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.