are good grounds to assume that a civilian merely through his/her presence would run a real risk of being subjected to serious and personal threats to life or limb.
The Court then addressed the question: Can an internal armed conflict be declared in only a part of a country?
 
Reference was made to the German court decision (Bundesverwaltungsgericht/Federal Administrative Court, 24 June 2008, 10 C 43.07) which stated that an internal armed conflict can be present only in a part of a country if the criteria for armed conflict are fulfilled only there. Also in the Elgafaji case the CJEU used the locution “the region concerned.” The Court then considered whether an internal armed conflict can be limited to places that are normally not seen as regions or areas. In this context reference was made to the case UK case of HH & Others (Mogadishu: Armed Conflict: Risk) Somalia v. Secretary of State for the Home Department, CG [2008] UKAIT 00022 from January 2008 concerning Mogadishu.
 
The Tribunal concluded that the presence of an armed conflict depended mainly on the assessment of the actual circumstances at hand. The Tribunal also made a distinction between the area where the conflict took place and the question of within which area international humanitarian law was applicable (the wider area surrounding Mogadishu and the then TFG base in Baidoa). The UK decision was considered relevant as it is a legal authority in another country which is bound by the same international legal obligations as Sweden and for whom the same Community provisions apply. The UK decision held that it is possible and pertinent in legal terms to limit a geographical area for an internal armed conflict to the town of Mogadishu.

For the Migration Court of Appeal the population of Mogadishu, and not least its significant strategic role based on the most recent country of origin information, and the sharp decline in respect for human rights further support  this conclusion.

Regarding internal protection the Court noted that it is the responsibility of the first instance Migration Board to prove that there is an alternative. This has not been established by the Board and it is the opinion of the Court that no such alternative exists.
Outcome: 

The applicant therefore qualifies as a person in need of protection on alternative grounds because there is an internal armed conflict.

Observations/Comments: 

This decision contradicts an earlier decision by the Migration Court of Appeal in 2007 regarding the question of internal armed conflict in Iraq and expands the scope for protection. In the previous decision the requirement for territorial control was seen as paramount (see MIG 2007:30). A more recent decision has also established that internal armed conflict exists currently in the greater part of Somalia, bar Puntland and Somaliland.