For the past several weeks, Iran has been in the news for all the wrong reasons. Mahsa Amini’s death shocked the world more profoundly than almost any other event in recent Iranian history. Her killing symbolizes entrenched patriarchy and the systematic oppression of women since the 1979 Islamic Revolution led by Ayatollah Khomeini and his supporters.
Observers around the planet are aghast by the brutality of the way that Amini was treated, but also by the brutality of the government’s crackdown on protesters. Of note is the fact that Amini was a Kurd: her Kurdish name was Jhina Amini. The pictures of Jhina after she was hospitalized are available on the internet. Now the world can see what the government did to her.
Thousands of people have been killed by the regime since 1979. We don’t know how many. Many have been tortured. For every person killed, tortured, or disappeared, dozens of people are left behind, ranging from fathers, mothers, siblings, children, spouses, nieces, nephews, friends, and cousins. The list goes on.
Now may be the time for the international community to intervene peacefully in Iran’s internal affairs. The question is, how would this happen? Is now the time to refer Iran to the ICC under Chapter VII of the United Nations Charter? If not now, when? Is it time to set up an Independent Impartial Investigative Mechanism? What would its mandate include?
I am not starry-eyed about the possibilities of UN intervention, UN politics, or international justice as a savior. However, I also note the swift and decisive mobilization of international support – at least from some political quarters – for establishing an international criminal tribunal in Ukraine. While I fully support these efforts, I also am aware that the international community would be unlikely to support international justice in the same way if an analogous conflict were to erupt in Iran or on Middle Eastern territory. The selectivity of international justice – and international diplomacy – is a blight on our record of fighting impunity for mass human rights violations.
If an ICC referral were possible, how could Iran be referred to the ICC? Iran is not a State Party to the Rome Statute. The ICC cannot exercise jurisdiction over Iran of its own accord. It is next to impossible that Iran would accept the ICC’s jurisdiction under an Article 12(3) declaration. The only remaining avenue is for the United Nations Security Council to refer the situation in Iran to the ICC under its Chapter VII powers.
For this to happen, the international community would have to make the human rights situation in Iran a higher priority, enough so that such an option could be considered seriously. This is unlikely to happen, but the situation includes issues that are not directly linked to the ongoing protests regarding the hijab and Jhina’s death. For example, Carla Ferstman and Marina Sharpe analyzed the government’s practice of detaining dual nationals in the May 2022 issue of the Journal of International Criminal Justice. Many people with links to Iran, including myself and my late dad, Dr. Hamid Zangeneh, have been afraid of visiting our other home for this very issue. Ferstman and Sharpe argue: ‘Iran’s practice aligns with the definition of crimes against humanity under international criminal law, in particular the underlying offences of imprisonment or other severe deprivation of physical liberty, torture, and persecution.’ (p 405) There are enough examples of human rights abuses for the international community to consider the possibility of a Security Council referral to the ICC.
I don’t know how to make human rights in Iran a higher priority on the international community’s agenda, and I do not purport to offer any solutions. I am merely trying to ask questions and continue the discussion. Iranians deserve better. Something must be done, and it must be done now.