UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...

individual responsibility for crimes committed by persons under their effective command or
control. 775
As a general rule, mere membership in a particular group or organization is not sufficient to
establish individual responsibility for excludable acts. Therefore, for example, the fact that
an individual was part of the former regime or Ba’ath Party, does not in itself entail
individual liability for excludable acts. 776 Thus, for applicants who were associated with a
group or organization that reportedly has been involved in human rights abuses, it is
necessary to conduct a thorough assessment of their activities, role and responsibilities and
to determine whether there are serious reasons for considering that the persons’ conduct
and state of mind gives rise to individual responsibility for crimes within the scope of
Article 1F.
In cases where it is established that the applicant’s conduct had a significant effect on, and
thus amounts to a substantial contribution to, the commission of excludable acts, a careful
examination of the applicant’s place within the organizational hierarchy is necessary, as
holding certain positions could be indicative of the applicant’s knowledge of the crimes
perpetrated by subordinates or by other parts of the hierarchy. Relevant factors include the
nature of the applicant’s organization or institution and the extent to which the individual
was aware of, for example, the types of operations carried out by members of that
organization, or of the fate of the persons arrested under his or her supervision or as a result
of the gathering of intelligence information.
In certain cases, an applicant’s voluntary membership in a particularly violent group or
organization may justify a presumption of individual responsibility for crimes committed
by the group or organization, as it may be considered that the individual concerned
somehow contributed significantly to the commission of violent crimes. Caution must be
exercised when considering whether such a presumption exists. Factors to be taken into
account include the actual activities of such a group, its place and role in the society in
which it operates, its organizational structure and the individual’s position in it, the
individual’s ability to have a significant influence on its activities, whether the group is
cohesive or fragmented and whether and how the nature of the group’s violent conduct has
evolved over time. Even if a presumption of individual responsibility arises, this does not
mean that the person concerned is automatically excludable. The presumption is rebuttable:
the applicant must be informed of the evidence/allegations on the basis of which exclusion
may be decided and given the opportunity to show that he/she should not be excluded.
775 This would be the case if the applicant knew, or should have known, that his or her subordinates were
committing or about to commit such crimes, and failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission, or to submit the matter to the competent authorities
for investigation and punishment. See UNHCR, Background Note on Exclusion, at paragraph 56, see above
footnote 741.
776 It is also important to note that Ba’ath Party membership was widespread as it carried with it significant
benefits, including, for example, greater career opportunities, economic advantages, trips abroad, access to
better facilities, and access to university education. Moreover, journalists, officers, high ranking officials,
scientists, teachers, lecturers and university-staff were often compelled to join the Ba’ath Party even if they
did not share its ideology. Ba’ath party membership alone is therefore not conclusive as regards the
applicability of the exclusion clauses.
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