Refugee status was suggested, but the Office of the United Nations High Commissioner for Refugees (UNHCR) would not consider such applications from current or former MeK members because their legal status had not yet been formally resolved.
The MeK as Protected Persons
As the official Special Forces history of OIF notes, when “legal issues relating to the status of enemy POWs and the application of the laws of armed conflict in relation to non-state terrorists required clarification.
. . . These questions [often] found their way back to the Department of Defense for resolution.”34 The MeK issue was one such example. But as the June 2004 transfer of power from the CPA to the IIG approached, no status decisions had been made.
U.S. and coalition officials feared that the IIG would forcibly deport the MeK to Iran and that such an effort would lead to violence at Camp Ashraf.
The UNHCR and the International Committee of the Red Cross (ICRC) were willing to offer their assistance in helping to move MeK members out of Iraq, but they were unwilling to start work until the MeK’s legal status was resolved.
In addition, the United Nations Security Council declared that the coalition’s occupation of Iraq would terminate as a matter of law upon the transfer of power at the end of June, which would have the effect of ending the application of most provisions of the Geneva Conventions.35
Given this time pressure, on June 25, U.S. Secretary of Defense Donald Rumsfeld designated the MeK as civilians protected by the Fourth Geneva Convention, which protects civilians in times of war.36 His memorandum noted that the decision was intended to facilitate collaboration with the UNHCR and the ICRC.
34. Briscoe et al., 2006, p. 235.
35. Preamble to U.N. Security Council Resolution (UNSCR) 1546, 2004.
36. Geneva Convention IV. Civilians protected by the convention are known as protected persons. This term often causes confusion. Most civilians in a theater of operations or occupied territory are protected persons (Pictet, 1958).
However, civilians who are citizens of an occupying power are not, though they do receive several basic protections. Accordingly, all Iraqi citizens who were not also citizens of coalition countries were automatically protected persons.