Civil War - the need for differential risk
22 When considering the claimed refugee status of an applicant who has fled from a country in a state of civil war in a clan-based society, complex considerations will arise in deciding whether the risk of persecution is for a Convention reason. This is especially so in those instances where the civil war or state of anarchic violence involves clan, sub-clan, or sub-tribal disputes as is clearly the case in Somalia. On the one hand if too broad an approach is taken, all members of each warring group may be able to claim that they are being persecuted on racial or other Convention grounds simply because they belong to a warring group. Decision-makers on refugee applications have sometimes taken the view that civil wars, which result in a general state of indiscriminate violence or general danger and insecurity, may preclude the existence of persecution for a Convention reason. Such an exclusionary approach can result in the application of an erroneous general principle which is to the effect that because a state of civil war or violent anarchy prevails in a country no Convention based reason can exist. This view, on the authorities, is too simplistic.
23 The special features of refugee claims in circumstances of civil war have not escaped the attention of learned commentators: Goodwin-Gill, in his work The Refugee in International Law, (1996) 2nd ed at 75, points out that resolution of the question whether there is a Convention reason calls for a closer look at the background to the conflict, and the ways in which it is fought. Professor Hathaway in "The Law of Refugee Status" at 188 accepts that a civil war directed against a religious group in particular, or other social group, would be persecution under the Convention.
24 The question as to the existence of Convention based persecution in the context of clan warfare in Somalia was recently considered by the House of Lords in Adan v Secretary of State for the Home Department [1998] 2 WLR 702.
25 This decision is of considerable importance in the present matter because the decision-maker in the RRT referred to and directly applied the principles accepted by the House of Lords in Adan as to what is referred to as "differential risk". The respondent submits that the decision-maker thereby erred.
26 In the Adan matter, the decision of the United Kingdom Immigration Appeal Tribunal under review, was that the applicant was at no greater risk than others arising from the state of civil war in Somalia, and it therefore allowed the appeal by the Secretary of State. An appeal was then taken to the Court of Appeal which, by majority, allowed the appeal but unanimously held that all those who might be identified with the interests of either side in the relevant Somalian hostilities were "potential refugees". This latter holding was, in turn unanimously over-ruled on appeal to the House of Lords. Their Lordships upheld the approach taken by the Tribunal and decided that killing and torture which were incidental to a clan and sub-clan based civil war did not give rise to a well-founded fear of being persecuted within the Convention definition because in such a case an asylum seeker was at no greater risk of such ill treatment by reason of his clan or sub-clan membership than others at risk in the war.
27 The principal speeches were those of Lord Slynn and Lord Lloyd. The remaining three members of the House concurred in the speech of Lord Lloyd.
28 Lord Slynn (at 704-705) said:
"…. in principle it must be accepted, that there can be persecution of a group and that the individual in the group does not have to show that he has a fear of persecution distinct from, or over and above, that of his group.
…
Looking, however, at the language of the Convention and its object and purpose I do not consider that it applies to those caught up in a civil war when law and order have broken down and where, as in the present case, every group seems to be fighting some other group or groups in an endeavour to gain power. In such a situation what the members of each group may have is a well founded fear not so much of persecution by other groups as of death, injury or loss of freedom due to the fighting between the groups. In such a situation the individual or group has to show a well founded fear of persecution over and above the risk to life and liberty inherent in the civil war. The line may be a fine one to draw…." (Emphasis added)
29 It is noted that Lord Slynn was referring to a civil war in which the parties were struggling to gain power. He does not refer to a war in which the selective harassment was based on religion or race.
30 Lord Lloyd addressed the question at 710, where he said:
"He [counsel for the Secretary] accepts further that the persecution of individuals and groups, however large, because of their membership of a particular clan is very likely to be persecution for a Convention reason. But he says that where there is a state of civil war between clans, the picture changes. Otherwise the participants on both sides of the civil war would be entitled to protection under the Convention. Indeed, .. the only persons who would not be entitled to protection on that view, would be those who were not the active participants on either side, but were, … lucklessly endangered on the sidelines. … It drives me to the conclusion that fighting between clans engaged in civil war is not what the framers of the Convention had in mind by the word persecution.
What then is the critical factor which distinguishes persecution from the ordinary incidents of civil war? …If an asylum-seeker can show that he is being targeted for Convention reasons, other than his membership of one of the warring clans, then he might qualify for refugee status." (Emphasis added)
31 His Lordship continued at 713:
"I conclude from these authorities, and from my understanding of what the framers of the Convention had in mind, that where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show … a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.
… the difficulty of establishing the facts does not undermine the principle that those engaged in civil war, are not, as such, entitled to the protection of the Convention so long as the civil war continues, even if the civil war is being fought on religious or racial grounds." (Emphasis added)
32 The last of the above extracts suggests that in the view of their Lordships, even if clan or race based persecution is established, the fact that it arises in the context of a civil war precludes those so targeted from Convention protection without more being shown.
33 When it came to analysing the particular circumstances of Mr Adan, Lord Lloyd (at 714) accepted the Tribunal's conclusion of fact that all sections of society in northern Somalia were equally at risk so long as the civil war continued. His Lordship concluded that there was no treatment which differentiated between Mr Adan and other members of his clan. In other words on the facts the position was that there was an absence of selective harassment on a Convention ground. The claim of Mr Adan was that members of his sub-clan were particularly at risk because they had attacked a militia stronghold of the main opposing sub-clan. This was not considered to throw doubt on the conclusion that all sections of society in northern Somalia were equally at risk so long as the civil war continued. We note that their Lordships in the two principal judgments derived some comfort in noting that there was no question of Mr Adan being returned to Somalia because he and his wife had been granted "exceptional" leave to remain in the United Kingdom on humanitarian grounds.
34 This decision was considered by the Full Federal Court in the case of Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11, which also concerned an applicant from Somalia. The Court held in Abdalla that the clan of which the applicant was a member was in fact in a different position as to risk in the civil war from other clans. In view of this acceptance it was not necessary for the Court to express any concluded view as to the correctness of the statements made in Adan.
35 The Full Court in Abdalla, after quoting from Adan,said (at 21):
"It is evident … that the decision in Adan turned on the particular evidence as to the circumstances of Mr Adan and the nature of the war in the north of Somalia at the relevant time. It is not in any way a controlling authority in relation to the present case. The question to be investigated before reaching a conclusion as to whether there is persecution in the present case …is whether the evidence establishes that all sections of society are equally at risk so long as the civil war continues. In the tribunal decision, this issue is not addressed.
The decision in Adan deals with what was apparently indiscriminate violence or oppression manifested towards all clans without any differential impact based on clam membership…"
36 The reasoning of the House of Lords in Adan has attracted criticism on the basis that their Lordships have unreasonably limited the protection given by the Convention by attempting to distinguish between refugees from a civil war and other refugees: see "Rewriting the Refugee Convention: The Adan Case in the House of Lords" (1998) 12 Immigration & Nationality Law & Practice, 100, by Prakash Shah.
37 In approaching the question of persecution in the context of a civil war, it is important to keep firmly in mind the wording of the Convention definition. The definition makes no reference to any different approach being adopted where the persecution exists in the context of civil war. There is no exclusion. The relevant question raised by the language of the definition requires a determination, on the evidence, of whether the harm or detriment is for a Convention reason. In the present case there appears to be a risk of serious harm in Somalia even to bystanders and those on the sidelines who are incidentally caught up in what might be called the "cross-fire". This, however, is not sufficient. The evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm. This in turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war.
38 In relation to Adan, we do not accept that a clan or race based war cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan. If evidence establishes, for example, that the objective of a war is to harm the opposing party for one or more Convention reasons, then "persecution" will be made out. It is somewhat odd to suggest that claimants are precluded from refugee status solely on the ground, for example, that a conflict based on race or religion which gives rise to the fear, can be described as a "war". The task of the decision-maker in these circumstances must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground or has an objective which is covered by the Convention, namely: race, religion or other stated reason. This responsibility cannot be curtailed by a conclusion that there is a state of war.
39 It is difficult, with respect, to see the basis on which a superadded requirement of "greater risk", "differential risk" or "risk over and above that arising from clan warfare" can be derived as a criterion for application of the Convention definition where the war is based on race or religion rather than for example a quest for property, power or resources. For example, once it is established that a person is at risk of being killed or tortured in a war by reason of clan membership, in circumstances where that is one of the objectives of the war one might properly ask what further degree of danger or exposure needs to be established before the required nexus with a Convention reason is made out? Given the purpose of the Convention and the well-settled principle that a broad, liberal and purposive interpretation must be given to the language, it is difficult to see the reason why a "second tier" of "differential" or superadded persecution should be imposed on an applicant for refugee status.
40 If their Lordships in Adan intended that the reference to clan warfare meant warfare engaged in between clans or sub-clans for reasons such as the acquisition of dominance or power, the control of territory, or to obtain access to resources, then the broader statements of their Lordships, would, in our view be in accordance with accepted principles. Indeed, Lord Slynn (at 705), speaks of a type of civil war which is a struggle to gain power. He does not refer to a civil war which is necessarily concerned with racial or religious considerations. However, in contrast to the approach of Lord Slynn it is evident that Lord Lloyd, and the other three members of the House who concurred in his judgment, intended to impose the additional and undefined requirement of some form of fear of harm "over and above" that "ordinarily incidental" to a civil war, even where the civil war is fought on racial or religious grounds. In our view, there is no basis for the imposition of this additional requirement of differential treatment either in the language or objectives of the Convention.
41 A concern is evident in Adan that extension of Convention protection to persons involved in a civil war would lead to a flood of applications for refugee status. This does not necessarily follow. In many cases the basis for an applicant's fear will arise from a struggle relating to territory, property or power and not to warfare for reasons of clan or race where the objective is to harm a person because of clan membership. This may be so in Somalia where the existence of shifting alliances tends to indicate that the persecution under consideration at any particular time may not be directed towards clan membership as such, but rather to other considerations incidentally associated with clan membership such as control over land or resources. Nevertheless, in the present case there has been a failure to address this matter.
42 In our view the statements made in Adan travel beyond the requirements of the Convention by imposing additional or differential requirements where the civil war in question is based on racial or clan grounds and not grounds such as a struggle for power or dominance, the acquisition of territory, the appropriation of property or the acquisition of access to strategic resources or facilities. In the latter examples examples where the civil war is not directed to racial persecution, it is necessary, of course, to establish the existence of selective harassment on a Convention ground, whereas in the former example such a ground is already present because the civil war is properly characterised as race based.
43 It is evident from the discussion in the RRT decision of the accepted evidence under the headings "Findings and Reasons", that the decision-maker focused on looking for something "over and above" the existence of a civil war and thereby failed to direct his attention to the question whether the civil war itself was actuated by, or pursued for, a Convention reason. The approach taken was that everyone in a country engaged in civil war is at risk of injury and that it is necessary to find something "more" to establish refugee status. However, as discussed above, the existence of the war itself may be sufficient if, for example, it can be said to be aimed at wiping out an opposing clan. In such a case all members of the clan may be at risk for a Convention reason and are therefore within the definition. This situation may be rare but nevertheless such wars do occur. Two recent examples are the civil wars in Rwanda and earlier the civil war in Cambodia. Where a war is truly characterised as being clan based, then in our view the Convention requires that considerations must be given to the question whether the reasons for the war are to harm on the basis of race or clan or whether the struggle is in substance directed to control of resources or to the assertion of dominance over territory. The failure to look to the reasons for the war and to demand something "over and above" the existence of a state of war is a source of error because it eliminates a critical step in the process, namely analysis of the objective and conduct of the war. By applying the gloss on the Convention set out in Adan's case the decision-maker in the present matter has fallen into error. We reach this view giving full weight to the warning of the High Court that an unduly rigorous approach must not be taken on judicial review to a decision of an administrative tribunal.
Revenge
44 Fear of revenge, without more, will normally not be sufficient to amount to persecution for a Convention reason. For example, a fear of revenge for the killing of a member of another group will usually not be sufficient unless it can be shown that the retaliation is linked with a racial, religious or other Convention reason. Of course, if it can be shown to be related to such a purpose then the fear of revenge may well come within the definition. But that is not this case. The evidence which the RRT accepted was that the appellant's father was involved in a leadership or land struggle involving the Darod sub-clans and as a result was killed and the applicant was injured. The RRT finding was that he claimed a fear of returning to Somalia because of the possibility of revenge from the other Darod sub-clans. During the hearing of the appeal we were handed part of the transcript before the RRT. This confirms that the relevant conflict was between the father of the applicant and other elders of the Ogaden clan about leadership, and that his father was targeted because he disagreed on the question whether the Ogaden should fight another clan, the Mujutin. The respondent also said in evidence that the particular interest in his sub-clan, the Waiten, on the part of the alleged persecutors, was to be explained in relation to a land conflict.
45 There was evidence before the RRT that the "revenge" of which the applicant speaks arose out of the killings which occurred at or after the time his father was killed. The fear which he says he holds is based on and arises as a consequence of his kinship to his deceased father.
46 On this material, in our view, it was open to the RRT to conclude that the fears arising from the death of his father were leadership and land related, rather than for a Convention reason. The reference to Magyari v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 341 does not support a conclusion that there was any error of law in the analysis of the evidence on this submission. That decision simply provides a specific and clear example of non-Convention related revenge.