Iranian presidential candidate Ebrahim Raeesi, the main rival of incumbent President Hassan Rouhani, has been implicated in one of Iran’s gravest human rights abuses.
In the summer of 1988, shortly after agreeing to a ceasefire in the Iran-Iraq War Ayatollah Ruhollah Khomeini issued a decree ordering the execution of thousands of prisoners, most of whom belonged to a militant opposition group called the Mojahedin Khalq Organization.
The move was intended as retaliation for a military invasion members of the group allied with Iraq carried out along the Iran-Iraq border in the days after the ceasefire.
But Khomeini’s decree was an act of vengeful scapegoating, not war. The thousands of prisoners he slated for execution had not participated in that military operation. Many had joined the group to oppose the shah and had gone on to oppose Khomeini’s Islamic Republic. Some were people in their teens and early twenties who had done little more than hand out leaflets. At the time of the executions, they had already received prison sentences from an Iranian court. Some had already completed their sentences and were waiting to be released.
Despite the prior court verdicts, Khomeini assigned a three-member “death committee” to carry out his decree. These included an Islamic judge, Hojjatolislam Hossein-Ali Jaafar Nayyeri, a representative of the Ministry of Intelligence, Mostafa Pourmohammadi (who is currently Hassan Rouhani’s Justice Minister) and a state prosecutor, Morteza Eshraghi. Raeesi, who was the then deputy prosecutor at the Revolutionary Court of Tehran also cooperated with the Committee in implementing Khomeini’s decree.
The “death committee” executed anyone who did not repent of their political views.
The killings, although officials carried them out largely in secret, became a major source of controversy within Iran’s Islamic government. The late Ayatollah Montazeri, who was then expected to succeed Khomeini as Iran’s supreme leader called them the Islamic Republic’s “biggest crime” and subsequently fell out with Khomeini.
According to a series of letters included in Montazeri’s diaries, which were published by his seminary students in 2000, Khomeini ordered the execution of all Mojahedin in Iranian prisons on July 28, 1988. The sentence, Khomeini told Chief Justice Ayatollah Mousavi Ardebili, was “for everyone who at any stage or at any time maintains his or her support for the Monafeqin organisation.” “Monafeqin,” meaning “hypocrites,” was Khomeini’s pejorative term for the group.
Within Iran’s Islamic government, the killings are seldom spoken of. The subject is taboo in state media. Relatives of the deceased have faced decades of harassment from officials.
Now that Raeesi could become Iran’s president, those concerned with the killings have begun to consider whether he could be prosecuted under international law.
One option, it might seem, would be the International Criminal Court (ICC), a permanent international court established in 1998 to investigate and try individuals accused of genocide, crimes against humanity, war crimes and crimes of aggression. The court’s jurisdiction covers situations in which the alleged perpetrator is a national of a State Party or where the crime was committed on the territory of a State Party. However, since the ICC only came into force in July 2002, it only has jurisdiction over crimes committed after that date.
According to Payam Akhavan, the first Legal Advisor to the Prosecutor’s Office of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Iran’s mass executions of 1988 do qualify as “crimes against humanity” under international law, but the court would not have jurisdiction because of when they occurred. Most legal experts agree.
But Kaveh Mousavi, a human rights lawyer and the judge at the International Court of Arbitration, argues that, since the 1988 killings were instances of “political murder” in which bodies were never delivered to the families, the families are also victims and the crimes are considered “continuing.” While Iran has not joined the ICC, he says, Raeesi could find himself within the court’s jurisdiction if he leaves Iran and enters a country which has joined it.
Mousavi draws an analogy with the case of Chilean dictator Augusto Pinochet. During the 1970s, Pinochet’s forces kidnapped and killed members of the Chilean political opposition. But according to a verdict issued by Chilean judge Juan Guzman in 1999, since many of Pinochet’s victims were legally considered missing, his crimes were considered ongoing. Like Pinochet, Mousavi says Raeesi could find himself under arrest if he sets foot in a country—in Europe, for example—which accepts the principle of “universal jurisdiction” with regard to crimes against humanity. According to this principle, those who are accused of committing the most serious crimes against humanity can be prosecuted if they are found on the territories of countries which have accepted the principle, regardless of when the crime has been committed.
Recording Enforced Disappearances
The ICC may not be the only possible mechanism by which to address the 1988 killings.
Under international law, there also exists the category of “enforced disappearance.” Under the United Nations’ Declaration on the Protection of All Peoples from Enforced Disappearance, the crime is defined said to take place when
persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.
According to Shadi Sadr, a lawyer and director of the human rights group Justice for Iran, the 1988 killings fit this description. “Enforced disappearance,” she says, may be a more practical avenue to pursue, because of the time that has elapsed since the killing.
Justice for Iran has filed a series of complaints to the UN Committee on enforced disappearances, which have been accepted. “The first benefit,” Sadr says, “is that the names of the victims will be registered as forcibly disappeared in international documents. The second benefit is that, once the complaints are registered, various organizations will ask Iran to respond to these complaints. Even though the Iranian government has refused to answer many times, if the number of the questioning organizations increase, at some point the government will have to answer.”
The Struggle Inside Iran
The 1988 prison massacre remains a taboo in Iran because it reflects the judiciary’s lack of independence under the autocratic rule of a supreme leader.
Under Iran’s constitution, says Hossein Raeesi, a lawyer and law professor at Carlton University, a decree from Iran’s supreme leader cannot lead to the conviction and sentencing of an individual. According to article 36 of the constitution, he says, a sentence can only be executed by a competent court in accordance with the law.
“Ebrahim Raeesi has participated in political murders through the death committee and has acted beyond his judicial power,” Raeesi says. “He has overlooked many articles of the constitution, including the article on the separation of powers and the due process of laws.” It is the Iranian judiciary’s ongoing lack of independence, he says, that prevents Ebrahim Raeesi from facing prosecution at home.
Despite the risk of prosecution by a corrupt judiciary, some Iranians inside Iran have spoken out about the 1988 killings and other enforced disappearances.
In August 2016, Ahmad Montazeri, son of the late Ayatollah Montazeri, released an audio file in which his father can be heard criticizing senior judges and judiciary officials over the 1988 killings, telling them that history will remember their actions as the Islamic Republic’s greatest crime. In November 2016, Montazeri was sentenced to six years in prison by a special clerical court, which accused him of “acting against national security,” "propaganda against the state," and "publication of secret documents." A high-ranking cleric, Ayatollah Shabiri Zanjani, managed to get the sentence suspended.
In June 2010, Tehran’s Revolutionary court sentenced Maryam Akbari-Monfared to 15 years in prison for involvement in post-election protests in 2009. The harsh sentence, her husband suggested, owed more to her family history than her political activities. In the 1980s, four of her siblings had been executed for involvement in the Mujahedin Khalq Organization, and Akbari-Monfared had since been in touch with remaining siblings living in the group’s headquarters in Iraq. Akbari-Monfared had been arrested in December 2009 on the charge of Moharebeh--"waging war against God"--for her connections to the Mujahedin.After the release of the Montazeri audio tape, Akbari-Monfared called upon the judiciary to investigate why her siblings had been executed and where they were buried.
In 2011, Terhan’s Revolutionary Court sentenced Mansoureh Behkish, a founding member of a group known as the Mourning Mothers of Iran, or the Mothers of Laleh Park, to four and a half years in prison for “assembly and collusion against national security.” The group had been formed by mothers whose children were killed in the 1988 massacre. Prior to her sentencing, Behkish had been harassed, summoned for interrogations, and banned from traveling because of her advocacy work. Upon appeal, her sentence was reduced to six months in prison plus a suspended three and a half year prison term. She is now free on bail.
The struggle over the 1988 killings in Iran is a race between those who want to keep the memory of the dead alive and those aging participants in the massacre who want to run out the clock. One of them has been justice minister since 2013. Another could yet become president.