I. IHL gives rise to obligations on the U.S. to protect PMOI members
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 , which
is regarded as customary law. 
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.
4. The scope of the protection thus
afforded is detailed in the Fourth Geneva Convention, which specifies
inter alia, that: "Protected persons are entitled, in all
circumstances, to respect for their persons, their honour, their
family rights, their religious convictions and practices, and their
manners and customs […]" (Art. 27). Furthermore, the Hague Convention
requires an Occupying Power to take: "All the measures in its power to
restore, and ensure, as far as possible, public order and safety […]"
5. In the particular case of Ashraf residents, one must also stress
the prohibition against surrendering a protected person to a country
where he or she runs the risk of being persecuted for political or
religious motives. According to Article 45 of the Fourth Geneva
Convention: "In no circumstances shall a protected person be
transferred to a country where he or she may have reason to fear
persecution for his or her political opinions or religious beliefs."
In casu, it is well-known that the risk that the prohibition could be
violated by Iraq is far from being theoretical. The Iraqi Government
threatened to expel to Iran Ashraf residents on various occasions
(infra para 14). In a letter dated 16 February 2006, General John D.
Gardner, then MNF-I's Deputy Commanding General, stated:
"Multi-National Force-Iraq appreciates our responsibilities with
regard to the Geneva Convention Relative to the Treatment of Civilian
Persons (GCIV), 1949. In particular, we are sensitive to the
requirements established in Article 45 which prohibit the transfer of
a protected person to a country in which he or she may have reason to
fear persecution for his or her opinions or religious beliefs."
past few years, particularly in recent months, Iraqi officials and
media outlets affiliated with the Government have repeatedly called for
the expulsion, arrest and execution of the residents of Ashraf. These
remarks prompted the European Parliament to state in its unanimous
resolution of 12 July 2007, that it "strongly rejects the threats of
expulsion and cutting off supplies of fuel and drinking water made by
some senior officials in the Iraqi Government against 4000 members of
the Iranian opposition who have been political refugees in Iraq for
the past 20 years and have the legal status of 'Protected persons
under the Fourth Geneva Convention' and calls on the IraqiGovernment
to respect their rights under international law."
6. The cumulative
legal affect of The Hague Convention and the Fourth Geneva Convention
requires the U.S. to take every step necessary to ensure that its
actions would not harm the refugees at Camp Ashraf, who are protected
persons, and in particular, that such actions do not infringe upon
their fundamental rights and freedoms, as stipulated in these
7. One may assume that the conflict in Iraq ended with
Security Council Resolution 1546, dated 8 June 2004, which:
"Welcome[d] that also, by 30 June 2004, the occupation will end and
the Coalition Provisional Authority will cease to exist, and that Iraq
will reassert its full sovereignty." Still, the current circumstances
of the refugees at Camp Ashraf are the direct result of the armed
conflict between the U.S. and Iraq in 2003. Moreover, the continuing
presence of American forces in Iraqi territory is also a direct
consequence of that conflict. IHL continues to apply to forces of any Occupying Power for the entire period
during which they remain inthe occupied territory, which in this case
extends the application of IHL to American forces as long as they
remain in Iraq. As stated in the Wall case, the Court observed: "Since
the military operations leading to the occupation of the West Bank in
1967 ended a long time ago, only those Articles of the Fourth Geneva
Convention referred to in Article 6, paragraph 3, remain applicable in
that occupied territory."
In other words, even if one considers that
the United States is no longer an Occupying Power, the provisions
mentioned in Article 6 of the Fourth Geneva Conventions would still
apply in Iraq.
8. This conclusion is supported by the continuation of
armed conflict in Iraq, first among various armed groups, and second,
among various armed groups on the one hand, and the combined American
and Coalition forces in Iraq on the other. Indeed, when Security
Council Resolution 1546 was being adopted, Secretary of State Colin
Powell wrote to the President of the Security Council that: "The MNF
[Multi-National Force] stands ready to continue to undertake a broad
range oftasks to contribute to the maintenance of security […]"
(emphasis added). And that: "The forces that make up the MNF are and
will remain committed at all times to act consistently with their
obligations under the law of armed conflict, including the Geneva
Conventions" (emphasis added).
In the preamble to Resolution 1546, the
Security Council further pledged: "The commitment of all forces
promoting the maintenance of security and stability in Iraq to act in
accordance with international law, including obligations under
international humanitarian law and to cooperate with relevant
international organizations" (emphasis added). These references to the
IHL confirm both that a situation of armed conflict, to which IHL
remains applicable, persists in Iraq, and that the U.S. in Iraq
remains bound to IHL regulations. Indeed, the U.S. has formally
committed itself to comply with the IHL regulations.
9. It is true
that, in principle, Article 6 of the Fourth Geneva Convention ceases
to apply a year after the end of military operations. However, the
continuation of military operations in Iraq renders the Fourth Geneva
Convention applicable even to this date. Moreover, Article 3(B) of the
First Additional Protocol extends protection under the GCs beyond
occupation "for those persons whose final release, repatriation or
re-establishment takes place thereafter." This provision confirms that
any obligations which arose during the occupation would be prolonged
in light of ongoing hostilities. Although the First Additional Protocol is not binding on the U.S., Article 3(B) offers a formal
expression of customary rules of common sense. The circumstances
justifying the application of Article 45 of the Forth Geneva
Convention to Ashraf residents, as mentioned above, have not changed.
Therefore, the U.S. cannot transfer the protection of the members of
the PMOI in Ashraf to another authority, because such an action would
seriously threaten the safety of these people. General Gardner's 16
February 2006 letter, mentioned above, confirms that IHL still applies
in this case and binds the US with respect to Ashraf residents (supra
10. In view of IHL's ongoing application to the situation in
Iraq, the refugees of Camp Ashraf would retain the status of
'protected persons' under IHL. American forces - as the armed forces
of a former Occupying Power, which maintains a presence on the soil of
a foreign country – Iraq – after the armed conflict of 2003, and which
still faces ongoing hostilities – remain under an obligation to ensure
the protection of civilians. This is due to the fact that such
civilians remain under the effective control of U.S. armed forces.
11. The obligation of the United States to comply with the principles
of IHL with respect to Iraq additionally flows from its obligation
under Common Article One in the GCs "to ensure respect" for the GCs.
In its recent Advisory Opinion on the Construction of a Wall in
Occupied Palestine, the International Court of Justice (ICJ) affirmed
that this is not a merely moral obligation, but one which is enshrined
in the GCs and IHL generally.
12. Finally, Article 26 of the Vienna
Convention on the Law of Treaties confirms the obligation on all
states to perform their international treaty obligations in 'good
This entails that the U.S. must fulfill its obligations under
the IHL by ensuring the protection of all parties in Iraqi territory
under its control, including the refugees at Camp Ashraf. In its
recent response to Certain Questions of Mutual Assistance in Criminal
Matters, the ICJ insisted that even when a provision confers broad
discretion to a state regarding the latter's relations with other
parties, "this exercise of discretion is still subject to the
obligation of good faith."
This rings even more true when it comes to
fulfilling international obligations regarding the protection of
fundamental human rights. Employing the 'good faith' principle in the
context of the application of IHL in Iraq today leads to the
conclusion that the U.S. is under an obligation, pursuant to IHL, to
ensure the safety of refugees at Camp Ashraf.
II. General international law gives rise to obligations on the U.S.
to protect PMOImembers in Iraq
13. In addition to the application of
IHL to the situation of the refugees at Camp Ashraf, general
international law gives rise to obligations on States to protect
people from the likelihood of a serious violation of their fundamental
rights and freedoms.
These rights include, among others,
A) The principle of non refoulement,
B) The right to life, freedom, and
safety, and the prohibition of torture and persecution. Furthermore,
C) States are obligedto ensure the protection of these rights, and
the United States must exercise thisprotection. A. Principle of
14. Absent the protection of the U.S. forces, the
residents of Camp Ashraf have seriousgrounds to believe that the
Iranian regime is exerting pressure on the Iraqi Government to
forcibly expel PMOI members from Iraq. The regime is also seriously
endangering the lives of PMOI members in Iraq with kidnappings,
explosions, and terrorist and missile attacks. Such an unprovoked
expulsion would violate the prohibition on refoulement under Article
33 of the Geneva Convention of 28 July 1951 on the Status of Refugees,
also considered to be a rule of customary international
Moreover, the Iranian regime's officials have frequently
demanded the extradition, expulsion, or prosecution of the PMOI
members residing in Iraq. For example, on 26 June 2008, the Iranian
Ambassador to Iraq, Hassan Kazemi Qomi said, "We had asked the Iraqi
Governing Council in 2003 to expel the terrorist Mojahedin group from
that country. We are insisting on that demand."
The principle of
non-refoulement binds not only Iraq but also the U.S. On 20 June 2001,
United Nations High Commission for Refugees published a document
containing the legal opinion of Sir Elihu Lauterpacht CBE QC and
Daniel Bethlehem, entitled, "The Scope andContent of the Principle of
Non-Refoulement." The authors wrote in paragraph 114 of that document,
"… the principle of non-refoulement will apply also in circumstances
in which the refugee orasylum-seeker is within their country of origin
but is nevertheless under the protection of another Contracting State.
This may arise, for example, in circumstances in which a refugee or
asylum-seeker takes refuge in the diplomatic mission of another State
or comes under the protection of the armed forces of another State
engaged in a peace-keeping or other role in the country of origin. In
principle, in such circumstances, the protecting State will be subject
to the prohibition on refoulement to territory where the person
concerned would be at risk."
Although the residents of Ashraf do not live in their country of
origin, they have been protected by the U.S. forces for the past five
years, following the hand-over of their weapons. As such, they fall
within the purview of the non-refoulement principle as discussed
above, and the U.S. must ensure that the principle is respected. B.
Right to life, freedom and safety – Prohibition of torture and
15. Expulsion of the Camp Ashraf refugees would further
breach the following principles of general international law: - It
would constitute a threat to the right to life, as well as the rights
of freedom and safety of Camp Ashraf refugees, as envisaged under
Article 3 of the Universal Declaration of Human Rights adopted by the
UN General Assembly on 10 December 1948, which applies to the present
situation as customary international law; - It would expose Camp
Ashraf refugees to various forms of persecution in Iran amounting to
crimes against humanity as defined in customary international law, and
as reflected in various international instruments (e.g. Article 5,
Statute of the ICTY; Article 3, Statute of the ICTR; Article 7,
Statute of ICC; Article 18, Draft Code of Crimes Against the Peace and
Security of Mankind); - Refugees at Camp Ashraf would be exposed to
the risk of torture, thus violating the prohibition against
refoulement under Article 3 of the 1984 Convention against Torture,
which determines: "No State Party shall expel, return ('refoule') or
extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to
torture." The United States has been a party to the Convention against
Torture since 21 October 1994.
16. Historical relations between the
PMOI and Iranian authorities, as well as the current human rights
record in Iran, underscore the high probability of such risks
occurring in reality. C. Obligation of States to react
cannot remain indifferent to threats of this kind. General principles
ofinternational law oblige States to react. Thus, the UN Charter
states that among the organisation's aims are: "To achieve
international co-operation in solving international problems of
[…]humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion" (Art. 1, para. 3).
The Declaration on Principles of International Law Concerning Friendly
Relations and Co-Operation Among States establishes:
"States shall co-operate in the promotion of universal respect for,
and observance of, human rights and fundamental freedoms for all
The pronouncement that States must 'encourage' respect for
human rights, and that they must 'co-operate' to ensure that such
rights are respected, places States under an obligation beyond merely
the prohibition of a breach of those rights. Pursuant to this
interpretation, States are under a positive obligation to ensure these
rights are respected.
18. This conclusion has been completely confirmed
by the Human Rights Committee, established by the 1966 International
Covenant on Civil and Political Rights, which has been binding for the
U.S. and Iraq since 8 June 1992 and 25 January 1971, respectively. The
Human Rights Committee's General Comment No. 31 stipulates, among
other things, that: "The legal obligation under article 2, paragraph
1, is both negative and positive in nature. […] the positive
obligations on States Parties to ensure Covenant rights will only be
fully discharged if individuals are protected by the State, not just
against violations of Covenant rights by its agents, but also against
acts committed by private persons or entities that would impair the
enjoyment of Covenant rights in so far as they are amenable to
application between private persons or entities. There may be
circumstances in which a failure to ensure Covenant rights as required
by article 2 would give rise to violations by States Parties of those
rights, as a result of States Parties' permitting or failing to take
appropriate measures or to exercise due diligence to prevent, punish,
investigate or redress the harm caused by such acts by private persons
or entities" (emphasis added).
The "entities" referred to in the
General Comment could certainly include Iraqi authorities. The
"positive" aspect of the obligation to respect human rights also
appears in the General Comment No. 2 of the Committee against Torture,
which stresses that States party to the 1984 Convention against
Torture, must "take positive effective measures to ensure […] the
eradication of torture and ill-treatment."
More precisely, and more
specifically with regards to the present case, the General Comments
No. 31 and No. 2 mentioned above add that the due diligence obligation
also binds a State vis-à-vis persons who are under its effective
control and are outside its territorial borders, as it is the case for
the U.S. with respect to the residents of Camp Ashraf: "A State party
must respect and ensure the rights laid down in the Covenant to anyone
within the power or effective control of that State Party, even if not
situated within the territory of the State Party."
Comment No. 31 of the H.R. Committee specifies that the due diligence
obligation also applies to extradition or expulsion: "Moreover, the
article 2 obligation requiring that States Parties respect and ensure
the Covenant rights for all persons in their territory and all persons
under their control entails an obligation not to extradite, deport, expel or otherwise remove a
person from their territory, where there are substantial grounds for
believing that there is a real risk of irreparable harm, such as that
contemplated by articles 6 and 7 of the Covenant, either in the
country to which removal is to be effected or in any country to which
the person may subsequently be removed. The relevant judicial and
administrative authorities should be made aware of the need to ensure
compliance with the Covenant obligations in such matters."
General Comment No. 2 of the Committee against Torture reads: "If a
person is to be transferred or sent to the custody or control of an
individual or institution known to have engaged in torture or
ill-treatment, or has not implemented adequate safeguards, the State
is responsible, and its officials subject to punishment for ordering,
permitting or participating in this transfer contrary to the State's
obligation to take effective measures to prevent torture in accordance
with article 2, paragraph 1" (emphasis added). This means that the
United States could be held responsible if Camp Ashraf refugees were
to be expelled to Iran by Iraq without any attempt form the U.S. to
prevent such an action. In other words, the U.S., due to its presence
in Iraq, has in accordance with the above instruments and texts, an
obligation of due diligence to take all legal measures necessary
and possible to ensure that fundamental rights and freedoms of Camp
Ashraf refugees are respected.
19. The existence of a solemn, specific
and binding obligation was confirmed during the World Summit in 2005
where States proclaimed the well known "responsibility to protect"
obligation compelling them to ensure the protection of fundamental
rights and freedoms. The Summit declared: "Each individual State has
the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their
incitement, through appropriate and necessary means. We accept that
responsibility and will act in accordance with it."
20. With regard to
refugees specifically, the States affirmed: "We, Heads of State and
Government, […] gathered at United Nations Headquarters in New York
from 14 to 16 September 2005 […] commit ourselves to safeguarding the
principle of refugee protection."
21. The return of refugees from
Ashraf Camp to Iran would violate those rights considered peremptory
under international law (jus cogens). The U.S., in conjunction with
all foreign States whose forces are present in Iraq, must employ every
available legal means to prevent the violation by Iraq of the fundamental rights of
refugees protected under international law. The co-operation of States
for this purpose would be in accordance with Article 41 of the ILC's
Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, which notes: "States shall cooperate to
bring to an end through lawful means any serious breach within the
meaning of Article 40." Article 40 (of these Articles) relates to "an
obligation arising under a peremptory norm of general international
law."D. Only U.S. forces are capable and qualified to protect the PMOI
22. Expulsion from Camp Ashraf to Iran would expose the
refugees to the risks of facing illegal trials, arbitrary arrests, ill
treatment, torture, mass executions and other crimes against
humanity, and is therefore a serious violation of peremptory norms
jus cogens. It is therefore reasonable to conclude that any State with
access to the means required to prevent this from occurring must act
accordingly. This obligation arises from the applicability of both the
obligation of 'responsibility to protect' and also the 'good faith'
principle quoted above to the interpretation of regulations regarding
the protection of fundamental human rights (supra paras 14-20). Under
the present circumstances, the U.S. is the only party capable of
ensuring that the refugees of Camp Ashraf would not be the victims of
serious violations of fundamental rights and freedoms. Absent the
protection of the U.S. forces, there exists the risk that PMOI members
in Iraq be extradited to Iran through forced expulsion or in some
other way, or otherwise have their fundamental rights and freedoms
23. If it is accepted that armed conflict is
still continuing in Iraq, and I am of the view thatit is indeed
continuing, the U.S., as a Belligerent Power present in Iraq, must
ensure the protection of refugees at Camp Ashraf against any action
which seeks to seriously violatetheir fundamental rights and freedoms.
This obligation arises from the status of the U.S. as aBelligerent
Power, or even an Occupying Power, as well as the application of IHL
(Article 43 of the Hague Convention and Article 27 of the Fourth Geneva
Convention), which requires aBelligerent Power to safeguard law and
order and respect for fundamental rights andfreedoms in the territory
under its control (supra paras 1-11).
24. Even if it is assumed that
IHL does not apply to the U.S. because it is not a direct party to the
ongoing armed conflict in Iraq, the U.S. nonetheless remains obliged,
pursuant to general principles and rules of international law, to
protect the refugees of Camp Ashraf against any serious violation of
their fundamental rights and freedoms (Article 1 of theUnited Nations
Charter; Principle 5 of the Declaration on Principles of International
Law Concerning Friendly Relations and Co-Operation Among States; Paras
133 and 138 Final Document of the World Summit 2005; and see above
paras 13-21). It goes without saying that there is no other authority,
except the U.S., in Iraq, which under the circumstances, has
 The U.S. is a party to the Convention since 27 November
 International Military Tribunal, Judgement, October 1, 1946,
AJIL 1947, pp. 248-249; Legality of the Threator Use of Nuclear
Weapons, Adv. Op., ICJ Rep. 1996, p. 256, para 75; Advisory Opinion on
the Wall, ICJ Rep., 2004, para 89.
 MG John D. Gardner, Deputy
Commanding General, MNF-I, letter to PMOI Secretary General Ms.
SedighehHosseini, 16 February 2006.
 European Parliament Resolution,
adopted 12 July 2007,
 Advisory Opinion on the Wall, ICJ Rep., 2004, para. 125.
 Letter annexed to Resolution 1546, 8 June 2003.
 Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Rep., 2004, para 159.
 Draft Declaration on
Rights and Duties of States, Art. 13, 31 May 1949; Declaration on
Friendly Relations, 7thPrinciple, UN Doc. A/RES. 2625 (XXV), Oct. 24,
1970; Advisory Opinion on the Wall, ICJ Rep., 2004, par.94.
 Djibouti v France, Judgment 3 June 2008 para 145.
 See sources quoted in our advice dated
February 27, 2007 on the question of whether members of the PMOIin
Camp Ashraf Iraq would be regarded refugees under international law,
and whether they are could beexpelled from Iraq, para 40.
 Mehr News
Agency, Hassan Kazemi Qomi, "SOFA not favoring the Iraqi nation,
Mojahedin must be expelled," 26 June 2008.
 United Nations High
Commission for Refugees, "The Scope and Content of the Principle of
Non-Refoulement, Opinion by Sir Elihu Lauerpacht CBE QC and Daniel
Bethlehem, Barrister, 20 June 1981.
 Voy. Amnesty
International, Rapport 2008, French Edition, pp. 227-230.
 UN General Assembly Resolution 2625
(XXV), 24 October 1970, Principle 5(2)(b).
 General Comment n° 31,
para. 6 and 8, www1.umn.edu/humanrts/gencomm/hrcom31.html
Comment n° 2, 24 Jan. 2008, para 4,
 General Comment n° 31,
op. cit., para. 10 ; in the same way, General Comment n° 2, op. cit.,
 General Comment n° 31, op. cit., para. 12.
 General Comment n° 2, op. cit., para. 19.
 UN General Assembly
Resolution 60/1 16 September 2005, para 138; Also see, more recently,
the Nuremberg Declaration on Peace and Justice, adopted by Finland,
Germany and Jordan, June 27, 2008, III, 2, par. 3
 Ibid., para 133.
 See the definition in Article 7 of the Statute of the ICC.