The (Mis)Use of International Humanitarian Law under Article 15(C) of the eu Qualification Directive

Abstract

The European Union has undoubtedly innovated in establishing an international protection form subsidiary to the refugee status in its 2004 Qualification Directive, granted, inter alia, to those who would upon return to their country face a real risk of suffering “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)). By the same token, it has however created great normative challenges for refugee lawyers. Among the issues raised by the provision remains one still dividing national asylum instances and scholars: the role of international humanitarian law (IHL) for the purpose of interpreting Article 15(c). Against the manifold arguments presented in favour of one position or the other, this article suggests that one fundamental reason militates against an IHL interpretation of Article 15(c): the distinctive functions of IHL and subsidiary protection or, more broadly, international refugee law. This becomes apparent when analysing the potential and limits of the IHL definitions of the three key terms of Articles 15(c) – i.e., “indiscriminate violence”, “civilian” and “international or internal armed conflicts”. These definitions cannot indeed meet the protective purpose of subsidiary protection as they are tailored to serve the specific functions of IHL. Ultimately, recourse to IHL risks restricting the scope of subsidiary protection to the detriment of those in need of international protection as recently confirmed the Court of Justice of the European Union in its 2014 Diakité ruling.

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