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6.4. Guidance with regard to Syria

Common analysis
Last updated: September 2020

Article 12(2)(a) and Article 17(1)(a) QD

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

Reported crimes such as murder, torture, and rape by the different actors could amount to crimes against humanity when committed as part of a widespread and systematic attack against the civilian population. Crimes in the context of past events, such as the Muslim Brotherhood uprising could also trigger the consideration of exclusion in relation to ‘crimes against humanity’.

Violations of international humanitarian law by different parties in the current and in past conflicts in Syria could amount to war crimes, such as the deliberate and systematic attacks on hospitals, the use of prohibited weapons and the deliberate indiscriminate attacks on civilians, etc.

Some acts in the current conflicts, such as extrajudicial killings, torture, forced disappearance, could amount to both a war crimes and crimes against humanity.

According to COI, especially (former) members of the SAA, the GoS intelligence- and security services and associated armed groups (e.g. NDF), as well as anti-government armed groups (e.g. FSA, ISIL, Jabhat al-Nusra/HTS, SNA), Kurdish political actors (PYD), and security forces (SDF, YPG, Asayish) can be implicated in acts that would qualify as war crimes and/or crimes against humanity.

In terms of qualifying the relevant acts as war crimes, the following classification of some of the conflicts taking place in Syria may be relevant:

■ non-international armed conflict between GoS and various anti-GoS armed groups, most notably HTS, SNA and ISIL;

■ international armed conflict between the US-led coalition against ISIL and GoS (due to its military intervention in Syria without the consent of the GoS);

■ international armed conflict between Syria and Turkey, as the GoS has not accepted Turkish presence on its territory; mlitary confrontations between Syrian and Turkish armed forces also took place during the conflict;

■ international armed conflict between Syria and Israel, which has been conducting airstrikes on Iranian targets in Syria without the consent of the GoS;

■ non-international armed conflict between Turkey and the YPG forces.

[Security 2020, 1.1, Annex II]

Article 12(2)(b) and Article 17(1)(b) QD

Criminal activity in Syria is widely reported, including kidnappings, assassinations, gun smuggling, drug smuggling, human trafficking and robberies. Such serious (non-political) crimes would trigger the application of Article 12(2)(b)/Article 17(1)(b) QD.

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.

Article 12(2)(c) and Article 17(1)(c) QD

(Former) membership in terrorist groups such as ISIL and Jabhat al-Nusra/HTS could trigger relevant considerations and require an examination of the applicant’s activities under Article 12(2)(c)/Article 17(1)(c) QD, in addition to the considerations under 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.