Germany – Federal Administrative Court, 24 November 2009, 10 C 24.08

Facts:

The applicant is a Russian citizen from Chechnya. He applied for asylum in Germany in June 2001. In his procedure he stated that he had been a member of the Chechen security service between 1996 and 1999 and a member of a group of Chechen rebels between 1999 and 2001. He claimed that Russian security forces had destroyed his house when searching for him and his mother had died of a heart attack in the incident. Following this he had been advised by his brother to leave the country as he had been weary of the war.

His application for asylum was rejected by the German authorities in July 2001. An appeal to the Administrative Court of Wiesbaden was rejected in October 2004. Upon a further appeal the High Administrative Court of Hesse (3 UE 411/06.A) decided on 24 April 2008 that the applicant was entitled to refugee status on the grounds that he was at risk of human rights violations by the Russian authorities which could not be justified by the legitimate aim of fighting terrorism. Although the applicant had admitted to having participated in the killing of Russian soldiers, the High Administrative Court found that there were no grounds for exclusion from refugee status as the killings were part of combat missions which had been directed against combatants and not against civilians.

The High Administrative Court granted leave for a review (“Revision”) of its decision because of the basic significance of the legal case (Section 132 I Verwaltungsgerichtsordnung/ Code of Administrative Court Procedure).

Decision & reasoning:

1. The High Administrative Court's findings on the risk of persecution, on the applicability of Art 4.4 of the Qualification Directive, and on the non-applicability of Art 8 of the Qualification Directive (internal protection alternative) are not met with objections from the Federal Administrative Court.

2.The High Administrative Court's interpretation of the term “war crime” is insufficient. Section 3 II of the German Asylum Procedure Act defines crimes against peace, war crimes and crimes against humanity as acts “within the meaning of international instruments drawn up for the purpose of establishing provisions regarding such crimes”. This reveals a dynamic approach which takes into account advancements of international criminal law. Accordingly, a definition of war crimes or crimes against humanity must be based on the ICC Statute which represents the current state of international criminal law.   

The High Administrative Court correctly assumed that the mere participation of the applicant in the Second Chechen war did not fulfil the criteria of a war crime or a crime against peace. However, the High Administrative Court had only referred to the civilian population as potential victims of war crimes. This approach is too narrow as Art. 8 II (c) of the ICC Statute includes crimes against members of armed forces who have laid down their arms of who have been placed hors de combat (“outside the fight”). Art 8 II (e) no. ix-xi of the ICC Statute also aims to protect combatants against treacherous killing or wounding and other acts. The High Administrative Court has failed to examine whether there is any evidence for the existence of such elements of crime.

Furthermore, the High Administrative Court has only relied on the statements of the applicant and of his relatives. The High Administrative Court itself has pointed to the existence of terrorist attacks and massive rights violations by Chechen rebels in the course of the Second Chechen war. This evidence requires at least an attempt at a clarification whether other sources indicate that the group of rebels to which the applicant belonged may be suspected of having been involved in abuses which might be classified as war crimes.   Exclusion grounds take effect if there are serious reasons which justify the assumption that the constitutive elements for exclusion exist. It is not necessary that the existence of these elements is established with absolute certainty.

Concerning the definition of a serious non-political crime (under Section 3 II of the Asylum Procedure Act and Art 1F of the 1951 Refugee Convention respectively) the High Administrative Court's interpretation of the norm does not give cause for objections. However, the facts of the case have not been established in a sufficient manner to fulfil the requirements of this provision.

Not every criminal act is a sufficient reason for exclusion from refugee status. First of all, the crime has to be a serious one under international (not local) standards. Accordingly, the crime must be either a capital crime or another crime that is defined as extraordinarily serious in most legal systems. At the same time, it must be non political. This is the case if the crime is committed for reasons such as personal motivations or greed. A crime also has to be classified as non political, if there is no clear connection between the crime and the alleged political goal or if it is disproportionate to the alleged political goal. In particular, German law defines cruel acts as serious non political crimes even if they supposedly pursue political aims (according to Art 12.2 (b) of the Qualification Directive). As a rule, this applies to acts of violence which are commonly defined as “terrorist” acts.

Historically, the exclusion ground of war crimes on the one hand and of “common” crimes on the other hand are based on different sources and were applied to different settings (acts committed at war time and in peace time respectively). However, this does not lead to the conclusion that the two exclusion grounds should be considered to be mutually exclusive, for serious non political crimes can also be committed by combatants in an armed conflict. An internal armed conflict and the corresponding rules and sanctions of international humanitarian law have an impact on the standards of proportionality of certain acts. If, for example, the killing of combatants in a combat operation does not constitute an element of a war crime and is not punishable under international law, then it would be contradictory if the same act would automatically result in the exclusion from refugee status on the grounds of being classified as a serious non-political crime. As a rule, combat operations executed by combatants in an internal armed conflict which do not constitute crimes against peace, war crimes or crimes against humanity (under Section 3 II (1) (1) of the German Asylum Procedure Act), will also not constitute the exclusion ground of a serious non-political crime.

Therefore, there are no objections against the High Administrative Court's approach according to which the killing of Russian soldiers in the course of combat operations of Chechen combatants does not as such constitute a serious non-political crime. However, in this regard also, the High Administrative Court has not based its decision on a sufficient foundation of facts.

3. As the High Administrative Court has not sufficiently established the facts which have to be considered relevant for the exclusion grounds, the Federal Administrative Court cannot come to a conclusion whether the applicant is entitled to refugee status or not. The matter therefore has to be referred back to the High Administrative Court.

Outcome:

The case was referred back to the High Administrative Court. As at June 2011, a new decision of the High Administrative Court had not become known.

Observations/comments:

An English Translation (commissioned by the Federal Administrative Court, but not officially authorised) is available at:
http://www.bverwg.de/enid/276c858cf16ce79b63948f657e07d63f,0/Decisions_in_Asylum_and_Immigration_Law/BVerwG_ss__C_24__8_ma.html

Other sources:

Takkenberg/Tahbaz, The collected Travaux Préparatoires of the 1951 Geneva Convention relating to the Status of Refugees, published by the Dutch Refugee Council under the auspices of the European Legal Network on Asylum, Amsterdam 1989

Münchener Kommentar zum Strafgesetzbuch, Band 6/2, 2009