“(1) Persons taking no active part in the hostilities…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place, whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, afforded all the judicial guarantees which are recognised as indispensable by civilised peoples. (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, afforded all the judicial guarantees which are recognised as indispensable by civilised peoples. (2) The wounded and sick shall be collected and cared for. …”
“As set out in the Supplementary Letter, the United Kingdom has not accepted that Iraq is in a state of civil war. It is not accepted either that the situation there amounts to internal armed conflict. This is in line with the findings of UNHCR. This being the case, so far as the appellant’s past adverse experiences are concerned, I find that the situation in Iraq, (even in the turbulence of Baghdad) is not one that can be characterised as internal armed conflict, serious though the internal strife in that country is. In summary, the threat to the appellant is not personal or ‘individual’ to him.”
“[person eligible for subsidiary protection] means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.”
“It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.”
“With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are a party and which prohibit discrimination.”
“A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; (ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person inNeed of International Protection (Qualification) Regulations 2006 ; (iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and (iv) he is not excluded from a grant of humanitarian protection. Serious harm consists of: (i) the death penalty or execution; (ii) unlawful killing; (iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or (iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
“The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection [which covers both refugee and subsidiary protection], and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States.”
“minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection.”
“With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are a party and which prohibit discrimination.”
“civilian’s life or person”; and “serious and individual threat”
“[o]n account of the unanimously recognised authority, competence and impartiality of the ICRC, as well as its statutory mission to promote and supervise respect for international humanitarian law, it is inconceivable that, even if there some doubt as to the nature of the conflict, the ICRC would promote and endorse an agreement [that of22 May 1992 ] contrary to a basic provision of the Geneva Conventions. The conclusion is therefore warranted that the ICRC regarded the conflicts governed by the agreement in question as internal.”
“[i]ndiscriminate attacks are prohibited”
“(a) Those which are not directed at a specific military objective; (b) Those which employ a method or means of combat which cannot be directed at a specific military objective; (c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; And consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction”. (b) Those which employ a method or means of combat which cannot be directed at a specific military objective; (c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; And consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction”. 86. Article 51(5) states: “Among others, the following types of attacks are to be considered as indiscriminate: (a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” (a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
“Rule 12. Indiscriminate attacks are those: (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law.” (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law.”
“… it cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban on certain methods of conducting hostilities”
“dwellings, shops, schools and other places of non-military business, places of recreation and worship, means of transportation, cultural property, hospitals and medical establishments and units”
“In the context of Central and Southern Iraq where extreme violence and acts of serious human rights violations by state and non-state actors is rife, the overall situation is such that there is a likelihood or reasonable possibility of serious harm. While there are reports that widespread human rights violations are perpetrated by the authorities including through use of militias, large numbers of religious and political groups commit extreme forms of violence on a daily basis. Ordinary civilians are often the targets of violence, which includes car bombs, suicide attacks and improvised explosive devices. These methods of violence are usually targeted at chosen areas where civilians of specific religious or ethnic groups gather, including places of worship, market places and neighbourhoods. As clarified above, even where an individual may not have personally experienced threats or risks of harm, events surrounding his or her areas of residence or relating to others, may nonetheless give rise to a well-founded fear. There is also more specific targeting of individuals by extremist elements of one religious or political group against specific individuals of another, through kidnappings and execution-style killings. Rape is also increasingly being used as a means of persecution. Due to the vast number of actors who could perpetrate violence, an asylum-seeker’s failure to identify the perpetrator of violence should not be considered as detrimental to his/her credibility. … the international protection needs of Iraqi asylum-seekers from the three Northern Governorates should be assessed individually based on the criteria of the 1951 Convention. In particular, given reports of Kurdish political efforts to dominate and “kurdify” the traditionally mixed areas of the Governorates of Kirkuk, Ninewa, Salah Al- Din and Diyala, applicants of non-Kurdish origin, who claim discriminatory treatment in these areas should have their claims assessed to determine if the impact of treatment they or others experienced or fear experiencing, would constitute harm amounting to persecution. In addition, there are indications of growing political tensions and the overall situation remains tenuous and unpredictable. Assessing the international protection needs of asylum seekers from the three Northern Governorates should thus take into account a situation which may change suddenly and dramatically.”
“3.5 There are currently multiple protracted armed conflicts in Iraq between MNF-I/GoI forces and organised armed groups and between those groups (principally but not solely the Kurdish peshmerga; the Badr Organisation; the Mahdi Army; the Fadila Party militia; the tribal, insurgent and local militias that make up the Awakening Councils; the groups in the Reform and Jihad Front; and the groups under the Islamic State of Iraq umbrella). 3.6 Those protracted armed conflicts are at their most intense in central and northern Iraq, especially in Salah al Din, Ninewa and Diyala provinces and is part of an extended multi-year and multi-dimensional armed political struggle between organised actors with recognisable continuities in identity, goals and strategies, personnel, internal structure and territorial control. 3.7 The various strands of violence in Baghdad, Kirkuk, Anbar and Basra provinces should still be categorised as protracted armed conflict even if they are comparatively less intense, because the violence is still substantial at present, has been much higher recently and has the potential to become at least as high again. Furthermore, those provinces are part of long-term and multi-dimensional armed political struggles between organised actors with discernible identities, goals and strategies, personnel, internal structures and territorial control. 3.8 The remaining provinces of southern Iraq (Karbala, Babil, Najaf, Qadisyah, Wasit, Muthanna and Maysan) are integrated politically, economically and militarily into and affected by those protracted armed struggles in terms of violence and other forms of serious harm which occur there.”
“Those protracted armed conflicts are at their most intense in central and northern Iraq, especially in Salah ad Din, Ninewa and Diyala provinces and is part of an extended multi-year and multi-dimensional armed political struggles between organised actors with recognisable continuities in identity, goals and strategies, personnel, internal structure and territorial control.”
“The interaction of ethnic, religious, sectarian, tribal, class, strategic and political factors with long and violent histories means that there is strong propensity to resort to organised violence in Iraq by a variety of actors. This propensity means that stabilisation to the point at which serious levels of targeted and indiscriminate violence become improbable is unlikely in the short and medium term.”
“3. Criminal Groups Criminal groups are also capitalizing on Iraq’s instability. It is increasingly difficult to distinguish common criminals from insurgents and militias, as all engage in kidnappings and extra-judicial killings and illegal activities such as trafficking in weapons, drugs and oil to fund their activities. According to the Iraq Study Group, “some criminal gangs cooperate with, finance, or purport to be part of the Sunni insurgency or a Shi’ite militia in order to gain legitimacy”
“Neither the Coalition nor the GoI provide systematic specific or aggregate data on their attacks. The US Government reported that it quadrupled its rate of air strikes in the first nine months of 2007, making 1,140, compared to 229 in all of 2006. IBC indicate at least 394 civilians confirmed in the media as killed in 2006 by US forces with no other combatants involved, and at least 669 in 2007, mainly from air strikes leaving at least 88 children dead in 2007. IBC collated news reports of 23 civilians killed by US forces in the first two weeks of January 2008 (Appendix 4). US air strikes continue in January 2008, such as the dropping of 40,000 pounds of bombs on the town of Arab Jabour near Baghdad.”
“The majority of killings do not seem to be during combat if that is defined as both sides shooting simultaneously. However, one-sided attacks are the norm for what is variously labelled unconventional, guerrilla, insurgent and counter-insurgent warfare, with terrorism (defined as political violence targeted against civilians at least partly aimed at wider intimidation) a frequent tactic, as the irregular forces seek to avoid being targeted by the superior firepower of the regular forces.”
“g.Use of Excessive Force and Other Abuses in Internal Conflicts” which states in part: “Militia and terrorist killings were the main source of violence in the country. Former regime elements, local and foreign fighters, terrorists, and militias waged guerrilla warfare and campaigns of violence. According to government data, 627 army soldiers were killed during the year. Bomb attacks by Sunni terrorist groups against the government and densely populated Shi’a areas were common and frequently prompted retaliatory attacks by Shi’a militias. Executions of military-age Sunni males became common after the Samarra Mosque bombing. Government military and police forces under government control killed armed fighters or persons planning or carrying out violence against civilian or military targets. According to personal accounts and numerous press reports, these forces caused inadvertent civilian deaths. Treatment of detainees under government authority was poor in a number of cases. Insurgents and terrorists typically targeted individuals whose death or disappearance would advance their cause, particularly those who were suspected of being connected to government-affiliated security forces. Bombings, executions, killings, kidnappings, shootings, and intimidation were a daily occurrence throughout all regions and sectors of society. Al Qa’ida in Iraq claimed responsibility for a number of these attacks, although other insurgent and terrorist groups played a role.”
“Data that became available after the publication of our book (Paragraphs 5.7-5.8) suggest the possibility that a higher proportion of attacks have been against non-Coalition actors (civilian and non-civilian) than we had reason to believe previously at the time of writing our book. The data have always anyway shown complexity in that, even if the view that most attacks have been on Coalition forces, most casualties have been Iraqi civilians (Paragraphs 5.3-5.16) as they are generally more vulnerable and grouped in larger numbers (e.g. in markets) than Coalition armed forces. Furthermore, all sources agree, and I concur, that the recognisably sectarian dimension of attacks (as opposed to attacks on Coalition forces, or attacks on to disrupt the state to undermine the Coalition project) escalated dramatically during the first half of 2007 in Baghdad and the rest of central Iraq and to a lesser extent in northern Iraq (Paragraphs 6.17-6.40). In southern Iraq, even the official British figures show that from the beginning of September to the end of October 2007, the number of attacks on Coalition forces had dropped by around 90%, while the number of attacks on Iraqi civilians remained roughly the same and about five times those on Coalition forces (Paragraph 6.51). On these UK Ministry of Defence attack data, the conflict in southern Iraq is overwhelmingly civil armed conflict.”
“The IBC details from December 2007 alone (Appendix 3) show that people are at risk from indiscriminate violence: • if they are in markets, schools, buses, their homes, police stations, detention centres and in transit between locations (effectively in most public or private places); • from drive by targeted gunfire, cross-fire, ‘friendly’ fire, snipers, car bombs, truck bombs, roadside bombs, suicide bombs, mortars, heavier artillery, unexploded ordnance from cluster bombs, booby traps and air strikes; • from harm by insurgents, militias, criminals, GoI forces, Coalition forces (conducting raids, protecting convoys and engaged in combat) and Turkish forces.” • if they are in markets, schools, buses, their homes, police stations, detention centres and in transit between locations (effectively in most public or private places); • from drive by targeted gunfire, cross-fire, ‘friendly’ fire, snipers, car bombs, truck bombs, roadside bombs, suicide bombs, mortars, heavier artillery, unexploded ordnance from cluster bombs, booby traps and air strikes; • from harm by insurgents, militias, criminals, GoI forces, Coalition forces (conducting raids, protecting convoys and engaged in combat) and Turkish forces.”
“Civilians continue to suffer disproportionately in the climate of violence, criminality and instability. Lack of distinction between civilians and combatants in armed security operations claims civilian victims, who in addition are deliberately targeted by armed groups and subjected to suicide attacks, targeted assassinations, abductions and extrajudicial killings. Targeting of civilians create a climate of fear aimed at destabilising and displacing civilian populations. The Human Rights Office of UNAMI reiterates that such systematic and widespread attacks may constitute “crimes against humanity and violate the laws of war, and their perpetrators are subject to persecution (UNAMI Human Rights Report, 1 April -30 June 2007 )”
“The UNHCR’s Addendum to its August 2007 paper, published December 2007, stated that: “Various groups are vying for control over the disputed territory, in particular oil-rich Kirkuk. Extremists continue to stir sectarian violence among Arabs, Kurds and, in areas such as Kirkuk and Tal Afar, Turkmen. Under pressure from the MNF-I/ISF and tribal alliances in Baghdad, Al-Anbar, and parts of Babel, Diyala and Salah Al-Din Governorates, AQI has regrouped in areas of Kirkuk and Ninewa Governorates. Violence in these areas has been increasing. On5 November 2007 , the MNF-I/ISF launched a major security operation (‘Operation Iron Hammer’) in the Governorates of Ninewa, Kirkuk, Salah Al-Din and Diyala to counter Al-Qa’eda there.”…Car bombings, suicide attacks, shootings, targeted kidnappings and assassinations of government officials, politicians, religious and tribal figures, members of minority groups, journalists, persons affiliated with the MNF-I/ISF, humanitarian workers, and members of the former regime all occur at a regular frequency in Kirkurk. …Civilian deaths as a result of MNF-I/ISF military offences and raid and search operations have also been reported in Kirkurk….”
“The level of violence in Kirkuk, as captured for example in DoD attack data, increased in 2007 in comparison with 2005 and 2006 and has remained roughly at that raised level. Furthermore, it is not generally appreciated that, per capita, Kirkuk has been among the most dangerous provinces in Iraq. Violence in Kirkuk is strongly influenced by politics at the national level over its status and in relation to the movement of insurgents from central Iraq as they seek to evade attack.”
“During the year [2006], discrimination against ethnic minorities was a problem. There were numerous reports of Kurdish authorities discriminating against minorities in the North, including Turkmen, Arabs, Christians, and Shabak. According to these reports, authorities denied services to some villages, arrested minorities without due process and took them to undisclosed locations for detention, and pressured minority schools to teach in the Kurdish language. Ethnic and religious minorities in Kirkuk frequently charged that Kurdish security forces targeted Arabs, Turkmen, and Shabak.” ….”
“Detail of the steady stream of indiscriminate and targeted violence in Kirkuk is set out above …. The most commonly identified media-confirmed means of killing has been gunshot with car bombs, suicide bombs, roadside bombs and US raids also killing people in Kirkuk in the last three months. In other words, there is a substantial risk in Kirkuk of death and injury from indiscriminate as well as targeted violence to all civilians there. In Kirkuk province 80-90% were unable to state that they felt safe outside of their own neighbourhood and yet such travel can be required for basic things such as employment: 20-30% were unable to say they felt safe even in their own neighbourhood ….”
“Although uncertainty about the number of returnees to Central Iraq exists, there have been reports that many IDPs and refugees have returned to their former place or area of residence, primarily to Baghdad [a footnote refers to Prime Minister Al-Maliki’s reference to 7,000 families having returned to Baghdad]. The absence of accurate baseline data and the lack of monitoring, information and reporting about the routes of return and areas of return make it extremely difficulty to establish the extent to which current movements have been safe, dignified or voluntary [a further footnote here notes that according to the MoDM the Government of Iraq, some 3,460 IDP families have returned to Baghdad between February and November 2007…and a further 6,000 families are awaiting registration. Concerning refugees, the MoDM believes that approximately 30,000 families have returned to Syria]. Despite notable improvements in the security situation in the past few months, the ongoing conflict in many parts of the country and the fluctuating levels of violence raise questions about the safety of the current returns and their sustainability. The Iraqi government and the UN are stepping up efforts to address the immediate needs of these returnee families, given the prevailing situation in Iraq.”
“Males face vastly higher risk of death and injury from violence and human rights abuses related to the armed conflict. While systematic data are not available on this, some illustrative data are available. According to the official Iraqi data gathered by the UN (Paragraph 5.12), out of 36,185 Iraqi civilians wounded in the violence in 2007, 33,684 were adult males, a ratio of 11 to 1 for adult males compared with adult women and children of both sexes. According to Hamit Dardagan of IBC, adult civilian males are vastly more likely than adult civilian women to be killed violently due to the fact that they tend be in public places much more often and also are targeted specifically as potential combatants. This drastically different rate of violent death is confirmed in my trawl IBC data for the first two weeks of 2008 (Appendix 4). On the basis only of the cases where the individual is explicitly identified as an adult male or female, the civilians reported killed violently were 38 male and 6 female, a ratio of 6:1. This ratio sets aside even those cases where the person occupying the position was not specified as male but almost certainly was (e.g. Awakening Council member). The category of ‘military-age male’ has been used as justification by Coalition forces for killing or detaining Iraqi adult males…”
“Presuming that [the appellant's] family have not come to harm, accepting that cannot reasonably be taken as proof that [the appellant] would be safe or indeed that [his] family are or will continue to be safe, as it implies that serious harm must have occurred to them for it to be accepted that there is a serious risk of harm. This is not reasonable. If the issue is substantial risk of death or serious harm, then they are at risk and he would be at risk, in Kirkuk. Detail of the steady stream of indiscriminate and targeted violence in Kirkuk is set out above…”
“Risk due to ethnicity. With an Arab father and Kurdish mother in a patriarchal society and speaking fluent Arabic but not fluent Kurdish, [the appellant] would be most readily identifiable as an Arab and would face a serious risk of persecution by Kurdish actors. Arabs per se may be persecuted as potential anti-Kurdish insurgents or by those seeking to secure a Kurdish majority ahead of the anticipated referendum on the future status of Kirkuk. The risk of harm may escalate dramatically in Kirkuk for [the appellant] due to the dispute over its unresolved status (Paragraphs 6.6-6.21). Ironically, [the appellant] may also be at risk because of his mixed ethnicity. Ethnic conflicts per se are focused on establishing and maintaining ethnic purity and ethnic boundaries, and so someone whose identity mixes ethnicities is automatically liable to be treated with suspicion by extremists on either side of the ethnic boundary. Earlier in this report (Paragraph 5.25), I detailed the vulnerability of Coalition and GoI electronic information management to abuse that would facilitate such persecution.”