UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...

A plausible explanation regarding the applicant’s non-involvement in, or dissociation from,
any excludable acts, coupled with an absence of serious evidence to the contrary, should
remove the applicant from the scope of the exclusion clauses. 777
In the context of Iraq, a presumption of individual responsibility for excludable crimes may
arise as a result of the person’s continued and voluntary functioning in very senior positions
of the former government, the Ba’ath Party or the security or military apparatus since these
institutions were clearly engaged in activities that fall within the scope of Article 1F. In this
context, it is also important to note that the former Iraqi Government has faced international
condemnation, including from the Special Rapporteur of the Commission on Human Rights
on the situation of human rights in Iraq, 778 the Commission on Human Rights and the
General Assembly, for gross and systematic human rights abuses. Where the individual has
remained in very senior positions of the aforementioned institutions, exclusion may be
justified, unless he or she can rebut the presumption of knowledge of and personal
involvement in such abuses.
b) Grounds Negating Individual Responsibility
A complete exclusion analysis also requires an assessment of whether or not any
circumstances which would negate individual responsibility arise in the applicant’s case,
for example because the person concerned did not have the necessary mens rea, or because
there are circumstances which give rise to a valid defense, thus exonerating him or her from
individual responsibility for his or her acts. 779
In the Iraqi context, grounds for rejecting individual responsibility may also need to be
considered, in particular as to whether duress/coercion, self-defence or the defence of other
persons was at issue. The defence of duress would apply where the criminal acts resulted
from the applicant acting necessarily and reasonably to avoid a threat of imminent death or
serious bodily harm to him or herself or another person. 780 Acting on orders from superiors,
in the absence of the imminent harm necessary to establish duress, will normally not
provide a defence to criminal responsibility. 781
In examining defences to criminal responsibility, it should also be noted that persons
belonging to the military, security and intelligence services as well as certain professional
groups whose work was of special value to the Government (e.g. medical doctors, dentists,
retired professionals, government employees, university professors, journalists, members of
the media, authors and employees of the Information Ministry) were not allowed to leave
the country or required special authorization. Unlawful departures carried with them the
777
For further guidance on the criteria which must be met for a presumption of individual responsibility to
be justified, see: UNHCR, Background Note on Exclusion, at paragraphs 57-62, 105-106 and 110, see above
footnote 741.
778
See UNHCHR, Documents on Special Rapporteur of the Commission on Human Rights on the Situation
of Human Rights in Iraq, http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/Iraq+En?OpenDocument.
779
Ibidem, para. 64-75.
780
The relevant criteria are provided for in Article 31(1)(d) of the ICC Statute.
781
It should be noted, however, that Article 33 of the ICC Statute provides for a defence of superior orders,
in certain circumstances.
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