The Legal Obligations of the United States to Protect the Members of the People’s Mujahedin Organisation of Iran now in Camp Ashraf
Prof Marco Sassoli
Dr Siobhán Wills
Introduction
This paper examines the legal obligations of the United States to protect the members of the People’s Mujahedin Organization of Iran (PMOI) that are now in Camp Ashraf, focusing in particular on the obligations arising under international humanitarian law. The United States (which assumed protection of the PMOI in 2003 when, following the Organization’s disarmament, it took over responsibility for the security of their camp), is currently under pressure to transfer control of Camp Ashraf to the government of Iraq. In June 2008 Iraq’s Council of Ministers agreed a number of measures in relation to the PMOI, including a demand that the Multi-National Force ‘abandon this Organization and hand over to relevant Iraqi authorities all control points and issues that relate to the members of this Organization.’
The PMOI are refugees from Iran. Without the protection of the United States they would be very likely to be repatriated to Iran. There are well founded grounds for fearing that they would be persecuted there: the suppression of the PMOI by the Iranian regime and the arrest and execution of its members has been documented by independent observers such as Amnesty International. The PMOI would also be vulnerable to attacks whilst still in Iraq; the government of Iraq would not be able to protect them. The abandonment and handing over to Iraqi authorities of the PMOI would also place the PMOI at grave risk of serious violations of their human rights at the hands of the government of Iraq, including the right to life, to freedom from torture and inhumane treatment, deportation, unlawful transfer to another State where they would be at risk of persecution, unlawful confinement and the imposition of punitive measures without being granted the right to a fair hearing. Violations of this nature constitute grave breaches of the Geneva Conventions.
The legal bases of the IHL obligations of the United States towards the PMOI are complex. This is not surprising given the novel circumstances in which the United States currently exercises military authority in Iraq, and the equally novel circumstances in which the PMOI came to be under the protection of the United States. Although the conflict was clearly international in 2003, it now has elements of both types of conflict and fits neither the international nor non-international model well. Some leading academics, such as Sir Adam Roberts, take the view that the conflict should continue to be regarded as international. Conversely the International Committee of the Red Cross (ICRC) has adopted the view that the conflict is now non- international on the grounds that the Multi-National Force (MNF) is now present with the consent of the government of Iraq. However, even if the conflict in Iraq is viewed as having become non-international at some point subsequent to the removal of Saddam Hussein from power, some of the key provisions of the Fourth Geneva Convention remain applicable, in particular, art. 6 para. 4 of the IVth Geneva Convention, which provides that “Protected persons whose release, repatriation or re- establishment may take place after such dates shall meanwhile continue to benefit by the present Convention.” Indeed, it would be contrary to the purposes and principles of international humanitarian law to deny the obligations due to refugees who had the status of ‘protected persons’ during the early stages of an ongoing conflict (and whose position has not materially changed) on the grounds that the conflict is no longer international. This principle was effectively acknowledged by the United States when in July 2004 (hence after the ‘transfer of sovereignty’ to the transitional government),5 it confirmed the status of the PMOI as ‘protected persons’ under the Fourth Geneva Convention and communicated that confirmation to the ICRC. The United States repeated its confirmation that the PMOI are ‘protected persons’ under that convention on a number of occasions in 2005 and 2006, together with assurances to them of its commitment to their protection.
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