JUSTICE

Part 1

In your article “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” you talk about “war of values, and not of peoples”. What do you exactly mean by the “war of values”?

I wrote that article during the Yugoslav conflict which ethnic hate mongers like President Milosevic were attempting to portray as a clash of civilizations, or a war of different religions and people. But this was a myth, because Bosnia was a highly mixed culture where Serbs and Muslims and Croats and Jews mixed and inter-married over the centuries. Demagogical leaders, typical of fascist political currents, instrumentalized identity into an instrument of power and deliberately instigated hatred and violence. So my point was that the real war is not between peoples or identities, but rather, between values. The war was between hatred and violence on the one hand, and compassion and peace on the other. I have seen in many different countries how through propaganda political leaders turn neighbours into enemies, and part of the process of democratization and reconciliation is for people to understand how they were deceived into destroying their own nation.

How do you see the “war of values” in our country, Iran, after the revolution?

Whenever there is violence against non-violence, hatred over compassion, there is a war of values. But I think that we lacked political maturity and a strong civil society in Iran in 1979 and we have come very far from then to the 2009 popular uprising. I think there was a false sense that with the downfall of the Shah we could achieve democracy instantly. There was a kind of romanticism with utopian ideologies; as if by getting rid of one leader we will attain paradise! And what we ended up with instead was a far worse situation; more people were probably executed in the first few months of the Islamic revolution than throughout the period of the monarchist government. It doesn’t make the actions of Savak justifiable, but it shows that change is not always for the better, unless we have a strong commitment to a culture of human rights rather than merely shifting power from one group to another. We have to remember that the executions and torture and violence were at least initially supported by a wider circle of political groups, not just the Khomeinists, even if the Islamists eventually turned on their allies and murdered them as well to monopolize power. It shouldn’t matter from a human rights point of view whether arbitrary executions and torture were committed against monarchists, communists, Islamists, Kurds, Arabs, or Baha’is. Such behavior should be prohibited and condemned in all circumstances. That is what human rights means. So a revolution cannot simply be equated with the replacement of one dictator with a far worse tyrant. I have seen it in so many situations, and Iran is no exception.

After some 35 years of ideological absolutism and systematic violence, our people have entered a post-utopian phase, where they understand that non-violence and dialogue and tolerance is far more important than simply overthrowing this or that leader. So I think that the war of values is much stronger today than it was in the first decade of the revolution when people woke up to the great deception of the Islamists who imposed a reign of terror to maintain their grip on power. We now have a strong and mature civil society and a more democratic and pragmatic political consciousness, especially among the younger generation that constitute the vast majority of our nation. A war of values begins with our own conduct, with how we treat each other, with our capacity for dialogue and tolerance of differences; the imposition of ideologies through violence is a sign of weakness and deficiency. I hope we have learned our lesson from history and that we can collectively construct an image of a different and better future.

What is the difference between crime against humanity and genocide? Do you think if either crime applies to the Iranian regime?

As I previously mentioned, any widespread or systematic violation of fundamental human rights qualifies as a crime against humanity, especially when it is committed pursuant to State policy. Genocide is a more specific crime where the perpetrator intends to destroy a racial, religious, national, or ethnic group. The victim is killed because of the intention to destroy the group. It is like a crime of collective homicide. The victim is the group and not the individual. It seems that many of the policies of the Islamic Republic, including discriminatory treatment of religious and political groups combined with arbitrary executions, torture, rape, unlawful imprisonment, denial of fair trials, and the like, qualify as crimes against humanity.

Genocide is more difficult to prove because of special intent requirement and indeterminate factor of scale or gravity that cannot be easily determined. So for example, the execution of Baha’is or Kurds could have genocidal dimensions, especially in the first years of the revolution when the ideological extremism was particularly strong. The essential question is whether they are singled out because of an intention to destroy the group to which they belong; whether a religious or an ethnic group. The mass-execution of political prisoners is somewhat more complex because political groups are not included in the definition of genocide. However, there are religious dimensions to their executions because of the theocratic nature of the regime.

Either way, crimes against humanity applies to all large-scale abuses, and whether genocide also applies or not is less important.

Would you envision an international court for atrocities committed by the Iranian officials?

Typically, national courts are the primary means of implementing human rights laws. It is their function to protect such rights. But where national courts are not willing or not able to prosecute such crimes, then international courts and tribunals may be required. In Iran where the courts are more an instrument of repression rather than a means of protecting human rights, it is necessary to consider the role of international criminal jurisdictions. But Iran has not signed the Statute of the International Criminal Court, and the Court thus has no jurisdiction. Iran has not signed the Statute for the obvious reason that many officials would then be prosecuted at The Hague. The UN Security Council could refer Iran’s case to the Court, but there doesn’t seem to be sufficient political will. It seems that the nuclear issue has dominated all other issues. Short of prosecutions however, it is possible to document crimes for future prosecution, to educate public opinion about past crimes such as the 1988 mass-executions, to demand that the European Union and other governments impose travel bans and asset freezes against culprits, and to create a context within which justice will become possible. Ideally, Iran will one day have proper courts, and they will bring officials to account for crimes against humanity, and this will both help a process of national healing and discourage future violence and abuses. A culture of impunity only encourages further abuses. That is why courts are so important to building a democratic culture. But accountability is not just about formal courts and institutions. It is also about the political culture of a nation. So beyond formal prosecutions, raising public awareness about the historical truth, past injustices, the suffering of victims, and the importance of impartial justice and avoidance of vengeance, is the context that is required so that independent and impartial courts and other democratic bodies can operate with the support of the government and public.

Does international law deal with crimes committed by political groups? The Iranian government claims that over 11,000 people were killed as the result of terrorism by armed opposition groups and mostly by MEK. Has there been a similar case of political terrorism leading to killing of civilians in the international courts? If yes, how was it dealt with?

I have not studied MEK's conduct in depth so I will confine my remarks to the applicable law involving acts of violence committed by non-State actors. The type of political "terrorism" you describe is covered by the UN Convention Against Acts of Terrorism and possibly also by the Geneva Conventions covering armed conflict. Terrorism is defined very generally in international law as acts of political violence and its application is largely a matter for national law. But its prosecution and punishment is subject to human rights requirements of fair trial and humane treatment in prison. To the extent that acts of political violence rise to the level of an internal armed conflict or are linked to an international armed conflict such as the Iran-Iraq war, then they must be only against military objectives and not civilians. War crimes give rise to individual criminal responsibility but matters such as treason are covered by national law, again subject to limitations of fair trials and humane treatment.

I emphasize that the law applies irrespective of whether certain groups believe that political violence is justified or not because of a tyrannical regime. The political arguments must remain separate from the legal principles. Furthermore, even if MEK members violated certain laws, this does not mean that they could be tortured or arbitrarily executed. Their fundamental human rights does not depend on whether they committed crimes or not. Even if the Islamic Republic leaders are prosecuted in the future, their human rights must be respected. That is the difference between justice and vengeance.

So the international law is limited to the conduct of governments or those acting within the State, but how about the responsibility of the armed opposition groups who recruit child soldiers?

No, as I explained, international law applies to individual criminal liability with respect to war crimes, including recruitment of child soldiers under fifteen years of age, in relation to war. Same applies to crimes against humanity, which usually involves significantly more violence than mere political terrorism. So international law may apply to non-State actors though it is essentially aimed at States, because States are the seats of power in the international community. We have to understand that armed struggle by political groups is not unique to Iran. Many countries such as Peru, Argentina, and even South Africa under apartheid, have confronted political violence. It is said that "one man's terrorist is another man's freedom fighter". This is a highly controversial issue. But what is clear is that the ends don't justify the means, especially if political violence is directed at civilians. What is promising about the new generation in Iran is the emphasis on non-violence; this is where there is hope for the future.

What was your role in initiating and organizing the Iran Tribunal?

The families of victims and survivors had asked my opinion about whether they could bring the crimes of the 1980s before an international court and of course I explained this was not possible at present. But I also emphasized that establishing the historical truth and educating the Iranian public was as important as prosecutions and that this could be achieved even without formal institutions. I think some were inspired by the example of the 1966 Russell Tribunal that put the US on trial for war crimes in Vietnam. But I think this “people’s” tribunal is far more significant because it is the initiative of victims rather than a few prominent academics. It is also essential for the future of the country at a very dark and difficult time when the direction of the democratic movement is so uncertain. Once the tribunal was established, I was invited to join the Steering Committee, consisting of eight lawyers from diverse backgrounds, both Iranian and non-Iranian. I was also asked to serve as the Prosecutor which I was honoured to do. Having worked for justice around the world, I have been very eager to serve my own people and I am thus very honoured to be able to contribute to this historic undertaking. It is especially fulfilling to see mothers who have lost their children, who have suffered in silence for so long, who finally find an opportunity to express their grief, and to share their pain with others. It is very important for them to heal and breaking the silence is also important for a wider national healing and cultural transformation without which our future may consist of a repetition of past violence. The Iran Tribunal looks at the past, but it is also building a different future.

Some have questioned the legitimacy of such a court, even as symbolic as it is, when the prosecutor is an Iranian of the oppressed minority of Baha’i who currently lives in exile. And there are people like me who believe that your expertise and invaluable experiences in international courts can greatly benefit the entire nation in the process of transitional justice rather than simply shaming the regime. What is your own view on your role as the prosecutor?

It is interesting that the judges of the Jerusalem District Court that judged Adolf Eichmann in 1961 included Holocaust survivors. It is possible to separate one’s personal situation from one’s professional identity and to work for justice in a fair and impartial manner. Whether I am a Baha’i or not, whether I have experienced the loss of loved ones to torture and violence or not, the essential question is whether I can keep a professional distance and look at objective facts and evidence and apply legal reasoning. In any event, my role is that of a prosecutor, not that of a judge. I am not supposed to make the final judgment; my role is to bring a credible case against those that I believe bear responsibility for crimes and abuses. No matter what I think or believe, I must persuade a panel of seven international judges, none of whom are either Iranian or Baha’is, that I have a case, that I can prove it, and that it qualifies as a crime against humanity. Another problem is that violence is so widespread in the Iranian community, that it would be very difficult to find someone that is completely unaffected. If they have victims in their family, whether for political or religious or other reasons, we could say they are not impartial. But if they have never had any victims, we may suspect that they were supporting the regime. What is important is that we each act according to our conscience rather than hatred, and that we do our job as professional lawyers before independent and reputable judges who we must ultimately persuade.

In the same article you emphasize the importance of “individual accountability” and “individualized guilt” in deterring and preventing future atrocities. But this tribunal does not name responsible individuals. Furthermore, the tribunal claims that it is made of two sessions: first, a “truth commission”, and the second, a “court” or tribunal, both of which are disputable in many ways. What is the real significance of the “Iran Tribunal”?

It is difficult to prosecute an individual person for guilt when he is not present to defend himself, since individual guilt requires very particular evidence. It is easier to do so with respect to a government, to prosecute its policies, especially when they have been invited to defend their actions and to present their side of the story. Of course, individual names will always be mentioned by victims and witnesses, for example the identity of those that were members of the Death Commission that selected prisoners for execution in 1988. But the focus is on the policy of the Islamic Republic during its first decade. The significant of the Iran Tribunal is to educate the Iranian people about historical truth, about massive crimes that people are unaware of but which have profoundly shaped their current situation, and to create a space for justice and dialogue, instead of vengeance and violence. The best way to educate people about these horrors is through the stories of victims. The regime may discredit this or that political activist and accuse him of false propaganda; but it cannot deny the voice of a grieving mother with any amount of deception. The Tribunal can help create a space in which we can experience a shared humanity and transcend our differences. That is what our nation needs to build a better future. In order to achieve this however, the Iran Tribunal must expand to embrace wider and wider circles of groups within Iran, and to progressively become a national project.

Considering the following facts about the massacre thousands of political prisoners in 1988: the order was not initiated by the government, but by a religious leader, i.e., Rouhollah Khomeini; the Death Commission implemented his order and killed thousands of prisoners; many of the state officials, including HosseinAli Montazeri who then was to succeed Khomieni, were either against it or unaware of the dimensions of the atrocities; would you still consider it as a responsibility of the state since Khomeini was the head of the state?

I will not elaborate too much on this question since it will be considered by the Tribunal but it is clear that Khomeini was not just a religious leader; he was the Supreme Leader under the Constitution of the Islamic Republic and had a formal function and nearly absolute power. His fatwa to execute political prisoners with “revolutionary range and rancor” is the act of a State agent and consequently attributable to the Islamic Republic. It is also evident that nobody in the State either resisted or refused the orders, which would at least have cast doubt on whether this was a policy or a deviation. It is true that some like Ayatollah Montazeri had the courage to disagree. But this does not mean that Khomeini was somehow acting in a personal capacity.

The tribunal has been relatively successful in presenting witnesses from different political groups that have been victimized by the regime. But, as far as I know, there was no testimony by any Baha’i or monarchist victims of the regime. Why?

The Iran Tribunal is a first step, a start to a long-awaited process. The fact that different political groups have managed to cooperate is itself remarkable. And this has also meant that the witnesses and victims come from diverse political groups. The Iranian community unfortunately is often divided and incapable of dialogue. So although the political groups represented are largely leftist, because most of the political prisoners in that period had this orientation, can be explained not as deliberate exclusion of others, but as a reflection of that reality. But it is important the process itself is impartial and based on facts and law rather than disintegrating into a platform for political slogans. The fact that different political groups have united for a common cause and appointed eight independent lawyers as a steering committee who have in turn organized panels of qualified judges, gives tremendous credibility to the process. But it is important to recognize that not everybody was a political prisoner. Many were persecuted merely because of their beliefs, even if they were not engaged in partisan politics. In this regard, I believe that there will be a Baha’i witness at the next phase of the tribunal. This was not my suggestion but that of others involved in the process. Many political prisoners knew Baha’is in prison, even though they were imprisoned only for religious reasons rather than political activities. As for monarchists, their victimization through arbitrary executions and torture was largely during the first months of the revolution. The Tribunal is focused on the mass-executions starting after Khordad 1361 when Bani-Sadr was ousted from the presidency by Khomeinists. The organizers wanted to focus on this period and it is understandable that to make this project manageable with limited resources we have to necessarily limit the mandate. But as I mentioned before, if we want to create a larger national process of justice and dialogue, we must expand to embrace every group that has been victimized, including monarchists, communists of all stripes, green reformists, Baha’is, Kurds, Baluch and Arabs. So the Tribunal is an important first step, and it should by no means be limited to only the leftist political prisoners of the 1980s, even if they were the largest victims during that period. And I don’t believe the organizers would oppose the inclusion of others in this process over time. Furthermore, it is the responsibility of those that want to expand this process to come forward and become involved in a wider truth-telling process, and I would certainly welcome and support that on my part.

It is not that different political groups have participated in the tribunal, but families of the victims from different political groups provided testimonies. But let us continue. Based on what criteria were the judges for the tribunal selected? And by whom?

The judges were selected by the Steering Committee based on their qualifications as recognized jurists. For example, Professor John Dugard of South Africa, is a highly respected anti-apartheid activist, scholar of international law, UN expert, member of the International Law Commission, and former judge of the World Court. Makau Mutua is a respected international law scholar from Kenya who completed his Phd from Harvard Law School. So the judges reflect different nationalities and persuasions, but all have the highest qualifications as jurists, and based on their reputation which has been established over many years, they can be trusted to arrive at impartial and objective conclusions. That is how a People’s Tribunal can enjoy legitimacy; by selecting jurists whose reputations are beyond reproach.

Have there been any attempts to make this symbolic tribunal fair by allowing presentation from the defendant side, i.e., the government of Iran?

We have sent a formal invitation to the Embassy of the Islamic Republic in The Hague, together with the Report of the Commission from the first phase of the Tribunal. We have asked them to defend their position. They are welcome to do so. They have already showed reaction in the government-controlled media which has included astonishing statements that because the victims were “monafeqin”, they could be executed without a trial! This is an early success of the Tribunal, that the Islamic Republic for the first time has recognized that these executions occurred. It remains to be seen if they will respond but they will most probably not respond and not participate, but instead engage in propaganda and the usual accusation of Imperialist conspiracies and the like in order to deflect attention from the reality of mass atrocities. It is always a good sign when the regime attacks and condemns, because it is a sign of its own weakness, it own vulnerability to truth and justice.

Were you aware that there had been some efforts by other human rights advocates and scholars to build a discourse about transitional justice and pave the road for a national tribunal?

Yes, of course. There have been many important efforts and initiatives over the years that are worthy of recognition and respect. Nobody has a monopoly over truth and justice for our people. It is a common challenge and we must encourage as many people as possible to contribute to this mutual struggle. I think the People’s Tribunal is an important and unprecedented contribution because it is a different and emotionally moving modality to bring the reality of victims to the attention of the wider Iranian and world public, beyond the limited community of activists and scholars that have paid attention to this issue. 70% of Iranians were born after the revolution and they know very little about the mass-atrocities of the 1980s. Most ordinary people are not likely to read prison memoirs or scholarly articles or even documentation. They are distracted by daily concerns or by entertainment and other issues that consume their attention. And even if they read material on this subject, they will not necessarily appreciate the depth and gravity of the tragedy that it represents. The voice of victims is very important in this regard and that is why I think we received media coverage by all major television stations and probably reached millions of Iranians. It is difficult to say that a mother that is weeping for her children during her testimony is an American or Israeli spy or part of a foreign conspiracy and all the other nonsense that is used to destroy and delegitimize any attempt at telling the truth. So the Tribunal in a sense brings to life much of what has been written and recorded and through increasing public awareness opens a space for dialogue and collaboration on transitional justice. I like to see the Tribunal as an important first step that builds on the efforts of the past and which, in order to become a “people’s” initiative, needs to embrace wider and wider circles of Iranian society. And it will ultimately only be a people’s tribunal, owned by all Iranians as it should be, if we can invite to the table of justice those with whom we may disagree on everything except the importance of human rights. Let us just accept that we must establish the truth in a credible and objective manner, that we must give a forum for the victims to voice their suffering, that we must create a culture of accountability for those in power, that there is a shared pain, a shared humanity, a space in which we can accommodate all Iranians. If we fail to do this, we will only contribute to the continuation of the injustice we have suffered for so long. So there is no competition here between initiatives; we are all fighting for the same cause and should extend the hand of friendship and collaboration to each other.

How do you see the role of the Mothers of Khavaran and the Mothers of Laleh Park in preserving the national quest for justice?

In my dealings with these groups, I have been humbled, both by their long-suffering, and by the power of a mother that asks for justice for her children. We should remember the fundamentally important role of the Mothers of the Plaza de Mayo in Argentina whose protests captured the imagination of a nation and helped bring about a truth commission and justice. There is something undeniable about the power of a mother that has lost her children. Mothers are the fountain of life. They are our first educators. Their role is sacred. The male chauvinistic culture of violence must give way to a culture of nurture and compassion. This is what our mothers have to teach us! And in building a new culture, a new awareness, in moving away from violence and deceit, our entire nation needs mothers that teach us the same lessons that we learn as individuals, about good behavior, about decency and respect, about shame. The Mothers of Khavaran and Mothers of Laleh Park teach us a different conception of power; they remind us of elementary principles of humanity and goodness that our violent political space has deprived us of. They have a crucial role in our national quest for justice and I cannot begin to explain how much respect and admiration I have for them. To be honest, this work can be so frustrating, so many obstacles and attacks and intrigues. But when I see what it means for the mothers, that gives me strength to continue. They are my sources of inspiration.

In the article you wrote with Ramin Jahanbegloo, “Don’t Mistake Iran’s Brutality for Strength”, you mention that “[T]he Iranian people must build a vision of truth and justice that will break the silence, recognize and account for past crimes -- not to provoke another cycle of violence, but to help the process of national healing and creating the context for building a non-violent and humane future.”

What measures have been taken by the Iran Tribunal to make sure that it contributes to the “context for building a non-violent and humane future”?

This goes back to the discourse and space that we are all trying to build with the Iran Tribunal as an important vehicle. Mahatma Ghandi famously said that “we must be the change we want in the world”. The way in which the Tribunal is conducted and the discourse that it generates must itself be consistent with its essence and purpose. I am very happy and relieved that among the 80 witnesses that appeared in London, almost none used the opportunity to chant political slogans. They simply came and said their stories, which were heart-breaking, powerful, sad yet healing. There were moments when mothers would speak with grief about the loss of their children, and as they cried, everybody in the room cried along with them. These were moments of shared grief, shared humanity, where we all transcended our differences and witnessed a glimpse of what we are capable of as a people. We are one people. We are Iranians. We are humans. What unites us is far more important than what divides us. Unless we understand this, unless we assume responsibility and change our own behavior, then we are condemned to repeat the past. So I have great hope for the process of healing that the Iran Tribunal stands for. There is always room for improvement, and we should have a critical dialogue about how to move forward with this process. And we should understand that none of us own the process, because justice is greater than any one of us.

Can we seek justice with regards to the criminals of the Shah’s regime? Could we have a trial for people like Parviz Sabeti, a current US citizen and one of the SAVAK directors who has had an active role in torturing and killing the political prisoners?

Like I have said, a victim is a victim, and we should not play politics with human rights. If we have the possibility to bring perpetrators to justice, then we should do so. But I think that we have far more pressing challenges at present, given the dire situation that the Islamic Republic has placed the people of Iran under. If there is evidence against this or any other persons, then legal avenues for justice should be pursued, whether this is for compensation or criminal justice. But beyond this or that individual, we need to start thinking about the future of our country, at a time when there is talk of war, at a time when executions and torture and hatred has filled the public space, at a time when our civil society and youth are under siege. We need to unite for a wider cause, which is to create a constituency among Iranians for non-violence and human rights. I have seen this struggle before. As a student, I was an anti-apartheid activist. I was protesting against Pinochet. I look back and see that at the time, a democratic South Africa or Chile seemed unimaginable. That is why we have to have hope, and courage, and never fail to believe in the power of truth, in the power of justice, in the power of ordinary people that refuse to surrender their humanity to those in power. Our day will also come in Iran. The question is whether we will expedite it by assuming responsibility and ushering in a peaceful transition, or God forbid, if we go the way of Syria and Libya. The choice is ours. We are building our tomorrow through what we do today.