Lawfare: Iran-US nuclear deal row to play out in Hague Courtroom (Part I)
By Mohammad Hadi Zakerhossein
Everyone who has paid any attention to the news lately knows that there is a high-stakes dispute between the United States and Iran currently unfolding on the world stage. After unilaterally withdrawing from the Joint Comprehensive Plan of Action, otherwise knows as the Iran nuclear deal or Iran deal, which was designed to prevent Tehran from acquiring nuclear weapons, the US has re-imposed tough economic sanctions on Iran.
What many people may not know is how The Hague fits in. From 27 to 30 August 2018 the United Nations highest court, the International Court of Justice (ICJ), will hear arguments about a case Iran has filed challenging the imposition of sanctions. This is the first instalment in a three-part series that will take a deep dive into the titanic legal battle that is about to take place in The Hague.
In this article, Mohammad Hadi Zakerhossein, himself an Iranian and an international law expert based in the Netherlands, gives readers some background information on how this dispute ended up in The Hague. In Part 2, Zakerhossein examines the mandate of the ICJ and explains why Iran has brought a case there. In the third instalment of the series, Zakerhossein will explore the likely outcomes of the ICJ case. If you want to know a bit more than what is splashed across the front pages of newspapers then read on:
1. So, tell me why the capital of international law is caught up in this dispute. Well, the Islamic Republic of Iran (also known as ‘just’ Iran) has declared war against the US. But this conflict isn’t militaristic, but rather a legal war. And the battlefield is The Hague instead of the Persian Gulf. On 16 July 2018, Iran instituted proceedings against the US before the International Court of Justice (ICJ).
2. Why did Iran do that? Back in 8 May 2018, President Trump publicly threatened to re-impose US sanctions against Iran which had been lifted or waived in connection with the international community’s Joint Comprehensive Plan of Action (JCPOA) – an agreement reached in 2015 between Iran and the so-called P5+1 (the US, the United Kingdom, Russia, France, and China—plus Germany) and the European Union). He insisted that “sanctions will go into full effect” in order to reach their “highest level” and create for Iran “bigger problems than it has ever had before.”
3. And Iran went to court? Although Iran has put the use of force to block the Strait of Hormuz in the Persian Gulf on the table as an option, it chose to first take a legal route to avoid and prevent re-imposition of the US sanctions that would adversely affect the well-being of Iranian people. Indeed, Iran seems determined to wage 'lawfare' against the US to nullify the sanctions.
4. What’s that? What’s ‘lawfare’? Lawfare, as coined by American professor Charles J. Dunlap Jr, refers to use of the law as a weapon of war. He defines lawfare as the strategy of using the law as a substitute for traditional military means to achieve a warfighting objective.
5. What’s Tehran up to with trying to use ‘lawfare’? The US has demanded all countries to put an end to imports of Iranian oil by 4 November this year. To keep exporting its oil, Iran might resort to force, but it is giving the law a chance to take a role in preventing the US sanctions from taking effect. Compared to an armed conflict, lawfare is relatively costless and – even more importantly – bloodless. The pacifist approach adopted by Iran should be seen as a welcome substitute to ‘real’ war, especially since this peaceful initiative is consistent with the United Nations’ Charter which obliges states parties to, first of all, seek a solution by negotiation, mediation, arbitration or judicial settlement, when they are in any dispute.
6. So is Iran a regular ‘lawfarer’? This isn’t the first time Iran has brought a case before the ICJ against the US. In 1989, after the USS Vincennes targeted the Iran Air Airbus A-300B, with an American guided-missile cruiser, causing the deaths of its 290 civilian passengers and crew, Iran instituted proceedings before the Court against the US. And later, in 1992, Iran went into another legal war with the US over the destruction of several Iranian oil platforms in the Persian Gulf during the so-called Tanker War in 1987-1988. And, most recently, in June 2016, Iran instituted proceedings against the US over interference with assets and interests of Iran and Iranian entities in the US, because Washington alleges that Iran is a State sponsor of terror.
7. Why does Iran use the ICJ for all these cases? The ICJ is the principal judicial organ of the United Nations. It is known as the World Court. It’s a permanent international institution that, occupies premises in the Peace Palace in The Hague. But the ICJ is not the only permanent court in The Hague. The International Criminal Court (ICC) is, for instance, a permanent international institution that resides in The Hague too, but with a different mandate.
8. What? Two bodies that have nearly the same acronyms in the same town? Do they do they do the same thing? The ICJ is an organ of the UN, but the ICC is an independent international organization. There’s more: for example, the ICJ tackles disputes between states, whereas the ICC looks exclusively at individuals accountable for genocide, war crimes, aggression and crimes against humanity.
This is the first piece in a series on how The Hague is involved in the dispute between the United States and Iran over the so-called Iran nuclear deal. Click here for Part 2 on how the International Court of Justice works. And here for Part 3 on what the possible outcomes of Iran’s legal gambit may be.
The opinions expressed here are those of the author and do not necessarily reflect Justice Hub’s position on the issues discussed.
Photo: The Peace Palace, seat of the International Court of Justice, the Hague, Netherlands. The Court is the principal judicial body of the United Nations. (United Nations Photo/Flickr)