Report 41: Plaintiff Counsels’ concluding arguments
In our previous report, we provided a summary of the prosecution’s concluding arguments, which was held on 26 and 28 April. In this report, we have summarized the plaintiff counsels’ concluding arguments which were held on 29 April and 2 May.
Plaintiff Counsel Bengt Hesselberg
Hesselberg was the first of the plaintiff counsels to present his concluding arguments. He started by informing the court of the themes that he would address in his presentation and then added that he would leave out much of the legal assessment as the prosecution had already addressed it in a great manner during its concluding arguments, and that he joined their reasoning in that regard. Hesselberg then proceeded with informing the court of what his clients, the victims, had gone through and that their experiences, for instance, had led to many of them developing PTSD. One of his clients had expressed that he felt as if he was “being executed every day”.
He then moved on to comment on the evidence and explained that since most of it was oral evidence, it was important that it was robust. He explained that many had testified about what must have been the most traumatic experience of their lives and that their stories were strong and reflected their own experiences. They had all made an effort to make sure that the information that they provided was accurate and not exaggerated. Regarding the discrepancies in some stories, Hesselberg, just like the prosecution, stated that the plaintiffs and witnesses had explained those discrepancies. He also pointed out that the interpretation played a crucial role in this regard. He further underscored that the hearings conducted throughout the preliminary investigation did not form part of the trial. As for the question of whether the defendant is the mentioned “Hamid Abbasi”, Hesselberg emphasized that there were no discrepancies whatsoever in the accounts of the plaintiffs. There were also no other motives, like hate or revenge, steering his clients towards lying in court and Hesselberg argued that their accounts were credible. Regarding their reliability, he argued that the fact that those who testified had been talking to each other should not be deemed to take away from their reliability, as it was not strange to do so when one experiences what they had experienced. Furthermore, Hesselberg continued, the defendant was a very central figure in Gohardasht prison at the time and the prisoners interacted with him on a daily basis, sometimes without wearing blindfolds. According to the testimonies heard in court, the defendant worked in Gohardasht prison at least during the years 1365-1367 (1986-1989), which meant that witnesses and plaintiffs had been able to observe the defendant during multiple occasions and during a longer period of time. Many of the plaintiffs and witnesses had also been in their prime in terms of their ability to remember. Hesselberg referred to what Expert Witness 3 (Torun Lindholm) had said during her hearing regarding the human memory and how humans are good at recognizing faces and remembering traumatic events. Apart from the oral evidence, Hesselberg also addressed the supporting evidence (for instance lists, books, notes, and death certificates).
Hesselberg then moved on to the question of whether the defendant had actually worked in Gohardasht prison and explained that although the defendant had claimed to not have been in Gohardasht prison during the time that the mass executions took place, all the oral evidence presented in court had proved him wrong. Hesselberg then echoed the words of the prosecution, by explaining that the plaintiffs and witnesses sympathized with different groups which represent different beliefs and opinions and that there was thus a lot of tension between them. The one thing, however, that they all agreed on was that the defendant and “Hamid Abbasi” is the same person, that he had worked in Gohardasht prison and that he had participated in the mass executions. Hesselberg further underscored that one of his clients had never stepped foot inside Evin prison but still repeatedly claimed to have seen and known the defendant. Additionally, the defendant had, according to himself, treated the prisoners with kindness and had seen them as his own family, which was not the slightest bit true. The defendant’s statement, that he is being confused with someone else who shared the same alias as himself in prison is completely improbable, said Hesselberg. Hesselberg further commented on discrepancies in the defendant’s statements about when he had returned to work after his parental leave, and the fact that the defendant had phone numbers to people who had participated in the 1988 mass executions in his cellphone.
Hesselberg then addressed the defendant’s participation in the mass executions and referred to the number of plaintiffs and witnesses who in their testimonies had described how the defendant had participated in conducting the mass executions. Hesselberg explained that the majority of the witnesses and plaintiffs had been able to place the defendant in Gohardasht prison, for instance in the “Death Corridor” on several occasions, where he had participated in the executions by, inter alia, announcing the names of prisoners, guarding them and leading them into the room where the “Death Committee” presided and then to the execution site.
Hesselberg further commented on the issue of damages to the plaintiffs and the applicable legislation. He explained that he had requested one “diat” for each client, which Expert Witness 5 (Mohammad Olyaeifard) had deemed reasonable, as well as legal expert Mohammad Nayyeri in his written legal opinion which had been submitted to the court.
For the last part of his concluding arguments, Hesselberg went over, client by client, the evidence in support of them having been imprisoned in Gohardasht. He also explained that many had suffered physical and mental torture in prison, which they still suffered the consequences of today. As regards those of his clients who had not themselves been imprisoned in Gohardasht prison but had lost family members to the mass executions, he went over the evidence of each family member having been executed.
Concluding his presentation, Hesselberg stated that the evidence against the defendant was more than convincing, and that the defendant should be convicted in accordance with the prosecution’s request.
Plaintiff Counsel Ghita Hadding
Ghita Hadding explained that the plaintiff counsels had divided the concluding arguments between themselves and that she would therefore try to avoid being repetitive. She then began her presentation with a quote from Amnesty International. She then addressed the testimonies that had been given in court and stated that Bengt Hesselberg and the prosecution had already touched on this subject, but once again emphasized that it is what appears in court that forms the basis over which the court may base its judgement. She then commented on the credibility and reliability of the witnesses and plaintiffs’ testimonies and argued that they were all credible and reliable. Regarding discrepancies between the plaintiffs’ statements in court and their statements in police hearings, Hadding noted that a long time has passed since the 1988 mass executions, that the witnesses and plaintiffs were only questioned by the police once throughout the preliminary investigation and that they were not allowed to go through the interrogation protocol afterwards. She further noted that they speak another language and that the interpretation had sometimes been inaccurate. Hadding then mentioned that the court had heard 30 plaintiffs throughout the trial proceedings, amongst which 22 were survivors, and almost 30 witnesses who were also survivors and who had given testimony about their imprisonment in Evin or Gohardasht prison. The fact that many had provided very specific details in their testimonies was not something strange, Hadding explained, and referred to Expert Witness 3 (Torun Lindholm) who had testified that it was not unusual to remember specific details when experiencing traumatic events. Hadding explained that many of the clients had purposely tried to keep their memories of the events alive, and that they were still fighting for a free Iran. This did not, however, retract from the value of their stories, she argued.
She then moved on to discuss each of her clients. Regarding the survivors that she represented, she contended that it had been proven – through the massive amount of evidence in the case – that all of them had been in Gohardasht prison during the time of the crime. As she went through each one of the clients, she shortly presented the facts and then the evidence, including their observations regarding, for instance, the defendant’s participation in the mass executions. She then moved on to those of her clients who had not themselves been imprisoned in Gohardasht but that had relatives who had perished in the 1988 mass executions, again presenting the facts and the evidence regarding each person. During these presentations, she did not only refer to the oral evidence but to the written evidence as well. For instance, she referred to several of the books that have been invoked in the case in which there were mentions of some of her clients being in Gohardasht prison during the relevant time period.
Coming back to the issue of the credibility and reliability of the witnesses and plaintiffs, Hadding referred to a case which had previously been handled in a Swedish court, which, in part, concerned the evidentiary requirements for relatives in situations like this to prove the death of a loved one. In the case, the court had concluded that information from an otherwise credible plaintiff is sufficient as long as there is nothing in the case that contradicts him or her. Although no bodies had been found in the case at hand, Hadding asserted that nothing had emerged in the case that spoke against what other plaintiffs and witnesses had said about the death of her clients’ family members. She then commented on the hardships that her clients were forced to face, and still face today, and then referred to Hesselberg’s statements regarding the requested compensation. She then added that she agreed with the statements made by the prosecution in its concluding argument and stated that the indictment should be considered to have been substantiated and that the defendant should be convicted in accordance with the indictment.
Plaintiff Counsel Göran Hjalmarsson
Göran Hjalmarsson began his presentation by addressing the issue of the identification of the defendant and the fact that an image of the defendant had been made public at the time of his arrest. Hjalmarsson referred to the “Cuska Case”, which the prosecution had also mentioned in its concluding argument (see previous report) and the “Palme case”, in which an English government inquiry (the “Delvin Report”) was incurred as evidence which recommended great caution to be exercised when allowing eyewitnesses to identify a perpetrator that is previously unknown to them. He emphasized the differences between these cases and the one at hand and especially underlined that the defendant, in this case, had been previously known to those who testified against him whereas the defendant in the “Cuska Case” had been unknown to the plaintiffs prior to them seeing the pictures of the defendant. He further referred to a statement made by Expert Witness 3 (Torun Lindholm) in her hearing before the court, about how repeated and longer exposures to a situation leads to a better memory of the situation, that humans remember the most central things during emotional events and that we remember central parts of an event even after 40-50 years have passed. He also referred to Lindholm’s statement that it is easier for people to identify a person that is already familiar to them and that humans have optimal memory abilities around the age of 20. Hjalmarsson further noted that the PTSD that several of his clients suffer from does not cause them to forget details surrounding the 1988 mass executions, but rather hinders them from forgetting them. On this subject he also commented on the defense’s focus on details in their cross-examinations and explained that the memory research had shown that peripheral details may be lost but that humans still remember the central parts of an emotional event.
He then addressed the defense’s focus on discrepancies that had appeared in the testimonies of his clients and argued that for the most part, each of his clients had only had one single hearing with the police during the preliminary investigation. He further noted that the hearings with the police had focused specifically on the defendant, which had not been the case during interviews that his clients had given to other actors prior to the arrest of the defendant. As such, it was not extraordinary in any way that new information appeared during the police hearings, which had not surfaced during previous interviews. As regards to information that his clients provided during the court hearing but that they did not provide during the police hearing, Hjalmarsson noted that it had been explained why new information had appeared. For instance, the events in question took place 33 years ago and new memories might have appeared after the police interrogation. Additionally, it was possible that the interpretation was to be blamed. These are all things that need to be considered, argued Hjalmarsson.
Hjalmarsson then went on to address some of the objections that had been made by the defense and the defendant. For instance, the defendant had claimed that all the witnesses and plaintiffs were lying. The important question here, said Hjalmarsson was to ask whether 22 plaintiffs and just as many witnesses were recalling the events incorrectly or whether they were purposely providing false information. The defense had also highlighted that pictures of the defendant had been made public on social media after his arrest and that the audio of the trial was being broadcasted live, and that all this could have affected those who testified. Regarding these issues, Hjalmarsson argued that many plaintiffs or witnesses had publicly mentioned the defendant years before this trial had even started.
On the topic of the credibility and the reliability of his clients’ accounts, Hjalmarsson again mentioned that many of his clients suffered from PTSD, which made it hard to forget the traumatic events. He further highlighted that that they had practiced restraint when recounting the events and that they had made sure to only speak of their own experiences. Regarding the defendant, all witnesses and plaintiffs had provided consistent information about his work tasks and behavior during the relevant time period. All in all, Hjalmarsson said, the witnesses and plaintiffs were credible and reliable and had showed no sign of purposely, and wrongly, wanting to point out the defendant. One of his clients had even called him back and corrected some information he had given about the defendant, which had been in favor of him. This too spoke towards the credibility of the witnesses and plaintiffs. Hjalmarsson added that if the plaintiffs and witnesses were lying and were in fact wanting to falsely accuse the defendant, their stories would have been far more identical in the details. He also referred to the hearing held with Expert Witness 10 (Payam Akhavan) who had said that those heard in the Iran tribunal had come across as credible and that he believed them to be truthful.
After arguing further for the credibility and reliability of the witnesses’ and plaintiffs’ accounts, Hjalmarsson moved on to address the information provided by each of his clients. He began by explaining that all his clients, except one, had been brought before the “Death Committee” and that none of them had undergone a fair trial before receiving their judgements. Hjalmarsson further added that the accounts given by the witnesses and plaintiffs had often confirmed the accounts of other witnesses and plaintiffs. He then went over a brief background and the evidence in support for their imprisonment in Gohardasht prison for each and every one of his clients and the evidence in support of the execution of the family member of one of his clients who had lost their family member but who had not themselves been imprisoned in Gohardasht prison. He also went over the information that had been presented in court which supported his clients’ identification of the defendant as “Hamid Abbasi” and which proved the defendant’s participation in the mass executions.
When Hjalmarsson had finished his presentation of each of his clients, he started going over specific details recounted by each plaintiff and witness throughout the trial proceedings. The majority of the statements related to their identification of the defendant as “Hamid Abbasi” and instances when they had mentioned him prior to his arrest. He concluded, in summary, that it had been established through the evidence presented throughout the trial proceedings that the defendant is in fact the same person as “Hamid Abbasi”. It had also been established that the defendant had been in Gohardasht prison during the relevant time period, that he had held a leading position and that he had participated in the execution of prisoners. Hjalmarsson stated that he shared the prosecution’s position that the defendant was to be considered as a direct perpetrator. He also agreed with the prosecution that regardless of the classification of the conflict, the prisoners in Gohardasht were still encompassed by the protection under the Geneva Conventions. Hjalmarsson underscored that this had been confirmed by Expert Witnesses 4 (Eric David), 6 (Jann Kleffner), 7 (Sally Longworth), 9 (Mark Klamberg) and 10 (Payam Akhavan). He further explained that he too considered that the content of common article 3 of the Geneva Conventions constituted a customary international rule at the time of the mass executions and that was a nexus between the mass executions and the armed conflict.
Earlier during his speech, Hjalmarsson had spoken about the pain that the 1988 mass executions had caused to his clients and the pain that they still lived with to this day as a result of their experiences. He ended his concluding argument by going further into detail about the hardship that his clients had to endure and the complications that it had resulted in, for example, for their mental health today. He emphasized that all of his clients still suffered today because of the events that had taken place around 33 years ago. Hjalmarsson referred to the “mechanisms of denial”, and how some crimes are so severe that it is hard to confess to them. Here, Hjalmarsson made a comparison to a Nazi soldier who during one of the Nuremberg trials had denied being part of the crimes that took place during the second world war as he would otherwise face a death sentence.
Hjalmarsson ended his presentation with a quote by one of his clients – a plaintiff – who had been asked by the judge if he desired any financial compensation for the loss of income that he may have had for spending his workday testifying in court, upon which he had answered: “No, thanks. My life is ruined anyway”.
Plaintiff Counsel Kenneth Lewis
The privately appointed plaintiff counsel Kenneth Lewis held his concluding arguments on a separate trial day and began the day by welcoming the defendant and wishing “Eid Mubarak” to all Muslims who celebrated this day. He also thanked the prosecution for what he considered to be an excellent presentation of its concluding arguments and explained that except for some of the facts regarding the classification of the armed conflict, he agreed with the prosecution on every part. He also thanked his colleagues for their important additions.
He then explained that since the defense, very late, had sent in two new legal opinions with new statements and conclusions, he felt it necessary to once again address very basic facts and some historical context. But before he proceeded to do that, he briefly (since the prosecution had already provided much detail in this regard) commented on some of the relatives of his clients and the evidence pointing towards them having been executed. He then proceeded with a presentation of the historical background of MEK.
To summarize his presentation, he touched upon how and why MEK was founded, the oppression its members had faced through time, the presidential election that their founder was forbidden to take part in, the violence in Kurdistan and how MEK was affected by it, how they had tried to peacefully protest against the oppression against them and how a time of mass arrests, torture and mass executions had followed. He also brought up that after it was made impossible for MEK to carry out their peaceful and democratic activities, they began their armed resistance. MEK then became prohibited in 1981, and an alliance between different oppositional political groups that was called “National Council of Resistance in Iran” (NCRI) was created. Lewis also commented on the conflict between Iran and Iraq at that time, and how MEK and NCRI had signed its own peace agreement with Iraq as it wanted an end to the conflict. MEK had also established its own bases in Iraq and continued the non-international armed conflict (NIAC) with Iran. MEK also had bases in Iran, Pakistan, and Turkey. Lewis argued that the NIAC continued even after the year 1988. Except for the legal opinions that the defense had submitted late during the trial proceedings, there had been no differing views as to the classification of the conflict (as a NIAC). Lewis then emphasized that what he claimed, and had claimed during this whole trial, was that the conflict continued to be a NIAC even after the end of the Iran-Iraq war.
Lewis proceeded by commenting on the hardships that MEK sympathizers had endured due to the oppression against them and the fact that they had never been granted fair trials.
He then addressed the mass executions of 1988 and that they were committed under great secrecy, which amongst other things meant that guards and other personnel were not allowed to leave the prisons during the period that the mass executions were taking place. Those executed were then buried in secret mass graves whose location remained unknown (due to the regime actively trying to keep their location a secret) which made it difficult to identify all those executed. New names of victims still appeared every day. Lewis continued by commenting on the number of executed persons and then on the fatwa that had been hand-written by Khomeini, and which ordered the execution of MEK-prisoners. This led to waves of arrests and executions, out of which many were of prisoners who had already served their sentences, he explained. Lewis then stated that all the evidence brought forward pointed towards that fact that the mass executions of 1367 (1988), in conjunction with acts committed before and after the executions, constituted genocide. Lewis and his clients recognized that the indictment did not contain the charge of genocide, he explained, as he went on to argue how the defendant could have also been charged for genocide. In summary, Lewis mainly presented an analysis of the fatwa and the way in which it addressed MEK-prisoners and how Khomeini had explained that the fatwa should be interpreted. Lewis also brought up the subject of MEKs political viewpoints and how the regime had deemed them a threat and had thus labeled them as “mohareb” (“warriors against God”) and decided that they needed to be eradicated.
Lewis then moved on to the question of the classification of the conflict and stated that almost all experts heard in court agreed that an IAC and a NIAC had been ongoing simultaneously, except for the expert that drafted the legal opinion which the defense submitted to the court late in the proceedings. That expert seemed to believe that there had not been an armed conflict at all during the time in question. Lewis explained that his clients believed that there had been a NIAC, which started in 1981 when the regime had attacked MEK and which, to some extent, is still ongoing. During the summer of 1988, Lewis continued, there had also been an ongoing IAC between Iran and Iraq. Regarding the coordination between MEK and Iraq that many had commented on in previous hearings, Lewis explained that it had been necessary to have some sort of coordination between the two as it otherwise would be a risk to their operations being disturbed. Lewis then pointed out that the prosecution had referred to Wikipedia, amongst a few other sources, to support their argument that Iraq had overall control over MEK and NLA. Here Lewis also referred to the fact that MEK had been on the USAs Terrorist Exclusion List between 2003-2004 and argued that if the Americans had actually found any evidence that Saddam Hussein, whose regime they also deemed to be terrorists, had in fact had overall control over MEK, then they would have presented that evidence in court when the question of removing MEK from that list was up for discussion. Instead, no such evidence was provided and MEK was thus removed from USAs terror list.
Regarding the information that MEK had received financial support from Iraq and that they had provided Iraq with intelligence information, Lewis referred to what he had previously stated about the Iranian government wanting to slander MEK and paint them out to be terrorists and allies to Saddam Hussein. Saddam Hussein had himself, in an interview in 1988, admitted that he had asked MEK to help with intelligence information but that they had refused, Lewis added. He then stated that the prosecution had heavily relied on Anthony Cordesman’s book “Lessons of Modern War” regarding MEKs military operation in 1988. Lewis explained that he had not been able to fact-check the other sources that the prosecution had used in their argumentation, as he had not had access to them, but that he had been able to do so with this particular book. This book, he continued, seemed to only refer to American newspaper articles, one of which he had never heard of. He continued by arguing that no one had been able to prove that MEK had help from Iraq during “Operation Forty Stars” and “Operation Eternal Light”. Those who had said so had no sources for their conclusions. Lewis then commented on the conclusion that Expert Witness 8 (Ove Bring) had come to, that MEK had been under Iraq’s overall control and thus was part of the IAC and stated that although he did not agree with him, he would be able to accept it if the court would come to the same conclusion in its decision. It was not a huge problem, Lewis said, and added that it had become clear during the course of the trial that it did not really matter what the court decided regarding the classification of the conflict, as all expert witnesses except for Expert Witness 8 (Ove Bring), had reached the conclusion that common article 3 of the Geneva Conventions had reached the status as a customary international rule that applied in NIACs already in 1988, and that section 6 in chapter 22 of the Swedish Criminal Code was thus applicable. Lewis further added that the expert witnesses further agreed with the prosecution on the point that there had in fact been a nexus between the armed conflict and the mass executions, regardless of the classification of the conflict.
Lewis then moved on to address the evidence in the case. He emphasized that it was important to remember that many had already previously publicly pointed out Hamid Abbasi long before the defendant was arrested, and he proceeded to go through those instances. Regarding the objection by the defendant that he was not “Hamid Abbasi”, Lewis referred to an audio recording which had been published by the NCRI six days after the defendant’s arrest, and through which one can hear Mohammad Moghisseh (Naserian) confirm that the defendant was his closest co-worker and that he had warned him not to travel to Sweden. This very strongly pointed towards him being “Abbasi” and having participated in the 1988 mass executions, Lewis argued. Lewis then addressed the defendant’s alleged parental leave and his objection that he was only tasked with granting leaves to the prisoners when working at Evin prison. If that had been the case, then it was strange that such high-ranking people were worried about the defendant being arrested. The oral evidence, which the prosecution had thoroughly gone over in its closing argument, had also shown that the defendant was “Abbasi” and that he had participated in the mass executions, both in Evin prison and Gohardasht prison. Lewis then addressed how the witnesses and plaintiffs had been able to see the defendant when wearing their blindfolds and concluded that, according to him, it was clear that one could see through them. Lewis further commented on the fact that women had been held in Gohardasht prison during the mass executions and that the fact that no female survivors had been found pointed towards them all having been executed.
As for the defense’s claims that the plaintiffs and witnesses were all lying and conspiring against the defendant, as well as their claim that the information that had been made available on the internet had affected all the witnesses, Lewis emphasized that those theories were nonsense. He explained that what has been published on the internet has not had any significance on the case at hand and that many who had testified had not even looked at what had been published online. He once again underscored that many had already identified the defendant as Abbasi and as a participant in the 1988 mass executions long before he had been arrested. He also pointed out that many of the plaintiffs had considered that the information disseminated on the internet had objectively benefitted the defendant since it could be used by the defense to question all the evidence presented in the case.
Lewis further commented on a transcription of a statement from a YouTube broadcast by Plaintiff 1, which had been invoked by the defense. In the statement, the plaintiff allegedly verbally attacks several witnesses and plaintiffs. Lewis proceeded to explain that the statement had been invoked to undermine the plaintiffs’ and witnesses’ credibility. Through the statement, the plaintiff allegedly claims that members of MEK are waiting for permission to give their testimony in court, that MEK is cooperating with the Iranian regime and that the trial is not dependent on the testimonies of MEK supporters. Lewis further explained that the purpose of these statements had been to create a psychological obstacle for members of the MEK so that they would refrain from participating in the trial, even though some of the most important evidence against the defendant comes from them. Luckily, Lewis expressed, these attacks did not stop MEK supporters from testifying.
Lewis then ended his concluding argument by agreeing with the prosecution that the defendant should be convicted as a direct perpetrator in accordance with the indictment. Lewis argued that it had been proven throughout the course of the trial that the defendant had participated in the executions, and although he was not highest in rank, he was still a very important and necessary part in the machinery that carried out these executions. The indictment against the defendant was an indictment against the Iranian regime as a whole, he noted. The victims and their relatives have had to wait for more than 33 years for their justice and for the case of the executions to be presented before a real court outside of Iran. Just the fact that the trial has taken place was a great victory for all the victims of Khomeini’s fatwa, he thought. Finally, Lewis thanked the court, the prosecution and the other plaintiff counsels for a well-conducted trial and for giving his clients, and all the other plaintiffs and witnesses, the time and space to talk about what happened in Iran in 1367 (1988).
In our next report, we will provide a summary of the defense’s concluding arguments.
A translated version of this report in Farsi can be found here.