Aida Samani
On November 9, 2019, an Iranian national arrived in Sweden and was arrested by local authorities for his suspected involvement in the mass execution of political prisoners in Iran during the summer of 1988. The arrest has the potential to become the first step towards accountability for an event that is often described as one of the darkest chapters in the history of the forty-one-year-old Islamic Republic.
Between July and September 1988, thousands of political prisoners from different political affiliations were executed over the course of a few weeks. Many of the prisoners had already undergone trials and been sentenced to prison. Following a fatwa issued by the founder of the Islamic Republic, Ayatollah Ruhollah Khomeini, in July of 1988, which ordered the execution of political prisoners, they were brought before so called “death commissions” for questioning. When not providing satisfactory answers, they would be sent for execution and later buried in anonymous mass graves.
The Iranian national, Hamid Noury, is suspected of war crimes due to his alleged contribution to the mass executions that took place in Gohardasht Prison in the outskirts of Karaj, some 20 kilometers west of Tehran. He has now been detained in Sweden for more than a year and the trial against him is expected to begin this year.
The summer of 1988 is not the first nor the last time that the Islamic Republic has engaged in grave human rights violations against dissidents. Yet, this particular event has left deep scars on those who lost their loved ones and has sparked attempts to achieve accountability. Iranian authorities have been reluctant to initiate investigations into the executions. Instead, several individuals who were directly involved in carrying them out currently hold positions of power, while families who lost their next of kin are persecuted for demanding to learn about their fate. Although a number of United Nations experts recently urged the Islamic Republic to initiate investigations into the 1988 massacre, the events and the fate of the families of those that perished have sparked little international attention. Therefore, the prospect of justice has been bleak.
The judicial proceedings against Noury open a previously overlooked avenue to justice for victims of grave human rights violations in Iran—namely, that of national prosecution in domestic courts outside of Iran through the use of universal jurisdiction. Several ongoing trials against Syrian nationals accused of war crimes and crimes against humanity in courts across Europe have shown that judicial proceedings in foreign domestic courts are a useful tool in the pursuit of justice when all other routes are blocked.
Many states have adopted universal jurisdiction into their national legislations, enabling them to investigate and prosecute crimes regardless of where, by, and against whom they have been perpetrated. While some states have imposed legal limitations on their exercise of universal jurisdiction, Swedish authorities exercise pure universal jurisdiction over core international crimes such as war crimes, crimes against humanity, and genocide.
Several European states, including Sweden, have launched so called structural investigations into crimes committed by Syrian regime representatives and by the Islamic State of Iraq and al-Sham (ISIS) in Syria and Iraq. Through structural investigations, the authorities collect evidence, including witness and victim testimonies, that can later result in person-specific investigations into the actions of identified perpetrators. Swedish authorities also work closely with their German counterparts and exchange information when necessary, while France and Germany have taken their collaboration a step further through the development of a so-called Joint Investigation Team. The states also meet and communicate regularly through Eurojust, which collects national judicial bodies within the EU to strengthen their cooperation on fighting transnational crimes.
There are no ongoing structural investigations in any European state into core international crimes committed in Iran. Additionally, the upcoming trial against Noury serves as the first-ever trial against an individual for core international crimes committed by representatives of the Islamic Republic. The trial sends an important signal that the horrors of the summer of 1988 have not been forgotten and that those that enabled them will not enjoy impunity.
Prosecuting cases of core international crimes without access to the crime scene is not easy, nor does the prosecution of crimes committed in a foreign state serve as a perfect model of how justice should be served. The international structure for individual criminal accountability for core international crimes is based on the principle of complementarity; international courts will only investigate and prosecute serious international crimes when national jurisdictions are unable or unwilling to do so. Ideally, judicial proceedings concerning such crimes should be conducted in the national jurisdiction where the crimes were committed.
Not only is this a matter of protecting the sovereignty of states, but also of providing an opportunity for those affected by the crimes to be included in and to follow the proceedings. However, when the state where the crimes were committed is not able or willing to conduct judicial proceedings, the responsibility of other nation states is triggered. Universal jurisdiction proceedings may also pose specific challenges due to limitations under domestic law.
While war crimes have been criminalized under Swedish law for decades, crimes against humanity were only criminalized as a stand-alone crime through the adoption of a new law in 2014. Hence, all crimes committed prior to 2014, which could be prosecuted today as crimes against humanity, will instead be prosecuted as individual crimes, such as murder, rape, or particularly aggravated assault.
While Swedish law grants Swedish courts universal jurisdiction over those crimes, the statutory time limit for those crimes creates particular challenges in judicial proceedings about crimes perpetrated decades ago.
This means that, while murder may never be subject to statutory limitation, acts of grave and systemic torture may only be prosecuted fifteen years after the perpetration of the crime. Thus, many victims of torture in Iranian prisons during the 1980s may not be able to enjoy status as plaintiffs in a Swedish court unless the crime can be classified as a war crime.
Limited resources for national prosecution authorities may also prompt prosecutors to excessively limit the indictment’s temporal and locational scope, thereby excluding victims from accessing justice if their claims fall outside said scope. As a measure of last resort, and despite their many challenges, domestic proceedings conducted through universal jurisdiction enable historic justice for crimes that have haunted families for decades. The upcoming trial against Noury may very well be the first of many more cases to come across European jurisdictions.
The trial may also inspire civil society organizations and national prosecution authorities to investigate more recent crimes by the Islamic Republic of Iran. Unfortunately, the 1980s did not mark the end to atrocities against political dissidents and human rights defenders in Iran. As recently as 2019, thousands were arbitrarily detained and tortured following nationwide protests against the government. Paired with establishing an international investigation mechanism, strengthened judicial cooperation between states, and well-resourced national prosecution authorities, universal jurisdiction proceedings may help prevent another forty-one years of total impunity for perpetrators of grave human rights violations in Iran while granting redress for those affected by the violations.
Aida Samani is an international human rights lawyer, a legal advisor at Civil Rights Defenders and a board member of the Swedish Network of Refugee Support Groups (FARR). Follow her on Twitter: @aidasamani.
