Identifier
Created
Classification
Origin
07BAGHDAD1839
2007-06-03 11:28:00
CONFIDENTIAL
Embassy Baghdad
Cable title:  

UNHCR AND ICRC ON MEK: YOU TOOK THEM, YOU OWN THEM

Tags:  PGOV PINS PNAT PTER MARR MACP MOPS IZ 
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OO RUEHBC RUEHDE RUEHIHL RUEHKUK
DE RUEHGB #1839/01 1541128
ZNY CCCCC ZZH
O 031128Z JUN 07
FM AMEMBASSY BAGHDAD
TO RUEHC/SECSTATE WASHDC IMMEDIATE 1516
INFO RUCNRAQ/IRAQ COLLECTIVE PRIORITY
RHEHAAA/WHITE HOUSE WASHINGTON DC PRIORITY
RUEKJCS/SECDEF WASHINGTON DC PRIORITY
RUEKJCS/JOINT STAFF WASHDC PRIORITY
RHMFISS/HQ USCENTCOM MACDILL AFB FL PRIORITY
C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 001839 

SIPDIS

SIPDIS

E.O. 12958: DECL: 06/02/2017
TAGS: PGOV PINS PNAT PTER MARR MACP MOPS IZ
SUBJECT: UNHCR AND ICRC ON MEK: YOU TOOK THEM, YOU OWN THEM

Classified By: Ambassador Ryan C. Crocker for reasons 1.4 (b) and (d).

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 001839

SIPDIS

SIPDIS

E.O. 12958: DECL: 06/02/2017
TAGS: PGOV PINS PNAT PTER MARR MACP MOPS IZ
SUBJECT: UNHCR AND ICRC ON MEK: YOU TOOK THEM, YOU OWN THEM

Classified By: Ambassador Ryan C. Crocker for reasons 1.4 (b) and (d).


1. (C/REL MNF-I) SUMMARY: On May 26, a MNF-I/U.S. Embassy
delegation consulted with ICRC and UNHCR representatives in
Amman on the future of the Mujahedin-e Khalq (MeK) members
who were granted 'protected persons' status by the United
States in 2004 and currently reside in Diyala province under
Coalition protection, as well as of the defectors from the
MEK. END SUMMARY.

ICRC: Article III Relevant, Not "Protected Persons"
-------------- --------------


2. (C/REL MNF-I) The ICRC said "protected persons" status
under the Fourth Geneva Convention was not applicable to the
future of the MEK, arguing that the USG's responsibilities
with regard to the MEK post-June 2004 are derived from Common
Article III of the Geneva Conventions and customary
international humanitarian law. The ICRC said that because
the MEK, as well as the defectors, are currently under
MNF-I's "effective control" the US has an obligation to
protect them from certain types of risks.

ICRC: MEK Transfer to Iraq Constitutes Violation
-------------- ---


3. (C/REL MNF-I) When asked if the USG could end our Article
III obligation by transferring the MEK to the government of
Iraq, the ICRC said that the U.S. could not do so en masse
without violating the principle of non-refoulement which,
according to the ICRC, precludes a State from transferring
persons within its control to another State if a real risk
exists that they may face arbitrary deprivation of life,
torture or other form of ill-treatment. (NOTE: The USG does
not believe that it has legal non-refoulement obligations
with regard to the MEK, although as a policy matter the USG
would obtain diplomatic assurances of humane treatment prior
to transferring the MEK to another State. END NOTE). The
ICRC said the GOI is neither capable nor willing to take on
the responsibility of ensuring the population is physically

protected and treated humanely.


4. (C/REL MNF-I) The ICRC said any such transfer would be a
violation of the principle of non-refoulement -- even if the
GOI provided diplomatic assurances that it would protect and
uphold the human rights of the MEK and would comply with the
international policy of non-refoulement. The ICRC argued
that, according to un-named "international human rights
treaty-monitoring organizations", the weight given to
diplomatic assurances depends upon whether a state has a
history of systematic torture and that if it does then no
weight can be given to the assurances. The ICRC noted
evidence of abuse by elements of the Iraqi government, adding
that the GOI cannot currently protect any of its population,
let alone the MEK - an organization despised by many Iraqis
for its alliance with Saddam Hussein. The ICRC also noted
that Iraq is not party to the Convention Against Torture,
implying that as a result the GOI had even less incentive to
ensure the safety and humane treatment of the MEK.

ICRC: On Iraqi Security Forces or Others Protecting MEK
-------------- --------------


5. (C/REL MNF-I) The ICRC said they would not oppose a
Coalition proposal to involve Iraqi forces in providing some
security - perhaps an outer ring - to the MEK camp as long as
the USG remained responsible for the group's protection. The
ICRC also did not see a problem with the USG hiring a private
security force to protect the MEK camp, with the
understanding that this would not relieve the USG for its
legal responsibility for the group's protection.

ICRC: Forceable Repatriation and Well-Founded Fear
-------------- --------------


6. (C/REL MNF-I) According to ICRC, the USG may not forcibly
repatriate MEK members to a third country, including Iran, if
the person to be repatriated can establish a well-founded
case of fear that doing so would subject them to arbitrary
deprivation of life, torture or other forms of ill-treatment,
persecution, or manifestly unfair judicial proceedings. The
ICRC said that to do so would violate the principle of
non-refoulement.

ICRC: Determining When Involuntary Repatriation is OK
-------------- --------------


7. (C/REL MNF-I) The ICRC said that the US could meet the
standards of the principle of non-refoulement by establishing

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certain procedures to determine whether an individual's
expressed fears were well-founded or not. The ICRC
recommended that the USG establish an independent panel to
interview each individual MEK member who expressed fear. The
panel could be comprised of USG personnel, but should not be
exclusively made up of MNF-I personnel. The ICRC said that
those MEK members whose cases would be reviewed by the panel
must have the right to make submissions on their behalf. The
ICRC also said that the MEK members appearing before the
panel should have access to legal counsel and should have a
right to some form of an appeals process. The panel would
ultimately determine if the individual MEK member had a
well-founded fear of torture or other forms of ill-treatment,
persecution, arbitrary deprivation of life, or manifestly
unfair judicial proceedings. In the ICRC's view, MEK members
determined not to have such well-founded fears could be
involuntarily repatriated to Iran - or transferred to GOI
responsibility. Due to its mandate, however, the ICRC said
it would not assist in any involuntary repatriation (NOTE:
The 176 former MEK members with UNHCR refugee status would
not be included in this interview process as the UNHCR has
already determined that they have credible fears of
persecution under the 1951 Convention relating to the Status
of Refugees. END NOTE).

ICRC Current and Planned Role
--------------


8. (C/REL MNF-I) The ICRC said it would continue its current
efforts with regard to the MEK situation in Iraq. The ICRC
said it would remain involved in facilitating communication
between families in Iran and the MEK camp and in supporting
voluntary repatriations of MEK members from Iraq to Iran or
other third countries. The ICRC noted it is working with its
security personnel to determine whether it would be possible
to visit the MEK camp in Ashraf to evaluate the overall
status and treatment of the population. (NOTE: ICRC has only
visited Ashraf once in 2004. Security issues have kept them
from any follow on trips. In order to maintain its
neutrality and independence, the ICRC has thus far
consistently refused protection and security within Iraq
offered by the Coalition. END NOTE). If such a ICRC trip is
allowed, they would also be willing to advocate that MEK
members voluntarily repatriate to Iran if they could not
develop a strong case that their return would result in
torture or other ill treatment. The ICRC also said that if
the US decides to set up the proposed independent panel to
evaluate whether or not a claim of fear is well-founded, they
could assist in developing the interview criteria and
questionaire.

UNHCR: Role Limited to MEK Defectors and UNHCR Refugees
-------------- --------------


9. (C/REL MNF-I) UNHCR said its role with the MEK camp in
Ashraf is limited to defectors and refugees located in the
Ashraf Refugee Camp (ARC). Over the past few years, UNHCR
has conducted refugee status determination (RSD) interviews
on most of the defectors who were interested in refugee
status. The UNHCR has also tried, unsuccessfully, to find
third country placement for nearly all MEK defectors who have
been granted refugee status. UNHCR stressed that if the USG
were to take some of these refugees, other countries might
also be willing to open their doors to the refugees. Embassy
personnel explained that the Department of Homeland Security
had ruled that the refugees were ineligible to enter the U.S.
due to their former association with a listed Foreign
Terrorist Organization.


10. (C/REL MNF-I) Two hundred and four (204) defectors from
the active MEK members are currently living in a separate
camp, called the Ashraf Refugee Camp (ARC). One hundred and
seventy-six (176) have been granted refugee status by UNHCR,
while four (4) have had their applications for refugee status
denied (and are waiting to appeal the decision). Another
twenty-four (24) are still waiting for their RSD interviews.
UNHCR welcomed MNF-I's offer to facilitate conducting the
remaining RSDs in person, rather than through
video-conferences. A UNHCR visit to the ARC, the defector
camp, could also serve to inform the refugees that their
prospects of third country resettlement appear slim.

UNHCR: On Movement of Defectors to Another Iraqi Site
-------------- --------------


11. (C/REL MNF-I) The UNHCR said it would not oppose a
Coalition proposal to move the MEK defectors and refugees to
a new location within Iraq, as long as the refugees were
provided adequate security and maintenance. The UNHCR also

BAGHDAD 00001839 003 OF 003


noted the GOI, as the host government, would need to approve
any relocation plan. As for moving the population outside of
the country, this would be problematic. The USG would need to
find an appropriate host country for the camp, and this was
improbable given that countries have not even been willing to
accept the small number of refugees who have actually
defected from the MEK.

UNHCR: On Protection of MEK Defectors and Fefugees
-------------- --------------


12. (C/REL MNF-I) The UNHCR said that it opposes transferring
security of the MeK refugees/defectors to the GOI. UNHCR
officials pointed out that the GOI's track record for
protecting Sudanese and Palestinian refugees was poor.
Similar to the arguments of the ICRC, the UNHCR argued the
the GOI could not be trusted to ensure the security of the
refugees, without some form of credible assurances or
assessments.


13. (C/REL MNF-I) UNHCR said it would not object to the
transfer of security for the MEK defectors and refugees to
another country's forces, UN forces, or a private firm, as
long as the refugees would be safe. The UNHCR cautioned that
the host government would need to approve a change in force
protection. The UNHCR further stated that it would not
influence or play a role in soliciting a new force for the
population.

UNHCR: On Life Support for MEK Defectors and Refugees
-------------- --------------


14. (C/REL MNF-I) The UNHCR said it might be able to provide
for the care and maintenance at the Ashraf Refugee Camp, but
quickly made clear it could not guarantee it would be able to
do so. The UNHCR said that it could only take on this
mission if a suitable implementing NGO were available and/or
if its own staffing within Iraq was increased. The UNHCR
made clear, however, that the USG would remain responsible
for the security of the camp.

UNHCR: USG Should Allow Refugees Leave Ashraf Voluntarily
-------------- --------------


15. (C/REL MNF-I) The UNHCR, supported by the ICRC, said that
due to international law guaranteeing freedom of movement,
that the USG should not prevent MEK defectors or refugees
from volutarily leaving Ashraf, as long as they were fully
informed of the risks outside the camp. Given this position,
MNF-I agreed to consider changing its current practice of
disallowing unaccompanied departures - a policy it had
instituted in order to protect refugees from the various
threats they face. MNF-I estimated that as many as 30-40 of
the refugees might decide to simply leave the refugee camp
if/when its gates are opened. The ICRC cautioned that
refugees should not be coerced into leaving the facility.
CROCKER