Why Iran should take the US led sanctions issue to the International Court of Justiceþ?

Franklin Lamb

Beirut

This observer’s best ever (and shortest) job  involved  “ sort of” representing Iran before The Hague based International Court of Justice back in the ancient history days of 1980 following the American hostage events when the US government sued the new Islamic Republic of Iran before the ICJ  under Articles 22 (2), 24, 25, 26, 27 and 29 of the 1961 Vienna Convention on Diplomatic Relations as well as Article 111 (4) of the 1955 Treaty of Amity, Economic Relations and Consular Rights (USA/Iran).

How I got the job following the collapse of the Ted Kennedy’s long shot incumbent challenging primary presidential campaign where I worked on the issues staff, was that Iran’s Charges D’affaires at its UN mission, Mr. Ali A, contacted US Senator James Abourezk who had just left the Senate and opened a law office in Washington, DC as James organized the Arab American Anti-Discrimination Committee (ADC) and worked for the cause of Palestine.

The Ayatollah Ruhollah Musavi Khomeini led Iranian revolutionary government hired James’ law firm to represent Iran in the matter of the American government’s Application at the ICJ.

 Or so we were given to understand.My job description could not have been better. It involved immediately putting together an international legal team of ICJ specialists and move to The Hague to function as “case coordinator” and liaise with the World Court administration, monitor our case making sure of timely filings, keep an eye on what the legal team on the other side was up to at the Court, and sundry other tasks.

I quickly lined up three legal giants from my alma mater, the London School of Economics, including the scholarly, quiet, always deferential, and understated Dr. Bin Cheung, son of the former Foreign Minister from Taiwan, the posh, upper-upper British crust and elegant Professor David Johnson, who was my thesis advisor, and the out of control, bi-polar, extremely abrasive, indefatigable and brilliant University of London International lawyer, Georg Swartzenberger.

I still recall the portly bald headed “misogynous tyrant” (as some of his female students referred to “Herr Professor”) telling me in his heavy German accent, “Ve shall crush zee Americans at Den Hague!” and I had no doubt that with him as lead counsel we would have.

One of the many stories about the prolific Professor Swartzenberger, (his classic law treatise, Principles of Public International Law remains unmatched on jus cogens legal theory) was that in Germany during the early 1930’s there were two dynamic and powerful egotistical personalities with nearly hypnotic charisma, plenty of fanatical supporters, and insatiable personal ambitions, who were bound to clash, probably sooner than later, and that post-Weimer Germany could not contain them both.

As it turned out, Adolf Hitler stayed, Georg Swartzenberger departed for England, and the rest is history.

I packed my bag, and contacted my former landlady who had rented me a room three blocks from the ICJ, when I studied at the Academy of International Law at the Palais de le Paix. While looking for my passport, I got a phone call from my colleague at James’ office.

Long story short, our job was over. Finished. Khalas! We were essentially fired or at least not formally hired.

Ali A had just called James from the Iranian Mission at the UN and advised that Ayatollah Khomeini himself had personally decided not to continue with our work or to dignify the American application with a responsive pleading which we had been preparing day and night for six weeks! We were in shock. How could this be? For sure we were going to win this case big-time or so we all believed.

The Khomeini decision cast the template for three decades of default judgments against Iran by America and Israel.

In “our” case, the ICJ’s 15 judge Tribunal, sitting en banc, politely expressed pro forma “regret that Iran did not appear before this court to present its responses”. The absence of Iran from the Court proceedings automatically brought into operation Article t53 of the ICJ Statute, under which the Court in default cases, is required, before finding in the Applicant's favor, to satisfy itself that the allegations of fact on which the claim is based are well founded. Absent Iran, the American Application (Complaint) won on all points.

During the intervening 32 years Iran has lost every case brought against it in US Courts, never once on the merits but via default judgments that will eventually total more than ten billion dollars with more than half a dozen cases pending with the same predictable result.

Many, even in the U.S. government, continue to hold that culpability in the Marine barracks attack is undetermined. For example, former Secretary of Defense Caspar Weinberger stated in 2002, 20 years after the bombing: "But we still do not have the actual knowledge of who did the bombing of the Marine barracks at the Beirut Airport, and we certainly didn't then.”
On 7/3/12, Israel’s third favorite US Federal District Judge, Royce Lambeth delivered another example of what many in the Zionist lobby considers his best judicial work. Judge Lambeth, in the eighth case against Iran on unproven allegations regarding the same incident, ordered Iran to pay yet another huge default judgment, this time $813 million in damages and interest to the families of 241 US soldiers killed in the 1983 bombing of a Marine barracks in Lebanon. In his latest decision Lambeth stated that Tehran had to be "punished to the fullest extent legally possible under the law “ and appeared to boast when he wrote in his ruling that “After this opinion, this court will have issued over $8.8 billion in judgments against Iran as a result of just this one 1983 Beirut bombing.”
In 2007, under a law allowing foreign governments to be sued in US courts, Lambeth ordered Iran to pay $2.65 billion to victims' families, an amount he wrote at the time "a number of other Beirut bombing cases remain pending, and their completion will surely increase this amount."

Earlier, on 9/8/03 Judge John Bates of the U.S. District Court in Washington, D.C. awarded $123 million to 29 American victims and family members of Americans killed in the 1983 bombing of the U.S. embassy in Beirut.

However unjust, Iran will continue to lose every pending case and every future case by default unless it decides to use the judicial remedies available to it and take the initiative, for example, in the US organized economic sanctions case which is becoming extremely dangerous given US, UK, and French plans to use them to achieve regime change in Tehran. A joke among Washington DC lawyers is that if one of their ranks suffers from depression because he/she has never won a single case during their entire career, their psychiatrist will prescribe as therapy that the depressed lawyer sue Iran because for sure they will win that case.

The Islamic Republic can halt and even reverse the historic trend by filing an action at the International Court of Justice against the US, France, the UK and their allies, perhaps part of a class action case on behalf of all Iranian citizens being harmed by illegal and political economic sanctions. The US and the European Union (EU) have imposed several rounds of sanctions to pressure Iran to give up its uranium enrichment activities.

On 7/8/12 an EU oil embargo against Iran took effect. There is in fact no probative evidence that Iran is engaged in a nuclear weapons program. The latest International Atomic Energy Agency report once again failed to produce a smoking gun, despite the best efforts of its new director general, Yukiya Amano – described in a WikiLeaks cable as "solidly in the US court on every strategic decision".

In February of this year, supreme leader Ayatollah Ali Khamenei declared “Iran is not seeking to have the atomic bomb, possession of which is pointless, dangerous and is a great sin from an intellectual and a religious point of view.” It is also the unanimous judgment of the U.S. intelligence community, declared in 2007 and affirmed in 2011, that Iran has abandoned any program to build nuclear weapons.

 

The immediate filing of an Iranian action before the ICJ has been proposed over the past couple of years, and most recently by, among others, Professor Francis Boyle and Mohammad Nahavandian Chief of Iran's Chamber of Commerce, Industry, Mines and Agriculture.

Iran taking the sanctions case to the World Court would also advance accountability under international law and because the ICJ would likely grant Iran’s Petition for Interim Measures of Protection the sanctions could be suspended during the course of the years of litigation which would directly and positively affect the lives of suffering Iranians while giving the parties a chance to settle their differences peacefully using diplomacy.

Iran has the facts of the US sanctions case in its favor and there are ample solid legal theories to argue to and convince the World Court. Under the ICJ Statute, the ICJ must decide cases in accordance with international law. Hence the ICJ must apply (1) any international conventions and treaties; (2) international custom; (3) general principles recognized as law by civilized nations; and (4) judicial decisions and the teachings of highly qualified publicists of the various nations. From this body of international law the International Court of Justice would find ample basis to support Iran’s claims not only for the benefit of its civilian population but also to advance the rule of law in the global community.

The ICJ is made up of 15 jurists from different countries. No two judges at any given time may be from the same country. The court's composition is static but generally includes jurists from a variety of cultures. Among the Principles, Standards and Rules of international law Iran should argue to the World Court could include, but would not be limited to, the following:

• The US led sanctions violate international humanitarian law due to the negative health effects of the sanctions on the civilian populations. This renders the sanctions illegal under international customary law and the UN Charter for their disproportionate damage caused to Iran’s civilian population;

• The US led severe sanctions regime constitutes an illegitimate form of collective punishment of the weakest and poorest members of society, the infants, the children, the chronically ill, and the elderly;

• The US, France and the UK have violated the UN Charter by their imposition of severe economic sanctions and threats of military and even nuclear force. The United States, Israel, and some of their allies, regularly threaten Tehran with the "option" of a military strike against its civilian nuclear facilities. The ICJ has ruled previously that "A threat or use of force by means of nuclear weapons is contrary to Article 2, paragraph 4, of the UN Charter and that fails to meet all the requirements of Article 51, is unlawful". It has further ruled that "A threat of use of nuclear weapons must also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons".

• Examples of the scores of threats to use force by US officials Remarks made by retired U.S. Army general Jack Keane, who earlier this year urged the administration of U.S. President Barack Obama to use covert action against Iran and target members of the Quds Force, the Guard's special foreign actions unit, and former CIA official Reuel Marc Gerecht who was reported as saying regarding Iran's nuclear standoff with the West: "I don't think that you are going to really intimidate these people, get their attention, unless you shoot somebody." Both urged the Obama administration to assassinate top Iranian security officials, including Quds Force chief Qasem Soleimani. U.S. planes and warships are currently entering the Persian Gulf, while 44 U.S. senators are promoting an AIPAC initiative urging president Obama to break off talks with Tehran, toughen the sanctions even further and prepare for war.

• Unilateral US sanctions are illegal under International Law because they are in fact multilateral and impose penalties on any country which opposes the sanctions or does not choose to participate in them;

• The US led sanctions amount to an Act of War given their effects including hardships on the general public and that Iran therefore has a legal right to Self-Defense including closing the Straits of Hormuz;

• The US led sanctions, given their design and intent, constitute acts of aggression against Iran in violation of Article 2 (4) of the UN charter.

• The indisputable facts of the US led sanctions case warrant the imposition by the ICJ of Restraining Orders designed to prevent a military attack on Iran, to prohibit any type of blockade of Iran and cease the imposition of further economic sanctions against Iran, and also their efforts of securing more sanctions against Iran at the United Nations Security Council. The Restraining Orders should also seek to prohibit the US and its allies from advocating aggressive military actions against Iran and to negotiate with Iran in good faith over the dispute concerning nuclear re-processing.

• Iran should apply to the World Court for Temporary Restraining Orders (TRO’s) against the US, UK, France, EU, among others states, to cease and desist from committing ongoing voluminous threats by US officials, including members of Congress such as Chairman of the House Homeland Security Committee Peter King, Chairman of Subcommittee on Oversight, Investigations, and Management Michael McCaul, and Chairman of the Subcommittee on Counterterrorism and Intelligence Patrick Meehan.

• The US has failed to separate acts of war and from the economic sanctions which are being used as an act of force;

• Iran can legitimately claim and should argue at the ICJ that certain bi-lateral or multilateral economic sanctions imposed by single countries or by intergovernmental bodies like the United Nations are illegal or even criminal due to their assault on the international legal Right to Development or in the case of military sanctions, the Right of Self-defense;

• The US led sanctions violate the international law principle of Non-intervention in the internal affairs of UN member states:

• As Germany's Green Party has argued, sanctions against Iran over its nuclear program violate international laws as long as no evidence of deviation toward nuclear weapons construction is found.

Despite Iran’s strong case on both the facts and the law, and the diversity in structure and composition of the International Court of Justice, the International Tribunal has a few times over the years been criticized for favoring established powers. Under articles 3 and 9 of the ICJ Statute, the judges on the ICJ should represent "the main forms of civilization and principal legal systems of the world." This definition suggests that the ICJ does not represent the interests of developing countries.

Nevertheless, the World Courts record has been by and large exemplary in applying Principles, Standards and Rules of international law both in contested cases and advisory opinions and Iran has an excellent opportunity to protect its citizens, thwart US and Israeli designs on the region, and advance international accountability all to the inestimable benefit of all people and nations.

Iran should file an application with the International Court of Justice regarding the US led sanctions campaign without further delay.

 

 

Franklin Lamb, former Assistant Counsel, US House Judiciary Committee and  Professor of International Law at Northwestern College of Law in Oregon, earned his Law Degree at Boston University and his LLM, M.Phil., and PhD degrees at the London School of Economics. Following three years at the International Court of Justice in The Hague, Lamb was visiting fellow at the Harvard Law School’s East Asian Legal Studies Center. He is currently doing research in Lebanon and volunteers with the Palestine Civil Rights Campaign and the Sabra-Shatila Foundation.  Lamb is the author of: Israel’s 1982 War in Lebanon:  Eyewitness Chronicles of the Invasion and Occupation, South End Press, First Printing, 1983, International Legal Responsibility for the Sabra-Shatila Massacre, Imp. TIPE: 42, Rue Lebour 93100 Montreuil, Paris, France 1984, The Price We Pay: A Quarter Century of Israel’s Use of American Weapons in Lebanon (Lamont Press) 2007, His latest book, The Case for Palestinian Civil Rights in Lebanon, is due out shortly.