UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...

) War Crimes
War crimes are serious violations of the laws and customs of war which give rise to
criminal responsibility directly under international law, either because this is explicitly
provided for in the relevant international instruments, 753 or on the basis of customary
international law. Decision makers should bear in mind that only those acts which are
committed during times of armed conflict, and which are linked to the conflict (the socalled
“nexus” requirement) can constitute war crimes. In conducting an exclusion analysis,
it is necessary to consider whether the armed conflict is international or non-international in
nature, as different legal provisions are applicable to acts committed in either. War crimes
may be committed by civilians as well as military persons. Anyone – civilian or military –
who enjoys protection under the relevant provisions of international humanitarian law can
be the victim of a war crime. 754 In the Iraq context, the applicability of Article 1F(a) “war
crimes” may arise with regard to acts committed during the various periods of armed
conflict between 1979 and the present. 755
i. International Armed Conflict
Acts which constitute “war crimes” when committed in an international armed conflict are
defined in the grave breaches provisions of the Four Geneva Conventions of 1949 and
Additional Protocol (AP) I thereto of 1977. Article 8(2)(a) and (b) of the Statute of the
International Criminal Court is also relevant for the qualification of acts which take place in
an international armed conflict after July 1998. Acts committed during an international
armed conflict 756 which come within the definitions set out in the relevant provisions may
give rise to exclusion under Article 1F(a) as “war crimes”, provided they take place in the
context of, and were associated with, the armed conflict. If this link, or “nexus”, is not
present, the acts in question could not amount to “war crimes” under Article 1F(a). Rather,
(UNSC, Resolution 688 (1991), 5 April 1991, available in UNHCR’s Refworld at: http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain?docid=3b00f16b30).
753
See below under “International Armed Conflict” and “Non-International Armed Conflict”.
754
See UNHCR, Background Note on Exclusion, at paragraphs 30-32 and Annex B, see above footnote 741.
755
In this context, it is worth noting that members of the KDP and PUK armed forces have been involved in
a series of international and internal conflicts, sometimes fighting the Iraqi Central Government, sometimes
siding with it, including during the Iran-Iraq War (1980-1988), the Kurdish Civil War (1995-1998) as well as
the fighting against Kurdish Islamist groups after 1991, in particular the assault on Ansar Al-Islam in March
2003 with the help of US Forces. KDP/PUK armed forces also supported the US-led troops in defeating Iraqi
Government troops in Kirkuk and Mosul in March/April 2003. In relation to these conflicts, exclusion
considerations, in particular with relation to Article 1F(a) may come into play. It is noteworthy that the
Peshmerga also had women in its ranks. See, for example, HRW, Ansar al-Islam in Iraqi Kurdistan, see
above footnote 414; USDOS, Bureau of Public Affairs, Saddam’s Chemical Weapons Campaign: Halabja,
March 16, 1988, 13 March 2003, http://www.state.gov/documents/organization/18817.pdf.
756
Since 1979, Iraq went through various periods of international armed conflict, notably
- The Iraq-Iran War (1980-1988);
- The invasion and occupation of Kuwait in 1990 and subsequent Gulf War (1991); and
- The period from the US-led invasion in March 2003 until the handover of sovereignty to the Iraqi
Interim Government on 28 June 2004.
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