Report 42: The Defense’s concluding arguments
In our previous report, we provided a summary of the plaintiff counsels’ concluding arguments, which were held on 29 April and 2 May. In this report, we have summarized the defense counsels’ concluding arguments which were held on 3 and 4 May. The concluding argument of the defense team marks the end of the trial.
Defense counsel Daniel Marcus started by presenting the themes that the presentation would be structured around. This report follows the same structure and provides summaries of each theme.
The themes are as follows:
- Introduction and General Issues
- The Jurisdiction of Swedish Courts
- The Classification of the Armed Conflict and the Nexus
- The Defendant’s Individual Criminal Responsibility
Introduction and General Issues
The defense initiated the first theme in their closing argument by presenting their conclusion that the Swedish Court does not have jurisdiction over the case in question and that the case thus should be rejected on formal ground. If the court still found itself to have jurisdiction, the defense added that the case should still be rejected since there was no law in 1988 that grounded criminal responsibility for war crimes committed in non-international armed conflicts. If the court would decide otherwise, there were still several other issues which the court needed to consider.
The defense began by explaining that the case concerned events which took place 34 years ago and that it was a problem since it affected the witnesses’ and plaintiffs’ credibility. The defense pointed out that there was an abundance of jurisprudence addressing testimonies given a long time after the incident had taken place that should be assessed. It explained that even if the people were not purposely lying, the risk of their memory being contaminated or adjusted has increased with time and with all the information that has been published about the events over the years. The defense then proceeded to comment on a verdict (RH 2014:34) by Svea Appeals Court in 2014 which dealt with acts committed during the 1994 Rwandan genocide. The appeals court stated in its verdict that the fact that 20 years had passed since the incidents had taken place was a factor which the court should take into regard when assessing the evidence (Authors note: the court did however find the defendant guilty of committing the crime of genocide). Those 20 years, which the court considered to be an extreme, should be compared to the 30 years that have passed in this case, the defense argued.
The defense then moved on to discuss the geographical factor (for instance the culture, religious context and language) which was another aspect for the court to consider as it posed a challenge in itself. The defense referred to the Friday prayer as an example and explained that many witnesses and plaintiffs have referred to statements that were made during Friday prayer shortly before the mass executions, but that the court is unaware of what a Friday prayer is and which persons who can typically conduct a Friday prayer. The defense then referred to a text written by the Swedish judge Lars Holmgård, in which he states that when a Swedish court examines crimes committed abroad, the investigation is not always as robust as when examining crimes committed in Sweden. This does not, however, affect the standard proof of evidence which still needed to be upheld, the defense argued. Their client should not have to bear the burden for the fact that reasonable investigative measures have not been taken, such as an inspection of the crime scene or of the alleged mass graves and for the fact that the prosecution has not been able to show what the crime scene has looked like. The defense then referred back to the Rwanda-case, “RH 2014:34”, in which inspections of the crime scene had been conducted. The defense argued that there were uncertainties regarding, for instance, which buildings that had existed around Gohardasht prison during the relevant time period, which in turn affected the possibility to assess the witnesses’ abilities to make certain observations. The prosecution had introduced satellite images from 2003 but have not been able to show whether a certain building had been in place already in 1988 which, if it was, would have blocked the view and hindered plaintiffs and witnesses from making certain observations that they claim that they have done.
The defense then brought up the alleged political aspects of the current case and argued that there were political reasons behind the testimonies given by the plaintiffs and witnesses against the defendant. It was for political reasons that the defendant had been included in scenarios in which no one had previously mentioned that he had appeared before. This was indirectly a case brought against the state of Iran, the defense argued. As such, there is an interest to have the defendant convicted in order to bring the state of Iran to justice. If the defendant would not be convicted, then neither would Iran. The information provided though the witnesses and plaintiffs’ testimonies should thus be considered with great caution, the defense stated. The defense further stressed the fact that information regarding the defendant and his duties in prison had spread publicly, and that witnesses had admitted to having seen or heard information about the defendant before appearing in court.
The defense further elaborated on the “Cuska case” brought up by the prosecution and by plaintiff counsel Bengt Hesselberg in their respective concluding arguments (see previous trial reports). The defense explained that while it is true that there are differences between the circumstances in that case and the one at hand, there are also similarities, especially regarding the identification of the defendants. In similarity with what the Court of Appeal had ruled in the “Cuska Case”, the defense emphasized that it did not question that the witnesses and plaintiffs were providing information that they themselves believe is correct but that their desire to have someone convicted for the crimes could subconsciously bring them to recognize a person that they have not seen before.
The Jurisdiction of Swedish Courts
The defense focused the next part of its concluding arguments on the issue of the jurisdiction of Swedish courts over the alleged crimes. It argued that the court lacks jurisdiction over the act of murder in the case at hand, as Swedish legislation grants courts wider jurisdiction than what is permissible under international law. The defense explained that the prosecution has brought the charge on the basis of the so called “four-year rule”, which is a heavily criticized rule that grants Swedish courts universal jurisdiction over any crime for which the minimum sentence is four years in prison. The defense underlined that several Swedish government inquiries have found that Swedish legislation gave courts wider jurisdiction than what was permissible under international law, which is a view that has also been shared by Swedish legal scholar Petter Asp. The defense further underlined that section 7 in chapter 2 of the Swedish Criminal Code (hereinafter “the Criminal Code”) explicitly states that limitations in international law should be considered when determining whether Swedish courts have jurisdiction. In a recent government inquiry (SOU 2018:87), it was further said that Swedish courts should not have jurisdiction over crimes that entirely lack a connection to Sweden unless they constitute grave international crimes. As such, the defense argued, chapter 2 of the Criminal Code, expresses that Sweden may only exercise universal jurisdiction with explicit support in international law.
The defense then went on to describe that there is no such support in international law for states to use universal jurisdiction for the crime of murder. The defense further explained that it has submitted a legal opinion by Dr. Amina Adanan, assisting professor at Maynooth University in Ireland, who has studied the principle of universal jurisdiction for a decade. Dr. Adanan concludes that states may only exercise jurisdiction over the crime of murder on the basis of the territoriality principle (if the crime has been committed in Sweden), the active personality principle (if the perpetrator was a Swedish national) or the passive personality principle (if the victim was a Swedish national) and that there is no support in international law, neither codified nor customary, for states to exercise universal jurisdiction in the case at hand.
The defense further criticized the prosecution’s referral to the 1927 “Lotus Case” before the Permanent Court of International Justice, which dealt with the death of eight Turkish ship workers after a French steam ship had hit a Turkish ship on international waters, to show that states have the discretion to determine the width of their own jurisdiction. The defense emphasized that the case did not concern universal jurisdiction, but that Turkey had jurisdiction in that situation on the basis of the passive personality principle and that the case was more than 100 years old and thus had lost its authoritative status.
In conclusion, the defense argued that Stockholm District Court does not have jurisdiction over the second charge in the indictment (murder) and that the charge should be rejected.
The defense then moved on to the first count of the indictment (war crimes) and agreed that the court should be considered to have jurisdiction if the armed conflict is classified as an international armed conflict (IAC). If the conflict, however, is deemed to be a non-international armed conflict (NIAC), the court may not exercise jurisdiction since there is no support for it in international law. Thus, if the court finds that the conflict should be classified as a NIAC, the court should reject the first charge (war crimes).
The defense further added that in parallel to the current case, one of the representatives of Lundin Energy, who is currently indicted for aiding and abetting war crimes in Sudan between 1999-2003, has appealed the issue of Swedish courts’ jurisdiction over foreign citizens to the Supreme Court and that the Supreme Court’s request to the Chief Prosecutor to respond to the appeal indicates that the court considers the issue to be worth assessing.
The Classification of the Armed Conflict and the Nexus
The defense then proceeded to comment on how the armed conflict should be classified. Initially, the defense discussed the factors that are taken into consideration when classifying a conflict, such as the level of intensity of the violence and the level of organization among the parties involved in the violence. This in turn requires an assessment of, for instance, the duration of the violence, the equipment and weapons used, the number of casualties and the level of destruction. The defense then explained that the prosecution had classified the conflict between the MEK and Iran as an IAC due to the cooperation between Iraq and MEK, but that MEK had objected to this. By making reference to case law from the International Criminal Tribunal for the Former Yugoslavia (ICTY) on how the level of control should be determined, the defense further explained that Iraq must have exercised substantial control over MEK, to the degree that the operations acted out by the organization could be attributed to Iraq, for the conflict to be considered as an IAC. This level of control had not been proven in the case at hand, the defense concluded, and argued that the information provided about Iraq’s support to MEK had been general and had lacked precision about when and how the support had been provided. In some cases, the information provided by the prosecution has been retrieved from Wikipedia, which is not a reliable source, according to the defense. In some instances, the information had been contradictory, and much more information was needed to correctly classify the armed conflict. The defense referred to the legal opinion provided by Expert Witness 7 (Sally Longworth), who had pointed to the fact that further details and corroborating evidence would be useful to support the conclusion that Iraq exercised overall control over MEKs forces to ensure that the required standard of proof is reached. In conclusion, the defense asserted that Iraq could not be said to have exercised overall control over MEK and that the conflict should therefore be classified as a NIAC.
The defense continued by addressing the issue of nexus and argued that the prosecution had failed to prove a nexus between the armed conflict and the mass executions by referring to the fatwa by ayatollah Khomeini. The defense claimed that an undated, handwritten letter, which lacked a government stamp and a signature, was all that the prosecution had to prove the existence of the fatwa.
The Defendant’s Individual Criminal Responsibility
The defense then moved on to the question of individual criminal responsibility for crimes committed in NIACs. It mostly referred to the conclusions drawn by Expert Witness 8 (Ove Bring) during his hearing in court and, like him, concluded that individual criminal responsibility did not apply under the Criminal Code for acts committed in NIACs in 1988, as international customary law did not yet express individual criminal responsibility for crimes committed in NIACs in 1988. Therefore, the defendant cannot be held criminally responsible for war crimes, the defense argued.
After lunch break, the defense continued to elaborate on the issue of the defendant’s individual criminal responsibility. It commented on whether the prosecution had been able to prove that executions were in fact carried out in Gohardasht prison during the months of Mordad and Shahrivar 1367 (1988), whether the individuals whom the prosecution claimed had been executed there had in fact been executed there and whether the defendant had facilitated the executions and to what extent.
The defense argued that it was crucial to evaluate the credibility of the witnesses and plaintiffs, as the core evidence presented throughout the trial was based on their testimonies. To that end, the defense claimed that witnesses and plaintiffs had changed details in their testimonies in court compared to when they have spoken about the events at other occasions, such as the dates of certain events, the clothes that the defendant had worn, the location of the “Death Committee” and the individuals who had formed part of the committee. The defense further reiterated that the defendant had not been mentioned in descriptions of various scenarios by witnesses and plaintiffs prior to his arrest. Plaintiffs and witnesses had, for instance, written books, made media appearances, and participated in interviews for reports in which the defendant was either never mentioned or mentioned in a way that should spark skepticism about its validity. These changes in the accounts of the witnesses and plaintiffs were not insignificant, which the prosecution and the plaintiff counsels had made them out to be, the defense argued. There is a reason for these changes and that is to make the different accounts add up with each other. The defense again emphasized how the desire to hold someone accountable for the crimes that have been committed has brought the victims and witnesses to place the defendant into their accounts. The defense further claimed that witnesses and the plaintiffs had read, listened, and talked about the case at hand before appearing in court to give their testimony. This affected their credibility, the defense argued. The defense further pointed to different details in the testimonies of some witnesses and plaintiffs which it found unlikely to be true, such as prisoners having separated the bars covering the prison windows or the witnesses and plaintiffs having manipulated their blindfolds to be able to see through them. At this point, the defense went over each detail in each testimony which it found implausible or lacking in consistency and reliability. It also brought up discrepancies between witnesses and plaintiffs’ testimonies in court and their testimonies before the police during the preliminary investigation. Much focus was placed on how the defendant had been added into those accounts.
The defense further claimed that the accounts given by witnesses and plaintiffs about having observed trucks loaded with human bodies outside of Gohardasht prison lacked credibility. Amongst other things, the defense questioned why the trucks would suddenly stop in front of their windows, instead of driving straight out of the prison, and why the guards would remove the tarpaulin to reveal the bodies.
Furthermore, the defense addressed the written evidence that had been presented in court by the prosecution and argued that it was not substantial, and that it is of low evidentiary value. Regarding the reports that had been invoked as evidence by the prosecution, the defense argued that these could not even be considered as evidence as they only consisted of information from witnesses that could not be corroborated by, for instance, an inspection of the scene. The defense also showed a compilation of different lists with names of people who had allegedly been executed in prisons in Iran during the summer of 1988 and pointed to discrepancies in the different lists regarding the dates of the executions, the locations of the executions and the methods used regarding some of the names. The defense further commented on the mock judicial process of the Iran Tribunal and how, for instance, the state of Iran had not been represented before the Tribunal. The defense concluded that the evidentiary findings of the Tribunal had very low evidentiary value. It argued, however, that the Tribunal was important in the sense that many of the witnesses and plaintiffs heard in Stockholm District Court had also been heard before the Tribunal and that only one of them had mentioned Abbasi there.
The defense then addressed how information about the defendant had been exchanged between the plaintiffs. The defense claimed that plaintiffs and witnesses who had testified in court had all previously seen pictures of the defendant, and that many of them knew each other. Some of the information that had been spread had further contained incorrect information, such as information about pictures which had been claimed to depict the defendant together with some guards. The defense further referred to information that had been spread publicly by Plaintiff 1 and claimed that he was obsessed with controlling the information that was spread so that it suited his perception of what had happened.
The defense moved on to discuss how the name of the defendant had been used by plaintiffs and witnesses prior to the defendant’s arrest. It said that the prosecution has put weight on the fact that the defendant’s name has been used in Plaintiff 1’s book already in 2006. However, the defense argued that the defendant’s name has not been used consistently throughout the book and at one point, a slightly different name is used instead of the defendant’s name to describe Abbasi. Plaintiff 1 has explained that this had been a mistake. The defense further questioned how the defendant’s name had become known to the plaintiffs and witnesses. It argued that Plaintiff 8’s account about how Abbasi’s prison identification card had fell out of his pocket while he was physically assaulting the plaintiff, and that the card had stated his real name and that he was the brother of a martyr, was not credible. The defense questioned why a prison identification card would contain that type of information. The defense further noted that the plaintiff had not told anybody about this, until after the arrest of the defendant.
The defense then moved on to address the differences in the descriptions of Abbasi’s physical appearance witnesses and plaintiffs and argued that this pointed to the fact that the witnesses and plaintiffs were not describing the same person. It further noted that seven of the plaintiffs, who had testified from a court room in Albania, had used the same expressions to describe some of the defendant’s physical attributes and that it was therefore apparent that they had discussed those details with each other prior to their hearings, which affects the reliability of the details given.
The defense concluded its closing arguments by arguing that the shortcomings of the investigation and the contradictory information presented in court meant that there was insufficient evidence in support of the conviction of the defendant and that the charges should therefore be dismissed. It further added that the explanations provided by the defendant regarding, for example, why he had deleted certain contacts from his cellphone, and which prison he had worked at and when, was consistent and that no information had been presented in court which invalidated those explanations.
Finally, the defense urged the court to dismiss the injured parties’ requests for damages and to release the defendant.
Comments from other parties
Before wrapping up the trial, judge Zander gave the floor to the prosecution and the plaintiff counsels for some final remarks.
As a response to the defense’s concluding argument, the prosecution argued that there were no restrictions in general international law which limited the court’s ability to hear the case, and that the government had approved the prosecution’s indictment request on 22 December 2020 (Author’s note: Until 1 January 2022, the explicit approval of an indictment request by the Swedish government was a procedural requirement in universal jurisdiction proceedings). The prosecution also referred to a decision by the supreme court of Norway from 26 July 2020 (HR 202013-1340-a), in which the court found that public international law did not stand in the way of a national court exercising its jurisdiction, and that it is up to each individual country to adapt its jurisdiction to the limitations on jurisdiction in international law. The court had also found the “Lotus Case” to be relevant, the prosecution added.
The floor was then handed to the plaintiff counsels. Plaintiff counsel Kenneth Lewis responded to the defense’s statement, that the counsels’ clients had denounced that the conflict between Iran and MEK was of an international character. Lewis stated that although his clients opposed some of the information that the prosecution had presented to prove that Iraq exercised overall control over MEK, they still believed that an IAC and a NIAC was ongoing simultaneously during the relevant time period. Lewis reiterated that his clients would accept the court’s decision if it would find MEK to have been a part of the IAC. He also responded to the defense’s claim that ayatollah Khomeini’s fatwa was not possible to find anywhere but in a letter. Lewis stated that he had presented evidence proving the existence of the fatwa, such as that many high-ranking leaders in Iran had mentioned the fatwa, as well as an excerpt from an interview with Mohammad Hossein Ahmadi Shahroudi from 8 August 2017 by Tasmin News Agency, where the fatwa was shown. Therefore, the defense’s claim is entirely wrong. Lewis also mentioned that the defendant himself did not appear to object to the existence of the fatwa, especially since Iran’s own president had admitted to its existence. Lewis underlined that the defense had attempted to argue that the fatwa does not exist in order to undermine the nexus between the armed conflict and the mass executions and reiterated that there was overwhelming evidence to prove the existence of the fatwa and that its content clearly established the required nexus.
Plaintiff counsel Bengt Hesselberg stated, regarding the defense’s claim that the case had no connection to Sweden, that the case did in fact have a connection to Sweden, since the defendant had been arrested in Sweden while several plaintiffs and witnesses are Swedish citizens or reside in Sweden. Additionally, one of the plaintiffs was a resident in Sweden when their relative was executed.
After the plaintiff counsels’ final words, the defendant was offered to make a final statement before the trial was concluded. The defendant began by thanking everyone: the judge, his family (who were present and sitting at the far end of the court room), the other parties in the proceedings and everyone who were listening to the trial (Author’s note: The audio of the trial has been live streamed by some organizations). He especially thanked God and the state of Iran and its people. He expressed that he was grateful, especially to the judge and the court, for the way that the trial had been conducted, which was in an excellent and fair manner. He also expressed that he believed that the verdict would be a good one, even if it would go to the court of appeal, and that it would bring the state of Iran and Sweden closer together. It would be a verdict to create a bond of friendship between two countries and which would lead to love and compassion amongst all people around the world. Lastly, he stated that although many had altered their information here in court, he was not angry at them. He also had no ill will towards any party of the proceedings, they had simply done their duty. He thanked his attorneys. The plaintiffs and witnesses, he added, had simply said what had been in their best interests and he still loved them. They were part of his family, his second family which consisted of the people of Iran. He then wished, that with God’s help, they would be able to think more clearly and end their desire for retaliation and their hostility towards the Iranian government. He then ended his statement with a Persian proverb, which expressed his love for his friends, and with wishing God to watch over everyone.
Judge Zander then thanked the parties of the court and declared that with these final statements, the trial had been completed. The verdict, he explained, would be published on 14 July 2022 and the defendant would stay in detention until then.
In our next report, we will provide an analysis of Stockholm District Court’s verdict, which is expected on 14 July 2022.
A translated version of this report in Farsi can be found here.