“Accordingly, on the basis of a grant of [permission to appeal to the Court of Appeal] by Senior Immigration Judge Storey on23 May 2007 , the Respondent accepts that there is potential arguability in the Appellant’s case and that it would be pragmatic for the matter to be remitted back to the Asylum and Immigration Tribunal. The parties request that the sole matter under consideration upon remittal is the risk to the Appellant as a member of the New Iraqi Army returning to military duties in conjunction with the previous history of attack by insurgents and the targeting of his family in Mosul.”
“1. The armed forces of a party to a conflict consist of all organised armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates, even if that party is represented by a government or an authority not recognised by an adverse party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”
“Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of [GCIII] are combatants, that is to say, they have a right to participate directly in hostilities”
“All members of armed forces are combatants, and only members of the armed forces are combatants. This should therefore dispense with the concept of quasi-combatants, which has sometimes been used on the basis of activities related more or less directly with the war effort. Similarly, any concept of a part-time status, a semi-civilian, semi-military status soldier by night and peaceful citizen by day, also disappears. A civilian who is incorporated in an armed organisation such as that mentioned in paragraph 1, becomes a member of both the military and a combatant throughout the duration of the hostilities (or in any case, until he is permanently demobilized by the responsible command referred to in paragraph 1) whether or not he is in combat, or for the time being armed…”
“10. The present case is concerned with the danger to life arising out of military service. There are international conventions which are concerned with protecting soldiers but none of them are relevant to the present case. It has long been accepted that the mere fact that a citizen is expected by his home state to risk his life whilst doing military service against an external enemy of the state does not entitle him to refugee status under the Geneva Convention and the consequent protection of the international community. Although he may have a well founded fear of being killed for reasons of nationality or religion he will not have a well founded fear of persecution as that term is used in the Geneva Convention. That is so however great the risk to life which is inherent in participating in the relevant military operations. This is not disputed by Mr Blake Q.C. counsel for the appellant. 11. The position in our judgment is no different if the enemy is an internal one. If the state is to fulfil its duty to provide protection for its citizens up to a practical standard it will, in a civil war situation, use its police and soldiers for that purpose. It will not be in breach of its duty to its citizen policemen and citizen soldiers not to persecute them if it requires them to run a high risk of losing their life fighting in a civil war. This proposition also is not challenged directly by Mr Blake. 12. He seeks however to do so indirectly. The argument ran on broadly similar lines in relation to two possible groups - serving soldiers and ex-soldiers. Ex-soldiers 13. Mr Blake concentrated primarily on ex-soldiers - probably because he recognised that, in relation to serving soldiers the received law presents him with something of a hurdle. He relies on a number of cases in which ex-soldiers and ex-policemen have been regarded as refugees Montecino v I.N.S. 915 F.2nd 518, a 1990 decision of the U.S. 9th Circuit Court of Appeals; Lakhar Abdelouahad v SSHD a decision of the IAT this year reference HX/88716/97. However, in relation to any claim based on being an ex-soldier, the appellant faces the problems that he is not presently an ex-soldier. The time when the appellant will be an ex-soldier, if it ever comes, is at least 18 months away. The degree of risk of harm to him from the GIA is manifestly higher in relation to the immediate future. He may never be an ex-soldier in Algeria exposed to the GIA. This can be for a number of reasons. He may refuse to serve and be imprisoned instead; he may die or be killed; he may leave Algeria at the conclusion of his military service and be welcomed by some other country; the GIA may have been subdued or have changed its policy by then; he may himself join the GIA and so on. In our judgment there are far too many uncertainties as to the future to entitle the appellant to rely on a situation which may appertain in 18 months time as a basis for his claim to be a refugee at present. This is enough to dispose of the refugee claim in so far as it is based on the appellant's possible future position as an ex-soldier. It is not necessary for us to decide now whether he might then be entitled to refugee status. Serving soldiers 14. Turning to the more immediate future, we hope we do justice to the appellant's case by summarising it as follows: a) one of the duties of the home state is to provide practical protection against persecution by third parties such as the GIA; b) in threatening to kill soldiers who are off duty the GIA is persecuting them; c) soldiers can be regarded as a group and they are threatened because of their membership of that group and that therefore the persecution is for a Convention reason; d) soldiers are entitled to practical protection by the home state from persecution by third parties for a Convention reason; e) the Special Adjudicator did not investigate whether the home state gave soldiers that practical protection; f) if the home state does not do so then the international community must provide that protection by granting asylum; g) therefore the case ought to be remitted to the Adjudicator to consider whether the home state gives off-duty soldiers practical protection. 15. Mr Blake relies on Article 4(1) of the 1977 Geneva Convention relating to Non International Armed Conflicts which provides:- ‘All persons who do not take direct part or who have ceased to take part in hostilities ... are entitled to respect for their persons, honour and convictions and religious practices. They shall in all circumstances be treated humanely without adverse distinctions.’ 16. He submits that those who commit war crimes or cruel acts inconsistent with the laws of war in their treatment of non-combatants are guilty of persecution. He submits that, whereas a soldier can be expected to put up with the normal hazards of the job, he should not be expected to put up with the GIA which, he submits and we are prepared for present purposes to accept, indulges in kidnap and torture. He submits that if a soldier is exposed to such risk it is properly described as persecution and it is the duty of the home state to protect him from it. 17. There will no doubt be a spectrum of situations in which an Algerian soldier may find himself. At one end he will, under the command of his superior be pointing a gun at someone who is pointing a gun at him. At the other end a soldier might well be given periods of leave when he would return to his village to see his family and be exposed to terrorist attacks by the GIA because he was a member of the army. Mr Blake submitted that if the evidence showed, as it might on examination, that the Algerian state was unable to give the appellant practical protection against that risk on leave then he could claim that he was exposed to persecution as a member of a particular social group, namely, serving soldiers. The argument, if right, must embrace times when a soldier is going out to a cinema in the evening. This will be in the middle of the spectrum. Perhaps precisely where it is will depend on whether the soldier is on call or not. In substance his submission was that the soldier could not seek the surrogate protection of the international community if the hostile forces remained on the battlefield but could do so if the hostile forces moved off the battlefield and engaged in terrorist attacks against the private houses of the soldiery. 18. In our judgment the Special Adjudicator was right to conclude that the Geneva Convention does not confer the status of refugee on someone who has a well founded fear of such things happening to him whilst he is a soldier. The life of a soldier is a hazardous one. We are not persuaded that the Convention draws a distinction between, on the one hand, the position of soldiers engaged on a battlefield in combat against other soldiers observing the rules of war and, on the other hand, soldiers engaged on internal security duties against terrorists. Breaches of the rules of war are regrettably common. To allow soldiers' claims for asylum based on the failure by a State to provide practical protection to its soldiers against such an eventuality would we consider hinder the home state in providing the very protection for the generality of its citizens which the definition of refugee in the Convention assumes that the home state should provide. It would give the GIA and those like them the power, by adopting terrorist tactics, to weaken the power of the home state to provide protection for its citizens. 19. We do not accept Mr Blake's submission, for which he cited no authority, that serving soldiers in the circumstances of Algeria either do or could constitute a "particular social group" who is at risk of being "persecuted" for the purposes of the definition of refugee in the Convention. We note that the 1997 guidelines in relation to Algeria from the UNHCR, while suggesting some categories of persons who would benefit from a presumption that they should be granted asylum status, do not suggest that those in the army fall into that category.”
“In the case of armed conflicts, not of an international character ... each Party shall be bound to apply as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely…”
“Combatants can withdraw from the hostilities not only by retiring and turning into civilians, but also by becoming hors de combat. This can happen either by choice (through laying down of arms or surrendering) or by force of circumstances (as a result of getting wounded, sick or shipwrecked)…”
“The systemic inhumane conduct is of importance to a case like Krotov not because of the potential for physical risk to the conscript but rather because it is the necessary background to a political opinion and well-founded fear of persecution as a result thereof.”
“37. In my view, the crimes listed above, if committed on a systemic basis as an aspect of deliberate policy, or as a result of official indifference to the widespread actions of a brutal military, qualify as acts contrary to the basic rules of human conduct in respect of which punishment for a refusal to participate will constitute persecution within the ambit of the 1951 Convention. 38. It is in my view preferable to refer in this context to 'basic rules of human conduct' or 'humanitarian norms' rather than to 'abuse of human rights', at least unless accompanied by the epithet 'gross': cf. the observations of Lord Bingham quoted above. That is because human rights really concern rights enjoyed by all at all times, whereas humanitarian rules concern rights which protect individuals in armed conflicts. Most Conventions and other documents which provide for the protection of human rights (a) include a far wider variety of rights than the rights to protection from murder, torture and degradation internationally recognised as set out above; (b) in any event, contain safeguards which exclude or modify the application of such rights in time of war and armed conflict: see generally the approach set out in Detter: The Law of War (2nd ed) at pp.160-163. 39. As pointed out in paragraph 35 of the judgment in Foughali, to propound the test in terms of actions contrary to international law or humanitarian law norms applicable in time of war or armed conflict, is consistent with the overall framework of the Convention which contains at Article 1F an exclusion clause to the Convention framed upon that basis: "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;" It can well be argued that just as an applicant for asylum will not be accorded refugee status if he has committed international crimes as defined in (a), so he should not be denied refugee status if return to his home country would give him no choice other than to participate in the commission of such international crimes, contrary to his genuine convictions and true conscience… … "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;" 51. If a court or tribunal is satisfied (a) that the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, has reached a position where combatants are or may be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community; (b) that they will be punished for refusing to do so and (c) that disapproval of such methods and fear of such punishment is the genuine reason motivating the refusal of an asylum seeker to serve in the relevant conflict, then it should find that a Convention ground has been established.”
“underline the importance in this context of some form of state or organisational responsibility for the conduct in question. It is not the mere occurrence of random acts of brutality, or of rape or murder, which in my opinion would qualify the conscientious objector for the surrogate protection of the asylum state under the Convention. Unfortunately, such random acts are too often an incident of warfare. There must be that systematic basis for the acts, either as a matter of deliberate policy or as a result of official indifference…to qualify the situation as one in which the objector is able to rely on international law norms to make good his claim for protection.”
“For the reasons we have given, we hold that what this appellant was seeking to avoid by deserting was the commission of what this country and civilised opinion worldwide recognise as an atrocity and a gross violation of human rights – the unmarked planting of anti-personnel mines in roads used by innocent civilians. He is consequently entitled to asylum, and his appeal accordingly succeeds.”
“ The Court observes that it is well established that the Convention applies in principle to members of the armed forces and not only to civilians. However, when interpreting and applying the rules of the Convention in cases such as the present one, the Court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces …”
“104. The question remains whether the same is true of a case in which a solider dies of heat stroke as a member of the armed forces in Iraq. Our answer to that question is yes. On the basis of the Strasbourg jurisprudence, there is not doubt that it would apply to Private Smith if he were a conscript. We do not think that it could be right to draw a distinction between a regular soldier who is not a conscript and a member of the TA when in active service. When in active service both regular soldiers and members of the TA are subject to army orders, instructions and discipline in the same way. So there could be no principled distinction between them. 105. The question is therefore whether the principles apply to soldiers on active service in Iraq. We conclude that they do. They are under the control of and subject to army discipline. They must do what the army requires them to do. If the army sends them out into the desert they must go. In this respect they are in the same position as a conscript. Once they have signed up for a particular period they can no more disobey an order than a conscript can. The army owes them the same duty of care at common law. We recognise that they may not be quite as vulnerable as conscripts but they may well be vulnerable in much the same way, both in stressful situations caused by conflict and in stressful situations caused, as in Private Smith’s case, by extreme het. We see no reason why they should not have the same protection as is afforded by article 2 to a conscript.”
“37. In my view, the crimes listed above, if committed on a systemic basis as an aspect of deliberate policy, or as a result of official indifference to the widespread actions of a brutal military, qualify as acts contrary to the basic rules of human conduct in respect of which punishment for a refusal to participate will constitute persecution within the ambit of the 1951 Convention.”
“The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances”
“It does not follow that off duty soldiers in Iraq have no protection they are protected by the application of Iraqi law and those who sought to harm an off duty soldier may be subject to criminal sanctions applicable as a matter of Iraqi domestic law.”
“ISF as targets for insurgents 11.55 Attacks by armed insurgents on the ISF occurred. (UNHCR, Aug 2007) [40j] (p9,10,25,35,39,50,102) (UNHCR, Dec 2007) [40l] (p10,31,36,37,45) The frequent attacks largely targetedcheckpoints, police stations and recruitment centres. (UNHCR, Dec 2007) [40l] (p31) 11.56 The UNHCR report, August 2007, commented that “Many Iraqis who previously worked or presently work for, or have any type of association with the MNF, foreign (mainly Western) embassies or foreign companies are generally perceived by the insurgency as condoning and supporting the ‘occupation’ of Iraq and have been targeted since the fall of the former regime.” [40j] (p102) 11.57 The Brooking Institute Iraq Index report, updated on6 November 2008 , provides figures of the numbers of Iraqi military and police killed monthly (although not the source of attack). [88d] (p6)” 11.55 Attacks by armed insurgents on the ISF occurred. (UNHCR, Aug 2007) [40j] (p9,10,25,35,39,50,102) (UNHCR, Dec 2007) [40l] (p10,31,36,37,45) The frequent attacks largely targetedcheckpoints, police stations and recruitment centres. (UNHCR, Dec 2007) [40l] (p31) 11.56 The UNHCR report, August 2007, commented that “Many Iraqis who previously worked or presently work for, or have any type of association with the MNF, foreign (mainly Western) embassies or foreign companies are generally perceived by the insurgency as condoning and supporting the ‘occupation’ of Iraq and have been targeted since the fall of the former regime.” [40j] (p102) 11.57 The Brooking Institute Iraq Index report, updated on6 November 2008 , provides figures of the numbers of Iraqi military and police killed monthly (although not the source of attack). [88d] (p6)”
“While over 300,000 men have been trained and equipped, a large percentage has since left and deserted, substantial numbers have been killed and wounded, and some 10-20% of those who remain are absent at any given time because they leave to take care of their families and transfer their pay in a country where there is no meaningful banking system.”
“12.01 The Child Soldiers report for 2007, published on21 May 2008 , commented that: “In May 2003 the Coalition Provisional Authority (CPA) had ordered the complete dismantling of the Iraqi army, the demobilization of all enlisted soldiers and the indefinite suspension of universal conscription. The August 2003 CPA order creating the new armed forces specified that the minimum age of recruitment was 18 and that recruitment was voluntary. Former military officers of the rank of lieutenant-colonel and below were being accepted into the new army; all other males between the ages of 18 and 40 who were not listed on excluded lists were allowed to sign up at recruiting centres.” [42a] (p1) 12.02 The CSIS report, published23 July 2008 , commented on the high desertion rate from the ISF [63k] (p4); there were reports that hundreds, possibly thousands, of soldiers defected from the Iraqi Army and Iraqi Police during fighting in Basra in March 2008, with some soldiers even changing sides to the Mahdi army. [63k] (p13) The CSIS report further stated: “Reports emerged in the week following the cease fire that more than 1,000 ISF soldiers and policemen either refused to fight or abandoned their posts. Some ISF personnel even shed their uniforms, kept their weapons, and joined the JAM. While most of the deserters were low-level soldiers or police, officers also deserted, including at least 2 senior officers. Iraqi estimates of the number of officers who deserted varied from several dozen to more than 100.” [63k] (p13)” “In May 2003 the Coalition Provisional Authority (CPA) had ordered the complete dismantling of the Iraqi army, the demobilization of all enlisted soldiers and the indefinite suspension of universal conscription. The August 2003 CPA order creating the new armed forces specified that the minimum age of recruitment was 18 and that recruitment was voluntary. Former military officers of the rank of lieutenant-colonel and below were being accepted into the new army; all other males between the ages of 18 and 40 who were not listed on excluded lists were allowed to sign up at recruiting centres.” [42a] (p1) “Reports emerged in the week following the cease fire that more than 1,000 ISF soldiers and policemen either refused to fight or abandoned their posts. Some ISF personnel even shed their uniforms, kept their weapons, and joined the JAM. While most of the deserters were low-level soldiers or police, officers also deserted, including at least 2 senior officers. Iraqi estimates of the number of officers who deserted varied from several dozen to more than 100.” [63k] (p13)”
“So far, the situation of the Yazidis has not improved substantially…After the dissolution of the previous Ministry for Religious Affairs and the creation of three separate departments for the affairs of the Shiite, Sunni and Christian communities, the Yazidis are no longer represented. As illustrated earlier, the embracing of stricter Islamic values, the generally dire security situation, the presence of radical Islamic groups and militias as well as the ongoing political power-wrangling of the various sectarian groups about Iraq’s future, leaves Yazidis exposed to violent assaults and threats and curtails their traditional ways of living as observed for Christian, Jewish and Mandaean minorities.”
“10…There is a specific section on the Yazidis at paragraphs 6.59 to 6.64 of the Iraq Country Report of October 2004. They are described as a syncretistic religious group or a set of several groups, many of whom consider themselves to be ethnically Kurdish, although some would define themselves as both religiously and ethnically distinct from Muslim Kurds. The Yazidis predominantly reside in the north of Iraq. There is a reference to an article in The Times of5 June 2003 referring to the Yazidis' religion being one of the more secretive and persecuted religions. We have considered the article in the St. Petersburg Times headed "In Iraq, ancient sect quietly lives on faith", which provides some useful information on the Yazidis. They are described as one of the world's oldest and most unusual religions. Estimated numbers of the Yazidis range from less than 100,000 to 600,000. We see from this report that the Yazidis have won a seat on the town council in Mosul though, as Mr French pointed out, it is not known how many seats there are and therefore how representative that in fact is. It is said to be the case that even in the north they are so worried about extremist attacks that they cancelled most of their traditional springtime celebrations this year. They are clearly concerned about Islamic parties and the fact that they have experienced a good deal of religious persecution throughout their history. Though they have been referred to as "devil worshippers", it seems that they have no devil in their religion and it is unclear why they have been so described. It is claimed that as part of his Arabisation programme, Saddam Hussein drove Yazidis and other Kurds from their villages and replaced them with Arabs. Most Yazidis remained in Iraq, where they were forced from their villages into crowded, squalid compounds, denied national identity cards, forbidden to write about their religion and barred from holding government jobs. Many Yazidi men were conscripted into the army and sent to the front line during the Iran-Iraq war. It seems, however, that after 1991 hundreds of Yazidis got jobs in the Kurdistan government. 14. The article at page 31 of the bundle headed "Yazidi Hell's Angels" contains further information on the Yazidis. It is said that after the downfall of Saddam Hussein, Kurdish guerrillas poured into their area from further north and tried to take over the town. It is said that they have been the victims of an ugly ethnic tug-of-war between the Kurds and Saddam Hussein's regime for years. It appears that they have managed to keep their religion and culture alive in the face of oppression. They are said to be at risk in the precarious situation in Iraq and, given their lack of any stake in power, their problems remain. It seems that the Kurds announced that the Yazidis were Kurds and should be represented by them and hence they do not have representation on the governing council. 15. It is the case however, as Mr French accepted, that there is no evidence of specific problems for Yazidis in recent times, but rather a generalised fear, relating in part to the problems that other religious minorities in Iraq, such as the Christians (examples at paragraph 6.54 of the Country Report) and Mandaeans/Sabians (example at paragraph 6.58 of the Country Report) face. It is the case however, as Mr Avery pointed out, that the majority of the Yazidis live in the Kurdish controlled areas where law and order is generally better than elsewhere in Iraq. In essence, we have concluded that the inference that Mr French invited us to draw from the historical problems of the Yazidis and the more recent problems of other minorities is not an inference that can properly be drawn from the evidence. No doubt, as a relatively small minority in Iraq and one which has historically experienced problems from others, the Yazidis are vulnerable, but in our view that does not equate to a real risk of persecution or breach of the human rights of the Appellant before us as of today. The evidence does not in our view show that there is a risk of anything more than the generalised risks that exist at present to almost anyone in Iraq, and that in our view is not such as to give rise to a real risk of persecution or breach of the Appellant's human rights. Accordingly, even if we are wrong in our view that there is no error of law in the Adjudicator's determination, we consider that the evidence does not show a real risk for this Appellant. 16. This appeal is dismissed.”
“Risk to Yazidis in Iraq was considered by the [IAT] in NH…where it was concluded that a Yazidi did not face a real risk of persecution or breach of his human rights purely on account of his religion. A UNHCR report of October 2005 commented that: “the presence of radical Islamic groups and militias as well as the ongoing political power-wrangling of the various sectarian groups about Iraq’s future, leave Yazidis exposed to violent assault and threats and curtail their traditional ways of living as observed for Christians, Jewish and Mandaen minorities”
“Religious and ethnic minorities are persecuted but this is not necessarily directly linked to individual’s own religious beliefs or practice. More often, there are strong perceptions vis-à-vis members of these groups, e.g. that they all support the US-led Coalition Forces or act in disrespect of Islamic values, which put individuals at risk of persecution irrespective of their actual belief or behaviour…”
“There were reports that on April 22, 2007, gunmen dragged more than 20 members of the Yazidi community off a bus in Mosul and shot them in retaliation for the stoning of a Yazidi woman, slain by fellow Yazidis for having a relationship with a Muslim Kurdish man. These deaths were in addition to the 11 Yazidis killed in the last reporting period, including Ninevah Provincial member Hasan Nermo, who was assassinated on April 20, 2006…”
“For ethnic reasons Yazidis are caught between Arabs and Kurds in Iraq. Many Yazidis suffered in the Anfal campaign alongside the Kurds …and were forced to define themselves as Arabs”
“Unemployment is a big problem for Yazidis particularly outside the KRG-administered region”
“Another way of putting the effect of the above authorities is as follows. A state’s protection has to be wide enough to cover the ordinary needs of its citizens for protection. Protection may still be insufficient, to prevent persecution in a particular case or in a particular subcategory of cases, if an individual’s (or subcategory of person’s) needs for protection are out of the ordinary or exceptional. However, recognition that a person’s (or subcategory of person’s) individual circumstances may require “additional protection” has an important limit. As emphasised in Horvath, protection is a practical standard. In Lord Clyde’s words at [60], “no-one is entitled to an absolutely guaranteed immunity. That would go beyond any realistic practical expectation.”
“… the frequency of attacks in Mosul continued to mount in recent weeks and the Prime Minister sent further reinforcements to Mosul.” [38r] (p1)”