3.3.4. Indiscriminate violence

 
Common analysis
Last updated: September 2020

‘Indiscriminate violence’ refers to the source of the specific type of serious harm defined in Article 15(c) QD. The CJEU in Elgafaji notes that the term ‘indiscriminate’ implies that the violence,  

may extend to people irrespective of their personal circumstances. [35]

Some acts of violence may be indiscriminate by their nature, for example: (suicide) bombings, attacks and armed confrontations in areas that are inhabited or frequented by civilians (e.g. marketplaces, public roads, healthcare facilities).  

Based on Elgafaji, in situations where indiscriminate violence is taking place, the following differentiation can be made with regard to its level:[36]

Figure 10. Levels of indiscriminate violence on the basis of CJEU, Elgafaji.

With regard to the second category, Elgafaji provides guidance on how the serious and individual threat has to be assessed, an approach commonly referred to as the ‘sliding scale’:  

(…) the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection. [37]

Risk-impacting elements related to the personal circumstances of the applicant should, therefore, be taken into account. See sub-section on Serious and individual threat

The graph below illustrates the further differentiated standard scale applied in country guidance documents with regard to the levels of indiscriminate violence and the respective degree of individual elements required in order to find that a real risk of serious harm under Article 15(c) QD is substantiated for the applicant:

 
Figure 11. Indiscriminate violence and individual elements in establishing real risk of serious harm under Article 15(c) QD.

The different levels of indiscriminate violence can be described as follows:

It should be noted that in armed conflicts the targeting of civilians may have nexus to one of the reasons for persecution according the refugee definition. Therefore, refugee status may be granted as noted in the section above (see, for example, the profiles 2.1. Persons perceived to be opposing the government, 2.4. Members of and persons perceived to be collaborating with the SDF and YPG, 2.11. Ethno-religious groups). Such targeted violence, furthermore, would not be considered ‘indiscriminate’.

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[35] CJEU, Elgafaji, para.34. [back to text]
[36] CJEU, Elgafaji, para.43. [back to text]
[37] CJEU, Elgfaji, para.39. [back to text]
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