Introduction: Executive Summary
Article 21 of the Constitution of Iraq sets out the basic rules for extradition and the grant of political asylum. In particular, it forbids extradition of Iraqi nationals to third states, and establishes that the right to asylum will be governed by legislation. But it stipulates that no one will be eligible for asylum if that person has been “accused of” (official translation) or “charged with” (correct translation) having committed “terrorist crimes.”
Some 3,400 members of the People’s Mojahedin Organization of Iran (PMOI) reside at Camp Ashraf, Iraq. Since 2003, they have been protected by units of the Multinational Force- Iraq, and in 2004, they were officially declared to be “protected persons” under the Fourth Geneva Convention.
While the PMOI has been designated a “foreign terrorist organization” by the United States Department of the State, an equivalent designation under English law has now been set aside by the Courts, and the listing in the European Union has also been successfully challenged. There is no evidence, and there has been no substantiated accusation, that the PMOI or any member of the Organization has committed a terrorist act on Iraqi soil or anywhere else for that matter at least since 2001.
There is concern that the language of Article 21 of the Constitution, and especially Article 21(3), might be invoked to deny asylum to the members of the PMOI, and therefore to justify their involuntary expulsion from the country, and/or their repatriation to Iran. The history of that country sadly but unequivocally demonstrates that, should these people be forced to return, their lives would be in imminent danger.
This paper demonstrates that the use of Article 21(3) of the Iraqi Constitution to justify the denying the members of PMOI currently in Iraq political asylum or refugee status if and when they apply for it and their consequent repatriation or expulsion would be a violation of conventional and customary international law obligations that are binding and enforceable. In particular, provisions of the Refugee Convention and Protocol, and the Convention Against
Torture, absolutely forbid the refoulement of refugees or potential refugees to a place where they might be persecuted or tortured. Those provisions have become customary international law. In addition, the International Covenant on Civil and Political Rights also includes a prohibition of refoulement. These rules have become jus cogens, meaning that no derogation is ever acceptable, regardless of a state’s adherence or non-adherence to any specific treaty.
International rules, moreover, require that any decision to repatriate a refugee necessitate
A final and independent judicial determination that she or he has committed a serious crime in the country of refuge, and that his or her continued presence there poses an unacceptable threat to
The order and security of that country. None of these elements is present with respect to the
PMOI or the People of Ashraf.
For all of these reasons, as is more fully set out below, a reading of Article 21(3) of the Constitution of Iraq as justifying the denial of refugee status to, and expulsion of, the PMOI members from Iraq to Iran would be an egregious violation of fundamental norms of international law, which would and should draw the severe condemnation of the entire world community.
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