Germany - Administrative Court Frankfurt/Main, 24 June 2011, 1 K 383/11.F.A
| Country of Decision: | Germany |
| Country of applicant: | Russia Russia (Chechnya) , |
| Court name: | Administrative Court of Frankfurt/Main |
| Date of decision: | 24-06-2011 |
| Citation: | 383/11.F.A |
| Additional citation: | asyl.net/M18711 |
Keywords:
| Keywords |
|
Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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War crimes
Description
"(a) Grave breaches of the Geneva Conventions of 12 August 1949, as defined in Article 8(2a) of the Rome Statute of the International Criminal Court; and (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, as defined in Article 8(2b) of the Rome Statute of the International Criminal Court." |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
A former Chechen fighter was not excluded from refugee status as active participation in the Second Chechen War in itself does not constitute a war crime. The clashes that have taken place in Chechnya since 1999 represent an internal armed conflict according to Art. 8 of the ICC Statute.
Facts:
The applicant is of Chechen ethnicity. He applied for asylum in September 2008. He stated that he had participated in the armed conflict until December 2007.
The authorities rejected the asylum application because the applicant was deemed not credible. They held that the applicant could relocate to other parts of the Russian Federation even if he had actually been subject to persecution in the Chechen Republic. The applicant appealed this decision.
Decision & reasoning:
The authorities' decision was annulled. The applicant was deemed eligible for refugee status.
Having examined the reports on the situation in Chechnya and on the Second Chechen War, the Administrative Court was convinced that the applicant’s statement was credible and that he fled from an imminent risk of being persecuted. Since the applicant was already under suspicion of the Russian security forces, he could not be expected to relocate to other parts of the Russian Federation. The Court found:
The applicant was not excluded from refugee status on the grounds of having committed war crimes or crimes against humanity. The conflict in Chechnya is an internal armed conflict according to the Statute of the International Criminal Court. Since the rebels' actions are not directed against the civilian population, they are not considered “crimes against humanity”. The fact that the applicant took part in hostilities is not sufficient to assume that he participated in war crimes within the meaning of Art. 8 of the ICC Statute, for example by participating in cruel or degrading treatment of combatants who were out of action. International criminal law and international humanitarian law do not penalise any use of force against the enemy. Even the looting of the opponent's military convoys with the aim of cutting off supply is compatible with international law of war, so is the capturing of enemy soldiers, even if they are to be used as hostages.
Neither the applicant’s statements, nor the Court's information on the military unit the applicant belonged to, indicated that he participated in crimes against humanity or terrorist acts.
Outcome:
The authorities were obliged to grant the applicant refugee status.
Subsequent proceedings:
Unknown
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Rome Statute of the ICC |
| Rome Statute of the ICC - Art 8 |
| Rome Statute of the ICC - Art 7 |
| Rome Statute of the ICC - Art 8.2 (c) |
| Rome Statute of the ICC - Art 8.2 (e) |
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 24 November 2009, 10 C 24.08 |
| Germany - Federal Administrative Court, 6 February 2010, 10 C 7.09 |