A Question of Definition – The Concept of Internal Armed Conflict in the Swedish Aliens Act

Year: 2008

Type of text: Academic article

Published by:  European Journal of Migration and Law

Language: English

Author: Jennie Magnusson

Pages: 31

Available at: https://brill.com/view/journals/emil/10/4/article-p381_1.xml
[Inte offentligt tillgänglig, abstract tillgängligt via länk]

Short description of text 

“The argument of this article is that the concept of internal armed confl ict in the Swedish Aliens Law is incoherent and inadequate. This is due to the fact that the Swedish interpretation is based upon international humanitarian law, a law which provides an unclear and anachronistic concept of internal armed conflict” (abstract)

Most important results

“The 1977 Additional Protocol II (Protocol II) is the only international instrument dealing exclusively with non-international conflicts. It has been formally accepted by 163 states, but it is disputed whether all provisions have yet hardened into customary law. Most states which have been involved in internal conflicts since 1977 have not yet ratified Protocol II and thus state practice offers little guidance on its cotent. According to the first passage of Article 1, Protocol II is meant to develop and supplement Article 3 of the 1949 Geneva Conventions. The scope of application is: all armed conflicts . . . which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (387)

“Th e wording of Article 1 requires several elements for application. Firstly the confl ict must involve governmental armed forces, and thus confl icts comprising only irregular forces or non-governmental groups fi ghting each other are excluded.” (388)

“Secondly, the opposing party must have de facto control of at least some part of the state territory. Th e control must be stable and extensive enough to allow the performance of sustained and concerted military operations; that is continuous and persistent acts in accordance with a strategic plan. Th us, modern warfare like guerrilla fi ghting and terrorism, implying frequent mobility and long-term but sporadic acts, are excluded. Th is criterion has been much criticised, since the implied required degree of intensity and duration of the confl ict suggests that only situations resembling international wars are included.” (388)

“The final criterion, that the opposing party must be able to implement the provisions of Protocol II (inter alia to care and search for wounded and sick) further supports this contention. In order to fulfill this requirement the opposing party must have established a certain level of infrastructure. Consequently, the material application of Protocol II seems to be triggered only when the opposing force has established some kind of de facto government over some part of the state territory.” (388)

“In comparison with Common Article 3 of the 1949 Geneva Conventions, Protocol II gives a narrower and more restrictive definition of internal armed conflict.44 The definition is more concrete but provides for such conditions that only intense and large-scale conflicts are included.45 Thus, many or most contemporary internal conflicts, including high mobility and guerrilla warfare, would fail to fulfil its requirements.” (388)

“The case-law developing the Swedish concept of internal armed conflict refers to ‘internal armed conflict in the meaning of international law’. As is quite apparent from the above examination of the core instruments of IHL, this reference seems rather empty. One cannot find any uniform or accepted definition of internal armed conflict in international law.” (394)

“As is apparent from the UNHCR study, the interpretations of internal armed conflict in the EU member states are divergent. “ (395)

“One is struck by, when examining these cases, how it is impossible to distinguish the actual circumstances the Government/the Migration Court of Appeal relies on when determining the status of the respective conflicts: The specific situation of neither Chechnya nor Iraq is explicitly evaluated. Thus, one cannot really grasp the rationale behind determining Chechnya as an internal armed conflict, and not Iraq.” (396)

“The examination of lex lata confirms my hypothesis that there exists no coherent or adequate definition of internal armed conflict, neither in IHL nor in asylum law. The Swedish Aliens Act operates the definition laid down in Protocol II without due regard to its specific context and origin. Th us any shortcomings of the concept in IHL are simply passed on when assessing protection on the legal ground of internal armed conflict. A built-in margin of discretion is identified in all examined concepts, which concerning the Swedish Aliens Act, is confirmed by an ambiguous case-law. The failure to clearly determine what an internal armed conflict is leaves the legal ground of protection against risks arising in such conflicts unforeseeable, and thus legally uncertain in the eyes of the applicant.” (408)

“From this point of view, the current interpretation of internal armed conflict in the Swedish Aliens Act seems to embrace the worst of the two: it is based on very formal requisites (Article 1 of Protocol II) and gives room for discretion (the effect upon the civilian population). This approach puts heavy demands upon the shoulders of the institutions that apply the law: the Migration Courts and the Swedish Migration Board. The question is whether these are competent enough or even able to deal with the complex issues attached to the evaluation of armed conflicts.” (409)

“In any event, finding a solution to the incoherent use of the term ‘internal armed conflict’ within the European context seems to be of undeniable importance. The lack of a common understanding of Article 15(c) in the Qualification Directive implicates a ‘burden shifting’ between states. The interpretation of conflicts becomes a tool of adjusting one’s immigration policies, more than an actual legal assessment of protection. The example of the policies towards Iraqi asylum seekers in Europe during the last few years speaks its plain language. Surely it is tempting to conclude that the shifting Swedish policy in 2007 had as much to do with an overloaded asylum procedure, as to an approving humanitarian situation in Iraq.” (409)

Method

Policy analysis?

Summarised by: Josefin Åström