An Arrest for the 1988 Prison Massacres in Iran Puts Universal Jurisdiction to the Test

responsiblestatecraft.org – Sweden’s detention of an Iranian allegedly involved in the 1988 prison massacres is both the latest attempt at universal jurisdiction and a reminder of what historian Ervand Abrahamian calls “the most despicable as well as the most bizarre event in modern Iran.”

The arrested man, named by campaigners and by London’s Sunday Times as 58-year-old Hamid Nouri, is due to remain in custody until at least December 11  when prosecutors will decide whether to indict him. He was detained while arriving at Stockholm’s Arlanda Airport, apparently planning to visit relatives and holding a Schengen visa issued by Italy.

Universal jurisdiction allows states or international bodies to pursue serious cases – usually crimes against humanity – regardless of where the alleged crime took place. In the most famous example, the 1945-9 Nuremberg trials of Nazis led to around 200 executions and over 200 prison sentences, first through international tribunals and then U.S. military courts.

More recently, unsuccessful cases include Britain’s 1998 arrest under a Spanish warrant of former Chilean dictator Augustine Pinochet and the 2001-3 prosecution in Belgium of former Israeli premier Ariel Sharon over the 1982 massacres in Beirut’s Sabra and Shatila Palestinian camps.

Many human rights lawyers have long believed universal jurisdiction should have greater application, despite the skepticism of some Western leaders. The United States is not party to the Rome Statue that established the International Criminal Court in 2oo2 to deal with crimes against humanity and genocide.

Progress in the U.S. towards any universal jurisdiction has been slow. The 2018 conviction of U.S. resident and former Liberian warlord Mohammed Jabbateh, leading to a 30-year jail sentence, was on grounds hehad lied to U.S. immigration authorities over involvement in atrocities in Liberia. Meanwhile, President Donald Trump, despite Pentagon opposition, recently pardoned three U.S. soldiers implicated in war crimes in Afghanistan and Iraq.

Europe has been more fertile ground for universal jurisdiction. Germany last month charged two Syrian asylum-seekers alleged to be Baathist security officers who had tortured and raped prisoners. European lawyers have been collecting testimonies from refugees as a preparation for legal action against Syrian president Bashar al-Assad, whose forces Amnesty International says have carried out “indiscriminate attacks and direct attacks on civilians.”

The prisoner executions in Iran came at the end of its 1980-88 war with Iraq. Shortly after reluctantly agreeing a ceasefire, Ayatollah Ruhollah Khomeini, then Supreme Leader, issued a decree passing a death sentence on prisoners who “remain steadfast in their support for the monafeqin (hypocrites).” This was Khomeini’s term for the Mujahedin-e Khalq (MEK), a quasi-Islamist quasi-Marxist group that had taken up arms against the Islamic Republic.
The killings were shrouded in secrecy, but eye-witness accounts gradually emerged. They were assessed by Abrahamian in his 1999 book, Tortured Confessions, and later in reports by Amnesty International and by British lawyer Geoffrey Robertson, who was commissioned by the Abdorrahman Boroumand Foundation. Sweden-based filmmaker Nima Sarvestani released a documentary in 2014, Those Who Said No, highlighting survivors’ testimonies to an unofficial tribunal in The Hague.

Various accounts drew on memoirs published in 2000 by Ayatollah Hossein-Ali Montazeri, whom Khomeini had removed as Iran’s deputy leader partly because he expressed misgivings about some of the executions. Khomeini’s original decree established a Tehran commission headed by Morteza Eshraqi, Tehran prosecutor, Hossein Ali Nayyeri, a judge, and an Intelligence Ministry representative, often deputy minister Mostafa Pour-Mohammadi. This was rapidly called the “Death Commission” by prisoners. Similar commissions operated in the provinces, other than Esfahan, where Montazeri’s followers held sway.

The decree led to the execution of prisoners still supporting the MEK, which had allied itself to Iraqi leader Saddam Hussein. Following the end of the Iran-Iraq war in July 1988, the MEK had launched its own offensive from Iraq into Iran, claiming it would prompt uprisings in Iran, but this had been quickly crushed.

The executions did not stop with the MEK. After a short lull, there was a second wave beginning around early September (Montazeri claimed there was a second fatwa on September 3). This time, the authorities dealt with leftists – mainly the Moscow-aligned Tudeh Party, but also members of smaller parties – many of whom had offered critical support to the Islamic Republic and had no part in violence.

The commission’s procedure with the leftists was more complicated. Abrahamian writes: “The Commission asked them: ‘Are you a Muslim?’ ‘Do you believe in God?’ ‘Is the Holy Koran the word of God?’…‘When you were growing up did your father pray, fast and read the Holy Koran?’ Few grasped the lethal significance of the last question…It was an inquisition in the full sense of the term – an investigation into religious beliefs rather than into political and organizational affiliations…a leftist prisoner who at one time had attended a seminary quickly grasped the theological significance of the questions…Nominal Muslims not raised in proper Muslim homes first had to be exposed to true Islam before they could be deemed apostates deserving death.”

Abrahamian and Robertson both found the survival rate was higher among the leftists than it had been among the MEK, but the ordeal of those “pardoned” was far from over. Robertson quotes a prisoner’s account: “Although I survived execution they determined to torture us in order to make us become Muslims. The procedure was to use torture five times a day at each call to prayer. They flogged us on the soles of our feet, telling us that we had to become Muslim. We were beaten with electrical cables after being tied down to a metal bed. At each call to prayer I was given 15 lashes.”

No reliable, exact figure has ever been produced for executions. The MEK has claimed as many as 30,000 members died. In Tortured Confessions, Abrahamian cited overall death-tolls ranging from 2,500 to 6,000, while Montazeri said there had been between 2,800 and 3,800 MEK killed.

In analyzing the motives behind the executions, Abrahamian dismissed later claims from some Iranian leaders – including then prime minister, Mir-Hossein Mousavi, later a defeated candidate in the disputed 2009 election – that the executions were a response to the MEK offensive from Iraq, which had already failed. Robertson pointed out that those executed had been in jail during the attack and that in any case their execution as prisoners-of-war would have been “the gravest of breaches of Geneva Convention III and thus a war crime”.

For Abrahamian, the secrecy around the affair dispelled any notion that the killings were designed as a wider warning to the regime’s enemies as the Iraq war ended. Abrahamian instead concluded that they resulted from the regime’s internal dynamics as Khomeini’s “creative genius” sought to separate the “weak willed” from revolutionary radicals.

The current Swedish case, according to a prosecutor, concerns the period July 28 – August 31, 1988, the time of the MEK executions and before the executions of leftists. Possibly in anticipation, the MEK’s National Council of Resistance of Iran, which is based in Albania after expulsion from Iraq, recently launched a booklet “Crimes Against Humanity” naming over 5,000 members as victims. The MEK, whose own human rights record is highlighted by critics, constantly highlights the executions in its propaganda.

The name of Hamid Nouri is not well known. Payam Akhavan, the McGill University law professor who has worked on the case, has claimed that Nouri was “an enthusiastic inquisitor” who sent “people to their deaths…and tortured some of them.” Nouri was allegedly an assistant prosecutor in two jails, Tehran’s Evin and Gohardasht in Karaj, where many executions took place.

Iraj Mesdaghi, a former MEK member and prisoner featured in Sarvestani’s documentary, has claimed Nouri had travelled to Europe many times.

“I saw him with the Death Commission members in Evin Prison as well as Gohardasht (Rajaee Shahr) Prison,” Mesdaghi recently told the U.S.-based NGO Center for Human Rights in Iran. “I saw him in the prison corridors. Many prisoners saw him and know him. We can bring a hundred witnesses to testify. I mentioned his real name and pseudonym (Hamid Abbasi) in my books, which were published 15 years ago, as one of the people who actively collaborated with the 1988 Death Commission.”

Whether the case encourages more prosecutions remains to be seen. Of those most directly involved in 1988, Pour-Mohammadi was recently justice minister (2013-17) under president Hassan Rouhani. Ebrahim Raeisi, then Tehran deputy prosecutor, is now Iran’s Chief Justice and considered front-runner to succeed Ayatollah Ali Khamenei as leader.

Robertson’s report made clear his judgement that the prima facia case against all involved was strong: “The basic prohibitions – against arbitrary execution, torture and unfair trials – are all jus cogens rules of international law – i.e. principles so fundamental that no nation may breach or opt out of them. They are endorsed and amplified by the provisions of the International Covenant on Civil and Political Rights (the ICCPR) which Iran ratified and which applied in 1988 notwithstanding the 1979 change in government.”

Less clear are the implications for the wider application of universal jurisdiction. Agnès Callamard, U.N. special rapporteur on extrajudicial killings and executions, who welcomed the Nouri arrest as an “important first step towards justice for the 1988 massacre,” is also investigating the murder of Saudi journalist Jamal Khashoggi.

Abrahamian, who is now Emeritus Professor at the City University New York, remains skeptical that the case will have much effect in Iran or anywhere else. “The 1988 massacres are too much of a taboo even for reformers to raise,” he explained. “Montazeri brought up the technical violation of the sharia for the execution of the Mujahedin. He avoided the issue of executing ‘apostates’ [the leftists].  I doubt if European countries would want to raise an issue from 1988. This may remain a topic mainly for historians.”