3.3.3. Qualification of a person as a ‘civilian’

 
Common analysis
Last updated: September 2020

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 Syria, 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: 

Syrian Armed Forces: military and security forces, including the SAA, the navy, the air force, the police force with its four separate divisions (emergency police, traffic police, neighbourhood police and riot police), the intelligence services, and the NDF.

Pro-government militias: local and foreign militias that are operating alongside the regular Syrian armed forces. Local militias have been consolidated under an umbrella network called the NDF and are now belonging to the Syrian Armed Forces, other examples of pro-government militias include the LDF, the Tiger Forces, militias of wealthy and powerful Alawite businessmen, such as the al-Bustan militias and Suquor al Sahara. Foreign militias, mainly backed by Iran, include the Lebanese Hezbollah, the Afghan Fatemiyoun Brigade, the Pakistani Zeinabiyoun Brigade, various Iraqi Shia militias that are members of the Iraqi Popular Mobilisation Forces, and fighters from Yemen.

SDF and Asayish: Kurdish-led multi-ethnic force that supported the US-led coalition in the war against ISIL, dominated by the YPG with the Asayish as internal security forces.

SNA: A collection of Turkish-backed armed opposition groups, being hostile towards the GoS and the SDF. The most prominent factions include the Sultan Murad Brigade, the Moutassem Brigade, Ahrar al-Sharqia and al-Jabha al-Shamiya. In October 2019, the group merged with the NLF - a Turkey-backed alliance of opposition groups that is present in the Idlib area and includes moderate as well as Islamist factions.

■ Other anti-government armed groups, particularly those based in the Idlib area: HTS is described as the most important and powerful actor in the area. The group is comprised of several armed factions including Jabhat Fatah al-Sham (also known as Jabhat al-Nusrah and previously as the Al-Nusrah Front), Ansar al-Sham and Ajnad al-Sham. Beside the NLF (see above), the Al Qaeda affiliate HAD, TIP, and Ansar al-Tawhid, among others are also present in the area.

ISIL and its predecessor groups

[Actors, 2.3, 2.3.4, 3.2, 4.1 - 4-3, 5.1, 6; Security 2020, 1.4]

See also the chapter 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 Exclusion below).


 

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