Report 47: Introductory arguments by the defense counsels
In this report, we will summarize the introductory arguments by the defense counsels which were presented before Svea Court of Appeal on 23 and 25 January 2023.
Introduction by the presiding judge
After opening the trial and before giving the floor to the defense counsels for their presentation of their introductory arguments, the presiding judge turned to plaintiff counsel Kenneth Lewis. The judge said explained that the Court had received new evidence from Lewis and that the Court may have reasons to get back to Lewis with questions about that. The Judge also added that the Court was surprised and was not quite sure how to understand the fact that Lewis and his clients have joined the indictment while presenting evidence against the first charge of the indictment. It is odd and it is an “anomaly”, said the judge. Lewis was not given the opportunity to respond, and the floor was instead handed to defense counsels Thomas Bodström and Hanna Larsson Rampe to present their introductory arguments.
Introductory arguments by the defense counsels
Defense counsel Bodström initiated by saying that no similar case had been dealt with in Swedish courts previously: an Iranian national that is accused of murder of Iranians in Iran 33 years ago. In previous Swedish trials concerning international crimes, such as trials concerning crimes committed in Rwanda, prosecutors have worked extensively with Rwandan authorities and have received close to all evidence through that. In the case at hand, the prosecution has investigated something that happened over three decades ago without being able to visit the place. This is a hard investigation for the prosecution to conduct, but that should not mean that the prosecution should be alleviated of its evidentiary burden. This might seem obvious but is exactly what happened through the verdict of the District Court, the defense argued. The District Court repeatedly accepted the prosecution’s arguments, even when there were arguments against it. The District Court’s verdict has already had great consequences so that thousands of Iranians cannot leave Iran to travel to other countries (Author’s note: While not explicitly mentioned by Bodström, it is assumed that he means that they cannot travel in fear of arrest). It has also affected the situation for Swedes who are now imprisoned in Iran. According to Iranians that the defense had met, it has become more difficult to visit both Sweden and Iran. That is why it is important, the defense argued, that the Appeal’s Court decides this case with the same exactness as it determines other cases.
Defense counsel Bodström then went on to explain that when one first reads the District Court’s verdict, one is impressed by how much knowledge the Court has managed to acquire, without having had months to prepare for the case. But when one reads the verdict more thoroughly, one is struck by another thing and that is the absence of evidence of what the defendant is allegedly guilty of. In the verdict that spans over hundreds of pages, the guilt of the defendant is only touched upon with a couple of lines. Not even a page, the defense counsel noted. The counsel explained that the defense’s introductory arguments will initially be focused on issues concerning international and humanitarian law, but that it will dedicate considerable time to the fact that evidence is lacking and that, at the very least, it has not been proven that the defendant had been active in wilful killing.
The defense then announced the disposition of its presentation, which will be followed in this report.
Before initiating its presentation, the defense announced that it will use the name “Rajaie Shahr prison” instead of “Gohardasht prison” throughout its presentation.
Iran as a country
Defense counsel Rampe described the political developments in Iran between 1960-1990, including the political repression by the Shah Mohammad Reza Pahlavi up until the revolution in 1979 and Ayatollah Khomeini’s return to Iran. Defense counsel Rampe explained that many political groups were involved in overthrowing the Shah, from various Kurdish groups to MEK and the leftist group Fadaian-Khalq. The latter, she explained, went through several changes after the revolution and up until 1989. Fadaian, which was the country’s biggest leftist group, according to Rampe, was split into a majority fraction (“aksariat”) and a minority fraction (“aghaliat”). The minority fraction opposed the Islamic regime and promoted armed struggle as a form of resistance while the majority fraction avoided armed struggle and supported the regime. A group splitting into a violent fraction and a more peaceful fraction was not unique for Fadaian, Rampe explained, and said that the same had happened to MEK. The internal fragmentation gave rise to its armed wing, the National Liberation Army. This is important to note, argued Rampe, to understand MEK’s role in the armed conflict and the nexus between the armed conflict and the executions.
Rampe went on to explain that Iran during the time period after Ayatollah Khomeini had seized power was very unstable and that confrontations between different groups were common. Rampe referred to an Amnesty International report in which it is stated that two secret resolutions were passed on 29 and 31 January 1981. The resolutions allegedly stated that all leaders and members of organisations which were hostile to the government should be arrested, prosecuted and sentenced with death penalties and that all sympathisers who were arrested while selling newspapers, distributing brochures or otherwise promoting such groups should be arrested and punished to set an example.
The role and development of MEK
Rampe then went on to introduce the founders of MEK and the ideology of the group. According to Amnesty International the MEK had used guerrilla warfare. Guerrilla warfare, Rampe argued, was used when a group did not have capacity for a full-blown battle. A less flattering description of their methods, Rampe said, is “terror attacks”. On 1 June 1981, MEK declared that they were in armed struggle with the regime. During this time period, the group conducted several bomb attacks against up to 74 government officials, amongst them the president of the Iranian Supreme Court, Mohammad Beheshti, but also members of parliament and ministers.
Rampe noted that no reliable information was available about the relationship between MEK and the National Liberation Army (NLA). What could be established, Rampe argued, was that not all members of MEK were automatically members of NLA. Not all members of MEK supported the terror attacks of NLA against the regime. Rampe referred to written statement by Noelle Higgins, who is an Associate Professor in Law at Maynooth University, which states that there was no international armed conflict between MEK and Iran at the time of the mass executions because it could not be established that Iraq had exercised control over MEK. Higgins had also stated that it was unclear whether the NLA overtook all military capacity from the mother organisation (MEK) or whether MEK still had an armed branch.
MEK’s role in an international conflict
After a short break, defense counsel Bodström moved on to discuss MEK’s role in the international armed conflict between Iran and Iraq and said that the District Court had wrongfully found that MEK formed part of that conflict. Bodström went on to note that large parts of the evidence in the case consisted of books and articles which had been written by people who themselves had a stake in the events. Several academic researchers had given their opinion and in the academic world “opinions are as many as the academic researchers themselves”, said Bodström. The requirements of academic research do not meet the evidentiary requirements of Swedish criminal proceedings. While many authors and academic researchers have published opinions in support of what the prosecution has stated, several authors and academic researchers have also published opinions that contradict it.
An important question, Bodström noted, was what it means to say that a non-state group is under the control of a state. The determining factor for whether a group should be considered to form part of the international conflict is the level of control that the state exercises over the group. But it is difficult to believe that a terrorist organisation or a guerrilla organisation could be under a state’s control at all, said Bodström, since that “does not correspond with the DNA of a terrorist organisation”. A terrorist organisation is independent, argued Boström.
Bodström went on to explain that the International Court of Justice (ICJ) had found in its verdicts in the case between Nicaragua and USA from 27 June 1986 that it is not enough that a state finances, organises, trains or provides an armed group with weapons or chooses its military goals and plans its operations to be held responsible for its actions. It also has to exercise effective control. The International Criminal Tribunal for the Former Yugoslavia (ICTY) had further found that for a state to be considered to have had “overall control” over an armed group, it must have organised, coordinated or planned the armed group’s military actions apart from financing it and providing it with equipment and operational support. After hearing plaintiff counsel Kenneth Lewis’ introductory arguments yesterday, one could hardly believe that MEK had let itself be subordinated that way, said Bodström. Bodström added that whether one applies the ICJ or the ICTYs test, the conclusion is that MEK did not form part of the international armed conflict between Iran and Iraq.
Bodström moved on the topic of non-international armed conflicts and explained that international humanitarian law is only applicable when the violence has reached a certain level intensity. International humanitarian law is not applicable to riots, isolated or sporadic acts of violence or other acts of a similar nature that that are not armed conflicts. There is minimum threshold for what a country should deal with itself, through its own criminal law. The typical example, explained Bodström, is terror attacks. Unfortunately, we have experienced terror attacks ourselves, said Boström, and referred to a terror attack in Stockholm in 2017. We find it natural to take care of those attacks ourselves without considering those attacks as a civil war. The Appeals Court needs to decide on that minimum threshold, argued Boström. That is why we need to take a look at MEK and decide what type of organisation it is. Bodström went on to say that MEK was classified as a terrorist organisation already in 1981 in Iran, followed by the USA in 1997, the UK in 2001, in Japan in 2002, the EU in 2002 and Canada in 2005. As such, the organisation was classified as a terrorist organisation in Iran during the war between Iran and Iraq.
Without delving deeper into this, Bodström moved onto discuss the end of the international armed conflict between Iran and Iraq. Boström explained that Iran and Iraq accepted the UN Security Council resolution 598 of 29 July 1987 in July 1988, which demanded that the two countries initiate peace negotiations with each other and that they withdraw their forces to the internationally recognized borders. The fact that prisoner exchanges happened after July 1988 and that sporadic attacks took place after that does not mean that the conflict was still ongoing, argued Bodström. It is common for sporadic attacks to take place after a peace agreement, he said. And it is even less strange that MEK or NLA would engage in such attacks, since they had not signed a peace agreement. Bodström further referred to texts by former US ambassador Lincoln Bloomfield Jr. who had stated that Operation Eternal Light did not form part of the conflict between Iran and Iraq since the two countries had already accepted Un Security Council resolution 598 and that Iraq had not participated in the operation. Bodström argued that there was no proof that the NLA had been supported by Iraqi air force and that the NLA had been “massacred” within only a few days. Bodström further argued that it was unclear what type of support Iraq had provided during several of the operations that were launched by the NLA against Iran during the summer of 1988. He referred to expert witness Sally Longworth who in her statement to District Court had said that her understanding was that the air support from Iraq had stopped after a while.
Bodström further added that MEK itself had made statements on their website and in media interviews denying any collaboration with Iraq, which has been confirmed by plaintiff counsel Kenneth Lewis. Saddam Hussein had also said in both 1986 and 1988 that Iraq only had a peaceful collaboration with the Iranian opposition movement. In a report from 15 December 1998 that described the weapon inspections that were conducted by United Nations Special Commission (UNSCOM) after the war between Iran and Iraq, UNSCOMs chief of operation wrote that bases belonging to MEK were not searched as they were not under the Iraqi government’s control. Instead, UNSCOM had to negotiate access to the sites directly with MEK.
As opposed to what the District Court found, the defense concluded, it has not been proven in court that there was an international armed conflict between Iran and Iraq at the time that the executions took place and it has not been proven that MEK participated, in collaboration with Iraq, in the international armed conflict between Iran and Iraq.
MEK’s role in a non-international conflict
Defense Counsel Rampe took the floor to speak about whether there had been a non-international armed conflict between MEK and Iran between 30 July-16 August 1988 parallel to the international armed conflict between Iran and Iraq. Rampe noted that the District Court did not try this question in its verdict, since it had considered that MEK formed part of the international armed conflict between Iran and Iraq.
Rampe referred to a statement by Associate Professor Noelle Higgins which said that it was difficult to assess the conflict since there is a lack of objective and English language information about the conflict. Rampe argued that the lack of such information should be enough for the Court of Appeal to acquit the defendant from the charges.
Rampe returned to the issue of international humanitarian law not being applicable on internal tension and sporadic violence that does not meet the minimum threshold of armed violence and stated that Mark Klamberg who was heard as an expert witness in the District Court shared that opinion. It is the level of organisation within the armed group and the intensity of the violence that determines whether international humanitarian law should be applicable, Rampe argued. She referred to the ICTYs criteria for determining the existence of a non-international armed conflict.
Rampe noted that the NLA was formed in 1987 and that it is the level of organisation within the NLA that should be assessed, not MEK. The available information points towards MEK not being organised enough in the early 1980s, that the intensity of the violence did not meet the threshold and that it rather indicated that the organisation was conducting a terror campaign. Rampe further noted that the fact that Operation Eternal Light only lasted for three days and that Iranian forces could defeat it directly speaks to the level of intensity of the violence not meeting the threshold. Furthermore, MEK was not mentioned in UN Resolution 598. This means that the conflict between Iran and MEK was not considered by the UN as an armed conflict to which international humanitarian law was applicable and that MEK was not considered as an organisation that could speak with one voice and sign peace agreements, Rampe argued.
Whether relevant international customary law existed at the time of the executions and should be applied
Bodström took the floor to discuss whether there was a customary rule within international humanitarian law which incurred individual criminal responsibility for the acts allegedly committed by the defendant at the time that the executions took place.
Referring to the prosecution’s mention of rule 151 in the International Committee for the Red Cross (ICRC) study on international humanitarian customary law from 2005 (see report 45), Bodström asked himself whether that rule should be applied retroactively on acts that were committed in 1988. He referred to a statement made by Ove Bring who was heard as an expert witness in the District Court and who had said that it was not until the end of the 1990s that it became generally accepted that the same rules should apply for non-international armed conflicts and international armed conflicts. The ICRC world conference in 1995 was arranged to clarify the state of international customary law, since Additional Protocol II of the Geneva Conventions which related to the protection of victims in non-international armed conflict had not been ratified to the extent that had been expected. On the basis of the world conference, the ICRC conducted its study on customary international law which was published in 2005. Bodström argued that the fact that the study took 10 years to complete shows that the issue is complex and that there was a weak interest among states. The study was intended to mark the beginning of something, Bodström argued, rather than establishing what was already customary international law.
In conclusion, Bodström explained, it has not been showed that there was an international customary rule in 1988 that established individual criminal responsibility for acts committed in non-international armed conflict. Thus, the defendant cannot be sentenced for war crimes in accordance with Section 6 in Chapter 22 of the Swedish Criminal Code.
The death penalty in Iran
Defense counsel Rampe continued by explaining that 53 out of 193 member states to the United Nations use the death penalty, among them USA, China, Thailand, Japan, Egypt and Iraq. Sweden abolished the use of death penalty in peace time in 1921 and death penalty in wartime as late as 1975.
In Iran, approximately 200-300 people are executed every year but there is information that indicates that the number is considerably higher. Some sources say approximately 8000-10 000 people were executed throughout the 1980s. Most countries still use death penalty for the most serious crimes. Terror attacks usually invoke death penalties. Rampe argued that the prisoners that were executed in 1988 in Iran had received death penalties and were imprisoned while waiting for those death penalties to be implemented. Unless otherwise is proven, the Court of Appeal should presuppose that the prisoners who were executed in 1988 were executed in line with previously received death penalties, Rampe argued.
Did Ayatollah Khomeini issue a fatwa?
Bodström moved on to the question of Ayatollah Khomeini’s fatwa, which according to the prosecution proves a nexus between the executions and the armed conflict. Bodström questioned whether a fatwa had been issued at all. He argued that the point of a fatwa is for it to be spread and for anyone to be able to kill the person targeted by a fatwa. It is obvious, Bodström noted, that no one would want to issue a secret fatwa. Bodström further argued that it was odd that the fatwa would target only prisoners and only those prisoners that sympathised with MEK, when Ayatollah Khomeini and the regime had so many other enemies. The prosecution attempted to prove the existence of the fatwa with the oral statements given by expert witnesses David Thurfjell and Rouzbeh Parsi in District Court, but those statements do not give unwavering support to the authenticity of the fatwa, argued Boström, and added that none of them had a copy of the fatwa since it never existed. Bodström explained that he and his colleague were highly critical of the District Court having so easily accepted that the fatwa was authentic. The fatwa was allegedly issued 34 years ago and does not exist as anything more than an unsigned letter. It was not revealed until the year 2000 when Ayatollah Montazeri published it in his memoirs. This happened 12 years after it was allegedly issued and without any single person having showed it to spoken about it previously. Not even a copy had appeared during all those years, stated Bodström.
Bodström further argued that Ayatollah Montazeri, who had published the fatwa in his memoirs, had been perceived as the natural successor of Ayatollah Khomeini but instead became a marginalised political opponent and that he may have expected certain outcomes from publishing the alleged fatwa. Bodström further argued that Montazeri had written himself, in the same memoirs that the prosecution referred to, that he was not sure that the fatwa was issued by Ayatollah Khomeini and that Khomeini might have been misled to write the letter and order the executions.
Was a fatwa issued as a result of Operation Eternal Light, Boström asked rhetorically. That has not been established, he responded, and added that the link between the operation and the fatwa became even weaker from the fact that the alleged fatwa did not carry a date. He further added that the fatwa was not even focused on prisoners, but only mentioned “the treacherous monafeqin” and did not mention the operations by the NLA either.
In conclusion, Bodström added, the District Court had conducted a deficient evaluation of the evidence by not considering that the letter (alleged fatwa) was not dated and did not carry an official stamp, that it was unclear who had written it, that no analysis of the hand writing had been conducted, that the original document or even a copy of it had never been found and that there was no other source to speak of its existence except Ayatollah Montazeri.
Before the trial was closed for the day, the prosecution noted that it had collected questions regarding the defense counsels’ presentation which they were planning to ask on 25 January, but that it wanted to comment on defense counsel Bodström’s claim that the alleged fatwa did not mention prisoners belonging to MEK since the fatwa did in fact explicitly mention those.
Plaintiff counsel Kenneth Lewis asked the Court whether he could now answer the presiding judge’s question about his clients joining the indictment which the judge had asked him about earlier that day. The presiding judge responded that they did not need to deal with that issue “in this forum”.
Were a large number of MEK-prisoners executed and tortured in Rajaie Shahr between 30 July-16 August 1988 as a result of a questioning by a committee which did not fulfil the requirements of a fair trial, and was there a nexus between these acts and the armed conflict?
When the trial continued on 25 January, the defense counsels discussed whether a large number of prisoners had been executed in Gohardasht prison in 1988 and whether there was a nexus between the execution and torture of MEK prisoners in prison and the armed conflict.
Bodström argued that the available information about the executions in 1988 is unreliable as it stems from human rights organisations that want to establish human rights and democracy in Iran and because it builds on secondary sources and information from people who claim to have been imprisoned in Rajaie Shahr prison. There is a need for primary data such as official documents, criminal records, birth certificates and records of transports to and from Iran. Instead, much of the material used by the prosecution builds on interviews with people who have a personal interest or gain in depicting the events in a certain way. Since the reports have also been used as “political tools” against the regime in Iran, the Court should not consider them to give support to the prosecution’s claims the same way that the District Court has found, Bodström argued. Regardless of this, Bodström added, the number of executions should not be given relevance in the sense that it should lead to criminal responsibility under the first charge (war crimes).
Bodström noted that there were great discrepancies between the different lists of names of executed persons during the summer of 1988. The majority of the names on the list of executed persons that the prosecution has created (Annex A and C to the indictment) cannot be found on a list of executed persons between July-December 1988 published in a report by the United Nations in January 1989. Only 25 names correspond, but the list from the United Nations indicate that those were executed either on other dates or on other sites than indicated by the prosecution.
Bodström then moved on to the date of the executions. Bodström argued that MEK was a terrorist group that had committed terror attacks and that members of MEK had been sentenced to death for terror attacks as early as 1981, years before the formation of NLA. Until the opposite has been proved, the Court must presuppose that the prisoners that were executed in 1988 were executed in accordance with death sentences that they had received previously. Even if the Court would find that executions had in fact taken place in Iran in 1988, the prosecution still has to prove that each executed person had not received a death sentence prior to their execution. “If you ask an inmate in Sweden whether that person is guilty of the crime that they have been sentenced to, most will say no”, continued Bodström, and added that it is the same way abroad. If one does not have access to verdicts and criminal records, it is not unreasonable to believe that people say that they have been sentenced to less serious crimes. Thus, it is not enough for the Court to rely on plaintiffs’ and witnesses’ claims about having been sentenced for insignificant acts. Instead, Bodström argued, “we have to presuppose that they already had received death sentences and that they were given a second chance through pardon”.
Bodström further argued that many of those that were allegedly executed during the summer of 1988 had either served their sentence for several years or had recently been arrested. Therefore, Bodström argued, it was unlikely that the prisoners that were allegedly executed could have participated in the operations by NLA in July 1988, and thus the nexus between the operations and the executions must be questioned.
Bodström referred to a report by Amnesty International, in which it described how members of the leftist group Fadaian and one member of MEK were executed in May 1988 and how at least 12 political prisoners were executed in June 1988. Bodström argued that this indicated that not only members of MEK were regularly executed, and that even though those executed belonged to opposition groups, it was the crime that they had committed that motivated the execution, being terrorist crimes.
Bodström claimed that there were uncertainties about what the mission of the so-called death committee had been. The District Court had taken for granted that it was a type of court, even though several plaintiffs, according to Bodström, had referred to it as a mechanism to grant prisoners pardon. Bodström stated that there was overwhelming evidence in support of the committee in fact being a mechanism to grant pardon. He referred to a report by Abdorrahman Boroumand Foundation which quoted an article from the newspaper Etelahat which was published in February 1988 and that said that an amnesty law had been passed. The law tasked the same persons who formed part of the so-called death committee to give prisoners an opportunity to be granted pardon. Several plaintiffs had also mentioned colour codes in their oral statements to the District Court: white for those that repented, yellow for the politically passive and red for the regime’s enemies. This perfectly corresponds with the committee being a mechanism to grant pardon, Bodström argued.
Bodström noted that the District Court had taken for granted that the questioning by the committee was a trial, which raised the question of whether it was a fair trial. He said that the defense also agreed that if the questioning was a trial, it was not a fair trial. The difference between a trial and a mechanism to grant pardon on the other hand, is that the latter invokes questions about what may have happened previously. The prisoners may already have had previous death sentences and we do not know whether those sentences were issued in trials that were not fair, he argued. “Sure”, said Bodström, “we have been able to follow trials in Iran and there has been criticism, but they are still trials”.
Bodström noted that no specific requirements exist for how a mechanism to grant pardon should function and brought up what Swedish law said about such mechanisms in a Swedish context. There is no right to an oral hearing, or a counsel and the decision cannot be appealed, Bodström noted. He further argued that the questions that the committee allegedly asked the prisoners did not seem to have the purpose to reveal the guilt of the prisoners, but rather whether they deserved a second chance.
As for the nexus between the executions and the armed conflict, Bodström argued that a nexus could instead be established between the executions and “internal unrest” in Iran throughout the entirety of the 1980s. He further noted that it would be strange if MEK prisoners, who were arrested already in 1981 and had nothing to do with MEK’s military operations against Iran, had been executed because of the armed conflict if Iraqi prisoner of war, who were obviously connected to an armed conflict, were not. Bodström went on to argue that the executions of prisoners had been planned before MEK’s operations against Iran were conducted and that it did not make sense that the executions took place as a result of the fatwa. He noted that the executions allegedly began only days after the fatwa was issued, whereas secret mass executions reasonably needed to be planned in advance to uphold secrecy around them and avoid riots within the prisons.
Bodström noted that Amnesty International had also stated in one of its reports that the mass executions had been planned way in advance and that people that had been held in Evin prison and Gohardasht prison had testified that questioning, threats and transfers between the two prisons was ongoing for months before July 1988. Bodström also referred to information from Plaintiff 1, who had said that measures towards the mass executions had been taken as early as 1987, and to a report by Abdorrahman Boroumand Foundation in which the author, Geoffrey Robertson, noted that it could not be determined whether the government had the intention to execute the prisoners already before July 1988. Robertson also mentioned in the report that it was possible that the purpose of the executions was to eliminate political or religious dissidents. Bodström argued that this meant that Robertson could not exclude that the alleged mass executions might not have been related to the armed conflict at all. He added that the fact that merely 11 days passed between the end of the execution of MEK prisoners and the commencement of the execution of leftist prisoners spoke in favour of Robertson’s theory about the purpose of the executions being to eliminate oppositional groups.
Bodström further noted that an article in the Washington Post that was published on 26 June 1988 mentioned that Ayatollah Khomeini suffered from liver cancer and that he was not expected to survive the year. He eventually passed away on 3 June 1989. Bodström argued that Khomeini wanted to eliminate opposition groups before his death.
After the lunch break on 25 January, the defense moved on to discuss the defendant and his alleged role in the mass executions. Defense counsel Hanna Rampe explained that the defendant denies being the person who the prosecution claims has been working in Gohardasht prison.
Rampe explained that the defendant was working as a prison guard in prison. As several prisoners had committed serious crimes, they were not allowed to see the guards or the other prisoners and therefore had to wear blindfolds. The blindfolds were not personal, said the defense, but were placed in a box outside the cells. The presiding judge interrupted the defense and asked whether this is how things were in Evin prison (Authors note: the question should be understood in light of the fact that the defendant has previously stated that he did not work in Gohardasht prison, but in Evin prison). Yes, responded Rampe and later added that while the defense would be speaking about how things were in Evin, the prosecution had claimed that things functioned the same in Gohardasht prison.
Rampe encouraged the Court to keep in mind while watching the recorded oral statements given by plaintiffs and witnesses in District Court that the acts in question took place more than 30 years ago and that the prisoners were wearing blindfolds. Rampe also underlined that an image of the defendant had been published by media outlets at numerous occasions and that the Court should consider the risk of a mix-up or confusion on the side of the plaintiffs and witnesses.
Rampe noted that the defendant’s daughter was born on 29 July 1988, around the time that the mass executions allegedly begun, and that it is common in Iran for parents to be on leave when their child is born. She further noted that the District Court had written in its verdict that the defendant’s daughter was born on 29 August 1988.
Rampe then argued that the title “assistant to the deputy prosecutor”, which the defendant had allegedly held, was a misleading title and that the title did not even exist. Instead, the defendant had been a prison guard.
Defense counsel Bodström then argued that the defendant had not committed any acts under the first or the second charge that he could be held criminally responsible for. His role could be compared to the role of staff working in Swedish jails or prisons. He noted that the persons who allegedly held seats in the so-called death committee had come to hold high-ranking positions in Iran. It was unlikely that high grade lawyers like the persons in the committee would delegate the task of selecting who to bring before the committee to some simple prison guards. Moreover, these persons had been mentioned by several sources that had written about the 1988 mass executions. The prison guard on the other hand had rarely been mentioned, which is not strange considering his (limited) work assignments, he said.
Bodström further noted that Plaintiff 10 mentioned the name of the defendant very late in the case. Plaintiff 10 had previously had his testimony published in the Truth Commission for the Iran Tribunal’s report but had not mentioned the name of the defendant then. He had explained this by saying that he had only focused on the most high-ranking people in that testimony.
Bodström said that as a prisoner, one only meets the prison guards. A prisoner has no clue how the administration of the prison works. The more monitored the prisoner is, the more difficult it is for the prisoner to figure out the role and competencies of different people in prison. In Sweden it is the staff at the jail that reads the verdict for the prisoners, but that does not mean that the jail staff has been involved in any decision making. But the jail staff are the people who meets the prisoners, lock and unlock the door to the cell, transport and pick out prisoners. From the perspective of a jailed person, the jail staff might appear as the person in charge, he argued. The information that exists about what the prison guard (the defendant) has done is not about murder. This is the core of this case, Bodström argued. Has this person deprived someone of their life? Or aided and abetted the deprivation of their life? According to the District Court, the defendant has picked out prisoners, brought them to the main corridor, read their names, brought them to the committee, read the names of the prisoners that would be executed, ordered the prisoners to stand in line to be escorted to the execution site, escorted the prisoners to the execution site and encouraged and ordered others to participate.
Bodström said that he also wanted to discuss the issue of the defendant allegedly incurring death anxiety onto the MEK prisoners, amounting to torture. He noted that no one could question that the prisoners must have felt severe death anxiety, but that there was no difference between that and what prisoners in USA feel when they are being brought to the electric chair. That is the brutal reality where death penalties exist, said the defense. That in and of itself does not mean that anyone has committed torture.
Bodström then returned to the question of the defendant’s responsibility for the executions and noted that the defendant could only be held criminally responsible for his own acts. It had to be explained in each case exactly what a defendant has done to deprive someone of their life, not just what they have generally done. Sweden is regularly criticised for holding people in isolation for too long in detention facilities but neither an individual prosecutor nor jail staff can be blamed for that. If a judge commits misconduct, the detention staff cannot be held criminally responsible for having escorted a person to the trial, Bodström argued.
Lastly, Bodström argued that the District Court had found that the defendant had contributed to the executions together and in understanding with others. However, it is not clear how he has committed the acts together with others. A minimum requirement to determine this would be to know what the structure and leadership of the prison guards look like, Bodström argued. He added that the defendant had conducted his work in accordance with his work instructions and that escorting prisoners back and forth was part of his job.
Was a large number of sympathisers of leftist groups executed in Rajaie Shahr prison in August-September 1988 after a proceeding which did not meet the requirements of a fair trial?
Defense counsel Rampe argued that even if prisoners at Rajaie Shahr prison had in fact been executed after a proceeding that did not meet the requirements of a fair trial, “the prison guard” (i.e. the defendant) did not hold the type of position in prison which could warrant the Court to consider him as a perpetrator that has killed a large number of prisoners.
Weaknesses in the evidence presented by the prosecution
The defense noted that the prosecution had sent a request to the Iranian government for mutual legal assistance in October 2020. It had asked to collect the testimony of Naserian, Lashkari and Eshraghi. The prosecution also wanted information about the defendant. The request was not answered and therefore the most fundamental and central puzzle pieces of the case are missing, argued the defense. It further noted that the request did not include a request to visit Gohardasht prison, examine mass graves, receive information about the plaintiffs or witnesses in the form of verdicts, criminal records or death certificates or to receive information about the persons named in Annex A and C to the indictment which the prosecution claims had been executed.
The fact that this information is missing and that the authorities cannot access the crime scene should not be accepted at the expense of the defendant, the defense stated. It has been practically impossible for the defendant to present any evidence to defend himself. His previous defense counsels which represented him in the District Court had written to Iran’s Embassy in Stockholm on 27 March 2021 and requested to access information about the defendant’s employment, title and absence from work around the time of his daughter’s birth, military service, home address and other information to prove his innocence. They also requested to visit the prison. The request was not successful and the only document that the defendant has been able to present is the birth certificate of his daughter. The defense further noted that the defendant had not presented any evidence to prove his absence around the time of his daughter’s birth but that the District Court had flipped the evidentiary burden concerning this and that it was impossible for the defendant to prove it.
The defense further noted that the description of the events in the summer of 1988 that had been published in various reports and international documents entirely relied of the depictions by former prisoners, which gave a skewed version of reality. There are hundreds of maybe even thousands of former colleagues of the defendant that could say that the version given by the former prisoners is incorrect, but the defendant has had to do that alone.
After a few concluding remarks, through which the defense summarised its arguments, the floor was given to the prosecution to ask clarifying questions to the defense.
Questions from the prosecution to the defense
The prosecution asked a total of sixteen questions. More notably, and most likely as a result of the fact that the defense had described the role of the defendant as a prison guard, the prosecution asked whether he defendant no longer claims to have worked in the dadyar-office and the finance office of Evin prison (which he had previously claimed in the District Court).
The Court decided that the defense would answer the questions in writing by 31 January at the latest.
Apart from the questions, the prosecution also asked to clarify a few things. The prosecution first explained that it had never claimed that the defendant had been involved in investigating or prosecuting people or that he had participated in trials.
The prosecution further confirmed that it had sent a request for mutual legal assistance to the Iranian government as described by the defense and that it had not sent further requests as the first one was ignored. It further explained that it had not requested to visit Iran because the prosecution was not allowed to do so for security reasons. The defense immediately responded that it understood this, and that Iran was not “like any other country”.
Lastly, the prosecution underlined that it agreed with the defense that international customary law cannot be applied retroactively, but that the prosecution’s argument had been about what was in fact international customary law in 1988.
When the prosecution had delivered all of its statements and questions, the floor was handed to the plaintiff counsels for their questions and comments.
Questions from the plaintiff counsels to the defense
Plaintiff counsel Göran Hjalmarsson asked whether the defendant still claimed that he did not work in Gohardasht prison at all since he was on leave due to his daughter’s birthday on 29 July 1988.
Hjalmarsson further noted that even though it is true that the District Court had written in its verdict that the defendant’s daughter was born on 29 August 1988, it did say further down in the verdict that she was born on 7 Mordad 1367, which translates to 29 July.
Hjalmarsson further noted that the defense had asked the Court to presuppose that the plaintiffs had previously received death sentences unless otherwise is proven. He added that his 10 clients who survived the executions had throughout the investigation, in the District Court and in some instances even in books and articles said that they had been sentenced to between 6-10 years in prison with the exception of one client who has said that he was sentenced to life in prison but that he was released in 1991.
Plaintiff counsel Bengt Hesselberg mentioned that the defense counsels had referred to a statement by David Thurfjell who was head as an expert witness in the District Court and said that Thurfjell had in fact not drawn the conclusion that the defendant claimed that he had.
Plaintiff counsel Ghita Hadding did not have any questions and referred to what had already been said by Hjalmarsson and Hesselberg.
Plaintiff counsel Kenneth Lewis noted that the defense counsels had come to the conclusion that there was not a non-international armed conflict and asked what evidence the defense counsels refer to in support of that conclusion. Lewis noted that there was a referral to Noelle Higgins and claimed that she should not be referred to as a “docent” (associate professor) but that she is a teacher and should be referred to as “lector” (lecturer). In her written statement, she had referred to Rand Corporation as a source which Lewis noted was a research institute financed by the American government. The report in question was ordered by the US Department of Defence and was therefore not impartial, argued Lewis.
In the next report, we will present a summary of the prosecution, defense counsels and plaintiff counsel’s introduction to the first block of recorded testimonies from District Court, which was presented before Svea Court of Appeal on 7 February 2023.