Briefs | Human Rights in the Balance: Heshmatollah Tabarzadi v. IRI
by KAVEH SHAHROOZ in Toronto
09 Feb 2012 23:37
[ comment ] After a semester spent studying the intricacies of international human rights law and institutions, cynical law students all invariably ask the same question: "What's the point of all this nice-sounding law if it can't be enforced?"
Look at the recent United Nations decision on Heshmatollah Tabarzadi, an Iranian dissident imprisoned in Rajaei Shahr Prison, and it is easy to become similarly cynical.
Represented on a pro bono basis by two Iranian American lawyers at Wilson Sonsini, one of America's top law firms, Tabarzadi petitioned the U.N.'s Working Group on Arbitrary Detention in August 2011, asking them to take urgent action in his case. The five-person Working Group is headed by a Senegalese judge and operates under the auspices of the U.N. Human Rights Council. It is mandated, among other things, to "investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards." As part of its mandate, the Working Group can hear grievances from ordinary people against governments.
It is this obscure body, largely unknown to people outside the corridors of the U.N. buildings in Geneva and New York, that became the site of a recent showdown between Tabarzadi and the government that imprisons him.
And it is that government's reaction to the investigation -- and its anticipated reaction to the Working Group's decision -- that illustrates the limits of an international legal system that lacks an enforcement mechanism.
For decades a figure on the margins of Iran's political scene, Heshmatollah Tabarzadi has never garnered much international attention. But the story of his peaceful political transformation may well exemplify Iran's best hope of democratizing in a sustainable and fundamental way.
An engineer by training, Tabarzadi served in the Iran-Iraq War, in which he is said to have lost two of his brothers. Afterward, he became politically active as a staunch supporter of now-Supreme Leader Ali Khamenei and former President Akbar Hashemi Rafsanjani. He is alleged, in fact, to have been the first to bestow upon Khamenei the title of "Imam," an honorific initially reserved for Ayatollah Ruhollah Khomeini.
Tabarzadi served in various pro-government Islamic student organizations, but in the mid-1990s he began to slowly break away from the theocracy. The newspapers he edited started to expose the government's economic and political corruption, indicating the former loyalist's deep disillusionment with a regime he had fervently supported. As his views evolved, Tabarzadi also took an increasingly hard line against Velaayat-e Faghih, the concept of rule by a religious jurisprudent. He wrote in the late 1990s that the Supreme Leader should not be viewed as a prophet "immune to error and wrongdoing" nor "a holy and innocent man, or God" (see David Menashri's Post-Revolutionary Politics in Iran).
For his disloyalty, he was been vilified, beaten, and jailed by the government. He was notably arrested after the 1999 student uprising and spent nearly a decade in Evin Prison, two of those years in solitary confinement.
Tabarzadi's ideological transformation has not been sufficient for certain dissident groups, some of whom continue to view his motives with suspicion and refer to him as "a wolf in sheep's clothing." Viewed impartially, Tabarzadi's split with the Islamic Republic seems unlike that of many former hardliners. His is not a quickie divorce from the regime based on a new, superficial fling with reform and democracy. By most accounts, Tabarzadi now seems to be genuinely committed to secularism and popular sovereignty and has been paying the price for that belief.
Part of that price was his arrest shortly after he participated in a massive December 2009 pro-democracy protest. Keen to limit information from leaking out of the country, it is likely that the government was particularly incensed by Tabarzadi's decision to speak about the protest to Voice of America and write an op-ed about it for the Wall Street Journal.
After more than a year and a half of dealing with the Islamic Republic's criminal justice system, which appeared to be offering little in the way of due process, Tabarzadi forwarded his petition to the U.N. Working Group on Arbitrary Detention.
In their first submission to the Working Group, Tabarzadi's lawyers outline the basis of their claim. According to the petition, Tabarzadi was first detained in Evin's notorious Ward 209. While there, he protested the execution of a number of Kurdish activists in May 2010; for that, he was transferred to the brutal Rajaei Shahr Prison in the city of Karaj. The petition notes that after arresting him, "Iranian authorities beat Mr. Tabarzadi and held him incommunicado in solitary confinement for 40 days. He was threatened with the death penalty and other forms of cruel, inhumane and degrading treatment, including rape."
The submission to the U.N. recounts that in September 2010, Tabarzadi was convicted of a litany of vague charges ranging from "insulting the Leader" to "propaganda against the system" to "disturbing public order." Post appeal, he has been sentenced to eight years in prison. His legal team provided the U.N. with three categories of arguments regarding his continued detention. First, that the Iranian government has no legal basis for justifying Tabarzadi's arrest and detention. The U.N. is reminded that his harsh interrogation, the extended solitary confinement to which he was subjected, and the absence of any notice of charges for six months are violations of both international and domestic law. Second, the lawyers argued that Tabarzadi is being held merely for exercising his fundamental rights and freedoms, namely his right to free speech, free assembly, and participation in conduct of public affairs. Finally, his team argued that the procedure by which he was tried "violates fundamental norms of the right to a fair trial."
A one-page response from the Iranian government arrived nearly three months later. To call it a reply would be generous; it can perhaps more accurately be described as the legal and diplomatic equivalent of showing Tabarzadi and his counsel the middle finger. The Iranian government did not address any of the claims against it, but simply reiterated the charges against Tabarzadi and wrote that he "is serving his sentence and like other prisoners, is accorded legal rights."
Adding insult to injury, the government claims that Tabarzadi "was defended by a team of attorneys" at his trial, failing to note that several of his lawyers -- including Nasrin Sotoudeh and Mohammad Oliyaifard -- were themselves arrested for representing political detainees.
The government's submission is so cursory that Tabarzadi's lawyers had to seek clarification that the document they had received was, in fact, the entirety of Iran's answer. They found it hard to believe that such a document, which didn't address any of the issues they had raised, could be a serious government response.
In the end, the Working Group agreed with Tabarzadi and held that his arrest and detention is arbitrary and a violation of several articles of the International Covenant on Civil and Political Rights. It also held that an adequate remedy would be to release him and "accord him an enforceable right to compensation." On the question of whether Tabarzadi has been subjected to torture, the U.N. body referred the matter to the special rappporteur on torture.
Will the Islamic Republic now yield in the face of the decision by the Working Group on Arbitrary Detention, arguably the highest international authority on the issue? Will Tabarzadi now be released?
Almost certainly not.
In the past few years, the Working Group has similarly agreed with, and called for the release of, imprisoned journalist Isa Saharkhiz and student activist Kiarash Kamrani. Both continue to languish in Iranian prisons.
There is no reason to believe that the Iranian government will be inclined to act any more humanely with Tabarzadi in the face of the U.N. Working Group's condemnation. This noncompliance fits, of course, within the larger pattern of the Iranian government's behavior toward the international human rights system.
During the 2009 Universal Periodic Review, a process by which every country's human rights record is examined on a four-year cycle, the Iranian government simply denied that it had any human rights problems at home. It thus rejected nearly every recommendation about how it could improve conditions.
And not only has the Iranian government refused to accept the views of Ahmed Shaheed, the U.N. special rapporteur assigned to examine its troubling human rights record, it continues to deny him entry to the country.
Law professors often tell their cynical students that, despite the absence of enforcement tools, the international human rights system works because, in the long term, countries interact with international institutions, interpret international law, and internalize those norms domestically.
That may be true for many states. But in the absence of a stronger human rights enforcement mechanism, it tragically does not seem to hold true for Iran. And it holds little promise for Heshmatollah Tabarzadi.
Kaveh Shahrooz is a lawyer based in Toronto. He is a former editor-in-chief of the Harvard Human Rights Journal and a former human rights policy advisor to Canada's Department of Foreign Affairs. Any opinions expressed are the author's own.
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