The United Nations Must Work to Prevent
the Illegal Constructive Refoulement of the People of Ashraf
Steven M. Schneebaum GREENBERG TRAURIG LLP Washington, D.C.
25 May 2010
The 3,400 men and women who live at Camp Ashraf, Iraq, are Iranians dedicated to the cause of restoring secular and democratic government to their homeland. They have lived at Ashraf since 1986. In 2001, the People’s Mojahedin Organization of Iran (“PMOI”), of which they are members, rejected violence. And in 2003, after the U.S. invasion, they voluntarily disarmed and accepted the protection of the Multi-National Force-Iraq (“the MNF-I”).
The U.S.-led MNF-I recognized the status of the People of Ashraf as “protected persons” under the Fourth Geneva Convention in July 2004. Five years later, the United States formally transferred the obligation to protect the People of Ashraf to Iraq, despite concerns expressed at the time by the residents and their lawyers about whether the Government of Iraq had the capability or the intent to honor that obligation.
Now, the Iraqi Government has announced that the PMOI are not welcome on its soil, and is undertaking a campaign to expel the group from the country. It has said that it will do so without violating the letter (while of course ignoring the spirit) of the international prohibition against refoulement – the forced repatriation of refugees to a place where they have a reasonable fear of persecution. Yet the Government’s campaign of harassment and intimidation, expressly designed to make the lives of the residents of Ashraf intolerable, has as its objective the very refoulement that international law forbids.
To this end, the Government in Baghdad has begun a de facto siege on the Camp, imposing a complete ban on family visits and access to lawyers, and restricting the entry of medicines, specialist doctors, and other essential needs. In addition, reports from inside Ashraf say that since
8 February 2010, the Iraqi authorities have allowed individuals posing as family members to assemble outside the Camp’s gates. These individuals have been using loudspeakers, provided to them by Iraqi security forces, to call for the destruction of Camp Ashraf, and to threaten residents in the Camp with death. Muwaffaq al-Rubaie, former National Security Advisor to Prime Minister Nouri al-Maliki, is on record as saying that the Iraqi Government want to make life unbearable for the People of Ashraf, so that they will leave Iraqi soil.
This analysis demonstrates that what the Iraqi Government is aiming at is the “constructive refoulement” of the People of Ashraf, which would be every bit as illegal under governing international law as would be the physical expulsion of those individuals to Iran, where they face the threat of persecution.
The Fourth Geneva Convention imposes requirements on the United States to intervene to prevent such an outcome, since it was the United States that transferred control of these internationally protected persons to another state. Yet the existence of U.S. obligations does not relieve the United Nations of its own duties toward the People of Ashraf. Their rights guaranteed under international human rights law and international humanitarian law must be respected. In this regard, the United Nations Assistance Mission for Iraq – UNAMI – is called upon to play this critical and life-saving role of confirming the legal status of the People of Ashraf, preventing their repatriation or forced relocation within Iraq, and lifting the restrictions placed upon them by the Iraqi Government in violation of international legal norms.
The critical role of UNAMI is not dependent, logically or legally, on the United States resolving to honor its own obligations in the premises. Nor is it to be taken for granted that the United States will not change its position, especially in light of legal arguments to the effect that its current stance is untenable. But the situation of the People of Ashraf is time-sensitive, and could become critical. There may not be time to await a change of Washington’s attitude, and irrespective of the views of the United States, the United Nations has its own mandate and its own mission, which encompass the protection of Ashraf residents whatever the United States decides to do or not to do.