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In fact, because the MeK was given an assigned residence at its own facility rather than in an internment camp, its members enjoyed better conditions than those required by the convention. |
14 The Mujahedin-e Khalq in Iraq: A Policy Conundrum
Convention until such time as their status has been determined by a competent tribunal. 18 The convention’s drafters saw designation by a competent tribunal as important because combatants are immune from prosecution for acts of war that would be crimes if committed by civilians, though combatants are not immune to prosecution for war crimes.19
In the context of the war on terrorism, such “Article 5” tribunals were particularly necessary because “illegal” or “unlawful” combatants were not given the full range of protections that the Geneva Conventions require for captured combatants or civilians.
While the question of the MeK’s legal status was under consideration, coalition forces gave MeK members the interim status of “other detainees,” who are required by the Third Geneva Convention to receive the same treatment as EPWs while their status is under review.20
The MeK Review Board was formed and appeared to track U.S. Army regulations implementing Article 5’s “competent tribunal” requirement insofar as it was a military review panel “composed of three commissioned officers, one of whom must be of a field grade.”21
However, it seems that the board was not tasked with determining each MeK member’s legal status but rather with classifying members of the MeK into one of the following four categories:
18 Geneva Convention III, Article 5
19 Pictet, 1960; Naqvi, 2002, p. 571
20 The Third Geneva Convention’s protections include, for example, maintenance of physical security and dignity and provision of housing, food, clothing, and health care.
In fact, because the MeK was given an assigned residence at its own facility rather than in an internment camp, its members enjoyed better conditions than those required by the convention.
For instance, Article 25 requires that POWs “be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.” The MeK lived in air-conditioned buildings while coalition forces were housed in tents until the FOB was constructed.
21 Headquarters, U.S. Departments of the Army, Navy, Air Force, and Marine Corps, 1997, Para, 1-6 (c), Field-grade ranks include major, lieutenant colonel, and colonel in the Army, Air Force, and Marines and lieutenant commander, commander, and captain in the Navy and Coast Guard, where they are referred to as midgrade ranks (see DoD, 2004).
Although there is a body of opinion that would require judicial as opposed to military or administrative legal status hearings, there is no specific agreement under international law (Chesney and Goldsmith, 2008, pp. 1089–1092).