Condemned by Law: Assassination of Political Dissidents Abroad
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.
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
See generally NO SAFE HAVEN, supra note 25
Indeed, some European countries such as Belgium have actually passed legislation allowing prosecution based on active and passive personality jurisdiction. See Preliminary Title of the Code of Criminal Procedure (Titre préliminaire du Code de procedure pénale), Chapter II, arts. 6 (1), 7(1) and 10 (5).
Some states have argued that international criminals may be forcibly apprehended on foreign soil and transferred to a prosecuting jurisdiction in order to satisfy the physical presence requirement. See Attorney General of Israel v. Eichmann, Criminal Case No. 40/61 (Dec. 11, 1961), reprinted in Covey Oliver, Judicial Decisions, 56 AM. J. INT’L L. 805 (1962). Most European countries that have passed legislation allowing prosecution based on universal jurisdiction, however, have rejected this approach. See Lieutenant Commander James Paul Benoit, JAGC, USN, The Evolution of Universal Jurisdiction Over War Crimes, 53 NAVAL L. REV. 259 (2006).
See Benoit, supra note 181, at 277-281.
See Anthony Colangelo, The Legal Limits of Universal Jurisdiction, 47 VA. J. INT’L L. 149, 150-51 (2005).
Unlike domestic courts, international tribunals usually exercise jurisdiction pursuant to international conventions, or United Nations Security Council resolutions. See, e.g., Statute of the International Criminal Tribunal for the Former Yugoslavia arts. 6-9, U.N. Doc. S/25704 at 36 (1993) [hereinafter ICTY Statute]. These conventions allow individual member states to transfer their jurisdictional capacity to an international tribunal such as the ICC. See Rome Statute arts. 4, 5, supra note 46.