Parisa Zangeneh is currently finishing her LL.M. at the School of Oriental and African Studies, and she completed her LL.B. at the University of Edinburgh and her B.A. at McGill University. She would like to thank those who provided assistance on previous drafts of this note.
“It is far better for an Imam to err in clemency than to err in punishment.” Ayatollah Montazeri
The victims of bloodshed, torture, and horror deserve justice, and selective justice is no remedy. The humanitarians of the world have exercised a discriminatory approach in selecting which human rights atrocities on which to focus, yet this does not provide redress to the invisible suffering of those who, for perhaps political reasons, have been overlooked. This is the case of those who suffered and died in the 1988 massacre of political prisoners in Iran, and this is why the establishment of a People’s Tribunal to address what happened to them, their families, and Iran is so important. To think that this happened in 1988, but that work is actively underway to address these atrocities only at this late stage, in 2012, highlights the need for uniform and intense scrutiny on all crimes on this scale – especially those that have been ignored by the international community.
An important consideration before the People’s Tribunal will be the international criminal implications of the 1988 political prisoner massacre. The crime of genocide will likely feature in this discussion, considering that some of those who died were atheists or agnostics, and there is an unanswered question of whether these groups fulfill the “religious group” criterion in the 1948 Genocide Convention definition of that crime. Alternatively, or perhaps concurrently, charges of war crimes and/or crimes against humanity may be easier to prove.
At the end of the Iran-Iraq war in 1988, a series of events led to the Islamic Republic of Iran’s (“the IRI”) alleged perpetration of two waves of massacres of its political prisoners, who were also nationals of the IRI. As the end of the war drew near, Ayatollah Ruhollah Khomeni issued a fatwa to kill those who had been imprisoned, some subjected to torture, and had remained there sometimes for years. Because of the nature of the events, their connection to the Iran-Iraq war’s end, and the fragile state of the IRI at that time, the IRI’s behavior served both as a reaction to the end of the war and perhaps a reaction to the July 22, 1988 invasion by the Mojahedine Khalq Organization (“MKO”), which was called “Operation Eternal Light” (Reza Afshari, Human Rights in Iran (Philadelphia: University of Pennsylvania Press, 2001), 109).
The MKO, a group of Shiite Moslems opposed to the IRI, had set up operations in Iraq prior to the war’s end, and sought to invade Iran when it was weak so as to overthrow the regime.
The first wave of executions began on 19 July, the morning after Ayatollah Khomeini accepted the UN-negotiated cease fire between Iran and Iraq (Ervand Abrahamian, Tortured Confessions Prisons and Public Recantations in Modern Iran (London: University of California Press, Ltd., 1999), 209). Three days later, the MKO launched Operation Eternal Light from Iraq. Fighting between Iran and Iraq ended on August 20th (Gary Sick, “Trial by Error: Reflections on the Iran-Iraq War”, Middle East Journal 43 (2) (1989): 203-245, 231). Simultaneously, the first “ad hoc commission” to try political prisoners was established on July 27th, and the second wave of executions began on August 27 (Afshari, 110. Abrahamian, 212).
Over the past twenty-four years, little to no mainstream international attention has been given to this occurrence. As a result, this has led to efforts by groups such as the Abdorraham Boroumand Foundation (“the Foundation”), which sponsored a report by Geoffrey Robertson entitled “The Massacre of Political Prisoners in Iran, 1988, Report of an Inquiry Conducted by Geoffrey Robertson QC”. The Foundation mandate involves “the promotion of public awareness of issues concerning democracy and human rights in Iran.” In addition, the Iran Human Rights Documentation Center, an organization that documents alleged human rights abuses in Iran, has published a report on this topic entitled “Deadly Fatwa: Iran’s 1988 Prisoner Massacre”.
These reports differ in estimating how many people died in this massacre. The “Deadly Fatwa” report cites estimates ranging from 1000 to Ayatollah Montazeri’s estimation of 2,800 to 3,800 Mojahedin supporters having died, which Robertson also cites. (“Deadly Fatwa”, 3; Robertson, 111)
As there is no serious international interest in establishing a UN-backed Tribunal or Truth and Reconciliation Commission to bring attention to this massacre, (Robertson, 1-12) there are efforts underway to bring a type of closure, to the matter, in the form of a Truth and Reconciliation Commission and, eventually, an International Tribunal established by the surviving victims and their families. This tribunal would not be an official governmental or legal institution, but those behind it hope that it would “ac[t] as a court of the people, a Tribunal of conscience, faced with injustices and violations of international law.”
It would be preferable to have a UN-backed Tribunal such as the ICTY or ICTR or a Truth Commission, as such a body would presumably have the financial, investigative, and legal resources to exercise jurisdiction over the 1988 massacre, and perhaps some of the alleged perpetrators would actually be brought to justice. However, given that there is little to no effort on the part of the international community to substantially address this atrocity, the Iran Tribunal will be an important vehicle for bringing some attention to it, which is definitely a better alternative to completely ignoring this period in Iran’s history. If the Iran Tribunal performs to the level of the Russell Tribunal on Palestine, the Iran Tribunal may produce a document of its findings that substantially addresses the factual and legal issues, though this may not be comprehensive enough. However, Christine Chinkin’s account of the Women’s International War Crimes Tribunal 2000 shows that people’s tribunals can provide an effective means to bring attention to a previously ignored atrocity, to add to the historical record, and to legally consider the implications of these alleged crimes. (Christine M. Chinkin, “Women’s International Tribunal on Japanese Military Sexual Slavery”, The American Journal of International Law 95 (2) (2001): 335-341, 339-341)
The work of this people’s court will span two stages: 1) the establishment of a Truth Commission, which had hearings from June 18-22 in London, and 2) the establishment of the Iran Tribunal. In the first stage, evidence was collected, and in the second, following the model of the Russell Tribunal established to show evidence of U.S. atrocities committed in Vietnam, the Tribunal will investigate the evidence and will write a judgment[s]. The Tribunal will begin its meetings in October or November 2012, which will either be held in Stockholm or in The Hague.
Possible Legal Considerations
Genocide is a slippery issue because the definition of the crime is very narrow. Robertson argues that the first wave of executions against the Mojahedin, resulting in the deaths of at least 4,000 people, was political in nature, but that the second wave beginning on August 26th against the leftist prisoners was religious in nature due to their so-called apostacy. In contrast, the Deadly Fatwa report categorizes these executions as crimes against humanity, due to Khomeini’s political goals, but it does not consider whether genocide was committed.
While both contain some merit, the Robertson position needs reconsideration, as there is a difference between political prisoners who were raised as atheists, those who were admittedly agnostic, and those who chose to forsake Islam or their previous religion. Regarding this question, Robertson argues that Moslems who renounced Islam formed the “‘religious group’” that satisfied the Genocide Convention legal criteria (Robertson, 65). He asks “[w]hether or not atheists should count as a “religious group” for the purposes of the [Genocide] Convention, it is clear that persons who are born in a particular faith that they later renounce can be so categorised.” (Robertson, 65)
The first question to consider is whether the Genocide Convention of 1948 allows for atheists to fall under the category of “religious group” under Article II, and the second is whether the alleged perpetrators acted with the mens rea of eliminating atheists.
Regarding the atheists/agnostic political prisoners who perished, stretching the definition of religious group to include them would require them to have some sort of homogenous or immutable religious trait. This was not, however, uniform for those who faced imprisonment and execution for their political beliefs. Therefore, under the current definition of genocide, it is conceptually difficult to argue that this group constituted a religious group as such.
Further, regarding the MKO killings, members might have been labelled “moharebs, [or] warriors against God,” (Robertson, 65) but their version of Shiite Islam was not sufficiently different from that of the IRI to constitute a separate religious group. Rather, the MKO’s version of Islam was a “radical-left”, and it was an “ideological mix of Islam and Marxism, combined with its relentless pursuit of state power” (see Mansour Farhang, “Radical Islam: The Iranian Mojahedin by Ervand Abrahamian”, Middle East Report 163 (March-April 1990): 45). Accordingly, the labeling of the MKO members as “moharebs” was likely a propaganda tool to demonize their political organization.
While there is insufficient evidence to indicate that the IRI wished to destroy apostates as a whole, if the group of apostates fits into the religious criteria, there might be sufficient evidence to prove that the individuals responsible wished to destroy the group in part. The International Criminal Tribunal for the former Yugoslavia Appeals Chamber found that the genocide could be satisfied by the intent to destroy a group in whole or in part in the Prosecutor v. Krstić (see paras 5-38; Partial Dissenting Opinion of Judge Shahabuddeen, paras 43-44, 45-54, 58). In the present case, the requirement must be satisfied by showing that the group of political prisoners met the religious group criterion by virtue of their apostasy/agnosticism. Next, it must be shown that the perpetrators wished to kill a group in whole or in part, with the part in question being political prisoners, due to their lack of religious conviction and not mainly because of their political beliefs.
Crimes against Humanity
The first crucial question to ask in examining the possibility that crimes against humanity (“CAH”) were committed is whether or not the elements of the crime at that time were met. The legality principle, nullum crimen sine lege, must be satisfied for there to be a charge under this crime, and therefore a definition of CAH must be identified that would have applied at the time the alleged offence was committed (Cassese, International Criminal Law (2008), 36-43, 106-107). As the massacre occurred before the establishment of the ad hoc tribunals in the early 1990s, it is essential to decipher the customary definition of this crime, which Stefan Kirchner examines by looking at the 1954 ILC Draft Code of Crimes against the Peace and Security of Mankind:
Offences against the peace and security of mankind, as defined in this Code, are crimes under international law, for which the responsible individuals shall be punished.
The following acts are offences against the peace and security of mankind: […] Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities.”’
This does not reflect a requirement for a direct connection/nexus between armed conflict and CAH, as required by the Nuremberg Tribunal. Antonio Cassese in International Criminal Law noted that “after 1945 the link between CAH and war was gradually dropped” (Cassese, 108). As the majority of relevant treaties were promulgated before 1988, such as the 1948 Genocide Convention and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, the nexus likely did not exist in 1988. The nexus was not present in the ad hoc tribunals’ Statutes, which were written in the early 1990s, which therefore indicates that this was customary international law at the time. Cassese also cited the Prosecutor v. Tadić, which may also have been close enough to the time frame of the massacre to provide a fairly contemporary analysis of whether the nexus requirement had truly been dropped by 1988 (Cassese, 108-109). As the 1998 Rome Statute of the International Criminal Court came ten years after the massacre, it is unclear that it provides evidence of customary law that would have applied in the late 1980s.
The main question dictating possible responsibility for war crimes, or violations of the Geneva Conventions (“GC”), is the relationship between the acts alleged to the conflict. As there was an international armed conflict (“IAC”) between Iran and Iraq that subsisted until the end of the first wave of executions, any GC protections that might extend to political prisoners would have to be related to the IAC, though this is unlikely as the political prisoners were not detained as a result of the international armed conflict between Iran and Iraq. However, there was no direct connection between the political prisoners and the Iran-Iraq war, so the likely source of GC protection would be under Common Article 3 (“CA 3”) under a non-international armed conflict regime, as many political prisoners’ detention was related to the 1988 “Operation Eternal Light” invasion (Afshari, 109). As CA 3’s scope is far more restricted than the grave breaches regime, CA3 violations do not automatically give rise to criminal responsibility; it might be more likely that a legal finding of criminal guilt could be found under another of the core crimes. However, Antonio Cassese noted that the Tadić Appeal Judgment stated that internal armed conflicts could give rise to war crimes (Cassese, 88); whether this was customary international law in 1988 is debatable.
Regarding the legal considerations that might emerge from the Iran Tribunal, perhaps the biggest idea that will emerge from this Tribunal is the idea of whether atheists/agnostics satisfy the religious group criterion of genocide. However, the main question is whether the Iran Tribunal will provide answers to questions that have plagued the survivors of the massacres, their families, the diaspora, and the people inside Iran.