Report 39: Expert Witness hearing pt. 4

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 complementary statement of facts from the prosecution and the complementary hearing with the defendant, which were held on the 21 April. In this report, we have summarized the hearing with expert Witness 10, which was held on 25 April.  

Expert Witness 10 – Payam Akhavan  

Judge Zander started the trial day by welcoming the expert witness, Payam Akhavan, who was participating through video link from Canada, and informing him that the hearing had been called on by the prosecution and that it would concern his knowledge about the Iranian legal system. The topic of the hearing would be Iranian procedural law and the actions of the Iranian regime against people belonging to oppositional groups in 1980’s as well as his work for the Iran Tribunal where he had been the head of the team of prosecutors. The floor was then given to the prosecution.  

Prosecutor Karolina Wieslander began by asking Akhavan to describe his academic background and work experience of relevance for this case. Akhavan responded that he is currently a Senior Fellow at the University of Toronto, Canada, a member of the Permanent Court of Arbitration at the Hague, and Special Advisor on Genocide to the prosecutor of the International Criminal Court. He was previously legal advisor to the Prosecutor’s Office of the International Criminal Tribunal for the former Yugoslavia. He is also co-founder of the Iran Human Rights Documentation Centre.  

Wieslander then asked Akhavan how he came to be involved in the work of the Iran Tribunal. He had been approached by some of the families of the victims of the 1988 mass executions around 2010-2011, he explained. Because of his experience from trials on crimes against humanity in international tribunals and his part in establishing the Iran Human Rights Documentation Centre, he was a known expert within that field, he added. Akhavan then explained that they wanted to establish a credible people’s tribunal to establish the facts regarding the events of 1988, and to have a world-class team of prosecutors and judges to make some sort of legal determination. Regarding the tribunal, they had concluded that they wanted a two-step procedure, and a steering committee was established to organize the event. This committee then selected a number of judges and commissioners and Ahkavan himself had been asked to assemble a team of prosecutors.  

Regarding the two-step procedure, which Akhavan was asked to further elaborate on, he explained to the court that the first stage had been a truth commission. This commission would establish the facts, he added. The second stage had been a judicial hearing which had the goal to establish the legal qualifications of those facts. The first stage, the truth commission, was held in London at the Amnesty International Human Rights Action Centre in June 2012. It was a five-day hearing from 18 to 20 June, and 75 witnesses testified. Amongst those witnesses were representatives that came from very different political as well as ethnic groups. Some of the witnesses were for example members of the MEK or members of leftist groups and smaller politics groups who had been incarcerated in Iran during 1988. The commission also looked more broadly at de atrocities committed during the 1980’s, including against the Kurdish or Arab minorities. All the witnesses were either survivors or the relatives of survivors. Written statements had been taken from the witnesses which had later been compiled and presented to the commission.  

Wieslander then asked what the work of the commission had resulted in. It had resulted in a report that was issued in July 2012, Akhavan responded. He then proceeded to name the members of the commission and explained that the report was based on the conclusions that they had drawn from analyzing 75 witness statements.  

Wieslander then moved on to the second stage of the Iran Tribunal, and asked Akhavan to describe it. The hearing was organized in Hague in October 2012, he explained. The report of the commission was part of the evidence compiled and there had also been 19 additional witnesses, so all in all there had been a total of almost 100 witnesses. There were six judges, a team of legal prosecutors led by himself, and the Islamic Republic of Iran had been invited to defend itself, although they never responded to the invitation, Akhavan explained. The Iran Tribunal’s work had resulted in a 52-page judgement with many annexes and was presented in 2013. The Tribunal noted that several thousand people were executed in prisons in Iran in 1988, essentially because of their religious or political beliefs and that the mass executions took place because of an order, a fatwa, issued by the supreme leader ayatollah Khomeini. It further noted that a so called “death committee” was established for the purpose of implementing the fatwa, which visited different prisons to determine who would be executed. The Tribunal concluded that the acts committed against political prisoners in 1988 were widespread and systematic and that they qualified as crimes against humanity. 

The prosecutor noted that the focus of the Iran Tribunal had been on state responsibility and asked whether any witnesses had named any particular individuals. Akhavan confirmed that they had. The most obvious were Nayyeri and Eshraghi, who had been expressly mentioned in the fatwa, as well as deputy prosecutor Ebrahim Raisi, who is currently the president of Iran, and Mustafa Pourmohammadi. However, the Tribunal had also heard witnesses name others, he explained.  

Wieslander then asked Akhavan whether the fact that the Iran Tribunal’s work had been based on non-profit work and the commitment of relatives and survivors, had affected the Tribunal’s ability to work impartially. Akhavan responded that the Tribunal had seen almost 100 witnesses, that the group of witnesses was diverse and that many of them had very strong political disagreements between each other. As professional lawyers and judges, the Tribunal further knew how to assess the credibility of evidence and to determine its consistency. It had not been a problem, he explained. Wieslander then asked if Akhavan had been able to make his own assessment of the witnesses’ consistency and credibility, upon which he responded that he had. His assessment was, he explained, that the witnesses were telling the truth and that many of them were severely traumatized. The details of their stories had convinced him because those details were identical across a hundred witnesses. This was in addition to numerous other documents that had been available to them, he added. The evidence also included the letters and statements made by Ayatollah Montazeri, who was the deputy of Ayatollah Khomeini at the time, but who opposed the executions. The most important piece of evidence, Akhavan described, was the fatwa issued by Khomeini, which clearly calls for the executions of all those who have the wrong political beliefs.  

As he had brought up the fatwa, the prosecution asked him to describe if the fatwa referred to a special group of people and why. Akhavan responded that it referred to the “Munafeqin” which he explained means “religious hypocrites”. He further added that it was widely understood that it referred to the MEK, which was involved in armed resistance against Iran (in the context of the Iran-Iraq war). Khomeini’s fatwa coincided both with Iran’s formal acceptance of UN Security Council resolution 598, calling for an immediate ceasefire between Iran and Iraq, and a subsequent armed attack by the MEK in Iran. Thus, there seemed to be a clear connection between Khomeini’s decision and the mass executions, according to Akhavan. He further explained that there allegedly had also been a second fatwa which called for the execution of sympathizers of leftist groups.  Wieslander then asked him if she had understood him correctly that he considered there to have been a connection between the fatwa and the executions and what had happened at the end of the war. Akhavan confirmed this but explained that it was a bit more complicated. He explained that the political prisoners – many of them members of the MEK – were in prison for minor offenses and that they were being punished for the actions of MEK-forces who were involved in the armed conflict. It had been an art of collective punishment, he told the court. 

Akhavan was then asked if he knew how many had been executed, upon which he responded that according to Montazeri, between 2800 and 3800 were executed, but that others had given significantly higher numbers. A part of the problem, Akhavan elaborated, was that the Iranian government made it difficult to have correct information. Wieslander then asked Akhavan to further describe Iran’s denial of the 1988 mass executions and its perception of the work of the Iran Tribunal. The Tribunal received a lot of media attention, Akhavan explained, and the official media outlets of the Islamic Republic finally recognized the events that had occurred in 1988. He then brought up a text on a website as an example where the mass executions were justified on the ground that the executed persons had been enemy combatants and that in war, according to the website, you could execute prisoners without a trial. Then, after the Iran Tribunal, Akhavan continued, the son of Montazeri shared an audio recording of a conversation where Montazeri was telling the members of the so called ”Death Committee” that they were making historical mistakes. These events thus put an end to 25 years of denial by the regime, Akhavan explained. Wieslander said that the text from the website had been invoked as evidence before the court and asked whether Akhavan could provide the court with any further information regarding the website. Akhavan gave the publishing date of the text and by whom it had been published and emphasized that the important thing to keep in mind is that all media in Iran is carefully and completely controlled by the government. There is no free media. Thus, the article on the website can be said to reflect the regime’s general attitude and official policy. Akhavan further added that even after the revelation of all the atrocities, the members of the so called “Death Committee” continued to occupy the highest positions within the state. The policy of the state is thus to reward rather than punish these people, he added.  

Prosecutor Wieslander then moved on to question Akhavan about the Iranian legal system, and if he would say, based on his own judgement, that the ”Death committee”’s hearings lived up to the requirements of a fair trial. Akhavan responded by first explaining how the Iranian courts of the time operated as well as the revolutionary courts and that they were notorious for not giving the accused any opportunities to a fair trial. But the death committee was even worse, he concluded, and it could not even be called a judicial process. It was rather a religious inquisition, he told the court, and compared it to the Spanish inquisition. The questions were what the religious and political beliefs of the accused were and that was the only thing that determined whether they would live or die, he explained.  

Wieslander then turned over the hearing to her colleague, prosecutor Martina Winslow, who asked further questions about why the Iranian regime was not prepared to be public about what happened in 1988. My assumption is that even by the terrible human rights standards of the regime, they realized that the public may not accept mass executions of political prisoners for minor offences, who were mostly innocent, Akhavan responded. It was a secret act of collective vengeance, he added. In an attempt to justify the mass executions, the regime made a connection between the political prisoners and the military forces who had engaged in armed conflict with the government. The fatwa of Khomeini made that link directly, Akhavan explained. It expressly said that because this group has engaged in armed resistance, its’ members must be punished and must be put to death. 

The floor was then turned over to plaintiffs’ counsel Kenneth Lewis, who proceeded to ask Akhavan about the classification of the conflict between Iran and Iraq and whether he believed that there were international customary rules applicable in non-international conflicts (NIAC) in 1988. Akhavan began by informing the court that he believed there to have been an international armed conflict (IAC) between Iran and Iraq, and that he could not respond to whether the MEK was involved in a simultaneous armed conflict, a NIAC, as he had not been asked to prepare for that question prior to the court hearing.  

Akhavan then continued by explaining the applicable law more generally, as well as the jurisprudence on common article 3. Regarding international customary law, he concluded that customary international rules were in fact applicable in NIACs at the time. Lewis then asked him if that meant that he believed that customary law would be applicable on what happened in the prisons in 1988, regardless of if the conflict was an IAC or a NIAC. Akhavan explained that to the extent that there could be said to have been a substantial connection between the armed conflict and the execution of political prisoners, then the prisoners would be protected persons within the meaning of common article 3 of the Geneva Conventions. On the other hand, he noted that many of the prisoners had been arrested for very minor crimes, like distributing pamphlets and participating in protests, which raised the question of whether there was in fact a nexus with the armed conflict, which he explained that he could not elaborate on further. Lewis then asked him if it was correct that the only facts that Akhavan leaned on when determining the nexus between the armed conflict and the mass executions were the facts that he had already mentioned, i.e., the wording of the fatwa and what he had seen in the media. This was correct, Akhavan confirmed, and added that the fatwa was the more important of the two.  

Akhavan then proceeded to inform the court that there is a principle within International Humanitarian Law (IHL) that expresses that IHL should be interpreted broadly to protect non-combatants from violations of IHL. This principle can guide the interpretation of the scope of common article 3.  

The rest of the plaintiff counsels had no further questions for the expert witness, nor did the defense, and so judge Zander thanked Akhavan for his time. He then noted that this marked the occasion for the court having heard the final witness in the case and that the next phase would be the party’s closing arguments. He then ended the trial day. 

Next report

In our next report, we will provide a summary of the prosecution’s concluding arguments. 

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