|In the case of the MeK, this would have been an awkward approach because the United States had declared it to be a subsidiary of Saddam Hussein’s military during OIF and had applied the conventions to MeK members on an interim basis...|
From the beginning, the designation was problematic from both legal and policy perspectives. Legally, if it is indeed true that the MeK engaged coalition forces in combat, the MeK’s members would likely have qualified for combatant status as members of a militia or volunteer corps forming part of the Iraqi armed forces and, having been captured, would therefore have been EPWs.1
“Should any doubt arise” as to whether MeK members qualified for combatant status, the Third Geneva Convention requires that each individual’s status be determined by a competent tribunal.2 Although no prosecutions have been brought against them, the decision—without tribunal review— stripped the MeK of immunity from prosecution for legal acts of war.
However, the Bush administration’s policy was that foreign terrorists who were in Iraq illegally were not protected by the Geneva Conventions. Instead, they were to be detained according to the administration’s controversial “unlawful” or “illegal” combatant policy.3
In the case of the MeK, this would have been an awkward approach because the United States had declared it to be a subsidiary of Saddam Hussein’s military during OIF and had applied the conventions to MeK members on an interim basis. In addition, to the extent that coalition /forces might decide to detain MeK members as “unlawful” or “illegal” combatants, President Bush’s military order of November 13, 2001, would limit the coalition’s flexibility because it authorized detainment only for specific individuals who “engaged in, aided or abetted, or conspired to commit” terrorist acts “that have caused, threaten to cause, or aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy.”4
The ICRC, the UNHCR, and DOS all urged DoD not to make a legal designation without tribunal review. They noted that, procedurally, each MeK member was due Article 5 tribunal review. They also noted that civilian status would have been legally correct only for individual MeK members whom the tribunal decided had remained neutral, committed no belligerent acts, and had not carried arms openly against the coalition.5
Despite text in Secretary Rumsfeld’s memorandum specifically limiting protected-persons status to members of the MeK who qualified under Article 4 of the Fourth Geneva Convention, the memorandum did not require the MeK Review Board to make these decisions on an individual basis, and there was no subsequent action to determine any individual MeK member’s status. In addition, the ICRC noted that, due to UNSCR 1546, the conflict in Iraq would no longer be a war between states; hence, the Geneva Conventions would no longer apply (except for Article 3, common to all four conventions).6
It argued that Common Article 3 and customary international humanitarian law govern noninternational conflicts; hence, continuing to apply the Geneva Conventions to the MeK would be legally incorrect.7
However, because the Bush administration was wary of customary law because it is not treaty-based,8 the UN Security Council’s grant of authority to MNF-I to detain individuals—if necessary for imperative reasons of security—was modeled on the Fourth Convention’s rules for interning civilians during an occupation.9
1. Geneva Convention III, Article 4(A) (2).
2. Geneva Convention III, Article 5.
3. Frieden, 2004.
4. Bush, 2001, § 2(a)(1)(ii).
5. Geneva Convention III, Article 4(A)(2). Even today, the prevailing belief among many U.S. military officers and civilian officials is that the MeK never engaged coalition forces in combat. If that belief is correct and the official histories are not, then no members of the MeK could have been classified as combatants. See also Headquarters, U.S. Department of the Army, 2001, para. 4-33.
6. ICRC, 2004. There is no scholarly consensus as to whether a legal proclamation, such as a UN Security Council Resolution, can end an occupation or whether occupations only end when full power is returned to the local government (Roberts, 2005). Despite a binding opinion by the DOJ Office of Legal Counsel, in the view of DoD, hostilities had not yet ended; therefore, an occupation had not even begun (interview with a DOS attorney, February 2008; Goldsmith, 2004).
7. ICRC, 2004.
8. See, e.g., Chertoff, 2009.
9. UNSCR 1546, 2004, and CPA Memorandum No. 3 (revised), 2004, section 1(1) (d), which would continue to be the law of Iraq after the dissolution of the CPA per CPA Order No. 100, 2004.