Diakité: The CJEU interprets the concept of ‘internal armed conflict’ for the purpose of granting subsidiary protection under EU law

This article is to be read in conjunction with the EDAL Case Summary

Introduction

On 30 January 2014, the Court of Justice of the European Union (“CJEU”) issued a preliminary reference ruling in case C-285/12 Diakité concerning the interpretation of ‘internal armed conflict’ in the context of the subsidiary protection regime, established by Directive 2004/83/EC (“Qualification Directive“). The CJEU was asked to clarify whether the reference to ‘internal armed conflict’ in the context of EU asylum law, must be read independently from the definition used in international humanitarian law (“IHL”) and, if so, which criteria must be met for a situation to amount to an ‘internal armed conflict’.

Facts of the case

The case concerns a Guinean national, Mr Aboubacar Diakité, who applied for asylum in Belgium in 2008, arguing that he had been the victim of acts of violence in Guinea, following his participation in protest movements against the ruling regime.

According to Article 2(e) of the Qualification Directive, a person is eligible for subsidiary protection if there exist ‘substantial grounds for believing that’, if returned to their country of origin, an applicant faces a ‘real risk of suffering serious harm’. ‘Serious harm’ includes death, inhuman treatment, or a ‘serious and individual threat to a civilian's life … by reason of indiscriminate violence in situations of international or internal armed conflict’ (Article 15).

The Applicant’s claim for subsidiary protection based on the Qualification Directive was however refused, as the Commissariat général aux réfugiés et aux apatrides had determined that the situation in Guinea did not amount to an ‘armed conflict not of an international character’ under Belgian asylum law, reflecting IHL. The Applicant appealed to theConseil d’Etat, arguing that, as he had sought protection under EU law, the concept of ‘internal armed conflict’ should be examined according to its meaning under EU law, regardless of IHL.

The Conseil d’Etat consequently sought clarification as to the concept of ‘internal armed conflict’ as referred to in Article 15(c) of the Qualification Directive, referring the following questions to the CJEU for a preliminary ruling:

1.            ‘Must Article 15(c) be interpreted as meaning that that provision offers protection only in a situation of “internal armed conflict”, as interpreted by international humanitarian law, and, in particular, by reference to Common Article 3 of the four Geneva Conventions […]?

2.            If the concept of ‘internal armed conflict’ referred to in Article 15(c) is to be given an interpretation independent of Common Article 3 of the four Geneva Conventions […], what, in that case, are the criteria for determining whether such an “internal armed conflict” exists?’

The ruling of the CJEU

The CJEU held that, on a proper construction of Article 15(c) of the Qualification Directive, “it must be acknowledged that an internal armed conflict exists, for the purposes of applying that provision, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as ‘armed conflict not of an international character’ under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict”.

Analysis and commentary

Eligibility criteria for subsidiary protection

Even though the CJEU already provided interpretive guidance in case C-465/07 Elgafaji as to the requirements contained in Article 15(c), it did not provide an explicit definition of the concept of ‘internal armed conflict’ under EU law, as it was not an issue to be addressed in the case. The CJEU did, however, clarify in that case that an armed conflict was to be “characterised by the presence of indiscriminate violence i.e. the indiscriminate violence must reach such a high level that it shows substantial grounds for believing a person returned to the relevant country or region faces a real risk of being subjected to the serious threat referred in Article 15(c).”

In Diakité, the CJEU was for the first time asked to clarify the meaning of ‘internal armed conflict’ under EU law. Before setting out the parameters of ‘internal armed conflict’ under EU law it is useful to grasp its meaning under IHL.

Concept of internal armed conflict under international law

The aim of IHL is to ‘humanise’ warfare by means of limiting human suffering caused by armed conflict, i.e. requiring conflicting parties to strike a careful balance between concerns for humanity and military necessity. Non-international armed conflicts are defined in Common Article 3 to the four Geneva Conventions of 1949 (“GCs”) and Article 1 of Additional Protocol II to the Geneva Conventions (“APII”). The International Committee of the Red Cross stressed that frequently “[i]t can be rather difficult to determine whether a non-international armed conflict actually exists in a given situation”.

Common Article 3 does not provide a definition. However, various interpretations have clarified that a certain degree of intensity has to be reached, excluding less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry which remain to be governed by human rights law, Article 1 of APII provides a restrictive definition, requiring that non-governmental parties exercise territorial control and are under responsible command, excluding armed conflicts only between non-State armed groups.

Jurisprudence and Statutes of international criminal tribunals, e.g. the Tadic case before the International Criminal Tribunal for the Former Yugoslavia or the Statute of the International Criminal Court, have contributed to the interpretation and evolution of IHL, governing non-governmental armed conflicts. International criminal tribunals have provided independent definitions of the concept to fit their context and purpose, without, however, affecting the scope of Common Article 3 and Article 1 of APII. The context and purpose of IHL is strictly to regulate conduct and methods of warfare.

Does this mean that an independent definition of ‘internal armed conflict’ can also be adopted in the context of the subsidiary protection regime? Let us first examine how national courts and governments have defined the concept under the Qualification Directive. 

Divergent definitions of the concept of internal armed conflict at the national level

EU Member States have – since the entry into force of the Qualification Directive – been confronted with the need to interpret the concept of ‘internal armed conflict’ when granting subsidiary protection status on the basis of Art. 15(c).

There is great divergence between States’ interpretations of ‘internal armed conflict’, in particular reflected in asylum appeals decisions when courts had to comment on the classification of the situation in Iraq.

The UK, Germany and Sweden – among other EU Member States – have provided insight  into the establishment of parameters on how ‘internal armed conflict for the purpose of granting subsidiary protection’ has been defined, demonstrating that national courts have distanced themselves from the concept under IHL.

In Sweden, national courts and Swedish legislation define ‘internal armed conflict’ restrictively, drawing on public international law (GCs and APII), requiring persons applying for subsidiary protection to prove a level of organisation and territorial control by armed groups’, in addition to violence reaching a certain degree of intensity, affecting the civilian population.

The UK has adopted a less restrictive interpretation. Lord Justice Sedley emphasised in QD (Iraq) the different objectives of IHL and the EU’s subsidiary protection regime, legitimising “an autonomous meaning [of ‘internal armed conflict’]broad enough to capture any situation of indiscriminate violence, whether caused by one or more armed factions or by a state, which reaches the level described by the ECJ in Elgafaji” (para. 35). UNHCR pointed out in its submissions to the Court of Appeal that there is no settled definition of ‘internal armed conflict’ in IHL, thus “IHL is informative but Article 15(c) is not tied to IHL definitions. [… A] persistent violent conflict or insurgency which is of unpredictable duration and is of an intensity which gives rise to a real risk of a threat of serious harm should be within Article 15(c)” (para. 38-39). A definition differing from that under IHL will therefore not deprive IHL “of any contour” or render “it virtually superfluous”. The same interpretation has been adopted in Germany. The European Court of Human Rights (ECtHR) also held in Sufi and Elmi v UK that where substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to ill-treatment contrary to Article 3 of the European Convention on Human Rights (ECHR), regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two, as long as this violence rises to such intensity as to create such a real risk of ill-treatment. The ECtHR, however, clarified that such an individual exposure to indiscriminate violence will only be in the most extreme cases.

Autonomous concept of internal armed conflict for the purpose of subsidiary protection under EU law

In the same line as national courts, Advocate General (AG) Mengozzi in his Opinion in Diakité stresses that IHL and EU’s subsidiary protection regime pursue fundamentally different objectives and purposes. Reference to the travaux préparatoires of the Qualification Directive demonstrates that the notion of subsidiary protection status is based on international human rights law, in particular on Article 3 ECHR and Article 7 of the International Covenant on Civil and Political Rights (ICCPR), imposing on States, by means of a binding obligation, to provide international protection to persons that flee situations of generalised violence and insecurity; sending back such persons would otherwise result in a violation of Article 3 ECHR (paras. 63-65). The CJEU, which relied heavily on the AG’s reasoning in this case, states that IHL was designed “to provide protection for civilian populations in a conflict zone by restricting the effects of war on persons and property”. The CJEUcontinued clarifying that IHL was not designed to identify individuals in need of international protection, after the outbreak of a conflict, or to impose an obligation on States to protect those fleeing the conflict. Different from the close relationship between IHL and international criminal law – based on the trigger of individual criminal responsibility for certain breaches of IHL – such a relationship does not exist between IHL and the subsidiary protection regime.

The CJEU refers to its ruling in Elgafaji, emphasising that subsidiary protection is granted to all persons affected by “internal armed conflict, provided that such conflict involves indiscriminate violence”, regardless of criteria established by Common Article 3 and APII (para. 15). It reiterates that in an asylum context ‘internal armed conflict’ should be defined according to “its usual meaning in everyday language”, i.e. “a situation in which a State’s armed forces confront one or more armed groups or in which two or more armed groups confront each other. The CJEU holds that States’ appraisal when determining whether an internal armed conflict existed for the purpose of granting subsidiary protection should depend on involved armed forces’ “level of organisation”or the intensity and duration of the armed confrontation. In light of the object and purpose of the subsidiary protection regime, i.e. to protect a person from a risk of serious harm if returned to their country of origin in circumstances that fall outside the Refugee Convention, the CJEU concludes that, in accordance with the ordinary meaning of the term, an ‘internal armed conflict’ is deemed to exist, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other – without having to be classified as such under IHL. 

The CJEU therefore does not aim to change the meaning of the concept of ‘internal armed conflict’ under IHL; the concept rather serves the purpose of determining eligibility of a person for subsidiary protection status.

Conclusion

The CJEU has, therefore, interpreted the concept of ‘internal armed conflict’ in an EU asylum law context, autonomously. Consequently a lower burden of proof is imposed on applicants for subsidiary protection, as there is no need to prove an ‘internal armed conflict’, as it is understood in the context of IHL. The CJEU has rightly done so. As exemplified by the situation in Guinea – the conflict with which the CJEU was confronted in Diakité – even where situations do not amount to an ‘international armed conflict’, i.e. conflicts between two or more States, or to an ‘internal armed conflict’ in IHL terms, violence may, nevertheless, expose persons to serious human rights violations, on the basis of which they need to flee their country of origin or habitual residence. The EU has purposefully introduced the subsidiary protection regime in order to address those persons that would otherwise be left unprotected, thereby closing a ‘protection gap’.  Had the CJEU interpreted ‘internal armed conflict’ in line with IHL, such a high threshold would not only render protection granted under the Qualification Directive ‘illusionary’ and ‘ineffective’, but would also be incompatible with the aim of subsidiary protection.

It is true that an autonomous interpretation defeats the goal of ensuring so-called ‘synergies and close relationships’ between various areas of international law; however, any such criticism should be overshadowed by the need to provide access to international protection for persons fleeing human rights violations.

It is worth noting that the protection scheme provided by the EU’s Temporary Protection Directive, addressing mass influxes of persons falling within the Refugee Convention, persons fleeing ‘armed conflict or endemic violence’ and persons at serious risk of ‘systemic and generalised violations’ of their human rights, misses a reference to ‘internal armed conflict’, and, therefore, introduces an even lower standard of proof than that of the Qualification Directive.  

In the light of the entry into force of the recast Qualification Directive (Directive 2011/95/EU) on 21 December 2013, it is all the more important to avoid diverging interpretations of the concept of internal armed conflict, whether on a national or EU level, and to adopt a uniform approach within the EU, in line with the CJEU’s jurisprudence.

Almaz Teffera

Legal Assistant, European Council on Refugees and Exiles (ECRE)

(This journal entry is an expression of the author’s own views, and not those of EDAL or ECRE)

22 March 2014