UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...

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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. 144
in mind when assessing crimes committed during the 1991 Shi’ite and Kurdish Uprisings. 761 Acts committed during later periods of non-international armed conflict in Iraq may give rise to exclusion under Article 1F(a) as “war crimes”, provided the above-mentioned requirement of the nexus with the armed conflict is met. This could be the case, in particular, for crimes committed during the Kurdish Civil War (1995–1998) 762 and the armed conflict between the ISF/MNF and armed insurgent groups following the handover of sovereignty to the Iraqi Interim Government on 28 June 2004. 763 Acts of violence between the Sunni and Shi’ite communities, which began with tit-for-tat killings in mid 2005 and escalated into brutal violence after the February 2006 Samarra bombing, should be assessed within the context of this armed conflict and may constitute war crimes, if the nexus requirement with the armed conflict is met and if the acts in question meet the definitions under the relevant legal provisions. 764 c) Crimes Against Humanity Crimes against humanity involve the fundamentally inhumane treatment of the population in the context of a widespread or systematic attack directed against it. Such crimes include murder, extermination, deportation or forcible transfer of population, imprisonment in violation of fundamental rules of international law, torture, rape, persecution on political, racial or religious grounds, and other inhumane acts (see also Article 7 of the ICC Statute). The act in question, however, only becomes a crime against humanity if it is part of a 761 For an overview of the kinds of violations of international humanitarian law committed in this context, see HRW, Endless Torment – The 1991 Uprising in Iraq and its Aftermath, June 1992, http://www.hrw.org/ reports/1992/Iraq926.htm. 762 On 31 August 1996, the Iraqi troops at the request and with the assistance of the KDP first shelled and then captured the city of Erbil Kurdish self-administrated zone. According to the Special Rapporteur of the Commission on Human Rights, large-scale human rights violations took place, including the excessive use of force, summary executions and arbitrary arrests; UNHCHR, Special Rapporteur of the Commission on Human Rights, Situation of human rights in Iraq, A/51/496, 15 October 1996, paragraph 95, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/e9032b67acacaeb68025670e0036ca50?Opendocu ment; see also UNHCHR, Special Rapporteur of the Commission on Human Rights, Situation of human rights in Iraq, A/51/496/Add.1, 8 November 1996, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/ 272b2c48b9147de58025671200517701?Opendocument. 763 As noted earlier in these Guidelines (see above footnote 14), the hostilities between the MNF/ISF and the armed insurgency following the hand-over of sovereignty on 28 June 2004 to the Iraqi Interim Government have been qualified by the ICRC as a non-international armed conflict. See: ICRC, Iraq post 28 June 2004: protecting persons deprived of freedom remains a priority, 5 August 2004, http://www.icrc.ch/Web/Eng/ siteeng0.nsf/iwpList322/89060107D77D7299C1256EE7005200E8. For a discussion of whether the conflict, or “conflicts”, could be considered as an “internationalized internal armed conflict”, see the sources cited in the above footnote 14. 764 See also the summary of a press briefing by the ICRC on 30 November 2006, in which the ICRC reminded all parties engaged in the violence that “regardless of the complexity of the issues at stake in the Iraqi conflict, it is unacceptable and contrary to the most basic principles of humanity and law to target persons not participating in the hostilities. State and non-State actors are equally bound by these rules. The ICRC calls again upon all parties to the conflict to respect the rules of international humanitarian law and to spare civilians and civilian property. In addition, it urges all those who can make use of their moral and political influence on the ground to call for respect of human life and dignity.” See ICRC, Iraq: civilians continue to pay the highest price in the conflict, Press Briefing, 30 November 2006, http://www.icrc.org/web/eng/siteeng0.nsf/html/iraq-briefing-301106. 145
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UNHCR’s ELIGIBILITY GUIDELINES FO
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iii) Current Situation ............
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a) Overall Situation ..............
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IOM International Organization for
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EXECUTIVE SUMMARY A. Current Situat
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and gatherings, Shi’ite religious
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Government Officials and Other Pers
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Iraqi Asylum-Seekers From Central a
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considered to be well-founded. To t
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affiliated with criminal groups. In
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expand on the legal and policy guid
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The general chaos following the inv
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countries. While a good part of the
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evenues. 41 An understanding of var
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Article 140 of the Constitution cal
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the Middle East in terms of women
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epealed the CPA’s decision to sus
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The Iraqi judiciary continues to be
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Several groups, including the Mujah
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Al-Sunna. In addition, members of t
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dominated Special Police Commando u
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military commander in Iraq, General
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IV. PARTICULAR GROUPS AT RISK A. Re
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to Osama Bin Laden, the Shi’ites
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Shi’ite militias on the other han
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underscored how explosive the confl
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of the latest security crack-down i
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Ninewa Plains in particular have be
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The overall climate results in non-
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efuge in the three Northern Governo
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an international court. 261 Several
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The alleged main perpetrators of at
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In the current climate of religious
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prohibition to kill, lie, commit ad
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Mandaeans as belonging to the “Pe
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have found refuge with the Sabaean-
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distributed to homes in Baghdad gav
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Estimates of the number of Yazidis
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Yazidis are furthermore organized i
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AP reported in October 2006 that
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apostasy and a threat to public ord
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KRG. Mr. Falak Al-Deen Kakai, senio
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“those Iraqis who had lost their
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government offices, 441 and changin
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security, of transferring hundreds
Page 93 and 94: 2. Roma (Kawliyah) 461 a) Introduct
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Page 99 and 100: CPA began to allow some vetted ex-B
Page 101 and 102: It has been documented that attacks
Page 103 and 104: een killed in Iraq and another 491
Page 105 and 106: Acts committed against employees or
Page 107 and 108: E. Government Officials and Other P
Page 109 and 110: 3. Persons Opposing the Ruling Part
Page 111 and 112: 3,250 professors had fled Iraq sinc
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Page 115 and 116: inside the media compound, refrain
Page 117 and 118: 3. Artists Iraqi artists, actors an
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Page 121 and 122: population at large and bring the c
Page 123 and 124: after their release. 660 UNAMI HRO
Page 125 and 126: International Covenant on Civil and
Page 127 and 128: evidence that over forty people had
Page 129 and 130: Both sexes have become victims of s
Page 131 and 132: V. ELIGIBILITY FOR INTERNATIONAL PR
Page 133 and 134: those countries, even only on a tem
Page 135 and 136: violence on a daily basis. Ordinary
Page 137 and 138: cause. 733 More than one Convention
Page 139 and 140: C. Exclusion From International Ref
Page 141 and 142: a) Before the Fall of the Former Re
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Page 147 and 148: groups (pre-2003) or insurgency or
Page 149 and 150: A plausible explanation regarding t
Page 151 and 152: D. Internal Flight or Relocation Al
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Page 155 and 156: with armed conflict between the MNF
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Page 159 and 160: It has been reported that new IDPs,
Page 161 and 162: Interior and Finance. While the Min
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Page 165 and 166: In order to access the three Northe
Page 167 and 168: Governorate of Sulaymaniyah Persons
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Page 171 and 172: In addition, non-Kurdish persons, p
Page 173 and 174: Conclusion Availability of an inter
Page 175 and 176: to flee Iraq have done so illegally
Page 177 and 178: explosives blew up. Two people were
Page 179 and 180: • On 2 July 2003, an armed assaul
Page 181 and 182: • 18 September 2006: Gunmen kille
Page 183 and 184: • 17 December 2003: An angry mob
Page 185 and 186: Annex IV: Attacks on Government Off
Page 187 and 188: • 2 May 2006: A suicide car bombe
Page 189 and 190: • 5 December 2006: Dr. Mohammed H
Page 191 and 192: Annex VI: Attacks on Doctors and Ot
Page 193 and 194: • 1 July - 31 August 2006: Accord
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Annex VIII: Attacks on Athletes and
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Annex IX: Attacks on Palestinian Re
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Palestinian family fled the hospita
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Annex X: Selected Bibliography Note
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IWPR, Baghdad Gays Fear for Their L
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Senanayake, Sumedha, Iraq: Ethnic T
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W Wilson, Scott, Iraqis Killing For
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