Article 14 of the Universal Declaration of Human Rights describes a right to enjoy asylum as a fundamental right of human beings, which is a limited right (comes with exceptions), because the second paragraph of Article 14 limits the right to asylum by stipulating that "this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations."
The position of the International Law towards the refuge and refugees has changed from the very beginning of the UN foundation in 1945, after the end of the Second World War, with regard to the changes and developments of the international community.
One year after the foundation of United Nations, on December 1946, the General Assembly passed a resolution to establish “International Refugee Organization”. It was a temporary organization of the United Nations (UN), which itself had been founded in 1945, with a mandate to repatriate or resettle European refugees to their homeland. Those who had been immigrated or moved to other countries due to the outcomes of the war. International Refugee Organization (IRO) was dissolved in 1952 after resettling these individuals (about one million refugees).
Although human beings have been relieved of WWII, its consequences and postwar tribulations were being gradually appearing. Economic, political, and social conditions of most of the countries where such that a significant proportion of individuals who have been repatriated to their homeland by International Refugee Organization preferred to seek refuge in the countries other than their own. Therefore, on 10 December 1948, the United Nations General Assembly unanimously adopted the Universal Declaration of Human Rights; the Article 14 of which is about the right to seek and enjoy asylum:
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
After the dissolution of International Refugee Organization in 1950, the United Nations High Commissioner for Refugees (UNHCR) was established to address the new problems.
Subsequently, in 1951, Convention relating to the Status of Refugees, and in 1967, its Additional Protocol was approved by the United Nations. Also in 1967, the General Assembly approved the Declaration on Territorial Asylum.
As mentioned previously, Article 14 of the Universal Declaration of Human Rights describes a right to enjoy asylum as a fundamental right of human beings. This is a limited right (comes with exceptions), because the second paragraph of Article 14 limits the right to asylum.
Article 14(2) refers to “the purposes and principles of the United Nations” which are mentioned in the Charter of the United Nations paragraph 1 of Article 1, and the most important of which is “to maintain international peace and security”. It is of great importance that one of the chapters of the Charter (Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression) guarantees maintenance of international peace and security.
So we can say that the importance of maintenance of peace and international security is among the major priorities of the United Nations and the rest of its duties have to be implemented in a way that it does not being threatened.
With the resolution of the economic, political, and social crisis, above all lack of employment, the European and American countries gradually narrowed refugee admission, even though the number of asylum seekers soared.
The reaction of the countries was tightening rules on accepting refugees, e.g., coining the new term of ‘asylum seeker’ instead of ‘refugee’. To be brief, asylum seeker is a person who is seeking protection as a refugee and his/her refugee status has not yet been determined by the host country.
The most important issue and problem of the above definition from a legal perspective is that the right to asylum is an individual right; interpretation, expansion, or restriction of which has to be done along the lines of protecting the individual rights.
The term “Asylum seeker” as opposed to “refugee” actually restricts the people to fully enjoy a right as stipulated in the Universal Declaration of Human Rights. So, separating asylum seekers and refugees explicitly violates the Article 14, Article 1 (equality), and Article 2 (non-discrimination) of the Universal Declaration of Human Rights.
To solve the problem it is said that:
- Although the right to asylum is an international right and is internationally confirmed, the practical identification and definition of that should be established separately by each country and with regard to the location and facilities of each of them.
- Implementation of an individual/private right should not prevent that of public rights (the right to security, sovereignty, etc.). In a nutshell, private rights yield to public rights (Privatum commodum publico cedit).
- As mentioned, since the Universal Declaration of Human Rights does not describe the right to asylum as an absolute one, the right to asylum should not preclude states from exercising sovereignty. As a result, governments with regard to their sovereignty and facilities have the right to accept asylum seekers or deny them.
At the present time, those governments which have a good reputation in accepting refugees have tightened rules and regulations, as compared to the past. In addition, they inform the UNHCR of the maximum number of refugees could be admitted by them, and they rarely accept more than the stated number. The discussion for legal grounds for such an action will be discussed in the second part of the article.
The current status and UNHCR’s approaches
As it is understood from the official documents of the organization known as Mujahedin-e Khalq (MEK/MKO) and its front organizations such as NCRI, residents of the Organization’s camps, which gathered in Camp New Iraq (formerly Camp Ashraf) when they surrendered camps to the US forces, had various motives for staying in MKO camps in Iraqi soil. Diversity of people and motives is too much. (page 19)
For example, National Council Magazine pages 17-56 (titled: ‘Mujahedin Prison’) Addendum 20 and 21 June and July 1986, which is written “Armed resistance: a report from behind the front lines, Manouchehr Hezarkhani” on the front cover. The author describes a visit to one the Organization’s camps.
The author claims that one of the camps of MKO in Iraqi Kurdistan “covers an area of 28000 square meters.” In addition to other sectors in the camp there are two additionally, quarantine and reception sections, which those who for whatever reason are willing to cooperate with MKO have to pass these two stages.
The author quotes the head of the camp as saying that the individuals are divided into seven groups:
- Supporters who were away for a while.
- Iranian soldiers fleeing the battlefront
- The escapees whose final destination was Europe, but they have failed to fulfill their goals.
- Affiliates of other opposition groups with urgent conditions (neither agree with their organizations nor with ours.)
- Iranian fugitives from refugee camps in Iraq.
- People who approach the camp due to their economic problems.
- Recruits of the Organization “who do not tolerate our discipline, or do not agree with our political line or ideology.”(page 19)
MKO has had extensive and systematic efforts within the Iranian prisoner-of-war camps in Iraq, according to documents and Iranian POWs. We should add at least another item to the above list.
Residents of one of the foreign countries who have joined the MKO camps in Iraq on account of opposition to the government of Iran (ninth group).
Considering all the previously mentioned aspects, we should say that:
Firstly, if the United Nations High Commissioner for Refugees (UNHCR) duly interviews the members of the MKO in the camp one by one, should consider this classification.
Secondly, Iranian government claims to have documents and evidences revealing that some of the MKO members in Camp New Iraq are being prosecuted for non-political crimes. As mentioned in the very beginning of the article, such individuals do not have the right to enjoy refugee, relying on Article 14(2) of the Universal Declaration of Human Rights.
Thirdly, some of the MKO members have committed war crimes, especially breach of peace and security during the Iran-Iraq war, 1980-88. The MKO operation Foroughe Javidan (Eternal Light) against Iran is one of the most obvious breaches of International peace and security.
It seems to take so long for UNHCR to simply follow the mentioned classification, and it’s unlikely to succeed. Thus, the best option for UNHCR to expedite refugee status determination of MKO members in Iraq is to divide them into two groups:
- Those who participated in the operations which breached the International peace and security.
- Those who did not involve in such operations.
If the UNHCR admits the refugee of each of these individuals without considering their records and introduces them to one of the countries which accept refugees, then they commit some crimes against rules and regulations of the host country (such as self-immolation, spying against the host country, money laundering, organized crimes, etc.) the refugee processing system of UNHCR will be questioned. Moreover, it may even be charged with supporting those who have breached international peace and security.
By: Alireza Asadpour Tehrani (LLD in Public Law)