3.3.4. Indiscriminate violence

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This country guidance is currently under review. In view of the recent significant changes, notably the Taliban takeover, assessments within this document may no longer be valid. When examining the international protection needs of applicants from Afghanistan, please consider the most up-to-date country of origin information available.

COMMON ANALYSIS
Last updated: December 2020

‘Indiscriminate violence’ refers to the source of the specific type of serious harm defined in Article 15(c) QD. The CJEU in Elgafaji notes that the term ‘indiscriminate’ implies that the violence,

may extend to people irrespective of their personal circumstances. [37]

Some acts of violence may be indiscriminate by their nature, for example: (suicide) bombings, attacks and armed confrontations in areas that are inhabited or frequented by civilians (e.g. marketplaces, public roads, healthcare facilities).

Based on Elgafaji, in situations where indiscriminate violence is taking place, the following differentiation can be made with regard to its level:

Figure 8. Levels of indiscriminate violence on the basis of CJEU, Elgafaji.[38]

With regard to the second category, Elgafaji provides guidance on how the serious and individual threat has to be assessed, an approach commonly referred to as the ‘sliding scale’:

(…) the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection. [39]

Risk-impacting elements related to the personal circumstances of the applicant should, therefore, be taken into account. See the sub-section Serious and individual threat.

The graph below illustrates the further differentiated standard scale applied in country guidance documents with regard to the levels of indiscriminate violence and the respective degree of individual elements required in order to find that a real risk of serious harm under Article 15(c) QD is substantiated for the applicant:

 

Figure 9. Indiscriminate violence and individual elements in establishing real risk of serious harm under Article 15(c) QD.
 

The different levels of indiscriminate violence can be described as follows:

  1. Territories where ‘mere presence’ would be considered sufficient in order to establish a real risk of serious harm under Article 15(c) QD. 
 
Territories where the degree of indiscriminate violence reaches such an exceptionally high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his or her presence on the territory of that country or region, face a real risk of being subject to the serious threat referred to in Article 15(c) QD.
  1. Territories where real risk of serious harm under Article 15(c) QD may be established if the applicant is specifically affected by reason of factors particular to his or her personal circumstances (based on a ‘sliding scale’). 
                                           
Territories where ‘mere presence’ in the area would not be sufficient to establish a real risk of serious harm under Article 15(c) QD, however, indiscriminate violence reaches a high level, and, accordingly, a lower level of individual elements is required to show substantial grounds for believing that a civilian, returned to the territory, would face a real risk of serious harm within the meaning of Article 15(c) QD.
 
 
Territories where indiscriminate violence is taking place, however not at a high level and, accordingly, a higher level of individual elements is required in order to show substantial grounds for believing that a civilian, returned to the territory, would face a real risk of serious harm within the meaning of Article 15(c) QD.
 
 
Territories where indiscriminate violence is taking place at such a low level that in general there is no real risk for a civilian to be personally affected by reason of indiscriminate violence within the meaning of Article 15(c) QD.

It should be noted that in armed conflicts the targeting of civilians may have nexus to one of the reasons for persecution according the refugee definition. Therefore, refugee status may be granted as noted in the section above (see, for example, the profiles 2.2 Government officials, including judges, prosecutors and judicial staff; and those perceived as supporting the government, 2.4 Religious leaders, 2.7 Educational personnel, 2.8 Humanitarian workers and healthcare professionals, 2.9 Journalists, media workers and human rights defenders, and 2.17 Ethnic and religious minorities). Such targeted violence, furthermore, would not be considered ‘indiscriminate’.

Continue with the sub-section on indicators of indiscriminate violence.


[37] Elgafaji, para.34. [back to text]
[38] Elgafaji, para.43. [back to text]
[39] Elgfaji, para.39. [back to text]
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