[5]
8. The United Nations Handbook deals with the situation of
persecution at the hands of third parties in paragraph 65
Persecution is normally related to action by the authorities of a country.
It may also emanate from sections of the population that do not respect the
standards established by the laws of the country concerned. A case in point may
be religious intolerance, amounting to persecution , in a country otherwise
secular, but where sizeable sections of the population do not respect the
religious beliefs of their neighbours. Where serious discriminatory or other
offensive acts are committed by the local populace, they can be considered as
persecution if they are knowingly tolerated by the authorities, or if the
authorities refuse, or prove unable, to offer effective protection.
9. The Handbook has a number of paragraphs dealing with the situation
of soldiers. The only ones of present relevance are paragraphs 168 and 169.
168. A person is clearly not a refugee if his only reason for
draft evasion is his dislike of military service or fear of combat. He may,
however, be a refugee if his desertion or evasion of military service is
concomitant with other relevant motives for leaving or remaining outside his
country, or if he otherwise has reasons, within the meaning of the definition,
to fear persecution .
169. A deserter or draft-evader may also be considered a
refugee if it can be shown that he would suffer disproportionately severe
punishment for the military offence on account of his race, religion,
nationality, membership of a particular social group or political opinion. The
same would apply if it can be shown that he has a well-founded fear of
persecution on these grounds above and beyond the punishment for desertion.
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[6]. 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 in
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.
20. We therefore dismiss this appeal.
ORDER: Appeal dismissed no order / no costs Leave to Appeal to the
House of Lords refused.
(Order does not form part of the approved judgment)
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