A Candid Discussion with Payam Akhavan

 As the first legal advisor to the Prosecutor’s Office of the International Criminal Tribunals at The Hague, what have been the key highlights of your work in this area?

When I first arrived at The Hague in 1994, I could scarcely imagine that I would leave the Tribunal with Milosevic in prison awaiting trial.  The prevailing “culture of impunity” and cynicism in international politics made this outcome a remote possibility. I believe that his arrest was made possible because the international community realized that accountability for crimes against humanity isn’t merely a moral issue, but that it is also an issue of governance.

Sustainable peace and stability is not possible if hate-mongers and human rights abusers are in power.  Their stigmatization and removal is essential to post-conflict peace-building and a meaningful democratic transformation.  The Milosevic trial broke a taboo in international politics, and the image of a once untouchable tyrant as a defendant at The Hague, emboldened human rights advocates everywhere, who could now imagine a different future horizon for global justice.  The subsequent developments, such as the Rwanda Tribunal, the Sierra Leone Special Court, the International Criminal Court, came in the wake of the precedent created by the Yugoslav Tribunal.  Today, we take for granted that tyrants may end up in the dock; but that is not the way the world looked back then.  Despite this sense of moral triumph however, I also felt a sense of futility at times, because no punishment could do justice to the suffering of victims that I had witnessed on the ground in Bosnia.  Hannah Arendt famously remarked after Nuremberg that the Nazi crimes “explode the limits of the law.”  Prosecutions cannot bring back the dead; they cannot undo the unspeakable evil that has been done.  But I found on many occasions that for survivors, public recognition of the truth was very important, both for their healing and for national reconciliation.  Silence and denial are a continuing injustice that is itself linked with the physical crimes, so documenting and exposing the atrocities and identifying the culprits, is itself a highly worthwhile goal, let alone the prosecution of the most senior leaders.

One of the projects that I have worked on for the past decade is to apply my experience in former Yugoslavia, Rwanda, and elsewhere, to my country of origin, Iran.  In 2004, while at Yale, I founded the Iran Human Rights Documentation Centre with some colleagues, in order to objectively document and analyze the criminal responsibility of Iranian officials for grave human rights violations, many of which qualify, in my opinion, as crimes against humanity.  In the 1980s, up to 40,000-50,000 Iranians were executed–including an estimated 4,000 political prisoners in a short period in 1988 alone–based on a fatwa by Ayatollah Khomeini.  After the 2009 post-election protests, the world witnessed with its own eyes the brutality with which the Islamic Republic treats its own citizens, as a wave of murder, imprisonment, torture, and rape, simply because people were asking for justice.

The Iranian Government systematically discriminates against its citizens based on religion and political opinion.  Human rights abuses are integral to its policy of maintaining power at all costs. Tyrannical regimes however cannot rule indefinitely through intimidation and violence, not least in a country like Iran, with an overwhelmingly youthful, highly educated and resourceful, and internet savvy population.  Legitimacy is very important which is why so much time and effort is invested in propaganda to deny human rights abuses and to portray democracy activists as part of a “foreign conspiracy”.

Many feel despondent that it is not possible today to bring these leaders before the International Criminal Court.  So I have tried to explain that justice does not occur overnight.  It requires a movement demanding accountability, it requires documentation, it requires targeted sanctions such as the travel bans and asset freezes adopted by the US and EU based on the role of officials in human rights abuses rather than the nuclear program.  The “Mourning Mothers” movement in Iran is very significant; they are simply asking who will answer for the murder and disappearance of our children?  The fact that the regime harasses and imprisons them is a sign of its profound weakness; in effect, with all its wealth and resources and capacity for intimidation and violence, the Islamic Republic is even afraid of “Mourning Mothers”!

We feel that there is now a momentum asking for justice–that the Iranian leadership must now realize that they may one day not be in power and will be held accountable.  This is essential to a meaningful democratic transformation because we must change the culture of politics, the cost-benefit calculus of using human rights violations as an instrument of power.  Iran will not change if one group of tyrants replaces another group of tyrants.  We must build civil society, a democratic culture so that whoever is in power will know that the people demand accountability.

What is your outlook on Libya? With the country’s nomadic and tribal social makeup and the inter-tribal violence becoming increasingly common, how do you see the post-Gaddafi Libya evolving?

As you are aware, I am counsel for Libya in the Gaddafi Case before the International Criminal Court.  I will not comment on that case, which is still pending.  But I will share some reflections on my recent visit to Tripoli during which I met with the Prime Minister of the National Transitional Council and other senior officials.  The Libyan people are emerging from more than 40 years of dictatorship under the Gaddafi regime and the trauma of the mass-murder of an estimated 30,000 civilians during the 2011 uprising.  There is a palpable sense of excitement and optimism now that the Gaddafi regime is gone.  But it is clear as elsewhere in the world that building a new democratic society in the wake of such a dark past is a difficult task.  It is really an historical transition throughout the middle-east and we cannot forget that it took European nations almost four centuries from the 1648 Peace of Westphalia to the conclusion of the Second World War in 1945 to achieve democracy and regional integration, having experienced the convulsions of violent revolutions, total war, and genocide.  So the Libyan people are waking up to a new day, and they are now beginning to piece together a new State amidst the ruins, to disarm tribal militia and build new institutions, to create independent media and civil society, to engage in conversations and dialogue that were impossible just a few months ago under the Gaddafi regime.  We should have no illusion that this will be a complex and difficult task.  There will be setbacks and many challenges.  But there is no turning back to the past, and the painfully won freedom is an opportunity to engage in this historical transition, without violence.  I must say that I was very impressed with the Prime Minister, Professor El-Keib.  There are many highly educated and idealistic opposition figures that have been in exile in the US and UK and other countries for the past 30-40 years, who are now returning to rebuild the country.  They are very impressive, and I told the Prime Minister that, while I commend and celebrate this new era for the Libyan people, I am envious that we have not yet arrived at the same historical juncture in my native Iran!  Imagine all the highly successful Iranians in the diaspora, by some count 3 million of them, returning to rebuild their country.  It would completely transform Iran, but I pray that we do not have to go through what the Libyans did to achieve our freedom.  Once violence is unleashed, the process of democratic transformation becomes far more difficult.  There are so many stories from Libya, of parents who lost their children before their eyes, of massacres and torture that is beyond comprehension.  Many Libyans are scarred for life and their plight is a reminder that violence exacts a heavy cost.  Sadly, when tyrannical regimes massacre peaceful protestors, they make it increasingly difficult for the proponents of non-violent resistance.  Consider the situation in Syria; there was ample opportunity for a peaceful dialogue and transition, but for the Assad regime, compromise was weakness, and it was imagined that the only solution is mass-atrocities and terrorization of people into submission.

Every military intervention entails a period of social and economic disorder whose hallmarks may include disintegration of institutions from the preceding order and socio-economic instability. Given the implications of humanitarian military interventions and their adverse effects on the human condition, how should one reconcile the paradox of military intervention and democratic principles?

I believe that armed force should be used only as a last option.  But sometimes, use of force is required, as in Bosnia in July 1995, where the Bosnian Serb Army massacred 7,000 Muslim men and boys in a “UN Safe Area” supposedly protected by UN peacekeepers.  The same applies to Rwanda where the 2,500 UN peacekeepers were evacuated instead of being given the weapons and mandate to protect the Tutsi minority, almost 1 million of whom were exterminated before the eyes of the world community.  I have little doubt that without the air campaign against the Gaddafi regime, the citizens of Benghazi would have been slaughtered.  We would have had another Srebrenica.  Is war desirable? Definitely not.  Is it sometimes the only option?  Sadly, yes, but there must be great caution and careful calculation in deciding when it is appropriate.  And there will be circumstances where war will dramatically worsen the human rights situation, such as in Iran, where American or Israeli air strikes will be the perfect excuse for the Islamic Republic to engage in mass-executions against opposition movements and to strengthen its grip on power because of the need to fight against a common external enemy.

With the rise of Islamist parties in local and national elections in the post-Arab Spring Middle East, what potential, in your opinion, Iran holds in influencing the political process?

When I was with the UN in Cambodia, I recall a conversation with a distinguished man who said that he sent his son to study in Moscow during Soviet times rather than the Sorbonne in Paris, because he wanted to ensure that he doesn’t become a communist!

The Iranian people, unlike those in most of the Arab/Islamic world, are in a post-ideological phase of historical consciousness.  Their romance with political Islam has come to an end, and the sober experience of three decades of totalitarianism, with its violence and corruption and anti-human ethos, has made secular compromise and tolerance more important than an idealized utopia on the alter of which human rights are sacrificed.  As in Europe, populism is one of the phases of a democratic transition, and when all political life was suppressed, when all opposition found refuge in the mosque, when there was no grassroots alternative such as civil society, it is predictable that Islam, in its various expressions, whether moderate or radical, will grip the imagination of the masses.

It is important to give people the opportunity to experiment, and skepticism with authority. Understanding the difference between sublime beliefs and the profane temptations of power is all part of a learning process, but hopefully one that will not be at an exceedingly high cost, such as in Iran, where tens of thousands have become victims of murder and torture.  Fukayama famously remarked after the collapse of communism in Europe that this was the “end of history.”

I think that in the Middle-East, we should say that the collapse of authoritarianism is the “beginning of history”, or at least a new era in which we will have to learn the art of tolerance and compromise, and to build a culture in which power is a responsibility rather than a license for abuse.  We should also bear in mind that the appeal of Islam is also partially a response to the cultural excesses of what Professor Barber calls “McWorld”.

As people struggle to come to terms with modernity, they must determine how to define themselves culturally, how to maintain spiritual and communal values that were long forgotten in most Western cultures.  People do not sacrifice their lives for freedom merely so they can enjoy consumer capitalism and the cultural and spiritual wasteland that it leads to.  There shouldn’t be an assumption that just because Muslim people want freedom, that they also want to import wholesale American culture, that they have no civilization and culture of their own, or that such heritage cannot be adapted to the modern world.

I actually think that post-modern societies are already in search of retrieving spiritual and communal roots of social life amidst the existential angst created by a culture of self-indulgence and materialism.  The rich spiritual traditions of the East have much to contribute to the West.  Consider that the 13^th century Persian mystic Rumi is one of the best-selling authors in America!  But to take pride and to find meaning in one’s culture and spiritual tradition doesn’t necessarily mean that one must embrace an absolutist theocratic State.

Political Islam has more to do with modernist ideologies than it has to do with tradition.  Consider that 500 years of Shi’ism in Iran from its adoption as the official religion by the Safavids in 1501 was characterized by “Quietism” and the separation of State from religion.  The myth of “velayate-faqih” or rule by Islamic jurists had no historical precedent, and was opposed by many orthodox clerics, many of whom are persecuted today.  There are more Ayatollahs in prison today in Iran than there was under the pro-western regime of the Shah!

Many of those calling for separation of political and religious power are devout pious Muslims.  Consider the case of Grand Ayatollah Montazeri who was one of the harshest opponents of the regime. It was said that the Holy Roman Empire was neither Holy nor Roman!  Today it can be said that the Islamic Republic of Iran is neither Islamic nor a Republic.  It is less a theocracy as is commonly imagined, and more a combination of kleptocracy and autocracy, where gross abuses of power are justified in the guise of appeals to divine mandates and cultural authenticity.

Iran and China are two repressive states with similar methods of repression. However, over the past three decades one has been on the economic ascent with state ideology taking a backseat (China) while the other (Iran) has been in continuous economic decline with an unbending state ideology. What do you think makes China and Iran go opposite directions economically and ideologically?

It is very difficult to compare China and Iran given their widely divergent cultures and circumstances.  It is like comparing apples and oranges.  But it would appear that dependence on oil may have distorted Iran’s economy and steered it away from manufacturing and agriculture as has been the case in other petroleum rich countries.  China has had to rely on greater discipline and ingenuity to compensate for its massive population and comparative dearth of natural resources.  It is also clear from the time of Deng Xiaoping onwards in the 1980s, China moved from ideological absolutism to pragmatism, and that the Iranian leadership, despite some openings under the Khatami regime and in the 2009 elections, is such that the hardliners have prevailed.

The Chinese model combined political control with economic prosperity, which has prevented democratic demands from becoming popular movements.  Iran has combined political control with economic decline. Had the Islamic Republic been wiser and its leadership invested in creating a healthy transparent economy with rule of law, it would have attracted foreign investment, spent less on the security state and more on education and healthcare, and created prosperity and opportunities for the 70% of the population that are under 30 years of age.

They should do this out of self-interest because if people have nothing to lose, they will come back out in the streets and demand change, out of economic pressure. While there are many profound differences between Iran and China, the unhealthy dependence on oil, the corruption and neglect of other economic sectors are clearly an important factors.  A new Iranian leadership, by fighting corruption and mismanagement, could transform Iran into an economic powerhouse.  Iran’s GNP is half that of Turkey, whereas 35 years ago it was the opposite.

Instead of trying desperately to acquire nuclear capability, had Iran invested in building a diversified and efficient economy rather than buying the loyalty of the Revolutionary Guards and clerical families through mafia-like distribution of wealth and monopolies, Iran would have been one of the most powerful countries in the world given its natural resources, its key geopolitical position between the Persian Gulf and Central Asia, and most important, given the incredible talent, education, and sophistication of its people.  We need to redefine what a powerful Iran should look like, beyond the militaristic and authoritarian conceptions of the Islamic Republic.

What were the key factors that enabled the Iranian government to restore a state of calm in the post-2009 elections and slow, if not halt, the pace of change in Iran?

Since Iran’s Islamic rulers came to power in a popular uprising in 1979, they understand how to control and neutralize protest movements such as the “Green Movement” of 2009.  For example, it was clear that the Revolutionary Guards would refuse to attack peaceful protestors, even if their leadership wanted to, because of their sympathy with the people in the streets.  So it was necessary instead to pay Basij plainclothes thugs to do the dirty work.  It was also clear that if the armed forces massacred people all at once, the legitimacy of the regime would be destroyed.  So instead, people were arrested, and brutally tortured and raped in prisons, in order to crush the spirit of the civil society movement.

Massive propaganda efforts such as “show trials” and control of the internet and satellite TV broadcasts were also used to portray the protestors as “thugs and criminals.” The actual death toll was kept secret since many families were forced to sign forms indicating that their children died of “natural causes” in order to be allowed to retrieve their bodies for burial.

But despite all these efforts, the Green Movement severely undermined the regime’s legitimacy by exposing its brutality and hypocrisy.  The regime has survived but at a great cost.  And it is only able to maintain power through tremendous effort by creating a security state.  In the long run, it is untenable to continue indefinitely to control Iran as if it was North Korea.  Sooner or later, these same latent forces will re-emerge.  There is tremendous anger and frustration at the repression and corruption and there are also profound political fault lines between the hardliners, such as the cleavage between Khamenei and Ahmadinejad.  The loss of regional influence, including the desperate situation of the Assad regime, and the continuous economic decline all suggest that those in power today face a bleak future.  So I would say, to adopt a metaphor, the hardliners’ ship is still afloat, but it is badly listing on its side.

With a new round of nuclear negotiations between Iran and the world’s major powers to get underway in less than two weeks in Moscow, do you think removal of sanctions against Iran should be contingent on tangible and verifiable improvement in the country’s human rights record and access to its dissidents and political prisoners? So far geopolitical considerations have far outweighed those of human rights, haven’t they?

The real problem with Iran is the nature of the regime and not nuclear capability.  Both in solidarity with the Iranian people, and in order to create regional stability, the focus of the international community, as we have argued for many years, should be improvement of human rights rather than an exclusive focus on the nuclear issue.  Consider the secret nuclear programs under the military regimes of Argentina and Brazil or apartheid-era South Africa.  All were discontinued upon establishment of democratic rule.  Why? Because a democratic regime requires popular legitimacy, responsiveness to the bread and butter issues affecting everyday life rather than militarization and conflict, which is essential to buttressing an authoritarian rule.

Where would the Islamic Republic be without enmity with America and Israel?  How could it deflect attention from its repression and corruption without branding all domestic dissent as an evil “foreign conspiracy?”  The democratic transformation of Iran is the only lasting solution to peace and stability in the Middle-East, and the same applies to the Arab countries in the region.  We succeeded after many years of struggle to persuade the US and EU to adopt targeted sanctions such as travel bans and asset freezes against Iranian officials responsible for human rights atrocities rather than participation in the nuclear program.

When Iranian officials are individually blacklisted this way, they have to ask themselves what will become of them when they invariably lose power.  They must ask themselves what the cost-benefit calculus is of using human rights abuses as an instrument for preserving the regime.

Suppose that Iran agreed to cease uranium enrichment and to strike a “grand bargain” with the US and EU; would human rights be forgotten?  The answer is probably yes, and this would certainly not help the people of Iran.  Putting human rights first and incentivizing a peaceful democratic transformation would create a win-win situation for both the Iranian people and the international community.  As with apartheid-era South Africa, the cost of denying majority rule should become so great, that the elites will realize there is no way out, except through negotiation and compromise.

In recent years Canada has been criticized for having been used as a ‘safe haven for blood money’. Previously, you have indicated that the Canadian government should pay more attention to the flow of money into the country. Can you elaborate on this issue and do you envision legislative measures that could lead to preventing the flow of ‘blood money’ into Canada?

Going back to the theme of the Islamic Republic as kleptocracy rather than theocracy, there are indications that while indulging in anti-Western rhetoric, regime insiders have brought billions of dollars into Canada, including in particular the real-estate markets of Toronto and Vancouver.

It is incongruent for Canada to exercise leadership at the UN in adopting resolutions condemning grave human rights abuses in Iran while welcoming the dirty money of the same regime without asking any questions.  The case of Mr. Khavari, former president of the National Bank of Iran, was shocking for Iranian-Canadians.  He was allowed to gain Canadian citizenship and enjoy his mansion and wealth in Toronto while holding a senior position in an Iranian financial institution considered widely the financial lynchpin of the Revolutionary Guards including the overseas terror operations of its Qods Brigade, not to mention Lebanon’s Hezbollah and Hamas.

Mr. Khavari entered Canada under such favorable circumstances when Iranian refugees that are victims of rape and torture had to languish in Turkey in fear of attacks by Iranian agents, waiting many months, hoping to get asylum in Canada.

The Canadian Government has said that Canada pursues a “no haven” policy, that it does not want to become a country in which tyrants and their families can park themselves and their money.  But actions speak louder than words and it is time to clean up Canada’s act and demonstrate, through prosecutions and other actions, that it is serious about the “no haven” policy, even for people with tremendous amounts of money.

During the 1980s, Iranian agents assassinated close to 300 political dissidents in European cities, including Paris, Berlin, and Vienna, with virtual impunity.  They knew that with their ill-gotten fortunes, they could buy influence.  We have to ask what kind of networks the Islamic Republic has established in Canada with all this money?  What kind of message is being sent to leaders when beyond some condemnations of their human rights abuses, their money is safe from any action?  This is an essential ingredient in changing the cost-benefit calculus of using atrocities as an instrument of power.