Germany - Federal Administrative Court, 16 February 2010, 10 C 7.09
| Country of Decision: | Germany |
| Country of applicant: | Russia Russia (Chechnya) , |
| Court name: | Federal Administrative Court |
| Date of decision: | 16-02-2010 |
| Citation: | 10 C 7.09 |
| Additional citation: | asyl.net/M17021 |
Keywords:
| Keywords |
|
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”. |
|
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. |
|
Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
|
Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
|
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." |
|
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 concerns exclusion from refugee status due to the alleged participation of a civilian in war crimes. It was found that an act committed by a civilian can be a war crime if this act is connected to an armed conflict. In the course of an internal armed conflict, war crimes can be directed not only against the civilian population but also against combatants of the opposing party.
Facts:
The applicant is a Russian citizen from Chechnya. He applied for asylum in 2002. According to his statements in the asylum procedure he got involved with the armed conflict in Chechnya after his brother was arrested by Russian security forces in a raid in the spring of 2002. In order to obtain his brother's release, he and a Chechnyan resistance fighter attacked three Russian soldiers in a marketplace, killing two of them and taking the third hostage. The hostage was later exchanged for his brother.
The Federal Office for Migration and Refugees rejected the asylum application in 2003, on the grounds that it considered the applicant's statements implausible. On appeal, the Administrative Court Magedeburg annulled the Federal Office's decision in June 2005, ruling that the applicant was entitled to refugee status.
This decision in turn was challenged by the “Federal Commissioner for Asylum Matters” (the now defunct “Bundesbeauftragter für Asylangelegenheiten”). The High Administrative Court of Saxony-Anhalt upheld the Administrative Court's decision in November 2008 on the grounds that the applicant was at risk of politically motivated persecution because the Russian authorities would consider him to be a member of the resistance movement in Chechnya. The High Administrative Court did not see sufficient reason to exclude the applicant from refugee status as his acts had not been directed against civilians and therefore could not be classified as war crimes. Furthermore, these acts did not constitute serious non‑political crimes as they were not comparable with “classic terrorist” acts such as bomb attacks or the hijacking of planes.
Following a request from the German authorities a review (“Revision”) of the High Administrative Court's decision was granted by the Federal Administrative Court because of the significance of the case.
Decision & reasoning:
1) The court did not object to the High Administrative Court's reasoning that the applicant was at risk of persecution within the meaning of the refugee definition. It had been sufficiently established that the applicant was facing a risk of disproportionate or discriminatory criminal prosecution as the Russian authorities would suspect him of being a supporter of the Chechen resistance.
2) However, the High Administrative Court's conclusion that there were no reasons for an exclusion from refugee status in the present case, was not upheld by the Federal Administrative Court. Therefore, the matter had to be referred back to the High Administrative Court. The High Administrative Court was asked to give due consideration to the following aspects:
a) It can be assumed that the situation in Chechnya constitutes an internal armed conflict, at least for the relevant period of the so-called “Second Chechen War”.
b) Although the applicant most likely has to be considered a civilian, this does not rule out the possibility that he could be the perpetrator of a war crime under Art. 8.2 of the International Criminal Court (ICC) Statute. This article only defines the acts which constitute war crimes and who may be a relevant victim, however, it does not offer a definition of the group of perpetrators. According to the decisions of the international criminal courts and to other sources on international law, a civilian can be a perpetrator of war crimes as a matter of principle. However, there has to be a functional connection (“sufficient nexus”) between the act and the armed conflict. A connection between the perpetrator and one of the conflicting parties may serve as an indicator of the existence of such a functional connection, but it is not a necessary precondition. In the present case the applicant’s statements show strong indications that a sufficient connection between the act and the conflict existed.
c) It is possible that the two Russian soldiers who were killed, and the Russian officer who was taken hostage in the incident, can be considered as victims of a war crime.
However, it is unlikely that either the killings or the hostage taking constitute war crimes under Art 8.2 (c) (iii) of the ICC Statute as the applicant’s statements show no indications that the Russian combatants had laid down their arms or had expressly declared their surrender in the incident.
What the High Administrative Court had to examine thoroughly is the element of “killing or wounding treacherously a combatant adversary” under Art 8.2(e)(ix). The fact that both the applicant and the resistance fighter who accompanied him wore civilian clothes and initially hid their arms might indicate that this element may be fulfilled. Another indicator could be that the soldiers had turned their back to the applicant when they were attacked.
3) Furthermore, the High Administrative Court's reasoning that the concept of “non-political serious crime” as a ground for exclusion does not apply as it is not based on sufficient evidence. The High Administrative Court had classified the applicant's act as “political” without sufficiently establishing the political motivation. However, according to the facts as they were presented to date, there are strong indications that the applicant had committed a serious (non-political) crime.
The High Administrative Court should also take into consideration the fact that the Federal Administrative Court considered possible further grounds for the exclusion of the applicant based on serious non-political crime (risk of recurrence, proportionality) as being in need of clarification. Therefore, it referred several questions on Art 12.2(b) of the Qualification Directive (Directive 2004/83/EC) to the European Court of Justice for preliminary rulings.
Outcome:
The case was referred back to the High Administrative Court of Saxony-Anhalt. A new decision by the High Administrative Court was not known as of May 2011.
Observations/comments:
Case availabe at http://www.asyl.net/fileadmin/user_upload/dokumente/17021.pdf
An English Translation (commissioned by the Federal Administrative Court, but not officially authorised) is available at:
http://www.bverwg.de/enid/Decisions_in_Asylum_and_Immigration_Law/BVerwG_ss__C_7__9_nf.html
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ICTR - Georges Anderson Nderubumwe Rutaganda v. The Prosecutor (Appeal Judgement), ICTR-96-3-A, 26 May 2003 |
| ICTY - Prosecutor v. Zlatko Aleksovski (Trial Judgement), IT-95-14/1-T, 25 June 1999 |
| Germany - Federal Administrative Court, 14 October 2008, 10 C 48.07 |
| Germany - Federal Administrative Court, 25 November 2008, 10 C 46.07 |
Follower Cases:
| Follower Cases |
| Germany - High Administrative Court of Sachsen-Anhalt, 26 July 2012, 2 L 68/10 |
Other sources:
- International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Geneva 2009.
- Gerhard Werle, Völkerstrafrecht, 2nd ed. 2007.
- Münchener Kommentar zum Strafgesetzbuch, Vol 6/2, 2009.
- Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court, 2. Aufl. 2008.
- International Criminal Court, Elements of Crime, U.N. Doc. PCNICC/2000/1/Add.2 (2000).