Iran: A Case Study of Judicial Failure

By: Darya Tadlaoui

Edited By: Renan Dennig and Maayan Abouzaglo

The shouts of Iran’s youth are unmistakable: “Jin, jiyan, azadi!” – or “Woman, life, freedom!” The Kurdish slogan originated in the Kurdish Freedom Movement of the 80s and was first popularized in 2006 during International Women’s Day marches in Turkey.[1] Now, after the death of Mahsa Amini, a Kurdish woman, in police custody, the phrase has become a rallying cry for Iranians across ethnic and linguistic backgrounds in the country’s greatest political upheaval in recent memory.[2]

The turmoil following Amini’s death has resulted in severe pushback by the regime and its leaders. In the past few months, thousands of peaceful protestors – activists, women, children, human rights lawyers, journalists – have been arrested.  The death toll amongst protestors has grown to 304 as of Nov. 11, including 41 children; and eight protestors have been charged with the death penalty on the basis of moharebeh, or “enmity against God,” and “corruption on Earth.”[3] The United Nations has condemned the large-scale indictments and death sentences, holding a Special Session of the Human Rights Council on Nov. 24 in which 25 countries agreed to launch an investigation into the treatment of protesters.[4] 

How has the Iranian government evaded accountability for so long? What institutions allow the regime to continue its reign even when its authority is challenged?

The answer to both questions lies in the notion of systemic impunity: legal structures prop up the revolutionary administration, with support from all branches and levels of government.[5] The system is impregnable; it abuses power not merely by circumventing existing law, but also by enacting laws and supporting systems for reinforcement.

The Law

Iran’s current government was established in 1979 after the shah (king) was overthrown by the Islamic Revolution, whose leaders immediately enacted Sharia Law, an application of Islam based on both the passages of the Quran and the many teachings of the prophet Mohammed.[6] In practice, elements of this law can seem rather Draconian. For instance, the Qisas law denotes punishments like retribution for murder, stoning for adultery, and amputation for theft and national security offenses.[7] These guidelines, coupled with a government infamous for harsh sentences, amplify the rate and severity of abuse toward political dissenters.

Ironically, many of the country’s laws actually safeguard privileges like dissent. Articles 23-27 of the Constitution of the Islamic Republic protect the freedoms of belief, press, association, and assembly, as well as the privacy of communication.[8] These rights are further ensured by Articles 18-22 of the International Covenant on Civil and Political Rights (ICCPR), a treaty Iran signed in 1968 and ratified in 1975.[9] Similarly, the Constitution protects individuals’ right to a fair trial as per Articles 32-37 – prohibition of arbitrary arrest or detention, right to a competent court, legal counsel, competent sentencing, and presumption of innocence, all of which are additionally outlined in and supplemented by Articles 9 and 14 of the ICCPR.[10] 

How, then, is it possible for Iran’s government to violate these rights? Put simply, its judiciary is airtight – and parts of it nonexistent.

The Judiciary

The same regime that established Sharia Law in 1979 also constructed a justice system to enforce it. In Iran’s theocracy, the judiciary acts as the primary arm by which to silence dissenters.[11] Some divisions adopted by the regime were standard: civil, criminal, and military courts were established at all levels, and elements of the pre-revolutionary justice system were preserved within these courts – right to public trial, guaranteed counsel, etc.[12] But the new rulers also established Revolutionary Courts and the Special Court for the Clergy – both of which were never incorporated into the Constitution. Consequently, they are seemingly untouchable: their abuses are outside the scope of law.[13]

The former courts oversee cases involving drug smuggling, national security, and espionage accusations, while the latter prosecutes clerics accused of various unlawful acts.[14] The two courts work in tandem to prevent any meaningful change from disturbing the revolutionary system. National security indictments have provided Revolutionary Courts with enormous power to arrest, prosecute, and even execute protestors under the nebulous charge of “posing a threat.”[15] Rigid prerequisites for clerics delineate they must have completed a degree at a religious law school or trained in Islamic jurisprudence in order to become a judge; once appointed, they must refrain from showing any support to reformists, or else risk being charged and removed by the Special Court for the Clergy.[16] Thus, the mojtaheds (high-ranking clerics) in positions of power – head of the judiciary, prosecutor general, Supreme Court judges – cannot risk being unaligned with the values of the regime.[17]

Even if members of Parliament, rather than jurists, attempt to enact reforms, a body of jurists that acts as an upper legislative house called the Council of Guardians can – and often does – overrule them.[18] Half of its members are specialized in Islamic Canon Law and appointed by Iran’s Supreme Leader (head of state), while the other half are civil jurists nominated by the Supreme Judicial Council and appointed by Parliament.[19] The Council reviews all legislation passed by Parliament, and can veto any bill if the majority of Islamic Canon leaders believe it to violate Islamic law, meaning the civil jurists’ beliefs are largely irrelevant in making legislative decisions and can be instantly overruled.[20] This makes it virtually impossible to hold the judiciary accountable; they have historically stonewalled Parliament interventions, claiming they only answer to the Supreme Leader, and, as a result, the court system perpetuates harsh sentences for all defendants considered enemies of the state.[21]

(In)justice in Practice

1. Courtrooms

Despite the protections supposedly afforded them by the Constitution and the ICCPR, those accused of political upheaval endure trials that function decidedly to their disadvantage. The experience of Jason Rezaian, a former Washington Post Tehran bureau chief of dual American-Iranian citizenship who was prosecuted by the Courts for espionage among other “hostile” crimes, exemplifies the one-sidedness of hearings for high-profile political cases.[22]

Rezaian’s 2015 trial was closed – no jury, no observers.[23] He was denied a lawyer of his choosing, and when assigned a state-appointed attorney, the two met for a mere ninety minutes prior to the start of the proceedings; moreover, no evidence was presented to them.[24] Further, a 1995 statute allows judges to simultaneously act as prosecutors in the same case, and Rezaian’s trial was no different; he had to both defend himself against and answer to Judge Abolghassem Salavati, notorious for harsh verdicts.[25]

Between his eventual conviction and drawn-out trial, Rezaian was imprisoned for 544 days.[26] And for the length of his trial, Rezaian was detained at Evin Prison, the primary site housing Tehran’s political prisoners – the conditions within its walls have been described as nothing short of torturous.[27]

1. Detainment

Perched on the hills of northern Tehran, Evin Prison was initially established during the reign of Iran’s former shah to detain his opponents and held around 1500 inmates.[28] It now holds an estimated one quarter – 15,000 – of Iran’s political prisoners: journalists, activists, ethnic minorities, and members of alternative faiths, among others.[29] The institution is in direct violation of the UN’s Standard Minimum Rules for the Treatment of Prisoners – its cells and communal rooms lack any sunlight; inmates suffer from regular food poisoning; utensils have been cycled among prisoners for decades; and inmates sleep on metal beds.[30] Furthermore, Iran’s State Prison Procedures stipulate that prisoners convicted of “acting against national security” – i.e. the inmates that Evin Prison houses – are exempt from receiving furlough, a temporary leave granted to most inmates in the Islamic Republic for medical reasons or familial events.[31] Political prisoners are, in essence, treated as subhuman.

Worse, these conditions are only heightened in Iran’s widespread system of nahad-eh movazi – “parallel institutions,” or extralegal systems of state coercion such as underground prisons.[32] The total number of illegal detention centers is unknown as they do not keep records nor register with the National Prisons Office, but reports have indicated that the number is growing.[33] Moreover, these networks use solitary confinement, interrogation, and intimidation tactics to produce forced confessions, all while the guards work in strange “plainclothes” rather than government-issued uniforms, thus undetectable and unaffiliated with the regime.[34] These establishments allow “state enemies” to go unaccounted for at the disposal – though not technically the fault – of Iran’s government. They represent an extension of an extension of judicial power: not only are they excluded from the state’s Constitution, they are excluded from regulation entirely.

Hope for reform?

Given the all-encompassing domination of Iran’s Revolutionary Government, is there even a slim possibility that the current protests will make an impact on the country’s socio-political conditions?

Looking to the past seems to indicate their impact, if any, will be slim. Though it is clear judiciary leaders themselves have very little room to execute reforms, the most successful reform attempts were made by Mahmoud Shahroudi, judiciary head from 1999-2009.[35] The majority of these endeavors were blocked by conservative clerics and their allies before they could even be passed, but even the implemented Citizens Bill of Rights in 2004 has not been enforced in practice or by courts; thus, his successor abandoned pursuits of reform altogether.[36]

In terms of public protest, the 2009 Green Revolution was the largest challenge to Islamic Republic by its populace since its inception in 1979.[37] The uprisings were sparked by alleged election fraud after incumbent Mahmoud Ahmadinejad (incumbent and the regime’s preferred candidate) won the 2009 presidential election despite having a relatively small supporter base; however, these protests lacked effective leadership and any ideological alternative, and thus the crackdown on protests and violence perpetrated by state forces dissuaded citizens from continuing their dissent.[38]

Experts say we must learn from the mistakes of the 2009 protests and establish organized leadership in order to make strides toward freedom.[39] However, outing the leader(s) of the ongoing protests could simply make them targets, as it is clear the government will act swiftly against any identifiable groups or individuals.[40]

There is a chance that the regime’s refusal to modernize will ultimately prove to be its downfall. The government’s firm belief in tradition affects its approaches to all spheres of politics, including its consistent choice to meet unrest with violence. Because it has not adapted its methods of handling protests in four decades, it may be unequipped to handle this generation’s “cyberspace-based” and “pluralist” upheaval.[41] 

In any case, the systemic impunity of Iran’s judiciary officials serves as an important reminder that legal systems have the power to condemn and marginalize just as they can protect and serve. Law is merely a reflection of those establishing and presiding over it; it is a tool to be handled with great caution, its power to be wielded with great purpose, or else it can fail the people whose lives depend on it.

NOTES:

1. Seyma Bayram and Diba Mohtasham, “Iran's Protesters Find Inspiration in a Kurdish Revolutionary Slogan,” Georgia Public Broadcasting, accessed December 1, 2022. https://www.gpb.org/news/2022/10/27/irans-protesters-find-inspiration-in-kurdish-revolutionary-slogan.

2. Pouya Alimagham, “Iran Then and Now: What Similarities in Protests in 2009 and 2022 Demonstrate,” Cambridge University Press, last modified October 21, 2022. https://www.cambridgeblog.org/2022/10/iran-then-and-now-what-similarities-in-protests-in-2009-and-2022-demonstrate/.

3. “Iran: Stop Sentencing Peaceful Protesters to Death, Say UN Experts,” Office of the High Commissioner for Human Rights, last modified November 11, 2022. https://www.ohchr.org/en/press-releases/2022/11/iran-stop-sentencing-peaceful-protesters-death-say-un-experts.

4. Golnar Motevalli and Yasna Haghdoost, “Iran Protests: UN to Investigate Iran for Human Rights Violations,” Bloomberg.com, Bloomberg, last modified November 24, 2022. https://www.bloomberg.com/news/articles/2022-11-24/un-to-investigate-iran-for-human-rights-violations-in-protests?sref=0Xh9npns&leadSource=uverify+wall.

5. “Iran Archives,” Amnesty International, accessed November 30, 2022. https://www.amnesty.org/en/location/middle-east-and-north-africa/iran/report-iran/.

6. Kali Robinson, “Understanding Sharia: The Intersection of Islam and the Law,” Council on Foreign Relations, Council on Foreign Relations, December 17, 2021. https://www.cfr.org/backgrounder/understanding-sharia-intersection-islam-and-law.

7. “The Islamic Judiciary,” The Iran Primer, last modified March 15, 2021. https://iranprimer.usip.org/resource/islamic-judiciary.

8. “The Prisoners*,” Center for Human Rights in Iran, last modified March 13, 2017. https://iranhumanrights.org/2016/06/wwr-the-prisoners/.

9. (United Nations (General Assembly) 1966)

10. “The Prisoners*.”

11. “Islamic Judiciary.” 

12. “Iran - Judicial System,” Encyclopædia of the Nations, accessed November 28, 2022. https://www.nationsencyclopedia.com/Asia-and-Oceania/Iran-JUDICIAL-SYSTEM.htm.

13. “Islamic Judiciary.”

14. “Islamic Judiciary.”

15. “Islamic Judiciary.”

16. “Islamic Judiciary.”

17. “Islamic Judiciary.”

18. “Council of Guardians,” Encyclopædia Britannica, Encyclopædia Britannica, inc., accessed November 28, 2022. https://www.britannica.com/topic/Council-of-Guardians.

19. “Council of Guardians.”

20.  “Council of Guardians.”

21. “Islamic Judiciary.”

22. “Iran Trial for Washington Post Reporter Jason Rezaian Starts,” BBC News, BBC, May 26, 2015. https://www.bbc.com/news/world-middle-east-32879675.

23. Kasra Naji, “Jason Rezaian Trial: What Are Iran's Islamic Revolutionary Courts?” BBC News, BBC, May 26, 2015. https://www.bbc.com/news/world-middle-east-32890565.

24. Naji, “Jason Rezaian Trial.”

25. Naji, “Jason Rezaian Trial.”

26. “Wilmerhale Wins $180 Million Judgment against Iran for Jason Rezaian and Family,” WilmerHale, Accessed January 4, 2023. https://www.wilmerhale.com/en/insights/news/20191212-wilmerhale-wins-180-million-judgment-against-iran-for-jason-rezaian-and-family.

27. “The Ward,” Center for Human Rights in Iran, last modified March 13, 2017. https://iranhumanrights.org/2016/06/wwr-the-ward/.

28. Kian Tajbakhsh, “Iran Has Become a Prison,” The Atlantic, Atlantic Media Company, November 1, 2022. https://www.theatlantic.com/international/archive/2022/11/iran-mahsa-amini-protest-evin-prison-fire/671950/.

29. “The Ward.”

30. “The Ward.”

31. “Furlough,” Center for Human Rights in Iran, last modified March 13, 2017. https://iranhumanrights.org/2016/06/wwr-furlough/.

32. “V. Detention Centers and Ill-Treatment, ” Human Rights Watch, Like the Dead in Their Coffins: Torture, Detention, and the Crushing of Dissent in Iran 16, no. 2 (June 2004): 13-14.

33. “Detention Centers.”

34. “Detention Centers.”

35. “Islamic Judiciary.”

36. “Islamic Judiciary.”

37. Alimagham, “Iran Then and Now.”

38. Alimagham, “Iran Then and Now.”

39. Alimagham, “Iran Then and Now.”

40. Haleh Esfandiari and Marina Ottaway, “When Do Protests Succeed? the Case of Iran and the Arab World,” Wilson Center, accessed November 30, 2022. https://www.wilsoncenter.org/article/when-do-protests-succeed-case-iran-and-arab-world.

1. “Research Finds It May Be Too Late to Quell Iran Uprising,” Iran International Newsroom, Iran International, last modified November 23, 2022. https://www.iranintl.com/en/202211239386.

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Amnesty International. “Iran Archives.” Accessed November 30, 2022. https://www.amnesty.org/en/location/middle-east-and-north-africa/iran/report-iran/.

Bayram, Seyma, and Diba Mohtasham. “Iran's Protesters Find Inspiration in a Kurdish Revolutionary Slogan.” Georgia Public Broadcasting. Accessed December 1, 2022. https://www.gpb.org/news/2022/10/27/irans-protesters-find-inspiration-in-kurdish-revolutionary-slogan.

BBC News. “Iran Trial for Washington Post Reporter Jason Rezaian Starts.” BBC, May 26, 2015. https://www.bbc.com/news/world-middle-east-32879675.

Center for Human Rights in Iran. “Furlough.” Last modified March 13, 2017. https://iranhumanrights.org/2016/06/wwr-furlough/.

Center for Human Rights in Iran. “The Prisoners*.” Last modified March 13, 2017. https://iranhumanrights.org/2016/06/wwr-the-prisoners/.

Center for Human Rights in Iran. “The Ward.” Last modified March 13, 2017. https://iranhumanrights.org/2016/06/wwr-the-ward/.

Encyclopædia Britannica. “Council of Guardians.” Encyclopædia Britannica, inc. Accessed November 28, 2022. https://www.britannica.com/topic/Council-of-Guardians.

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Human Rights Watch. “V. Detention Centers and Ill-Treatment.” Like the Dead in Their Coffins: Torture, Detention, and the Crushing of Dissent in Iran 16, no. 2 (June 2004): 12-30.

Iran International Newsroom. “Research Finds It May Be Too Late to Quell Iran Uprising.” Iran International. Last modified November 23, 2022. https://www.iranintl.com/en/202211239386.

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Motevalli, Golnar, and Yasna Haghdoost. “Iran Protests: Un to Investigate Iran for Human Rights Violations.” Bloomberg.com. Bloomberg, November 24, 2022. https://www.bloomberg.com/news/articles/2022-11-24/un-to-investigate-iran-for-human-rights-violations-in-protests?sref=0Xh9npns&leadSource=uverify+wall.

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Office of the High Commissioner for Human Rights. “Iran: Stop Sentencing Peaceful Protesters to Death, Say UN Experts.” Last modified November 11, 2022. https://www.ohchr.org/en/press-releases/2022/11/iran-stop-sentencing-peaceful-protesters-death-say-un-experts.

Robinson, Kali. “Understanding Sharia: The Intersection of Islam and the Law.” Council on Foreign Relations. Council on Foreign Relations, December 17, 2021. https://www.cfr.org/backgrounder/understanding-sharia-intersection-islam-and-law.

Tajbakhsh, Kian. “Iran Has Become a Prison.” The Atlantic. Atlantic Media Company, November 1, 2022. https://www.theatlantic.com/international/archive/2022/11/iran-mahsa-amini-protest-evin-prison-fire/671950/.

United Nations (General Assembly). 1966. “International Covenant on Civil and Political Rights.” Treaty Series 999 (December): 171.

“Wilmerhale Wins $180 Million Judgment against Iran for Jason Rezaian and Family.” WilmerHale. Accessed January 4, 2023. https://www.wilmerhale.com/en/insights/news/20191212-wilmerhale-wins-180-million-judgment-against-iran-for-jason-rezaian-and-family.