Case summaries

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.

The situation in Logar province in Afghanistan can be characterised as an internal armed conflict. Therefore, the applicant as a member of the civilian population is at a significant risk in terms of Art 15 (c) of the Qualification Directive.

In this case the Tribunal sought to apply the guidance in Elgafaji on Art 15(c) and give country guidance on Afghanistan.

This case concerned the criteria that needed to be fulfilled in order to establish the existence of an internal armed conflict. It was held that in Somalia’s capital, Mogadishu, at the time of this decision, a state of internal armed conflict was found to exist without an internal protection alternative. The applicant was therefore considered in need of protection.

A serious and individual threat to life and limb may result from a general risk in the context of an armed conflict if the risk is enhanced because of the applicant’s individual circumstances or from an extraordinary situation which is characterised by such a high degree of risk that practically any civilian would be exposed to a serious and individual threat simply by his or her presence in the affected region.

The requirement of an individualisation of the threat to the life or person of an applicant for subsidiary protection is inversely proportional to the degree of indiscriminate violence which characterises the armed conflict.

In this case the Court of Appeal considered the interpretation of Art 15 (c) of the Qualification Directive applying the decision of the CJEU in Elgafaji (C-465/07; 17 February, 2009).

The situation which prevails today in Mogadishu must be seen as a situation of generalised violence resulting from a situation of internal armed conflict. Its intensity is sufficient to consider that today the applicant faces a serious, direct and individual threat to his life or person, without being able to prevail himself of any protection.

The situation which currently prevails in the Republic of Chechnya does not amount to generalised violence resulting from a situation of internal or international armed conflict.

The Court replaced the decision of the OIN to allow the Applicant to remain on non-refoulement grounds (i.e. tolerated status), with a decision to grant the Applicant subsidiary protection status on the grounds that he would be at risk of serious harm on return to his home country (indiscriminate violence).