Finers Stephens Innocent LLP
REPORT AND LEGAL OPINION
IRAQI ASSAULT ON CAMP ASHRAF 28-30 July 2009
The PMOI in Ashraf, Iraq
The People’s Mojahedin Organisation of Iran (PMOI or MeK), hereby referred to as the PMOI), were founded in 1965 with the aim of overthrowing the dictatorial regime of the Shah. The organization played a major role in the nationwide protests that led to the overthrow of the Shah and emerged after the revolution as a major political party. Due to its opposition to Islamic fundamentalism, the PMOI soon found itself in a confrontation with the radical forces of Ayatollah Khomeini. This led to a campaign of violence by the Revolutionary Guards and Bassij militia against the PMOI and its sympathizers. The Iranian regime engaged in mass arbitrary arrest of hundreds of thousands of PMOI sympathizers. Between 1981 and 1988 it is estimated that tens of thousands of PMOI members were executed in Iranian prisons or forcibly disappeared.
At that time, the PMOI went into exile, mainly in France. In 1986, the French government concluded a deal with the Iranian regime, which led to the PMOI being pressured to leave France. The PMOI settled in Iraq and since then it has operated independently of the Iraqi government. In 1987, the National Liberation Army of Iran (“NLA”) was formed in Iraq with the stated goal of overthrowing the Iranian regime. Between 1986 and 1988, the NLA was involved in many military confrontations with the Revolutionary Guards and armed forces of the Iranian regime. The PMOI ended its military activities in the summer of 2001.
Before the US led invasion of Iraq in 2003 the PMOI declared that they would remain neutral and would stay in their camps. During and after the conduct of the hostilities between the members of the Coalition and the Iraqi army, the United States reassembled the PMOI in Camp Ashraf in Iraq and they were decommissioned. The people of Ashraf were then recognized as “protected persons” under the Fourth Geneva Convention and provided protection by the US led Coalition. Following the negotiation of the Status of Forces Agreement in 2008, the Iraqi government made assurances to the US that the people of Ashraf would continue to be protected, in accordance with the international obligations of the US and Iraq following the transfer of security to Iraq on 1 January 2009.
Attack on Ashraf
Despite these assurances and in breach of its obligations under international humanitarian law, Iraqi forces attacked Ashraf on 28-29 July 2009. During the assault, Iraqi forces killed 11 residents and wounded a further 450, 43 of them seriously. Of the 43 seriously wounded, 14 residents suffered gunshot wounds, 13 had been run over by military vehicles and a further 16 had suffered other injuries, including serious head injuries. Following the attacks, 36 Ashraf residents were forcibly removed from Ashraf and were detained in Iraqi prisons. The Iraqi government is threatening to return the people of Ashraf, political dissidents against the Iranian regime, back to Iran where they face certain persecution, torture and even execution.
The purpose of this legal opinion is to provide analysis of the violations of international law committed during the Iraqi assault on Ashraf and subsequent events in August. It draws upon the earlier opinions of eminent jurists such as The Rt. Hon. Lord Slynn of Hadley GBE QC, as well as Professors M Cherif Bassouni, Guy Goodwin-Gill, Eric David, Marco Sassoli, William Schabas, Jean-Yves de Cara and Vera Gowlland-Debbas regarding the status of the residents of Ashraf under international law.
Consideration is given to Iraq’s obligations to the people of Ashraf under international human rights law and international humanitarian law, as well as the obligations of the international community.
The factual portion of the report relies largely upon information provided by the National Council of Resistance of Iran (NCRI). The facts relied upon have been taken, wherever possible, from international reports by media agencies and international organisations, such as Amnesty International. Reports have also been received directly from the detainees in Khalis police station.
The opinion concludes that the Iraqi government has breached its obligations to the people of Ashraf under international human rights law and international humanitarian law. In particular, the Iraqi government and its armed forces have breached international human rights law and committed grave breaches of the Geneva Conventions by violating the right to life, freedom from torture and inhuman treatment, unlawful confinement and the failure to grant a fair trial. There is a serious risk that the people of Ashraf will be forcibly displaced in Iraq or removed to Iran, where they face certain persecution, torture and even execution. Should the Iraqi government implement its stated policy and agreement with Iran and return the people of Ashraf to Iran, Iraq will commit a grave breach of international humanitarian law, and arguably, a crime against humanity.
This opinion reminds the Government of Iraq and its officers of their international obligations and the potential consequences of further violations in terms of both state and individual responsibility.
The Government of Iraq must guarantee the rights of the people of Ashraf and abide by its obligations under the Geneva Conventions. The new Government of Iraq must respect these international obligations and the obligations it assumed to the United Nations pursuant to Security Council resolutions to ensure the protection of human rights in Iraq. The Government of Iraq has the opportunity to demonstrate to the world that it is a functioning democracy that protects human rights and, in particular, the rights of minorities and political dissidents. The suppression of political dissent within Iran in the past 6 months has been the subject of international outrage. The repression of the people of Ashraf, Iranian political dissidents living in exile outside of Iran, in Iraq, cannot be considered outside of this context. The international community must be cognisant of these connections and the implications of the violations identified in this report.
The US must make a request to Iraq to ensure the safety of the people of Ashraf in accordance with its obligations under international humanitarian law (Article 45, Fourth Geneva Convention). The US must, as the transferring power, ensure the safety of the people of Ashraf. The US should take temporary control of the safety and security of Ashraf until such time as a permanent UN presence is established in Ashraf. Given the special role of the US in MNF-I, the US must exert its influence to stop violations of international humanitarian law in Ashraf.
In highlighting the risk of future violations, this legal opinion calls upon the United Nations, under the auspices of the United Nations Assistance Mission for Iraq (UNAMI), together with the United Nations High Commission for Refugees (UNHCR) and the Office of the High Commissioner for Human Rights (OHCHR), to create a permanent presence in Ashraf in order to ensure the protection of the people of Ashraf in accordance with its mandate set down in UN Security Council Resolution 1830 (2008): to “promote the protection of humanrights...in Iraq”.
The international community of states must exert their individual influence, to the degree possible, to stop violations of international humanitarian law occurring in Ashraf, in accordance with international humanitarian law and the responsibility to protect. Given the risk of the commission of a crime against humanity and other grave breaches of international humanitarian and human rights law, the international community has an obligation pursuant to the emerging norm of the responsibility to protect to intervene to provide protection to the residents of Ashraf against imminent violations.
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