e. Qualification of the harm as ‘threat to (a civilian’s) life or person

COMMON ANALYSIS
Last updated: January 2021

Neither the Qualification Directive, nor the CJEU in its jurisprudence, have defined the terms ‘threat to (a civilian’s) life or person’.

The CJEU has held that Article 15(c) QD has an additional scope to Article 3 ECHR and, therefore, has to be interpreted independently, but with due regard to fundamental rights as they are guaranteed under the ECHR.[43]

By comparing the provisions of Article 15(a) and (b) QD, which indicate a particular type of harm, with the provision of Article 15(c) QD, the CJEU further concludes that the harm under the latter,

(...) covers a more general risk of harm. Reference is made, more generally, to a ‘threat … to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’.[44]

Some of the commonly reported types of harm to civilians’ life or person in Iraq include killings, injuries, abductions, retaliatory violence by the armed forces, forced displacements, forced recruitment of minors, explosive remnants of war, etc.


 

[43] Elgafaji, para.28. [back to text]
[44] Elgafaji, paras. 33-34. [back to text]

 

 

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