VZCZCXRO3710
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). 
 
¶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 
 
BAGHDAD 00001839  002 OF 003 
 
 
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