A question of definition - The Concept Of Internal Armed Conflicts in the Swedish Aliens' Law

Abstract: Fleeing the horrors of an internal armed conflict constitutes a ground for subsidiary protection in the Swedish Aliens' Act. However, what is to be defined as such a conflict is disputed, which is obvious from the divergent views on the ongoing situation in Iraq. In 2007 the Migration Court of Appeal established the situation as severe, but as not amounting to an armed conflict. This conclusion met strong resistance from NGOs as well as from the academia. By applying three different perspectives, the aim of this thesis is to provide the reader with insight in how and why the interpretation of internal armed conflicts as presented by the Court, can be criticized. The main hypothesis to be proven is that the interpretation is incoherent and inadequate. The first perspective entails a formal legal approach, establishing lex lata. Since the Swedish Aliens' Act bases its interpretation of internal armed conflicts on international humanitarian law, the examination comprises instruments and case- law of both international humanitarian law and migration law. Also relevant EU- law is taken into account. From this examination it becomes clear that the legal sources of international humanitarian law and migration law both fail to coherently determine what is to be defined as an internal armed conflict. In a second, historical, perspective the reasons of this incoherency is sought. Firstly by taking a look at the historical legal regulation of internal conflicts and its development in international humanitarian law, and relating this with the application of subsidiary protection in migration law. Secondly, by examining the changing nature of conflicts over time and comparing this reality with the legal concepts. This brief historical survey shows that the conception of internal conflicts has changed only insignificantly since the 18th century. The regime of recognition of belligerency used then was based on the same considerations as do the application of subsidiary protection. The static legal concept of armed conflicts is identified as problematic since the characteristics of internal conflicts have changed rather radically after the end of Second World War. Thus is seems like the law bases itself on an anachronic perception of the nature conflicts. In a third perspective, an alternative interpretation is sought in the field of peace- and conflict research. A definition as provided by Uppsala University, entailing a numerical variable as a decisive requisite, is presented and analyzed. The definition is dismissed, but the assessment strengthens the overall conclusion in the thesis: that any concept of armed conflicts entailing too formal criteria is deceiving and not suitable within the context of migration law.