Shadi Sadr*

“It’s been over thirty years, but my mum won’t let us change the key to our home. She keeps saying if my brother comes back and we are away, he must be able to use his key and not to linger outside.” The sister of a victim of disappearance during the decade-long political cleansing by the newly established Islamic regime after the 1979 revolution in Iran once told me this.

In the 1980s, Iranian authorities arbitrarily detained, tortured, disappeared and killed thousands of people for their political opinions or religious beliefs. In the summer of 1988, the massacre reached its peak with over 5,000 political prisoners secretly executed and buried in unmarked and mass graves across the country over the course of less than two months. The executions were ordered by the Death Committees that had been formed according to an decree (the Fatwa) issued by the then Supreme Leader.

They were mostly young men and women, some just teenagers, unjustly imprisoned because of their political opinions and non-violent political activities, many arrested in the early 1980s and sentenced to imprisonment after summary trials. Some were serving their sentences at the time, but a number of them were still in prison after their sentences had been fulfilled because they refused to express remorse for their actions.

Most of their families do not know the circumstances of their deaths and places of burial; those given death certificates received documents that misrepresented the cause of death. The authorities have excluded the names of many of those executed from public death and burial records. They have also denied the mass executions or misled the public about the scale, cause and other information.

As the UN Working Group on Enforced or Involuntary Disappearances (WGEID) has clarified, the commission of an extrajudicial execution in detention falls within the definition of enforced disappearance if it is followed by the refusal of the authorities to acknowledge the killings or to disclose the fate or whereabouts of the victim. Iran’s State practice of extrajudicial execution of political prisoners without delivering the body to the families and locating the burial place, is an example of what the Working Group calls ‘enforced disappearance proper’.

While impunity is absolute in Iran, until recently, legal obstacles seemed predominant in searching for legal avenues for the 1980s atrocities, even outside the country, using universal jurisdiction. Despite the clear position in international law that the statute of limitation should not be applicable to crimes under international law, domestic laws differ widely. Therefore, the statute of limitation would create a barrier as the extrajudicial executions occurred years before July 2002, when the Rome Statute came into force, even though some of the atrocities such as the 1988 prison massacres amounting to crime against humanity cannot be overstepped in many countries. In such a situation, framing the 1980s extrajudicial executions as a practice of forcibly disappearing political opponents, using the WGEID definition can be a game changer.

 The definition has not remained abstract, but has been subsidized by a clear precedent in cases concerning the situation of Iran. According to Justice for Iran, an NGO representing some of the relatives of victims, between 2017 and 2020, the Working Group has recognised at least 20 individuals who were extra-judicially executed by Iranian authorities during the 1980s as enforced disappeared, including Akbari Monfared siblings, Hossein Rahemipour, Nafiseh Rouhani, and eleven others.  The WGEID transferred the cases to the Iranian government, expressing its hope that appropriate investigation will be carried out to clarify their fates and whereabouts and to protect their rights. In total, there are 541 outstanding cases of enforced disappearance in Iran before the Working Group, according to its 2020 report. Although the Iranian government has refused to provide the Working Group with any response, with the one exception, the mere recognition of those executed in the 1980s as enforced disappearances can have significant legal impacts. 

In the larger landscape, enforced disappearance has become more and more a global issue. This has two reasons:  the rise in its use in a range of countries, from Sri-Lanka to Iraq, and the increase in the number of countries that are adding enforced disappearance to their penal codes as an international crime subject to universal jurisdiction. However, there is yet to be legislative reform in most state parties of the International Convention on Enforced Disappearance (CED) to comply with the obligations embodied in Articles 9 (2) and 11 to extradite or prosecute any person suspected to be responsible for a crime of enforced disappearance under the principle of universal jurisdiction in all circumstances, whether it constitutes a crime against humanity or not.

Enforced disappearance is considered a continuing crime as long as the fate of the disappeared remains undisclosed. Hence, although the crimes of extrajudicial killing and forcibly disappearing political prisoners in unmarked and mass graves began in the 1980s, they had continued until now as the authorities have refused to acknowledge the killings and fully disclose the fate and whereabouts of the victims. This resolves the problem of statute of limitation, not only for the cases concerning the 1988 prison massacre, but also thousands of other extrajudicial killings that took place in the 1980s that fall within the WGEID definition of enforced disappearance; it would open new doors for the families of victims in many domestic courts, if other restrictive nexus such as the presence of the suspect is established (if required to be established at all).

Another broadening horizon for the cases related to the 1980s atrocities in Iran is that more countries, in law and jurisprudence, are acknowledging the fact that the practice of disappearing people cause ambiguity and anguish to their relatives to the extent that constitute torture. Therefore, families are entitled to seek justice and reparation for themselves as long as the fates and whereabouts of their loved ones are obscured in a country where torture is subjected to universal jurisdiction. Notwithstanding, such countries are much higher in number than those recognising enforced disappearance as such. While usually families are expected to only speak about their loved ones, this legal tool makes speaking about their own suffering credible and justified.

Consequently, the individual cases of 1980s enforced disappearances can also be heard are adjudicative under laws in countries where universal jurisdiction is applicable to torture or enforced disappearance, or both, as crimes under international law, even if they were not committed as part of a widespread or systematic attack, thus not constitute crimes against humanity.

Furthermore, as Amnesty International pointed out in its report on the 1988 prisons massacre, the widespread and systematic nature of extrajudicial executions and the ongoing enforced disappearances amount to crimes against humanity. This allows for seeking justice for the 1988 prisons massacre in many countries where enforced disappearance is not recognised as an international crime for application of universal jurisdiction. The language of ‘ongoing crimes against humanity’ makes universal jurisdiction available even in countries that place a temporal restriction on the application of it. Thus, even if enforced disappearance is not considered as an international crime in a country’s penal code, a suspect can be tried for enforced disappearance as torture of the relatives, or as crimes against humanity against victims, and their ongoing nature make the statute of limitation irrelevant.

The UK is one of the countries that does not recognise individual cases of enforced disappearance as international crimes triggering universal jurisdiction unless they took place as a part of a widespread or systematic attack against a group of civilian population, i.e. constitute crime against humanity. Nevertheless, the individual cases of enforced disappearance can still be prosecuted as torture against relatives. This has been established by the ruling of the 8^th of October 1999 of London Magistrate Ronald Bartle who committed the former Chile president, General Augusto Pinochet for extradition to Spain, where he could have stood trial for 34 counts of torture and one count of conspiracy to commit torture.

Despite its significance from different aspects, the judgement has received inconceivable oversight by legal scholarship. The House of Lords, in its second decision on March 24^th, 1999, ruled that the only crimes for which Pinochet could be extradited were torture and conspiracy to torture after December 8^th, 1988, when the torture convention took effect in the UK. Nevertheless, affirming the special nature of enforced disappearance, Magistrate Bartle provided “the effect on the families of those who disappeared can amount to mental torture,” and by doing so, ruled that the crimes continued past 1988 even if the victims were abducted earlier. Therefore, Pinochet’s conduct before 1988, which would include the creation of the secret police and the establishment of Operation Condor targeting Pinochet’s opponents abroad, could be examined by the Spanish courts in proving the existence of a conspiracy which continued after December 1988.

Thus, the relatives of those forcibly disappeared by Iranian authorities through extrajudicial executions followed by the refusal to acknowledge the killings and fully disclose the fates and whereabouts of the victims during the 1980s can still lodge complaints in UK courts if any suspect were to be founded or extradited for the torture they have endured as their effects continue to today. If the crimes were committed as part of a systematic or widespread attack, such as the 1988 prison massacres, no statutes of limitation apply to prosecute crimes against humanity under the International Criminal Court Act 2001.

Another major relevant development must be mentioned before this article comes to an end; Hamid Noury is an Iranian national who was arrested in November 2019 at Stockholm airport and indicted in 2021 for war crime and murder for participating in the mass executions  of political prisoners in his role as assistant to the deputy prosecutor at Gohardasht prison in the summer of 1988. Starting on the 10^th of August 2021, Noury’s trial is expected to continue until April 2022. The opening of the trial coincided with Ebrahim Raisi’s inauguration into the presidential office. Among other abuses, Raisi has been accused by Amnesty International and other rights groups of perpetrating crimes against humanity as a member of the aforementioned Death Committee  that made decisions on extrajudicial executions of political prisoners, including those whose lives were taken in Gohardahst prison where Noury worked.

While Raisi holds the highest executive office in Iran and enjoys personal immunity when traveling abroad and the Swedish proceeding is still going on, the relatives of those extrajudicially executed and forcibly disappeared in Gohardasht prison in 1988 can lodge a complaint against Noury in the UK, requesting his extradition so that he can also stand trial in London. This time, for the torture the families of victims have endured.  

*Shadi Sadr is a PhD candidate at Leiden University, the co-founder and previous executive director of Justice for Iran, and a member of the panel of judge at international people’s tribunals on Indonesia, Myanmar, and China.