Humanitarian Law May not Procure EU Asylum

(CN) - National courts and immigration officials should apply EU law - not international humanitarian law - to asylum seekers fleeing armed conflict in their home countries, Europe's highest court ruled Thursday.

The case involves Aboubacar Diakite, who fled his native Guinea for Belgium on grounds that he had been roughed up after protesting against the country's ruling regime. Belgian authorities refused to grant him asylum, however, after finding no official armed conflict or indiscriminate violence in Guinea at that time.

Diakite appealed that decision to the Belgian Council of State, arguing that the definition of internal armed conflict under EU law differs from case-law developed by the Geneva Convention and the war crimes tribunal for the former Yugoslavia. The appeals court then asked the Court of Justice of the European Union which definition applied to Diakite's situation.

The Luxembourg-based high court noted Thursday that EU lawmakers "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, provided that such conflict involves indiscriminate violence. In that context, it is not necessary for all the criteria referred to in the Geneva Convention to be satisfied."

While international humanitarian accords protect civilians living in a war zone, they do nothing for people who live outside the conflict's boundaries. The EU law in question bolsters the protection of the latter, the court said.

"It should be borne in mind that the existence of an internal armed conflict can be a cause for granting subsidiary protection only where confrontations between a state's armed forces and one or more armed groups or between two or more armed groups are exceptionally considered to create a serious and individual threat to the life or person of an applicant for subsidiary protection for the purposes of EU law because the degree of indiscriminate violence which characterizes those confrontations reaches such a high level that substantial grounds are shown for believing that a civilian, if returned to the relevant country or, as the case may be, to the relevant region, would - solely on account of his presence in the territory of that country or region - face a real risk of being subject to that threat," the court wrote.

The justices continued: "It is not necessary for that conflict to be categorized 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 organization of the armed forces involved or the duration of the conflict."

Diakite's case heads back to the Belgian court for a final decision, although it is bound by the EU high court's reading of the law.

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