Abdorrahman Boroumand Center

The following is a translated excerpt of a Fars News Agency article published on August 1, 2012, entitled “What lurks behind the scenes of the Iran Tribunal show trial?” [1] The provocative nature of this article prompted us to prepare a brief legal analysis in response to the arguments presented therein, which will follow the translation.

 

The Fars News Article

“What occasioned the writing of this article, was the anniversary of Imam Khomeini’s Religious Decree (“Fatwa”) concerning the arrested or imprisoned members of the Hypocrites (formerly, Mojahedeen e Khalgh.) This Decree can truly be called a redeeming and lifesaving Fatwa, the result of which was poking the eyes out of a calamity named the Mojahedeen e Khalgh Organization.

….

we are out to prove the legitimacy of the 1988 executions from the perspective of international law.

There is no question as to the legality of the 1988 executions where national and religious laws are concerned; proving the legitimacy of these executions from an international law standpoint, however, is a task that has seldom been undertaken. That is why we are out to prove the legitimacy of the 1988 executions from the perspective of international law.

…

The first instance of doubt [“Shobheh” is an Islamic legal term which roughly translates into legal doubt or uncertainty] is as to the legality of a second trial for individuals already in prison, and whether or not a second trial for those sentenced to prison terms, and perhaps sentenced to death in the second trial, is legal.

In providing an answer to this legal uncertainty, one factor that cannot easily be set aside, is the “substantive revolution” that happened in early 1367 [mid-1988] in the nature of the Mojahedeen Organization; within five months from the start of the year 1367, the Mojahedeen Organization was transformed from a “political-ideological” organization with a military branch, to an “army” with a “military” nature. Three military operations within five months, killing a large number of [Iranian regular] military, Revolutionary Guards, and Bassij [organized militia] forces, getting equipped with, and utilizing heavy military equipment such as tanks, etc. in these five months, are not signs of a military force [the writers probably mean “are” signs of a military force.]

In accordance with the international criminal rule of “Enemy Character,” if it can be proven that individuals in prison are in contact with enemy military forces [in a situation of war,] all the rules that apply in a situation of war, apply to these individuals

The second point, is the imprisoned individuals’ contact with this Organization and their information as to the “substantive revolution” that had occurred in the nature of this Organization, since proving this point is of great significance in international law. In accordance with the international criminal rule of “Enemy Character,” if it can be proven that individuals in prison are in contact with enemy military forces [in a situation of war,] all the rules that apply in a situation of war, apply to these individuals, such as legitimate defense [or self-defense,] summary execution, or execution ordered by a military tribunal (the decisions of which are binding and cannot be appealed, and there is no need to secure an attorney for the accused) etc.

This rule provides: “[The concept of, or the word]”Enemy” is not solely limited to nationals, individuals or similar institutions that are under the enemy’s rule and sovereignty; the enemy’s vital lifelines, as well as nationals and goods belonging to impartial governments, or belonging to one’s own government but at the service of the enemy, are also considered enemy. [There should be an end quote here, but there isn’t] Hence, the Hypocrites that were in prison had that same enemy character, and therefore no objection can be made to putting these individuals on trial a second time: at the start of the year 1367, they were effectively a unit of the enemy’s military in prisons.

There are many signs in the memoirs of the remaining Hypocrites that indicate that imprisoned members of the Hypocrites had information about and identified with the military nature of the Mojahedeen (Hypocrites) Organization. These memoirs are also proof of imprisoned individuals’ undeniable contact with their military personnel and their information as to this “substantive revolution;” this is a fact that gives rise to the Enemy Character rule in international law.

On July 22, 1988, Massoud Rajavi who had gathered all the Organization’s forces in the Ashraf community center, announced in an extensive speech, the start of the “Eternal Light” operation and the “takeover of Tehran,” and stated: “A large number of forces will help us in this operation. Also, once prison doors are opened, they too are with us and will help us along. Prison forces are potentially with us.”

The analysis of the accounts of those months’ events reveals that the disruption of order in prisons in 1988 by certain prisoners, especially those affiliated with Mojahedeen e Khalgh, was due to Mojahedeen members stationed in Iraq carrying out the operations known as “Aftab” and “Chelcheragh” on March 27 [1988] and on June 19, respectively, and claiming that Iranian forces had been defeated in both operations and that their morale was low.

The third point in proving the legality of the executions is the role of the investigative boards (three-member board appointed by the Imam) in discovering this relation. Events that have transpired in the world today indicate that, had a phenomenon such as the Mojahedeen Organization and the 15,000 Iranians it killed (until 1988) occurred in any other country, that country’s authorities would most certainly have condemned the individuals associated with that organization to death without a trial; however, in Iran, through the Imam’s wisdom, this three-member board was devised in order to make sure that the individuals inside prisons were [in fact] in contact with the Hypocrites’ military forces.   This is an innovation that deserves to be strongly applauded.

Another point is that certain remaining members of the Hypocrites have attempted to create doubt by stating that many of the prisoners did not know the nature of these three-member boards and did not know what the objective of these investigative boards was in asking them about their contact with the Organization and whether they maintained their position [of membership in the Mojahedeen Organization.] There are, however, numerous memoirs of remaining members of the Hypocrites, such as Mehdi Aslani and Iraj Mesdaghi, where they admit that many of the prisoners who insisted on [maintaining] their positions, were aware of the consequences of taking a stand in favor of the Mojahedeen Organization (execution,) but they still insisted on maintaining their revolutionary (!!) stance. Hence, this doubt [objection] is also not accepted, based on the same memoirs.

Therefore, it can be said in short, that [bringing up] the killings of 1988 is a human rights excuse so that the remaining Hypocrites can continue to be cronies and mercenaries of the enemies of Iran

The last point about the individuals executed that year, is their number, which, in the remaining Mojahedeen’s psychological operations, has been stated to be two to five thousand, and at times they’ve taken it up to 30,000. This statistical difference itself is quite ridiculous, since this number [30,000] of prisoners in those years, is many times the capacity of the entire prison system of the Islamic Republic. Therefore, it can be said in short, that [bringing up] the killings of 1988 is a human rights excuse so that the remaining Hypocrites can continue to be cronies and mercenaries of the enemies of Iran by keeping pressure on the Islamic republic.”

 

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The Boroumand Foundation’s Response

The Fars article purports to provide a legal analysis of the 1988 killings, with the objective of “proving the legitimacy of the 1988 executions from an international law standpoint.” Our goal, as stated above, is to provide a brief legal analysis of the arguments presented in that article. It bears mentioning that the Boroumand Foundation, in cooperation with a renowned international law jurist, has conducted and published a thorough legal analysis of the 1988 massacre in which it has concluded that the massacre is a prime example of crimes against humanity.[2]

During the months of August and September of 1988, thousands of political prisoners incarcerated in the Islamic Republic, were summarily executed. The basis for this inhuman deed was Ayatollah Khomeini’s “Fatwa” to execute “Moharebeen”

During the months of August and September of 1988, thousands of political prisoners incarcerated in the Islamic Republic, were summarily executed. The basis for this cruel and inhuman deed was Ayatollah Khomeini’s “Fatwa” (religious decree) of July 30, 1988, to execute “Moharebeen” (enemies of God.) To carry out the executions, the Ayatollah created a three-member board and instructed them not to take pity on Moharebeen, and “not to have any temptations [of] doubts or uncertainties and rid [Islam] of infidels.”[3] (For a thorough account of the 1988 killings, see G. Robertson Report)[4]

Although Fars believes “there is no doubt or question [as to the legality of] the 1988 executions, as far as religious laws and internal laws [of Iran] are concerned,” the implementation of that Fatwa is a clear and flagrant violation of Iran’s international obligations. The Iranian government is signatory to a number of international conventions, the ratification of which has made the content of those conventions legally binding on Iran. For the purposes of critiquing the Fars news article, it is imperative to point out that Iran has ratified the international Covenant on Civil and Political Rights (1966) (“ICCPR”) and the Geneva Convention on the Treatment of Prisoners of War (1949) (“Geneva Convention”), in 1975 and 1957, respectively. This means that Iran is under the obligation to abide by and implement the provisions thereof, since, through ratification (i.e., acceptance of the provisions by the relevant national authority,) these conventions effectively become legally binding domestic law, infringement and violation of which creates domestic and international responsibility. Hence, any attempt in proving the legality/legitimacy of the executions must be done within the framework of the above conventions and the provisions thereof, as well as customary international law.

“proving the legitimacy … from an international law standpoint” runs into some very serious problems from the get go, if not to say completely lacks a legal foundation

1. Generally speaking, from an international law standpoint, the death penalty lacks legitimacy and can only be applied in very particular cases and upon going through a complex legal procedure. The limitations placed on the death penalty in ICCPR Article (6) are practically nothing short of abolishment. The article provides that the “sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant.” Accordingly, political “crimes” are not subject to the death penalty. Further, the “penalty can only be carried out pursuant to a final judgment rendered by a competent court.”

Also, pursuant to ICCPR Article (7), “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Many international law jurists have interpreted Article (6) in light of Article (7), thereby rendering the death penalty a prime example of cruel and inhuman punishment and therefore completely illegal. Based on this very viewpoint, the death penalty has been abolished in a great many countries, including the European Union.

Thus, any argument with the stated objective of “proving the legitimacy … from an international law standpoint” runs into some very serious problems from the get go, if not to say completely lacks a legal foundation.

 The basis for a new trial was neither a new accusation nor new evidence, but simply Ayatollah Khomeini’s explicit decree to kill

2. Fars then proceeds to analyze “the legality of a second trial” for the prisoners. Disregarding the fact that the basis for a new trial was neither a new accusation nor new evidence, but simply Ayatollah Khomeini’s explicit decree to kill, none of the rules normally associated with a trial, such as submitting an indictment, appointing or allowing the defendant to hire an attorney, or submitting evidence by the defendant, were observed. Further, since the three-member board was not an impartial court of any kind and was at best an extra-judicial body, one basically cannot talk of a “second trial.” Ayatollah Khomeini’s intention was not to initiate a tribunal and conduct a second trial, nor did the three-member board ever claim to be one. This is a fact. The three-member board was assigned the duty of assessing whether the Mojahedeen members were still loyal to their Organization, and whether members of the other leftist groups believed in God and Islam. Period. The claim of a “second trial” made by Fars is illusory, since there never was a second “trial,” and since there was no trial, there can be no talk of its legitimacy/legality.

 

3. In its quest to find legal justification for what it refers to as a “second trial,” Fars endows the prisoners with the term “war prisoner.” There are two basic problems with Fars’ legal analysis and the conclusions it draws therefrom, namely, a) how a political prisoner becomes a war prisoner, and b) assignment of the death penalty for a prisoner of war, based on international law, which we will consider separately below:

 The victims of the 1988 massacre were either political prisoners or prisoners of war; they cannot turn from one into the other at the whim and pleasure of the authorities and on the basis of the exigencies of the day

a)      The victims of the 1988 massacre were either political prisoners or prisoners of war; they cannot turn from one into the other at the whim and pleasure of the authorities and on the basis of the exigencies of the day. At the time of their arrest, most of these individuals were either members of the Mojaheddeen Organization, who, in most cases, were arrested prior to that Organiztion’s announcement of armed combat, or members of organizations and parties such as the Tudeh part, or the Fedayeen Organization (Majority) whose objections were solely political and their criticism geared toward some of the regime’s policies.

They had been arrested, tried, and sentenced for having committed political crimes such as distributing publications and announcements, participating in demonstrations, or presence in organizational meetings. Therefore, trying them again for any reason, (other than having committed another crime, which requires a new trial and not a second trial, since it is a new crime) whether criminal, political, or war-related, has no legal basis. Trying them for a new crime requires full adherence to the relevant procedure and taking all the necessary procedural steps required by law, the least of which is to inform the accused of the criminal charges against him/her and apprise him/her of the punishment(s) for such crime(s), which was not done in the case of any of the prisoners. The argument that they were “soldiers at the service of the enemy” and therefore “prisoners of war,” is not a valid one since it is not based on facts and on the usual and customary definitions of these concepts: Did they have access to arms while in prison, and if so, did they take up arms and wage combat? Were they in direct contact with the enemy and did they receive orders from the leadership of the enemy? If so, what did these orders consist of and what was the extent of the actions taken based on those orders? If they were involved in espionage activities, what type of confidential information did they provide to the enemy from inside the prison?   Is it at all possible that a severely controlled prisoner, incarcerated in the frightening prisons of the Islamic Republic, essentially engage in armed combat?

“The prisoners’ contact with this [Mojahedeen] Organization and their knowledge of the substantive revolution [in that Organiztion],” as stated in the Fars article, must not only be proven first, but it nevertheless, does not make a prisoner a “war prisoner” deserving of the death penalty, and under international law nonetheless. Additionally, what of prisoners who were not members of the Mojaedeen Organization, but were members of various leftist groups? How does a political prisoner suddenly turn into a prisoner of war, when the organization to which he/she belongs, not only is not at war (in accordance with the tenets of international law) with the Islamic republic, but also supports its general objectives?

 

b)      Let us assume, however, that the arguments presented by Fars’ jurists are valid, and consider the victims war prisoners. Not only does such an assumption not strengthen Fars’ position -contrary to what it believes- it considerably weakens it. The regulations of the Geneva Convention enumerate specific rights for prisoners and bestow great responsibility on member states, which the Islamic republic cannot claim, in any shape or form, to have adhered to where the 1988 massacre is concerned. For instance, Article 3 of the Convention prohibits very clearly and in no uncertain terms “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” Essentially, the raison d’etre of this convention and subsequent related conventions is to ensure and guarantee humane treatment of war prisoners, prevent summary executions, and generally prohibit the cruel and inhuman conduct that became rampant during the first and second world wars.

 

4. Let us now move to the international law exception to which the Fars news article refers in support of and as the central argument for its contention. It is worth mentioning that this so-called “exception” has a fairly long history that is better suited for discussion elsewhere. Suffice it to say that, in the past, certain soldiers and warriors, including pirates, spies, and irregular forces did not fell under the “prisoners of war” category and were at times summarily executed. A century ago, this was considered legal under existing international law, including the Law of the Sea. However, the experience of WWII influenced nations occupied by foreign forces to change the law to protect this group. According to Article 4 of the Third Geneva Convention of 1949, irregular forces are also entitled to prisoner of war status under certain circumstances.

 Therefore, trying them again for any reason, (other than having committed another crime, which requires a new trial and not a second trial, since it is a new crime) whether criminal, political, or war-related, has no legal basis.

5. Now let us assume that the 1988 victims fell under this exception. In such an event, in accordance with customary international law, a military court would first have to be instituted and the accused must have the right to defend him/herself and have the right to present minimal evidence, even without in the absence of legal representation. As for the victims of the 1988 killings, there never was a military court. The three-member board was at best a non-military institution and certainly not a military court, if it can be called a “tribunal” or “court” at all, since none of the elements associated with a court of law, were present therein.

 

Today, prisoners of war, whether military or civilian, regular or irregular, are protected by major international conventions such as the Geneva Convention, the Hague Convention, and customary international law. Prisoners-of-war must be treated in carefully defined ways which definitively ban summary execution, as the Second Additional Protocol of the Geneva Conventions (1977) Article 6.2 states: "No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality."[5]

 

The Islamic republic may also have had the concept of “enemy combatant” in mind, which was used widely by the United States subsequent to the September 11, 2001 attacks, the legitimacy of which is strongly in doubt from an international law standpoint, if not to say non-existent. A number of Supreme Court decisions allow the indefinite detention of these individuals at least until the end of hostilities, and authorize the government to try and punish them in military tribunals for crimes related to taking up arms against the United States.   Having said that, and although certain inhuman conduct with prisoners held in detention facilities such as Guantanamo is now common knowledge, except for a few individuals who have been sentenced to life imprisonment after years of investigation and upon exhausting all legal remedies and going through the entire appellate process, no one has ever been summarily executed and in the way the Islamic Republic seeks to justify.

Further, in order to refute Fars’ argument, it is imperative to emphasize that, even though according to existing valid data, the majority of the victims were members of the Mojahedeen Organization, a considerable number were members of other political groups

Further, in order to refute Fars’ argument, it is imperative to emphasize that, even though according to existing valid data, the majority of the victims were members of the Mojahedeen Organization, a considerable number were members of other political groups such as the Tudeh Party, The Fadyeen e Khalq, Rah e Kargar, Peykar, and others, as well as non-affiliated individuals, who had not taken up arms against the Islamic Republic and cannot be described as war enemies. Therefore, none of the arguments presented in the Fars news article can ever justify the murder of the non-Mojahedeen prisoners. And that is precisely why the article makes no mention of those prisoners. The truth of the matter is that the overwhelming majority of the victims was civilians and their most basic human rights, including the sacred right to life was violated. There never was a competent court, nor was there a fair trial, whether in accordance with domestic rules and regulations or with the principles of international law. The Ayatollah’s decree which explicitly contained the order of execution, and insisted on expedited implementation thereof, was the basis of these crimes. The three-member board, simply asked certain questions the substance of which were in total violation of human rights tenets and contrary to human beings’ basic freedoms, and then signed the order of execution.

 

Finally it must be mentioned that although the Fars article tries to make light of these murders and pretends the subject is repetitive (“hostile media has once again brought up the repetitive subject of the 1988 executions”) this article itself is definitive evidence of admission to having committed these atrocious murders, something the Islamic republic has always avoided and has basically denied. Further, as stated above, none of the branches of international law related to this tragic event, whether it is international human rights law, international laws of war, or customary international law, contain a concept(s) that would justify summary execution. On the contrary, the entire body of international rules and principles consider summary execution vile and illegal, and perpetrators of such crimes have been condemned to the harshest punishments in the course of numerous international tribunals set up for this same exact purpose.

 

It seems that the Fars News Agency, which is “a news agency connected to the security apparatus … and financed by the government” as stated by Iranian president Ahmadinejad in his recent news conference of October 13, 2012, is not only worried about the effect this massacre (and the continuous and relentless follow-ups by international institutions and organizations) has had on international public opinion (and will continue to have such an effect) but is at the same time unable to provide a logical and reasonable, not to mention legal, explanation and justification. Any attempt to justify the Islamic republic’s actions and position by resorting to international law, is in vein and will only result in further indignation and ridicule on the part of international public opinion and the international community as a whole.

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[1] The Iran Tribunal is a social movement set up in 2007 to investigate the atrocious murders of thousands of political prisoners at the hands of the Islamic republic of Iran during the 1980’s, and to hold the latter responsible for the killings. To that end, a “Truth Commission” was set up which held its proceedings in London between June 18 and 22, 2012. A final session, the Tribunal itself, was held on October 25-27, 2012. The Fars News Article in question was written between the two sessions.

[2] http://www.iranrights.org/english/document-1380.php.

[3] http://www.iranrights.org/library/document/106/ayatollah-khomeinis-decree-ordering-the-execution-of-prisoners-1988 .

[4] http://www.iranrights.org/english/document-1380.php.

[5]  Iran is not a signatory to this protocol, but its contents now constitute customary international law.