Protection from Indiscriminate Violence in Armed Conflict: The Scope of Subsidiary Protection in the European Union

Abstract This article discusses the relationship between subsidiary protection status granted to persons fleeing indiscriminate violence in armed conflicts under article 15(c) of the European Union (EU) Qualification Directive (soon to be Qualification Regulation) and international humanitarian law. This is done by assessing jurisprudential developments at the supranational and national levels through a comparative empirical study of State practice in the EU and by providing an autonomous understanding of the provision. The article enquires into how the different elements of article 15(c) have been interpreted historically (following the first Court of Justice of the European Union (CJEU) judgment in Elgafaji), and in response to its decision in Diakité. It thereby delineates the scope of the provision in principle, but also in practice by tracking the implementation of CJEU jurisprudence in the field of subsidiary protection. The empirical study demonstrates that whereas judicial enquiry initially focused on determining the existence of an armed conflict in the relevant country of origin using international humanitarian law, since the CJEU’s judgment in Diakité, judicial determinations centre on the element of ‘indiscriminate violence’. However, although appellate authorities no longer explicitly refer to international humanitarian law norms as the legal framework through which to interpret article 15(c), judicial interpretation of the various elements of article 15(c) is still based on corresponding norms. The article demonstrates how the norms of international humanitarian law, including the location and intensity of armed confrontations between fighting parties, the control of territory by armed groups, and their capacity to undertake sustained and concerted military operations, continued to inform judicial approaches to the definition and assessment of indiscriminate violence following Diakité. The article contends that interpreting article 15(c) entirely, or even merely, by reference to principles of international humanitarian law is inconsistent with the purpose of the international protection regime in the EU and fails to reflect the nature of violence in contemporary armed conflicts.