GUIDANCE NOTE
Last update: January 2023

It can be noted that the ground ‘crime against peace’ is not found to be of particular relevance in the cases of applicants from Afghanistan.

According to COI, insurgent groups, former ANDSF and pro-government militias, as well as civilians in Afghanistan, can be implicated in acts that would qualify as war crimes or crimes against humanity. Reported violations of international humanitarian law by parties in the conflicts in Afghanistan could amount to war crimes.

In terms of qualifying the relevant acts as war crimes, the character of the armed conflicts 3  in Afghanistan should be established.

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• 3Note that the assessment under Article 12(2)(a) QD and Article 17(1)(a) QD refers to the relevant international instruments defining the terms. Therefore, the assessment of whether or not an armed conflict takes place, as well as its nature, is based on international humanitarian law and may differ from the assessment in the context of Article 15(c) QD as defined in the Diakité judgment of the CJEU.

GUIDANCE NOTE
Last update: January 2023

In the context of Afghanistan, widespread criminality and breakdown in law and order make the ground of ‘serious (non-political) crime’ particularly relevant. In addition to murder related to family and other private disputes, some examples of particularly relevant serious crimes may include drug trade and trafficking, trafficking in arms, human trafficking, corruption, embezzlement and other economic crimes, illegal taxation, illegal extraction, trade or smuggling of minerals, gemstones, archaeological artefacts, etc.

Violence against women and children (for example, in relation to bacha bazi, in the context of child marriage, honour killings, sexual violence or some forms of domestic violence, etc.), which is widespread in Afghanistan, could also potentially amount to a serious (non-political) crime.

Some serious (non-political) crimes could be linked to an armed conflict (e.g. if they are committed in order to finance the activities of armed groups) or could amount to fundamentally inhumane acts committed as a part of a systematic or widespread attack against a civilian population, in which case they should instead be examined under Article 12(2)(a)/Article 17(1)(a) QD.

In relation to exclusion from refugee status, a crime could fall under this ground if committed in Afghanistan or any third country (for example, while the applicant resided in Pakistan or Iran, or in countries of transit, etc.). In relation to subsidiary protection, serious crimes committed by Afghan applicants in the host country, would also lead to exclusion.

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GUIDANCE NOTE
Last update: January 2023

In the context of Afghanistan, (former) membership in the Taliban or in armed groups such as ISKP, Hezb-e Islami, could trigger relevant considerations, in addition to the considerations under Article 12(2)(a)/Article 17(1)(a) QD or Article 12(2)(b)/Article 17(1)(b) QD.

The application of exclusion should be based on an individual assessment of the specific facts in the context of the applicant’s activities within that organisation. The position of the applicant within the organisation would constitute a relevant consideration and a high-ranking position could justify a (rebuttable) presumption of individual responsibility. Nevertheless, it remains necessary to examine all relevant circumstances before an exclusion decision can be made.

Where the available information indicates possible involvement in crimes against peace, war crimes or crimes against humanity, the assessment would need to be made in light of the exclusion grounds under Article 12(2)(a)/Article 17(1)(a) QD.

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GUIDANCE NOTE
Last update: January 2023

In the examination of the application for international protection, the exclusion ground under Article 17(1)(d) QD (danger to the community or the security of the Member State) is only applicable to persons otherwise eligible for subsidiary protection.

Unlike the other exclusion grounds, the application of this provision is based on a forward-looking assessment of risk. Nevertheless, the examination takes into account the past and/or current activities of the applicant, such as association with certain groups considered to represent a danger to the security of the Member States or criminal activities of the applicant.

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