Spanish court launches probe into refugee killings in Iraq

Guardian

A Spanish judge has opened an investigation into alleged human rights abuses by Iraqi authorities at a camp for Iranian refugees in July 2009, the first international probe of its kind since the fall of Saddam.
Photo: Reuters

By Fiona Govan, Madrid 5:23PM GMT 04 Jan 2011

Spanish court launches probe into refugee killings in Iraq

A Spanish judge has opened an investigation into alleged human rights abuses by Iraqi authorities at a camp for Iranian refugees in July 2009, the first international probe of its kind since the fall of Saddam.

Residents clash with Iraqi forces in Camp Ashraf back in 2009. The camp near the Iranian border is home to around 3,500 dissidents from the Mojahedin-e-Khalq organisation Photo: REUTERS By Fiona Govan, Madrid 5:23PM GMT 04 Jan 2011
Spain's National Court number 4 ruled in favour of opening an investigation into a complaint filed by victims of a raid by Iraqi soldiers and police on the Ashraf camp which left 11 people dead and dozens injured.

Magistrate Fernando Andreu has ordered Iraqi Lieutenant General Abdolhossein Shemmari to appear before the court in Madrid on March 8 as the first step in the probe. Although he is not expected to attend, it would not prevent the judge from hearing the case.

Shemmari is accused of leading the attack against the camp near the Iranian border which is home to around 3,500 dissidents from the Mojahedin-e-Khalq organisation, an opposition group calling for the overthrow of the Islamic Republic of Iran.

The complaint is being considered under the legal doctrine of "universal jurisdiction" which allows human rights crimes to be tried in an international court irrespective of where they were committed.

Spain has earned a reputation for pursuing alleged war criminals – notably issuing an arrest warrant for Chilean General Augusto Pinochet in 1998 – and carrying out advanced investigations against, amongst others, Rwandan leaders, and Argentine officials for "dirty war" killings.



Judge Fernando Andreu's statement in this regard

Madrid, January 4, 2011

Iraqi general summoned by Spanish Investigative Judge for crimes against the International Community committed in Ashraf (Iraq)

The Central Investigation Court number Four of the Spanish National Court in a
writ which became definitive today, summoned the commander of the lethal raid on
Camp Ashraf¬Iraq, home to 3,400 members of the People's Mojahedin Organisation
of Iran, in July 2009.

According to the Writ, as the first step in the investigation, Lieutenant General Abdolhossein Shemmari, which directed the attack on Ashraf under the supervision of the Committee for Closure of Camp Ashraf in the office of Prime Minister Nouri Maliki, must appear before the judge in Spain on 8 March 2011.

Confirming the legal status of residents of Ashraf as protected persons under
the IVth Geneva Convention, the Spanish Court has started this proceeding for
“crime of war” and "crime against humanity", to investigate eleven crimes of
murder, 480 crimes of serious injury, 36 crimes of illegal detention and torture
as well as the crimes of damage against residents of Ashraf who are all
protected person under the IV Geneva Convention.

The Court declared that in conformity with the Rome Statute of the International Criminal Court of July 1998 "grave breaches of Geneva Convention" constitute "war crimes".

The Spanish Court concluded that " Spain bases its competence to repress crimes such as genocide, crimes against humanity, terrorism or crimes against persons protected under the Law of Armed Conflicts, whether they occur in its territory or outside such territory (cases of territoriality or extraterritoriality) in the event that criminal prosecution is appropriate under the provisions of the Organic Law of the Judiciary."

The National Court of Spain considers applicable Article 29 of the IV Geneva Convention which states "the Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred." Accordingly, the court confirms the responsibility of the relevant Iraqi officials in the decision making hierarchy.

Stressing the need to provide "effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the [Geneva Convention]" the Court states that all States signatories to the Geneva Convention "shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.”

The Court rejects Iraqis response to the Spanish legal authorities stating that "answer offered by the Ministry of Foreign Affairs of Iraq, namely 'Iraq had already carried out a legal investigate on the subject and is committed to his part in finding a solution for the residents of Camp Ashraf according to international law,' …is quite insufficient and does not establish the existence of an effective investigation and prosecution… 'it does not report what authority is conducting such investigation, or the date it started, or the steps that may have been taken in this regard, or the outcome, if any.'

The Court further states that "on the contrary, the plaintiffs produce reports from various rapporteurs of the United Nations, such as those of May 9, 2010, May 26, 2010 or June 1, 2010, which indicate that there is no actual investigation and prosecution of the facts at hand. In spite of the requests for information by U.N. rapporteurs to the Iraqi authorities on the facts underlying this proceeding, the answers have not been given, or are unsatisfactory in the opinion of the rapporteurs.”

This is the firs time that an Iraqi officials is being summoned before a Court for serious violations of international law.

The Court decision on the failure of Iraqi Authorities to investigate the facts committed in July 2009 as well as the responsibility of the decision makers who ordered the raid, further confirms that, under the present circumstances and until the moment that are respected the rights of residents of Ashraf in conformity with international law, the international community and in particular the United States and the United Nations must take the measures necessary to secure the safety of Ashraf residents and to avoid a humanitarian crisis.

Dr. Juan E. Garcés