UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...
UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...
UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...
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) War Crimes<br />
War crimes are serious violations of the laws and customs of war which give rise to<br />
criminal responsibility directly under international law, either because this is explicitly<br />
provided for in the relevant international instruments, 753 or on the basis of customary<br />
international law. Decision makers should bear in mind that only those acts which are<br />
committed during times of armed conflict, and which are linked to the conflict (the socalled<br />
“nexus” requirement) can constitute war crimes. In conducting an exclusion analysis,<br />
it is necessary to consider whether the armed conflict is international or non-international in<br />
nature, as different legal provisions are applicable to acts committed in either. War crimes<br />
may be committed by civilians as well as military persons. Anyone – civilian or military –<br />
who enjoys protection under the relevant provisions of international humanitarian law can<br />
be the victim of a war crime. 754 In the Iraq context, the applicability of Article 1F(a) “war<br />
crimes” may arise with regard to acts committed during the various periods of armed<br />
conflict between 1979 and the present. 755<br />
i. International Armed Conflict<br />
Acts which constitute “war crimes” when committed in an international armed conflict are<br />
defined in the grave breaches provisions of the Four Geneva Conventions of 1949 and<br />
Additional Protocol (AP) I thereto of 1977. Article 8(2)(a) and (b) of the Statute of the<br />
International Criminal Court is also relevant for the qualification of acts which take place in<br />
an international armed conflict after July 1998. Acts committed during an international<br />
armed conflict 756 which come within the definitions set out in the relevant provisions may<br />
give rise to exclusion under Article 1F(a) as “war crimes”, provided they take place in the<br />
context of, and were associated with, the armed conflict. If this link, or “nexus”, is not<br />
present, the acts in question could not amount to “war crimes” under Article 1F(a). Rather,<br />
(UNSC, Resolution 688 (1991), 5 April 1991, available in UNHCR’s Refworld at: http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain?docid=3b00f16b30).<br />
753<br />
See below under “International Armed Conflict” and “Non-International Armed Conflict”.<br />
754<br />
See UNHCR, Background Note on Exclusion, at paragraphs 30-32 and Annex B, see above footnote 741.<br />
755<br />
In this context, it is worth noting that members of the KDP and PUK armed forces have been involved in<br />
a series of international and internal conflicts, sometimes fighting the Iraqi Central Government, sometimes<br />
siding with it, including during the Iran-Iraq War (1980-1988), the Kurdish Civil War (1995-1998) as well as<br />
the fighting against Kurdish Islamist groups after 1991, in particular the assault on Ansar Al-Islam in March<br />
2003 with the help of US Forces. KDP/PUK armed forces also supported the US-led troops in defeating Iraqi<br />
Government troops in Kirkuk and Mosul in March/April 2003. In relation to these conflicts, exclusion<br />
considerations, in particular with relation to Article 1F(a) may come into play. It is noteworthy that the<br />
Peshmerga also had women in its ranks. See, for example, HRW, Ansar al-Islam in Iraqi Kurdistan, see<br />
above footnote 414; USDOS, Bureau of Public Affairs, Saddam’s Chemical Weapons Campaign: Halabja,<br />
March 16, 1988, 13 March 2003, http://www.state.gov/documents/organization/18817.pdf.<br />
756<br />
Since 1979, Iraq went through various periods of international armed conflict, notably<br />
- The Iraq-Iran War (1980-1988);<br />
- The invasion and occupation of Kuwait in 1990 and subsequent Gulf War (1991); and<br />
- The period from the US-led invasion in March 2003 until the handover of sovereignty to the Iraqi<br />
Interim Government on 28 June 2004.<br />
143