To an international lawyer, the spectacle of the United States going step by step down the wrong path, for the wrong reasons, to the wrong conclusion in the continuing hostage crisis with Iran is of increasing dismay. If the hostages are to be freed and the law of diplomatic immunity upheld, the United States must decouple the hostages question from the question of Iranian liability for nationalized property, broken contracts, and any other matters not directly related to the hostages situation. The procedure for such a decoupling is easy: It rests on completing the legal processes begun when the US brought suit against Iran before the International Court of Justice in 1979.
The court rendered its judgment on May 24, 1980, upholding the US position by unanimously deciding that Iran must immediately terminate the unlawful detention of American diplomatic and consular staff and other US nationals now held hostage in Iran. The court also, by overwhelming votes, retained jurisdiction over the form and amount of reparation that might ultimately be found owing by Iran to the United States. The US then abandoned the path of international law, a discipline that seems to frighten our policymakers when it would be of most use to them.
The procedures for enforcing judgments of the International Court of Justice are left to the parties' discretion generally, but the United Nations Charter, a treaty binding both Iran and the US, provides that, if a party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the court, the other party may have recourse to the Security Council, which may have recommendations or decide upon measures to be taken to give effect to the judgment. Under this treaty, each member of the UN agrees not only to comply with the decision of the international court in any case to which it is a party but also to accept and carry out the decisions of the Security Council in accordance with the charter.
Thus, taking the Iranian intransigence to the Security Council would have replaced the US as the party aggrieved in a confrontation with Iran, with the entire world organization concerned about the sanctity of its constitutional document. And an Iranian yielding up of the hostages to the organization would have been possible without forcing the appearance of reasonableness that seems to inhibit the dealings of the Iranian government with the US, even through intermediaries.
Of course, there are quick repairs in international affairs and, where military strikes may appear to fix things, it is common experience that the damage done by them involves costs that become apparent later. The legal remedy is not quick, but it would not involve the lasting enmity that even a successful commando raid would create. For those who think the memories of national weakness in the Middle East are short or swayed by displays of power, a quick course of historical readings, ancient and modern, would be appropriate; no other cultural center in the world is as conscious of historical slights and the vast distinctions between justice and force. It seems clear that if the legal remedy cannot create the pressures on Iran necessary to end the hostage crisis, nothing can. It thus remains incomprehensible that everything else is being tried except the one thing likely to help.
It may not be too late.
But, it may be argued, suppose the Security Council does not make a decision supporting the judgment of the court, or the General Assembly does not react in a way supporting the pressures on Iran to comply with the court's judgment? Those real possibilities can hardly make the situation worse; since formal positions by the Security Council and the General Assembly reflect only the political evaluations and desires of the members of those organs, their failure to support the judgment of the court can merely bring to the surface the growing politicization of the world body and its own contempt for its charter and the principles of justice that underlie it.
It is hard to believe that the member states would destroy their own most powerful weapon in the North-South dialogue. And if they would, isn't it time the US, from the highest possible moral position, entered into the dialogue? We seem to have forgotten that honesty and a base of rectitude in support of law and justice as pronounced by a third party set up for the purpose, the International Court of Justice, is about as powerful as bargaining posture as the current world order affords anybody. The relative weakness of military force in this situation has already been amply demonstrated by the failure of last April's rescue mission and the cultural impossibility of quick solutions in the Middle East.
Finally, the impasse on negotiations over the American claims against Iran, irrelevant to the hostages situation, is far more of an obstacle to settlement than has been recognized by either side. The Iranians are not demanding ransom; they are demanding their own money back.
We, through our own legislation in 1976, which may be of doubtful constitutionality, have created a situation in which the President cannot compromise international claims as he used to be able to do prior to the legislation. But our internal legislation is of no legal or political concern to Iran, just as our polemics properly disregard the Iranian constitutional and political difficulties which the Bani-Sadr government would have if it sought simply to release the hostages.
The only post-1976 presidential compromise of legal claims is the settlement with mainland China which, for many technical legal reasons (including the fact that the claims arose long before the new legislation was passed), is not a precedent for interpreting the current claims situation. Thus it is more than distressing to read of unnamed international lawyers in the Department of State supporting on the basis of supposed precedents the power of the President to enter into claims compromise agreements of the sort proposed in the American diplomatic note of Nov. 11, 1980.
It remains to be seen whether the incoming administration will have a better appreciation of the real world and American national interest in international justice and law. If it does, the tools it will have to achieve US foreign policy goals will be stronger than armies; if not, armies won't help much beyond the immediate emergency defense crises that must be allayed in order to allow time for the rule of law to a ssert its true power.