Armed Conflict as a Ground for Asylum: Legal Framework

Last updated: 5 October 2026

Photo: Emergency shelter for women & kids - Julien Harneis

Armed conflict asylum law operates at the intersection of refugee law and international humanitarian law. The 1951 Refugee Convention does not explicitly mention armed conflict — refugee status requires persecution on a Convention ground (race, religion, nationality, particular social group, political opinion). Furthermore, armed conflict often produces civilians fleeing generalised violence rather than individual targeting. As a result, several legal frameworks have developed to provide protection: EU subsidiary protection under Article 15(c) of the Qualification Directive (Elgafaji jurisprudence); UNHCR Guidelines on International Protection No. 12; the 1969 OAU Convention; the 1984 Cartagena Declaration. This article explains the legal framework for armed conflict-based asylum claims.[1]

The 1951 Convention and Conflict

The 1951 Refugee Convention does not contain a special category for armed conflict refugees. Article 1A(2) requires "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." Furthermore, civilians fleeing generalised conflict — without being personally targeted on Convention grounds — face a complex analytical question: does the conflict itself constitute persecution? UNHCR's Guidelines on International Protection No. 12 (2016) on "Claims for Refugee Status Related to Situations of Armed Conflict and Violence" clarify that conflict can produce refugee-status-relevant persecution. As a result, the Convention can apply where conflict involves targeting on Convention grounds. Therefore, the Convention is not displaced by conflict but applies within it.[2]

EU Subsidiary Protection: Article 15(c)

The EU Qualification Directive (2011/95/EU) Article 15(c) provides for subsidiary protection where there exists a "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." Furthermore, the CJEU in Elgafaji v Staatssecretaris (C-465/07, 2009) clarified that the level of indiscriminate violence required varies inversely with the degree of individual risk — a "sliding scale": (1) Higher level of general violence → less individual risk needed; (2) Lower general violence → more individualisation needed. As a result, the sliding scale provides flexible application. Therefore, Article 15(c) is a key tool for armed conflict claims in the EU.[3]

"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."Elgafaji v Staatssecretaris, C-465/07 (CJEU 2009)

Definition of Armed Conflict

The CJEU in Diakité v Commissaire général (C-285/12, 2014) addressed the definition of "armed conflict" under Article 15(c). The Court held that "armed conflict" in this context is independent of international humanitarian law (IHL) definitions — it is broader, applying where there is "armed confrontation between governmental forces of a State and one or more armed groups, or between two or more armed groups." Furthermore, the threshold does not require IHL's "non-international armed conflict" intensity. As a result, the Court interpreted "armed conflict" generously for protection purposes. Therefore, the Elgafaji/Diakité framework provides broad subsidiary protection access.[4]

OAU Convention 1969

The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (Article I(2)) provides a broader refugee definition: "every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence." Furthermore, this definition specifically captures armed conflict situations. As a result, African states applying the OAU Convention can grant refugee status to conflict victims without the Convention-grounds requirement. Therefore, the OAU framework provides broader protection in Africa.[5]

Cartagena Declaration 1984

The 1984 Cartagena Declaration on Refugees (Latin America) adopts a similarly expansive definition. Conclusion 3 recognises as refugees: "persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order." Furthermore, Cartagena has been incorporated into the domestic law of most Latin American states. As a result, Latin American applicants benefit from this broader framework. Therefore, conflict-based claims are easier to establish under Cartagena than under the 1951 Convention alone.[6]

ECHR Article 3

The ECHR Article 3 prohibition on inhuman or degrading treatment provides parallel protection. NA v UK (Application No. 25904/07, 2008) — Sri Lankan Tamils; ECHR addressed Article 3 in conflict contexts. Sufi and Elmi v UK (Applications 8319/07 and 11449/07, 2011) — Somali applicants; ECHR found Article 3 violation in returning to Mogadishu given the conflict and humanitarian conditions. Furthermore, ECHR jurisprudence has been incorporated into UK case law. As a result, ECHR Article 3 provides important supplementary protection. Therefore, UK and EU asylum representatives should engage with both subsidiary protection and Article 3 frameworks.[7]

Evidence in Conflict Claims

Effective armed conflict claims require: (1) Country expert report on conflict character, intensity, and patterns; (2) UN OCHA reports on violence and displacement; (3) ACLED conflict event data; (4) UN/HRC/OHCHR/Fact-Finding Mission reports; (5) HRW, Amnesty country reports; (6) UNHCR position papers and country guidance; (7) Specific case evidence: events the applicant experienced, family members affected, region of origin, displacement history. Furthermore, contemporary conflicts (Sudan, Ukraine, Myanmar, etc.) have rich documentation. As a result, well-evidenced armed conflict claims are robust. Therefore, country expert engagement is essential.[8]

The Individualisation Question

A recurring question in armed conflict claims is "individualisation" — whether the applicant must demonstrate specific personal risk beyond the general conflict. The Elgafaji sliding scale addresses this: at very high levels of indiscriminate violence, the applicant need not show any individual risk; at moderate levels, some individualisation is needed; at lower levels, more individualisation is required. Furthermore, individualisation factors include: profession (e.g., medical workers, journalists, government officials); ethnicity/religion; region of origin (some areas higher risk); gender; age. As a result, even where Convention grounds are not engaged, individual circumstances strengthen claims. Therefore, the personal narrative remains important.[9]

Conclusion: A Layered Framework

Armed conflict asylum law operates through multiple complementary frameworks: 1951 Convention, EU subsidiary protection, regional conventions (OAU, Cartagena), and human rights law (ECHR, ICCPR, CAT). Furthermore, each framework has its own threshold and rights package. As a result, armed conflict claimants typically advance multiple grounds. Therefore, comprehensive legal analysis is essential to maximise protection.