Report 57: The defense counsels’ closing statement

Gohardasht prison in Iran. One of the prisons where many persons were executed in the summer of 1988. Photo: Gohardasht Prison / Ensie & Matthias ( / CC BY-SA 2.0

In our previous report, we provided a summary of the plaintiff counsels’ closing statements conducted on 31 October and 6 November 2023.

In this report, we have summarised the defense counsels’ closing statement, presented on 7 and 8 November 2023. 

Opening of the trial day

Presiding judge Lund opened the trial day by welcoming everyone to the Court. He explained that the day’s court session would focus on the defense counsels’ closing statement. The floor was then given to the defense counsels.

Defense counsels’ closing statement

Defense counsel Rampe began by addressing the criticism received from the other parties in the trial and explained that the criticism had been expressed by the defense counsels towards various aspects of the trial proceedings was based on their commitment to uphold the Swedish legal system and to protect the defendant’s right to a fair trial. Rampe proceeded by discussing why the trial is unique and challenging, spanning over 90 days in District Court. Rampe stated that handling events which took place over 35 years ago poses difficulties, as does the unfamiliar environment that the alleged crimes took place in.

Defense counsel Bodström then continued by addressing the arguments presented by the prosecution. Bodström highlighted perceived weaknesses in the District Court’s verdict and questioned how the court had placed the burden of proof. He stated that the central question revolves around whether the defendant acted ‘together and in agreement’ with others for him to be liable in accordance with criminal law, and that the District Court had asserted this without providing concrete examples. He added that there was nothing that pointed towards the defendant having taken anyone’s life. Bodström emphasised that the defendant could not be held criminally responsible simply for his position within the prison, as a person’s position does not necessarily mean that the person has authority or power.

Defense counsel Bodström then criticised how the prosecution had altered the indictment shortly before its final remarks without providing concrete reasons or evidence for the changes, and added that even though the charges were changed again to reflect the original description of the crime, the meaning of “selecting prisoners” has shifted in the prosecution’s charges, now implying that the defendant was receiving instructions to ask questions rather than making a personal choice.

Bodström emphasised the defense counsels’ own personal commitment to represent both accusers and the accused and criticised that the opposing parties had put a focus on the defense counsels as persons. He discussed the challenges faced when accused of undermining the legal system (which the prosecution had accused the defense counsels of in its concluding statement) and emphasised the defense counsels’ adherence to their role. Bodström then acknowledged the complexity of the case and its international implications, stressing the importance of demonstrating Sweden’s commitment to a fair legal process despite strained relations with Iran.

Defense counsel Rampe then continued by explaining how when she and Bodström began their work in September 2022, it had become crucial to contextualise the case politically and to emphasise that the events occurred in a different time and place. She continued by stating how lawyers are typically trained to let legal facts speak for themselves without delving into politics, but that this approach is not feasible in this case. She explained that understanding the political context is essential to grasp the interplay between law and politics, and in particular in understanding how the Islamic legal system operated in Iran during the armed conflict with Iraq. Rampe proceeded by stating that this involves exploring how the death penalty functions, the legal status and classification of the so-called death committee, the role of the MEK in the Iran-Iraq war, the internal structure of the prison system, and the distribution of roles among “dadyars”, prosecutors, assistant “dadyars”, and “pasdars”.

Defense counsel Bodström proceeded to underline that understanding MEK’s role was crucial for the case. The defense asserted that internal divisions arose within MEK after the 1979 revolution which led to a minority faction of the MEK to form into the National Liberation Army (NLA) in 1987. NLA was classified as a terrorist organisation by Iran as well as other countries, including several European countries and the USA. Referencing an author of an article that had been submitted as evidence in the case, he emphasised the uncertainty regarding whether NLA took over all military capabilities or if MEK retained an armed faction, and that this was crucial for determining the nexus between the armed conflict and the alleged execution of MEK prisoners.

Bodström contended that supporters of MEK who were arrested were not solely involved in innocent activities like selling newspapers, especially considering Iran’s war with Iraq and the political unrest post the Islamic revolution. Bodström pointed to a resolution allegedly issued by Iran’s chief prosecutor, Ali Godusi, in 1981, during the ongoing war, outlining arrests and death penalties for those associated with “actively hostile” organisations. Bodström also raised concerns about the prosecution’s failure to present written evidence regarding the sentences of those arrested during the relevant time period.

Bodström argued that understanding the political-historical context is crucial for determining MEK’s role in the Iran-Iraq conflict. He urged the Court of Appeal to consider whether MEK was part of the armed conflict between Iran and Iraq, asserting that the District Court’s conclusion was incorrect. Bodström then pointed to various evidence, including Security Council Resolution 598, operational analyses, expert opinions, and MEK’s official stance, to support the defense’s argument that MEK was not under overall control of Iraq or part of the armed conflict between Iran and Iraq for it to be defined as an international armed conflict (IAC).

Regarding the question about the existence of a non-international armed conflict (NIAC) between Iran and MEK, Bodström pointed out how the existence of such a conflict was a necessary prerequisite for individual criminal responsibility for international crimes. Bodström underlined the difficulty in assessing the legal character of the conflict between Iran and MEK due to limited access to unbiased English-language information. He urged the Court of Appeal to consider critical aspects of the question, particularly MEK’s political evolution and the domestic nature of conflicts involving acts of terrorism.

Defense counsel Rampe then took the floor and asserted that in determining the existence of a non-international armed conflict, international legal literature primarily considers two factors: the degree of organisation exhibited by the non-state group and the intensity of the armed violence. Emphasising their earlier presentation, Rampe highlighted the formation of the breakaway group NLA in June 1987, distinguishing it from MEK. Rampe pointed specifically to Dr. Noelle Higgins’ expert opinion that MEK was not sufficiently organized in the early 1980s and that the d their violence between Iran and MEK did not reach such intensity as to amount to a NIAC. The fact that the violence was sporadic and untenable rather suggests that MEK was involved in a terrorist campaign. Consequently, the defense counsels concluded that the conflict between the Iranian regime and MEK did not qualify as an armed conflict.

Defense counsel Rampe proceeded by challenging the application of the Geneva Conventions in the current case, arguing that Articles 75 and 85 of Protocol I were not generally accepted norms at the time that the alleged crimes took place. She stressed the need for opinio juris for customary international law to form, which she claimed that the prosecution had failed to establish. Rampe concluded that if the Court of Appeal rejected the existence of individual criminal responsibility in 1988 for acts committed within the context of a NIAC, the defendant cannot be convicted of war crimes.

Rampe also criticised the District Court’s reliance on the ICRC study on international customary law and highlighted its forward-looking nature and lack of empirical evidence. She then referred to Professor Ove Bring’s opinion (who was heard as an expert in District Court), supporting the notion that Article 151 did not form part of international customary law in 1988, and argue that the retrospective application of rules violates legal principles.

Defense counsel Bodström then took the floor and challenged the affirmative approach to whether Ayatollah Khomeini issued a fatwa for the execution of MEK supporters in Iranian prisons following Operation Eternal Light. He stated that the defense’s position is that no fatwa was ever issued, questioning the authenticity of the alleged document. Bodström further argued that the lack of critical examination by the District Court regarding the authenticity of the handwritten note, which is undated and lacks official stamps, and raised concerns about its credibility. He further criticised the selective presentation of a few pages from Montazeri’s memoirs as evidence that Khomeini had issued the fatwa and underlined that there was no verified copy of the fatwa.

In conclusion, Bodström argued that the lack of critical examination and the inconsistencies in the evidence lead to serious doubts about the authenticity of the alleged fatwa. Bodström advocated for a more thorough analysis of the document’s origin and potential manipulations and emphasised the need to establish the document’s legitimacy beyond a reasonable doubt.

Defense counsel Rampe then took the floor to address the question of whether there was a nexus between the executions and the armed conflict. Rampe emphasised the need to consider how the committee should be legally classified. She distinguished between a pardoning committee and a court with adjudicative powers, highlighting the importance of this classification for the applicability of the right to a fair trial. Drawing parallels with the Swedish pardon system, she argued that a pardoning committee’s task is to look forward and consider an individual’s willingness to change, while a court’s task is to look backward and decide on matters of guilt for past actions. Rampe also delved into the historical and political context of Iran in the 1970s and 1980s. She referred to internal disturbances, numerous armed attacks by opposition groups, and a full-scale war between Iran and Iraq. Rampe stated that Khomeini introduced committees to determine whether individuals could be pardoned and reintegrated into society. In conclusion, Rampe contested the District Court’s assessment of the nexus, argued that it lacked proper consideration of the committee’s legal classification and the historical context, and advocated for a nuanced understanding of the committee’s function.

Regarding the question of whether a significant number of MEK members were executed in Gohardasht prison, defense counsel Rampe emphasised the need for primary data such as official documents, judgments, evidence of charges, birth certificates, and enrolment records to determine whether a person was executed as a result of a death sentence in prison.

Rampe questioned the reliability of the sources used by the prosecution and expressed scepticism toward the various reports that had been used due to their reliance on second-hand information. She also addressed the issue of objectivity and argued that the witnesses and plaintiffs as well as the police officer that had been heard had their own agendas.

Defense counsel Bodström then took the floor to address the question of causation and explained that causality is needed in criminal law, He stated that the central issue becomes whether the Iran-Iraq armed conflict was the primary motive for the executions. He argued that when examining other circumstances, there were equally strong motives for the executions, and that it was likely not the MEK’s military operations that prompted the fatwa. The defense had previously referred to an article in the Washington Post r that was published in 1988 and that indicated that Khomeini had received a cancer diagnosis, and emphasised Khomeini need to ensure his legacy’s survival. The conclusion drawn by Bodström was that it cannot be ruled out that there were equally compelling motives for the executions.

Defense counsel Rampe then took the floor and suggested that executions could have taken place because the Iranian government wanted to eliminate all political opponents. If that was the case, that would not meet the legal causation requirement. Rampe further went on to argue that the executed individuals had been imprisoned years prior to the war, that they were Iranian citizens captured in Iran and were not proven to have collaborated with MEK or NLA from within the prison. Rampe thus concluded that the connection between the executions and Operation Eternal Light had not been established beyond a reasonable doubt. She added that the committee showed no interest in determining if the prisoners were connected to the armed conflict and that no one was asked about affiliations with NLA, indicating that the link between the committee’s work and the armed conflict is not proven beyond a reasonable doubt. Rampe concluded her statement by saying that the charges of war crimes should be dismissed.

Defense Counsel Bodström then raised the defense’s concerns about biased investigators, specifically the police officer heard prior in the Court of Appeal. Bodström also expressed criticism towards the lack of communication between the prosecution and relevant authorities in Iran. He disputed the prosecution’s claim of lacking cooperation from Iran. Bodström then stated that Iran had initiated contact in 2022, without specifying what the initiated contact regarded, but that this was not accommodated by Sweden as there had been threats to imprison the defense’s witnesses.

Bodström then moved on to the question of whether it is proven beyond a reasonable doubt that the defendant is the person that the prosecution claims him to be. Bodström argued that it had not been proven beyond a reasonable doubt that this was the case and emphasised the alleged strong motives that the plaintiffs had for incriminating the defendant and, once again, addressed discrepancies in the plaintiffs’ descriptions of the person who they claimed was the defendant.

Bodström then discussed the role of the defendant, emphasising his limited presence and influence in the prison events. He criticised the lack of substantiated and clear allegations against the defendant compared to the committee and Naserian. Bodström referred to the number of times that the defendant was mentioned in various reports, attributing it to his infrequent presence as he rarely to never was mentioned, and argued that the defendant had no influence on the prison’s events.

Defense counsel Rampe went on to note that the defendant had been attributed more responsibility for the events in Gohardasht prison than he had been attributed in written material about the events that were produced prior to the trial.

Rampe went on to address the title that the defendant had been attributed and challenged the translation of the title “dadyar”. She emphasised the lack of evidence concerning the structure of the Iranian legal system and the structure of the prosecutor’s office. Rampe pointed out that information about the role of a “dadyar” comes from the plaintiffs and witnesses, which means that conclusions concerning the role of a “dadyar” was based on observations rather than information from within Iran. Rampe highlighted the varying depictions of the defendant’s duties, underlining that some perceived him as a guard while others described his tasks akin to detention staff or prison officers. Referring to the testimony given by the defense’s witness Eduardo Toledo who had allegedly studied prison structures in Iran, Rampe underscored that the use of the title “dadyar” had attributed the defendant with more importance than warranted.

Bodström proceeded to address the question whether the defendant had killed anyone. He emphasised that the crucial issue was not the title that the defendant held, as it did not carry any significance. Bodström reinforced that what matters is what the defendant did, which according to Bodström, has been inadequately detailed. Bodström continued by stating that the automated actions performed by the defendant are described as so routine that they could have been executed by a machine, raising doubts about whether the defendant actually caused anyone’s death. Bodström then quoted professor Lernestedt’s expert opinion that was submitted by the defense counsels, and his view that escorting someone to the corridor outside the room where the committee presided does not equate to killing the person. Regarding the selection process, he reiterated the statement by the expert witness Toledo who had said that the committee chose the prisoners to be brought before them and that guards or those with similar tasks could not select prisoners.

Moving on to the issue of the defendant’s actual influence in the prison, Bodström contended that testimonies by plaintiffs and witnesses supported the assertion that the person that they claim is the defendant in fact had no influence in prison. Bodström underlined that several statements indicated a considerable distance between the defendant and the decision-making authority.

Bodström then addressed various legal principles and stressed the need to clarify that individual criminal responsibility should not be confused with joint responsibility. Using examples from previous cases, he argued that the defendant, given his lower position and lack of influence, cannot be held responsible for the alleged crimes. Bodström concluded by reiterating the incongruity of attributing responsibility to numerous employees and stressed that the concept of joint responsibility does not fit the situation at hand.

Defense Counsel Rampe then proceeded to state that following what had been presented in the case concerning the defendant’s role, the defendant cannot be considered to have acted or conspired with another person to commit the alleged acts, neither within the committee nor as the one executing decisions. Moving on to the issue of aiding and abetting, Rampe cited professor Lernestedt, stating that for complicity responsibility (in accordance with section 4 in Chapter 23 of the Swedish Criminal Code), one must have actively promoted the crime in a “criminally relevant manner”. Rampe referenced various cases from the Swedish courts to illustrate that performing work duties cannot be seen as aiming to promote a crime.

In conclusion, defense counsel Bodström requested the Court of Appeal to overturn the decision of the District Court. He further asked the court to overturn the decision on detention, highlighting the impact that restrictive conditions had on the defendant. He expressed his confidence in the defendant receiving a fair trial and urged for a quick resolution.

Closing remarks by the defendant

The defendant was then given the opportunity to himself state a few last words before closing the final trial day in the Court of Appeal. The defendant began by expressing his gratitude to the Court and his defense team. He then acknowledged the challenging four years he has spent in isolation, facing physical and mental hardships. Despite the difficult circumstances, he considered these years to be among the best of his life, finding solace in his faith.

Reflecting on his arrest, the defendant noted that he chose to rather be the one deceived than the deceiver. He acknowledged the media’s negative portrayal of him and his family during his imprisonment and the false accusations against them, stating that he had paid his dues during these four years. In the final part of his speech, the defendant sent greetings to his family, expressed his well-being, and concluded by thanking the Court for the opportunity to speak.

Closing of the trial day

Judge Lund then stated that the Court acknowledged the defendant’s speech, that the proceedings were officially closed. Lund informed that the judgment would be delivered on 19 December, and that the defendant would remain in custody until then, considering the serious nature of the charges.

Next report

On 19 December the Court of Appeal is expected to deliver the judgement. The next report, which will be published shortly thereafter, will summarise the content of the judgement.