7. Exclusion

The ground crime against peace is not found to be of particular relevance in the cases of applicants from Afghanistan.

According to COI, Taliban, members of the ISKP and other armed groups, former ANDSF and militias affiliated with the former government, 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.

It can be noted that, in November 2017, the Prosecutor of the ICC requested authorisation from Pre-Trial Chamber III to initiate an investigation into alleged war crimes and crimes against humanity in relation to the situation in Afghanistan since 1 May 2003. The preliminary examination focused on crimes listed in the Rome Statute allegedly committed in the context of the armed conflict between pro-government forces and anti-government forces. It includes the crimes against humanity of murder and imprisonment or other severe deprivation of physical liberty, and the war crimes of murder, cruel treatment, outrages upon personal dignity, the passing of sentences and carrying out of executions without proper judicial authority, intentional attacks against civilians, civilian objects and humanitarian assistance missions, and treacherously killing or wounding of an enemy combatant. The preliminary examination also focused on the existence and genuineness of national proceedings in relation to these crimes. On 31 October 2022, Pre-Trial Chamber II of the International Criminal Court (ICC) authorised the Prosecution to resume investigation, following a previous request for deferral by the (former) government of Afghanistan30. On 23 January 2025, ICC Prosecutor announced that his Office filed two applications for warrants of arrest for the crime against humanity of persecution on gender grounds, under article 7(1)(h) of the Rome Statute, against the Supreme Leader of the Taliban, Haibatullah Akhundzada, and the Chief Justice of the “Islamic Emirate of Afghanistan”, Abdul Hakim Haqqani. The warrants of arrest were subsequently issued by Pre-Trial Chamber II on 8 July 2025.

In the context of Afghanistan, widespread criminality and breakdown in law and order make the ground of ‘serious (non-political) crime’ particularly relevant. Violence against women and children (for example, in relation to the practice of bacha bazi, in the context of child marriage, child recruitment, 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. Moreover, 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, trafficking in human beings, corruption, embezzlement and other economic crimes, illegal taxation, illegal extraction, trade or smuggling of minerals, gemstones, archaeological artefacts, etc.

Some serious (non-political) crimes could be linked to an armed conflict (e.g. if 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) QR. 

In relation to exclusion from refugee status, a crime could fall under the ground of a serious (non-political) crime 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 may also lead to exclusion.

In the context of Afghanistan, (former) membership in the Taliban or in armed groups such as the ISKP, could trigger relevant considerations and require an examination of the applicant’s activities under Article 12(2)(c)/Article 17(1)(c) QR in addition to the considerations under Article 12(2)(a)/Article 17(1)(a) QR or Article 12(2)(b)/Article 17(1)(b) QR.

Membership alone is not sufficient to substantiate exclusion, however, participation in the activities of a terrorist group, undertaken with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group, should be given significant weight in the exclusion assessment31. 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. Other engagement with a group, such as the aforementioned, could also trigger exclusion considerations. 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) QR.

In the examination of the application for international protection, the exclusion ground under Article 17(1)(d) QR (danger to the community or to national security) 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.