Legal Consequences of the Establishment of the Independent International Fact-Finding Mission on the Islamic Republic of Iran from the Perspective of International Criminal Law

Document Type : Original Independent Original Article

Authors

1 Professor of International Law, Department of Law, Faculty of Humanities, Bu-Ali Sina University , Hamedan. Iran.

2 Master student of International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

Abstract

After the events that happened on 17 September 2022 in Moral Security Police building, protests started in Iran. These incidents started in the cities of Saqqez and Tehran and continued for several months in different cities of Iran and the world. After that, there were many reactions in Iran and other parts of the world. Following these protests, the United Nations Human Rights Council, by issuing Resolution A/HRC/S-35/L.1, established an "Independent International Fact-Finding Mission". The establishment of the fact-finding commission is one of the most important mechanisms of the Human Rights Council for protecting human rights through the investigation of violations in United Nation’s Member States when observing human rights in that country is worrying and the Council should confront with this situation and prevent from impunity. The research method of this article is analytical-descriptive and the method of collecting information is library method. The main question of this research is what will be the effects and legal consequences of the reports of this commission for Iran in the light of examining similar commissions’ activities? The hypothesis of the authors is that the universal jurisdiction of some mainly European courts to prosecute serious human rights violators may be activated.

Highlights

Introduction

After the events that happened on 17 September 2022 in the Moral Security Police building, protests started in Iran. These incidents started in the cities of Saqqez and Tehran and continued for several months in different cities of Iran and all around the world. After that, there were many reactions in Iran and other parts of the world. Following these protests, the United Nations Human Rights Council, by issuing Resolution A/HRC/S-35/L.1, established an "Independent International Fact-Finding Mission''. The establishment of the fact-finding mission is one of the most important mechanisms of the Human Rights Council for protecting human rights through the investigation of violations in United Nations’ Member States when observing human rights in that country is worrying and the Council should confront this situation and prevent the impunity.

The independent fact-finding mission is required to cooperate with the Islamic Republic of Iran, the United Nations High Commissioner for Human Rights office, non-governmental human rights organizations and civil society in order to collect documents and information. Also, the Council has requested from Islamic Republic of Iran to allow the members of the delegation to enter the country without delay and to provide them with all the necessary information.

 

 Methodology

 The method of this research is analytical-descriptive and the method of data collection is library and English language books, articles and analytical sites have been used in preparing this article. In this article, first, the function of the independent international fact-finding mission is briefly explained, then after the brief introduction of the resolution issued by the Human Rights Council regarding Iran, the criminal consequences of the establishment of this mission for Iran will be examined in order to test the research hypothesis.

 

Results and Discussion

Examining the reports of the investigation missions in previous cases shows that international political and judicial authorities pay special attention to the reports of these missions. For example, on January 23, 2020, the International Court of Justice referred to the findings of the independent international fact-finding mission of Myanmar. This was in the request for the issuance of a provisional order in the case of the application of the Convention on the Prohibition and Punishment of the Crime of Genocide, "The Lawsuit of Gambia against Myanmar" on January 23, 2020 (Paragraph 27). The fact-finding mission of Myanmar, in its report on August 8, 2019, concluded that Myanmar has international responsibility for violating the obligations contained in the Convention on the Prohibition and Punishment of the Crime of Genocide.

In general, considering that the mission should analyze the reports after receiving them, therefore it can describe the cases of human rights violations and classify them in the categories of international crimes. For example, on June 8, 2018, the Eritrean fact-finding mission stated: "There is no genuine prospect of the Eritrean judicial system holding perpetrators to account in a fair and transparent manner. The perpetrators of these crimes must face justice and the victims’ voices must be heard.

Although the Ministry of Foreign Affairs in Iran has announced that: "We consider the formation of any new mechanism to investigate the issues of the past two months in Iran as unnecessary and a violation of the country's national sovereignty. And we do not recognize the mission assigned in this regard, so Iran will not cooperate with this committee and will not have a fact finder". It must be said that this will not prevent the action of the Council and in the case of the recent incident, the mission will select its members among the Iranian opposition and foreign experts. the mission also will prepare and publish its report citing foreign sources, for example, the recent CNN report on the alleged use of rape to intimidate and suppress protesters. In this case, if the Iranian government is accused of committing a crime against humanity in the report of an international body, a serious case will be opened against it, and this can provide the basis for dealing with the relevant violations in national or international courts.

 

Conclusion

Considering that the resolution for the formation of the fact-finding mission has been approved and the members of this mission have been selected by the head of the Human Rights Council, even assuming that Iran does not cooperate with this mission, this mission will compile its report. Its report, without any doubts, apart from its political consequences for Iran will cause the destruction of Iran's international image and international isolation, it also has criminal consequences as well. Although one should not exaggerate the consequences of the reports and findings of the fact-finding missions, their effects and consequences cannot be underestimated, especially if some kinds of agreements between the permanent Member States of the Security Council emerges to deal with the relevant government. If one of the international crimes is confirmed by the government and the report is submitted by the independent international fact-finding mission, the possibility of dealing with the relevant violations in national or international courts is not far from expected.

 The trial of possible perpetrators of these crimes will be possible in domestic or international courts. Regarding the national courts, if the findings of the mission place the acts committed in Iran in one of the categories of international crimes, it will be possible to try their perpetrators through international jurisdiction. Regarding international courts, three possible events should be considered; The possibility of presenting Iran's case in the International Criminal Court, Ad Hoc criminal courts or mixed international criminal courts. Regarding the case in the International Criminal Court, considering that Iran is not a member of Rome Statute, the only way to deal with the case in this court is to refer the case to the Security Council according to the seventh chapter, which is likely to be vetoed. Also, the establishment of special criminal courts may face a veto due to the possible lack of will of the Security Council. Of course, it should be noted that there is no confidence in China and Russia to use this right and there is a possibility that they will not veto the case.

It is obvious that the contents of these reports, by themselves, are not binding and the implementation of the team's proposals depends on the approval of the Security Council. In this connection, the dual policy and past actions of the members of the Security Council should not be overlooked.

Keywords

Main Subjects

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