Report 35: Expert Witness hearing pt. 3

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

In our previous report, we provided summaries of the hearings with witnesses 27 and 28, which were held on 29 and 31 March. In this report we will provide summaries of the hearings with expert witnesses 6, 7, 8 and 9, which were held on 5 and 6 April. 

Expert Witness 6 – Jann K. Kleffner

Judge Zander started the court day by welcoming the expert witness, Jann K. Kleffner, and informing him that the hearing would concern his knowledge about the circumstances of importance when assessing whether an armed conflict has taken place and how it should then be classified. The hearing would be based on his legal opinion. The floor was then given to the prosecution.  

Prosecutor Karolina Wieslander started the hearing by asking Kleffner to first describe his academic background. Kleffner responded that he was a professor in international law with a focus on issues related to conflicts and that he had spent many years conducting research, teaching and publishing on the subject. He was then asked to account for the assignment he had received from the police as well as which material he had taken part in. Kleffner explained that he had been tasked with assessing whether there was an ongoing armed conflict in Iran at the time of the 1988 mass executions, on the basis of the information he had been given by the police. And if so, whether the conflict should be classified as an international or non-international armed conflict. The material he had received consisted of a PowerPoint presentation about Iran, a report of inquiry conducted by Geoffrey Robertson, a report by Amnesty called “Blood-soaked secrets” and he had also made references to open sources like Wikipedia.

Prosecutor Wieslander then asked Kleffner to explain how one would determine whether there existed an armed conflict and how one would proceed to classify it. “The determination is foremost exclusively a question of fact”, Kleffner responded. To classify the conflict, he continued, one would have to look at whether the conflict is international or not. For this assessment, one would need to look at who the parties to the conflict are. If there are two states batted against each other, the armed conflict is classified as an international armed conflict (IAC). But if there is organized violence between a state and a group which reaches the level of intensity required, it can be classified as a non-international armed conflict (NIAC). It does not matter what the parties themselves consider the situation to be, Kleffner emphasized.

Kleffner was then asked if he believed that an IAC and NIAC could exist simultaneously, to which he responded affirmatively. It is possible, as long as it is established that the requirements for both types of conflicts are fulfilled. And for NIACs, if they prima facie reach the required level/degree of intensity and organization, it may be so that another state enters and exercises control over this group which then turns the NIAC into an IAC. A NIAC can thus change character if a certain level of control is exercised. In jurisprudence, there have been different levels of control needed for this to happen and courts and tribunals have not yet reached an agreement as to what degree of control is necessary for a NIAC to change into an IAC.

When asked to explain the different levels of control, Kleffner described that there are two levels: “effective control” and “overall control”. “Effective control” is more demanding and is essentially a test to require operational control. A state must exert control over each individual operation for there to be effective control over an armed conflict. “Overall control” is a somewhat looser test, and it means that control does not need to be established vis-á-vis each operation but can be on a more general level. The test of control is also a factual matter, and the opinions of the parties are thus, once again, irrelevant.

On the subject of first needing to establish the type of conflict to then be able to establish individual criminal responsibility, the prosecution asked Kleffner which test, in his own opinion, would be applicable. To establish individual criminal responsibility for war crimes, the applicable test would be the “overall control” test, he responded. The “effective control” test is instead used to determine state responsibility.

In the legal opinion that Kleffner had drafted for the authorities during the preliminary investigation, he had also described an alternative approach that has been suggested in literature (rather than through jurisprudence). According to that approach, a conflict may be viewed as one single armed conflict, rather than two separate armed conflicts, when an organized armed group fights alongside state forces and those forces become so cohesive that they can be considered to exercise violence conjunctively. When asked about this, Kleffner explained that if one can determine that it is a matter of a joint action, then the theory would be applicable.

Kleffner was then asked about the end of the applicability of international humanitarian law (IHL) and the end of an armed conflict. Kleffner explained that these two are not necessarily the same. The end, just as the beginning, is a factual matter. The conflict must in fact have ended and it is on the basis of facts that this conclusion must be drawn, and it is therefore not of importance what certain actors have expressed. Informing someone that a conflict has ended does not mean that it, in fact, has ended. If the violence continues, then so does the armed conflict. The applicability of the law does not follow the state of the conflict. As long as there are people in need of protection, for instance persons deprived of their liberty, then their right to protection under the law still applies even if the armed conflict has ceased and no matter what type of conflict it was.

According to Kleffner, IHL was still applicable at the time of the 1988 mass executions. It could not be said that the military operations had reached their end. But regardless, the prisoners still had a right to protection as persons deprived of their liberty. Kleffner also proceeded to classify the violence between Iran and MEK in 1988 as an armed conflict, as it reached the requirement of intensity. MEK could further be classified as an “organization” within the meaning of the law, according to Kleffner. Regarding the two larger operations “Operation Eternal Light” and “Operation Forty Stars”, the control of the Iraqi authorities over MEK did satisfy the “overall control” test. Kleffner even stated that the control of the Iraqi authorities over MEK could be said to go beyond that of “overall control” and that there were circumstances in the material that had been made available to him that pointed towards there having been “effective control” exercised over MEK by the Iraqi authorities. Regarding the alternative approach of “cohesive forces”, it could also be applicable, Kleffner explained.

The prosecution then asked Kleffner to classify the conflict of 1988 to which Kleffner responded that both the “overall control” test and the alternative approach pointed to it being an IAC. And even if there could be said to have been two different, separate, conflicts and regardless of their classification, civilians were still protected from being tortured and killed (except for incidental killings).

The prosecution then ended the hearing, and the floor was given to plaintiff counsel Kenneth Lewis who proceeded to question the reliability of the sources that Kleffner had based his conclusions on and that had been handed to him by the police. Lewis pointed to the fact that some of the sources that Kleffner had been provided with were articles on Wikipedia, which could be altered by anyone. He further pointed to the fact that he had not himself found any other evidence that suggested that the MEK was in fact collaborating with the Iraqi regime. Instead, this is a claim that has frequently been made by the Iranian regime. Lewis asked Kleffner if it was correct to assume that if the information provided was incorrect, then the assessment of whether there was “overall control” would be incorrect as well. Kleffner agreed that this would be the case since the assessment of the classification of an armed conflict relies on facts.

Lewis then asked Kleffner if he had understood it correctly, that in 1988 there had been a smaller NIAC which later turned into an IAC. This was not correct, said Kleffner. He explained that in 1988, there had been two separate and independent conflicts. One had been a NIAC and the other an IAC. Around July to September 1988, according to the facts provided to him, there were no longer two separate conflicts but only one conflict – an international one. This is confirmed both by the “overall control” test and the alternative approach suggested in literature, according to Kleffner. Lewis then asked Kleffner a few follow-up questions and the hearing ended with judge Zander informing that the court would reassemble after lunch for the hearing with expert witness Sally Longworth. 

Expert Witness 7 – Sally Longworth

The hearing was started by judge Zander welcoming the expert witness, Sally Longworth, and informing her that she had been called to testify about the assessment of armed conflicts and in particular her legal assessment of the armed conflict in Iran 1988. The floor was then given to the prosecution.  

Again, prosecutor Karolina Wieslander started the hearing by asking Longworth to describe her academic background. Longworth responded that she is currently a doctoral candidate at Stockholm University within the field of IHL. She had, among other things, previously been a lecturer and researcher at the Swedish Defense University, a legal assistant at the Special Court for Sierra Leone and is a member of the Bar Human Rights Committee of England and Wales.

Longworth explained that she had been asked by the police whether she agreed with Kleffner’s legal opinion about the armed conflict, and she informed the court that she had been given the same materials as him. Wieslander then asked Longworth if she could stand behind Kleffner’s reasoning regarding how one assesses whether an armed conflict should be classified as a NIAC or IAC. Longworth answered that she agreed with Kleffner and that she had nothing to add. Wieslander then moved on to ask Longworth about the situation in 1988 and the use of force that was being used between MEK and Iran and if, according to her, the prerequisites for an armed conflict were fulfilled. Longworth responded that they had been fulfilled in 1988.   

Once again, the prosecution asked whether an IAC and a NIAC could be said to exist simultaneously and if there is a possibility for the actions of an organized group to be attributed to a state, and therefore to an IAC. Longworth responded that a non-state party can act on behalf of the state party and that the nature of the conflict can change over time. Longworth then went on to describe the two tests of control and her description matched the one made by Kleffner. And just like Kleffner, Longworth concluded that it would be the “overall control” test that needed to be used when determining individual criminal responsibility. By using this “overall control” test to determine MEK’s use of force, Longworth explained that, based on the information that she had been given, there was a clear division of labor and coordination, at least during “Operation Forty Stars”. Regarding the relationship between the two actors at that time, and regarding other operations like “Operation Eternal Light”, the material was less detailed, but that one could still see to a certain extent that there was coordination and support, Longworth explained. Looking at the overall picture, which the “overall control” test required, there could thus be said to have been some level of coordination between the two.

In the legal opinion that Longworth had drafted for the authorities during the preliminary investigation, she had also mentioned the wording of the fatwa. Therefore, the prosecution asked her to describe its importance for the test of control. Longworth began by explaining that the fatwa was evidence of how Iran potentially saw the situation at the time. She continued that it is not up to the parties themselves to determine the classification of the conflict since it depends on the facts available. It is a statement that was taken from that time, which is different from the other material, she explained. It does not, however, by itself suggest that there was “overall control” but based on the material that was given to her, including the wording of the fatwa, Longworth believed there to have been “overall control”.

Wieslander then brought up the alternative approach that Kleffner had mentioned and asked Longworth for her opinion on it. Longworth responded that, in her opinion, the fact that the two actors were using force together could be an example of coordination. That that fact could however not in itself be sufficient, but it would be one circumstance to consider. There must be evidence of these two actors planning and coordinating together to see “overall control”. Longworth was then asked about the protection of civilians during NIACs, and she responded in a similar fashion to Kleffner. According to her, civilians are protected even under the law of NIACs, meaning they should be respected, treated humanely, and protected. Civilians are just as protected during a NIAC as during an IAC, which follows from the Geneva Conventions common article 3 (which would be applicable on the situation 1988) and from customary law, she explained. Civilians are thus protected from being directly tortured and killed.

When the hearing was turned over to Kenneth Lewis, he introduced himself as the legal representative of persons belonging to MEK and noted that they had pointed out many times to the court that they did not agree with the facts that had been provided by the prosecution. They also believed it could not be proven that there had been “overall control” at the time. Lewis then pointed out that Longworth, in her legal opinion, herself had pointed out that some material she had been provided with lacked detail. Longworth agreed that some documents contained more detail than others and that some sources were better than others and that she had felt that it was important to point that out. The test is based on facts, she explained, and it is up to the court to decide whether the evidentiary requirements have been met for these facts. Lewis then asked her if she felt she had been given enough factual basis to be able to draw a conclusion to which she responded that she had. When asked about whether common article 3 and Additional Protocol I to the Geneva Convention could be said to have been part of customary international law in 1988, Longworth did not feel comfortable enough to provide the court with an answer since she had not been asked to investigate this specific question. Lewis then ended his questioning and judge Zander thanked Longworth for coming before ending the trial day.

Expert witness 8 – Ove Bring

The court day was started by judge Zander welcoming expert witness Ove Bring, who would be heard about his knowledge on the legal regulation, assessment and application regarding execution, torture, and inhuman treatment. Zander further added that the theme of the hearing had been expanded to also include the issue of customary law and of whether violations of common article 3 of the Geneva Convention (GC) IV could be said to constitute war crimes in 1988. The floor was then given to the prosecution.  

Prosecutor Hanna Lemoine started by asking Bring to describe his academic background to which Bring responded that, among other things, he had been present in Geneva 1976-1977 when the additional protocols (AP) of the GCs were adopted, that he had taught in the subject of the laws of war at the Swedish Defense University, that he had  been an international law adviser at the Swedish Ministry of Foreign Affairs and that he is currently a professor emeritus in international law.

Bring explained that he had been asked by the authorities during the preliminary investigation to comment on whether section 6 in chapter 22 of the Swedish Criminal Code (hereinafter “the Criminal Code”) in its wording in 1988, could be interpreted in the way that the acts that were committed in Iranian prisons in the summer of 1988 could lead to criminal responsibility under Swedish law. He had been provided with the same materials as the other expert witnesses.

Lemoine then asked Bring about the term “protected persons” under the GCs and if he believed that the MEK-prisoners in 1988 would fall into this concept. Bring described that “protected persons” traditionally were people that were deemed in need of protection and those were the persons that had been captured but not by their own nation.  The issue of citizenship was thus very relevant. However, this was later changed. Article 75 in AP I came, and it did no longer distinguish between citizenship and so the citizenship of the captured persons thus became irrelevant for their protection as “protected persons”. This meant that persons captured within the state of their own citizenship would still be protected as long as they had been captured within the framework of an IAC. Bring further added that he believes the conflict between Iran and Iraq to have been an IAC and that there had been a “nexus” between the armed conflict and the executions of civilians that sympathized with MEK. He also added that he considered the prisoners that sympathized with MEK as civilians, rather than prisoners of war.  

Lemoine then asked Bring to explain article 75 in AP I – which is applicable in IACs – and whether it has any significance for the applicability of section 6 in chapter 22 of the Criminal Code, considering that Sweden, but not Iran, was party to the protocol at the time of the 1988 mass executions. It did not have any significance, Bring responded, not in the sense that it would free Iran of any criminal responsibility according to section 6 in chapter 22 of the Swedish Criminal Code. Bring then explained that the wording of section 6 had been constructed in such a way that it incorporated (without expressly mentioning it) customary law in general referring to the agreements which Sweden was a party and to customary law that was applicable during that time. Sweden was a party to AP I, so even though Iran had not ratified it and regardless of whether Article 75 could be considered customary law or not (which Bring believed it to have been), Iranian citizens fell under the criminal liability rule of section 6.  However, if the conflict is considered to have been a NIAC, individuals cannot be held criminally liable under section 6 in chapter 22 of the Criminal Code, because of the way it was structured in 1988. Bring noted in this regard that common article 3 covered situations within NIACs but that it had not been transferred to section 6 in chapter 22 of the Criminal Code to infer criminal responsibility. The only way criminal liability for war crimes committed during NIACs could come into question would be if it could be said to have reached status as customary law at that time and through its characteristic of customary law had been incorporated into section 6 in chapter 22 of the Criminal Code. However, Bring concluded, that had not been the case since Sweden had not accepted the customary law of criminal liability for breaches of IHL committed during NIACs until 2010. This is where Bring and the next expert witness, Klamberg, have different opinions.

Regarding the evidence used to determine when the protection in common article 3 became binding customary law which could lead to criminal liability, Bring mentioned the study conducted by the International Committee of the Red Cross (ICRC) from 2005 on the subject. Its relevance and accuracy were then discussed and Bring pointed out that one could not accept 2005 as a year where the content of common article 3 reached a status as binding customary law. Bring then noted that states could accept to be bound by customary rules at different times and that Sweden had not accepted that it was bound by this rule until 2010.  Bring suggested that there had not been enough case law to develop this custom in Sweden before 2010 and that the few cases that we had, for instance the Arklöv case (2006), had been wrongly executed. In that case, the Swedish court convicted a person for war crimes committed in 1993 during a NIAC by arguing that the customary law for it existed in Sweden at the time. Bring meant that the court’s ruling was wrong and that Swedish courts were in fact not bound to consider criminal liability for breaches committed in NIACs at that time, although there had been an ongoing development in that direction.

The hearing was then handed over to the plaintiff counsel Kenneth Lewis, who asked Bring to elaborate on the difference between AP I and AP II. Bring explained that Sweden ratified both at the same time and that the only difference relates to their connection to section 6 in chapter 22 of the Criminal Code. Only AP I had that connection, which meant that individual criminal responsibility could only come into question for breaches committed during IACs on the basis of section 6. Regarding common article 3 of the GCs, Bring explained that it had developed into customary international law but that the principle of individual criminal responsibility for breaches of common article 3 had not. At least not in Sweden at the time of the events in 1988. Lewis then pointed out that the development of customary law is an objective fact and questioned whether it was of importance at what time Sweden itself considered it to be bound by the custom. During an ongoing development of customary law, Bring noted that it would be important for the country to recognize at what time it had accepted itself to be bound by a customary rule. However, if a customary rule is already established, and it is not an ongoing development, then it would not matter what the state itself would think because it would be bound by it regardless.

Lewis attempted to summarize Bring’s statements and said that, in the case that the events 1988 were considered to have taken place within the context of an IAC, there would be no doubt that the rules previously discussed would be applicable, to which Bring agreed. Bring was then asked about the different tests of control which had been mentioned by Kleffner and Longworth, and he agreed that the “overall” control test would be the one applicable even if he himself considered such a test unnecessary. One could clearly see, according to Bring, just by looking at the facts, that the conflict had been an IAC.

Lewis had no further questions, and the hearing was turned over to defense attorney Daniel Marcus who asked Bring to go into further detail on ICRC:s 2005 study on customary international humanitarian law. Bring explained that the study declared that, in accordance with customary law, individual criminal responsibility could come into question not only in IACs but also in NIACs at that time. But that was only the ICRC’s own perception, Bring emphasized. He further added that ICRC:s had itself noted in the study that the development of the rule towards gaining status as a customary rule had only just begun, rather than the rule being fully established in customary law. The hearing was then ended by the defense and judge Zander thanked Bring for coming and informed the court that it would reassemble after lunch.

Expert witness 9 – Mark Klamberg

After the court had reassembled, judge Zander started the hearing by welcoming the expert witness Mark Klamberg for coming and by informing him that he would be heard about how breaches of international law are regulated and about the assessment and applicability of international law in the context of the 1988 mass executions in Iran. Judge Zander further added that the theme of the hearing had been expanded to include whether common article 3 of the GCs could be said to have been part of customary law at the time of 1988. Judge Zander then gave the floor to the prosecution and prosecutor Hanna Lemoine asked Klamberg to briefly describe his academic background. Klamberg responded that he had worked at the Swedish Ministry of Foreign Affairs, received his PhD in international law in 2012, worked as a lecturer in international law, became an associate professor in 2015 and a professor in 2019. Regarding the materials he received from the police to fulfil his assignment, they had been the same as for the previous expert witnesses. He had also himself searched in relevant academic literature.

Lemoine informed Klamberg that she would start by asking questions on the premise that the conflict in 1988 had been an international armed conflict. She then asked him to explain section 6 in chapter 22 of the Criminal Code. Just like Bring, Klamberg pointed out that the section referred to agreements and international customary law. Even if Iran had not been party to the APs, those rules would still be applicable through customary law. Klamberg then stated that he, from the material provided, concluded the relevant issue to be mistreatment of prisoners. How one would proceed in that case would be to first determine whether there had been an armed conflict, if there had been any connection between the conflict and the mistreatment, and then which rules would be applicable. One would begin by asking whether these prisoners had been “prisoners of war” which Klamberg meant that they had not been based on the material provided to him. The court could, however, make a different assessment, he added. But even prisoners who were not “prisoners of war” had rights, for instance procedural rights which could be found in article 75 of AP I and in customary law. Here Klamberg referred to the same 2005 ICRC study on customary international humanitarian law that Bring had mentioned. It is a kind of minimum protection that applies to all prisoners, Klamberg explained, whether “prisoners of war” or ordinary prisoners, regardless of the classification of the conflict, as long as there is a connection to it.

Lemoine then asked Klamberg of the applicability of section 6 in chapter 22 of the Criminal Code in the case of a NIAC. Klamberg began by explaining the applicable rules more generally during armed conflicts. When there is a NIAC, he explained, common article 3 applies, as well as some protection in AP II. During IACs, we have all four GCs as well as AP I. Between IACs and NIACs, we have customary law to fill in the gaps. Klamberg then noted that he and Bring had different views on how one would come to determine what was customary law at the time and that it was an important question since one would not otherwise know what was punishable. Klamberg then went on to describe customary law and he explained that it consists of two parts: an objective element and a subjective element. If enough states act a certain way and they do so because they believe it to be their legal obligation, then that rule can be said to have become part of customary international law. ICRC had said in its report that there was such a rule regarding violations of IHL during NIACs, but this was said in 2005. The question then becomes what the situation could be said to have been in the year 1988. Klamberg pointed out that he had studied both the objective part and the subjective part as well as state practice which had led him to conclude that it was criminalized in 1988 to violate the laws of war during civil wars (NIACs). The rules applicable were common article 3 and AP II which Klamberg meant had been made into customary law at that specific time. Klamberg then brought up that Bring had mentioned that the 2005 ICRC study was irrelevant for Sweden’s acceptation of the rules as customary law as Sweden did not accept them until a report was published in 2010. Klamberg opposed that the report from 2010 had any significance in relation to when Sweden could be said to have been bound by customary law. Instead, what was important to him was the study conducted by ICRC that showed how states had acted and continued to act during that time.

Klamberg then informed the court that he had sent out surveys to colleagues in 70 countries to receive an answer about how they perceived the legal situation before the year 2005. He had focused on countries that according to the ICRC study had regulations in place in 2005, to see if that had been the case already in 1988. He had asked his colleagues whether they agreed with the conclusions drawn in the study and how their regulations had changed between 1985 and 2005. He had received responses from colleagues in 20 countries, and amongst those he concluded that 13 countries had legislation in place that criminalized violations of IHL during NIACS while one country had changed its legislation in 1991 and four countries had changed it in 1992. Only one of the countries had not criminalized it at all. From these responses Klamberg drew the conclusion that violations of IHL during civil wars were classified as violations of international law for which individuals could be held criminally responsible in Sweden since 1985. Actions against common article 3 could therefore be said to have been criminalized at the time of the 1988 mass executions in Iran.

Lemoine then concluded her questioning and judge Zander turned the floor over to the defense. Defense attorney Thomas Söderqvist began by asking Klamberg if it was correct that Klamberg believed individuals could be held criminally responsible for violations of IHL under customary law already in 1985, which Klamberg confirmed. The defense then questioned the study that Klamberg had conducted himself by sending out surveys to colleagues in different countries. Klamberg responded that he had not only relied on their word but had himself asked for the legislation and necessary proof to fact-check their responses. The defense then questioned Klamberg’s interpretation of the 2005 ICRC study and pointed out a statement Klamberg had previously made in an article in the publication “Advokaten” that the ICRC study “supported the fact that, at least from the beginning of the 1990’s, there was a customary rule on individual criminal liability in civil wars”. Klamberg explained that the text had been a direct translation to Swedish from the study but that it could not be interpreted as to determine what had applied before that time and that was what Klamberg had sought to find out. He further added that there is always the possibility of development. Things can happen in countries even after a rule has already become binding. And the fact that things continue to happen after a certain point in time does not mean that that rule did not exist before that time.

Lastly, Söderqvist asked Klamberg how many countries that must have applied a certain rule in a way for it to become international customary law and if 13 countries could be enough. Klamberg responded that one usually, in that aspect, talks of “quality” and “quantity”. “Quantity” is number of states and “quality” is how clear those actions are. Bring had seen the starting point for the development of a customary rule relating to criminal liability in civil wars in the 1990s, Klamberg explained. He himself saw the start in the 1960s and he described that he believed that there had been a constant line of development from 1960 until now. The defense then concluded their hearing, and the trial day ended.

Next report

In our next report, we will provide a summary of the hearing with Witness 29.

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