Iranwire – “I am worried about the judgment that posterity and history will pass upon us.”
These words were spoken by Grand Ayatollah Hussein-Ali Montazeri, a leader of Iran’s 1979 Islamic Revolution and close associate of Ayatollah Ruhollah Khomeini. After the revolution, Montazeri had officially become Khomeini’s deputy and heir apparent. He was called “the hope of the Imam [Khomeini] and the nation”, and might have ruled Iran for years had he not spoken out.
On August 13, 1988, Montazeri summoned four members of an entity known as the Tehran Death Panel, in person, to express his disquiet with their work and to ask for a reprieve to the executions they were ordering during the holy month of Muharram.
The panel included Judge Hossein-Ali Nayeri, Prosecutor Morteza Eshraqi and an Intelligence Ministry representative Mostafa Pourmohammadi. Also present that day was a 28-year-old junior cleric and deputy prosecutor named Ebrahim Raeesi, who sat on the panel as an occasional stand-in for Eshraqi. Today, Raeesi is poised to become the next president of Iran.
In the previous fortnight, the Tehran Panel had sent more than 750 people to their deaths. On July 29, 1988, Evin and Gohardasht Prisons had both abruptly gone into lockdown. Family visits were cancelled, radios were switched off and visits to the infirmary were halted. Jailed members of the Mojahedin-e Khalq (MEK) resistance movement, who had already been “color-coded” by Gohardasht prison officials according to their perceived level of compliance, were then summoned one by one to appear in front of the panel.
Those who gave the “wrong” answer to the single question put to them – about their ongoing political affiliations – were then placed in a line that led to their systematic slaughter. Cranes that had rolled into the prison yard earlier that day were used to hang them in groups of four at a time, while other groups of six were hanged from ropes in the assembly hall.
Some prisoners were taken to the army barracks and shot by firing squad. Their bodies were sprayed with disinfectant, put into plastic bags, piled inside refrigerated trucks, and later buried in mass graves all over Iran by night. By the time of Montazeri’s intervention, 2,800 to 3,800 people across the country had been murdered by the state.
The 1988 massacre was ordered by the ailing Supreme Leader, Ayatollah Khomeini, incensed in the aftermath of Iran’s crushing defeat in the eight-year Iran-Iraq war and a late, armed incursion by Saddam Hussein-backed MEK fighters from Iraq. The homicidal fatwa was dictated to Khomeini’s son Ahmed, probably on July 28, 1988, and it opened ironically with “In the Name of God, the Compassionate, the Merciful.”
“Since the treacherous Monafeqin (“hypocrites”) do not believe in Islam,” a furious Khomeini decreed, “and whatever they say stems from their deception and hypocrisy, and since according to the claims of their leaders they have become renegades, and since they wage war on God… it is decreed that those in prisons throughout the country who remain steadfast in their support for the Monafeqin are considered to be mohareb (waging war on God) and are condemned to execution.”
The country-wide machinery of death ground into action the very next day. Two weeks later, on August 13, when Montazeri appealed for a halt to the massacre, so strong was the murderous zeal in Tehran’s jails that Judge Nayeri replied his panel had just 200 killings left to go. “Once we finish off this lot,” he said, to Montazeri’s dismay, “you can order as you wish.”
But the killings did not stop there. After Moharram, a “second wave” of extrajudicial murders and torture of other leftist and communist prisoners, many of whom already had custodial sentences, continued apace – this time with a religious motivation. There are no reliable estimates as to how many people died that September.
During the meeting with Montazeri, the young Ebrahim Raeesi is not recorded as having said anything of note. He features, again silently, in the testimonies of traumatized survivors of the Tehran massacre, with many making reference to “a fourth person” at the moment when it was decided whether they were to live or die.
Since September 1988, Ebrahim Raeesi has become one of the most powerful and feared clerics in Iran. Today, he is the head of Iran’s judiciary after a blood-soaked career, no aspect of which does he deny. He has also confirmed his presence on the Death Panel himself. Perhaps aware that men of law are not immune to the international justice system, he has rarely set foot outside the Islamic Republic since 1988. But if Raeesi becomes president on Friday, June 18, 2021, and begins to visit foreign states, could he face prosecution in another country?
The Case Against Raeesi
In May 2010, human rights organization the Abdorrahman Boroumand Foundation published a meticulous 130-page report compiled on its behalf by Geoffrey Robertson QC of Doughty Street Chambers in London.
In it, Robertson painstakingly charted the build-up to the 1988 secret executions in Iran, the period of the massacre itself and the aftermath, in a bid to conclusively establish whether a crime had occurred and, if so, who was culpable. The report also drew on survivors’ first-hand testimonies of a horrific episode the Iranian regime has since sought to erase from the national memory.
The revelations came thick and fast. Imprisoned young MEK members, weeping, were pressured to hang their fellow prisoners in a supposed test of allegiance. In June 1988, an experiment involving poison gas was held in a room of Ward 13 of Gohardasht Prison, suggesting the regime was already planning to initiate a “final solution”. Evin Prison warden Asadollah Lajevardi allegedly forced female MEK virgins to “marry” Revolutionary Guards, so that they could be raped before their execution, in order to get around a religious prohibition on the killing of virgins.
“They were very quickly killing everyone,” one Evin survivor relates. “The court started in the prosecution building, then moved to Section 209; the basement was where they were enforcing sentences.
“They were asking the prisoners to write their names in large letters on their own hands before being hanged. The Afghans working in the prison were a channel of information for us. They were telling us that they were having to take several bags of slippers out of Section 209 every night.”
The second wave of executions, Robertson surmises, was designed to break the spirits of the survivors. This time the Death Panel operated more like an inquisition, with leftist prisoners questioned at length over their religious affiliation and whether they were practising, lapsed or non-Muslims.
The so-called apostates were then taken to be killed. Those deemed to have never been Muslim in the first place were subjected to medieval torture, including beatings and floggings with cables three times a day, at prayer times, to make them accept Shia Islamic doctrine.
“The murder of the Mojahedin,” Robertson concludes, “was as monstrous and indefensible a crime as the Japanese death marches of POWs in retaliation for Allied victories, or the German reprisal killings of whole villages after partisan assassinations of Nazi officials in Czechoslovakia and Italy… Comparisons are odious, especially between atrocities, but the Iranian prison slaughter strikes me as the worst of all. Its calculation makes it more vicious than the killings at Srebrenica.
“If, as the fatwa assumed, the Mojahedin were prisoners of war, then killing them was the gravest of breaches of Geneva Convention III, and thus a war crime, that all state parties to that Convention would have a duty to prosecute by tracking down suspected perpetrators and putting them on trial.”
In an extensive list by Robertson of living individuals thought to bear some responsibility for the massacre, Raeesi’s name appears third.
The Legal Basis for Prosecution
States are bound by the commitments they make to the international community, regardless of internal regime change. This means the commitments Iran signed up to in the Shah’s time, including the Geneva Conventions, still govern its responsibilities under the Islamic Republic.
At the close of his report, Robertson concludes that the regime members who oversaw the 1988 mass killings are therefore guilty of several serious, ongoing jus cogens offences: that is, offences against international legal principles that cannot be disregarded, and could in theory be prosecuted in any jurisdiction.
These include war crimes, as reprisal killings are banned under Article 75 of Geneva Protocol 1, and crimes against humanity, which were first defined in the 1946 Nuremberg Statute and most recently in Article 7 of the Rome Statute. These rules bar the murder, extermination or torture of civilians, and the targeting of civilians for their faith or political inclinations.
The officials involved, Robertson says, are also guilty of genocide because of the officially-stated religious motive behind the second wave of killings. They are also demonstrably guilty of torture, which includes the ongoing deprivation of families’ access to their loved ones’ remains, infringing their rights enshrined in Article 32 of the First Geneva Convention.
For now, the International Criminal Court can only hear cases from 2002 onward. The International Court of Justice, meanwhile, can rule on issues of law, but the Islamic Republic does not accept its jurisdiction. Under the principle of universal jurisdiction, however, those responsible could also theoretically be prosecuted by other signatory states if they travel abroad.
In Robertson’s view, it would still be important to hold the perpetrators to account decades after the crime itself. Many of them, including Raeesi, are alive and in positions of power today, and no less guilty than they were by the time the sun set on July 29, 1988.
Iran is also committing an ongoing crime by not revealing the locations of the mass graves to victims’ families. To prosecute even some of those responsible could help to alleviate the pain of thousands of Iranians affected by a massacre that scarred the modern political face of Iran. Because of the lack of justice served, it prompted the regime to continue to act with impunity in the decades that followed.
An Ongoing Crime
Amnesty International has been on the vanguard of collecting survivors’ testimonies ever since the atrocity first happened. Last year it released a major report in which it said that according to United Nations criteria, the Islamic Republic’s concealing of the victims’ remains amounted to the crime of forced disappearance under international law. The organization has called on the UN to establish an enquiry into the massacre.
The organization does not try to influence the outcome of elections. But on being asked by IranWire, Amnesty’s Iran researcher Raha Bahreini confirmed: “Amnesty has compiled evidence of the involvement of Ebrahim Raeesi in past and ongoing crimes against humanity related to the prison massacres of 1988, and has called for him to face criminal proceedings.
With regard to his presidential candidacy, she added: “State authorities have a duty under international human rights law to ensure that individuals suspected of having carried out, or carrying out, crimes under international law are not appointed to a position where they could interfere in the investigation of, or facilitate concealing, such crimes.
“Ebrahim Raeesi is identified as a member of the ‘death commission’ which carried out the enforced disappearance and secret executions of several thousand political dissidents in Evin and Gohardasht prisons near Tehran between late July and early September 1988, and oversaw the secret burial of their bodies in unmarked and mostly mass graves.
“He must be, therefore, criminally investigated in accordance with international standards, including by states that exercise universal jurisdiction.”
Amnesty also pointed out that in subsequent decades Raeesi held key decision-making roles in the Iranian judiciary, which has gone on to commit other grave human rights violations and crimes under international law.
“In Iran, intelligence and security bodies fall under the supervision of the judiciary,” Ms. Bahreini added. “Prisons and detection centres are also managed by the judiciary. As a top prosecution and judicial official, Ebrahim Raeesi may bear criminal responsibility for the crimes committed by his subordinates.”
The organization stressed that the fact that it has gathered evidence of Raeesi’s role in human rights violations should not be taken to mean that the other presidential candidates have clean records.
Could Raeesi be Prosecuted?
Later this summer, a potentially seminal court case is due to be heard in Sweden. Hamid Nouri, a former assistant public prosecutor said to have played a decisive role in the killings at Gohardasht, was arrested in the country in November 2019 after a complaint by a private plaintiff, and is shortly due to stand trial for jus cogens crimes against humanity.
The move by a European country to arrest an Iranian for historic crimes committed inside Iran was unprecedented. If Nouri is found guilty, this too will be without precedent, and may be a first step toward atoning for the international community’s shameful inaction at the time of the slaughter.
Ebrahim Raeesi could be criminally liable under the doctrine of command responsibility, for having either given the order for acts to be carried out that he knew were illegal, and for failing to take steps to prevent the crimes from occurring. Unlike Nouri, though, his situation would be more complicated as a serving head of state.
Kaveh Shahrooz, a Toronto-based human rights lawyer, told IranWire: “Internationally the ICC doesn’t have the jurisdiction to investigate, and Iran is not a signatory to the Rome Statute. But there are states that have taken the position that crimes against humanity can be prosecuted, through universal jurisdiction, in foreign states. If a state wanted to take a more progressive position in international law and do this, it would be an uphill struggle, but it could be done.
“If Nouri is convicted, it strengthens the argument for universal jurisdiction. But Raeesi could argue that as a member of a government, he’s immune. There’s a legal debate over whether or not the head of a government and representatives can be held to account for their actions in the course of their duties.”
Customary law affords presidents and other heads of state personal and functional immunity while they are in office. The ICC has tried a sitting head of state, the president of Sudan, but cannot hear cases dating back to 1988. However, since the start of the 20th century it has been argued – though not yet demonstrated – that a head of state may not claim immunity for international crimes in a foreign court.
The Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, and the New York Convention on Special Missions and the UN Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment all bar heads of state from invoking functional immunity as a defense for these crimes. The argument is that because the official functions of a president do not include violation of jus cogens laws, he or she would not enjoy immunity for these crimes. So far though, no one in a situation comparable to that of Raeesi’s has been prosecuted on this basis.
Nevertheless, Shahrooz says, Raeesi is certainly criminally culpable for the 1988 massacre. “He is very much implicated in that crime. Raeesi was known from the outset as being one of the top people involved, as a member of the Death Panel for some of the most populated prisons in Iran. He has blood on his hands.”
In fact, Raeesi has admitted to his presence on the Death Panel himself. In a lecture on May 1, 2018, he confirmed he was present at the August 13 meeting with Montazeri, but added: “During the period [in question], I was not the head of the court… The head of the court issues sentences whereas the prosecutor represents the people”.
At the same time, though, he used the word “confrontation” to describe the butchery of thousands of Iranian citizens. He said he regarded the 1988 atrocity as “one of the proud achievements of the system” and Khomeini as a “national hero”.
If Raeesi visits a European country and faces no threat of reprisal, Shahrooz says he expects to see “public outcry”. But in addition, and in the meantime, he notes, Raeesi could more realistically also be subjected to Magnitsky sanctions by concerned states. These target individuals involved in human rights abuses with asset seizures and travel bans. “Activists will certainly be pushing my country, Canada, to do that,” he says.
Ten years have passed since one of the world’s leading human rights lawyers concluded that Ebrahim Raeesi is guilty of crimes against humanity. Whether or not Raeesi faces criminal reprisal for this – in his likely time in office, or afterward – will largely depend on where he chooses to go as president, and the moral courage of the international community.