KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 28 January- 1 February 2008
Date Determination notified: 25 March 2008
Before
MR C M G OCKELTON, DEPUTY PRESIDENT, ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE GRUBB
Between
KH
|
APPELLANT |
and
|
|
| Secretary of State for the Home Department |
RESPONDENT |
For the Appellant: Mr R Husain and Ms S Knights instructed by the Refugee Legal Centre
For the Respondent: Mr P Saini QC, Mr S Wordsworth and Mr A Palmer instructed by the Treasury Solicitor
DETERMINATION AND REASONS
(1) Key terms found in Article 15(c) of the Qualification Directive are to be given an international humanitarian law (IHL) meaning. Subject to (3) below, the approach of the Tribunal in HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 to this provision is confirmed.
(2) Article 15(c) does add to the scope of Article 15(a) and (b), but only in a limited way. It is limited so as to make eligible for subsidiary protection (humanitarian protection) only a subset of civilians: those who can show that as civilians they face on return a real risk of suffering certain types of serious violations of IHL caused by indiscriminate violence.
(3) Article 15(c) is not intended to cover threats that are by reason of all kinds of violence. It does not cover purely criminal violence or indeed any other type of non-military violence. Nor does it cover violence used by combatants which targets adversaries in a legitimate way.
(4) Where it is suggested that a person can qualify under Article 15(c) merely by virtue of being a civilian, the principal question that must be examined is whether the evidence as to the situation in his or her home area shows that indiscriminate violence there is of such severity as to pose a threat to life or person generally. If such evidence is lacking, then it will be necessary to identify personal characteristics or circumstances that give rise to a "serious and individual threat" to that individual's "life or person".
(5) Given that the whole territory of Iraq is in a state of internal armed conflict for IHL purposes (that being conceded by the respondent in this case), a national of Iraq can satisfy the requirement within Article 15(c) that he or she faces return to a situation of armed conflict, but will still have to show that the other requirements of that provision are met.
(6) Neither civilians in Iraq generally nor civilians even in provinces and cities worst-affected by the armed conflict can show they face a "serious and individual threat" to their "life or person" within the meaning of Article 15(c) merely by virtue of being civilians.
- The plight of persons who flee armed conflicts affronts our common humanity. But when such persons claim asylum the answer given by host states has often been that merely being a victim of armed conflict does not make a person a refugee: see e.g. Adan [1999] 1 AC 293. Claims based on human rights, Article 3 ECHR in particular, have often met with a similar negative response: see e.g. Vilvirajah v UK (1991) 14 EHRR 248. The underlying question raised by this case is whether, by virtue of the provisions made in the EU Qualification Directive relating to eligibility for subsidiary protection, Member States of the EU are obliged to take a different view. That we have to decide this question in the context of a claim made by a national of Iraq, a country which has seen many leave in order to flee conflict there, underscores how potentially important is its answer.
- We refer throughout this decision to the EU Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("the Qualification Directive"), in particular to Article 15 of this Directive, because that is the "common text" we share with courts and tribunals in other Member States. It is important to note, however, that our decision in this case is made under para 339C and related paragraphs of the Immigration Rules HC395 as amended, it being these rules, together with the Refugee or Person in Need of International Protection (Qualification) Regulations SI 2006/2525 ("the Protection Regulations") which have implemented into United Kingdom law the provisions of the Qualification Directive concerning international protection. We likewise refer for the most part to "subsidiary protection", that being the term used in this Directive; but for the purposes of the Immigration Rules and the Protection Regulations the term is "humanitarian protection". Since we refer frequently to "IHL", we should identify at the outset that this is the body of international law applicable to international and non-international (internal) armed conflicts (formerly known as the "laws of war"). It comprises both treaty law (e.g. the 1949 Geneva Conventions) and customary international law. The most widely applicable provision of IHL is common Article 3 to the four 1949 Geneva Conventions. It stipulates that in the case of international and non-international armed conflict:
"(1) Persons taking no active part in the hostilities…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 above-mentioned 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 humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, afforded all the judicial guarantees which are recognised as indispensable by civilised peoples.
(2) The wounded and sick shall be collected and cared for.
…"
According to the UK Ministry of Defence Manual of the Law of Armed Conflict, the basic principles of IHL are "military necessity, humanity, distinction and proportionality" (p.387).
The appeal
- The appellant is a national of Iraq. In a determination notified following a hearing on 21 February 2007 Immigration Judge R Morris dismissed his appeal against a decision dated 4 December 2006 to remove him as an illegal entrant, a decision which was made in the light of an earlier decision dated 30 November 2006 refusing to grant him asylum. He successfully obtained an order for reconsideration and so the matter comes before us.
- The basis of the appellant's claim was that he was born in Kirkuk to an ethnic Arab father and an ethnic Kurdish mother. Save for a period of less than one year when he went to Baghdad to join his cousin who was working there, he had lived all his life in Kirkuk, until he left Iraq in late July 2006. He worked as a taxi driver but then joined the police in Almas, Kirkuk. After one year and ten months he left this job because of threats to him and his family by insurgents and because his identical twin brother had been nearly killed by terrorists.
- The Immigration Judge did not find the appellant's account credible. She did not accept that the appellant faced a real risk of suffering persecution or serious harm in his home area of Kirkuk. In particular she did not accept that the appellant would face a serious and individual threat by reason of indiscriminate violence in a situation of international or internal armed conflict. She stated:
"As set out in the Supplementary Letter, the United Kingdom has not accepted that Iraq is in a state of civil war. It is not accepted either that the situation there amounts to internal armed conflict. This is in line with the findings of UNHCR. This being the case, so far as the appellant's past adverse experiences are concerned, I find that the situation in Iraq, (even in the turbulence of Baghdad) is not one that can be characterised as internal armed conflict, serious though the internal strife in that country is. In summary, the threat to the appellant is not personal or 'individual' to him."
- She did, however, accept that he was from Kirkuk, of mixed Arab and Kurdish ethnicity, and that:
"given the precarious security situation in Iraq, the appellant might have faced dangerous and violent situations and that members of his family may well have been killed in the general military and civilian upheaval in Iraq".
- Having found that the appellant was not at risk in his home area, the Immigration Judge also dealt briefly, in the alternative, with the question of whether he could relocate in any event to other parts of Iraq. Given his mother's Kurdish ethnicity, the Immigration Judge considered that "if he preferred, he would be able to relocate to the Northern Governorates" (para 22(v)).
- In line with these conclusions the Immigration Judge found that the appellant was not at real risk of treatment contrary to Articles 2 and 3 of the ECHR.
- The grounds for reconsideration raised two challenges. One was to the Immigration Judge's adverse credibility findings. The other was to the Immigration Judge's failure to apply para 339C of HC 395 to the appellant's claim "adequately or at all". The order for reconsideration was confined to the second ground.
The HH appeal
- We heard the appellant's appeal together with the appeal of HH (IA/01739/2007). In the event we decided to issue a separate determination in HH's case. We would emphasise, however, that we have taken fully into account in this case all the evidence submitted by HH's representatives, together with the submissions made on his behalf by Mr M Symes (instructed by IAS (London)).
Decision as to whether material error of law
- Mr Saini QC did not seek to persuade us that the Immigration Judge had not materially erred in law and in our view he was right not to do so. The Immigration Judge concluded that the appellant could not meet the requirements of para 339C(iv). This provision states that one subcategory of serious harm consists in "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict"; this wording precisely mirrors Article 15(c) of the Directive. Leaving aside that the Immigration Judge wrongly referred to the requirement in para 339 (iv) as one concerned with situations of "international and internal armed conflict" (emphasis added), she appeared to see the reason why the relevant threat was not personal or "individual" to him as being because the situation in Iraq was not one of internal armed conflict. We analyse the notion of a "serious and individual threat" later on in this determination, but it suffices to say here that the Immigration Judge's reasoning on this point failed to recognise that, if there was no internal armed conflict, the issue of whether there was any threat individual to the appellant (within the meaning of Article 15(c)) was irrelevant. Moreover, the reasons she gave for finding that Iraq was not in a state of internal armed conflict were misconceived. It was wrong to view it as a matter settled by the (assumed) fact that the United Kingdom government has not accepted Iraq is in such a state. It is a matter to be judicially determined by applying legal criteria to the factual situation in that country. In any event, the letter from the respondent dated 9 February 2007, on which the Immigration Judge relied, did not state that the United Kingdom government disputed that Iraq was in a situation of internal armed conflict. What it stated was that "it is a matter of record that the government of the United Kingdom does not accept that Iraq is in a state of civil war" (emphasis added). It was quite wrong to equate the concepts of "internal armed conflict" and "civil war". Further, to the extent that the Immigration Judge might be thought to have intended simply to point to an evidential basis for her finding that Iraq was not in a state of civil war and/or armed conflict - consisting in the view of the UNHCR - this was based simply on the appellant's representative's acceptance that UNHCR had not classed Iraq as being in a situation of international or internal armed conflict. We can find nothing on file to show that UNHCR had taken such a view. (That in a recent report dated August 2007 UNHCR describes Iraq as having been in a state of internal armed conflict since 28 June 2004 further confirms our belief that the Immigration Judge, like the appellant's representative, was certainly wrong to suggest that UNHCR had rejected such a view.)
- We consider that the Immigration Judge's erroneous understanding of the legal criteria she had to apply, when considering whether the appellant was at real risk of serious harm and of the evidence that was relevant to her decision on that issue in relation to this appellant, amounted to a material error of law.
- Both parties agreed that we were in a position to decide the appeal for ourselves without further adjournment.
The issues
- The appellant's asylum and human rights grounds of appeal have already been rejected and it is common ground that the only issue before us concerns whether the appellant is able to show eligibility for subsidiary protection under Article 15 of the Qualification Directive (humanitarian protection under paragraph 339C).
- The principal basis on which the appellant puts his case is that he meets the requirements of Article 15(c) by virtue of the fact that he faces return to a country which is in a situation of internal armed conflict and in which the indiscriminate violence there would give rise to a serious and individual threat to his life or person (1) merely by virtue of the fact that he is a civilian from Iraq or a civilian in his home area (Kirkuk), and in any event (2) by virtue of his being from Kirkuk and of mixed (Sunni) Arab/Kurdish ethnicity. Mr Saini for the respondent contends that the appellant fails under Article 15(c) for a number of reasons: that there is no internal armed conflict in Iraq or Kirkuk within the meaning of Article 15(c); that even if there is, he cannot meet the other requirements of Article 15(c), in particular the existence of a "serious and individual threat" and he cannot succeed merely by virtue of being a civilian in Iraq or in Kirkuk or a person of mixed (Sunni) Arab/Kurdish ethnicity in Kirkuk.
Submissions
- We had lengthy written and oral submissions in this case. We are indebted to the parties (and to Mr Symes who appeared in the case of HH, which we heard at the same time) for the great care and attention to detail which their submissions exhibited. What progress we have made in clarifying the law and analysing the evidence in this case is in part due to the high quality of their respective preparations. However, partly because of their length and partly because of the fact that on some issues the parties changed their position in the course of the hearing, we do not propose to set them out in any detail. Where appropriate we shall address points they raise when setting out our own reasoning.
- An extremely important feature of this case is that it must be decided in the light of a concession made during the hearing by Mr Saini on behalf of the Secretary of State. He stated that she accepted that for IHL purposes Iraq was in a situation of internal armed conflict and that this situation embraced the whole territory of the state of Iraq, including the Kurdish Regional Government (KRG) and that the Government of Iraq (GOI) is a party to it.
- More generally Mr Saini submitted that Article 15(c) afforded no additional scope beyond that of Article 15(a) and (b); that it would be wrong to endow key terms in Article 15(c) with an IHL meaning, but that if we did so we should accord them a narrow meaning, since to do otherwise would fly in the face of the fact that the Member States clearly did not envisage this provision as giving rise to a new species of international protection; that (in any event) so far as key terms within Article 15(c) were concerned, "the international humanitarian law cupboard is relatively bare"; that in relation to Iraq, although the respondent accepted that for IHL purposes there was an internal armed conflict in Iraq, we should find, by applying a "pragmatic", "autonomous" approach to definition built out of existing United Kingdom case law on war and civil war, that there was not such a conflict; that in any event neither the class "civilians in Iraq" nor the class "civilians in Kirkuk" (the appellant's home area) could show they faced a "serious and individual threat" within the meaning of Article 15(c); and that none of the appellant's personal characteristics (being male, being of mixed ethnicity) sufficed to show he faced a "serious and individual threat" either. On all these matters Mr Husain's (and Mr Symes') submissions and those by Ms Knight in respect of the situation in Iraq, were almost precisely to the opposite effect.
The legal framework
- Article 2(e) of the Qualification Directive provides:
"[person eligible for subsidiary protection] means 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, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country."
- Article 15(c) states:
"Serious harm consists of:
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict".
- Complementary to this provision is recital 26 which states:
"Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm".
- Article 17 sets out who is excluded from being eligible for subsidiary protection. It is not relevant to this case.
- Mention should also be made of recitals 25 and 11. Recital 25 states:
"It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States."
- Recital 11 states:
"With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are a party and which prohibit discrimination."
- Implementing Articles 2(e) and 15, para 339C of the Immigration Rules provides as follows:
"A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and
(iv) he is not excluded from a grant of humanitarian protection.
Serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
Interpretive principles
- The methods of interpretation applied within EU law deviate in some respects from the rules laid down in the 1969 Vienna Convention on the Law of Treaties, but we do not understand there to be any disagreement that when interpreting an EU directive we must bear in mind the following canons: that we must construe a directive as far as possible, in the light of its wording, context and purpose, paying particular regard to purpose, in order to achieve the result pursued (Case C-106/89 Marleasing [1990] ECR I-4135, para 8); that a directive is to be construed so that its operative parts are effective; that the meaning of any particular provision of a directive must be consistent with the higher legal rules of the Community under which, and in furtherance of which, it was adopted; that the preamble is a most important aid in determining the scope and purpose of a directive, but is of no legal force in itself, and therefore yields in the face of a contrary provision of the directive (Case C-184/99 Grzelcsyk [2001] ECR I-6193 para 44; Case C-413/99 Baumbast [2002] ECR I-7091); that preparatory documents although relevant, are not of decisive importance in identifying the intention underlying the measure ("[t]hat intention is embodied and disclosed in the legislative text and essentially must be gathered from the actual meaning of the words, from the function of the measure itself and from the system of which it forms part", Case C-300/89 Commission v Council [1991] ECR I-2867, 2895); that less significance will attach to a preparatory document that is private than to documents that are formally required by the legislative process and to which reference is made in the recitals when the measure is adopted; and that the Court has disapproved of a contrario reasoning (see Case C-9-56 First Meroni Case [1957] 162,163, [1958] ECR 133 ).
Article 15 as a whole
- This is only the second occasion on which the Tribunal has looked in any depth at Article 15(c). The first occasion was in HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022, promulgated on 28 January 2008, which dealt, inter alia, with the issue of whether there was an internal armed conflict in Somalia, in Mogadishu in particular. In that case the panel went out of its way to emphasise that its conclusions were very much based on the submissions made to it in that case. That determination having been made available to the parties in this case, the submissions before us (understandably) sought to develop arguments in response. They also brought to bear a far wider array of legal sources and materials. Having said that, on the general approach to Article 15(c) we consider that (save in one respect: see below para 96) our conclusions are broadly similar to those stated in HH & others.
- It is the respondent's contention that Article 15 is simply designed to deal in a specific way with three (not all) aspects of the protection afforded by nonderogable ECHR rights. Article 15(b) codifies Article 3. Article 15(a) codifies the Sixth and Thirteenth Protocols. Article 15(c), according to this argument, merely codifies aspects of Articles 2 and 3. Thus Article 15's role, argued Mr Saini, is essentially clarificatory, particularising three existing bases of Member States' obligations under international human rights law. It was intended to ensure merely that a status was given to those who could previously qualify only for non-removability under ECHR provisions. Article 15(c) was intended to benefit those who were able to show that in a situation of armed conflict they faced a risk personal to them. Mr Husain's opposing submission has two main limbs. First he argues that to treat Article 15(c) as a subcategory of Article 3 (and Article 2) ECHR would offend the EU principle of effet utile, since it would mean that Article 15(c) adds nothing to Article 15(b), whose wording mirrors that of Article 3 ECHR. Second he argues that Article 15 can only be properly understood as setting out three separate but overlapping types of serious harm, each with its own distinct scope. Third, it is his contention that Article 15(c) only makes sense if read as creating a new obligation of wider scope (at least in some respects) than Articles 3 and 2 of the ECHR. Before we look in depth at Article 15(c), therefore, we have to consider Article 15 as a whole. (We have also to have regard to the addition within para 339C of the Immigration Rules of a further head of type of harm, "unlawful killing" (para 339C(ii)).
- We are persuaded that Article 15(c) must be understood as having some scope additional to that contained in Article 15(a) and (b). Even if at some point in the drafting process it was thought that Article 15 should correspond with nonderogable ECHR rights and that in particular Article 15(c) should correspond with Article 3 (or Articles 2 and 3), it is clear that the eventual text goes further and that in doing so it reflects the underlying purposes behind the Directive.
- For Mr Saini's reading to be correct, it would be necessary to see both Article 15(c) and 15(a) as subcategories of nonderogable ECHR rights. But, even without reference to Article 15(c), that reading breaks down in relation to Article 15(a). His argument depends on the subject-matter of Article 15(a), the prohibition on the death penalty and execution (irrespective of whether in time of war or peace) corresponding precisely with Member States' obligations under both the Sixth and Thirteenth Protocols and Article 3. But only some Member States have ratified the Thirteenth Protocol and so at present their obligation is only to ensure prohibition of the death penalty in time of peace. Article 15(a) applies that prohibition in time of war or peace. And as regards Article 3, it is clear from Ocalan v Turkey (2005) 41 EHRR that the Court still does not consider that the death penalty violates that article. At para 165 of this judgment the Grand Chamber stated:
"For the time being, the fact that there are still a large number of States who have yet to sign or ratify Protocol No 13 may prevent the Court from finding that it is the established practice of states to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in time of war".
- In our view there is a similar lack of correspondence between Article 15(c) and nonderogable ECHR rights generally. Whereas the latter (like Article 15(a) and (b)) require substantial grounds for believing that a person would face a real risk of the relevant ill treatment (death penalty, torture or inhuman or degrading treatment or punishment), Article 15(c) requires only that such a person would face a threat of the relevant ill treatment. We shall return to this feature when discussing the meaning of "serious and individual threat", but our point here is that it is simply not possible to equate ill treatment and threat of ill treatment.
Meaning of Article 15(c)
Approach to interpretation
- Before we can analyse the constituent elements of Article 15(c) in detail, we must address the general question of what approach we should take to interpretation of this provision, a provision which Dr J McAdam, Complementary Protection in International Refugee Law (at p.70) states went through seven amendments during the drafting process. The Directive's Article 2 "Definition" section does not deal with its key terms. On any reading Article 15(c) is tortuously worded. Most conspicuously, if it is given an ordinary language reading then it would appear to contain a near contradiction in terms. On the one hand it requires that the threat must be one which is "individual"; on the other hand it requires that such a threat must be by reason of violence which is indiscriminate, meaning, in ordinary language, random or arbitrary. But if violence is random or arbitrary then it is not individualised and so it is exceedingly difficult to see how it can ever give rise to an individual threat. In any event it is accepted that under EU principles the approach to interpretation must be one which has regard to context and is purposive or teleological.
An IHL reading of Article 15(c)
- Once one adopts a purposive approach, the reasons for giving as far as possible an IHL meaning to key terms in Article 15(c) are overwhelming.
- One reason which could be given is that an IHL approach to Article 15(c) is also one which has been taken by a number of courts and tribunals in other EU Member States: see e.g. French Commission des Recours des Refugies (CRR) 22 November 2005, MA); the Belgian court decision in VB/05- 5833/W12.182/SB5 (27 October 2006); the Dutch Council of State judgment, Raad van Staat, 20-07-2007,200608939/1 LJN BB0917; the Swedish Migration Court of Appeal 2007.9 decision (UM 23-06) and the Higher Administrative Court of Schleswig-Holstein (Northern Germany) judgment 21 November 2007, 2 LB 38/07. Given that one of the objectives of the Directive is to achieve the application of common criteria throughout the EU, that is not an unimportant matter. But lacking as we do any full picture of the approach taken by judicial decision-makers throughout the EU, we shall not rely on it to justify our own reasoning.
- At first sight the drafting history appears to point against an IHL reading of Article 15(c). The draft version of Article 15(c) in 13354/02, Asile 55, 23 October 2002, made reference to: "[in accordance with the 1949 Convention relating to the Protection of Civilian Persons in time of War,] serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict" (this draft was also the subject of a proposal by the Council Legal Service to "add a reference to the Annexes and Protocols related to this Convention"). But the final version contains no such reference.
- However, although reference to the 1949 Geneva Convention IV did not survive the drafting process, the terminology of IHL did. It is abundantly clear that several of the terms used in Article 15(c) are terms of art within international humanitarian (and international criminal) law: e.g. "civilian", "life and [or] person" "indiscriminate" and, of course, "international or non-international [internal] armed conflict". The only body of law in which all of these terms feature is IHL (together with international criminal law). The terminology of Article 15(c) thus provides a powerful reason in favour of giving the provision an IHL reading.
- Furthermore, the preparatory documents contain no explanation for the deletion of the reference to Geneva Convention IV and its cause can really only be a matter of speculation. In one respect the eventual text chosen logically required a deletion of reference to common Article 3 simpliciter, since the confinement of serious harm to threats to a civilian's "life or person" at the very least excludes acts or threats covered separately by common Article 3(1)(c) (outrages upon personal dignity) and the causal requirement of "indiscriminate violence" is a further limit on scope. But leaving that aside, there is clearly a range of likely reasons, including recognition that even all four of the 1949 Geneva Conventions, together with their two Protocols and Annexes, comprise only part of a wider body of IHL rules, some of which have developed into customary international law as recognised by the jurisprudence of international criminal tribunals in cases heard since 1949.
- It can also be seen that the drafters of the Directive specifically recognised that IHL was one of two sources of law (along with Strasbourg case law) of particular relevance in the context of formulating Article 15(c). The Explanatory Memorandum on the Proposal for a Council Directive on the minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection (COM (2001) 510 final), in its commentary on what became Article 15(c) stated that part of the thinking behind Art 15(c) was to draw on not just ECHR principles (especially Article 3) but also "general principles of international humanitarian law": the commentary states that "[p]artly in response to the case law of the European Court of Human Rights and general principles of international humanitarian law, Member States have developed schemes of 'subsidiary' or 'complementary' protection."
- An IHL approach provides an objective framework for interpreting Article 15(c) - in the form of an identifiable set of legal rules which exist and are applied both EU-wide and internationally. Basing interpretation of Article 15(c)/para 339C(iv) on international law norms enables decision-makers to proceed on a more objective footing. As we shall see when we turn to evaluate the expert reports furnished for this appeal, failure on the part of those seeking to assess situations of armed conflict in a particular country to apply a consistent IHL approach can also cause difficulties in understanding what they mean when they seek to identify different types of violence (e.g. "targeted" and "indiscriminate"). An approach based on an international law framework is also consonant with that taken by the House of Lords in cases such as Horvath [2001] 1 AC 489 per Lord Hope at 495C-E and 499-500D and Sepet and Bulbul [2003] UKHL 15 [2003] 1 WLR 865 and by the Court of Appeal in Krotov [2004] EWCA Civ 69 [2004] 1 WLR 1825 and the Immigration Appeal Tribunal in Gurung* [2002] UKIAT 04870 [2003] INLR 133 in respect of key terms contained within the Refugee Convention at Article 1A(2) and Article 1F.
- An interrelated reason arises from the nature of the provisions which we are obliged to interpret in this case: provisions which are United Kingdom legislative measures taken to implement the Qualification Directive, one of whose principal purposes is to introduce EU-wide criteria on the basis of which persons are to be recognised as eligible for subsidiary protection. Recital 6 states that:
"The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection [which covers both refugee and subsidiary protection], and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States." (emphasis added)
- If (as Mr Saini submitted) a UK tribunal or court could sensibly construct its own notion of the "autonomous meaning" of the term "international or internal armed conflict" without regard to any shared international law framework, then (except accidentally) there would be nothing "common" about the criteria it devised and no basis to complain about other Member States adopting similarly unilateral notions.
- Using IHL as an aid to construction does not involve any recourse to extraneous (non-EU) legal norms. International obligations (including treaties to which most Member States are a party) automatically form part of the laws of Member States and the EU: see Case-540/03 Parliament v Council, [2006] ECR I-5769. The rules of IHL (at least insofar as they constitute customary international law) are likewise binding upon the Community institutions and form part of the Community legal order: see C-162/96 Racke [1998] ECR I-3655, paras 45-6. Using these IHL rules as an aid to construction of Article 15(c) accords with general principles of Community law.
- Further, the specific EU law basis for asylum measures such as the Qualification Directive, Article 63(1) of the Treaty Establishing the European Community (TEC), recognises as a relevant source not just the Refugee Convention but also "other relevant treaties". Article 63(2)(a) expressly treats the areas covered by such measures as including: "minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection." (emphasis added). Article 63 clearly intended, therefore, that the deference to relevant international treaty law (not specifically restricted to international human rights treaties) was to apply to both protection regimes. It is true that nothing is specified about IHL treaties but neither are such treaties excluded.
- So far as the Directive itself is concerned, recital 11 states:
"With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are a party and which prohibit discrimination."
- Whilst this provision only refers to international instruments of a particular kind, it is clear, and Mr Saini conceded as much, that major IHL instruments contains express provisions prohibiting discrimination: see e.g. Article 3(1) of common Article 3 of the 1949 Geneva Conventions and Article 2(1) of Additional Protocol II.
- Mr Saini contended that the wording of another recital, recital 25, argued against giving Article 15(c) an IHL reading because it confined the sources from which subsidiary protection criteria could properly be drawn to international human rights instruments. There are two major difficulties with this contention. First, recital 25 refers to drawing criteria "from international obligations under human rights instruments and practices existing in Member States." (emphasis added).
- In our view the reference to existing "practices" is to be given a broad meaning and is to be understood as covering both national laws and policies. So far as laws are concerned, the manner in which Member States give effect to their international obligations varies considerably depending on whether they adopt monist or dualist systems and on the precise hierarchy of their legal norms, but all are signatories to the 1949 Geneva Conventions and, so far as we are aware, all accept and apply customary international law, including common Article 3 of the 1949 Geneva Conventions: effect is given to those Conventions in the UK by the Geneva Conventions Act 1957 (as amended). Accordingly "existing practices" include laws giving domestic effect to IHL obligations.
- Second, even if recital 25 were read as permitting the drawing of criteria regarding eligibility for subsidiary protection from international obligations under human rights instruments only, we do not see that this would necessarily preclude drawing also on IHL as an aid to construction of Article 15(c)'s key terms. As is explained in one of the documents submitted by the respondent, C Greenwood, Essays on War in International Law at paras 3.27-3.40, the two bodies of law – IHL and international human rights law - share the same underlying principles and overlap. Within IHL, for example, the Preamble to Additional Protocol II recalls that "international human rights instruments relating to human rights offer a basic protection to the human person". Within international human rights law the UN Convention on the Rights of the Child expressly recognises the distinct function of state obligations under IHL, Article 38(1) stating that "States Parties undertake to respect and ensure respect for rules of IHL applicable to them in armed conflicts which are relevant to the child". When the subject area is armed conflict the International Court of Justice has held that IHL is the "lex specialis" (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 [1996] ICJ Rep 66). And the European Court of Human Rights has consistently seen the ECHR as forming body of a wider body of international law, with which State parties must comply: see Bosphorus Airways, (2005) 42 EHRR 1, Application no. 45036/98 at para 150, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, (2002) 34 EHRR 11. Furthermore, on any reading of Strasbourg jurisprudence dealing with armed conflict situations under Article 2 or 3 (cases such as Muslim v Turkey [2006] 42 EHRR 16 paras 66-76 and Isayeva v Russia App. nos. 57947/00, [2005] ECHR 129, 57948/00 and 57949/00, paras 168-200), there is nothing to suggest that the criteria (such as they are) that have been articulated are any different from those set out (with both greater detail and clarity) in IHL.
- We do not need to deal with Mr Saini's submission that the main or an important building-block for Article 15(c) (along with Article 3 of the ECHR) was Article 2 ECHR guaranteeing the right to life - beyond pointing out that the addition within para 339C of the Immigration Rules of an additional limb of serious harm - "unlawful killing" - rather undermines his argument, since that limb is quintessentially about Article 2 of the ECHR. His submission runs into the further difficulty that the Strasbourg Court has dealt with applications by persons fearing return to situations of armed conflict primarily under Article 3: see e.g.Vilvirajah v UK and Muslim v Turkey.
- In deciding to draw criteria regarding eligibility for subsidiary protection at least in part from EHCR norms (see recital 25) Member States cannot have been blind to the fact that they thereby ensured that the meaning of Articles 15(a) and (b) could be further developed through international jurisprudence (especially that of the Strasbourg Court). In similar, albeit not identical, fashion, giving Article 15(c) an IHL reading enables it too to be further developed by reference to the jurisprudence of the international criminal tribunals.
- We have left until last the reason we regard as the most compelling. If one assumes, as we must, that the drafters intended to create a regime of subsidiary protection based on rational principles and then if one looks at the eventual text of Article 15(c), it is apparent that one question that could be asked of the Member States party to the Directive is "Since you have chosen to benefit a subset of civilians affected by armed conflict, on what principled basis can you do that. Why should some civilians in situations of armed conflict be excluded whilst others are included?" In our view the only principled basis that stands scrutiny is this: that it must be wrong to seek to refoule persons who on return would face a real risk of being the victims of international crimes caused by a serious threat of indiscriminate violence. In much the same way that Article 9(e) of the Directive and case law under the Refugee Convention has recognised that it would be persecutory to return soldiers if they would on return face punishment for "refusal to perform military service in a conflict, where performing military service would includes crimes or acts falling under the exclusion clauses as set out in Article 12(2)" (which cover, inter alia, war crimes and serious breaches of IHL), so Article 15(c) reflects the view that it cannot be right in principle to return civilians to a situation where they, likewise, would face a realistic threat of being victims of war crimes or other serious breaches of IHL. Even if the test imposed by Article 15(c) might still be considered a stringent one, there is a rational basis, anchored in (but not simply reflective of) existing international law obligations, for considering that civilians in some situations of armed conflict can qualify whilst others cannot.
- It remains for us to address several arguments advanced by Mr Saini against giving Article 15(c) an IHL reading.
- To give Article 15(c) an IHL reading, argued Mr Saini, would wrongly ignore the very different context and the fact that this article and IHL have "wholly different" purposes. Mr Saini outlined that whereas IHL operates by way of a series of restrictions and prohibitions in terms of the way protagonists may behave, Article 15(c) by contrast establishes a right of protection in a third country Member State based on the objective presence of factors that may lead to a serious and individual threat.
- In broad terms we can agree that IHL and Article 15(c) have different functions. IHL is concerned with regulating situations of armed conflicts, whereas Article 15(c) is concerned with a type of harm arising from exposure by way of refoulement to such situations. But at the same time the difference can be overstated and it is important to note that both legal regimes have protective purposes: one underlying purpose of IHL being protection of civilians in situations of armed conflict, the purpose of Article 15(c) being protection of a subcategory of civilians facing return to situations of armed conflict. Further, the differences of function which there are only become problematic if they involve some attempt to apply the provisions of IHL out of context. But there is no reason to think that any such attempt is involved in drawing for interpretive purposes on an existing IHL framework of criteria. Furthermore, all that is at issue here is the interpretation of specific components of Article 15(c). There is no assertion that Article 15(c) is co-extensive with IHL in full: in some respects (restriction to civilians, to a "civilian's life or person" and to causation by "indiscriminate violence") it does not even cover the entirety of common Article 3 protection.
- Another argument raised by Mr Saini was that particular features of IHL make it hazardous to draw on it, in particular the absences and complexities of definition. Thus he pointed out, correctly, that there is no treaty definition of armed conflict and that is has been described as a "purely factual" notion (by C Greenwood in (1997) 2 Max Planck Yearbook of United Nations Law 97, 114-5). In any event, he added, since such definition as there is treats the threshold for the existence of an armed conflict as a 'low' one, that cannot be applied within Article 15(c) since the latter clearly contemplates only armed conflict in which there is a real prospect of a serious and individual threat arising. A further point was that since IHL comprises two separate sets of legal rules depending on whether the armed conflict is 'international' or 'internal', that would lead, if these were applied within Article 15(c) to anomalous applications, with differing standards of protection being applied depending on whether the civilian was in one kind of armed conflict or the other.
- Taking each of these arguments in turn, we find the gloss which Mr Saini sought to place on the reference to the notion of "armed conflict" as "purely factual" misconceived. It seems to us that in describing "armed conflict" as a purely factual notion, Professor Greenwood QC was simply seeking to reflect the view taken by the Pictet Commentary to the 1949 Geneva Conventions that terms such as armed conflict are not invested with any rigid or technical meaning (we note that in Essays on War in International Law at para 3.46 the same author stated that there was "powerful support" for the view that the concept of armed conflict "should be given a very broad definition"). In none of the materials before us has Professor Greenwood or other any other academic authority suggested that lack of any codified definition - or the undesirability of a highly precise definition - has stripped it of any legal content or prevented it being the subject of legal interpretation. It is not suggested, for example, that the International Criminal Tribunal dealing with the Former Yugoslavia (ITFY) lacked jurisdiction or was mistaken in deciding whether there was an armed conflict in Croatia at the relevant time by reference to a set of legal criteria which it enunciated. In any event, if Professor Greenwood was indeed suggesting that the term "armed conflict" is incapable of legal definition, we cannot agree. The fact that the appropriate definition to be given to a legal term is one which treats it as highly fact-specific or open-textured (or very much a question of fact or degree) does not mean that the term is incapable of definition. To describe the notion of "armed conflict" as a purely factual notion only makes sense in the context of an acceptance that there are some criteria (even if imprecise) which can assist in deciding what is as a matter of fact an armed conflict.
- We find no substance in the argument that the wording or context of Article 15(c) requires the notion of "armed conflict" to be interpreted as having a high threshold (or at least a higher threshold than (the low one obtaining)) under IHL. The only reason given by the respondent for considering that it would be inappropriate depends on treating the notion of "…armed conflict" as containing within itself the concept of "serious", whereas the latter is plainly a separate element of the Article 15(c) definition.
- As for the alleged anomaly that would be created if Article 15(c) were to apply separate definitions for what constituted an armed conflict, depending on whether the conflict was international or internal, all we see as resulting from an IHL approach to defining the relevant terms is clarification that the relevant criteria are those identified by that body of law. If there is an anomaly in the international law framework (and it is true that because of the different rules applied depending on the nature of the armed conflict it has been called - by Boelaert-Suominen - a "two-legged edifice"), then we do not see anything impermissible if decisions under Art 15(c) take that into account. Whether properly called an anomaly or not, it is not one which guidance manuals issued by the International Committee of the Red Cross (ICRC) or by individual states such as the United Kingdom (in the UK Manual on the Law of Armed Conflict) see as an obstacle to the two sets of rules being properly understood and applied in practice by serving soldiers/combatants. It should not, therefore, be beyond persons charged with making decisions as to eligibility for subsidiary protection. Indeed on our approach eligibility should be expected to vary precisely as the nature of the armed conflict varies: the rules governing what amounts to an international crime are different depending on whether the armed conflict concerned is an international or internal one. In any event, so far as eligibility for subsidiary protection under Article 15(c) is concerned, it is of no consequence to the individual that the applicable rules under international humanitarian law are different: what matters is that the country to which they fear return is one where there arise situations of either international or internal armed conflict.
- We should briefly note that we were entirely unpersuaded by Mr Saini's suggestion that we should seek to base our approach to Article 15(c) on UK cases dealing with "war" and civil war" in a commercial law context: one of the two cases he cited (Kawasaki Kisen Kabushiki Kaisa v Bantham [1939] 2KB 44) pre-dated even the 1948 UN Charter and neither it nor the other (Spinney's v Royal Insurance [1980] 1 Lloyd's Rep 406) involved the issue of the United Kingdom's obligations under treaty law.
Consequences of an IHL approach
- Having established that Article 15(c) must be given an IHL reading, it is important to bear in mind that this only take us so far. In the first place, our reasoning in the foregoing paragraphs only establishes that the proper approach to interpretation of Article 15(c) is that of IHL. We have yet to explain why, as noted at the outset, we think that Article 15(c) affords a protection which in some (but only limited) respects goes wider than that which Articles 3 and 2 of the ECHR give. Additionally we should emphasise that seeing Article 15(c) as being largely built out of IHL norms does not entail seeing it as simply reflecting Member States' existing treaty obligations. Plainly, if we are right, it cannot, since IHL does not guarantee a right of non-refoulement of any kind. IHL is solely an aid to construction of key terms arising in Article 15(c). But whether the effect of the provision is, as we think, to create a (limited) new type of non-refoulement obligation for Member States is an entirely separate matter.
- In the second place, endowing key terms in Article 15(c) with an IHL meaning does not necessarily mean accepting that this provision has the same material scope as IHL or customary international law as a whole - or even simply common Article 3 of the 1949 Geneva Conventions. (We emphasise this point because one of the earlier drafts of Article 15(c) did appear to see its material scope as the same as the 1949 Geneva Convention IV.) As we have mentioned already, there are at least three respects in which the scope of Article 15(c) is narrower than these other bodies of law. First, it only protects civilians. Second it only protects civilians in respect of their "life or person" and not, for example, in respect of their "objects" (possessions or property). Third it is concerned only with protecting against threats that arise by reason of "indiscriminate violence". If an answer is sought as to why the drafters did not decide to equate the material scope of this provision with IHL as a whole, then there is a clear one to hand: that Member States were concerned not to create too broad a limb of protection. From the preparatory Asile documents there are several references to concerns being expressed by some Member States about the need to avoid undue widening of the scope of this subparagraph.
- Nor (contrary to Mr Husain's submissions) does adopting an IHL reading entail acceptance of the view that the Directive itself must be read as embodying any particular prior practice of any particular State. Mr Husain asked us to derive such a conclusion from recital 25 read in conjunction with the reference in chapter 3 of the Explanatory Memorandum to "draw[ing] from the disparate Member State systems and …attempt[ing] to adopt and adapt the best ones"; and, in addition, he asked us to assume that "best" practice always means "practice most generous to applicants". However, we have no way of ascertaining what the Explanatory Memorandum authors understood by "best" practices and it is abundantly clear that, whatever the aspirations expressed in the Explanatory Memorandum, later compromises were made, in part to avoid Article 15(c) having a wide or liberal application. So far as concerns Mr Husain's submission that a liberal approach to Article 15(c) is necessitated by the TEC Art 61(b) obligation relating to the "safeguarding [of] the rights of nationals of third countries", we do not see that the interpretation which we give to this provision breaches this obligation and, in any event, the Directive was made under Article 63(1(c), 2(a) and 3(a), not under Article 61(b).
Drafting history
- It is not necessary for us to consider the drafting history in detail but in the light of the submissions made to us two features require specific comment.
- The original wording of the article was:
"a threat to his or her life, safety or freedom as a result of indiscriminate violence arising in situations of armed conflict, or as a result of systematic or generalised violations of their human rights".
- Pointing out that this wording was based heavily on the Temporary Protection Directive of 2001 (EU Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof), Mr Husain urged us to view Article 15(c) as intending to treat that Directive's protection regime as a "template".
- It is beyond doubt that the original wording cited above closely modelled itself on part of the definition given to protection to persons fleeing armed conflict or endemic violence in the Temporary Protection Directive. We know that from what was stated in the Explanatory Memorandum when commenting on the above wording, viz. that "[t]he definition of this sub-paragraph is drawn from Article 2(c) of the Council Directive on minimum standards for giving temporary protection in the event of a mass influx".
- Article 2(c) of the Temporary Protection Directive protects persons:
"who have had to leave their country or region or origin or have been evacuated…and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular: (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who been the victims of, systematic or generalised violations of their human rights".
- The difficulty we have with Mr Husain's submission is that it can be seen that the eventual wording of Article 15(c)) is markedly different in meaning from that in the Temporary Protection Directive; as a result we find any suggestion that that Directive represents a template or model, unhelpful.
The constituent elements of Article 15(c).
- We turn then to look at the essential components of Article 15(c) bearing in mind that several key terms mirror the wording of the 1949 Geneva Conventions not only in the reference to "international or non-international armed conflict" (in 15(c) "…internal armed conflict") but also in the reference, already noted, to "civilian" and "life and person" (in 15(c) "life or person"). Common Art 3 prohibits, inter alia:
"(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture".
The term "indiscriminate" also holds a special meaning within IHL.
- It is of course vital that we bear in mind the context of Article 15(c) as a whole and recognise that its different elements are to a certain extent interrelated. But one way or another we must still examine each of its main elements. We doubt that the best order in which to do so is that in which they appear. The key terms in Article 15(c) fall into two main categories: one is person-specific; the other, the more general, is situational. That being so, it makes better sense to deal with the more general first, so that we look first at "situations of international or internal armed conflict" and "by reason of indiscriminate violence" and leave until last looking at the individual-specific terms: "civilian's life or person"; and "serious and individual threat". If that becomes nearly a case of taking the order of appearance of terms backwards, it nevertheless reflects the process which the decision-maker should usually adopt when analysing an individual claim.
"International or internal armed conflict"
- Two initial points should be made. First, it appears from Dr McAdam's account (supra, pp.70-78) that the reference to "international or internal" armed conflict featured from the second draft onwards. Second, Art 15(c) is the only subcategory of serious harm which requires conditions in the country of origin to be of a particular kind. To apply there must in the country of origin be "situations of international or internal armed conflict".
"Armed conflict"
- The term "armed conflict" is not defined in any international instruments but in Tadic (Jurisdiction) at para 70 it is stated that:
"an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the duration of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States, or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual conflict takes place there".
- The case law of the ITFY and other international criminal tribunals since Tadic has reaffirmed this formulation, which has become known as the "Tadic test": see e.g. Prosecutor v Kunarac et al., IT-96-23/1-A, Judgement, 12 June 2002 para 56.
- Since in this case it is not suggested by either party that there is in this case a country in a state of international armed conflict (presumably because the MNF-I are in Iraq with the consent of the GOI), we can limit ourselves to simply noting that: (i) for there to be an "international armed conflict" there must be an inter-State element; (ii) an inclusive approach is to be taken both to the temporal and geographical scope of international armed conflict ( see Tadic (Jurisdiction) at paras 84, 70, Prosecutor v Blaskic, IT-95-14, judgement, 3 March 2000, Prosecutor v Kordic & Cerkez, IT-95-14/2-T, judgement, 26 February 2001 and Prosecutor v Naletilic et al, IT-98-34-T, Judgement, 31 March 2003); and (iii) the principal rules applicable to "international armed conflicts" include the "law of the Hague" (the 1899 and 1907 Hague Conventions respecting the Laws and Customs of War on Land) together with the 1949 Geneva Conventions and its 1997 Additional Protocol I, plus miscellaneous treaties dealing with, for example, chemical and biological warfare and landmines
- As regards internal armed conflict, the upshot of the respondent's concession made in the course of the hearing - that Iraq as a whole is in a state of internal armed conflict for the purposes of IHL and that the GOI is one of the parties to the conflict - renders it unnecessary to do anything more than identify very basic features of this concept in IHL.
- As regards the territorial scope of the rules governing internal armed conflict, the established formulation as found, once again, in Tadic (Jurisdiction ) at para 70 states that " in the case of internal conflicts [it is]… the whole territory under the control of a party, whether or not actual combat takes place there." (emphasis added). In the light of the clear distinction drawn here between the territorial scope of international armed conflict (the whole territory of the relevant state(s)) and the territorial scope of internal armed conflicts (" the whole territory under the control of a party"), we would reject the submission made by both parties that in internal armed conflicts the territorial scope is also (as a matter of definition) the whole of the territory of the state. It may well be that as applied to the facts of most contemporary armed conflicts, the Tadic test will entail a finding that the IHL rules governing armed conflict apply to the whole territory of the affected state (and indeed that is the agreed position between the parties in relation to Iraq). That reflects the frequent reality that, between them, the territories controlled by parties to a conflict normally account for the entire territory of the state. But as can be seen from the discussion of Somalia in HH and others, paras 329-335, 341, there can be exceptions, where for example there are parts of a state under the control of authorities who are not in any effective sense parties to the armed conflict.
- The Tadic approach to territorial scope has been widely followed, e.g. by: the same Tribunal in Prosecutor v Kunarac (paras 57- 58); the International Criminal Tribunal for Rwanda in Prosecutor v Akayesu, Case No. ICTR-96-4-T,Trial Chamber Judgement, 2 September 1998, paras 619-21; the Special Court for Sierra Leone (Prosecutor v Brima et al, Case No. SCSL-04-16-T, Trial Chamber, Special Court for Sierra Leone, judgement, 20 June 2007, paras 343-50; and the International Criminal Court in Prosecutor v Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, International Criminal Court, Decision on the Confirmation of the Charges, 29 January 2007, para 233). Underscoring the point made in Tadic, in Prosecutor v Kunaric at para 57 the Tribunal's Appeal Chamber stated: "[t]here is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war ... ".
- The minimum standards contained in common Article 3 of the 1949 Geneva Conventions were considered by the ICJ in Military and Paramilitary Activities against Nicaragua (Nicaragua v United States of America) Merits, Judgment of 27 June 1986 [1986] ICJ Reports 14 to constitute norms of customary international law applicable in all types of armed conflict. However, common Article 3 does not represent the entirety of the rules of customary international law applicable to all armed conflicts, as can be gleaned from the summary by the Appeals Chamber in the Tadic (Jurisdiction) judgement of the customary rules governing internal conflicts as including:
"protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities" (para 127).
- In the case of an internal armed conflict in which the state on whose territory it occurs has ratified Additional Protocol II, the IHL rules that apply may additionally include those set out in this Protocol (which confer additional protection on civilians). Whether they apply will depend on whether the armed conflict concerned is one which involves armed groups under "responsible command"; and exercising "such a degree of control over a part of [the state's] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol". It must be borne in mind, however, that significant parts of Additional Protocol II are seen to reflect customary international law and also to shed light on the threshold that needs to be reached for there to be an internal conflict as distinct from an internal disturbance.
- Common article 3 contains the requirement that the armed conflict must be one in which there are "[p]arties". "The Tadic test for whether there exists an armed conflict has been seen by the ICTY to call for an examination of essentially two elements only: (1) the organisation of the parties to the conflict and (2) the intensity of the conflict (see Tadic Trial Judgement, para 562; Limaj Trial Judgement para 54; and Trial Chamber in Prosecutor v Milosevic, para 17). However, from the examinations which the ICTY and other international criminal tribunals conduct, it is clear that these two criteria sub-divide further, depending on the factual scenario, so that in Milosevic for example "intensity of the conflict" is analysed under four sub-heads: length or protracted nature of the conflict and seriousness and increase in armed clashes; spread of clashes over the territory; increase in number of governmental forces sent to Kosovo; weapons used by both parties (see paras 25-31). Further, the ICTY along with other international criminal tribunals has continued to conduct examination of these two elements by reference to the non-exhaustive non-obligatory criteria for common Article 3 set out in the Pictet Commentary.
- From the above it would seem that the principal criteria for an internal armed conflict being found to exist can be summarised under the following main heads: "parties to the conflict"; "degree of organisation" (only "some degree of organisation" is required: Prosecutor v Lubanga, ICC-01/04-01/06-803, the Pre-Trial Chamber I, International Criminal Court, Decision on the Confirmation of the Charges, 29 January 2007, Prosecutor v Milosevic, Case No. IT-02-54-T, Trial Chamber, International Criminal Tribunal for the former Yugoslavia, Decision on Motion for Judgment of Acquittal, 16 June 2004); "level of intensity" (which has to be higher than "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, or other acts of a similar nature" (Article 1(2) of Additional Protocol II)); "protraction" (see Milosevic, paras 16-19); and "other relevant factors".
- Prominent among other relevant factors is whether it has been formally considered of concern to the UN. The wording given in the Pictet Commentary is "[t]hat the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression": see e.g. Limaj, Trial Chamber Judgement, para 55; HH and others, para 338.
- Although strictly only an evidential consideration, it is also clear that any official views expressed by the ICRC would be of significance, for the reason that, as was put by the ITFY in Tadic (Jurisdiction) at para 73:
"[o]n account of the unanimously recognised authority, competence and impartiality of the ICRC, as well as its statutory mission to promote and supervise respect for international humanitarian law, it is inconceivable that, even if there some doubt as to the nature of the conflict, the ICRC would promote and endorse an agreement [that of 22 May 1992] contrary to a basic provision of the Geneva Conventions. The conclusion is therefore warranted that the ICRC regarded the conflicts governed by the agreement in question as internal."
- In light of the above we consider that in any case in which the issue arises as to whether a country has "situations of armed conflict" within its territory, it will always be highly relevant for the parties to seek to obtain and produce evidence as to whether the ICRC has expressed a view on this question.
"by reason of indiscriminate violence"
- This provision incorporates a dual requirement: for Article 15(c) to apply there must exist "indiscriminate violence" and the "serious and individual threat" faced must be caused by the indiscriminate violence. A number of commentators (including McAdam, supra at p.72) have found great difficulty with the reference to "indiscriminate violence", since it would appear to denote violence which is by definition random, arbitrary and haphazard. If that is the meaning to be ascribed to the term, then it would appear to negate the possibility of the situation ever being one where there could be a "serious and individual threat", since the latter appears to import some notion of being a target for the threat of violence, i.e. of there being some act which differentiates the victim from people at random. We would agree that if that meaning is given, then the provision of Article 15(c) is beset with difficulties of application. However, we remind ourselves that under EU law principles we must strive to interpret the provisions of a Directive so as to conform with the object and purposes of the Directive and the clear concern expressed by recital 26 that the Directive furnishes guidance on the proper approach to risks that affect the population or sections of the population as a whole. Given that we know the drafters saw IHL as one source for drawing up criteria governing eligibility for subsidiary protection, it is salient to consider what meaning the word "indiscriminate" has in an IHL context. Whilst IHL does not refer to "indiscriminate violence" as such, the adjective "indiscriminate" is used to designate attacks which fail to differentiate between military and civilian targets and Article 49(1) of 1977 Additional Protocol I to the 1949 Conventions (API) expressly defines the term "attacks" as "acts of violence against the adversary, whether in offence or in defence". Article 51(4) of the same Protocol provides that:"[i]ndiscriminate attacks are prohibited". The provision goes on to define indiscriminate attacks as being:
"(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be directed at a specific military objective;
(c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
And consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction".
- Article 51(5) states:
"Among others, the following types of attacks are to be considered as indiscriminate:
(a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."
- Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court proscribes
"Employing weapons, projectiles and materials and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict,…"
- The above provisions only apply to parties to an international armed conflict, but they have been seen to reflect the prohibition on indiscriminate attacks is seen to be part of customary international law. J Henckaerts and L Doswald-Beck, Customary International Law, Vol.1 2005, state the rules as follows:
"Rule 12. Indiscriminate attacks are those:
(a) which are not directed at a specific military objective;
(b) which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law."
- Virtually identical wording is employed in the ICRC publication, The Law of Armed Conflict: Basic Knowledge (2002 edition).
- So it is a general principle of IHL that parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such, nor civilian persons shall be the object of attack. Attacks shall be directed solely at military objectives. The principle underlying the concept of "indiscriminate" deployed in the above sources is sometimes expressed as "the principle of distinction" ("distinction" itself being a word quite opposite to "indiscriminate" in the ordinary sense).
- Henckaerts and Doswald-Beck (supra, at pp.41-2) note that the case law of international criminal tribunals has further clarified the scope of the prohibition on indiscriminate attacks. And we have already cited para 127 of the Tadic (Jurisdiction) judgement in which the Trial Chamber noted that, notwithstanding the limitation of existing rules under IHL treaties governing civil strife:
"… it cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban on certain methods of conducting hostilities" (emphasis added).
- In international law indiscriminate violence also includes violence using means and methods which are in themselves abhorrent, e.g. chemical weapons or poisoning of water wells. Indiscriminate violence of this sort can affect combatants as well as civilians. But under Article 15(c) the focus must be on indiscriminate violence affecting civilians.
- In the light of the above the concept of "indiscriminate violence" (affecting a civilian's life or person) within Article 15(c) is best understood as denoting violence which, by virtue of failing to discriminate between military and civilian targets, violates peremptory norms of IHL.
- So conceived, the notion of "indiscriminate violence" is still a relatively broad one. It is capable of covering violence targeted against civilians directly, because that in itself demonstrates that it is not directed at a specific military objective. It further covers violence where the means and methods (e.g. chemical weapons) disproportionately affects civilians. It is also capable of encompassing untargeted (or random) violence where that amounts to a failure to discriminate between military and civilian targets. But in relation to both types of violence it can only cover them where the violence concerned is closely related, or has a nexus to, the conduct of military operations: we shall return to this qualification shortly.
- It follows from the approach we adopt to the meaning of "indiscriminate violence" that Article 15(c) is not intended to cover threats that are by reason of all kinds of violence. It does not cover purely criminal violence. It does not cover domestic violence or indeed any other type of non-military violence; rather it is violence inflicted by combatants and which is indiscriminate in one or more of the ways identified earlier.
- One consequence of this interpretation is, we accept, that Article 15(c) would not as such assist a civilian in a situation of armed conflict who faced a serious and individual threat from criminal gangs who were exploiting the law and order vacuum caused by the armed conflict to threaten the lives of many residents: take the example of a criminal gang who in the course of stealing oil from a pipeline during an armed conflict killed innocent civilians indiscriminately. It might be said that such exclusion would be unjustified because armed conflicts, particularly internal armed conflicts, are often accompanied by significant levels of violent criminal activity and lowered levels of protection. However, we come back to the underlying purpose of Article 15(c) which in our view is to protect civilians against certain violations of IHL. Criminal acts would, of course, be capable of being sufficiently punished within the framework of domestic criminal law of the country (although this may not necessarily happen in practice), like any other criminal acts. There is nothing in the text of the Directive or in the preparatory documents to indicate that protection against criminal or "domestic" violence (as opposed to violence of particular international concern) was intended. Recital 26, by making clear that risks to which the population are generally exposed are not normally enough, reinforces the view which we have taken. (This is the only point at which, with the benefit of fuller submissions than were available to the Tribunal in HH & others, we depart from its general conclusions on Article 15(c).)
- That said, it will not always be possible to draw an easy distinction between military and criminal activities. We know all too well from the evidence before us in this case, that the line between insurgents and opportunistic criminals is often blurred and the examples from background evidence we were given on Iraq, of insurgents stealing oil from pipelines to fund their armed actions and of police checkpoints which turn out to be manned by criminals in fake police or military uniforms, are two vivid illustrations of how hard it may be to draw the line in some cases. Once again, however, we believe that assistance in developing workable criteria can be drawn from IHL and in particular the case law of the international criminal tribunals. In general terms civilians only lose that status if they take an "…active part in the hostilities" (see common Article 3(1)) and do acts that are closely related to the conflict. The ITFY in Prosecutor v Kunarac had to consider this question in the context of the second of the two general conditions for the applicability of Article 3 of its Statute (that the acts of the accused must be closely related to the armed conflict). Explaining what was meant by "closely related to the conflict" the Tribunal stated at paras 58-9:
"58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict - in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict…
59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrators' official duties".
- The Chamber in Lubanga referred to the need for there to be a "nexus" between the armed conflict and the alleged war crime and stated at para 287:
"In this respect, the Chamber follows the approach of the jurisprudence of the ICTY, which requires the conduct to have been closely related to the hostilities occurring in any part of the territories controlled by the parties to the conflict. The armed conflict need not be considered the ultimate reason for the conduct and the conduct need not have taken place in the midst of battle. Nonetheless, the armed conflict must play a substantial role in the perpetrators' decision, in his or her ability to commit the crime or in the manner in which the conduct was ultimately committed".
- Whilst these decisions apply the "nexus" test under their relevant Statutes (ITFY and International Criminal Court respectively), there is no reason to think that it is not a feature of the law of armed conflict generally. The above approach leaves open that acts or threats which are culpable in international criminal law (including acts or threats of indiscriminate violence) can be committed by criminals, but it makes it clear that that will only arise when their acts are closely related to the armed conflict. The indiciae set out in para 59 of Kunarac above appear to suggest that in the main those whose acts or threats are covered will be mainly combatants who use the existence of an armed conflict to carry out opportunistic crimes, for example rape, but it would appear that under certain circumstances civilians whose criminal conduct amounts to active involvement in the armed conflict will also be culpable. In the analysis we go on give as to how Article 15(c) is to be applied in practice - and in our assessment of the situation in Iraq - we think it prudent to take an inclusionary view of the extent to which violence perpetrated by criminals can be "closely related" to the armed conflict.
- To the extent that in any particular case a decision-maker is looking at whether civilians per se face a serious and individual threat to their life or person by reason of indiscriminate violence, what the above approach requires is that the fact-finder look at the evidence relating to the scale and frequency and geographical distribution of indiscriminate violence. It is not the overall level and degree of violence in the country or the relevant area of the country which is key, although that will be a relevant factor. It is the extent of the violence of a particular kind and (bearing in mind the confinement of the personal scope of Article 15(c) to civilians) the violence which disproportionately threatens the life or person of civilians. In general, the level and degree of targeted violence should not be taken into account, subject to the proviso that what is meant here by "targeted violence" is violence which is conducted within the IHL rules of armed conflict. If, however, the "targeted violence" turns out to consist in acts carried out in the course of hostilities in a way which disproportionately affects civilians, then it should also be taken into account. Mortar attacks carried out without warning targeted on an army post close to a crowded market would likely be included, whereas similar attacks carried out with due warning would likely not be included.
"civilian's life or person"
- This provision, which concerns the focus of the threat, went through five drafting amendments. Dr McAdam ( supra at p.75) notes that the original phrase "life, safety or freedom" was, along with subsequent formulations based around the concept of freedom, eventually deleted due to concern by some Member States that it would unduly widen the scope of the Directive.
- Given the strong reasons for applying an IHL reading to the terms "international or internal armed conflict" and "indiscriminate violence", the phrase "violence to life and person" should also be approached in the same way. Once again, there is a rational basis for such an approach, since the phrase "life and person" occurs in common Article 3 of the 1949 Conventions. That is not exactly the same as the wording in Article 15(c) (which refers not to "violence", but to "serious and individual threat to…"; and also to a "civilian's life or person"), but what is clear from the drafting is that there was concern to place certain limits on those aspects of a civilian's existence which could be protected.
- In our view there are three obvious limits imposed by the phrase "life or person". One is that it clearly is not apt to cover anything to do with civilian objects. The latter is defined by The UK Ministry of Defence Manual of the Law of Armed Conflict (at p.391) as including the following: "dwellings, shops, schools and other places of non-military business, places of recreation and worship, means of transportation, cultural property, hospitals and medical establishments and units". We say that because IHL as a whole does, of course, protect - to a degree - "civilian objects". The Manual further explains that attacks on any of these objects are prohibited unless they are being used for military purposes and they describe the prohibition on directing attacks against civilian objects as contrary to customary IHL: see paras 15.16.
- Mindful, however, that "life or person" is to be given a broad meaning, we would accept that the phrase must encompass the means for a person's survival: see the Manual at 15.19.1.
- The second limit is clear from the differentiation within common Article 3(1) of (a) violence to "life and person" on the one hand and (c) "outrages upon personal dignity, in particular humiliating and degrading treatment" on the other. This juxtaposition shows that within the IHL context the material scope of the phrase "life and person" cannot extend to threats which amount to inhuman and degrading treatment. The inherent limitation of the concept of "life or person" within IHL is further indicated by the fact that in Additional Protocol II (by which time it was felt that the protection of civilians should be given a wider material scope) the wording used was more expansive. Article 4 (2) (a) proscribes:
"violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment, such as torture, mutilation or any form of corporal punishment".
- We reject Mr Husain's contention that this new formulation "life, health and physical and mental well-being of persons" was simply a spelling out of what was implicit in the notion of "person". If that were so, we see no reason why Article 4(2)(e) would contain a separate proscription of "outrages upon personal dignity…".
- Mr Husain also submitted that "life or person" embraces moral as well as physical integrity. He argued that this provision gave effect to the "right to respect for the person", a phrase which appears in Article 27 Geneva Convention IV (which states that "[p]rotected persons are entitled, in all circumstances, to respect for their persons…") and which the Commentary to this article states is a phrase which "must be understood in its widest sense: it covers the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers" ... (p.201). We have the greatest difficulty in accepting that submission. It would require reading the phrase "life and person" out of context and divorced from the evident coverage of moral integrity aspects of a civilian's life in a separate common Article 3 subcategory (Article 3(c)). So far as the phrase "right to respect for the person", as found in Geneva Convention IV is concerned, it relates solely to the status of "protected persons". So far as concerns the use of the phrase in Additional Protocol II, is clear from the ICRC Commentary on it that this Protocol was intended to "strengthen" i.e. to extend the contents of protection from that afforded by common Article 3 (see e.g. paras 4530 and 4532).
- The third limit is that the phrase "civilian's life or person" is clearly specific to the civilian in question. It does not extend, for example, to threats to family members. What happens to a family member may well be a breach of IHL, but the claimant must show a threat to his or her own life and person. Having said that, it may often be that family members, merely due to their relation with another civilian victim, will normally be vulnerable to acts of serious harm in the same manner (compare recital 27).
- We turn to the phrase "serious and individual threat", which itself needs breaking down into its separate components.
"serious"
- It should not necessarily be thought that the notion of "serious" should be the subject of precise definition. It seems to us that it is a descriptor which must take its meaning from the nouns it prefaces: "threat" and "… life or person".
- The adjective "serious" qualifies the concept of threat. The most obvious meaning in that context is that "serious" is intended to say something about the efficacy of the threat and to convey that it is a threat which is not to be taken lightly. In other words, it imports that the threat is one which is credible or cogent in the sense that it is to be taken seriously. Mr Husain's objection to this definition is that it would amount to imposing a double-testing of credibility: not only would a person have to show (under Article 2(e)) substantial grounds for believing that there is a real risk; he would also have to show that there was a real risk of a credible threat. We agree with Mr Husain that it would be wrong to blur the different functions of Article 2(e), which is to define the standard of proof, and Article 15, which is to define certain types of harm. But we do not consider that this understanding of "serious" incorporates a credibility test. It is not saying what the standard is in relation to what has to be proved, but rather something about the form which the harm has to take.
- Mr Husain submitted that "serious" denoted the gravity of the harm and therefore qualifies the phrase "life or person". The principal difficulty with this is that the threat which the paragraph designates is to a civilian's "life or person". It is not easy to follow how a threat to life could be anything less than grave, by its very nature. Whatever "serious" means it must apply equally to threats to the civilian's "life" on the one hand and to the "person" on the other. A further difficulty with the argument that "serious" qualifies the gravity of the harm is that would mean accepting that a threat could only consist in something capable of causing actual (and grave) consequences. It would exclude regarding a person who threatens to kill someone with what turns out to be a fake gun as having made a "serious threat". We consider that in the context of protection of civilians such a definition would be too restrictive. We bear in mind that it is a feature of modern internal armed conflicts that the protagonists often seek to achieve their ends by instilling fear or terror (whether or not they intend to follow through with the threat) as much as by causing actual harm. We adopt the obvious meaning of the word as adumbrated in the previous paragraph.
"individual "
- We note from the Danish Presidency Note (12148/02 ASILE 2002/43) that "the vast majority of Member States supported the "individual" requirement on the grounds that this would avoid "an undesired opening of the scope of this subparagraph".
- The concept of "individual" within Art 15(c) is clearly the focus of recital 26: ("Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm" (emphasis added)).
- Mr Husain, echoing the UNHCR among others, urged us to either "read down" or pay scant regard to this recital. However, there is no gainsaying the influential role of the recital or preambular parts to an EU Directive (see above para 26) , albeit they must yield in the face of any contrary provision of the directive.
- We may begin by rejecting several possible interpretations of "individual".
- It might be suggested that the term "individual" is not to be given full effect by virtue of the fact that although during the drafting stages virtually all Member States were in favour of including it, when it came to implementation some Member States, including Belgium (Lois modifiant la loi du 15 decembre 1980 sur l'access au territoire, le sejour, l'etablissement et l'eloignement des etrangers (15 September 2006) new art 48/4(2)(c)), and Lithuania (Law on the Legal Status of Aliens, 29 April 2004, No IX-2206, Official Gazette No 73-2539, 3 April 2004, art 87) chose not to include it. According to "UNHCR Statement: Subsidiary protection under the EC Qualification Directive for people threatened by indiscriminate violence", January 2008, that is also true of Austria, Finland, Portugal and Sweden. However, it is a basic principle of treaty law (as codified by Article 31(1) of the 1969 Vienna Convention on the Law of Treaties which states that a "treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose") and also of EU law that interpretation of the provisions of a Directive must give full effect to their wording. In any event, the position in the UK is that we are bound to apply the law as it has been implemented in para 339C unless its text is plainly contrary to the Directive. But the two texts are indistinguishable in this particular respect.
- Another suggestion bases itself on the fact that according to the Commission's September 2001 Explanatory Memorandum a source of inspiration for the creation of Art 15(c) was the notion of protection afforded by the Temporary Protection Directive whose definition of "displaced persons" at Article 2(c) covered, inter alia, "persons who have fled areas of armed conflict or endemic violence" without imposing any requirement of individual threat. This suggestion, which we have already commented on, maintains that Art 15(c) should be interpreted to reflect the same broad approach. But that simply ignores that the Directive does impose such a requirement and that the two Directives serve different purposes: the Qualification Directive applies to all situations giving rise to protection needs on the part of third country nationals and stateless persons and requires an individual assessment; the Temporary Protection Directive only applies when collectively Member States have decided that there is a situation of mass influx enabling persons to qualify on the basis of generic criteria.
- It has been argued that Art 15(c), read together with recital 26, imposes – or risks being interpreted as imposing - a requirement that individuals show they have been "singled out" for the relevant type of serious harm. If so that would be reminiscent of an approach to the analogous concept of persecution which in R v Secretary of State for the Home Department ex parte Jeyakumaran [1994] Imm AR 45 was found by Taylor J to erect far too high a threshold. There is no reason to think that, in order for a threat to be "individual", it must be one which is solely directed at the person concerned or exclusively affects only him or her or must be based on a completely personalised set of facts.
- It has been argued that Article 15(c) read with recital 26 effectively imposes a requirement that, in order to show a relevant threat, an applicant must be able to show that he or she would be at "greater risk" than is faced by the population of a country or a section of it. Indeed that would appear to be the position taken in decisions of the German courts: see Asylum in the European Union: a study of the implementation of the Qualification Directive,UNHCR, November 2007 pp.73-74.
- However, the wording of recital 26 is defeasible (…do normally not create…") and clearly allows for the possibility of an individual threat being created by general risks in cases outside the normal run of cases. In any event, the "greater risk" criterion is only erroneous if the real risk being compared is one shared by all members of the relevant class: as in the Article 3 ECHR case of Salah Sheekh v Netherlands, Application No 1948/04, Judgement of 11 January 2007, which concerned a person who was from a Somali minority clan, the Ashraf. Having found on the evidence before it that being an unprotected Ashraf was enough to give rise to a real risk, the ECtHR stated at para 148:
"It cannot be required of the applicant that he establishes that further distinguishing features, concerning him personally, exist in order to show that he was, and continues to be, personally at risk…it might render the protection offered by that provision illusory if, in addition to the fact that he belongs to the Ashraf…the applicant be required to show the existence of further special distinguishing features".
- (For the Tribunal's more recent assessment of the Ashraf, see HH & others, paras 306-308). It has also been argued (including by UNHCR in its 'Note on Key Issues of Concern to UNHCR on the Draft Qualification Directive' (March 2004)) that Article 15(c) effectively precludes the possibility of group persecution or collectively-experienced serious harm. Once again, that argument overlooks the defeasible nature of recital 26, which clearly allows for the possibility that in certain (albeit abnormal) situations a relevant threat can be one which is at once general and individual.
- Nevertheless, it seems to us that "individual" does require that it be shown that the threat is personal to the applicant. It seems to us that in combination with "serious" this word creates a high threshold directly analogous to the well-established high threshold required under the Refugee Convention and the Human Rights Convention. HH & others at para 331 states that "the concept of an "individual" threat requires there to be some form of "differential impact", of the kind recognised by the House of Lords for the purposes of the 1951 Convention in Adan [1999] 1 AC 293 and by the ECtHR for the purposes of Article 3 in Vilvirajah…". The approach we take is consistent with that since on our view (unless civilians generally face a real risk of serious harm personal to them –and so differentiating them - all) merely being a civilian will not suffice; something more, relating to the person's specific characteristics or profile or circumstances, must be shown.
"threat"
- As already noted, when considering Article 15(c) as a whole it is apparent that the type of harm specified in Article 15(c) is different in character from that specified in Article 15(a) and (b). The term "threat" shows that, so long as it is a threat which is serious (and individual), the danger alone (if of a relevant kind) can be sufficient. If it had been intended only to cover the real risk of the proscribed ill treatment itself, then we are confident that different wording would have been used, as in sub-paragraphs (a) and (b).
- Equally, however, the threat can only constitute "serious harm" if it is one which takes a particular form viz, one which amounts to a "serious and individual" threat and in circumstances arising by reason of indiscriminate violence in situations of armed conflict.
- So far as the IHL context is concerned, it is noteworthy that there is strong recognition of the ability of threats to give rise to serious violations. Thus Article 2 of Additional Protocol II prohibits at any time and in any place whatsoever (a) violence to the life, health and physical or mental well-being of persons' including at (h) "threats to commit any of the foregoing acts"; Article 13 of the same Protocol prohibits "acts or threats of violence the primary purpose of which is to spread terror among the civilian population" (emphasis added). Henckaerts and Doswald-Beck (supra) identify threats as well as acts of various kinds as contrary to international humanitarian law: see Rule 2. Indeed, it is a commonplace observation that many types of terrorist attack (whether or in the context of an armed conflict or not) depend for their effect less on actual harm than on the perceived threat of repetition.
- It seems to us that the only sustainable argument in favour of the view that Article 15(c) has any "added value" or scope additional to Article 15(b) derives from this fact: that it is constructed around what in itself is a lesser form of harm than actual harm: a threat of harm. We note in this regard that whilst our view broadly accords with that expressed by H Battjes in European Asylum Law and International Law at pp.239-240 we think his reliance upon a difference between the "real risk" criterion and the "serious threat" criterion is problematic. The latter, he says, is more lenient than the former. That, it seems to us, is to confuse the Article 2(e) requirement that there must exist a "real risk" of serious harm with the concept of serious harm (of which the "serious and individual threat" provision is one component). But the point he makes about the difference between the real risk of actual harm and the real risk of a threat of harm remains in our view a valid one.
- In our view the above analysis of the constituent elements of Article 15(c) ensures that the provision has effet utile whilst paying due regard to the restrictions arising from the wording chosen.
Application of Article 15(c)
- Having analysed the constituent elements of Article 15(c) we need to consider how the provision is to be applied in practice.
- If the claimant's country of origin is clearly free of situations of armed conflict, then there will be no need to consider his claim under Article 15(c). He or she may have a claim under Article 15(b) or (less commonly) 15(a), but Article 15(c) can be excluded.
- If, however, the claimant's country is one in which it might be said that there are situations of armed conflict, then (unless an appellant succeeds under Article 15(b) in any event) Article 15(c) must be considered. Precisely in which order the requirements of Article 15(c) are best taken and in what detail (if any) will depend very much on the circumstances of the particular case. If the person concerned is plainly not a civilian (e.g. a soldier who on return faces punishment for breaches of military discipline), then he is outside the scope of Article 15(c) in any event. In certain cases it may be obvious that even if the claimant can meet all the other requirements of the paragraph he or she cannot show a "serious and individual threat"; if that is so, then there would be little point in making findings on the other requirements. But where that is not the case, then the most logical ordering is to consider first (as we have done when analysing the law) whether there exists a situation of "international or internal armed conflict", next whether it is "by reason of indiscriminate violence" and finally whether there arises a "serious and individual threat to a civilian's life or person". So far as concerns the question of whether there exists an "internal or internal armed conflict", we have already noted the practical utility of parties to appeals seeking first to ascertain whether the ICRC has taken a view on whether for IHL purposes there exists in the particular country concerned situations of international or internal armed conflict.
- As already noted, what has to be examined is whether there are "substantial grounds for believing that the person concerned, if returned …would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) [the exclusion clauses] do not apply and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country": see Article 2(e) and the mirroring provisions of para 339C of the Immigration Rules.
Risk to civilians per se
- A prominent feature of this case is that the appellant has asked us to find that he qualifies under Article 15(c) solely by virtue of the fact that he is a civilian from Iraq. It is only if we refuse him on that basis that he asks us to go on to consider whether he can qualify by virtue of other characteristics (being male, from Kirkuk, of mixed (Sunni) Arab/Kurdish ethnicity).
- Before we embark on evaluating the risk to civilians in Iraq as a whole, it is important that we consider what type of evidence could be expected to show such a generic risk.
- It is settled law that where it is claimed that a class of persons faces a real risk it is necessary to show that there is evidence of a consistent pattern of serious harm being faced by that class of persons so as so meet the "generally or consistently happening" test set as approved in AA (Zimbabwe) [2007] EWCA Civ 149, paras 21-23.
- Applying this principle to a class consisting of civilians, we consider that in order to show that mere membership of such a broad class of person places one at real risk of serious harm it would not suffice to point to evidence of the mere - or even common - occurrence (or likely occurrence) of acts or incidents of indiscriminate violence. One would have to show that they were happening on a wide scale and in such a way as to be of sufficient severity to pose a real risk of serious harm (including a real risk of a serious and individual threat within the meaning of Article 15(c)) to civilians generally. Only if such violence is generally happening in this way can one treat it as a strong indicator that the individuals who make up the class of civilians will face a real risk of being exposed to a serious harm which all in general share. Only too if such indiscriminate violence is generally happening in this way will it be possible to justify treating the situation as an exception to the general rule set out in recital 26, that "[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm".
- As already noted, by virtue of the meaning we attach to "indiscriminate violence" the focus of the assessment of the nature and scale of the violence in a particular country or area must be on violence with is closely related to, or has a nexus to, the conduct of military operations, albeit we think it prudent to take a broad view of these requirements so as not to discount criminal violence which can be said to be substantially linked to the conduct of operations by combatants.