|According to our discussions with TF-134 and DOS staff attorneys, it appears that the civilian status determination was made to protect the MeK from deportation to Iran and to relieve coalition forces of the responsibilities incurred in detaining EPWs. With regard to deportation, the status determination did not matter.|
According to our discussions with TF-134 and DOS staff attorneys, it appears that the civilian status determination was made to protect the MeK from deportation to Iran and to relieve coalition forces of the responsibilities incurred in detaining EPWs. With regard to deportation, the status determination did not matter. Although the Third Geneva Convention requires that POWs be “released and repatriated without delay after the cessation of active hostilities” (Article 118), its official commentary notes that POWs are protected from forced transfer to a country where “the dangers involved for the person concerned seems [sic] manifestly unjust and grave.”1
The Fourth Convention pro-vides similar protections, forbidding forcible transfer of any individual “to a country where he or she may have reason to fear persecution for his or her political or religious beliefs,” and each individual continues to be protected by the convention until such time as his or her disposition is finalized (Articles 6 and 45).2
In terms of detention, the impact of the legal status determination on the MeK’s particular circumstances was unclear because it is not evident that MNF-I determined whether it was still detaining them after the MeK Review Board classified nearly all residents of Camp Ashraf as release-eligible. As discussed in Chapter Four, MNF-I has never taken control of Camp Ashraf. The May 10, 2003, cease-fire agreement consolidated MeK members at Camp Ashraf, which was a form of assigned residence, albeit one agreed to by the group’s leaders.
The Third Convention allows internment or lesser forms of detention for POWs during wartime. The Fourth Convention, on the other hand, allows assigned residence or internment of civilians in occupied areas only as an exceptional measure performed on a case-by-case basis when an individual presents an acute security threat that can be mitigated only by placing that person in internment or assigned residence: The decision to detain shall be made “according to a regular procedure,” be subject to appeal, and reviewed periodically, “if possible every six months.”3
The rules for detainment after the transfer of power paralleled the Fourth Convention’s rules.4 Despite these rules, MeK members have been kept in what is essentially an assigned residence after the MeK Review Board found almost all of them to be release-eligible rather than security threats. No coalition body ever revisited the question of whether security reasons mandated continued assigned residence for MeK members.5
Secretary Rumsfeld’s decision has had long-term policy costs. First, it shifted responsibility for the MeK squarely to DoD rather than allowing it to remain a shared obligation among the DoD, DOS, ICRC, and UNHCR. Second, because the decision came from the U.S. Secretary of Defense rather than from the MeK Review Board, it was widely viewed as an expression of support for the MeK, particularly since the term protected persons is widely misconstrued to denote an exceptional, special status. The MeK falsely promoted—and may have falsely interpreted—the decision as support for its assertion that the group was innocent of, or immune to, all accusations of terrorism or violence.6
The coalition never invested public-relations energy into overcoming this impression.7 Combined with the coalition’s failure to treat the MeK as a terrorist organization at Camp Ashraf, this action exposed the United States to accusations of hypocrisy in its fight against terrorism.
1- Pictet, 1960, p. 548.
2- The issue of forcible transfer is discussed in more detail in Chapter Three.
3- Geneva Convention IV, Article 78. By comparison, Geneva Convention III, Article 21,
simply states that the “[t]he Detaining Power may subject prisoners of war to internment.”
4- CPA Memorandum No. 3 (revised), 2004.
5- Failure to provide this regular review is a grave breach of the convention that should be
prosecuted according to Article 147, but here, assigned residence was voluntarily accepted by
the group’s leadership. It is not evident that MNF-I should have granted the cultic leadershipof the MeK the power to deny its members their rights to freedom of movement under the
6- To the contrary, by virtue of being designated as civilians, any MeK members who hadcommitted acts of war against the coalition could be prosecuted. POWs are immune from prosecution for legal acts of war (but not war crimes). Of course, no such prosecutions have
yet been conducted.
7- See, for example, M. Rubin, 2006. Some U.S. officials attempted without much effect
to counter perceptions that protected-persons status confers a pardon on the MeK. For
instance, a DOS spokesperson stated that classifying the MeK “as protected persons . . . does
not in any way attenuate our actions . . . holding these people to account for activities that
they committed as MeK members that were terrorist in nature” (Ereli, 2004).