Report 6: Opening Presentation by the Victim Counsels

Gohardasht prison in Iran. One of the prisons where many persons were executed in the summer of 1988. Photo: Gohardasht Prison / Ensie & Matthias ( / CC BY-SA 2.0

In our three previous reports, we provided an overview of the key points of the prosecution’s opening presentation of facts and the evidence the case is built on, as well as a summary of the defense’s opening presentation.

In between the presentation from the prosecution and defense, counsels for the various injured parties gave their respective opening statements to the court. Three court appointed lawyers are acting as counsel for the majority of injured parties, with each lawyer representing a number of different clients, while a fourth lawyer has been privately appointed by a group of injured parties.

The three court appointed victim counsels represent former prisoners at Gohardasht who were associated with the MEK at the time and who were subjected to torture and relatives of such political prisoners who were executed and whom as such are considered injured parties in relation to the count of war crimes. The lawyers also represent relatives of prisoners associated with other political groups in opposition of the regime who were executed and as such are considered injured parties in relation to the count of murder.

The trio of counsels held a collective opening presentation and referred to the evidence presented by the prosecution. In accordance with established jurisprudence, the legal ground for damages for crimes committed outside of Sweden should be based on the legislation applicable in the country where the crimes were committed at the time that the crimes were committed. This was established through a 1969 ruling from the Supreme Court of Sweden where the court ruled that, as a general principle of Swedish Private International Law, liability for damages in non-contractual conditions should be assessed in accordance with the applicable legislation in the country where the tortious act was committed regardless of the fact that Swedish penal law is applicable in regard to the crime. The same principle was applied in a verdict by Stockholm District Court in 2013 regarding the crime of genocide that had taken place in Rwanda, which was later upheld by Svea Court of Appeal.

As a result of this principle, the counsels have had to inquire into Iranian legislation and jurisprudence on tort law. Each injured party is making a claim of 4,8 billion Iranian rial, which at the time of writing this report amounts to roughly 980,000 SEK or 96,000 EUR or 114,000 USD. The injured parties are basing their claim on a section of the then applicable Islamic Penal Code referred to as the law of diyat. Former prisoners who were subjected to torture and inhumane treatment and who are encompassed by the first count on war crimes, rely on articles 183 and 210 in the law of diyat, while relatives of prisoners who were executed and who are either encompassed by the count of war crimes or murder rely on article 3 of the law of diyat. In further support of the respective claims of the injured parties, the counsels are referring to a memorandum on the law of diyat from Mohammad Nayyeri, PhD in law and an expert on Iranian law, and have also called on him to give testimony in court on the content and applicability of Iranian tort law.

In the memorandum Nayyeri explains that in accordance with the laws at the time, punishment in qisa, i.e.retribution in kind, whereby homicide and bodily harm is punishable by the same harm, could be demanded by the victim or, in cases of homicide, by the victim’s next of kin. However, the victim or next of kin could also – instead of qisa – ask for a diya, a form of financial compensation for the harm. The blood money for one Muslim man is the standard against which the values of all other categories of persons are measured, both for the loss of life and for injuries.

Nayyeri claims that as courts have awarded compensation for psychological trauma and stress in quite trivial cases, it is plausible to suggest that a significantly higher compensation should be awarded if a person has been subjected to a higher amount of stress as is the case for prisoners subjected to torture and inhumane treatment at Gohardasht. In such cases, the compensation might reach or even exceed a “full” diya. The value of a diya is set yearly by the central bank of Iran and amounts to 4,8 billion Iranian rial as of 20 March 2021. The counsels have claimed damages amounting to a full diya on behalf of all their clients, both formers prisoners who were subjected to torture and inhumane treatment and relatives of prisoners who were executed.

Different views on the classification of the armed conflict

The privately appointed counsel held a separate presentation on behalf of his clients, who were all prisoners associated with the MEK. The counsel referred to the evidence that the prosecution had presented, and further referred to the claim made by the other counsel regarding damages. However, the counsel also presented a view on the nature of the conflict between the MEK and the Iranian regime on behalf of his clients which differs from that of the prosecution. His clients claim that the conflict between the MEK and Iran should not be regarded as an international armed conflict but rather, and in line with the prosecution’s secondary ground under the first count, that it should be considered a non-international armed conflict.

In support of the claim the counsel stated that the MEK denies having taken orders or having received any armed support from Iraq during Operation Eternal Light. He also stated that it is clear from Montazeri’s memoirs that the executions were planned before the operation took place. The counsel further claimed that the fact that the ICRC negotiated directly with the MEK regarding prisoners after the Iran-Iraq conflict proves that the group acted independently from Iraq. To support his clients’ claim, the counsel referred to testimony that is to be given in court by Professor Eric Davis of Rutgers University.

A Case of Genocide?

The counsel went on to state that what his clients were subjected to should be considered genocide. The prosecution has submitted a memorandum from Professor Mark Klamberg of Stockholm University where he draws the conclusion that the execution of prisoners associated with other political organisations than the MEK could be considered genocide, as the executions were based on the ground of religion. The counsel stated that the same should apply to prisoners associated with the MEK, as the grounds for the execution of prisoners associated with the MEK were religious as well.  The counsel claims that prisoners associated with the MEK were perceived by the Iranian regime as individuals who held beliefs and led a religious practice which constituted a different, and unacceptable, form of Islam. According to the counsel, this is clearly supported by the contents of the fatwa from Khomeini and by the questions that the so-called death committee asked prisoners associated with the MEK. The counsel then pointed out that Iran ratified the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) in 1956. In further support of his clients claim the counsel also referred to statements made by Ebrahim Raisi, then part of the death committee and now president of Iran, and the former head of Iran’s judiciary, Mohammad Yazdi, and others, where the MEK where described as mohareb (waging a war against God).

Next Report

In our next report, we will offer a summary of the first testimonies from injured parties and the line of questioning from the prosecution and defense respectively.

A translated version of this report in Farsi can be found here.