By Ad Melkert, Special Representative of the UN Secretary General for Iraq -2009-2011
Tahar Boumedra, Chief of UNAMI Human Rights Office and Representative of the UN High Commissioner for Human Rights in Iraq, 2009-2012
I. Introduction: A case of neglect?
A road traffic accident on 16 March 2015 involving a black-water tanker belonging to Camp Liberty residents near Baghdad International Airport, and an Iraqi HUMVEE has put the spotlight on the way UNHCR is handling the applications for refugee status by the Camp’s residents.
Witnesses, including Iraqi members of the police force escorting the vehicle, testified that Mr. Safar Zakery, the driver of the black-water tanker, was on his way back to the Camp after having discharged the black-water when he was struck by a HUMVEE belonging to the Iraqi Army which was running on the wrong side of the road at high speed. Mr. Zakery was arrested and taken to Al-Ameria police station. He was detained pending the investigation of the circumstances of the accident. When the investigative judge realized that the accident did not come under the ambit of article 23 of the Iraqi traffic law as a ground for detention (no corporal damage ensued), he extended the detention order to look into Mr. Zakery’s residency status in Iraq, stating that he has no ID card or certificate to determine his status in Iraq. Meanwhile the septic tanker, a property of the residents and a valuable tool for maintaining hygiene in the Camp, was seized and immobilized at the police station for an indefinite period.
After 26 days of detention, Mr. Zakery was returned to Camp Liberty following intervention by the UN Refugee Agency UNHCR through a letter dated 23 March 2015 to Al-Karkh Investigative Court which certified that “Mr Safar Zakery is a person of concern to the UNHCR”.
Whilst on the surface this seemed to help resolve this particular incident in reality the formulation reveals that the UNHCR allows for ambiguity in its position vis-à-vis the rights of the refugees instead of following the rules and practice of its mandate. For why was Mr. Zakery not provided with an ID card to clarify his status since he has been recognized as a person of concern to the UNHCR? We would have expected this as it is known that all residents at Liberty have been registered and interviewed for official Refugee Status Determination and no one has been rejected. As a consequence, the assumption applies that all have been adjudicated and recognized as refugees or in need of international protection. However the UNHCR has so far failed to formally notify the individuals concerned and to supply them with the corresponding ID cards within a reasonable time.
II. The UNHCR Obligations to Issue Certificates or Refugee Cards
Many experiences, including our own, in working with the Government of Iraq on the status and future of the residents of Camp Liberty – previously in Camp Ashraf – give rise to the belief that the cause of ambiguity is the tension between the objectives of the Government of Iraq (to expel, under the Iranian Government’s pressure, the Mujahedin e-Khalq (MeK) from Iraq by all means) and the mandate of UNHCR (to protect Camp Liberty residents according to established procedures). Given that potential resettlement countries insist on offering places for resettlement only to those recognized by the UNHCR as refugees, Camp Liberty residents are put in a critical situation.
The UNHCR Hand Book for Registration considers the identity documents as vital instruments for protection. They permit persons of concern to show who they are and what status they have under international protection norms. An individual without an ID has no legal persona. He/she cannot claim any rights as a human being. He/she becomes a thing exposed to all kind of abuses and maltreatment. His/her fundamental rights such as freedom of movement, education, health, work, freedom from harassment, freedom from arbitrary arrest and detention, protection against refoulement, cannot be enjoyed without an ID. The Hand book expressly states that “UNHCR office should make every effort to ensure that persons of concern are provided with identity documents that are recognized and respected by the local authorities.”
The residents of Camp Liberty have been officially recognized by UNHCR as “asylum seekers” and people of concern and are thus entitled to UNHCR documentation to prove their identity. Any delay in delivering such documentation exposes them to abuses and help their persecutors to enjoy impunity.
III. The US and the legal status of MeK members in Iraq
The MeK history goes back to the 60s of the last century as a student movement in Iran, first, opposing the Shah and soon after he was toppled in 1979, as opponents of the Islamic regime under Ayatollah Khomeini. This led to a brutal purge of members of the MeK, with some 120,000 killed and thousands in exile. Many of them settled in Iraq and continued their struggle to bring about a regime change.
The American led coalition war of 2003 and the occupation of Iraq brought about fundamental change in the balance of power in Iraq and the wider region. The MeK members were confined to Camp Ashraf and were subsequently considered for the protected persons status under the 4th Geneva Convention by the Multi-National Forces in Iraq (MNF-I). On the basis of a US led investigation and individual interview process, the US Secretary of Defense granted all Ashraf residents the protected persons’ status in June 2004.
In July 2004, Major General Geoffrey D. Miller, US Army Deputy Commanding General, wrote to Ashraf residents stating “I am writing to congratulate each individual living in Camp Ashraf on their recognition as protected persons under the Fourth Geneva Convention. This determination will assist in expediting the efforts of international organizations in your disposition as individuals in accordance with applicable international law”.
On October 7, 2005, Major General William H. Brandenburg, Commanding US Army in Iraq wrote to Camp Ashraf residents:
“As we approach the first anniversary of this legal determination, I would like to take this opportunity to review important rights and protections under international law that this determination provides to the residents of Camp Ashraf.
i. The residents of Camp Ashraf have the right to protection from danger, violence, coercion, and intimidation, and to special protection for the dignity and rights of women;
ii. They have the right in contacting their families outside Camp Ashraf, and their families have the right to help in contacting them;
iii. They have the right to seek assistance from the International Committee of the Red Cross, the United Nations High Commissioner for Refugees, and from other international humanitarian organizations;
iv. They have the right to freedom of thought, religion, expression, intra-community association, and political opinion; they also have the right to freedom from persecution and forced unpaid labor;
v. They have the right to food, health care, and a quality of living which meets the standards of local residents of the territory in which they are protected; …
vi. They have the right to fair treatment under the law, in accordance with Iraqi domestic law and international standards; (…)”
Major General Brandenburg’s letter further underlined that “under the terms of the Fourth Geneva Convention, these rights cannot be renounced, either by the residents or by the coalition forces”.
IV. UNHCR early involvement
In the same year 2004, the MeK informed its members that those who for personal reasons wish to depart were encouraged to do so. The coalition built a temporary internment and protection facility (TIPF) near Camp Ashraf for MeK members who decided to leave and called on the UNHCR to consider them for refugee status in order to facilitate their resettlement elsewhere. On 20 February 2006, the UNHCR started the RSD process and in a period of two months (on 5 May 2006) one hundred and sixty four (164) individuals were granted refugee status. By 16 October 2007 all the 204 applicants at the TIPF were recognized as refugees and were delivered the necessary papers to identify them as such. Interviews were expeditiously conducted on 20 February 2006 via Video-Tele-Conference (VTC) between Geneva and TIPF near Ashraf. The results of the RSD of 164 applicants were handed in person to a USF-I officer in Geneva.
In another context, the UNHCR eligibility guidelines 2007 for assessing the international protection needs of Iraqi asylum-seekers recommended that “In view of the ongoing violence, conflict and human rights violations in Central and Southern Iraq, UNHCR considers Iraqi asylum-seekers from these areas to be in need of international protection. In those countries where the numbers of Iraqis are such that individual refugee status determination is not feasible, UNHCR encourages the adoption of a prima facie approach” .
However, in the case of Ashraf residents, UNHCR did not adopt the prima facie approach, whilst knowing that they were individually cleared by the highest US military authority in Iraq which granted them the “protected persons” status under the 4th Geneva Convention, after ascertaining that the exclusion criteria under Article 1F of the 1951 Geneva Convention did not apply. This finding provides the MeK members with support of ‘la force de la chose jugée’, res judicata, and should have given ground for the UNHCR to extend to them the prima facie approach.
V. UNHCR inconsistencies and changing policy
In the period between 2007 and mid 2011 the UNHCR stayed away from visiting Camp Ashraf and dealt only with residents when they indicated their intention to “defect”. Consistently with this policy, UNHCR continued to visit two hotels in Baghdad, Hotel al-Zohoor and Hotel al-Muhajer, where those who departed from Camp Ashraf, i.e. “defected” are usually accommodated and cared for by the UNHCR.
The definition of a “defector” in the English dictionary is “a person who gives up allegiance to one (entity) in exchange for allegiance to another in a way which is considered illegitimate by the first”. It is also often pejoratively used to qualify anyone who switches loyalty to another religion, political party, or other rival faction. That means MeK members were requested to switch their loyalty, otherwise the UNHCR would not entertain their applications to be considered for refugee status. This practice was inconsistent with the International Covenant on Civil and Political Rights (ICCPR) related to the right of association (Articles 3 and 22 of the ICCPR). The 1951 Geneva Convention does not prescribe defection from an opposition group as a condition for being considered for refugee status. Therefore UNHCR’s position was not in accordance with its mandate to provide international protection to refugees as defined in international law.
With the coming into force of the Status of Forces Agreement (SOFA) between the Governments of Iraq and the US heading towards full withdrawal of US Forces in the course of 2011 UNHCR’s reticence to offer protective status to Camp Ashraf residents added to the stalemate that had turned into a humanitarian crisis after Iraqi forces with Iranian support raided the Camp in July 2009 and April 2011, leaving several tens of victims in extra-judicial killings. UNAMI had documented and consistently reported those attacks and other persistent forms of intimidations, such as exposure to 300 loudspeakers positioned around the Camp.
After the events of 8 April 2011, with the US Forces as bystanders and the threat of further provocation in the air, it was urgent to break the impasse. In our capacities as Special Representative of the Secretary General in Iraq and his Human Rights Senior Adviser we mobilized the diplomatic community in Baghdad to explore possibilities for relocation of residents abroad; undertook to convince UNHCR in Geneva to put a proper RSD process on the rails on the basis of international law standards and practice and consider about 3200 applications from Ashraf residents for refugee status regardless of political pressure; and appealed to the Iraqi Government to cooperate with relocation outside the country and to respect fundamental humanitarian principles as long as residents would still be in Iraq.
In response to the concerns and building pressure UNHCR abandoned the condition that Ashraf residents “defect” before coming under its concern. On 26 August 2011, it issued a press release stating that “UNHCR is however committed to considering refugee claims on an individual basis, provided that individuals express their wish to apply for refugee status out of a free and informed choice”. The UNHCR statement went on saying “There is no requirement for individuals to disassociate themselves from the PMOI/MeK in order to apply for or to be granted refugee status” . It however maintained its position against the conferral of refugee status to members of the PMOI/MeK on a prima facie basis because it claimed some of them were former combatants. This position ignores the fact that generally former combatants are fully entitled to apply for refugee status, and may only be excluded if they come within the terms of Article 1F of the 1951 Convention.
Yet efforts by the Human Rights section under UNAMI to follow-up on specific allegations did not substantiate these beyond the level of hearsay. No credible evidence was found that would have invoked Article 1F of the 1951 Geneva Convention, leaving aside the reality of considerable flaws in the functioning and independence of the Judiciary under the Al-Maliki administration.
VI. UNHCR later engagement
On 13 September 2011 the UNHCR announced: “UNHCR has recently received a significant number of individual requests for the determination of refugee status from residents in Camp New Iraq (formerly Camp Ashraf). In the absence of a national system of adjudication in Iraq [Iraq has not subscribed to the 1951 Convention on refugees], UNHCR is putting in place a process to consider these requests on an individual basis in a fair and efficient procedure” and added “Camp residents who have submitted requests are accordingly now formally asylum seekers under international law whose claims require adjudication. International law requires that they must be able to benefit from basic protection of their security and well-being. This includes protection against any expulsion or return to the frontiers of territories where their lives or freedom would be threatened (the non-refoulement principle).”
Residents were explained that the RSD process requires that each resident will have to send an individual application form; from the time UNHCR receives and registers the application, the applicant is declared as asylum seeker and is given a certificate to that effect. Individual identification, registration, conciliation and interviews will have to take place on a neutral and safe ground after relocation from Ashraf to a Temporary Transit Location (Camp Liberty) near Baghdad International Airport. The decision to abandon the place where they lived for more than 25 years was a hard one on the part of the MeK members but they accepted to relocate in the hope to be given a status that will help them to safely exit Iraq and settle elsewhere.
On 30 September 2011 UNHCR added that “Being an asylum-seeker brings with it certain protections under international refugee law. Most importantly, it engages the host State’s obligation not to expel or return the person to a territory where their life or freedom would be threatened. Additionally, the host State is responsible for ensuring the safety of asylum-seekers, and for treating them with dignity and in accordance with basic human rights standards. Under international law, the responsibility to ensure that asylum-seekers on their territory enjoy these standards of treatment lies with the host Government. It also insisted that individual interviews for those seeking asylum would need to take place confidentially, in a safe and neutral location and emphasized that each individual case will be judged on its merits and in accordance with international law.
This statement came after the decision of the government of Iraq to forcibly close Camp Ashraf. A decision that prompted UNAMI to engage with the Iraqi Prime Minister’s Office to facilitate a peaceful relocation of Ashraf residents to Camp Liberty, where the RSD process would take place. Thus, on 25 December 2011 UNAMI and the Government of Iraq signed a memorandum of understanding which set the relocation framework and the required conditions for the UNHCR to conduct verification and refugee status determination of each and every resident. However, in light of today’s stalemate and ongoing suffering, it should be pointed out that the MoU and the transfer of the residents to Camp Liberty had been conceived and implemented in a rush and lacked transparency. UNAMI under the leadership of the then newly arrived SRSG Martin Kobler appeared to focus more on relocating the residents within Iraq than on finding a lasting solution that requires providing a safe exit of the residents from Iraq.
Still, in February 2012 the transfer operation started with cooperation of the residents in meeting the conditions for the RSD process as required by the UNHCR. UNHCR promised that once it had mobilized teams on the ground, and had put in place the necessary soft and hard ware capabilities, the RSD process would take maximum 6 months. In Update No. 2 issued on March 1, 2012, the UNHCR stated “On 19 February 2012, UNHCR commenced the adjudication process of the transferred residents. UNHCR has mobilized teams on the ground, and has put in place the necessary software and hardware support capabilities. Individual interviews are taking place in a safe, neutral and confidential location”. This statement confirms that the UNHCR had committed to consider the residents’ applications for refugee status; that the residents had individually applied to be considered for the refugee status; that it had actually received those applications and that all applicants are now considered asylum-seekers protected by applicable international law.
Soon after the relocation however, the residents realized that they were placed in a detention centre like Camp. The place was neither a neutral ground nor safe and secure. The camp was exposed to missile attacks and a number of residents (asylum seekers protected by international law) were killed. They also found out that Camp Liberty was to be managed by security officers who were in charge of the three years siege against Ashraf and who were suspected to have taken part in the previous armed attacks against the residents.
VII. UNHCR ambiguity
Although the residents, now at the Temporary Transit Location (Camp Liberty), felt misled and bullied to accept the relocation (knowing that a relocation within Iraq will not solve the problem, but will simply move it from one location to another), and despite the continued attacks against them, they fulfilled all UNHCR requirements for the RSD process. The UNHCR had even congratulated them for having fully cooperated during all the RSD successive steps of relocation, registration, identification enrolment and attending interviews. The last step in the process is adjudication and that is the responsibility of the specialized units of the UNHCR. Adjudication means to reach a decision on a given individual case. Either to grant the refugee status and to formally notify the person concerned, give him or her a refugee ID and inform him or her of the issuing rights and obligations; or reject the application in which case the applicant is formally notified and given the right to appeal.
By the end of the year 2012, alert observers noticed some subtle change in the UNHCR’s attitude. It started referring to a vague process of “international protection” and to the “persons of concern” while avoiding any pronouncements concerning the “refugee status determination” process it had committed to undertake “fairly fully and speedily”. Three years and half had passed since Ashraf residents applied to be considered for the refugee status under the UNHCR mandate. As of May 2015, not a single resident had duly received his UNHCR ID papers be it an asylum-seekers certificate or a refugee ID card. This stunning reality is inconsistent with the UNHCR Handbook and guidelines.
Our observations and concerns are solely motivated by humanitarian compassion. We call on the international community to unlock the stalemate that keeps some three thousand harmless people hostage and prone to life threatening intimidation.
There is genuine fear that the residents in Camp Liberty might, upon return to Iran, face torture and possible execution. This reality entitles them to be granted refugee status, especially now that their organization (MeK/PMOI) has been cleared and removed from lists of foreign terrorist orgnisations by European and American Courts of Justice. It is the UNHCR’s duty to expedite fulfilment of all process requirements, including the important provision of documentation – thus putting an end to the limbo in which the residents are left vegetating. Clearly there is a pressing need for countries to come forward and provide refuge for the residents. Those governments that are not in a position to do so could at least contribute to the necessary funds for relocation to countries that have shown interest, in response to the call by UN Secretary-General Ban Ki-moon. However for now the residents are caught in a catch-22 situation, as potential settlement countries will only offer asylum to individuals recognized by the UNHCR as refugees whilst UNHCR seems to keep on waiting for settlement offers before proceeding.
UNHCR promised a process and started it. It must finish it regardless of whether settlement countries offer places or not. The residents of Camp Liberty have already been officially recognized as “people of concern” and are thus entitled to have appropriate identity documents. The purpose of the refugee status is to protect persecuted people. Had Mr. Zakery been carrying a UNHCR refugee ID or an asylum-seekers’ certificate, the attitude of the investigative judge would have been different. Behind Mr. Zakery are his fellow men and women residents living in constant limbo and fear. Against the backdrop of the enormous turbulence and challenges in the Middle East a humanitarian gesture across parties to end this human tragedy would offer some hope that even the most entangled of problems can be resolved.
1- The opinions expressed in this paper reflect the writers’ personal views
* Former UN Special Representative of the Secretary-General for Iraq and Head of the United Nations Assistance Mission in Iraq (UNAMI)
** Former Chief of UNAMI Human Rights Office and Representative of the UN High Commissioner for Human Rights in Iraq
2- UNHCR Handbook for Registration, Chapter 19, Part 2: How To – Registration Interview, page 175. http://www.unhcr.org/4a278ea1d.html
3- UNHCR statement of 13 September 2011
4- UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers, August 2007, page 15. http://www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=46dec4da2&query=Eligibility%20guidelines
5- Article 1F reads as follows: 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.
7- A collection of European and American courts decisions clearing the MeK of terrorism charges is to be found in The United Nations and Human Rights in Iraq: The Untold Story of Camp Ashraf”, Tahar Boumedra, New Generation Publishing, 2013, pages 242-253. See also Ordonnance de non-lieu issued on 11 May 2011 by the Investigative Judge of the (Tribunal de grande instance de Paris au pôle antiterrorisme). This Ordonnance cleared the NCRI-MeK of any terrorist activities or any violations of the international law of armed conflicts or international humanitarian law. See also l’Ordonnance de Non-lieu général of 16 September 2014 issued by the same investigative judge, Marc Trévidic, which gave a general clearance of the NCRI-MeK members of any wrong doing.