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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> BE (Military service, Punishment, Landmines) Iran [2004] UKIAT 00183 (8 July 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00183.html Cite as: [2004] UKIAT 183, [2004] UKIAT 00183 |
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APPEAL No. BE (Military service – Punishment – Landmines) Iran
[2004] UKIAT 00183
Date of hearing: 26 February 2004
Date Determination notified: 8 July 2004
BE | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
"I accept he still has a well-founded fear of such consequences should he be returned toIran
. But that is not the end of the matter. The fear has to be persecution for a Convention reason."
"Having decided this I do not regard it as necessary to consider whether or not his fear is of persecution. A very similar issue arises in his human rights appeal and I will deal with it there."
Our Conclusions
'If a court or tribunal was satisfied:
(a) that the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, had reached a position where combatants were or might be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community'
(b) that they would be punished for refusing to do so and
(c) that disapproval of such methods and fear of such punishment was the genuine reason motivating the refusal of an asylum seeker to serve in the relevant conflict,
then it should find that a Convention ground had been established.'
'that the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, had reached a position where combatants were or might be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community'
"In a report based on US and UN sources, Anti-personnel Landmines: Friend or Foe – A Study of the Military Use of Anti-personnel Mines, published by the ICRC in March 1996, it was estimated that there were about 100 million land-mines scattered throughout sixty-four countries, killing about thirty people a day and injuring over thirty-five, many of the casualties being civilians".
'In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliation and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties in the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.'
i) traditional international armed conflicts.
These are defined in Common Art 2 as "all cases of declared war or any other armed conflict between two or more High Contracting Parties, even if the state of war is not recognised by one of them". This provision also applies "to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance". The Fourth Geneva Convention deals in detail with occupation and the treatment of the inhabitants.
ii) armed conflicts in the context of racist and colonial regimes and alien occupation.
Art 1(4) of the Additional Protocol I of 1977 expanded the concept of international armed conflict described in common Art 2 of the 1949 Conventions to include "armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations".
iii) armed conflicts between a State and organised armed groups under responsible command.
Additional Protocol II applies a limited range of international standards to situations of internal confrontation that reach a certain level of intensity. However, its obvious application to civil wars is limited by the requirement that it only covers conflicts where the organised armed groups meet the criteria of responsible command, control over territory and capacity to implement the Protocol.
iv) Common Article 3 conflicts under the 1949 Conventions (see paragraph 31 below).
v) internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
This final category marks as it were the threshold below which Common Art 3 does not apply, because the level of internal violence is insufficiently high.
Summary of Conclusions