b. Qualification of a person as a ‘civilian’

COMMON ANALYSIS
Last updated: January 2021

Being a civilian is a prerequisite in order to be able to benefit from protection under Article 15(c) QD. The purpose of the provision is to protect only those who are not taking part in the conflict. This includes the potential application of Article 15(c) QD to former combatants who have genuinely and permanently renounced armed activity.

The Qualification Directive itself does not provide a definition of the term ‘civilian’. In light of the interpretative guidance given by CJEU in Diakité, the term should be read by reference to its usual meaning in everyday language, whilst taking into account the context in which it occurs and the purposes of the rules of which it is a part. Therefore, the term ‘civilian’ could be considered to refer to a person who is not a member of any of the parties in the conflict and is not taking part in the hostilities, including those who are no longer taking part in hostilities.

In the context of Iraq, applications by persons falling under the following profiles should be examined carefully. Based on an individual assessment, such applicants may be found not to qualify as civilians under Article 15(c) QD. For example:

  
ISIL and associated groups: Insurgents belonging to ISIL and its predecessor groups in Iraq, including associated groups fighting against the Iraqi government.
  
New militant factions of ISIL remnants: Groups of ISIL remnants appear to be building new militant factions in the Hamreen Mountains; one of them goes under the name of the ‘White flags’.
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Other militant groups: Aside from ISIL, other smaller militant Sunni jihadist groups were present in Iraq in the course of the Sunni uprising against the Maliki government. Main ones were Jamaat Ansar Al-Islam, the Naqshbandi Order, Jaysh Al-Mujahideen and the Islamic Army of Iraq.
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ISF: Formal military and security forces, including the Iraqi Army, the Federal Police, the Emergency Response Division, Provincial Emergency Police Battalions, Border Guards having a role in counterterrorism and the Counter Terrorism Service.
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PMU and other militia groups: Armed groups including PMU, minority militias and Sunni Tribal Militias or Tribal Mobilisation militias.
  
KRG forces: including Peshmerga forces and the forces of the Asayish, participating in activities regarding the conflict with ISIL.
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Tribes: Tribes are often armed with heavy weapons and have also become entangled as actors in the ISIL conflict.
 
 [Actors of protection, 5.1–5.5; Targeting, 1.1; Security situation 2019, 1.1, 1.3]

See also the chapter on Actors of persecution or serious harm.

It should be noted that actively taking part in hostilities is not limited to openly carrying arms but could also include substantial logistical and/or administrative support to combatants.

It is important to underline that the assessment of protection needs is forward-looking. Therefore, the main issue at hand is whether the applicant will be a civilian or not upon return. The fact that the person took part in hostilities in the past would not necessarily mean that Article 15(c) QD would not be applicable to him or her. For example, the assessment should take into account whether the person had voluntarily taken part in the armed conflict; those who willingly joined the armed groups are unlikely to be considered civilians.

In case of doubt regarding the civilian status of a person, a protection-oriented approach should be taken, which is also in line with international humanitarian law, and the person should be considered a civilian.
 
 
Exclusion considerations may also apply (see the chapter on Exclusion).

 

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