Blog: In the Absence of Rule of Law

In March 2022 I had the opportunity to attend a webinar organized by the United States Holocaust Memorial Museum (USHMM) and IranWire on the legislative underpinning and legitimization of Nazi ideology in Germany before and during World War II. At this event, historian Will Meinecke, spoke at length about the role of the judiciary and police in the Third Reich. From January 30, 1933 when Adolf Hitler became chancellor of Germany, and in the months and years that followed, Germany slowly turned into a police state.

Changes to the law meant the Gestapo, the secret police, could exercise their power arbitrarily and take into custody anyone they supposed to be a threat to regime security, without judicial oversight or review. During those 12 years of Nazi rule, which included the killing of six million Jewish people and countless others in the Holocaust, state-approved judges interpreted the law “in broad and far-reaching ways that facilitated, rather than hindered, the Nazis' ability to carry out their agenda”. The Nazis also instrumentalized the legal profession and lawyers as part of their own ideological and repressive architecture.

Scholars of law today such as Cynthia Fountaine warn that contrary to a common misconception, “the vast majority of lawyers and judges were not Nazis, but ordinary lawyers and judges, part of the educated cultural elite of Germany”. Fountaine explains that these members of the legal profession often had personal and career-related motives for their complicity, not necessarily linked to any loyalty to Hilter or the Nazis. “Nevertheless,” she writes, “these lawyers and judges also failed Germany entirely; they fueled Hitler’s agenda of genocide and hatred by giving it legitimacy and authority.”

What captured my attention most was a photo I had come across in my reading for this webinar. It depicted a long line of Jewish lawyers applying for permission to appear before the Berlin courts in April 1933. According to USHMM’s brief on the photo, “In April 1933, Hitler passed one of the earliest antisemitic laws, purging Jewish and also socialist judges, lawyers, and other court officers from their professions.”

In addition, Cynthia Fountaine writes, “Laws or policies were also established that prevented Jewish and other disbarred lawyers from obtaining other jobs related to the law (…). They were effectively purged not only from the legal profession but also from employment in any capacity in Germany.”

When I inquired about Jewish lawyers’ disbarment during the webinar, Dr. Meinecke explained that when the Nazis came to power, about 16 percent of all lawyers were Jewish in Germany. By April 1933 they had to worry not only about their licenses but their livelihoods, given the rapid entrenchment of antisemitic laws and practices.

Later, when I read more about the struggles of Jewish lawyers in Germany, I came across the inspiring story of a Jewish social-democrat lawyer and political scientist, Ernst Fraenkel, who managed to keep representing defendants charged with alleged political crimes, standing for justice against all odds.

During our discussion on willful miscarriages of justice, on the re-molding of a justice system to serve Nazi ideology, and the photograph that captured a moment of despair, I thought of the struggles of many lawyers who still stand for justice and human rights in contemporary Iran. I would like to spend the rest of this reflective piece on highlight some of their struggles in a rigged system where rule of law is given no regard.

The purpose of the second part of this article is not to compare what’s happening in Iran today with what went on in Nazi Germany. Rather, it is to consider the importance of the independent legal system, and the threat posed by regimes that try to strengthen their rule by institutionalizing discrimination by way of legislation.

My mother, Mehrangiz Kar, practiced law in Iran for over 22 years in post-revolutionary Iran. I had the chance to grow up among some of the most courageous lawyers in Iran at that time. Even as a child, I could tell that what they were doing was an uphill struggle, and I retain some memories that to this day bring me horror.

I remember that one day my mother came home, anguished, with a couple of large black plastic bags, and worriedly hid them somewhere in the house. She told me not to touch the stuff in those bags nor tell anyone about their whereabouts. Curious child that I was, I opened the bags as soon as she went away. I found nothing inside but what appeared to be someone’s personal belongings: an old pair of glasses, a small and old phone book, some photographs.

When my mother found out I had looked into the bags, she told me about the persecution of Baha’is in post-revolutionary Iran. She told me the objects in those plastic bags had belonged to an old woman, who lived alone, and who was killed by secret agents of the Islamic Republic because she was a Baha’i.  She explained that she had taken this old woman’s personal items so the authorities wouldn’t be able to deprive her family abroad of these tokens of memory.

Legally representing anyone belonging to the Baha’i faith was and still is a dangerous endeavor in Iran. Then and now, a lawyer was put at a risk if they took on the case of any Baha’i or indeed any other person belonging to a group targeted and persecuted by the Islamic Republic.

After this webinar and recalling the said memory, I conducted brief research into what went on in the lives of lawyers right after the establishment of the Islamic Republic of Iran in 1979. I learned that tens of them, some of whom I actually knew growing up, had had their license to practice suspended or were disbarred between then and 1981.

Some managed to regain their licenses years later. But some, including Batoul Keyhani, the Secretary of Iran’s Bar Association at the time of the revolution, were jailed and also banned from engaging in commerce, holding bank accounts,

According to a court order issued on September 5, 1983, a copy of which is available online, the 32 known lawyers belonging to the Baha’i faith in Iran were no longer allowed to practice either. The judgment states: “The Revolutionary Court of the Islamic Republic of Iran has revoked the licences of some lawyers for participating in the secret plans of international Zionism.”

Some Baha’i lawyers such as Ghodratollah Rouhani, Mahmoud Mazjoub and Manouher Ghaem Maghami who belong to prominent Bahai circles in Iran, were either executed or kidnapped and forcibly disappeared. 

Four decades later, the persecution of independent-minded lawyers and efforts to control the country’s bar association continue. Of course, there are lawyers who align themselves with the establishment and help the Islamic Republic achieve its ideological and repressive aims. But there are also many who do what they can to stand for real justice, many of whom pay a high price for doing so.

Among the courageous lawyers we can name are  Nasrin Sotoudeh, Payam Derafshan and Mohammad Najafi, who have faced imprisonment, solitary confinement, being kept incommunicado behind bars, being subjected to medical negligence, and psychological torture for accepting the cases of political prisoners. Many other lawyers such as Mehrangiz Kar, Nobel Laureate Shirin Ebadi, Shadi Sadr, Hossein Raisi, Mohammad Mostafai and Mohammad Oliayeefard have had to leave the country outright and continue their activities from abroad.

Nobel Laureate Shirin Ebadi, a lawyer who was also stripped of her status as a judge for being a woman in post-revolutionary Iran, once said: “Where is the justice if your lawyer is arrested for defending you?"

The legal profession, then, becomes a key focal point for ideological and autocratic regimes that seek to use the judiciary for the pursuit of their political agendas, and as an apparatus dedicated to state-sponsored persecution and the misapplication of justice. Just as I wonder about the likely tragic fate of those Jewish lawyers who lined up to obtain their licenses in Nazi Germany in 1933, I worry about the fate of other human rights lawyers in Iran in 2022.