McGill Q & A: Payam Akhavan

McGill Law Professor, former United Nations war crimes prosecutor and human rights activist Payam Akhavan traveled to Ottawa March 27th and 28th to appear before the House of Commons Subcommittee on Human Rights on how Canada can seek justice in the torture and murder of Iranian-born photographer Zahra Kazemi. Akhavan also brought his appeal for an indictment of Tehran’s Chief Prosecutor Saeed Mortazavi, who has been implicated in the death, to a meeting with Prime Minister Stephen Harper.

Q: The Human Rights Subcommittee has passed a motion to launch a criminal investigation into the involvement of Iranian Prosecutor General Sayeed Mortazavi in the torture and murder of Zarah Kazemi…now what?

A: The investigation will be pursuant to Section 269.1 and 7(3.7)(d) of the Criminal Code, which confers jurisdiction on Canadian courts to prosecute the crime of torture extra-territorially, provided that the victim is a Canadian citizen. This motion has now been adopted by the Committee, and will eventually be adopted by the House of Commons.

Q: Why is it so important to you, both as a human rights lawyer and as an Iranian-born Canadian, that Canada take a stand on this?

A: A Canadian citizen has been ruthlessly raped, tortured, and murdered, under the authority of a senior Iranian official, with seeming impunity. We cannot allow this to stand. Human rights violations are not committed by abstractions which we call Governments; they are committed by individuals, and international law can only be effectively enforced by holding such officials individually responsible. The indictment of this highly notorious official who is responsible for the arrest, torture, and murder of hundreds of dissidents in Iran will also send the message to the Iranian leadership that there is a cost attached to such atrocities, that even if they are in power today, they will one day face justice. By exposing Saeed Mortazavi to such potential punishment, we will also embolden democratic forces within Iran who will see that the seemingly untouchable henchmen of the regime are actually more vulnerable than they seem. This is a vital element of an eventual democratic transformation of Iran from an authoritarian State that is a menace both to its citizens and to its neighbouring States, to a pluralistic and progressive State focused on improving the lives of its people and respecting their fundamental rights. At a time when we are facing the prospect of military confrontation over the nuclear issue, such a transformation is not merely a lofty aspiration, but a vital necessity.

Q: What sense did you get from the Prime Minister as to his commitment on this case?

A: I believe there is support in the Government for bringing Kazemi’s murderers to justice. But given the unusual circumstances of investigating crimes committed beyond Canada’s borders, there is some hesitation among some, particularly in the bureaucracy. It is important for Canadians to tell their Government that they want to see justice done in this case. But I still have confidence that Prime Minister Harper, having called for the provisional arrest of Mortazavi in June 2006 when Mortazavi attended the UN Human Rights Council meeting in Geneva, will follow through on his promise of bringing him to justice.

Q: What are Canada’s reservations…what is the diplomatic downside of prosecuting a public official of another country who allegedly took part in the murder of a Canadian citizen?

A: The primary concern is that Canada would further undermine its already precarious relations with Iran. But we have to understand that there are two Irans. There is the Iran of President Ahmadinejad and other hardliners committed to oppression and abuse, and the Iran of the vast majority that wants an end to an absolutist theocracy that is unresponsive to the people’s tremendous social and economic woes. Seventy percent of Iranians are 30 years of age and under. For better or worse, they are much more interested in Britney Spears than they are in Ayatollah Khomeini. Their struggle has been called the “lipstick jihad” insofar as they are young people who want to be part of the world, enjoy the same liberties and opportunities as everyone else. Canada has to invest in the future leaders of Iran and not be beholden to those who are tenaciously holding on to power. Their time will soon be up.

Q: What are the logistics of this if a resolution is passed? Can Mortazavi be extradited or is it mostly symbolic?

A: It is unlikely that Mortazavi will be extradited. But he will be unable to step foot outside of Iran, and when the day comes that his clique is no longer in power, he will not be able to simply emigrate to Canada or elsewhere, or stay in Iran and pretend that he is innocent. His indictment will also send the message to other Iranian officials that the world is watching, that they should think twice before they torture and murder innocent people; that in the end, crime does not pay.

Q: Why should this case matter to the average Canadian?

A: The Charter of Rights and Freedoms declares Canada as a multicultural society. We are a nation of immigrants, benefiting from the wealth, skills, and enterprising spirit of many cultures. We must also accept the burden of protecting our citizens, irrespective of their origin. Kazemi was a Canadian citizen who had spent many years in Canada. This was her home. And we owe it to her, and to ourselves, to tell the world that we will not allow a Canadian citizen to be murdered with impunity.

Prime Minister Harper requested a legal opinion from Prof. Akhavan on a possible Mortazavi case. That opinion is included below. Prof. Akhavan will be chairing the Echenberg Human Rights Conference at McGill in October.

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March 29th, 2007

Dear Prime Minister Harper,

It was a great honour and privilege to meet with you in Ottawa on March 27th to discuss the case of Ms. Zahra Kazemi.

You had kindly invited me to elaborate on the legal basis for a criminal investigation and indictment of Saeed Mortazavi, the Prosecutor-General of Tehran, who has been implicated in her torture and murder. In response, the following brief note is respectfully submitted for your consideration.

Section 7 (3.7) (d) of the Criminal Code specifically provides for jurisdiction over the crime of torture committed outside Canada if “the complainant is a Canadian citizen.” Article 5(1)(c) of the UN Convention Against Torture also provides that a State Party “shall take such measures as may be necessary to establish its jurisdiction” over the crime of torture “when the victim is a national of that State if that State considers it appropriate.” The exercise of extra-territorial jurisdiction to protect Canadian citizens against international crimes is wholly consistent with both Canadian and international law. Since Ms. Kazemi was a Canadian citizen under Canadian law, the fact that she was also a citizen of Iran is irrelevant under the Criminal Code. Furthermore, based on her long-standing residence in Montreal, she is deemed to be Canadian under international law because that was her “real and effective nationality, that which accord[s] with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved.”

Without access to Iran, an investigation against Saeed Mortazavi may be difficult, but not insurmountable. There is considerable evidence outside of Iran, both documentary and witness testimony, that could establish his role in her torture based on his position of authority, the broader context of systematic criminality at Evin prison, and his obstruction of justice after her death. For instance, the Iran Human Rights Documentation Centre in New Haven, Connecticut, has published a detailed report “Impunity in Iran: The Death of Photojournalist Zahra Kazemi” that provides a solid basis for an investigation. As a matter of principle furthermore, the protection of Canadian citizens’ fundamental rights should not depend on ease of access to evidence.

By pursuing criminal charges against Mortazavi, the Government of Canada will demonstrate that it upholds elementary human rights principles and send the message that Canadian citizens cannot be tortured and murdered with impunity. Furthermore, Canada will express its solidarity with the pro-democratic and human rights movements in Iran many of whose members have also suffered at the hands of Mortazavi.

On behalf of the thousands of Canadians that have called for justice in the case of Zahra Kazemi, I appeal to you, Mr. Prime Minister, to follow through on your courageous call in June 2006 to bring Saeed Mortazavi to justice. I have faith and confidence that the Government will rise to this challenge and do what is right.

Payam Akhavan, S.J.D.
Associate Professor
McGill University Faculty of Law