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February 28, 2010

A Blueprint for Ending Human Rights Abuses in Iran


The full version of this article appeared in the Harvard International Review.

In a context where Iran faces the most intense political unrest since the founding of the Islamic Republic in 1979, the increasing anxiety felt by hard-liners in Tehran creates a highly ominous environment where continued violence against defenceless citizens who choose to exercise their constitutional right to peacefully protest can be expected. Undeterred and steadfast, the Iranian ‘Green Movement’ in its trademark peaceful pursuit of civil liberties and political reform will no doubt continue to renew its demands on the government. For its part, the latter is busy bolstering its security apparatus and techniques to silence the opposition.The statements of Mir Hussein Mousavi posted on his website Kalameh on Saturday 27 February 2010,support the notion that further protests can be expected.

Those in power in Iran must recognize that an environment plagued by human rights violations and impunity is conducive neither to reconciliation and internal stability nor to the country’s rehabilitation into the international community. Widespread violation of human rights in Iran cannot and should not be allowed to continue. Below, we have listed a non-exhaustive number of internal and external measures that should be pursued to alleviate Iran’s dire human rights reality.

Internal Measures

Leaders of the opposition, moderates within the government, civic organizations, and the legal profession in Iran should, with bona fides support of the international community, call for measures that can be employed domestically to protect people’s rights. While “outgunned” by the hard-liners in power in Tehran, there are nevertheless voices within the political elite calling for greater respect for human rights, a return to the inviolability of the Constitution, and the adoption of measures to prevent atrocities from reoccurring. To achieve these aims, any future political compromise should contain the following terms:

People’s constitutional rights must be respected: The violence on the part of the state witnessed to date has been primarily premised on the convenient claim that demonstrators are pawns of foreign interference and interests. While egregious overt and covert crimes have historically been committed against the Iranian nation, at this juncture in the track record of the Islamic Republic, the characterization of the current unrest as nothing more than foreign tinkering is simply insulting to the intelligence of the Iranian people. By basing their actions on vaguely worded provisions of the Iranian Penal Code dealing with national security and self-serving interpretations of the Iranian Constitution, the State has attempted to “legalize” the suppression of peaceful activity or any expression perceived to be unfavourable to state officials or policies. These violations have been committed despite the clear stipulation under Article 9 of the Iranian Constitution that “no authority has the right to abrogate legitimate freedoms, not even by enacting laws and regulations for that purpose, under the pretext of preserving the independence and territorial integrity of the country.” One needs to look no further than the rights enumerated in the country’s Constitution to realize that the state reaction to the protests and the opposition, seen to date, has been illegal and in manifest breach of the Iranian ‘social contract’. Lest we forget that the right to engage in peaceful demonstrations and assembly, the presumption of innocence, the right to life and dignity of the person, prohibitions against extracting confessions, due process safeguards amongst other fundamental guarantees are firmly entrenched in the Iranian Constitution.

An increased reliance on the charge of “mohareb,” or ‘those who wage war against God’, against protesters is yet another expedient ruse of getting around the raison d’кtre of the Constitution. Tragically, Iran’s politicized legal system ignores the fundamental requirement that even someone charged with this offence is to be granted the due process guarantees enshrined in the Constitution (e.g. Articles 20, 34-39) as well as in other domestic legal instruments (Criminal Code of Procedure and Citizen Rights Law).

Ratification of the Rome Statute of the International Criminal Court (ICC): Iran should ratify the Rome Statute of the ICC and become a State Party. It is in Iran’s interests as a nation and its people to do so. The country signed onto the Statute on December 31, 2000, but has not yet ratified the treaty. Ratification would have no retroactive application and therefore will not cover the crimes already committed in the country, but rather only those perpetrated after the date of ratification by Iran. Even so, ratification, in addition to carrying a deterrent benefit, would ensure that the Iranian people have legal recourse in the future, should the state fail to protect them from falling victim to “crimes against humanity.” Ratification would also require the eventual adaptation of domestic laws to human rights standards enshrined in the ICC Statute. The added benefit of ratification would be to provide legal recourse against war crimes and other offences under the Court’s jurisdiction that may be committed if Iran is subjected to a military invasion or attack. Additionally, ratification in the context of escalating tensions over Iran’s nuclear program could also be a win-win for all stakeholders and serve as an important deal-clincher by clarifying Iranian intentions behind the country’s nuclear program.

This proposal should form one of the explicit demands of the Green Movement, the moderates, the legal profession, and civil society fighting to restore people’s rights in the country. The political convenience of non-retroactivity of the Court’s jurisdiction—unless, of course, Iran itself makes a declaration under Article 12.3 of the Statute—may in fact render ratification possible.

Obligations under the International Covenant on Civil and Political Rights (ICCPR) and reinforcement: In 1975, Iran ratified the ICCPR. Guarantees listed in this Covenant, some of which closely parallel provisions of the Iranian Constitution, include: the right to peaceful assembly, life, due process, treatment with humanity and with respect for the inherent dignity of the human person, protection from arbitrary or unlawful interference with privacy, freedom of expression, liberty and security of the person, and protection against arbitrary arrest, torture and inhuman or degrading treatment or punishment.

As a party to the ICCPR, Iran is obliged to respect its international treaty obligations and regularly submit reports to the UN Human Rights Committee in Geneva concerning its compliance with the treaty and measures taken if any, to correct compliance deficiencies. Domestic actors, as well as the international community, should continue to call on the Iranian government to respect its obligations under the ICCPR and to remedy treaty compliance shortfalls.

It should be added that while Iran has ratified the ICCPR, it has not ratified the Optional Protocol to the ICCPR. States that ratify the latter recognize the competence of the UN Human Rights Committee to receive and consider individual complaints from victims of violations of any right guaranteed under the ICCPR. In effect, the Optional Protocol gives strength to the Convention itself. It is true that individual complaint procedures can be quite lengthy and ultimately, the findings of the Committee merely provide recommendations and at best admonish a state found to be in breach of its treaty obligation. Nevertheless, such complaints would bring international attention to the plight of Iranian victims of human rights abuse and hopefully deter the commission of further violations. More importantly, the process’ interim measures can prevent or delay commission of crimes by halting a potentially politicized judiciary from advancing with actions such as summary executions of detainees.

Ratification of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT): Ratification of the OP-CAT would help curb the longstanding practice of torture, inhuman treatment and punishment in Iran’s prisons. Ratification would also afford future victims the ability to trigger the UN individual complaint mechanism and take their cases before the specialized UN Committee Against Torture.

Endorsing gender equality: To help efforts aimed atfostering gender equality in Iranian society, the Convention on the Elimination of All Formsof Discrimination against Women should be ratified along with the adoptionof domestic laws in conformity with the Convention.

Establishment of an indigenous Truth and Reconciliation Commission: Such an independent commission can be mandated to investigate the post-election violence, identify those most responsible, highlight structural and legal deficits and provide recommendations to prevent such abuses from reoccurring (e.g. the creation of an effective human rights oversight body at the national level in accordance with the Paris Principles). The commission would also provide a platform for victims to be heard, vindicated and restituted as appropriate. Except for the most egregious crimes and individuals primarily responsible for such crimes, amnesties could be granted to facilitate testimony of those with valuable information to the commission’s work. The Commission may consider requesting neutral, experienced and reputable international experts to assist in this undertaking.

Capital punishment: The death sentence must finally be abolished in Iran. That failing, public executions, inhumane methods of execution (e.g. stoning) in violation of international human rights norms, and executions in the absence of internationally recognized safeguards must be abolished. In all circumstances, execution of persons under the age of 18 must cease (in conformity with Article 6 of the ICCPR and Article 37 of the Convention on the Rights of the Child; Iran has ratified both Conventions).

Legal reform: Reforming and modernizing the Country’s legal regime through, for instance reforms of the Criminal and Civil Codes to ensure that they are consistent with universally-recognized human rights norms are important steps towards much needed legal reform in the country. Measures to ensure the independence of the judiciary and that the legal profession (Iran’s bar associations) is shielded from political interference are also fundamental requirements.

Advocating on behalf of detainees: The practice of incommunicado and indefinite detention must immediately cease. Additionally, all those illegally and arbitrarily detained before and after the June post-elections must be released.

In accordance with the Constitution, Iranian authorities should ensure that independent legal representation of the detainee’s free choice is provided and that authorities refrain from harassing or interfering with counsel. To inspect detainees’ detention conditions and their wellbeing, the Iranian authorities should permit the Iranian Red Crescent and the International Committee of the Red Cross to conduct inspections of all Iranian prisons. Intense human rights training courses for prison staff and security forces are equally called for.

Freedom of the press: Freedom of the press is pivotal to the healthy functioning and progress of society, to ensuring public scrutiny of government action. The Press Law, which regulates freedom of the press in Iran, was conceived in 1986 and has been amended over the years to further limit journalistic autonomy and freedom of expression. This Iranian legislation needs to undergo reform to rectify its restrictive effects. The Iranian authorities must respect freedom of the press and facilitate independent journalistic reporting.

External Measures

Special Procedures of the UN Human Rights Council et al.: The modalities of the relatively new State-driven Universal Periodic Review (UPR) of the UN Human Rights Council are a positive development in the UN machinery for human rights surveillance and state responsibility. Iran underwent UPR scrutiny for its human rights record before the UN Human Rights Council in Geneva early this month on February 15, 2010. It is interesting to note the disparity between the rights recognized by the Iranian government in its written and oral submissions before the UPR and those it recognizes in actual practice. Only two days later, representatives of the Iranian government at the UPR, in a series of obscure and contradictory statements, rejected important recommendations offered by ‘submitting States’ as listed in the Draft report of the UPR Working Group on Iran. In effect, Iran signalled its unwillingness to adequately address the country’s most questionable human rights deficits. Many of the very same internal measures advocated in this piece were outright rejected by the Iranian government (e.g. release of illegally detained persons; rectifying discriminatory laws against women; reforms of the Penal Code; guaranteeing the independence of the judicial system etc.).

Above and beyond the UPR process, there is a clear need for increased pressure to induce Iran’s compliance. One such measure would be for the the UN Human Rights Council to employ its Special Procedures (both individual and working group on Arbitrary Detention mechanisms). For instance, the relevant UN Special Rapporteur mandate-holders ought to immediately seize recent invitations extended by Iran to conduct field missions in the country. Further, given the inexcusable human rights situation in Iran, particularly as it concerns arbitrary detention and prosecution, a Special Rapporteur, Special Representative(s) of the Secretary-General and/or Independent Expert should be appointed to exclusively treat the Iran dossier irrespective of unreasonable resistance from Tehran. These newly assigned mandate-holders can (i) dispatch ‘Urgent appeals’ in time sensitive violations (involving loss of life, liberty, etc.) and request that the authorities answer for their breaches and halt such actions and (ii) urgently undertake country visits to report on the human rights situation in the field. Such reporting is critical as it may not only deter future violations, but depending on its findings, could form the basis for other actions at the international fora, especially in the case of persistent non-cooperation in addressing human rights breaches.

In addition to the Special Procedures, the incumbent UN High Commissioner for Human Rights, the Honorable Navanethem Pillay and/or a specially designated delegation from her office should visit Iran at the earliest opportunity to survey the human rights situation in the country.  

Resolutions of the UN General Assembly: UN member states ought to table resolutions at the General Assembly condemning the continued violation of human rights in Iran, the state violence against demonstrators, and harassment of human rights activists and political opponents. Such a resolution was proposed by Canada and voted on in November 2009, where it elicited a 74 in favor, 48 against vote. It can be expected that any resolution of this kind will be attacked by the Iranian government as being politically motivated. Nevertheless, such resolutions have moral authority and can be effective in exerting international pressure. To prevent Iranian accusations from diluting and detracting from the human right violations at the focus of the initiative, it is preferable for Non-Western States or Member States of the Non-Aligned Movement to introduce draft resolutions to the plenary of the General Assembly for consideration.

Any such initiative should be devoid of political motivations, grounded exclusively in the principles proclaimed in the UN Charter and the Universal Declaration of Human Rights and reflective of a common human lineage and commitment to respect fundamental freedoms.

UN fact-finding mission on Iran: States with the support of civic organizations should call on the UN Human Rights Council to convene a special session and have the President of the Council establish an independent fact-finding mission to investigate human rights violations in Iran. Undertaken by a team of international experts whose membership would include Iranian experts, the fact-finding mission would investigate claims of vast human rights violations in Iran. Should the fact-finding mission obtain sufficient evidence that grave offences like crimes against humanity have been committed, its report—similar to what was done in the recommendations of the UN Fact-Finding Mission on the Gaza Conflict, otherwise known as the “Goldstone Report”— could afford the Iranian authorities a period of grace to undertake genuine bona fides domestic investigations (e.g. through credible inquiries pursuant to Article 90 of the Iranian Constitution) and prosecution of all those responsible for the violation of human rights. If Iran fails to oblige by the established deadline, the report should request the Security Council to refer it to the Prosecutor of the ICC pursuant to Article 13(b) of the Rome Statute. This would enable the ICC Prosecutor to undertake a preliminary analysis of the case and determine if “there is a reasonable basis to proceed with an investigation.” If based on the materials and evidence before it, the Court’s Pre-Trial Chamber is of the same opinion, then the Court would be able to exercise full jurisdiction over the Iran dossier.

Other international measures: In the event that wide scale human rights violations continue unchecked in Iran, the international community should consider imposing targeted political sanctions on Iranian authorities most responsible for these violations and treat such persons as persona non grata. Similarly, those nations whose legal regimes provide the necessary basis (e.g. universal jurisdiction) should, upon concrete and credible evidence and without political motivations, bring indictments against Iranian officials responsible for grave human rights violations of the Iranian people.

 

 

Mr.Sam Sasan Shoamanesh is a legal adviserat the International Criminal Court (ICC)and co-founder and Associate Editor of Global Brief magazine. He served as the ICC’s first delegate to the European Court of Human Rights (ECHR). The views expressed have been provided in the author’s personalcapacity and do not necessarily reflect the views of the ICC, ECHR or GlobalBrief.

Dr.Trita Parsi is the president of the National IranianAmerican Council, the author of “Treacherous Alliance:The Secret, Dealings of Iran,Israel and the United States,”and the 2010 recipient of the Grawemeyer Award for Ideas Improving WorldOrder.

 

 

 

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