Netherlands - AJDCoS, 20 July 2007, 200608939/1
| Country of Decision: | Netherlands |
| Country of applicant: | Kosovo |
| Court name: | Administrative Jurisdiction Division of the Council of State |
| Date of decision: | 20-07-2007 |
| Citation: | 200608939/1 |
Keywords:
| Keywords |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
The question as to whether or not an armed conflict existed has to be answered according to humanitarian law (common Art 3 of the Geneva Convention and the second additional protocol).
Facts:
Decision & reasoning:
The Council of State held that the concept of ‘internal armed conflict’ is not defined in the Qualification Directive and so they applied international humanitarian law and found that such a conflict exists when: an organised armed group with a command responsibility is able to conduct military operations on the territory of a state (or a part thereof) against the armed forces of the state authorities. These military operations must be protracted and connected. It was further held that less serious forms of violence, such as internal disturbances and riots or acts cannot lead to the conclusion that such a conflict existed.
Outcome:
The appeal was allowed.