¹ COM(2001) 510, 2001/0207 (CNS), ASILE 52, 13620/01.Google Scholar

² Presidency Conclusions, Tampere European Council, SI (1999) 800, Conclusions 13 and 14.Google Scholar

³ Ibid, Conclusion 13.

⁴ Convention relating to the status of refugees 1951 (189 UNTS 150) as amended by the 1967 Protocol (606 UNTS 267).Google Scholar

⁵ This caution is of utmost importance, as there has been a tendency in State practice over the last decades to interpret the refugee definition in Art 1 of the Convention in a more restrictive manner in answer to the increase in the number of asylum seekers. Varying interpretations by Member States result in widely differing recognition rates of persons in the same circumstances;Google Scholarrefugees who may be granted refugee status in one Member State may be denied such status in another. Often these persons will be granted some sort of subsidiary status or a (temporary) residence permit for compassionate reasons. See for examples of this in Dutch and German law and policy: Eck, C van, De-facto-Fluechtlinge, Europäische Hochschulschrifte, Reihe II, Vol 2777 (1999). This development was already acknowledged by the Council of Ministers of the Council of Europe in Resolution (84)1 of 25 Jan 1985. See also Recommendation of the Parliamentary Assembly of the Council of Europe (67) 787, para 3, in which the Assembly expresses its worries concerning ‘the widely differing recognition rates in the various states, which are the result of the adoption of different criteria and, in part, of reliance upon inadequate information…’ and para 4 ‘refugee status granted in one state is not necessarily recognised in other state parties to the same conventions’.Google Scholar

⁶ Acknowledgment of this notion may be found, for example, in Recommendation (76) 773 of the Parliamentary Assembly of the Council of Europe, which refers to ‘persons not recognised as refugees within the meaning of Art 1 of the Convention relating to the status of refugees…and who are unable or unwilling for political, racial, religious or other valid reasons to return to their countries of origin’. See also: UNHCR EC/50/SC/CRP.18 of 9 06 2000.Google ScholarSee also Bouteillet-Paquet, D (ed), Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention? (BruxellesBruylant 2002).Google Scholar

⁷ This need appears already from the Council Resolution of 10 1996 on the establishment of priorities for cooperation on judicial and internal affairs for the period from 1 07 1996 to 30 June 1998 (OJ C 319, 26 Oct 1996, 1) and was confirmed in the Council Resolution setting priorities from 1 Jan 1998 until the date of entry into force of the Amsterdam Treaty (OJ C 11,15 Jan 1998, 1). Accordingly the Dutch presidency prepared a note on subsidiary protection (ASIM 89, 7779/97 of 28 Apr 1997) which was followed up by the Danish presidency, which presented a note for discussion on various forms of subsidiary protection and the need for harmonisation within the EU (ASIM 52, 6764/97 of 17 Mar 1997). It was considered that, after the adoption of the EU Joint Position of 4 Mar 1996 concerning the harmonized application of the definition of the term ‘refugee’ in Art 1A of the Geneva Convention, and pursuant to the provisions of the Dublin Convention, a harmonised concept of subsidiary forms of protection was needed, as ‘the overall assessment of the application…will rarely be finally concluded by a decision…pursuant to the Geneva Convention. Thus—before return…it will often be necessary to consider the applicant's need for protection on another basis. Where differences exist between the national schemes in Member States concerning alternative forms of protection, it may become of vital importance to the applicant, in connection with return under the rules of the Dublin Convention, to which Member State he or she is returned’ (4).Google Scholar

⁸ The use of the term ‘international protection’ in this context has been criticized by the UNHCR. Its point is that international protection is the prerogative of the UNHCR, and that States more accurately give national protection in performance of an international obligation. Accordingly the UNHCR suggests that ‘asylum’ would be a more appropriate term: UNHCR, Observations on the European Commission's proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection (Observations), 11 2001, paras 9–10. Although UNHCR is strictly speaking right about the meaning of this term, we are of the opinion that in the context of the Proposal the use of the term ‘international protection’ is useful as an overarching notion, containing two categories in need of protection, and does not lead to any confusion in this context.Google Scholar

⁹ Tampere Conclusion 14 provides, in part: ‘[The Common European Asylum System] should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection.’Google Scholar

¹⁰ ‘The Council…shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt: (1)…(c) minimum standards with respect to the qualification of nationals of third countries as refugees;…(2) measures on refugees and displaced persons within the following areas: (a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection…‘ Concerning the setting of minimum standards for the qualification and status of persons eligible for subsidiary protection in particular, it is clear that Art 63(2)(a) is the appropriate legal basis: Legal Service of the EC, ASILE 34, JUR 247,10560/02 of 10 07 2002.Google Scholar

¹¹ Roscam-Abbing, F, ‘Subsidiary Protection: Improving or Degrading the Right of Asylum in Europe?’, in Bouteillet-Paquet n 6 above 43, at 50–1.Google Scholar

¹² See for the result of negotiations until 26 11 2002: 14643/1/02 Rev 1; ASILE 68 (amended Proposal); subsequently 10576/03, ASILE 40, 19 06 2003.Google Scholar

¹³ The UNHCR has expressly raised this in a commentary on migration control in the European Union: Office of the UN High Commissioner for Refugees, Reconciling Migration Control and Refugee Protection in the European Union: A UNHCR Perspective (10 2000) para 40: ‘the Convention definition of a refugee does not cover the protection needs of all persons. Those who may not necessarily come within the ambit of the Convention refugee definition as formulated in 1951 but who nevertheless need international protection are commonly referred to as refugees falling under UNHCR's wider competence. States have long supported protection and assistance activities undertaken for those categories of refugees by UNHCR, which include, for example, persons fleeing the indiscriminate effects of armed conflict or serious public disorder, albeit with no specific element of persecution or link to one of the five grounds enumerated in the Convention’, <http://www.unhcr.ch/refworld/refworld/legal/refpol/migrtne.pdf>. See also: UNHCR, Complementary forms of protection, EC/50/SC/CRP 18, 3..+See+also:+UNHCR,+Complementary+forms+of+protection,+EC/50/SC/CRP+18,+3.>Google Scholar

¹⁴ Report on the State practice within the EU, ASIM 267, 13667/97 6 01 1998. In Member States different terms are used in this context, such as temporary residence, exceptional leave to remain, tolerated status, or a de-facto-refugee status.Google Scholar

¹⁵ 213 UNTS 221. Art 3 of the ECHR provides:/No one shall be subjected to torture or to inhuman or degrading treatment or punishment./Google Scholar

¹⁶ 1984, GA Res 39/46. Art 3 of CAT provides: ‘1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’Google Scholar

¹⁷ GA Res 2200 (XXI) (1966). Art 7 of the ICCPR provides: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’Google Scholar

¹⁸ Explanatory Memorandum, para 3, 6. The wide diversity of State practice is illustrated by the report of the Council of the European Union on Alternative Forms of Protection to Refugee Status under the Geneva Convention, 12 10 2000, Doc No 12261/00.Google Scholar

¹⁹ Explanatory Memorandum, para 2, 4.Google Scholar

²⁰ Council Directive 2003/86/EC of 22 09 2003 on the right to family reunification. This includes only family reunification of refugees recognized pursuant to the 1951 Convention and does not cover persons in need of subsidiary protection.Google Scholar

²¹ An EU directive on this scheme of protection has been adopted, Council Directive 2001/55/EC of 20 07 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L212,7 08 2001, 12. On temporary protection see further Fitzpatrick, J, ‘Temporary Protection of Refugees: Elements of a Formalized Regime’, 94 AJIL (2000) 279.Google Scholar

²² Above n 1, at 27–8.Google Scholar

²³ Above n 12.Google Scholar

²⁴ For instance, the definition of ‘refugee’ in the amended Proposal basically repeats the Geneva Convention definition. However, it finishes by stating that ‘refugees’ is restricted to people ‘to whom Art 14 does not apply’. Art 14 contains the exclusion clauses found in Art 1 of the Geneva Convention but with some crucial additions. Thus Art 14(2)(b) excludes from protection those who have committed a serious non-political crime outside the country of refuge prior to admission as a refugee (as does the Geneva Convention). However, it continues: ‘particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes’, hence excluding the perpetrators from protection. This reflects the changes in the international environment in the light of the attacks on the USA on 11 09 2001, the original Proposal having been published on 12 09 2001. However, the amended Proposal appears o go a step further in that the statement contained in the original, that States’ obligations under international law to those excluded from refugee status continued to exist (Art 14(5)), does not appear in the new version. Instead, at Art 14B(6), there is a statement that those excluded from refugee status are entitled to certain rights as set out (or similar to those set out in) in the Geneva Convention, including prohibition of refoulement. This may be narrower than the previous version, which referred to States’ obligations under international law, rather than just the Geneva Convention. There is explicit acknowledgment of the principle of non-refoulement at Art 19.Google Scholar

²⁵ These notions may be considered to cover the same persons in need of protection. In the context of the EU the term ‘subsidiary protection’ is used, whereas UNHCR prefers the use of the term ‘complementary protection’, underlining the complementarity of this scheme to the 1951 Convention.Google Scholar

²⁶ See, eg, nn 7 and 14;Google ScholarRecommendation (76) 773 Parliamentary Assembly of the Council of Europe, Resolution (84) 1;Google ScholarReport of Vetter, Heinz Oskar, Doc. A 2–227/86/13 of 23 02 1987, OJ C 99, 167.Google Scholar

²⁷ See Art 6 of the Statute of the Office of the UN High Commissioner for Refugees (GA Res 428 (V) of 14 12 1950). Over the years other categories of persons finding themselves in refugee-like situations have been brought under UNHCR's mandate by Resolutions of the ECOSOC and the General Assembly.Google Scholar

²⁸ Recommendation E.Google Scholar

²⁹ All EU Member States are parties to CAT. All are parties to the ICCPR; all except the UK are party to the First Optional Protocol; all except France are party to the Second Optional Protocol.Google Scholar

³⁰ ‘States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment…’Google Scholar

³¹ Chahal v United Kingdom, 15 11 1996, 1996 V No 22, 23 EHRR 413;Google ScholarAhmed v Austria, 17 12 1996, 1996 VI No 26, 24 EHRR 278.Google Scholar

³² Soering v United Kingdom, A Series, No 138, 1988, 11 EHRR 439; Vilvarajah v United Kingdom, A Series, No 125,1991, 14 EHRR 248;Google ScholarAhmed v AustriaGoogle Scholar, ibid.

³³ Abdulaziz, Cabales and Balkandali v United Kingdom, A Series, No 94, 1985.Google Scholar

³⁴ Giama v Belgium, No 7612/76, Bulus v Sweden, No 9330/81.Google Scholar

³⁵ Assurances provided by the authorities of the receiving State where they depend on vagaries of diplomatic relations are considered not to be sufficient, Amuur v France, 22 EHRR 533.Google Scholar

³⁶ Chahal v United Kingdom, n 3 1, above.Google Scholar

³⁷ Soering v United Kingdom, n 32, above.Google Scholar

³⁸ Ibid, at para 88.

³⁹ Ibid, at para 91.

⁴⁰ HLR v France 26 EHRR 29.Google Scholar

⁴¹ Ibid, at para 40.

⁴² D v United Kingdom, 24 EHRR 423.Google Scholar

⁴³ Ibid, para 49.

⁴⁴ Cruz Varas v Sweden 14 EHRR 1.Google Scholar

⁴⁵ Vilvarajah and Others v United Kingdom, n 32, above.Google Scholar

⁴⁶ Chahal v United Kingdom, n 3 1, above.Google Scholar

⁴⁷ Ibid, para 74.

⁴⁸ Ahmed v Austria, n 3 1, above.Google Scholar

⁴⁹ Soering v United Kingdom, n 32, above, para 91: ‘the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country…In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.’Google Scholar

⁵⁰ D v United Kingdom, n 42, above.Google Scholar

⁵¹ Ireland v United Kingdom, Series A No 25, 65, para 162;Google Scholarand Tyrer v UK, Series A No 26, 14–15, paras 29 and 30, Soering v United Kingdom, n 32 above, para 100.Google Scholar

⁵² Ibid, para 102.

⁵³ Ibid, para 104.

⁵⁴ See, for examples: German Federal Administrative Court decisions of 17 10 1995, 9 C 15.95, EZAR 043, No 11;Google Scholar9 C 56.95, InfAuslR 1996,254 and 4 06 1996, 9 C 134.95, InfAuslR 9/1996,289.Google Scholar

⁵⁵ Ahmed v Austria, n 31, above;Google Scholarsee also European Commission on Human Rights: Altun v FRG (No 100308/83), Kirkwood v United Kingdom (No 10478/83).Google Scholar

⁵⁶ Chahalv United Kingdom, n 31, above;Google ScholarAhmed v Austria, n 31, above.Google Scholar

⁵⁷ The CAT Committee applies among others within the risk assessment the standard of ‘beyond mere theory or suspicion’. It does not have to meet the test of being highly probable, see: General Comment on the implementation of Art 3, A/53/44, Annex IX, para 6. Affirmed in AS v Sweden, Communication No 149/1999, (2001) 8 International Human Rights Reports 970, para 4.4;Google Scholarand MRP v Switzerland, Communication No 122/1998, (2001) 8 International Human Rights Reports 967, para 6.4.Google Scholar

⁵⁸ Mutombo v Switzerland, Communication No 13/93, para 9.3., <http://wwwl.umn.edu/humanrts/cat/decisions/catD-Switzerland94.htm>, AM v Switzerland, Communication No 144/1999, (2002) 9 International Human Rights Reports 36, para 6.3 and GT v Switzerland, Communication No 137/1999, (2002) International Human Rights Reports 40, para 6.3.,+AM+v+Switzerland,+Communication+No+144/1999,+(2002)+9+International+Human+Rights+Reports+36,+para+6.3+and+GT+v+Switzerland,+Communication+No+137/1999,+(2002)+International+Human+Rights+Reports+40,+para+6.3.>Google Scholar

⁵⁹ Tahir Houssain Khan v Canada, Communication No 15/1994. para 12.3., <http://wwwl.umn.edu/humanrts/cat/decisions/catD-Canadal.htm>..>Google Scholar

⁶⁰ AS v Sweden, n 57, above, para 4.4;Google ScholarMRP v Switzerland, n 57, above, para 6.5.Google Scholar

⁶¹ The Committee itself has said that it ‘is neither a court nor a body with a quasi-judicial mandate, like the organs created under another international Human Rights instrument, the European Convention on Human Rights…. Still, the Committee applies the provisions of the Covenant and the Optional Protocol in a judicial spirit and performs functions similar to those of the [former] European Commission of Human Rights, in as much as the consideration of applications from individuals is concerned. Its decisions on the merits…are, in principle…non-binding recommendations’ (1990) 2 Selected Decisions HRC 1–2.Google Scholar

⁶² General Comment 7, 30 04 1982, website of the UN High Commissioner for Human Rights, <http://193.194.138.190/tbs/doc.nsf>. General Comment 20 of 10 03 1992, which is intended to reflect and further develop General Comment 7, confirms this approach: ‘4. The Covenant does not contain any definition of the concepts covered by Art 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctionsbetween the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.’.+General+Comment+20+of+10+03+1992,+which+is+intended+to+reflect+and+further+develop+General+Comment+7,+confirms+this+approach:+‘4.+The+Covenant+does+not+contain+any+definition+of+the+concepts+covered+by+Art+7,+nor+does+the+Committee+consider+it+necessary+to+draw+up+a+list+of+prohibited+acts+or+to+establish+sharp+distinctionsbetween+the+different+kinds+of+punishment+or+treatment;+the+distinctions+depend+on+the+nature,+purpose+and+severity+of+the+treatment+applied.’>Google Scholar

⁶³ Comm No 265/1987; 196 ILR 649, para 9.2.Google Scholar

⁶⁴ Ibid.

⁶⁵ Expulsion to a third country in which the person concerned faces being further returned to a country where he may face treatment contrary to Art 3 ECHR is also relevant in this respect, TI v United Kingdom, No 43844/98.Google Scholar

⁶⁶ In national jurisprudence, including in The Netherlands and Germany, a further elaboration of measures can be found which are considered to be inhuman or degrading, such as genital mutilation of women, forced sterilization or abortion as a result of the State's policy on birth control and sexual violence against women. Some of these human rights violations may be considered to be covered by the 1951 Geneva Convention.Google Scholar

⁶⁷ Harabi v The Netherlands, European Commission on Human Rights, No 10798/85, DR, 1986. 116.Google Scholar

⁶⁸ East African Asian Cases, European Commission on Human Rights, No 4403/70, YBECHR 13,928.Google Scholar

⁶⁹ In national case law more examples can be found, in particular on punishments under the Sharia, such as lashing or the amputation of parts of the body. Prison conditions in certain countries, where physical violence among the detainees is common and where there is a lack of provision of basic human needs, have also been considered inhuman or degrading.Google Scholar

⁷⁰ ReMusisi [1987] AC 514.Google Scholar

⁷¹ In the UK this protection includes a prohibition on return to third States that do not interpret the Refugees Convention as broadly as the UK, so that someone who would have been allowed to remain in the UK (for instance because of persecution by non-State actors) but could be removed to a third State to seek asylum there, could not be removed to that State if it would itself return the asylum seeker to their home State because of not recognizing persecution by non-State actors as sufficient to qualify for asylum: R v Secretary of State for the Home Department, ex parte Adan, R v Secretary of State for the Home Department, exparte Aitsegur [2001] 1 All ER 593.Google Scholar

⁷² See, for instance, D v UK, n 42, above, para 47: ‘ exercising their right to expel…aliens Contracting States must have regard to Art 3…which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Art 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question.’Google Scholar

⁷³ ‘The State party has an obligation, in accordance with Art 3 of the Convention, to refrain from forcibly returning the author to Iran or any other country where she runs a risk of being expelled or returned to Iran.’ Above n 57, para 9.Google Scholar

⁷⁴ Art 6(2).Google Scholar

⁷⁵ Art 2(1).Google Scholar

⁷⁶ Soering v United Kingdom, n 32, above. Interesting in this respect is the personal opinion of Judge De Meijer, stating that the court ruling does not reflect the current legal position in Western Europe, EUGRZ 1989, S. 314 (326).Google Scholar

⁷⁷ European Treaty Series, no 114, 28 04 1983.Google Scholar

⁷⁸ Above n l, a t 14.Google Scholar

⁷⁹ Ibid, at 14–15.

⁸⁰ Para 53(4) of the German Aliens Act for example is meant to incorporate all relevant provisions of the ECHR—and not only Art 3 —which may give rise to non-expulsion of an applicant to a country that may act in breach of these provisions, BT-Drucks. 11–6321, 75.Google Scholar

⁸¹ There is also evidence of the relevance of this provision in Dutch case law, concerning an applicant belonging to the black population in Mauritania, who faced the risk of being enslaved after return. Although slavery has been formally abolished several times in Mauritania, it still exists: Rb Zwolle, 11 03 1997, Nieuwsbrief Asiel en Vreemdelingenrecht 1997, No 4, S.336. In German case law, return to Laos of an applicant to face the risk of forced labour in a ‘resocialisation’ camp for alleged dissidents was considered under Art 4(2) ECHR, VG Ansbach, 2 01 1997, AZ: AN 12 K 95.33534. In this case one may assume that the alleged risk may be also relevant under the Geneva Convention.Google Scholar

⁸² Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (2000) (A/55/383) requires parties, inter alia, to consider permitting victims of trafficking to remain on their territory in cases where requiring the victim to return to the home State may give rise to a real threat of danger or harm to her (Art 7(1)).Google Scholar

⁸³ Treaty on European Union, Art 29;Google ScholarVienna Action Plan, 12 1998, paras 18 and 46;Google ScholarTampere European Council, 15–16 10 1999, Presidency Conclusion No 23;Google ScholarLaeken European Council, 14–15 12 2001, Conclusion No 42;Google ScholarCouncil Framework Decision of 19 07 2002 on combating trafficking in human beings (especially Preamble, para (3), OJ L 203;Google ScholarProposal for a comprehensive plan to combat illegal immigration and trafficking of human beings in the European Union, 14 06 2002, 2002/C 142/02. The Proposal (at para 11) specifically referred to the need to balance the right to decide whether to accord or refuse admission to third country nationals and the obligation to protect those genuinely in need of international protection. Para 11 then specified that this concerned ‘in particular, obligations for protection arising from the European Convention on Human Rights, particularly Art 3 thereof, and the Geneva Convention on Refugees, most notably Arts 33 and 31’. This might be said to support the notion that subsidiary protection should not be extended beyond those who are covered by these provisions. However, there is another and, it is suggested, better, way to look at it: Art 3 ECHR and Arts 31 and 33 of the Geneva Convention are picked out but they are not said to be exclusive. The term used is ‘in particular’, suggesting that other parts of those treaties may be relevant here. If that is the case, then surely the most immediately relevant rights would be those which are so fundamental that no derogation from them is permissible. The joint IOM/EU Brussels Declaration on Preventing and Combating Trafficking in Human Beings (09 2002) also acknowledges the human rights dimension. Finally, the Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities, published in Feb 2002 (COM (2002) 71 final), goes some way, especially at Art 4, to recognising the possible need of victims of trafficking for international protection. For detailed commentary see R Piotrowicz, ‘European Initiatives in the Protection of Victims of Trafficking who Give Evidence Against Their Traffickers’ 14 International Journal of Refugee Law (2002) 263–78.Google Scholar

⁸⁴ See, in particular, the joint IOM/EU Brussels Declaration on Preventing and Combating Trafficking in Human Beings (2002), ibid.

⁸⁵ Statute of the International Criminal Court, Arts 8(2)(b)(xxii) and 7(c) and (g), 37 International Legal Materials (1998) 999. See also Prosecutor v Kunarac, Kovac and Vukovic, Case No IT-9-23-T and IT-96-23/1-, Judgment of 22 02 2001, para 542, International Criminal Tribunal for the Former Yugoslavia.Google Scholar

⁸⁶ Above n 32, para 86.Google Scholar

⁸⁷ Ibid.

⁸⁸ Ibid, para 113. This is supported by the decision of the ECtHR in Drozd and Janousek v France and Spain (1992) 14 EHRR 745, at para 110. The Court stated that the ECHR does not require parties to impose their standards on other States; accordingly the possible breach of the individual's right by a third State did not necessarily give rise to protection obligations (we are not dealing here with non-derogable rights). However the parties are ‘obliged to refuse their cooperation if it emerges that the conviction is the result of a flagrant denial of justice’.

⁸⁹ (2001) 33 EHRR 10.Google Scholar

⁹⁰ Ibid, para 40.

⁹¹ Ibid, para 47.

⁹² Ibid, para 48.

⁹³ Above n 20.Google Scholar

⁹⁴ [2001] 1 WLR 1359.Google Scholar

⁹⁵ Ibid, para 21.

⁹⁶ [2002] UKIAT 00702.Google Scholar

⁹⁷ Ibid, para 107.

⁹⁸ Ibid, para 110.

⁹⁹ [2002] Immigration Appeals Reports 601.Google Scholar

¹⁰⁰ Ibid, para 30.

¹⁰¹ [2002] EWCA Civ 1856.Google Scholar

¹⁰² Ibid, para 23.

¹⁰³ Ibid, para 30.

¹⁰⁴ Ibid, para 40.

¹⁰⁵ Ibid, para 48.

¹⁰⁶ Ibid. This is presumably a reference to para 46 of that case, at which the ECtHR said that ‘treatment which does not reach the severity of Art 3 treatment may nonetheless breach Art 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity’, n 89, above.

¹⁰⁷ Ibid, para 64.

¹⁰⁸ Hailbronner argues strongly against the existence of such an obligation: ‘the assumption of an international legal obligation to grant protection to victims of war, civil war and general violence must still be considered as “wishful legal thinking” ’: Hailbronner, K, ‘Principles of International Law Regarding the Concept of Subsidiary Protection’, in Bouteillet-Paquet, n 6, above, 3 at 13.Google Scholar

¹⁰⁹ Council Directive 2001/55/EC, OJ L 212/12, adopted on 20 07 2001, n 21, above.Google Scholar

¹¹⁰ This does appear to be the view of Hailbronner, who nevertheless acknowledges that there may be circumstances under which ‘a person may be entitled to international protection either under an extended concept of inhuman or degrading treatment or under a customary obligation to grant humanitarian assistance against an imminent and concrete danger of gross violations of human rights’, Bouteillet-Paquet, n 6, above, 3 at 14.Google Scholar

¹¹¹ Art 15(c).Google Scholar

¹¹² This matter is discussed above in the text subsequent to n 23.Google Scholar

¹¹³ Seen 21, above.Google Scholar

¹¹⁴ Ibid, Art 3(1): ‘Temporary protection shall not prejudge recognition of refugee status under the Geneva Convention.’

¹¹⁵ Convention on the Specific Aspects of Refugee Problems in Africa 1969, 1000 UNTS 46, Art 1(2).Google Scholar

¹¹⁶ OAS/SeiX/V/II.66, doc 10, rev 1, Conclusion 111(3).Google Scholar

¹¹⁷ ICJ Reports 1986, 14 {Nicaragua v USA), para 220: ‘The Court considers that there is an obligation on the United States Government…to “respect” the Conventions and even “to ensure respect” for them “in all circumstances”…’Google Scholar

¹¹⁸ Art 2. 35 International Legal Materials 1192.Google Scholar

¹¹⁹ Above n 85.Google Scholar

¹²⁰ Art 5(1).Google Scholar

¹²¹ The well-known opposition to the ICC of certain countries is founded mostly on the jurisdiction regime, not the offences covered.Google Scholar

¹²² Observations, n 8, above, para 4.Google Scholar

¹²³ Ibid.

¹²⁴ Ibid, para 42.

¹²⁵ This is clearly stated in the following recital in the Preamble: ‘Whereas those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directiversquo;, Asile 77, 15068 of 13 12 2002.Google Scholar