The 1951 Refugee Convention (also known as the Convention Relating to the Status of Refugees) (hereinafter “Convention”) is the primary international legal document defining who is a refugee and the basis on which refugees can seek asylum.[1] The same document also details the individuals that do not qualify as refugees and therefore cannot seek asylum.
Chapter 1 Article 1 Part F of the Convention reads:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.”[2]
This provision was primarily intended to not allow war criminals or individuals that have committed serious human rights abuses from seeking asylum in other countries. This ineligibility determination for asylum-seekers can get tricky when dealing with particular government or military officers fleeing from countries that are actively dealing with a civil war or terrorist insurgency.[3]
Currently, there are thousands of Afghan parolees here in the U.S. applying for asylum.[4] A significant number of those individuals are former members of the Afghan National Army (ANA) and the National Directorate of Security (NDS), two institutions that have been criticized for their human rights abuses in the past.[5] Due to these particular organizations’ reputations and past controversial actions, former Afghan Military and NDS officers are naturally faced with increased scrutiny about the nature of their past occupations back in Afghanistan. This has led to asylum officers vetting them intensely during their interviews to see if those former officers were ever involved or aware of these human rights abuses happening in their places of employment.
This article will highlight frequent questions and areas of concern that have been posed by asylum officers when interviewing former Afghan NDS and Military officers.
Background: Why The Scrutiny?
Before going into what is being asked during the asylum interviews, it is important to understand why there is this increased scrutiny for former ANA and NDS officers. Both organizations have been criticized for their treatment of detainees. There has been clear evidence of torture and ill-treatment of detainees at the Afghan military[6] and NDS facilities[7]. Corruption is also rampant in the government and military. Probably the most egregious actions by the NDS and ANA are the high-number civilian casualties resulting from their counter-terrorism attacks.[8] There have also been reports of sexual abuse towards women and children.
What To Look Out For
When preparing for an asylum interview with a former Afghan NDS or ANA officer here are the main things to be asking the client:
- Nature of Work: It will be important to the asylum officer to first know the exact nature of the applicant’s work with the NDS or ANA. This will dictate how much scrutiny they have to place upon the applicant. Obviously, an applicant that was in a combatant role would be scrutinized more than an applicant who was tasked with technical or administrative duties.
- Weapons Training and Usage: The asylum officer will ask almost anyone if they have had any formal weapons training. For former ANA and NDS officers, they will ask exactly which types of weapons they have had training on. The officer will want to know if the applicant has ever had to use his weapons or had any violent confrontations. It is important to also know if the applicant ever took weapons back home from work or had a personal firearm in their own home. If they did own a personal firearm, the asylum officer will ask if it is registered and how they obtained such a weapon. The officer will also inquire to see if the applicant ever needed to use their personal firearm.
- Rankings and Leadership Level: The asylum officer will be interested in knowing an applicant’s rank within the NDS or Military. They will ask if the applicant directly supervised a team and what orders were they in charge of giving if any. Understanding where the applicant fell under the chain of command will be useful to you and the asylum officer.
- Promotions, Honors, Awards: If the applicant is a ranking or decorated officer, the asylum officer will inquire into how the applicant received such promotions or awards during their employment with the NDS or Military. Did they receive it due to a particular mission they completed? Did they pay anyone to receive their promotion? These are questions that an asylum officer could ask with respect to this portion.
- Handling of Detainees: The most prevalent questions asked by asylum officers to former Afghan NDS and Military officers are around their possible involvement in handling detainees. The asylum officer will be interested in knowing if the applicant was involved in the capture, transfer, or imprisonment of any enemy combatants. If the applicant was involved in the process at all, the asylum officer will undoubtedly ask if the applicant either participated in or knew about any abuses towards detainees.
- Awareness/Knowledge of Any Abuses: Generally, the asylum officer will ask if the applicant was personally involved or knew of any abuses taking place within the military and NDS facilities. If the applicant was aware of or had seen such abuses, the asylum officer will ask if they ever reported such incidences.
Above all, do not lie or hide anything from your asylum officer. It is best that you disclose all that you know rather than them finding out later through their own background check. Always remember, that the most valuable and powerful asset you have as an asylum-seeker is your credibility.
[1] United Nations (UN), Convention Relating To The Status of Refugees, July 28, 1951, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees Chapter 1 Article 1(A)
[2] Id. at Article 1(F)
[3] World Population Review, Countries Currently at War 2023, https://worldpopulationreview.com/country-rankings/countries-currently-at-war (2023)
[4] Voice of America, US Immigration Paths Available for Afghans and Ukrainians, January 1, 2023, https://www.voanews.com/a/us-immigration-paths-available-for-afghans-and-ukrainians/6869026.html
[5] UN Office of the High Commissioner for Human Rights (OHCHR), Torture of Detainees in Afghanistan Persists – UN Report – Afghanistan: Torture, April 24, 2017, https://www.ohchr.org/en/press-releases/2017/04/torture-detainees-afghanistan-persists-un-report
[6] UN Human Rights Council, Report of the United Nations High Commissioner
for Human Rights on the situation of human rights in Afghanistan and on the achievements of technical assistance in the field of human rights in 2014, January 8, 2015, https://www.ohchr.org/sites/default/files/HRBodies/HRC/RegularSessions/Session28/Documents/A_HRC_28_48_en.doc
[7] Open Society Foundations, Torture, Transfers, and Denial of Due Process: The Treatment of Conflict-Related Detainees in Afghanistan, March 17, 2012, https://www.opensocietyfoundations.org/publications/torture-transfers-and-denial-due-process-treatment-conflict-related-detainees-afghanistan#:~:text=The%20report%20found%20credible%20evidence,obtain%20confessions%20and%20other%20information.
[8] U.S. Department of State, 2021 Country Reports on Human Rights Practices: Afghanistan, (2022), https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/afghanistan/
