Verbatim transcript of remarks by Prof. Kevin Jon Heller, Special Adviser on War Crimes to the Prosecutor of the international Criminal Court (ICC) at a Civil Society Hearing on the 1988 Massacre in Iran – 15 February 2024, Geneva:
In the brief time I have today, I want to touch on two issues: (1) what crimes were committed during the 1988 massacre, and (2) what avenues exist for accountability for those crimes. Before I begin, however, I need to add that I offer my opinions in my personal capacity; I am not appearing on behalf of or speaking for the Office of the Prosecutor at the International Criminal Court.
CRIMES AGAINST HUMANITY
In terms of crimes, we are, as we have heard, primarily speaking of crimes against humanity. Many were committed in 1998. Indeed, it would likely be quicker to discuss the ones Iranian government officials did not commit.
Seven crimes against humanity are relevant.
1. Murder
This crime against humanity is straightforward. Intentionally or knowingly causing the death of even one person qualifies.
2. Extermination
This crime against humanity differs from murder simply by scale: it requires the death of many individuals, not just one. Tens of thousands of murders of innocent people clearly qualifies as extermination.
It is important to note that international criminal law does not require the individual perpetrator to have personally caused many deaths – though someone like President Raisi clearly did. It is enough that the perpetrator caused one death as part of a larger programme of extermination.
3. Imprisonment or Other Severe Deprivation of Liberty
The key to this crime against humanity is that the imprisonment or deprivation of liberty must be arbitrary – not imposed following a legal proceeding that satisfies international standards.
The crime clearly applies to all of the victims in the 1988 massacre – those who were not serving a prison sentence when they were rounded up and executed, as well as to prisoners who were still in prison when they were executed despite being entitled to release. As we have heard, the Death Commission held what can only be considered show trials, their outcomes predetermined.
4. Torture
This crime against humanity is straightforward. It applies not only to the executed themselves, who must have suffered terribly knowing their fates, but also to the prisoners who escaped execution but were physically tortured or caused massive mental harm through actions such as mock executions.
5. Persecution
Persecution as a crime against humanity involves depriving individuals of one or more of their fundamental rights under international law by virtue of their membership in an identifiable group.
The victims in the 1988 massacre were deprived of their right to life, perhaps the most fundamental right of all under international law. And they were deprived of their right to life on the basis of their membership in a political group. (And perhaps also on the basis of their religion – an issue I will come back to.)
That is the crime against humanity of persecution.
6. Enforced Disappearance
This one needs little additional comment from me. Each and every individual responsible for arresting or executing or refusing to acknowledge the fate of even one victim committed the crime against humanity of enforced disappearance.
7. Other Inhumane Acts
This crime against humanity is what we call a “catch all” provision – it applies to acts that do not qualify as one of the specific crimes against humanity but are both similar to them and cause a similar degree of physical or mental harm.
I believe this crime against humanity would apply to the suffering experienced by the families of the executed prisoners. The mental suffering they experienced by not knowing the fate of their loved ones is inarguably severe enough to qualify as an “other inhumane act.”
Modes of Liability
With regard to all of these crimes against humanity, it is important to emphasise that criminal responsibility is not limited to those who actually carried out the executions. It also extends to anyone who ordered the executions, such as now-President Raisi, as well as to anyone who aided and abetted the executions – such as the individuals who arrested the victims, refused to acknowledge their whereabouts, or who helped cover the executions up. All of those individuals are criminally responsible for crimes against humanity.
GENOCIDE?
I also want to say a couple of words about whether the 1988 massacre qualifies as genocide. This is a more difficult issue from a legal perspective, because genocide, unlike the crime against humanity of persecution, cannot be committed against political groups.
But that is not the end of the story. Geoffrey Robertson, who you hard from earlier, and other experts have argued that the victims in the prison massacre were targeted because of their religious beliefs, which dictated that they oppose the regime.
This is, of course, supported by the fatwa itself: ““As the [PMOI] do not believe in Islam … and as they are waging war on God … It is decreed that those who are in prison throughout the country and remain steadfast in their support for the [PMOI] are waging war on God and are condemned to execution.”
It is at least arguable, therefore, that the 1988 massacre qualifies as genocide of a protected religious group.
ACCOUNTABILITY
Let me now offer a few words about accountability.
No ICC
We first need to acknowledge that the ICC is not a possibility. Iran is not a member of the Court, so it is not subject to its jurisdiction. Moreover, the executions themselves took place too long ago for the ICC to have jurisdiction over them. The Court cannot prosecute acts committed before 1 July 2002.
Universal Jurisdiction
The more promising route, therefore, is clearly universal jurisdiction, which has already been mentioned – a state other than Iran prosecuting the Iranian perpetrators.
As you know, we already have an example of a successful universal jurisdiction prosecution — Hamid Nouri in Sweden. We need many more such prosecutions.
Individual states, however, are limited in their ability to build strong cases against Iranian perpetrators. So I want to echo Amnesty International’s call for the creation of an international investigative mechanism for Iran, one like we already have for Syria and Myanmar. Such a mechanism would be invaluable for developing the evidence that states will need to conduct successful universal jurisdiction prosecutions.
ICJ
A final avenue of accountability worth mentioning is the International Court of Justice. The ICJ is not a criminal court; it holds states responsible for violating international law. But the Court does have the power to order states to take actions to promote criminal accountability for perpetrators of international crimes.
The question with the ICJ is once again jurisdiction. Iran does not accept the Court’s jurisdiction for general violations of international law, so another state cannot simply claim that Iran committed international crimes during the 1988 massacre.
Iran also hasn’t ratified the Torture Convention, which permits any state that has ratified the Convention to bring a case at the ICJ against any other state that has ratified the Convention.
Iran has, however, ratified the Genocide Convention, which contains a similar dispute-resolution provision. Here is the text of Article IX – and please forgive the legalese: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
Insofar as the 1988 massacre can be described as an act genocide, any state that has ratified the Genocide Convention (and there are 152 states other than Iran that have) could bring a case against Iran to the ICJ.
Such cases are becoming increasingly common. We have seen two in the last year alone: Gambia accusing Myanmar of committing genocide against the Rohingya; South Africa accusing Israel of committing genocide against Palestinians.
I believe that the genocide question, though not easy, is close enough that the ICJ would likely be willing to accept a case accusing Iran of being responsible for genocide. A state would have to bring the case – individuals do not have that right – but if one could be found, it could request the Court impose what are called Provisional Measures until a final decision was issued.
Such provisional measures could include, among other things, ordering Iran to prosecute the perpetrators of the 1988 massacre and to release all of the information it has on the victims of the 1988 massacre – particularly the location of where the dead are buried. Iran would almost certainly refuse to comply with such provisional measures, particularly against its current President. Regardless, a case at the ICJ would bring significant international attention to the 1988 massacre – as it has to the plight of the Rohingya and Palestinians. And a refusal to comply with the world’s highest court would simply reinforce Iran’s status – so very well earned over the past five decades – as a lawless pariah state.