Hon. David Kilgour letter to U.S. State Department about Ashraf residents
Dear Ambassador Stewart,
Thank you very much for meeting on Oct 3rd concerning the situation at Camp Ashraf. Permit me to reply to some of the points you and your colleague raised during the discussion:
1. The refugees in Ashraf who are active members of the MEK have not been found to be Geneva Convention refugees by the UNHCR.
Reply: They have never attempted to have the UNHCR give them that status. The UNHCR has gone beyond its normal requirements and is seeking to ascertain whether Ashraf residents have genuinely given up violence, notwithstanding their written rejection of violence and terrorism since 2004 and non-engagement in any military activity in Ashraf or anywhere else in the world since 2001.
That said, in general, anyone who escapes persecution and torture is recognized as a refugee (see attached memorandum to the United Nations High Commissioner for Refuges by Dr. Marc Henzelin, Counsel for Ashraf residents).
Please note as well the letter attached from David Matas, one of Canada's leading refugee lawyers, to the UNHCR on why its refusal to determine whether Ashraf residents are refugees is problematic.
2. The government of Iraq has given an undertaking to the U.S. government that no Ashraf resident will be sent to a country where he or she is likely to be tortured or killed.
Reply: Unfortunately, the current Iraqi government assurance cannot be tested in advance. Nor is there any assurance that a new government in Iraq would honour current understandings. The Iraqi government has given no evidence that it can be trusted in respect to Ashraf.
It killed eleven residents and severely injured hundreds more on July 28th-29th. It has taken the 36 abductees to an unknown location in defiance of its own judicial system (see the AP story attached). The Iraqi government undertaking not to expel the residents does not exhaust its human rights undertakings.
It must not kill them, not forcibly relocate them within Iraq, not detain them arbitrarily, nor inflict cruel, inhuman and degrading treatment upon them.
3. The U.S. government is monitoring the treatment of the 36 refugees who were taken from Ashraf, but cannot force their release.
Reply: That is a surprising contention on your part, given the realities of U.S.-Iraqi relations. Your government, for whatever reasons, did nothing to prevent the killing of unarmed residents and the wounding of many others. I ask whether you have seen the footage of US officers turning their backs on bleeding Ashraf residents pleading for help?
There are those who would say that the United States lacked the moral courage to stand by its commitments made in 2004 to the residents of Ashraf.
Moreover, the 36 hostages, on hunger strike for 66 days already, were so by badly beaten by Iraqi forces that one sustained a broken arm and several others lost consciousness. They were recently forcibly taken to an unknown location in Baghdad.
Where were the US forces to monitor this assault? The forced displacement was seemingly prompted by remarks made by a US embassy spokesman in Baghdad, who said on September 14 that Iraq was within its rights to relocate the residents of Ashraf inside Iraq. This was a curious legal judgment for the U.S. Embassy to make.
It is in fact a violation of International Humanitarian Law . Your government has the option of objecting to arbitrary detention. Monitoring treatment of the 36 and forcing Iraq to release the 36 are not the only possible options.
4. There is an assertion in some circles that two Iraqi attackers at Ashraf were killed.
Reply: The Deputy Governor of Diyala denied any Iraqi soldiers had been killed and said those injured were victims of the wind blowing tear gas fired at Ashraf residents back to them (see attached story).
5. The U.S. government has no responsibility for the 3400
Ashraf residents since turning responsibility for their protection over to the Iraqi government earlier this year.
Reply: This judgment appears inaccurate. The sovereignty argument invoked by the Department of State regarding Ashraf does not override US obligations based on Art. 45 of the Fourth Geneva Convention and the bilateral agreement it signed with every resident of Ashraf in 2004.
In this agreement, the US pledged to protect them until their final disposition, which is yet to be determined. This agreement may now appear inconvenient five years after signature, but it is still a defining element in the relationship.
Article 45 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War states in part: "Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention.
If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with."
These provisions identify three powers, a protecting power, a detaining/transferor power and a transferee/accepting power. In this case, the protecting powers are the states members of the Multi-National Force.
The detaining/transferor power is the US. The transferee/accepting power is Iraq. Once the protecting power notifies the detaining power, the detaining power is obligated to act. None of the other members of the Multi-National Force has, to my knowledge, notified the U.S. under Article 45.
However, by virtue of being on the scene of the assault, the U.S. was de facto notified of the inability of the Iraqi government to protect the residents of Ashraf.
6. On July 28th, the Iraqi forces were seeking to enter Ashraf to build a police station.
Reply: You do not direct a force of 2,200 fully-armed soldiers and/or police with Humvees to control an unarmed crowd. Soldiers were beating people in the head with enough force to wound seriously or fatally. It strongly appears to have been a premeditated attack at the behest of the Iranian regime (see, for example, the AFP story attached).
7. The U.S. government has asked the Iraqi government for an investigation into what happened at the camp.
Reply: When was the request made and what has been the Iraqi government response? As you know, often an "investigation" conceals more than it reveals--and certainly delays further action. A good place to start an appropriate U.S. government investigation would be to view the films of the events taken by American soldiers on site. It should be made clear to the Iraqi government that the results of a U.S. government investigation will be released if a comprehensive Iraqi review is not quickly completed and released. Has the Iraqi government indicated when the results of its investigation will be published?
Certainly, we have heard of nothing the Iraqi government has done to date. Asking for an investigation is not enough. The US should ask for an independent investigation, independent in particular from the Government of Iraq. The Government of Iraq should provide secure access to all witnesses. The report should be public.
In the indicated urgent circumstances, I'd be most grateful for your thoughts as quickly as possible in a form which might be shared. Additionally, I suggest that the department could welcome the lawyers for Camp Ashraf residents at an appropriate level. These individuals have been attempting to arrange meetings for some while without success.
Hon. David Kilgour,
Co-chair, Canadian Friends of a Democratic Iran; member, International Committee of Jurists in Defence of Ashraf
CC.-US Committee for Camp Ashraf Residents
and other individuals and organizations.