Report 3: The Prosecution’s Opening Presentation pt. 1

On Tuesday last week week, the prosecution continued and subsequently concluded its opening presentation of facts in the case against the defendant. With the presentation spanning over a total of four days, this report is intended to give an overview of how the prosecution has built its case and to provide insight on some of the key points of the presentation. 

The presentation began with a short introduction to the country of Iran, which included basic facts on geography, population, religious majority, political system, and leadership – with the prosecution noting especially that it would be expanding on newly elected president, Ebrahim Raisi, during its summary of the period in 1988 when the mass-executions the defendant is accused of having participated in are said to have taken place. 

A longer, but in relation to its subject, brief, guide to Iran’s modern history up until the year of 1989 followed. Events leading up to and following the revolution in 1978 were in focus, with the prosecution offering a background on Khomeini’s rise to power, on some of the various political organisations who stood in opposition to his regime after the revolution (including Tudeh, Peykar, Fadaiyan, Rahe Kargar and the MEK) and the persecution their leaders and followers were subjected to, and on the Iran-Iraq conflict.  

A summary of Iranian law, the country’s judicial system and leadership structure followed, with the prosecution detailing how specialized revolutionary courts were set up after the revolution to try those accused of opposing the revolution and the regime, with the process far from transparent or in accordance with the requirements of a fair trial. A short list of key phrases in Farsi, particular words the prosecution felt the court should be familiar with during the process, were then presented. The list included words such as fatwa, hokm, monafeqin, mohareb and tazir.

This initial part of the presentation was concluded with an update on Iran of today, based mainly on a memorandum by the Swedish ministry of foreign affairs which is included in full in the preliminary investigation report. The prosecution underlined that the human rights situation in Iran is still dire and followed with a list of examples on issues of concern – especially in relation to its judicial system. This included but was not limited to: 

• Lack of judicial independence
• Trials on matters of national security being held behind closed doors
• Hasty trials, at times concluded within a matter of minutes, and with the defendant and its counsel prohibited from speaking 
• The occurrence of forced confessions 
• Verdicts withheld from the defendant and public 
• Laws discriminating women and minorities 
• Widespread corruption, with certain state actors, such as the Revolutionary Guard, allowed to operate outside the judicial system  

Questions of Law

With the segment on Iran’s history and current state concluded, the prosecution began to delve into the legal issues of the case, starting with the charge of war crimes.  As previously reported, this charge relates to the killing, torture and inhumane treatment of prisoners associated with the MEK between 30 July and 16 August 1988 in Gohardasht prison in Iran. 

 At the time of the alleged crimes, the Swedish legislation on war crimes looked vastly different than it does today, and the charge is based on chapter 6, section 22 of the Swedish Criminal Code in its wording before 1 July 1995. The statute in question is applicable to grave breaches of international law, in particular the Geneva Conventions of 1949 and their Additional Protocols, as well as customary law, or what is collectively referred to as international humanitarian law or the “laws of war”.  

A requirement for international humanitarian law, and in extension, chapter 6, section 22 of the Swedish Criminal Code to be applicable, is the existence of an armed conflict. The prosecution went on to explain the distinction between an international and a non-international armed conflict. For a conflict to be considered an international armed conflict in accordance with international humanitarian law, one or more states must have resorted to armed force against another state. No formal declaration of war is required and the threshold of armed force, with regards to intensity and scale, is low.  

A non-international armed conflict, between a state and one or more groups within a state’s territory, on the other hand, requires the existence of two components for international humanitarian law to apply. Firstly, the armed force needs to be of a certain minimum level of intensity. Secondly, the group or groups involved must show a minimum of organisation. These requirements are used to distinguish such a conflict from internal disturbances, tensions, riots and alike.  

For international humanitarian law and in extension, chapter 6, section 22 of the Swedish Criminal Code, to apply in this case, there must also exist a nexus between the armed conflict (whether international or non-international) and the acts of killing, torture, and inhumane treatment that the defendant stands accused of. Every act of crime committed during an armed conflict does not have to be related to the conflict.  

For a nexus to exist, the act must be “closely related” to the armed conflict. Such a nexus can be said to exist if, at minimum, the conflict played a substantial part in the perpetrator’s ability and decision to commit the act, the way it was committed or the purpose for which it was committed. If it can be established that a perpetrator acted in furtherance of or under the guise of the armed conflict, nexus exists. 

The prosecution argued that the MEK were part of an international armed conflict with Iran, or, alternatively, a non-international conflict with Iran, and that a nexus exists between the the conflict and the killing, torture and inhumane treatment of prisoners associated with the MEK at Gohardasht in 1988 that the defendant stands accused of.  

Was the MEK part of an international armed conflict between Iran and Iraq? 

The prosecution opened its argumentation on the MEK being part of an international armed conflict with Iran with a brief introduction to the Iran-Iraq conflict, which began with Iraq invading a part of Iran in the early fall of 1980. The war went on for years, with gains and losses on both sides, until on July 20 1988, both parties accepted a cease-fire resolution by the UN. However, the prosecution noted that the end of war is not judged on formalities, but rather on the use of armed force, and argued that the conflict went on beyond July 20 with fighting continuing until 8 August at the earliest, but more likely a little beyond that date.  

The question of if the MEK were part of the international armed conflict between Iran and Irag began with a brief introduction on the organisation, its history and relationship with the state of Iraq. The prosecution then particularly pointed to four operations during the war that it argued the MEK were part of: 

• Operation Sunshine, which began on 28 March 1988 and where the MEK had an operative role on the ground
• Operation Forty Stars, which began on June 18 1988 and where a group from the MEK fought alongside Iraqi troops
• Operation Delhoran, which began on July 12 1988 and where less is known about the MEK’s involvement
• Operation Eternal Light, which began July 26 1988 and where the MEK, aided by Iraqi air support, invaded parts of western Iran

In its summary of the operations, the prosecution referenced different literature on the subject, by authors Kleffner, Cordesman, Irfani, and others, to explain the role the MEK had in each operation and argued that the endeavours, to a differing degree, were taken in collaboration with and/or under the control of Iraq, and that the MEK as such were part of an international armed conflict between Iran and Iraq. 

The prosecution further explained that there are two definitions of the amount of control a state must exert over a particular group, for it be considered part of an international armed conflict. The model proscribed by the International Court of Justice (ICJ) requires the state to have “effective control”. According to the ICJ it is not enough for a state to finance, organise, train, and equip a particular group – it also has to have effective control over the specific operations.  

The model proscribed by the International Criminal Tribunal of Yugoslavia (ICTY), however, only requires the state to have “overall control”. According to the ICTY it is enough for the state to be involved in organising, coordinating or planning of an armed group’s military operations, and to contribute with financing, training and equipment to the group. The group then does not have to act on specific orders from the state to be considered under its overall control.

The prosecution then argued that the “ICTY model” should apply to the case, as proscribed by Prof. Dr. Jann K. Kleffner LL.M., Professor of International Law at the Swedish Defence University and Extraordinary Professor at the Faculty of Law of the University of Pretoria, South Africa. In a memorandum, which is part of the preliminary investigation report in the case, he argues that the MEK were indeed part of the international armed conflict between Iran and Iraq and points to several different factors. Those include Iraq allowing the MEK to set up base in Iraq, contributing with financial aid and equipment to the group, and the role the MEK had in operations such as Forty Stars and Eternal Light. According to Kleffner, the nature of the operations point to a close relationship between Irag and the MEK and as such the MEK must be considered part of the armed international conflict with Iran. The prosecution also argued that the international armed conflict was still ongoing at the time of the alleged crimes took place.

Was the MEK part of a non-international conflict with Iran? 

In case the court should find that the MEK was not part of the international armed conflict between Iran and Iraq, the prosecution argues the MEK were part of a non-international armed conflict with Iran. As previously mentioned, this would require the armed force between the parties to be at a certain minimum level, and for the MEK to be deemed as having shown a certain minimum level of organisation at the time of the conflict. 

The prosecution again referenced the memorandum by Kleffner, arguing that the MEK’s involvement in several military operations clearly indicated the minimum level of intensity in the use of armed force had been exceeded. Furthermore, the ability to perform such operations, along with its access to arms, military equipment, and a base, in the form of Camp Ashraf in Iraq, its ability to speak collectively in a united voice, and other factors, demonstrated that the minimum level of organisation was at hand.  

The question is then if the non-international conflict, if deemed to exist, was still ongoing between July 30 and August 16. The prosecution argued, again in reference to Kleffner’s memorandum, that the MEK’s level of organisation was still intact despite the losses suffered in Operation Eternal Light and that the use of armed force occurred between the MEK and Iran for years after the cease-fire and up until at least 2003. According to Kleffner, and the prosecution, the level of intensity in the use of armed force was still above the minimum at the time of the alleged crimes and as such, a non-international armed conflict was still ongoing and, in any case, international humanitarian law is applicable for some time after a conflict has ended as well. 

Was there nexus between the international armed conflict or the non-international armed conflict and the acts the defendant stands accused of? 

For chapter 6, section 22 of the Swedish Criminal Code to be applicable, there must have been a nexus between the armed conflict (whether international or non-international) and the acts that the defendant stands accused of. The prosecution argued that Iran’s Supreme Leader at the time, Ayatollah Khomeini, issued a fatwa on the 28 July 1988, shortly after Operation Eternal Light had begun, and mere days before the mass-executions in Gohardasht began. In the fatwa he ordered the execution of prisoners labeled as monafeqin, a term used by the regime for the MEK, if they remained steadfast in their support for the organisation.

The prosecution summarized its arguments on the nexus between the armed conflict and the crimes the defendant stands accused of by highlighting four key points: 

• The military operations the MEK were part of and particularly Operation Eternal Light 
• The proximity in time between the start of Operation Eternal Light and the issuing of the fatwa 
• The fatwa clearly targeting prisoners associated with the MEK, as enemies of the regime in the armed conflict
• The campaign of mass-executions beginning (at Gohardasht) shortly after the fatwa was issued 

The prosecution made note of the fact that certain witnesses in the case have told police that preparations for the executions had begun prior to Operation Eternal Light and the fatwa being issued but maintained that a nexus existed. 

The Second Count 

The second count of the indictment relates to the executions of prisoners associated with other political organisations than the MEK. As explained in our first report, the executions may not be classified as war crimes due to the absence of an armed conflict between the Iranian regime and the organisations that these prisoners were associated with. Instead, the defendant has been charged with murder (in accordance with section 1, chapter 3 of the Swedish Criminal Code in its wording prior to 1 July 2009) for his alleged contribution to the executions. 

The prosecution argued that although those executed were heard by the so-called death committee, the process cannot be considered a fair trial, especially when considering that the prisoners were already serving sentences and with no additional charges being brought against them. Iran ratified the International Covenant on Civil and Political Rights (ICCPR) on 24 June 1975, with article 14 outlining the requirements of a fair trial. The prosecution hence argued that the executions were extrajudicial and should be deemed by the court as murder. 

There is no additional count relating to torture or inhuman treatment or suffering regarding prisoners associated with other political groups than the MEK. However, the prosecution pointed out that those prisoners were also subjected to the same methods of torture and inhumane treatment as prisoners associated with the MEK, but that the absence of an armed conflict means that those acts do not qualify as war crimes. The prosecution further moved on to explain that the acts could be classified as assault, but that the statute of limitations for assault had passed. As such, prisoners associated with other organisations than the MEK are not injured parties to the case and will instead participate in the proceedings as witnesses. The prosecution underlined that this did not mean that the suffering of those prisoners was any less grave than that of those listed as injured parties under the first count.  

Next report 

In the next report we intend to give an overview on the evidence presented by the prosecution thus far and how the evidence relates to their main legal arguments. An overview of the opening presentation from the defendant’s lawyers will follow next. 

A translated version of this report in Farsi can be found here.