Prosecutor of the Iran Tribunal.
The Peace Palace, The Hague, 25 October 2012

Mr. President, distinguished members of the Tribunal. It is my honour and privilege to make the opening submissions on behalf of the prosecution in this historic hearing to adjudicate crimes committed by the Islamic Republic of Iran against political prisoners and prisoners of conscience in the 1980s (1360s). My name is Payam Akhavan, and I am a Professor of International Law at McGill University in Montreal, Canada, and a member of the State Bar of New York and the Bar of the Province of Ontario. In leading the prosecution team, I am joined by two distinguished colleagues, Mr. John Cooper who is Chairman of the Tribunal’s Legal Steering Committee, and another member of the Committee, Sir Geoffrey Nice, both of whom are renowned members of the Bar of England and Wales with numerous years of experience in international criminal law. I am honoured that they have accepted to act as counsel in this proceeding. We are pleased to have as co-prosecutors Ms. Nancy Hormachea, another member of the Steering Committee who is a member of the Bar of the States of Texas and California, Ms. Mojdeh  Shahriari, a member of the Bar of the Province of British Columbia, Mr. Kaveh Shahrooz, a member of the Bar of the State of New York and Ms. Gissou Nia, who has worked on war crimes and crimes against humanity trials at the Yugoslav Tribunal and the International Criminal Court. We all appear before this Tribunal as volunteers and in our personal capacities; we appear as qualified legal professionals with considerable experience in international law and human rights law. Some of us have also served as prosecutors and legal counsel at the International Criminal Court at The Hague and other international tribunals such as those for the former Yugoslavia and Rwanda. We are honoured to present our case before an international tribunal composed of such reputable jurists from across the world. We are most grateful for your willingness to volunteer as judges to ensure that the case submitted by the prosecution team will be addressed in accordance with the highest standards of international jurisprudence before an impartial and qualified tribunal.

We appear here today before this Tribunal because under present circumstances, there is no other forum that can address these crimes. The national courts of Iran are not a feasible option. Instead of providing justice to victims of human rights violations, the courts of the Islamic Republic are themselves an instrument of repression. Iranian officials that commit abuses enjoy complete impunity. Not only are these officials not made accountable for their actions, but perversely, 3

those who do call for justice are prosecuted. Mothers that only wish to mourn the loss of their children are prosecuted. Lawyers who seek to defend those charged with political offences are arrested and imprisoned themselves on spurious charges of endangering national security. The Iranian courts as they are constituted today are clearly not an option for delivering justice.

Unsurprisingly, Iran has not ratified the Statute of the International Criminal Court. To do so, would be to expose the Islamic Republic’s leadership to prosecution at The Hague. Furthermore, the limitation of the Court’s temporal jurisdiction to crimes committed after the entry into force of its Statute in 2002 (1381) is an obstacle for the crimes that are before this Tribunal. Furthermore, while different United Nations special procedure mechanisms, and most recently Ahmed Shaheed, the UN Special Rapporteur on the human rights situation in Iran, have called for a comprehensive examination to resolve the thousands of cases of torture and arbitrary execution that occurred in Iran in the 1980s (1360s), no such body has yet been established.

In view of these constraints and realities, instead of giving up the struggle for justice, the survivors and the families of the victims have sought alternative mechanisms for justice. They have undertaken an unprecedented and historical initiative to establish a People’s Tribunal. Although it has been inspired by the 1966 Russell Tribunal that addressed American war crimes in Vietnam, this Tribunal is not organized by outsiders, rather it is the initiative of thousands of those whose lives have been directly affected by the atrocities we seek to prosecute. I am particularly honoured to mention the courage of groups such as the Mourning Mothers, including the mothers of Khavaran and the mothers of Laleh Park—whom have lost sons and daughters to Iran’s prisons—and others, who have demonstrated the power and resilience of the human spirit in their ceaseless demands for justice. It is their voices that have especially inspired this Tribunal; and their cries for accountability echo the wider cry of the Iranian people for justice; for a nation in which human rights and the rule of law will be the basis of power rather than violence and tyranny.

Many of the victims, survivors and witnesses of these atrocities have carried deep wounds for decades. Many have demonstrated enormous personal courage by giving their accounts of pain and bravery through memoirs, film, paintings, poems and other mediums. They have done this to bring these crimes to light, to keep the memories of the victims alive long after they have been confined to their graves. Beyond the heroic efforts of these individuals, the first step in achieving justice is to uncover the historical truth before an impartial and objective international forum consisting of eminent jurists from across the world; the first step is for the Iranian people and the world community to be made aware of the terrible injustice that many have suffered in silence for so long and to appreciate its legal characterization and consequences. Without recognizing this injustice, without attempting to establish the rule of law, the building of a brighter future for Iran becomes jeopardized. The purpose of this Tribunal thus conceived is to achieve at least a measure of justice in the hearts and minds of the Iranian people. Its purpose is not vengeance. Its purpose is to submit these historical facts to the judgment of international law before the eyes of the Iranian people and the world community. Its purpose is to show that the people will not rest and despair even if formal institutions of justice may not be available at present. The legitimacy of this Tribunal is thus derived from all righteous Iranians, and all righteous people in the world, who respect human rights and an end to violence, who demand that justice be done so that we will not continue to be haunted by the dark past of our collective conscience. And it is our hope that this proceeding will be an important step in a broader process of national healing and accountability for past crimes; it is our hope that it will one day lead to achieving formal justice before the independent courts and truth commissions of a free and democratic Iran, so that these crimes will never again be repeated.

The Islamic Republic of Iran has been notified of this proceeding by a letter dated 12 September 2012 (22 Shahrivar 1391) served on its Embassy in The Hague on behalf of the Tribunal’s Steering Committee. The Embassy was given three copies of the Report of the Truth Commission based on the testimony of numerous witnesses that appeared at the first phase of these hearings in London in June 2012 (Khordad/ Tir 1391) and the Islamic Republic was invited to participate in this hearing and to defend itself. Despite this invitation which was made to provide a genuine opportunity to hear the Government’s response, the Islamic Republic has not responded and has thus failed to avail itself of a defence. Nonetheless, this in no way compromises the impartiality of this proceeding insofar as the Tribunal will make its determinations based solely on the evidence before it, and based on international law, even if the Islamic Republic has failed to defend itself. Furthermore, the mandate of the Tribunal only extends to considering the State responsibility of the Islamic Republic of Iran and not the responsibility of individual perpetrators, which would raise evidentiary and legal issues of a different and far more complex nature. These may be matters for future proceedings and the present hearing is by no means intended to be the final stage in the process of achieving justice. On the contrary, it is intended as a first step, as a means of creating a space for justice and accountability, by exposing the historical truth in a credible and legally objective manner, before an independent and impartial Tribunal.

Bearing this context in mind, we appear here today to attempt to redress a terrible injustice against the people of Iran. The massive violations of fundamental human rights during the first ten years following the 1979 (1357) Islamic revolution are crimes so grave that they cannot be forgotten. These atrocities commenced from the very first days of the revolution as the newly established Islamic Republic consolidated its power by eliminating its opponents through long-term imprisonment, banishment and execution by firing squad and hanging. But this systematic violence, the consolidation of absolute power by the supporters of Ayatollah Khomeini, seemingly reached an even higher level from June 1982 (Khordad 1361) and peaked with the unprecedented extermination of thousands of political prisoners and prisoners of conscience in 1988 (1367). While the exact number of prisoners executed in 1988 (1367) is not known, conservative estimates place the number at 4,000 to 5,000. Without prejudice to the abuses committed in other time periods and the need to address these in other proceedings, we appear here today as a preliminary case to address this particular time period in which, by some estimates, at least 15,000 to 20,000 Iranian citizens were executed, and countless others subjected to torture, rape, and unlawful imprisonment; these crimes were based on the political and religious ideology of a totalitarian State seeking absolute power that would not tolerate any dissent or differences among its people. It is important to bear in mind that the devastating Iran-Iraq war that began in 1980 (1359) and its continuation over several years also coincided with the escalation of repression. The war also provided a pretext for violent repression against the dissenting forces. Nonetheless, as I shall explain shortly, the abuses against Iranian citizens are prohibited under international law in all circumstances, and can never be justified by reference either to war or national security.

The mass-executions, systematic torture, rape, and arbitrary imprisonments of these years are, without doubt, the bloodiest period in contemporary Iranian history. These are crimes not only against the Iranian people, but these are crimes against humanity. Crimes against humanity are crimes of international concern because they offend humanity. And it is our duty as prosecutors in this hearing to establish before this honourable Tribunal that this pattern of gross human rights abuses satisfies all the legal elements required for crimes against humanity, and consequently, that the Islamic Republic of Iran bears responsibility under international law.

As previously mentioned, during the first phase of these proceedings held in London from 18-22 June 2012 (29 Khordad to 2 Tir of 1391), a Truth Commission composed of six distinguished members heard the testimony of almost 80 witnesses who were either survivors or the families of victims or survivors. They represented a broad cross-section of political groups, ethnic and religious groups, and some were simply victims of violence intended to create terror among the Iranian people. For those of us that were present at that session, the harrowing testimonies brought to life the horrible reality of these crimes and made us understand in an intimate and human way why these crimes cannot be forgotten; it made us understand that those who endured these atrocities may only begin the healing process by seeking out justice and accountability. We heard shocking testimony of a mother who had lost all of her children and whose sister was executed together with her eleven year old son. We heard the tearful testimony of a woman who tried to unearth the remains of her brother at the mass-grave of Khavaran. We heard the painful testimony of a woman whose husband was comforting a fourteen year-old boy as the boy was hanged and cried for his mother. We also heard the testimony of a mother whose fifteen-year old was shot because he had a political pamphlet in his pocket. To further add injustice to her grief, the mother had to pay for the bullets used in her son’s execution in order to retrieve his body. And we heard the testimony of those that witnessed the execution of their fellow prisoners in 1988 (1367) pursuant to Ayatollah Khomeini’s fatwa to deal with them with “revolutionary rage and rancour”. We heard how prisoners were simply asked whether they support the Islamic Republic or not before being sent to the gallows. And the testimony of a woman who was tortured while pregnant and given the choice of either confessing to crimes or losing her unborn child; and the testimony of countless others who were savagely beaten and tortured for days. We also heard the testimony of women that were brutally raped in prison. We heard that none of these victims were ever given a fair trial. Almost none were given access to a defence lawyer, or given an adequate opportunity to defend themselves.

None were judged by an independent and impartial tribunal. And for the most part, their only crime was simply that the Islamic Republic did not approve of their political or religious beliefs.

As a result of the extensive coverage of the Iran Tribunal truth commission proceedings by the media, which is estimated to have reached some 20 million people in Iran and more widely in the world community, the Islamic Republic, for the first time since 1988 (1367), has sought to provide a defence under international law for these mass-executions. An article authored by Seyyed Mohammad Mehdi Piambari, the head of a human rights committee affiliated with Iran’s Intelligence Ministry, sought to provide such a defence. In the Piambari’s article published by Borhan News Agency on 31 July 2012 (10 Mordad 1391), he stated that the executed prisoners were “monafeqin”, a religiously loaded term that means “hypocrites”, who were executed in accordance with international law because they were enemies of God and the Islamic Republic. Remarkably, Piambari further stated that the prisoners were not entitled to a fair trial before being executed because, from the beginning of 1988 (1367) and on, they comprised a unit of the enemy’s military. Indeed, the Islamic Republic has frequently justified its actions by arguing that those who threaten Islamic rule and engage in armed struggle against the State could be executed at will. This of course is entirely inconsistent with international law. Further, most prisoners including minors and women and those who were merely peaceful political activists—were executed without ever participating in armed struggle. This included many of the thousands executed en masse in 1988 (1367) who had been imprisoned for minor political offences and many of whom had already served their sentences. But what we shall argue before you is that under international law, even those that engage in armed struggle are entitled to human rights. The prohibition against torture and rape is absolute. It does not depend on the conduct of a prisoner. The prohibition against imprisonment without a fair trial, let alone execution without a fair trial, is also absolute. There can never be any justification for such acts, with or without armed struggle. From the viewpoint of international law we submit that the conduct of the victims of human rights violations is not at issue. That is because certain human rights are absolute; there can never be a justification for such abuses, let alone on the scale of the killing of thousands of human beings.

Turning now to this second phase of proceedings, the prosecution’s objective is to establish before this Tribunal that the pattern of human rights violations established in the Truth Commission’s Report of 30 July 2012 (9 Mordad 1391) qualifies as crimes against humanity as that term is defined in international law. Article 7 of the Statute of the International Criminal Court, adopted at the Rome Conference in 1998 (1377), is an important starting point for defining this international crime.

With a few exceptions that are largely irrelevant for present purposes, it contains a widely accepted definition of this crime which applies to the events in Iran in the 1980s (1360s) as customary law; customary law means that it applies irrespective of whether the Islamic Republic of Iran ratified a particular treaty or convention; this is a widely recognized source of international law that is beyond dispute as indicated in the jurisprudence of international courts and tribunals. I shall address the historical evolution of crimes against humanity in greater detail in our closing submissions.

For present purposes, I wish to simply emphasize its main elements. First, crimes against humanity entail the commission of serious violations of human rights, as listed in Article 7, paragraph (1) of the Court’s Statute. Second, it entails the multiple commission of such acts as part of a widespread or systematic attack against a civilian population, in particular pursuant to or in furtherance of State policy. With respect to the first element, the serious human rights violations under Article 7 include murder under paragraph 1(a), which encompasses arbitrary executions as well as death resulting from torture or other serious mistreatment where death is foreseeable. It includes torture under paragraph (1)(f) which 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”. It includes rape under paragraph 1(g) or any other form of sexual violence of  comparable gravity. It includes under paragraph 1(e) “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” which encompasses imprisonment without a fair trial or imprisonment on grounds of political or religious beliefs. It is also important to point out that it includes under paragraph 1(h) the crime of “persecution” against “any identifiable group or collectivity on political … [or] … religious grounds”. Thus, in addition to responsibility for large-scale serious human rights violations, there is additional responsibility where such violations are committed on discriminatory grounds. Article 7, paragraph (2), sub-paragraph (g) of the Court’s Statute further 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 are imprisoned and subject to abuse and executions based on their political or religious beliefs, this may amount to the crime of persecution. This we will establish applies forcefully not only to the case of political prisoners and prisoners of conscience belonging in particular to leftist groups, but also to those such as Kurds and Arabs who were often singled out on grounds of ethnicity or religion, and the case of the Baha’is, who were targeted solely because they were deemed to be members of a religious “heresy” or “wayward sect”.

In respect to these acts, it should be noted that domestic law is not an excuse or defence to crimes against humanity. So while arbitrary executions and discriminatory treatment amounting to the crime of persecution may or may have not been permitted under the laws of the Islamic Republic at the time—this does not shield the perpetrators of such crimes from responsibility under international law.

In summary, these are the types of human rights violations that are required to establish crimes against humanity. However, such violations are not by themselves sufficient to satisfy the elements of this grave international crime.

The second, and perhaps more important element, is the context within which such crimes were committed. 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 an international crime, let alone the very serious offence of a crime against humanity. Once again, we can turn to Article 7(1) of the Court’s Statute which clarifies that violations such as murder and torture are crimes against humanity only when “committed as part of a widespread or systematic attack directed against any civilian population”. Paragraph (2), sub-paragraph (a) further 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, the Statute’s requirement of State policy may be even more exacting and restrictive than customary law which does not require formal State policy. Also, as I shall further elaborate in our concluding submissions, unlike with charges of war crimes, there is no requirement of a nexus with war under customary law during the relevant period in the 1980s (1360s) such that crimes against humanity may be committed irrespective of whether it was connected with the Iran-Iraq war. Furthermore, those that are prisoners, especially those that are imprisoned on political or religious grounds, are deemed by international law to be civilians for the purpose of crimes against humanity. Thus, as we shall establish, the issue of war is simply not relevant for present purposes.

With respect to these two elements, the prosecution will establish based on the evidence and based on the further testimony provided at this hearing, that serious human rights violations such as arbitrary executions, torture, rape, and false imprisonment were committed, that these violations were committed on political and religious grounds, and that these violations were committed on a widespread and systematic basis, involving the multiple commission of these crimes pursuant to or in furtherance of the State policy of the Islamic Republic of Iran.

That concludes my opening submissions, Mr. President, honourable members of the Tribunal. I now ask you to give the floor to my colleague Mr. John Cooper, and Chairman of the Tribunal’s Legal Steering Committee, who will provide further introductory submissions and a more detailed outline of our case, following which we will begin examination of witnesses with your permission.