Netherlands - ABRvS, 29 February 2012, 201106216/1/V1

Facts:

On 14 October 1999, the asylum seeker submitted an asylum application. The Minister rejected the asylum application on the basis of Article 1F of the Convention Relating to the Status of Refugees, as he carried out activities for the political and miliary movement Hizb-e Wahdat in Afghanistan between 1992 and 1999. The asylum seeker operated as a logistics commander of the military wing of Hizb-e Wahdat from 1993 to 1998 or 1999, in west Kabul until March 1995 and then in Kajab, in Maidan Wardak Province. He says that he did not commit any human rights violations.

Decision & reasoning:

The Minister's appeal stated that the Court had wrongly found that the Minister, in invoking Article 1F of the Convention Relating to the Status of Refugees against the alien, should have done more than refer to the official report by the Minister of Foreign Affairs dated 23 June 2000 concerning breaches of human rights by Hizb-e Wahdat in Afghanistan in the period 1992–1999 (hereinafter 'the official report'). The Court based its assessment on the judgment by the Court of Justice of the European Union of 9 November 2010, Federal Republic of Germany v. B. and D. According to the Court, it can be concluded based on this judgment that the Minister should have carried out an individual investigation of the specific facts of the case of the alien and that the burden of proof may not be shifted.

The Minister said that automatically invoking Article 1F against aliens who have operated as commanders in the military wing of Hizb-e Wahdat is consistent with the interpretation of Article 12(2) of the Qualification Directive provided in the judgment in the B. and D. case.

According to the Afghanistan policy set out in the 2000 Aliens Circular, it is assumed on the basis of the official report that former 'high-ranking officers' (commanders, generals, colonels, majors) in the military wing of Hizb-e Wahdat' applying for asylum in the Netherlands pass the 'personal and knowing participation' test, unless the alien in question can show that he represents a significant exception.

The Council of State cited paragraphs 94–97 of the judgment of the Court of Justice of the European Union in the B. and D. case and then quoted the passage from the official report about the breaches of human rights committed by Hizb-e Wahdat during the Afghan Civil War, which includes the following:

'Between 1992 and 1999, the troops of Hizb-e Wahdat acted so violently that it is impossible for commanders actively leading Hizb-e Wahdat militiamen not to have been responsible for this violent action. All military commanders within Hizb-e Wahdat were aware of the breaches of human rights and international humanitarian law committed by its fighters. To a greater or lesser extent, all military commanders within Hizb-e Wahdat, regardless of the size of their respective military units, are personally responsible for the following breaches, amongst others: extortion against innocent civilians, abduction of rich individuals, rape of women, random arrests of unarmed citizens, torture, and extrajudicial executions. Within Hizb-e Wahdat, there was such a culture of violence, including against the civilian population, that it cannot be credibly asserted that an individual could hold the rank of military commander without taking action that reflects this violent culture.'

The Council of State found that Paragraph 98 of the judgment in the B. and D. case implies that, based on the description of Hizb-e Wahdat in the official report as a violent organisation, a policy of presuming 'personal and knowing participation' on the part of aliens who have fulfilled specific roles within this organisation is consistent with Article 12(2) of the Qualification Directive. The Court therefore wrongly found the shifting of the burden of proof entailed by the policy pursued by the Minister to be by its nature in breach of this provision. This is correctly argued in the appeal, but this is insufficient for the appeal to be upheld, based on the following.

The Minister based his invocation of Article 1F against the alien on the latter operating as a logistics commander of Hizb-e Wahdat from the start of 1993 to the start of 1999. He therefore held a rank of command and thus fell, according to the Minister, within a category of individuals automatically presumed responsible for breaches of human rights. The alien said that he had committed no breaches of human rights whilst operating as a logistics commander and that he only carried out administrative activities and devoted himself to his education. According to the alien, he was responsible for the issue of weapons and ammunition.

The conclusion cannot be drawn based on the official report that anyone with the rank of commander, regardless of his actual duties, can be held responsible for breaches of human rights, as the official report describes the commanders responsible for breaches of human rights as officers commanding a militia. As the Minister failed in his decision to assert that the alien commanded a militia, the Court rightly found that the decision was prepared without due care and lacked sufficient grounds. The appeal by the Minister was therefore dismissed.

Outcome:

The Council of State dismissed the further appeal by the Minister as manifestly unfounded and upheld the judgment of the Court.