4 - Judicial Constructions of Risk on Return to Situations of Contemporary Armed Conflict

Summary

Chapter 4 explores how appellate authorities in the EU understand and approach situations of armed conflict. This chapter claims that appellate authorities approach situations of armed conflict predominantly through the perspective of conventional warfare and a notion of territoriality. Such a perspective fails to acknowledge that one of the main strategies of fighting parties is to exercise political control over territory by forcibly displacing and terrorising populations through highly visible forms of human rights violations. The findings bring to the fore the misconceptions regarding the application of the Refugee Convention to persons fleeing armed conflicts, namely a perceived dichotomy between a risk of individual persecution and a risk arising from widespread violence. The research challenges appellate authorities’ conflation of asymmetrical warfare with lower levels of violence and less serious forms of violence contrary to knowledge in the field of feminist and security studies indicating that non-conventional armed conflicts are in fact characterised by armed groups’ relative control over the exercise of strategic, and thus political, violence. The chapter concludes that the existence of two distinct legal statuses in the EU based on reasons for flight operates as an obstacle to the development of international refugee law.