Protection from ‘internal armed conflict’ in EU law: The Diakité case

What is an ‘internal armed conflict’ in EU law? This was a question which the Belgian Conseil d’État referred to the Court of Justice of the European Union (CJEU), asking in essence whether this concept is to be understood as defined in international humanitarian law (IHL) or as a term with an independent meaning in the Union legal order.

On 30 January 2014, the CJEU gave its answer in the Diakité judgment, which concerns the granting of ‘subsidiary protection’ to third country nationals as well as stateless persons who seek refuge in the EU from such ‘internal armed conflicts’. By giving an autonomous meaning to the latter term in EU law, the CJEU has spoken up for a lower threshold for receiving such status throughout the 28 Member States. While this is, from a legal point of view, a highly interesting case with regard to the relationship between EU law and international law, it amounts, more practically speaking, to good news for all those in search of shelter from violence-ridden regions on a continent marked by an increasing reluctance to welcome foreigners (note most recently the successful Swiss referendum on limiting mass immigration).

Facts of the case: From Guinea via Brussels to Luxembourg

The litigation concerned Mr. Diakité, a Guinean national, who has repeatedly applied for asylum in Belgium since 2008 due to the sustained violence and repression in his home country. The Belgian authorities had denied him both refugee status as well as subsidiary protection, finding that there was no ‘armed conflict’ in Guinea, which is a requirement to obtain such protection. After failing in the first instance, he appealed to the Conseil d’État, arguing that the decision of the authorities erroneously relied on the definition of ‘armed conflict’ as defined in IHL and as construed by, for example, the International Criminal Tribunal for the Former Yugoslavia in the Tadić case.

This raised an issue of EU law, which prompted the Conseil d’État to stay its proceedings and seek clarification from the CJEU. The European Union has established a common asylum policy as part of its Area of Freedom, Security and Justice. To that end, certain minimum standards have been introduced through legislation, notably Directive 2004/83/EC of 29 April 2004. The rationale behind the Directive is to ‘ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and […] to ensure that a minimum level of benefits is available for these persons in all Member States’ (Recital 6).

Next to refugee status, which covers individuals facing persecution, the Directive provides for so-called ‘subsidiary protection’. The latter applies to persons who ‘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’ and who are ‘unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country’ (Article 2(e)). Serious harm is subsequently defined as ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’ (Article 15(c)). Consequently, the existence of an international or internal armed conflict is a conditio sine qua non for obtaining subsidiary protection under the Directive.

Semantics matter: Defining ‘internal armed conflict’

In IHL, Common Article 3 to the Geneva Conventions uses the concept of  ‘armed conflict not of an international character’, but does not define that term further. Article 1 of Additional Protocol II of 1977 to the Geneva Convention applies to ‘armed conflicts […] which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’ (para. 1). It further clarifies that it ‘shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’ (para. 2). Hence, as long as the government’s armed forces are not involved, and as long as a certain threshold of intensity is not reached, there is no armed conflict in the sense of IHL. In such a case, using this definition, there can be no subsidiary protection for anyone fleeing from such ‘minor’ conflicts.

The question for the CJEU now was whether to equate the concepts of an ‘internal armed conflict’ from Directive 2004/83/EC and of a ‘non-international armed conflict’ from IHL for the purpose of interpreting EU law, and consequently for the application of the law of the Member States in conformity with EU law.

Advocate General Mengozzi, in his Opinion of 18 July 2013 (thus far not available in English) stressed the need for the EU to respect international law and to interpret its own secondary legislation in conformity with it. After all, the ‘strict observance’ of international law is a constitutional objective of the European Union ever since the Lisbon Treaty (Article 3(5) TEU). However, while that is true in principle, he elaborated that such an interpretation was contingent upon a ‘hermeneutical coherence’  (cohérence herméneutique) between the different legal acts in question (para. 27). Given the different subject matter, purposes of and consequences which follow from, on the one hand, the application of rules of IHL and on the other, international protection as a matter of human rights, he concludes that ‘internal armed conflict’ as used in the Directive should not be directly linked to the definition from IHL.

The CJEU, in its much more concise judgment, followed the Advocate General in its reasoning. It stressed that ‘[w]hile international humanitarian law is designed, inter alia, to provide protection for civilian populations in a conflict zone […], it does not […] provide for international protection to be granted to certain civilians who are outside both the conflict zone and the territory of the conflicting parties’, as is the object of Directive 2004/83 (para. 23). Furthermore, the Court noted that the intrinsic link between IHL and international criminal law was absent in the case of international  protection as granted by the Directive. Hence, instead of using the criteria from IHL, the CJEU develops a more flexible approach which takes into account the individual situation of the applicant. Drawing on its earlier ruling in Elgafaji (a preliminary reference from the Dutch Raad van State), it notes that ‘the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection’ (para. 31). In contrast, an overall level of intensity, a certain duration of the conflict or the involvement of the government’s armed forces are not required to trigger eligibility for subsidiary protection.

More autonomy from international law, easier access to protection in the EU

For those scholars fearing the ‘fragmentation of international law’, the disconnection of this particular aspect of EU law from international law may seem like bad news. This could even signal a trend in Europe, recalling the judgment of the European Court of Human Rights from 2012 in Hirsi Jamaa and Others v. Italy in the area of refugee law. In this case involving Somali and Eritrean migrants boating towards the shores of Italy from Libya, the Grand Chamber ruled unanimously that Italy had acted contrary to obligations under the European Convention on Human Rights by committing mass expulsion of aliens. The International Court of Justice, presumably, would not have come to the same conclusion.

For people such as Mr. Diakité, on their part, the judgment helps to avoid being caught between two stools: having to flee their home countries because of threats to their lives due to indiscriminate violence, but failing to receive protection elsewhere since the violence from which they escaped is not considered ‘serious enough’. As for the EU, the CJEU highlights the aspect of ‘Justice’ within the Area of Freedom, Security and Justice, which encapsulates such values as human dignity, the respect for human rights and solidarity – values, as Advocate General Mengozzi rightly stressed in his Opinion (para. 96), upon which the EU and its legal order are ultimately founded (Article 2 TEU).

* The author would like to thank Anja Mihr, Jill Coster van Voorhout, Laurens Ankersmit and Vanessa Franssen for their helpful comments. This post will also appear on the website of The Hague Institute for Global Justice.