Report 40: The Prosecution’s concluding arguments
After almost 100 trial days, the prosecution finally held their concluding arguments on 26 and 28 April, marking the beginning of the end of the historic trial against the defendant suspected of having taken part in the 1988 mass executions in Iran. This report summarizes the prosecution’s presentation and is structured around the six themes which the prosecution’s closing arguments focused on.
The six themes are as follows.
- Whether the mass executions took place
- Whether the alleged executed persons were executed
- Whether the defendant is Hamid Abbasi
- Whether the defendant participated in the mass executions
- Legal Analysis
- Special claims, further detention and sentencing
The Mass Executions
The prosecution began by pointing out some of the overall objections that the defense had presented regarding the 1988 mass executions. It specifically brought up that the defense had questioned whether the executions had ever taken place and that it had argued that the events were made up. Before delving deeper into the defense’s objections, the prosecutors went on to shortly describe the state of Iran today, and what it was like 30 years ago. The prosecution further added that it perceived it as if the defendant, during his hearings, addressed the regime of Iran and that his reasoning and objections followed the official line of the Iranian regime. The defendant had, time and time again, used derogatory expressions against people who sympathized with various political organizations, e.g., MEK supporters, which demonstrated his views – and the regime’s views – on such people.
The prosecutors then went on to address the fatwa, which they argued was the starting point for the mass executions. Ayatollah Montazeri’s role in the publishing of the fatwa was further commented on, as well as the audio tape recording that was released by Montazeri’s son. The fatwa, the prosecution stated, had been issued by Khomeini and gave direct orders to execute MEK prisoners. The prosecution further commented on how the Iranian regime had handled the fatwa and that it had tried to keep it a secret. Regarding the second wave of executions, the prosecution could not with certainty claim that there had been a fatwa but stated that there most likely had been a fatwa and referred to statements made by for instance Expert Witness 10 (Payam Akhavan) and Witness 23.
Regarding the location of the executions, the prosecution argued that they had taken place at Gohardasht prison. Two prominent prisons were located in the city of Karaj: Ghezel Hezar and Gohardasht. The prosecution stated that it had been made clear through the witness hearings that detainees in Ghezel Hezar prison, who were to be executed, were eventually transferred to Evin prison but that all political prisoners held in Ghezel Hezar prison were transferred to either Evin or Gohardasht prison in 1985. In total, the court had heard 35 plaintiffs and 26 witnesses who through their testimonies had all provided a clear picture of the structure, organization and cruelty which prevailed in the summer of 1988. These eye-witness accounts presented to the court are of particular importance, the prosecution argued, as they were presented by people who were present and who experienced the events themselves. The prosecution then referred to all those testimonies to establish that the executions had in fact taken place and that they had taken place in Gohardasht prison. The prosecution argued that there was further support for that conclusion found in testimonies from expert witnesses, who had devoted all or part of their professional lives to researching this part of Iran’s history and who had unanimously stated that both the first and second wave of executions had taken place. The conclusion was further supported by material from the United Nations, Amnesty International, the Iran Tribunal and the Abdorrahman Boroumand Foundation. The prosecution argued that both the oral and the written evidence was clear on the fact that many had been executed in Iran during the relevant time period, and that the prisons Evin and Gohardasht played a certain role since a vast number of people were executed there during a short period of time.
The prosecution then went on to address some objections the defendant had presented throughout the trial. He had stated that he was not the Hamid Abbasi who the prosecution claimed had committed the crimes in question and that there had been another person named Hamid Abbasi working in prison during the relevant time period. He had also claimed that he did not work in Gohardasht prison, and that he had only been in Gohardasht prison 8-10 times during the years 1364-1372 (approx. 1985-1993). The defendant had repeatedly claimed that his place of work had been Evin prison, and the prosecution agreed that Evin prison might have been his actual workplace for some time during his career but emphasized that at least during the end of 1365 (1987), they believed Gohardasht prison to have been his actual place of work. The prosecution referred to the witness statements and the fact that none of the witnesses who had been imprisoned in Evin prison from the autumn of 1365 (1986) and onwards had seen the defendant there, which they likely would have if he had in fact worked there. The prosecution then went on to explain that the defendant, during the trial, had wanted to present himself as a person who had treated the prisoners with kindness and respect, that he had been appreciated by the prisoners and even expressed that he saw them as his own family. The defendant, hearing this, started nodding approvingly as if every word was indeed true. The prosecution explained that they interpreted these statements as a claim that he was not the Hamid Abbasi that the prosecution claimed him to be. The prosecution further explained that the defendant had also claimed that he had been on vacation for 2-4 months during the time period when the mass executions took place, because his daughter had been born on 10 Mordad 1367 (1 August 1988). This alibi, the prosecution stated, could not be verified. The prosecution concluded that all in all the defendant was not credible.
Moreover, the prosecution commented on the credibility of the witnesses and plaintiffs and noted that the defendant had claimed that they were all lying and plotting against him. The prosecution explained that the witnesses and plaintiffs all wished to have someone who participated in the torture and killings in 1988 brought to justice, and that this wish was not strange, but that it was rather quite common for victims of crime to harbour such wishes. The prosecution further argued that the plaintiffs and witnesses had no reason to come to court and deliberately lie to have an innocent person convicted, as this would ruin 30 years of their hard work towards achieving justice for the 1988 mass executions. Besides, for them to be plotting against him together there needed to be cooperation between them. However, it had been clear throughout the trial that many of those who had testified had different opinions and had various disagreements between each other, which rendered it impossible to cooperate. Despite their various disagreement and political opinions, they had all, however, agreed on one thing: that the defendant had participated in the mass executions in Iran 1988. As a further testament to the credibility of the plaintiffs and witnesses, the prosecution pointed towards the fact that they had not always been able to provide consistent information, and that some had even expressed uncertainty towards the defendant’s participation in certain situations or did not have any memory of Abbasi at all and could thus not point him out in court. When there had been a discrepancy between their statements in court and what had been said in the hearing with the police during the preliminary investigation or in interviews prior to the trial, the witnesses and plaintiffs had perfectly reasonable explanations for the discrepancies. The prosecution further added that such discrepancies were not unusual, and especially so when a long time has passed since the crimes were committed.
The prosecution further touched on the fact that photographs of the defendant had been circulated amidst the defendant’s arrest and referred to a case in Stockholm District Court in 2011/2012 (the “Cuska Case”) which dealt with war crimes committed in Kosovo. In that case, witnesses had been confronted with photographs of the alleged perpetrator which created insecurity about whether the witnesses recognized the perpetrator because they remembered him from the events in question or because they had seen photographs of him prior to seeing him in person. The defendant was sentenced in district court but acquitted in the appeals court because the court considered that it had not been shown beyond reasonable doubt that the perpetrator had committed the acts. The prosecution argued that the Cuska case could not be compared to the current case, as the circumstances were entirely different. For instance, the defendant had already been known to most of the witnesses in the case at hand and the pictures of the defendant had been neutral and not provocative. Then, further into their arguments as to why the witnesses and plaintiffs were all credible, the prosecution referred to the hearing with Expert Witness 3 (Torun Lindholm). They discussed the memory process and concluded that humans have a greater ability to code what is happening in traumatic situations and that many of the victims of the 1988 massacre therefore did not struggle with forgetting the traumatic events, but rather with the fact that they could not forget them.
The Executed Persons
The prosecution commenced by referring to the lists of persons who had been executed in Gohardasht prison in 1988, which it had previously submitted to the court and underscored that the same names could also be found in the lists over executed persons in 1988 that had been created by plaintiffs and/or organizations and submitted as written evidence. The prosecution then went on to address the dates of the executions on those different lists, and the defense’s objections that the dates on the different lists did not match with each other. The prosecution stated that it had been proven throughout the trial proceedings that the first wave of the mass executions ended on 16 August and that no executions were committed after 6 September during the second wave, exactly in accordance with the indictment. More importantly, the prosecution emphasized it had been proven that the executed persons had been present in Gohardasht prison during the time of executions and that they no longer existed after the mass executions had been finalized. This was supported by evidence provided by the plaintiffs, such as documents, letters and pictures, which clearly showed that they had lost their loved ones and that they had been executed during the period in question. What remained was for the prosecution to prove that they had in fact been executed in Gohardasht prison. As such, the prosecution began going through the evidence provided by relatives to the victims (which hold status as plaintiffs in the trial) who had been heard in the court, to prove that their relatives had been executed at Gohardasht prison.
The prosecution began with the plaintiffs who had lost relatives who sympathized with MEK. It thus presented evidence provided by plaintiff 18, 19, 20, 21, 22, 29 and 30, and concluded that it had been proven that their loved ones had in fact been executed in Gohardasht prison during the time in question. Amongst the evidence were for instance the lists invoked in the case, the books of plaintiffs 1, 34 and 35 and the oral evidence, i.e. the hearings held with other plaintiffs and witnesses who had either seen or been with the executed persons at Gohardasht prison or heard their names being called in the “Corridor of death”. Regarding the other prisoners who had been executed, whose family members were not plaintiffs in the current court case, the prosecution presented an Excel sheet with their names and the details of their execution as well as the evidence pointing towards them having been executed in Gohardasht prison. The list was filled with names of prisoners with columns next to the name detailing the specific set of evidence that supports the claim that they had been executed in Gohardasht prison during the specific time period. Regarding some of the prisoners, where only written evidence such as books or lists drafted by organizations supports their execution at Gohardasht prison, and no oral testimonies presented in court supports the claim, the prosecution argued that written evidence in general is enough to prove that someone has been executed when the written evidence is as extensive as it is in this case. For the cases where the written evidence was not as extensive, for example when the name of an executed person is mentioned in a book but does not appear in lists over those executed in 1988, the prosecution explained that it would leave it up to the court to decide whether they determined the evidence at hand to be enough.
The prosecution then went on to the plaintiffs who had lost relatives who sympathized with leftist groups, i.e. prisoners who had been executed during the second wave of executions. The prosecution presented and went through the information and evidence provided by plaintiffs 12, 15, 23, 28, 24 and 25, and also brought up a victim whose sister had been unable to attend the trial, and concluded that it had been proven that he, along with all the other relatives of the plaintiffs mentioned, had been executed in Gohardasht prison during the second wave of executions. Just like for the victims sympathizing with MEK, the prosecution had put together a list that was presented to the court and that consisted of the names of the rest of the victims (whose relatives had not been heard in court), compiled with all the evidence that supports the claim that they have been executed.
The Defendant is The Same Person as Hamid Abbasi
The prosecution explained that they would be presenting a number of situations which the witnesses and plaintiffs had described throughout their hearings of when they had met with or had observed Abbasi, and which had taken place both before and after the executions. Before initiating the presentation, the prosecution emphasized that almost all people heard throughout the trial had made observations of Abbasi during and in close connection to the time of the crime. The prosecution also explained that it could not comment on all the situations when Abbasi had been observed by witnesses and plaintiffs, but that some of situations would be highlighted to prove that the defendant was indeed Hamid Abbasi.
The prosecution began with the time before the executions, when Abbasi had allegedly been in Evin prison, specifically the time between 1361-1362 (1982-1984). During that time, plaintiffs 7, 17, 31 and 32, as well as Witness 5, had all had daily contact with Abbasi, and the prosecution then continued to inform the court of their encounters with Abbasi. Witness 28 had also said that he had seen Abbasi in 1361, the prosecution added.
Two witnesses mentioned seeing Abbasi in the years 1365 and 1367 (1986 and 1989): Witness 16 and Witness 7. The prosecution described their encounters with Abbasi in Evin, out of which one took place shortly before the mass executions took place. The prosecution commented that it seems that the defendant was conducting work duties there at the time and that this could be explained with the fact that employees of the prosecution authority would conduct work duties in various prisons belonging to the authority, which the defendant has previously stated himself. Still describing encounters during the time before the mass executions, the prosecution moved on to encounters that took place in Gohardasht prison. The prosecution informed the court that they had assessed all the information from the hearings regarding the plaintiffs’ and witnesses’ first encounters with Abbasi, and that they could conclude, from that information, that Abbasi had been posted in Gohardasht prison at least after the last half of 1365 (1986). For instance, a situation recalled by many, was when they had been forced to walk through a “human tunnel” of guards who beat them after being transferred from Evin prison to Gohardasht prison in Bahman 1366 (1988). Not all had encountered Abbasi at that time, the prosecution admitted, but those who had were plaintiff 31 and 35 and Witness 5. The now deceased Plaintiff 11 had also recalled seeing Abbasi there. Others who had been heard in court had also encountered Abbasi after their transfer from Evin prison to Gohardasht prison. Witness 2, who instead had been transferred to Evin prison from Gohardasht prison, had recalled seeing Abbasi during his transfer. The prosecution then went on to comment on the so called “gas room” as a form of punishment and informed that the “human tunnel” would also be used in that situation and then proceeded to list all of those who had observed Abbasi in those types of situations. Those who remembered that Abbasi had been present in those situations were, amongst others, plaintiffs 1, 2, 4 and 34 as well as witnesses 1, 6, 10, 20, and 27. Still focusing on Gohardasht prison before the executions took place, the prosecution brought up further occasions when witnesses and plaintiffs had met Abbasi. For instance, Plaintiff 1 had recounted an event where he had been beaten by Arab while Abbasi was present, Witness 7 had described being beaten by Abbasi when he had used a bit of a carpet to make shoes, while Witness 27 had said that he had met Abbasi for instance when applying for leave from prison. Plaintiff 14 had also seen Abbasi around the year 1366 (1987/1988) with Mortazavi who at the time had been the prison director at Gohardasht. Plaintiff 27 had also met with Abbasi at the “dadyari” office where Abbasi had thrown a teacup at his head and then again during a counting of the prisoners. Plaintiff 9 had recounted during his hearing how he had been beaten by Abbasi and sent to solitary confinement around New Years 1365-1366 (1987) while Witness 10 had described being beaten while Abbasi was present. Plaintiff 8 had recounted being brought to Abbasi after trying to stop the beating of his uncle and at last, Plaintiff 6 had also met with Abbasi at the “dadyari” office.
The prosecution then moved on to the time after the mass executions and explained that witnesses and plaintiffs had said in their hearings that they had been questioned and interviewed by Abbasi or that they had seen others being interviewed by Abbasi, specifically plaintiffs 1, 3, 4, 10, 14, 16, 22, 35 and Witness 3. The prosecutors thus concluded that the defendant had in fact participated in the interviewing of prisoners. The defendant himself, however, did not admit to being part of these interviews but only admitted to being present once when they were being held. The prosecution also told the court that many, for instance plaintiff 1, 6, and 14, had recounted how they had seen Abbasi at the time when the “lockdown” was being lifted and visiting days were being reinstated, but noted that they were not sure if that had happened only once or several times. Witnesses and plaintiffs remembered seeing Abbasi at other occasions after the mass executions as well, for instance for instance Witness 1 whose story had been confirmed by Plaintiff 34 and witnesses 6, 17 and 20. Others had also met Abbasi when visiting the “dadyari” office where they were being told that they were to be transferred to Evin prison.
Then prosecution continued presenting occasions where witnesses and plaintiffs had seen Abbasi and eventually moved on to the time after the mass executions, when prisoners were transferred to Evin prison. Many had said during their hearings that they had seen him during that time, for instance plaintiffs 1, 31 and 35 and witnesses 1 and 5, who had said that Abbasi and Naserian had accompanied them during the transfer from Gohardasht prison to Evin prison and that they had encountered him performing daily ordinary tasks. Many had also had more specific encounters with him, which the prosecution described to the court. For instance, on one occasion, a witness had heard a person with the name of the defendant being called to resolve a dispute, upon which Abbasi had arrived. The witness had then understood that Abbasi also carried another name (which is the name of the defendant).
The prosecution then moved on to the time after the release of the prisoners from prison and described events where plaintiffs and witnesses had met or seen Abbasi outside of the prisons. Those who had referred to having seen or met with him outside of prison were plaintiffs 2, 6, 17, 30, 31, 35 and Witness 20.
The prosecution then emphasized that several of those heard throughout the trial had been asked if the defendant was the same person as “Hamid Abbasi” and that many of them had assured with certainty that the defendant was the same person. The prosecution then came back to the issue of whether those who testified might have been affected by the pictures spreading at the time of the defendant’s arrest. The prosecution once again referred to the ”Cuska Case” and argued that the conclusion reached by the appeals court was not applicable in this case. They further pointed to the fact that Abbasi had been someone with a certain status, position and power even if he had not been the highest in rank. He had been someone to “watch out for” and there were strong reasons for the prisoners, in a pure survival instinct, to memorize Abbasi’s appearance. The prosecution also referred to the testimonies of plaintiffs and witnesses, where many of them had stated that they would not soon forget the appearances and voices of the people who had treated them with such cruelty during the summer of 1988. Many had also been able to testify about specific situations when encountering Abbasi that stood out from the “ordinary”, the prosecution added. There had further been some discrepancies in the witnesses and plaintiffs’ descriptions of Abbasi’s appearance, while some had expressed some uncertainty about when or whether Abbasi had participated in certain events, which spoke in favor of their credibility. The prosecution then described the descriptions of Abbasi’s appearance and behavior that had been presented to the court and pointed out that after almost 100 trial days, the prosecution had been able to conclude that he did in fact match many of the descriptions that had been made.
The prosecution then moved on to the written evidence and noted that the defendant’s real name had been associated with Abbasi already before his arrest in 2019. Furthermore, the examination of his cellphone had showed that the defendant used his old alias “Hamid Abbasi” when communicating with his contacts.
Before the trial day ended, the prosecution summed up their presentation of this theme by concluding that much of the evidence unequivocally pointed to the defendant being Hamid Abbasi and that it had been proven that the defendant is the same person as Hamid Abbasi. The prosecution then ended their presentation for the day.
The Defendant’s Involvement in the Mass Executions
The next trial day was initiated by the prosecution pointing out that what was left after proving that the defendant and Hamid Abbasi is the same person, is to prove his involvement in the mass executions. This theme consisted of two parts: to refute the defendant’s claim that he had not been present at Gohardasht prison during the relevant time frame and to then prove that he had participated in the murder and torture of prisoners.
The presentation began with a short introduction to the “Death Committee” and the “Death Corridor” where most plaintiffs and witnesses had been brought, some several times. According to the prosecution, the tasks performed to facilitate the mass executions were the following: the selection of prisoners to be brought before the “Death Committee” by subjecting them to questioning; the transfer of prisoners to the “Death Corridor” and the guarding of prisoners in the corridor; the providing of oral and written information about the prisoners to the committee; the placing of prisoners on the correct side of the corridor after their meeting with the committee; the oral announcement of the names of the prisoners who were to be executed; the placing of prisoners in the correct line and the transfer of the prisoners to the place of execution; the preparation of the prisoners for their execution and the execution of the murders; and the handling of their bodies after the execution. These tasks were performed repeatedly when the “Death Committee” was present in Gohardasht prison, the prosecution explained.
The prosecutors then questioned the defendant’s claim to have been on parental leave for 2-4 months during the time of the crime and argued that it lacked credibility. They explained that the defendant had held a position within the judiciary, which meant that he was obliged to be present at the time. This was further proven by the testimony of Plaintiff 35 who had overheard guards talking about not being allowed to leave the prison. The prosecution held that it believed that it had been important for everyone within the system to participate in the acts, in order not to leave anyone without blame who could later criticize the events.
The prosecution further argued that the written evidence submitted to the court proved that Naserian, Lashkari and the defendant had the main responsibility for carrying out Ayatollah Khomeini’s fatwa. Although it was still unclear whether the defendant was second or third in rank in the hierarchy, he nonetheless was in a position of power and played a crucial role in carrying out the executions.
The prosecution’s presentation of the defendant’s role in the mass-executions was structured around each day that the “Death Committee” had been present in Gohardasht prison, during which plaintiffs and witnesses had seen him participating in the executions.
Starting with the first wave of the mass executions, the prosecution explained that both written and oral evidence showed that the defendant had been present in Gohardasht prison and participated in the executions in different ways on the 7, 8, 9, 10, 12, 15, 18, 21, 22, 25 Mordad 1367 (29-31 July; 1, 3, 6, 9, 12-13, 16 August 1988). For instance, the defendant had brought prisoners to the “Death Committee”, announced the names of prisoners who were to be executed while in the “Death Corridor” and had led the prisoners to the execution site. The prosecution explained that many witnesses/plaintiffs had either heard Abbasi or interacted with him in the “Death Corridor” while he was carrying out his tasks and that their testimonies confirmed each other.
The prosecution further explained that the evidence submitted to the court also confirmed the defendant’s role in the transfer of prisoners to the “Jahad Ward” on the 16 or 17 Mordad 1367 (7-8 August 1988).
The prosecution further went over a number of occasions when witnesses or plaintiffs had observed or interacted with the defendant, which proved that the defendant had been present in Gohardasht prison during the mass-executions.
The prosecution then moved on to the second wave of executions and explained that it had been proven, through the evidence presented to the court, that the defendant had been present in Gohardasht prison and had participated in the mass execution of prisoners who sympathized with leftist groups on 5, 6, 9, 10 and 11 Shahrivar 1367 (27-28, 31 August and 1-2 September), and thus had not been on a parental leave during that time period. The prosecution admitted that they could not prove that the defendant had been in Gohardasht prison during the days that the “Death Committee” was not in Gohardasht prison. However, the prosecution considered it proven that he had acted together and in agreement with the other perpetrators, in accordance with what was described in the statement of the criminal act as charged, during the days that he had been present in Gohardasht prison. The prosecution further highlighted the fact that the defendant had deleted certain contacts with a connection to the prison environment and the judiciary, such as Naserian’s phone number, from his cellphone just before his departure to Sweden. He had also called Naserian the day before his departure, who had warned him about going to Sweden. The defendant’s explanation for this behavior was beyond all credibility, said the prosecution. Instead, the prosecution claimed, the defendant had removed the contacts from his phone so that he would not be as easy to link to Gohardasht prison and the 1988 mass executions in case he would be arrested by Swedish police.
The prosecution explained that, in conclusion, the massive amount of oral and written evidence proved, beyond reasonable doubt, that the defendant, together and in agreement with other perpetrators, very actively participated in the massacres of several hundred prisoners who sympathized with MEK or various leftist organizations in Gohardasht prison in the summer of 1988.
Lastly, the prosecution wanted to comment on how the defendant’s acts should be legally assessed. Regarding the defendant’s participation, the prosecution first noted that it had not been claimed, or in any way shown, that the defendant had acted out of fear or that he had been forced to commit the acts. On the contrary, it appeared that he had participated in these acts not only voluntarily but committedly. The prosecution argued that in the event that the court would not agree that the defendant’s actions constitute direct commission, then he should at least be convicted for aiding or abetting the crimes. The prosecution further argued that, in the event that the court would determine the “Death Committee”’s questioning as a trial, it was under no circumstances a fair trial and the executions were thus extrajudicial. In conclusion, the prosecution held that there was no basis for discharge from liability and that the acts in question constituted illegal killings.
The prosecution further added that it had to establish that an armed conflict was ongoing at the time of mass executions, that there had been a nexus between the armed conflict and the mass executions and that section 6 in chapter 22 of the Swedish Criminal Code was applicable (hereinafter “the Criminal Code”) for the defendant to be convicted for war crimes. It then moved on to establish those facts.
Firstly, the prosecution stated that it had been proven, throughout the course of the trial, that an international armed conflict (IAC) existed between Iran and Iraq at the time that the mass executions took place and that MEK had been part of that conflict. Alternatively, there had at least been a non-international armed conflict (NIAC) between Iran and MEK. The prosecution referred to written evidence that described MEKs military capability and the attacks that MEK participated in, which according to the prosecution clearly showed that MEK met the required level of organization and that the violence between Iran and MEK met the required level of intensity to reach the threshold of an armed conflict. The prosecution added that Expert Witness 6 (Jann Kleffner), Expert Witness 7 (Sally Longworth) and Expert Witness 4 (Eric David) had come to the same conclusion. The prosecution therefore argued that the armed conflict had been proven to at least have been a NIAC.
Secondly, the prosecution addressed whether the IAC between Iraq and Iran was still ongoing at the time that the mass executions took place and argued that such had been the case. Even after the ceasefire had been signed, the armed conflict did not cease to exist. On the contrary, the armed conflict continued for a long time after, which the prosecution argued had been proven through the written evidence that had been presented to the court. The prosecution further stated that if the court chose to classify the armed conflict as a NIAC between Iran and MEK, then the testimony of Expert Witness 6 (Jann Kleffner) showed that the armed conflict should be considered to have been ongoing at the time that the mass executions took place. Even if the armed conflict had in fact ended at the time of the mass executions, the prisoners were still entitled to protection under international humanitarian law (IHL), which Expert Witness 6 (Jann Kleffner) also confirmed through his testimony.
The prosecution then went on to address the connection between the armed conflict and the mass executions, i.e. the nexus. The prosecution argued that the expert witnesses had based their conclusion on credible sources, and that it had been proven through the evidence presented to the court that the cooperation between Iraq and MEK was ongoing for a long period of time. The prosecution went over examples of military attacks that Iraq and MEK had committed together and how they had planned those attacks, and concluded that they had acted together, supported each other and that Iraq had exercised control over MEK forces. Regarding the test used, they stated that it was clear that it was the “overall control” test that needed to be used to determine the level of control, which was a conclusion supported for instance by both Expert Witness 6 (Jann Kleffner) and Expert Witness 7 (Sally Longworth). The testimonies of the expert witnesses had also supported the prosecution’s own conclusion that Iraq had exercised overall control over MEK, which was further supported by the written evidence. This in turn led to the conclusion that MEKs use of force became part of the IAC between Iraq and Iran that was ongoing at the time. The prosecution then presented what had previously been mentioned in jurisprudence about nexus and how the different expert witnesses had expressed themselves with regards to it. The most important indicator of the nexus was the fatwa, claimed the prosecution, although it was not the only evidence indicating a nexus. Amongst other evidence, the prosecution highlighted an article published on an Iranian website, which could be seen to reflect the Iranian government’s own rationale, that justified the executions with reference to MEK’s part in the armed conflict. The prosecution concluded their argument by stating that the military operations “Forty Stars” and “Eternal Light” had been triggers for Ayatollah Khomeini to order the mass executions and that there had thus been a nexus between the executions and the armed conflict.
The prosecution then moved on to speak about the applicable rules and presented those applicable in IACs. It argued that since the MEK prisoners were seen as enemies to the Iranian government as a result of the armed conflict, they were protected under article 75 in Additional Protocol I to the Geneva Conventions. They had the right to enjoy these fundamental guarantees, whether they were taking part in the conflict or not. Here, the prosecution once again stressed that the prisoners were seen as Iran’s enemies, which was made clear by the fatwa, and that the prisoners were connected to the MEK sympathizers fighting in the conflict. Section 6 in chapter 22 of the Criminal Code was therefore applicable. The prosecution further stressed that section 6 in chapter 22 of the Criminal Code would be applicable even if the conflict would be considered to have been a NIAC, since the minimum protection offered under common article 3 of the Geneva Conventions had been a customary international rule already at the time of the mass executions in 1988. The prosecution recognized that Expert Witness 8 (Ove Bring) was of another opinion but underscored that Expert Witness 9 (Mark Klamberg) agreed with their position and that Expert Witness 10 (Payam Akhavan) had stated that the content of common article 3 had formed a customary international rule at the time of the mass execution. The prosecution thus concluded that section 6 in chapter 22 of the Criminal Code was applicable regardless of the classification of the conflict.
The prosecution also commented on the subject of torture and emphasized that the term torture encompasses not only physical harm but also psychological harm, such as the causing of strong fear or death anguish. It is not necessary to prove that the plaintiffs have in fact experienced such feelings, the prosecution explained. Instead, it is sufficient that the act in question typically causes such suffering. The prosecution then argued that the acts that the plaintiffs had been subjected to – such as being brought to a place in order for a committee to decide whether the person and their fellow prisoners are going to be executed after which many were executed while not understanding the reason for the executions – were such acts that typically cause strong feat and death anguish. The prosecution therefore concluded that they had been subjected to torture.
Special Claims, further Detention and Sentencing
The prosecution ended their concluding arguments by pleading that the defendant be convicted of war crimes and murder. The prosecution further pleaded that the court determine the crimes as severe cases of murder and war crimes (authors note: the severity of the acts affects the penal value). As for sentencing, the prosecution stated that life imprisonment was the only reasonable alternative due to the severity of the crimes in question. Finally, regarding the issue of the defendant’s further detention while awaiting the verdict, the prosecution argued that there was an obvious risk that he would escape if the detention was lifted. The prosecution further argued that detention is mandatory when the defendant is charged with murder. However, the prosecution did not request that the defendant be held with restrictions (author’s note: being held with restrictions means that the detainee’s contact with the outer world is restricted, e.g. by being prevented from making phone calls or accepting visits by persons other than their lawyer or the correctional authorities), despite recognizing that there was still a risk for evidence tampering.
Lastly, the prosecution reiterated its previous request that the belongings of the defendant be kept in custody and that he be deported (Authors note: if the request for deportation is granted, the convict will be deported to Iran only after serving the full prison sentence in Sweden).
In our next report, we will provide a summary of the plaintiff counsels’ concluding arguments.
A translated version of this report in Farsi can be found here.