Iran: Call for Prosecution Advanced for War Crimes and Crimes Against Humanity
Source Rights Monitoring – Geoffrey Robertson QC is founder and Head of Doughty Street Chambers, London. He has appeared in many countries as counsel in leading cases in constitutional, human rights, criminal and international law and served as the first President and Appeal Judge in the UN War Crimes Court in Sierra Leone, where he authored landmark decisions on the limits of amnesties, the illegality of recruiting child soldiers and other critical issues in the development of international criminal law. In 2008, he was appointed by the UN Secretary-General as one of the “distinguished jurist” members of the UN Internal Justice Council. 
A call for prosecution is being advanced for War Crimes and Crimes Against Humanity by the state of Iran. The basis for this international call to action is the report “The Massacre of Political Prisoners in 1988”  published by the Abdorraham Boroumand Foundation,  the author Geoffrey Robertson QC. 
Download full report: http://www.unarts.org/H-II/ref/IMReport1988.pdf
In this report, the author finds that the state of Iran has committed four exceptionally serious breaches of jus cogens rules of international law which entail both state responsibility and individual accountability for war crimes and crimes against humanity. The four points as outlined in the summary of this 148 page report include:
1) The arbitrary killing of thousands of male and female prisoners pursuant to a fatwa that held them collectively responsible for the Mojahedin invasion, notwithstanding that they had been in prison and hors de combat for years, serving fixed term sentences for relatively minor offences. This was not the execution of a lawful sentence, because there was no trial, no charge and no criminal act other than adhering to a particular ideological group. It was dishonest of Iranian leaders to pretend that the executed prisoners had all been given death sentences and had refused an opportunity to reform: this was a lie. So too was the suggestion that they had rioted or that they were all “terrorists and spies”. None of those whom I interviewed had been charged with terrorism offences or with espionage, and
most had been in prison since 1981-3. The immediate trigger for the massacre was tit-for-tat retaliation for the “Eternal Light” invasion and the pain of agreeing to a ceasefire, but the medieval defence of “reprisal” has long been abolished. The right to life, guaranteed by customary international law, by treaties to which Iran is a party and by the Geneva Conventions, was quite deliberately and barbarically breached, and all who bear international law responsibility for this mass murder should be prosecuted. An obligation to prosecute may also arise from the Genocide Convention, since the reason why MKO members were condemned as moharebs (“warriors against God”) and exterminated was that they had adopted a version of Islam which differed from that upheld by the State.
2) The second wave of apostate killings was also a breach of the right to life, as well as the right to religious freedom. The male prisoners who were executed were given some kind of trial, but it was wholly deficient in compliance with legal safeguards and massively unfair. They were offered no time or facilities to prepare their defence and were taken by surprise by questions, the implications of which they did not understand. They were executed for a crime of conscience in that their only offence was to refuse to adopt the relireligious beliefs, prayers and rituals of the state. There is force in the argument that in this sense they comprised a distinct group exterminated not because of their left wing political leanings but because of their beliefs about religion: they were in consequence victims of genocide. Apostasy in any event is not a crime for which the death penalty is permissible in international law – a position taken by most states a few months later when Khomeini purported to pass that sentence on Salman Rushdie. They were not, as the government later alleged, spies or terrorists or prison rioters. They were executed for no better reason than to rid a theocratic state of ideological enemies in post-war circumstances that could not possibly give rise to a defence of necessity or to any other defence.
3) The beatings inflicted on leftist women and on other men who were regarded as capable of religious compliance satisfied the definition of torture, which is absolutely prohibited even if it is consonant with national law. The beatings by electric cable on the soles of the feet, five times a day for weeks on end, together in many cases with beatings on the body, were calculated to and did cause excruciating pain and extensive suffering as well as humiliation and degradation. The mental anguish was heightened by the fact that the beatings were inflicted not for the purpose of punishment, but to make the prisoners adopt a religion that they had rejected, and thus surrender their freedom of conscience. Again, no defence of necessity can possibly arise: the only object of the beatings was to break their will
and their spirit and to make them more amenable to the state’s version of Islamic governance.
4) Finally, the rights to know where close relatives have been buried and to mourn their deaths, have been and still are being denied by the state. These rights are implied from the right to life and (more logically) from the right of innocent families not to be treated inhumanely or cruelly. There is no possible justification, today, for denying information about burial locations or for prohibiting gatherings of mourners: there is no evidence to suggest that these gatherings would cause public disorder or breaches of the peace. What is being denied, two decades after the deaths, is the right of parents, spouses and siblings to manifest their feelings of devotion in respect of the memory of a family member: this is a denial of their rights to respect for home and family life (an aspect of privacy) as well as a denial of the right to manifest religious beliefs. It also amounts to discrimination, since no other class or category of the bereaved has been denied the opportunity to mourn. The refusal to identify mass graves implicitly involves a refusal to prevent DNA testing (which has proven reliable in war crimes investigations as a means of identifying the remains in mass graves) and, in consequence, the prevention of a proper burial.
At the present time, all human rights organizations and the international community are being asked to advance the:
Immediate prosecution of those responsible for war crimes and crimes against humanity within the state of Iran.
Immediate protection of human rights activists and witnesses of atrocities that include systematic and severe psycological and physical torture and execution.
Collection of evidence of crimes committed in a timeline from 1979 to present, beyond the findings of this paper.
Review of all current international legal actions by the United Nations and UN Security Council as secondary to the war crimes and crimes against humanity atrocities.
The Massacre of Political Prisoners in 1988: Geoffrey Robertson QC, Abdorraham Boroumand Foundation. Url: http://www.unarts.org/H-II/ref/IMReport1988.pdf
Abdorraham Boroumand Foundation. Url: http://www.iranrights.org/
Geoffrey Robertson QC: Doughty Street Chambers. Url: http://www.doughtystreet.co.uk/barristers/geoffrey_robertson_qc.cfm
H-II: Stephen Michael Apatow Supports National Society of Film Critics Statement On Jailed Iranian Directors: Humanitarian Resource Institute, 9 January 2011. Url: http://www.unarts.org/H-II/ref/192011OHCHR.html
Crimes Against Humanity: Religious Justification: Humanitarian Resource Institute, 7 January 2011. Url: http://www.unarts.org/H-II/ref/172011OHCHR.html
Iran: Crimes Against Humanity: New Legal Standard: Humanitarian Resource Institute, 4 January 2011. Url: http://www.unarts.org/H-II/ref/142011OHCHR.html
Iran Background Discussions: HRI:UNArts Humanitarian Intervention Initiative. Url: http://www.unarts.org/H-II/Iran