Nizar Zakka was arrested on espionage charges in 2015
Sarah Shourd was jailed on charges of espionage in 2009
Amir Hekmati (middle) was released in 2016 after serving four and a half years in prison on espionage charges
Washington Correspondent Jason Rezaian spent a year and a half in prison on espionage charges, among other charges
Danger and Confusion: The Crime of Espionage in Iran
When authorities in the Islamic Republic
set out to punish people, particularly foreigners or dual nationals—
whether they are journalists, religious leaders or businessmen — they
regularly resort to accusations of espionage. Those who have been
charged with spying include former marine and game developer Amir
Hekmati, who spent four and a half years in prison, US-Lebanese citizen
Nizar Zakka, who was arrested in October 2015, and Washington Post
correspondent Jason Rezaian,
jailed for a year and a half. Three US nationals, Joshua Fattal, Sarah
Shourd and Shane Bauer, were also charged with spying when they
accidentally strayed into Iranian territory while on a hiking excursion.
For Iranian citizens, espionage can be even worse: In May 2013, Iran
executed Mohammad Heidari and Kouroush Ahmadi, after being accused of
spying for Mossad and the CIA.
But Iran’s Penal Code does not actually
include a definition of espionage. Instead, it provides examples of
espionage under the code’s “Crimes against National and Foreign Security
of the State” section, and there is no consensus amongst legal experts
and jurists as to which articles of the penal code addresses
espionage. Some experts only consider Article 501 (which specifically
mentions espionage) to be relevant. “Anyone who, knowingly and
intentionally, provides maps or secrets or documents regarding the
national or international policies of the state to those who are not
authorized to have access, or who informs them about their content in a
way that constitutes espionage, taking into consideration the
circumstances and stages [of the crime], shall be sentenced to one to
ten years’ imprisonment,” the article states.
However, some experts consider other
articles falling under the Crimes against National and Foreign Security
of the State section of the code to also be relevant to the charge of
espionage. Regardless of which articles refer to the charge, what is
clear is that Iran’s Penal Code only refers to espionage committed by
civilians. A separate code exists for military personnel.
Moreover, there is no unanimous opinion
amongst legal experts as to what kind of information can reasonably be
considered sensitive enough that the act of passing it on to another
person constitutes espionage. Some legal experts argue that only
passing on classified information can be considered espionage. If this
is accurate, then if other
information not considered to be classified is passed on to a person or
organization not authorized to have access to the information, the
person who passes on the information cannot be charged with espionage.
In Iran, classified documents are defined
as “those documents that…are distinguished from other documents (by a
red stamp at the top and bottom of document pages) according to the
degree of their importance. Only certain people within the organization
(such as the recipient, the signatory and the typist of the document)
can be made aware of their contents.”
Classified Documents, Taboo Topics, and Lack of Clarity
Lawyer Mousa Barzin Khalifeloo says that
even though Article 501 of the penal code does not specify what type of
transmitted information constitutes espionage, other laws, including the
separate criminal code for the military, can provide some insight into
how espionage cases might be assessed or determined.
Applying a logical interpretation of the
law, he says, “one can conclude that the information involved needs to
be of a classified nature.” So he agrees that even if people who are not
authorized to have access to documents do obtain access, if the
documents are unclasssified, they cannot be charged with espionage. He
gives the example of a reporter who takes photographs where photography
is forbidden (e.g. prisons) and sends them to a media outlet. Even
though that person has breached the law, he or she has not committed
espionage since he has not transmitted classified information to another
party. “However,” he says, “In Iran, covering news on topics that the
government does not want to shed light on has become equated with
espionage — which is obviously wrong.”
Of course, individuals without any links
to the media have been charged with espionage, including the three US
hikers arrested in 2009 and former marine Amir Hekmati, arrested in
2011. For Sarah Shourd, one of the hikers, being charged with espionage
was devastating, and her account of her time in prison suggests that her interrogators knew just how dangerous a weapon this charge could be. "My
interrogator led me to believe that I wouldn’t be convicted of
espionage, that there was no evidence against me, and the judge would
find me innocent, and I would go home," she told IranWire in 2015. "And
then one day he revealed that he had been lying, and that my case was
political and I could be in prison for years. It was so shocking and so
terrifying that I couldn’t really absorb it. I just went back to my cell
and felt like I was dying."
Lawyer and 2003 Nobel Peace Laureate
Shirin Ebadi holds a different view to that of Barzin. “Iran’s Penal
code neither provides any clear definition for the crime of espionage
committed by civilians, nor does it state that the transmitted
information needs to be of a classified nature. It only provides some
examples of espionage.” She says that Article 502 makes it possible for a
greater number of instances to be interpreted as crimes of espionage
than what is set out in Article 501. “The lack of clarity in the
definition of espionage as a crime allows abuse by the security agents,
leading to the violation of the rights of the accused.” She gives the
example that in the past people have been charged with espionage for
sending information to international organizations or foreign states
when the material had already previously been made available on websites
and newspapers.
Ebadi also considers Article 508, which
refers to cooperation with an enemy state, problematic. “The article
states that anyone who cooperates by any means with foreign states
against the Islamic Republic of Iran, if not considered to be a mohareb [a person found guilty of literally waging war against God, though it is defined under Article 279 of Iran’s Penal Code as causing terror that 'creates the atmosphere of insecurity.'] will be sentenced to one to 10 years’ imprisonment,” Ebadi says.
The case of Amir Hekmati is a good
example of how the ambiguous nature of Iran's laws on espionage has
violated the rights of prisoners. In December 2014, Hekmati appealed to senior officials in Iran, asking for his case to be resolved. "I
believe that my case is being interfered with by unknown elements
inside Iran," he wrote. "Prison authorities have repeatedly told me that
the outcome, which remains unresolved after more than three years, is
delayed because of the ongoing negotiations between Iran and the United
States regarding Iran’s nuclear program". It seems clear that espionage
laws are so badly defined in Iran that the charges can be used not only
against the person accused, but also to gain political ground.
What Constitutes an Enemy?
But Ebadi also says that, under Iranian
law, a country that has poor relations with Iran cannot be considered to
be an enemy. “According to the Criminal Code for Military Personnel,
[the term] ‘enemy’ can only be applied to groups or governments that are
at war with the Iranian government, or have the intention of
overthrowing the government, or whose actions are against the national
security of Iran,” she says.“If the court cannot decide whether a state
or a group corresponds to this definition, the Supreme National Security
Council should decide on the matter.”
But many judges in Iran have failed to
abide by the law, and choose to brand countries with poor relations with
Iran as enemies. Ebadi also says that the term “cooperation” is not
defined within the penal code, which lays the ground for a very wide
interpretation of the term — “to the point of including scientific and
cultural co-operations,” she says. . So, for example, an artist who,
with the cooperation of the US Ministry of Culture, holds an art
exhibition abroad — perhaps containing works that in some way challenge
or criticize Iran, the government, or the establishment — can in fact be
charged with co-operation with the enemy state. Ebadi says Article 502
is often criticized for this reason,. In her opinion, the Article, and
the laws that provide for espionage to be handed down as charge, are in
dire need of reform.
Amir Hekmati, Jason Rezaian and the three
American hikers are only a few examples of individuals who have spent
years in jail on unjust charges of espionage. But they are the lucky
ones. Their cases had some degree of leverage because they held dual
citizenship, and all were eventually released as part of prisoner swap
deals between Iran and the US. But others — like Mohammad Heidari and Kouroush
Ahmadi — did not have this advantage, or the advantage of international
attention as a means of highlighting their cases. In many cases, people
charged with espionage face execution for the crime of espionage and
their cases are never heard by the wider public. Until Iran's laws are
overhauled — and the crime of spying is adequately defined — this unjust
process will continue.
https://en.iranwire.com/features/7229/
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