UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...

they would need to be assessed under Article 1F(b) or, depending on the circumstances, as
crimes against humanity under Article 1F(a). 757
ii. Non-International Armed Conflict
The legal criteria for determining what acts or methods of warfare are prohibited in a noninternational
armed conflict are found in Article 3 common to the Four Geneva
Conventions of 1949, AP II thereto of 1977, 758 and Article 8(2)(c) and (e) of the Statute of
the International Criminal Court, which is relevant for the qualification of acts which take
place after July 1998. 759
Originally, “war crimes” were considered only in international armed conflicts. Breaches of
common Article 3 and AP II did not give rise to criminal responsibility at the international
level and, as a consequence, such breaches could not be considered “war crimes”.
However, since the mid-1990s, it has become generally accepted that serious violations of
international humanitarian law in a non-international armed conflict may give rise to
individual criminal responsibility under international law, and there is now general
recognition that war crimes may also be committed in the context of non-international
armed conflicts. 760
For the purposes of an exclusion analysis, this means that violations of common Article 3
and AP II which took place before the mid-1990 could not give rise to exclusion on the
basis of Article 1F(a) as “war crimes”. Conduct in breach of these provisions could,
however, come within the scope of Article 1F(b) as serious non-political crimes or Article
1F(a) as crimes against humanity. In the Iraq context, these considerations should be borne
757 See “Crimes Against Humanity”.
758 Iraq is not a party to the AP II of 1977. However, acts prohibited under Article 4 and 13 of AP II are
considered to form part of customary international law.
759 It is worth noting that from July 1998 onward, conscripting or enlisting children under the age of fifteen
into armed forces or groups or using them to participate actively in hostilities is a war crime and would as
such fall within the scope of Article 1F(a). See Article 8(2)(e)(vii) of the Rome Statute of the International
Criminal Court, available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-
EN.pdf (further: “ICC Statute”). See also: Preparatory Commission for the International Criminal Court,
Report of the Preparatory Commission for the Internationa Criminal Court. Addendum. Part II, Finalized
draft text of the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2, 2 November 2000, p. 37 and 46,
available in UNHCR’s Refworld at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=
46a5fd2e2.
760 As confirmed by the ICTY, criminal responsibility arises under customary international law for serious
violations of Article 3 common to the Four Geneva Conventions of 1949, as supplemented by other general
principles and rules on the protection of victims of internal armed conflict, and for breaching certain
fundamental principles and rules regarding means and methods of combat in such conflicts. See ICTY,
Prosecutor v. Dusko Tadic aka “Dule”, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, para. 134, http://www.un.org/icty/tadic/appeal/decision-e/51002.htm. Moreover,
violations of AP II are explicitly contained as war crimes in Article 4 of the ICTR Statute, http://69.94.11.53/
ENGLISH/basicdocs/statute.html.
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