Shadi Sadr
Universal jurisdiction, a principle granting a state jurisdiction over crimes against international law even when those crimes occur outside its territory, is rapidly flourishing in law and in practice. In recent weeks, a new law in Germany has precluded the invocation of functional immunity in proceedings for international crimes, regardless of the accused’s rank, while a French court sentenced three Syrian officials in absentia to life imprisonment for war crimes. However, the transfer of a convicted Iranian war criminal by Swedish authorities—under the welcoming gaze of European Union (EU) officials—has raised serious questions about political influence on international accountability and the effectiveness of justice mechanisms that involve substantial taxpayer funding.
On June 15, Hamid Noury, an Iranian national who Swedish courts sentenced to life in prison for war crimes and murder, was released and returned to Iran. This marked the first and only universal jurisdiction case related to atrocity crimes in the Islamic Republic of Iran. Noury was arrested in November 2019 at Arlanda Airport in Sweden, and was subsequently tried by the Stockholm District Court over ninety sessions held in 2021–2022. He was found guilty for his role in the massacre of thousands of political prisoners in Iran in the summer of 1988, in what became known as the 1988 massacre, and the appeals court confirmed his sentence in December 2023. Noury’s release was arranged as part of a prisoner swap, during which Iranian authorities freed two Swedish nationals who had been held hostage, according to the unofficial admission of Iranian authorities.
There have been other incidents in which the foreign accused were returned to where they committed crimes for trial purposes.
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Rwanda’s requests to European governments for the return of genocide suspects so they can be brought to justice are an example. There have also been numerous cases of foreign hostages being used as pawns to free individuals detained for or convicted of terrorism, narcotics, or other offenses. However, this was the first time someone convicted of core international crimes—genocide, crimes against humanity, war crimes, and the crime of aggression—in a case of universal jurisdiction was transferred back to the same country where they previously enjoyed absolute impunity, only to enjoy it again.
This troubling move was a reaction by the Swedish government to the Islamic Republic’s policy of detaining foreign or Iranian dual nationals and using them as pawns to gain leverage in its dealings with Western countries. Not only was it a slap in the face to the victims, but it also created dangerous precedents that will have a long-lasting, damaging impact on the core purpose of the universal jurisdiction principle—and, more importantly, on the expansion and frequency of its application.
Rooted in the post-World War II trials and recognized by multiple treaties—including the 1949 Geneva Conventions and the 1984 Convention against Torture—the principle of universal jurisdiction is increasingly codified in national legislation. Given the horrific nature of these crimes, humanity as a whole cannot tolerate their remaining unadjudicated. The principle of universal jurisdiction enables national courts in third countries to address atrocity crimes committed abroad, holding perpetrators criminally liable and helping to prevent impunity. One of the most essential purposes of applying the principle of universal jurisdiction is to prosecute those who enjoy impunity in countries where the crimes occurred.
It should be noted that international crimes are often committed by state actors under state policies or plans, meaning that victims cannot expect proper accountability as long as the state in question remains in power. In other words, if the state where the crimes were committed is able or willing to exercise its jurisdiction, other countries generally do not invoke universal jurisdiction to prosecute perpetrators. Similarly, if a person is convicted under universal jurisdiction, and the country where the crime occurred later undergoes a democratic transition, that person can be extradited to the country where the crime was committed to continue serving their sentence. Noury’s return to Tehran was met with a warm welcome by officials, featuring a red carpet, numerous flowers, and a press conference—nothing similar to the reception typically given to a convicted individual who is supposed to serve life in prison.
Setting aside the question of why Sweden pursued universal jurisdiction in the first place if there was no confidence that it would not retreat after facing backlash, it appears Sweden utilized an article (Chapter 12, Article 9) in its constitution that allows the government, “by exercising clemency, to remit or reduce a penal sanction.” Many other countries have similar laws or legislation permitting the transfer of foreign convicted criminals to serve their sentences in their home countries. The Swedish authorities’ decision to use this legislation after a long and costly criminal proceeding, which resulted in a conviction for atrocity crimes, could set a precedent for future cases concerning crimes committed not only in Iran, but in other countries. This approach could jeopardize the very essence of universal jurisdiction and significantly demotivate prosecutors from investigating crimes committed in countries such as Iran, Russia, and China, which have active hostage policies. What would be the point of initiating criminal proceedings and investing millions of taxpayer money if the outcome could potentially leave citizens in dreadful custody situations for months or even years, result in a diplomatic catastrophe, and ultimately deliver an international criminal back to a state that welcomes them warmly?
The international community has correctly identified immunity as a significant obstacle in the fight against impunity, and has moved toward prohibiting or limiting its application in cases involving atrocity crimes. In the same vein, amnesty provisions are considered to “be interpreted as contrary to states’ commitments under international law” in relation to core international crimes. The practice of transferring foreign convicted criminals who have committed atrocity crimes to their home countries, knowing they will be granted some form of clemency or otherwise released from the remainder of their sentences, should also be recognized as a major barrier to accountability.
There is a significant risk that the transfer of convicted war criminal Hamid Noury could lead to similar cases, unless the international community addresses its detonating effects. The only way to prevent such a paralyzing, contagious impact is to prohibit the transfer of those convicted of atrocity crimes to governments that have previously failed to prosecute them and are unlikely to enforce the sentences properly.
Shadi Sadr is a human rights lawyer and a member of the panel of judges at the International People’s Tribunals on Indonesia, Myanmar, and China. She co-founded and directed Justice for Iran, one of the organizers of the Iran Atrocities’ (Aban) Tribunal. Follow her on X: @shadisadr.
Further reading
Image: Grandchild of former staff member of the Iranian judiciary, Hamid Nouri, holds a cellphone with a portrait of Hamid Nouri on its display while sitting next to his brother (L), his father and son of the Hamid Nouri, Majid Nouri, and his mother while attending a video conference session for analyzing of the bill of Hamid Nouri’s family to the Swedish court in the Faculty of Economics of the Allameh Tabataba’i University in downtown Tehran on July 8, 2022. In November 2019, Hamid Nouri was detained in Sweden and accused of participating in the 1988 executions of Iranian political prisoners. (Photo by Morteza Nikoubazl/NurPhoto)