Resilient Totalitarianism and the Challenge of Justice

Iran Human Rights: Events of the last few years have made the future of the Islamic Republic more uncertain than ever. The economic crisis has pulled a large sector of society into poverty and exposed systematic corruption and the authorities’ incompetence in solving people’s daily problems. Faced with discontent, the Islamic Republic’s only recourse has been to violently repress popular protests. The question is no longer "when” but "how" Iran will transition from authoritarian rule. An unaddressed question that requires an exploration of the alternative models that may fill the power vacuum following the collapse of the Islamic Republic.

Iran Human Rights has invited experts and academics to start the discussion on "Iran in Transition" from their respective specialist fields. 

Read more about the aims of "Iran in Transition"

In this essay, Farangiss Bayat explores "Resilient Totalitarianism and the Challenge of Justice." You can watch Farangiss presenting his paper at the end of the essay at the "Iran in Transition" online conference held on 31 January-1 February 2022.

Farangiss Bayat, PhD in Political Science from the Institute of Political Science (IEP), Lyon, France. She has worked in the fields of international relations, Iran foreign policy, social policy and women’s issues. She has held various advocacy, activism and social movement workshops with civil society organisations. She has worked in various written media inside and outside of Iran. In recent years, she has written articles on the areas of war, exile, reparative justice, and the challenges of state-building in mosaic societies. She recently published a book on the origins of the Yugoslav Wars and is currently completing an independent research project entitled "Iranian Diaspora: Policies of Memory.

Abstract: Mass atrocities and repression are not only characteristics of totalitarian regimes, but also the foundation of their identity, and their survival is made possible by the cyclical and continuous use of violence. The challenge faced by opposition forces working in human rights and politics, is dealing with this form of violence through seeking justice in courts or to achieve “rights” or restore “rights” or to make up for the breached and lost rights. How to confront the enduring existence of such regimes and their recurring use of violence is a subject barely discussed by transitional justice or public debate. Transitional approaches or even people’s tribunals have largely followed the post-conflict justice approach. There seems to be a great need for a framework which can respond to these two characteristics (longevity and cycle of violence). This approach requires us to connect the justice framework to the transitional period from the regime. We must have answers for the longevity of the regime. To do so, we must pursue it through concomitant justice.

Overview

Mass human rights violations and mass atrocities are recognised as the basic functioning identity of totalitarian regimes. The challenge of achieving justice in the face of the Islamic Republic of Iran, which we recognise as resilient totalitarianism,[1] is a multifaceted challenge. First, these regimes have survived through different decades. Their political system has been accompanied by committing mass atrocities. We are facing an accumulation of crimes. We have yet to find a mechanism to stop the violence and the regime is still in power and the continuation of their rule makes it almost certain that the atrocities will be repeated. Like all forms of accountability, seeking justice against the Islamic Republic must be able to act as a deterrent. To stop the regime from committing mass crimes “again”; on the other hand, the regime is systematically concealing its crimes. Victims of breaches must first be able to prove that a crime took place and then counter the regime propaganda and disinformation seeking to fundamentally change the narrative of the crime and prove that the violence was carried out by the authorities’ decisions and actions. The justice approach has not confronted the issue of the regime’s longevity and the possible recurrence of mass atrocities. Most justice movements have followed the post-conflict justice model. There seems to be a great need for a definition of justice that can respond to these two characteristics: 1. longevity of regime and 2. Recurrence of mass atrocities. This approach requires that we connect the concept of justice to the transitional period from the political regime. This article addresses these challenges by laying out the unique position we are in. To overcome these challenges, it proposes the concept of “concomitant justice.” A concept that seeks to distinguish between seeking justice in post-conflict vs. concomitant-conflict situations. Concomitant justice also emphases the need to take a position that can place the political nature of the regime under the human rights microscope and relies on very recent legal concepts like the “responsibility to protect” (R2P). Concomitant justice seeks to establish a connection between the political nature of the regime, which is resilient totalitarianism, and seeking justice.

Continuous and chronic human rights violations in the Islamic Republic of Iran

In past decades, we have witnessed the Islamic Republic’s systematic human rights atrocities. We have been unable to make them retract or reduce it. Iranian society has borne part of these crimes’ burden, sought justice domestically and internationally, recorded its evidence and successfully held two people’s tribunals and one criminal prosecution. However, the Islamic Republic has relentlessly continued to commit atrocities and its victims have, decade after decade, clawed at the wall of restrictions to expose and record the crimes. Stopping this cycle of atrocities requires a concept that takes into account the characteristics of such mass violations, aims to stop the crimes from taking place and move closer to legal concepts such as “responsibility to protect” as a recent concept in public international law.

‌Basis: The continuity of crimes, the timing of their occurrence and the absence of a "past"

Since the establishment of the Islamic Republic, there has been systematic mass atrocities  in the form of extrajudicial executions, mass enforced disappearance, several mass protest crackdowns in the 1990s, 2000s and 2010s, the systematic eradication of dissidents and critics, and assassinations and disappearances of dissidents, political forces and intellectuals both in Iran and abroad. In the course of four decades, not only have the crimes not declined, but have taken more complex forms by each decade. The longevity of the government has meant an accumulation of crimes: the execution of officers of the royal army in Tehran schools in the immediate aftermath of the 1979 revolution, the 1980s executions, the violent crackdown in Kurdistan and the 1988 massacre are all examples of its accumulated crimes. Violent repression has become a tool for the regime's persistence and resilience over the decades. No transitional justice model can lead to justice without taking into consideration the element of the continuity of the crimes. No justice model can achieve justice without taking into consideration the totalitarian and longevity nature of the regime.

If we approach such crimes with the transitional justice approach, the limitation we face at the start is that the crimes are ongoing. Transitional justice arises in two sets of constellations: either as seeking justice for accountability in post-war or internal armed conflict societies or when dealing with human rights breaches by dictatorships and authoritarian regimes.[2] Both require that the crimes not be ongoing and in the past. The “past” is the main principle of this concept. However, we are facing a continuation of these crimes. The crimes have not stopped yet for us to take the post-conflict approach.[3] However, it has been said that transitional justice has a somewhat backward looking and concerns itself with justice for past atrocities, in order to deal with the past as a means of cultivating it as a tool to build a better future.

But the main challenge in dealing with the Islamic Republic’s accumulated crimes is that we cannot start from the “past.” The “past” is still unattainable. Transitional justice can only be used when a zero point has been achieved in the cessation of the crimes, we have not reached that point yet.

Policy: Updating denials

From decade to decade, the government has intensified and updated its policy of denying crimes, and in recent years, with the help of its vast propaganda apparatus and the international media, has sought to conceal and manipulate the unprecedented nature of these crimes. The denial and manipulation includes reducing crimes to “incidents”, “accidents” and “human errors.” Rather than focusing on the crime, seeking justice under such circumstances is stopped in its tracks at a more rudimentary stage. For the justice movement and victims’ families must first act against the concealment of crimes, then prove that what happened was a crime and not an incident. It is only after proving this “past” that they can begin the process of seeking justice. Unlike other justice movements around the world, the Iranian justice movement is at point “zero” in proving the crimes took place.

Their quest for justice begins with what can be called "visbilising crimes." Victims still face denials by the current regime. The justice movement is seeking justice while the crimes are ongoing and must first prove what has taken place is a “crime.” This situation is therefore, significantly distinct from the post-conflict model. In post-conflict societies, justice begins with the assumption that the crimes took place in the previous regime. Fundamentally, in a post-conflict atmosphere, we start with details of the crime in order to identify the perpetrators, hold the perpetrators accountable, reconciliation and… prevent their recurrence and establish peace. This is while, in the justice movement during the Islamic Republic’s reign, the “past” commonly used in post-conflict prosecutions and procedures, is absent. We must first make the crime “visible”, build a past, and then seek justice. This challenge is complicated further given the denial of the crimes. The Islamic Republic’s propaganda network and a large number of individuals who fuel the regime’s policy of “denial” when analysing and explaining violent events taking place in Iran in international media, research centres and academia, make this even more difficult.

Denial and concealment of the atrocities that took place in the first two decades of their rule were largely based on allegations of armed collaboration and sabotage. Some of the aforementioned networks usually reduce bloody crackdowns of protests to “vandalism” by protesters or the shooting down of Ukrainian flight PS752 to “human error” and perpetuate the crimes in line with regime policy. The policy of denial, which runs in a series of official government policies and media disinformation, has made seeking justice yet more difficult for Iranian society, even in the diaspora. The challenge, which goes back to the regime’s political nature and its resilience, is a reflection of its political “longevity” and the possibility of the “recurrence” of crimes.

Concomitant justice: a passage to pass the trap of crime continuation and regime survival

In the current situation, challenges such as a) the accumulation-repetition of crimes and b)

The regime’s lengthy rule makes it impossible for us to apply justice to the “past.” Chronologically, we are stuck in the inability to bring criminal cases or are limited to symbolic actions like people’s tribunals. To date, only the Swedish judiciary has managed to prosecute one of the perpetrators of the 1988 massacre. Such an opportunity may not arise again and similar trials may be further delayed when faced with limitations such as non-compliance with the principle of universal jurisdiction. To further explain the need for "concomitant justice," let us first compare the goals between this justice and transitional justice:

In transitional justice or post-conflict justice, usually all parties are present and sometimes accountable. The court’s compass is usually pointed to the future and the purpose of the trial is to prevent the crime from repeating in the future and determining the perpetrators’ responsibilities. Post-conflict courts inherently seek some kind of public reconciliation and redressing of the past. A kind of invitation to accept and forgive what should not have happened. Transitional justice mechanisms seek to:

1. Accountability (domestic/international/hybrid courts) [holding accountable]+ clearance and expulsion mechanisms
2. Truth (truth commissions/museums/forensic research/archives)
3. Reparations (material/immaterial, medical care/psychological care/legal support/official apology)
4. Amnesty
5. Institutional reform (dissolution of militia/institutional peacebuilding) and…

This is while in concomitant justice, we must try to stop the atrocities and “visibilise the crimes” before we can seek “non-recurrence.” Currently, more than the need for “non-recurrence”, we should be focused on the current situation and calling for the “cessation of crimes.” In concomitant justice, there is a simultaneity of time with the occurrence of crimes. This temporal and parallel symmetry means that we have not been able to stop the crimes. It seems that the justice phase will not begin until we can stop the current “possibility” of crimes being committed.

Another important point to note is that as a post-conflict approach, transitional justice is not concerned with the nature and structure of the criminal regimes. It seeks justice regardless of the political connections and balances of the “perpetrators” of the crimes; while in concomitant justice, one must understand the nature of the regime, have a political-legal plan to stop it and prepare a framework for the transition from the regime.

Only then can something be done to stop the regime and, consequently, to stop the crimes. Concomitant justice is closely connected to confronting the ruling regime politically-legally and as such, relies on the principle of “responsibility to protect.”

Political confrontation to realise legal justice

In the past decades, there have been various experiences of seeking justice for mass atrocities. Addressing mass and generally systematic atrocities as was done in Rwanda, Bosnia, Kosovo, Myanmar, Argentina or Vietnam, carries the message that the atrocities committed by the authorities were not accidents or one-off incidents. They occurred on a systematic basis. International laws and principles have also been evolving in favour of providing greater protections of the population against mass atrocities by the state. We have witnessed the nature of wars changing from international conflicts to internal armed conflicts. The killing of citizens by the state has been the biggest challenge since the end of the Cold War. The painful experiences of the past have gradually shifted the paradigm of the “right” of the state to the “responsibility” of the state. Whereas prior to this, citizens were unable to seek legal means of redress in the aftermath of mass atrocities against the historical authority of the state, in the last two and half decades, cases of genocide, crimes against humanity and ethnic cleansing have eroded the undisputed authority of the state over the fate of individuals, creating new paths for the citizens.[4] The paradigm of “never again” by Kofi Annan against widespread and systematic crimes affirmed that mass killings should never happen again.

In response to Kofi Annan’s appeal and in seeking to address the failures of preventing mass atrocities, particularly in Rwanda, Bosnia and Kosovo, a panel of legal experts made an important and unprecedented proposal to stop states from committing mass atrocities. The International Commission on Intervention and State Sovereignty (ICISS) which was set up in the wake of Kofi Annan’s call, proposed the doctrine of “responsibility to protect (R2P)” at the 2005 United Nations World Summit, which was ultimately adopted.

This coincided with the doctrine of “humanitarian intervention” being questioned over criticisms that it was used for the political motives of regime change. Thus, R2P also sought to address the loss of credibility while establishing a new legal basis for the protection of populations against tyrannical regimes. The principle of R2P emerged due to the international community’s failure to fulfil its mission of ensuring the safety of populations. "Responsibility to protect" as a redeeming approach to protect populations from state oppression became a central norm for ending internal political violence and addressing "the human needs of those seeking protection or assistance."[5]

The principle of “Responsibility to Protect” places responsibility on states to protect their citizens from genocide, war crimes, ethnic cleansing and crimes against humanity. Instead of focusing on the political consequences, R2P intended to focus on the situation of the population and use the trigger mechanisms according to their needs. Over the past decade, the principle has slowly become a reliable soft tool. It has only been cited once by the Security Council in the case of Libya. It is clear that it is far from being accepted as a customary “norm” in international law and is still in its teething stage.

If we can change the approach in post-conflict justice and move towards concomitant justice and adopt a framework based on the principle of protecting the population from the Islamic Republic’s atrocities and crimes, it will also lead to establishing preventative measures against states committing atrocities against their population.

Transitional justice in the sense we refer to – justice that deals with atrocities/crimes at a time period after they have been committed by the previous regime, requires a unique approach in order to be sustainable in the in long term; we need to move away from the “top down” and “one size fits all” and listen to voices requesting help from the “down.” Such an approach can be achieved by replacing transitional justice with concomitant justice.

Aban Atrocities Tribunal

The Aban Atrocities Tribunal was established as “a minimum form of justice and accountability” for victims of the November 2019 nationwide protest crackdown. It is a commendable endeavour to hold a people’s tribunal while the perspectives are unpredictable, it is not possible to achieve justice, access to truth, prosecutions or to reform the responsible elements. The Tribunal was inspired by the Russell Tribunal which investigated war crimes committed in the Vietnam war by the United States. The Tribunal is legally non-binding but can have symbolic and real basis for legal criminal proceedings in the future. Just as evidence gathered by the Iran Tribunal investigating the 1980s crimes were used in the prosecution of Hamid Noury in Sweden. There are a few important points to note: that the Aban Tribunal is based on the Russell Tribunal and of course the 2002 Rome Statute. The Aban Tribunal is a trial aiming to administer justice: there is a litigation process and it follows the post-conflict prosecution model. This means in order to bring justice to the victims (all victims), it identifies the individuals responsible for the atrocities committed and also establishes that crimes have taken place. The mechanisms for people’s tribunals are triggered after the mass atrocities have ended, and thus, they are predominately based on the same principle as transitional justice.

But the questions I raise here are a continuation of what the Iranian human rights community has tried to achieve in this tribunal and perhaps an alternative approach. The point to note is that grassroot groups and independent activists may be able to establish courts with a different approach. It is no exaggeration to say that people’s tribunal proceedings are under the strain of post-conflict courts and have naturally followed their model. However, we can take steps to open a distinct chapter according to Iran’s circumstances [continuation of the regime and the continuation of crimes] and perhaps use new approaches that better explain our situation and help us achieve justice. Crucially, we must formulate these approaches, create their literature, and utilise the dynamic approaches to justice used in past decades to be able to seek justice while the regime is still in power.

The “concomitant justice” approach can help us change the way we approach the atrocities instead of simply “recording” the death toll (which has caused much justified controversy to date), be in a position to “visibilise” the crimes. That is, the purpose of the court should be defined as a stage prior to achieving justice, which is the “observance of crime.” We should reconsider ways to reach our target community, use mechanisms to expose the crimes and find unprecedented ways to expose the crimes, and strengthen and find international support for them.

Since the conflict in Iran is not over yet, simply taking the post-conflict justice approach does not help “visiblise” the crime, and can create differences between the victims and civil society which can lead to disappointing results.

It can lead to disappointment for the victims that human rights organisations do not understand our situation. This is while  the issue is the concept of the approach to justice, human rights organisations have no intention of not seeing or acknowledging the crimes.

We should use Aban Tribunal’s findings and controversies to further engage the target community for the next initiative or court that is equipped with the approach previously explained. We should pursue more strategies to involve even more popular, middle and independent groups and put out more public calls. Choosing judges from qualified Iranian figures who can better represent the public conscience will probably be more effective than judges who may not understand the complex political and repressive actions of the Islamic Republic. A communications strategy which publicly declares the financial sponsors of the tribunal would also be sensible. Knowing the sponsors and their intentions for supporting the tribunal would also attract more public support and thwart any distortions and propaganda by the Islamic Republic. Transparency will help us all. Unfortunately, a lack of sensitivity to accountability at this level is likely to cause a great deal of scepticisms in pursuing justice.

Another point to consider is the nature of the justice process, the trial itself. Currently, we have no way of establishing truth commissions. This is an important criticism of the Aban Tribunal. Some of the questions posed by Judge Jacob about people being armed in the Mahshahr canebrake crackdown were within the bounds of a truth commission. We do not have such a possibility. That line of questioning was not relevant to the tribunal and only a truth commission could have considered it. The tribunal was established with a “justice” approach and the search for "truth" is neither its duty nor does the tribunal have the power to prove or disprove this claim. People’s concerns about this line of questioning was completely justified. At the same time, it proved that if we cannot adequately deal with the Islamic Republic’s crimes with the defined approach, we will slip further away from the path of justice and create a lot of doubts about the principle of seeking justice in the current difficult situation.

Finally, I reiterate that justice will not be possible unless we adopt an approach that takes the regime’s nature into account. The volume of crimes is very high and even worse, there is a possibility of recurrence. It seems absolutely necessary to stop this killing machine. To visibilise what the Islamic Republic has established as governing practice, the “responsibility to protect” principle stands against that establishment.

[1] Glasius, M. (2017) Extraterritorial authoritarian practices: a framework. Globalizations, Volume 15, Issue 2: The Authoritarian Rule of Populations Abroad. Pp:179-197. https://doi.org/10.1080/14747731.2017.1403781

Heydemann, S. & Leenders , R. (2013) Governance, Contestations, and Regime Resilience in Syria and Iran: Challenged, Reconfiguring and Resilient in Middle Eastern Authoritarianisms. In the series Stanford Studies in Middle Eastern and Islamic Societies and Cultures. Stanford University Press.

[2] Why is transitional Justice important? Political Youth Network, Available: here

[3] Pathak, B. (2019). Generations of Transitional Justice in the World. Advances in Social Sciences Research Journal, 6(7)18-83

[4] Bellamy, A. & Dunne, T. (2016) The Oxford Handbook of the Responsibility to Protect. Oxford University Press.

[5] Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (2001) p. 15. Here