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Dr. Ghassemlou’s Assassination: A Case for
Taking International Legal Action
17.7.2012
By Soraya Fallah & Cklara Moradian
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Ekurd.net |
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In
memory of Dr. Ghassemlou, July 13
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.
Work Cited:
1. http://www.carolprunhuber.com/aboutcarol.html
2. http://www.carolprunhuber.com/thebook.html
3. http://www.udhr.org/udhr/default.htm
4. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en
5. http://www.adh-geneva.ch/RULAC/international_treaties.php?id_state=109
6. http://sim.law.uu.nl/SIM/Library/RATIF.nsf/f8bbb7ac2d00a38141256bfb00342a3f/aea7f3ff43e97d99c12568b7004480ea?OpenDocument
7. http://www.humana-global.org/currently-debated-rights/57-cultural-relativism-moral-relativism-and-moral-universalism.html
8. http://www.right-to-education.org/country-node/440/country-constitutional
9. http://www.un.org/law/icc/index.html
10. http://untreaty.un.org/cod/icc/index.html
11. http://www.globalaffairs.es/en/the-international-criminal-court-%E2%80%93-limitations-upon-prosecuting-crimes-against-humanity/
12. http://www.amnesty.org/en/library/asset/MDE13/088/2008/en/f45865e9-5e3e-11dd-a592-c739f9b70de8/mde130882008eng.html
13. http://www.iranrights.org/
14. http://www.irantribunal.com/English/EnHome.html
15. http://en.wikipedia.org/wiki/International_Federation_of_Human_Rights
16. http://www.zoominfo.com/people/Lahiji_Abdolkarim_48670368.aspx
17. http://www.uspolicy.be/headline/fact-sheet-us-accomplishments-un-human-rights-council
18. http://untreaty.un.org/cod/icc/STATUTE/99_corr/cstatute.htm
19. http://www.icj-cij.org/
20. http://www.unictr.org/
21. http://ijrcenter.org/international-criminal-law/icty/
22. http://www.globalpolicy.org/international-justice/universal-jurisdiction-6-31.html
23. http://www.amnesty.org/en/international-justice/issues/universal-jurisdiction
24. http://www.cfr.org/iran/iran-nuclear-negotiations/p7730
25. http://www.responsibilitytoprotect.org/
26. http://www.un.org/en/documents/charter/chapter4.shtml
27. http://www.iranhrdc.org/english/publications/reports/3154-condemned-by-law-assassination-of-political-dissidents-abroad.html?p=18
28. http://www.iranhrdc.org/english/publications/reports/3152-no-safe-haven-iran-s-global-assassination-campaign.html
29. http://www.iranhrdc.org/english/publications/reports/3150-murder-at-mykonos-anatomy-of-a-political-assassination.html
Work Consulted:
http://ijrcenter.org/services/online-resources/international-criminal-law/
http://www.iranrights.org/english/library-143.php
http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/emint10&div=35&id=&page=
http://www.un.org/events/humanrights/udhr60/declaration.shtml
http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en
http://www.globalpolicy.org/component/content/article/163/29411.html
Soraya Fallah is a lifelong Women and Human
Rights activist, and a researcher of Kurdish origin
from eastern Kurdistan, currently residing in the
United States.
Cklara Moradian is a Kurdish-American
activist, writer, spoken-word artist, poet and
columnist. Conceived and raised by human rights
advocates and survivors of the notorious prisons of
the Islamic Republic of Iran, she is a Philosophy
student at California State University Los Angeles.
Copyright
© 2012 Ekurd.net
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