The 1988 Mass Killing of Political Prisoners in Iran – A Crime Against Humanity *
Stefan Kirchner**

In the 1980s, a large number of political prisoners have been executed in Iranian prisons. A particularly noteworthy number of executions took place in the summer of 1988, when several thousand political prisoners were killed.[3] In the last years, efforts have been underway to ensure that these crimes are not forgotten. Due to the current political situation in Iran, it is highly unlikely that those responsible will be brought to justice by domestic courts anytime soon. Therefore a truth commission (the “Iran Tribunal”) is in the process of being created which will document at least some of the crimes.[4]
If the work of the planned truth commission is to serve as more than a reminder of these killings of political prisoners and if the work of the Iran Tribunal is to be more than a mere symbolic gesture, it has to be made clear which law applies. In particular does the question arise, if these killings amounted to crimes against humanity at the time they were perpetrated. Today, we have a large number of binding documents, most notably the Rome Statute of the International Criminal Court (ICC), and the statues of the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) as well as similar efforts ranging from Bosnia to Sierra Leone and Cambodia. Back in 1988, things were less clear. Lacking statutory norms, it was merely customary international law which could be applied, in principle based on the work of the Nuremberg Tribunal. According to the principle of intertemporal international law it is the law as it was back in 1988 when the killings happened which has to be applied to the case at hand.
Although the lack of information, let alone the limited available space, does not allow us to get into the details of every case involving the 31 August 1988 killings, we can ask the question whether the killing of civilian political prisoners who were not part of an armed struggle against the Islamic Republic of Iran amounted to a crime against humanity under the international rules which applied at that time.
To answer this question, we need to look at what constituted a crime against humanity in 1988. Nowadays, Art. 7 of the Rome Statute establishing the International Criminal Court is clear as to what crimes against humanity are, but back in 1988, this crime was less defined. Lacking a statutory norm, it therefore is the customary law of the time between Nuremberg and Yugoslavia and Rwanda Tribunals and the International Law Commission’s (ILC) 1996 Draft Code of Crimes against the Peace and Security of Mankind[5] which applies to the 1988 mass killings. This customary law is reflected in the 1954 ILC Draft Code of Crimes against the Peace and Security of Mankind by the International Law Commission:[6]

“Article 1
Offences against the peace and security of mankind, as defined in this Code, are crimes under international law, for which the responsible individuals shall be punished.

Article 2
The following acts are offences against the peace and security of mankind: [...] (11) Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities.”[7]

These conditions have been fulfilled in the case of the 1988 murders of civilian political prisoners who have not been involved in an armed struggle against the Iranian government. Therefore these killings amount to a crime against humanity under international law with the consequence that, under the doctrine of universal jurisdiction, every state can prosecute suspects for crimes against humanity – also under the law which applied in 1988. In fact, the notion of universal jurisdiction is not only not new, it also informed the 1949 Geneva Conventions and was behind the 1961 apprehension of Adolf Eichmann.[8]
Given that many states have statutes of limitation (although many states do not apply those to murder cases) and given that with the passing of time both suspects and witnesses pass away and it becomes more and more difficult to obtain reliable information from witnesses, it is crucial that these crimes are documented in as much detail as possible and that prosecutions are started in order to bring those responsible to justice. Even though the domestic situation in the Islamic Republic of Iran is currently not conductive to the initiation of criminal proceedings, it is necessary to collect information now before it is too late.
The Iran Tribunal project aims at collecting this information. Based on the desire of victims’ families for justice, a non-governmental group has been established (which is supported by this author) with the aim of creating a truth commission and a tribunal to deal with the 1980s crimes against political prisoners in Iran. Even though it is “only” a non-governmental project, the Iran Tribunal can provide an important step towards justice for the victims of the Iranian regime. Other examples have shown that it often takes many years for victims of large scale crimes to get at least some degree of justice. Therefore the project’s lacking legal mandate is not a problem at the time. Rather, it has to be kept in mind that international criminal law institutions usually do not achieve tangible successes overnight. The Iran Tribunal should be supported wholeheartedly in its function as a truth commission and for paving the way for justice. It is up to the international community to ensure that these crimes are not forgotten while it is up to the Iranian people to establish the domestic conditions necessary to prevent such atrocities in the future. While the protests of 2009-2010 have essentially failed and the current revolutions in the neighboring Arab world have not spread to Persia beyond a few protests,[9] the country has the potential to shake off the shackles of oppression. Creating awareness of the continuing and manifold crimes of the regime both inside Iran and abroad is one step in this direction.