The trial of Hamid Noury on charges of participating in the massacre of political prisoners in the summer of 1988, by a court in Sweden, has significant importance for Iran and people of Iran who had been facing injustice for decades.
These proceedings must have cost millions of Crowns for Sweden and has created a heavy burden for the Swedish judiciary. The trial has taken months to complete and required extensive and detailed planning.
For the first time, the massacre of the political prisoners in Iran in the summer of 1988, is recognised and investigated by another country. Sweden is the first country to officially recognise this massacre.
Twelve years after the trial of the Islamic Republic of Iran before Iran Tribunal (a people’s tribunal), Sweden has brought the massacre of political prisoners in 1980s to the fore. The trial of Noury has received extensive coverage by the Persian language and Swedish media. The trial of Hamid Noury once again brought the killing of political prisoners to the forefront of public attention and explored what happened to political prisoners and the families of the victims in the 1980s,
On 9th November 2019 and by the warrant of arrest issued by Karolina Wieslander, the Swedish prosecutor for organised international crimes, Hamid Noury was arrested at Arlanda International Airport of Stockholm. The warrant of arrest was issued the day before on 8th November 2019and in his absence, charging Noury with the breach of international law (war crimes), grave crime and murder.
The purpose of this article is to analyse the concept of war crimes and the legal classifications of the massacre of the political prisoners under the international law. This article also argues that the choice of war crimes may not have been appropriate for the crimes alleged to have been committed by Noury.
In the indictment of Noury, published on 27th July 2021, the Prosecutor has charged Noury with 3 heads of crime: “War Crimes”, “grave crime”, and “Murder”.
The Prosecutor explained that war crimes are considered under the Swedish law as well as international law, amongst the most serious crimes. The seriousness of these crimes, she explained, regardless of when and where are committed, the district courts are able and obliged to investigate them. She added that based on these principles and due to international obligations and the principle of universal jurisdictions, Sweden will investigate Hamid Noury’s charges.
Hamid Noury is also accused of murder of prisoners who were affiliated to the leftist political groupings, who were also considered as criminal by the Islamic Republic of Iran.
The Prosecutor further added the executions of these groups are not classified as related to the conflict between Mujahedin and Iran but classified as “Murder” under Swedish law.
WAR CRIMES
In the first paragraph of the indictment, it is mentioned that the conflict between MKO and Islamic Republic of Iran (IRI) is part of the Iran-Iraq war that commenced in September of 1980 and continued until August 1988. That is how MKO are involved in an international armed conflict. Mujahedin’s attack was initiated from Iraqi territory and received support and cooperation of the Iraqi army.
Additionally, in addition for the conflict to be considered as an international armed conflict, it can also be classed as “non-international armed conflict” between IRI and MKO.
It is correct that the Iraqi Government provided MKO with refuge inside Iraqi territory and supplied them with arms and other facilities; however, this support does not change the nature of the conflict from a “non-international” to an “international” armed conflict. The Iraqi Government did not engage any part of its forces in the conflict between MKO and IRI (named “Eternal Light”) in the summer of 1988. MKO was never listed as part of the Iraqi military or attached to any part of the Iraqi Government.
There can be no doubt that without the knowledge and permission of the Iraqi Government, MKO could not attack and engage with the IRI forces. None the less, this fact cannot change the nature of the conflict between MKO and IRI. The incursion was initiated from the Iraqi territory, and it follows that it must have been with the knowledge and sanction of the Government. The Eternal Light Operation was not a joint operation by the Iraqi and MKO forces against IRI, forming part of Iran-Iraq conflict. There is no evidence proving the contrary.
In Bemba case the Trial Chamber of the International Criminal Court (ICC) held that: “The Chamber considers that an armed conflict not of an international character, but involving the governmental authorities of one state, may become internationalised owing to a second state’s participation on an opposing side of the conflict. In this regard, the Chamber notes that Trial Chambers I and II found that an armed conflict may be considered internationalised when it is established that armed groups are acting on behalf of a foreign government.”[1]
The Court’s analysis has focused on the question of whether the rebels under the command of General Bozize, or any other affiliated groups were acting at the behest of a foreign government. The Court concludes: “There is no evidence that the Chadian Government had any role in organizing, coordinating or planning the military actions of General Bozize’ rebels.”[2]
Similarly, the MKO operation may have been considered as international conflict if the Government of Iraq have had agreed that MKO would have used their bases inside Iraq for attack on the IRI.
MKO camps in Iraq were not bases for waging war against Iran. When MKO members were deported from France in 1986, they transferred their principal center of activities to Iraq. A year later, in June 1987, they established the “Liberation Army” in their base in Iraq. After the establishment of the Liberation Army, MKO carried out three operations against IRI, the Eternal Light being the largest. From the date that the Iraqi Government signed the UN imposed peace resolution with the IRI, until the date that they were disarmed by the American forces in 2003, MKO did not undertake any further operations against the IRI.
It may be argued that even if there was no conflict between MKO and the IRI, there was no peace between them either. “Peace” in the sense that there was no peace accord between them. This argument is principally a political rather than legal argument. Under the rules of conflict, a group of crimes, connected to war, are classified as war crimes; such as taking as hostage soldiers, personnel, health workers, and non-military persons and or executing all or some of them after the conclusion of the hostilities. Thus, the members of MKO, who had been in prison for many years, cannot be considered as prisoners of war or hostages taken during the hostilities.
Further, what is the basis for the detention of the leftist and communist prisoners by the IRI? The organisations they supported were not at war with the IRI. The Prosecutor of Hamid Noury proffers no reason for the execution of these prisoners in the indictment. She only submits that the IRI, after executing MKO prisoners decided to execute the prisoners who were followers of the leftist organisations, because the IRI considered them to be “guilty”. The Prosecutor does not explain why the IRI, without any reason, suddenly decides to execute these prisoners or what, the IRI considered to be their “guilt”.
The indictment of Hamid Noury has charged him with two heads of war crimes in his position as the Assistant Prosecutor (or similar role) in the Gohardasht prison:
- Direct participation in the issuance and enforcement of the execution verdicts of a court-like commission (committee) that had a mandate under the Khomeini fatwa following a procedure that did not meet the basic requirements of a fair trial under international humanitarian law. Further, by calling on and ordering other perpetrators to participate in the executions by assisting him and other high-ranking officials in the executions of the prisoners.
- Direct participation in psychological torture of the prisoners by inflicting severe death anxiety on the prisoners, which is to be judged as torture and inhuman treatment by taking the prisoners to the committee and/or bringing them to the so-called death corridor pending their admission to the committee and / or awaiting the committee’s decision and if necessary, take them to the execution site and take preparatory measures prior to execution. Further, by calling on and ordering other perpetrators to participate in the torture and other inhuman treatments of the prisoners.
The Prosecutor has requested the Court to consider the commission of the above acts, primarily as part or in connection with an international armed conflict between Iran and Iraq and convict Hamid Noury for infringement of Article 147 of the Geneva Convention IV in conjunction with Article 75 and Article 85 through the said acts, which are directed at civilians enjoying special protection under the Geneva Convention IV or generally accepted principles of international humanitarian law.
In the alternative, the Prosecutor has alleged that the acts were committed as part of or otherwise related to a non-international armed conflict between Iran and the Mujahedin. Hamid Noury has thus, through the said acts, committed a serious violation of the common Article 3 of the Geneva Convention IV and of generally accepted principles relating to international humanitarian law.
The indictment relies on the various heads of war crimes. However, the Prosecutor has also added “Murder” to the charges levelled against Hamid Noury. In case the Court is not able to establish the nexus between the criminal acts committed and the international or non-international armed conflict, the Prosecutor pleads for the conviction of Noury based on the evidence of widespread illegal executions.
Under the common Article 3 of the Geneva Convention, the criminal responsibility relating of a non-international armed conflict is the same as the criminal responsibility for the international armed conflict.
Under Swedish law, “War Crimes” carry a sentence of six years. In the new Act that came into the force from January 2022, the “War Crimes” are divided into two categories of “grave” and “minor” war crimes. According to Article 10 of the Criminal Law of Sweden (2014/406) which came into force from January 2022, punishment for war crimes is 6 years but if the crime is considered to be “grave” then the punishment is a minimum sentence of four years and a maximum 18 years or life imprisonment.[3] A crime is regarded as ”grave” if it is part of a plan or policy or comprehensive crime.
Under Swedish law a protected person is defined as a person who is wounded, ill, war prisoner or civilian who would require special protection under 1977 First Supplemental Protocol to the Geneva Convention of 12 August 1949 or otherwise a person subject to protection under the general principles of the international law relating to armed conflicts or a person in the occupied territories.
Breaches of International law
Breaches of international law including crime of genocide, Crimes against Humanity and War Crimes and has been considered so by all the international law. Before the Rome Statutes of 17th July 1998 leading to the establishment of the International Criminal Court (ICC) in 2002, these 3 heads of crimes were referred to in all the international conventions, treaties and protocols and formed part of the humanitarian law as well as customary international law.
“Genocide”
The 1988 massacre, in certain aspects, may be considered as genocide. The massacre was not only motivated by political reasons but also was a result of religious fervour. It is sufficient to just consider the questions poised to the prisoners regarding their beliefs. The banality of this point can be easily demonstrated by the interrogation of the massacred prisoners. The questions regarding the personal beliefs mostly were directed towards the leftist prisoners. The fact that most of the executed prisoners were Mujahedin may make the argument for application of genocide more complicated, although there are instances where Mujahedin were forced to change their views or repent which indicates the religious approach of the authorities.
Killing one’s belief may amount to genocide in connection with the massacre of the political prisoners in the summer of 1988, as the IRI intended to force the prisoners to recant their beliefs and adopt the policy and belief of the IRI.
In other word, the prisoners were executed not only because of their political views but also because of their belief/religion. In accordance with the Article 2 of the Genocide Convention: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
“Crimes Against Humanity”
The term “Crimes against Humanity” has been referred to for many centuries but in the present formulation dates to 1915, when in the Declaration of the Allied Powers, France, Great Britain and Russia considered the massacre of Armenians by the Ottomans as crime against humanity and those implicated in the massacre shall be held responsible.
Although the definition of Crimes against Humanity was not comprehensively codified in one place until the advent of the Rome Statutes and its entry into force on 1st July 2002, by 1980 a consistent body of customary international law had formed that defined Crimes against Humanity and called for the prosecution of such acts.
Crimes against Humanity encompass serious attacks on human dignity or a grave humiliation or degradation of human beings. These crimes are among the most serious crimes of concern to the international community because all of humanity is hurt by attacks of this nature against a civilian population. As a result, customary international law, stemming all the way back to the mention of specific acts as “contrary to the laws of humanity” in the St. Petersburg Declaration of 1868, an international treaty banning the use of explosive projectiles in war has long condemned these acts and demanded their prosecution[4].
As to what acts would constitute crimes against humanity, the 1919 Versailles Peace Conference Commission made it clear that these crimes included murders and massacres, systematic terrorism, putting hostages to death, torture of civilians, deliberate starvation of civilians, rape, abduction of girls and women for the purposes of enforced prostitution, deportation of civilians, internment of civilians under inhuman conditions, forced labour of civilians in connection with the military operations of the enemy, imposition of collective penalties and deliberate bombardment of undefended places and hospitals[5].
The International Military Tribunal (Nuremberg Tribunal) rendered its Judgment on October 1, 1946. Crimes against Humanity were an important legal category that covered the mass-murder and persecution of Jews and other civilians by the Nazi regime. Article 6(c) of the Charter, which courts often use as the starting point for contemporary international criminal law, 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.”
The first Nuremberg judgment confirmed that the Charter was a current statement of international law and asserted that customary law could form the basis for defining crimes against humanity. In 1946, as an expression of customary law, the UN General Assembly adopted the Nuremberg Principles, including the Charter’s definition. In 1950, the International Law Commission did the same.[6]
Since then, customary international law has evolved from the Nuremberg definition, dropping its requirement of a nexus between Crimes against Humanity and an armed conflict but otherwise remaining largely the same.
In Eichmann, the Supreme Court of Israel found Eichmann guilty of crimes against humanity, defining the crimes using the Nuremberg Charter and other laws but acknowledging that Crimes against Humanity “must be seen today as acts that have always been forbidden by customary international law – acts which are of a ‘universal’ criminal character and entail individual criminal responsibility.”[7]
Crimes against Humanity fall within the international judicial jurisdiction and have no time limitation. The effluxion of time does not diminish the importance of the crime.
After World War II, the international community continued creating treaties and resolutions that reaffirmed its dedication to punishing those responsible for crimes against humanity, whether committed in times of war or peace.
In 1968, the UN General Assembly adopted and opened for ratification the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which declared Crimes against Humanity “among the gravest crimes in international law.”
Crimes against Humanity are now fully recognised under several international conventions and treaties. The resolutions of the United Nations General Assembly have condemned these crimes in the strongest terms as breaches of the international law. The task of prosecuting these crimes for the individual criminal responsibility of the perpetrators has now fallen within the responsibility of the governments and their domestic courts. In and around 1988, the trials of several individuals charged with Crimes against Humanity were pending or in progress before international and domestic courts.
The large number of the executions (in thousands) of the political prisoners in the summer of 1988, being systematic and widespread, classifies these crimes as Crimes against Humanity. Article 7 of the Rome Statute now incorporates the complete definition of Crimes against Humanity:
“For the purpose of this Statute, “Crime against Humanity” means any of the following acts when committed as a part of the widespread systematic attack directed against the civilian population, with knowledge of the attack; (a) Murder; …. (f) Torture …. “
According to paragraph 1 of Article 7 of this Statute, unlawful arrests and massacre of the civilian population shall be considered as “systematic attack directed against the civilian population”- the material element of the crime being murder and torture. Thus, there is no doubt that the massacre of the political prisoners in the summer of 1988 was Crime against Humanity. According with this definition, torture, and mistreatment of the prisoners does not become time barred.
The Rome Treaty was adopted by Sweden in 2014. The Rome treaties as well as the 2014 Swedish enabling act, incorporate the crimes of genocide, crime against humanity and war crimes.
According to Article 29 of the International Criminal Court (ICC) Statute, international crimes such as genocide, Crimes against Humanity and war crimes are not subject to temporal or geographical jurisdictional limitations. These provisions were also incorporated into Swedish law and accordingly “Grave Crimes” such as genocide, war crimes and Crimes against Humanity are not subject to such limitations.
In Article 2 of Chapter 35 of the Swedish Penal Code[8] approved on 21st December 1962 and came into force from 1st January 1965, it is expressly mentioned that grave crimes such as genocide, crimes against humanity, war crimes and terrorism are not subject to statute of limitation.
Article of the UN Convention on the Non-Applicability of Statute of Limitation to War Crimes and Crimes against Humanity[9] which became effective as of 11th November 1970, limitations of time are inapplicable to Crimes against Humanity and war crimes, irrespective of the time of the commission of the crime.
Crimes against Humanity committed during war or peace, as reflected in the Statute of the International Military Tribunal (Nuremberg Tribunal)[10] dated 8th August 1945 and confirmed by the two United Nations Resolutions numbers 3 (13 February 1946) and 95 (11 December 1946)[11] and incorporated in the Geneva Convention dated 12th August 1949[12] is considered, together with war crimes, as “gross violations” and are not subject to statute of limitation.
Hamid Noury as a perpetrator involved in the massacre of the political prisoners in Gohardasht prison, can be prosecuted for “Crimes against Humanity” in whatever jurisdiction he resides. Crimes against Humanity will invoke the universal jurisdiction[13] in any country. This principle was recognised by the International Law Commission in its draft law on Crimes against Peace and Humanity in 1996.
Presently there is no temporal impediment in prosecuting Hamid Noury for his involvement in Crimes against Humanity. This is also confirmed in Articles 7 and 29 of the Statute of ICC.
In accordance with the Swedish law, international law, the historical jurisprudence referred to above, and the Penal Code on Crimes against Humanity, the Prosecutor, while drawing up the indictment against Hamid Noury, had no restriction in charging him with Crimes against Humanity. This charge would have placed the Prosecutor in much stronger (and more comfortable) position for obtaining a high sentence against Noury.
Unlike the charges for war crimes, it is not required that the commission of Crimes against Humanity should be connected to war in accordance with the customary international law. Further, those who are in prison due to their beliefs or political reasons, in accordance with the international law are considered as civilian.
The seven prosecutors of the Iran Tribunal, relying on the international law, to which it has been partly referred to in the above paragraphs, demanded that the Islamic Republic of Iran be found guilty of Crimes against Humanity. Six international judges of Iran Tribunal accepted the evidence proffered by the prosecution team in connection the criminal acts and widespread executions of the 1980s and condemned the Islamic Republic of Iran for gross violations of the rights of its citizens and Crimes against Humanity in accordance with the International Covenant of Civil and Political Rights as well as rules of customary international law.
Immediately after the arrest of Hamid Noury, at the request of the police and the Prosecutor, the Judgment of the Iran Tribunal was submitted to them. The judgment is an important document in establishing the rules of international law, its connection with massacre of the political prisoners covering 1980’s but with particular attention to the massacre of the summer of 1988.
Two months before the publication of the Indictment against Noury, in response to the question of “Why the massacre of political prisoners is deemed as war crimes?”. Kristina Lindhoff Carlson, the Prosecutor of Hamid Noury case responded, “For evaluating an act as a War Crime, there should be an armed conflict connected to that act”.
Further, the Prosecutor, in response to a question as to why the prisoners with leftist ideology, who suffered the same fate as Mujahedin before the “Death Commission”, are excluded from the list of complainants, responded that the execution of the leftist prisoners could not be connected to the conflict, and for this reason the treatment[14] of these prisoners is time barred. She added that the concept of Crimes against Humanity was introduced into Swedish law in July 2014 for the first time.
According to the rules of both the customary international law and the international law, the war crimes can only occur during or because of an armed conflict. After that, any international crime perpetrated can be considered as crime against humanity in accordance with the standards set under Article 7 of the ICC Statute.
The importance difference between War Crimes and Crimes against Humanity is that the former can only occur during an armed conflict, while the latter can occur at any time; during peace or as a result of violence that does not constitute armed conflict. Unlike War Crimes, Crimes against Humanity are not isolated cases committed by the soldiers during the conflict, but part of a widespread and systematic attack directed against the civilians which has been planned and organised.
For instance, an isolated rape case perpetrated in connection with armed conflict is clearly a war crime. However, if perpetrated as part of widespread and systematic attack directed against the civilian population, it will be a crime against humanity.
To establish that a specific act is Crime against Humanity, at minimum, the following conditions must be fulfilled:
- The “act” must be a part of a widespread and systematic attack against civilian population. The “attack” must be a course of conduct involving the multiple commissions of acts against civilian population involving numerous victims, systematic and geographically widespread. For instance, in Akayesu case, the International Criminal Tribunal for Rwanda (ICTR)[15] has defined “widespread” as “major undertaking in a large scale, perpetrated collectively and with vigour and directed against many victims”.
- These acts must be part of a systematic attack directed against the civilian population. The attack must be planned and geographically widespread.
In the above case, “systematic” is defined as “Fully organised pursuant a designed joint policy utilising private and public resources”. It has further added that in both cases the policy and plan must have been devised in advance.
The massacre of the political prisoners in the summer of 1988 was not a sudden and disorganised plan. It was a policy devised in advance. The evidence demonstrates that planning for the massacre started in the January and February 1988. In Gohardasht prison, the prisoners were separated based on their charges; their religious or political beliefs and the sentences they had received. The prisoners were interrogated before and were asked to complete questionnaires in this connection. The questions posed, especially those posed to leftist prisoners, was new and sounded like inquisition.
The Islamic Republic was looking for a pretext to execute the political prisoners. The Eternal Light Operation provided this pretext. Even without this operation the Islamic Republic would have found another excuse for carrying out the executions. The prisoners had to be executed before the war was over and peace treaty signed with Iraq. Khomeini’s fatwa was just provided a deceptive legal context to facilitate the executions and would have been issued on different grounds if necessary.
Another point to consider is that the Security Council Resolution 598 was adhered to by Iran only on 18th July 1988, while Iraq had confirmed her adherence almost a year before on 20th July 1987.
Islamic Republic continued with its war efforts until the day that the Resolution was accepted. The Islamic Republic was aware that its forces were not making any progress in the war front, and they will not be able to get better terms from Saddam. The purpose of delay was to buy the time to destroy the possibilities of social unrest and dissatisfaction once the war was over.
The Islamic Republic was concerned that public dissatisfaction after the war may culminate in demonstrations and widespread uprising and intended to neutralise it. One of the preventive measures was to create fear and terror in the populace. The return of thousands of political prisoners to the community would have created serious risks for the regime. To achieve this purpose, while accepting the Resolution, and in the heat of the moment – but before entering a peace treaty – the issue of the political prisoners must have been resolved. The massacre of political prisoners was planned and organised on this basis.
The Islamic Republic commenced the massacre of political opponents from 21st June 1981 and completed it with the massacre of political prisoners in the summer of 1988. All the evidence demonstrates that the massacre of the summer of 1988 was planned and organised before the Mujahedin’s attack.
The Prosecutor in her indictment has relied on Khomeini’s fatwa to prove the war crime. It is clear, from a legal standpoint, that the order to commit war crime or crime against humanity cannot have a legal justification.
The question remains as to why the Prosecutor, in the face of substantial and uncontroverted evidence supporting the conclusion that the massacre of the political prisoners is tantamount to crimes against humanity, has preferred to charge Hamid Noury with War Crimes? The prosecution may face difficulty in proving War Crimes and the court may find it difficult to establish a “nexus” between the alleged crimes and the armed conflict that is not international.
The other challenge that the prosecution may face is proving the nexus between war crimes and massacre of Mujahedin in Gohardasht prison. According to the evidence and testimony of survivors of Gohardasht massacre, the execution of (Mujahed) prisoners commenced on 8th Mordad 1988 (30th July 1988)[16]. While the conflict between Islamic Republic forces and MKO ended a day before on 29th July. Thus, no further war or armed conflict was taking place. Two previous operations of MKO, namely “Sun” and “40 Lights” occurred in the spring and before Eternal Light Operation.
Legal experts have different opinion in this regards. Some believe even if prisoners of war are killed a day or a month after the war, war crime is still committed. The difference here is that the Mojahedin prisoners who were executed in prison were not arrested during the war.
According to Kristina Lindhoff Carlson, the Prosecutor of Hamid Noury case, “For evaluating an act as a war crime, there should be an armed conflict connected to that act”.
In the press conference that the Prosecutor attended on the day of issuance of the indictment, the Prosecutor stated that Sweden domestic laws did not include the crime against humanity before 1st July 2014. For this reason, she concluded, she “could not rely on the Crimes against Humanity as the alleged acts are committed before that date. Thus, the indictment contains charges of international crimes including War Crimes and Murder”.
Sweden ratified Rome Statute in 2002. While some of the crimes mentioned in the Rome Statute was part of the domestic law of Sweden, by acceding to the Rome Statute, Sweden accepted universal jurisdiction for these crimes.
Thus, by accepting universal jurisdiction over serious international crimes, it is possible to prosecute the perpetrators who have committed these crimes outside Sweden in Sweden.
The argument of the Prosecutor is out of sync with Swedish law and international law referred to above. “Crime against Humanity” existed under Swedish penal laws since 1965 and continued so until July 2014, when Sweden accepted Universal Jurisdiction for crime of genocide and war crime. Thus, according to these laws and other international norms referred to above, Crime against Humanity in connection with the massacre of the political prisoners in the summer of 1988 is not subject to the statute of limitation.
Even if the massacre of the political prisoners in 1988 can be connected to the Mujahedin attack on Iran, then such acts constitute both war crimes and Crimes against Humanity under international law. Thus, the massacre would qualify for both crimes and would fall within the jurisdiction of the court on both counts. The unifying factor in Hamid Noury’s case, is the massacre of the political prisoners in the summer of 1988, and it does not matter whether the court establishes its jurisdiction based on either count.
A further important point is that, even if the massacre of the political prisoners in 1988 can be connected to the Mujahedin attack on Iran, it is still a Crime against Humanity and should not have been discounted from the charges against Noury.
The Prosecutor was well aware of the rules of the Swedish Penal Code and international law in relation to Crime against Humanity at the time of levelling charges against Noury. She knew that prior to 2014 and as of 1st January 1965, Crimes against Humanity were recognised under Article 2 Chapter 35 of the Penal Code. It expressly provides that grave crimes such as murder, genocide, Crime against Humanity, grave War Crime and acts of terrorism are not subject to the statute of limitation. Sweden by accepting the universal jurisdiction has also accepted the rules of customary international law and thus eliminated the limitation of time for prosecuting international crimes.
From the beginning of this century, the Islamic Republic, with the aim of taking ransom from the West, has detained Iranians of dual nationality and nationals of Western countries. Most of those detained were from the European countries and some were from Sweden.
Western Powers, particularly the United States and the EU Members, for reasons of political end economic gains in Iran and the region, were prepared to turn a blind eye on the malign activities of the Islamic Republic and follow the path of reconciliation. Rather than exerting pressure on Iran, they adopted diplomacy and “Critical Dialogue” to convince Iran to stop hostage taking and asking for ransom. Exactly the same approach adopted in 1980s and 1990s in response to the terrorist activities of the Islamic Republic, where all these activities were ignored, except for few instances when the relevant Government were faced with fait accompli in their respective jurisdictions. Some of the European countries, including Sweden, France, and Germany, became havens for the terrorist activities of the Islamic Republic against the émigré’ Iranians.
There had been numerous terrorist and espionage activities of the Islamic Republic in Sweden. Some were reported by the media, and some escaped the media attention. In both cases, however, although the Swedish intelligence agencies were confident of the involvement of the Islamic Republic, no action was taken, and Sweden never protested to the Islamic Republic for these incidents.
In early 1990s, the Islamic Republic planned several terrorist activities in Sweden; Effat Ghazi, a teacher and daughter of Ghazi Mohammad, founder and leader of Kurdistan Democratic Party and the President of Mahabad Republic, was killed by a letter bomb in an envelope; the letter was intended for his wife, Amir Ghazi but was opened by Effat.
In another incident, Karim Mohammad Zadeh, an Iranian with Kurdish heritage and dissident of the Islamic Republic, who served time in the Iranian prisons, was assassinated in the late 1990s in his residential apartment. An investigative Swedish TV programme by the name of “Uppdrag Granskining”, created by the top journalists for the Swedish State television, investigated this murder. This programme under the title of “For the Swedish Interests” depicts that the Intelligence and Security Agency of Sweden, SPO, identifies the perpetrator of this crime as an agent of the Islamic Republic. However, hides its finding from the Swedish Police and in fact assists the perpetrator to return to Iran.
It should also be noted that Sweden, like other Western countries, particularly members of the European Union, treated lightly the massacre of the political prisoners in 1980s and 1988 and limited herself to the issuance of a diplomatic note in connection with the 1988 massacre.
Breaches of human rights in other countries would only become an issue for the Western Governments, when their interests are at risk of the offending State is not following their lead. Then human rights violations are used as a means of pressure on these countries. No Western Government has, or will, risk their national interests to defend the people who are being suppressed and murdered by their own government. This is not limited to Iran or the Islamic Republic, the latter being created by these Powers, and they are keeping it alive.
As of 2018, the European Union, including Sweden, have changed their relation to the Islamic Republic, though in a limited manner. Reconciliation and critical negotiation did not achieve the results. The Islamic Republic continued with its hostage-taking policies and even expanded its espionage activities into the security organs of the Swedish Government and other sensitive areas. Many of the espionage activities of the Islamic Republic in Sweden has been kept in secret. An individual by the name of Peyman Kia, comes to Sweden in 1980s and becomes a Swedish citizen in 1994. Initially as a researcher and analyst he worked with several institutions. Eventually he entered the Intelligence and Security Agency of Sweden, SPO. Once he reaches to the position that he becomes privy to sensitive information, he passes them on the Islamic Republic. This transfer of information, however, remains hidden until 2018. Following that, based on intercepts of the European Intelligence Services, Assadollah Assadi, the third secretary of the Iranian Embassy in Wien was arrested. Following these discoveries several dual Iranian-Swedish nationals who have achieved high positions in SPO, were arrested and charged with espionage for the Islamic Republic of Iran. The Swedish intelligence made a limited media announcement in respect of these cases. Another incident was deportation of an Iranian husband and wife to Iran, the news of which was published in March 2021. This couple, adopting pseudonyms of Salma Khormaie and Foad Malekshah, had claimed to be Afghans and lived in Sweden from 1994. In early January 2021, they start preparations for terrorist acts which leads to their arrest. Swedish intelligence discovered that that this couple have been using fake identities. Their real names were declared as “Fereshteh Sanaii” and “Mehdi Ramezani” born in Iran. Without making any statement about this and for the sake of good relationship with Iran, the couple were returned to Iran without publicity. Sweden was not looking for another Hamid Noury and this case was outside of the European Union policy of exerting maximum pressure on Iran, which was mentioned earlier in this article.
Assadollah Assadi was arrested as a diplomat, who for 20 years led the espionage and maligned activities of the Islamic Republic in Europe. Certainly, European intelligence services were aware of his and his team’s activities and turned a blind eye on his espionage and maligned activities over 20 years. According to the news regarding the arrest of Assadi, he had a large network of spies, recruiting hundreds of individuals, nevertheless and notwithstanding his arrest; the European Union did not even touch this network. The explanation given was that these individuals were not connected to Assadi and four other individuals arrested for espionage.
It is possible that Assadollah Assadi and his team were involved in malign activities in the European countries in the past years, and none of the European Governments has publicised it. However, the conditions had changed, and Assadi had to be arrested. Assadi is the first case that the European Union has chosen to put pressure on the Islamic Republic of Iran.
Arrest of Hamid Noury is the second case where the European Union is exerting pressure on the Islamic Republic. The writer believes that if Hamid Noury would have been lured to Sweden before 2018, not only he would not have been arrested but he would have been assisted to escape from the Stockholm airport without any publicity. Arranging the escape of Mahmoud Hashemi Shahroudi[17] by the German Foreign Ministry is sufficient explanation for the then policy.
We should expect further actions from the European Union against Iran should the Islamic Republic continue with its hostage taking policies and continue demanding ransom. The plan of keeping the case of murder of Kazem Rajavi open in Switzerland is the next warning to the Islamic Republic.
The opponents of the Islamic Republic, from every group or creed, in particular the communist groupings to which the writer belongs, would certainly support these steps and we will use these contentions for the benefit of our revolutionary ideals as well as the interest of the Iranian people. However, this should not stop us from the critique of these policies.
The European Union is, as a matter of course, following their own interests and established policies, in following these issues. Naturally, neither the Swedish Government, nor any other government would sacrifice their national interests for the benefit of Iranian people. This is a well-established rule.
There is no doubt that the Swedish judiciary is independent from the executive branch and is acting independently and fairly. However, and naturally, to the extent that it is not in conflict with their national interests or those of the European Union. Again, this is a well-established rule.
When the matter involves the arrest of a foreign national for grave crimes such as massacre of the political prisoners in the summer of 1988, evidently, everyone would act along the lines of their national interest. The diplomatic apparatus of the country would opine whether such actions are in the national interest of the country. It is for this reason that the Prosecutor of Hamid Noury asks the Government whether they have a comment for the trial of Noury. The Government by the letter dated 22nd December 2020 declares that it has no comment, and the trail can take place. Without such confirmation, the trial of Hamid Noury would not have taken place.
This author believes that the trial of Hamid Noury was in pursuit of the new policy of the European Union regarding Iran to exert pressure on the Islamic Republic.
The abovementioned cases (Assadollah Assadi, Hamid Noury and Kazem Rajavi), all involve Mujahedin. Is it possible to assume that all the three cases are coincidences, following their natural course?
The European Union is using Mujahedin as leverage for exerting pressure on the Islamic Republic. All these cases have the same message for the Islamic Republic; if you continue with your maligned activities, we have the choice and instances to exert pressure on you.
In Hamid Noury’s case the exercise of pressure is clear. For instance, and for the first time in Sweden legal history, the Court is transferred to Albania, a foreign country, to hear few witnesses, an entirely unprecedented action.
The President of the Court, in justifying this action stated that the testimony of the complainants in Albania is of great importance. As they could not travel to Sweden, the Court was transferred to Albania for 10 days to hear their testimony.
This argument is baseless, illogical and without foundation. Is it suggested that the other testimonies were not important? What additional information these witnesses could provide that was not available from other Mujahedin prisoners? Until then, four witnesses had testified from Albania, using the internet video facilities. Others could have done the same. Many witnesses testified through these video facilities; would their evidence considered to be of no import?
Even if, as stated by the President of the Court, the evidence of the complainants in Albania was of importance, could it not be delivered by video?
This was a privilege granted to Mujahedin for their support of these proceedings. The reality is that without the support of Mujahedin of Hamid Noury’s case, the Court would have faced difficulty in proving the War Crimes. Mujahedin, being the organisation that had waged war against the Islamic Republic were essential, in the trial of Hamid Noury. Without their support, also in the number of complainants, the case against Hamid Noury would have been substantially weaker.
Only the choice of “War Crimes” would have brought Mujahedin in direct opposition to the Islamic Republic. This court, in effect, is the Mujahedin’s court against the Islamic Republic. Except for few, and relatively minor, instances where the bereaved families who had lost their left leaning loved ones, were able to complain against Hamid Noury, all other complainants were from Mujahedin. If the Prosecution had chosen “Crimes against Humanity” as the main charge against Hamid Noury, not only the subject of the trial, the weight of the crime, the verdict and its impact on the public opinion would have been different, but particularly the level of international pressure on the Islamic Republic would have been different. At the same time, all those political prisoners who survived the massacre of Gohardasht prison, irrespective of their ideals and attachment to political organisations, could have equally complained against Hamid Noury.
Babak Emad
30th January 2022 – 10 Bahman 1400
PS: At the suggestion of two friends, as well as my own assessment, in order to avoid the lawyers of Hamid Noury relying on it, this article was not published until the court hearing was over.
The Article has been translated by Hamid Sabi
[1] International Criminal Court, Trial Judgment in the Case of the Prosecutor V. Jean-Pierre Bemba Gombo | How does law protect in war? – Online casebook (icrc.org) at paragraph 130
[2] Ibid at paragraph 655
[3] https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-2014406-om-straff-for-folkmord-brott-mot_sfs-2014-406
[4] See Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868. Available at: http://www.icrc.org/ihl.nsf/INTRO/130
[5] Macmillan, Margaret. Peacemakers: The Paris Peace Conference of 1919 and Its Attempt to End War (2002), also published as Paris 1919: Six Months That Changed the World (2003).
[6] For history, see, for example: http://untreaty.un.org/cod/avl/ha/da/da.html
[7] Attorney General of Israel v. Eichmann, Israel Supreme Court (1962). For full transcripts from Eichmann trial see: http://www.nizkor.org/hweb/people/e/eichmann-adolf/transcripts/
[8] https://lagen.nu/1962:700#K35P2S1
[9] https://en.wikipedia.org/wiki/Convention_on_the_Non-Applicability_of_Statutory_Limitations_to_War_Crimes_and_Crimes_Against_Humanity
[10] https://www.roberthjackson.org/article/london-agreement-charter-august-8-1945/
[11] https://legal.un.org/avl/pdf/ha/ga_95-I/ga_95-I_ph_e.pdf
[12] https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf
[13] “Universal judicial jurisdiction” is a legal term that allows prosecution of crimes against humans without consideration of political borders and national sovereignty.
[14] It is meant acts of torture and inhuman treatment of the leftist prisoners.
[15] https://www.un.org/en/preventgenocide/rwanda/pdf/AKAYESU%20-%20JUDGEMENT.pdf, Crimes against Humanity in Article 3 of the Statute of the Tribunal. P578, page 234, 235
[16] The Eternal Light Operation commenced 26th July and ended on 29th July.
[17] Mahmoud Heshemi Shahroudi (Head of the judiciary 1999-2009 and chairman of the Expediency Discernment Council 2017-2018)He travelled to Germany for treatment and admitted to International Neuroscience Institute in Hannover in January 2018 in secret. Iran Tribunal Foundation filed a complaint against him. German Foreign Ministry helped him to escape and return to Iran.