MOSCOW, January 30 (RAPSI, Ingrid Burke) – The Court of Justice of the European Union (Court) has concluded that under EU law, the definition of ‘internal armed conflict’ must be independent of that used within the parameters of international humanitarian law, according to a statement released by the court Thursday.

The Court’s conclusion is summarized by the statement in the following terms: “An internal armed conflict must be found to exist where a State’s armed forces confront one or more armed groups or where two or more armed groups confront each other, regardless of the intensity of the confrontations, the level of organisation of the armed forces involved or the duration of the conflict.”

A 2004 EU directive offers subsidiary protection to any applicant that – although ineligible for refugee status – face a “real risk of suffering serious harm” upon return to their home country, and who is unable or unwilling based on the given risk to avail himself of his home country’s protection.

According to the directive, serious harm refers in this context to: the death penalty or execution, torture or inhuman or degrading treatment or punishment, and “serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

The present ruling arose from the case of a Guinean national Aboubacar Diakité, who applied in 2008 and 2010 for protection in Belgium, claiming that he had faced violent repercussions after having protested against the ruling regime in his home country.

His applications were refused due to the fact that the situation in Guinea did not rise to the level of an internal armed conflict under international humanitarian law.

The Belgian Council of State (BCS) then referred the case to the EU Court of Justice, seeking elucidation on whether the concept of internal armed conflict should be interpreted independently of its definition under international humanitarian law.

The BCS referred specifically in its inquiry to Common Article 3 of the four Geneva Conventions of August 12, 1949, which establishes certain minimum rules of conduct for conflicts that are not of an international character.

The Court confirmed in its ruling that the concept of internal armed conflict as referred to in the EU directive should not be viewed as a direct reflection of its use in international humanitarian law, reasoning that the concept under international humanitarian law applied to the broader concept of “armed conflict not of an international character.”

Furthermore, international humanitarian law does not deal with subsidiary protection, and thus does not identify situations giving rise to the imperative of such protection, according to the statement.

Accordingly, the statement notes: “The Court concludes from this that the concept of ‘internal armed conflict’ must be given an autonomous interpretation.”

Anticipating the possibility that the Court might hold that the concept of internal armed conflict should be given an independent interpretation, the BCS sought clarification on the criteria for determining the existence of such.

The court explained that within the context of the EU Directive, internal armed conflict refers to a situation where a state’s armed forces confront one or more armed forces, or where two or more armed groups confront one another. Furthermore, a finding of the existence of an armed conflict should not be conditioned on the intensity, organization, or duration of the conflict, according to the statement.

Still, such a conflict can only give rise to subsidiary protection under the following circumstances: “an applicant for subsidiary protection would face a real risk of suffering serious and individual threat to his life or person solely on account of his presence in the territory concerned.”