On January 30, the Court of Justice for the European Union discussed the criteria for determining when an internal armed conflict exists, and held that it does not require the level of intensity often cited as the standard legal test for an armed conflict not of an international character (also called a “non-international armed conflict” or “NIAC”).
The case is Aboubacar Diakité v. Commissaire général aux réfugiés et aux apatrides. Diakité is a Guinean national who sought political asylum in Belgium. EU directives provide “subsidiary protection” even for people who do not qualify as refugees, if they “face a real risk of suffering serious harm” if they were returned to their home country. The EU directive defines “serious harm” 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)).
The case required the CJEU to determine what counts as an internal armed conflict. The Court seized on the fact that the directive did not use the standard IHL dichotomy between international armed conflicts and armed conflicts “not of an international character”; instead, it spoke of international and internal armed conflicts. It deduced that “the EU legislature wished to grant subsidiary protection not only to persons affected by ‘international armed conflicts’ and by ‘armed conflict not of an international character,’ as defined in international humanitarian law, but also to persons affected by internal armed conflict.” This may seem puzzling, because typically an internal armed conflict is taken as the paradigm case of a conflict not of an international character. Indeed, until the U.S. Supreme Court’s 2006 Hamdan decision held that the U.S. conflict with al Qaeda is a NIAC, the U.S. government’s position was that only internal armed conflicts count as NIACs.
That’s not how the CJEU sees it. It notes that the usual legal test for a NIAC, based on Additional Protocol II of the Geneva Conventions and the ICTY’s 1995 Tadic decision, require that the non-state armed groups in the conflict reach a minimum threshold of organization and that the violence be protracted and reach a minimal level of intensity. (These are all vague terms, of course — there has never been a precise definition of what those thresholds are.) In Diakité the Court rejects those criteria, at least for purposes of interpreting the asylum/special protection directive. It observes, “The usual meaning in everyday language of ‘internal armed conflict’ is a situation in which a State’s armed forces confront one or more armed groups or in which two or more armed groups confront each other” (§28), and the relevant factor is how much risk that confrontation poses to the person seeking protection.
Therefore, “it is not necessary, when considering an application for subsidiary protection, to carry out a specific assessment of the intensity of such confrontations in order to determine, separately from the appraisal of the resulting level of violence, whether the condition relating to armed conflict has been met” (§32). Furthermore, “the finding that there is an armed conflict must not be made conditional upon the armed forces involved having a certain level of organisation or upon the conflict lasting for a specific length of time” (§34). And here’s the conclusion (§35):
Consequently, the answer to the question referred is that, on a proper construction of Article 15(c) of Directive 2004/83, it must be acknowledged that an internal armed conflict exists, for the purposes of applying that provision, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as ‘armed conflict not of an international character’ under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict.
The Court is focusing, of course, on a very special context: the eligibility of people fleeing violence for legal protection against being sent back into the situation they were fleeing. It’s an inquiry tailored to the individualized threat the person faces, and the Court doesn’t purport to be giving an all-purpose definition of “internal armed conflict.” Nevertheless, it’s a noteworthy decision that could ultimately have an impact on the definitions of armed conflict in IHL.