Legal Opinion on the Legal Status under International Law of the Members of the People’s Mojahedins Organization of Iran Presently in the Territory of Iraq
By M. Cherif Bassiouni Professor of Law, President, International Human Rights Law Institute, DePaul University College of Law; Honorary President, Association International de Droit Pénal; President, International Institute of Higher Studies in Criminal Sciences September 29, 2003 …
The People’s Mojahedins Organization of Iran (PMOI, hereby referred to as the “Mojahedins”), were founded in 1965 with the aim of overthrowing the dictatorial regime of the Shah. In 1979, the organization joined forces with the followers of Ayatollah Khomeini in the revolution and the setting up of a new government. Few years later, the Regime of the Mullahs began a campaign of retaliation against the Mojahedins which led to the mass arbitrary arrest of some 100’000 of them and the execution of another 40’000. At that time, the Mojahedins fled to exile, mostly in Europe. Eventually, in 1986, they established military bases in Iraq. Their stated goal is to overthrow the regime of the Mullahs in Iran. The National Liberation Army of Iran was formed in June 1987 in the camps of Iraq and used this base to conduct hundreds of military operations against the Iranian Army. When the Gulf War broke out (1990-1991), the Mojahedins were not involved and did not take part in any military activity for either side. Before the breaking of the most recent armed conflict (2003), the Mojahedins declared that they would remain neutral and would stay in their camps. During and after the conduct of the hostilities between the members of the Coalition and the Iraqi army, the United States reassembled the Mojahedins in the Ashraf camp in Iraq. They were also decommissioned.
The purpose of this legal opinion is to clarify the legal status of the members of the Mojahedins, which are presently in the territory of Iraq. For the Geneva Convention (IV) official Commentary the necessity of the determination of legal status of individuals in time of an armed conflict or in time of occupation is a “general principle” of law embodied in all four 1949 Geneva Conventions:
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ' There is no ' intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution -- not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.
One of the cornerstone principles of the laws of war is the cardinal distinction between combatants and civilians. This legal opinion argues that the Mojahedins should not be regarded as combatants, but as civilians. It further states that the United States (as the Occupying Power) should implement the relevant protection offered by the Geneva Conventions to the Mojahedins.
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