December 20, 2023
A Swedish court just upheld the conviction of a former Iranian official. It’s a warning to all perpetrators of atrocity crimes.
In Stockholm on Tuesday, the Svea Court of Appeal upheld in all major regards the conviction of former Iranian official Hamid Noury for mass executions of political prisoners in Iran in 1988. Noury was convicted for the execution both of prisoners of the regime who belonged to the People’s Mojahedin Organization of Iran (PMOI) and of prisoners belonging to left-wing groups in Iran. The only real difference in the judgment was that the court did not find that all instances of murder of persons belonging to left-wing groups had been proven; it convicted Noury for the murder of twenty-four people that the prosecution had identified by name, but not for other people who could not be identified.
The verdict, which upholds a life sentence for Noury, is important in several regards. The judgment provides retribution for serious crimes, and it establishes an authoritative historical record of what happened in the 1980s. From a wider perspective, the judgment also conveys the message that perpetrators of atrocity crimes, regardless of where they are, should always fear that they one day may face justice.
The arrest of Hamid Noury
A disclosure is warranted, since the author has been involved in the case in two capacities. My first involvement was in the context of Noury’s arrest in Stockholm in November 2019, when he traveled to Sweden to settle a family dispute. Victims and persons acting on their behalf knew about this trip beforehand and contacted Swedish police seeking his arrest.
Two days before Noury’s arrival in Sweden, I, in my capacity as an international law professor, was contacted by lawyers acting on behalf of the victims, who told me that the police thought that the crimes were subject to the statute of limitations. It had been thirty-one years since the alleged acts, beyond the standard twenty-five-year limitation in Swedish law. I was asked to write a memo explaining why Swedish courts did still have jurisdiction, which I did the same day. The police appeared to have overlooked a legislative amendment in 2010, which in relation to murder, crimes against international law (war crimes), genocide, and terrorism provides that there is no statute of limitations. This amendment applied to all acts which were still subject to potential prosecution when the law was changed (2010), which includes Noury’s case. Second, at the request of the prosecution I wrote a memo and was heard during the trial before the district court on the legal classification of the alleged acts and elements of the alleged war crime required to reach a conviction.
The 1979 revolution and the Iraq-Iran war
The story of Noury’s crimes goes back to the 1979 Iranian revolution, to the establishment of the Islamic Republic of Iran and the ensuing struggle for power between different groups. The governing Islamic Republic increased its oppression of all opponents, including left-wing groups and PMOI. Basic political and civil liberties, such as freedom of speech and assembly, were denied and free media was banned. Wide-spread violence ensued and, in 1981, demonstrators belonging to PMOI were killed, which lead to PMOI attacking persons and buildings in Iran representing the Islamic regime.
The regime responded by arresting and executing opposition members. Some of the detained had been involved in violent protests, but not all. Many of the people arrested had participated in peaceful political activities, such as sharing leaflets, newspapers, or just making known their view of the situation in Iran. Members of PMOI and left-wing groups were convicted in summary trials, without due process. Many of those convicted became imprisoned solely based on their political views, making them prisoners of conscience.
An initially separate course of events started when Iraq attacked Iran in September 1980. When the leaders of PMOI in 1986 were deported from France, Iraqi leader Saddam Hussein allowed the group to establish an armed camp within Iraq. Toward the end of the Iraq-Iran war in July 1988, during peace negotiations and a forthcoming cease-fire, the armed wing of the PMOI conducted the military operation called Eternal Light against targets in Iran with the aim of overthrowing the Islamic Republic. The operation, which failed, was carried out in coordination with the Iraqi armed forces and supported by Iraq’s air force.
In August 1988, Iraq and Iran agreed on a cease-fire. Accounts collected after the conflict—which the Svea Court of Appeal has found to be proven fact—revealed that Ayatollah Ruhollah Khomeini, the supreme religious leader of Iran, issued a fatwa following the Eternal Light operation that led to the creation of special commissions. These commissions had instructions to execute members of People’s Mojahedin Organization of Iran as moharebs, or those who war against Allah, and left-wing activists as mortads, or apostates from Islam.
The Svea Court of Appeal found it proven that the Islamic Republic of Iran, during two separate periods in 1988, executed thousands of political prisoners. Noury was a government official complicit in these crimes as he was involved in selecting the prisoners, taking them to the hearing rooms and execution grounds, where the prisoners were hanged. The Svea Court of Appeal classified the executions of the PMOI prisoners as a crime against international law, or war crime, since they were committed in the context of the armed conflict between Iraq and Iran. The executions of the left-wing prisoners were classified as murder.
Legal controversies
The case raises several legal issues. The first is that the legal classification of the crimes is not obvious. The acts rather appear to be execution as a crime against humanity. However, Swedish law did not have crime against humanity in the books before July 1, 2014, and it cannot be applied to events retroactively. This created problems for the prosecution. They decided to prosecute the execution of PMOI prisoners as war crimes. This somewhat stretched the link between the Iraq-Iran war and the prisoners’ executions, since some of the prisoners had been detained since 1981, several years before PMOI moved their operations to Iraq and became involved in the war with Iran.
When I drafted my memo on the case for the prosecution, I was asked to consider whether the executions of the left-wing activists constituted genocide. Political groups are not protected by the Genocide Convention, but religious groups are. The idea that the prosecution wanted to entertain was that atheism is also a belief or conviction worthy of the same protection as a religious belief. I made such an argument in my brief (which is public subject to Swedish freedom of information legislation). At the end, the prosecution decided to prosecute the execution of the left-wing prisoners as murder, not genocide.
There is also the issue of jurisdiction. Quite late during the trial before the district court, the defense challenged the jurisdiction of Swedish courts. The reliance on universal jurisdiction—that is, for acts committed outside of Sweden without any connections to Sweden—had not really been tested in any of the previous war crimes trials in Sweden. The Noury defense was obviously inspired by the argument made in parallel war crimes proceedings at Stockholm district courts relating to alleged crimes in southern Sudan (the Lundin Oil case). Ultimately, the Supreme Court of Sweden ruled in Lundin Oil that Swedish courts could exercise universal jurisdiction, a ruling which the court in Noury followed.
Policy implications
What are the policy implications beyond the Noury case? First, states need to have legislation that allows for the prosecution of all of the core international crimes, including war crimes, genocide, and crimes against humanity based on universal jurisdiction. The prosecution should have powers to initiate investigations and prosecutions without being hampered by undue political interference, as long as the prosecution complies with rules on immunity and other international law obligations.
In addition, statute of limitations should not apply to these crimes. States need to fund, organize, and task the relevant law enforcement and prosecutorial authorities to allow for proper investigation and prosecution. The leading countries that have conducted the highest number of war crimes trials—besides countries where crimes have been committed—are the Netherlands, Germany, and Sweden, closely followed by France and Switzerland. They have all had the proper legislation and resources specifically dedicated in place for several years, which is now paying off in terms of the ultimate goal: to bring perpetrators of atrocity crimes to justice and hopefully deter future crimes.
States seeking to enforce international criminal justice also need to cooperate more not least because of Iran’s hostage taking policy, which also may play into the aftermath of the Noury case. Iran today holds several Western (among them two Swedes) hostages hoping to extract concessions, and media reports suggest that Iran wants to use these hostages as bargaining chips to free Noury from Swedish custody.
Such an exchange of prisoners for hostages would be permissible under Swedish law, provided that there is an agreement between Sweden and Iran. Beyond what is legally permissible, the dilemma raises difficult political and moral questions. There are robust arguments against an exchange deal, since Noury should face the consequences of his actions and Iran should not be encouraged to further engage in hostage taking. The obvious argument to enter into a deal is to free the hostages.
Even if Sweden and Iran make a deal for Noury, the trial serves an important purpose: It provides an authoritative historical record of the 1988 executions, a record that will prevail regardless.
Mark Klamberg is a nonresident senior fellow with the Atlantic Council’s Strategic Litigation Project.
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Image: Protestors celebrate the guilty verdict of Hamid Noury in Stockholm, Sweden, December 19, 2023. REUTERS/Johan Ahlander