Joint Legal Opinion by Lord Slynn of Hadley and Jean-Yves de Cara on the status of the PMOI members under new Iraqi constitution
NCRI, September 10 – A Joint Legal Opinion to be presented by the Rt. Hon. the Lord Slynn of Hadley, President of the International Law Association and former Judge of the European Court of Justice and Lord of Appeal in Ordinary and Jean-Yves de Cara, Professor of International Law, University of Paris (V), calls on the Iraqi authorities to observe the international laws with respect to refugee status in the new constitution which in particular affects the status of members of the People’s Mojahedin Organization of Iran residing in Iraq. The following is their letter to authorities in Iraq:
Sometime ago we advised the National Council of Resistance of Iran that the Members of the People’s Mojahedin of Iran (PMOI) living in Ashraf were protected persons within the meaning of the 1949 Fourth Geneva Convention, and that to send them against their will to Iran would be a violation of that convention and general International Human Rights Law.
We also advised that although Iraq was not a Party to the 1951 Convention Relating to the Status of Refugees, the principles which it embodied were part of customary international law and accordingly binding on Iraq.
As a group working peacefully for democracy in Iran, members of the PMOI are entitled to claim political asylum if their freedom or rights are threatened or infringed. Indeed under the Iraq Asylum Act of 1971, the status as refugees of members of the PMOI was recognised. In accordance with international law on the succession of states, the recognition in the 1971 Act continues to be binding on the new Government of Iraq. Moreover, the Coalition authorities recognised them as protected persons under the IV Geneva Convention.
Our attention has been drawn to Article 21 of the draft Constitution of Iraq, recently presented to the Parliament of Iraq. The third clause of that article provides that “Political Asylum shall not be granted to those accused of committing international or terror crimes or to any one who has caused Iraq harm”.
This raises a point of importance and urgency on which we feel we should express an immediate opinion. We are in the process of preparing a more detailed and more fully reasoned Opinion on this point, but we do not think it right to delay drawing attention to the point until our fuller Opinion is available.
The article clearly says not only that those who commit international or terror crimes or cause harm to Iraq shall be refused political asylum in Iraq (on which we do not comment), but also that those who are merely “accused of committing international or terror or crimes” shall be refused political asylum.
It is our view that the mere “accusation” of such a crime cannot, as a matter of international law, disentitle the person accused of Political Asylum.
Such an accusation can be made, and sometimes is made, without any or any adequate basis in fact or law to justify the accusation. Moreover it can be made from motives which have nothing to do with or go far beyond the scope of the particular crime alleged. The article if implemented as it stands would in our view quite clearly disbar those who are entitled to the protection of the Geneva Convention and International Human Rights Law from relying on such protection, however flimsy the accusation made.
We of course fully recognise the importance of establishing a new Constitution for Iraq and wish to see a new constitution established.
But we feel that, not only in the interests of the members of the PMOI but also of the status of the new Constitution and its legality in International Law (which it seems clear that Iraq would wish to observe), we should as a matter of urgency draw the attention of the authorities to this matter and respectfully urge on behalf of the NRCI that it be considered.
