1. Introduction and context
Scholars have been paying increasing attention to the relationship between international law and the EU legal system, covering a broad spectrum of areas.Footnote 1 The interaction between these two legal orders has been abundantly influenced by the approach developed by the Court of Justice of the European Union (CJEU).Footnote 2 A recent pronouncement of the Court in the case of Diakité Footnote 3 has driven such relationship to the area of asylum, adding another piece to the thriving case law that the Luxembourg Court began to develop in the past few years in this specific field.
Even though the contours of the EU legal order have been progressively defined by the consistent jurisprudence of the Court of Justice, it must be noted that the ‘communitarization’ of the law governing asylum and immigration is a relatively recent phenomenon within EU law. In fact, prior to the 1997 Treaty of Amsterdam,Footnote 4 it would have seemed unrealistic to address these types of issues. Therefore, ‘it is hardly surprising that there has been little in the way of jurisprudence in this area to date’.Footnote 5
Nonetheless, in the past few years, this situation has been changing with the arrival at the Court of preliminary reference procedures on the legal instruments adopted under the former Title IV of the European Community Treaty (ECT), including two Regulations and four Directives, aimed at developing a Common European Asylum System (CEAS) and representing the core of the so-called ‘asylum acquis’.Footnote 6
Yet while this has remained rather limited until recently, the case law on asylum matters is currently experiencing great momentum, playing in different occasions a major role in interpreting the unclear provisions of the EU asylum legislation:Footnote 7 the judgment of 30 January 2014 in Diakité is one of these cases.
This case concerns the interpretation of the ‘Qualification Directive’ (QD) 2004/83/EC, recently replaced by the recast Directive 2011/95/EU,Footnote 8 which defines the eligibility grounds for subsidiary protection, a legal status that complements refugee status as established by the 1951 United Nations Convention on the Status of Refugees.Footnote 9 In particular, in Diakité, the CJEU was asked for a preliminary ruling by the Belgian Conseil d’État, which referred the question of whether the notion of ‘internal armed conflict’, as referred to in Article 15(c) QD, had to be interpreted in the light of International Humanitarian Law (IHL) and, if not, what interpretation had to be given. The purpose of such request was, in fact, to assess if the person concerned was entitled to benefit from the protection envisaged by the aforementioned Directive.
Accordingly, the case offers another occasion to consider the interrelation between international law and the EU legal order. In this context, whether it is permissible to interpret differently the same notion of ‘internal armed conflict’ in two branches of law, namely IHL and EU asylum law, will be discussed. As normally happens with matters concerning the interaction between different bodies of law, the Diakité judgment has already given rise to various debates.Footnote 10 Nonetheless, in an attempt to continue this interesting discussion, the article aims to investigate further issues which are worth examining, namely the impact of this ruling on the whole system of international protection developed by EU law and its contribution to the interrelation between international law and the EU legal order.
While tackling the sensitive issue of clarifying the meaning of ‘internal armed conflict’ in the context of granting subsidiary protection under the Qualification Directive, the Court ultimately provided an autonomous interpretation that goes beyond IHL, overtaking the criteria that would not favour the main objective of the Directive to ease the identification of ‘persons genuinely in need of international protection’.Footnote 11 This article will thus consider whether disconnecting the Qualification Directive from IHL by allowing autonomous interpretations of the same concepts in different contexts, instead of producing further fragmentation of international law as suggested by some scholars,Footnote 12 may contribute to its defragmentation conceived of as a harmonic co-ordination of different branches of law.Footnote 13
In view of this twofold perspective, the article will initially put the case of Diakité into the EU asylum law context and analyze the system of qualification for ‘subsidiary protection’ under the Qualification Directive and the differentiation of the notion of subsidiary protection from the system of the Refugee Convention (Section 2). Next, the research will focus on the notion of ‘internal armed conflict’ as defined in international law (Section 3) before exploring in greater detail the different interpretation elaborated upon by the CJEU in the case of Diakité (Section 4). Such analysis will eventually investigate how the pronouncement impacts on the EU asylum acquis and will offer another perspective to shed light on the interrelation between international law and the EU legal order, answering the question whether IHL is still an appropriate framework to interpret the provisions on subsidiary protection in the EU (Section 5).
2. The qualification for ‘subsidiary protection’ under EU asylum law
Since one of its early rulings in the field, the EU Court of Justice acknowledged that the objective of asylum is to preserve the integrity of the person and individual liberties, ‘issues which relate to the fundamental values of the Union’.Footnote 14 To this end, since the Tampere Conclusions of 1999, the EU embarked on establishing the CEAS as a ‘constituent part of an Area of Freedom, Security and Justice’ that:
emerged from the idea of making the European Union a single protection area for refugees, based on the full and inclusive application of the Geneva Convention [on the Status of Refugees] and on the common humanitarian values shared by all Member States.Footnote 15
From this point of view, the Qualification Directive ‘shows. . . the characteristic trait that the asylum phenomenon has assumed in recent years in Europe.’Footnote 16 EU member states have been called upon to cope with a flow of asylum seekers who do not seem to fall within the definition of refugee enshrined in Article 1(A)2 of the 1951 Refugee Convention. The latter codified a notion based upon the personal fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The Qualification Directive is, therefore, considered by far one of the most innovative pieces of EU asylum law as it elaborates on the status associated with two different categories of asylum seekers: the refugee; and the person otherwise in need of international protection. It represents the first instrument whose aim is ‘to harmonise complementary protection, in the Directive's terms “subsidiary protection”’.Footnote 17
A person eligible for subsidiary protection is a third country national or a stateless person who, despite not qualifying as a refugee stricto sensu, ‘. . .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’.Footnote 18 Accordingly, subsidiary protection may be granted only to those persons who do not fulfill the criteria to obtain refugee status.
The concept of ‘serious harm’, as enshrined in Article 15 of the Directive, plays a quintessential role in legitimizing any grant of subsidiary protection. The provision highlights the following three grounds of ‘serious harm’: a) death penalty or execution; b) torture or inhuman or degrading treatment; and 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’.Footnote 19
While the first two hypotheses, which have been inspired by Protocols 6 and 13 and Article 3 of the European Convention on Human Rights (ECHR) respectively, did not foster particular interpretative concerns,Footnote 20 the latter situation has become highly problematic due to its ambiguous and even contradictory wording, which is the result of different preliminary versions and amendments.Footnote 21
A preliminary version (the one originally proposed by the Commission) of Article 15(c) made reference to widespread human rights violations,Footnote 22 but it was harshly objected to by member states during the negotiations. As a consequence, the notion of ‘serious harm’ eventually refers to situations of indiscriminate violence in armed conflicts.
It is worth mentioning that the CJEU decision in Diakité is the only ruling rendered on the provision under Article 15(c) of the Qualification Directive since the earlier Elgafaji case.Footnote 23 The latter is therefore a necessary reference to understand the reasoning developed by the Court in Diakité.
In Elgafaji, the Court for the first time delved into the particularities of the Qualification Directive. On that occasion, the CJEU specifically underscored that the ‘serious and individual threat’ required by Article 15(c) in order to obtain subsidiary protection can:
exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict . . . reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country. . ., solely on account of his presence on the territory of that country or region, face[s] a real risk of being subject to that threat.Footnote 24
In other words, asylum seekers do not have to advance a differentiated personal threat when the degree of violence is such that any person subject to it may face a real risk under Article 15(c).
In this regard, the Court, to address the question whether Article 15(c) had to be interpreted in line with Article 3 ECHR on the right not to be subject to torture or inhuman treatment, as interpreted in the case law of the European Court of Human Rights (ECtHR), pointed out that this provision had to be interpreted independently. The protection envisaged by Article 15(c) of the Qualification Directive is, in fact, not comparable to that stemming from the jurisprudential application of Article 3 ECHR.
Article 15 QD is a composite provision that defines ‘serious harm’ as in Article 3 ECHR only in situation under letter b). The reference to the hypothesis of ‘serious and individual threat . . . by reason of indiscriminate violence in situations of international or internal armed conflict’ has to be interpreted differently from Article 15(a) and (b). Article 15(c) would, rather, build on the specific system of asylum seekers’ protection, established within EC law and considered by the CJEU to be ‘fully compatible with the ECHR, including the case law of the European Court of Human Rights relating to Article 3 of the ECHR’.Footnote 25
Following this reasoning, in light of a comparison among the Refugee Convention, the ECHR and the QD, the CJEU concluded that the latter instrument not only incorporates the standard of protection envisaged by the Refugee Convention and the ECHR, but it also contains a special protection in a context of an armed conflict that is not provided for in other international instruments.
Therefore, by ascertaining that the provision at issue ‘has its own field of application’,Footnote 26 the CJEU stressed the autonomy of the EU asylum acquis, which has been also underscored in the Diakité case. On this last occasion, Article 15(c) came again at issue as regards the notion of ‘internal armed conflict.’
To thoroughly assess how the Court's interpretation differed from that provided by international law and what the potential repercussions are, the notion of ‘internal armed conflict’, as accepted in international law, will first be examined, before exploring the CJEU's rationale in the case at issue.
3. In search of a definition: the notion of ‘internal armed conflict’ in international law
Although representing the vast majority of armed conflicts throughout the international community, ‘internal armed conflicts’ (‘armed conflict not of an international character’, in IHL terms) have traditionally received scant regulation in international law, owing to the perception of states that this constitutes a violation of their sovereignty and interference in their internal affairs. In fact, it has been argued that ‘for decades, an authoritative definition of a non-international armed conflict proved elusive’.Footnote 27
Two bodies of law in particular have come to play a crucial role in defining and regulating internal armed conflict, namely international humanitarian law and international criminal law.Footnote 28 Nonetheless, only the latter eventually provided a neat definition, elaborated by the International Criminal Tribunal for the former Yugoslavia (ICTY), while IHL instruments, such as the 1949 Geneva Conventions and its 1977 Additional Protocol II, left the notion mostly undefined.Footnote 29 By and large, as highlighted by the UN High Commissioner for Refugees (UNHCR), there is no single authoritative definition of internal armed conflict in international law – international humanitarian law and international criminal law offer definitions for their own objects and purposes. Footnote 30
Both contributions will be subsequently assessed to reach the preliminary conclusion that an unequivocal notion of internal armed conflict does not exist in international law. By contrast, one may acknowledge that the accepted notion of ‘internal armed conflict’ in international humanitarian law has been refined by the jurisprudence of international criminal law tribunals, and notably by the ICTY.
3.1. Article 3 common to the Geneva Conventions on IHL and Additional Protocol II
Prior to the 1949 Geneva Conventions,Footnote 31 no substantive provision of IHL specifically applied to situations of non-international armed conflicts. Article 3 which is common to the four Geneva Conventions ‘was the first provision of its kind to deal specifically with humanitarian protection in situation[s] of non-international armed conflict’.Footnote 32 Nonetheless, instead of defining a non-international armed conflict, it sets forth only ‘minimum’ provisions that each Party shall be bound to apply in case of armed conflict not of an international character.
The explanation of what is meant by ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’Footnote 33 was the ‘burning question’ which arose during the Diplomatic Conference:Footnote 34 ‘the expression was so general, so vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms - any form of anarchy, rebellion, or even plain banditry’.Footnote 35 Nonetheless, in the travaux préparatoires it is clear that the intention of the drafters that the expression had to be interpreted as having the same meaning as ‘civil war’ ultimately played a crucial role.Footnote 36
A certain number of conditions, that have been suggested by Jean Pictet and build upon the discussions during the diplomatic conference before drafting Article 3, help qualify a conflict as of non-international character.Footnote 37 On the whole, an internal armed conflict normally entails three main elements, such as: an uprising against the de jure government;Footnote 38 the existence of a structure providing insurgents with an organized military force, an authority responsible for its acts, or even a de facto authority over persons within a determinate portion of the national territory;Footnote 39 and 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. The above criteria may largely be useful to distinguish an armed conflict from a mere act of violence or a fleeting insurrection.
Further attempts to clarify the scope of Article 3 led to the adoption of the 1977 Additional Protocol II to the Geneva Conventions which specifically addresses the protection of Victims of Non-International Armed Conflicts,Footnote 40 and, as it was emphasized, it ‘goes a long way to putting flesh on the bare bones of common Article 3’.Footnote 41 As such, Article 1 clearly states that the Protocol is meant to develop and supplement Article 3 common to the Geneva Conventions.
In an attempt to provide further clarification, it is commonly accepted that Article 1 of the Additional Protocol II narrows down the scope of ‘internal armed conflict’.
First, the Protocol addresses only the cases of internal conflicts waged by insurgents against the de jure government. The first paragraph of Article 1 confirms that the Protocol ‘shall apply to all 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’,Footnote 42 the latter needing to control a part of the State's territory. However, such an element is not required under Common Article 3 to the Geneva Conventions.
Secondly, paragraph 2 specifically states that ‘this Protocol 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, as not being armed conflicts.’Footnote 43
As a result of this higher threshold, all conflicts that meet the Protocol's criteria also fall under the scope of Common Article 3, while the contrary does not hold true.
3.2. The contribution of the International Criminal Tribunal for the former Yugoslavia
In its ruling in Diakité, the EU Court of Justice did not only mention IHL provisions to describe the international law background of the case but also highlighted the relevant contribution to the definition of ‘internal armed conflict’ by international criminal law, notably the case law of the ICTY.Footnote 44
In the context of the trial of Dušco Tadić, the ICTY Appeals Chamber set out a test for the existence of an armed conflict, observing that ‘an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.Footnote 45
In very concise wording, the ‘Tadić formula’ encompasses a broad typology of internal armed conflict which is not limited only to the strife between governmental forces and armed insurgents. Through this definition, the ICTY Trial Chamber refined the succinct definition under Common Article 3 of the Geneva Conventions, and singled out two paramount conditions, relating to: (a) the intensity of the conflict; and (b) the level of organization of the actors involved respectively, in order for a situation to be considered an internal armed conflict.Footnote 46 Even though it has been argued that the ‘Tadić formula’ relies on elements that are well steeped in the longstanding practice of armed conflicts,Footnote 47 it has to be stressed that the ‘authoritative’ application of the aforementioned twofold criterion to situations of internal armed conflicts by the ICTY could ultimately put flesh on the bones of Common Article 3, succeeding where Additional Protocol II failed.
The Tadić definition of ‘internal armed conflict’ has been constantly used not only by the ICTY case law but also in UN Special Rapporteurs’ reportsFootnote 48 and in the jurisprudence issued by other international criminal law tribunals,Footnote 49 it was eventually included into the Rome Statute of the International Criminal Court,Footnote 50 and it has been agreed in literature that ‘it is arguably now the most authoritative formulation of the threshold associated with Article 3’Footnote 51 of the Geneva Conventions.
In sum, it is possible to conclude that there is no ‘statutory definition’ of internal armed conflict in international law, but ‘different criteria need to be fulfilled for an armed conflict to exist’.Footnote 52 To this end, national decisions have relied either on the common Article 3 definition of internal armed conflict, as complemented by the Tadić formula or on the criteria set out by Additional Protocol II.Footnote 53 In contrast, in its recent judgment the EU Court of Justice did not interpret the concept of ‘internal armed conflict’ in the light of international law.
4. The notion of ‘internal armed conflict’ through the lens of the EU Court of Justice
The short excursus on the definition of ‘internal armed conflict’ in international law underscores the significance of the interpretation recently provided by the EU Court of Justice in Diakité.
The notion at issue represented the key element of the proceeding at domestic level, where the applicant complained before the Conseil d’État that he was not granted subsidiary protection because the Belgian asylum authorities, namely, the Commissaire general aux réfugiés et aux apatrides, first, and the Conseil du contentieux des étrangers, on appeal, maintained that Guinea could not be considered as affected by indiscriminate violence in a situation of internal armed conflict as there were only internal disturbances and sporadic acts of violence, and stressing also that, after the Presidential elections of 7 November 2010, there has been no opposed armed group in the country.Footnote 54
Accordingly, under Article 3(2) of the Geneva Conventions, as long as violence is limited to sporadic acts, and as long as a certain threshold of intensity is not reached, there is no armed conflict in the sense of IHL, as interpreted by the ICTY.
Nonetheless, the Conseil d’État, through its decision of 16 May 2012, relying on the former CJEU's judgment in Elgafaji on the autonomous interpretation of the notion of ‘indiscriminate violence’, did not exclude that on this new occasion the notion of ‘internal armed conflict’ could entail more autonomy from international law. Therefore, the Conseil d’État referred to the CJEU the question of whether to equate the concepts of ‘internal armed conflict’ from Directive 2004/83/EC (now replaced by Directive 2011/95/UE) and of ‘non-international armed conflict’ from IHL for the purpose of interpreting EU asylum law, and consequently for the application of the member states’ legislation in conformity with EU law.Footnote 55
In this regard, it is worth mentioning that, following the CJEU's interpretation of Article 15(c) QD in Elgafaji with reference to the notion of ‘indiscriminate violence’, the domestic jurisprudence of certain member states started elaborating even an autonomous interpretation of the concept of ‘armed conflict’ in general.Footnote 56 The Court of Appeal of the United Kingdom, for instance, started from a traditional approach aimed at defining ‘indiscriminate violence’ according to IHLFootnote 57 but swapped to an interpretation based upon an autonomous definition of armed conflict considered as ‘any situation of indiscriminate violence, whether caused by one or more armed factions or by a state, which reaches the level described by the European Court of Justice in Elgafaji’.Footnote 58 Such reasoning was also echoed by the Federal Administrative Court of Germany which in turn held that the characteristics of an armed conflict under IHL are not decisive in assessing the existence of an internal armed conflict under the Qualification Directive.Footnote 59
Therefore, in Diakité, the CJEU was called upon to tackle the challenging issue of interpreting the notion of ‘internal armed conflict’. Two interpretative options deserve analysis in order to understand what might have influenced or did influence the Court's ruling.
4.1. The principle of interpretation in conformity with international law
To interpret the question at issue in Diakité, it must be noted that the CJEU was confronted with different interpretative methods that generally recall the intricate and highly debated question of how international law works within the EU legal order.Footnote 60
Such a problem was especially addressed by the Advocate General, Paolo Mengozzi, in his Opinion of 18 July 2013.Footnote 61 On that occasion, the need for the EU to respect international law was emphasized, echoing the basic tenet under Article 3(5) TEU, which posits that the Union shall contribute ‘to the strict observance and the development of international law’.Footnote 62 As mentioned by Advocate General Mengozzi, the CJEU itself reiterated such principle in several cases, highlighting that the EU competences shall be exercised in compliance with international law,Footnote 63 and, accordingly, an act adopted by virtue of such competences is to be interpreted in light of international law rules. The primacy of the latter demands that EU secondary legislation be interpreted in conformity with them.Footnote 64
The principle of interpretation in conformity with international law is relevant with reference to those international obligations which are binding for the EU,Footnote 65 including the Geneva Conventions of 12 August 1949 and their Additional Protocols which, as stated by the International Court of Justice, constitute ‘intransgressible principles of international customary law’.Footnote 66 Consequently, these principles are binding upon the institutions, including the CJEU, which must ensure that the interpretation of European Union law is in conformity with these principles.Footnote 67
Likewise, it may be argued that the need for the EU to interpret the notion of ‘internal armed conflict’ in conformity with international law stems from the traditional literal method of interpretation. In international law, a provision ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms’.Footnote 68 The substance of this acknowledgment has been re-elaborated in EU law through its consistent case law.
Over the years the CJEU has applied the ‘van Gend en Loos formulation,’ namely that it is necessary to consider ‘the spirit, the general scheme and the wording’.Footnote 69 In this regard, it is indicative that the Qualification Directive does not encompass any definition of armed conflict neither in Article 2, which includes the definition of the most relevant terms, nor in Article 15. Thus, the CJEU applied to the question at issue the settled principle that the meaning and scope of terms for which EU law provides no definition ‘must be determined by considering their usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part’.Footnote 70 Nonetheless, everyday language suggests very broad definitions for the expression ‘conflict’, counting a number of synonyms,Footnote 71 such as ‘dispute’, ‘friction’, ‘strife’, and ‘hostility’ that in international law may describe different situations. Therefore, it would be difficult to deny that the wording of Article 15 is inspired by IHL,Footnote 72 the latter being the only relevant body of law to define the matter at issue. As is known, the reference to a notion with a widely accepted meaning in international law has, among others, the great potential to favour the process of harmonization within the EU legal order, the principle of interpretation in conformity with international law being the most important method, followed by the Court of Justice of the EU, to ensure coherence among different domestic legislations.Footnote 73
Still, according to the method of interpretation based on the intent of the drafters, it must be stressed that the travaux préparatoires of the QD 2004/83/EC reveal that an early draft proposal expressly mentioned a reference to the 1949 Convention relative to the Protection of Civilian Persons in time of War as regards the wording of Article 15(c),Footnote 74 and the Council Legal Service even suggested to add a reference to the Annexes and Protocols related to this Convention, but the drafters expressly rejected it.Footnote 75
Nevertheless, the combination of other methods of interpretations, namely the systematic and teleological interpretation of the text,Footnote 76 led Advocate General Mengozzi to elaborate a cautious approach to the principle of interpretation in conformity with international law. In this regard, he purported that the need to abide by such principle is contingent on a ‘cohérence herméneutique’ between the different legal acts at issue.Footnote 77
This interpretative reasoning represented the backbone of the CJEU concise judgment of 30 January 2014 that paved the way to an ‘interpretation independent’ of IHL.
4.2. The ‘interpretation independent’ of International Humanitarian Law
Following the Advocate General's reasoning, the CJEU in its judgment stressed that a teleological method of interpretation sheds light on the different aims pursued by the ‘complex system’Footnote 78 of IHL and the EU special subsidiary protection regime respectively.Footnote 79 As emphasized, the Court ‘takes account not only of the object and purpose of single norms, but also of the telos of the instruments in which they appear’.Footnote 80
Despite the fact that, as argued by the Advocate General, IHL and the EU subsidiary protection regime are based on reasons that are essentially humanitarian,Footnote 81 IHL especially aims to mitigate the effects of armed conflicts on civilians and other persons or objects that should be protected by regulating the behaviour of belligerents but military needs in the conduct of hostilities are taken into account.Footnote 82 The latter, in fact, ‘governs the conduct both of international armed conflicts and of armed conflict not of an international character, which means that the existence of either type of conflict acts as a trigger for applying the rules established by such law’.Footnote 83 In this regard, the Advocate General in his Conclusions highlighted that IHL also addresses the need for protection of the civil population in the context of an armed conflict.Footnote 84 To the contrary, Article 2(e) and Article 15(c) QD provide international protection within the EU to individuals that fled a conflict zone.Footnote 85
Consequently, IHL essentially refers to states directly involved in a conflict, while, as discussed before, subsidiary protection is a ‘protection de substitution’Footnote 86 that an EU member State grants to a person fleeing a situation of indiscriminate violence that constitutes a threat to his or her life and personal integrity in his or her country of origin. Therefore, subsidiary protection is especially founded on the principle of non-refoulement of a person in need for protection and appears intimately linked to the protection of basic human rights. It must be noted in this regard that, prior to the adoption of the QD, EU Member States had previously established some forms of subsidiary protection based on the principle of non-refoulement and were also bound by the case law developed since the 1989 Soering caseFootnote 87 by the ECtHR in its jurisprudence on Article 3 ECHR concerning the right not to be subjected to torture or to inhuman or degrading treatment.
In light of the aforementioned differences between IHL and the EU special subsidiary protection regime, the CJEU in Diakité stated that it is not possible ‘to make eligibility for subsidiary protection conditional upon a finding that the conditions for applying international humanitarian law have been met’.Footnote 88
Such distinction between the two set of rules, namely IHL and QD, impacted on the core question of interpreting the notion of ‘internal armed conflict’. The CJEU, in fact, followed the Advocate General's thesis that a ‘hermeneutical coherence’ between the notion of ‘internal armed conflict’ under the QD and the concept of ‘armed conflict of non-international character’ under IHL may not be justified.Footnote 89
The need for protection of the individual being the main focus of the QD, it may be argued that the aim of scrupulously construing the notion of ‘armed conflict’ is not a primary factor for granting protection, as it is in IHL that also pursues the goal of punishing those accused of violating rules that may apply, depending on the characterization of the conflict.Footnote 90 To this extent, the CJEU did not fail to emphasize that ‘[b]ecause of this, international humanitarian law is very closely linked to international criminal law, whereas no such relationship exists in the case of the subsidiary protection mechanism’.Footnote 91
The analogical interpretation of the notion of ‘internal armed conflict’ was not considered appropriate by the CJEU in order to meet the need for protection of the claimant. Hence, instead of using IHL criteria, the Court carved out an ‘independent’ interpretation, regardless of the overall level of intensity, the duration of the conflict or the involvement of the government's armed forces. From this viewpoint, the CJEU defined the notion of internal armed conflict as ‘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’.Footnote 92
Furthermore, the Court complemented its teleological interpretation on the concept of ‘internal armed conflict’ with the existence of a causal link with the notion of ‘indiscriminate violence’ as formerly interpreted in Elgafaji. Moreover, the CJEU pointed out that for the purpose of the QD not all ‘internal armed conflicts’ are relevant as a cause for granting subsidiary protection. Only where the degree of indiscriminate violence reaches such a high level that there are ‘substantial grounds’ for believing that the applicant if returned would face a ‘real risk’ of being subjected to ‘a serious and individual threat’ to life, would the violence constitute a ground for providing subsidiary protection.Footnote 93
5. The CJEU's autonomous interpretation and its internal and external repercussions
The Court's reasoning in Diakité and its attempt to provide a definition of internal armed conflict in EU asylum law is likely to feed into the ongoing debates concerning, from an internal perspective, the development of a Common European Asylum System and the interpretation of its relevant provisions, and, externally, the overall relationship between the EU legal system and international law.
The internal and external repercussions of eroding the ‘IHL monopoly over the notion of armed conflict’Footnote 94 must therefore be addressed to answer the question of whether IHL may be an appropriate framework to interpret the provisions on subsidiary protection in the EU.
5.1. The impact of the Court's autonomous interpretation on EU asylum law
From an internal perspective, the rudimentary definition provided by the Court undoubtedly constitutes a breakthrough for the standards of protection of asylum seekers, as it lessens the threshold to assess the existence of an internal armed conflict: the notion is, in fact, disconnected from the traditional fulfilment of the criteria required by IHL.
Accordingly, the autonomous interpretation of internal armed conflict provided by the CJEU in Diakité strengthens the scope of protection of the Common European Asylum System, as it will impact on the tendency by domestic asylum courts to use IHL as an instrument to limit access to subsidiary protection in the EU.Footnote 95
Furthermore, while disconnecting the EU subsidiary protection regime from IHL, in Diakité the Court quite naturally found in the earlier Elgafaji judgment that hermeneutical coherence could not be justified in relation to IHL. Both judgments interpret, in fact, two complementary concepts of Article 15(c) QD: the concept of ‘internal armed conflict’ may be thoroughly appraised if the notion of ‘indiscriminate violence’ is clarified. As a result, the Court settled the issue of discarding the IHL-based interpretation of the terms of the provision in subject. Such approach, on the one hand, was expected to align the CJEU position to that of domestic case law which, as a consequence of the Elgafaji judgment, started interpreting the notion of internal armed conflict as independent from IHL.Footnote 96 On the other hand, the ruling in Diakité will contribute to the reduction of the existing divergences on the interpretation of Article 15(c) QD at the national level.Footnote 97 However, while asserting the complementarity between the notion of indiscriminate violence and internal armed conflict, the judgment missed the opportunity to define the criteria to determine the level of violence, thus leaving national authorities without useful guidance on such specific point.Footnote 98 The ruling thus confirms the importance of the dialogue between national judges and Luxembourg through the instrument of the reference for preliminary ruling to solve the ambiguities existing in the EU asylum legislation and to foster further harmonization.Footnote 99
Ultimately, the interpretative approach pursued in Diakité instead reflects the EU's great attempt to establish an effective system of international protection, avoiding the paradoxical situation of individuals fleeing their country owing to threats to their lives due to indiscriminate violence, but failing to receive protection as the level of violence is not considered serious enough to constitute an armed conflict as defined by IHL.Footnote 100 To this extent, the Court even used the not very convincing and artificial argument of the semantic difference between the notion of internal armed conflict and the one of ‘armed conflict not of an international character’, characteristic of IHL,Footnote 101 in order to stress the broader scope of Article 15(c) QD than IHL.
Overall, whether, as purported by Steve Peers, ‘the effective application in practice of any set of legal rules depends to a large degree on the judicial system established . . . to rule on the interpretation, validity, legal effect of those rules’,Footnote 102 despite the still existing gaps in the interpretation of Article 15(c) QD, the Court reasoning has established a significant benchmark for the protection for asylum seekers fleeing situations of indiscriminate violence other than armed conflict as defined under IHL.
5.2. The Court's autonomous interpretation as a contribution to the defragmentation of international law
In discarding IHL as the appropriate interpretative framework for the purpose of the EU subsidiary protection, in Diakité the Luxembourg judges seemed to raise concerns as to the fragmentation of international law. The UN International Law Commission stressed that this phenomenon has attained legal significance, ‘especially as it has been accompanied by the emergence of specialized and (relatively) autonomous rules or rule-complexes, legal institutions and spheres of legal practice’.Footnote 103 As a result:
what once appeared to be governed by “general international law” has become the field of operation for such specialist systems as “trade law”, “human rights law”, “environmental law”, “law of the sea”, “European law”, . . . each possessing their own principles and institutions.Footnote 104
The UN International Law Commission warned that the fragmentation of international law should be avoided, since no body of international rules can be allowed to become a self-contained regime,Footnote 105 and, as emphasized by Anne Van Aaken, it constitutes an alarming problem for most scholars.Footnote 106
Against this background, before the judgment in Diakité, scholars had insisted that the concepts of ‘armed conflict’ or ‘indiscriminate violence’ as they exist in European asylum law ‘ought not to be “autonomous” from the meaning given to these terms within the mainstream of the international humanitarian law discourse’.Footnote 107
Nevertheless, attention must be paid to the fact that not any autonomous interpretation is likely to determine further fragmentation of international law. International legal scholars struggle for the unity and coherence of international law, overlooking the fact that the different branches of international law have their own special rules that can make it difficult to achieve a rigid unity.Footnote 108 Instead, and from a different perspective, a harmonious integration of different regimes is feasible, taking into account that ‘the same object can fulfil different functions depending on the context in which it is being applied.’Footnote 109 Since different legal regimes pursue different aims, the problem of fragmentation could be mitigated by allowing autonomous interpretations, such as the one used by the EU Court of Justice in Diakité with regard to the notion of internal armed conflict.
As stressed by Advocate General Mengozzi, although pursuing a different aim, both IHL and subsidiary protection are based on humanitarian reasons.Footnote 110 The CJEU's decision interpreted the notion of internal armed conflict outside the limited scope of IHL and with the aim of increasing the opportunity to grant protection. Furthermore, Violeta Moreno-Lax emphasized that the absence of uniformity (‘cohérence herméneutique’ in the Advocate General's words) between EU asylum law and IHL has to be seen as an opportunity for ‘constructive heteronomy’;Footnote 111 it is rather a contribution to the defragmentation of international law by means of autonomous interpretations, a phenomenon that with reference to the EU legal order corresponds with what has been described by doctrine as ‘Europeanization of international law’.Footnote 112
Pursuing the goal of maximizing the protective function of subsidiary protection, the Court has disconnected the Qualification Directive from IHL, yet without fostering further fragmentation of international law. The Court has instead provided a coherent pattern between IHL and EU asylum law, based on the applicability of the common constitutional principle of humanity, grounded on the need to enhance human rights protection, to adjoining systems of law. Such method of interpretation is not completely new, as it was especially developed by other judicial or quasi-judicial bodies, including the ECtHR in its case law on Chechnya, where the Court followed ‘an approach that may prove both more protective of victims and more politically viable than that of humanitarian law’,Footnote 113 and the UN Human Rights Committee that recently stressed the mutual complementarity of IHL and international human rights law.Footnote 114
The same approach has been largely supported by UNHCR as, in its submission for the case of QD (Iraq) v. Secretary of State for the Home Department before the Court of Appeal in the United Kingdom, it recommended that the term ‘international or internal armed conflict’ in Article 15(c) QD ‘must be given a broad autonomous meaning’, reflecting the object and purpose of the subsidiary protection regime to protect persons from a risk of serious harm if returned to their country of origin or residence.Footnote 115 Thus, the UNHCR urges caution in drawing upon international humanitarian law and international criminal law to interpret the scope of Article 15(c) as they constitute ‘separate and different spheres of law with their own object and purpose’.Footnote 116 Admittedly, it would not be surprising that the same or similar terms should be given a different meaning under Article 15(c) than in IHL.Footnote 117
6. Concluding remarks: a more protective regime within a pluralist legal system
In an attempt to continue the ongoing debate on the relationship between the EU legal order and international law, reinvigorated by the EU Court of Justice's ruling in Diakité, the analysis has discussed the peculiarities of the subsidiary protection regime in EU asylum law and dwelt on the mixed feelings that the interpretation of the notion of internal armed conflict independent of international law has raised and highlighted its possible repercussions. While providing more consistency to the EU asylum acquis, the Court's autonomous and rudimentary definition of ‘internal armed conflict’ has triggered the debate on the further fragmentation of international law.
However, while stressing the fact that IHL and EU subsidiary protection pursue different goals, the reasoning of the Court can be read as an input to a harmonic co-ordination of the two legal regimes, which ultimately result in a contribution to the defragmentation of international law. The judgment in Diakité reflects, in fact, the CJEU's tendency to broaden the scope of protection within EU law and, by reiterating the reasoning in Elgafaji, it can be used as the evidence of the fact that the Qualification Directive is a comprehensive instrument which integrates and strengthen the standards of protection established by its external sources, inter alia the Geneva Convention, the ECHR, and the principle of humanity that is also common to IHL.
This article thus suggests shifting from the struggle for a rigid unity of the international legal system to the acceptance of a pluralist system based upon the harmonious co-existence of different legal orders, whose interaction can be a source of consistency for international law.Footnote 118 The analysis has offered an example of how an approach, which is more specifically tailored to the needs for protection, characteristic of the EU Qualification Directive, may allow an autonomous definition of ‘internal armed conflict’, independent from IHL, without depriving the latter body of law of its constitutional relevance within the international legal system. Ultimately and more comprehensively, the autonomous interpretation of internal armed conflict that has been elaborated by the EU Court of Justice can be framed within the hermeneutical paradigm, recently outlined by Anthony D'Amato,Footnote 119 according to which, international law is a general system and as such it is articulated in different elements that inside this system interact with each other to ensure its harmonious development.
