In TheNarneOGod
INTERNATIONALCOURO TFJUSTICE
CASECONCERNING OILPLATFORMS
(ISLAMICREPUBLICOFIRAN V.
-*'L, UNITEDSTATESOFAMERICA)
MEMORIAL
Subrnittby the
ISLAMICREPUBLICOFIRAN
Volume1
8June 1993 TABLEOFCONTENTS
PART1 THE FACTUALBACKGROUND TO THE DISPUTE ...........................
CHAPTER 1 CIRCUMSTANCESOF THE SIGNING OF THE .THE
TREATY OF AMITYAND THE TREATY'S
CONTINUINGAPPLICABILITY AFTER THE
ISLAMICREVOLUTION IN 1979 ..........................................
SectionA
The Circumstancesofthe Signingofthe Treaty ofAmity .....6...
SectionB The Developmentof Iran'sOffshoreFieldsand Facilities
Followingthe Signingofthe Treaty ofAmity ................8............
SectionC TBetweenthe United States and Iran After 19..............11.........
SectionD U.S.OilCompanies'ClaimsBefore the 1ran.U.S.Claims
Tribunal............................................................
...................
CHAPTER II DEFENSIVE MEASURESTAKEN BYIRANANDTHE .....................
SectionA Iraq's Aggressio.......................................1.......................
SectionB The DefensiveMeasuresTaken byIran ...................20.............
SectionC The Approach ofthe SecurityCouncilto the Conflictand
the Vindicationof Iran'sDefensivePosture.................6..........
CHAPTER III U.S.POLICIESANDACTIONSDESIGNED TO
SDEFENSIVE MEASURESFRUSTRA..............................3........................
SectionA U.S.ObligationsUnder internationalLaw .................3..............
SectionB The United States'Support for Ira.........................................
Section C U.S.ActionsAgainstIran ................................3..........................
CHAPTER IV THE AïTACKS OF OCTOBER 1987AND
APRIL 1988 ............................................4...............
.............
SectionA The October 1987Attack on the Reshadat Platforms.......41......
1. The statusofthe platforms prior to the atta......41...
2. The attacks.the damage caused andthe reactionsof
tlie Parties.....................................4............
....
SectionB The April1988 Attackon the Nasr and Salman Platforms...4..
1. The statusoftht:platformsprior to the attac......4.... 2. The attacks,the damage caused andthe reaction of
the Parties..........................................................
...
PART II THEJURISDICTIONOFTHE COURTONTHEBASIS OF
THETREATYOFAMITY ..............................................................
...
CHAPTER 1 THE TREATY REMAINSINFORCE BETWEEN
THE PARTIES ............................................5...............
......
CHAPTER II THE SATISFACTIONOFTHE REQUIREMENTS
OF ARTICLE XXI(2) ......................................7......................
SectionA The Existenceofa Dispute asto the Treaty's
Interpretation or Application...............................7..................
SectionB The Scopeofthe Court's JurisdictionRatione Materiae .........
SectionC The Dispute Has Not BeenSatisfactorilyAdjustedby
DiplomacyNor Havethe Parties AgreedTo Settle It by
Other PacificMeans ............................................................
SectionD Conclusions ................................................7.........
..............
PARTIII THEPROMSIONS OFTHETREATYOFAMITY
VIOLATEDBYTHEU.S.A'ITACKS OFOCTOBER1987
AND APRIL 1988 ..............................................................
...............
CHAPTER 1 METHODS ANDPRINCIPLESAPPLICABLE
TO THE INTERPRETATIONANDAPPLICATION.
OF THE TREATY OF AMITY ............................6...................
SectionA Introduction..............................................6................
.............
SectionB Court ofJustice Ratione Materiae and the Question
ofthe ViolationbyOne ofthe Parties ofthe
ObligationNotTo Deprivethe Treaty ofits
Object and Purpose ........................................0............
SectionC and Applicationoftheter1955Treaty ofAmityIn............................
CHAPTER II THE INTERPRETATION AND APPLICATIONOF
ARTICLE 1 .............................................................
.............
SectionA The Interpretationof Article1 ..............................5.................
1. Preliminaryremarks concerningthe wordingof
Article ............................................7............
........
2. The objectand purpose ofthe Treaty in the lightof
itsPreamble ........................................................
....
3. The "contextual"interpretation ofArticle1ofthe
1955Treaty:the obligationofthe Partiesto behave
peacefullyintheir mutualrelations...................8........ 4. The "contextual"interpretation ofArticle 1ofthe
1955 Treaty:the obligationofthe Partiesto conduct
theirmutualrelationsina friendlymanner ...................
SectionB The ApplicationofArticle1 .....................................................
1.
in favourof Iraq, the aggressorState, andStates
againstIran,the victimofagression, wasin
itselfaviolationofArticl1 ofthe 1955 Treaty........83....
2. The actionsof the U.S.armed forcesin 1987 and
1988 against Iran'soilplatformsviolated Article1of
the1955 Treaty............................................................
CHAPTER III THE INTERPRETATION AND APPLICATIONOF
ARTICLE IV(1)............................................................
.....
SectionA The Interpretation ofArticleIV(1).........................................
SectionB The ApplicationofArticle IV(1) ..............................................
CHAPTER IV THE INTERPRETATIONAND APPLICATIONOF
ARTICLE X(l) .............................................................
......
SectionA The Interpretation ofArticleX(l)............................................
SectionB The ApplicationofArticle X(l) ...............................................
PART IV THELACKOFJUSTIFICATION FORTHE U.S . ONDUCI'
INDESTROYING THEOILPLATFORMS ...................... ....................
CHAPTER 1 THE LAW ................................................3............
..............
SectionA Justificationnder theTreaty ofAmity ..................................
SectionB JustificationUnder General International Law..............95..........
1. The United Stateshas invokedthe rightofself-
C defence ............................................................
........
2. The essentialconditionsfora plea of lawfulself-
defence ..............................................................
........
That a prior delictshouldhavebeen
(a) committed againsttheState invokingself-
defence by the "aggressor"Stat.........................
(h) That the prior delict shouldtake the formof
an "armedattack .............................................
That there shouldbe an immediatenecessity
(c) to act,leavingthe State invokingself-defence
with noalternativemeans of protection............
(d) That the measurestaken inself-defencemust
be proportionate and limitedto the necessities
of the case..................................98............................ (i) The degreeand form of the forceto
be used.................................0.............
(ii) The targetchosen for the measures
inself-defence..........................0............
(e) be immediately reported to the Security
Council....................................101............................
3. The distinction between lawfulself-defence and
unlawfulreprisal..................................01...................
(a) Timing ....................................102.............................
(b) Disproportionate forc.......................0..........
(c) The premeditatednature of the action........0.4
The selection of thewrong"target............0....
(d)
4 . The issuesto be examined in relation to the facts
of the present case..............................105.........................
CHAPTER II THE FACTS ............................................................
...........
Section A Description ofthe Platform..................................................
Section B The Complete Disassociation of the Platforms from the
Defencei................................................0........
.................
1.. The alleged attacks on shippi.................................
(a) The so-called "attacks"byranian warships
and gun-boats...............................0..........
The alleged mining of the Persian Gulf
(b) by Iran.....................................1........
(c) The alleged missileattacks against
shipping in the Persian Gu.................1..........
2. The implicationsof the facts: a complete negation
ofthe U.S. claimto have acted in self-defence.....1..
(a) The requirement of a prior delict byIran
the form of an "armed attack...............1........
(b) The lackof any immediate necessityto act...118
(c) The disproportionate andretaliatory nature of
the U.S. respons............................1.........
PART V THE REMEDIESSOUGHTBYIRAN ...........................2........CHAPTER1 REQUEST FOR A DECLARATIONTHATTHE
UNITED STATESVIOLATED THE TREATYOF
AMITY ...............................................................
.................
SectionA The Competenceofthe CourtTo Makea Declaration ........2
SectionB SpecificRequests........................................................
CHAPTERII REQUEST FOR ANAWARDOF COMPENSATION
AGAINST THE UNITEDSTATES ...................................
SectionA The Basisofthe Court'sCornpetenceTo Make an
Award of CompensationAgainstthe UnitedStates ........1....
SectionB ElementsofCompensationClaimed byIran..............1.........
SUBMISSIONS ..........................................................
.......................................
LISTOFEXHIBITS
CERTIFICATIONMap No. Title FacingPa~e
Persian Gulf:Location ofthe Oil
Platforms
The ExclusionZones and the Main Area
of Iran'sVis&tSearchActivities
Location of Incidentsinthe Persian Gulf
during 1987
The October 1987Attack
The Distancefrom Iranian-heldTerritory to.
the Sea Isletv
The April1988 Attack 1. ThisMemorial isfiled pursuant tothe Court's Order dated 4
December 1992fixing31 May 1993asthe time-limit for the filingof the Memorial
of the Islamic Republic of Iran ("Iran"). The Order was issued following a
meeting of the Parties with the President of the Court on 3 December 1992 in
accordance with Article 48 of the Statute of the Court and Article 44(1) of the
Rules of Court. The time-limit for the filing of Iran's Mernorial was extended
until 8 June 1993byOrder of the Court dated 3 June 1993.
2. As the Court is aware, proceedings were instituted in this
case by an Application filed by Iranon 2 November 1992. The case arises out of
the attack and destruction by U.S. naval warships of three offshore oil production
complexes located in the Persian Gulf owned and operated by the National
Iranian Oil Company (s, Map 1,facing page 10). The attacks in question took
place on 19October 1987and 18April 1988.
3. As will be more fully developed in this Memorial, the U.S.
actions in attacking the oil platforms violated fundamental principles of
international law prohibiting the use of armed force, including a nurnber of
specific provisions of the 1955 Treaty of Amity between Iran and the United
States providing that there be peace and friendship between the two countries,
that each Party accord fair and equitable treatment to the nationals and
companies of the other and to their property and interests, and that there be
freedom of commerce and navigation between the territories of the Parties.
4. While Iran's claimsare based on the attacks themselves, it is
important to appreciate that the United States' actions did not take place in a
vacuum, but occurred in the context of a devastatingwar which Iraq, in violation
of fundamental principles ofjus cogens, initiated against Iran in September 1980.
As will be demonstrated in Part 1below where the factual aspects of the case are
discussed, the United States fi~iledto remain neutral in the conflict in violation of
its international obligations. Particularly from 1984onwards, the United States
pursued a deliberate policy of assistance to Iraq in its war efforts against Iran
coupled with provocation, threats and outright aggression against Iran. The
attacks on Iran's oil platforms in 1987and 1988, which were designed to cause maximum economic damage to Iran, were carried out against the backdrop of this
policy.
5. After a discussionof the facts in Part 1,Part IIwillthen take
up the issue of jurisdiction and willshow that under the compromissory clause of
the Treaty of Amity (Article XXI(2)), the Court has jurisdiction to rule on the
claims submitted by Iran based on breaches by the United States of various
Treaty provisions. Although Article XXI(2) does not expressly require that the
Parties attempt to negotiate their differences before a case concerning the
Treaty's interpretation or application can be submitted to the Court, Iran will
. demonstrate that the United States was so adamantly opposed to discussingthe
issuewith Iran that a settlement bynegotiation was impossible.
6. In Part III, Iran will review the specific provisions of the
Treaty of Amity which the United States breached by vlrtue of its attacks on the
oil platforms. In the light of the interpretation and application of these
provisions, Iran willdemonstrate that the U.S. actionswere clearly in conflictwith
its international obligations imposed bythe Treaty.
7. At the time the attacks took place, the United States
attempted to justifj its actions by asserting that they constituted legitimate acts of
self-defence. Prima facie, of course, the use of armed force by the United States
was illegal. Thus, while the burden of proof rests on the United States to support
its self-defence argument, Part IV will show that in the light of the facts of the
case, the United States' allegationcannot be sustained as amatter of law. Indeed,
even on a reading of the facts which is most favourable to the United States, its
actions constituted illegal reprisals for which the United States bears full
responsibility.
8. Having established the United States' responsibility for
breaching the Treaty of Amity, Part V will then turn to the substance of Iran's
claiins for declaratory relief and reparation. The legal basis of Iran's claims and
the elements for which Iran is claimingwillbe outlined in Part V. Iran reserves
the riglit,iowever, to defer a detailed discussion on the form and quantum of
coinpensation owing until a subsequent phase of these proceedings. Following
Part V, Iran's Meinorial concludes with itsSubmissions. 9. . The Memorial also includes a number of documentary
exhibitswhichare referredto in the courseof the discussionthatfollows. These
areinciudedinVolumesIIto IVhereto. PART 1
THEFACTLJA LACKGROUND TO THEDISPUTE
1.01 As explained in Iran's Application, the dispute before the
Court involves attacks on, and the destruction of, several commercial oil
production platforms and associated facilities owned and operated by the
National Iranian Oil Company in the Persian Gulf in 1987 and 1988. The
existence ofthese attacks, and the fact that they were made by U.S. military
forces, is not in dispute. However, the context of the a-the general status
ofU.S.-Iranian relations established bythe Treaty of Amity,both before and after
the 1979Islamic Revolution, and the period from 1980-88during which Iran was
subject to Iraqi agression - is as important as the attacks themselves.
Consideration of this background is relevant to show not only the applicability of
the Treaty of Amity to this dispute, buto the illegality of the U.S. actions in
carrying out the attacks. This Part will therefore with this background first
before turning to a description of the attacks themselves.
1.02 Chapter 1 briefly describes relations between Iran and the
United States from the signing of the Treaty of Amity on August 1955up to
and immediately after the Islamic Revolution of 1979. The facts related in this
Chapter show three things:fir shtt,the Treaty of Amity was entered into in
order to establish close bonds between Iran and the United Staaenumber of
fields and was not a purely commercial treaty; second, that one of the most
important motives for the new relationship created by the Treaty was the
development of Iran'soil industry, including,as one vital element, precisely those
oiltlelds and platforms in the Persian Gulf which were subject U.S.attacks
in 1987and 1988;and third, that the Treaty of Amity remained in force after the
IslamicRevolution in1979.
1.03 A peaceful settlemenr of outstanding disputes between Iran
and the United States was achieved by the Algiers Declarations of January.
As a result, U.S. oil companies were able to bring claims before the Iran-U.S.
Claims Tribunal for losses arising out of the events of 1979. These claims were
for billions of dollars of compensation for the full value of the oil companies'
rights to exploitranian oil until the end of the century, including oil frorn the
offshort:ilfields and platforms that are thisubject of this case. The companies
relied in part on the Treaty of Amity as providing the applicable standard of compensation for their claims. As will be further described in Chapter 1, the
United States chose to destroy these same oilfields,platforms and facilitiesat the
very time the Iran-U.S. Claims Tribunal was considering the companies' claims.
Despite these actions, theU.S. oil companies, as indeed al1 other foreign oil
companies operating in Iran prior to the Revolution, received full compensation
for their claims without any account being taken of the fact that afterU.S.
attacks production from the fieldsin question ceased.
1.04 The U.S. attacks occurred against the backdrop of a war
- __that had been imposed upon Iran by Iraqi agression and continued occupation of
Iranian territory from 1980onwards. Iraq's aggression and its attempt to widen
the conflict by instigating indiscriminate attacks on commercial targets in the
Persian Gulf will be described in Chapter II. The lawful defensive measures
taken by Iran in response to Iraq's agression will also be described in this
Chapter.
1.05 Chapter III then considers the United States' role in the
Iran-Iraq war. Officially,the United States announced that it was neutral in the
contlict, and Security Council Resolutions concerning the conflict called on third
States to exercise the utmost restraint and to avoid any act that mightlate
hostilities. The United States also had special duties to Iran under the Treaty of
Arnity. Yet despite the existence of such obligations, it is public knowledge that
during the conflict the United States activelysupported Iraq militarily,politically
and financially, and acted against the interests of Iran, even to theent of
committing acts of aggression against Iran. This aspect of the factual background
is described in Chapter III. It of relevance to an understanding of the attacks
themselves, whichare described in Chapter.
CHAPTER1 RELATIONS BETWEEN THE PARTIES - THE
CIRCUMSTANCESOF THE SIGNINGOFTHE TREATY
OF AMITY AND THE TREAWS CONTINUING
APPLICABILITYAFTERTHE ISLAMICREVOLUTION
SECTIO AN The Circumstancesof the Signingof theTreatvof Amitv
1.06 The Treaty of Arnity, Economic Relations and Consular
Riçhts signed with Iran was one of aies of bilateral "friendship,commerce and
navigation" (F.C.N.) treaties entered into by the United States. As their name
suggests, FCN treaties were not limittopurely commercial relations. Rather,they had been a tool of U.S. foreign policy - understood in a wide sense - ever
since the first such treaty was entered into with France in 1778. By World War II,
over 100 such treaties had been concluded by the United States. In the struggle
between Soviet and American influence in world affairs in the cold war period,
the importance of these treaties for the United Statesbecame more pronounced.
Accordingly,in the decade followingthe end of World War II, the United States
concluded 14 such treaties includingthe Treaty of Arnitywithlranl.
1.07 While the fear of Sovietinfluence was an important factor in
U.S. policytowards Iran in the post-World War II period, the immediate cause of
U.S. involveinent was oil. In March 1951,with the support of Dr. Mossadegh's
National Front, the Iranian Parliament passed an act nationalizing the Iranian oil
industry2. At that time, al1of Iran's oil was produced and operated by the Anglo-
Iranian Oil Company (AIOC), which was owned by British interests. AIOC had
exclusive concessionary rights over virtually al1of Iran's oil producing areas, as
well as use of the Abadan refinery, then the world's largest. In the resulting
dispute between Iran, the British Government and AIOC, a total embargo was
imposed on Iranian oil. This embargo caused economic hardship and disruption
in Iran, and allowed the communist Tudeh party to exploit the situation to
strengthen its position..
1.08 In August 1953, Dr. Mossadegh was deposed following a
coup instigated, organized and carried out bythe CIA under orders from the new
Republican Administration of President Eisenhower in Washington, and with
British support3. Many regarded the toppling of Dr. Mossadegh as a major blow
1 -9e Wilson, R.R.: "A Decade of New Commercial Treaties", Arnerican Journal of
International Law,Vol. 50, 1956,927-928 . he political importance of these treaties
is alluded to in a 1954U.S. Statute authorizing the U.S. President Io negotiate treaties
like that with Iran, whichates their aas being the achievement of "rising levels of
production and standards of living essential to the economic progress and defensive
strength of the free world". Exhibit 1.
These events and those related in pa.1.07-1.1 re summarized in Ramazani, R.K.:
"Iran's Foreign Policy: Perspectives and Projections", in Economic Consequence. of the
Revolution in Iran,A Compendium of Papers submitted to the Joint Economic
G>mmittee of the Congress of the United States, 19November 1979,96lh Congress, 1st
Session, Washington, U.S. Government Printing Office,pp.69-72. Exhibit 2.
'
The CIA's involvement in the coup was extensivelypublicized during the 1979 Islamic
Revolution with the publication of Kermit Roosevelt'sCountercoup: the Stru~rle for the
Gmlrol of Iran, New York, McGraw-Hill, 1979.g, also, Zabih, S.: The Mossadeeh
-ra, Chicago, LakeView Press, 1982pp. 124-126 and 139-143, for a summary of the
literaturc on this subject. Exhibii3.to democracy in Iran. The United States' aims were essentially threefold: to
remove Dr. Mossadegh'sGovernment £rompower and install the pro-American
Shah;to remove the perceived communistthreat; and to end the oil dispute and
gain accessfor U.S.companiesto Iranianoil.
1.09 The United States was successful in al1three aims. The
Shah was to hold power for another 25 years. The communistparty was largely
suppressed. Finally, U.S. oil companies obtained a significantparticipation in
Iran's oil industry shortly after Mossadegh'sfa11with the settlement of the oil
dispute. AIOC received compensationfor the lossof its monopolyposition,and
in 1954 a new agreement was signedbetween the National Iranian Oil Company
("NIOC') and a consortium of foreign oil companies in which U.S. companies
obtained a 40percent share.
1.10 The key element in U.S. policy wasthe Treaty of Amity
signed on 15 August 1955. The circumstancesof its signing -immediatelyafter
the coup whichremoved Dr. Mossadeghand reinstated the Shah -showthat the
Treaty was not a purely commercial treaty. Indeed, the Treaty cemented
political,commercialand diplomatielinksbetween Iran and the United States at
a highlyopportune time for the United States.
SECTIONB The Developmentof Iran's Offshore Fields and Facilities
Followingthe SigningoftheTreatvofAmitv'
1.11 In the years followingthe signingof the Treaty up to the
IslamicRevolution, relations between the United States and Iran were at their
closest. These relations were political, militaryand strategic, and not just
commercial. Iran was,withSaudiArabia, one of the "twinpillars"of U.S.foreign
policyinthe MiddleI2ast4.
1.12 One of the most important areas of cooperation was oil.
Reference was made above to the connectionbetween the signingof the Treaty
of Amity and the conclusionof the Consortium Agreement which granted U.S.
companies a share in the exploitationof Iran'slargest onshore oilfields. U.S. oil
coinpaniesbringingclaimsbefore the Iran-U.S.ClaimsTribunal were at pains to
4 In 1977 the U.S. SenarcCommirreeon Energyand NaturalResourcesnotedin apaper
on "Accesto Oil -The UnitedStates'RelationshipswithSaudiArabia andIran"thatthe
"U.S. stake in Iran and Saudi Arabiais unprecedentedand reflectsgeostrategicand
energyinterestsolgreat magnitude".Exhibit4.stress the equally close connection between the Treaty and the development of
Iran's offshore fields in the Persian Gulf, including specificallythose fields and
facilities which are relevant to this dispute5. The development of these fields
began immediately after the entry into force of the Treaty of Amity on 16June
1957. On 31 July 1957,Iran adopted the Iranian Petroleum Act whichannounced
that offshore areas under Iran'sjurisdiction in the Persian Gulf would be opened
up for exploration, development and production of petroleum resources byNIOC
in participation withforeign oilcompanies.
1.13 The first agreement reached pursuant to the Petroleum Act
was signed in 1958between NIOC and Amoco, a U.S. oil company. Further bids
were sent out in 1963,and in 1965two agreements were entered into which are
relevant to this case. One was signed on 17 January 1965by NIOC and Phillips
Petroleum Company, an Arnerican oil company, and two other foreign
companies. Pursuant to this agreement, known as a Joint StructureAgreement or
JSA, an Iranian company, IMINOCO, was formed to explore for and develop
petroleurn resources in the Persian GUIP A.sa result of IMINOCO's efforts, two
fields were discovered -Rostam (renamed Reshadat after the Revolution), and
Rakhsh (renamed .Resalat). The positions of these oilfields, in the continental
shelf of Iran and within itsExclusiveEconomic Zone, are show on M~D1,facing
page 10, to the south of Lavan Island. After development of the facilities,
commercial production began in Rostam on 19 September 1969and in Rakhsh in
February 1971.
1.14 A diagram of the Reshadat and Resalat platforms is shown
in Exhibit 5. The two main complexes, Reshadat (R7) and Resalat (RI), both
consisted of three linked platforms: a drilling platform, a service platform and a
production platform. Another single platform (R4) was also developed on the
Reshadat field, containing drilling, services and production facilities. Together
The U.S. oil wmpany claimants. like many atheU.S. daimants. based thcir claims
before the Iran-U.S. Claims Tribunal on the investment protection provisions set out in
ArticleIV(2) of the Treaty of Amiry. To support their case, the U.S claimants filed
:iffidavilsof the U.S. negotiatiors of the TreatIoishow lhat il was precisely the
U.S. cornpanies' intcrcsts in Iran'soïïshore oilfields that the United States had in mind
whcn drafting Article IV(2).
O This cornpanywas 50% owned hy NIOC and 50% by the foreign oil cornpanies and was
subjeci to joini management. The foreign oil companies provided the techniwl support
and finance for the dcvelopmcnt of the oilfields and in exchangc gatoe50'%1fts
the produccd oil. subjcct to the paymentof iaxand IoyIran.sthese platforms, which were linked to some 40 separate wells, were designed to
deal with levelsof production up to 200,000barrels per day.
1.15 It can be seen from the same diagram attached in Exhibi5
that al1oil pumped from either the Reshadat or the Resalat complexes passed
through a central producing platform on the ReshadatR7) complex before being
pumped by subsea line from there to the oil terminal on Lavan island. A
photograph of the R7 complex prior to the U.S. attack is show facingpage 44. It
is significant that it was this platform that was thecus of the U.S. attack.
Destruction of this platform, as the United States knew full well at the time,
effecti'velyput both the Reshadat and Resalat oilfieldsout of action.
1-16 The second Joint Structure Agreement relevant to this case
was signed on 18 January 1965 between NIOC and four U.S. oil companies
(Atlantic Refining Company, Murphy Oil Corporation, Sun Oil Company and
Union Oil Company of California), and another Iranian joint stock Company,
LAPCO, was formed. The Sassan field (renamed Salman) discovered by LAPCO
was declared commercial on 12 November 1966. Thereafter, the necessary
platforms and facilities were built, and commercial production began in June
1968. Further development of the Salman facilitiestook place in 1977-78.
1.17 The Salman complex .was located south of Lavan Island
(e, Mar, 1, facing this page), in the continental shelf of Iran and withits
Exclusive Economic Zone, and was connected to the oil terminal on Lavan by
subsea line. The complex consisted of 7 connected platforms (1 facilities, 1
drilling, 2 production, 2 living quarters and 1 pumps and generators) linked to
some 38 wells and capable of producing over 220,000barrels per day of crude by
hoth primaiy and secondary recovery methods7. A photograph of the Salman
complex appears facing page 50.
1.18 The Sirri fields (renamed Nasr) were developed through
rather different arrangements with Elf Aquitainepursuant to a 1966 Service
Agreement. These fields are also'located in Iran'scontinental shelf and within its
ExclusiveEconomic Zone to the southwest of Sirri Islan(e, Mar, l), and oil is
7 Primaryrccovery is crude produhydnaturalpressure in the reservoir. Secondary
recoveryinvolvesthe injectigasor watcrto increasepressurein the reservoirand
thus force out the oil. Secondaryrccoveryrequiresthc much more cxtensive facilities
foundon theSalrnancomplcx.Map 1produced by seven multi-well platforms (platforms A, B, C and D on the SirriD
field and platforms E and F on the Sirri C field and the Nosrat platform). The
total production capacity ofthese platforms is approximately 100,000barrels of
crude per day. Ascan be seen from the diagram attached in Exhibit 6,the central
structure is platform A which gathers oil from al1 the other platforms before
transporting it by subsea line to Sirri island.Platform A includes a central
production platform, a well platform and a flare system (E, the photograph of
platform A following page 50). It was this structure which was destroyed by the
United States thus rendering al1of the other platforms useless.
1.19 By the time of the events of 1978-79,each ofthese oilfields
had been producing for several years, and the foreign oil companies had made
substantial profits from their exploitation.
SECTIONC The Islamic Revolution and the Change in Relations
Betweenthe UnitedStatesandIranAfter1979
1.20 The main events of 1978-79and the Islamic Revolution are
matters of public knowledge. The popular resentment which exploded at this
tiine was directed as much against the Shah as against the United States. It was
recognized that the Shah had been reinstated on his throne in 1954 by a coup
d'état directly organized, financed and carried out by the U.S. Government.
Massive U.S. political support, as well as more covert forms of assistance, had
continued throughout the Shah's regime. Resentment against U.S. involvement
in Iranian affairs was strongest in the oil industry,the lifeblood of Iran's economy
and, particularlysince the time of Dr. Mossadegh, a focus for Iranian political
aspirations. b
1.21
The Shah's departure from Iran at the beginning of 1979
coincided with the departure of nearly al1U.S. companies and their personnel,
includingthe U.S. oil companies. During 1979,relations between the new Islamic
Republic and the United States worsened. Increased publicity given to CIA
involvement in Iran in the past (both in connection with the downfall of Dr.
Mossadegh and in the controi of the Shah's hated secret police, the SAVAK),
combined with fear of attempts by the United States to take steps to overthrow
tlie new Governinent and reinstate the Shah after the Shah's admission to the
United States, precipitated the events of November 1979at the U.S. Embassy in~ehran'. While harbouring the Shah, the United States also froze Iranian assets
in the United States, imposing an embargo on virtually aii trade with Iran.
Finally, it sought redress before this Court concerning the events at the U.S.
Embassy. During the pendency of those proceedings, the United States also
chose to attempt a military rescue operation which was subsequently
characterized by the Court as "calculated to undermine respect for the judicial
process in international relations9".
1.22 Although relations between the two Parties reached a low
point during this period, it is important to recall that they were able to settle their
disputes peacefully by means of the Algiers Declarations of 19 January 19811°.
Indeed, as the preamble of the General Declaration states, the Algiers
Declarations were entered into in order to seek "a mutually acceptable resolution
cifthe crisis in...relations" between the two States. Under these Declarations,
provision was made to settle al1claims relating to the seizure of 50 United States
nationals on 4 November 1979 and the surrounding eventsll. As a result, the
Diplomatic and Consular Staff case was subsequently withdrawn from the Court
bythe United States on the basis that al1aspects of the case had been settled. On
the Iranian side, provision was made for the return of Iranian assets and the
removal of U.S. economic sanctions. In Point 1of the General Declaration, the
followingcommitment was also given:
"1. The United States pledges that it is and from now on willbe
the policy of the United States not to intervene, directly or
indirectly, politicallyor militarily,in Iran'serna1affairs."
Finally, the Iran-U.S. Claims Tribunal was established to settle the claims of
nationals of each Party against the Government of the other Party, as well as
intergovernmental claims,arising out of events arisingprior to 1981.
These aspectsof the crisisarediscussedin Stempel,J.D.: Insidethe IranianRevolution,
IndianaUniversityPress,981,pp. 223-241a,nd Carter,J.:KeepingFaith:Memoirsof a
PresidentLondon, Bantam Books. 1982,pp. 457-470 and483-489. KermitRoosevelt's
book Countercoup: The Struegle for the Control of Iran(S. fn. 3 above), which
revealedCIA involvcmentin Iranin moredetailthaneverbefore,waspublishedin 1979,
duringthe Revolution.
9
United States Diplomaticand ConsularStafinTchran,Judcmcnt,I.C.J.Reports 1980,
p.43, para93.
Io
The full texiof the Dcclarationsis priniedin 1Iran-U.S.1981-82,pp.3, et=.
''
Scc, paragrap11 ofihc GcncralDeclarationm., p.6. 1.23 Despite the deterioration in Iran-U.S. relations that
occurred in the wake of the Revolution, the Treaty of Amity survived these
events. This Court, for example, found that the Treaty was still in force and part
of the corpus of law existing between the two States after the events of 197912.
The Iran-U.S. Claims Tribunal set up pursuant to the Algiers Declarations
reached the same finding and continued to apply the Treaty. As a result, U.S.
claimants have benefited in literally hundreds of cases before the Iran-U.S.
Claims Tribunal from application of the Treaty's provisions1? Both States now
relyon the Treaty, and neither bas sought to terminate it14.
SECTIOND U.S. Oil Cornpanies'Clairns Before the Iran-U.S. Claims
Tribunal
1.24 Many U.S. companies, and in particular the oil companies,
brought claiinsbefore the Iran-U.S. ClaimsTribunal for losses allegedlyarising as
a result of the events in Iran of197915.The U.S. partner to the IMINOCO JSA,
which operated the Resalat and Reshadat fields, and the four U.S. companies
whichtogether held a 50% share in the LAPCO JSA, whichoperated the Salman
field,al1pursued claims before the Iran-U.S. Claims~ribunal'~. These claims,
which were for billions of dollars of compensation,.were based in part on
provisionsof the Treaty of Amity. Accordingto the oil companies,compensation
\
was required for lost profits that would have been obtained £rom continued
exploitation of the fields and facilitiesfrom 1979until the end of the century - in
other words, during and beyond the period in whichthe same fields and facilities
were attacked and destroyed by U.S. militaryforces.
1.25 On the question of liability,both sides agreed that events of
force maieure existed in Iran in early 1979. However, there was disagreement
about at what point these events came to an end. The U.S. companies alleged
that the force maieure events associated with the Islamic Revolution came to an
l2
United StatesDiplornaticand ConsularStaffin Tehran.Jud~ment.LC.J.Re~orts 1980,
p.28, para.54.
l3
-See;paras.2.03-2.08 bclow.
l4 -ihid.
lS
As a non-American cïmpany, recourse to the Claims Trihunalwas not open toElf
Aquitaine. However,anamicablesettlcmentwasrerrchewith Elfafter the Revolution.
''
Thcse were Case No. 35,and Che Nos. 20, 21. 22 and 23 (hcard together) on the
Tribunal'sRegistcr.end by April 1979 -andthat they were illegallyprevented from returningto Iran
after the situationwas normalised. Iranian respondents argued that the former
contractual agreements had been frustrated due to changed circumstancesor
terminated by mutualagreement ofthe Parties concerned.
1.26 Contrary to the impressionoften givenby U.S.sources,the
Iran-U.S. ClaimsTribunal found no wrongdoing wascommitted either by NIOC
or the Government of Iran in respect of these contracts. In the Tribunal's only
two substantive awards on these issues, arguments by the oil companies that
NIOCor the Government of Iran had unlawfullyexpropriated the oilcompanies'
property were rejected. In the Amoco International Finance case, the Tribunal
found there had been a lawfulnationalizationof the U.S. company'sinterests17.
In the Consortium case, which concerned by far the largest of Iran's oil
agreements, the Tribunal found there was no expropriation or nationalization,
but rather that the parties had mutuallyagreed to terminate their contractual
relationshipsin an amicablesettlement18. Indeed, the Tribunal foundthat these
caseshad onlyarisen because contacts betweenthe parties were interrupted as a
result of the eventsof November 1979. AlthoughIran'sand NIOC'sactionswere
thus in conformity withinternationallaw,inthe AmocoInternationalFinancethe
Tribunal found that Iranian defendants were liable to pay compensationto the
U.S. claimants under the terms of Article IV(2) of the Treaty of Arnity. The
Treaty was considered as a 1exs~ecialis,overridingany alternative standardsof
compensation applicableunder general international law,and as stillin forceand
bindingon the parties19.
1.27 Iran and NIOC showedtheir utmost goodfaith duringthese
proceedings and were successful inbringing al1 such clairns to an amicable
settlement. The settlements with the U.S. oil companies were presented to the
ClaimsTribunaland recorded asAwardsonAgreed Terms.
l7
ArnocoInternational FinanCorp.v. Iranetal.,AwardNo.310-56-3dated14July1987,
reprinted in15Iran-U.S.C.T.R.,1987-, p.189.
l8
Mobil Oil IranInc. et al. v. Governmentof Iranand NationalIranianOil Company,
AwardNo. 311-74P6/81/150 dated14July1987,reprintedin 16Iran-U.S.C.T.R.,1987-
III,ap.3.
lY
Althoughthe Tribunalrecognizedthatcustornarylawstandardswerestill of relevance.
-ee,ArnocoInternational FinancCorp.v. Iranet al.,AwardNo310-56- 3ated14July
1957,reprintedin 16Iran-U.S.C.T.R.,1987-,tp.222.CHAPTER II IRAQ'S AGGRESSION AGAINST IRAN AND THE
DEFENSIVE MEASURESTAKENBYIRAN
S~cno~ A Iraq's Aeeression
1.28 On 6 March 1975, an agreement dealing pnncipally with
border issues was reached in Algiers between Iran and Iraq on "an ultimate and
permanent settlement of al1outstanding questions between the two countnesm'.
A subsequent Treaty on International Borders and Good Neighborly Relations
(together with Protocols on Border Security, Re-demarcation of Land Borders
and Demarcation of Water Borders) was signed on 13 June 1975in Baghdad by
the President of Iraq and the Shah of Iran.
1.29 It was only in 1979that Iraqi officiais, taking advantage of
what they perceived to be an uncertain situation in Iran, began with increasing
fiequency to denounce the 1975Treaty and to make ever more extreme claims
against Iran. For example, on 31 October 1979 the Iraqi ambassador in Beirut
issued a declaration containing three demands: (1) the abrogation of the 1975
Treaty and the restoration to Iraq of its alleged territorial rights; (2) the
evacuation by Iran of the Abu Musa and Tunbs islands in the Persian Gulf;and
(3) the granting of autonomy to the Baluchis, Kurds and Arabs in Iran.
As a
result ofsuch statementsand other provocative actions by Iraq, relationsbetween
the two States deteriorated in 1979and 1980,and an increasing number of border
incidentsoccurred21.
1.30 On 17 September 1980, President Saddam Hussein
announced in Iraq's Parliament that the Government of Iraq had formally and
unilaterally abrogated the 1975Treaty and had restored its full sovereignty over
the Shatt al-Arab waterwayu. On 22 September 1980, Iraq launched
simultaneousstrikes against Iranian airfields (including Tehran airport), while its
armies advanced along a 450-mile front into Iran's Khuzistan province and other
20 Sce, the preamble of the Treaty on InternationalBorders and Good Neighborly
Relations(done at Baghdad,June 131975),InternationalLegalMaterials,Vol. XIV,
No.5,September1975,p. 1133.Exhibit7.
" yee Keesine'sConiem~orarvArchives,7 August1981,pp.3105-3 107. Exhih8.
22 l9id p.31006.Exhibit8.western areas of The area invaded included Iran's most important
onshore oilfields,responsible for over 90 percent of Iran's oil production. On 23
September, Iraqi forces were reported to have encircled Abadan and
Khorramshahr, two important citiesand twoof Iran's principal oil centres. On 24
September, the Iraqi advance continued and Iraq reported having attacked and
set fire to Iran's main oil terminal on Kharg island in the Persian ~ulf~~. Iraq's
aggression against Iran and its occupation of Iranian territory was to continue
until the United Nations cease-fire agreement, accepted by Iran on 18July 1988,
wasfinallyaccepted by Iraq on 20 August 1988~.
1.31 Iraq prosecuted its aggressionagainst Iran bythe continuous
occupation of Iranian territory, indiscriminate attacks on civilianpopulations, the
illegaluse of chemical weapons against both military and civiliantargets, and the
expansion of the contlict by attacks on shippingand oil installationsinthe Persian
Gulf.
1.32 As early as 1981, Iran protested Iraq's attacks on Iranian
civilian targets to the Security ~ouncil~~. Iran was obliged to make hundreds
more such protests in the comingyears, includingprotests against Iraq's chemical
weapon attacks against civilian populations. At the initiative of the Secretary-
General, and at the repeated request of Iran, independent experts were called to
visitboth States to investigatethese protests. Al1the reports made on this subject
(in 1984, 1985, 1986, 1987and 1988) provided conclusive proof of Iraq's
continuous use of chemical weapons against militaryand civiliantargets. None of
these reports found any evidence of chemical attacks by ~ran~~.Such attacks
continued even after Iran'sfullacceptance of Resolution 598on 18July 1988~~.
23 -Ibid.S. also, Sick,G.:"TrialbyError:Reflections on the Iran-IraqWar",MiddleEast
Journal,Vol. 43, No. 2, 198230. Exhibit9.
24 Keesine'sConternporawArchives,7 August1981,p.31007. Exhibit8.
2S See Sick,G.op. &.,pp.242-243 .xhihit9.
26 Ywrhookof the Unitcd Nations,Vol. 351981,p.239. Exhibi10.
27 See, fora recordof these reports.thc extractsfromthe Yearbookof the United Nations
includedinExhibit11.
28 "Reportof the MissionDispatchcby the Sccretary-GeneralIo InvestigateAllegationsof
the Use of ChernicalWcaponsin the Conflicrbetween the IslamicRepuhlicof Iranand
Iraq".19 August988(SD0134). Exhibit12. 1.33 Iraq also extended the war into the Persian Gulf. In early
October 1980,Iraq had declared the area of the Persian Gulf north of 29"307Na
"prohibited war mne"29. In 1981,it began attacking vessels in the Persian GUI^^.
The reason for these attacks was, of course, that the Persian Gulf represented
Iran's main trading link with the outside world. In particular, al1Iranian oil was
shipped from Iranian ports and oil terminais along the Persian Gulf. Iraq, on the
other hand, had largely been deprived of access to the Persian Gulf (through its
port at Umm Qasr, north of Bubiyan island, or through Basra via the Shatt al-
Arab) early on in the war. As a result, Iraq was forced to use Kuwaiti ports or to
transport more of its crude oil bypipeline.
1.34 In mid-August 1982,Iraq went further, declaring as a "naval
total exclusive zone" an area north and east of a line joining the following
positions: 29"30'N,48"307E;29"25'N,4Y09'E: 28"23'N,49'47'E;25"23'N,51°007E.
The extent of Iraq's exclusion zone is shown on Mar, 2, facing page 18. Iraq
stated that it would "attack ail vessels" appearing within this zone and that "al1
tankers docking at Kharg Island, regardless of nationality [would bel targets for
the Iraqi Air or ce'"'.
1.35 Iraq's attacks increased in violence and in number as the
war continued, in particular after Iraq obtained access to Exocet missilesin 1983.
The attacks themselves were directed against both Iranian vessels and those of
third States, and were directed against ships trading with-Iran as well as with third
States. In carrying out these attacks, Iraq did not distinguish between commercial
and military vessels. The attacks were thus totally indiscriminate. No attempt
was made to identify the vesse1 beforehand or to carry out search and visit
29
See, Roach, J.k: "Missileson Target: Targeting and Defense Zones in the Tanker War",
Virginia Journaof International Law, Vol.31, 1991,593,at pp. 604-605. Exhibit 13.
A selection of anicles concerning the so-called "tanker war" are included in this
Memorial. Many of these articles are highly inaccurate, and the majority rely on U.S.
çovernmenl briefings, not first-hand information. The use of these reports by Iran is no1
an endorsement of their evidentiaryvalue. They are simply provided to the Court Io give
somc "flaveur"of the situation in the Persian Gulf al the lime.
-ce, the graph produccd in The Washineion Post, 13 October 1987. Exhibit 14. This
shows thal lraqi altach started in 1981 and continued until 1984 wilhoul responsc from
Iran. However, g, Chaptcr II, Section B, below for a discussion of the so-called
"atiacks"by Iran.
31 Roacli,J.A.op. &..aipp. 604-605. Exhibi13.procedures or to establish the nature of its trade32. A number of ships were also
damaged by mines laid by Iraq in the Persian Gulf. By the end of 1984,at least
seven vessels had been damaged by Iraqi mines. For example, on 7 June 1984an
Iraqi mine blew a hole in a Liberian tanker, the Dashaki, in the Strait of Hormuz
on itswayfrom the Iranian port of Bandar Abbas to Saudi &abia3? Iraq openly
vaunted its attacks, declaring that it considered itself fullyjustified in attackng
vessels of any nationality engaged in trade with Iran. Because such vessels were
allegediyengaged in assistingthe enemy'swar efforts, Iraq claimed that they were
34
legitimate targets- .
1.36 Iraq's approach to the war changed significantly,however,in
1986after Iran captured a portion of the Fao peninsula and threatened the Iraqi
city of Basra. This was a dramatic reversal for Iraq, particularly in the light of
Iranian successes in the north where substantial parts of Iranian territory were
liherated". Faced with an increasinglydesperate situation, Iraq took ever more
extreme actions in the land war in its use of chemical weapons and attacks on
civilian populations. For example, in March 1988, after Iran had captured the
Iraqi town of Halabja, Iraq attacked the town withchemical weapons killingover
5,000of its own citi~ens'~.
1.37 At the same time and for the same reasons, Iraq took more
extreme actions in the Persian Gulf in an effort to internationalize the conflictand
draw in help from western forces. Up until this time, the United States and other
western powers, like many Arab States, had endeavoured to play down their
support for Iraq which had taken a largely covert form. This policy was
apparently dictated by the view that it was acceptable to let both States weaken
each other by continuing the conflict. However, Iran'ssuccesses of 1986,coupled
32 One author described Iraqipolicyas "shootfirs- identify later". McCartanB.:The
TankerWar",Armed Forces Journal InternationalN , ovember 1987,p. 74. Exhibit 15.
Roach, J. A.: S.c&.,p. 606, notes that "few Iraqiship attackswere precededbyvisual
identification".Exhibit13.
33
Scc, Danziger,R.:"ThePcrsianGulfTankerWar"in Proceedinb/Naval Review, 1985 p,.
165. Exhibit16.
34
Sec .orexamplc.Ycarbookof thc United Nations.Vol. 39, 1985,p. 248, Exhihii 17,and
Vol.40, 19,%,p.235. Exhibit18.
35
Scc, Kcesing'sConiemporarvArchives,Vol. XXXII,July1986, pp.34515-34516 Exhihit
-9.
'(' Kccsine'sContcmporaryArchives,Vol. XXXIV, Scptembcr1988, p.36168. Exhihit20.with Iraq's efforts to destabilize the Persian Gulf, brought about a reversa1of this
policy and led western powers and certain Arab States to line up more firmly
behind Iraq.
1.38 Iraq's effort to internationalize the conflict involved a
dramatic increase in its attacks on shipping in the Persian Gulf. Many attacks
took place in the main shipping lanes, outside of Iranian waters, and were
directed even against the shippingof Iraq'sallies3'. This was the inevitable result
of Iraq's "shoot first-identi5 later" policy. The most well-knownincident of this
kind was the Iraqi attack on a U.S. naval vesse],the U.S.S. Stark, in international
waters of the Persian Gulf in May 1987(the Stark's locationwhen it was hit can
he seen on Map 3, facingpage 38)". Either bydesign or bymistake, attackswere
also made on Saudi and Kuwaiti vessels, although in theory both these States
were assisting Iraq in its war effort? Iraq wasapparently ready to risk attacking
its alliesin thehope that Iran wouldbe held responsible and would be viewedas a
greater danger than Iraq. The aim was to force third States to take more
determined action against Iran.
1.39 It was also during this period that Iraq stepped up its mining
of the Persian Gulf. This was carried out byvarious means: sophisticated seabed
mines laid from the air, older contact mines laid by small boats, and mines simply
set adrift in the northern waters of the Persian Gulf and allowed to follow the
current through the shipping lanes. Some of these mines eventually found their
way as far as the Indian Ocean where they were spotted by passing shipping.
Later, during the Kuwaiti conflict,Iraq was able to sow thousands of such mines
in the Persian Gulf. Iran, whose vesselswere as much at risk as any others from
these mines, was forced to carry out extensive mine-sweeping activities
throughout the duration of the conflict.
"
Iraqstartedattackingvessels in the shipping lanesbecause these lanes werealso usedby
lranianvcssels. Manylranianvessels hadceasedusingIranianwatersbecausethercthey
wereopen tarçetsfor Iraq.
3X
Sec, paras.1.92-1.93hclow.
"
As early as 1984, The Midd[e East Economic Survky (MEES) reportcd on this
exrraordinaryfeaturof Iraqiaitacks. See, MEES, Vol. XXVII, No. 25.2 April 1984.
Exhihit21. B, also, para. 1.105helowon IraqiSilkwormattackson Saudiand Kuwaiti
vessels in988. 1.40 In this period, Iraq also began to attack Iran's oil
installations in the southern Persian Gulf, including the oil terminals at Lavan,
Sirri and Larak islands, and Iran's offshore oil platforms. Despite the distance of
these installations from Iraqi territory, Iraqi planes were able touse refuelling
facilitiesto assist in the attacks.isclear that Iraq regarded these installations as
prime targets because of their economic importance to han4'.
SECTIO BN TheDefensiveMeasuresTaken bv Iran
1.41 The existence of Iraqi aggression threatening Iran's
soveretgnq and territorial integrity was clear. On 17 September 1980,Saddam
Hussein had illegally denounced the 1975 Treaty governing the two States'
relations and boundaries4l. This act. combined with Iraq's invasion, threatened
Iran's very existence, and forced Iran to resort to self-defence. This involved
atteinpts by Iran to liberate territory captured by Iraq and to force Iraq to uphold
the 1975Treaty and renounce its claims to Iranian territory. During the war, Iran
was able to capture parts of Iraq's territory and, as indicated above, in 1986
substantiallyto reverse the overall situation in theonflict-.However, throughout
the war parts of Iranian territory remained under Iraqi occupation.
, 1.42 Iran also responded by taking defensive measures against
Iraq'sattacks on Persian Gulf shipping. Specifically,Iran protested Iraq'sattacks,
proinised to keep the Strait of Hormuz open to neutral commercial ships, and
took steps to protect commercial shipping from Iraqi atta~ks~~. As a further
defensive measure, on 22 September 1980, immediately after Iraq launched its
attack, Iran declared a defence exclusionzone around its coast~~~.The extent of
this zone is shown on Map 2, facing page 18. Iran called on vessels,after passing
through the Strait of Hormuz, to follow a course keeping 12miles south of Abu
Musa Island, Sirri Island, Cable Bank lighthouse and Farsi Island, thence Westof
a Iineconnecting the points 27"55'N,49"53'Eand 29"1û'N,49"12'Ea ,nd thereafter
south of the line 29"10'Nas far as 4g040'E. With regard to vessels followingthis
course, Iran called on them to hoist the flag of their original nationality in
"
Scc, paras.1.28-1-30abovc.
"
See,Yearbookof ihc Unitcd Nations,Vol. 341980pp. 315-316. Exhih22. &, also,
Yclirbookof the United Nations,Vol.319'9p.233. Exhibi23.
43
Sec, Roach,J.A.op.a. pp.600-001.Exhibit13.accordance with international law, and to respond to requests to visit and search
by the naval forces of Iran. These measures were not intended to, and did not,
interfere with the shipping lanes through the Persian Gulf. Indeed, because of
Iran'sreliance on maritime trade through the Persian Gulf, both for its oil and for
other exports, itwas inevitable that Iran'sinterests layin keeping the Persian Gulf
safe forshipping44.
1.43 Throughout the first four years of the war, Iran took no
action against commercial shipping, a point which is fully accepted by U.S.
Government sources. On the other hand, and despite Iran's repeated protests,
Iraq's indiscriminate attacks against shipping in the Persian Gulf passed almost
without comment in the international community. The Security Council's first
and only fulldiscussion of the issue took place in 1984at a meeting presided over
by Jordan, one of Iraq's main supporters, and requested by Bahrain, Kuwait,
Oman, Qatar, Saudi Arabia, and the United Arab Emirates to consider what they
called "Iranian agression on the freedom of navigation to and from the ports of
thrir ~ountries~~"!This request was made despite the fact, pointed out by Iran,
that there had only been a couple of incidents between Iranian forces and
allegedly commercial vessels trading with these countries, whereas Iraq had
already carried out over 70 direct attacks on commercial shipping46. The
rcs"lting Resolution (No. 552) reaffirmed the right of free navigation "to and
from al1ports and installations of the littoral States that are not parties to the
hostilities" and condemned what it described as recent Iranian attacks on
"commercialships en route to and from the ports of Kuwait and Saudi Arabia4'".
Iran has never accepted responsibility for these attacks. Anyincidents that took
place at this time involved vessels carrying contraband or refusing to obey Iran's
legitimate requests to visitand search.
1.44 Quite inexplicably, Resolution 552 made no comment on
Iraq's attacks on commercial vessels trading with Iran, nor on Iraq's argument
that attacks on any ships trading with the enemy, irrespective of whether they
were trading in contraband or commercial goods, were legitimate. Indeed, in
''
Onihc lcgrilityof Iran'sact-,nsPartIVhelow.
45
Ycrirhookofihe Unitcd Nations, Vol.31984p.234. Exhibit23.
47
SccuriiyCouncil Rcsoluiion 552 (1984) of 1Ju1984.A complcic set of the Securiiy
Coiincil'sRcsoluiions adoptedin rclaIOtheconflictis includcdin Exhihit24.failing to comment on such attacks, the Secunty Council implicitlylegitimized
them. Thisgaveriseto a regrettable situationwhichIran stronglyprotested at the
time, pointingout that Resolution 552effectivelygave Iraq a licencefor further
aggressionM.
1.45 As a result of thissituation, Iran was forced to increase the
scope of its visit and search activities,in particular because it had become open
knowledgethat Iraq was receivingwar contraband through shipmentsto friendly
Persian Gulf States. Iraq falsely claimedthat these States had more to fear £rom
Iran's IslamicRevolution than from Iraq itself and even camed out attacks on
these States' shipping,while allegingIranian responsibility,in order to increase
the pressure. As a result, a number of the Persian Gulf States, and particularly
Kuwaitand SaudiArabia, pledgedtheir politicaland economicsupport to Iraq in
the war and activelysupported Iraq's war effort49. Iraq continued to exercise
pressure on and threaten other Persian Gulf States throughout the conflict in
order to extractassistancefromthem.
In addition to political support, financial supportwas also
1.46
forthcoming. For example, a Kuwaitinewspaper dated 16April 1981reported
that the Persian Gulf States had undertaken to lend Iraq the equivalent of
$14,000 million -$6,000millionfrom SaudiArabia, $4,000millionfrom Kuwait,
$3,000 millionfrom the U.A.E.and $1,000millionfrom ~ata?'. This assistance
continued throughout the wa2l. Under the War Relief Cnide OilAgreement of
February 1983,Saudi Arabia and Kuwaitalso committed themselvesto transfer
to Iraq the salesproceeds fromthe Khafjioilfieldsinthe Neutra1zones2.
b
1.47 Certain Persian Gulf States also opened up their ports to
allowthe transportation of goods,whichincluded both commercial andmilitary
items,to Iraq. It iswell-knownthat the tonnage ofgoodspassingthroughKuwaiti
4X
Yearbookof the UnitedNations,Vol.38,1984p.236. Exhibit23.
49
S,, in general, Keesine's ContemporarvArchives,August 1981,pp. 31009-31010.
Exhibit25.
p.-dp.31010.
''
Keesine'sContemporaryArchives,10 December1982,p.31848, reportsthatby1982the
loanshadincreasedtoU.S.$24,000million. Exhibit26.
52
Mehr,F.:"NeutralityinTheGulfWar"O, ceanDeveloprnentand Internationlaw, Vol.
20, No. 1, 19pp.105-106. Exhibit27.ports during this period increased massivelybecause of Kuwaiti aid to Iraq. Iraqi
forceswere also using Kuwait'sBubiyan island. Overfiight and refuelling facilities
also assisted Iraq in making its long-range attacks on Iranian oil installations in
the southern Persian Gulf.
1.48 A number of these points, insofar as they concemed Kuwait,
were borne out by a November 1987Report to the U.S. Senate Committee on
Foreign Relations, which stated explicitlythat Kuwait had "chosen to serve as
Iraq'sentrepot and thus as its de facto allg3". The same Report noted that "from
the beginning of hostilitie..Kuwait put aside its past differences with Iraq" and
entered into a "'strategicmarriage of convenience'with ~a~hdad'~":
"Kuwait permitted the use of its airspace for Iraqi sorties against
Iran, agreed to open its ports andterntory for the transshipment of
war material (mostly of French and Soviet origin), and joined with
the Saudis in providing billions of dollars in oil revenues to help
finance the Iraqi5rar effort. In clear and unmistakable terms,
Kuwait took sides ."
1.49 Despite the- intensity of this provocation, Iran exercised
considerable restraint. As noted above, from 1980-1984Iran took no.action of
any kind against commercial shipping -indeed, it took positive steps to protect
such shipping, by instigating its own protective convoysystem and carrying out its
own mine-sweeping operationss6. In 1984, in particular after the adoption of
Resolution 552, Iran was forced to take more effective defensive measures.
However, Iran concentrated its efforts on its legitimate nght of visiting and
searching vessels. As a result of these efforts, suspected vessels were searched,
and many were detained and their cargoes impounded when they were found to
be trading in contrabandS7. Iran was eager to lirnit its actions to defensive
53 "Warin the PersianGulf:TheU.S. TakesSides"a StafReportto the Committee
on ForeignRelationsof the U.S. Senate,November1987, 10th Congress,1stSession,
Washington, U.S. overnmentPrintingOffic1987 ,.27. Exhibit28.
5h See,Keesinfs Contempraw Archives.10December1982,p. 31850. Exhibit29.
57 See Peace,D.L.:'Major MaritimEeventsin thePersianGulfBetween1984and1901:A
~urfdicalAnalysis",VirriniaJournalof InternationalLaw, Vol. 31, 199549-551.
Exhibit30. Again, this Exhibitis furnishedsimplyto corroboratefactsstated in this
Memorial. Irandoes not necessarilyendorsethe author'sviewson thissubjector accept
theaccuracyofotherfactsstatedbyhim.measures aimed at deterring further support for Iraq. These steps were justified
bythe lawsofwar and neutralityand are supported in U.S. practice58.
1.50 Starting in late 1986,after Iraq's positionin the war started
to deteriorate, the naval presence of several foreign powers, in particular the
United States, increased in the Persian Gulf. By September 1987, there were
some 60 foreign warships operating in the Persian Gulf (40 Arnerican and 20
British, French, Italian, Belgian and Dutch). While the proclaimed aim of these
forces was to protect international shipping, no steps were taken to prevent Iraqi
attacks on such shipping despite the factthat Iraq had started the tanker war and
had dramaticallyincreased the scaleof itsattacks.
1.51 As a result of this presence, more and more commercial
vessels were encouraged by U.S. forces to refuse Iran's rightof visit and search.
These vessels relied on the presence of foreign forces or sailed in convoy under
their direct protection. Although Iran's rightof visit and search had previously
been widelyrçcognized, Iran wasnowbeing prevented from implementing itS9.
1.52 The presence of U.S. air and naval forces in the Persian
Gulf also effectively prevented Iranian forces from carrying out normal
operational activities. Iranian aircraftwere intercepted on hundreds of occasions
and the constant patrolling of U.S. navalforces, even inIranian waters,prevented
any significant naval activity60.This situation was particularly provocative in the
case of the Kuwaiti oil tankers reflagged by the United States which from July
1987 sailed under the protection of U.S. naval convoys. These tankers were
known by the United States to carry oil whose sales proceeds were one of Iraq's
main sources of income, and were being used to support Iraq's wareffort.
1.53 The reality of the situation was ciearly seen by Senator Sam
Nunn, Chairman of the Cornmittee on Armed Services of the U.S. Senate, in his
Report of 29 dune 1987. Senator Nunn observed that -
"..the challenges to freedom of navigation originate with Kuwait's
allyIraq. Itisdifficultto justify U.S. actions on this principle when
'* See, ParIV below.
-ce, PeaccD.L.:op.cil., pp.550-551and553-554. Exhibit30.
These actions were ihc subject of constant protes1 by Ira-, the U.N. Securily
CouncilDocumentscontainedin Exhihit31. America is indirectly protecting the interests of Iraq who started
the 'tanker war' and who has conducted about 70 per cent of the
shi attacks, includingattacks on vessels of America s allies..The
u.!! decision to protect Kuwaititankers isviewed in the region as a
clear alignrnent with Iraq and its Gulf allies. Iran is certain to see
Washington's comrnitment in these terms. Iran is not likely to
acquiesce to a situation in which Iraq's war against Tehran's
economic shipping and oilinstallations isunconstrai ed while Iran's
abilityto retaliate isfrustrated bythe UnitedStates1.1
1.54 Iran's positionis that, in the circurnstances, the actions of its
naval forces in the Persian Gulf were fullyjustified by the laws of neutrality and
their validity is recognized in U.S. practice. For example, the U.S. Navy's
Commander's Handbook on the Law of Naval Operations States that allegedly
neutral vessels may be treated as enemy vessels, and thus Iegitimate targets, if
they operate on behalf of the enemy g if they resist an attempt to establish
identity, includingisitand ~earch~~.Manyvesselswere effectivelydoing both.
1.55 Iran, however, had no interest in continuing the conflict in
the Persian Gulf on which, unlike Iraq, it depended almost exclusivelyfor itswn
trade. Iraq, on the other hand, in its desperate situation in 1986-1988,simply
attacked vessels indiscriminatelywithany means at its disposal. The spread of the
conflict to the Persian Gulf was entirely Iraq's doing, and in Iraq's interest
because it threatened Iran's trade and brought western powers into the area.
Iranian shipping and trade were byfar the heaviest sufferers in the ~ar~~.
1.56 The "tanker war" and Iran's alleged role in it becarne a
propaganda tool for the United States to justiQ its stand in support of Iraq.
Although the widening of the conflict into the Persian Gulf was regrettable, the
danger was often greatly exaggerated. U.S. Government reports confirm that
only 1 percent of shipping passing through the Persian Gulf during the conflict
was affected and a much smaller percentage of shipping suffered any serious
damage. U.S.sources also acknowledgethat Iraq was responsible for wellover 70
26 I.L.M.,1464(l'lX7)p.i1469. Exhibit32.
62 See, Roach,J.A.=. d.,pp.599-(500Exhibit13.
See. The WashingtonPost, 13October 1987..Exhibit14. ThishowsIranianships as
the second heaviest suffererHowever, a large majoritof the vessels of other
nationalitieshitwercengagcdintradewith Iran.percent of these incidents64. These figures, however, misrepresent Iran's role
because they define as "attacks" incidents where Iran exercised its right to visit
and search vesselsand incidents involvingvessels carryingillegalcontraband6'.
1.57 Repeatedly the United States released stories about the
situation in the Persian Gulf which blamed Iran but hardly mentioned Iraq's role.
As one historian noted in reviewing the role of the U.S. forces in the Persian
Gulf -
"...the Iranians are the party most interested in keeping the
[Persian] Gulf open to tankers. It has been Iraq, not Iran, that over
the years has attacked and disrupted by far the most shipping, for
the simple reason that Iran depends completely on the [Persian]
Gulf and the Strait of Hormuz to export al1its oil, while Iraq sends
its oil abroad by pipeline. The United States could do far more to
paciSpthe [Persian] Gulf, if that is what it really wants to do, by
persuading Iraq ro stop its attacks on lranian shipping, which are
what started and perpetuate the navalwar in the [Persian]~ula6."
SECTIO CN The Approachof the SecuritvCouncil to the Conflict and
the VindicationofIran'sDefensivePosture
1.58 Iran's positionthroughout the war was that itwasthe subject
of a continuing aggression by Iraq andthat it wasacting in self-defence. Aswillbe
shown below, Iran'sposition has nowbeen fullyvindicated.
1.59 There was no doubt at the time the conflict began that Iraq
had committed an act of aggression against Iran. The facts were well-knownand
were brought to the attention of the international community. For example, in a
speech in October 1980, President Jimmy Carter described the Iraqi forces as
"intruders" and their actions as "aggression'm. In the same speech President
*
See, Senator Nunn's Letter and Response to the Weinberger Reportconcerning the
Administration's Security Arrangemenn the PersianGulf, dated6 June1987,in26
I.L.M.1464(1987), at p. 1467. Ex32.it
65
II should be notcd ihat "Iraqclaimed more successful strike. than wcre confirmed
independently"and that lranian responsibilityfor attackswas oftcn "surather"
than-proved.&, Kcesing's~onte&porarvArchives,Vol. XXXI, April 1985, 33560.
Exhibit33.
('('
Kcddie, N.R.: "lranian Imbroglios: Who'sIrrational?".World Poli'- Journal, Winter
1987-88,p.46. Exhibit34.
O7
Kcesine'sContcmpor;irvArchives,7 August198p.NO1 1. Exhibil35.Carter also recognized a U.S. obligation to "maintain Iran's territorial security and
integrity'la.
1.60 In Iran's view, such acts of aggression required the Security
Counciland the international community,as a priority, to take steps under Article
1 and Chapter VI1 of the Charter to assist Iran in suppressing the aggression.
From the outset Iraq'sactions should have been condemned and Iraq should have
been held responsible for the damage and loss of life caused. As part of this
process, the Security Council should have recognized the existence of an Iraqi
aggression and taken action under Articles 39and 40 of the Charter to bnng it to
an end. These were precisely the steps later to be so successfullyinsisted upon by
both the United States and the international communityafter the Iraqi invasion of
Kuwait.
1.61 The Security Council's first Resolution on the conflict,
however, failed to take any of these actions. It failed to condemn Iraq's
aggression; it failed even to recognize a breach of the peace under Article 39 of
the Charter, referring merely to "thesituation between Iran and Iraq", and while it
called upon both States to refrain from the use of force, it did not demand the
withdrawal of the invading Iraqi forces6'.
1.62 Brian Urquhart, then Under Secretary-General of the
United Nations, described the SecurityCouncil'sattitude in severe terms:
"As it was. it was im~ossible to avoid the conclusion that the
members o'fthe securiiy Council,under strong Iraqi pressure, were
sitting on their hands hoping that the Iraqi victory would be quick
and total. This attitude, apart from being unprincipled, was based
on a serious underestimate of the strength, both physical and
psychological,of the Khomeini regime.
Waldheim, to his credit, called for Security Council consultations
the day after the Iraqi invasion, and again two days later. These
informa1meetings dragged on in a depressing and undignified way,
mostly late at night, as, under Iraqi pressure, the Council put off a
public meeting or a vote on the war. The Security Council had
seldom seemed less worthy of respect (...). When the Council
finally .did pass a resolution asking for a cease-fire, it did not
-Ihid.
Resolution 479 (1980) of28 Seplember1980. Exhibit24. demand the withdrawal of the invading Iraqi forces, thus ensuring
that Iran would not take the Councilseriouslyin the
The Security Council'sposition did not substantially change until Resolution 598
of 20 July 1987. In its Resolutions during the intervening period, the Security
Council constantly failed to acknowledge the existence of an Iraqi aggression or
Iraq'sresponsibilityfor the conflict71.
1.63 In Iran's view, the Security Council's failure to act resulted
primarily from the United States' refusa1 to support passage of a Resolution
condernning Iraq and its perception that the best course was to let the two States
weaken each other in a protracted conflict. It was also Iran'sview that if Iraq's
aggressionand its responsibility for the conflictwas not recognized, and it was not
recognized that there had been a breach of the peace, the Security Council's
Resolutions could have limited value in resolving the conflict. Bespite this, Iran
made every effort to cooperate with positive steps to solve the dispute, in
particular the special efforts taken by the Secretary-General of the United
Nations. For example, in response to Resolution 582 (1986) Iran commented as
frAlows:
"Although unbalanced and inadequate on the whole issue of the
war, the resolution was a positive step towards condemning Iraq as
the aggressor and towards a just conclusion to the war ..[Iran] was
prepared to continue cooperating with the Secretary-General in
matters relating to the rules of international law and to his 1985
eight-point plan, as well as to preve t the expansion of the war and
involvement of other countries in it.%Il
1.64 The Security Council having determined in 1987"that there
exists a breach of the peace as regards the conflict between Iran and Iraq",
Resolution 598of 20 July 1987was the first concerning the conflictto be adopted
under Articles 39 and 40 of the ~harter'~. However, there was still no
condemnation of Iraq, nor even a recognition of an act of aggression. The
Resolution simply called for an immediate cease-fire and a withdrawal to
internationally recognized boundaries. The only concession to Iran was
70 Urquhart.B.:A Lilc in PcaceandWar,London,WeidenfeldandNicolson,1987, pp.324-
325. Exhibii36.
" Sec,Exhihit24.
72 This precisof Iran'sstaiemçnt is lakcn fromthc Yearbookof thc United Naiions,Vol.
40,1986,p.220. Exhibir37.paragraph 6 whichxequested the Secretary-General "to explore, inconsultation
with Iran and Iraq, the question of entrusting an impartial body with inquiring
into responsibilityfor the conflictand to report to the SecurityCouncilas soon as
possible"4.
1.65 Resolution 598 had apparentlybeen negotiated with Iraq by
the United States before it was passed. Several reports from U.S. Government
sources state that the then Assistant Secretary of State for Near East Affairs,
Richard Murphy, met with President Saddam Hussein in Baghdad on 11 May
1987 and assuredhimthat the United Stateswouldpress fora resolutionthat Iran
wouldfind unacceptable, and then urge a mandatory U.N. arms embargo7'. The
United States, knowingfullwellthat Iran would find this unacceptable, had also
made itclear in negotiatingthe Resolution that it would not accept any language
that named Iraq as the aggre~sor~~N . o suchnegotiationstook placewithIran.
1.66 As a result of these circumstances,Iran was stronglycritical
of Resolution 598. In failingto refer to Iraq'saggressionand stating simplythat
"there existsa breach of peace", the Resolutionimplicitlyleft open the possibility
that Iran was in some way responsible for the confiict. Given the enomous
sacrificealready exacted from the Iranian people by Iraq's aggression,and the
continuingnature of that aggression,this implication was clearly unacceptable.
However,contrary to what was alleged at the time by both Iraq and the United
States,Iran didnot reject the SecurityCouncil'sinitiativeoutright.
1.67 In its statement of its officia1position on Resolution 598
made to the Securiîy Council on 11 August 1987, Iran made this ~lear~~. It
pointed out that the Resolution &id not take immediate effect - the cease-fire
obligation had already been violated by Iraq on several occasions since the
adoption of the Resolution. It requested the immediate formation of a
commissionto determine responsibilityfor the conflict under paragraph 6 of the
Resolution, a request whichwas dismissedby Iraq. It also stressed the need for
74 See, Exhibit24.
75 The Washington Post, 30 May 1987, reported abriefing by Murphy to this effect.
Exhibit38.s, also, Sick,G.:S&i.p.240. Exhibit9.
76 Sick,G.:op. cit., p.240. Exhibit9.
77 Letterdated 11August 1987fromthe PermanentRepresentativeof the IslarnicRepublic
or Irato the United NationsaddresIodthe Secretaty-General(Sl19031). Exhibit39.further negotiations with the Secretary-General on the implementation of other
parts of the~esolution~~.
1.68 The Secretary-General himself was careful to point out that
"withthe adoption of the resolution, the work of achievingan Iran-Iraq settlement
had just begun79t'. Negotiations with the Secretary-General to reach such a
settlement continued throughout 1987.
1.69 Iran made further steps towards peace in 1988. In
statements by the Foreign Minister of Iran, and in letters to the Secretary-
General, Iran stated its readiness to accept Resolution 598 and gave its
acceptance to the Secretary-General's implementation plan for a cease-fire,
whichwas described as tantamount to the acceptance of Resolution 59~'~. Once
again, however, it was Iraq which flouted the Security Couneil's Resolution by
dramatically escalating the war with a massive Scud missile attack on Iranian
cities on 29 February 1988. As one knowledgeable observer of the situation
reported:
"Atotal ofmore than 100such missiles [k, Scuds]were fired in the
following two weeks at Tehran, Qom, and Isfahan, together with
extensive bombing raids against 37 Iranian cities, decisivelyending
any o portunity to test the Iranian offer of a negotiated cease-
~d318p
1.70 Although it regarded Resolution 598 as unjust and unfair,
Iran ultimately accepted its conditions in order to bring the war to an end. Thus,
Iran unconditionally agreed to a cease-fire on 18July 1988.
1.71 Although Iraq had previouslyclaimed that it would abide by
Resolution 598, it refused to accept the cease-fire and continued its attacks
against Iran, making further incursions into Iranian territory and occupyingeven
larger areas than it had been able to occupy in its September 1980 invasion82.
7x
See, also.Sick,Oge.a, at pp.240-241E.xhibi9.
Yearbookof the United Nations,Vol.41,198p.223. Exhibit40.
?W,
Thcîc cvents are related in Sicop.Ga. pp.240-241. Exhibi9. &, also. Malcki,
A.:"Iran,Iraqand the U.N. SecurityCouncil",The IranianJournal of International
Affairs,Vol. 1.No. 4, Wil989H. aipp.380-381. Exhibit41.
"
Sick,Ge:%.d., p.241.Exhibi9.
X2 m., pp.242-243.Even in early August, Iraq launched a chemical attack on the Iranian town of
Oshnoviyeh which caused many civiliancasualtiesg3. It was not until 20 August
1988that a cease-fire was finallyagreed withIraq.
1.72 For eight years, Iran's position was that the war had been
imposed upon it by Iraq and that Iraq was wholly responsible for the resulting
aggression. Yet it was not until Security Council Resolution 598 was enactedin
1987that the Secretary-General was evenasked -
"..to explore, in consultation with Iran and Iraq, the question of
the confl'ct and to report to the Securiiy Council as soon astv for
+
1.73 As a result of investigationscarried out in implementation of
Resolution 598, the Secretary-General issued a Report on 9 December 1991
which placed full responsibilityfor the entire conflicton Iraq. The Report began
bynoting that -
"..the war between Iran and Iraq, which was goingto be waged for
so many years, was started in contravention of international law,
and vio8311ons of international lawgive rise to responsibilityfor the
conflict .
It went on to note that the specificconcern of the international communityin this
context was "the illegal use of force and the disregard for the territorial integrity
of a Member stateS6".
1.74 The Report then gave its finding that the "outstanding
event" under these violationswas -
"..the attack of22 September 1980against Iran, which cannot be
justified under the Charter of the United Nations, any recognized
rules and principles of international law or any principles of
83 Ihid.,p243. =, also, the Reportof the Missiondispatchedby U.N. Sccretary-
Gencral. Exhihi12.
X4 Resolution598(1987)of20July1987,paragrapG (emphasisadded). Exhi24.
85 FurtherReport of the Sccrctary-Gcncln the ImplcmentationolSecurityGuncil
Resolution598(1987),9 Dcccmber1991(S123273para.5. Exhib42.
tK> -hid. interna89'na1 morality and entails the responsibility for the
conflict .
The Report pointed out that Iraq's explanations for its actions 22 September
1980"do not appear sufficient or acceptable to the international community"and
added that Iraq's aggression against Iran"whichwasfollowed bv Iraq'scontinuous
occupation of Iranian territow during- the conflict" was "in violation of the
prohibition of the use of force, which is regarded as one of the rules of&
cc~~ens"~'.Iran's position, therefore, was fully vindicated, even if eleven years
after the conflictbegan.
CHAPTERIII U.S. POLICIES AND ACTIONS DESIGNED TO
SUPPORT IRAQ AND TO FRUSTRATE IRAN'S
DEFENSIVEMEASURES
SECTIO AN U.S. ObligationsUnderInternationalLaw
1.75 As the preamble to the General Declaration States, the
Algiers Declarations had peacefully resolved the crisis in the relations between
the United States and Iran.As a result, in the context of the war imposed on Iran
by Iraq, there was no barrier to U.S.-Iranian relations. To the contrary, the
United States had both general and special duties to Irander international law.
Its general dutiesunder customary international law arising as a result of Iraq's
aggression included, as a minimum standard, the duty of impartiality imposed by
the laws of neutrality. Publicly,the United States declared itself to be neutral in
the conflict.As late as 23 May 1988,the United States affirmed to the Security
Council that it was"neutral in theonflictbetween Iran and Iraq, and willremain
soX9". The United States had similar obligations pursuant to the Security
Council'sResolutions. The SecurityCouncil'sfirst Resolution concerning the war
called upon "al1other States to exercise the utmost restraint and to refrain from
any act which may lead to a further escalation and widening of the conflict'".
Virtually identicalnguage was used bythe SecurityCouncil in Resolution 598of
*7 IbidIpara.6.
2W W., para.7 (emphaçis added).
Lcttcr dated 23 May19W from chc Aciing Permanent Rcprescntative of the United
States of ArnericaIo the United Nations addressed to the Secretary-Gencral(Sl19896).
Exliibit43.
'Io
Resolution 4(1980) of Scptcmhcr1980. Exhihit24.20 July 1987 adopted under Articles 39 and 40 of the Charter. At a very
minimum, thislanguageimposed upon third States a duty of impartiality.
1.76 As the victim of armed aggression, Iran took the view that
under the principles embodied in the U.N. Charter, the international community,
includingthe United States, also had the duty to assist the victim of the aggression
and to condemn the aggressor. Moreover, action should have been taken under
the auspices of the Security Council, and against the aggressor, and not by
individual States acting as "world policemen". Following Iraq's invasion of
Kuwait,the United States itself publiclyadhered to suchviewsand was at pains to
justi9 ail its subsequent actions against Iraq, the aggressor in that conflict, on the
basis that prior Security Council approval had been obtained.
1.77 Aswillbe shown below,the United States fulfilledneither of
these obligations in the Iran-Iraq conflict. Itopenly supported Iraq in violation of
the laws of neutrality. It also repeatedly violated the U.N. Charter, taking
unilateral actions, including the use of force, against the victim of the agression,
Iran, and activelysupporting the aggressor -the opposite of its stance in relation
to Iraq's later invasion of Kuwait. Needless to Sayit never sought prior Security
Council approval for any of its actions.
1.78 The United States also had special bilateral obligations to
Iran under both the Algiers Declarations and, of direct concern here, the Treaty
of Amity. As mentioned earlier, in Point 1of the General Declaration made in
Algiers, the United States pledged "not to intewene, directly or indirectly,
politicallyor militarily, in Iran'sterna1affairs". The U.S. obligations under the
Treaty of Amity willbe discussed in detail in Part III below. However, it must be
clear that the existence of special provisions relating to amity, peace and
friendship with Iran, provisions not existingbetween the United States and Iraq,
imposed upon the United States, as a minimum, a strict duty of impartiality in the
contlict.
1.79 It is not necessary to consider in detail the substance of
tliest: obligations hecause on any reading the U.S. Government openly violated
theinand has admitted doing so. As willbe shown below,the United States tilted
towards Iraq throughout the conflict. The period most relevant to this dispute,
1987-1988. saw an unprecedented degree of support for Iraq by the United
States,and specificactions, includingthe use of force, taken against Iran. SECTIO BN The United States'SupportforIraq
1.80 In order to understand the U.S. attacks against Iran's oil
platforms,it isnecessaryto viewthem againstthe backgroundofU.S.support for
Iraq and its determination that Iran should not emerge as victoriousin the war.
The United States' support for Iraq was diplomatic, political,economic and
military. Caspar Weinberger, then U.S. Secretary of Defense, made clear that,
while"officialpolicywasto remain neutral",there wasa hidden agendaofsupport
for lraqgl. For hispart, Henry Kissingerbluntlystated that:
"The Reagan and Bush administrations supported Iraq against
1ran9*!'
1.81 U.S.actions showclear support for Iraq. On the diplomatic
and political side, the United States took Iraq off its list of nations supporting
terrorism in March 1982 despite the fact that, according to the Defense
Department's Director for Counter-Terrorism, there was no doubt about Iraq's
continuedinvolvernentinterrorismg3.The real reason forthisaction?wasto help
[Iraq] succeed in the war against 1rarfg4. The United States also renewed full
diplomatic relations with Iraq in November 1984. Several high level political
missionswere sent to Iraq during the course of the conflict,and in the United
Nations and the international communitygenerallythe United States showedits
support for 1raq9'.
1.82 On the economicfront,the United Sates removedsanctions
againstIraq, withthe result that trade between the two countries boomed during
the conflict. The United States alsoauthorized substantialloansto Iraq. Muchof
thiseconomichelp was of indirect rnilitary significance.Goods sold to Iraq were
" 9ee Weinberçer, C.W.:FiehtinforPeace, WarnerBooks, lW,p.358. Exhibit44.
O2 Newsweek, 1February1993p..12. Exhibit45.
93 -9e The WashinetonPost,16Scpternhcr1%). Exhibit46.
94 Ibid.
Ihid. Sçe, also. Sickop.a. p.240. Exhihii9.
--often "dual-use" meaning that they could be used for military purposes. Loans
could be used to purchase armsS.
1.83 There was also specific military help in the form of
intelligence-sharingagreements, under whichthe United States gave Iraq military
intelligence to assistt in its pursuit of the ~ar~~.These facts are confirmed both
bynewspaper reports - Inparticular The Washington Post article of 16September
1990whichappears as Exhibit 46 -as wellas by U.S.Government doc~rnents~~.
1.84 In 1987,when there was a real fear that Iraq might lose the
war, the United States increased its rnilitary presence in the Persian Gulf,
reflagged Kuwaititankers, and increased its diplomatic and military contacts with
~ra~~~. Itwas also in 1987 that the United States increased the severity of its
economicsanctions against Iran and conducted itsfirst attacks on Iranian forces.
1.85 In itself, the increased presence of U.S. forces in the Persian
Gulf could onlysupport Iraq and frustrate the defensivemeasures being taken by
Iran. In the circurnstances,the reflaggingof Kuwaititankers was a purely political
step taken by the United States airned solely at assisting Iraq. As many
authorities have noted, it also allowed the United States to fulfil its long-term
strategy of increasing its military presence in the Persian Gulf and gaining access
to bases and other facilitiesin Persian Gulf States. Even within U.S. Government
circles.thesesteps were subject to severe criticisrnl".
SECT~O CN U.S.ActionsAeainstIran
1.86 Once again, it is appropriate to consider the U.S. attacks
against Iran's oilplatforms as demonstrating the increasingly aggressive attitude
<3u
The WashinctonPost, 16September1990. Exhibit46.
97 -Ibid.
-ec, for examplc, Congressional Recor- House of Representatives9 March 1992,
Hl IOY.Exhibit47.
-ce, for cxamplc,thc reportin The Washin~ionPosi, 30 May1987,of the meetingon 11
May 1987 in Baghdadbeiween U.S. Assistani Secretaryof State for Near East Affairs,
Richard Murphy,andPresidentSaddamHussein. Exhibit38.
l(H'
-Sec, Senator Nunn's Letier and Report in Response io the Wcinberger Report
umcerning the Administration'sSecurityArranjiementsin The PersianGulf, dated 29
Junc1Y87,26 I.L.M1464(1987). Exhihi32.of the United States towards Iran, which contrasted sharply with the posture
adopted towards Iraq. Unlike the situation between the United States and Iraq,
the United States had no diplomatic relations with Iran. Moreover, U.S.
economicsanctionsagainst Iran increased in severity as the war continued. Thus,
although the United States had withdrawn its sanctions against Iran pursuant to
the AlgiersDeclarations, these were immediatelyreimposed (at least withrespect
to military items) by the Reagan Administration. During the war the United
States was to extend the scope of these sanctions to virtually al1economic goods.
The United States also sought to convince the Security Council to adopt a U.N.
sponsored arms embargo against Iran. Although this effort failed, from 1983
onwards the United States exercised its own unilateral embargo, called
"Operation Staunch", which was designed to prevent arms or dual use equipment
from anywhere in the world reaching lranl".
1.87 While the United States adopted a hostile and provocative
attitude towards Iran, not least by the open assistance to Iraq described above,
direct action was also taken against Iran. On hundreds of occasions,U.S. military
forces violated Iran'sterritorial sovereignty,infringed its airspace and intercepted
its aircraft and naval vessels. These actions prompted Iran to lodge repeated
protests with the Secretary-General of the United Nations by 1ranlo2. The
United States consistentlyviolated Iran'sdefence exclusionzone and conducted a
number of direct attacks against Iran culminatingin the attacks of October 1987
and April 1988.
1.88 On numerous occasions,Iran had reason to believe that the
United States actively supported Iraqi attacks either by jamming Iranian
coinmunications,assisting Iraqi planes in findingtargets, or timingU.S. attacks to
coincidewith Iraqi offensives1". The April 1988attacks on the Salman and Nasr
oil platforms, which resulted in the destruction of those platforma, according
1°'
Sce. Weinbcrgcr,C.W.9. a, pp.421-424. Exhibit44.
'O2 -See, Exhib31.
'O3
Elccironicjammingoccurredon severaloccasionB, for example.ihe siaiemcnt by
Iran'sWar InformationSpokcsmanon 17 December 1987. Exhibit48.%, also, the
leiter datcd 10 May 1988from the Charged'AffairesAI. of the PermancniMissionof
ihclslamic Rcpuhlicof Iriothe United Nations addressedto the Secreiary-Gcneral
IS/IY874),includcdin Exhihii31.to the United States, the destruction of half the Iranian navy, occurred
simultaneouslywith one of the most important Iraqi offensives ofthe warlo4.
1.89 The United States openly acknowledged its support for Iraq.
InJuly 1987,a U.S. spokesman admitted that the United States had "animportant
stake in Iraq's continuingabilityto sustain its defence~"'~~.Vice-President Bush
admitted at the time that the United States was looking for means "to bolster
Iraq'sabilityand resolve to withstand Iranian attackslM".
1.90 The U.S. Assistant Secretary of Defense at the time,
Laurence Korb, was even more explicit,stating in an interview on CNN on 2 July
1992that -
"..when the United States went into the [Persian] Gulf it was not
simplyjust to escort Kuwaiti tankers. We wanted to ensure that
Iran did ot winthat war. In other words,we became de facto allies
of Iraq109."
Bearing in mind the scale of Iraq's aggression,Assistant Secretary Korb noted the
"great irony"in this policy:
"The great irony was [that] Iraq was destroying many more ships
trying to get out of the [Persian] Gulf than Iran was at that time.
But when we went in, we wanted to ensure that Iran didn'twin that
war from Iraq. That was Ourreal objective, and so we were doi18% 1:
lot of things to ensure that we could teach the Iranians a lesson .
1.91 Fear of an Iranian victory was not the only motivation for
U.S. policy. The United States also believed that its aim of increasing its military
presence in the Persian Gulf wasbest sewed by supporting Iraq. To this end, the
United States was willingto risk its navalforces in the conflict.
Iu4 See para.1.129helow.
los Departmentof State Bulletin,July198p.66. Exhibit49.
'O6 CongressionalRecord -Houseof Representatives,2 March1992H 860.Exhibir50.
InterviewwithLaurence Korb,Former AssistantSecretaryof Defence, oCNN's
King Live, 2 July 1992. An extractfrom the iranscriptof this interviewis includcdin
ExhibitSI. 1.92 Another great ironyof U.S. policy,with tragic consequences,
occurred when U.S. forces were subject to an Iraqi attack. On 17May 1987,the
-9ark a U.S. guided-missile frigate, was patrolling in international waters in the
Persian Gulf, hundreds of miles £romIraq's declared exclusion zone, when it was
hit by an Exocet missilefired from an Iraqi F-1 Mirage fighter (see. Map 3,facing
this page). The damage to the vesse1was extensive and 37 sailors died. The
attack was successfulapparently onlybecause the U.S. captain assumed the Iraqi
plane to be friendlyand thus had not placed his crew on standbylW.
1.93 The U.S. response to this attack was a measure of restraint.
Diplomatic means were pursued to settle the dispute, compensation was
requested from Iraq, and steps were taken to find ways of preventing the
recurrence of similar incidentsllO. Aswillbe seen below, U.S. reaction to alleged
Iranian attacks was markedly different. àranian forces were automatically treated
as hostile and no such restraint was showndespite the fact that, according to U.S.
Government officials and military personnel, Iranian forces were highly
professional, showed a clear desire to avoid confrontation with U.S. forcesand, in
any event, lacked the sophisticated weaponry to make an attack of the kind made
hy Iraq against the starkl".
1.94 On 20 July 1987, Resolution 598 was passed. It will be
recalled that this Resolution called upon third States to exercise the utmost
restraint and to refrain from any act which might widen the conflict. Four days
later, on 24 July the first U.S. convoy protecting the reflagged Kuwaiti tankers
NewYork Times, 20 May1987. Exhibit52.
'Io
&, the letter from Sccretary of State, George Schultz, to Congress, dated 20 May 1987.
Denartment of State Bulletin, J1987 ,ublished in 26 I.L.1425(1987). Exhibit53.
I Former U.S. Secrctary of Delense. Caspar Weinbergcr, stated that Iranian forces
demonstrated "a decided inte10avoid Arnericanwarships" (Weinberger, C.W.9. @.,
a1 p.401. Exhibit 44). Another U.S. officia1noted in May 1987 that "Iran has been
careful to avoid confrontations with U.S. flag vessels", and that "Iran lacks the
sophisticated aircraft and wcaponry used by Iraq in the mistaken attack on the U.S.S.
Stark" (Denartmeni of State Bulletin, July 1987,p. 60. Exhibit 54). The Commander of
thc U.S.S.Sides, Commander Carlson. whowas stationed in the Persian Gulf during the
lran-Iraq war. commcntcd that the conduct of Iranian military forceswas "pointedlynon-
threatening", and that thcy were "direct and professional in thcir communications"
(Procccdin~s/NavalRcvicw,Scptemhcr 1989,p.87. Exhihit 55). ...... l.anian Exclcision Zone
.....m.lracli Excliision Zoiie
Lambert Conformal Conic Projection
Scaleaccurate at 26"N.
1:5,5OO,OOO
O 50 100 150
...............
UNITED ARAB
---___
Speciallypreparedlor presenlalianla I0JusticenationalCoudbegan itsvoyage. In the circumstances, this wasjust one more action showingthat
Resolution 598was not respected by al1countries112.
1.95 On the first convoy,one of the reflagged tankers, the U.S.S.
Bridgeton, hit a mine off Farsi Island in the northern part of the Persian Gulf
see Map 3, facing page 38). There were no casualties and the vesse1suffered
(-9
only slight damage, allowing it to continue its voyage113. The United States was
uncertain of the provenance of the mine114. Iran had laid no mines in the area
where the Bridgeton was struck. Indeed, it is most probable from the nature of
the damage inflictedon the Bridgeton that it was struck by a sophisticated seabed
mine which is very difficult to detect, unlike the old, anchored floating mines.
Iran had no such sophisticated mines; however,Iraq did.
1.96 On 10 August 1987,a supertanker carrying Iranian oil was
struck by a mine off the port of Fujairah, and further mines were discovered
during August. Iran protested this actll'. An Iranian spokesman acknowledged
that Iran had laid defensive mines, but was clear in denying al1responsibility for
the mines found off Fujairah and in the shipping lanes leading to ~uwaitll~. Iran
had laid mines in Khor Abdullah in the northern part of the Persian Gulf in the
channel north of Bubiyan island in order to protect Iranian forces on the Fao
peninsula from encirclement by sea (E, Map 5, facing page 42). As already
noted, Iranian shipping would have been at risk from mines laid anywhere else in
the Persian Gulf and it was for this reason that Iran carried out extensive mine-
sweeping activitiesthroughout the conflict.
1.97 Apart from these incidents invo*vingmining, the latter half
of 1987saw a number of incidents in which U.S. forcescarried out attacks against
Iranian vessels. On 21-22 September 1987, U.S. forces attacked an Iranian
landing craft, the Iran Air, alleged to be layingmines in international waters in the
Persian Gulf north-east of Bahrain (see. Mar, 3, facing page 38). There were
For this reason,Irandoes not deem it necessaryto considerat thisstage thc ofestion
the legalityor illegalityof the UnitedStates' reflagging.
NewYorkTimes, 25July1987. Exhibit56.
l4 The FinancialTimes, 12August 1987. Exhibit57.
'l5 Yearbookof the Unitcd Naiions,Vol. 41. 1p.235. Exhibi58.
'I(' nie WashinetonPosc,21 August1987.Exhibit59.several casualties and the vessel was subsequently destroyed. The United States
justified its actions as self-defence in a letter to the Security ~ouncil~~'. Iran has
always denied that the Iran Air was involved in any illegal activity118. The
Air was a commercial vessel on charter to the lranian navy, and was carrying
mines from Bandar Abbas to Bandar Khomeini. The mines were to be used for
defensive purposes around Khor Abdullah north of Bubiyan island. It was
travelling in the southern part of the Persian Gulf because nearly al1 Iranian
vessels used the main shipping lane on the southern side of the Gulf in the hope
of avoiding Iraqi attack - any vessels found close to Iran's shore were obvious
tarçets for Iraq. The Iran Air was not engaged in laying mines when attacked.
Indeed, a landing craft of that kind is incapable of laying mines. As the mines
being carried were to be used for defensive purposes, this attack was wholly
unjustified.
1.98 The United States' aim in alleging that it had caught Iran
red-handed in the act of layingmines wasapparently to seek to embarrass Iran on
the eve of President Khamenei's speech to the General Assembly of the United
Nations and to diminish the impact of his speech. In fact,al1the mines were still
on board when the vessel was searched by U.S. forces, after the crew had
complied with their requests to search the vessel. No evidence that the Iran Air
had been laying mines was ever produced by the United States. After taking
pains to destroy the vessel, the United States subsequentlyadmitted that it had no
photographs of the alleged minelaying'19. In such circumstances, and after the
crew of the Iran Air had submitted to U.S. requests, the United States had no
possible reason or right to attack andhen destroy the vessel.
1.99 On the night of 8 October 1987, U.S. helicopters attacked
and sank three Iranian patrol boats near Farsi Island (e, Ma? 3,facing page
38). The United States again stated that it acted in self-defence, allegingthat one
Il7
Letier datçd 22 Septcmbcr 1987 from thc Acting Permanent Representativeof the
United States ol Amcrica to the United Nations addrcssed to the Presidentof the
SecurityChuncil(SI19149). Exhibit60.
'
Lettcr dated 26 Scptemhc1987 lrom the Char@ d'AffairesAl. of the Permanent
Missionof the IslamicRcpublicol IranIo the United Nationsaddrcssedto theSecrctary-
Gcneral(SJ19161).Exhihit61.of the Iranian boats had earlier fired on a helic~~terl~~.This allegation isdenied
byIran. There were no U.S. casualties and no evidence that the U.S. helicopter
had heen hit inanyway12'.
1.100 It was in these circumstances of U.S. aggression towards
Iran that the attacks on the platforms occurred. They are considered below in
Chapter IV.
CHAPTER N THEAlTACKS OFOCTOBER1987ANDAPRIL 1988
SECTIO A N TheOctober1987 Attackon the Reshadat Platforms
1. Thestatusofthe platformspriorto the attacks
, 1.101 The Reshadat and Resalat platforms and facilities are
described at paragraphs 1.14-1.15above. Iraq considered these platforms as vital
economic targets122. Reshadat wasfirstattacked in October 1986. Reshadat and
Resalat were attacked by Iraq again in July 1987. Further Iraqi attacks occurred
in August 198712'. Although the platforms had not been producing oil
immediateiyprior to the U.S. attacks dueto damage inflicted by Iraq, repair work
was close to completion when the U.S. attacks put both platforms out of action.
1.102 At the time of the U.S. attacks there were 9 low-ranking
naval personnel on the Reshadat platforms. There were also a number of
civilians,primarily employees of theIranian Offshore Oil Company, responsible
for carrying out the repair work. The 9 naval personnel were armed with one
23mm. machine gun, stationed on the R7 cornplex. Their role was purely
dzfçnsive and the 23mm. gun was exclusivelya defensive ~ea~on'~~. The naval
personnel had means of communication with Lavan Island's defensive operating
" Letterdated9 October 1987 fromthe PermanentRepresentativeof the United Statesof
ArnericaIo the United Nations addressed to the President of the SecurityCouncil
(S119194).Exhibit62.
12' The WashingtonPost, 9 0c;ober 1987. Evhibit63. The New York Times, 9 October
1987. Exhihit64.
122 DowJones NewsWire, 14July1987.Exhibit65.
123
Fordeiailsof lraqiattacks,E, Exhihit66.
124
The cffcctive vertical range of this gun is 2,50() mclrcs.r use only against
approachingIraqiattackbyair.station and acted as look-outsfor Iraqi planes flyinglowto avoidradar detection
whichwere reported to LavanIsland.
1.103 No other militaryuse was made of the platforms. Various
allegationshave been made bythe United States that these platformswere used
for miningoperations or for refuellinghelicopterswhichwere allegedly involved
inattacks on neutral shipping. These allegationsare totally false. It isimpossible
to use these platformsfor miningand fartoo dangerousto keep fuelor mineson
the platforms. Noris it possibleto use these platforms as bases for smallboat
attacks.
2. The attacks, the damage caused and the reactions of the
Parties
1.104 On 16 October 1987,the Sea Isle City, a Kuwaititanker
reflagged by the United States, was hitby a missilewhile in Kuwaititerritorial
waters some 5 miles off the Kuwaititerminal at Shuaiba (m, Maus 4 and 5,
facing thispage)125. As will be show below, the U.S. attempted to justify ils
attack of19 October 1987onthe Reshadat platformas a retaliationfor the attack
on the Sea Isle Citv. It was allegedthat this ship was hit by a Silkworm missile
fired fromIranian-heldterritory on theFao peninsula.
1.105 Iran did not fire a Silkwormat the Sea Isle CityAs much
publicized U.S. reports repeatedly asserted at the time, Iran's Silkwormswere
positioned in the Strait of Hormuz, hundreds of miles to the ~outh'~~.It was
preciselythe allegedSilkwormthreat inthe Strait ofHormuzarea that the United
States usedtojustifyitsincreasedmilitarypresence in the PersianGulf. The area
of Iranian-held territory on the Fao peninsula was in any event too far from
Kuwaitharbour for shippingin that area to be reached bya Silkworm,as can be
seen from Mau 5. The maximum effective range of a Silkwormis about 85
'*' Iran has reason to believe that the Sea Isle Citv was stationed even further south than
alleged by the United Statesand Kuwait. However, for the purposes of showing that it
was out of range of Iranian Silkworms.even if Iran had had Silkwormson Fao, lran will
assume that the location gbyeU.S. and Kuwaiti sources off the port of Shuaiha is
accurate.
126 ln October 1987, at exactly the same time as the United States' allegcs that lran fired a
Silkworm from Fao, the U.S. Department ofate pubiished a map showing Iran's
Silkworm missiles positioned in the Strait of Hormuz. Department of State Bulletin,
Octoher 1987,p. 43. Exhibit 67. -32" 48" -.- '- 50'-32'-
- Al'Amarah - -
1 '-.-- THE DISTANCEFROM IRANIAN-HELD
- TERRITORYTO THE SEAISLECITY ';
--
\- - LambScaleaccurate at 30"N.jection
, ...,* .---. ---
*... J -'(' 1:1,800,000
i O 25 50 75
AhvSz Kilometers
onanarno1necawrily aorbinonIran. purposer
. .
.. . ..
.. ...
.. . .
1 .. . .
SAUDl .... ...
1 .........................
ARABIA
48' 5;"
SoeclpieoarDresentalion Io the International Coun ol Justice Map 5kil~metres'~~. The Sea Isle City was at a distance of almost 110kilometres from
Iranian-held territory when it was struck. Only Iraq, which, unlike Iran, had
Silkwormswhich could be fired £romaircraft, was in a position to fire this missile.
One can onlysurmise that this attack was either a case of mistaken identity or one
of the many attempts by Iraq to internationalize the conflict by pressurizing the
Persian Gulf States to redouble their efforts against Iran. Similar Iraqi attacks on
vessels of "friendly" States had occurred throughout the conflict and these
included Silkworm attacks. For example, The Washinpton Post of 4 July 1988
reported incidents in February of that year inwhich -
"Iraqi bombers on successivenightsdropped air-launched Silkworm
missiles. One of them crashed into a fully loaded Danish
supertanker that had just left the port of Iraq's ally, Saudi Arabia.
Two other Silkworms dropped the following night roared past a
US.-led convoy of reflagged Kuwaiti ta kers before they crashed
into the sea. Kuwaitisalso an Iraq ally. I&I~
1.106 The United States made no forma1 attempt to ascertain
reponsibility for the attack on the Sea Isle City as it had done after the Stark
incident. Instead, three days later, on the morning of 19 October 1987, it
launched an attack on the Reshadat platforms, at the other end of the Persian
Gulf. By this time, full consultation had taken place in the United States, with
~residential approval, as to the nature of the U.S. retaliationl*'. The attack was
carefully planned and involved a massiveuse of force. It was carried out by four
U.S. naval destroyers, the Young, Hoel, Kidd and Leftwich. Support was
provided by the frigate, U.S.S. Thach, the guided missile cruiser, U.S.S. Standley,
two F-14 fighters and an E2C Hawkeye surveillance plane'3o. In contrast, it will
be recalled that the platforms were manned onlyby 9 Iranian navypersonnel with
one 23mm.machine gun.
127 -hid.
12' Exhibit6s.
129
Sce Thc Washington Post, 20 Ociobcr 1987 (Exhibit 69), which rcported that the
dccisiontcattackthe platformswasmadeaftcrhoursof high-leveldebateon 16and 17
Octohcr 19x7, and that PresidentReagandecidedlaie on 17 Octoberthat the Reshadat
platformswould be the target*, also, President Reagan'sletIOrCongressdated20
October 19S7whcre Rcagansiated that"Thcsc ..actions by U.S. forces weretak..al
myspeciticdirection".Exhibit70.
"" Scc,Thc WashincrtonPosi,20 Octohcr1987. Exhihit69. 1.107. The U.S. attack began in the early afternoon and was
focussed on the R7 complex. As already explained, this complexgathered oil
from al1wellsservingthe Reshadat and Resalat fieldsbefore pumpingit to Lavan
Island. Destruction of the R7 complexthus made production from both fields
impossible.
1.108 Accordingto U.S.reports, the 4 destroyersbegan pounding
the platformswithgunfire,and 2 minuteslater flamesengulfedthe structure. The
shipswent on firingfor at least 45minutes. Fire consumedthe northem part of
the structure. The southern part, however,wasnot destroyed bythe fire, and so
the Navy"decidedto finishthat off' usingdynamiteplanted by a Navyboarding
team1". The destruction wastotal. A Pentagonspokesman,Fred Hoffman,said
that when the demolition team had finished,"al1that remained was three pilings
stickingup out of the water"'". Briefingreporters, White House spokesman
Marlin Fitzwater said that the ships demolished "the two platforms at one
location"and that "both col~a~sed"~~~ P.hotographs of the complexbefore and
after the attack are shownfollowingthis page.
1.109 During the attack, U.S. military personnel daim to have
noticed boats taking people off another platforrn(R4, also part of the Reshadat
complex) about 5 nautical miles north of the R7 platform134. After the R4
platform was abandoned, U.S. Navy commandos went aboard, destroyed its
equipment and left13'.
Pentagon spokesman, Fred Hoffman, said that this
incident had not been planned with the other attack, but rather caUed this
platforma "targetofopportunity 811.6
1.110 The officialU.S.justificationfor the attackswasgiven intwo
statements, one made byPresident Reagan to the U.S. Congress,the other made
I3l Ibid..
132 -bid.
133 AssociatedPress,19October1987. Exhibit71.
134 S9ee thediagramattachedas Exhib5.
135 See, AssociatedPress,19October1987andThe Washington Pos, 0October1987,both
of which relyon the Pentagonspokesman,redHoffman,as theirsource. Exhibits72
and 69.
13'
The WashingtonPosi,20 October1987. Exhibit69.FACINGPAGE: THE RESHADAT (R7) COMPLEX, ITH R4 IN
THE BACKGROUND,PRIORTOU.S.ATTACK
BACH:PAGETOP: A PENTAGON SPOKESMANNOTIED THAT
MTER THE U.S. ATTACK ALL TMT
REMAINEDOF THER7 COMPLEXWASA FEW
PILINGSSTICKINGUP OUTOFTHEWATER
BACKPAGEBOTïOM: THE R4 PLATFORMALSO ATTACKEDBY U.S.
FORCESto the Security Council. President Reagan's letter to Congress was given the
followingtitle: "United States Reprisa] Against lranln". However, the main text
of the letter suught to justify the attack as an act of self-defence taken in
accordance with Article 51 of the Charter. The letter referred to the attack on
the Sea Isle Citv,and stated that itwas the latest in a series of attacks "against
targets in Kuwait, including neutral vessels engaged in peaceful commerce" as
well as "the latest in a series of acts by Iranian forces against the United
~tatesl~~'.
1.111 The letter went on to describe theattack as follows:
"At approximately 7:00 a.m. (EDT) on October 19, 1987,Armed
Forces of the United States assigned to the Middle East Joint Task
Force. after warning Iranian naval personnel and allowingthem to
depart, attacked Rashadat Platform, an armed platform equipped
with radar and communications devices which is used for
surveillance and command and control. This platform, located in
international waters, also has been used to stage helicopter and
small boat attacks and to support mine-laying operations targeted
against non-belligerent shipping in the Persian Gulf. It is now
believed that this platform also was the source of fire directed at a
U.S. helicopter on October 8,1987. United States Navyships fired
upon and destroyed the platform. Additionally, U.S. forces briefly
boarded another platform in the area, wh'ch had been abandoned
by the Iranians when the operation began 1$911
1.112 The same points, both as to the legal justifications for the
attacks and the nature of the target, were made in the United States' letter to the
Security ~ouncill~~. While the arguments raised by the United States to justify
the attack willbe discussed in more detail in Part IV, it isnecessary to point out
that both letters were factually inaccurate. The Reshadat complex had never
been used in the way the United States alleged. The only specific incident to
which the United States can refer to showthe military use of these platforms is an
"attack" said to have taken place against a U.S. helicopter on 8 October 1987.
Apparently the helicopter had seen some shots being fired from the Reshadat
137 Exhihi73.
13' Ihid.
-bid. Thc United St;itcs failed to point out that the platform was locatcd in Iran's
continentalshclfandwithinits ExclusiveEwnomic Zone.
14('
Letterdated19 Octoher 1987fromthe PermanentRepresentativeof the UnitedStatesof
America io the Unitcd Nations addrcsscd to the President of the Securiiy Council
(S119219).Exhihit73.platform. However, at the time, the Pentagon stated that "the helicopter ..left
the area without shooting back because iwas not certain whether the gunfire was
aimed at it141".The helicopter was not hit and any action taken by the forces on
the platform was purely defensive. This incident, therefore, is strictly without
relevance to the question of thelegalityof the U.S. attacks.
1.113 Iran's official reaction to the attack on the platforms was
given in a letter dated 20 October 1987to the Secretary-General of the United
Nations. It isappropriate to quote this lette& extenso:
"On 19 O~totober1987, the naval forces of the United States,
illegitimatelystationed in the Persian Gulf, attacked two Iranian oil
platforms - Resalat and Reshadat - injuring a large number of
civiliantechnical employeesand inflicting heavy damages. The aaid
platformswere purely economicinstallations operated and manned
bythe Ministryof Petroleum of the IslamicRepublic of Iran.
This latest act of aggressionbythe United States against the Islamic
Republic of Iran represents an illegal resort to force against the
sovereignty and territorial integrity of the Islamic Republic and
once again illustrates the aggressive intent of the presence of the
American armada in the Bersian Gulf. Such presence - which can
only,exacerbate tension in the region -can never be justified by the
United States Administration in the face of the series of aggressive
acts it has carried out in the past month against the Islamic
Republic of Iran, including its unwarranted attack and destruction
of the unarmed Iran A-ir,its aggression against Iranian patrol boats
defending Iranian territorial waters, and its most recent aggression
against Iranian territory. It is clear beyond any doubt that by
committing these acts of agression, the United States is
participating activelyin the imposed war on the side of its aggressor
clients in Iraq. This factfurther depnves the United States of any
legitimacy in participatingin multilateral diplomaticefforts on this
issue.
We regret to note that when the United States embarked on its
tension-generating policy of dispatching an unprecedented naval
aggressive intentions by attacking Iranian vessels and territory, theue
international comrnunity and articularly the United Nations
Security Council remained silentQ4.11
From this moment, there clearly existed a dispute between the two States
concerning the illegalityof thU.S. actions.
141 New York Times, 9 October 1987.xhibit64. The WashingtonPost, 9 Ociober 1987,
Exhibit63.=, also, Thc SundavTimes, 11 October 1987, whichpoints oui that the
lranians "migjust havebccntcstingtheirwcapons".Exhibit74.
14* Exhihit75. SECTIO B N TheApril1988 Attackon the Nasrand SalmanPlatforms
1. Thestatusof the ~latformspriorto theattacks
1.114 A description of the Nasr and Salman platform complexes
and associated facilitieswas given at paragraphs1.16-1.18above. The Salman
complex,capable of handling220,000 barrels per dayof production,had been the
subject of an Iraqi attacinOctober 1986'~~. However, repair work had begun
immediatelyafterwardsand the platformwasbeing recommissionedinApril 1988
when it wassubjectto U.S.attack. At the time of these attacks,the platform was
activelyproducing crude.
1.115 The Nasr complex had never been attacked by Iraq. This
complex,witha designcapacityof 100,000bpd, wasalso producing inApril 1988.
Twenty naval personnel were stationed on the Salman platforms and ten on the
Nasr complex. There were also some 30civilianoil Companyworkers. Like the
Reshadat complex,Salmanand Nasrwere each defended byone 23mm.machine
gun for air-defence purposes. The naval personnel were engaged in exactlythe
same kindoflimiteddefenceoperationsas on the Reshadat platformsl*
2. The attacks, the damage caused and the reaction of the
Parties
1.116 Accordingto the United States, its attacks on the Nasr and
Salmancomplexeswere in retaliationfor Iran's miningofthe Persian Gulfand, in
particular, for an incident that occurred o14 April1988 in which a U.S. navy
vessel,the U.S.S.Samuel B.Roberts, wasstruck bya mine and 10 crew-members
were injured14'. The Roberts was hit in an area east of Bahrain (see, Ma? 6,
facing page 48).This area wasunder the constant surveillanceofU.S.,Bahraini,
Qatari and Saudi forces and had repeatedly been swept of minesby U.S.forces.
There wasthusno possibilityfor Iran to have laida mine inthisarea evenifit had
wanted to. However, this area was quite open to Iraqi planes and helicopters,
and onlyIraq had the type of mine that couldbe laid from the air. The waters in
whichthe Roberts was hitare extremelyshallowwhichsuggeststhat the minewas
laid onthe seabed. OnlyIraq had suchsophisticatedseabed mines.
143 See,Associaied Press,16Ociober 19%. Exhibit66.
144 %,paras. 1.102-1.103above.
14' The Washinaon Posi, 15 Ap1988.Exhibii76. 1.117 The U.S. attacks took place on 18 April, four days after the
Roberts was damaged. Descriptions of the attacks were given in several official
U.S. Government briefings and in articles by military personnel involved in the
attacks to which the Courtis referredl". A number of points emerge from these
reports:fir tht ,ttacks were carefully planned and received the highest level of
Government approval; second, the attacks were part of a much more extensive
operation against Iranian forces which took place on the same day and in which,
according to U.S. sources, half the Iranian Navy was destroyed; and, third, the
attack coincided with one of Iraq's most important offensives of the war in which
Iraq recaptured the Fao peninsula.
1.118 The attacks on the Salman and Nasr platform complexes
were ordered by President Reagan himse~f'~~. The details of the operation,
"Operation Praying Mantis", were planned by the Commander of the Joint Task
Force Middle East, Rear Admiral Less,with other officers. The objectives of the
operation were to destroy the Salman and Nasr oil platforms and to sink the
Iranian Saam-class frigate Sabalan. In fast, Operation Praying Mantis had been
developed soine 10 months earlier by U.S. military forces who were merely
lookingfor an opportunity toput it into operation1%
1.119 Numerous U.S. war-planes and helicopters and 9 U.S. Navy
ships were involved in the attacks, together with the aircraft carrier U.S.S.
Enterprise and several patrol boats. The United States alsomade use of AWACS
(airborne warning and control systems)facilitesin the Southern Persian Gulf.
C
1.120 The two complexes were attacked simultaneously, at about
9.00 a.m. Persian Gulf time on 18 April 1988,by a group of U.S . avyships. In
each case, approximately 5 minutes' warning was given to allow the occupants of
14" See, Exhibits77-91.
'47
Sce. Hearing beforc a Sub-Cornmiltee of the Cornmittee on Appropriations,
Dcpartment of Dcfense appropriationfor 1989, House of Represeniatives, 100th
Congrcss, 2nd Scssion, Washington, U.S. GovernmentPrinling Office, 1988, p. 185
(Tcstimony of Admiral Gec), Exhibif ?7; and. ihe siaiement by Marlin Fiizwater,
spokcsmanforthe WhitcHouse,quoiedvcrhatimhyUnitcd PressInternational19~%,18
April IW. Exhihit 7%.=, also, Facis on File World News Di~est, 22 April 1988.
Exhihit79.
14'
Sce, Pcrkins. Capt. J.B., U.S. Navy:"OpcrationPraying Mantis:Thc Surface View",
Procccdin~s/NavalRcvicw,May1989al p.68. Exhi80. &, also,para4.82bclow.the platforms to leave. In each case, the U.S. shipscommenced heavyfire against
the platforms before they had been fullye~acuated'~~.According to Captain J.B.
Perkins, who commanded the attack on the Salman complex,the occupants of the
complexpleaded for more time, but were informed that their "time wasup". The
U.S.ships then commenced firingls0.
1.121 The Salman complex was attacked by the U.S.S. Merrill,
U.S.S.Trenton and U.S.S. Lvnde McCormick. According to U.S. sources, about
fiftyrounds of gunfire were fired atthe complex. The remaining occupants were
then allowed to leave, followingwhich U.S. Marines boarded the complex. 1,500
pounds of explosives were subsequently planted on board, and were detonated
approximately 2hours later, destroyingthe ~om~lex'~~.
1.122 Much of the Salman complex lying above water was
destroyed. In the words of Captain Perkins, "the destruction was complete 111.2
One report described the remains of the Salman complexas "asmokingmound of
twisted me ta^" a^^ac:count which is borne out by the photographs following
page 50. Several Iranian personnel suffered injuries.
1.123 The Nasr complex wasattacked by the U.S.S. Wainwright,
U.S.S.Ba ~leyand U.S.S. Simpson. This complexwas set on £irewhen one of the
initial rounds hit a compressed gas tank, causing a huge fire which destroyed
much of the c~m~lex"~. qere were a number of casualties and injured. The
fires on the Nasr complex were so intense that the U.S. Marines were unable to
149 Ibid.B, also, Facts on File World NewsDigest,22A1988 ,xhibit 79;Newsday19
April1988 ,xhibit81;Platt's OillrramNews,19Ap1988 ,xhibit82.
''O Perkins, CaptJ.B.:pe.&, p. 68 (Exhibi80)s, alm, me Guardian,M April 1988.
which pointed out thatwashardlysurprising that the Iranians suffered casualties since
one Iranian could still be heard protesting about his lack oasoan American
warned him that his "time was up" and the shelling would commence in less than a
minute. Exhibit 83.
15'
Pcrkins, Capt. J.op.a. a,p.69. Exhibit80.
152
Associated Press,23 Apr1988Exhibit84.
153
Thc Washington Post, 19Apri1988.Exhihit85.
Is4
Pcrkins, Qpt. J.op.-., p69. Exhibi80.board itlS5.Instead, the Wainwriehtdestroyedit with 1,000 rounds ofgunfirelM.
The whole of the central producing platform of the Nasr complex was
destroyedlS7.
1.124 After the destruction of the Nasr complex,the U.S. ships
involved inthe attack patrolled the area for severalhours. Inthe afternoonofthe
samedaytheyapproached an Iranian Kamanpatrol boat, the Joshan. The U.S.S.
Simpsonand U.S.S.Wainwrieht fired 6 missilesat the Joshan, scoringdirect hits
with 5 of them, and then sank the shipwithgunfire158.There were 11 killedand
33 injured.
1.125 Shortly before this, an Iranian F-4 plane approaching the
area wasstruckhya missilefired fromthe ~ainwrieht'~~. In a separate incident
at around the same time, near the Mubarak oil-field,U.S. A-6 war planes sank a
small Iranian patrol boat with Rockeye bombs. Two further smallpatrol boats
were disabled by the U.S. war planes16o. According to press reports,
authorisationto fire on the boats was givenby President Reagan after the boats
were reported to have raided the Mubarak oilfield161. In fact. this oilfieldis
ownedby Iran and jointly operated withthe U.A.E., and thus never wouldhave
been raidedbyIran.
1.126 A third group of U.S. warships, the U.S.S.Jack Williams,
U.S.S.O'Brienand U.S.S. Jese~h Strauss,had originallybeen assignedthe task of
sinkingthe Iranian frigate, Sabalan. The Sabalan could not initiallybe located.
Later in the day, however, a similar Saam-class frigate, the Sahand, was
discovered inthe Strait of Hormuz.. Several U.S. A-6 war planes,together with
the U.S.S.Jose~h Strauss, fired numerous bombs and missilesat the Sahand,
155 The WashingtonPost,19April1988(Exhibit85); AviationWeekandSpaceTechnolo~,
25April1988. Exhibit86.
156 The WashinrrtonPosi, 19April1988. Exhibit85.
Is7 AssoçiatedPress,18April1988. Exhibit8&, the photographfollowingthis page.
lsx Perkins,Capi.J.Bop.fi.p,69. Exhibi80.
Is9 It&J..p.70.
IhO Sce, Facison FileWorldNewsDieest,22April19%. Exhibit79.
'(" hid.Sec,also,TheSundavTirncs,24 Apri1988.Exhibi88.FACINGPAGE: ïXE SALMAN COMPLEX SHOWXNG 6OF THE 7
CONNECTEID PLAWORMS
BACKRACE: DAMAGETO THE SALMN COMPLEX CAUSED BX
U.S.ATTACMSFACINGPAGE: THECENTRAL NASRCOMPLEX(PLATFORMA)
PRIORTOU.S.TïACK
BACKPAGE: THECENTRALNASRCOMPLEXAFTER U.S.TI'ACK-
THE U.S. ATI'ACK FOCUSED ON THE MAIN
PRODUCING PLATFORM WCH GATHERED OIL
FROMALLTHESURROUNDING FIELDSwhich sank a few hours later162. In this attack, there were 45 killed and 87
injured.
1.127 About an hour and a half later, the Sabalan was located on
the north side of the Strait of ~orrnuz'~~. A U.S. A-6 war plane crippled the
Sahalan with a laser-guided bomb. leaving it dead in the water. Subsequently,
however, higher authority - reportedly, Defence Secretary Frank ~arluccil* -
cailed off the Navy, ordering it not to sink the Sabalan, which was ultimately
towed into Bandar ~bbasl~~. 29 Iranian naval personnel were injured. The
location of al1these incidents isshown on Mau 6 facingpage 48.
1.128 Operation Praying Mantis thus achieved more than its
objective. In the words of former Defence Secretary, Caspar Weinberger, "on a
Iranian Navy was de~tro~ed*~~".In total, one frigate
single day nearly half the
(the Sahand) was sunk, another frigate (the Sabalan) severely damaged, two
patrol boats (the Joshan and one Boghammer) sunk, and two further patrol boats
(also Boghammers) disabled. One Iranian F-4 plane was also damaged. In
addition, heavy Iranian casualties resulted from the U.S. attacks on the platforms
and vessels. The Guardian newspaper, on 20 April 1988, commented that
"although Washington may have intended no more than a 'measured response' ...,
it seems as if local American commanders were looking for a fight and needed
only the slightest pretext from therania ans" '^eg.tions by the United States
that in some oi the incide-nts referred to above the Iranians fired first were
disinissed by the same report as "no more than prudent self-justification by a
trigger-happy American commander. 11168
C
1.129 This attack was devastating for Iran not only because of the
severe military and economic damage it caused. Timed to coincide with one of
162 Langston,Capt.B.,and Bringle,Lieut.CommanderD.:'OperationPraying Manti: he
AirView",Proceedings/Naval eview,May1989p, 54,atp.59.Exhibi89.
163
The Guardian,20 April1988. Exhibit83.
lfj4
Factson File WorldNewsDigest,22April1988.Exhibit79.
lus
bngsion. Capt.B,andBringle,Lieut.Commander D.S:. a. p.59.Exhibit89.
IM
1ec Weinberger, C.W9.:.a. atp.425. Exhibit44.
lh7
Thc Guardian,20April1988.Exhibit83.
loX Ihid.the most important Iraqi offensivesofthe war, it showed that the United States
wasreadyto support Iraq's aggressionon an unprecedented s~alel~~.
1.130 As noted above, the. United States sought to justify its
attacks on the basisof self-defenceagainst allegedIranian miningand specifically
the incident involvingthe U.S.S. ~oberts'". It claimed that its attacks were
against "legitimatemilitarytargets". Without referring explicitlyto the attacks on
the platforms inits letter to the Security Council,the United States also alleged
that its targets had "been used for attacks against non-belligerentshipping in
internationalwaterwaysofthe ~ulfl~'".
1.131 Iran also wrote to the Secretary-General on 18 April 1988
protesting the attacks and pointing out that the platforms had no military
value172. As in the case of the October 1987incident, it is clear from the first
reactions of the two States that the legalityof the U.S. actions was a matter of
dispute. In the event, the Security Counciltook no further action on the matter,
and the disputesare nowbefore the Court pursuant to the compromissoryclause
ofthe Treaty ofAmity,ArticleXXI(2).
1.132 The facts related above show that prima facie the U.S.
attacks on Iran'soil platforms were illegal. There had been no prior attack by
Iran on U.S.forcesand, inanyevent,the platformswere inappropriate targetsfor
actions taken in self-defence. These actions can onlybe understood againstthe
backdrop of U.S.support for Iraq inthe conflictand as the culminationofa series
of aggressiveactions taken bythe United States against Iran. That these actions
represented violationsof the Treaty of Amityand that there isno excusefor such
actions will be shown in detail in Parts III and IV of this Mernorial. The
nie US. actionswere simultaneouswith the major Iraqi offensive ofthis period ofthe
war inwhichIraqwasable to recapturethe Fao peninsula. While notwaivingilsclaims
for reparationconcerningthe attackson the lranian warshipsand forthe loss oflivesand
injuricto navalpersonnelarisingout of Operation Praying Mantis, Iran haslimitedits
claimsinthisactionIO the lossesarisingfromthe attackson theoilplatforms.
17('
&, lctter datc1X April1988 fromthe ActingPermanent Representativeof the United
Starcs of America to the Unitcd Nations addresscdIo thc Prcsident of the Security
G)uncil (S119791).Exhihit90.
172
&, Ielterdaied lX April1YtC .Som theAaing Permanent Representative ofthe Islamic
Rcpuhlicof Iran to rhc Unitcd Nations addresscd Io thc Sccretary-Gener(S119796).
Exhihii91. PARTII
THEJURISDICTION OFTHECOURTON THEBASISOF
THETREATYOF AMITY
2.01 ArticleXXI(2) of the Treaty of Amity, Economic Relations,
and Consular Rights between Iran and the United Statesprovides as follows:
"Any dispute between the High Contracting Parties as to the
inter retation or application of the present Treaty, not
satiPactorily adjusted by diplomacy, shall be submitted to the
International Court of Justice, unless thegh-Contracting Parties
agree to settlement bysome other pacific means173.1
Iran relies on this compromissory clause as a basis ofjurisdiction in the present
case and submitsthat, under its provisions,the Court is empowered to adjudicate
the claimsthat Iran has advanced relating to the destruction of its oil platforms.
2.02 In the following Chapters, Iran will show that there is a
dispute between itself and the United States relating to the interpretation or
application of the Treaty, that the Court hasurisdiction ratione materiae over
this dispute, that it has not been satisfactorilyted by diplomacy and that the
Partieshave not agreed to settle the dispute by some other pacificns. Al1the
requirements of ArticleXXI(2) thus being satisfied,jurisdiction vests in the Court
to decide the dispute.
CHAPTER1 THE TREATYREMAINS IN FORCE BETWEEN THE
PARTIES
2.03 At the outset, it should be noted that the Treaty of Arnity
was at the time of the incidents, and remains today, a treaty in force between the
Parties. Under the terms of Article XXIII of the Treaty, termination can only
occur in the followingcircumstances:
"2. The present Treaty shall enter into force one month after
the day of exchange of ratifications. It shall remain in force for ten
years and shall continue in force thereafter until terminated as
provided herein.
3. Either High Contracting Party may, by giving one year's
written notice to the other High Contracting Party, terminate the
173 Treaiyof Amity, EconornicRelations,and ConsularRights bcwecn the United States
and Iran,signedon 15August 1955,284.T.S(1957-1958)p.109 Exhibit92. present Treaty at the end of the initial ten-year period or at any
timethereafter."
2.04 Article54 of the ViennaConvention onthe Lawof Treaties
providesthat termination should take place "inconfomity withthe provisionsof
the treaty". Notwithstandingthe IslamicRevolution in Iran, neither Party has
acted to terminate the Treaty. To the contrary,throughout the period relevantto
thiscase,the U.S.StateDepartment has listed,and continuesto list,the Treatyas
validand bindinginitsofficialpublication,Treaties in~orcel~~.
2.05 Moreover, the Legal Adviser of the State Department
prepared a white paper for the U.S. Congress in October 1983 entitled
"Applicationof the Treaty of Amityto Expropriations in Iran" which reiterated
that the Treaty remainedvalidand bindingon the Parties. The paper concluded:
"Becauseit has not been terminatedin accordancewith itsterms of
[sic] the provisions of international law, the TrfjgI of Amity
remainsin forcebetweenthe UnitedStatesand Iran .
2.06 It is also significant that the Iran-United States Claims
Tribunal inThe Hague, 3swellas U.S.courts,haveupheld the continuingvalidity
of the Treaty of Amityafter 1979. For over ten years, U.S. claimantsbefore the
Claims Tribunalhave repeatedly invokedtheTreatyof Amityin support of their
claimsand the Tribunal has upheld numerousclaimsbased on the applicationof
the Treaty to events that occurred after1979. Moreover, as recentlyas 1989, the
U.S.District Court for the Districtof Columbia ruledthat the Treaty was stillin
forceand constituteda "controllinglegalstandard"as to issues ofcompensationin
the eventofexpropriationor nationali~ationl~~.
174 s, UnitedStatesDepartmentof State,TreatiesinForce,199p.118. Exhibit93.
17' See, Exhibit94. The U.S. State Departmentmaintaincdthis stancein a smnd paper
concerning "Thc Application of InternationalLaw to Iranian Foreign Exchange
Rcgulations"preparedinFebruary19,W.Exhibit95.
176 ForernosiMcKcssonInc.,v. lslarnicRepuhlicof Iran,Ci".actionNo.82-0220 (D.D.C. 18
April1989).rcprintcdin IranianAssetsLitiriReporter,23 April 198,t pp. 17177-
17178. This findingwasaffirmedbythe UnitedSiates Courtof Appcals(D.C. Cir.,15
June 1990),reprintcdin Iranianhsets LitieationReporter,16July1990,atpp. ,9093
m. 2.07 This Court has also held that the Treaty of Arnity remained
in force after 1979. Ints Judgment in the United States Di~lomatic and Consular
Staff in Tehran case, the Court stressed this point in the followingterms:
"It is precisely when difficulties arise that the treaty assumes its
greatest importance, and the whole object of Article XXI,
paragraph 2, of the 1955 Treaty was to establish the means for
arriving at a friendly settlement of such difficulties by the Court or
byother peaceful means. It would,therefore, be incompatible with
the whole purpose of the 1955 Treaty if recourse to the Court
under Article XXI, paragraph 2, were now to be found not to be
open to the parties precisely at the moment when such recourse
was most needed. Furthermore, although the machinery for the
effective operation of the 1955Treaty has, no doubt, now been
impaired by reason of diplomatic relations berween the two
countries having been broken off by the United States, its
provisions remain parttq$the corpus of law applicable between the
United States and Iran ."
2.08 In the lightof the above, it isclear that the Treaty remains in
force between the Parties.
CHAPTER II THE SATISFACTIONOF THE REQUIREMENTS OF
ARTICLEXXI(2)
SECTIO AN The Existenceof a Disputeas to the Treatv'sInterpretation
orApplication
2.09 The fact that there is a dispute between the Parties in the
present case as to the interpretation or application of the Treaty of Amity can
hardly be challenged. The positions advanced by Iran and the United States show
without any doubt that the Parties hold profoundly divergent views as to the
legalityof the incidents on whichIran'sclaimsare based.
2.10 Ever since the 19October 1987attack on the Reshadat oil
platforms, Iran has consistently maintained that there was no justification for the
United States' actions under international law. In contrast, the United States has
asserted that its conduct wasjustitled as a legitimate exercise of self-defence, an
argument that was repeated after the United States destroyed the Nasr and
Salinan complexes in April 1988.
177 United Siatcs and DiplornaticConsularStaffin Tehran, JudnI.C.JReports1980,
p28.para.54. 2.11 The Court has frequently been called on to decide whether a
dispute exists as to the interpretation and application of a treaty between parties
to a given case. In this connection, the classicdefinition of a dispute was given by
the Permanent Court in the Mavrommatis case, where it ruled that -
"A dispute is a disagreement on a point of law fact, a conflict of
legalviewsor of interests between two persons 1% .l
2.12 In the case concerning Certain German Interests in Polish
Upuer Silesia, the Permanent Court further clarified this definition when it
affirmed that -
"... a difference of opinion does exist as soon as one of the
Governments concerned points out that the attitude adopted bythe
other conflicts with itsownviews 179.1
In the Interuretation of Peace Treaties case, this Court stressed that the objective
factual situation is central in evaluating whether a dispute exists in a particular
case. It observed:
"Whether there exists an international dispute is a mattea for
objective determination. The mere denial of the existence of a
dispute does not prove its non-existence ...There has thus arisen a
situation in which the two sides hold clearly opposite views
concerning the question of the performanceor non-performance of
certain treaty obligations. Confronted .with such a situatig,,, the
Court must conclude that international disputes have arisen .
2.13 It is also apparent that for a dispute as to the interpretation
or application of a treaty to exist, it is not necessary for the express terms of the
treaty to be invoked in the course of negotiations. Asthe Court stated in its 1984
Judgment in the Nicarag -ua case, "it does not necessarily follow that, because a
State has not expressly referred in negotiations with another State to a particular
treaty as having been violated by conduct of that other State, it is debarred from
17' MavrommatisPalestine Concessions,JudgmentNo. 2, 1924, P.C.I.J..SeriesA, No. 2, p.
11.
179 Certain German Interestsin Polish Upper Silesia, Jurisdiction.JudgrnentNo. 6, 1925,
P.C.I.J.,SerieA,No. 6,p. 14.
lnterpretation of Peace Treaties with Bulgaria, Hun~an, and Rornania,First Phase,
Advison,Opinion. I.C.J.Reports1950, p.74.invokinga compromissory clause in that treatylsl". What is of importance is that
a dispute as to the legality or illegalityof certain actions under international law
should exist.
2.14 In the present case, there can be no doubt that ever since
the incidents took place, the United States has been well aware of Iran's
allegation that the United States breached international law. Iran's position was
clearlystated in letters addressed to the Secretary-General of the United Nations
after the incidents in which Iran informed the Secretary-General that the conduct
of the United States violated fundamental rules of international law. Iran also
made its position clear in the course of numerous public announcements.
2.15 With respect to the destruction of the first set of installations
in October 1987,Iran's Foreign Minister denounced that destruction asan "illegal
resort to force against the sovereignty and territorial integrity of the Islamic
~e~ublic'~~".One day earlier, the United States had sought to justify its actions
byarguing that U.S. forces had "exercisedthe inherent right of self-defence under
international law by taking defensive action in response to attacks by the Islamic
Republic of Iran against United States vesselsin the Persian ~ulf*~~".
2.16 In April 1988,the United States again argued that its actions
were "necessary and ...proportionate to the threat posed by ...hostile Iranian
action^'^ ". contrast, the Acting Permanent Representative of Iran described
these actions as "premeditated acts of aggression [which] constitute the most
serious breach of the peace and a grave threat to regional and international
sec~rity~~~".
2.17 From these statements, it clearly emerges that a dispute
arose between the Parties from an early stage as to the legality under
international law ofthe incidents of 19October 1987and 18April 1988.
MilitarvandParamilitarvAclivitiesinanda~ainstNicaragua (Nicaraguv. UnitedStates
of Arnerica),Jurisdictionand Admissibility. Judgmt.,C.J.Report1984, p.428,para.
83.
182
1ec S/19224,20 October 1987.Exhibit75.
IX3
See,Sl19219, 19October 1987.Exhibit73.
Is4
Sce,Sl19791 18April IY&%.Exhibit 90.
18' Sec, S/19796,18 Apri1988. Exhibit91. 2.18 Subsequently, the Treaty of Amity was specificallyinvoked
by Iran on 7 July 1992 when, as has been explained in Iran's Application, the
Director of Iran's Bureau of International Legal SeMces raised the matter of the
destruction of the oil platforms with hisU.S.counterpart, the Legal Adviserto the
State Department. After reverting to his Government for instructions, the Legal
Adviser informed Iran on two separate occasions - 13 August 1992 and 15
October 1992 - that the United States refused to negotiate the issueor to agree to
some other pacificmeans of settlement.
2.19 In this context, it is appropriate to recall the argument
advanced by the United States in the Diplomatic and consul& staff case where
Counsel for the United States argued that the mere fact that one State charges
the other with breaching provisionsof the Treaty of Amity "inevitablyrequires the
interpretation or application of the ~reat~'~~".
2.20 Counsel in that case also argued that the absence of "forma1
diplomatic exchanges" between the United States and Iran did not make the
existence of a dispute as to the Treaty's application or interpretation any less
apparent. To the contrary, such a rigid approach would be contrary to the
realities of modern international relations and, in the words of U.S. Counsel,
"wouldsuggest a stultiwing formalism inconsistent with the jurisprudence of this
Court and with the realities of international life18'".
2.21 Thus, under criteria established by the Court and accepted
bythe United States, a dispute clearlyexistsbetween the Parties as to the Treaty's
interpretation and application to the events in question.
Oral argument of Mr. Schwebel,I.C.J.Pleadings,United States Di~lomaticand Consular
Staff inTehran (U.S.A. v. Iran), p. 285. Indeed. the U.S. Memorial in the same casewent
so faras toontend that:
"..if the Government of Iran had made some contention in this Court that the
United States interpretation of the Treaty was incorrect or that the Treaty did
not apply to Iran's conduct in the manner sugestecl by the United States, the
Court would clearly be confronted with a dispute relating to the 'interpretation
or application' of the Treaty.'
U.S. Memorial,M.. p. 153.
IX7 Oral Argument of Mr. Schwebel, I.C.J. Plcadincs, United Statcs Diolomatic and
Gmsular Staff in Tehran (U.S.Av.Iran)p.277. SEC~OB N The Scow ofthe Court'sJurisdiction Ratione Materiae
2.22 In Part III below, Iran will show that the United States
breached specificprovisionsofthe Treaty, including:
- Article 1,providingfor the maintenance of "enduringpeace
and sincerefriendship"between the ContractingParties;
- Article IV(l), statingthat each Party at ail timesshallgrant
"fair and equitable treatment" to nationals, property and
enterprises ofthe other;
- Article X(l), providing for freedom of commerce and
navigationbetweenthe Parties.
2.23 In the light of these provisions,the scope of the Treaty is
clearlywide enough to embrace the kind of claims made by Iran involvingthe
legalityof the United States' use of force against commercial installations. It
follows,aswillbe shownbelow,that the Court hasjurisdictionratione materiae in
the present case.
2.24 In this connection, it is not open to the United States to
argue, as ithas in other cases, that the Court lacks subject-matter'jurisdiction
because the scope of the fieaty is limited to commercial relations between the
two States stricto sensu. The plain language of the Treaty and the Court'spast
pronouncements on similartreaty provisionsconlkm that the Treaty includesfar
broader considerationsencompassingprinciplesrelating to peace and friendship,
freedom of commerce and navigation, protection frorn discriminationand the
pledgeofequitabletreatment ofnationals,propertyand enterprises.
2.25 The context within which the Treaty was signed is also
instructivein this respectAs pointed out in Chapter 1of Part 1,the1955 Treaty
wasone ofa seriesof similartreaties offriendship,commerce and navigationthat
the United Statesentered into followingWorld WarII for politicaland strategic,
as well as economic,reasons. As has been observed by the former U.S. State
Department Adviser on Commercial Treaties, Herman Walker, who played a
leadingrole innegotiatingthose treaties: 'This type of treaty isan instrument widelyused by nations over the
years to provide the juridical basis for their economic intercourse
and to siILn11hen tiës of good neighborliness in their everyday
relations .
2.26 The label "commercial" applied to this kind of bilateral
treaty is misleading, since their scope ratione materiae goes far beyond purely
commercial issues. As one commentator has pointed out:
"Aside from strict legalism, questions of policy arise, and in their
basic objectives the bilateral commercial treaties should be
considered in relation to promotion of commercial and cultural
exchange, to the provision of forei~ economic assistance, and to
the purposes of the United Nations .
2.27 These wider aimsof the Treatywere also emphasised by Mr.
Kalijarvi, U.S. Beputy Assistant Secretary of State for Economic Affairs, who
stated:
"Although the principal immediate incentive in the negotiation of
these treaties, is the desire to help create conditions favorable to
foreign private investment, the treaties have a broader purpose
which is to establisha general legalframework for the maintenance
of ecoqtp!c and other relations between the parties to the
treaties .
2.28 Because the Treaty is broad in scope, it is obvious that
disputes over its interpretation or application involve issues other than of an
exclusivelycommercial nature. In the Diplomatic and Gnsular Staff case, for
example, the United States itself invoked the Treaty of Amity as a basis of
jurisdiction despite the fact that that case had nothing to do with commercial
relations between the twoStates.
2.29 In its Judgment in the jurisdictional phase of the Nicaragua
case, the Court went further, ruling that it had jurisdiction over the merits of a
IXX Walker. H: Treaties for the Encouragement andProtection of Foreign Investment:
PresentUnited Statesractice",AmericanJournalof ComparativeLaw, Vol.5,1956.p.
230. Exhibt96.
lX9 Wilson,R.R.:"Property- Protection Provisionsin United States CommercialTrcaiics".
American Journalof InternationalLaw,Vol.45, 195p.105(Emphasisadded). Exhibit
S.
CommercialTrcÿiies with Iran.Nicaragua andThe Netherlands: HearingsBefore the
Senaie Committcc on Foreign Relations, 84th Congress, 2d session 1 (1956), 2.
Exhibit98.dispute between the United States and Nicaragua involvingthe legitimacy of the
use of armed force under virtually identical treaty provisions to those being
invoked by Iran in this case. Subsequently,at the merits stage, the Court held that
the acts of force perpetrated by the United States against Nicaragua's ports,
airports and territorial waters contravened specific provisions of the treaty.
Accordingly, the scope of the treaty was interpreted by the Court as being far
broader than simply"commercial".
2.30 In this connection, it should be noted that the Court also has
coxnpetence [>verany dispute concerning the interpretation or application of
Article XX(l)(d) of the Treaty, whickp~wides that the Treaty "shallnot preclude
the application of measures ...necessary to protect [a Party's] essential security
interests". In paragraph 222 of its Judgment of 27 June 1986, the Court found
that it had jurisdiction over an identical provision in the Treaty between
Nicaragua and the United States, and rejected any suggestion that the necessityof
measures to proteçt essential security interests was a matter for unilateral
determination by one party which could not be reviewed by the The
fact that the Court has jurisdiction over such issues in itself confirms that the
Treaty has a far wider application than to purely commercial issues.
2.31
As willbe discussedingreater detail in Part III, tothe extent
that certain provisions of the Treaty of Amity make reference to or even
incorporate principles of general international law, the Court has jurisdiction to
address those issues as well. The rationale behind this conclusion finds
confirmation in the Court's 1986Judgment in the Nicaragua casewhere it held:
"AState may accept a rule contained in a treaty not simplybecause
it favours the application of the rule itself, but also because the
treaty establishes what that State regards as desirable institutions or
mechanisms to ensure implementation of the rule. Thus, if that
rule parallels a rule of customary international law,two rules of the
same content are subject to separate treatment as regards the
organs competent to verify their implementation d192n1:ng on
whether they are customary rules or treaty rules .
2.32 In the present case, Article XXI(2) thus provides for the
Court's jurisdiction to decide any dispute relating to the interpretation or
")l Miliiarvand ParamiliiarvActivitics in andawinst Nicaraeua(Nicarav.United States
ofAmcria), Mcriis.Judcrncni,I.C.J.Rcport19x6,p. 116, para.222.
lY2 W., pp.YS-96,piira. 178.application of the Treaty, including any principles of customary international law
to whichdirect or indirect reference is made in the provisionsof the ~reaty'~~.
2.33 Bythe same token, itisalso apparent that the jurisdiction of
the Court provided for by Article XXI(2) extends to questions of reparationlg4.
As the Court held in the Chorzow Factory case (and subsequently confirmed in its
1986Judgment in the Nicaragua case):
"It is a principle of international law that the breach of an
engagement involves an obligation to make reparation in an
adequate form. Reparation therefore is the indispensable
complement of a failure to apply a convention and there is no
necessityfor this to be stated inthe convention itself.
Differences relating to reparations, which maybe due by reason of
failure to apply a convention, are consequently differencesrelating
to its application195.1
SECTI(:)NC The Dispute Has Not Been Satisfactorilv Adiusted by
Diplomacv Nor Have the Parties Aereed To Settle It bv
Other Pacific Means
2.34 The only remaining condition provided for under Article
XXI(2) for a dispute to be submitted to the Court is that it not be satisfactorily
adjusted bydiplomacy or settled bysome other pacificmeans.
2.35 Pursuant to Article 31of the Vienna Convention on the Law
of Treaties, this provision must be interpreted in good faith and "in accordance
with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose". The ordinary meaning of Article
XXI(2) clearly indicates that any dispute as to the interpretation and application
193
Moreover, in the course ofthe negotiations leading up to the Treaty of Amity,the United
States opposed any suggestion touppress the term "application" from the wording of
ArticleXX1(2), "preciselybecause the United States wanted to avoid any narrowing of
thejurisdictional provision". I.C.J. Pleadings, United States Diplornatic and Consular
Staff in Tehran (U.S.A. v. Iran), p. 153,note 14. The issuewasvasw"fundamental"
by the U.S. negotiators as isevidenced by an official cable sent from the State
Department to the U.S. Emhassy in Tehran which stated that "deletion 'application'
might seriously curtail means settlement disputes under US-Iran Treaty". Annex 50 to
the U.S. Memorialm., pp. 232-233.
194 This principle wasaucpted bythe United States in relation to a similar treaty of amity in
the Case Conccrninc Elettronica Sicula S.p.k(ELSI )United States of America v.
Italy),Judgment, I.C.J.Reports 1989,p. 15.
lys
Factory at Chorzow.Jurisdiction, Judgmenr 8..1927,P.C.I.J.SeriA. No.9, p.21.of the Treaty maybe submitted to the Court ifit satisfiesthe dual condition of not
having been previously adjusted by diplomacy or settled by some other pacific
means.
2.36 In examining identicallanguage found in the treaty between
the United States and Nicaragua, several Judges drew attention to the fact that
this language does not require prior negotiations between the parties for a
dispute to be brought before the Court. For example, Judge Jennings observed
that the comprornissory clause of the the U.S.-Nicaragua treaty, which contains
the same language as Article XXI(2)of theTreaty of Arnity -
"...merely requires that the dispute be one 'not satisfactorily
adjusted by diplomacy'. Expressed thus, in a purely negative form,
it is not an exigent requirement. It seems indeed to be cogently
arguable that al1that is required is, as the clause precisely States,
that the claims have not in fact already been 'adjusted' by
diplomacy. In short it appears to be intended to do no more than
to ensure that disputes that have already been ade uatel dealt
with bydiplomacy,should not be reopened before the 8 ourt Y%l.
Similarly,Judge Singhconcluded -
"...if the wording of the compromissory clause of the Treaty is
examined, it would appear that negotiations or representations
affecting the operation of the present Treaty are not prescribed as
a condition precedent to invoking the jurisdiction of the Court...
There is, however, no binding obligation to negotiate. The above
conclusion 19Yll appear to bë cleailyjustified fiom the wording[of
the article] .
2.37 Judge Ago also noted that the requirements set forth in the
compromissory clause of the Treaty could be met without resorting to prior
negotiations. In analysing the provisions of the US.-Nicaragua treaty, he
observed that it-
"...does not make use of the wording to be found in other
instruments which formally requires diplomatic negotiations to
have been entered into and pursued as a prior condition for the
Militarvand ParamilitarvActivitiesinandagainst Nicaragua (Nicaa. UniredStates
of Amcrical, Jurisdiction andAdmissibiliiy,I.C.J. Re1984,Separaie Opinion of
Judge Jenningsp.556.
Ig7 M., SeparatcOpinionolJudscSingh, p.445. possibility of in t'tuting proceedings before an arbitral tribunal or
court ofjustice itd.I
2.38 This interpretation also finds support in the Court's
judgment in the Di~lomatic and Consular Staff case, where the Court stated:
"Article XXI, paragraph 2, of the Treaty establishes the jurisdiction
of the Court as compulsory for su disputes, unless the parties
l&l
asree to settlement byother means .
Since, in the present case, the dispute has neither been satisfactorilyadjusted by
diplomacy nor settled by some other pacificmeans, it followsthat the jurisdiction
of the Court is established under the plain and ordinary meaning of Article
XXI(2).
2.39 Although Article XXI(2) does not provide that prior
negotiations are a pre-requisite for bringing a case before the Court, as pointed
out above Iran did attempt such negotiations, referring explicitlyto the Treaty of
Amity. Moreover, even if such a requirement had existed, itwould not be
absolute, but would have to be considered in the context of al1 the relevant
circumstances.
2.40 As the Permanent Court indicated in Mavrommatis,
"negotiations do not of necessity alwayspresuppose a more or less lengthy series
of notes and de~~atches~~' It added that the views of the parties as to whether
negotiations are likely tolead to a resolution of the dispute play a crucial role,
since they (the parties) "are in the best position to judge as to political reasons
which may prevent the settlement of a given dispute by diplomatic
20111
negotiation .
2.41 In these circumstances, the actual length of negotiations is
irrelevant. As Judge Ago stated in his Separate Opinion in the jurisdictional
phase of the Nicaragua case:
19'
W., SeparateOpinionof Judg Ago, p.515.
Iw
United StateDiplomatieand Consular Staffin Tehran.Judirment,I.C.J.Reports 1980,
p.27,para.52 (emphasisuppliedbytheCourt).
2(K)
MavrommatisPalcstinc Concessions,JudgmentNo. 2, 1924, P.C.I.J.,SeriesA, Np. 2,
13. "More generally speaking, 1am in fact convincedthat prior resort
to diplomatic negotiations cannot constitute an absolute
requirement, to be satisfied even when the hopelessness of
expecting any negotiations to succeed is clear from the state of
relationsbetween the parties, and that there isnowarrant for using
it as a ground for delaying the opening of arbitra& judicial
proceedingswhenprovisionfor recourse to them exists .
2.42 In the present case, since the United States has expressly
refused to solve the present dispute by diplomacy or through negotiation,
submissionof the dispute to the Court isentirelyappropriate. Asthe factsshow,
the exchange of views whichoccurred between the Parties before the United
Nations andindirect communicationsbetweentheir legalrepresentatives showed
norealisticpossibilitythat the disputecouldbe solvedbyother means.
SECTIO DN Conclusions
2.43 In the light of these considerations, it may be concluded
that:
- The Treaty ofAmityremainsin force between the Parties to
thiscase;
-
A dispute as to the Treaty'sinterpretation or applicationhas
arisen withrespectto the destructionbythe United Statesof
Iran'soilplatforms;
- The Court has jurisdiction ratione matenae over Iran's
claimsunder the terms ofthe Treaty;
*O2
Militarv and Parliamentarv Activities in and aeainst Nicaragua (Nicaragua v. United
States ofmerica). Jurisdiction and Admissibilitv.LC-J.Rewrts 1984,pp. 515-516. As
the Court noted in its AdvisoryOpinion on South West Afriinot the form of the
negotiations thattters, but rather the viewsand positions of the parties:
"In practicc the actual length of negotiations is no test of whether the
an earlydeadlock wasreached and that one side adamantly refused compromise."that
Legal Consequences for States of the Continue. Presence of South Africa in Namibia
(South West Africa) notwithstandinr!Securitv Council Resolution 276 (1970).Advisow
Opinion. I.C.J. Reports 1971,p.44, 85.a.- The language of Article XXI(2) does not provide that prior
diplomatic negotiations are a precondition to the institution
of proceedings before the Court;
-
This interpretation has been consistently confimed by the
jurisprudence of the Court and bythe United States itself;
-
The failure of the United Statesto respond positivelyto the
attempts made by Iran to negotiate the issue on the basis of
the Treaty shows,in any event, that the dispute was not one
which could be satisfactorilyadjusted bydiplomacy;
- Accordingly, there are no impediments to the Court's
jurisdictioninthe present case. PARTIII
THE PROVISIONSOFTHETREATYOFAMITYVIOLATEDBYTHEU.S.
A'ITACKSOFOCTOBER1987 ANDAPRIL1988
CHAPTER1 METHODS AND PRINCIPLES APPLICABLE TO THE
INTERPRETATION AND APPLICATION OF THE
TREATYOFAMITY
SECTIO AN Introduction
3.01 In the preceding Part, Iran has shown that the Treaty of
Amity, Economic Relations and Consular Rights of 15 August 1955 remains a
treaty in force between Iran and the United States. Al1its provisions were thus
applicable in the relations between the two States at the time of the events which
are the subject of Iran's Application before the Court, and are still in force today.
Consequently, pursuant to Article 26 of the Vienna Convention on the Law of
Treaties. the 1955 Treaty "..is binding upon the parties to it and must be
performed by them in good faith". Accordingly, conduct attributable to one
Contracting Party which represents a violation of an obligation under the Treaty
is an internationally unlawful act. for which that Party is responsible vis-à-visthe
other.
3.02 In the followingChapters, Iran willshow that the conduct of
the United States7armed forces on 19October 1987and 18April 1988seriously
violated Articles 1,IV(1) and X(l) of the Treaty of Arnity. The interpretation of
each of these provisions will be considered in turn in order to establish their
precise meaning. In the light of this interpretation, Iran will then show that the
United States' conduct was clearly in conflict with the international obligations
imposed on it bythese provisions.
3.03 Before concluding that these actions represent
internationally illegal acts giving rise to the international responsibility of the
United States towards Iran, and thus entailing the obligation to make reparation
to Iran, thismorial willexamine one lasi question: whether such actions could
be justified by the existence of special circumstan&,s,those "circumstances
excludingillegality"wliichare referred to in Articles 29, et seq., of the tïrst part of
tlit: draft Articles on State Responsibility prepared by the International Law
C~>inniissicof the United Nations. This poiwillbe dealt with in Part IV below,
where Iran willshow that there is no suchjustification for the U.S. conduct, eitherunder Article XX(1) of the Treaty, or under customary or general international
law.
SECTIO BN The Limits of theJurisdictionof the InternationalCourtof
Justice RationeMateriaeand the Question of the Violation
bv One of the Parties of the Oblipation Not To Deprivethe
Treatvof its ObiectandPurwse
3.04 As stated in general terms in Iran's Application, this case is
ccincerned with the violation by the United States of specific provisions of the
Treaty of Arnity. In other words, Iran is requesting the Court to adjudge and
declare that the actions of the United States represent internationally unlawful
acts since they constitute violations of international obligations arising from the
Treaty. In order to substantiate its claims, Iran will,in each of the Chapters that
follow,begin byseeking to determine the exact interpretation of the provisions of
the 1955Treaty which itis invciking. This willbe done by using the appropriate
principles and criteria for treaty interpretation, in particular the principle set out
in Article33(1) of the Vienna Convention on the Law of Treaties according to
which -
"Atreaty shbuld be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their
context and in the lightof its object and purpose."
As will be seen below, the "object and purpose" of the Treaty has a particular
importance in the present case -where itis necessary to identify the meaning of
specific provisions of a treaty having the general object (as indicated by the
Preamble) of "emphasizing'the friendly relations which have long prevailed
between their peoples" and then to apply those provisions to acts involvingthe
use of force byone party to the Treaty against the other.
3.05 It is essential to stress at the outset, however, that in
invokingthe "object and purpose" of the Treaty of Arnity in the present case. Iran
is not making a claim that the military actions of the United States of 1987and
1988are internationally unlawful merely because they are in contradiction with
the object and purpose of the Treaty, independently of whether they violated
specitic provisionsof the Treaty. Althouçh similar inother respects, the situation
here isthus different from that adjudicated by the Court in 1986 concerning
relations between Nicaragua and the United States. 3.06 In its 1986Judgment on the merits of the Nicaragua case,
the Court had the opportunity to rule on a series of claims by Nicaragua which
were also based on a bilateral Treaty of Arnity (the Treaty between the United
States and Nicaragua of 21 January 1956). One allegation of the applicant State
was that the respondent had, by its conduct, "deprived the treaty of its object and
purpose, and emptied it of real content"; in other words, as the Court itselfstated,
Nicaragua invoked in that case "a legal obligation of States to refrain from acts
which would impede the due performance of any treaties entered into by
them203ii
3.07
The Court went on to stress the following point in this
regard -
"...if there is a duty of a State not to impede the due performance
of a treaty to which it is a Party. that is not a duty imposed by the
treaty itself. Nicaragua itselfapparentlycontends that this isa duty
arising under customary international law independently of the
treaty, that it is implicitin the rule pacta sunt servanda. This claim
therefore does not in fact faIl under the heading of possible breach
by the United States of the provisions ofthe 1956Tred?, though it
may involvethe interpretation or application thereof2 .
3.08 On the basis of this reasoning, the Court was anxious to
point out that if it was able to proceed to examine the merits of the claim in
question - the allegation that the U.S. conduct had deprived the treaty of its
object and purpose - it eould not do this under the provisions of the
compromissory clause contained in the 1956 Treaty (which is formulated in
exactlythe same terms as that of the Treaty of Amity of 1955). This clause only
conferred upon the Court the jurisdiction to rule upon disputes relating to the
interpretation or application of the Treaty. However, in the event, no problem
arose as to the Court's jurisdiction to consider this claim in the Nicaragua case,
since the Court was empowered to examine any dispute between the parties
pursuant to a much broader basis ofjurisdiction -Article 36, paragraph 2, of the
Statute of the Court.
3.09 This jurisprudence cannot affect Iran's position. As already
emphasized, Iran's claims are not in any way based on the assertion that the
203 Militaryand ParamilitarvActions in and acainst Nicaragua (Nicv.United Siales
of Amcria), Mcriis,Jud~meni,I.C.J.Rcporis 19p.,135,para.270.
*O4 m. United States has violated "the object and purpose" of the Treaty, independently
of the violation of specific provisions of the Treaty. On the contrary, Iran
contends that the actions of the United States in 1987 and 1988 specifically
violated Articles1,IV(1) and X(l) of the Treaty of Amity, as interpreted "in the
light of its object and purpose". In other words, the object and purpose of the
Treaty are invoked by Iran in order to interuret specific provisionsof the Treaty,
and not as part of a separate claim that the Treaty as a whole has been violated
independentlyof the violation of specificprovisions.
SECTIO CN The Roleof GeneralInternationalLawin the Interpretation
and Applicationofthe 1955TreatvofAmity
3.10 Article 31, paragraph 1, of the Vienna Convention on the
LawofTreaties indicates that treaty provisionsshallbe interpreted not onlyin the
lightof their object and purpose, but also"..in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context...".The
same provision later specifies what is meant by "context", and expressly States
that, in this respect, one should take into account not oniysubsequent practice by
the parties in the application of the treaty, but also "..any relevant rules of
internationallaw applicable in the relations between the parties" (Article 31,
paragraph 3(c)). In other words, it is necessary to adopt a "systematic"
interpretation of the treaty, since the exact and complete meaning of its
provisions cannot be established other than by placing them in the appropriate
legal context, which is ultimately represented by the international legal order as a
whole.
b
3.11 This is an elernentary and fundamental concept which the .
Court has had occasion to stress, for example, in its AdvisoryOpinion of21 June
1971 in the South West Africa case, where the famous dictum can be found,
accordingto which -
"..an international instrument has to be interpreted and applied
within the framework of t e entire legai system prevailing at the
time of the interpretationQ .4
3.12 The provisions of the Treaty must thus be interpreted taking
into account the rules of international Iaw as a whole, both customary and
Legal Consequcnccs for States of the Coniinued Prcscncc of South Africa in Narnibia
(South West Afriw) notwithstandin~SccuritvCouncil Rcsolutio(1970),Advisory
Opinion, I.C.J.Rcr>oris19731.para.53.conventional, in force between Iran and the United States. Obviously, the fact
that ArticleXXI(2) grants the Court exclusivejurisdiction to rule onlyon disputes
hetween the Parties as to the interpretation or application of the Treaty ofAmity
does not in any way prevent the Court from referring to general principles of
international law and other treaties binding onthe Parties, tothe extent that such
reference is necessary in order to identifythe content and scope of the obligations
arisinç from the Treaty.
3.13 Indeed, a cursory examination of the text of the Treaty is
suftïcient to note that a large number of provisions use terms whose meaning can
onlybe determined by reference to rules and concepts of international law which
do not appear in the Treaty itself. This applies, to take just a few examples at
random, in the case of the concept of "peace" (Article 1),of "international peace
and security" (Article XXI(l)(d)), of "nationals" and of "territory" of the Parties
(Article II, III, IV, m.), of "diplomatic or consular representatives" and of
"credentials"(Articles II(4), XII, XII, XIV,etc.), of "highseas" (Article X), of the
settlement of disputes by "diplomacy"or "other pacific means" (Article XXI), and
so on.
3.14 In this respect, Article XXI(l)(d) deserves separate
discussion. This Article exempts the Parties from cornpliance with the Treaty
when measures "necessary to fulfilthe obligations of a High Contracting Party for
the maintenance or restoration of international peace and security"are taken. It
is perfectly clear that in order to proceed to the interpretation or application of
this clause one must refer to principles,ules and institutions of international law,
both general and conventional, relating to the maintenance and restoration of
peace and international security. Judge Jennings, in his Dissenting Opinion to the
Court'sJudgment of 1986,clearly took note of this interesting legal phenornenon
in dealing with a clause drafted in identical terms to Article XX(l)(d) contained
in the 1956Treaty of Amity between the United States and Nicaragua. He stated
that -
"...there is...nothing to prevent the Court, when it is dealing with
matters covered bythe jurisdiction clause of the FCN Treaty, from
considering and applying,for example, Articles 2, paragraph 4 and
51 of the United Nations Charter or any other relevant multilateral
treaties. Indeed, the first part of Article XXI(d) of thFCN Treaty
...clearly contemplates certain kinds of 'obligations of a Party' arising from the United Nations being relevant to the
interpretation and application of
This legal phenomenon is one which has often been highlighted in studies of
bilateral treaties of amiSo7. Indeed, such treaties contain many expressions
whose sense cannot be understood other than byreference to international lawas
a whote.
3.15
On the other hand, it must also be emphasized that the 1955
Treaty of Arnity contains provisions imposing the specific obligation on the
Parties to respect, in their mutual relations, rules of general internatio na-.law,or
other treaties already in force between them. In these cases, the rules referred to
are, as it were, explicitly "incorporated" into the Treaty in the sense that the
Treaty imposes on the Parties an obligation to observe them, and violation of
these rules becomes also a violation of the Treaty, and thus constitutes a doubly
unlawfulact.
3.16 For exarnple, Article IV(2) obliges the Parties to grant to
the property of the other Party's nationals a protection and security "in no case
less than that required by international law". Article XVI(3) grants to diplomatic
officers and employees "al1exemptions allowed them under general international
usage". And Article VI1 refers to the adoption of certain provisions of the
International Monetary Fund in specificsituations.
3.17 In its Judgment of 27 June 1986 in the Nicaraoua case, the
Court discussed at length situations of this kind, resulting in particular from the
fact that a number of treaties refer to the same rules of general international law.
The Court stressed that, as a result of the incorporation of such rules in treaties,
"...the States in question are bound by these rules both on the ievelof treaty-law
and on that of customary international ladogtt.
2(fi
MilitawandPararnilitaw Activitiesinand against Nicaragua (NicaraguaUnited States
of Ameria). Merits, Judgrnent.I.C.J. Reports 19%. Dissenting Opinion ofJudge
Jennings,p.539.
207 See, in particular,Wilson, R.R.:The InternationaLaw Standardsin Treatiesin the
UnitcdStates,HarvardUniversity Press, Cambridg (e ass.),1956, pp.5gtseq. p,. 12,
-tseq.p, p17, sea.
20' MilitarvandParamilitarvActivitiesinandagainstNicaragua (Nicaragu a.United States
of Amcrical,Mcrits.Judgment.I.C.J.Renorts1986,p.95, para.178. 3.18 Many legal consequences arise from this phenomenon of
"separate existence" which occurs when "two norms belonging to two sources of
internationallaw appear identical in content2'? In Part II above, Iran has
recalled an important passage of the Judgment of 27June 1986where the Court
clearly identified one of these consequences-that the incorporation of rules of
general internationallaw has the effect that the mechanisms provided to ensure
implementation of the treaty provisions can also be used for the implementation
of customary rules which have become an integral part of the treaty. At this
stage, it is important to emphasise another significant consequence: inh cases
the violation oa rule of general international law constitutes at the same time a
violation of the treaty, to thetent that compliance with the rule in question is
specificallyprovidedforby a provision of the treaty.
3.19 Obviously, this general statement is fully applicable to the
1955Treaty. In every case where one of its provisions imposes an obligation on
the Parties to comply with rules of general international law or other treaties in
force between the Parties, the violation of such rules by one of the Parties
constitutes atthesame time a violation of the Treaty.
CHAPTERII THEINTERPRETATION ANDAPPLICATIONOF
ARTICLE1
SECTIO AN The InterpretationofArticle1
1. PreliminarvremarksconcerninethewordingofArticle1
3.20 Article 1of the 1955Treaty contains a general formulation
whichisat one and the same tirne conciseand all-embracing:.
"There shall be firm and enduring peace and sincere friendship
between the United States ofAmerica and Iran."
3.21 The article in question opens the door to a number of
observations concerning both its wording and the place that it occupies in the
general structure of the Treaty.
3.22 The first observation concerns the first three wor-s"there
sliallbe"-which strongly underline the binding nature of this provision. In otherwords, Article 1does not merely formulate a recommendation or desire (which
would have then led to the choice of a more flexible formulation, like "there
should be"), but imposes actual obligations on the Contracting Parties, obliging
them to maintain long-lastingpeaceful and friendlyrelations.
3.23 The second observation concerns the pre-eminent position
of Article1,the opening rule, whichsets the general tone of the Treaty as a whole
and places the other provisions, relating to economic relations and consular
rights, in a broader context,hus showingthat these provisionsidentiQ the wayin
which the fundamental goals of the Treaty are to be implemented in specific
instances. It is hence Article 1which prescribes in general but equally binding
terms these fundamental purposes byasking the Parties to act in compliance with
them in a permanent manner.
3.24 The third observation is that Article 1 imposes real
obligations, by virtue of the fact that it compels the Contracting Parties to
maintain relations which willenable them to achieve a "firm and enduring peace"
and which are inspired by a "sincere friendship". While fully binding, these
obligations are also formulated in terms which are general: indeed, Article 1does
not give specificdetails as to exactlywhat conduct is prescribed or forbidden. No
further details on this matter appear in any other Articles of the Treaty either. It
follows that, in order to identify concretely the content of these obligations, it is
necessary to interpret Article 1 using the relevant methods and principles
described in the preceding Chapter. In particular, reference must be made tothe
object and purpose of the Treaty and to itscontext.
2. The obiect and pumse of the Treatv in the lirrhtof its
Preamble
3.25 It is obvious that a treaty of amity does not merely have the
political object, however important, of strengthening friendly bonds between two
States. The myriad of goals pursued, in particular with regard to the955Treaty,
is well spelled out in the Preamble, where the Parties clearly expressed their
intent-
between their peoples, of reaffirming the high principles in theed
regulation of human affairs to which they are committed, of
encouraçing mutually beneficial trade and investments and close
economic intercourse generally between their peoples, and of
regulating consular relation....". 3.26 This listof goals iseffectivelya list of the matters covered by
the Treaty. Indeed, each element of the list introduces a corresponding group of
provisions. As to the first of the goals referred to, this is translated into the
obligations set out in Article 1. In other words, the desire of the Contracting
Parties to "emphasize" their friendly relations, which appears in the Preamble,
does not represent a simple declaration of intent without precise legal effect. On
the contrary, it expresses the essential reason which led the Parties to enter into
the obligation to behave in a friendly and peaceful manner in their mutual
relations.
3.27 It must be noted that in3e majority of bilateral treaties of
amity concluded by the United States with other States the Preamble frequently
refers to friendly relations as the purpose of the treaty210. By contrast, it is very
rare to find provisions in the main body of these treaties obliging States party to
the treaty tcibehave in a peaceful and friendly manner In their mutual relations.
The research carried out by Iran on this subject both in the specialized literature
and in the collections of treaties entered into by the United States with other
States, has revealed that, among the roughly two-dozen treaties of friendship
signed after 1945,only three contain a provision similar to that of Article 1of the
1955Treaty between Iran and the United States. The first of these treaties is the
Treaty of Friendship, Commerce and Navigation between China and the United
States of4 November 1946,Article I(1) of whichreads as follows:
"There shall 6e constant peace and firm and lasting friendship
between the Republic of China and the United States of
America21 l."
3.28 The second treaty isthat with Ethiopia of 7September 1951,
Article 1of whichstipulates:
"There shall be constant peace and finn and la~fiygfriendship
between the United States of Arnerica and Ethiopia .
-Sçc, Wilson. R.R.op. a, p. 25;Walker, H.:'U.S.CommercialTrcaties Todaymi.n
Dcener, D.R. (cd.): Dc Lem Pactorum, Essavs in Honour of R.R. Wilson, Duke
UniversilyPrcss1970pp. 266g scq.
21 ' 25 U.N.T.S.90(1949).ExhihitW.
2'2 UnitcdStaics Trwties andOther IntçrnationalArreements,Vol. 4, Part2.1p.2137.
ExhihitIO().Finally, there is the Treaty of Arnity, Econornic Relations and Consular Rights
between the United States and the Sultanate of Muscat and Oman, whose Article
1states:
'There shall be firm and enduring peace and sincere friendship
between the United States ofAqierica and the Sultanate of Muscat,
andOman and Dependencies ."
3.29 It must be concluded that normally, when concluding a
treaty of amity, the United States agrees to undertake precise obligations onlyin
relation to specific fields havingan economic, commercial or consular character.
These treaties mention friendly relations in the preamble, not to increase further
the parties' burden of obligations resulting from the specific provisions of the
treaty, but solely in order to indicate the underlying purpose which inspires the
treaty as a whole. Only in certain cases does the United States agree to
undertake, in addition to the specific obligationsfrequent in this kind of treaty,
broader obligations in the field of peacefuland friendlyrelations. This isprecisely
so in the case of the 1955 Treaty, Article 1of whichtranslates into real obligations
distinct from those set forth in other treaties where the fundamental purpose of
ainity appears only in the Preamble and in the title of the Treaty.
3. The "contextual"interpretation of Article1 of the 1955
Treatv:the obli~ationof the Parties to behavepeacefullv in
theirmutualrelations
3.30 It remains to examine the precise obligations resulting for
the Parties under the terms of Article 1of the Treaty, which succinctlystates that
the Parties undertake to conduct their mutual relations in a peaceful and friendly
manner. In the lightof what Iran observed in the preceding Chapter, it isevident
that reference must be made to general international law, as well as to other
treaties in force between the Parties, in order to interpret the terms appearing in
the Article in question.
*13 380 U.N.T.S. 196(1960). Exhibit101. Thiskindof provisionfindsa precedeinArticle
1of theTreatybetweenthe UnitedStatesandFranceof 30 September1800,whichreads:
"There shallbe a firm, inviolableand universalpeace. and a (rue and sincere
friendshipbetween theFrenchRepublicand the United Statesof America.and
between lheirrespectivecouniries,territories,citics. towns,andpeople, without
exceptionof personor places."
Sec, Trcatics,onvcntions, InicrnationaiAcrs,Proiocols and Aprccmcntsbetwecn the
United States of America and other Powers, 1776-1969,compilcd by Malloy, W.M.,
W:rshingion,GovcrnmcntPriniingOffice,Voi. 1, 191O;p. 496Exhihit102. 3.31 The content of the obligation according to which "there shall
be firm and enduring peace" between the Parties is straightfomard. Article 1
cannot have any other sense than that of obliging the Parties in their mutual
relations to respect the rules of customary and treaty law prohibiting the threat
and use of force in international relations, except in cases of lawful self-defence
resulting from Article 1, paragraph 4, and Article 51 of the United Nations
Charter. Under the terms of Article 1,therefore, the violation by one Party of
these rules in its relations with the other Party represents at the same time a
violation of the 1955Treaty.
4. The "contextual"interpretation of Article 1 of the 1955
Treatv:the obligationof the Parties to conduct their mutual
relations in a friendlvmanner
3.32 As to the obligation according to which "there shall be ...
sincere friendship" between the Parties, contemporary international law permits
its content to be identified without much difficulty. Undoubtedly, the most
authoritative interpretation of the content of the obligation forStates to maintain
relations based on "sincere friendship" can be found in the Declaration of the
General Assembly of the United Nations on Principles of International Law
concerning Friendly Relations and Cooperation among States in accordance with
the Charter of the United Nations (Resolution 2625(XXV)) adopted in 1970214.
3.33 This proposition is non-controversial in as much as the
Court itself has recognised on a number of occasionsthat Resolution 2625reflects
the opinio iuris of States concerning what the General Assembly itself has called
''basicprinciples" of international law215. In the Nicaragua (Merits) Judgment,
for example, the Court repeatedly insistedon this point by stressing that -
"..(t)he effect of consent to the text of such resolutions ...may be
understood as an acceptance of the validity of the rule or set of
rules declared bythe resolution ....611
214 The Resolution is reproduccdinExhib103.
21s See, for examplc. Militan and PararnilitawActiviiies in and againsi Nicaragua
/Niwraeua v.Unitcd Siatcs of Arnerica),Merits,Judpmcnt,I.C.J.Rep1986 , p.100,
-t seq.,andin particular,paras.1RY191.
216 M., p.100.para.IRY 3.34 Particularly relevant is the following passage of the
Nicaragua Judgment which deserves to be cited extenso, since the Court there
gave a summary of its opinion on the legalvalue of the ~eclaration and its role in
the identification of the rules concerning friendlyrelations amongStates:
'Texts like these, in relation to which the Court has pointed to the
customary content of certain provisions such as the principles of the
non-use of force and non-intervention, envisage the relations
among States having different political, economic and social
systems on the basis of coexistence among their various ideologies;
the United States not onlyvoiced no O ection to their adoption but
took an active part in bringing itabout 917."
3.35 In short, Resolution 2625 draws a comprehensivepicture of
the principles and rules of general international law, compliance with which is
generally recognised as necessary in order to qualify relations between States as
friendly. It is thus reasonable to think that these principles and rules underlay the
object of the provisions appearing in Article 1 of the Treaty of Amity, which
require the Parties to maintain relations based on "sincerefriendship".
3.36 It must be made clear immediately that the fact that
Resolution 2625 was adopted after the 1955Treaty came into force does not
detract from the force of this argument. This isso for two reasons.
3.37 The fïrst isthat in 1970the General Assembly didnot create
-- nihilo the principles which it solemnly proclaimed: it recognised the validity,
specified the scope, developed the implications and stressed the fundamental
importance of principles which were already in force, resulting, for the most part,
from the Charter of the United ~ations~'~.
*17 W., p.133.para. 264.
*lX In this respecsec .or example.Jiménezde Aréchaga, E.:"International Lawin the Pas1
Third of a Century", Recueil des Cours de 1'Acadtmiede Droit International, 159,
1978,1,p. 1,at p. 32, who, after havingstressed that Resolution"..was adopted on
24 October 1970byacclamation and without a dissentingvote",continues as follows:
"..ir seems difficult to deny the legal weight and authority of the Declaration
both as a resolution recognizingwhat the Members themselves believeconstitute
existinrules of customary law and as an interprctation of the Charter by the
suhséqucntagreement and the suhsequent practice ofal1its members."
7ee, also, Virally. M.: "Les actcî unilatéraux des Organisations internationales", in
Bcdjaoui, M. (cd.)Droit inlernational, bilanprospectivesUNESCO, 1911, Vol. 1,p.
275;and Dupuy, P.-M.: Droit international public, Paris, D1W2,zpp. 281,g scq. 3.38 The second relates to the concept already referred to,
according to which the meaning of a rule formulated in general terms, and not
limited as to its duration, is not fixedand unchangeable but evolvesin accordance
with the evolution of the legal environment. In other words, the terms "sincere
friendship" that appear in Article 1of the Treaty must not be interpreted in the
lightof international lawin force in 1955but in the lightof the law existingtoday.
3.39
In this respect, one may recall the dictum of the Court in its
AdvisoryOpinion in the South West Africa case, according to which -
"..an international instrument has to be interpreted and applied
within the framework of t e entire legal system prevailing at the
time of the interpretation21?."
The Court evoked this principle in that case in order to support the conclusion
that the concepts embodied in Article 22 of the Covenant of the League of
Nations "..were not static, butwere bydefinition evo~utiona$~()".
3.40 In its Judgment of 19 December 1978 in the Aegean Sea
Continental Shelf case, in dealing with the interpretation of an expression which
had a "general character" (in that case. the expression "territorial status"), the
Court again insistedonthe idea that "..the presumption necessarilyarises that its
meaning was intended to fo!lowthe evolution of the law and to correspond with
22111
the meaning attached to the expression by the law in force at any given time .
The Court went on to state that such expressions did not have "..a fixed content
regardless of the subsequent evolution of international law", and "...must be
interpreted in accordance with the rules of international law as they exist today,
and not as they existed in 1931~~~".
3.41 In the light of these precedents, the meaning of the
provisions ofthe Treaty of Arnity,in particular the provisions set out in Article 1
.
Leeal Conscqucnccsfor Statcs of thc Continucd Prescnceof South Africa in Namibia
JOpinion, I.C.J.Reports 1971,p.31, para.tyCouncilResolution 276(1970),Advisory
220 -Ihid.
221 Actean ScaContincnialShelf.Judirnent.I.C.J.Reports 1978,p.22. para.77.
222 m., andpp.33-34, para80.thereof, should not be conceived of as immutable. Rather such provisions must
be interpreted and applied in the lightand context of the present legalsetting.
3.42 Among the principles relating to friendly relations
proclaimed by Resolution 2625,it remains to be seen which are the most relevant
to the present case. In this connection, it is a question above al1 of those
principles concerning the prohibition of the threat and use of force, which,as has
been seen, Article 1reflects by means of its reference to the obligation of the
Parties to entertain peaceful relations. Here, two principles stressed by
Resolution 2625are particularly relevant.
3.43 The first principle is that which defines a war of aggression
as a "crimeagainst the peace, for which there is responsibilityunder international
law". By reference to this principle, it can be maintained that each Party to the
Treaty of Amity has, in case of aggression against the other Party by a third State,
at a very minimum the obligation not to support the latter's action, but rather to
refrain from the threat or use of force as a means of solving international
disputes.
3.44 The second establishes that "States have a duty to refrain
from acts of reprisa1 involving the use of force". This principle has the
consequence that, except in the case of lawful self-defence, the use of force as
retaliation is prohibited even for a State which has previously been the victirnof
the use of force.
3.45 In addition to the principles relating to the use of force,
Resolution 2625 underlines the importance of the principle that States should
"live together in peace with one another as good neighbours" and the principle
according to which "No State may use or encourage the use of economic, political
or any other type of measures to coerce another State in order to obtain from it
the subordination of the exercise of its sovereign rights and to secure from it
advantages of any kind". In this context, a Party to the 1955 Treaty violates
Article 1if ittakes measures against the other aimed at preventing the use of its
sovereign riçht of lawfulself-defenceagainst aggression bya third Party.
3.46 The ahove mentioned principle isonlyone of the corollaries
of the more general rule of non-intervention, according to which - as stressed by
Resolution 2625 -"No State or group of States has the right to intervene, directlyor indirectly, for any reason whatever, in the internal or extemal affairsof any
other State". It isobvious that compliance with this principle is a conditiosine
quanon of friendly relations amongst States. The importance of this principle, in
so far as the relations between Iran and the United States are concemed, has
been specificallyconfirmed by the Algiers Declaration of 19January 1981,which
in Point1of the General Declaration, Statesas follows:
"POINT 1:NON-INTERVENTION IN IRANIAN AFFAIRS
1. The United States pledges that it is and from now on willbe
the pcilicy of the United States not to intervene, d'rectly or
indirectly,politicallyor militarily,in Iran's internal affa.rs
By this Declaration, the United States solemnly recognised, through a treaty
committment, that its relations with Iran must be based on the strict observance
of the principle of non-intervention. Such recognition clearly contributes to the
identification of the obligations undertaken by the United Statesunder Article 1
of the 1955Treaty.
3.47 The Algiers Declarations are also signifiant because, as
stated in the preamble of the General Declaration, their aim was to arrive at a
mutually acceptable resolution of the crisis in the relations between the two
tat tes'* ^ .us, with effect from January 1981, the disputes arising out of the
events of 1979were solved and the Parties' relations could continue on the basis
of the principles set out in the Treaty ofty.
SECTIO BN TheApplicationof Article1
1. The generalattitudeadopted bv the UnitedStates in favour
of Iraq,the aegressorState,and against Iran,the victim of
aggression,was in itself a violation of Article1of the 1955
Treatv
3.48 Undoubtedly, the general attitude adopted by the United
States towards the war of aggression started by Iraq in 1980 against Iran, as
analysed in Chapter III of Part 1 above, flagrantly violated the United States'
obligations under the terms of Article 1of the Treaty and general international
law. In its support for Iraq, an aggressor State as recognized by the United
Naticinsitself'and in ohstructing the actions taken in lawful self-defence by Iran,
**' 9ec ]Iran-U.S.C.T.R.,p.4.
224 Ihid.p.3.the victimof Iraq's aggression,the United States clearlyviolated the pnnciples of
international law concerning fnendly relations described above, and thus
committed a violation of treaty obligations resultingfrom Article 1of the1955
Treaty.
3.49
In its Application,Iran has not entrusted the Court with a
broad dispute bearing on the global responsibilityof the United States towards
Iran owing to the general position and actions adopted by the United States
during the war started by Iraq in1980. However, these broader aspects of the
matter are invokedin order to place the U.S. militaryactions of1987 and 1988,
whichdoform the objectofthe present dispute,intheir proper context.
2. The actions of the U.S. armed forces in 1987 and 1988
aeainst Iran's oil platforms violated Article1 of the 1955
Treatv
3.50 The actions of the U.S. arrned forces to which Iran's
Applicationrefers, and whichhavebeen descnbed in detail in Chapter IVofPart
1,are unquestionabiyattributable to the United States sincetheyrepresentacts of
military organs of that State acting in their officia1 capacity. Since they
constituted a use of force against Iran, and took place in areas within Iran's
jurisdiction(on Iran'scontinental shelf andwithinits ExclusiveEconomicZone),
these actionsviolated the obligationsof the United States towards Iran resulting
from general international-1awand from Article 1 of the 1955 Treaty. With
respect to the Treaty, such actions were prima facie incompatible with the
obligation undertaken by the United States to maintain peaceful and friendly
relationswithIran.
3.51 In Part1,Iran referred to officia1documents addressed by
both Iran and the United States to the United Nations Secunty Council in
connection with the attacks in question. An analysisof these documentsshows
that the positionsof Iran and the United States do not differs to the @llowing
facts:
(a) BcithIran and the United States recognisethat the attacksin
question took place on the dates indicated and that they
resultedin the damage and destruction of several Iranian
platforms as describein Part 1above; (b) Both Iran and the United States recognise that the attacks in
question were attributable tothe United States;
(c) Both Iran and the United States recognise that the attacks in
question represented a use of force by the United States
against Iran.
3.52 Subject to what will be shown in the course of the present
proceedings, Iran considers thatthese documents also implythat the onlypoint of
disagreement between the two States centers on the legal characterization of the
U.S. actions in destroying the oil platforms in question. The issue is whether the
U.S. actions were illegal under applicable international law or, as the United
States has argued before the Security Council and Iran has disputed, they were
justified as measures of lawful self-defence. This question will be dealt with in
Part IV below. For present purposes, it suffices to note that by invoking self-
defence to justify its actions, the United States clearly acknowledges that the facts
in question did indeed occur and admits that it used force against Irana use of
force which the United States would be forced to recognise asnlawfulifthe U.S.
plea of self-defence were judged to be unjustified in the present case. As the
Court has observed in this respect
"..the normal purpose of an invocation of self-defence is to justify
conduct which would otherwise be wrongful. If advanced as a
justification in itself, not coupled with a denial of the conduct
alleged, it may well implyboth an admission of that conduct, and of
the wrongfulness of that conduct in the absence of the justification
of se~f-defence~~~.''
CHAPTERIII THEINTERPRETATION ANDAPPLICATIONOF
ARTICLE IV(1)
SECTIO AN
The InterpretationofArticleN(1)
3.53 The Treaty of Arnitycontains a number of provisions in the
economic field protecting personal interests, property and the activities of
nationals of each of the High Contracting Parties. In general, the guarantees
provided for are those that each Party undertakes to grant in its own territory to
the nationals of the other or to their economic or other interests. However, the
terms of ArticleIV(1) are different. This Article reads as follows:
225 Militaw and PararniliiawAciivitics in and againstNicaraeua(Nicaraguav. United States
of Americal, Mcrits,Jud~mcnt,I.C.J.Rcp1986p. 45, par74. "Each High Contracting Party shall at al1 times accord fair and
equitable treatment to nationals and companies of the other High
Contracting Party, and to their property and enterprises; shall
refrain from applying unreasonable or discriminatory measures that
would impair their legally acquired rights and interests; and shall
assure that their lawful contractual rights are afforded effective
means of enforcement, inconformitywith the applicable laws."
3.54 It willbe noted that there is no limitation ration]ociin this
clause, whether for the obligation that it imposes on the Parties to treat the
nationals of the other and their property in a fair and equitable manner, or for the
prohibition against submitting such nationals to unreasonable or discriminatory
measures. This is not surprising, since Article IV is a general clause conceming
the global protection of persons and property. In other words, Article IV(1)
introduces the specific provisions appearing elsewhere in the Treaty relating to
economic relations and sets forth the general principles which apply to these
specificareas.
3.55 It is thus perfectly understandable that Article IV(1) obliges
the Parties to maintain the favourable attitude provided for therein in al1
situations in which the exercise of State powers may affect the interests of the
other Party wherever these interests are situated. Thus, for Instance, the
provisions of Article IV(1) must be taken into account by each Party in adopting
measures, legislative or otherwise, which produce extra-territorial effects, and
which are thus capable of affecting the interests of the other Party's.nationals
situated outside the territory of the State adopting the measures. This would be
the case, for example, with respect to measures in the field of exchange
restrictions, for which Article VI1 establishes a precise regime in application of
the ieneral principle established in Article IV(1). This would also be the case for
the provisions relating to importation of goods (Article VIII), since unfair,
unreasonable or discriminatory measures inthis field would also cause damage to
economic interests situated outside of national territory.
3.56 In the light of these considerations, it must be concluded
that the general obligations provided for in Article IV(1) of the 1955Treaty apply
every time that one of the contractingParties isin a position to exert State powers
over the nationals or property of the other, whether within or without national
territory. A fortiori, the armed forces of a State acting outside of their national
territory are subject to theame leçal constraints. 3.57 As to the content of the obligations provided for by Article
IV, this must be determined on the basis of notions of "fair and equitable
treatment" and of "unreasonable or discriminatory measures".
Since these
concepts refer to equity, reasonableness and fairness, they cannot be analysed in
the abstract, but ratherepend on an evaluation which must be carried out in the
light of the circumstances of each case. In Iran's submission,f it is difficultto go
beyond an abstract interpretation of ArticleIV(l), it is unquestionable that, at a
minimum, measures adopted byone Party against the property of nationals of the
other that are unlawful under international law are fundamentally incompatible
with the provisionsof ArticleIV(1).
SECTIO BN TheApplicationofArticleN(1)
3.58 The military actions taken by the United States against
Iran's oil platforms and facilities in 1987 and 1988 killed and injured Iranian
nationals, both military and civilian personnel, protected under Article IV(1).
The attacks also damaged and destroyed Iranian property falling unquestionably
under the protection of Article IV(1). since this belonged to an Iranian Company,
the National Iranian OilCompany. It isequally unquestionable that these actions
were (i) no1consistent with the principle of fair and equitable treatment; and (ii)
were unreasonable and discriminatory measures against persons and property
that impaired legallyacquired rightsand interests.
3.59 A prïofi, the illegal useof armed force by the United States
in the October 1987 and April 1988 attacks must be considered as measures
prohibited by ArticleIV(1). It cannot be argued that unlawfulmeasures conform
to the provisions of Article IV(1): in other words, measures taken by a
ContractingParty inviolation of either a provision of the Treaty of Arnitytself or
general international law,and affecting the nationals and companies of the other,
as well as their property, are by definition unfair and inequitable and represent
unreasonable and discriminatory measures. Iran has shown in Chapter II of this
Part that the U.S. actions which are theubject qf this case were illegalunder the
terms of the Treaty and general international law, subject to the existence of a
justification based onlawfulself-defence - a matter which is taken up in Part IV
below. If, as Iran submits, the Court concludes that no such justification exists
and that the U.S. actions were violations of the rules on the use of force and
friendly relations among States retlected in the provisions of Article 1 of the
Treaty of Arnity,itis Iran'sviewtliat the United States would also have to be held
to have violated the provisionsof Article IV(1). 3.60 However, even if hypothetically the Court concluded that
the actions of the U.S. armed forces did notviolate Article 1 of the Treaty, it
would still have to verify to what extent these actions were in conflict with Article
IV(1). An unlawful measure is per se unfair, inequitable and unreasonable and
thus a violation of Article IV(1);but a lawfulmeasure can also be qualified in the
same way, for example if it is excessive, too strict, too extreme, or if the goal
pursued could be obtained by other,less damaging means. Iran submits that the
complete destruction of property vital for a State's economy, and not used for
agressive purposes, constitutes in and of itself an inequitable and unfair
measure. That the action was unreasonable and discriminatory can be seen -mo
the totally different U.S. reaction to Iraqi attacks, in particular the Iraqi attack on
the Stark.
CHAPTERIV THEINTERPRETATION ANDAPPLICATIONOF
ARTICLE X(1)
SECTIO AN TheInterpretationofArticle X(1)
3.61 ArticleX(l) contains ageneral formula, short but striking,
relating to the freedom of commerce and navigation, whichisdrafted as follows:
"Between the territories of the two High Contracting Parties there
shall be freedom of commerceand navigation."
3.62 In the 'present case, it is freedom of commerce that comes
principally into play. Two questions are of special relevance here: the first
concerns the interpretation of the term "freedom of commerce"; the second bears
on the meaning of the words "between the territories of the High Contracting
Parties".
3.63 As to the first question, one must start from the notion of
commerce itself. Commerce has been defined as -
"intercourse by way of trade and traffic between different peoples
or States and the citizens or inhabitants thereof, including not only
the purchase, sale, and exchange of commodities, but also the
instrumentalities and açencies by which it is promoted and the
means and appliances by which it is carried on, and the traygortation of persons as wellas of goods, both by land and by
sea ."
Under the terms ofArticleX(l j,the Parties undertookto allowthe free exchange
of goods and services: &, they have subscribedto the obligationnot to subinit
such exchangeto obstacles, restrictionsor other types of constraints both direct
and indirect.
3.64 However, itwouldbe excessivelyrestrictiveto take the view
that freedom of commerce could only be affected by measures obstructing
exclusivelythe sale and distributionof goods. The veryfact ofpreventing goods
from reaching the stage of sale. by intervening in a previous phase through
coerciveor restrictivemeasures, equallyrepresents a violationof the freedom of
commerce. In other words,suchaviolationcouldbe caused byobstaclesblocking
any of the processes of production, packaging,stockage,carriage or distribution
of goods, and not onlyduring the final part of this process. It followsthat there
wouldhe a violationoffreedom ofcommerce ifthe companiesof one Partywere
prevented by the other Party from producinggoods destined for commerce and
export.
3.65 A clear confirmationof the validityof this analysis,isfound
in the Court's 1956Judgment in the Nicaraeua case. In paragraph 11 of the
dis~ositif,the Court held that the attacks launched by the United States against
Nicaraguan territory, and-not just the ~nited States' general trade embargo
against Nicaragua,constituted a violation ofthe obligations arising fromArticle
XIX(1 ofthe Treaty ofAmitybetween the twoStates (whichcontainsexactlythe
same languageasArticleX(l) ofthe 1955TreatywithIran). The attacksreferred
to had been carried out against an underwater oil pipeline and an oil terminal
(Puerto Sandino, 13 September and 14 October 19831,an oil storage tank
containing millions of gallons of fuel (Corinto, 10 October 1953) and an oil
storage ficility (San Juan del Sur,7March 1954). This clearly impliesthat the
Court endorsed the position according to which the protection of freedom of
commerce also covers the production of goods destined for commercial
exploitationbeforethe sale and distributionstage.
-ee, Black'sLawDictionary,revised4th 1968,West PublishingCompany.St. Paul.
Minn..pp.336-337. which contaiasnumber OC veq broaddelinitions of commerce
adoptedhyU.S.Courts. 3.66 As to the second question, the Nicaragua case qain
providesrelevant guidance. In interpreting the phrase "betweenthe territorieof
the High Contracting Parties" appearing in Article X(1), the Court held that"...
the mining of the Nicaraguan ports by the United States, is in manifest
contradiction with the freedom of navigation and commerce guaranteed by
Article XIX. paragraph 1.of the 1956 ~reaty~~~".In reaching this decision.the
Court was not concerned to verifLwhether the obstacles to commerce and
navigation caused by the attacks on the oil terininals and other facilities
mentioned above, and the miningof Nicaragua'sports, affected communications
between the territorv of Nicara~uaand that of the United States. Indeed, the
Court nowhere asked itselfwhether the oil in the terminal was destinedfor U.S.
compunies nor whether the shipssunk byAmerican minesor whichhad to avoid
stoppins at minedNicaraguan portswere directed towardsAmerican harboursor
came from the United States. It isclear that for the Court freedom ofcommerce,
as guaranteed both by ArticleXIX(1)of the Nicaragua-United States Treaty and
by its twin,Article X(1) of the Iran-United States Treaty, isaffected in substance
as soon as one Party causes harm to the commercialüctivitiesof the other. This
approach isperfectlylogicalsinceinthe majorityofcases it is impossibleto know
in advance to whom goods destined for commerce andexport willbe finallysold
or resold, inthe sarnewayas iisimpossibleto foresee inwhich.territorytheywill
ultimatelyarrive.
SECTIONB The ApplicationofArticle X(11
3.67 The actions of the U.S. armed forces in 1987 and 1988
clearly violated ArticlX(l) of the 1955Treaty since they destroyed important
petroleum installationsused byIran for the commercialexploitationof itsnaturcil
resources, whose sales proceeds represent the main resource of the country's
econorny.
3.68 It isalsosignificantthat the oilproduced fromthese oiltïelds
was assigned to supply sales under specificcontractual arrangements to specific
customers (for example. customers would buy a specific number of tons of
Salman crude, or Nasr crude). The destruction of the platforms necessarily
interrupted these contracts and thus prevented Iran from exercisingits freedom
ofcommerce.
227 MiliiarvandParamilitaAciivitiesin andaeainstNicaraeua(Nicav.UnitedStates
ofAmericaI,Meriis.Judement,.C.. evort19%. p.139,para278. 3.69 By their ver- nature, these installations were no less
important to Iranthan were the oil pipelines?terminals and facilitiesbelonging to
Nicaragua that were destroyed by U.S. attacks in 1983and 1984. Just as the U.S.
attacks in that case were held to be violations of the provisions of the U.S.-
Nicaragua treaty calling for freedom of commerce and navigation between the
two countries, so also are the United States' use of force against Iran's oil
platforms in breach of Article(l) of the 1955Treaty of Amity.
3.70 In each instance, fundamental economic and commercial
activities includingil production, storage and transportation were affected.
Subject to the demonstration that no justification exka Aich could exclude the
illegalityof the conduct in question (to be discussed in Part IV), this conduct
would thus entail the international responsibility of the United States towards
Iran, and would cal1 for the obligation to make reparation to Iran for al1the
damages, lossesand injuries whichthe United States has caused. PART N
THE LACKOFJUSTIFICATIONFOR THE U.S.CONDUCTIN
DESTROYING THE OILPLATFORMS
CHAPTER1 T'FIELAW
4.01 The armed attacks by U.S. naval forces on the Reshadat
complex in October 1987 and on the Nasr and Salman complexes in April 1988
were prima facieillegal acts, both by reference to the 1955Treaty of Amity and
the generalrules of international law. What needs to be considered therefore, is
whether the United Statescan justify this prima facie illegality, either under the
Treaty ofAmity or under general international law. This Chapter will deal with
the question of justification as aer of law, leaving to ChaptII the further
question of whether, on the facts, the United Statesbring its conduct within
the heads ofjustification recognised in law.
SECTIOAN Justification UndertheTreatvofAmitv
4.02 The United States has not attempted to advance such a
justification, so this issuee dealt withsummarily.
4.03 The Treaty contains a provision in Article XX(l)(d) which
reads as follows:
"1. The present Treaty shall not preclude the application of
measures:
(d) necessary to fulfill the obligations of a High Contracting
Party for the maintenance or restoration of international
peace and security, or necessarv to protect its essential
security interests." (Emphasis added.)
4.04 The only point to be made is that it is not possible for the
United Statesto arguethat, byirtue of the last phraitpossesses a justification
for measures which are a prima facie breach of the Treaty and whicholve theuse of force but go beyond measures in lawfulself-defence2?
4.05 The reason for this is apparent. The obligation irnposed on
al1Members under Article 2(4) of the Charter is an obligation forming part of the
jus cogens. In the course of its Judgment of 27 June 1986the Court noted that
this proposition was accepted bythe United States:
"The United States, in its Counter-Memorial on the questions of
jurisdiction and admissibility,found it material to quote the viewsof
scholars that this principle [theprohi it on of force] is a 'universal
norm' ..and a 'principleofjus cogens PU4..
4.06 It follows,therefore, that if the obligation of Article 2(4) is
jus cogens, itis not possible for the United States to invoke Article XX(l)(d) of
the Treaty of Arnity to justify conduct which is prima facie a breach of Article
2(4). The result is that in this case, because a use of force is involved, Article
XX(l)(d) cannot be invoked as a separate justification irrespective of the limits
on the use of force. The United States must justifj its conduct under the
conditions governing lawful self-defence precisely because Article XX(l)(d) has
to be construed as not authorising conduct prohibited byArticle Z(4).
4.07 This does not mean that the legality or illegalityof the U.S. . .
attacks is to be determined by general international law, and without reference to
the Treaty (and therefore falls outside the compromissory clause). ~oth the
prima facie illegality of the U.S. conduct and the scope of the exemption in
Article XX(l)(d) remain matters of treaty interpretation. It is simply that this
interpretation has to be made in the light of the ovemding principles of &
c0gens23~.
228 In Militarvand ParamilitaryActivities in and Aeainst Nicaragua(Nicaraeuav. United
StatesofAmerica).Merirs,Judgment,I.C.J.Revorts 1986pp.115-117,paras221-224,
and p. 130, para. 257, the Court dealtwith the wording of ArticlXXI of the
U.S./NicaraguaTreaty, identicalto the wordingof Article XX(l)(d) cited above. The
Courtawpted thar,whilsr the treatyprovisionmighrjustify counier-measuresother
than self-defence, once the use of force was involved, the measurcstaken undcr the
Treatywould havetobejusiifiedasself-defcnce.
22C) m., p. IO1para.1RI.
230 See, ibid.,p.541 (Diswniing Opinionof JudgeJennings),and p.253(Disseniing Opinion
ofJudgeOda). SECIIO N JustificationUnderGeneralInternational Law
1. TheUniteà States hasinvokeàthe rightof self-defence
4.08 Following the attack on the Reshadat complex on 19
October 1987,the United Statesreported these measures to the Security Council
by letter dated 19October 1987.The letter began as follows:
"In accordance with Article 51 of the Charter of the United
Nations, 1wish,on behalf of myGovernment,to report that United
States forces have exercised the inherent right of self-defence
under international law by taking defensive action in response to
attacks by the Islamic Re ublic of Iran against United States
vessels in the Persian ~ulf~q"
4.09 Followingthe attack in April 1988on the Nasr and Salman
complexes, the United States communicated to the Security Council by letter
dated 18April 1988in virtuallyidentical term~~~~.
4.10 It is clear, therefore, that the United States sought to justify
its armed attack on both occasions by reference to the right of self-defence. In
the section that follows it willbe necessary to set out the essentials for a plea of
self-defence so that, in the followingChapter, onecan examine whether, on the
facts, the actions of the United States were consistent withh a plea.
2. Theessential conditions fora pleaof lawfulselfdefence
4.11
The preclusion of the wrongfulness of an act of a State by a
lawful measure of self-defence is well-established and is reflected in Article 34 of
the 1980 draft Articles on the Law of State Responsibility, prepared by the
InternationalLaw ~ommission~~.
4.12 The conditionsfor a valid plea of self-defence are, however,
a differentmatter. These can only be formulated on the basis of State practice,
especially practice under the U.N. Charter, of judicial decisions such as the
231 Exhibi73.
232 ExhibitW. The additionalsentencesiatcd that the aciions takenwere "ncce...ryand
proportionaieto the threatposedbysuchhostile Iranianactions".
233 See,Yearbookof IIicIniernaiioLaw Commission,1980,VolII,PartTwo,p.33.Court's Judgment of 27 June 1986~~~and an extensive literatureD5. These
conditions appear to be the following.
(a) Thata priordelictshouldhavebeencommittedagainstthe
Stateinvokingself-defencebvthe"ageressor" State
4.13 In al1 legal systems, self-defenee Is a reaction to unlawful
conduct. There cannot be a legal right to self-defence against lawful conduct.
Just as in municipal law there is no right of self-defence against the exercise of a
lawful power of arrest, so, too, in international law a State cannot invoke self-
defence against measures which are lawfullyauthorised sanctions (for example,
measures properly authorised under Chapter VI1of the Charter) or measures
which are themselves lawful self-defence, or the lawful exercise of rights of visit
and search.
4.14 The proposition does not appear controversial. Asstated by
Roberto Ago, as Rapporteur to the I.L.C.on the topic of State responsibility:
234
Militam and Paramilitary Activities in and against Nicaragua (Nicaragua v.United States
of America). Merits. Judement, 1.C.J.Reports 1986,pp. 14.
235 See. inter alios, Waldock, CH.M.: The Regulation of the Use of Force by Individual
States in International Law", Recueil des Cours de l'Académiede Droit international,
Vol. 81, 1952,II, pp. 451-515;McDougal, M.S.and Feliciano, F.S.: "LegalRegulation of
Resort to International Coercion, Agression and Self-Defence, in Policy Perspective",
Yale Law Journal, Vol.68,1958-9,pp. 1057-1165;Brownlie, L: InternationaLaw and
the Use of Force bvStates, Oxford, 1%3, pp. 214-,NB;DelivanJ.:La légitimeddfense
en droit international public moderne (le droit internationalà ses limites), Paris,
1971;Schwebel,S.: "Agression, Intervention and Self-Defense in Modem International
Law", Recueil des Cours de I'Acaddmiede Droit international, Vol. 136, 1972,II, pp.
411-497; Lamberti Zanardi, P.:La legittima difesa ne1 diritto internazionale, Milano,
1972; Zourek, J.:"La notion de legitime défenseen droit international", .hnuaire de
l'Institut de Droit International, 1975,pp. 1-69;Taoka, R.: The Right of Self-Defencein
International Law, Osaka, 1978; Ago, R.: Addendum to the Eighth Report on State
Responsibility, Doc. A/CN.4/318/Add. 5-7, in Yearbook of the International Law
Commission, 1980, Vol. II, Part One, pp. 51-70, paras. 82-124; Cassese, A:
"Commeniaire à I'articlc51".in Coi, J. and PeA.(ed.):La Charte des Nations Unies,
Paris, 1985,pp. 769-794; Comhacau.J.: "TheException of Self-Defencein U.N.Practice",
in Cassese, A (cd.)The Current LegalRequlation of the Use of Force, Martinus Nijhoff
Publishers, Dordrecht, Boston, Lancaster, 1986,pp. 9-38; Dinstein, Y.: War, Amression
and Self-Defence, Grotius Publications Limited, Cambridge, 19%; Sicilianos, LA:
réactions décenrtalish à l'illicite, Paris, 1Y90,pp. 291-335; Arangio-Ruiz, G.: Third
Report on Siaie Responsihility. Doc. A/CN.4/440,Add.1, 14June 1991to be puhlished
Yearhook of the International LawCommission,Vol. 11,Part 2, pp. 10-12. "L'étatde légitimedéfenseest la situation dans laquelle un Etat se
trouve placé du fait d'une at a Le a1mée, dirigée contre lui, en
violation du droit international .
4.15 The analysis of the situation where the State resorting to
force invokes collective self-defence, and where the delict has been committed
directly against some other victim State obviously becomes more complicated.
The victim State must declare that it is the victim of an aggression. In addition,
the State actually using force in collective self-defence must demonstrate a
request for assistance from the actual victim,so that by virtue of that request the
State invoking collective self-defence might be said to be entitled to treat the
violation of the victim State's rights as a violation of its own rightsB7 Or the
State invoking collectiveself-defence might be able to show that, by reason of the
attack on the victimState. its ownsecuritywas in fact enda~~gered~'~.
4.16 But this more complicated situation does not arise in the
present case hecause the United States relies on attacks by U.S. vessels, and not
on collective self-defen~e~~'.
(b) That the prior delict should take the form of an "armed
attack"
4.17 The limitation of the right of self-defence to situations in
which the delict takes the form of an armed attack emerges clearly from the
Charter and the Court'sJudgment of 27 June 1986.
236
Ago, R.: Eighth Report on State ResponsibilOJ.,., p.53, para. 87, ans, also,
para.%. The officialEnglish translation reads:
"The Statefinds itself in a position of self-defence when il is confronted by an
armed attack against itself in hreach of international law."
237 Militaw and Paramilitary Activitiesin and against Nicarapua (Nicarapua v. United States
of America), Mcrits,Jud~mcnt, I.C.J.Repo1986,p.105,para.199.
23X Scç, hr cxamplc. Bowctt, D.W.: Self-dcfcnce in International Law, Manchester
University PrcsIYSX,pp.202-207.237-24s; but this isa minorityview.
239 Sec, the letter hythc United States of 19 Octoher 1987(Exhibit 73). rcfcrring to "attacks
..açainst Unilcd States vcssels in thc Persian Gulf'; and the let18rApril 1988
(Exhihi90),refcrring to "anatta..against a United States navalve...". "The exercise of the nght of colle t've selfdefence presupposes
that an armed attack has occurred ... .I
"In the case of individual self-defence, the exercise of this right is
subject to the State concerned having been the victimof an armed
atta~k~~."
(c) That there shouldbe an immediate necessitvto act, leaving
the State invokingself-defencewithno alternativemeansof
protection
4.18 This condition of lawful self-defence was reflected in the
statement of U.S. Secretary of State Webster, in the celebrated Caroline case,
regarded asthe locus classicusof the customary right of ~elf-defence~~~.
4.19 The same condition was formulated by Roberto Ago in
these terms:
"En soulignant l'exigencedu caractère nécessairede l'actionmenée
en état de Iégitimedéfense,on veut insister sur le point que 1'Etat
agressé(ou menacéd'agressionimminente si l'onadmet la légitime
dBfense preventive) ne doit en I'occurencepas avoir eu de moyen
autre d'arrêterl'agression que le recours a l'emploi de la force
armée243 II
(d) That the measures taken in self-defence must be
proportionateandlimitedto thenecessitiesofthecase
4.20 This condition, too, appears to be beyond any controversy.
Asthe Court has stated, there existsin customary lawa -
240 Militarvand ParamilitarvActivitiesinandagainstNicaragua (Nicarav.UnitedStates
of Americal, Merits. Judgment. I.C.J. Re~o1986, p.120, para. 232 The.question
whether the attack must be "actual",pposed to "imminent"-and whether thisgives
riseto a rightof "anticipatory" self-deasnnot decidebythe Court,sinceitdid not
ariseon the factM., p.103,para.194.
241 G., p. 103para.195.
242 Britishand Foreign State Papers, Vol. XXX,201: Webstercalledon Britain10
show a "necessityofself-defe..instant,overwhelming,and leavingnochoie ofmeans
and no momentfordeliberation". Exhibi104.
243 Ag0, R.:«p. a. p,.69,para.120(emphasisin original). TheofficialEnglishiranslaiion
reads:
"The rcason for stressingthat action takcn in self-defencemust be necessan!is
that the State attacked (or thrcatened with imminent attack,if one admils
preventiveself-defence)must not, in the particularcircumstances,have hadany
meansof haltingtheattackother than recourselo armedforcc." "..specific rule whereby self-defence would warrant only measures
which are pro~ortional to the armed attack and necessarv to -.l --
res ond to 'it,â rule well-established in customary international
law944.81
'The Parties also agree in holding that whether the response to the
attack is lawful depends on observance of the criteria of the
necessity4?nd the proportionality of the measures taken in self-
defence ."
4.21 The concept of proportionality suggests an equation. On
the one side of this question is the action taken in self-defence. But on the other
side of the equation there are two possibilities: either the size and scope of the
aggression,or the actual needs of self-defence. It was the singular contribution of
Roberto Ago's study that he insisted that self-defence must be proportionate @
the latter. Thus, it was not a question of proportionality measured against the
delict, but rather of proportionalityn terms of taking measures to halt and repel
the attack, andthus protect the object that has been attacked:
"L'exigencedite de la proportionnalité de l'action commiseen état
de légitimedéfensea trait, nous l'avonsdit, au rapport entre cette
action et le but qu'elle se propose d'atteindre, à savo-nous ne le
repéterons jamais assez -d'arrêteret de repousser I'agression ..11
serait par contre erroné de croire que la proportionnalité doive
exister entre le com 946ilent constituant l'agression armée et
celui qu'on luioppose .
4.22 It follbws from this that proportionality, even when
conceived in relation to the needs of protection rather than the scale of the
attack, relates to two quite different elements of the measures taken in self-
defence, namely (i) the degree and form of the force to be used; and (ii) the
target chosen for the measures in self-defence.
** Militam and Paramilitam Activities in and aeainst Nicaragua (United Statv.
Nicaraeua),Merits,Judnment,I.C.J.Revorts1986,p.94,para.176.
245 W., p.101.para.194.
246 Ago. R.:OJ&a. NC NIRIX, Add. 5-7a<p. 69,para.121 (emphasisin original). The
officialEnglish translationrcads:
"Thercquircmentof the proportionalityof the action takenin sclf-defence,as
we have said. concerns the relationshipbetween that aclion and its purpose,
namcly -and thiscan ncverbc repeatedtoo of-ethatof halting andrepclling
the attack... II would bc mistaken, however, to think thai there must be
proportionalily bciween the conduct constituting the armed attack andthe
opposingconduct." The deeree and forrn of the force to be used
(i)
4.23 Thus, for example, a State reacting in self-defence to a
small-scale military incursion by land forces across its land frontier would not be
entitled to respond with overwhelming force (k, a counter-attack by several
divisionsagainst an infiltration bythree platoons)247. Nor would it be entitled to
use its navalforces against the naval units of the aggressor, if the aggressor State's
naval units had had no role in the land incursion.
(ii) The target chosen for the rneasures in self-defence
4.24 Thus, for example, whilst a counter-attack against the
invading militaryforce might be legitimate because it would be directlyrelated to
the protection of the State's territorial integrity against the militaryforces actually
violating that integrity, an attack on the aggressor's military bases in a quite
different part of the world would be illegitimate because directed at the wrone;
target.
' 4.25 A reflection of this requirement that legitimate measures in
self-defence must be addressed to the right target - to the source of the threat -
can be seen in the Court's treatment of U.S. attacks on Nicaraguan ports and
installations, including the mining of ports, in the Nicaragua (Merits) case. .The
Court regarded such attacki as unable to meet the criterion of necessitybecause
they could not be proportionate to the aid provided to the armed opposition
inside El Salvador by ~icara~ua~~. In other words, the mining, attacks on ports
and se~ected installations were the wrong target. The measures could not
therefore be proportionate and limited tothe necessities of the case.
4.26 Aswillbe seen later, the disriroportionality of the measures
taken will invariably indicate that the measures are in the nature of reprisals,
rather than self-defence.
247 Examplcs d a~ndcmnationhy the SccurityCouncil oflargc-scalemilitaryresponscto
minorillegaiacrsan hc sccn in SccurityCouncil Rcsolutions 75(1966)248 (1968);
and280 (1970).
24X Military and Paramilitarv Activitics in and acainst Nicaragua (United Statcv.
Nicrtraeua), criis.Juderncni,I.C.J. Rep1986,p. 122,para.237. (e) That the measures taken in selfdefence be immediately
re~orted tothe SecuritvCouncil
4.27 This obligation, clearlyspelt out in Article 51 of the Charter,
was accepted by the United States in so far as it reported to the SecurityCouncil
byletters of19October 1987and 18April 1988.
4.28 If these, then, are the conditions for lawful self-defence, it
has to be noted that certain of them- i.e p.i,r delict, need for proportionalit-
apply also to reprisals under the traditional, pre-Charter law. However, the post-
Charter treatment of armed reprisals serves todari@ what measures are properly
regarded as reprisals - and therefore unlawful - rather than self-defence. The
issue is of special relevance to the present case because, as willbe seen, the U.S.
actions in destroying Iran's offshore oilplatforms were in fact characterised by the
United States itself as reprisal actions rather than self-defence.
3. The distinction between lawful self-defence and unlawful
reprisals
4.29 The proposition that reprisals involvingthe use of force are
unlawful can be stated with confidence. In the words of theU.N. Declaration on
Principles of International Law concerning Friendly Relations, adopted in
General AssemblyResolution 2625 (XXV) on 24October 1970:
"Stateshave a-duty to refrain from acts of reprisa1involvingthe use
of force."
4.30 The distinction between lawful self-defence and unlawful
reprisals is not, however, freefrom diffi~ulq~~. The fore of the distinction is
believed to lie in the airn or purpose of the action taken. Essentially,self-defence
has a protective airn: in contrast, reprisals aim at retribution or punishment,
operating as a sanction against the wrong committed. Roberto Ago saw the
difference inthese terrns:
"Par contre, l'action consistant à infliger une sanction constitue
l'application ex post facto, à 1'Etat auteur d'un fait
internationalement illicite consommé de l'une des conséquences
possible rattachées par le droit international la commission d'un
fait de cette nature. Le propre de la sanction est d'avoir un but
24')
Sce, BowcilD.W. :ReprisaiInvolvingRccours10ArrnedForce",AmericanJournalof
InternationalLaw,ol. 66, 197pp.1-36and the substaniialliteraturecited in Arangio
Ruiz,G.:9.&I.,p.9. essentiellement afflictif ou répressif ... ou bien il peut être
accompagné de l'intention de donner un avertissement contre une
réBoti11on possible d'agissements comme ceux que l'on châtie
... .
Combacau takes essentially the same approach:
O...the State which carries out reprisals ...[tries]...to dissuade it
the other State], by a 'punitive'action, either from persisting in ...
the breach] or from reverting to it in the f ture; the aim is
therefore entirely foreign to that of self-defence 21 .II
4.31 Itis possible to identifj certain characteristics which denote --
that measures are punitive, and therefore reprisals, rather than protective, and
therefore self-defence. These characteristics, which are indicative only (and not,
per se, conclusive), appear to be the following:
(a) Timing
4.32 This is an obvious indication, for in the nature of things
measures of defence against an armed attack have to be undertaken during the
actual attack, or imrnediately prior to the attack (if one accepts the legality
of actions of anticipatory self-defence).If they are taken ex Dost facto, after the
event, they can scarcely serve as protection against that particular attack. As
Roberto Ago put it:
"Reste la troisième exigence, à savoir que la résistance par les
armes contre une agression armée intervienne immédiatement,
250 Ag0. R.: op.&. p. 54. para. 90 (emphasis in the origi:aand see, ibid., foocnote 215,
citing in support Waldock, Quadri, Bowett, Zanardi, Strupp, and Wengler. The official
English translation reads:
"Action taking thc forrn of a sanction on the ochcr hand involva the applicalion
ex post fiicto to the Statc cornrnitting thc intcrnaiional wrong of onc of the
possihlcconscqucnccs that intcrnational law attacha to the commission of an
act of tliis naturc. Thc pcculiarity of a sanction isthat its objcct is cssentially
puniiivc or rcprcssi..or clse it rnbc accompanicd bythe intention to givea
w:iriiing againsa possihlc rcpctiiion of conduct likc that which is hcing
punislicd...".
25 Colnhawii. J.: "The Exccpiion or Sclf-dcfcninU.N. Pritcticc" in Cassac, A. (cd.):
Currcni I~:ri;Rc~111;tiiof ihcUsc of Forcc, 01a. p.9.ai p.27. Exhihit105. c'est-à-dire lorsque l'act%2 agressive est encore en cours, et non
aprèsqu'elle soitterminée .
4.33 There may be circumstances in which the victim State has
experienced a series of attacks, and apprehends further attacks, so that the
measures taken, although taken afte tre last actual attack are designed to
protect the State against future attacks. An illustration would be in the
destruction of bases from which attacks had occurred in the past, and from which
future attacks were anticipated. But, in general, this view of self-defence had
been rejected in Security Council practicez3 and rightly so, because the
apprehended future attacks, if not imminent, are hypothetical; and in any event
the measures tend to be designed to "teach a lesson", to inflict retribution and to
deter onlybydemonstrating that aggression does not pay.
(b) Disproportionateforce
4.34 Where the force used goes beyond the "necessities of the
case", and is clearly excessivinrelation to the need for protection, this is a clear
indication that the purpose behind the measures is punitive - and therefore that
the measures are reprisals. In the many cases in which the Security Council has
condemned the use of force, thereby rejecting the argument that it was legitimate
self-defence, the disproportionatenature of the measures has beèn emphasised.
252
Ago. R.:nq.a, p. 70, para. 122 (ernphasis in orThenoffcial English translation
reads:
"There remains the third requirement, namely that amed resistance to armed
attack should take place immediatell~Le.,while theisstill going on, and
no1after it has ended."
For a different view see DinstY.:OJ.a. pp. 202-212who argues that "defensive
armed reprisals",carried out in caseswhere a time-lag occurs between the original armed
attack and the counter-masure, should be regaaslegitimate. See,also, Schachter,
O.: 'The Right of States to use Armed Force", MiLawgReview, Vol. 82,1984.pp.
1620-1638.
2s3 7ec Boweti, D.W.:op &..American Journal of InternatioLaw,Vol. 66,1972, pp. 3-
8: a prime example is the Security Council's condemnation of British air strikes on
Ycmeni hases in 1964: Sccurity Council Resolution 188 (1964) of 9 April 1964.
Resolutions condemning Israel, on the same reasoning, are numere,s:Res. 101
(1953)of 24 Novemher1953;Res.288 (1966) of22 November 1966;Res. 265 (1969) of1
April 196%Rcs. 262(IY(kYof 31 Decemher 1968Res.280 (1970) of 19May 1970;Res.
347 (1974)of 24April 1974. 4.35 Thus, for example, the condemnation of Israel's attack on
Jordan in the Hebron area on 13 November 1966 observed that the military
action was "large-scaleand carefullyplanned", and in consequence:
"Emphasises to Israel that actions of military reprisa1 cannot be
tolerated ...54.II
(c) The aremeditated natureof the action
4.36 Whilst States are entitled to prepare for necessary measures
in self-defence, asthe Corfu Channel case judgment recognisedZ5, it is clear that
where responsive measures are pre-meditated and pre-planned, then - at least
where carried out as planned -they cannot be truly protective. This is for the
reason that they willrarely be limited to the necessities of the case,for the "case",
the actual location, size and nature of the attacksnot known.
4.37 Thus, the Security Council has frequently stressed the pre-
meditated nature of a measure in condemning it as a reprisalZ6. Having
surveyed U.N. practice, Combacau concludesthat:
'The word 'pre-meditated9 is the key to the S.C.'s firmly-held
conviction: that when the victim of the original use of force does
not only retaliate while the adversary's attack is taking place, but
prepares a further retaliation to take place at a later stage after the
withdrawal of the attacking force, he goes beyond the limitsof self-
defence and -takes on himsel the function of repression whieh
$57."
belongs to no one but the U.N.
In this sense, "retaliation", particularly ina form that has been carefully pre-
planned, takes the form of a reprisa1designed to punish or repress incompatible
with the notion of self-defence.
254 SecurityCouncil Rcsoluiion 228 (1966)of 25 November19%. Exhibit106.
255 CorfuChannel.Mcriis.Judement,1.C.J.Reports 194p.31.
256 Sec.for examplc, Rcs. 228 (1966) of 23 Novembcr 1966; Res. 248 (1968) of 24 March
1968;Res. 280(1970) of 19May1970;Res. 262(1%q)of31 Dccember 1968.
257 Comhacau,J.:9. a. p.28. Exhihi105. (d) Theselectionofthe 'Wrone" tareet
4.38 When a countermeasure is directed against a target which
has no direct connection with the armed attack against which measures of self-
defence might legitimately have been taken, this is clear evidence that the
countermeasures are in fact reprisals. Their objective cannot be protection
against the particular attack, because the target chosen has nothing to do with
that attack, and therefore the objective ispunitive or retaliatory.
4.39 The practice of the Security Council abounds with
condemnation of military measures which target civilians or - non-military
objectives, precisely because they have no connection with the "armed attack"
which isthe allegedjustification ofthose measures.
4.40 Thus, in 1972,the Council condemned "the repeated attacks
of Israeli forces on Lebanese territory and population", and ten years later
condemned the Israeli incursions intoBeirut, reaffirming "the rights of the civilian
25811
populations" and repudiating "al1acts ofviolence against those populations .
. 4.41 And it is not simplya civilianpopulation that can constitute
the "wrong"target; indeed, military, quasi-military or governmental installations
can also be the targets of reprisals. The Security Counci17scondemnation on 31
December 1968 of Israel's attack on Beirut's international airport, for example,
was highlyinfluenced by the-fact that no convincingevidence had been advanced
to prove that Beirut airport had anything to do with the prior attack on an Israeli
aircraft in Athens by members of the Popular Front for the Liberation of
palestineZ9. This was so despite the fact that the airport had official as well as
civilian uses.
4. The issues to be examined in relation to the facts of the
presentcase
4.42 The preceding analysis of the relevant law enables us to
identib the issuesthat have to be examined when the facts of the present case are
considered. The issuesare the followinç:
25X
Sec, Sccurity Council Resolutions 316 (1972) of 26 Junc 1972 and520 (19of)17
Septembcr1982. Exhibits107and 108.
2s') SccurityCouncilRcsoluiion262(19~)of31Dcceinbcr1968. (a) Had Iran cornrnitted anv armed attack on the United
States that wasproperly characterised as a delict?
It is in relation to this question that we shall need to examine whether a) the firing
of the Silkworm missile on 16 October 1987 and b) the laying of mines in
international waters in 19% were in fact illegal acts attributable to Iran. If they
were not, the matter ends there. Without a delict by Iran, constituting an armed
attack against the United States, therean be no basis for any plea of self-defence
bythe U.S..
(b) If ves, was the United States' response on both
occasions, iustifiable bv reference to (i) proof of the
immediate necessitv to act and (ii) proof that the
measures taken were promrtionate?
If the answer is negative, on either count, then the plea of self-defence fails and
the United States is itself responsible for a delict against Iran.
(c) If the answer to auestion (b) is not clear, is the
unlawful character of the response, as a reprisal,
made clear bv the fact that the response was ex wst
facto, or disproportionate, or pre-meditated, or
directed at thewronp target?
In this situation, if an objective balancing of the relevant circumstances leads to
the conclusion that the response was in the nature of a reprisal, the United States
would stillbe responsible fora delict against Iran.
CHAPTERII THEFACTS
SECTIOA N Description of the Platforms
4.43 A more general description of the platforms is given
elsewhere in this ~emorial~~~. What is relevant here is a description of the
specific features of the platforms- personnel, equipment and facilities, activities
undertaken -which might even remotely be thought to justify measures of self-
defence against these platforms.
4.44 On the Reshadat and Resalat platforms there were, in
addition to NIOC's civilianstaff, 9 naval personnel stationed on the R7 complex.
They manned one 23mm. Sun -a weapon with an effective vertical range of 2,500
260
Scc,paras.1.14-1.1ahovc.metres -designed primarily as a means of defence against aerial attackZ61. This
contingent had radio communications with the shore, and their duties included
givingearly warning of Iraqi air attacks. It was the practice for attacking Iraqi
aircraft toflyin low,so as to keep below the Iranian radar beams and thus avoid
detection. These offshore platforms thus gave early warning of attacks which
might have escaped detection by Iranian shore-based radar.
4.45 The Nasr and Salman platforms were similarly defended,
and the latter had been previouslyattacked by Iraqi aircraft. There were 10naval
personnel on the Nasr complex and 20 on the Salman complex, with one 23mm.
gun on each complex. They, too, had radio communications with the shore.
4.46 President Reagan was to describe the Reshadat platform as
"an armed platform equipped with radar and communications devices which is
used for surveillance and command and control. This platform, located in
international waters, also has been used to stage helicopter and small boat attacks
and to support mine-laying operations targeted against non-belligerent shipping
...(and) was the source of fire directed at a U.S. helicopter on October 8,
1987262".
4.47 The idea of a handful of low-ranking naval personnel
constituting a "command and contrcil" centre is frankly absurd. There is no
evidence of any linkage between this small complement of men and the alleged
small-boat attacks or mine-laying. Nor isthere any evidence that these men fired
on a U.S. he~ico~ter~~~.And the U.S. President did not even suggest any
connection with the Silkworm missile attack on the Kuwaiti tanker Sea Isle Citv
261 U.S. Defence Department officiais described this weapon as a heavy machine gun,
normally used for anti-aircraft defence. Chicago Tribune, 19 April 1988, p. 25. Exhibit
-O. Both the Reshadat and Resalat platforms had been subject Io lraqi aerial attacks.
B, para. 1.101abovc.
2h2 Presidcnt's Letter datcd 20 October 1987 to the Speaker of the House and the Prcsideni
Pro Tempore of the Scnate, 23 WeeklyComp. Pres. Do1159-60,2 6ctohcr 1987.S.
Exhihit 70.
263 The New York Timcs, Y Octohcr 1987 says"an Amcrican hclicoptc..rcportcd gunfire
from lranian forces on an oil rig in the souther..The hclicopter was not hit and
left the area without shooting hack hecaitwas not certain whethcr the eunfire was
aimcd atil, the Pcntagon said." (Emphasis added.) Ex64.it(re-tlagged under the U.S. flag) off the Kuwaiti port of Shuaiba, which wasthe
allegedjustification for the attack on the platforms in "self-defence."
4.48 The Nasr and Salman platforms, attacked on 18April 1988,
were similarly described, without any evidence, as "command and control radar
station^" ^nd the U.S. letter of 18 April 1988 to the Security Council alleged
Iranian mine layinç - specificallythe mining of the U.S.S. Samuel B. Roberts -as
the justification for this attack, although without any evidence to Iink these
platforms with rnine-~a~in~~~~.
SECTIONB The Complete Disassociation of the Platforms from the
Defenceies Alleged bv the United States To JustifV Self-
4.49 The description of the platforms of itself supports the view
that these platforms could not have been the source of, or in any way connected
with, an "armed attack" on the United States so as to justify recourse to self-
defence against them.
4.50 But that is not the sole defect in the argument made by the
United States before the Security Council. When one examines the alleged
"justifications"forthese so-called acts of self-defence, it will be found that the
plea of self-defence is defective in virtuallyevery other respect: there wasno prior
delict- an illegalarmed attack by Iran -,the measures were directed against quite
the wrong target, they were in any event totally disproportionate, and they were
clearlydesigned and planned as measures of reprisal.
The alleged "armed attacks" by Iran fall to be considered
4.51
under different heads.
1. The alle~edattacks on shipping
(a) The so-called "attacks" bv Iranian warships and gun-
boats
4.52 One hasis on whichthe United States has sought to justitjrits
assertion that it acted in self-defence in attacking Iran's oil platforms is by
264
AssociateclPres18April 1988. ExhihI10.
205 Scc,ExhihiCH).reference to Iran's alleged "attacks" on "neutral shipping". However, even if such
"attacks" had taken place, these would only be of relevance if made against U.S.
ships. Thus, the general reference by the United States to alleged attacks on
neutral shipping is, strictly speaking, without relevance to the question of self-
defence. In any event, as willbe explained below, Iran'sactions towards neutral
shippingwere fullyjustified under international law.
4.53
In the face of Iraq's aggression, Iran's interest in maritime
traffic throuçh the Persian Gulf focussed on essential aimfir o keep the
Persian Gulf open for maritime trade (for, unlike Iraq, Iran depended entirely on
exportinç itsil bysea, through the Persian Gulf); and, second, to ensure that Iraq
itself didnot benefit bythe maritime traffic into and out of the Persian Gulf.
4.54 The actions taken by Iran in the face of Iraqi aggression
were well within the accepted limits cifState practice relating to belligerency at
sea. On 22 September 1980, Iran issued a communiquédeclaring "al1waterways
near theIranian shores" to be "warzones",and at the same time announced that it
would not allow any merchant ship to carry cargo to Iraqi ports. Prescribed
routes for international traffic were announced. The effect of then claims
has been summarised as follows:
"A. Iranian coastal waters are war zones.
B. Transportation of cargo to Iraqi ports isprohibited.
C. Guidelines for the navigational safety of merchant shipping
in the Persian Gulf are as follows:
After transiting the Strait of Hormuz, merchant ships sailing
to non-Iranian ports should pass 12 miles south of Abu
Musa Island; 12 miles south of Sirri Island; south of Cable
Bank Light; 12miles south of Farsi Island; thence Westof a
line connecting the points-55N 49-53 E and 29-10N 49-
12E; thereafter south of the line N9asfar as 48-40E.
D. Tlie Government of Iran disclaims any responsibiiity for
merchant ships failingto complywith the above instructions. E. Iranian naval forces patrol the Gulf of Oman up to 400
kilometres from the Strait of Hormuz 266.11
4.55 Ashas been said with some authority byone author:
"...this appears to have been a declaration of a naval blockade of
Iraqi ports. It was not limited to contraband, or war material. It
applied to al1shipping,enemy as wellas neutral. It seemed to meet
the traditional requirements of establishment, notification,
effectiveness and impartiality, and did not bar access or departure
£romneutral ports and coasts ...Iran left adequately wide and safe
channels for navigation in the western half of the Persian Gulf,
except for a narrow channel just west of Farsi island;thus her claim
to exclude traffic from the26%Stern half of the Persian Gulf did not
appear to be unreasonable .
This "reasonable" claim was generally accepted by Maritime Powers, and Iran
sought to enforce this claimbythe traditional right ofvisitand search. This was in
sharp contrast to Iraq's policy of attacking on sight any vessel found within (or
sometimes outside) the "dangerzone" proclaimed by Iraq in mid-August 1982~~~.
4.56 Thus, Iran's general claim of surveillance over maritime
traffic in the Persian Gulf was exercised by perfectly legitimate visit and search.
The Iranian Navysearched many hundreds of ships, and seized contraband cargo
in asmall minorityof cases.
4.57 Neutra! vessels were obliged to submit to lawful visit and
search. The normal immunity from attack by a belligerent Power enjoyed by
neutral vessels wasforfeited ifthe vessel resisted visitand search. Article 22(2) of
266
Roach, J.A.: "Missiles on Target: Targeting and Defense Zones in the Tanker War",
Virginia Journal of International Law,Vol.31,1991, p. 601. 13.
267
m, pp. M)l-M)î. Roach was a Captain in tU.S.Navy,attached to the ofice of the
LegalAdviser, U.S. Department of State.
268 a Leckow, R.: "The Iran-Iraq bnflictin the Gull: The Law of War Zones".
International and Comparative LawQuarterly, Vol. 37,1988, pp. 636-638,who concludes
that "Under any analysis the Iraqi exclusionzone cannot be justified". Exhibit 111. The
Unitcd Staie. publishcd a Spccial Warning No. 62 of 16August 1982summarising Iraq's
announcement asfollows:
".ilwill attack al1vessclsappcaring within a zonc believcd to be north and east
of a line Idoglegged 50 miles from Kharg Island]. The lraqi government has
further warned that al1tankers docking ai Kharg Island.regardlessof nationality,
arc targcts for thc lraqi Air Force."
Cited in RoacJ.A.:op.a. ,.605.Exhihit 13.the 1930London Treaty, incorporated into the 1937London Protocol relating to
Rules of Submarine Warfare, provided:
"...except in the case of persistent refusal to stop on being duly
summoned, or of active resistance to visit or search, a warship,
whether surface vessel or submarine, may not sink or render
incapable of navigation a merchant vessel without havin first
placed passengers, crew and ship'spapers in a place of safe*!'
4.58 The immunityfrom attack was alsoforfeited where a neutral
vessel engaged in "unneutral service" in the sense of actively assisting the
er~ern~~~'A . sone American author has recently put it:
"1would suggest ...that the law ought to recognize that neutral
shipping that sustains a belligerent's warfighting capability may be
subject to interdiction bywhatever platforms and weapo 4% s$:tems
are available to the other side to accomplish that purpose .
4.59 Indeed, the Commander's Handbook of the U.S. Navylists
the followingcircumstances in which neutral vessels acquire enemy character so
as to he treated as enemy merchant vessels -
"1. Operating directly under enemy control, orders, charter,
employment, or direction; or
2. Resisti% an attempt to establish identity, includingvisit and
search ."
Thus, neutral vessels resistingvisitand search or carrying cargoes directly related
to sustaining the Iraqi war effort rendered themselves liable to attack. That Iran
*" International Treaty for the Limitation and Reduction of Naval Armament. signed at
London.April 22, 1930,L.N.T.S.,Vol. CXII,1931,No. 2608,p.$8. Exhibit112. Both
Iranand Iraq,aswellas the United States,werepartiestothe LondonProtocol.
270
&, Whiteman, M.: Dimt of International Law, Vol. 10, Washington, Government
Printing Office, p853-al: E, also, Mallison. W.T.: "Studies in the Law of Naval
Warfare:Submarines in General and Limited Wars",International Law Studies, Vol.
LVIII,1966.Washington,Government PrintingOffice, 1968,pp.129-130.
271
Grunawalt, R.: "The Rights of Neutrals and Belligerents",in "ConferenceReport: The
PersiantArabianGulf Tanker War: International Law or International Chaos",Occan
Develoementand IniernationalLaw,Vol. 19,No. 1,19W, p.308. Exhihit113.
272 Sec, Roach, J.A.:op. &., p.600. Exhibii 13. The sarne U.S.Handbook, Document
NWP-9,para. 7.4dcfincs neutral commerceas commerce betwccn a belligerentand a
neu!ral "thai doesno1 involvethc carriagc of contraband or otherwise susrain the
bclligercnt'swar-fightingcapahility".Ncill,J. H.: "Neutra1Rights and Maritime
Sanctions:The Effectsof TwoGulf Wars",VirpiniaJournal of Inicrnational Law,Vol.
31,1991,pp.633-634. Exhihit114.wasjustified in asserting a right of visit and search, as an incident of its broader
right of self-defence, was recognised by several States. For example, the United
Kingdomstated as follows:
"Under article 51 of the United Nations charter there is a specific
and inherent right of self-defencebystopping and searching foreign
merchant ships on the high seas. 273h11Iranians are using that
specific rightto stop merchant ships .
4.60 This was not the attitude adopted by the United States.
Although it had originally acknowledged the legality of Iran's visit and search
operations, the United States later sought to interfere with and prevent the
legitimate exercise of Iran'sights2". For example, it undertook naval convoysof
traffic and asserted the ancient doctrine of "rightof convoy".Asdescribed by one
American writer:
"In effect, the U.S. relied upon the ancient doctrine of 'right of
convoy'under which belligerents cannot visit and search convoyed
ships and are to be satisfiedwith the declaration of the commander
of the convoy that no cargo which can be considered contraband is
-on board the convoyed ships. This action may actually have had
three effects: 1)protecting the vessels from attack; 2) asserting the
right of convoy; and 3Arefusing to accept that Kuwaiti oil was a
contraband surrogate2 :
4.61 The so-called "rightof convoy"has no general acceptance in
the contemporary law of maritime belligerency. In the circumstances, the
practice of the United States was designed quite deliberately to assist the
aggressor, Iraq, and to frustrate the right of self-defence of Iran. Not surprisingly,
Iran was not prepared to accept any assurance from the United States that
cargoes in the convoy were not enemy cargoes, or contraband destined for the
enemy.
273
See, the Staternent of the Minister of State, Foreign and Commonwealth Off5ce, on
February 1986,H.C. Debs., Vo91,Col.279. Exhibit 115.
274 S. paras.1.51-1.52bove. The President Tavlor, a U.S. merchant ship, had been visited
and searched by lran in January 19%, following which the U.S. State Department
acknowledged Iran's right to take this action. However, after this incident the United
States hcgan to asseri the right of convoy and interfere with Iran's righrs of visil and
search. &, for example. Pace, David L., "Major Maritime Events in the Persian Gulf
hetween IYcMand 1Y91:A Juridical Analysis",Vireinia Journal of international Law,
Vol.31,1991,p.550. Exhihit 30.
275 McNeill, J.Hop.a. ai p. 635.xhihit114. lran dcrs not acçept that thesc were the
only effects of the. assertion of the right of convoy. Moreover, Iran's mainconcern
waswith thcimportation of miliiaryand du;iluse items Io Iraq. 4.62 It is in this light that the Iranian "attacks" on so-called
"neutral" vessels have to be viewed. Were they "attacks"; or were they part of
Iran's right of self-defence, in the form of legitimate actions against suspect
vessels in circumstances in whichIran'sright of visitand search was resisted? The
Iranian attempt to enforce Iran'srightswas,from 1986onwards, based on surface
vesse~s~~~:
"By October 1986, the surface ship had become Iran's primary
attack platform. These attacks were divided between regular Navy
forces operating primarily from SAAM-class frigates and
Revolutionary Guard forces using Swedish-made Boghammer
patrol craft and other small boats. The Guards typically pulled
alongside a tanker and let loose a barrage of anti-personnel
weapons, such as rocket-propelled grenades and 50-calibre
machine guns, directed at the ship'sbridge. Unlike Iraqi pilots who
tended to shoot first and identify later, Iranian forces conducted
their attacks277 11 after careful reconnaissance and specific vesse1
identification .
4.63 Two things need to be noted about these so-called "attacks".
-9rst as a form of self-defence they were not excessive or di~~ro~ortionate~~~.
Second, there is no evidence that the oil platforms destroyed bythe United States
in 1987 and 1988 had anything to do with these "attacks". Accordingly, Iran
maintains that its actions in the face of Iraqi aggression were fullyconsistent with
international law and it had committed no actions which would be characterized
as unlawfulattacks.
Theallegedminingof the Persian Gulf by Iran
(b)
4.64 There is no question that Iraq possessed, and laid, mines in
the Persian Gulf (as, indeed, Iraq was to do yet again during the 1991conflict):
Iraqi inines were dropped from the air into the Khor Musa channel connecting
the Iranian ports of Bandar Khomeini and Bandar Mahshahr to the Persian
276
Earlier usof hclicoptçrs had hccn discontinuai because, again, largcly due to U.S.
efforts, the acquisiofspare parts bccamc verydifficuli.
277 Peau. D.L.OJ. a. p,.549. Exhibit 30.
27X The comparison wiih the Exocet missile aitacks by the Iraqi airforce is sIlising.
quiie extraordinary that the United States should havc dcmonstrated so much ccmccrn
over the lranian "attacks", and viriually no conccrn over thc lraqi missile attacks against
commercialshipping. Iraqi mines also damaged vesselsin the Strait of Hormuz and elsewhere
in the Persian ~ulf~~'.
4.65 There is equally no question that Iran laid some mines. But
Iran's admissionthat it did so related to minefields laid for defensive purposes
near Khor ~bdullah~'~.
4.66 What is by no means clear is who was responsible for the
indiscriminate sowing of seabed mines and unanchored, or floating, mineswhich
were discovered in 1987in various parts of the Persian Iran isclear that
it was not Iran who was responsible. It was not in Iran's interest to risk the
indiscriminate sinking of shipping usingthe Persian Gulf, for the Persian Gulf was
Iran's lifelinein a waythat was not true for Iraq. Iraq certainly had the mines and
the capacity to release them into the Persian Gulf from the air. Moreover, Iraq,
unlike Iran, clearly had the motive to lay mines in the Persian Gulf in order to
damage Iranian commerce and to internationalize the conflict. In such
circumstances, it is Iran's belief that Iraq must bear the responsibility for these
events. Certainly, it isfor the United States to prove the contrary.
4.67' The Bridgeton incident, for which Iran was not responsible,
was discussed in Part I~~~. The United States had also relied on the-incident
involvingthe vessel Iran Air to support itsallegation that Iran was responsible for
indiscriminate mine-laying. On 22 September 1987,the United Statesreported to
the Security Council that this Iranian vessel had been "discovered layingmines in
shipping lanes used by United Statesand other vessels in international waters 50
279 Danziger,R.: "The Persian Gulf Tanker War", Proceedines/Naval Revie1985.p. 161.
Exhibit 16.
See, para1.35ahove.
-
The Washin~ton Posl. 21 August 1987. Exhibit59.
2X2
Iran fully accepts the Court's dictum in the Military and Paramilirary Activities in and
;~ilainstNiwragua (Nicaraeua v. United Stateof Amcrical, Merits. Jud~ment. 1.C.J.
Rc~orrs 1986,pp. 111-112, paras214-215. But thai ruling may noi, in ils terms, cover
situations of intensc hostilities such as the Gulf Conflict, for the situation was no1one of
"~>cacctimc".So far as tlic rcquirement of prior warning is concerncd, the limited coastal
areziswithin which lran dlay mines laywithin thc "war zones" dcclared by lran on 22
Scptemher IYXO and far from the prescribcd "safeiy-rouies"for shipping.miles north-east of ~ahrain~@". The United States attacked the Iranian vessel
with rockets and machine-gun fire, disabling the vessel and causing serious
casualties.
4.68 In fact, the Iran Air wasa commercial landing-craft, used by
the Iranian Navy to transport mines and other supplies. It was not designed for
mine-layingand, infact, isa vesselso constructed asto be quite unsuitable for this
purpose - with high sides to the vessel making the launching of mines
impracticable. Moreover, the destruction of the vessel, coupled with the failure
bythe United States to gather, and produce as evidence, anyof the mines alleged
to havebeen laid, make verification of the U.S.claimsvirtually impossible.
4.69 Nevertheless, when the U.S.S.Samuel B. Roberts wasstruck
by a mine on 14April 1988,the United States wrongfullyassumed that the mine
was laid by It was this incident which the United States then used to
justitj the attack, four days later on18April. on the Iranian oil platforms in the
Sirriand Salman fields.
The alleged missile attacks aeainst shi~~ine in the
(c) . PersianGulf
4.70 Iran does not dispute that in 1986it acquired a number of
Silkworm missiles, as did Iraq. These were Chinese missiles with a maximum
effective range of 85 km, and were located onshore, facing the Straits of Hormuz
which as the narrowest part of the Persian Gulf represented a potential
"bottleneck"which aforeign navymight closecompletelysoas to bring al1Iranian
exports to a haitm. The Iranian missiles were designed to deter any such
attempt. In fact no such attempt was made, and the Iranian missileswere never
used against shipping passing through the Straits of Hormuz.
4.71 However, on 16 October 1987,the Sea Isle City,a Kuwaiti
oil tanker reflagged under the American tlag, was hit by a missile whilst off the
2XS
-Scc, Iciter daicd 18Ap1988from the Acting Permancnt Rcprcscntative of thc United
States ofmerica to the United Nations addressed Io thc President of the Security
Council (St19791).xhibit 90. This lcttcr asscrted "we havc conclusive evidence that
ihcsc mineswcrc manufactured rccentlyin Iran". Kuwaitiport of Shuaiba. The U.S. President, Mr. Reagan, wrote to Congressfour
days later, on 20 Octoberm, identifying this missileas "a Silkworm missile fired
by Iranian forces from Iranian-occupied Iraqi territory", and reported the attack
by U.S. naval forces on Reshadat Platform on the previous day, 19 October, as
action in self-defence. The Security Council had been notified of this attack "in
accordance with Article 51"on the previous day, 19 ~ctober~~'. The alleged
location of theIranian missilesites was later said to be in the southern part of the
Fao peninsula.
4.72 There is absolutely no question that no Silkworm missile
could have hit a vesse1at anchor off Kuwait from the Iranian missile-sites on
Qeshm island in the Straits of Hormuz: the distance would be many times the
maximum range of such a missile. How, therefore, could a missile (and
presumably several such missiles) be moved hundreds of miles over difficult
terrain, and located in the Fao peninsula without the United States being aware
of this movement? Given the sophisticated aerial surveillance available to the
United States, itis impossible to believe this transfer of missilescould have been
achieved hy Iran without the United States being aware of it. Moreover, as Mar,
-facing page 42 shows,the was wellbey~nd the range of a Silkworm
missileeven ifsuch missileshad been placed on Fao.
4.73 In any event, the logicof such a situation would suggestthat
the most likely countermeasure would be a U.S. air-strike against these newly-
established Iranian missile-sites. But no such air-strike was ever made. When
asked why not, in a Press Conference on 19 October, the White House Press
Secretary replied "our purpose was to avoid casualties, not to cause them -but at
the same time to make the important political and military pointtt289.For Iran
this explanation makes no sense: there is no apparent reason why an attack on
missilesites in the Fao peninsula would cause greater casualties than the attacks
on oil platforms (where, in fact, there were large number of civilianpersonnel).
4.74 The true explanation is that the missile wasnever fired bv
. Iran! There was, in fact, no Iranian missile-site in the Fao peninsula which the
United States could have attacked. Iran's own conclusion is that the missilewas
2X7 Exhihit70.
2M Exhihii73. Pressrcportshadnohesirationindcscrihingthe U.S. altacksas"reprisalsu.
2Xc) Associ~itedPrcss,I~~Octob cxhi9ii7.. fired by Iraq, from motives no more devious than the Iraqi attack on the U.S.S.
Stark or the hundreds of attacks on vessels, including Kuwaiti vessels,by Iraqi
7
aircraft and Iraqi Silkworm missilesduring the previous fiveyears2g0.
4.75 Even if, arguendo, the attack on the Sea Isle Citv was
attributable to Iran, it is Iran's position that this would not have given rise to a
right of self-defence by the United States. Onthe one hand, the Sea Isle Citvwas
in Kuwaiti territorial waters under Kuwaiti protection, and not under the
protection of the United States, at the time of the attack. More importantly,
however, Iran does not accept that the Sea Isle City can be considered as having
any connection with the United States. At the beginning of the conflict, Iran had
insisted that vessels fly the flag of their original nationality and it has always
treated the reflagging of Kuwaiti vessels as not only a violation of the laws of
neutrality but as illegal and invalid in itself. In fact, the Sea Isle City had no
connection with the United States and an attackon this vesse1could not justiQ the
exerciseof the right of self-defence bythe United States.
2. The implications of the facts: a complete neaation of the
U.S.claim to haveactedin self-defence
4.76 When the facts are thus examined, the implications for the
U.S. claim are clear: that claim has no basis in law or in fact. This appears quite
clearlywhen the facts are related to the specificrequirements of self-defence.
The r&uirement of a priordelict bv Iran in the form of an
(a)
"armedattack
b 4.77 There was, in fact, no such delict. The Iranian measures
taken against shipping in the Persian Gulf were not unlawful. And Iran was not
responsible for either the Silkwormattack on the Sea Isle City or the layingof the
mine that damaged the U.S.S.Samuel B. Roberts.
4.78 Iran believes that it is important for these facts to be
understood by the Court, because Iran would not wishthe case to proceed on the
basis ofassumptions about Iranian responsibiiitywhichare false.
4.79 Legally, itmakes no difference, because even if Iran had
been responsible, which is not the case, the reactions of the United States in the
290 Se, paras 1.351.3Xand 1.105above.circumstances of the case were in any event armed reprisals, and not legitimate
self-defence, aswillbe demonstrated below. But in terms of Iran's standingin the
international community it is important to Iran that the whole assumption behind
the U.S. policy towards Iran should be demonstrated to be false, unfair, and
essentially contrived to placate U.S. domestic opinion and world opinion. The
United States could not afford to admit publiclythat it was assistingan aggressor
against a State desperately engaged in a war of self-defence: hence the
"inventions", the false assumptions, which the United States portrayed to the
world as the justification for its conduct.
(b) TheJackof anv irnrnediatenecessitv toact
4.80 It is quite clear that the two U.S. attacks on these Iranian
platforms were not immediate and necessary responses to any "armed attack".
4.81 As regards the assumed Iranian missile attack on the $@
Isle City, four days elapsed (15-19 October 1987) between the missile attack on
the vesse1and the U.S. attack on the Reshadat platforms. The U.S. measures
were clearly not spontaneous reactions: they were pre-planned and finally
authorised hy President Reagan himse~f~~l.Moreover, the U.S. attack could not
have been "necessary" for the protection of the Sea Isle City. The Iranian
platforms could have had nothing to do with any missile attack on the Sea Isle
. They were essentially the wrong target for any legitimate measure of self-
defence. Doubtless they were an easy target, a soft option offering gunnery
practice with no prospect of reply tothe four modern U.S. destroyers. Aspointed
out earlier, aU.S. airstrike against targets in the Fao peninsula might at least have
been consistent with the Arnerican story of how the Sea Isle Citv had been
damaged. But that was not done, and sothe fabrication lacks even the merit of
consistency.
4.82 So, too, with the attack on the Nasr and Salman platforms
on 18April 1988,four days after the incident on 14 April 1988when the U.S.S.
Sainuel B. Roberts struck a mine. This wcisa pre-planned response on President
Reagan's direction. Accordingto one of the U.S. officers involved in the attack
291 Scc. ihc Prçsidcnl's Iciicr daicd 20 OcIO87rio ihc Speaker of ihe House and the
Prcsidcnl Pro Tcmporc of the Scnaie, 23 Wcekly G~mp. Prcs. Doc. 1159-1160 (26
Octohcr 1987,Exhihit 70). Mr. Weinbcrgcr is repor10dhave said"Iwas carricd out
with highly profcssional skill and prccision and accomplishcd cvcryihiWC had
planncd".&, Thc Tirncs,20 Ociohcr1987Exhihii18."preparations for the 18 April 1988 Operation Praying Mantis began ...
months ear~ier"~~~T . he attack was clearlydirected at the wrong target, for these
platforms can have had nothing whatever to do with any miningactivities,and the
attack was therefore "unnecessary"in relation to any claim of self-defence based
on the incident involvingthe U.S.S.Samuel B.Roberts.
4.83 The lack of necessity can be seen more clearly by
comparison with the U.S. reaction to the attack on the Stark by an Iraqi Exocet
and itsfailure to take any measures against indiscriminateIraqi attacks on Persian
Gulf shipping. After that incident, the United States pursued diplomatic means
to ascertain Iraq's responsibility and to obtain compensation. No swh efforts
were made after the Sea Isle Cityand Roberts incidents. The double-standard of
the United States is thus blatantly apparent -a double-standard which isfatal for
the United States' self-defenceargument.
(c) The disproportionate and retaliatorv nature of the U.S.
response
4.84 Iran does not dispute the value of the Sea Isle City,or of the
Samuel B. Roberts. Nonetheless, even if Iran had been responsible for the
damage sustained hy these vessels, which it was not, the U.S. attacks on three
Iranian offshore oil platform complexeswere a totally disproportionate response,
both in com.parativeterms and in terms of the complete disassociation of these
platforms from the incidents-usedbythe United States as pretexts for the attack.
4.85 The essential purpose of the United States was not to
protect either the Sea Isle Citv or the U.S.S.Samuel B. Roberts: it wasto "teach
the Iranians a lesson",to punish them for their defiance of the United States, and
to weaken their economicstrength, so heavilydependent on oil production.
4.86 After the attack on the Reshadat platforms, U.S. Secretary
of Detense, Caspar Weinberger, isreported to have said:
292 Perkins,Capt.J.B.:"OperationPrayingMantis:The SurfaceView",Proceedin~s/Naval
Review, May 1989,p. (5(emphasisadded). Exhibit80. &, Hearingsbefore a Sub-
Cornmittee of the Cornmiltee oii Appropriations, Denartment of Defense
Appropriarions for 1989, House of Representatives, 100th Congrcss, 2nd Session,
Washington, GovcrnincniPrintingOffice, 1988, 185 (Testimony of Admiral Gee)
Exhibit77. "What is important is ...for Iran to realise that they cannot make
unprovoked attacks on neutral, non-Q~Jligerentl ,egitimate shipping
in the gulfwithout some costto them ".
The "punitive"purpose behind the U.S. attack on the Nasr and Salman platforms
was even more evident. The United States mounted a large naval operation,
code-named "Operation Praying Mantis", far in excess of what was needed to
destroy those virtuallyundefended platforms294.The objectivesof this operation
were describedas follows:
"Sink the Iranian Saam-class frigate Sabalan or a suitable
substitute.
Neutralise the surveillance posts on the Sassan and Sirri gasloil
separation platforms (GgSPs) and the Rahkish GOSP, if sinkinga
ship was not practicable2 ."
4.87 Of the 3 U.S. Surface Action Groups, one was assigned the
Salman platform, one the Nasr platform, and one the Iranian frigate, Sabalan.
The U.S. naval force not onlydestroyed the platforms; they also located and sank
an Iranian patrol boat, the Joshan, several Iranian high-speed Boghammer
launches, a frigate, the Sahand, as wellas cripplinga second frigate, the Sabalan.
AsAdmiral Gee reported to the CongressionalSub-Committee:
"Al1in all, for the day, about half of the Iranian Navywas, in fact,
destroyed: two Vosper frigates, one Cayman PTG, and three
Boghammers. Aiso two oil platforms were destroyed, and F-4's
were repelled-29611
There could scarcely be clearer proof that this was a pre-planned, large-scale,
punitive operation.
4.88 The conclusions are both obvious and inescapable. The
U.S. attacks were not lawful measures of self-defence: they were premeditated
acts of "reprisal" (although based upon quite groundless allegations of a prior
Iranian armed attack) and whollyillegal.
293 kssociated Press,19October1987. Exhibit71.
294 -See, LangstonCap. B., and Bringle,Lieut.Commander D.:"OperationPrayingMantis:
The Air View",Procecdin~s/NavalReview, May 1989p. 54 (Exhibit 89); and Perkins
Capt.B.:"OperationPrayingMantisTheSurface View" , .,pp.66-70. Exhibit80.
295 Perkins,Capi.J.B9. c&.,at p68. Exhibii80.
296 Departrncntof Defcnsc Ap~ro~riationsfor 1989,-.,p.186.s, Exhibit77. PARTV
THEREMEDIESSOUGRT BY IRAN
5.01 Iran has shown in previous Chapters of this Memorial that
in destroying the oil plaforms in question, the United States violated its
obligationsunder the Treaty of Amity and the rules of customary international
law relevant to the Treaty's application or interpretation. Such violations entai1
the duty to make full reparation for the injury cauAsdthe Permanent Court
recalled in the case concerning the Factorv at Chorzow:
"It is a principle of international law that the breach of an
engagement involves an obligation to make reparation in the
adequate form. Reparation therefore is the indispensable
complement of a failure to apply a convention a557there is no
necessityfor this to be stated in the convention ."self
5.02 Iran requests two forms of reparation for the violation by
the United States of its international obligatiom,. Iran requests that the
Court adjudge and declare that the United States violated specific obligations
under the Treaty of Amity and international law; second, it seeks compensation
for thedamages caused by the United States in destroying the oil platforms in a
form and an amount to be assessed and established by the Court in a subsequent
phase of the proceedings.These two requests are analysed in turn in Chapters 1
and II below.
CHAPTER1 REQUESTFOR A DECLARATIONTHATTHE UNITED
STATESMOLATEDTHE TREATY OFAMITY
5.03 The right of a State to obtain satisfaction for injuries caused
to it by thenlawful conduct of another State is a widely accepted princiofe
international law. In accordance with this principle, Iran seeks satisfaction in the
form of a declaratory judgment acknowledging the unlawfulness of the acts
committed by the United States.
5.04 In Section A below, Iran will show that the Court is
competent to make such a declarationinSection B,Iran willset forth its specific
requests.
Faciorvat Chorzow, Jurisdiction, Jud8.1927.P.C.I.J., Series9,p.21. SECTIO AN The Cornpetenceof theCourtToMake a Declaration
5.05 Iran seeks a declaratory judgment in the sense described by
the Permanent Court in the case concerning the Interpretation of Judgments Nos.
7 and 8 (Facto- at Chorzow), where the Court stated that the nature of such a
judgment -
"..is to ensure recognition of a situation at law,once and for al1and
with binding force as between the Parties; so that the legal position
thus established cannot again be called in que tion in so far as the
legal effectsensuingtherefrom are concerned 238 ."
5.06 That the Court has competence to adjudicate this case
under Article XXI(2) of the Treaty of Amity has been fully discussed in Part II
above. Bythe same token, the Court also has the power to grant the declaratory
relief requested by Iran - a principle that has been consistently recognized by
doctrine and international tribunals. While this principle would appear to be
beyond controversy, it isappropriateto note that Iran isseekingdeclaratory relief
for essentiallyaworeasons.
5.07 First, in accordance with the Court's jurisprudence,
declaratory relief is the necessary precondition to an award of compensation for
the violation by one State of its international obligations. This logical sequence
was followed, for example; by the Court in its judgment on the merits in the
Nicaragua case, where the Court held that the United States was under an
obligation to make reparation to Nicaragua only after the Court had found that
the United States had acted in breach of its international obligations299.
5.08 Second, a declaration of the illegalityof the United States'
conduct under the Treaty of Amity isalso essential in this case as an independent
rernedy, given the gravity of the wrong committed, in order to satisfy the dignity
and honor of Iran.
2yX Interpretalion of Juderncnis Nos. 78(Facto~ at Chorzow). Juderncnr No11. 1927,
P.C.I.J. SeriesA,N13,p.20.
2yy Militarv and P;ir;irnilitary Activities in and Against Nicaraeua (Nicaragua v. United
Statesof Arncrica), Mcriis, Judement, 1.C.J. Repor1986,pp. 146-148, para.292
(dispositif). 5.09 The power to grant this kind of remedy has been recognized
by international tribunals as well as by the Court. In the case of New Zealand
against France (Chairman, Jiménez de Aréchaga),the Tribunal concluded that
France had violated its international obligations to New Zealand and ordered
reparation in the form of a declaratory judgment. It observed in this context that
there exists -
"...une habitude de longue date des Etats et des Courts et
Tribunaux internationaux d'utiliser la satisfaction en tant que
remède ou forme de réparation (au sens large du terme) pour les
violations d'une obligation internationale- 300-I
5.10 This form of reparation was also granted in the I'm Alone
case, which arose when the U.S. coastguard sunk a Canadian ship. The case was
tried before an American and a Canadian Commissioner who, in their joint Final
Report, denied Canada compensation for the sinkingof the vessel because it was
owned by U.S. nationals even though it was registered in Canada (a situation
rather close to that of the Sea Isle Citv, owned by a Kuwaiti Company, but
registered in the United States). Nonetheless the Commissionersdeclared that -
"...the United States ought formally to acknowledge its illegality,
and to apologise to His Majesty's Canadian Government
therefor 301.11
Despite the fact that the Commissioners declined to award compensation for the
vessel, they went on to mate a monetary award for the loss and injury to the
Canadian crew and for nominal injuries to the Canadian flag.
5.11 The Court itself has exercised itspower to grant this kind of
remedy on a number of occasions. In the Corfu Channel case, for example, the
Court awarded both declaratory relief and damages to the United Kingdom as a
result of Albania's responsibility under international law for certain minefieid
explosionsthat occurred in Albanian territorial waters whichdamaged two British
Awardof 30April 1990,pp. 115-116,para. 122.
Unofficial translation:
"..a long standingpracticeof Statesandof internationalcourts and tribunalsto
use 'satisfaction'as a rcmcdyor form of rcparation (inthc widc sense of the
tcrm) forviolations of an internationalobligation".
Reportsof lnicrnational ArbitralAurdrdVol. 11. . 1618. Exhibit 117.ships and caused loss of life. Albania, on the other hand, had only sought as
satisfaction a declaration from the Court (but no request for monetary
compensation) that the United Kingdom had violated Aibania's sovereignty
under international law as a result of the British Navy'smine-sweeping activities
in the conduct of "Operation Retail". The Court granted this relief in its
judgment, holding that in carrying out the operation in question, "the United
Kingdomviolated the sovereignty of the Peoples' Republic of Albania-7021.
5.12 On the basis of the foregoing, and in the light of the factual
and legal elements of the case discussed above, Iran requests the Court as a first
step to adjudge and declare that the United States acted unlawfullyin destroying
Iran'soilplatforms inviolation of the Treaty of Amity.
SECTI(. )N Specific Requests
5.13 Specifically,Iran calls upon the Court to determine the full
legal responsibility of the United States arising out of the violation of its treaty
obligations under the followingprovisionsof the Treaty of Amity:
- Article 1,providingfor the duty to maintain "enduring peace
and friendshipbetween the Parties";
- Article IV(1). providing for the duty to accord fair and
equitable treatment to the nationals and companies of each
Contracting Party and to refrain from applying
unreasonable and discriminatory measures that would
impair legaliyacquired rights and interests;
- Article X(l), providing that there be freedom of commerce
and navigation between the two Parties.
CHAPTER II REQUEST FOR AN AWARD OF COMPENSATION
AGAINSTTHE UNITED STATES
5.14 The conduct of the United States in its attacks of October
1987 and April 1988 violated the principles of tiiendly relations. equality of
treatment and freedom of coinmerce and navigation between the Parties referred
312
CorfuChannel. Mcriis. Judcrneni.I.C.J.Re1949,p36.to in the Treaty of Amity, and caused direct injury to Iranian economic interests.
In Section A below, Iran will examine the cornpetence of the Court to make an
award of compensation against the United Statesfor its violations of the Treaty of
Amitywhile in Section B, the specificelements of damage and interest claimed by
Iran willbe addressed.
SECTIOA N The Basis of the Court'sCornpetenceToMakean Awardof
Com~ensationAgainsttheUnited States
5.15 It is a widely recognized legal principle that a State which
causes injury to another State in contravention of international law is under an
obligation to make reparation. As the Permanent Court observed in the Chorzow
Factory case -
"...it is a pnnciple of international law, and even a general
conception of law, that any breach of an engagement involves an
obligation to make reparation 303.I
5.16 Similarly, in the Diplomatic and Consular Staff and the
Nicaragua cases, the Court held that the finding of responsibility for an injury in
breach of an international obligation entails the duty to make reparation for the
injurycaused3?
5.17 As has been discussed in Part II, it is also well established
that to the extent that the Court has jurisdiction under a treaty (in this case, the
Treaty of Amity) to decide disputes over the treaty's interpretation or application,
it also has junsdiction to decide the nature and amount of the reparations due
since "[dlifferences relating to reparation, which may be due by reason of failure
30511
to apply a convention, are consequently differences relatingto itsapplication .
5.18 In many instances, reparation takes the form of monetary
damages. In the Chorzow Factory case, for example, the Permanent Court held
'O3 FactorvatChor~ow.Mcrits.JudnmentNo. 13,1928.P.C.I.J.,SeriesA. No. 17,p.29.
United States Diplornaticand ConsularStaffin Tehran,Judement,1.C.J.Reports 1980,
pp. 41-41, paras. 90;Militarv and ParamilitarvActivities in and Against Nicaraeua
JNicaragua-v.United StateOfAmerica).Merits.Judgrnent,I.C.J.Reports 198p. 149,
para.292(14) (dispositif).
'O5 ~actorval Chorzow.Jurisdiction. Judpmt o8. 1927,P.C.I.J.SeriesA. No.9, p.21.that reparation of a wrong may,when restitution in kind is not possible, consistof
an indemnity corresponding tothe damage suffered. The Court stated:
"The essential principle contained in the actual notion of an illegal
act - a principle which seems to be established by international
practice and in particular by the decisions of arbitral tribunal- is
that reparation must, as far as possible, wipe out al1 the
consequences of the illegal act and reestablish the situation which
would, in al1 probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment
of a sum corresponding to the value which a restitution in kind
would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in
place of it-such are the principles which should serve to determine
the ainount of306m11nsation due for an act contrary to
international law .
SECTIO BN Elements of Compensation Claimed bv Iran
5.19 Iran claims compensation for the following elements of
damage resulting from the unlawfulconduct of the United States:
1. 'Compensaticin for the destruction of the oil platforms and
related facilities, including the loss suffered (damnum
emerc-ens) and the loss of proceeds or 'profit (lucrum
cessans), such compensationto include, inter alia:
a) Compensation for al1expenses and costs incurred by
Iran as a result of the attacks to the oil platforms and
arisingfrom rescue operations, extinguishingof fires
on the platforms,etc.;
b) Replacement costs and compensation for al1
expenses incurred for the reconstruction and
recommissioningof the oil platforms; and
c) Compensation for al1loss of production, damage to
the oilfieldsand other related elements;
2. Compensation to Iran for the injury to its legal interests,
honour and dignity caused hy the actions of the United States and by the refusa1 of the United States to
acknowledgethe unlawfulnature ofsuchactions;
3. Compensation forthe killingof and injuriesto personnel on
board the oilplatformsat the time of the attacks, including,
but not limited to. compensation for the life lost, injuries
incurred, losses to the estate of the deceased and
compensation for loss of contributions, persona1 services
and personalbelongingsof the persons concerned;
4. Interest at prevailing rates from the time the claim arose
untilpaymentofthejudgment;
5. Any and al1 other relief that the Court may deem
appropriate.
5.20 While each element of damage will be briet'lydisciissedin
the followingparagraphs, where itwill beshown that in similürcircumstances
international tribunals have granted the kind of reliefrequested by Iran in the
present case, Iran is specificallyrequesting that issues relatingto the form and
arnount of the reparation due be postponed to a subsequent phase of the
proceedings. Sucha request isin perfect harmonywith the Court's pastpractice
whichhas tended to address questionsofliabilityand responsibilitybefore turning
to the specificelements ofcompensationandtheir quantificatior?07.
5.21 Under Item l(a), Iran requests reparation for al1 losses
incurred as a result of the United States'actions. In this regard,Iran wasforced
by the U.S. conduct to incur substantial costs in mounting rescue operations
(safe~uürdingpersonnel, putting out fires, controllinywell blowouts,dispersing
air and marine pollution) andother related activites.
5.22 Under Itein l(b), Iran requests monetary compensation
arisingout of the destruction of the oil platforms for al1costs incurredto repair
and reconstructthe fàcilities. In the present case,the attacks bythe United States
causedthe destructionof the Reshadat complexon 19 October 1987 and the Nüsr
"' See. for example.the practiceadopied in the Chonow Factorv.CorfuChanneland
Nicarüeuacases.production platform and Salman complex on 18 April 195~-'~. As the
photographs appearing in Part 1 attest, in the October 1957attack. the main
Reshadat complex (R7), consisting of three linked platforms with associated
facilities, was totally destroyed. The nearby plattorm, R4, was also largely
destroyed. In the April 1988attacks, both the Nasr and Salman complexesand
associatedfacilitieswere destroyed. Inthis regard,Iran'slosseswere exacerhated
hy U.S.sanctions and by the enforcement of Operation Staunch which made it
difficult for Iran to obtain the necessary materials, services and personnel to
reconstruct the platforms. In themselvesthese actions by the United States are
breaches of the Treaty of Amity. Accordingly,Iran's losses in this regard
represent an additional element ofdamageforwhich itshould becompensated.
5.23 Under Item l(c), 1ran.also claims as a direct damage al1
lossesincurred as a result of the lossof productionfrom the platforms destroyed
as well as from damage to the underlying oil fields and reservoirs. It is
undisputable that production completelystopped from the Reshadat, Nasr and
Salman complexesdue to the U.S.attacks. As iswell knownin the oil industry,
Iran's losseswere not limited to lost production alone, for the U.S. attacks also
caused pressure loss and other irreparable harrn to the oil fields themselves.
These elements willbe 'discussedin greater detail at a subsequent phase of the
proceedings.
5.24 As a rnatter of law,each of these heads of diimageisclearly
compensable. As has beeri noted above,the fundamental principleof restitution
for damages was articulated in the ChorzowFactory case where the Permanent
Court held that reparation must, as far as possible, re-establishthe situation
pristinum - k, as itwoul'dhave been had the wrongfulact not been committed.
Ideally,thisform ofcompensation mightbe obtained through a restitutioninkind
but.whenthat isnot possible,reparütion can be quantifiedwiththe "paymentofa
1091.
sumcorrespondingto the valuewhich ü restitutioninkindwouldheur
5.25 This principle hasfound recognitionin the draft Articles on
State Responsibilityproposed by Professor Arangio-Ruiz, SpecialRapporteur to
the International Law Commission. In Article 8(1), dealing with the issue of
reparation byequivalent.the followingtextwassuggested:
'(" See.Pdrt1.ChapterIVahove.
309 FactoivatChorzow,Merits.JudementNo. 13,1928.P.C.I.J.SeriA.No. 17.p47. "(ALTERNATIVE A). The injured State is entitled to claim from
the State which has committed an internationally wrongful act
pecuniary compensation for any damage not covered by restitution
inkind, in the measure necessary to re-establish the situation that
would existif the wrongfulact had not been c~rnmitted.~~~'
5.26 Reparation must include not only compensation for
damaged property, but also compensationfor al1losses between the date of injury
and the date when the reparation is made. Such losses include elements of
lucrum cessans which, in the present case, relate to Iran's loss of oil production as
a result of the U.S. attacks311.
5.27 With regard to the other heads of damage fallingunder Item
1,compensation should include al1losseswhichare connected to the wrongfulact
by a link of proximate causality. This criteria has been explained by the U.S.-
Germany MixedClaims Commissionin 1923in the followingway:
"Thisis but an application of the familiar rule of proximate cause -
a rule of general application both in private and public law - ...It
matters not whether the loss be directly or indirectly sustained so
long as there is a clear, unbroken connection between Germany's
act and the loss complained of ...Al1indirect losses are covered,
provided only thaî in legal contemplation Germany's act was the
effici912 and proximate cause and source from which they
flowed .
5.28 The U.S.-Venezuela Mixed Claims Commission recognised
the same principle in the case, noting that "Governments like individualsare
responsible only for the proximate and natural consequences of their acts".
Compensation is thus denied for "remote ~onse~uences~~~''.However, losses
arising as a direct consequence of an injurymust be included in the calculation of
damages. In other words -
310 Arangio-Ruiz,G.: Second Reporton State Responsibility,DoAKN.4142 5nd Add.1,
9 and 22June 1989,Yearbookof the InternationalLawCommission,1989,Vol. II.Part
1,p.56,para.191.
311 -See, JirnCnezdc Arechaga, E.:"InternationalResponsibility",in Sorensen, Med.;
Manualof Public IntcrnaiionalLaw,MacMillan,London, 1968, wherc thc author notes
that"lostprofits"(Iircrumcessans)includeprofits"whichwould havebcenpossiblcin the
ordinarycourseof cvcnts"(p.570andcase-law referedto therein).
'12 Decision No. II,Rcporis of IntcrnationalArbitral Awards,Vol. Vil, PartO29-30..
Exhibit118.
313 Dixcase,Reportsof IritcrnationalArbitralAwards,VIX. p. 119;al 121. "...ail damages which can be traced back to an injurious act as the
exclusivegenerating cause, by a connected, though not ne$~$sarily
direct, chain of causation should be integrallycompensated-
Consequently, compensation for the material damage sustained by the injured
party must include any expenditures necessary to re-establish the situation as it
existed prior to the breach of the international obligation which resulted in the
damage. In the Corfu Channel case, for example, the Court calculated as part of
the reparation due not only the damage to two Britishwarships, but also the costs
for medical expenses arising from the casualties.
5.29 The Court also awarded consequential damages as part of
the reparation due in the Nicaragua case and ruled that -
"..Nicaragua's claim isjustified not only as to the physicaldamage
to its vessels but also the consequential damage to its trade and
commerce- 315."
5.30 In this case, the unlawful conduct of the United States in
attacking the platforans was the direct cause of the losses referred to above - the
destruction of the plattorms themselves, the related replacement and
reconstruction costs, the loss of proceeds to the Iranian oil industry, the damage
to the underlying fields, and the costs invcilvedin safeguarding the facilities and
personnel after the attacks. As such, these heads of damage listed under item 1
are fullycornpensable.
5.31 Under Item 2, Iran requests compensation for the non-
material damage caused to its honour and dignity by the U.S. attacks and by the
refusal of the United States to recognise the unlawfulnature of its conduct.
5.32 Under internationaljurisprudence and doctrine, this kind of
damage has been widely accepted as one of the consequences of a breach of an
314 Eÿglcton, C.: Thc Rcsl>onsihilityof Statcs in InternationalLaw, Ncw York University
Press,1928.pp.202-203.Exhihit119.
Milit:iryand Pnr;imilitaryActivitics in and Aq;iinscNiuracua (Niaiciv.United
Statesof Ameri~i), Mcrits,Judement,I.C.J.Repor1980,p.139,para278.international obligation which directly affectsa State's judicial interests316. As
Judge Ago observed in hisSecond Report on State responsibility:
"Every breach of an engagement vis-à-visanother State and every
impairment of a subjective right of that S4ate in itself constitutesa
damage, material or moral, to that state3l ."
5.33 Reparations owing for this kind of damage can take a form
of satisfactionquite distinct from monetary compensation stricto sensu. Thus, in
the Francisco Mallén case, the Mexico-United States General Claims
Commission, after awarding moneta~y compensation for the "physical injuries
intlicted upon Mallén", wenton to state that "an amount should be added as
satisfaction for indignity suffered, for lack or protection and forenial of justice
31811
m..
5.34 The Tribunal in the New Zealand v. France case reached
similar conclusions and recommended that France pay a sum of $EU 2 million
into a special fund to promote good relations between the parties. The ratio of
such a recommendation resided in France's violation of its obligations towards
New Zealand and did not constitute compensation for material damage per se3''.
5.35 Accordingly, Iran submits that it-is fullyentitled as a matter
of law to compensation for the damages claimed under Item 2. The appropriate
amounts due in the circumstances will.betaken up in subsequent proçeedings.
5.36 Under Item 3, Iran seeks compensation for the death and
injuries to Iranian personnel caused by the attacks on the platforms.
Compensation for this element of Iran's claim should be based not only on an
evaluation of the lives lost or persons injured, but also on thedamage caused to
the survivors from the loss of contributions and personal services provided to
them bythe deceased and for associated lossessustained byinjured personnel.
316
See,ArangioRuiz,G.: Second ReportonStateResponsibiliiy,S.&., pp.5-7,paras.13-
17.
317
Ago, R.: Second Report on State Responsibiliiy,Doc AICN.4E33 ,0 April1970.
Yearbookof the InternationalLawCommission,1970.Vol. II,p195,para.54.
31X Reportsof InternationalArbitral Awar,ol. IV,pp179-180.Exhibit120.
319 Awiirdoî30April 1990pp. 118-119paras.124-128. 5.37 The relevant elements of compensation applicable here
have been clearly spelled out by the United States-German Mixed Claims
Commission in the Lusitania case. There, the Commission granted payment of
amounts under three heads of damage:
"(a) which the decedent, had he not been killed, would probably
have contributed to the claimant, add thereto (b) the pecuniary
value to such claimant of the deceased's persona1 services in
claimant's care, education or supervision, and also add (c)
reasonable compensation for such mental suffering or shock, ifany,
caused by the violent severing of family tie Bo.as claimant may
actually have sustained byreason of such death- .
5.38 In the event of wrongful death, compensation should be
accorded for the loss of life regardless of whether the deceased was survived by
dependents or not. Indeed, in the absence of immediate family,the estate of the
deceased would normally go to the closest relative or, ultimately, to the State.
International practice recognizes the validity of claims based on this principle.
For instance, in the Mixed Claims Commission cases, the German Commissioner
observed that Great Britain -
"measured the damage caused ...by examining a 'considerable
number of cases' on lines substantiauy the same as established by
this Commission ..and that by thus reaching an average amount
they valued the life of each civiliannational on that basis e ardless
ofwhether the deceased %efs turvivingdependents or not 3M-..
In other words, compensation should be granted in case of wrongful death
independently of income, the existence of dependents or the age or financial
situation of the victim as a consequence of the loss incurred by the State for the
killingof one of itsnationals.
5.39 As noted above, under Item 3, Iran also requests
compensation for the losses sustained by persons on board the platforms as a
result of personal injuries. Such compensation should be granted in the form of
damages including, but not limited to, the injured persons' medical and hospital
320 GovernmentPrintingOffice, 1937,Vol. 1p.682. Exhibit 121. Detailed factorsIo be
consideredunderthis formulawerealso set outtheCommissionandarereprintedby
Whiteman.
321 Cited in Hackworih,G.H.: Diilestof InternatiLaw,Washington,U.S. Government
PrintingOffice. 194Vol.V, pp.747-748(cmphasisinoriginal). Exhihit 122.expenses and the loss of earning capacity for the whole penod during which they
were di~abled'~~. In this connection, the same phciples recounted above
relating to losses incurreas a result of wrongful death apply to individuals who
have been either incapacitated or otherwise injured as a result of the attacks.
5.40 Finally, Iran claimsfor any other elements of damage which
may be deemed appropriate in the circumstances due to the United States'
unlawful conduct. For the reasons stated above, these elements are more
practically addressed after the Court renders its decision on issues of liabilityand
responsibility.
5.41 On the basis of the above, therefore, and as a result of its
violationof the rules contained in the Treaty of Amity with Iran, the United
States is under a duty to pay compensation for the damage suffered by Iran as a
result of its unlawfulacts, in a form andunt to be subsequentlyquantified.
"' For an exhaustiverevinv of the case law on peinjuryB. Whiternan,M.M.:=.
&., pp.517-629. SUBMISSIONS
In the light of the facts and arguments set out above, the Government of
the IslamicRepublic of Iran requests the Court to adiudrreand declare:
1. That the Court has jurisdiction under the Treaty of Arnityto entertain the
dispute and to rule upon the claimssubmitted by Iran;
2. That in attacking and destroying the oil platforms referred to in Iran's
Application on 19 October 1987 and 18 April 1988. the United States
breached its obligations to Iran, inter alia,der Articles 1,IV(1) and X(l)
of the Treaty of Arnity and international law, and that the United States
bears responsibilityfor the attacks;and
3. That the United States is accordingly under an obligation to make full
reparation to Iran for the violation of its internationalgal obligations and
the injury thus caused in a form and amount to be determined by the
Court at a suhsequent stage of the proceedings. Iran reserves the right to
introduce and present to the Court in due course a precise evaluation of
the reparation owed bythe United States; and
4. Anyother remedy the Court may deem appropriate.
Ali
Agent of the Government of
the IslamicRepublic of Iran LIST OF EXHIBITS
Exhibit
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Session),68Stat., pp. 846-847.
2. Ramazani, R.K.: "Iran's Foreign Policy:Perspectives and Projections",
in Economic Consequences of the Revolution in Iran. A Compendium
of Papers submittedto the Joint Economic Cornmittee, Conmess of the
Washington, U.S. Government Printing Office, 1980,pp. 69-72.
3. Zabih, S.: The Mossadegh Era, Chicago, Lake View Press, 1982, pp.
124-126and 139-143.
4. "Accessto Oil - the United States7Relationships with Saudi Arabia and
Iran", Report Pre~ared at the Request of the U.S. Senate Committee
on Enerrrvand Natural Resources,-December 1977,95th Congress, 1st
Session, Washington, U.S. Government Printing Office, 1977,pp. 111-
113.
5. Diagram of the Reshadat and Resalat Platforms and Facilities.
6. Diagram of the Nasr Complex.
7. Preamble of the Treaty on International Borders and Good Neighborly
-Relations Between Iran and Iraq, Baghdad, 13June 1975,International
Lenal Materials, Vol. XIV, No. 5,September 1975,p. 1133.
8. Keesine'sContemporary Archives,7August 1981,pp.31005-31007.
9. Sick, G.: 'Trialby Error: Reflections on the Iran-Iraq War", Middle
East Journal, Vol. 43, No. 2,Spring 1989,pp. 230-245.
10. Yearbook of the United Nations, Vol. 35, 1981, p.239.
Il. Extracts from the Yearbook of the United Nations, Vol. 38, 1984, p.
232; Vol.39, 1985,pp. 247-248;Vol.40, 1986, p.233; Vol.41, 1987,pp.
232-233.
12. "Report of the Mission Dispatched by the Secretary-General to
InvestigateAllegations of the Use of Chernical Weapons in the Conflict
Between the Islamic Republic of Iran and Iraq", 19August 1988(U.N.
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1,the undersigned,AliH.Nobari, Agentofthe IslamicRepublicof Iran,hereby
certifythat the copyofeach document attachedinVolumesIIVtofthe
Memorialsubmittedbythe IslamicRepublicofIran isan accurate copy.
(Signed)
Agent ofthe IslamicRepublic
Memorial submitted by the Islamic Republic of Iran