Atieh Babakhani is an assistant professor of law and society at Ramapo College of New Jersey. Her forthcoming paper, “Navigating Injustice: Symbolic and Pragmatic Resistance in Human Rights Lawyering in Iran,” uses qualitative interviews to explore the motivation and strategies behind resistance lawyers in Iran.
In this interview, Babakhani relays insights from that research on how human rights lawyers operate and resist authoritarian settings in Iran.
How would you describe the role of lawyers in resisting authoritarianism in Iran?
I wouldn’t say that lawyers in Iran play a significant role in resisting authoritarianism. It’s different from what we might see in the U.S., where lawyers go to court, mobilize the law, and, for example, block an executive order. It doesn’t work that way in Iran. Part of that is because of the legal system; it’s different from what we see in the common-law system, but it’s also because of the authoritarian nature of the regime. When lawyers do resist, it’s in more subtle ways and they have really limited options.
What lawyers do is go to court to defend their clients. They are not looking for big wins or legal battles in the courts. It’s more about incremental changes. They’re not targeting the legal system. They don’t want to cross red lines because that can get them barred from practicing law. And it might not really seem like impactful work compared to what we see in other contexts, but it’s effective.
Lawyers believe that their presence deters judges from further abuses of power.
Atieh Babakhani, assistant professor of law and society, Ramapo College of New Jersey
Going to court itself is often a form of resistance for them, especially when they are defending people accused of political or security-related crimes. These cases usually involve human rights activists, political activists, or even just ordinary people who speak up on social media, go out to protests, and then are charged with crimes against national security. So these lawyers mainly defend these people. What these lawyers do is try to bridge the gap between the law on the books and the law in action. There are some laws that are supposed to protect defendants, but in practice, the way that those laws are implemented is very different from what we see on the books.
There are lawyers who post on social media and educate people about their rights, but those are not the lawyers whom I talked to—the lawyers that I talked to are the ones who really don’t want to engage in any other types of activism because that can be used against them by the state. There are really only a few lawyers who are doing this work in Iran, and they don’t want to risk ending up in prison themselves, because if they’re gone, there’s no one left to do the work.
What types of challenges do these lawyers encounter, and what strategies do they employ to do their work?
They face a range of personal and professional challenges, but in my research, I mainly talk about the professional challenges. I try to categorize them into three main categories.
The first one are legal restrictions that are built into the system, for instance, the right to effective defense, which is guaranteed by the constitution, but now we have a new law that restricts access to an independent lawyer during the investigation and pretrial phases. So a defendant in a politically sensitive case cannot really choose an independent lawyer. They can only pick a lawyer from a list that is approved by the state.
No one knows how many lawyers we have on that list—people guess it might be around 100 lawyers. But it seems that most of those lawyers are not part of the bar association (and I’ll talk more about the bar association later). The bar association is supposed to be independent. Right now it’s semi-independent. Instead, Iran has this other group of lawyers who are part of the judiciary. This group was created around 2002 through Article 187, which set up a system controlled by the judiciary—not the independent Iranian Bar Association. These lawyers belong to what’s called the Center for Lawyers, Official Experts, and Family Counselors of the Judiciary, which runs parallel to the bar association. This means they’re not really independent, and they may not even be competent lawyers. If you can pass a bar exam, you’d want to be part of the bar association. These lawyers are often called Article 187 lawyers, and there’s a general assumption that if they were competent enough, they would be part of the bar association. That’s one challenge—even representing the clients.
The second category is related to the really broad discretion that judicial actors have, including judges, prosecutors, and security forces. We expect judges to be independent, but in Iran, they’re not. They often decide these cases based on their political ideologies and not law and evidence.
And then the third category is related to lawyers’ identity and is mainly experienced by female lawyers. In Iran, you have to cover your hair in public spaces regardless of your religion. In the Revolutionary Court, based on what the female lawyers told me, this law is enforced very strictly. Female lawyers told me they have two different sets of clothing for going to court. If they want to go to the Revolutionary Court, they will not use that same clothing for going to, for example, family courts. And sometimes they are asked to leave the courtroom if their appearance doesn’t seem professional enough, but it’s not really about being professional—it’s only applied to female lawyers.
I also looked at how lawyers respond to these challenges. When it comes to legal restrictions and the fact that you cannot really have an independent lawyer, lawyers try to reach clients or future clients who are detained and get them to sign a power of attorney. They cannot really use it in court, but they do it as a symbolic action. The other thing they do is attach a nonbinding advisory opinion to their briefs, explaining that the article the government uses to restrict access to independent lawyers should be interpreted really narrowly because it goes against the constitution. But in practice, the article is interpreted very broadly, and it’s applied to all the defendants who are charged with these types of political crimes. This is also a symbolic action. In practice, these actions might not really change the outcome, but they serve to document that what the state is doing is unconstitutional.
For the second category, which is related to the discretionary power of judges and judicial actors, I call the lawyers’ strategy pragmatic resistance. For these specific restrictions, what they do is simply attend the court because they know that the system doesn’t want them to be there, but their attendance in court, showing up for these hearings, is a form of resistance. Lawyers believe that their presence deters judges from further abuses of power. They think they can also document everything that’s happening in court, and by documenting the violations of procedural rules, they can use that documentation for appeals and retrials. Lawyers have also told me that showing up for their clients is important—they don’t want the system to normalize injustice.
For the female lawyers and the restrictions that they face, they really just try to navigate the system. This means they comply with these restrictive rules because they want to work toward the best interest of their clients. They want to be able to go to court. So they follow these restrictive rules, but at the same time, they experience an internal conflict, because they feel that they are complying with those same rules and restrictions that they are challenging. This tension became especially clear when they talked about representing clients from the recent uprising, Women Life Freedom, who opposed compulsory hijab, while at the same time, they had to follow strict dress codes themselves just to be allowed into the courtroom. That’s part of the compromise they have to make in order to keep doing their work. It’s a highly politicized space.
What do we need to know about the judiciary in Iran and how it facilitates or resists authoritarianism?
In practice, the judiciary is really a tool for suppressing dissent and maintaining government power and control. Technically, based on the constitution, the judiciary is supposed to support and protect individual and social rights. But based on that same constitution, the judiciary is not really independent because the head of the judiciary is appointed by the supreme leader who is also the head of the state. Judges are also selected by going through this process, which is called, in Farsi, gozinesh—this is a vetting process that allows authorities to look into candidates’ political and religious beliefs. Candidates must also be familiar with Islamic jurisprudence because that’s part of what they deal with in court. They end up appointing judges whose ideologies align with the state. The head of the judiciary also has enormous power, including administrative power. They can decide about judges’ appointments and dismissals. They also hold legislative power. They can write and prepare judicial bills.
This lack of independence is really obvious in the Revolutionary Court. The Revolutionary Court was established right after the 1979 revolution. And at the time, the court was established to deal with crimes that threatened the newly established state. But over time, instead of being phased out, it became institutionalized. These courts mainly handle cases related to national security, conspiracy, espionage, and then vaguely defined crimes against God, which has been used really broadly. In this court, judges are not independent. All judges are male. We have female judges in family courts, but they cannot make the final decision. They can do the hearing, they can write the verdict, but they cannot sign it. It has to be signed by a male judge.
In practice, the judiciary is really a tool for suppressing dissent and maintaining government power and control.
Atieh Babakhani
Even for those who are not familiar with the system, once they go to these courts and if they have a hearing, it becomes clear that the court is not independent. An actress was recently charged with crimes that had to be tried in the Revolutionary Court, and she shared that she couldn’t tell if the judge was actually a judge or was acting more like a prosecutor. It was her first time going to court, and she could already tell that this is not an independent system—the judge wasn’t acting like a neutral decision-maker. This also came up in my interviews with lawyers— they said when you go to court, you are not just dealing with, for example, the prosecutor. You are basically on your own, and then you are dealing with the whole system, which is the prosecutor, security forces, and the judge. They’re all on the same side.
Given all of this, what did you learn in your interviews about what motivates human rights lawyers in Iran to take on these cases?
Mostly, they take these cases on a pro bono basis. They don’t charge their clients. They define themselves as human rights lawyers because of that. It’s important to mention that, because pro bono work is not common in Iran the way it is in the U.S. No one encourages it; it’s their initiative. The bar association might assign one pro bono case a year, maybe. Doing pro bono work by itself is seen as risky, as the state often accuses these lawyers of working for foreign states—because then the question becomes, how are they making money?
Their motivation comes from seeing this work as both a professional responsibility and a civic duty. They think that as responsible citizens, this is their way of resisting the system. They don’t necessarily think that going to the street and attending a protest is the best way for them to oppose the system because they have this expertise and knowledge and they can use it in this way. It’s about combining their professional responsibility with their civic duty to oppose injustice and authoritarianism.
Could you talk about the role of networks, relationships, and bar associations, both local and international? How are human rights lawyers using these formal and informal relationships to resist authoritarianism?
There are a small number of lawyers in Tehran who do this work, so there are no formal networks. For example, when I wanted to do this research, I tried to diversify my sample. I started with two different networks that I have, but I ended up with the same suggestions from both because the number, as I said, is really low. The lawyers who are doing this work in Tehran told me that maybe we have around 30 lawyers in total in Tehran, and they all know each other. They don’t need to have a formal network. When I asked them to introduce me to other lawyers, they told me they would do it in person, not over text. They don’t want any organization to actually support them, because again, that can be used against them. They don’t really do interviews with international media. They don’t really talk to international human rights organizations. When it comes to national news or media, they’ll only speak out if it’s absolutely necessary for their clients. If they think that all the legal channels are closed, they might participate in an interview with internal news outlets because they think public pressure could help force the system to change a final verdict of a case.
The bar association is not fully a tool of oppression yet, but it’s also not defending and protecting lawyers.
Atieh Babakhani
The bar association is another network used by lawyers more generally, but it has changed over time. Before the revolution, it was independent. After the revolution, for two decades, they didn’t let the bar association choose or elect its own board of directors. But when we had a more progressive president—1997, almost two decades after the revolution—they finally let them elect the board members. But again, the candidates have to be approved by the judiciary. It’s not completely independent, and it’s become worse because the criteria for who can become a candidate have become very strict. The bar association is not fully a tool of oppression yet, but it’s also not defending and protecting lawyers. We’ve had lawyers who were charged with crimes against national security themselves just for representing clients in politically sensitive cases. And then their licenses were suspended or they were barred from practicing law for 10 years. For example, the bar association didn’t do anything for Nasrin Sotoudeh, a prominent human rights lawyer in Iran who has been persecuted and jailed.
What can lawyers in other countries learn from the experiences of human rights lawyers in Iran?
Iranian human rights lawyers work under really intense state repression. They don’t have that many options. They cannot actively fight back. They mainly resist from within the system by creating roadblocks to further rights abuses by showing up to courts, documenting violations, and then using procedural tactics to expose what the system is doing.
One of the things lawyers told me in interviews is that they remain hopeful. They see themselves as witnesses—they keep detailed records of what’s happening in legal proceedings so that they can build evidence for the future. If real change ever happens, they’ll be able to testify based on what they’ve observed and documented.
They see themselves as witnesses—they keep detailed records of what’s happening in legal proceedings so that they can build evidence for the future.
Atieh Babakhani
The other thing that other lawyers can learn is how they think about pro bono work. When I was in Iran, I never really thought about doing pro bono work, again, because it’s just not part of our legal education. I came to the U.S., and I became familiar with the culture and expectations around public interest lawyering. Taking on these cases pro bono might seem ineffective or unimportant to some, but in a repressive system, these small legal actions can be really powerful—even revolutionary. The government in Iran sees pro bono work as a form of resistance. In the U.S., we think of it as something lawyers are supposed to do, but in Iran, no one expects you to do this, and it’s become a symbol of human rights lawyering.
Atieh Babakhani is an assistant professor of law and society at Ramapo College of New Jersey.
