Condemned by Law: Assassination of Political Dissidents Abroad

The Iranian regime’s state-sponsored campaign of political assassinations abroad does not merely violate the criminal laws of the jurisdictions in which the crimes took place – it also implicates an array of international legal norms and obligations. This report aims to supplement the two previous reports, Murder at Mykonos: Anatomy of a Political Assassination (2007), and No Safe Haven: Iran’s Global Assassination Campaign (2008) in order to construct a powerful and comprehensive indictment of the Iranian regime’s assassinations abroad based on the rule of law.

 

Table of Contents

 

1. Executive Summary

Since 1979, high-level officials of the Islamic Republic of Iran, particularly those associated with the Ministry of Intelligence and Revolutionary Guards, have been linked to the assassinations of at least 162 of the regime’s political opponents around the world. The regime has vigorously and systematically pursued its state-sponsored campaign of terror in contravention of a host of domestic and international laws promoting peace and security and protecting the most fundamental of human rights: the right to life.

The Islamic Republic, and any individuals involved in the ordering, instigating, planning, aiding and abetting, or commission of these extrajudicial killings must be held to account for their actions. To the extent that the regime’s extrajudicial killings constituted serious violations of human rights law or international humanitarian law, it is incumbent upon all member states of the international community to prosecute the perpetrators of these crimes.

2. Preface

This legal report complements two earlier IHRDC publications documenting Iran’s statesponsored campaign of political assassinations abroad: Murder at Mykonos: Anatomy of a Political Assassination (2007), and No Safe Haven: Iran’s Global Assassination Campaign (2008). The two prior reports meticulously present facts surrounding the preparation, planning and commission of assassinations of political opponents of the Islamic Republic of Iran during a twenty-seven year period following the triumph of the Islamic Revolution in 1979. These reports reveal the operation of a sophisticated intelligence and security network designed to pursue and eliminate the regime’s critics wherever they sought refuge.

The regime’s campaign can be traced to nearly twenty countries around the world, from neighboring Pakistan and Iraq, to far-flung locations such as France, the Philippines and the United States. Victims specifically addressed in the two previous reports are but a sampling of the more than one hundred and sixty dissidents who dared challenge the clerical establishment’s grip on the country. The regime’s campaign of global assassinations is, therefore, essentially an extension of its consolidation of power within the country’s borders. It is an exercise in operational and psychological intimidation – a message to all dissidents seeking refuge abroad that the regime’s long reach is not limited by national boundaries.

The international community has slowly begun to hold the Islamic Republic accountable for its acts of violence on foreign soil. Since 1979, at least twenty officials, agents or proxies of the Islamic Republic have been tried and convicted of involvement in the orchestrated killings of Iranian dissidents and others abroad. Arguably, the two most significant prosecutions to date were the indictments surrounding the bombing of a Jewish cultural center in Buenos Aires in 1994, and the 1993-97 trial surrounding the assassinations, detailed in Murder at Mykonos, of several members of a Iranian-Kurdish dissident group in Berlin, Germany. In an unprecedented move, Argentinean and German prosecutors indicted high ranking officials of the regime, including former Ministry of Intelligence head Ali Fallahian, former President Hojjatoleslam Akbar Hashemi Rafsanjani, and former Foreign Minister Ali Akbar Velayati on criminal charges connected to the killings of these civilians.

To date, none of these high ranking officials has been brought to justice. Nonetheless, the Mykonos trial conducted in the aftermath of the Berlin assassinations exposed the Islamic Republic’s modus operandi and subjected the regime’s high ranking officials and criminal masterminds to judicial scrutiny for the first time. The trial revealed the intimate involvement of various organs of the Islamic Republic in the widespread and systematic assassination of dissidents abroad. Eye witness testimony and evidence compiled by various intelligence agencies around the world exposed a chain of command linking Supreme Leaders Ayatollah Khomeini and successor Ayatollah Khamenei to the agents charged with the actual commission of the killings abroad. At the heart of this operation were members of the Special Affairs Counsel, appointed by the Supreme Leader to spearhead the campaign to stifle political opposition abroad, and the regime’s security and intelligence ministries, the Ministry of Intelligence and the Revolutionary Guard’s Quds Force, an elite commando unit. Agents employed by the Ministry of Intelligence and the Quds Force were charged with the overall planning and implementation of the assassinations. In addition to employing Iranian agents, the regime also relied upon the assistance of its proxies and mercenaries such as Hezbollah in Lebanon. For this reason, the Mykonos trial provided an invaluable logistical and conceptual legal model for those seeking to expose the regime and its officials for its campaign of targeted killings committed abroad. The regime’s transgressions do not merely violate the criminal laws of the jurisdictions in which the assassinations took place – they also implicate an array of international legal norms and obligations. Viewed within this context, this report aims to supplement the two previous reports in order to construct a powerful and comprehensive indictment, based on the rule of law, of the regime’s state-sponsored campaign of assassinations abroad.

 

3. Status of Assassinations under International Law

Assassinations have historically been defined as politically motivated killings of heads of state, ministers or high ranking officials of nations or international organizations.¹ At their very core, however, assassinations involve the unlawful targeting and extrajudicial killing of any individual for political purposes.² More specifically, assassinations may be characterized as the unlawful targeting and politically motivated killings of individuals perpetrated in violation of the strict requirements of the right to self-defense, and in the absence of judicial due process.³ As such, assassinations violate the most fundamental and sacred human right – the right to life – and their commission is strictly prohibited pursuant to both domestic criminal laws and international law.⁴ This prohibition applies regardless of the label used to characterize or justify the killings.⁵

Although there is a surprising paucity of international treaties or conventions specifically defining or regulating “assassinations,”⁶ a host of existing international and domestic instruments expressly or impliedly prohibit the practice. Examination of these norms reveals that notwithstanding the lack of conventions specifically regulating “assassinations,” there is strong international consensus condemning the targeting and extrajudicial killing of individuals for political purposes.⁷ It is no surprise, therefore, that the regime’s campaign of targeted killings of political dissidents from 1979 to 1996 violates a host of international and domestic norms, ranging from domestic criminal laws to international human rights laws protecting the right to life.

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3.1. Legal Norms Prohibiting Assassinations

The term “assassination” is rarely defined or specifically discussed in international legal instruments.⁸ Aside from the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (New York Convention) and the Charter of the Organization of African Unity, there are no treaties or conventions regulating the practice of assassinations.⁹ Yet there are several international instruments and norms that prohibit conduct that qualifies as assassination. Examples of such instruments include the International Covenant on Civil and Political Rights and the Geneva Conventions, all of which expressly outlaw the extrajudicial targeting and killing of individuals.¹⁰ Other examples include the myriad international documents and agreements relating to the use of violence and aggression, which reveal the international community’s forceful rejection of extrajudicial killings as a tool of diplomacy.¹¹

Extradition treaties provide additional evidence of international norms prohibiting the commission of assassinations.¹² Extradition treaties do not inherently criminalize acts – they rely on bilateral or multilateral cooperation leading to the capture, arrest and return of alleged criminals to the jurisdiction in which they committed their offenses.¹³ Most extradition treaties include “assassination” under the definition of murder, which is a universally extraditable offense.¹⁴ Other bilateral treaties deal with assassinations as a separate extraditable offense.¹⁵ Notably, many extradition treaties include attentat¹⁶ clauses that preclude member states from

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rejecting extradition requests based on the political offense exception.¹⁷ The prevalence of attentat clauses in extradition treaties illustrates the degree to which assassinations are universally condemned by the international community.¹⁸

A survey of domestic legislation also reveals a long-standing prohibition on assassinations.¹⁹ Courts in the United Kingdom (U.K.) and the United States (U.S.) have shown particular sensitivity to the practice of state-sponsored assassinations.²⁰ Courts in the U.K. have consistently convicted and upheld harsh criminal sentences applied to conspirators of assassination plots.²¹ United States courts have adopted a similar view. Some of these rulings were issued pursuant to federal and state criminal laws specifically prohibiting the planning and execution of assassinations, murders and other acts of political violence on U.S. territory.²² Others were based on various civil laws²³ holding foreign officials and states liable for damages resulting from the assassination of government officials committed on foreign soil.²⁴ These decisions have not been limited to the targeting and unlawful killing of government officials alone. For example, after the 1980 assassination of political dissident Ali Akbar Tabatabai in Maryland, USA, Tabatabai’s assassin, Daoud Salahuddin, was charged by U.S. authorities with murder and unlawful flight after escaping to Iran.²⁵ Though the U.S. has not been able to try Salahuddin himself, several of his accomplices were charged with, inter alia, driving the getaway car and disposing of the murder weapon.²⁶ More recently, a U.S. district court awarded $12 million in compensatory damages to the family of murdered dissident Dr. Shapour Bakhtiar.²⁷ The civil suit was filed

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against the Islamic Republic based on various federal and state civil statutes ranging from the Foreign Sovereign Immunities Act to California tort law.²⁸

A considerable number of domestic prosecutions in Europe have also implicated the Iranian regime for its direct role in the planning and commission of assassinations of political dissidents abroad.²⁹ Several individuals involved in these assassination plots have been charged, tried and convicted for their responsibility in these murders. In 1994, three men connected to the 1991 assassinations of Dr. Shapour Bakhtiar and Soroush Katibeh were tried in the Paris Criminal Court.³⁰ One of their killers, Ali Vakili Rad, was sentenced to life imprisonment.³¹ Seyyed Massoud Hendi, who had vouched on behalf of the killers on their visa applications to France, was sentenced to ten years’ imprisonment for assisting in the murder.³² In 1996, a French court upheld the sentences of Mojtaba Mashhady and Hossein Yazdenseta for conspiracy to commit terrorist acts in connection with the 1990 assassination of Dr. Cyrus Elahi.³³ After his release in 2000, Mashhady was charged with “complicity in assassination in connection with an individual or collective undertaking with the aim of seriously disturbing the public order by intimidation,” though his trial ended with an acquittal for lack of evidence.³⁴ And in 1997, a German court issued a judgment in the case of five agents linked to the 1992 assassinations of four Kurdish leaders in Berlin.³⁵ The court also took the landmark step of issuing a warrant for Hojjatoleslam Ali Fallahian, who served as the Iranian Minister of Intelligence at the time, in recognition of the fact that he and other high ranking Iranian officials had masterminded and ordered the assassinations.³⁶ Authorities in Austria and Switzerland have made similar attempts to apprehend and prosecute those responsible for attacks within their jurisdictions, but these efforts have not yet resulted in any convictions.³⁷

3.2. International Law Applicable to Assassinations

Rules regulating the practice of targeted killings of individuals borrow heavily from two international legal regimes: 1) humanitarian law, which applies exclusively in times of international or internal “armed conflict,”³⁸ and 2) human rights law, concerned with the protection of fundamental rights for everyone at all times.³⁹ In concert with human rights treaties such as the International Covenant on Civil and Political Rights, the laws of war provide an

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uncompromising view favoring protection of the right to life.⁴⁰ In fact, the development of legal rules and norms surrounding assassinations owes much to the body of law known as humanitarian law.⁴¹ The Hague and Geneva Conventions represent the codification of the rules of war into treaty law.⁴² Many of the rules codified in these conventions reflect customary international law.⁴³

Under the humanitarian law regime, the deliberate targeting of civilians always constitutes an unlawful attack.⁴⁴ Civilians are accorded the highest level of protection under international law and only lose their “protected” status if they take direct part in hostilities.⁴⁵ It is undisputed that the targeting or killing of “protected persons,” even if they are combatants, amounts to a grave breach of the Geneva Convention and a violation of customary international law constituting a “war crime.”⁴⁶

Humanitarian law also recognizes an absolute ban on all “treacherous” or “perfidious” killings.⁴⁷ Treacherous killings are particularly invidious when they involve the targeting and killing of civilians. To the extent that a majority of, if not all, assassinations and (attempted assassinations) are committed through the use of treacherous means, they are deemed illegal under humanitarian law.⁴⁸ This ban on assassinations has been codified in both the Hague and Geneva Conventions,

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and has arguably elevated to the level of customary international law.⁴⁹ The existence of a prohibition against perfidious killings, even during times of “armed conflict,” highlights the degree to which international law frowns upon assassinations.

Unlike international humanitarian law, the human rights legal regime is not limited in applicability to violations perpetrated during “armed conflict.”⁵⁰ On the contrary, human rights law is concerned with the protection of fundamental rights for everyone, regardless of the victim’s status, the means used to expunge his or her fundamental rights or whether the violations occurred during times of peace or war.⁵¹ More importantly, international human rights laws vitiate claims of sovereignty which traditionally protect member states from monitoring and regulation of their internal affairs.⁵²

The integrity of the international human rights regime rests on two foundational documents: the Universal Declaration of Human Rights (Declaration)⁵³ and the International Covenant on Civil and Political Rights (Covenant or ICCPR).⁵⁴ The Covenant was adopted in 1966 and entered into force in 1976.⁵⁵ Unlike the Declaration, the ICCPR (and the companion International Covenant on Economic, Social and Cultural Rights) impose affirmative obligations on member states, including the duty to implement national legislation in order to “give effect to the rights recognized” in the treaty and the duty to provide “effective remedies” when violations of those duties occur.⁵⁶ Specifically, the Covenant requires all member states to “respect and to ensure to all individuals within [their] territory and subject to [their] jurisdiction” all rights recognized by the Covenant irrespective of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”⁵⁷ With more than one hundred signatories, the Covenant is the most significant and comprehensive instrument guaranteeing protections of international human rights.⁵⁸

Iran has ratified the ICCPR.⁵⁹ The Islamic Republic’s campaign of state-sponsored assassinations on foreign soil is merely an extension of the regime’s systematic persecution of political dissidents inside the country.⁶⁰ This persecution has taken many forms, ranging from the

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summary executions of thousands of jailed Mujahedin-e Khalq (MEK) and Tudeh Party members in 1988,⁶¹ to the assassinations of more than eighty intellectuals, political and social activists, and ordinary citizens inside the country during a ten year period from 1988 to 1998.⁶² It is uncontrovertibly clear that the regime’s campaign of extrajudicial killings, whether conducted domestically or abroad, violates customary law and the ICCPR’s guarantee of the right to life, enshrined in Article 6 of the Covenant.⁶³ To the extent that any of these killings occurred within the context of armed international or civil conflict involving Iranian military/security personnel, the regime’s actions may have also amounted to war crimes pursuant to the Geneva Conventions.

 

4. Relevant Instruments of International Law Prohibiting Assassinations

 

 

Iran’s campaign of political assassinations abroad triggers the applicability of several important legal instruments under international law. These instruments include but are not limited to international treaties, conventions, resolutions and declarations promulgated by the various bodies and agencies of the United Nations (U.N.), rulings by international courts and tribunals, holdings by national courts made pursuant to domestic legislation, and customary norms of international law. The most important of these instruments is the ICCPR. Examination of the rights and obligations provided by the ICCPR provides ample proof that the Iranian regime has persistently and systematically engaged in a campaign of extrajudicial murder that violates the most fundamental of all human rights: the right to life.

4.1. International Covenant on Civil and Political Rights (ICCPR)

As discussed earlier, the Covenant declares that all member states are required to “respect and to ensure to all individuals within [their] territory and subject to [their] jurisdiction” all rights recognized by the Covenant irrespective of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”⁶⁴ The beneficiaries of these rights are individuals.⁶⁵ In an important decision interpreting the jurisdictional applicability of the Covenant, the Human Rights Committee (Committee) held that the protections guaranteed by the Covenant are not limited to a state’s actions within its territorial boundaries.⁶⁶ Noting that

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it would be “unconscionable” to interpret the ICCPR provisions to permit states to perpetrate violations of the Covenant on the territory of another member state, the Committee ruled that a member state can be liable for the offending actions of its agents on foreign soil.⁶⁷ The International Court of Justice affirmed the Committee’s interpretation in a 2004 Advisory Opinion holding that the Covenant “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”⁶⁸

4.1.1. Duty to Protect Life

The bedrock principle of the Covenant is expressed in Article 6(1) of the document, which reads:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.⁶⁹

According to the Committee, the U.N. treaty body charged with monitoring ICCPR compliance,70 the right to life is “the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation.”⁷¹ The “inherent right to life” cannot be interpreted too narrowly, and member states must adopt positive measures aimed at “strictly control[ling] and limit[ing] the circumstances in which a person may be deprived of his life by such authorities.”⁷²

Implicit in Article 6’s prohibition on extrajudicial killings is the duty of member states to take effective measures to prevent the deprivation of the right to life.⁷³ This corollary duty is recognized by the Committee and various other international human rights courts, including the European Court of Human Rights.⁷⁴ The duty to prevent the deprivation of the right to life may be characterized by the concept of “due diligence,” an evolving principle of state accountability related to a member state’s affirmative obligations to ensure protection of the right to life (and other fundamental rights guaranteed by the ICCPR).⁷⁵ The Committee recognizes Article 6’s inherent duty to prevent requirements by noting that member states “should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary

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killing by their own security forces.”⁷⁶ The U.N. Human Rights Committee’s General Comment on the legal obligations of states party to the ICCPR also explicitly states that the continued failure to punish and prevent extrajudicial killings may constitute a crime against humanity.⁷⁷

The U.N. General Assembly has, on numerous occasions, addressed the prohibition on extrajudicial killings in unequivocal terms. In response to a continuous increase in the incidents of such killings, it passed a resolution in 1996 explicitly condemning the practice.⁷⁸ The language of the resolution “demands that all Governments ensure that the practice of extrajudicial … executions be brought to an end.”⁷⁹ The resolution also recognizes that all governments have an obligation to “conduct exhaustive and impartial investigations into all suspected cases of extrajudicial … executions.”⁸⁰ In addition to the U.N. General Assembly, the Special Rapporteur on Summary or Arbitrary Executions is specifically charged with the monitoring and regulation of Article 6(1) of the Covenant.⁸¹ By mandate, the Special Rapporteur may take action in cases of extrajudicial killings linked to attacks by “state officials, paramilitary groups, private individuals or groups cooperating with or tolerated by [a member state].”⁸² The Rapporteur’s mandate requires it to pay “special attention” to extrajudicial killings carried out against individuals engaged in “peaceful activities in defence of human rights.”⁸³ The Rapporteur also has a mandate to investigate breaches of the obligation to investigate alleged violations of the right to life and to provide adequate compensation to victims.⁸⁴ This mandate applies to all forms of extrajudicial killing, whether they take place during armed conflict, times of peace or in the context of “targeted killings” of alleged terrorists.⁸⁵

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Contrary to its obligations under the Covenant and its own constitution, Iran has consistently violated the Covenant’s guarantee of the right to life both inside and outside its borders.⁸⁶ Not only has the regime failed to prevent the commission of extrajudicial killings by its own security forces, it has actively encouraged these practices.⁸⁷ Such was the finding of the 1996 U.N. General Assembly resolution 51/107 addressing state-sponsored violence and extrajudicial killings perpetrated by the Islamic Republic of Iran.⁸⁸ Although the resolution was generally aimed at condemning human rights violations inside the country, it

deplore[d] the politically motivated continuing violence against Iranians outside the Islamic Republic of Iran, and urge[d] the Government of the Islamic Republic of Iran to refrain from activities against members of the Iranian opposition living abroad and the harassment of their relatives within the Islamic Republic of Iran and to cooperate wholeheartedly with the authorities of other countries in investigating and punishing offences reported by them.⁸⁹

In addition to U.N. resolutions, the Special Rapporteur has documented a number of extrajudicial executions committed by the Islamic Republic abroad in his reports in 1993, 1996 and 1997.⁹⁰ Along with numerous reports detailing the long list of state-sanctioned executions that fail to meet the most basic substantive and procedural due process standards,⁹¹ the Rapporteur’s body of work presents a forceful condemnation of the regime’s blatant disregard of the fundamental protections guaranteed by Article 6 of the ICCPR.⁹²

4.1.2. Duty to Provide Due Process Pursuant to a “Fair Hearing”

The Covenant’s Article 6 protections are inextricably linked to the member state’s duty to provide judicial due process before it limits, interferes with or otherwise extinguishes an individual’s right to life (or liberty).⁹³ The duty to provide judicial due process is reflected in Articles 6(2),⁹⁴ 9 and 14 of the Covenant.⁹⁵ These articles provide minimum guarantees designed to protect the pretrial, trial and post-trial rights of an individual during the indictment, arrest, charging, detention, conviction and sentencing phases.⁹⁶ It follows, therefore, that notwithstanding the veneer of judicial legitimacy attached to “executions” carried out by member states, any deprivation of the

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right to life that does not satisfy these minimum guarantees qualifies as an extrajudicial killing prohibited under international law.⁹⁷ Article 6 of the Covenant mandates that the death penalty may “only be carried out pursuant to a final judgment rendered by a competent court.”⁹⁸ Article 9 provides an overarching “right to liberty and security of person,” which prohibits arbitrary arrests, detention or deprivation of liberty by a member state or its security forces.⁹⁹ Any action taken to restrict an individual’s liberty and security of person must be taken in accordance with adequate substantive and procedural protections reflected in the established law of the member state.¹⁰⁰ These protections include the right to be informed of the reason for one’s arrest (during the course of one’s arrest) and the charges involved,¹⁰¹ the right to a hearing assessing the legality of the person’s detention,¹⁰² and the right to a timely trial before a competent court.¹⁰³ The Covenant’s Article 9 protections are primarily triggered during the pre-trial and detention phases of an individual’s criminal conviction.¹⁰⁴

Trial and post-trial guarantees provided to individuals under the Covenant are principally addressed by Article 14 of the Covenant.¹⁰⁵ Article 14’s protections may generally be characterized as requiring member states to provide “fair hearing” to all individuals charged with violations of criminal domestic laws.¹⁰⁶ The “fair hearing” principle addresses a variety of guarantees, including but not limited to equality (including equal access) before the courts,¹⁰⁷ the right to be presumed innocent until proven guilty,¹⁰⁸ the right to legal counsel,¹⁰⁹ the right to cross-examine witnesses¹¹⁰ and the right to appeal a verdict to a higher tribunal.¹¹¹ Additionally, the Covenant requires an individual to “be tried in his presence.”¹¹² This requirement generally prohibits the practice of conducting trials in abstentia.¹¹³ Such trials are only allowable in certain circumstances where the state makes “sufficient efforts with a view to informing the [accused person] about the impending court proceedings, thus enabling him to prepare his defense.”¹¹⁴

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Arguably, the most important guarantee articulated in the “fair hearing” principle enshrined in Article 14 provides that all individuals are “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” in accordance with international standards codified in the UN Basic Principles on the Independence of the Judiciary.¹¹⁵ The competence requirement necessitates that a member state’s tribunal exercise proper subject matter, territorial and temporal jurisdiction over the accused individual pursuant to established laws.¹¹⁶ A tribunal’s independence, on the other hand, assumes a separation of powers in which the courts and judiciary are institutionally insulated from improper interference and persuasion by other branches of government.¹¹⁷ Finally, impartiality requires that the judiciary conduct its proceedings fairly and free of bias regarding the ultimate outcome of the case.¹¹⁸

The Constitution of the Islamic Republic of Iran addresses some of the rights guaranteed by the due process and “fair hearing” protections of Articles 9 and 14 of the Covenant. For example, the Constitution provides for equality before the law,¹¹⁹ the swift charging of an arrestee pursuant to established laws,¹²⁰ judicial access and recourse to a competent court,¹²¹ the right to counsel,¹²² the right to sentencing (including execution) by a competent court¹²³ and the presumption of innocence.¹²⁴ The existence of these constitutional provisions signifies the regime’s attempt at compliance with Articles 2, 9, and 14 guarantees, and at least an implicit acknowledgment that the regime is bound by the “fair hearing” requirements of the Covenant. Yet notwithstanding these codified protections, there is overwhelming evidence that these enumerated protections either fail, in principle, to satisfy all the minimum ICCPR requirements, or that the relevant authorities willfully disregard the applicability of these provisions in practice.¹²⁵

Since 1979, the Iranian judiciary and members of the clergy loosely affiliated with it have sanctioned the killings of numerous political dissidents. The period directly following the downfall of the Shah’s regime was marked by the summary indictment, imprisonment, and often, execution of hundreds of political figures by ad hoc revolutionary courts.¹²⁶ In situations where

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the accused was not in custody or had fled the country, summary trials and death sentences were carried out in abstentia.¹²⁷

In addition to death sentences handed down by ad hoc courts, state-sanctioned killings were also endorsed by the judiciary’s ratification of fatwas. Over the past twenty-nine years, the regime has often relied on fatwas in connection with the execution or assassination of alleged “criminals” or enemies of Islam.¹²⁸ These decrees are usually issued by the Supreme Leader, or other high ranking members of the clergy who are often not members of the country’s civil court system.¹²⁹ Fatwas are self-executing – they compel official members of the judiciary and law enforcement (i.e. prosecutors) to issue legal decrees carrying out the death sentence, even if the “offender” resides outside the jurisdiction of the Islamic Republic.¹³⁰ As such, they are rarely, if ever, issued pursuant to the commission of an actual trial in abstentia conducted by an independent and impartial judiciary. Statements made by Ayatollah Khalkhali, the religious magistrate who accepted personal responsibility for the assassination of Shahriar Shafiq and sanctioned the killings of high ranking members of the former regime such as General Oveisi, reveal the degree to which Iran’s judiciary essentially acted as a rubber stamp for fatwas issued by the Supreme Leader.¹³¹ Other examples include the decree to assassinate Manouchehr Ganji,¹³² issued by the Prosecutor General of the Islamic Republic pursuant to a fatwa handed out by a high ranking cleric.¹³³

The regime’s practice of issuing fatwas (and accompanying assassination decrees) violates all of the “fair hearing” principles articulated in both the Covenant and the Constitution of the Islamic Republic. Notably, fatwas violate international standards regarding the competence, independence, and impartiality of tribunals in so far as they are issued by individuals who do not meet objective criteria related to the appointment, selection and functioning of civil judges, and often serve executive or legislative functions not related to the administration of the country’s civil judicial system.¹³⁴ Through the improper exercise of adjudicatory and enforcement jurisdiction, the regime seeks to do that which it either cannot do under proper legal channels or is prohibited from doing under international law.¹³⁵ The practice of issuing fatwas clearly violates an individual’s right to a trial, even if such is conducted in abstentia.¹³⁶

The judiciary’s heavy involvement in the regime’s state-sanctioned killings highlights the significant gap between the minimum fair hearing guarantees enshrined in Article 14 of the Covenant and the regime’s brand of justice. Specifically, an examination of the structure and function of the judiciary and its officials reveals a system that utterly fails to satisfy the competence, independence and impartiality provisions of the Covenant. It is not surprising, therefore, that over time the regime simply decided to abandon the charade of legitimizing its state-sanctioned policy of killing political dissidents through the judiciary, and instead resorted to a secret campaign of global assassinations orchestrated in large part by executive agencies such as the Ministry of Intelligence.

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4.1.3. Duty to Investigate, Punish or Otherwise Provide Remedies to the Aggrieved

Under Article 2(3) of the ICCPR, all member states are obligated to take measures to ensure that individuals have “effective remedy” pursuant to any deprivation of rights under the Covenant.¹³⁷ This remedy shall be provided for by “competent judicial, administrative or legislative authorities.”¹³⁸ This right to a remedy implies that states are obligated to investigate and prosecute violations of the Covenant.¹³⁹ In a series of cases, the U.N. Human Rights Committee concluded that Article 2(3) obligates government authorities to conduct investigations into alleged violations of the Covenant, including extrajudicial killings, executions and torture, and to bring to justice those responsible.¹⁴⁰ The duty to investigate and prosecute violations of the right to life has likely gained customary status in international law.¹⁴¹ While Article 2 of the Covenant explicitly requires member states to investigate and prosecute fundamental violations of the Covenant, the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary, and Summary codify international standards which must be complied with if the Covenant’s “effective remedy” principle is to be taken seriously.¹⁴² These standards address substantive and procedural norms related to both the implementation of investigations and the contour of legal proceedings leading to the prosecution of alleged perpetrators. With respect to the conduct of appropriate legal proceedings aimed at prosecuting alleged perpetrators, the Principles mandate that all persons identified pursuant to the investigations as having taken part in the extrajudicial killings be “brought to justice.”¹⁴³ “Fair and adequate compensation” must also be provided to the families of the victims “within a reasonable period of time.”¹⁴⁴ To date, the regime has initiated no investigations into the assassination and murder of its enemies on foreign soil. Not only has the regime rejected its own responsibilities under international law, but it has actively sought to frustrate the ability of foreign governments to effectively investigate the assassination of Iranian dissidents on their soil.¹⁴⁵ This is not surprising given mounting evidence suggesting the involvement of public officials connected to the Ministry of Intelligence, the Revolutionary Guard and other government agencies.¹⁴⁶ Regardless, the regime’s failure to investigate and prosecute those responsible for these crimes, and to provide “effective remedy” to the victims of such crimes, constitutes a violation of the Covenant and customary norms of international law.

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Furthermore, 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.¹⁴⁷ This negligence may also constitute a violation of Article 2 of the Covenant. A particularly egregious example of a European state’s negligence in fulfilling its Article 2 responsibilities is the woeful response of the Austrian government to the murder of Dr. Abdol-Rahman Ghassemlou, which drew sharp criticism from numerous domestic and international outlets.¹⁴⁸ As highlighted in the IHRDC’s underlying report on Iran’s campaign of foreign assassinations, the Austrian authorities’ negligence permeated all levels of the criminal investigation.¹⁴⁹ Despite contradictory statements given by the main suspects and preliminary conclusions reached by the Austrian Special Anti- Terrorism Unit strongly suggesting the involvement of high ranking regime elements, the two suspects were escorted to the airport by Austrian police and allowed to leave the country.¹⁵⁰ The preliminary conclusions reached by the Special Anti-Terrorism Unit were later bolstered by further evidence, and arrest warrants were eventually issued by the Austrian Public Prosecutor three months after the alleged suspects were escorted to the airport.¹⁵¹ When Dr. Ghassemlou’s widow filed suit against Austria alleging that the government willfully prevented authorities from promptly and effectively investigating her husband’s assassination due to improper political considerations, her case was dismissed for lack of jurisdiction.¹⁵²

France’s denial of the Swiss government’s extradition request of suspects allegedly involved in the assassination of Kazem Rajavi provides yet another striking example of a European nation’s probable violation of Article 2.¹⁵³ The denial came in the wake of a French court’s opinion affirming the legality of France’s extradition to Switzerland of two of the fugitives involved in the murder of Rajavi.¹⁵⁴ In denying the extradition request, the office of the French Prime Minister cited “reasons connected to [France’s] national interest,” suggesting that like Austria, France was in part concerned that compliance with its Article 2 requirements may lead to a terrorist response by the Islamic Republic.¹⁵⁵ Although France’s negligence did not implicate the investigation and judicial remedy requirements applicable in the case of Austria, its response likely failed to meet the general “effective remedy” objectives of the Covenant.

Like the Austrian reaction, France’s response casts serious doubts on the ability of some European governments to investigate or otherwise provide effective remedy in the wake of political assassinations and other acts of terrorism committed inside their territories. All governments directly affected by Iran’s campaign of political assassinations abroad must be held to account for any abrogation of their responsibilities under Article 2 of the Covenant. Condemnation should be particularly fierce where evidence suggests that these governments have willfully tainted the prosecutorial and judicial process by allowing improper outside influences or political pressures to affect the outcome of an investigation.

4.2. Other Guaranteed Rights

In addition to the critical protections provided by the ICCPR’s right to life, due process and remedies provisions, the Covenant provides guarantees protecting an individual’s freedom of thought,¹⁵⁶ expression,¹⁵⁷ assembly¹⁵⁸ and association.¹⁵⁹ These rights, like the right to life and fair hearing, are explicitly guaranteed by the Iranian Constitution.¹⁶⁰ It is incontrovertible, however, that the regime’s assassination of dissidents abroad violates all of these protections. In fact, the regime’s campaign of assassinations abroad highlights the critical link between the Covenant’s right to life and other fundamental rights such as the freedom of thought. The extrajudicial murder of political dissidents abroad is but an extension of the regime’s systematic persecution of political, religious and ethnic dissidents within the country. It is an exercise in operational and psychological intimidation – a message to all dissidents seeking refuge abroad that the regime’s long arm of “justice” is not and will not be limited by national boundaries.

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5. Legal Venues and Remedies

Iran’s global assassination campaign has unquestionably violated a multitude of domestic and international laws. In order to hold the regime, its officials and agents acting on its behalf liable for these violations, victims and prosecutors must pursue the proper legal channels. Given the transnational nature of the extrajudicial killings examined in this report, prosecutors and families of the victims have the option of choosing to pursue domestic or international legal channels in order to seek redress. This choice requires selecting the appropriate forum and ensuring that that forum has jurisdictional capacity to prosecute the perpetrators.

Additionally, the nature of legal remedies afforded must also be taken into account before prosecutors and victims select the proper forum. Remedies may range from international condemnation, imposition of sanctions against the Islamic Republic, damages awards or reparations directed at the state or individuals acting on its behalf, or judicial prosecution and conviction based on individual criminal accountability. Domestic or international channels may provide a mix of political and/or legal remedies, but only some of these remedies will directly benefit the victims of Iran’s campaign of assassinations. For example, international pressure may lead to the passage of a resolution by the U.N. General Assembly or Security Council condemning Iran’s actions pursuant to customary international or treaty law.¹⁶¹ Yet these resolutions, even if they provide for the implementation of a tough sanctions regime against the Islamic Republic, will likely fail to provide an “effective remedy” to the families of the victims. On the other hand, successful prosecution of a civil or criminal case against the regime or its agents, whether pursued in an international or domestic court, is more likely to benefit victims directly.

Notwithstanding this report’s primary focus on the international laws violated by the Islamic Republic, victims of Iran’s campaign of political assassinations abroad will most likely rely on domestic laws in their pursuit of justice. The reasons for this are readily apparent. Due to the extraterritorial nature of the killings, primary investigative and prosecutorial responsibilities will be assumed by the affected state pursuant to its exercise of territorial jurisdiction over crimes committed within its borders. Indictment and prosecution will, therefore, likely occur pursuant to the state’s domestic criminal laws. Moreover, most international courts or tribunals, such as the International Criminal Court (ICC) or International Court of Justice (ICJ), either lack jurisdiction over Iran’s actions or require the consent of the regime prior to exercising jurisdiction. Similarly, victims may have limited recourse in particular regional courts such as the European Court of Human Rights. But while prosecution in such courts may implicate the European governments’ negligence and allow recovery of damages awards, it will not lead to the punishment of those ultimately responsible for the extrajudicial killings. This is also the case for possible remedies provided by other non-judicial international channels, such as the U.N.

5.1. Jurisdictional Issues

Before victims of Iran’s campaign of global assassinations can qualify to receive legal redress, whether in the form of reparations from the regime or punishment of the alleged perpetrators, they must first pursue their case before a domestic or international forum empowered to exercise jurisdiction over the crimes committed. International law generally recognizes the exercise of five types of jurisdiction by domestic courts: territorial, national, protective, passive personality, and universal.¹⁶² On one end of the jurisdictional spectrum is territorial jurisdiction, which is unquestionably the strongest basis for the exercise of jurisdiction under customary international law because it is inextricably tied to the exercise of sovereignty.¹⁶³ On the other end, is the more controversial exercise of universal jurisdiction.¹⁶⁴ Since the end of World War II, the exercise of universal jurisdiction in connection with the prosecution of international crimes, which include war crimes, crimes against humanity, genocide, war crimes and torture, has steadily increased. Three of these four categories of international crimes are specifically addressed in treaties or conventions.¹⁶⁵ The fourth, crimes against humanity, has no treaty devoted exclusively to its regulation and criminalization, but has long been recognized as among the gravest crimes in international law pursuant to customary international law.¹⁶⁶

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The most common exercise of jurisdiction is territorial jurisdiction, which allows the courts of a state to exercise power over crimes and persons within the bounds of a particular geographic territory.¹⁶⁷ Territorial jurisdiction is unquestionably the strongest basis for the exercise of judicial jurisdiction under customary international law because it is inextricably tied to the exercise of sovereignty.¹⁶⁸ A state court’s legitimacy to prosecute and enforce laws is at its highest, therefore, when it is exercising its territorial jurisdiction. When the German judiciary arrested and tried five people involved in the Mykonos killings, it was acting on the basis of territorial jurisdiction, since the killings occurred in Berlin.¹⁶⁹ Nations that have territorial jurisdiction to try perpetrators of the assassinations detailed in No Safe Haven include Austria, France, Italy, Switzerland and the United States.¹⁷⁰

Territorial jurisdiction is not, however, the only recognized form of jurisdiction under international law. Nationality jurisdiction may be asserted by a state whose national is a suspect.¹⁷¹ Though nationality jurisdiction is often considered a subsidiary to territorial jurisdiction, it is nonetheless recognized as a legitimate doctrine falling within the purview of issues connected to the exercise of state sovereignty.¹⁷² Another form of non-territorial jurisdiction is passive personality jurisdiction, which allows a state to exercise jurisdiction when its national is a victim of a crime.¹⁷³ Finally, under protective jurisdiction, a state may claim jurisdiction over crimes that threaten its national security.¹⁷⁴

As has previously been stated, international legal standards usually discourage trials conducted in abstentia.¹⁷⁵ Therefore, although national and international tribunals often allow investigations and even indictments before the extradition and apprehension of suspects, they have generally required the physical presence and custody of a suspect before the launch of a trial.¹⁷⁶ The International Criminal Tribunal for Rwanda (ICTR), International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICC all require physical custody before suspects can be put to trial.¹⁷⁷ The successful exercise of jurisdiction is further complicated by the concept of immunity, which often serves to shield government officials or those carrying out official duties on behalf of a state from criminal prosecution in foreign courts.¹⁷⁸

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Given the transnational nature of the crimes perpetrated by the regime and its agents, affected countries such as the United States, Austria, Argentina, Germany, France, Iraq, Turkey and Pakistan may all exercise territorial jurisdiction over the assassination of political dissidents perpetrated within their borders. Many of these nations have in fact exercised such jurisdiction and either indicted or convicted Iranian officials or agents connected to the extrajudicial killings of civilians on their soil.¹⁷⁹ Conceivably, many of these same countries may also choose to exercise protective or passive personality jurisdiction as a basis for prosecuting suspects.¹⁸⁰ To date, however, such prosecutions of alleged perpetrators have not occurred. Moreover, given the intimate involvement of the Iranian regime in the planning and commission of the assassinations, it is unlikely that the Islamic Republic will exercise nationality jurisdiction over alleged perpetrators in order to prosecute and / or extradite them to the proper fora. Unless indicted individuals such as Fallahian, Rafsanjani, or David Belfield (aka Daoud Salahuddin) voluntarily leave Iran and enter the territory of a prosecuting state (or are extradited to the prosecuting states by third states), they will not be arrested and put on trial.¹⁸¹ In such cases, the only legal remedies available to prosecutors and victims may be civil in nature.

5.2. Criminal Prosecutions in Domestic Courts

In light of the many political and legal limitations imposed on international courts, tribunals, and international bodies such as the U.N., domestic courts will likely provide the best and most efficient avenue of legal redress to victims of Iran’s campaign of global assassinations. Victims pursuing prosecution of their cases in domestic courts have two options: to pursue criminal prosecutions of individuals directly or indirectly involved with the assassinations, or initiate civil proceedings implicating state action or individual tortious liability. From the perspective of accountability and retribution, criminal prosecutions are arguably the preferred method for dealing with the regime’s orchestrated campaign of violence against political dissidents abroad.

As detailed in IHRDC’s two previous reports, Murder at Mykonos and No Safe Haven, many courts, including those in Europe and the United States, have already initiated criminal proceedings against those alleged to be involved in the regime’s campaign of political assassinations within their territorial jurisdiction. In addition to domestic criminal prosecutions by states directly affected by Iran’s global assassinations campaign, however, other members of the international community may also seek to prosecute alleged perpetrators in their national courts based on the principle of universal jurisdiction. The request by a Spanish court for the arrest and extradition of Augusto Pinochet on charges of torture from the U.K. in 1998 set off a wave of interest in the prosecutions of international crimes based on universal jurisdiction. Since then, several European nations such as Spain, France, Belgium, the U.K. and the Netherlands have successfully prosecuted international crimes in their courts pursuant to the exercise of universal jurisdiction.¹⁸² Under the principle of universal jurisdiction, a state is entitled or even required to prosecute certain serious or grave violations of international law, irrespective of the location in which the crimes took place or nationality of the victims or perpetrators.¹⁸³ In other words, a state exercising universal jurisdiction has no ties to the territory or nationality of the victims or perpetrators.¹⁸⁴

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Central to the exercise of universal jurisdiction is the requirement that the alleged violators actually committed an international crime.¹⁸⁵ International crimes involve the commission of certain grave offenses in violation of treaty or customary law.¹⁸⁶ Any international crime committed within the territory of one member state victimizes not only those directly affected by the deprivation of fundamental rights, but the international community as a whole.¹⁸⁷ As such, all states are obligated to exercise universal jurisdiction in order to prosecute or extradite alleged offenders. This concept of the mandatory exercise of jurisdiction has been codified with respect to war crimes under the Geneva Conventions,¹⁸⁸ torture under the Convention Against Torture¹⁸⁹ and genocide under the Genocide Convention.¹⁹⁰ The codification, in turn, reflects customary law encouraging all states to prosecute or extradite international criminals pursuant to the principles of universal jurisdiction.¹⁹¹

Eight countries in Europe have passed domestic legislation allowing for the exercise of universal jurisdiction and the prosecution of international crimes. These countries are France, Belgium, Denmark, Germany, the Netherlands, Norway, Spain and the United Kingdom.¹⁹² Universal jurisdiction in the domestic courts of these countries may solely be exercised in the prosecution of international crimes, including war crimes, crimes against humanity, genocide and torture.¹⁹³ However, each state has made its own decision as to which of these crimes may be prosecuted in their domestic courts.¹⁹⁴ For example, France’s legislation only allows the exercise of universal jurisdiction for torture in connection with the Convention against Torture.¹⁹⁵ Similarly, Denmark and Spain only apply universal jurisdiction pursuant to their treaty obligations under the Convention against Torture and the Geneva and Genocide conventions.¹⁹⁶ Germany, Belgium, the United Kingdom and the Netherlands all allow the exercise of universal jurisdiction in connection with crimes against humanity.¹⁹⁷

To the extent that the Islamic Republic’s state-sponsored assassinations of political dissidents abroad constitute international crimes, any member of the international community may initiate judicial proceedings against persons allegedly responsible for the commission of these crimes. As will be explained, evidence suggests that the regime’s actions may be characterized as murder or persecution within the context of a crime against humanity.¹⁹⁸ Some of these assassinations may also constitute war crimes. Victims of Iran’s campaign of assassinations may, therefore, petition governments in Europe to initiate proceedings against high ranking Iranian officials implicated in these murders based on the commission of an international crime.

Yet significant legal barriers may delay or frustrate the successful implementation of criminal trials against Islamic Republic officials and their agents. For example, all eight jurisdictions above foreclose the option of prosecuting current state officials pursuant to the principles of immunity recognized by international law.¹⁹⁹ Many of the highest ranking members of the Islamic Republic implicated in the assassinations of political dissidents, such as Khamenei and Rafsanjani, continue to serve the regime in an official capacity and are thus immune from prosecution. Moreover, most of the jurisdictions require the suspect’s voluntary physical presence either before the initiation of an investigation or the issuance of an arrest warrant.²⁰⁰ Finally, some jurisdictions have instituted statutes of limitations on prosecutions of international crimes.²⁰¹ Despite these limitations, victims and human rights advocates must put pressure on all governments, including those in Europe, to exercise their obligations to prosecute all international criminals to the fullest extent of the law.

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5.3. Civil Remedies in Domestic Courts

Given the legal and logistical difficulties inherent in actually bringing alleged criminals to trial abroad, many families of victims of Iran’s global assassinations campaign have resorted to seeking money damages in European and U.S. domestic courts. An example of a civil remedy available to families of the victims of the Islamic Republic of Iran’s assassination campaign is the Alien Tort Statute (ATS).²⁰² The ATS allows an alien to sue in U.S. federal court for the commission of a tort committed in violation of the law of nations. ²⁰³ Under Sosa v. Alvarez-Machain, the alleged violation of the law of nations must be specific and well-established enough to compare with the three offenses recognized at the time of the drafting of the ATS in 1789: assaults against diplomats, piracy, and violation of safe passage.²⁰⁴ Extrajudicial killings are recognized as a violation of the law of nations that satisfies this standard.²⁰⁵ Although there is a requirement of state action,²⁰⁶ the perpetrators of Iran’s assassination campaign certainly acted pursuant to orders from Iran’s government officials.²⁰⁷

Until relatively recently, however, victims of state-sponsored acts of violence had little recourse to civil remedies in domestic courts because of the principle of sovereign immunity. Foreign states and their officials were generally immune from civil liability in many domestic courts.²⁰⁸ As a result, foreign states were rarely, if ever, held liable for causing injuries carried out by their agents or proxies, even if these injuries were perpetrated with criminal intent, unless it could be shown that the officials were acting outside the scope of government authority.²⁰⁹ Over the past thirty years or so, however, many states in the international community have begun to place restrictions on the concept of absolute sovereign immunity, and have created exceptions for certain activities for which their courts will exercise personal and subject matter jurisdiction.²¹⁰

For example, as early as 1976, the United States recognized the inapplicability of the Foreign Sovereign Immunities Act in circumstances where states engage in state-sponsored assassination of dissidents on foreign soil. In the case of Letelier v. Republic of Chile, a U.S. district court denied Chile’s sovereign immunity argument that U.S. courts lacked jurisdiction, reasoning that the Foreign Sovereign Immunities Act does not provide a defense from liability where a foreign state has ordered its agents to conduct an assassination or other act of political violence.²¹¹ In its holding, the district court assessed damages of approximately $4.9 million against Chile and certain agents and employees of its intelligence services who were found to have directed and carried out the assassination.²¹²

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Since Letelier, numerous other U.S. federal courts have imputed responsibility to states for the assassination of political dissidents carried out by the officials or agents of that state.²¹³ In Liu v.Republic of China, the court applied a combination of international and domestic laws to hold the government of Taiwan responsible for the assassination of a political dissident.²¹⁴ Taiwan was held liable despite evidence suggesting that the perpetrators of the murder held a personal grudge against the victim, and notwithstanding the government’s investigation, prosecution, and conviction of high ranking officials involved in the assassination.²¹⁵ Essential to the court’s holding was its reasoning that for purposes of immunity analysis, there is a distinct difference between an extrajudicial killing perpetrated inside a nation (which amounts to murder) and one committed on foreign soil.²¹⁶ The latter act violates the sovereignty of another state, and is therefore exempt from traditional notions of immunity recognized under international law.²¹⁷

Victims of Iran’s campaign of political associations and other forms of violence perpetrated on foreign soil have employed various civil remedies, particularly in U.S. courts. In recent years, a majority of these plaintiffs have relied on a combination of statutes including the Antiterrorism and Effective Death Penalty Act (AEDPA), the Torture Victims Protection Act (TVPA) and the ATS.²¹⁸ Compensatory and punitive judgments awarded as a result of these suits have run into the millions, with more than $400 million actually paid out.²¹⁹ Many of these cases implicate the regime’s sponsoring of terrorism through proxies such as Lebanese Hezbollah and Palestinian Islamic Jihad, while others are directed against the officials and agents of the Islamic Republic itself. An example is the civil case brought by the family of Cyrus Elahi against the Islamic Republic and its Ministry of Intelligence in U.S. courts in 2000.²²⁰ Before awarding the plaintiffs damages amounting to more than $310 million, the Elahi court noted that “every instrument and agreement that has attempted to define the scope of human rights has recognized a right to life coupled with a right to due process to protect that right.”²²¹ It noted that the Iranian government had “sought to eliminate any effective opposition to the clerical regime by engaging in the widespread assassination of dissidents both within Iran and abroad.”²²²

5.4. Crimes Against Humanity

Recent developments in the field of international criminal law have widened the legal avenues available to those seeking to hold violators of fundamental rights guaranteed under international human rights and humanitarian law to account for their actions. The establishment of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda, set up in 1993 and 1994 respectively, contributed significantly to these developments because criminal prosecutions were no longer strictly tied to or limited by the will of individual states to prosecute offenders pursuant to international treaties such as the Geneva Convention or the Convention Against Torture.²²³ The codification of many of the rules of criminal accountability pursuant to the Rome Statute, which established the ICC, provides further evidence of a shift away from traditional notions of state sovereignty and diplomatic immunity shielding alleged violators of human rights and towards a truly international system of individual accountability.²²⁴

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To date, customary international law recognizes four distinct crimes that rise to the level of “international crimes”: war crimes, genocide, torture and crimes against humanity.²²⁵ Pursuant to treaty obligations and customary international law, all states are obligated to exercise jurisdiction in order to prosecute or extradite alleged perpetrators of these offenses. While the Iranian government is not bound by the constitutive statutes of the ICTY, ICTR or ICC, it is not immunized from liability pursuant to the principles of international criminal law as reflected in customary law.²²⁶ Substantial evidence presented in No Safe Haven indicating the involvement of high ranking officials connected to the intelligence, security and other executive ministries of the Islamic Republic in the assassination of political dissidents abroad exposes these officials to criminal prosecution.²²⁷

The term “crimes against humanity” is defined in the Rome Statute of the ICC as one of the enumerated underlying crimes (i.e. murder, torture or persecution) carried out as part of a widespread and systematic attack directed at a civilian population.²²⁸ Pursuant to customary international law, war or “armed conflict” is generally not a required element of crimes against humanity.²²⁹ More importantly, crimes against humanity are treated as “international crimes” that may be prosecuted pursuant to the principles of universal jurisdiction.²³⁰ That is, they are crimes horrific and offensive enough to merit prosecution wherever the perpetrator is found.²³¹ Under customary law, prosecution or extradition of those responsible for crimes against humanity is the responsibility and obligation of all states in the international community.²³² This responsibility extends to the Islamic Republic of Iran, and any other state(s) directly or indirectly affected by the assassination and extrajudicial killings of Iranian dissidents abroad.

Murder has long been recognized as one of the underlying offenses of a crimes against humanity charge.²³³ Under customary law, prosecutors seeking a conviction for murder as a crime against humanity must establish: a) the actus reus (the underlying offense or prohibited act, in this case murder), b) that the act was committed as part of a widespread or systematic attack, c) that the act was committed pursuant to or in furtherance of a state or organizational policy,²³⁴ d) directed against any civilian population,²³⁵ and e) that the accused had knowledge of the attack.²³⁶ The prosecutor also must prove that the accused had the appropriate mens rea: intent to kill or inflict serious injury²³⁷ to the victim in reckless disregard of human life.²³⁸ Proof of premeditation is generally required, but the accused need not have premeditated the murder of a particular individual; it is sufficient that she had a premeditated intention to murder civilians.

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The most significant element of a crime against humanity charge is the requirement that an underlying offense be committed “as part of a widespread or systematic attack.”²³⁹ Criminal acts such as murder must be linked to crimes of a collective nature before individuals may be prosecuted and punished for perpetrating crimes against humanity. However, singular acts may constitute crimes against humanity as long as they occur as part of a wider and systematic campaign of terror and meet other relevant criteria.²⁴⁰ Pursuant to international law, “widespread” may be defined as “massive, frequent, large- scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”²⁴¹ “Systematic,” on the other hand, may be defined as “thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.”²⁴² There is no requirement that the policy be adopted formally as a policy of the state.²⁴³

The Iranian regime’s campaign of assassinations and extrajudicial killings ostensibly satisfies all of the elements of murder constituting a crime against humanity pursuant to customary international law.²⁴⁴ The extraterritorial killings may be characterized as both widespread and systematic. Victims of the regime’s state-sponsored killings number more than one hundred and sixty, all of whom were civilians at the time of their deaths. The numbers are considerably larger if the count includes the murder of dissidents and intellectuals inside the country’s borders. There is, in fact, no reason to distinguish between the regime’s extrajudicial killings of dissidents domestically or abroad – each individual killing is part of a thoroughly organized and deliberate policy of state-sponsored terror aimed at stifling political dissenters²⁴⁵ anywhere they are found. To the extent that the perpetrators of these crimes were either agents or ideological proxies of the regime’s intelligence, they acted knowingly and in furtherance of the state’s policy of eradicating political opponents abroad.²⁴⁶ Finally, all of the targeted killings were carefully planned and executed, and resulted in the unlawful deaths of their targets.

Accountability based on individual criminal liability allows for the arrest, conviction and punishment of individuals responsible for violations of fundamental human rights.²⁴⁷ Such accountability may be based on direct involvement in a crime, including the commission, planning, instigation, ordering or aiding and abetting of criminal conduct.²⁴⁸ Individual liability may also be established pursuant to the principle of command responsibility, which assigns liability for the failure of a superior to take necessary and reasonable measures to prevent or punish subordinates who perpetrated crimes of which the superior had knowledge.²⁴⁹ Application of this international principle of accountability, whether grounded in direct involvement or command responsibility, demonstrates that the Iranian regime, high ranking officials, agents associated with its security and intelligence apparatuses, and proxies willing to commit crimes on the regime’s behalf are all liable for serious and grave violations of international law.

Since 1979, at least twenty officials, agents, or proxies of the Islamic Republic have been tried, convicted and held individually accountable for their involvement in the murders of Iranian dissidents abroad. Many of these individuals were involved with the implementation and execution of the assassinations. Most of the high ranking figures that ordered or instigated the assassinations at the top of the command chain, however, remain at large. Individuals associated with the Islamic Republic’s Special Affairs Committee, Ministry of Intelligence and Revolutionary Guards from 1979 to 1996 should receive special scrutiny based on these agencies’ intimate involvement in the planning and commission of Iran’s campaign of global assassinations.²⁵⁰ Particularly noteworthy is the critical multi-functional role of the Ministry of Intelligence and its Special Operations Council, presented in depth by the IHRDC in its companion reports examining the murders of PDKI leaders Drs. Ghassemlou and Sharafkandi.

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Scrutiny should not, however, be limited to individuals connected to the aforementioned agencies. In 1996, the British Parliamentary Human Rights Group published a transcript of a tape recording of a telephone conversation between Mohammad Karim Nasser Saraf, a senior official in the Iranian Ministry of Post, Telegraph and Telephone, and an unnamed Iranian Foreign Ministry official.²⁵¹ The two were discussing the assassination of Mohammad Hossein Naghdi in Rome, suggesting that many high ranking officials including Iran’s Italian ambassador may have been informed of the assassination plans prior to their implementation.²⁵² Similarly, the French investigation and trial surrounding the murder of Bakhtiar revealed a complex network of secondary Iranian officials, such as Mohammad Gharazi, Amirolah Teimoury and Hossein Sheikh Attar, who were directly involved in the planning and commission of the former Prime Minister’s murder.²⁵³ Many of these individuals were identified as co-conspirators involved in providing logistical support for the foreign operations, including the facilitation of documentation allowing Iranian agents to enter and escape France.²⁵⁴

A person of particular interest is Hojjatoleslam Ali Fallahian, who served as the Minister of Intelligence from 1989 to 1997 and has already been implicated and indicted in connection with the assassinations of several dissidents abroad.²⁵⁵ Evidence presented in IHRDC’s previous reports indicates that Fallahian’s involvement was far more pervasive than his current indictment record would indicate. During the trial of suspects alleged to have been involved in the assassination of Cyrus Elahi in Paris, investigators determined that Fallahian had personally met with Mojtaba Mashhady, who was later sentenced to seven years’ imprisonment on a charge of conspiracy to commit terrorist acts in connection with Dr. Elahi’s murder.²⁵⁶ According to testimony delivered under oath, Ali Fallahian was personally involved in ordering the killings of Iranian dissidents in Paris.²⁵⁷ Some of these operations were eventually traced to proxies and agents of the Ministry of Intelligence and prosecuted in European courts.²⁵⁸ Others, like the 1991 murder of Abdorrahman Boroumand, a prominent founder and member of the National Movement of the Iranian Resistance, were never prosecuted.²⁵⁹ Fallahian’s statements after the fact provide further proof that the mens rea requirements for criminal liability were satisfied. In an interview for Iranian television in 1992, Fallahian stated, “we have been able to strike a blow at many of these opposition groups outside or close to our boundaries … The[y] suffered severe blows and their activities shrank.”²⁶⁰

While individual responsibility addresses criminal liability pursuant to a direct involvement in the preparatory or execution stages of a crime, command responsibility deals with indirect criminal liability based primarily on omission.²⁶¹ Command responsibility assigns liability for the failure of a superior to take necessary and reasonable measures to prevent or punish subordinates who perpetrated crimes of which the superior had knowledge.²⁶² As such, three elements must be proven before a person may incur superior responsibility: 1) the existence of a superiorsubordinate relationship between the accused and the perpetrator of the underlying offense; 2) the superior’s knowledge that the subordinate committed or was about to commit the crime; and 3) the failure of the superior to prevent the commission of the crime or punish the perpetrator.²⁶³

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Given the central role of the Special Affairs Committee and the Ministry of Intelligence in the assassination of dissidents abroad, there is a high likelihood that command responsibility could be imputed to many high ranking members of these two agencies. This is especially true of the permanent members of the Special Affairs Committee, which included the Supreme Leader, the President of the Republic, the Speaker of the Majlis, the Minister of Intelligence, and the heads of the Judiciary.²⁶⁴ This committee was responsible for spearheading the effort to silence opposition abroad by recommending individuals for assassination.²⁶⁵ Once the recommendation had been approved by the Supreme Leader, the committee would arrange for the Ministry of Intelligence or the Quds Force to carry out the assassination.²⁶⁶

In addition to the current Supreme Leader Ayatollah Ali Khamenei, high ranking individuals who may carry command responsibility liability for the commission of assassinations abroad include, but are not limited to: Akbar Hashemi Rafsanjani, Mohammad Reyshahri, Ali Fallahian, Mohsen Riza’i, Ali Akbar Velayati, Reza Seyfollahi, Ayatollah Khaz’ali, Hassan Rouhani and Ali Larijani. Although a particular member of the Committee may not have been directly involved in the murder of dissidents, it is likely that all members were aware of the Committee’s role in the killings of dissidents abroad. Individual members, therefore, probably had at least constructive knowledge that the extrajudicial killings of Iranian dissidents would be committed and failed to do anything to prevent the commission of the assassinations (or punish the perpetrators). Although it is unclear whether any individual member exercised effective control over the agents who ultimately executed the targeted killings,²⁶⁷ their positions as executive heads of agencies directly involved in the planning and commission of the assassinations strongly suggest the existence of a superior-subordinate relationship between them and the perpetrators of the assassinations. Further inquiry into the inner workings of the Special Affairs Committee is needed to establish whether individual members were criminally accountable pursuant to the doctrine of command responsibility.

6. Conclusion

It is the judgment of the IHRDC that Iran’s global campaign of political assassinations abroad amounts to a crime against humanity. The campaign evinced a widespread and systematic character and was directed at the highest levels of the Iranian state. More specifically, a number of leading regime figures including Supreme Leader Ayatollah Khamenei, Akbar Hashemi Rafsanjani, Mohammad Reyshahri, Ali Fallahian, Mohsen Riza’i, Ali Akbar Velayati, Reza Seyfollahi, Ayatollah Khaz’ali, Hassan Rouhani and Ali Larijani may all bear a direct criminal responsibility for these actions.

At present, there seem to be relatively few logistical (and political) avenues by which high ranking regime elements involved with Iran’s campaign of foreign assassinations can be brought to justice. Yet legal channels do exist. Domestic indictments and prosecutions, such as those leveled against former Iranian Intelligence chief Ali Fallahian in Argentina, Germany and Switzerland offer some hope, particularly in situations where the perpetrators of these crimes come within the jurisdiction of the countries concerned. Criminal prosecutions based on universal jurisdiction and customary norms, whether they occur in the domestic courts of a U.N. member state or as part of a future ad hoc tribunal charged with prosecuting and convicting high ranking Iranian officials responsible for crimes against humanity, also remain a possibility. In the absence of effective opportunities to secure criminal convictions, however, prosecutors and families of victims should continue to employ innovative civil legal strategies in order to hold the Iranian regime financially accountable for its actions.

To bring the perpetrators of Iran’s state-directed violence to justice requires great resolve and perseverance. It is the hope of the IHRDC that at the very least this report (and its companions No Safe Haven and Murder at Mykonos) informs, educates and inspires victims, human rights advocates, government authorities and members of the public to remain steadfast in their pursuit to bring the Islamic Republic to account for its violations of the most fundamental of human rights: the right to life.

7. Methodology

The legal analysis presented in this report is based on the facts collected and collated in two previous IHRDC reports: No Safe Haven: Iran’s Global Assassination Campaign and Murder at Mykonos: Anatomy of a Political Assassination.

It is the nature of intelligence services to shroud their actions in secrecy, to dissemble and deceive in their daily operations, and to work through covert organizations and proxies. The Iranian Ministry of Intelligence is no exception to this rule. Little definitive is known about the institutional arrangements governing its operation other than the bare bones laid down by statute. Much of the public commentary surrounding the Ministry’s activities is attributed to anonymous sources or is based on simple speculation. In this report, the IHRDC has sought to keep such speculation to a minimum and to rely only on sources who are prepared to stand behind their words.

IHRDC gathered information for this report from the examination of the following sources:

We have chosen to refer to the Vizarat-i Ittila’t as the Ministry of Intelligence, a literal translation of the Persian. Readers should, however, be aware that it is more often referenced in western sources as the Ministry of Intelligence and Security (MOIS) or by the acronym VEVAK.

All names of places, people, organizations, etc., originally written in Farsi have been transliterated using the system of the International Journal of Middle Eastern Studies (IJMES), available at http://assets.cambridge.org/MES/mes_ifc.pdf. Under the IJMES system, names of places with an accepted English spelling and names of prominent cultural or political figures may be spelled according to the English norm.

Where the report cites or relies on information provided by government actors or other involved parties, it specifies the source of such information and evaluates the information in light of the relative reliability of each source. The IHRDC has meticulously cross-checked all the sources of information used to compiled this report to ensure their credibility and accuracy.