WRITTEN BY: REGINA PAULOSE

“Silence is the most powerful scream” – Anonymous

There are many incidents that have violated International Criminal Law (ICL) that have taken place in global history but have never been presented to a “legitimate” tribunal for consideration.  Thankfully, this has not stopped victims from finding a way to address the wrongs that have been committed against them. After WWII, the Nuremburg Tribunals showcased that perpetrators of horrible crimes would face punishment by the international community (or at least by the victors of war). Unfortunately, as history continued to unfold, it became clear that whenever an atrocity occurred it did not necessarily mean that every perpetrator would be held accountable for violations of ICL.

Circa 1966, Playwright Bertrand Russell and Philosopher Jean Paul Sartre created the “Russell Tribunal” which investigated crimes alleged to have been committed by the U.S. during the Vietnam War.[1] As Jean Paul Sartre eloquently described,

“[t]he Russell Tribunal was born of this doubly contradictory conclusion: the judgment of Nuremberg had necessitated the existence of an institution to inquire into war crimes and, if necessary, to sit in judgment; today neither governments nor the masses are capable of forming one. We are perfectly aware that we have not been given a mandate by anyone; but we took the initiative to meet, and we also know that nobody could have given us a mandate. It is true that our Tribunal is not an institution. But, it is not a substitute for any institution already in existence: it is, on the contrary, formed out of a void and for a real need.”[2]

These activists envisioned that one day the world would have a permanent court to address war crimes, crimes against humanity, and genocide. Philosophically, the ad-hoc tribunals and the ICC are the ideals that Sartre envisioned in his inaugural address. In reality, “selective justice” has continued to cripple the international rule of law. However, as the Iran Tribunal and the Rios Montt Trial prove, citizens are moving together to force open the doors of justice to accommodate them so that they can determine their own truths for the atrocities they have witnessed.

Iran Tribunal

Inspired by the Russell Tribunal, survivors, families of deceased victims, activists, and scholars, created an “Iran Tribunal” to address the atrocities that were committed in the 1980’s by the ruling regime in Iran.[3]  The Tribunal specifically focused on the atrocities committed from 1981-1988. Ayatollah Khomeini appointed a provisional government in 1979. This provisional government began to arrest previous regime members and members of political organizations who spoke out against the Islamic regime. It is estimated from these actions, that approximately 15,000 people were arrested, tortured, and summarily executed.

The Tribunal heard and documented detailed evidence that showed the regime’s use of forced disappearances, various kinds of torture, massive rapes, and other forms of cruel and inhumane treatment of prisoners. Witnesses who came before the Tribunal also gave names of hundreds of victims who were executed without any due process. They described how these prisoners were held for as little as three days and executed by a firing squad or by hanging.

In addition there was testimony regarding various massacres that took place. The Jahrom Massacre was described as follows:

“After Mahmoud Vatanparast, the Governor of Fars Province, refused to rig the province’s parliamentary election results in 1980 in favour of Mohammed Behsarati, a losing candidate, the shari’ah leader of Jahrom ordered the murder of Vatanparast’s entire family from the pulpit of the mosque. Several family members where then summarily executed, including by crucifixion, defenestration, skinning alive, being cut into pieces with shears, and being dragged along the asphalt behind a moving van. Children as young as nine were arrested; others were incarcerated and then killed under torture or in the massacres of 1988. After inhabitants of Jahrom smelt a foul odour coming out of a canal, seventeen dead children were shortly found in the water.”[4]

During the Rasht Prison Fire, several inmates burned to death as guards would not open their cells to allow them to escape the flames. There were massacres in Kurdistan, where hundreds of Kurds were killed in an airport and children were executed in front of their schools.  The regime also used “pardon commissions” but it was commonly referred to as “death commissions.” Prisoners would be brought before the commission and questioned as to their religious/political beliefs. If the commission did not approve of their answer, the prisoners would be taken out and executed.

In its Findings, the Tribunal documented the perpetrators involved and the various locations where these crimes took place. In the Final Judgment  the Tribunal held that the “evidence tendered in these hearings supports a finding that crimes were committed by agents of the Islamic Republic of Iran, beginning with the Supreme Leader, and ending with the executions in the prisons and these constitute a breach of international law.”[5] It concluded that the Islamic Republic of Iran committed crimes against humanity during the 1980-1989 period.

Rios Montt Trial

The Iran Tribunal is not an isolated incident of victims demanding justice for the heinous acts of its leaders. In Guatemala, the road to bring Rios Montt to trial for his actions in 1982-1983 for genocide and crimes against humanity was a long one.

“Guatemalan victims’ organizations filed a war crimes case against the general in 2001, but it got stuck in the country’s legal system. Years later, under the principle of universal jurisdiction, the Spanish Constitutional Court accepted a case that had been brought by Nobel laureate Rigoberta Menchú charging Ríos Montt and seven other commanders with genocide, terrorism and torture. A tenacious lawyer named Almudena Bernabeu began the investigation. In 2006 a Spanish court issued arrest orders for the general and others, but the Guatemalan government denied extradition. When Ríos Montt was later elected to Congress, he gained immunity from prosecution. Then another extraordinarily brave woman stepped in. After Claudia Paz y Paz became Guatemala’s attorney general in 2010, she filed a case against Ríos Montt (after his term ran out) and two other military commanders on charges of genocide, torture and terrorism.”[6]

Although it has been many years since these events took place, the victims stopped at nothing to bring these perpetrators to justice. The Rios Montt trial is the first time a national court has prosecuted its own head of state for the crime of genocide.[7] The case is still on going as the latest information indicates that the case is moving on to the Sentencing Tribunal.[8]

International Humanitarian Law (IHL) makes it clear that it is prohibited to kill anyone who is not taking part in international armed conflict or internal armed conflict. Even if it is unclear if the situation is an armed conflict, human rights law forbids extrajudicial killing.[9] When violations such as these take place under IHL, the most common method in enforcing these laws is prosecuting individuals through war crimes tribunals.[10]

Whether or not a particular war crimes tribunal exists, has appropriate jurisdiction, or chooses to take action, states have a continued responsibility. “States are also bound to prosecute in their own courts any person suspected of having committed a grave breach of the Conventions, or to hand that person over for judgment to another state. In other words, perpetrators of grave breaches, i.e. war criminals, must be prosecuted at all times and in all places, and states are responsible for ensuring that this is done.”[11] IHL goes deeper in that “it requires States to seek out and punish any person who has committed a grave breach, irrespective of his nationality or the place where the offence was committed. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed.”[12]

So how does one reconcile that only some events in history are prosecuted and others neglected – especially when international law promotes universal jurisdiction? ICL cannot be taken seriously if it is selectively enforced. The problem is not a lack of laws to regulate unlawful conduct; it’s the lack of political will to take action.  The Iran Tribunal and the Rios Montt trial are symbolic indications of a growing movement. It is a movement opposing sweeping atrocities under the historical rug and creating accountability even when the political will to hold perpetrators accountable may not exist.