Report 46: Introductory arguments by the plaintiff counsels
In this report, we will summarize the introductory arguments by the plaintiff counsels which were presented before Svea Court of Appeal on 19 January 2023.
Introductory arguments by plaintiff counsel Bengt Hesselberg
Plaintiff counsel Bengt Hesselberg noted that some of his clients had changed counsel since the proceedings in District Court (Author’s note: Those plaintiffs are not represented by privately appointed counsel Kenneth Lewis) and that he now represents seven clients. All his plaintiffs had announced that they have no objections to the District Court’s verdict and that the verdict is correct.
Hesselberg referred the Court to the oral statements given by other plaintiffs who had seen some of his clients or the family members of his clients in prison in support of the statement given by his clients about what happened to them in Gohardasht prison. Hesselberg noted that he referred to those statements since the defendant claimed that the deceased prisoners had not been incarcerated in Gohardasht prison at all but had been killed in the war. Hesselberg further noted that he has referred the Court to written evidence but that he will present that evidence in a future session before the Court begins watching the video recordings of the oral statements given by plaintiffs and witnesses in District Court.
Hesselberg then moved on to the issue of the damages that had been awarded to his clients by the District Court. He explained that he was not quite sure how to approach the issue, since the plaintiffs had not appealed the District Court’s decision concerning damages. He noted that he is aware that the plaintiffs cannot ask for more than 40 000 SEK, which is the amount that they have been awarded by the District Court, but that they could have opinions about the reasoning of the District Court. The District Court had applied Swedish law to determine the amount that the plaintiff should be awarded in damages, but should have applied Iranian law, Hesselberg explained.
Hesselberg explained that he refers to the same evidence in the Court of Appeal as in District Court concerning the damages that should be awarded to the plaintiffs, including a statement by an Iranian legal professional, copies of Iranian legislation which has been submitted to the Court and the oral statement of Mohammad Olyaeifard who was heard as an expert witness in District Court. Regarding the choice of legislation, Hesselberg explained that it was his understanding that the parties had no influence over whether the Court would apply Swedish or Iranian law. Yet, he argued that it is section 3:5 of the Act on Civilian Responsibility (in Iranian legislation) that should be applied to assess the size of the damages to plaintiffs.
When Hesselberg had concluded his presentation, the floor was given to Göran Hjalmarsson and Ghita Hadding for very brief presentations amounting to a total of 30 minutes. As Civil Rights Defenders was not present during those 30 minutes of the trial, their presentations cannot be covered in this report.
Introductory arguments by plaintiff counsel Kenneth Lewis
Plaintiff counsel Kenneth Lewis initially noted that Plaintiff 18 was no longer a plaintiff in the proceedings before the Court of Appeal. He then explained that his clients object to the defendant’s appeal of the District Court’s verdict and that his clients join the prosecution’s indictment in the Court of Appeal as well. He further explained that his clients had requested him as a public counsel but that both the District Court and the Court of Appeal had rejected their request with the motivation that it would be too costly to appoint a fourth plaintiff counsel and that he is therefore now privately appointed by his clients. He further explained that the reason that his clients had requested him as their counsel was because he has had MEK as clients since 1998, or at least since a case in 2003. He had met several of his clients in Camp Ashraf in Iraq already in March 2004. Lewis noted that while representing a number of clients he did in fact, in practice, represent MEK.
He further went on to note that his clients had a different understanding of what had happened in Iran during the relevant time period and in the period before and after 1988, compared to the prosecution. He explained that he would spend a considerable part of his introductory arguments to the political developments in Iran from the revolution in 1979 until today to prove the existence of a non-international armed conflict between MEK and Iranian government and that the non-international conflict took place while an international armed conflict was taking place between Iran and Iraq. Lewis noted that the District Court had not assessed the non-international armed conflict and that it had based its conclusions concerning MEKs role in the armed international conflict on dubious and inadequate sources.
Lewis initiated his presentation of the political developments in Iran by giving a brief introduction into the history of MEK. He then described how MEK had turned to a court in the city of Bam in Iran in 1980 to complain over attacks by the revolutionary guard against MEKs offices and how the court had issued a verdict, which Lewis presented to Svea Court of Appeal, in which it said that MEK were apostates and therefore had no property rights or a right to life. Lewis described how the increased repression led MEK to develop from conducting peaceful protest to burning down buildings belonging to the revolutionary guard and to arm themselves with knives. To illustrate the repression, Lewis showed various newspaper articles and images from that time period about children and young adults who had been executed.
Lewis further described how MEK had condemned Iraq’s invasion and that it had participated in the struggle against Iraq in the beginning of the war, but that Iran’s revolutionary guard had refused to allow MEKs forced to participate in the war and even attacked their forces. MEK considered that it was in the interest of the Iranian people to end the war and thus closed a peace agreement with Iraq on 9 January 1983. The prosecution has claimed that there was an alliance between Iraq and MEK at that point in time, which Lewis argued was wrong since the leadership of MEK was still in Paris then. When the French government decided in 1986 that MEK could not stay in France anymore, to appease the Iranian government, MEK moved to Iraq and were allowed to open bases there. Lewis explained that MEK conducted the non-international armed conflict with Iran from those bases but also bases inside of Iran, Turkey, and Pakistan. The organisation conducted smaller operations between 1986-1987. As support for his statements, Lewis referred to an article from the Los Angeles Times dated December 1987 and several other newspaper articles from that time.
Lewis explained that the non-international armed conflict between MEK and Iran continued after the end of the Iran-Iraq war. He exemplified this by showing images of revolutionary guards attacking MEK and its armed wing the National Liberation Army in Iraq in 1991 and images of a revolutionary guard commander admitting to the attack on television. He further referred to a letter from the International Committee of the Red Cross (ICRC) from 1994 in which ICRC mentions that three revolutionary guards were released by MEK in 1994 but that they did not want to return to Iran. Lewis noted that the evidence of the revolutionary guard’s attack against MEKs bases in 1991 spoke against the defendant’s claim that MEK had been obliviated through Operation Mersad in the summer of 1988. Lewis then went on to show articles and images of further attacks against MEK by Iranian forces in 1992 and 2001.
Lewis explained that many members of MEK were arrested as early as 1981 and 1982 for distributing leaflets or collecting money for the families of other members. Lewis noted that the Court of Appeal will hear from the plaintiffs and witnesses that were heard in District Court that they were arrested and convicted already in 1981 and 1982. Lewis also noted that there are numerous reports by Amnesty International and the United Nations about how prisoners would be subjected to torture, often by being hit with cables under their feet. He then showed the Court an image depicting the feet of a person who had been subjected to that specific torture method. The toes were black, and the skin was broken in several places.
After the lunch break, Lewis explained that the defendant had denied that mass executions of political prisoners took place in Iran in 1988 and that those who were executed in 1988 were prisoners of war that were captured in Operation Eternal Light. Lewis showed a list of cities in which the executions took place during the summer of 1988 and the number of MEK-members who were executed in each city. According to the document, which listed 39 cities across Iran, 1292 persons were executed in Teheran, 514 in Karaj (where Gohardasht is located) and 46 in Hamedan. Lewis explained that there is no reliable statistics over the exact number of executed persons across the country in 1988, and then begun to present what different sources had said about the number of executed persons.
Lewis said that he had noticed that it had not been easy for the District Court to understand the plaintiff’s references to the different units that they were kept in inside Gohardasht prison. His clients who are based in MEKs camp in Albania had created an animated film to allow the District Court to see what Gohardasht prison looked like for the inside and from the outside. When that was not enough, they also created a 3D-model of Gohardasht prison, Lewis said and pointed to the model which had been placed in front of the panel of judges. Lewis then played the animated film to the Court. The film resembled a computer game, in the sense that the viewers are given the impression that they are themselves walking through Gohardasht prison. In the film, the viewers are led through the so-called death corridor, walking all the way down to the amphitheatre where the executions allegedly took place. Inside the amphitheatre, the viewer is confronted with several persons hanging in gallows and rows of blindfolded prisoners in front of the gallows. Several spectators in the courtroom let out a long sigh as the doors to the animated amphitheatre opened and revealed the image of the prisoners inside.
Lewis mentioned that the sketch of the layout of Gohardasht prison which had been printed in one of Plaintiff 1’s books largely corresponded with the layout of Gohardasht prison in the film and the physical model that was presented in court. Lewis noted that Plaintiff 1 (represented by counsel Göran Hjalmarsson) had said that the sketch in his book was incorrect and noted that he did not understand why, as the sketch corresponded with what had otherwise been said in District Court.
Just as in District Court, Lewis noted that while the indictment concerning the torture and execution of prisoners sympathising with MEK concerned war crimes, which Lewis and his clients did not object to, the very same acts could also easily be characterised as genocide if a few sentences were added to the indictment describing that members of MEK were, and are, a religious and political group. Lewis explained that the basis of Ayatollah Khomeini’s fatwa or hokm and the execution of MEK-prisoners was primarily MEKs divergence from what the regime considered to be the correct form to practice Islam. This, Lewis explained, was evidenced by the fact that members of MEK were also executed before and after 1988, that Khomeini referred to MEK as “monafeqin” (hypocrites) and considered them as “mohareb” (persons waging a war against God) and “mortad” (apostates) and that the fatwa or hokm ordered the execution of all those that stood by their belief. Ayatollah Khomeini’s answer to Ayatollah Montazeri when he protested against the executions, was that all of Islam’s enemies had to be eradicated as soon as possible. Lewis added that Khomeini had strongly disapproved of MEKs interpretation of Islam already before he seized power and that he expressed his will to eradicate them immediately after he seized power by referring to them as “monafeqin”. This was further evidenced by the verdict from the court in Bam (referred to above), which stated that MEK were worse than the non-believers. Lewis further explained that MEK represented a religious reform movement with political beliefs that threaten the dictatorship of the clergy in Iran. Lastly, Lewis noted that expert witness Eric David (which had been called by Lewis and his clients) and expert witness Geoffrey Robertson had both said in their oral statements in the District Court that the mass executions of MEK prisoners might very well constitute genocide. However, Lewis noted, his clients accept the indictment concerning war crimes and that his clients did not wish to independently adjust the indictment but that he wanted to mention their opinion since Lewis will be asking questions throughout the proceedings which concern genocide.
Lewis then moved on to describe how a non-international conflict between MEK and Iran had begun in 1981 and how MEK had set up military bases in Iraq in 1986. Lewis explained that it was obvious that MEK and Iraq had to coordinate their actions, especially in 1988, since they would otherwise risk disturbing each other’s operations. Lewis noted that it is correct to state that MEK and Iraq were exercising violence against the same enemy, which was Iran, but that MEK was acting independently. Lewis noted that the sources referred to by the prosecution to show that Iraq had overall control over MEK have been used incorrectly. When reviewing an article that the prosecution had used to show that Iraq has been providing MEK with financial assistance, Lewis discovered that the article did not mention financial assistance to MEK but simply stated that Iraq provided MEK with heavy military equipment. Lewis notes that all sources refer to information from the US State Department its Office of the Coordinator for Counter-Terrorism in 2009-2011. The prosecution has also referred to text by the former diplomat Lincoln Bloomfield Jr. to prove that Iraq had overall control over MEK. Lincoln Bloomfield Jr. also writes, however, that the yearly report “Country Reports on Terrorism” that was produced by the American State Department for years had cited incorrect information about MEK. Lewis also went through several other sources used by the prosecution and discussed the credibility of the information in those sources.
When the court interrupted the presentation to announce a 15-minute break, the presiding judge told Lewis that his presentation had presentation had fleeted too far away from the acts as charged during the previous 15 minutes. Lewis attempted to explain but was interrupted by the judge who said that he understood. Lewis said that the reason he is going over the sources used by the prosecution is because the District Court has used the sources in its verdict. The judge said that if that is the case, Lewis should refer to the paragraphs in the District Court’s verdict where those sources have been used.
After the break, Lewis presented new evidence to prove that MEK had not received financial support from Iraq. Lewis presented a receipt that showed that fem million and later another three million (possibly Swiss francs) had been transferred from Switzerland to Iraq within the organisation. Lewis also showed receipt that showed purchases of cars in Dubai as well as weapons and ammunition in Iraq to be used by the National Liberation Army.
The presiding judge asked whether these receipts had been submitted electronically to the Court prior to being presented, upon which Lewis responded that he had submitted the PowerPoint presentation that he was using in the Court and which contained images of the receipts. The judge asked whether the defense counsels had received the information, and they responded that they had received the PowerPoint presentation. The defense said that it would appreciate if Lewis could refer to what he was attempting to prove with the evidence, so that the defense counsels could prepare themselves better for their own introductory arguments.
Lewis further noted that most sources agree that MEK did not participate in Operation Sunshine in March 1988, which the prosecution had claimed, but that the prosecution had still referred to an article in the New York Times from May 1988 which Lewis claimed contained pure speculation about Iraqi collaboration with MEK. Lewis further argued that while forty journalists were on sight during Operation Forty Stars, not a single one of them had written that there had been ground forces collaborating with Iraq. MEK took 1400 prisoners of war from Iranian forces when MEK took over Mehran during the summer of 1988, whose release MEK later independently negotiated about with ICRC.
Lewis further referred to new evidence that he had submitted to the Court of Appeal, which consisted of copies of statements made by various high ranking Iranian leaders in which they had said that Iraqi forces did not participate in Operation Eternal Light and that Iraqi forces had not even helped MEK to evacuate the wounded after Operation Mersad.
Lewis noted that the District Court had not even commented in its verdict whether there was a non-international armed conflict between Iran and MEK. The presiding judge, looking quite disturbed, asked whether Lewis and his clients had not in fact joined the prosecution’s indictment. They did, Lewis responded, but there is a part of the indictment which concerns a non-international armed conflict, he added. “Did you not join the indictment in its entirety?”, asked the judge. Yes, responded Lewis and said that he will explain. Lewis said that it does not matter from a legal perspective what the District Court or Court of Appeal conclude concerning the classification of the conflict since all experts, except expert witness Ove Bring, considers that the content of Common Article 3 of the Geneva Convention (which is applicable to non-international armed conflicts) constitute customary international law while Ayatollah Khomeini’s fatwa prove a nexus between the armed conflict and the executions. As Lewis was explaining his reasoning, the judge continued to appear displeased.
Lewis then moved on to the defence counsels’ argument that MEK are terrorists. Lewis explained that MEK were not designated as a terrorist group by USA until 1997 and by the EU until 2000 and that the designation had later been lifted.
He then touched upon Ayatollah Khomeini’s fatwa and argued that it did not matter whether it was considered as a fatwa or a hokm but that his opinion was that it was a hokm or that it achieved the effect of a hokm (a decree) since it was issued by Iran’s highest leader. This was further evidenced, he argued, by statements made by high-ranking individuals within the Iranian government, which he showed to the Court. Lewis further argued that the fatwa was not issued as a reaction to Operation Eternal Light or any other military operation by MEK since the organisation is not mentioned in the fatwa, and that the oral statements of plaintiffs and witnesses in the District Court showed that the prison staff had started to prepare for the mass executions before the fatwa was even issued.
Lewis further mentioned a blindfold which had been given to him by someone who had worn it in Gohardasht prison and who had manipulated the blindfold like the prisoners used to do in order to be able to see through it or underneath it. The presiding judge asked whether Lewis requested the Court to inspect the blindfold, and Lewis said that he did and that he only referred to it because the blindfolds were mentioned during the oral statements in the District Court which the Court of Appeal will watch and because the Court of Appeal and the new defense counsels, as opposed to the District Court and the old defense counsels, had not had an opportunity to see and touch the blindfold. The Court of Appeal then approved the request to show the blindfold to the Court. Lewis thus got up from his seat and walked up to the panel of judges and tied the blindfold around his head while facing the judges. Once the clerk had started a video recording of the event, Lewis asked the presiding judge to hold up a few fingers in front of him and to ask Lewis how many fingers he was holding up. The judge held up three fingers and Lewis said that he was seeing three fingers. The judge then held a pen in each of his hands upon which Lewis said that he can see that it is a pen in one hand and that the judge was holding something in his second hand but that the blindfold had not been manipulated to fit his face. The presiding judge asked whether the defense counsels or anyone else wanted to demonstrate anything while Lewis was wearing the blindfold to which the counsels and prosecution declined. Lewis thus removed the blindfold and went back to his seat.
When Lewis had concluded his introductory arguments, the presiding Judge returned to the question that he had asked Lewis on the first day of the trial concerning the fact that his client, Plaintiff 19, had been awarded damages despite the District Court having found that it could not be established that his brother had been executed in Gohardasht prison. Lewis responded that he could not appeal the decision. The judge said that Lewis could still have an opinion about it, upon which Lewis said that his clients do not care about the being awarded damages. “Not caring about something is not a legal act”, said the judge. “No”, responded Lewis. “I cannot get any further”, said the judge and concluded the discussion.
In the next report, we will summarize the introductory argument of the defense counsels which were delivered before Svea Court of Appeal on 23 and 25 January 2023.