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Legal opinion on situation of Ashraf City - by David Kilgour

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David Kilgour is a human rights activist, author, former lawyer and Canadian politician
David Kilgour is a human rights activist, author, former lawyer and Canadian politician

Legal opinion on situation of Ashraf City

Posted on September 1, 2008

I. IHL gives rise to obligations on the U.S. to protect PMOI members in Ashraf,Iraq.

1. Since 2 August 1955, and 14 February 1956, respectively, both the U.S. and Iraq have been parties to all four 1949 Geneva Conventions (GCs). Neither state has, however, adopted the Second Additional Protocol of 1977. As noted in Common Article 2: "The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." The commencement of armed conflict between the U.S. and Iraq in 2003 meant that the GCs would apply to both Iraq and the U.S.

2. As an Occupying Power, the U.S. is also bound by Article 43 of the 1907 Hague Convention[1], which is regarded as customary law. [2]

3. Members of the PMOI residing at Camp Ashraf in 2003 come within the definition of 'protected persons' under the Fourth Geneva Convention, because since the start of the conflict between the U.S. and Iraq in 2003 all refugees at Ashraf Camp, as well as the Iraqi population in general, have come under the control of American forces. For this reason, they were 'protected persons' pursuant to Article 4, which considers: "Persons protected by the Convention are those who, at a given moment and in any way whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." On 2 July 2004, the Government of the United States formally announced that the members of the PMOI in Iraq are 'protected persons' under the Fourth Geneva Convention. Since then, nothing has changed with respect to the applicability of the Fourth Geneva Convention to the PMOI in Iraq...

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