Dr. Ghassemlou’s Assassination: A Case for Taking International Legal Action
July 17, 2012
Dr. Ghassemlou was assassinated before he could achieve his political goals. He believed in non-violence, human rights, and the advancement of all oppressed nations in Iran.
His untimely absence and subsequent leadership vacuum was followed by a brutal campaign by the Iranian government. History has shown that his murder took the Kurdish people back many steps. The democratic process and the goal of autonomy also fell back.
June 1989, after Ayatollah Khomeini’s death, the KDPI was informed that Islamic Republic of Iran is willing to resume negotiations and find a speedy resolution to the Kurdish situation. Dr. Ghassemlou accepted this without conditions. He even compromised his preferred meeting place (which was Paris) to Vienna. He did not suspect the Iranian agents for their choice of country. In fact, Dr. Ghassemlou and Abdollah Ghaderi-Azar attended the negotiations without taking any security precautions. He was executed while planning for a peaceful solution to securing Kurdish rights in Iran.
Perhaps his willingness to meet the Iranian agents under such suspicious and unsafe conditions stems from his trust in the goodness of all people and his conviction that there is hope in diplomacy. He was so pure in his belief that human beings could come face to face and negotiate rather than fight that he was blinded to the brutality and faithlessness of the Iranian government. He wanted a peaceful solution to the Kurdish suffering, so much that he jeopardized his own safety. He was ahead of his time and ahead of most traditional leaders in the region. He had a democratic and humanistic vision and this perhaps made him vulnerable to the coldblooded acts of the Iranian government. There is no way to know where Kurdish people would be if he was not killed. How much further ahead or how much more free we would have been, but it is clear that his spirit is alive in every human being who advocates for human rights and dignity.
Due to the fact that the Kurds can enjoy the expertise of Mrs. Carol Prunhuber and her extensive knowledge of the life and untimely murder of Dr. Abdul Rahman Ghassemlou , we have chosen to skip biographical summary of his life from my paper. In the interest of time, We have also omitted retelling the horrific events of July 13 1989. Instead, WE are going to focus on legal issues relevant to his assassination, that are also applicable to other gross human right crimes committed by the Islamic Republic of Iran.
Links, resources, and documents sited in this paper is available upon request or after publication.
Part One: Signed but Ignored; Meaningless Signatures and Non-Adherence
First, contrary to popular belief, the Islamic Republic of Iran is not a signatory to the most important UN conventions, including the non binding declaration known as the Universal Declaration of Human Rights (UDHR). In 1948, when the declaration was adopted, Iran voted in favor of its passage, and subsequently on Jun 24th, 1975 signed “The International Covenant on Economic, Social and Cultural Rights,” which is the legally binding agreement based on the Universal Declaration of Human Rights . However, these treaties were ratified prior to the 1979 revolution. According to the Geneva Academy of International Humanitarian Law and Human Rights, Iran has ratified only five International humanitarian law and human rights treaties since the revolution, and has made significant reservations to a number of them. For example, according to official documents, the Islamic Republic of Iran has included the following reservations before ratifying binding documents: "The Government of the Islamic Republic of Iran
reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect." Records of atrocities taking place in Iran under the name of Islamic Law is proof that the above statement simply means that the Islamic Republic of Iran can choose not to abide by International laws when convenient and as they see fit. In 1982, the Iranian representative to the United Nations, Said Rajaie-Khorassani, said that the Universal Declaration of Human Rights was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. It is safe then to argue that this statement basically means that the current leadership in Iran considers International treaties signed prior to the revolution nulled.
And since
“The international legal system has the state at its centre: the state ratifies treaties and thereby obliges itself to respect, protect and fulfill certain human rights. And it is the state that must report on its own implementation and who can be “named and shamed” in public for not doing so. Treaties specify mechanisms for how the international community can hold the state to account, frequently through exerting pressure from above, and therefore such mechanisms can be very powerful. However they can also become overtly politicized at the UN or regional fora. It is the challenge of campaigners and the courts to place this power in the hands of those whose rights have been violated by the state.”
Simply put, International conventions, signed, ratified or abstained have little practical value when the state chooses not to abide by these International mechanisms.
What is the solution then? How are international laws enforced and by whom? Does this mean that the IRI can continue to carry out atrocious crimes in impunity and without scrutiny from the International community?
Part two: Conviction in the Face of Limitations
There are some possible International institutions that Kurds can and should appeal to in order to achieve the goal of justice for Ghassemlou’s execution and other such criminal acts. Even if a tangible resolution is not found, a trial is necessary to prevent these crimes from being committed in obscurity. Despite the statute of limitations for retroactive wrongs, and the shortcoming of International jurisdiction in prosecuting extrajudicial assassinations, it is important to note that if argued effectively human right standards and international common law can be used to seek legal retribution.
Theoretically and philosophically, the limits of International law are enormous. In practicality, geopolitical interests, economic ties, and strategic alliances make reaching justice difficult, if not outright impossible. With that in mind, it is incredibly important for the Kurdish leadership, scholars, advocates, activists, lawmakers, researchers, and students to persistently pursue, push, and demand legal avenues for investigating, documenting, and prosecuting those responsible for the murder of Dr. Ghassemlou.
Possible Avenues for International legal action:
Many Kurdish people have wondered if the crimes committed by the Islamic republic of Iran can be prosecuted by the highest courts of International law. We have tried to explore this idea while being mindful of the challenges posed by these international bodies.
International Criminal Court (1998 Rome Statute)
The ICC, which is an International criminal court, began to operate in 2002 and has a mandate to try cases involving war crimes, crimes against humanity, and genocide.
Unfortunately, at the moment extrajudicial assassinations or state-sanctioned targeted attacks are not categorized as “war crimes, crimes against humanity, and/or genocide.” Advocates must argue that Dr. Ghassemlou’s assassination, in addition to the hundreds of other murders, executions, disappearances, rapes, discriminations and violations are part of a systematic, deliberate, planned, and premeditated campaign against the Kurdish population. According to the ICC, “Crimes against humanity encompass serious attacks on human dignity or a grave humiliation or degradation of human beings. The Rome Statute requires that these should be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (see article 7 of the 1998 Statute of the ICC).” The Islamic Republic of Iran can always claim that they did not have ‘knowledge of the attack’ and were unaware that they were contributing to a widespread or systematic crime.
A body of evidence, such as eye witness accounts, expert testimony, and documents presented by Amnesty International and other credible organizations, would need to prove that the state is actually intending to commit “Crimes against Humanity.”
The ICC is a last resort and created to prosecute the most serious of crimes; therefore, it does not oversee individual cases of repression, no matter how consequential. This is not simply a burden faced by Kurds but rather all dissidents from Iran. Organizations such as The Abdorrahman Boroumand Foundation are trying to document the 1980’s massacre of political prisoners as the Islamic Republic of Iran's Crimes against Humanity.
Dr. Abdolkarim Lahiji, vice president of the International Federation of Human Rights Leagues has attempted to bring an international case against the IRI since the creation of the Rome Statute. Dr.Lahiji worked extensively to document and investigate the assassination of Dr. Ghassmlou. It might be possible to present a stronger case if the assassinations were brought forth along with other instances of aggression in order to demonstrate that the Iranian government lacks regard for human dignity and the right to life.
The most significant challenge in bringing a criminal case before the court is the jurisdictional reach of the ICC, which can only prosecute crimes taken place within signatory nations or prosecute a person who committed such crimes within the boundaries of a signatory nation. This simply
means that unless the crimes perpetrated against the Kurds took place in a country like the Netherlands,www.ekurd.net the court would not be able to prosecute the case. The court then becomes entirely arbitrary because leaders of non-signatory nations like the IRI can commit crimes within their territory without fear of prosecution. Only if the UN Security Council refers a case to the ICC, can the court prosecute a non-signatory nation. Being able to convince the UN Security Council to take such profound action against the Islamic republic is not an easy task, especially because the process is highly politicized by the permanent members of the council.
According to the recent report by the UN Human Rights Council “took bold, assertive action to highlight Iran’s deteriorating human rights situation by establishing a Special Rapporteur on the Human Rights Situation in Iran. The rapporteur will investigate and report on abuses in Iran and call out the failure of the Iranian government to meet its human rights obligations.” This assertion has not resulted in any tangible condemnation of the Iranian government.
Despite increased diplomatic pressure on Iran, including sanctions, IRI has refused to cooperate or allow inspections of state prisons. The politics of nuclear negotiations has complicated the International communities’ commitment to human rights.
Even if, against all odds, the Security Council decided to bring a case against Iran at the ICC, there would be the issue of domestic vs. international prosecution. The ICC “is intended to complement existing national judicial systems and can exercise its jurisdiction only if national courts are genuinely unwilling or unable to investigate or prosecute such crimes.” (Article 17 of the 1998 Rome Statute of the ICC) Advocates would have to argue that the IRI’s judicial system is incapable of carrying out an unbiased investigation into allegations of human rights abuse due to the simple fact that courts and judges in Iran are arms of the system’s executive branch and operate based on their interpretation of Sharia law. The Court’s legitimacy is wholly dependant on the cooperation of states, which is rarely, if ever present.
The basis of most International law revolves around the notion of statehood and state rights. The Islamic Republic of Iran argues that they are not operating outside the state’s existential imperative to condemn activity they perceive as threats to national security. Although this is controversial and in serious need of revision, the burden of proof will fall on the victims, who are in this case members of a stateless people without protection or representation at the United Nations. Lack of statehood is also precisely why Kurds are not able to bring forth a case before the International Court of Justice (ICJ). “This court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.” Since ethnic and religious communities are not considered nations, they do not benefit from the protection of the ICJ.
Other avenues of international criminal investigations and prosecutions are “ad hoc tribunals” such as the International Criminal Tribunal for Rwanda or the International Criminal Tribunal for the former Yugoslavia. Ad hoc tribunals; however, have a statute of limitation, which means they are subject to time and location constraints. Thus they cannot prosecute retroactively. Although the “low-intensity” war against the Kurdish population in Iran is continuous, many of the most horrendous acts were carried out within the first two decades of the Islamic republics’ birth. These acts should not go unpunished and therefore an ad hoc tribunal, for example, an investigation into the crimes after the 2009 election, will not sufficient.
Two other possible avenues for justice:
A.
Advocates can seek to bring forth a criminal case against the Islamic Republic of Iran at a domestic superior court of countries, who take on such cases. Although this is historically a rare occurrence, there is precedence for seeking this legal route. Courts in Spain have been famously involved in international cases. This is based on the principal of “universal jurisdiction,” which states “that any national court may exercise criminal jurisdiction over serious crimes against international law—such as crimes against humanity, war crimes and torture—based on the principle that such crimes harm the international community (or order) itself, which individual States may act to protect.” According to Amnesty International “since the end of the Second World War, more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law…[and] have extradited persons to countries for prosecution based on universal jurisdiction."
Convincing a third party country to take on a controversial case against the IRI at a domestic court is nearly impossible due to each country’s economic, political, and security concerns. Instead, advocates might need to make a strong case for the inclusion of human right demands as a bargaining chip during nuclear negotiations with Iran.
B.
A relatively novel but increasingly prominent idea in International law is the RESPONSIBILITY TO PROTECT ("RtoP" or "R2P"), which is a “new international security and human rights norm or set of principles based on the idea that sovereignty is not a privilege, but a responsibility. RtoP focuses on preventing and halting four crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing, which it places under the generic umbrella term, "Mass Atrocity Crimes"” Although RtoP is not a law, it does provide a “framework for using tools that already exist (like mediation, early warning mechanisms, economic sanctioning, and chapter VII powers) to prevent mass atrocities.”
Kurdish advocates can use these concepts to indicate the need for greater international scrutiny and pressure on the Islamic Republic of Iran, arguing that not doing so will allow for the continuation of an already dire condition for the Kurdish population amounting to “Mass Atrocity Crimes.” Since both concepts are criticized as infringements on State sovereignty, a very strong campaign would be needed to convince the international community to act.
On a Final Note: Atrocity, Impunity, and Complicity; an International Collaboration
The leniency shown by the International community in the face of IRI’s crimes is a reflection of powerful political agents, which often override the demand for justice. Accurately pointed out by the Iran Human Rights Documentation Center “there is substantial evidence suggesting that the
governments of several European states were negligent (if not reckless) in fulfilling their duty to provide “effective remedy” following the murder of Iranian dissidents within their jurisdiction.”
The evidence that Dr. Ghassemlou’s murder was an unlawful execution by members of the Iranian government is overwhelming. Since Dr. Ghassemlou’s murder, there have been dozens if not hundreds of well documented but unresolved extrajudicial executions in the Diaspora. The 1992 Mykonos restaurant assassinations of Kurdish leadership is further evidence that the Islamic Republic of Iran is systematically targeting Kurdish intellectual and political figures in order to suppress Kurdish ambitions. All this is taking place outside of Iran, in the sovereign soil of another nation, with ease and anonymity.
What is perhaps most tragic about remaining silent in the face of state sanctioned crimes is that we leave people without any place of safety or sense of security. Dissidents and political refugees seeking asylum abroad find themselves unable to reach peace. They are faced with the reality of a life full of fear, intimidation, terror, extortion, and even death. Many have witnessed their colleagues disappear or their property arbitrarily destroyed. To treat these crimes as isolated and negligible acts would be to entirely diminish the importance of human rights. It leaves citizens of every nation at risk and open to attacks by countries that choose to live outside the law. If State sovereignty is important to Iran, it should also be important to nations where these attacks are taking place. What must be loudly and clearly communicated to the world is the fact that impunity for crimes perpetrated by the IRI is not just a Kurdish issue but rather an International threat. Crimes like these should be looked at as an International crisis that merits direct and swift action. The fact that Iran has been able to carry out such crimes for 30-some years without consequences, diplomatic or otherwise, should be considered a crime of complicity.
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