Condemned by Law: Assassination of Political Dissidents Abroad
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.
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
See, e.g., Press Release, Security Council, Security Council Tightens Restrictions on Iran’s Proliferation-Sensitive Nuclear Activities, Increases Vigilance over Iranian Banks, Has States Inspect Cargo, U.N. Doc. SC/9268, Mar. 3, 2008. This action may have been instigated by other U.N. channels, such as the Special Rapporteur, the Human Rights Council, or the Human Rights Committee. See Gideon Moor, The Republic of Bosnia-Herzegovina and Article 51: Inherent Rights and Unmet Responsibilities, 18 FORDHAM INT’L L. J. 870, 896-98 (1995
See infra note 167-70 for further discussion.
See infra § 5.2.
Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan. 12, 1951 [hereinafter Genocide Convention]; Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987 [hereinafter Convention Against Torture].
See, e.g., Beth Van Schaack, Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals, 97 GEO. L.J. 119, 163-63 (2008). It is, however, an enumerated offense triggering subject matter jurisdiction under the Rome Statute of the International Criminal Court. Rome Statute art. 7, supra note 46. For further discussion of crimes against humanity, see infra § 5.4.