…the Islamic Republic has a strong case which could prevent war
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.
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 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 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 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 is doing research in Lebanon. He is reachable c\o firstname.lastname@example.org
He is the author of The Price We Pay: A Quarter-Century of Israel’s Use of American Weapons Against Civilians in Lebanon.
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