Spain's Courage: Holding Iraq Accountable

01/07/2011 03:43 pm ET | Updated May 25, 2011

Thank goodness someone -- the Government of Spain -- has shown humanitarian concern about the plight of 3,400 Iranians in Camp Ashraf, Iraq. On January 4, 2011, an Investigative Court of the Spanish National Court summoned Iraq's Lt. Gen. Abdul-Hussein Shemmari to appear in Spain on March 8, 2011, or face charges of complicity in murder for having directed an assault on 3,400 Iranians who are supporters of the Mujahedeen Khalq (MEK). The MEK seeks the peaceful replacement of the regime in Iran with a democratically elected government, and for this reason its supporters face death under the mullahs' regime in Iran.

The attack on Camp Ashraf directed by the Lt. Gen. Shemmari left 11 dead and 500 wounded. Today, the people in Camp Ashraf are beset day and night by 180 blaring loudspeakers urging them to end their struggle and return to Iran -- there to face death. Iraq has also constrained food deliveries and medical services to Camp Ashraf.

The tragedy is compounded by the fact that the United States, having expended enormous treasure and over 4,000 lives, allows its influence to wane in Iraq even as that of Iran rises. Caught in the middle are the MEK dissidents at Camp Ashraf. Never mind that the U.S. military had pledged to protect them under the terms of the Fourth Geneva Convention of 1949 Relative to the Protection of Civilians in Times of War. Now, as America gets ready to leave Iraq, America's pledge of protection is going by the wayside.

Stepping into this vacuum has been Iran. And, Iraqi officials seem only too happy to cooperate. That the residents of Camp Ashraf are members of the dissident movement that the mullahs fear most, the MEK, only makes them a more inviting target.

To its credit, Spain takes seriously its law providing for universal jurisdiction of war crimes, recognizing that it can be misused for political ends. Having viewed the attack that occurred at Camp Ashraf in July 2009 as a war crime against protected persons under the Fourth Geneva Convention, Spain is ready to take action. Were the Spanish court to find that Lt. Gen. Shemmari had been complicit in war crimes, it could ask for an investigation and prosecution at the International Criminal Court in The Hague.

This is good news for all who favor the application of international law to combat and deter gross human rights abuses. Critics might, and in the past have contended that such an approach will lead to foreign courts subverting international diplomacy. They will say that the Spanish court is interfering in the internal affairs of the new government in Iraq, arrogating to itself powers over an incident that does not directly concern Spain as no Spanish nationals were involved.

But, to the eleven people killed and 500 injured at Camp Ashraf and their families it will not matter if justice comes from the International Criminal Court or the Spanish court in Madrid. What will be important is that justice is served. Correctly, they will point out that what Spain has done, in a sober and measured way, is hardly an "intrusion" into Iraq's internal affairs. International humanitarian law has advanced to the stage where the unwarranted killing of protected people are no longer a purely internal matter.

Sadly, Iraq has shown no serious intent to investigate the incident and punish those responsible. The Spanish National Court found "there is no actual [Iraqi] investigation and prosecution of the facts on hand."

Still, it is not too late for Iraq, as a fledgling democracy, to demonstrate its commitment to the rule of law. It can begin by stating that it will comply in full with an international investigation with international observers aimed at bringing to justice those responsible for the outrage of July 2009. By the same token, it should also pledge to desist from tolerating further harassment of the residents of Camp Ashraf. So far, the government of Iraq, alas, has shown no willingness to undertake such measures. Ominously, today's reports indicate that the Iraqi government deployed both Iraqis and reputed Iranian agents, disguised as family members of the residents, to Ashraf where they hurled rocks and petrol bombs at the residents, wounding over 155, including 83 women.

Fortunately, in the face of Iraq's unwillingness to shoulder its international responsibilities, Spain has stepped up to the challenge. By putting Iraq and the international community on notice that it will go forward on its own, Spain deserves the applause of all who value human life.

Allan Gerson is the Chairman of AG International Law in Washington D.C. He is presently involved with other attorneys in representing the PMOI/MEK in its efforts to be removed from the State Department List of Foreign Terrorist Organizations.