Report 45: Opening of the trial and introductory arguments by the prosecution
In this report we will describe the opening of the trial in the Court of Appeal and summarize the introductory arguments by the prosecution which were delivered before Svea Court of Appeal on 11, 12, 13 and 18 January 2023.
Opening of the trial
The trial was opened on 11 January 2023 and was initiated with some commotion in the court room. The presiding judge, Christer Lund, initiated the proceeding by asking whether there were any obstacles to initiating the trial, upon with one of the defense counsels, Thomas Bodström, explained that the defendant had asked to say a few words before the prosecution would initiate the presentation of its arguments. The judge responded that the Court was aware that the defendant had sent a letter to the Court, which the Court had translated into Swedish and that would be sent to the prosecutors and counsels during the following day but that the Court did not consider the content of the letter to be a formal request. As such, there were no obstacles to initiate the trial. The defense agreed. The judge further explained that, as regards to the defendant’s request to speak, that the rules of procedure applied and that he would get an opportunity to do so later. Before the Court could move on to the next issue, the defendant held up his glasses in the air and started shouting that he could not see and that he has been saying that he can’t see properly for the past three years. The defendant explained that he wanted to see an eye doctor to receive new prescription glasses and that the trial would not be fair if it was conducted without him being able to see properly. He also complained about the restrictions that were imposed on him in jail and that he was still not allowed to communicate freely with the outside world. The judge explained that he had heard the defendant and that his defense counsels and the correctional officers had heard him as well and that the defendant would have to follow the proceedings over link in another room if he would not calm down. After several minutes of back and forth between the defendant and the judge, the defendant became quiet.
The presiding judge then went over the schedule for the trial days during the three weeks to come and started presenting the main points of the verdict. The defense team briefly presented its requests to the court about how the verdict by the District Court should be changed (see report 44), and the prosecution explained that it contested the requests.
Before the prosecutors could continue, they were interrupted by the defendant who started shouting that he did not feel well and that he wanted five minutes with his lawyer. The presiding judge explained that the Court would soon take a break and that the defendant can wait, but the defendant kept shouting. The defendant pleaded with defense counsel Thomas Bodström to take a break, stating that he did not want to listen to the prosecutor. He further said that if his lawyers would not help him now, they would no longer be his lawyers. After several minutes and several warnings, the defendant was led out of the court room by guards to listen to the proceedings from an adjacent room.
The prosecution then continued its brief presentation of its appeal (see report 44), upon which the defense counsels explained that they contest the changes to the District Court’s verdict requested by the prosecution.
The plaintiffs had not appealed the District Court’s verdict but explained, through their counsels, that they join the indictment presented by the prosecution.
The Court then took a break for 25 minutes, before it reassembled in the court room. The presiding judge explained that the break had taken longer than intended, because the defendant had needed to deliberate with his counsels during the break. The judge further explained that the defense counsel had agreed with the defendant to bring up the issues previously mentioned by the defendant with the Prison and Probation Service (the correctional service). However, the defendant, who had been brought back into the court room after the break, began shouting again. He shouted, amongst other things, that he did not accept the mandate of the Court or his own lawyers. After a few warnings, the defendant was again led out of the room to follow the proceedings from an adjacent room. The defendant shouted that he would refuse to listen to the proceedings from the other room as well and that if his lawyer continued to participate in the trial, they were not his lawyers.
The prosecution then moved on to initiating its presentation of its arguments and the available evidence.
Introductory arguments by the prosecution
The prosecution initiated its presentation with general facts about Iran as a country, before moving on to the modern history of Iran from 1905 to 1989. The prosecution referred to written evidence submitted in the case, but also to the witness statements of expert witness Rouzbeh Parsi given in District Court. Towards the afternoon, the prosecution spoke about the political leadership and system of Iran. Again, the prosecution referred to written evidence submitted to the Court, such as reports by Amnesty International, documents from the Iran Tribunal and a report by the Abdorrahman Boroumand Foundation, but also to the witness statements of expert witnesses Rouzbeh Parsi and David Thurfjell given in District Court. The prosecution then went over important words and expressions in Farsi that it considered it was important for the Court to be aware of, before it briefly touched upon the political, financial, social and human rights situation in Iran today.
After this introduction, the prosecution moved into the legal questions of the case. The prosecution first dove into legal issues relating to the first charge, concerning war crimes.
The charge of war crimes (through torture and murder of prisoners belonging to MEK)
On the topic of the applicability of the Swedish legislation, the prosecution explained that Section 6 in Chapter 22 of the Swedish Criminal Code (in its wording in 1988) was the applicable provision regarding the first charge (war crimes). For Section 6 in Chapter 22 of the Swedish Criminal Code to be applicable, the acts allegedly committed by the defendant must have been committed within the context of an armed conflict and the acts must have constituted grave breaches of international humanitarian law.
The prosecution therefore proceeded its presentation with answering the following questions concerning the 1988 mass executions:
- Was the MEK involved in an armed conflict in 1988? How should the conflict be classified?
- Was there a nexus between the armed conflict and the mass executions?
- Did the mass executions constitute grave breaches of international humanitarian law?
Was the MEK involved in an armed conflict in 1988? How should the conflict be classified?
The prosecution stated that all parties in the case agree that there had been an international armed conflict between Iran and Iraq in the 1980s. A cease-fire agreement was signed between Iran and Iraq on 20 July 1988, only days before the initiation of the mass executions. However, to understand whether the cease-fire agreement has truly entered into force, one must examine the situation on the ground. The prosecution explained that the first peace negotiations were not initiated until 24 August 1988, that Iran and Iraq had contradictory interests concerning the borders and could not agree on the exchange of prisoners of war or of the sick and injured. The prosecution thus stated, just like the District Court did in its verdict, that an international armed conflict was ongoing between Iran and Iraq at the time when the mass executions were being committed.
To establish the role of MEK in the international armed conflict, the prosecution presented a literature review summarizing relevant findings in books and peer-reviewed articles in academic journals. According to the prosecution, the literature review showed that Iraq was arming the MEK with heavy weapons towards the end of the war and that Saddam Hussein had provided MEK with more than 350 million dollars in financial support in exchange for intelligence and interpretation services as well as direct military support. The prosecution further noted that MEK itself claimed that it acted independently from Iraq during the war, which has also been confirmed by one writer. Other literature, however, showed that an operational collaboration had been developed between MEK and Iraq during the summer of 1988 and that Iraq provided MEK with air support.
The prosecution then dove into the four military operations conducted by MEK against Iranian forces during the summer of 1988 and presented what the literature said about Iraq’s involvement in those operations. The prosecution concluded that the literature showed that MEK was supported by Iraqi troops on the ground in Operation Sunshine, that Operation Forty Stars constituted a joint attack between MEK and Iraq, that the literature about the cooperation between Iraq and MEK in the offensive against Dehloran is scarce, and that Operation Eternal Light was a joint operation between Iraq and MEK. The prosecution further noted that the District Court has also concluded through its verdict that Operation Eternal Light was conducted through an operational collaboration between MEK and Iraq. In conclusion, the prosecution explained, the literature review shows that MEK had a military cooperation with Iraq towards the end of the Iran-Iraq war. In the beginning of the war, the cooperation mainly consisted in financial and military support to MEK in exchange for intelligence and interpretation services, but that this later developed into an operational collaboration.
The prosecution then explained that between the “effective”-control test which has been developed through jurisprudence by the International Court of Justice (ICT) and the “overall control”-test developed through jurisprudence by the International Criminal Tribunal for the former Yugoslavia (ICTY), it is the latter that should be applied to assess the role of MEK in the international armed conflict since the ICJ-test is about the responsibility of states rather than individuals. This was confirmed, the prosecution noted, by the witness statements of expert witnesses Jann Kleffner and Sally Longworth given in District Court. Jann Kleffner had concluded, in his statement, that the “overall control”-test did not require that an armed group is entirely subordinate to a state, but that its sufficient that they coordinate, implement and plan their operations with the state. He further concluded that the facts presented concerning MEK, its armed wing NLA and the Iraqi army shows that they did in fact coordinate and use violence together in Operation Forty Stars and Operation Eternal Light during the summer of 1988, that Iraq enabled MEK to establish its headquarters in Iraq and that Iraq provided MEK with military equipment, training and financial support.
In reference to this, the prosecution concluded that there had been an international armed conflict between Iran and Iraq at the relevant time and that MEK participated in this conflict. Therefore, the Geneva Conventions and Additional Protocol 1, as well as international customary rules, are applicable.
The prosecution further stated that if the Court did not consider that there had been an international armed conflict between Iran and Iraq that the MEK participated in, then MEK had at least formed part of a non-international armed conflict with Iran as the level of organisation within MEK and the intensity of the armed violence reached the criteria of a non-international armed conflict. The prosecution referred to the criteria developed by ICTY in the Tádic-case (which has been confirmed in jurisprudence multiple times after) to present the level of organisation of MEK, which had also been applied by Jann Kleffner in District Court in his assessment. Kleffner had found that MEK and its military wing NLA had a clear military structure, the capacity to build military strategy and to conduct large scale attacks and exercise control over thousands of soldiers in coordination with Iraqi military. It has access to weapons and military equipment, a headquarters and military training camps and could speak with a unified voice through its leader. The latter was confirmed by the fact that MEK had been able to sign a peace agreement with Iraq in 1983. Considered together, this meant that MEK fulfilled the criteria concerning the level of organisation, Kleffner concluded. The prosecution shared this conclusion with Kleffner, it explained. When assessing the intensity of the violence, the prosecution again referred to criteria developed through ICTY:s jurisprudence and Kleffner’s conclusion when applying those criteria on the violence exercised between MEK and Iran. Kleffner found that the level of violence between the two parties clearly exceeded the necessary level and mentioned, inter alia, that thousands of soldiers had perished on both sides as a result of the violence and that military grade weapons, including air force, had been used by the parties. The prosecution explained that it shared Kleffner’s conclusion.
As regards to whether the non-international armed conflict between MEK and Iran was still ongoing at the time of the mass-executions, the prosecution concluded that MEK continued to possess a high level of organisation at the time and that the high intensity of the violence persisted well beyond the relevant period.
In conclusion, the prosecution found that there had been a non-international armed conflict between MEK and Iran at the time that the mass executions took place. Therefore, the Common Article 3 in the Geneva Conventions and international customary rules related to non-international armed conflicts were applicable.
Was there a nexus between the armed conflict and the mass executions?
The prosecution then moved on to the issue of whether there had been a nexus between the mass-executions and the armed conflict (whether international or non-international). Here, the prosecution referred to the fatwa or hokm issued by Ayatollah Khomeini which the prosecution believe was issued on 28 July 1988.
While the prosecution was reading out the content of the fatwa, the defendant had his eyes fixed on one of the plaintiffs who appeared to be sketching a drawing of the defendant. The defendant repeatedly pursed his lips and blinked his eye playfully against the plaintiff.
The prosecution referred to the witness Geoffrey Robertson, who in a report for the Abdorrahman Boroumand Foundation had written that the fatwa and the ensuing mass executions took place as retaliation for Operation Eternal Light. The prosecution further referred to expert witness Rouzbeh Parsi who in his oral statement to the District Court had said that it was not the military operation by MEK that triggered the fatwa but that it was rather the cease-fire agreement with Iraq. The cease-fire had created the need for the regime to create a new mutual enemy that could unify the Iranian people and there was a need to purge “non-revolutionary” forces that competed with the regime about the power.
The prosecution explained that the acts in question (the torture and the executions) must have a close relationship with the armed conflict for the acts to constitute war crimes but not necessarily a direct relationship. As such, the purpose of the acts does not need to be related to the armed conflict. It further explained that a lot speaks in favour of a relationship between the acts and the armed conflict: the military operations by MEK being conducted so close in time before the acts were conducted, that the fatwa included prisoners who still sympathised with MEK which was a party in the armed conflict and that the mass executions were initiated closely after the issuing of the fatwa.
Did the mass executions constitute grave breaches of international humanitarian law?
The prosecution explained that Section 6 in Chapter 22 of the Swedish Criminal Code did not explicitly state what acts that constitutes a crime. Instead, this is determined by the rules in international humanitarian law. The prosecution therefore presented the rules in international humanitarian law which it considered to be applicable. The 1949 Geneve Conventions and Additional Protocol I play a central role, repeated the prosecution. They are however, with the exception of their common article 3, only applicable in international armed conflicts.
“Grave breaches”, which are mentioned in Section 6 in Chapter 22 of the Swedish Criminal Code are acts that according to the Geneva Conventions shall constitute war crimes. Each convention has an article that explains which acts those are. Article 147 in Geneva Convention IV explains what constitutes a grave breach concerning civilians, and ratifying states have an obligation to criminalise those acts. The acts in question are, inter alia, deliberate killing, torture and inhuman treatment of protected persons. This includes not only physical abuse, but also psychological abuse. A protected person is a person in the hands of a party in the conflict which they are not a citizen of. Since members of MEK were Iranian citizens in the hands of the Iranian government, the protection of them must be found elsewhere.
The Additional Protocol I to the Geneva Conventions entered into force in 1977 and its content was already then thought to reflect international customary law. The third section of the Protocol is about the treatment of persons in the hands of a party in the conflict and Article 72 of the Protocol states that the third section completes Geneva Convention IV in relation to the protection of civilians in the hands of a party to a conflict. Additionally, Article 75 of Additional Protocol I states a number of fundamental guarantees. These are applicable to anyone irrespective of their citizenship, as long as the persons are affected by the conflict, are in the hands of a party to an armed conflict and that no better protection can be found for them in any other provision. The fundamental guarantees concern the right to a fair trial and protection against murder, torture, and violations of the dignity of a person.
The Prosecution explained that the prisoners belonging to MEK were clearly affected by the armed conflict as they were perceived as enemies to the Iranian government in the armed conflict, that no higher protection could be found for these persons in any other provision and that they were in the hands of a party in the conflict. As such, the prisoners belonging to MEK were encompassed by the fundamental guarantees of Article 75 of Additional Protocol I.
The prosecution further explained that since Article 75 of Additional Protocol I complements Article 147 in Geneve Convention IV – which lists the grave breaches – Article 147 becomes applicable insofar concerns violations of the fundamental guarantees of Article 75 of Additional Protocol I. This conclusion was shared also by expert witness Ove Bring, who had given an oral statement in District Court. The prosecution thus concluded that the acts that the defendant was indicted for were to be considered as grave breaches and thus as crimes against international humanitarian law in accordance with Section 6 in Chapter 22 of the Swedish Criminal Code.
The prosecution explained that if the Court was to find that the armed conflict constituted a non-international armed conflict, the Common Article 3 of the 1949 Geneva Conventions is applicable. Common Article 3 states a minimum protection for civilians in non-international armed conflicts and states that protected persons may not be subjected to acts such as murder, torture, cruel or inhuman treatment. Protected persons are persons who do not directly participate in the armed conflict.
The prosecution explained that while initially states were not considered to have an obligation to prosecute breaches of Article 3 since such breaches were not considered as “grave breaches”, breaches of Article 3 have with time come to constitute grave breaches according to customary international law. This is reflected in the jurisprudence of the International Criminal Tribunal for Rwanda (ICTR), ICTY and in Swedish courts concerning core international crimes committed in Rwanda, former Yugoslavia, and Syria. The expression “grave breaches” (“svåra överträdelser”) in Section 6 of Chapter 22 in the Swedish Criminal Code is inspired by the expression (in English) “grave breaches”, but is actually not limited to grave breaches, the prosecution explained. This is important to note, said the prosecution, since the expression “grave breaches” is only applicable to international armed conflicts. The words “grave breaches” (“svåra överträdelser”) were introduced to Section 6 of Chapter 22 in 1987. Prior to that, all breaches of international humanitarian law were encompassed by the provision and the provision was changed due to its broad applicability. However, there was never any intention to limit the applicability of the provision to “grave breaches” in the meaning of the Geneva Conventions but rather the provision should be limited to not encompass breaches of international humanitarian law of a less severe kind. This has been confirmed by Stockholm District Court in a verdict from 20 January 2012, where the court applied Section 6 of Chapter 22 in a case concerning acts committed in a non-international armed conflict. That conclusion has also been confirmed in in a number of verdicts after 2012 concerning crimes committed in Rwanda and Syria, the prosecution explained.
Expert witness Mark Klamberg had in his oral statement before the District Court stated that his understanding was that breaches of Common Article 3 were considered as war crimes in 1988 when the indicted acts were committed, and that Section 6 of Chapter 22 was therefore applicable.
The prosecution further referred to the customary international law studies of the International Committee of the Red Cross (ICRC) from the end of the 1990s which stated that murder was forbidden in both international and non-international armed conflicts.
Furthermore, the prosecution briefly addressed the subject of whether the executions had been extrajudicial or whether they had followed judicial proceedings that did not amount to a fair trial, which is relevant for whether the executions should be considered as war crimes. The prosecution noted here that the prisoners that were executed had already been convicted to prison and that it was those prison sentences that they were serving in Gohardasht prison when they were executed. The prosecution noted that the prisoners had not committed any new crimes while in prison. The questioning that the prisoners withstood prior to their execution, could not be considered as a trial. The prosecution noted that even if the Court would find that the questioning did in fact constitute a trial, the subsequent execution of the prisoners should still be considered as illegitimate since it did not fulfil the requirements of a fair trial. Such requirements are, inter alia, that the court is neutral and impartial, that the defendant is made aware of the charges, is given a defense counsel and has the opportunity to call and question witnesses. That these requirements were not met was evidenced by the witnesses and plaintiffs’ statements in the District Court and written evidence that has been submitted to the Court, the prosecution noted. The right to a fair trial persists even in an armed conflict, as expressed through Article 3 of Geneva Convention IV, Article 75 of Additional Protocol I and through international customary law.
The charge of murder (through the execution of prisoners belonging to leftist groups)
The prosecution noted that the execution of prisoners belonging to leftist groups, just as with prisoners belonging to MEK, constituted illegitimate killing. Prisoners who were arrested for their support to leftist groups did not undergo a trial prior to their execution, the prosecution stated. They too had already been sentenced for a crime and were serving that sentence in Gohardasht prison when they were executed. They had not committed any new crimes during their imprisonment either. The prosecution stated that if the Court was to find that the questioning withstood by the leftist prisoners prior to their execution in fact did constitute a trial, then the trial was at least not fair. The proceedings did not fulfil the requirements of a fair trial in accordance with Article 14 of the International Convention for Civil and Political Rights, which largely corresponds with Article 3 of Geneva Convention 4 and Article 75 of Additional Protocol I), the prosecution noted. The prosecution further noted that Iran had ratified the convention in 1975 and that it was thus bound by the requirements in Article 14 of the convention. As further evidence for the fact that the proceedings had not been fair, the prosecution referred to an article by Expert Witness Payam Akhavan – who had posed as a prosecutor in the Iran Tribunal. The article, which has been submitted as written evidence to the court by the prosecution contains a statement made by Ayatollah Khomeini in which he referred to fair trials as a “western sickness” and that criminals should not be subjected to a trial but instead be killed.
The preliminary investigation
After dedicating most of the first and half of the second day of the trial to legal questions, the prosecution moved on to discuss the preliminary investigation towards the afternoon during the second day of the trial.
The prosecution explained that the investigation had been initiated after the police had received a report against the defendant on 4 November 2019. The report contained background information about the 1988 mass executions, Abdorrahman Boroumand Foundation’s report “The Massacre of Political Prisoners in Iran”, documents from the Iran Tribunal, the Amnesty International Report “Blood soaked secrets”, testimonies by Plaintiff 1 and Witness 20, a couple of photographs and screenshots from social media. This information led to the decision to detain the defendant in his absent, which subsequently led to his arrest upon landing in Stockholm on 9 November 2019.
The prosecution explained that throughout the investigation, hearings have been conducted with 98 plaintiffs and witnesses that live in different parts of the world. In the beginning of the investigation, the police would show the plaintiffs and witnesses photos of the defendant. After a while it became clear to the authorities however, that almost every person they spoke to had already seen a recent photo of the defendant that was circulating online.
The prosecution then presented the various reports by civil society organisations and books by plaintiffs and witnesses that had been submitted in the case, and the background to those reports and books before initiating a presentation about the defendant.
The defendant was born in 1961 in Teheran. He was 27 years old when the mass executions took place in the summer of 1988. He did his military service between 1980-1982, and the prosecution showed an image of the defendant from that time period which had been found in the defendant’s phone. In 1985 one of his brothers die during his military service. Photos had been found in the defendant’s phone of signs in Iran that stated that his brother had died a martyr’s death. When searching the defendant’s phone during the preliminary investigation, the authorities had found contacts that appeared to be from Gohardasht prison and recent text messages that the defendant had signed with the fake name that he was using while working in prison. The authorities had also found a voice recording in his phone of a phone conversation between the defendant’s daughter and his wife. From the conversation, it was understood that the defendant was in the home of his daughter the day before he travelled to Sweden and that his son in law was helping him empty his phone. By again examining the defendant’s phone and reconstructing the deleted information, the authorities could find that the defendant had deleted several contacts from his phone at that occasion that can be tied to Gohardasht prison during the period that the mass executions took place, such as contacts to persons belonging to the prison administration or who had high-ranking positions either in Gohardasht prison or other prisons.
The prosecution then moved on to a description of the time that led up to the chronologically present events that took place in Gohardasht prison starting with the days leading up to the mass executions in the summer of 1988 until the period after the mass executions, and the defendant’s alleged participation in those events. The prosecution then moved on to a description of the time period that preceded the mass executions, the period when the mass executions took place and the period after.
The mass execution of prisoners in Gohardasht prison between July-September 1988
The prosecution first made it clear that it would only present what the written material that had been submitted in the case said about the events, and that it would only describe the events in general terms and leave the detailed account to each of the plaintiffs and witnesses.
The prosecution described how the protests organised by MEK in 1981 led to the arrest and execution of MEK-sympathisers. Sometimes persons were arrested because others have provided officers with their names under torture. Not only politically active persons were arrested, but also persons who had shown an interest in or in any way sympathised with different political groups.
The prosecution went on to describe how those that were arrested were often first taken to a revolutionary committee where they were oftentimes tortured before being brought to prison. The purpose of the torture was to extract a forced confession but also to force the person to give up names of other sympathisers, to enable further arrests. The Iran Tribunal’s Truth Commission had written in its report that the most active revolutionary committee was “Komite-e Moshtarak” (“The Joint Committee”), which was connected to Evin prison.
The prosecution explained that the majority of the plaintiffs and witnesses that were heard in District Court had been brought to Evin prison at some point after their arrest and proceeded to describe the prison and some of its departments. The prosecution further explained that the prisoners were brought before the revolutionary court which was residing inside of the prison. Many of the plaintiffs and witnesses were also moved to other prisons, such as Ghezel Hezar prison.
In 1985 the Ghezel Hezar prison was shut down, and the prisoners were moved to other prisons. Many of the plaintiffs and witnesses who had been imprisoned there were moved to Evin prison or Gohardasht prison. Both Gohardasht prison and Ghezel Hezar prison administratively belong to Evin prison, the prosecution explained.
The prosecution then moved on to describe Gohardasht prison and its leadership. While showing a satellite image over Gohardasht prison, the prosecution explained where different departments were located. The prosecution also showed drawings made by Plaintiff 10 over the physical structure of the prison which had been printed in one of Plaintiff 1’s books and noted that the drawings correspond with the satellite images.
The prosecution told the Court that there were a couple of things that the Court should keep in mind when watching the recordings of the plaintiff and witnesses accounts from District Court. Among other things that prisoners had to wear blindfolds while they were outside of their own prison unit but that the prisoners had still been able to see or understand what was happening around them, that the prisoners often used morse code to communicate with each other between prison cells and units and that prisoners were able to bend the metal bars covering the windows of their cells to observe what was happening outside. The prosecution also mentioned that the staff in prison used faked names for themselves, including the defendant, that the prisoners were frequently moved between prison units and that the number of each unit would frequently change which meant that the plaintiffs oftentimes were not aware of which unit they were placed in.
The prosecution also described the different torture methods that the prisoners would be subjected to in Gohardasht prison, and that plaintiffs and witnesses had testified that the leadership of the prison could be present during such acts, including the defendant.
The prosecution then moved on to describe the leadership of Gohardasht prison before describing the role of the defendant in Gohardasht prison and how his role had been described by plaintiffs and witnesses either in the District Court or in books that had been published by some of them in the years after their release. The prosecution noted that new evidence had been submitted to the Court of Appeal which had not been presented in District Court, namely a book called “Freedom of Figment”. The book appears to be a memoir by an anonymous author who claims to have been a former MEK-sympathiser who was imprisoned during the summer of 1988. The author writes that the mass executions of 1988 never took place. The book is only written in Farsi and has been published in Iran. It was given to the prosecutor formerly in charge of the investigation in Sweden by a journalist who claimed that he had found the book while collecting information for an article about Gohardasht prison. The journalist had marked sections in the book which mentioned the person in Gohardasht who the prosecutor claims is the defendant and that described him as an assistant to the “dadyar”. The author describes this assistant as a young and friendly person who was close to the prisoners, often spoke to them and participated in games and competitions in the different units.
The prosecution then described events that took place during the months prior to the mass executions, starting in January 1988, before reaching the first wave of mass executions in July 1988.
The prosecution first noted that all the plaintiffs in the case are men but that there had also been women in Gohardasht prison. The prosecution explained that it was under the impression that most female prisoners had been moved to Evin prior to the mass executions but that some women had in fact been executed in Gohardasht prison. The prosecutors had, however, not been able to identify or speak to any women who had been executed or been brought to execution in Gohardasht prison during that summer.
The prosecution then described what different reports by various civil society organisations stated about which persons that had formed part of the so-called death committee and the persons involved in the mass executions and gave the court a brief introduction concerning each mentioned member. The prosecution noted that the name of the defendant was mentioned in the report issued by the Iran Tribunal and that his name had been provided by Plaintiff 1. Plaintiff 1 had also mentioned the defendant in his memoir which was published in the early 2000s. Plaintiff 2 had also previously mentioned the name of the defendant during a public meeting in Stockholm in 2018 but had then mentioned him as a member of the death committee.
The prosecution explained that it believes that all staff in Gohardasht contributed to the executions. Apart from their regular tasks, they also had to select prisoners to be brought before the death committee, bring them to the death committee, make sure that those that were to be executed were hanged and take care of their bodies. The prosecution noted that some tasks in prison were conducted by Afghan prisoners prior to the mass execution period, but that those prisoners were not allowed to perform their tasks when the mass executions started since the prison leadership wanted to keep the executions secret. Their tasks instead had to be handled by the prison staff. As a result of the increased work burden on the staff, and due to the interest to keep the executions secret, the prison staff had little to no opportunities to leave the prison during this time period. This had also been described in a book by Plaintiff 35, said the prosecution, in which the Plaintiff described how he had heard a staff member plead with the dadyar to let him visit or at least call his dying wife who was in the hospital but that he was not allowed to leave the prison and was told by the dadyar that all phone lines had been cut off.
The prosecution then explained how the prisoners had been selected to be brought before the death committee and that the defendant had been involved in selecting the prisoners and bringing them to the death committee. Several plaintiffs had testified that they had been called out of their prison cells and subjected to questioning before being brought to the death committee. The prosecution stated that the defendant had conducted that questioning together with, inter alia, the prison’s dadyar. It also stated that the defendant had guarded prisoners in the corridor outside of the room in which the death committee was located but that the District Court had not reached the same conclusion. That part of the verdict, the prosecution had appealed.
The prosecution further described how the questioning of prisoners by the death committee took place and that the prisoners had not been aware at first about the purpose of the questioning by the death committee and that they had only found out after a while from other prisoners who sent them messages through morse code. The prosecution described the system in place to separate those that were going to be brought to execution and those that were going to be brought back to their cells after the questioning by the death committee, and how the defendant had been one of the people calling the names of those that were brought to execution. The prosecution also stated that the defendant had either with other persons from the prison leadership, or with guards, brought prisoners to the execution site or that he, without accompanying them himself, had ordered guards to do it. The prosecution also showed a picture from one of Plaintiff 1’s books that depicts the corridor outside the death committee’s room but that was taken during a different time period.
The prosecution then moved on to a detailed description, of each day that the death committee was in Gohardasht prison during the first wave of executions, the names of prisoners that had been brought before the death committee on that day and the information available about the acts of the defendant in Gohardasht prison on that day. The prosecution did this by comparing information written in books by plaintiffs and witnesses after their release, starting with the 30 July 1988. There is diverging information in those sources about whether the last day of the death committee in Gohardasht prison during the first wave of executions was 16 August or 17 August 1988. The prosecution had decided to draw a line by 16 August 1988.
The prosecution explained that it believed that the first wave of executions was interrupted due to the intervention of Ayatollah Montazeri, and referred to two letters from Montazeri to Ayatollah Khomeini and his conversations with members of the death committee which were described in Montazeri’s memoirs. The prosecution claimed that it was after Montazeri’s second letter that was sent on 15 August 1988 that the first wave of executions was paused.
The prosecution went over the names of persons that had been said to be executed in books and reports written by civil society organisations and plaintiffs and witnesses in the case. The prosecution noted that the prosecution’s list A – which consist of names of persons that sympathised with MEK and which the prosecution claimed had been executed in Gohardasht prison during the relevant time period – contained 110 names when submitted to District Court. The District Court had however considered that it could not be established that 32 of those had been executed in Gohardasht prison at the relevant time period. The prosecution has appealed the District Court’s decision concerning one of those names. As such, the list that is to be tried by the Appeal’s Court contains 78 names.
The prosecution then moved on to the second wave of executions in Gohardasht prison which, according to the prosecution, took place between 27 August-6 September 1988 and was focused on sympathisers of leftist group, agnostics, and atheists. The prosecution noted that no fatwa had been published prior to the second wave of executions, as opposed to the first wave of executions. The prosecution referred to witness Geoffrey Robertson, who in this oral statement to the District Court, had claimed that there might have been a secret fatwa concerning this group of prisoners. Ayatollah Montazeri had said that it was possible that Ayatollah Khomeini had issued an order to the death committee concerning that group of prisoners in the end of August 1988. The prosecution noted that Rouzbeh Parsi who was heard as an expert witness in District Court had said in his oral statement to the court that historians have drawn the conclusion that there had been a second fatwa issued by Khomeini concerning leftist prisoners, due to the nature of the questions that the prisoners were asked by the death committee.
The prosecution then referred to reports published by the Abdorrahman Boroumand Foundation and Amnesty International to describe the events the manner in which the executions were organised and conducted during the second wave of executions. The prosecution explained that the death committee consisted of the same people and that the same staff was used in Gohardasht prison to conduct the executions during the second wave as had been used during the first wave and that the defendant had played a similar role. He had, inter alia, brought the prisoners to the corridor outside the room where the death committee was seated, called the names of prisoners to be brought before the death committee, escorted the prisoners to the death committee and guarded prisoners in the corridor.
Similar to its presentation of the first wave of executions, the prosecution conducted a chronological presentation of each day that the death committee was present in Gohardasht prison during the second wave of executions and of each person from the prosecution’s list of executed persons that were brought before the death committee on each day, starting with 27 August 1988. The prosecution based its presentation of the events on books written by plaintiffs and witnesses in the case after their release, previous witness statements that plaintiffs and witnesses have given to the Iran Tribunal, lists of executed persons created by political groups and civil society organisations, death certificates of some executed prisoners and letters sent between the prisoners and their family members prior to the execution period. As such, the sources do not give a complete account of each and every person that was brought to the death committee during the relevant time period but only those observed by the sources.
The prosecution then went over lists that had been created by different civil society organisations and compared what was said in the lists about the date and place of execution of persons that are on the prosecution’s list of executed persons to establish the date and place of their execution.
The prosecution noted that the sources provided conflicting information concerning the date of the death committee’s last day in Gohardasht prison. Some sources have noted 2 September 1988 as the last day, while others have noted that the death committee was in Gohardasht prison also on 4 September 1988.
The prosecution concluded its introductory argument before the Court of Appeal by presenting documents, reports, interviews, and statements made by Iranian government officials in various news outlets about the 1988 mass executions in support of the claim that the 1988 mass executions did in fact take place and that various religious and political leaders have defended the acts. The prosecution also presented documents from the Iran Tribunal and its conclusions, in which the Tribunal found that the government of Iran had committed crimes against humanity through the 1988 mass executions.
Before finalising its introductory arguments, the prosecution noted that Plaintiff 1 had recently submitted a photograph allegedly depicting the so-called death corridor where prisoners waited to either be brought before the death committee or to be escorted to the execution site. The photograph was printed in the newspaper Mizan News on 4 September 2022. While the article does not mention that the photograph depicts a corridor inside Gohardasht prison, the prosecution noted that it believes that it is the corridor in question and that was could be seen at the end of the corridor in the photograph was the entrance to the amphitheatre where the executions took place.
Clarifying questions by and to the Court
On the first day of the trial, the presiding judge asked the privately appointed plaintiff counsel Kenneth Lewis whether he was aware that one of his clients (Plaintiff 19) had been granted damages by the District Court even though the District Court had found in the same verdict that it could not be established that the client’s brother had in fact been executed in Gohardasht (Author’s note: The judge likely made this comment because Lewis had not appealed the District Court’s decision in this regard). Lewis responded that the District Court had not issued an amendment of the verdict afterwards.
On the second day of the trial, the prosecution raised the issue of media outlets live streaming the audio from the trial. The prosecution said that District Court had issued a decision to allow media outlets to livestream audio from the trial and asked whether a similar decision had been issued by the Court of Appeal. The presiding judge responded that the Court of Appeal’s understanding is that it is allowed to record sound from trials, that journalists are regularly given that opportunity and that what journalists chose to do with the sound is not a matter for the Court to decide.
When the prosecution finalised its introductory arguments on the fourth day of the trial, the presiding judge asked whether the prosecution accepted the District Court’s assessment of the statements of the criminal act charged with the exception of the parts that had been appealed by the prosecution (Author’s note: the appealed parts of the criminal act charged concern the defendant’s alleged contribution to the execution of prisoners under both charges by having guarded prisoners in the death corridor and, concerning the charge of war crimes, of having submitted information about the prisoners to the death committee, which the District Court did not sentence the defendant for, see report 43 and 44). The prosecution confirmed this and added that it also considered that the District Court had wrongfully acquitted the defendant from the execution of one prisoner who the prosecution believes was executed with the contribution of the defendant.
The judge further asked whether the prosecution requests that the defendant is sentenced for a total of 24 accounts of murder under the second charge. The prosecution responded that it needs to check the number and that it would get back to the court with an answer. The following day, on 19 January 2023, the prosecution was asked to respond to the question before the plaintiff counsels initiated their introductory arguments. The prosecution explained that the District Court had found that the defendant had contributed to 24 accounts of murder of prisoners sympathising with leftist groups and that the prosecution requests that the Court of Appeal follows the District Court’s example and sentence the defendant to murder of the same 24 named persons in addition to “a large number of other prisoners”.
In the next report, we will summarize the introductory argument of the plaintiff counsels which were delivered before Svea Court of Appeal on 19 January 2023.