Iran’s new president, Ebrahim Raisi, will take office this August.
Much literature has speculated on what his posture will be toward the Biden administration, how he will address Iran’s sagging economy and whether he will succeed Ayatollah Ali Khamenei as Iran’s Supreme Leader.
But to the victims and survivors of Raisi’s many human rights violations over the course of four decades, the only relevant question is whether or not Raisi can be held accountable in a court of law. The prospects for an investigation may have just advanced: on June 29, U.N. Special Rapporteur on human rights in Iran Javaid Rehman called for an investigation to establish, among other things, what role Raisi played in the mass executions of political prisoners in the 1980s.
In 1988, Raisi was part of a “Death Commission” set up by the Islamic Republic and charged with determining whether thousands of political prisoners should live or die. Raisi – along with several other men – asked a few short “yes” or “no” questions about the political and religious beliefs of the prisoners. Questions included: “Are you a Muslim? Do you pray? Do you believe in Marxism? Do you believe in the Islamic Republic?”. Based on the answers, the prisoners were executed or tortured. The questioning was brief and conducted in secret. There were no appeals. Prisoners were executed the same day or soon thereafter. Most were low level members of leftist opposition groups who had already been imprisoned for years before they were summarily executed. At least 4,000-5,000 prisoners were killed and buried in unmarked individual and mass graves. In some cases, families were not informed about the deaths of their loved ones until months later. In other cases, families were never informed. Families were not allowed to hold funeral services and, up until the present day, are forbidden from publicly mourning the loss.
Despite the passage of decades, the families of the victims have not given up on their quest for justice.
The sentiment of these families towards a direct perpetrator’s ascension to the presidency is captured by Lawdan Bazargan, who lost her brother Bijan Bazargan in the killings in 1988:
The idea that world leaders will be shaking hands with a man who has the blood of thousands of Iranians on his hands is upsetting and nauseating. My mother passed away in May 2020. For the first time since she’s gone, I am happy that she is dead and did not live to see Raisi as a president.
Perhaps unsurprisingly, Raisi was neither investigated nor held accountable by the Iranian state for his role in the state-sponsored purge. Rather, he was promoted to higher posts. Since 1989, he has served as Tehran’s prosecutor general, the deputy head of the judiciary, and finally, as the head of Iran’s judiciary, after his appointment in March 2019 by Iran’s Supreme Leader, where he continued a career built on abuses and repression of rights.
Raisi’s record prompted Agnes Callamard – the secretary general of Amnesty International and former U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions – to make a statement on June 19, right after election results were announced, calling on the international community including states that exercise universal jurisdiction to investigate his past and present involvement in crimes under international law.
So, what – legally – can be done?
Efforts to Date
At the outset, it should be noted that the reason the quest for justice has focused on the international community or States other than Iran is because justice cannot be pursued in Iran’s domestic courts. Iran’s judiciary is not independent, and the state is often the perpetrator. Given that Raisi himself is the head of Iran’s judiciary and will retain powerful ties there even after he assumes presidential office, the prospect of a legal process to hold him to account is an even more remote possibility.
In the absence of domestic legal forums to adjudicate the mass executions of 1988, human rights organizations and grass-roots justice initiatives have sought to fill the gap.
Reports from the Abdorrahman Boroumand Center, the Iran Human Rights Documentation Center and Amnesty International have meticulously documented the violations – including those directly perpetrated by Raisi – and advanced legal arguments concluding that the executions, torture and forced disappearances rise to the level of crimes against humanity, and possibly even genocide (on the reasoning that many were executed on the basis of their religious identity, not only their political beliefs).
In 2012, the Iran Tribunal – a people’s court dedicated to investigating atrocity crimes committed by the Islamic Republic in the 1980s – held proceedings at the Peace Palace in The Hague, The Netherlands. It was the culmination of a grassroots initiative composed of survivors and families of the victims, and was preceded by a Truth Commission held at Amnesty International headquarters in London to investigate the allegations. The judgment of the Iran Tribunal was legally non-binding but delivered by prominent figures in international law. In its 2013 verdict, the bench concluded that the Islamic Republic had committed crimes against humanity in the 1980-1989 periods against its own citizens in violation of customary international law.
In September 2020, a group of U.N. human rights experts wrote to the Islamic Republic, warning that past and ongoing violations related to the 1988 executions may amount to crimes against humanity and that they will call for an international investigation if the violations continue. The “ongoing” nature of the crimes refers to the fact that the Islamic Republic has continued to deny family members information about forcibly disappeared loved ones, including a refusal to provide accurate and complete death certificates. As mentioned, on June 29, Javaid Rehman made good on this pledge, urging the initiation of an international investigation into the crimes.
Amidst these demands for international fact-finding and justice, a push for accountability through national prosecution in domestic courts outside of Iran through the use of universal jurisdiction has also gained momentum. Hamid Nouri – a former deputy prosecutor who served on a “Death Commission” at Gohardasht prison (now Rajaee Shahr prison) outside of Tehran in 1988 – was arrested by Swedish authorities in November 2019 and will face trial in August 2021 for charges connected to his involvement in the 1988 executions. The upcoming proceedings are the first-ever trial against an individual for core international crimes committed by representatives of the Islamic Republic, and the first time someone has been criminally charged in a legally-binding court in relation to the 1988 executions.
Jurisdictional Issues
With the state of Iran unwilling to investigate and prosecute the perpetrators of the 1988 executions, victims and survivors are wondering whether international courts can fill the gap.
Iran is not a member state of the International Criminal Court, and given the composition of the United Nations Security Council, a referral under article 13(b) of the Rome Statute is unlikely. Additionally, the events in 1988 predate the start of the Court’s temporal jurisdiction, although the Court could exercise jurisdiction over the ongoing crime of enforced disappearances as a crime against humanity.
However, given the gravity of the crimes and fresh calls from U.N. experts for an investigation, the U.N. Security Council should put politics to the side and set up a Chapter VII court to adjudicate these crimes without the limitations of non-retroactivity.
The unwillingness of the Iranian state to investigate and prosecute the perpetrators also triggers the responsibility of other States. Yet there are hurdles on these potential avenues to justice, too.
Past Iranian presidents have traveled to France, Switzerland, Italy, Austria and other European states. Many of these states have adopted universal jurisdiction into their domestic criminal codes and procedure, which grants authority to their domestic criminal justice systems to prosecute crimes against humanity, war crimes, genocide and other core international crimes, even if there is no territorial or nationality link to the country. Presence in the territory is not always a requirement for an arrest warrant to be issued in a system with “pure” universal jurisdiction – like Germany – but presence of the perpetrator will nudge prosecutors to prioritize action on a file. Should Raisi follow his predecessor’s steps by traveling to European states, that travel may present opportunities for accountability.
In addition to travel to European states, past Iranian presidents also traveled annually to the United States for the gathering of world leaders at the United Nations General Assembly in September of each year. While the United States does not have a “pure” form of universal jurisdiction, it does have federal criminal statutes with extraterritorial application, including to prosecute torture, war crimes and genocide.
Raisi is currently sanctioned by the U.S. government for human rights violations, possibly complicating his access to a visa for entry – and to U.S. jurisdiction over him. However, per the 1947 U.N. Headquarters Agreement Act, the United States is required to issue visas to diplomats coming to the U.N., though the U.S. government has previously denied visas on national security grounds. However, given the terms of the Headquarters Agreement, it is unlikely that U.S. federal officials would arrest an alleged perpetrator on U.N. diplomatic business who is in the protected area.
Presence is important because the U.S. extraterritorial federal criminal torture statute mandates that an alleged perpetrator either hold U.S. nationality or be “present-in” U.S. territory. The United States does not yet have a crimes against humanity statute (more on that here) so the torture statute would be the relevant charging provision for Raisi’s role in 1988.
Immunities
Even if a country has the ability to prosecute crimes under theories of universal jurisdiction or other extraterritorial jurisdiction, applicable immunities may still bar prosecution of Raisi in national courts outside of Iran while he is in the post of president.
One of the strongest forms of personal immunity is head of state immunity, which applies to heads of states, heads of government, and foreign ministers. The president of Iran is not the head of state – the Supreme Leader Ali Khamenei is – but he is head of government. While heads of government do not enjoy immunity before international courts, this form of personal immunity can shield liability in a domestic setting and will be a major hurdle in prosecuting Raisi during his tenure as president. (This may also be relevant for whoever Raisi appoints as Iran’s Foreign Minister, such as rumored pick Hossein Amirabdollahian, who may bear responsibility for Islamic Republic war crimes in Syria.) It is worth noting, however, that personal immunity is reserved for individuals who are currently serving in these roles. Once they no longer occupy the post, they are no longer immune from prosecution on those grounds.
Yet even after his presidential term, Raisi may still be shielded by another form of immunity: functional immunity, which applies to state officials in relation to acts performed in their official capacity. The qualification as a state official in this context is much broader than for personal immunity, and includes former officials and individuals that are not officials but have acted on behalf of the state.
There are a few possible avenues around either functional or head of state immunity. A recent decision from Germany’s highest court in criminal matters appears to affirm that there is an exception to immunity for jus cogens violations in the criminal context – which includes the crimes against humanity and torture allegations against Raisi – though this determination varies country by country. Moreover, a notable exception to head of state immunity is when a State asserting jurisdiction does not recognize a leader as a legitimate head of state, such as in the case of Venezuela’s Nicolas Maduro. The U.S. Department of Justice indicted Maduro for narco-terrorism in March 2020, carrying echoes of the indictment against Panama’s Manuel Noriega decades earlier. But given that the Biden administration is currently taking part in indirect talks with the Iranian state on nuclear proliferation issues – and European countries are engaged in direct negotiations over the future of 2015 nuclear deal – the prospects for any State to refuse recognition of Iran’s next president as a legitimate head of government are, at present, unlikely.
Other Perpetrators of the 1988 Massacre
Although head of state immunity may block the prospects for Raisi to be arrested and tried in national courts while he is in office, he is just one of many alleged perpetrators who played a key role in the 1988 executions. Efforts to seek justice for the massacre need not be stymied by the specific barriers to prosecution surrounding Raisi.
Other perpetrators include individuals who were promoted to a series of top posts in the Islamic Republic following the killings, including Mostafa Pour-Mohammadi (Iran’s former Minister of Interior and former Minister of Justice), Mohammad Moghiseh (a top judge who currently sits on Iran’s Supreme Court), Hossein Ali-Nayyeri (former deputy chief justice on Iran’s Supreme Court) and many others.
While the prospects for these individuals leaving Iran and traveling to countries with universal jurisdiction frameworks are slim, it is not impossible. In recent years, human rights violators from Iran’s judiciary have traveled to Germany for medical treatment, to visit family and to even flee corruption charges.
European prosecutors can be proactive about closing the impunity gap by launching structural investigations into atrocity crimes committed by Islamic Republic representatives, including the executions in 1988 and the violent crackdown on protesters in November 2019. Such investigations would enable the collection of evidence even when perpetrators have not been specifically identified and can be an effective prosecutorial strategy to hold Islamic Republic violators accountable, as argued by Aida Samani here and by Amanda Ghahremani and myself here.
Raisi may benefit from the immunities of his post in the present, but the work can be done now to ensure accountability for the perpetrators of the 1988 massacre – whether now or in the future.