Dr. Melanie O’Brien, President of the International Association of Genocide Scholars (IAGS)

Melanie O’Brien: There must be Accountability for Crimes by the Iranian Government – from the 1980s and Now

Remarks by Melanie O’Brien, Associate Professor at the University of Western Australia and President of the International Association of Genocide Scholars (IAGS), at the international conference in Paris on 3 July 2023 marking the 35th anniversary of the 1988 massacre in Iran and seeking accountability for this ongoing crime against humanity:

The UN Special Advisor on Genocide Prevention, Alice Nderitu, has said: “When perpetrators of past atrocities are not held accountable for their action, we are doomed to see history repeat itself.” This is the situation we find ourselves in with regards to the Iranian government and its human rights abuses, many of which amount to international crimes. In 1988, political protests were curbed, with thousands of people executed for their political and religious beliefs. Only one of the perpetrators of these crimes has been held accountable for their actions.

With the resumption of violence since the killing of Mahsa Amini, we see the same types of violence being carried out. Protestors in the street are being met with violence, with security forces being ordered to ‘severely confront’ protestors, open firing on and beating protestors. Other protestors are arrested and detained, with hundreds already executed. The killings have included children. It is a continuation of the targeting of those opposed to the authoritarian regime running the country that was seen in the 1980s, with the very same conduct being carried out. Indeed, it is history repeating itself.

Crimes against humanity are crimes committed as part of a ‘widespread or systematic attack on the civilian population’. The detention, disappearance, torture and killings of large numbers of Iranian civilians in 1988 and today certainly qualify as a widespread AND systematic attack on the civilian population. These crimes committed against Iranians amount to the crimes against humanity of murder; torture; imprisonment or severe deprivation of liberty in violation of international law rules; persecution on political and religious grounds; enforced disappearances; and ‘other inhumane acts’. Some of these crimes are committed against the victims, others against the families of victims.

Obviously, the Iranian government is not going to hold itself accountable for atrocity crimes including executions, torture and enforced disappearances. This is especially the case as some of those responsible for the 1988 crimes have since been promoted up the ranks to high government positions, including the current President, Ebrahim Raisi, who was a death commission member. For Raisi, he is a perpetrator of the killings in 1988, but he is now obviously also accountable for current crimes against humanity being perpetrated against protestors. With Raisi in power, it is clear that, within Iran, there will not be justice for victims.

The international community needs to unequivocally support accountability processes to ensure justice for the victims and their families who have not even been permitted to properly mourn their loved ones. What form those processes take is the biggest challenge. The International Criminal Court is of course not an option for accountability for the 1988 massacres, as that Court does not have jurisdiction over crimes committed before July 2002. However, is it an option for the present-day torture and killings? Of course, not surprisingly, Iran is not a party to the International Criminal Court. Therefore, the ICC would have no territorial jurisdiction, which is the most common form of jurisdiction for the Court, where it can prosecute international crimes committed in the territory of a state party. The only option would be for the UN Security Council to refer the situation in Iran to the ICC, as it did for the situation in Darfur, Sudan. However, this is unlikely to occur, because Russia, as a P5 member of the Security Council, would likely exercise its veto power over any proposed resolution to refer Iran to the ICC. Iran and Russia have a close relationship, with Russia supplying Iran with military equipment, and Iran supplying Russia with drones.

Thus, the ICC is not a likely option, so other accountability mechanisms must be considered.

Domestic criminal law in third countries should be used. The July 2022 conviction in Sweden of Hamid Nouri is a key example of the use of universal jurisdiction against perpetrators of the 1988 killings, where a country prosecutes a national of any country for international crimes committed anywhere in the world. Nouri travelled to Sweden under an alias, where he was arrested upon arrival, and then tried and convicted for his role in the 1988 executions. Sweden could not prosecute using their crimes against humanity law, as this only applies to crimes committed since July 2014, but Nouri was sentenced to life in prison for the war crimes of participating in the killing of prisoners and subjecting prisoners to inhumane treatment and torture, as well as the ordinary crime of murder. Sweden’s example should be followed by other countries, which would effectively render a travel ban on those who participated in the 1988 executions and those who are perpetrating current crimes, as they would be arrested if they travelled abroad. This would complement any current sanctions regimes against Iranian individuals.

Most realistic current justice options will not result in the prosecution and conviction of the perpetrators in a criminal process, and so other mechanisms that focus on truth-telling, exposing the crimes of the current and previous regimes, should be established.

It would be appropriate for the United Nations to establish some kind of mechanism for investigation and truth-telling. Such a mechanism could be of a similar structure to, for example, the Independent Investigative Mechanism for Myanmar. This Mechanism collects, consolidates, preserves and analyses evidence which can be made available to national, regional and international courts for future prosecutions. The Mechanism issues reports of its findings, which are an important accountability source.

Human rights law solutions are difficult and limited. Iran has never engaged significantly with the human rights law system. It is party to few human rights treaties and does not subscribe to any individual complaints procedures in the UN human rights system. It is, for example, NOT a party to the Convention Against Torture or the International Convention for the Protection of All Persons from Enforced Disappearance, which would be highly relevant treaties. However, there is certainly customary international law that could be used by other countries to bring a case against Iran in the International Court of Justice. Iran is an active member of the International Court of Justice, even last week bringing a case against Canada in that Court. Canada, Sweden, Ukraine and the United Kingdom are planning to take Iran to the International Court of Justice over the over downing of Flight PS752, which killed their own nationals. They should be as outraged by the deaths of Iranian nationals that violate international law, and in response, take Iran to Court. The prohibition on torture and inhuman treatment is deemed to be customary international law, and thus would be a means for any other state to bring a case against Iran in the International Court of Justice. An argument could also be made that the prohibition on enforced disappearance is customary law.

These are some options for accountability, and I call on leaders at national and international levels to implement these solutions to ensure justice for victims of torture, enforced disappearance and unlawful executions in Iran.