Closing Submissions of Professor Payam Akhavan-Indictment

 Prosecutor of the Iran Tribunal.

The Peace Palace, The Hague, 27 October 2012


Mr. President, distinguished members of the Tribunal. My esteemed colleague Sir Geoffrey Nice has made our submissions on the factual conclusions that we believe the Tribunal should arrive at based on the Report of the Truth Commission and the testimony of witnesses at this hearing. It falls on me to make our concluding submissions on the applicable law and the legal conclusions that we ask the Tribunal to draw based on application of the facts to that law. We submit in particular, that the evidence before the Tribunal satisfies all the elements of crimes against humanity as that term is defined in international law and that such crimes are attributable to the Islamic Republic of Iran in accordance with the principles of State responsibility under international law.

The historical evolution of crimes against humanity reflects the bloody history of humankind in the modern era. It is a reflection of the need to have laws that are a common standard among all nations for judging the actions of Governments. It is a reflection of the need to protect people against abuses of power by their Governments. The fundamental purpose of Government in today’s world is to establish the rule of law and to protect human rights. Governments must be held accountable to their peoples for abuses of power. International law is a means by which to regulate the conduct of Governments. Just a short while ago, it was inconceivable to put an acting head of state on trial. A leader’s treatment of their own citizens, no matter how poor, was dismissed as an “internal” matter. Now however, no one is above the law and the mistreatment by a Government of its own citizens is considered to be a grave wrong. It is a betrayal of the loyalty of the citizen to his country and his fundamental right to be treated with justice and dignity. That seems to be the underlying issue before this Tribunal: namely, the betrayal of Iranian citizens by their own Government; the massive violation of their fundamental rights as human beings. That is why today we invoke international law to judge the Islamic Republic’s actions during the first decade following the 1357 revolution, to determine the universal and objective standard against which it should be measured, rather than the Government’s own self-serving standards that have been used to justify such atrocities.

The concept of crimes against humanity first emerged in contemporary international law in 1915 in response to the massacre of thousands of Armenians in the city of Van in Turkey and surrounding regions. On 24 May 1915, the Allied Powers declared that: “In the view of these ... crimes of Turkey against humanity and civilization ... the Allied governments announce publicly ... that they will hold personally responsible ... all members of the Ottoman Government and those of their agents who are implicated in such massacres.” Although a treaty to hand over the alleged perpetrators was concluded between the Ottoman Empire and the Allied powers, subsequent political developments resulted in the treaty provisions never being implemented.

The debate surrounding this crime re-emerged and was then formally introduced into international law following the conclusion of the Second World War. The Charter of the International Military Tribunal for the prosecution of Nazi leaders defined crimes against humanity as:

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

This definition became the basis for the current definition in international law with certain modifications. This legal concept was revolutionary in 1945 because it criminalized a State’s mistreatment of its own citizens. This was unprecedented. First, it applied to “any civilian population” without consideration to nationality. Unlike the laws of war which only protected foreign nationals, crimes against humanity extended its protection to the nationals of the same State that was responsible for massacres and persecutions. This was the case for example of German and Austrian citizens that were victims of their own Governments simply because they were Jews, gypsies, or political and intellectual dissidents. This irrelevance of nationality applies equally to abuses against Iranian citizens by the Islamic Republic of Iran. The fact that the State abuses its own citizens rather than foreign nationals in no way limits the reach of international law.

The second important element of the Nuremberg definition is that the crimes were punishable “whether or not in violation of the domestic law of the country where perpetrated.” Thus, even if Nazi laws allowed for the imprisonment, deportation, or execution of German citizens on grounds of their religious or political beliefs, that law did not become a justification for violations of international law. Indeed, the Nazi Government was highly orderly and used its laws and courts as a fundamental instrument of repression and persecution. The relevance of this example is manifest in the case of the Islamic Republic of Iran where Islamic revolutionary courts that denied elementary guarantees of a fair trial, and where Islamic laws that were vague and arbitrarily applied justified the imprisonment and execution of citizens based on their religious or political beliefs. Many were branded as “mohareb” (one who wages war against god) or “monafeqin” (religious hypocrites) or charged with “mofsed-e fel-arz” (spreading corruption on earth) at the whim of the regime. This does not in any way absolve the Government from its responsibility under international law.

In the same manner, discriminatory laws that in the name of religious belief deny the equality and humanity of Iranian citizens cannot be a justification for violating their fundamental human rights. Imprisonment and execution of these individuals, even if they were subject to fair trials which they were not, could never be deemed lawful if it is pursuant to discriminatory laws that on their own constitute persecution on religious or political grounds.

A third element is that there is no requirement of a connection between crimes against humanity and war. Following the Nuremberg Charter, the most significant development was the establishment in 1993 of the International Criminal Tribunal for the former Yugoslavia. This followed the terrible crime of “ethnic cleansing” in Bosnia which prompted the United Nations to adopt a Statute for a Tribunal that once again visited the definition of crimes against humanity. Notably, in the very first case before the Yugoslav Tribunal, the case against Dusko Tadic, which I had the privilege of contributing to, the Appeals Chamber clarified that “It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all.” Therefore, any connection  between atrocities and armed conflict is irrelevant for the purposes of finding crimes against humanity under international law. This is made clear by Article 7 of the Statute of the International Criminal Court, to which I now turn.

As set forth in our opening remarks, with a few exceptions that are largely irrelevant for present purposes, Article 7 contains a widely accepted definition of crimes against humanity. It applies to the events in Iran during the 1980s (1360s) insofar as it reflects the law as it stood at that time, based on the Nuremberg precedent. Furthermore, it applies as customary law, meaning that it applies irrespective of whether the Islamic Republic of Iran ratified a particular treaty or convention. Customary law is a widely recognized source of international law that is beyond dispute as indicated in the unanimous jurisprudence of international courts and tribunals.

As I have indicated, neither the nationality of the victims, nor the laws of the Islamic Republic that justified human rights violations, are an obstacle to a finding that crimes against humanity have been committed. So now we must consider what elements must be satisfied for such a finding. As set forth in our opening submissions, there are two main elements to this crime: first, the underlying crimes such as murder, torture, and the like must be established, and second, it must be established that those crimes were not random or isolated crimes, but rather, that they were widespread or systematic. In other words, the prosecution must establish the multiple commission of serious human rights violations committed pursuant to or in furtherance of State policy.

With respect to the underlying crimes, the most important in this case with regard to the mass-executions is the category of “murder” under Article 7, paragraph (1), subparagraph (a), of the Court’s Statute.

This crime must be interpreted in light of the “right to life” under Article 6 of the International Covenant on Civil and Political Rights which Iran ratified on 24 June 1975. First, paragraph 1 provides that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Thus, any arbitrary execution constitutes a violation of the right to life. Clearly, death resulting from torture would also qualify as an arbitrary deprivation of life.

Many nations have abolished the death penalty, for reasons ranging from moral grounds to questions about its efficacy as a deterrent to crime. While under international law the death penalty is still permitted, it is only allowed in very limited circumstances and its implementation is subject to strict safeguards. Accordingly, paragraph 2 of Article 6 of the ICCPR provides that: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes ... This penalty can only be carried out pursuant to a final judgement rendered by a competent court.”

Thus, while the sentence of death may be imposed, for example, for the crime of murder, it can never be imposed for less serious crimes. This includes in particular crimes that are based on the political or religious beliefs of an accused person, or the criminalization of lawful activities such as freedom of expression through manifesting one’s political or religious beliefs. Furthermore, the sentence of death must be rendered by a “competent court”. Article 14, paragraph 1, of the ICCPR provides that: “In the determination of any criminal charge against him ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

It is our submission that the facts clearly indicate that the Islamic courts flagrantly violated this requirement. Islamic courts disregarded elementary principles of fair trials. Accused persons were denied the opportunity to defend themselves and the courts were blatantly biased against them. In many instances, a short interrogation by a hostile court was qualified as a “trial”. And the “crimes” that people were sentenced to death for were vague political offences such as “moharebeh”, being a “monafeq” or “mofsed-e fel-arz”. Thus, any death sentence for political or religious crimes, and any death sentence rendered by these biased and arbitrary courts, would be manifestly in violation of international law.

A third and highly important qualification is paragraph 5 of Article 6 of the ICCPR which provides that: “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age”. There is evidence in numerous cases that those below the age of eighteen were executed in Iran’s prisons in the 1980s (1360s). The report of the Truth Commission included testimony that children the age of 14 were arrested and executed the same day in June 1981 (W31) and that when parents objected to the execution of their children, they were told that if their children were innocent, then they would go to paradise anyway (W56). Such executions are unlawful in all circumstances.

Another crime that is relevant is torture under paragraph (1)(f) of Article 7 of the Court’s Statute. It is defined as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused”. Thus, torture can be both physical and mental. International jurisprudence indicates that it clearly includes severe beatings, prolonged suspension, denial of medical treatment, mock executions, simulation of live burials, prolonged solitary confinement, threats of harm to family members, the presence of children while parents are being tortured and other grave offences—all of which have been presented to you in these proceedings. The report of the Truth Commission included particularly horrifying testimony, such as a survivor who recalled that he was lashed multiple times with a cable that twisted  around his neck and caused him to pass out and be taken for dead—and when he regained consciousness he found himself between two corpses (W5). Another survivor before these proceedings recounted being blindfolded and subjected to a mock execution with blank rounds (W12). There is also testimony from a witness who, alongside his cellmates, was tied to trees in the prison yard and heard live shots fired—while he was spared the cellmates next to him were killed (W24). Once again, the evidence indicates that all of these practices were prevalent in the Iranian prisons during the 1980s.

Another category of crimes are those under paragraph 1(g) of Article 7 which includes rape and other forms of sexual violence of comparable gravity. Rape has been defined in international law as:

“The sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances” (Kunarac trial judgment, para. 460)

It can thus include the use of physical objects. Sexual violence, against both men and women, is a crime that too often goes unaddressed. We thus feel it is important that it be properly considered by this Tribunal.

Another relevant crime under paragraph 1(e) of Article 7 is “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law”. This clearly encompasses imprisonment without a fair trial or imprisonment on grounds of political or religious beliefs. We have heard testimony from survivors whose only crime was to believe in a different political philosophy or worship a different God than the government. These political prisoners and prisoners of conscience were held in violation of fundamental rules of international law.

Another highly important category of crime paragraph 1(h) of Article 7 is the crime of “persecution” against “any identifiable group or collectivity on political ... [or] ... religious grounds”. Article 7, paragraph (2), sub-paragraph (g) of the Court’s Statute clarifies that “persecution” means “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. Thus, where Iranian citizens were imprisoned and subject to abuse and executions based on their political or religious beliefs, this amounts to the crime of persecution. Thus, the discriminatory aspect of such crimes imposes an additional liability beyond human rights violations such as murder or torture. There is clear evidence in the record that many victims were imprisoned and subject to abuse solely because of their political views. This included allegiance to various communist, socialist, or Islamic Marxist ideologies. As the evidence demonstrates, others were singled out because they belonged to “suspect” religious groups. The evidence before you indicates that this included, but was not limited to, Kurdish and Arab citizens of Iran. And what is perhaps the most classical expression of persecution is the targeting of Iranian citizens who were Baha’is, solely because their religion was deemed by the Islamic Republic to be a “heresy” or “wayward sect” according to the fanatical and hateful ideology of the Government. In all instances, beliefs or identities became an excuse to place citizens beyond the protection of the law. This is a crime of persecution, no different than the Nazi policy of declaring certain German citizens “racially inferior” and justifying abuses against them. The difference here is that the Islamic Republic would deem its citizens “religiously inferior” or defective or wayward. The expression “Islam or Edam” (Islam or Execution), the choice given to all manner of prisoners to either embrace the Islamic Republic’s ideology or be executed, is the clearest evidence that this policy is a crime against humanity as that term is defined in international law.

Turning now to the final and most important element of crimes against humanity, we must establish that these crimes of murder, torture, rape, unlawful imprisonment and persecution, were committed in a particular context. The Judgment in the Tadic Case explained that crimes against humanity are not merely “random or isolated” crimes; they are “widespread or systematic”. The ICTY Trial Chamber in the Tadic case found that although the definition of crimes against humanity had “been the subject of considerable debate” it was now “well established” that these acts could “occur on either a widespread basis or in a systematic manner” and that either one would be “sufficient to exclude isolated or random acts”. (Tadic trial judgment, para. 646). The Yugoslav Tribunal has determined that ‘widespread’ refers to the large-scale nature of the attack and the number of targeted persons, while the phrase ‘systematic’ refers to “the organized nature of the acts of violence and the improbability of their random occurrence” (Kordic & Cerkez Appeals Judgment, para. 94). There is no formal requirement of State policy though in the Kupreskic Case it was held that although a policy of crimes against humanity need not be explicitly formulated, nor be the policy of a State, these atrocities must at least be “tolerated” by a State, Government or entity (Kupreskic trial judgment, paras 551 & 552) It is this element that elevates ordinary human rights abuses to the scale and gravity of crimes against humanity. It is clear that not every human rights violation constitutes such a serious international crime.

Thus, consistent with this jurisprudence, Article 7(1) of the Court’s Statute clarifies that violations are crimes against humanity only when “committed as part of a widespread or systematic attack directed against any civilian population”. And paragraph (2), sub-paragraph (a) clarifies that this contextual requirement means “a course of conduct involving the multiple commission of acts ... against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”. Some have argued that, in this respect, Article 7’s requirement of State policy may be even more exacting and restrictive than customary law which as just mentioned does not require formal State policy. But either way, the evidence before the Tribunal establishes beyond any doubt that the massive violations of human rights violations were clearly the policy of the Islamic Republic rather than random or isolated acts, and that with respect to the 1988 mass-executions, the order or fatwa came directly from the Supreme Leader, Ayatollah Khomeini.

A few remarks are required before our final submissions to the Tribunal. First, the mandate of this Tribunal is to establish State responsibility of the Islamic Republic of Iran for crimes against humanity. Its mandate is not to establish individual criminal liability and we have accordingly refrained from requesting a judgment against particular individuals. That is why, as I explained in our opening submission, no particular defendant is on trial. That shall have to await another opportunity in the future. The significance is that the evidentiary standard, the burden of proof, is not proof beyond a reasonable doubt. Rather, the burden of proof is for the prosecution to prove its case on a balance of probabilities that crimes against humanity were committed. We submit that the evidence is more than adequate to establish our case based on this standard.

Second, in finding the Islamic Republic responsible for crimes against humanity, we refer to Article 2 of the International Law Commission’s Articles on State Responsibility, which are widely considered as a reflection of customary international law. Article 2 provides that the two elements of an internationally wrongful act of a State are as follows:

There is an internationally wrongful act of a State

when conduct consisting of an action or omission:

(a) is attributable to the State under international

law; and

(b) constitutes a breach of an international obligation

of the State.

Again, there is no doubt whatsoever that the widespread and systematic instances of murder, torture, rape, unlawful imprisonment, and persecution on political and religious grounds, are attributable to officials and organs of the Islamic Republic of Iran including the Supreme Leader Ayatollah Khomeini, and that such acts constitute a breach of Iran’s obligations under international law.

With this standard of State responsibility in mind, I wish to make our final submission to the Tribunal. But first I wish to make a concluding remark about the remarkable and historic process which we have all participated in over the last three days. As I set forth in our opening statement, although this Tribunal’s judgment is of great historical importance and consequence for both the Iranian people and the international community, this is just a first step in achieving justice. Close to a hundred witnesses have participated in these proceedings, and that is significant, but there are many more that can be engaged with additional resources. For each witness that testified, many others who were equally deserving could not because of our resource limitations. We sincerely apologize to them and their families and hope that they understand the limitations under which we are operating. It will be for a future Truth Commission in a democratic Iran to provide a much wider forum for healing and accountability. Second, given the limitations that we are operating under, we have necessarily limited our case to the events between Khordad 1361 and 1367. We are not suggesting in any way that serious human rights violations were not committed either before or after this period. The tragic events of recent times clearly demonstrate that such crimes are an on-going concern. But we do feel that there is a continuum between impunity for these past crimes and the crimes of the present. And all that we have attempted to do is to at least address one particularly bloody episode of the Islamic Republic’s reign of terror. In short, it is our hope that the Tribunal’s judgment will be the beginning rather than the end of a long-awaited process of exposing the truth in an objective and credible manner and thus opening a space for accountability that will lead to a more complete justice than what we are able to achieve here today.

Before making our final submissions therefore, I wish to take this opportunity to express our profound gratitude to you Mr. President and to the distinguished members of the Tribunal for having generously volunteered their time to contribute to this historic undertaking. It is most unfortunate that the Islamic Republic of Iran declined the opportunity to present its defence but we trust that your tremendous reputation for impartiality as renowned jurists will ensure that whatever judgment is delivered will be beyond reproach. I wish to also thank the members of the prosecution team, Mr. Cooper, Mr. Nice, Ms. Hormachea, Ms. Shahriari, Ms. Nia, and Mr. Shahrooz, and to Mr. Emad and Mr. Sabi for their indispensable support role. All have worked as volunteers with exceptional commitment and diligence to put this case together and I am indebted to all of them. But most of all, I wish to pay tribute to the long-suffering families of the victims and the survivors of these terrible crimes without whose initiative, determination and sacrifice we would not be standing here today. I wish in particular to pay respect to the Mothers of Khavaran, the Mothers of Laleh Park and the mourning mothers everywhere whose determination to achieve justice is an inspiration for us all. It is on their behalf that the prosecution team has spoken and we sincerely hope that we have been able to meet their expectations and at least to achieve a small measure of justice for the terrible wrongs they have suffered.

Mr. President, distinguished members of the Tribunal, I shall now read our final submission:

The Prosecution requests this honourable Tribunal to adjudge and declare that between  1981 and 1988, the Islamic Republic of Iran, through its official organs and agents, committed widespread and systematic violations of the fundamental human rights of tens of thousands of its citizens, that such violations were committed pursuant to or in furtherance of the State policy of the Islamic Republic of Iran, and consequently that the Islamic Republic of Iran bears responsibility under international law for the commission of crimes against humanity.