Belgium – Council for Alien Law Litigation, 23 October 2008, Nr. 17.522
Keywords:
| Keywords |
|
Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
|
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. |
|
Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
This case concerned the definition of an “internal armed conflict.” Relying on international humanitarian law and in particular on the Tadic decision of the International Criminal Tribunal for the former Yugoslavia (ICTY), the CALL defined an “internal armed conflict” as continuous conflict between government authorities and organised armed groups, or between such groups within a State. The Call also found that a ceasefire did not necessarily mean that such a conflict had ended.
Facts:
The applicant, a Burundian national, lodged an appeal against a decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) refusing to grant him refugee or subsidiary protection status. With regard to the subsidiary protection claim, the CGRS had reasoned that, given the May 2008 ceasefire that had been signed, the situation in Burundi could no longer be considered as an “internal armed conflict.”
Decision & reasoning:
In order to define the concept of “internal armed conflict”, the CALL relied on international humanitarian law (as neither the Belgian Alien Law nor the travaux préparatoires of that law provide a definition), and in particular on the Tadic decision of the ICTY and proposed the following definition:
“a continuous armed conflict between government authorities and organised armed groups, or between such groups within a State.”
Further relying on Tadic, the CALL ruled that “international humanitarian law continues to apply until a peaceful settlement is achieved, whether or not actual combat takes place there.” For the CALL a ceasefire does not suffice, but it is required that the fighting parties give “tangible and unambiguous signals of disarmament, bringing about a durable pacification of the territory”. Based on that definition the CALL decided that it was premature to conclude that the May 2008 ceasefire had ended the conflict in Burundi. The situation in Burundi was still to be considered as an internal armed conflict.
The CALL further examined the other conditions that must be fulfilled: indiscriminate violence, serious threat to a civilian’s life or person, and a causal link between the two. With regard to “indiscriminate violence,” the CALL referred to its earlier case law, in which it had defined the concept as: “indiscriminate violence that subjects civilians to a real risk to their lives or person even if it is not established that they should fear persecution on the basis of their race, religion, nationality, their belonging to a particular social group, or their political opinions in the sense of Art 1(A)(2) of the 1951 Refugee Convention.”
For the CALL it therefore needed to be established that there was, in a situation of armed conflict, “endemic violence or systematic and generalised human rights violations.” In the case at hand the CALL found that those conditions were met.
Outcome:
The decision of the CGRS was overruled and the applicant was granted subsidiary protection.