INTERNATIONALCOURT OFJUSTICE
CASECONCERNINGOIL PLATFOMS
(ZSLAMICREPUBLICOFIRANV. UNITEDSTATESOFAMERICA)
-
COUNTER-MEMOIUALANDCOUNTER-CLAM
m.-- - SUBMITTEDBY
THEUNITEDSTATES OFAMERiCA TABLE OF CONTENTS
INTRODUCTION ANDSUMMARY
PART 1.STATEMENTOF FACT
CHAPTER 1. AN OVERVIEWOF THE "TANKER WAR"
CHAPTERII. IRAN'S ATTACKSONMERCHANTSHIPPING
Section1. The Flaggingof KuwaitiTankersUnder U.S.
Registryand the Launchof OperationEarnestWillby the
UnitedStates
Section2. Iran's Response to the Reflaof Kuwaiti
Vessels;Iran's First Attackon U.S.-flagShi--the
Miing of theOilTankerBridgeton
A. The Miningof KuwaitiWaters
B. The Miningof the US.-flag Bridgeron
Section3.IranianMiningActivitiesContinue;Hostile
EncountersBetweenU.S.and IranianForces
A. lranianForcesMine WatersOffthe Coastof
Fujayrah,Nearthe Entranceto thePersianGulf
B. September 1987: U.S.ForcesCapturean Iranian
VesselCaughtin the Act of LayingMinesin
InternationalWaters, andFindNurnerousMines
on Deck; the Mines Foundon thIraniaVessel
Matched Mines Laid Elsewhereinthe Gulf
C. October 1987: IranianVessels andthe Roçtam
Oil Platfom Fire Upon U.S. Helicopters
CHAPTER III.THE EVENTSSURROUNDINGIRAN'S 15
OCTOBERMISSILEATTACK ONTHETANKERSUNGARl
Ah'DIRAN'S16OCTOBER1987MISSILEATTACKON THE
U.S.-FLAGTANKERSEAISLECITY
Section1. IranianForces in the FawAreaLaunched
a Seriesof Missile AttacksonKuwaitiTemto~ in the
Monthsand Days Preceding theAttack onthe
U.S.-flagSeaIslCity
A. Captureof the FawPeninsulal
Early MissileAttacks
B. Identificationof the 21JanuaryMissile C. September1987: Missilc
Atiacksfromthe Faw Area
Section2. 15October1987: A MissileLaunched
Fromthe FawArea Strikesthe Libenan-flagSirngari
OutsideKuwait Harbor
Section3.The 16October 1987Atiackon the
U.S.-flagSeaIsle City
CHAPTER IV. IRANWASRESPONSIBLEFORTHE 16
OCTOBER MISSILEATTACKONSEAISLECITY
Section 1. TheMissileWas Land-Launchedhom the
Faw Area,Not Launchedfroman IraqiAircritft
A. KuwaitiMilitaryPersonnelObsewedthe
MissilesWhichStmckSungariandSeaIsle
CityandOtherMissiles Which StruckKuivaiti
Temtory Approaching from the FawArea 45
B. TheMissiles Firedat Kuwaitiemto~ Were
HY-2 CruiseMissiles--OrdnanceWhichCould
OnlybeLaunchedFrom Land 46
C. No IraqiAircraflCapableof Launchina
CruiseMissileat Sea Isle City WereAirborne
at the Time ofthe Attack 48
Section2. IranMaintainedMissile Sitesin the FawArea 48
Sectio3. TheMissile Which StruckSea IsleCiry
Had SufficientRangeto HaveBeen FiredFrom
the Faw Area 50
CHAPTERV. INRESPONSETO IRAN'SUNLAWFULACTS,
THEUNITED STATESTOOK DEFENSIVEMEASURES
AGATNSTIRAN'SROSTAMOIL PLATFORM COMPLEX 53
Section 1. TheFormulationof a U.S. DefensiveRespon--
ConsiderationofPossible Targets 54
Section2. TheDecisionto SelecttheRostamPlatfonn
Complex asthe Targetof the U.S. DefensiveResponse 55
A. DocumentsSeized fromthe IranianMineLaving
Vesse1IranAjr ShowedRostam'sMilitaryRolein
AttacksAgainstMerchantShipping 57 B.Credible ShippiandDefense SourceThat
MonitoredtheTankeWar ReportedThathanian
Forces LaunchedAttackson MerchantShipping
fromthe Oil Platforms 58
C. Iran'sAttackingHelicoptersand Gunboats
Required OffshoreAssistanceFrom Iran'sOil
Platforms 63
Section3. The United StatesTookDefensiveMeasures
Againstthe RostarnPlatformComplex 71
Section4. DocumentsDiscoveredon the RostarnPlatform
ComplexConîïrmedthe MilitaryFunctionofRostam, Sim
and Sassan 77
CHAPTER VI. USSSAMUELB. ROBERTSSTRIKESAN
IRANIANMINE, ANDIS SEVERELYDAMAGED 77
CHAPTER VII. INRESPONSE TOIRAN'SMINING OF
US'SSAMUEL B. ROBERTS,THEUNITEDSTATES
TOOKDEFENSIVE MEASURESAGAINSTIRAN'S
SASSANAND SIRRIOILPLATFORMS
Section 1. Thecisionto TakeDefensive
Measures
Section2. U.S. ForcesAttackthe Sassanand
SirriPlatfonns
PARTII. U.S.MILTTARYACTIONSAGAiNSTTHE
PLATFORMSDID NOT VIOLATEARTICLEX(l) OF
THE 1955TREATY
CHAPTER 1. THE U.S. MILITARYACTIONSDIDNOT
VIOLATEARTICLEX(1) BECAUSETHATPROVISION
MERELYESTABLISHÈS A GENERALGOAL,NOT
ENFORCEABLEOBLIGATIONS
Section1. The Court'sJudgmenton Jurisdiction
DidNot ResolveAl1InterpretiveIssues Presented
byArticle X(l)
Section2. ArticleX(1)Establishesa GeneralGoal,
Not SpecificLegal ObligationsThatCan Be
EnforcedBythe Court
CHAPTERII. IRANHASFAILEDTO SHOW THAT
U.S.ACTIONSAGAINSTTHEPLATFORMSHAD ANY
CONSEQUENCESFORTRADEBETWEENTHE PARTIES Section 1. Article X(l) Can OnlyApplyto IranianTrade
With the UnitedStates
Section2. IranHas Not EstablishedthatU.S.Milit-
ActionsAgainstthe PlatformsHadAnyEffectUpon
IranianTradeWiththe United States
Section3. The Court'sJudgmentin theNicaragua
CaseisNot Pertinent
PARTIII. THEU.S.ACTIONSAGAINSTTHE OIL
PLATFORMSCAMEWITHIN THE EXCEPTIONCREATED
BY ARTICLEXX(l)(D)
INTRODUCTION
CHAPTER 1.ARTICLEXX(I)(D) CLEARLYAPPLIESTO
THIS CASE
Section 1. TheLanguageof Article(d) 1sBroad
in Scope
Section. U.SMeasuresMetthe Requirementsof dic
Exception
Section. Other GovemmentsAlso SawIran'sActions
As ThreateningTheir Security Interests
CHAPTERII. THENICARAGUACASEDOESNOT LIMIT
THE APPLICATIONOF THEEXCEPTIONHERE
CHAPTER III. THEHISTORY AND CONTEXTOFARTICLE
XX(l)(D) CONFIRMITS BROAD SCOPE
CHAPTERIV. THE APPLICATION OFARTICLEXXI(1XD)
OBVIATESTHENEED TORESOLVE ANUMBEROF ISSUES
REGARDINGTHERIGHT OF SELF-DEFENSE
PART IV. U.S. MEASURES WERELAWFUL ACTIONS IN
SELF-DEFENSE
CHAPTER1. THEACTIONSOF U.S.FORCESAGAiNST
THE OFFSHOREPLATFORMSWERE LAWFULACTIONS
IN SELF-DEFENSERESPONDING TOARMEDATTACKS
BY IRAN
CHAPTER II. THEU.S. ACTIONS SATISFIED THE
CHARTER'S REQUIREMENTSREGARDING FORCE
AND SELF-DEFENSE Section 1. Self-Defcnseand thc Charter
Section.The Rightof Self-DefenseMustbeAssessedin
Light of Al1of the SurroundingCircumstances
CHAPTER III. IRAN'S ACTIONS WEREARMEDATTACKS
Section. Iran'sActions WereArmed Anacks
Section. The Attack onSeaeiiyWasanArmed
AttackAgainsttheUnitedStates
Section. TheNicaraguaecisionand ArmedAttack
CHAPTER IV. THEUSEOFFORCE WASNECESSARY
Section. ThereWereNo Peaceful Alternativesto Self-
Defense
Section. Actionin Self-DefenseWasNecessaqrto
Restore Security
CHAPTER V. THEU.S.USEOF FORCEWAS
PROPORTIONATE
CHAPTERVI. THE U.S. ACTIONS WERETIMELY
CHAPTERVII. THE PLATFORMSWERELAWFUL
TARGETS, ANDU.S.ACTlONSOTHERWISESATISFIED
ALL APPLICABLEREQUIREMENTSOF THELAW
CHAPTERVIII. THE U.S. ACTIONS WERENOT REPRISAIS
CHAPTER IX. THE 1955TREATYDOESNOT LIMITACTIONS
TAKENIN SELF-DEFENSE
PART V. THE COURTSHOULDDENYTHE RELIEF SOUGHT
BYIRAN BECAUSEOFITS OWNILLEGAL CONDUCT
PARTVI. COUNTER-CLAIM
CHAPTER1. FACTUALBACKGROUND
CHAPTERII. JURISDICTIONAND ADMISSIBILITYOFTHE
COUNTER-CLAIM
CHAPTER III. IRAN'S ACTIONSAGAINST U.S.VESSELSVIOLATEDARTICLEX OFTHE 1955TREATY 171
Sectio1.Applicationof ArticleX(1) 171
Section2. Applicationof theRemainderof ArticleX 172
SUBMISSIONS
TABLE OFMAPSAND ILLUSTRATIONS
TABLE OF EXHIBITS COUNTER-MEMORIALAND COUNTER-CLAIM
OFTHE UNITEDSTATESOFAMERlCA
INTRODUCTIONAND SUMMARY 1
1.01 In its 12December 1996Judgment,the Court decided that it hadjurisdiction
inthis caseto consider only Iran'sclaimsbased upon ArX,paragraph 1of the 1955
TreatyofAmity, EconornicRelationsand Consular Rights between the UnitedStates
and Iran. Thereafter, on 16December 1996,the President of the Courtredthe
United Statesto file this Counter-Memonal by23 June 1997.
1.02 Thc United States will showinthis Counter-Memonal that Court should
reject Iran's claims on four scparategrounds,each one of which independentlyrequires
dismissalof this casc. First,the actionsof the United States did not violateArticle X(1)
of the 1955Treaty becauseof the lirnitednature of any obligations underrhatArticle,
and becauseIran's offshoreplatformswerenot producing oil that couldhaveentered
commercebetweenthe territones of Iranandthe United States. Second the U.S.
T
actions were "necessaryto protect" the "essentialsecurity interests" of theUnited States
and werethus excluded from the TreatybyArticle XX(l)(d). ïhird, these actionswere
lanful because they weretaken in legitimateself-defense in respunla\ifiarmed
attacksby Iran. Fourth, the Court should denyrelief to the Islamic RepIrancof
becauseofIran'sown senous violationsof the Treaty. 1.03 Surnrnary of the Counter-Mernorial:The Facts. Par trif ihiCsounter-
Memorialcontainsa detailed examinationof the factsand evidence disproving Imn's
claims. This evidencecontradicts many of Iran'smost important fachial representations.
The facts are provedby many different types of evidence. These include higi-~ly
incriminatingcaptued Iranian miliiary orders and communicationsshowing the
platforms' role in Iran's attacks against shipping. There are statements by senior
military oîfïcers and other well-informed officiais from the United Statesand other
countries. Thereare documents and other evidenceasgmbled by several governments
and armed forces;reports from respected internationalshipping sources; analysesby
military expertsof several nations; and much other evidence,including physical
evidence.'
1.04 The evidencedocuments Iran'sattacks upon U.S. and other neuml shipping
in theGulfandexplains the role of these attacks in Iran'ssuategy in the Iran-Iraq War.
Capturedrecordsof lranian naval communications, contemporary reports fromshipping
sources,and reportsof naval analysts,show the importance of Iran's offshoreplatfonns
in Iran'snaval command, control, communications and intelligence systems, andaddto
the proof of theplatforms' role in guiding and conducting h's artackson neutral ships.
1
TheevidentiaryAnnexessubmittedwiththe U.S.Counter-Mernoriac lontainnumerousforms
of evidence,includingIraniandocuments,statementsofwiinesses,reportsofexpertsandexpert
shippinganddefenseinformation organizations,photographs,andneivspaperrepons. In nocase
doestheUnitedStatesrelyprimarilyonnewspaper reports to provefactsrelevantto itsdefense.
Suchreportsaresubmittedforthepurposeofcorroborating, and providingcontextto,other
sourcesofevidence. Thesubjectofmanyofthesereportsaremanersofpublicknowledge
whichreceivedextensivecoverage in the worldpress.Other reportsdocumentthe statements of
high-rankingIranianoficials. 1.05 The evidence showshow Iran carried out deadlyarmedattackçon U.S.
vessels. Eyewitness accountsof Iran's missile anackon theU.S. - flag tanker
Sea IsleCity on 16October 1987,analysis of missile fragments,and satelliteimagery
help to demonstrate Iran'sresponsibility forthat anack. Compellingevidencederived
hm mine warfare expertsof severainations, includingthe physicalcharacteristics of
the mines involved, establishIran'sresponsibility for the 14April 1988mine attack
upon USSSamuelB.Roberts.
1.06 Legal Issues. PartII of this Counter-Memorial considersthe interpretation
and applicationof paragraphX(l) of the 1955Treaty in light ofthe Court'sDecember
1996Judgment. It shows howU.S. actions did not violateparagraphX(1)of the 1955
Treaty kcause the aspirationaland imprecise characterofrha~ provision doesnot give
riseto relevant lepl obligations. Moreover,Iran's offshoreplatfoms werenot engaged
in producing oil that could have entered commerce betweenthetwntones of thetwo
parties. Theplatform at Rostamwas not producing oil at al1in October 1987 Liecause it
had been seriously darnagedby Iraq; at the time of the April 1988U.S. actions against
the platforms at Sim and Sassan,the United States had prohibitedimports of Iranian oil
andbilateral oil trade had cometo an end.
1.07 Part III analyzesthe application of paragraphXX(l)(d) of the 1955Treaty,
which excludes from the Treaty'scoverage any measuresby a party "necessq ta
protect its essential securityinterests." This Partanalyzesthe scopeand meaning of this
provision, showinghow the U.S.defensive actionsagainst Iran'soffshore platfoms
cleady met its requirements. Part III also reviewsthe historyofpamgraph XX(l)fd) and othersimilarprovisions, showinghowtheyconsistentlyhaveken understoodto
createa broadexemption to the Treaty'srequirementsin securiernatters.
1.08Par IV examines the lawofself-defensein responseto armedattack. The
partiesgreethat there is no internationalresponsibilityfor actionstakenin lawfülself-
defense.Par tV thus showshowtheU.S.actionsrespondedto armedattacksby Iran
onU.S.vesselsand nationals,and werenecessaryand appropriateto restoretheir
securityandprevent continuingattacks. TheU.S. actionsurereproportiIOthe
antecedentattacks, and were deliberately limited innd duration. Theywere
plannedand conductedso asto avoidunnecessarysufferingand collatemldamage.Part
IV alsorefutesIran's claim thatthe U.S.actionswerereprisalsintendedto inflict
economicdarnageand not actionsinself-defense,recalling howiran ud its platforms
to coordinateand conduct attackson U.S.and otherneutralvessels.
1.09PartV showsthat Iran'sunlawfulattackon U.S. and otherneutralships in
the Gulfprecludeit fiom obtainingthereliefit seeksfromthis Court.Parsrecalls
that Iran'sattacksviolated ArtXcof theTreatyand other relevantlegaldes, and
shows howIran may not selectively invokethe Treatytoain redressforalleged
violationsof legal obligationswhichit has itselfviolated in a grossand systematic
manner.
1.10 The Counter-Claim. Finally,Par tI setsforththe U.S.counter-claimin
this case,which is based on factsdirectlyat issueiningIran'sclaim. TheUnited
Statessubmitsthat Iran's actionsinthe Gulfduring 1987-88which,among otherthings,
1
\ involvedmining and otheranacks onU.S.-fiagor US.-owned vessels,bothjustified the actionstaken in self-defenseagainst the offshore platformsand constituted a violation
of ArticleX of the Treatyof Amity for whichreparationshouIdbe paid to the United
States.
L11 As requiredby Article 80of the Court'sRules,this counter-claim is
"directly connectedwiththe subject-matter" of Iran'sclaim,and "comes nitfiin the
jurisdiction of the Court." Inthe counter-claim,the UnitedStatesseeksrecompense for
damages it sufferedas a result of Iran'srecurringand significantbreaches of its
obligations under ArticleX of the 1955Treaty.
1.12 The Effect of theJudgment of 12 December 1996. We conclude this
introductionwith a briefobservation concerningthe futureproceedings in light of the
Corn's December 1996Judgment.
1.13 The Court didnot accept the U.S. contentionthatthe 1955Treaty does not
regulate questionsinvolvingthe use of force, concludingthat "(m)attersrelatinIO the
use of force arenot..pi se excluded frornthe reachof theTreaty of 1955'." The
Court further found thatneither Article 1nor ArticleIV(1)of the 1955Treav provides a
basis for Iran'sclaimsagainst the United Statesor forthe Court'sjwisdiction under
Article XXI, paragraph2 of the ~reaty~.The Court concludedthatitsjurisdiction with
respect to Iran's claimsas limited to the considerationofclaims underArticle X(l) of
the Treaty. Al1of Iran'spast allegations regardingal1fom of allegedU.S.
2Ibid.. para21.
;Ibid.,paras.31,36.rnisconduct,otherthan theU.S.actionsagainst the oïlplatforms,areacccordinglyno
longerst issue,and the UnitedStateshas not addressedthern inthisCounter-Mernorial.
1.14 The United Stateshasbeenguided by the Court'sJudgmentinpreparingthis
Counter-Mernorial. Underthe Court'sStatuteand Rules,both Partiesare boundby the
Judgment. The Court havingdecidedthat Articles 1 and IV do notprovidea legalbasis
for Iran'sclaims against theUnitedStates,the Partiest reargue thepoinr. PART 1
STATEMENT OF FACTS
CHAPTER1
AN OVERVIEWOF THE "TANKERWAR"
1.01. The setting forthis caseis the Iran-Iraq War,whichwas fought during the
pend 1980 - 1988. In 1984,theconfiict spreadto the waters ofthe PersianGulf and
began affectingthe lives and commerceof neutrals. In someof thefirst incidents of what
becameknown as the "Tanker War,"Iraq comrnencedattacksagainsttankers carrying
Iranian oil through the Gulf, seekingto dismpt Iran's oil indushy andto depnve Iran of
oilrevenues. Iraq's attacks,accomplishedlargely by fighteraircraft,targeted tankers
exportingoil from Iranian terminai--in most cases on the Imniansideof the Gulf,
within 80 nautical miles (148 kilometers) ofKharg 1sland4.(SeeMap 1.1on the
followingpagc.)
1.02. Because Iraqexported its oil through overland pipeline,mther than
seagoingtankers, Iran could not respondin kind againstshippingdirectiylinked to Iraq's
oil economy. Instead, Iranretaliatedby attacking neutral commercialshippingtransiting
4International AssociatinfIndependentTankerOwners("Intertankon) ,rm/Iraq Conjlict, The
TankerWar-NoEnd?, June 1988,p. 23,("TheTankerWar"), Exhibit1;GeoeralCouncil of
BritishShippingIranUraq:TheSituation in theGu%Guidancefites ForShipping, Febmary
1988,p. 32,("Guidance NotesForShipping"),Exhibit2,("[Iraqiattackonshipping,with
severalnotableexceptions,havebeenconfinedto theIraniansideofthGulfand, inparticular,
to thearearound and tothesouthofKharg Island"). fran
Saudi
Arabia toandfrom the ports of Gulf Cooperation Council member dates, particularly Saudi
Arabia and ~uwait'.
1.03. In September 1980, Iran issued a "Notice to Marinets" establishg a
mime exclusion zone; commercial vessels not inbound for Iranian ports were ordered
toremain outside the area noted on map 1.1--between 12-60nautical miles (22-111
kilometers) from Iran's coastline. The stated purpose of the exclusion mne was to
"ensure the safety and security of commercial shipping" by decreasing the likelihood that
commercial vessels would come under attack by Iraqi forces targeting shipsthatappeared
to be bound for 1ran6. The effect othe exclusion zone was to narrow substantially the
navigable waterswhich commercial shipping transiting the Gulf could safely use,and to
channel maritimetraffic within close proximity of Iran's offshore oil platfoms. (See
iMap 1.2on the following page.)
1.04. The events of 1984-88 pointedly demonstrated rbat lm's actions were not
consistent with the "safetyand security" concems expressed in its Notice to Mariners.
5 SeeGeneral Councilof British Shipping,GuidanceNotes ForShipping, p.30,Exhibit 21
Intertanko,TankerSafeetyCircularLetterNo.52, 12Febmary1986,Exhibit3; TedHooron,"The
Tanker WarintheGulf, 1984-1988,"Jane S IntelligenceReview,May 1992,p.218,Exhibit 4;
JohnJordan,"TheIranianNavy,"Jme'sIntelligenceReview,May 1992,p. 215,Exhibit 5 .
AccordingtoJane'sDefence Weekiy,Iran's MajlisSpeakerHashemi-Rafsanjani wamed
in a 1986PasdareIslamarticlethat Iranwouldusesurface-to-surfacemissilesasainst Saudiand
Kuwaititerritos..Thearticleconstituted"thefirstofficialadmissionby IranthattheIranianAir
Forcehad stnickSaudiArabianand Kuwaititankersin air strikesagainsttankertrafficinthe
PersianGulf." "IranadmitsGulfattackson merchantships,"Jane'sDefince Weekiy,9August
1986,p. 195,xhibit6. BecauseIrantargetedships tradingwithKuwaitforattack,insurance
ratesforshipstravelingto andfromKuwaitnearlydoubledin 1987. See "Hoiuinsurersassess
shippingrisks,"Lloyd's List,August7, 1987,p. 2, Exhibit.
6
Iran's"NoticetoMariners"wasreprintedin General CouncilofBritish Shipping,Guidance
Notesfor OwnersandMasters withvesselsin theArabianGulf;29 June 1984,pp. 3-4,Exhibit8. According to credible public sources, Iranian forces--regularairforce and na? units,
and lranian Revolutionary Çuard personnel -- were responsible for more than 200 attacks
on merchant shipping oursidethe Iranian exclusion zone, in international waters andthe
territorialeas of ~ulf states7. Iranian forces attacked the vessels31fflag nations,
killing at lea63 people8. As will be detailed below, three U.S.-flag vessels(that is,
vessels under U.S egistry), and at least six U.S.-owned vessels flying the flaof other
stateswere among the neutral vessels subject to assault. In the wordsofCommodore
Mohammad Hoseyn Malekzadegan, commander of the Iranian Navy, theharassrnent and
attack of neutral shipping was "awholehearted task by the [Iranian]Kavy over the past
7
SeeLloyd's Maritime InformationService, VesselsReportedToHave Beei Arrackedand
Damaged DUC IOACIS ofHostilifyBy theIruqisandIraniansintheGuf/AreaSinceMay 1981,
("VesselsDan~aged intheGulf') Exhibit 9. VesselsDamaged inrht Guv was wmpilcd by
Lloyd's, theauthoritativemaritime informationservices Company.In monitoringthe Tanker
Wmr, Lloyd'sturned to a variety of sources including"local Lloyd'sAgencies, news agencies
and also shipowners,shipmanagers,shipbrokers and insurers." Information received by Lloyd's
"was checkedby the CasualtyDepartment to confirtn the validity,ensuring that each vessel that
was reported to have beenattacked wasactually in the area. Tothis end, Lloyd'sAgents, Marine
Radio Stations,mg and salvagecompanies and vessel owners/managerçwould be contacted to
veriS this information." Statementof Norman Hooke,AssistantManager, Lloyd's Maritime
Information Service, 15May 1997,para. 19,Exhibit 10.
SPealso Statementof Captain Christen Feyer Puntervold15January 1997,and the 6
January 1989Letter fromCaptain Puntervold to Nonvegian WarRisks Insurancefor Ships
Managing DirectorHans PeterMichelet annexed thereto, Exhibit 11. Captain Puntervoldwas
the director of the NonvegianShipowner's Association (NSOA)Contingency Planning Section
duringthe Tanker War. TheNSOA record of Iran's attackson shipping is attached to his 6
January1989lener at Exhibit 12. Other recordsof lranian ship attacks are containedin General
Council of British Shipping,GuidanceNotesfor Shipping,pp. 5-20,Exhibit 2; Intertanko, The
TankerWar,pp. 3-4, Exhibit 1. Of the Iranian ship attacksdepictedon Map 1.4,208 are
documented inthe references notedabove. Six additional attacksureredocument4 inU.S.Navy
records.
Vessels ofthe followingflagstates were attacked: Bahamas,Belgiurn,Republicof China,
Cypms, Denmark,France, Germany,Greece, India, Italy, Japan,Kuwait, Liberia, Maldives,
Noway, Panama, Pakistan,Philippines,Qatar, Romania, SaudiArabia, Singapore. South Korea,year [1987-881, comprising indirect hlows inparticular IOthe US. fleet,afïecting both its
warships and its merchant vessels, with minesor missiles9 ... ." Iran's attacks spanned
much ofthe Gulf, ranging fromthe coast of Kuwait in the North, to the coast of Oman in
the South. Iran used mines, fighter aircraft, helicopters, gunboats, Iranian Navy warships,
and cruise missiles to accomplish these atta~ks'~. (See IlIustration 1.3and Map 1.4on
the following pages.)
1.05. Iranian helicopter and gunboat attacks on commercial vessels ivere
launched in the northem Gulf from Farsi Island, and inthe southem Gulf,from Abu
Musa and Sirri Islands, and from Iran's oil platforms". Typicaily, the gunboats
"approached close to their victims in order to rake them with automatic weapon fire,
usually with amour-piercing bullets, and then delivcr the coup de grace icith ar~cket'~.''
SovietUnion, Spain,SriLanka, Turkey,United ArabEmimtes,UniiedKingdom,UnitedStates,
andYugoslavia. SeeIntertanko,TheTankerWar,p. 43,Exhibit 1.
9
ForeignBroadcastInformationService,"RadioPhone-In Progam WithDefenseOfficiais," 14
April 1988,p. 53, col.2 (ernphasisadded)(programentitled''InLiaeWith theOfficiais,in Step
Withthe People),Exhibit 13.
10
GeneralCouncilof BritishShipping,GuidanceNotesForShipping,pp.35-38;Exhibit2;
StatementofNorman Hooke, para.30,Exhibit 10;Intertanko,The Tanker Ww, pp. 24-25,
Exhibit1;Jordan,Jane'sIntelligenceReview,p. 215,Exhibit 5;"Gulf WarIntensifies,"
InremationalDefenseReview,March 1987,p. 279,Exhibit 14;Hooton,Jane'sIntelligence
Review, p. 220,Exhibit4; "Iran BuildingUpItsOwn Arms indu^,'' Janek Sfence Weekly,
20June 1987,p. 1302,Exhibit 15.
IIGeneralCouncilof BritishShipping,GuidanceNotes ForShipping,pp.38,41, Exhibit2;
Jordan,Jane'sIntelligenceReview,p.215,Exhibit5 (Iran's gunboatswere"scatteredamongthe
smallIranian-heldislandsandoilplatformsat the southem endoftbeGulf.);see also pp. 58-63,
para. 1.88infra.Iran'soil platformsareoften referencedby alternativenames. References
hereinto the Rostam platform cornplexor Rostamoil fieldencompassboth the oilplatforms
designatedReshadatandResalatinIran's submissions. See Iran'sMernorial,para. 1.13-1.18.
Theplatforms described herein asSassanand SirriaredesignatedSalmanandNasr,respectively,
in Iran'ssubrnission.Ibid.
l2Hooton,Jone S Intelligence Reviewp, .220,Exhibit4.
10 IranianWeapon Systems
lncendiary
Rounds used to AttackMerchantShipping in the Gulf,
L I 1984-1988 1 Mine
RevolutionaryGuard
"Ashura"AttackCran lranian Ship Attacks
1984-1988
lranianExclusion Zone
Shipnacks
Kilometers
NauticalMiles
Iran
Numberof Attacks
1984 18 1987 90
1985 16 1988 48
1986 42 Total 214
Owner's Association, Councilhip
of British Shipplng,and U.S. Navy
Records The Oslo-based International Associationof Independent Tanker Owners --an
organization with every economic incentive to maintain stric~neutralityin thelm-Iraq
\va-r-concluded that the "main objectives" of Iran's gunboat attacks on commercial
vessels were "to kill sailoras an act of terrori~m'~." Thatthe plain purpose of many of
these attacks was to kill mariners was evident from their character. From very close
range, Iranian helicopters and gunboats often fired machine guns, rocket-propelled
grenades, and missiles into theaccommodations quarters of vessels, targeting the crew
members housed within,rather than other areas of a shipwhere crew members would not
be found14.
1.06. The targets attacked by Iranian forces frequently appeared to be chosen
carefu~l~'~.After identifying their targets, lranian helicopters, gunboats and namunits
13
Intenanko, TheTankerWur,p. 25, Exhibit 1Crewson merchantvessels entering theGulf war
zone had therightto decline the voyage, andcompeltheir employerstoseek substitutecrews,
but "many seafarersdid notexercisethis option for fearof prejudicing theirjobs or career
prospects." "Ships banned from Gulf of Oman dangerzone," Lloyd'sList,August 14;1987,p.],
Exhibit 16.
i
14The Lloyd'sMaritimeInformation Service compilationof Tanker War ship attackscontains
numerous examplesof Iranian forcestargeting accomodationsquarters, includingthe following:
18 February 1985 attack onAl-Manakh(missilesfired into crewaccomodation qiiarterkilling '
one crew member); 21 May 1987 attack on Rashidah(12 rockets and100 heavy machine'pn
roundsfired intoaccomodationand engine room); 27 June 1987attack on ~WiaiMmgarhe(crew
quarters stnick by rocket-propelled grenade14;January 1988 attack onPenobulkPioneer
(Ïranianfrigatefired 4.5 inch shells, rocket-propelled grenadesandmachine gunrounds into
accomdation area); 22 March 1988 attack on Sravros(rocket-propelled grenadesfuedinto
accomdation area). See VesselsDamagedintheGulf,pp. 22,-69:71;102, 111,Exhibit9 see
also Intertanko,TankerSafetyCircularNo.54, 16 April1986, p.4,Exhibit17(5 April1986
attack onPetrostarXYI; crewaccomodations area gunedupon king struck by missiles fired
hm two helicopters,injuringseven crew).
1s
StaternentofNorman Hooke, para. 31,Exhibit 10;Contre-amiralMichel (R)Hegeret Yves
Boyer,"US. and Iran issues in the Gul(1987-88),"pp. 5,7, Exhibit18.would stand off, seeking permission to attack, and then return to artack if permission was
granted'6.
1.07. Iran did not limit its attacksto vessels canyinwar rnateriel destined for
Iraq. Nor does the public record reflect thaIran limited its attacks to vessels that resisted
Iranian efforts to visit and search for war materiel". The United States has identified
only one instance in which a commercial vessel was attacked upon refwing to submit to
interrogation or search. In fact,ranian forceswere knoim to amck commercial vessels
without even first attempting to interrogate them, and in oiher circumstances attacked
vessels that willingly submitted to interrogation1'.
1.08 Iran often assured other Statesthat its forces would noattack their shipping,
and then reneged on such assurances. Following two anacks on Norwegian merchant
16Ibid.;see also "Newpatternofattackon shipstradingwithKu~ait,"LIoyd'sLisLJanuary 13,
1987, Exhibit 19(uponintemogatingvessels,Iraniangunboatswould"allowthevesselto
continueonher mute,often leavingher inthe belief thatshe isclearof suspicion. Then,within
hours,anlranianhelicopteror gunboatclosesin for an attack.');GeneralCouncilof British
Shipping,GuidanceNotesForShipping,pp.37-38,Exhibit2;Intertanko,T&r SaferyCircular
LefierNo. 62, 12December1986,p. 2, Exhibit20(the CrownHope meas interceptedby an
Iranianfrigate"abouttwohours"beforethe frigatereturnedto attack.);Intertanko,TankerSafey
CircularNo. 54,16April1986,p. 3, Exhibit 17("to be ableto identifyvessels"Iranian
helicopters attackedindaylight).
" Statementof NormanHooke,paras. 23-24,Exhibit 10.
l8Iranianforcesregularly attacked withoutttemptingfirstto interrogatethe shipstheytargeted.
See,e.g.,Reuterswire report,9July 1987,reprintedinLloyd'sWeekbCasuairyReporting
Semice,Exhibit21,quotingthemasterofthePeconic,attacked by an Iraniangunboat("Without
askingme anyinformation --the nameofthe ship, nationality,fromwhere1was comingor
where 1wasgoing --theystartshooting grenades.Wecount 18grenades.") In thosecases when
Iranianforceselectedto interrogatevessels,and didso successfuilywiththecooperationof ship
masters, they persistedinassaultingthemerchantshipsthey queried.For example,before
attackingthe FiveBrookson 17October1986,killingtenpeople, and theAlFaihaon22
October 1986, Iraniangunboats "interceptedthe tankersand askedfordetailson cargoand
destination." Intertanko,TankerSafetyCircularNo. 61, 12November 1986, p.2,Exhibit22 . vessels, Nonvay protested diplomaticallyto Iran in December 198Imnhad previously
assured Nonvay that Nonvegian ships would not be subjectoattack". Weeks later, two
Iranian gunboats attacked the Nonvegian-flIglooEspoo, firing rocket-propelled
grenades and machine-gun rounds20. On 18 March 1988 Iranian gunboats raked the
Nomegian tanker BergeLord with machine-gun fire2'. Similarly, in July 1987,Iran's
national assembly speaker Hashemi-Rafsanjani assured Japan's foreign rninister Tadashi
Kuranari that Iran would not attack Japanese shipping in the PersGUI? D^espite such
assurances, Iranian gunboats firing rocket-propelled grenades attacked the Japanese-flag
NisshinMaru on 2 September 1987,and the Japanese-flag NichiharuMaru on 30
September 1987~~.
1.O9 The onset of attacks on shipping producean irnmediate mtion hm the
world community. On 21 May 1984,the Permanent Representatives of Bahrain,Kuwait,
Oman, Qatar, Saudi Arabia and the United Arab Emirates to the United Nationsrequested
an urgent meeting ofthc United Nations Security Council "to considthcIranian acts of
19
WonuayTellsIranIt WillNot TolerateGulfShipStrikes,"Reuiers24 December1987,
Exhibit23.
20Lloyd'sMaritimeInformationService,VesselsDamaged intheGu8 p. 102,Exhibit9.
2'"IranattacksPanamanianandNonuegiantankersinGulf,"BBC Summaryof World
Broadcasts,19March 1988,Exhibit24.
""Iran Promisedto LeaveJapanese ShippingAlone, KunarSi ays,"KyodoNewsService,Japan
EconomicNewswire,4 July 1987,Exhibit25.
23SeeLloyd'sMaritimeInformationService, VesselsDamaged intheGu&pp.78,82, Exhibit9.aggression onthe freedom of navigationto and from thE port ofour counhies. Such acts
of aggressionconstitutea threat to the stabilityand securîtyof the area ....""
1.10 By Resolution 552 (1 June 1984),the Security CounciI condemnedIran's
attackson commercial shipping, and demanded "that there should be no interferencewith
ships en route to and frorn Statesthat are not partiesto the hostilities2'." Convincedthat
these attacksconstituteda threat to the safety andstability of the region, with serious
implications for internationalpeace and security,the SecurityCouncil called on al1States
to respect the right of fiee navigation and warned Iranthat, in the event of non-
cornpliance, it would consider "effective measures."
1.11 In 1986,the SecurityCouncil fhhered deplored attacks on shippingby Iran
and Iraq in Resolutions582 and 598, and again calledupon the belligerentsIO respect
''thtreght of freenavigation and commercez6."
1.12 As aneutral Party,the United Statessupponed the effortsof the United
Nations, the Nonaligned Movement, and the Organizationof the Islamic Conferenceto
endthe Tanker War and the underlyingconfiict between Iran and Iraq. The aimofthe
United Stateswas a diplomatic resolution that would assurethe independence and T-
territorial integrityof both belligerents,and providesecurity to neutral Gulf Cooperation
''Andrea deGuttryandNatalinoRonzitti ,TheIran-IraqWm (1980-1988)and theLaw of
iVmal Warfare (1993)(hereafier,"deGuttryandRonzitii"J p.536,Exhibit26.
Resolution552,UnitedNations SecurityCouncil(2546thmeeting,1June1984),reprintedin
UnitedNationsDocument SlRESl552,Exhibit27.
'6 Resolution598,UnitedNationsSecuriiyCouncil(2730thmeeting,22December1986),
reprintedinUnited NationsDocumentSANFl42,p. 13,Exhibit27; See alsoResolution 582,
UnitedNations Security Council(2666thmeeting,24Februaq 1986)reprinted in United
NationsDocument SIRESt582,Exhibit29. Council States that weredirectly threatcned by the hostilities. Itwas thereforethe policy
of the United States to prohibit U.S.arms exports both to Iranand 1raq2'.
1.13 The internationalcommunity's efforts to facilitateapeaceful resolution to
the Iran-Iraq conîlict proved unsuccessful formany years. As detailed below, it was both
the poIicy and the practiceof the United States to insist that, sa long asthe warraged on,
the belligerents respectthe neutrality of statesnot party to the conflict, and the right of
such states to navigate fieely their vessels through, and engagein commerce in, the
Persian Gulf.
27"U.S.PolicyinthePersianGulf," U.S.Departmentof StateSpecial ReportNo. 166,p. 9, July
1987, Exhibit 30.
15 CHAPTER II
IRAN'S ATTACKS ON MERCHANTSHIPPING
Section 1. The Flagging of Kuwaiti Tankers Under U.S. Registiy and the Launch of
Operation Earnest Will by the United States
1.14 In late 1986and early 1987,Kuwait requested the United States,the United
Kingdom, and the Soviet Union to reflag a number of Kuwaiti vessels. Kuwait's request
was prompted by the recognized factthat Iranian forces u7eretargeting Kuwaiti vessels
foranack in Persian ~ulf watersz8.
1.15 The United States,the UnitedKingdom, and the SovietUnion al1responded
to Kuwait's request. Consequently,the Kuwait OilTanker Company chartereda number
of Sovietvessels, flagged four shipsunder United Kingdom regisky, and flagged eleven
shipsunder U.S. regis~29.
1.16 Iranvehemently and openlyopposed the U.S .ndBritishfiagging of
Kuwaititankers3'. Irandisputed, andapparently still disputes, the legality of this
procedure,claiming that the transferof registry was intendtoaidIra qgainst han3'. In
28Seesupra note5.
29Interanko,TheTankerWar, p.6,Exhibit1;StaternentofColinEglington,8May 1997,
para.17Exhibit3 1.
Iran'sMernorial,paras.1.52-.53,4.61-6see alsLetterfrom IraniaForeign Minister
Vellayatto theU.N. SecretaryGeneral,23July 1987quoted inportin 33Keesings Recordof
World Events35598,Exhibit 32and Iranv.UnitedStates (CaseConcerning theAerial Incident
of3 July1988).MernorialoftheIslamicRepublic ofIran,234-35,Exhibit33.
31Iran's Mernorial,ara4.75at 117;Annexto Iran'sObservationsandSubmission,p. 5, para.
12. fact, theU.S.flaggingprocedure was consistentwith international law and applicable
U.S. lam. As discussed below in PartIV,paragraph4.13- 4.18, the UnitedStatesfully
satisfiedtherequirementsof international and U.S. law, and established, in conformity
with internationallaw, a "genuine lin!?'betweentheUnited States and the registered
vessels by exercisingitsjurisdiction and controiin administrative, technical and social
matters.
1.17 Nordid the flagging of Kuwaiti vesselsunder U.S.registry affect their
neutralstatus.Thevessels did not carry war matenel and did notcal1at eitherIraqior
Iranianports. Iranhas not presented anyevidenceto dispute these facts.
1.18 In additionto flagging Kuwaiti shipsundU.S .egistry,the United States
agreed,consistent with the law ofneutrality,to provide dl U.S.-flag vesscls witha U.S.
naval escortwhentransiting the Gulinan effortto deter furtherIranattacks.This
escort mission wasinitiated in July 1987,under thedesignation "Operation Earnest
Will."
Section 2. Iran'sResponse to the Reflagging of Kuwaiti Vessels;Iran's First
Attack On U.S.-flag Shipping - the Mining of the OiiTanker Bridgeton
A. THE MINING OF KUWAIT WI ATERS
1.19 Fromthe outset, the vessels involved inKuwait's charteringand reflagging
effort cameunder attack by Iran. On 16May 1987,the Sovietoil tanker Marshall
Chuykov,whichwas on its first mission as a chartervesse1carrying Kuwaitioil stmckaKilomaters
29 deg. 20 min. N
29 deg. 10min. N
KubbarIsland
16lranianSADAF-02mineslaid, assa^ ss!^aiojaq inoq uelauueq3auresaqi @noiqi
A[aps passediaxua lavoue,, leil]huase sMausse~p~oipeqnoyXny3aqi JOiaiseuraqiieqi
8u!rioda)9t 1!q!pq '~861n. ul48z'1-7s,pk0/7,"pmn->~goauy E si!qd!qsiaqiouv,, osp
aas:SE i!q!qx3 '~£1 'd'~861aunf LZ 'k/yaa~a~uapa s auur,,'i!e~nx isu!e%u&edureD S'u!Ael
-auy u! sue!^^,,.; .-IassaAia!noSail]paqsnqurepueu!payeauspnng huo!ln~ona~ aw
suiaas31 'i!qiou semi!pue aiojaqinoq ue mil]ssal (auueq3ail]pasnpeq[assaAiaqiouv..
103A11e~g!sadssau!uip!elsue!m~ aqi puei!emnx paq~eoidde 1!se pu!qaquo%a )a!noS siya1
peqhox!nq3 aq[i],,iev pauodaiklyaa~a~uajaa s,arq u! paionbamos hsnpu! 8u!dd!qs v Fr
-L
.(,;a~oj IeAeNi!eMnxjo iuauiaimS,,iayeaiaq) (!uaaqs!q~pnouiqem'103 pue'!i!qsea
-IV ![v,103 '~~[nbq-lpamqv '103Aqpau8!s) PE i!q!qxx'S.end 'ma bei1-uei1aqi2u!ina uod
!peurqv-IVleaNuaigMjo $u!u!yyaql Bu!pie8aa S~E!DIJJOa3mj IEAEN i!eMnxjo ruauiaimç
u!paBouraaslassa~'as!Nas uo!ieuuo~u~ aui!i!inlysLp,olq
:6i!qqxJ '~9 'd~q
E ayttpad~qs ~oqam II~pq slaieM !I!'emnyur punoj au!w aqi 'a[durexaJOJ .9Eazdsai
le!3nrajo h3vn e u!au!u la!nos aqi uroy jgu!js!p ssalaylauou mq 'au!u ia!ho~ pasn
-~([UOU~UIO~ 01 E2.LU.SSe.*l!:anbw SEM SlalEM!l!EMnx U! 8uoow SI! UOïJ paAJ!IpI
au!m aqI iEw sai~a!pv iroda~au [E i!q!qxs se paxauue uaaq seq q3!q~ ';ug lam13,,
paureu-apoa uodai: Eu! paiuaum~op WM s!sA[~w sm 'pazL@wpue paAaga1 çe,*saaloj
!iFna pue 'sfi Aqplayau!ur !peuqv-[v aqI u! punoj Lpuanbasqns sau!w awjo au0
.saqnrjo siaw..~si!Zu~ap u! saxoj samseam-~a~unoaau!w L.~N 'snjo mwqs!sse
9
ayi paisanbaiiF:nnX 'p[agau!w !peurqv-[v awJo IçranoDs!p iagv 02.1
LEWI oi sugui sy painq-)i? saDrnosqqnd aIq!paq (a8ed 8u%ol[oj aq uo
S.1dv~ ~JS) -,pod !peq-[e s,i!eMnx oi ameiiua I~~EM daap aw iep.1 sau" grus
slaçsah Jayio aam 'TC3e~u JOJ $nopalZu!s Llaiz~aq!lapse^ nûyhy~ lvys~n~aw twp pot or deep bowl, whereas the Soviet minehad an anchor shaped like acradle;the
captured mine had a srnaller diameter(800 mm) than the Soviet mine (876mm); and the
captured mine had a thinner outside casing (2.7 mm)than the Sovietmine (4 mm) 3Ï
U.S.forces were able to confirm, months later, that the mine with distinctcharactenstics
remeved from al-Ahmadi minefield near Kuwait harbor matched ninemines found on a
captured Iranian mine-laying vesse], Iran Ajr, and mines found in othersectors of the
~ulf~'.
1.21 Iran has suggested that the mines which struck commercialvesselsnear
Kuwait and elsewhere in the Gulf"had probably floated doun" from areas in the northem
Gulfwhere Iraq was known to have laidmines3'. The fac~sbelie this claim. Themines
foundoff the Coastof Kuwait were moored to anchorsdo --theycouldnorhave been laid
by iraq elsewhereand simply floated,en masse, to Kuuraitiwaters.
1.22 Following these rniningincidents, the United States transrnittedtwo
messages ro the Islamic Republic of Iran,through Switzerland's Arnbassadorto Iran.
The firstmessage, in May 1987,(attached as Exhibit 39),empfiasizedthat the United
Statesdid not seek confrontation with Iran, and that the United Stateswascommitted to
, using its influence to end the war which had visited sufferkg upon the people of both
" Statementof DonaldJones, para. 6-10,Exhibit 37.
38Seepp.28-35, paras. 1.40-1.47in&;see also Statementof Donald Jones p,aras. 13-14,
Exhibit 37.
39Annexto Iran's Observation &s Submissions, p. 20,para.48.
See Statementof DonaldJones,para. 4,Exhibit37. Themineslaterfound by coalitionmine-
clearingforces elsewhere inthe Gulfwerealsomooredto anchors. Ibid.para.16. sides. Thecommunicationalso urged that"Iranian forces take no steps whichwill
provok aeU.S eaction," and that "[rlccent Iranianactions to increasethe dantor
neutral international shippi... by naval andair attack and by taking stepsto install the
Silkwormanti-shipmissiles are unhelpful anddangerous4'." The communication closed
with the hope that "the problems discussedbove can be resolved rather than leadto
further difficulties."
1.23 Shortly thereafter, in responseto questioning aboutthe flaggingof Kuwaiti
iankers to U.S. registry, Iran's Ambassador to the United Nations, Said Rajaie-
Khorassani,announced on U.S. television that "if my country has the intentionof
atiacking a Kuwaiti tanker, it will continue withthat policy, regardless of urhoseflagit is
cqingQ'."
1.24 On 18July 1987,the United Statestransmined another communicationto
Iran via the Swiss govemment43. Thefocusof this second message was the decision of
theUnitedStatesto flag Kuwaiti vesselsto U.S.registry. The United Statesalerted Iran
that the vessels in question "will have Amencan masters and willserve neutralports.
They wiIlabide strictly by mles of internationallaw. Theywill simply transport non-
contraband goods --specifically oil and oil-productexpor--between neutral ports,
41SeeUnitedStatesDepartmentof Statedocumententitled"Message toIran,"23 May 1987,
Exhibit39.TheUnitedStatesandotherstatesdemarched Iraq isimilarfashion.See
"DiplornaticNote:AttacksonMerchantVessels,"25September 1986,U.S.DeparmentofState
Cable,Exhibit40.
"Weinkrger wms againstaîtacksinGulf;Iranthreatens," UniiedPressInternationalMay
25, 1987Exhibit41.
I 43
SeeUnitedStatesDepamnentof Statedocumententitled"Demarcheto Iran:Use of
SilkwormsiProtectioRegime,"Exhibit 42.
ltraversinginternationalwaters." ThecommunicationernphasizedtharU.S. narships
eswrting theseU.S.-flagvessels"poseno dangerto Iran" andwould not "undertake
provocativeactivities." Finally,the communicationwmed Iran ht the United States
regardedas unacceptable"any actwhichthreatensournavalunits or any US.-flag
shipping"andthat theUnitedStateswouldtake al1appropnatedefensivemeasuresto
protect U.S.vesselsfromattack.
B.THE MINMG OFTHE U.S.-FLAGBRIDGETON
1.25 Iran's responseto the U.S. diplomaticeffortcame six days afierthe July
U.S communication. Thefirst U.S.Navy-escortedmerchantvesse1convoy under
OperationEamest Willgathercd atthe Khor Fakkananchorageoutsidethe Strait of
Homuz on 21 July 1987. The convoyconsistedofthrecU.S.Navy warçhipescorts,and
two merchantvessels,Bridgeton and GusPrince, whichwereflaggedunder U.S.registry.
Thi irst convoyreceivedconsiderablepublic44.Itsdepamire hm Khor Fakkanwas
well known,and themerchantvessels in the convoycommunicatedfieely on open radio
channels. -.
1.26 On24July 1987,Bridgeronstruckaminein the international shipping
channelapproximately 18nauticalmiles southwestof Iran'sFarsiIsland. Located
approximately160kilometers eastof theastal SaudiArabiancity Al Mishab,Farsi was
" Statementof ReaAdmiralHaroldBernsen,25 May1997para.3, Exhibit43. a known base for Iranian forces45.Themine explosion ripped a hole in Bridgelon 'shull,
necessitating 150tons of steel repait6. (See Map 1.6on the following page.)
1.27 Notably, a merchant shiphad transited through the shipping lane shortly
before Bridgeron's voyage and emergedunscathed4'. This fact led U.S. cornmanders to
the conclusion that themine which struck Bridgeron had been laid in its irnmediate path,
following the passage ofthe other vesse^ In^s.ort, thefirstU.S.Navy-esconed convoy
of U.S.-flag neutral vessels had been targeted for attack.
1.28 U.S. surveillance of Iranian forces stationed onFarsi Island indicated that
they mobilized during the early moming hours of July 24th to engage in mining
activities4'. Moreover, in the days and weeks following the Bridgeton anack, U.S. forces
received information from two different covert sources inIran's armed forces that lranian
Revolutionary Guard divirig units were responsible for laying themine which $truck
45 General Councilof BritishShipping,Guidance Noresfor Shipping pp.38,4i, Exhibit 2;
Statementof General George Crist, 15 May 1997, para.11,Exhibit44; Statementof Rear
AdmiralHarold Bernsen,para. 4,Exhibit43.
" See 16April 1997letterofCaptainTurkiAl Turki, Superintendeno tfOperations,Kuwait Oil
TankerCompany toNancy Mulenex, Ec'onomic Ofîïcer,Embassyof the UnitedStates,Exhibit
45.
47
StatementofGeneralGeorgeCrist, para 5,Exhibit 44; StatementofColinEglington,para. 19,
Exhibit31.
48StatementofGeneral George Crist, para5 . , Exhibi44.
49
StatementofRearAdmiralHaroldBernsen,para. 4, Exhibit43
Accordingto lraniansourcesreportingto the UnitedStates,Iraniandiversapproached
Bridgetonundercoverofdarknessandthen placedminesin theuZaterd ,irectlyinthe pathof the
approachingtanker. See CentralIntelligenceAgency, "Revolutionary GuardResponsibilityfor
Bridgetm MiningIncident,"July 1987,para. 1;Central IntelligenceAgency,"Involvementof 1.29 It was alsoeasy to conclude that Iraq was not responsible forBridgeton
mining. Iraq was known to limit its mining activities to specific sectors of the northem
Gulf. within easy helicopter flying distance of Iraqi staging baBridgerw oansnot in
such a sector when it was mined.(SeeMap 1.13 following p. 81 which depicts areas of
Iraqimining activity.) Further evidenceof Iran's responsibility foBridget monne
attackwrassubsequently discovered in November 198T5*
1.30 In a sermon on the day of thBridget onning, Iran's Majlis Speaker
Hashemi-Rafsanjani praised the forces responsible for the rninhailingthem as "God's
angels that descend and do what is necessary at the appropriate time." Hashemi-
Rafsanjani emphasized that Iran intended to continue to assadt shipping associated with
Kuwait, notwithstanding the U.S .scort operation:
RevolutionaryGuard in Bridgeton Mining Incident,"August 1987,pm.1,both annexedat
Exhibit46. U.S.national security laws andregulations requiredthe deletion of thenamesof the
Iranian sourceinthese reports, as well as certainother information thatwas unrelatcdto the
subjectofthe Bridgetonmining.
51
Affidavitof Commander C.W. Tempelaars,DutchNavy, 3 April 1997,para. 6,Exhibi47;
Statementof Rear Admiral Harold Bemsen,para.5,Exhibit 43; Statementof AdmiralAnthony
Less, 29 May 1997,para. 7, Exhibit 48; Statementof Donald Jones,para. 18-19,Exhibit37.
52On 19November 1987,U.S.Navy mine-clearingforces discovereda field of mooredmines
southof Iran'sFarsi Island, near the locationwherethe U.S.-flagBridgerstnickby a mine
inJuly 1987.Statementof Rear Admiral HaroldBernsen, para. 4, Exhibit 43. A U.S. Navy diver
examinedthese moored mines inthe water, anddiscovered them to be Iranian SADAF-02mines
--Iranianvariants of the Soviet M-08 mine. Whenthe diver beganattaching explosivecord to
the mine,he"immediately noted that the minehad a welded eye, buturasnot fittedwitha lift
ring:" Statementof SeniorChief JayUlrich, 12May 1997,para.7, Exhibit49. Weldedeyes and
lift ringsaresmall features on a mine to whichcable may be attaliefhe mine case.
SovietM-08mines were fitted with lifirings, whereasthe Iranian mines foundthroughoutthe
Gulf werenot--they featuredonly welded eyes. Ibid.,para. 5;seealso Statementof Donald
Jones,para. 10,Exhibit 37. The diverthus concludedthat the mines inthe water were laid by
Iran. Thediscoveryof these Iranian mines nearthe location of the Bridgetonincidentprovided
furtherevidenceof Iran's responsibilityforminingin the Farsi ~FY+nand forthe mining of
Bridgeton. ".... If our çhipsare hit, the ships of Iraq'spartners' will be kt. Ofcourse, we
will no1cluimresponsibilityfor anything,for ir is uninvisible shorthai is heing
jired.
.. .[Tlheywill provide escort for four ships,what about the rest? Each day
several shipsberth in Kuwait and then set sail;these are cargo ships canying
goods, oil and other commodities. Therefore, severalvessels visitKuwait every
day. Howextensivea retaliation do we need? Two per week, eightper month,
five? .. .Consequently, nothing can stop us fromretaliating. Then why is the
United Statesbothering to undertake such an expensiveoperation"?"
1.31 In a more directly threate~ng statementonlydays later; "Iranian president
MrAli Khameini warnedthe United Statesto pull its forcesout of the 'dangerous
whirlpool' oftheGulf. 'They had better leavethe region, othemise we shall strike them
so hard they will regret what they have doneS4."'
Section3. IranianMining Activities Continue;HostileEncountersBetweenU.S.
and Iranian Forces
1.32 Iran'sattacks on ncutral shipping throughoutthe Gulf increas fellowing
the mining of Bridgeton,compelling the United States to increase its navalpresence in
the Gulf, and promptingother Statesto send naval forcesto the areato assist in the
protection of neutrai shipping. In one well-publicized incident, Iranian forceswere
caught, inJagranfe delicto, trying to lay mines in the Gulf; in another incident, Iranian
33
ForeignBroadcastInformation Service" ,Hashemi-RafsanjanP ioliticalSermon," 24 July 1987,
p.SI, col.2, p.S4,col. 1("PoliticalsermondeliveredbyMajlisSpeaker'Ali AkbaH r ashemi-
RafsanjaniduringFridayprayer ceremonies in Tehranon 24 July")(emphasisadded),Exhibit
50.
"Iran wamingas'Bridgeton'beginsloading," Lloyd's List, August 1987, p.1,Exhibit51.
24 forces succeeded in doing so, substantially darnagingtwo vesselsand causing multiple
deaths and injuries. Hostileencounterssubsequently tookplacebetween Jranianand U.S.
forces.
A. IRANIANFORCE MSN WATERO SFF THE COAST OFFUIAYRAN HE,ARTHE ENTRANCE
TOTHE PERSIA GNULF
1.33 On 8 August 1987,U.S.forces received reportsofa possibleIranian mine-
Iaying activity in the vicinity ofthe Khor Fakkan anchorage,offthe Coastof ~uja~rah'j.
At the time of the report, Iranwasengaging in naval maneuversin nearbywaters;news
senices reported that IranianRevolutionary Guards "practiced"mine-laying duringthese
man eu ver U.^^naval warshipsand US.-flag rnerchantvesselsfhquently anchored at
Khor Fakkan; upon being alertedto possible Iranianmine-layingactivity, U.S.naval
forceswithdrew from the anchorage, and wamedU.S.-flagrnerchantvestostay clear
of the areaj7.
1.34 On 10August 1987,the U.S.-owned tankeTexacoCarribeancarrying
lraniancmde oil struck a mineatthe Khor Fakkan anchorage. Themine blew a four
-.
meter hole in the ship'shull,resulting in the spillageof 2.5milliongallons of oi15'.Five
days later, on 15October 1987,the U.A.E.-flag serviceAnitastmck a mine and
Statementof RearAdmiralHaroldBernsen,para.7,Exh43,t
56SeeReuterswirereport10August1987,reprintinLloydS WeeklyCaslraliyReporting
ServiceExhibi52.
57Statementof RearAdmiralHaroldBernsen,para.7,Exh43.t
58
Lloyd'sMaritimeInformationServiVesselsDamagedintheGuIJp.74,Exhibit9sadi, killing six crew membersS9.(SeeMap 1.7on the following page.) Most
commercialvessels transiting the Gulfstopped at theKhor Fakkan anchorage outside the
Strait of Hormuz to change crewsand load supplies; the mining of this area therefore
constituted a substantial threatto al1Gulf shipping.
1.35 Shipping sourcessuspectedthat Iran had laid the minesto disrupt the
escorting of vessels to and from ICuwait6'.In the weeks followingthe mining incidents,
these suspicionswere confirmed by British and French mine counter-measure forces.
1.36 In late August 1987,prompted by the Khor Fakkan mining, Belgium,
France, The Netherlands, andthe United Kingdom dispatched mine counter-measures
forcesto the Gulf. Naval forces from the United Kingdom and Francesailed to the Khor
Fakkan area and commenced mine-clearing operations in October 1987. U.K. forces
found five mines and fourmine anchors in the area. Analysisofthese mines by U.K.
experts indicated that they wereranian-manufactured mines --distinctive variants of a
cornrnon Sovietmine6'.
1.37 Iran has suggestedthat it was not responsible for thejayrah rnining,
claiming that it would not havetaken actions that resulted in damageto Texuco
W
Reuterswirereport,11 August 1987r,eprintedinLloyd's WeeklyCasualq ReporîingService,
Exhibit52.
61
See UnitedKingdomMinistryofDefence,"MineClearanceOperationsOff FujayrahBy HM
Ships -21 Septernberto25 October1987,"para.4,Exhibit53. Thisdocumentindicatesthatthe
Iranianminesfoundwere "contact mines o afnearlydesign,ibid pam.4, andthus werenot
"sophisticatedseabed mines"laidbyIraqasIrancontendedinitsMemorialat paragraph1.95.
A photographofoneoftheIranianminesdefusedbyFrenchforcesatKhor Fakkan isinseton
Map 1.7 onthefollowing page. Curribean--a vesse1carrying Iranian oil. But the fact that Iran's mining activities
inadvertentlyresulted in darnageto Iran's economicinterests does not absolve Iranof
responsibility for the mining, which was establishedby U.K.forces, and whichmay well
have ben intended to target U.S. forces andUS.-flag shipping.
1.38 In a sermon shortly afterthe Khor Fakkan attacks, Iranian MajIisSpeake~
Hasherni-Rafsanjanitaunted the United Statesaboutthe mining. He said:
"Whenthe Lord wants to exact revenge,He will do it ...
Youhave seen two examples of [ourforces]: the mines and the bats. There are
otherthings that you have not seen. We do not reveal eveqfmng. Men a
disagreementarises, then you willsee. This time you came and realizedthat you
neededmine sweepers. You hadto wait for mine sweepers to come ... hm the
other side of the world.
... Do you think becauseyou have brought some 27 or 28naval vessels
to thePersian Gulf that the situationwill be resolved on your behalf. Eachoneof
thesevesselsisa targetfor us. Thereusedto be 4 targets,nowthereare27.
.... Itisnot like an oceanwherethere are manysealanes. It does not
mattcr who mines the Persian Gulf. We have not yet accepted the responsibility
formining it.
.... However, if we intendto plant mines, ive11 then, ohGod, it is quite a
differentstory because we can movefrom any point. We cm cover anarea for
half an hour, making it unfit to use for shipping. This is fully withinour
me an^^^."
1.39 Following the Khor Fakkan mining, the United Statesagain transmitted a
messageto the Islarnic Republicof Iran throughthe Govemrnent of Switzerlandon 2
September 1987. The message warned that Iran's useof minesagainst neutral shipping
62
ForeignBroadcast Information Service,"MajlisSpeaker'sPrayer SermonViews Gulf
Events,"21August 1987. pp. $5,col 1;S4,col 1,Exhibit 55(emphasisadded).was a"clear, dangerous violation of internationalagainemphasized the strict
neutrality of U.S.-flag vessels, which "carr[ied]any kindfor either country
andoperate in full conformity with internationaAny fiutber mine-laying
activities endangering U.S. warships or commercial vessels, the communication noted,
would be viewedas"an extremely dangerous escalandoa direct military threat."
B. SEPTEMBE R987: U.S.FORCE SAPTURE ANIRANIAK VESSELCAUGHT iNTHEACT
OF LAYING MNES M INTERNATIONA W ATERS A,NDFINDNUMEROUM S INEON DECK;
THE MINESFOUND ON THEIRANIAN VESSELMATCHED WS LAIDELSEWERE INTHE
GULF
1.40 The events of September 1987nfirrned Iran's warfareactivities in
the Gulf, and providedical evidence establishing Iran's responsibility for the mining
ofKuwaiti waters and Fujayrah'~KhFakkananchorage. On 21 September1987,U.S.
reconnaissance forces detectedanian mine-laying vessel departing Iran's exclusion
zone near theostam oil platform, and heading tBahrain.A U.S.warshipwas
tasked to investigate. The vUSSeJarrert, launched surveilIance helicopters outfitted
with special long-range night-vision equipment, and engines drunextremely
quietly, to observe the suspicious vesselbl.
''U.S.Departmentof State,"MessageForthe Govemmentof Iran," Exhibit56.
44Statementof RearAdmiralHarold Bemsen,para.8, Exhibit43. FollowingtheBridgeron
miningU.S .orceswereconcemedthat Iransoughtto titmsine-laying activitiesagainst
US.-flag merchantshipsandnaval vessels. Targetedmine-layingof this natureis hown as
''tacticalmining." See RearAdmiralRichard Cobboll avy, retired)and Commander
MichaelCodner(RoyalNavy, retired),Royal United ServicesteforDefenceStudies,
"TheUtilityofIranianOffshoreOilPlatfonnsintheConduct ofHelicopter,SmallCraft,and
MineAttacksAgainstMerchantShippingDuringtheIran-IraqWar," May p.6,(hereafier
"Royal UnitedServicesInstitute Report"),Exhibit57. 1.41 The helicoptersapproached the vessel. Becausethe shipwas running into
theiiind, the diminished soundofthe special helicopterswas fwther masked. From
approximately 400 meters away,the U.S. Army crew obsemed the ship's crew removing
canvas covenng from mines, andbeginning to lay them in the iiliter, using a ramp that
had been extended overthe side ofthe vesse16'.Upon advisingthe U.S. Navy command
ship that theranian vessel was engaging in mine-laying in internationalwaters, the U.S.
-
helicoptersreceived instructionsto attack the vessel and terminateitsmine-warfare
activities. The helicopters firedon the vessel, and for a penod of time, the mine-laying
ceased. Approximately 30 minuteslater, the ship's crew resumedmine-laying and U.S.
66
helicopters opened fire again,intempting its mine-laying actiiities agai.
1.42 Early on the nextday, U.S. forces boarded the vessel,whichwas named Irun
Ajr. Injured crew memberswercprovided medical care andsubsequentlytumed over to
the Red Crescent organizationin 0man6'. U.S. mine-counter measure forces detonated in
the weaterthe mines which hadbeen laid by personnel on the vesselM.Nine mines were
found on IranAjr, aswas a rarnp,attached to the side of the vessel tofacilitate laying
65DecIarationofRobert Codney , June 1997,para.4-8,Exhibit58 StatementofRearAdmiral
HaroldBemsen,para. 11,Exhibit43.
66Ibid.,para.12.Acontemporaneous recordofthe Irun Ajrincidentcanbe foundin"Landing
CraftEngagement," 21September 1987 cablefromCommander,U.SN .avyMiddleEast Force,
Exhibit59.
" "U.S. escorts'G!s Prince'despitethreatsLloyd'sList,Septernkr24, 1987,p. 1,Exhibit60.
68Thelocationof themineswasrecordedina contemporaneous U.S.militaq cable.See
"LandingCrafîEngagement,"Exhibit 59. mines in the water6'.(Se cllustration 1.8onthe following page for photographs of the
vesseland its mine cargo7'.) Subsequentanalysis of the mines foundonIran Ajr
indicatedthat they matched the mines laidoffthe Coastof Kuwait,andthemines laid at
KhorFakkan. Al1of the mines shared special characteristics which distinguishedthe
caphred mines from a similar mine --the Soviet M-08 --heIdin manynaval inventories.
A detaileddescription of these differencescan be found in the statement of U.S. mine
analystDonald Jones (Exhibit 30), and thereport of the BelgiurnNetherlands Mine
WarfareForces, who conducted extensivemine countermeasure operationsduring the
TankerWar (Exhibit 63). For exarnple,the Iranian mine had ananchor shapedlike a
deep bowl; the Soviet M-08 mine featureçan anchor shaped like a cradle". The Iranian
mine also had a smaller diarneter (800 mm) thanthe Soviet mine (876mm).and a thinner
outsidecasing (2.7 mm) than the Sovietmine (4 mm). Themines also haddifferent
featuresto which cable could be attached to lift the mine case. SovietM-O8mines were
fittedwith lift rings, whereasthe Iranianmines found throughout the Gulfwere not --
they featured only welded eyes7'. These distinctions confirmed thatthe mines which had
69Statement ofCommanderMarcThomas,21May 1997,para. 6.Exhibit61.
'OSeealso Exhibit62foradditionalphotosof IranAjr and itsminecargo. AstheCourt will see,
'theconfigurationofIranAjr's deckandtherampshown in thephotographsatExhibit 62madeit
easyfor thevessel tolaymines,notwithstandingIran'sdenialsinitsMernorialatparagraphs
I.97and4.68.
71
StatementofDonaldJones,para.10,Exhibit 37;Belgium-Netherlands MineWarfareSchool,
Belgian/DuichAnalysisReportofPersianGulfMines, 29May1997,p. 2, Exhibit63.
Photographsannexedat Exhibit 64 reflectthedifferencesbetweentheminesfoundonboardthe
Iranianmine-layingvessel,andthecommonRussianM-08mine.
72Statementof DonaldJones,para.10,Exhibit 37;Belgian/Du[chAnalysisReporiofPersian
GdljMines, p. 2Exhibit 63. lranAjr Captured MiningWaters
near Bahrain,21 September1987
lranian SADAF-02 mineson deckof lranAjr
U.S. N22 September1987inglranAjr showing SADAF-02 Mines
I\\ Rampusedfor lavingmines1 been found in the Gulf were unique, and were not manufacmed by the Soviet Union, or
by other known mine manufact~rers'~. The mines exhibiting these characteristics were
likely manufactured in the Tehran factory to which Iran's Majlis Speaker Hashemi-
Rafsanjani publicly referred when he said "we have a mine producing factory which
could produce mines like ~eeds~~."
1.43 One characteristic in particular linked the mines found oIran Ajr and the
mines discovered in the Gulf offthe coast of Kuwait, off the coast of Fujayrah, and later,
in another location: the mines al1bore a unique "signature?-- a numbering system that
was stenciled on each mine. U.S. forces had not previously seen such a nurnbering
systern stenciled on mines75
-- themine found anchored off the coast of Kuwait was numbered
02-5627-016-576;
-- the mines found anchored off thc coast of Fujayrah included those
numbered 02-6627-061-17and 02-6627-061-2277;
13See Statementof DonaldJones,para. 12,Exhibit37;see also Affidavitof ChiefPettyOfficer
A.J.D.M. VerhulstD, utchNavy, 11April 1997,para.9, Exhibit65 (describingdistinct
characteristicsoflranian minessubsequentlydiscoveredinGulfwaters).
74
"IranMajlisSpeakeron OilExportsand Mine Production," BBCSurnrna~of World
Broadca~ts,18August1987,Exhibit66.
75StatementofDonaldJones,para.3, Exhibit37.
'6ibid., para.6.
77UnitedKingdomMinistryof Defence,"MineClearanceOperations OffFujayrah By HM
Ships -21Septemberto 25 October1987,"Exhibit53. -- themines found on the Iran Ajr included thosewith numbers ranging from
02-5627-008-4 to02-5627-014-17.Al1 nine had a similar number senes
stenciled on them78.
1.44 U.S. forces also found onboard Iran Ajr various Iranian naval documents
and materiais". nese matenais included:
1. Farsi messages from a teletype communications device on Iran Ajr.
These pnnted messages reflected that the vesse1was in communication with the Reshadat
(Rostam) oil platform during its minerlaying mission. ne messages demonstrated that
ReshadatRostam functioned as a communications relay station for Iranian special forces,
80
relaying communications between Iranian warships and Iranian naval headquarters
2. A paper-tape record ofmessages sent fr01-11~d received by ~ran~jr".
The paper tape was processed through a common tape reader to generate the Farsi
''Statementof DonaldJones, para, 14,Exhibit 37. U.S.and allied mine analysîs were able to
discern the meaningof the numerical mine signature. TheIirst number groupin"O2", referred
io the type of mine: the Sadaf -02 contactmine. (Iran alsomanufactured a considerably smaller,
and lesspowerfulSadaf-Ol contact mine.) Whenthe firsttwodigits of the second number
grouping (frequently 5627or 6627) were inverted,they designatedthe last nvo digits ofthe
Islamic year in whichthe mine was manufactured. Thus,minesdesignated 5627 were believed
to have been manufacturedin the Islamicyear 136 (March 1986 -March 1987),and mines
designated 6627were believed to have been manufacturedinthe Islamicyear 1366(March 1987
- March 1988). U.S.analysts believed that the third numbergrouping in the Iranian mine
signature denotedthebatch number of the manufacturedmine, and that the lastnumber was the
individual mine number. Ibid., para. 15.
T9
Statementof CommanderMarc Thomas, para. 7, Exhibit61. Statementof Captain Conway
Zeigler, 5June 1997,para. 4, Exhibit 67. Contemporaneousnews reports Iikewiseindicated that
U.S.forces had indeedseized materials on the IranAjr. See24 September 1987report fromthe
United Press Internationalwire service,hibit 68.
See,e.g., selectedFmi messages from a teletype communicationsdevice onIranAjr (tapes 16
and 21), Exhibit 69. Thecomplete collectionof teletypemessagesseizedon-board Iran Ajris
attached at Exhibit 70.
81See, e.g., selectedpaper-tape messages sent from, andreceivedby, IranAjr, Exhibit 71.
Translationsof the completecollectionof paper-tape messagessent fiom and received by Iran language messages on this tape. The messages indicate that IrunAjr was identifiedin
communications as a "Special Mission Unit," and again,that theReshadatRostam
platform acted as a communications station,passing dong tactical militan. messages
between IranAjr and otherIranian naval units
3. A communicationfrom Iran's 1stNaval District (Intelligence)to
Iranian naval units includingIranAjr, listing the "new narnesfor the Kuwaiti ships which
are traveling in the Persian Gulfwith the U.S.-flag." This documentindicatesthat Iranian
forces specifically targeted U.S.-flag Kuwaiti shippingS2.
1.45 Initially, Iranianoficials claimedIranAjr was cqing only "food~tuffs~~."
As reflected in its submissionsto the Court, Iran subsequentlychanged itsposition. Iran
hasadrnitted that Iran Ajrwas canying mines, but not, it claims,forthe purpose ofrnine-
laying - only for the purposeof rransporring them, presumablyfiom one Iranij amnrt to
another".
1.46 During oral proceedings,the United States isprepared tobring berore the .
Court, ifcircumstances permit, one of the mines found on Im ~jr". Even apartfrom
Ajr is attachedatExhibit72.TheUnitedStateswillintroducethecollection ofpaper-tape
messagesasevidenceinfutureoralproceedingsbefore the Court.
82See Exhibit 73.
83
See Reuterswirereport, 22 September 1987,reprintedinLloyd'sIVeekZC yasualq Reporting
Service.Exhibit74.
s4Iran'sMemorial,pp. 39-40,para.1.97.
Two IrunAjr minesweretransferred in 1987 to theBelgiurn/Netherlands ine-
countemeasuresforce. BelgiadDutchAnalysisReportofPersiunGuljMines,p. 1 ,Exhibit63. A
photographofoneofthesemines,currently inthe possession otfheBelgianNavy,isannexedat
Exhibit 75.thisevidence,Iran'sexplanationofIranAjr's supposedly innocentandunobjectionable
missiondoesnot withstandminimalscrutinyFirs tIrandjr masmerelytransporting
minesbetween Iranianports, it would havehad no reasonto travel in international waters,
85nauticalmiles (157kilometers)westofthe Iraniancoastline,and40 nauticalmiles (74
kilometers)outh of Iran'sexclusionzone. If the vesselwas onan ordinarysupply
mission,it would have plotted acourseinIranianwaters,withjn Iran'sexclusionzone,
urhichwouldhaveprovidedthe vessela significantmeasureof protectionby remaining
nearland-basedIranianforcesand Iranianwarships. Indeed,if thevesselwason a supply
mission betweenIranianports it would havehad no conceivableretobe sailingonly
50 nauticalmiles (92kilometers)fromBahrain,in the vicinityof the entranceto
Bahrairi'sdeep water shippingcharinel,whewastfoundby U.S.helicopters. (See
Map 1.9on the followingpage.m, ifIran Ajr wascarryingmineona supply
mission,its mine cargowouldhavebeenstoredintheship' hsld, whereit wouldbe
muchsaferandnot atrisk of beinglostoverboardin heavy seas. Howwer. asindicated
inphotographstaken of Iran Ajr onthemorningafter itwas discoveredby U.S.
helicopters,Iran Ajr's mineswerestoredon thesel'sdeck--obviouslyto facilitate
placementof the minesinthe waterm, the photographofIran Ajr inIllustration 1.8
followingpage 30 reflectsthat thevesselhad deployed aramp to placemines in the water
whenit was engagedby U.S. forces;a supplyship wouldnot have deployedsucha ramp
duringajourney through intemationalwaters.
1.47 On22 September1987,theUnited States deliverd to the Governmentof
Switzerlanda communicationregardingtheIran Ajr incidentwhich was,nim, Capture of lran Ajr
September1987
lranianExclusionZone
lran
Kilometers
Nautcal Meles
% Bandar
Saudi
Arabia -
*AbuDhabi
.:
l.-- UAE transmitteto Iran. The communication notedthat Iran had sentIrAjron itsmine-
laying missiondespite four different diplomaticwarnings by the United Statesregarding
"the consequencesof taking actionsthat would interferewrth the ffee passage of US.-
flagvessels." Themessage indicated that U.S.dismption of Im Ajrsine-laying
mission was "a limited defensive response to a directthreat against U.S.interests and
freedom of navigation" and that the United States"resewes the nght to take al1necessary
rneasuresagainstsimilar threats in the future86."
C. OCTOBE 1987: IRANIAN VESSEL SNDTHE ROSTAM OIL PLATFOR FMRE~PON U.S,
HELICOPTERS
1.48 In October 1987,in the days priorto Iran's attack on the US-flag tanker
Seo IsleCi@, Iranian forces fired upon U.S.helicoptetwonseparateincidenfi. These
engagementsmarked a significant tuming point,indicatithewillingness of Iranian
forcesnot onlyta mine waters transited by U.S. foandsU.S.-llag shippingin the Gulf
as they had done in previous months, but to fire directU.S.onaval forces.
1.49 Following the mining of the U.S.-flagtanker BridgeinJuIy 1987in the
vicinity of FarsiIsland, U.S. forces began monitoringintemational waters near Farsi
Island more carefully. In addition togeto sixneutral merchantshipswereattacked
by Iranian forcesin the vicinity of Farsi Island during 1986and early 1987. To deter
86SeeMemorandum ofEdwardP.Djerejian,ActingAssistantSecretaryof StateforNearEast
Affairs,attaching"Messageto IranonNavalIncident,"Exhi76;see alsLettedated22
September 1987fromtheActing Permanent RepresentatoeftheUnitedStatesofAmencata
thePresidenoftheUnitedNationsSecurityCou~cil,U.N.Document $119149Exhibit77.further attacks on shippingfrom Farsi Island, the U.S. Nax~established a mobile sea basc
in international waters southwest of~arsi".
1.50 On 8 October 1987,the mobile seabase near Farsi Island launched three
helicopters on a routinesurveillancemission. The helicopterssighted boats inthe water,
which they initially thoughtto be U.S.Navy boats. However,as the helicopters
approached, they were firedupon by at least two machine gunsrnounted on these boats.
The helicopters identifiedthe vessels as gunboats mannedby the Iranian Revolutionary
Guard and returned fire, sinking the vesse~s~~.Follow-ingthe establishment of the U.S.
Navy mobile sea basenear Farsi Island and the U.S. helicopter engagement of Iranian
gunboats, Iranian attackson neutral merchant shipping in the vicinity of Farsi Island
diminishedg9.
1.51 Also on 8October 1987,a U.S. Navy helicopter ona reconaissance mission
in the central Gulfwasfiredupon by a heavy machine gun on the Rostam oil platformgo.
The U.S. helicopter didnot retum fire.
1.52 U.S. comrnanderstook note of the increasedthreat represented by these
attacks and redoubledtheirvigilance.
87StatementofRearAdmiralHaroldBemsen,para. 16,Exhibit43;See also Statementof
GeneralCrist,para. 8,Exhibit44.
StatementofRearAdmiralHaroldBemsen,para. 17,Exhibit43; StatementofGeneralGeorge
Crist, para.,Exhibit 44.Acontemporaneous recordofthisincidentcan be found in"Iranian
SmallBoat Engagement," 9October 1987cablefrom Commande n Chief,U.S.Central
Command, Exhibit78. U.S.forcesprovided immediate medicalassistance towoundedIranian
forcesandsubsequentlyrepatriatedal1Iranianpersonnelthroughthe RedCrescentorganization.
89General Council oB f ritishShippingGuidance NotesForShipping, p. 38,Exhibit 2.
90
Statementof RearAdmiralHaroldBemsen,para. 17,Exhibit43. CHAPTERIII
THE EVENTSSURROUNDING IRAN'S15OCTOBERMISSILEAïTACK ON
THETANKERSUNGARIANDIRAN'S16 OCTOBER1987MISSILEATTACK
ONTHE U.S.-FLAGTANKERSEA ISLECITY
1.53 On 15October 1987,the Liberian-flag oil tanker Suwasrstruck by a
cruisemissile near Kuwait harbor. On 16October 1987,the US.-flag tankerSea Isle City
was alsostruck by a cmise missile in the same location. These missiles were fired by
Iranian forces from the Faw area in the northern Gulf. Iran deniesresponsibilizyfor these
unIaw+ùIacts. The facts and evidencediscussed below amply demonstrateIran's
culpabiIity.
Section 1. IranianForces in the Faw Area Launcheda Seriesof MissiAttacks on
Kuwaiti Territory in the MonthsandDays Preceding the Attackon theUS.-flag
Tanker Sca IsleCity
A. CAPTUR EF THEFAWPENINSULAIEA RLIYSILETTACKS
1.54 InFebniary 1986,Iranian forces captured from Iraqthe strategically
important Faw peninsula9'. Iraq hadpreviously established cruisemissilesites on the Faw
peninsuia Iranian forces took control of those sites and established additional missiles
sitesn the Faw area. In January 1987,soon after Iran began to target ships transiting to
and fromKuwait for attack, Iranianforcesbegan using the Faw areamissilesites to launch
cmise missiles at Kuwaiti temtory. Kuwaiti military personnel on BubiyanIsland and
Faylakah Islandbsewed missilesapproachingfrom the Faw peninsula area on 21January
91
EdgarO'Ballance,ThGulf War(1988)p.175,Exhibit79;SreedharKapiKaul,Tmker War
(1989)p.44,Exhibit80;AnniversaryOffensive: Gulf FlaJane'sDefence Weekly1March
1986,p.365, Exhib81.1987and againon 24 Januar y98792.See Map 1.10following page 42. The missileswere
easily visibleto the observers becaoftheirbright plurncs, low altitude, andrelatively
slow speed of flight. Therst missile landed on FaylakahIsland; hgrnefrom the
missile's impact werecollected by Kuwaitnned Forcespersonnel. The 24 Jmuary
missile landedinthe water north of ~a~lakah9~.Kuwait responded to this threatto its
territorby positioning observers on Faylakah andBubiyan to ensure that fmeissile
launches wereproperly sighted and tracked.
%. IDENTIFICATIO ONTHE 21 JANUAR MYISSILE
1.55 Duringthe ensuing months, Kuwaitmilitq intelligence personnel invited
U.S. missileanalyststo conductan analysis of thefragmenfrom the21 Januarymissile
finng. Among the fragments collectefrom the21Januatytinngwere panr ofthe
missile's seeke--a guidance component. Basedon the particular character of these
components, U.S.missile experts concluded thatthe 21January missile aaChinese-
manufactured HY-2 cruise missile94. Subsequently,U.S. missile analystscreateda report
92StatementofKuwaitArmedForcesOfîïcialsRegardingMissileAttackson KuwaitiTerritory
DuringtheIran-IraWar, 21May 1997,paras.4-5(signedbyMajorGeneralYacoub Al-Suwaiti
and Colonel SultAl-Ramyan)(hereafter"Statementof KuwaitArmed Forces'?, xhibit82.
93
Ibid.paras5-6
94
StatementofNormanLesko, 3 1March1997,para.3,Exhibit83;seealsoStatementofKuwait
Armed Forces, para.10,Exhib82. detailing the findings of this ana~~sis~~.
1.56 According to the brochure published by ils Chinesemanufacm the HY-2 is
a "surface-to-surface" (that is, land-launched) "tactical anti-ship missiIe" which carr380
kilograms of high explosive. The manufacturer notes that the HY-2"has a good
concealment and flexibility to conduct sustained and mobile combats96."
1.57 Upon learning that the Islarnic Republic of Iran in its Mernorial denied
responsibility for the missile attack Sea Isle City,the United States asked an
independent expert to verify some of the critical evidence leadingup to the attacks onSea
Isle Cify. The United States requested the Senior Missile AnaIyst at the Australian Defense
Intelligence Organization to examine the U.S. analysis of the 21 January missile fragments
found on Kuwait's Faylakah Island, as docurnented in the U.S.report found at Exhibit 86.
1.58 The Australian analyst was provided with photographs ofthe fragments
originally examined9'. His statement, found at Exhibit 75,confirms that the missile which
95 SeeNavalIntelligenceSupportCenter,ForeignMaterialExploitationPrograrn,"ClusterCopy,"
Exhibit84; StatementofNormanLesko, para.2, Exhibit83.
96 POLYTechnologies,HY-2 Coast-DefenseMissile , xhibit85(brochurepreparedand
disseminatedbythe Chinesemanufacturerof theHY-2missile).China'sdefenseindustriesalso
manufacturea missile verysimilarto the HY-2 whichiscommonlyknown asthe "Silkworm."
Becausethe Silkwormwasoneofthe firstmissilesmanufacturedbyChinainthe 1960s
(developmentofthe HY-2beganin 1970),"Silkwonn"becamethecommon,thoughimprecise,
narneusedto describetheentirefamilyof relatedmissilesmanufacturedby China,includingthe
HY-2. Thus,the Courtwillfindmanynews reports,andU.S.govemmentdocumentsincluding
the PreliminaryObjectionsubmiîtedbythe UnitedStatesinthiscase,referringgenericaIlyto
Chinese"Silkworm"missiles. Suchgenericreferences aresuitableforgeneralreporting,butthey
lack the particularitynecessaryinthis case.
97MarkPitt,"StatementonExaminationof MissilePhotographsandReports," 27March 1997,
paras.4-5;Exhibit.86. Theoriginalfragments,maintainedinthepossessionof the Kuwaithed
Forces,werelostwhenIraqi forces invadedKuwait and destroyed Kuivaitmilitaryintelligence
headquarters. Statementof KuwaitAmed Forces,para. 10,Exhibit82.stmck Faylakah on 21 January 1987wasindeeda land-launcheHY-2 cruise
C. SEPTEMBE1 987: MISSILEATTACK SROM THEFAW AE.~
1.59 Iran's forces in the Fawarearesurnedfinng missiles at Kuwaititemtory in
September 1987. On 2 September,andagainon 4 September, Kuwaitimiiitarypersonnel
on FaylakahIsland and Bubiyan Islandvisuallyobservecithe launch of a cmisemissile
hm the Faw ~irea~~E.ach missile wastracked on radar. The 2 Septembermissile was
observedlanding in the water northeastof FaylakahIsland. The 4 Septembermissile,
launchedffom the site noted on map 1.12(followin42),landed ashore, 3kilometers
southof Mina Abdullah, and almost 10kilometerssouthweof the Al-AhmadiSea Island
Oil Terminal--clearlydemonstrating sufficientrange to rtankeranchoredat the Oil
~errninal'~~.On 5 September, Kuwaitimilitary personnel on Bubiyan and Faylakah
Islandsagain visually observedthe launcaocruise missile from the Faw area. Radar
tracking of the missile indicated thatit landed in the waters of KuwaMapBa1.10.e
1.60 Kuwaitmilitary officiaisinviU.S . issile experts to analyzefragments
fromthe 4 September land impact..A U.S. experttravetoKuwait, andwas provided
accessto a large number of cmise missile fragments,including many guidancecomponents
and sectionsof the airframe.ongthe fragmentswere pieces of the missile's seekerthat
were distinctiveto the-2anti-shipmissile. TheU.S .xpert concludedagain that the
9sPin,"StatementonExaminationofMissilePhotographsparas.8, 13,Exhi86.
Statement ofKuwaitArmedForces,paras. 7, xhibi82.
Ibidpara.8. fragments of the 4 September missile were from a land-launched HY-2 rnissi~e'~',
Furthemore, based onthe airframe parts examined by the U.S. expert,he concluded that
the 4 September missile was not the type of missile that could be Iaunched froan
airCTaftio2.
Section 2. 15 October 1987: A Missile Launched Fromthe Faw Area Stnkes the
Liberian-Flag Sungar iutside Kuwait Harbor
1.61 In the early moming of 15 October, Kuwait milit- obsenrers on Bubiyan
and Faylakah Islands observed the launch of another missilfrom the Faw area loi.The
missile traveled south and struck the main deck of the Libenan-flag tanker Sungari.
anchored south of the S-a Island Terminal. Sungari imrnediately caughtfire;its rnaster
101
StatementofNormanLesko,para.5, Exhibit83;see also Statementof Kuwait ArmedForces,
para.10,Exhibit82.
102Groundlaunchedmissilessuchasthe HY-2examinedbythe U.S. experthavemountingskids
onthe airfiamebottomto facilitateattachmentto a groundlauncher. Bycontras<air-launched
missileseatureairframeswith mountingassembliesatthetop of themissilewhichallowfor
atîachmentto an aircraftfromabove.Likewise, air-launchmissilesare outfinedwithumbilical
connectorsthatattachat thetop of theairframeandconnect tothe launchaircraftfor the
transmissionof powerandinformation. Umbilical connectorsservingthesefunctionsconnect to
land-launched missileshindthe wing. Becauseofthesedifferences, ground-launched missiles
cannotbe launchedfromaircraft.See Statementof NormanLesko,para 5, Exhibit83.
103
I Statementof KuwaitArmedForces, para.11-12,Exhibit82, andcrew were forced to abandon ship,and the vesse1sustained extensiveIiredamage1".
1.62 The attack on Sungaridemonstratedthat Iran'smissile sites in theFaw area
presenteda serious threat to Kuwait's oil trade. On the aflernoon of 15October,following
the attack onSungari, Colonel YacoubAl-Suwaiti, Commander of KuwaitAir Defense,
traveledto Faylakah Island to overseepersonally air defense effortsto trackincoming
missiles. To improve Kuwait's ability to observe and intercept incorningmissiles,Colonel
Al-Suwaiti placed additional rnilitarypersonnel onAuhat Island,just eastof Faylakah
1sland'05.
Section3. The 16October1987Attack on the US.-flag Seu Isle Cify
1.63 On the morningof 16October, the U.S.-flag oil tanker Sea IsleCity began
steaminginto Kuwait harbor. At approximatelythe sametime, Colone1AI-Suiuaitivisited
the rnilitarypersonnel he had stationedon Auhat Islandthe previous day. During the
course of his morning visit,ColonelAl-Suwaiti observed the approachof a missile from
the Faw area. The missile flew overhead,between AuhatIsland and FaylakahIsland, in
the directionof the Sea Isleerminal"~. (See Map 1.10onthe followingpage which
illustratesIran's missile launches from the Faw area.)
'O4SeeReutersandUnited Press International wirreports,15 October 1987,reprint4 inLloydS
Week!y CmualtyReport Service,Exhibit 87; StatementofCaptainJohnJosephHunf 25 March
1997, para.5,Exhibit88.
105
StatementofKuwaitArmedForces, para. 13-1.4Exhibit 82.
'" Ihid.para.14-15
i lranian HY-2 Cruise Missile Attacks from the Faw Area
47O 48' 49O
I
IRAQ
I
I
l ,-C-C--II.-----
,/--/
30'-
0/'
I ,l'
0
i
I
1
#l'
8/* -
- ,i KUWAIT
I ,,i
I I
I
----
-----------_____*___
29'- -\
\
\
FormerIraqi site
(Iraniancontrolled) _.._..-..--.-..-..-..-m.
- Launchpath
f
O
I
4 7O 4 8' 1.64 Soon thereafter, the missile approachcdKuwait harhor. Captain John Joseph
Hunt, master of SeaIsle City described what happened next, ashis vesse1wasslowly
making its way into the harbor:
"As the helmsman tumed to me to report the ship's course, he looked over my
shoulder and said 'What is that?'1 turned and saw a small plume of black smoke
emanating from a large missile. 1immediately tried to reach the helm to take
evasiveaction, but 1did not succeed. The last thingI remember was hearine a
metai on metai sound. It was the missile striking us. Then al1xventblackIO.,,
1.65 The missile caused extensive damage to the bridge, accommodation, and
starboard wing tankio8.(See Illustration1.11on the following next page.) Six crew
memben suffered significant injuries. Captain Hunt was permanently blinded and suffered
a fiactured skull and rnany broken boneslog.Sea Isle CitySeaman Victorino Gonzaga, a
citizen of the Philippines,as also blinded in the anack.
107
StatementofCaptainHunt,para.7, Exhibit88.
'O8Repairsto SeaIsleCitytookfourmonths,andinvolvedextensivesteelwork. TheKuwaitOil
TankerCompanyincurredadditionalcostsassociatedwiththe attackdueto lossofhire.See April
21,1997LetterfromCapt. TurkiAl Turki,GeneralSuperindent, KuwaitOil TankerCompany,to
Ms. NancyMulenex,Embassyof theUnitedStatesofAmerica,Kuwait,Exhibit89.
109StatementofCaptainHunt, para.9, Exhibit88; seealso Statementof ColinEgiington,para.22,
Exhibit31 ("1remember[CaptainHunt]tellingmeduringa visitto him in hospitalwhenhishead
was still bandagedthathecouldn'twaitto have thebandages removedbecausedarknesswas
terrible"). Tugspuîiingoutfireson Sungari
lranianHY-2MissileAttacks on MerchantShips
Anchored offKuwait,15 & 16 October 1987
Damageto Sea lsle City
Close-upof HY-2missilhole
inSungari
- Damageto SeaIsle Cityfrom 16 October HY-2 missile strike
- CHAPTER IV
IRAN WAS RESPONSIBLEFOR THE 16 OCTOBERMISSILEATTACK ON
SEA ISLE CITY
1.66 Nurnerous public sources attributed the missile attack on SeCiry(and
the previous day's attack on ~un~ari)to lranllO. Such amibution comported with comrnon
sense. It was comrnon knowledge that Iran targeted Kuwaiti shand ships bound to and
&om Kuwait in the Tanker warl"; to the extent that Kuwaitrnayhave been sympathetic to
Iraq in the Iran-Iraq war, it would have been unwise and contrary to its interests for Iraq to
anack oil tankers in Kuwaiti waters.
1.67 Iran has repeatedly claimed in its pleadings that any hostile actsthat might
have been peipetrated against US.-flag merchant vessels U.S.naval vesscls in thc Gulf
were accomplished by Iraq, rather than Iran, but offers no evidensupportthis
~lairn''~. In keepin4th this pattern of denial, Iran has suggested in its Memorial that
Iraqiforcesfiredthe missilewhich struckSea Isle Ciy on 16October 1987 --specifically,
Iran intimates that the missile which stnick the ship may have been launched
110SeeReutersandUnited PressInternationalwirereports, 16October1987,reprintedinLloSd
WeeklyCasualtyReport Service,Exhibit90; Lloyd'sMaritime InformationService,Vessels
Darnagedinthe Gulf pp.86-87,Exhibit9; StatementofNormanHooke, para. 26-27,Exhibit 10;
GeneralCouncilof BritishShipping,GuidanceNotesForShipping,p.39, Exhibit2; Hooton,
Jane'sIntelligenceReview,p.221,Exhibit4; deLionis,"TheCoastalMissileThreatinthe Middle
East,"Jane'sIntelligenceReview,January 1994,p. 25, Exh91.t
I1]Seesupranote 5.
112
SeeIran's Memorial,p.43,para. 1.105;p. 113,para.4.64;pp. 116-117,para.4.74; Annexto
Iran'sObservationsandSubmissions,pp. 18-19,paras.44-45.fromanIraqi aircraft"'.
1.68 Iran also attempts to eluderesponsibility forthe SeoICityattackby
introducinga variety of other arguments it cannot sustain. Iran contendsthat: (1) Iran did
notmaintain missile sites on the Faand could not hat~edone sobecausethe Faw was
esçentiallymarshlandH4;and (2) the missilewhich struck SeaIsleCitydid not have
sufficientrange to have been fired from the ~aw"'. Surnrnarizedbelow,the facts
conclusivelydemonstratethat these contentionsare completely mithoutfoundation and that
Iranwas responsible for the attack on SeoIsCity.Iran maintained missile sites in the
Fawarea, Kuwaiti militas. personnel observedmissilesapproaching fromthe Faw area,
andthe missiles fired from Iran's Faw areamissile sites clearly had sufficientrange to
dke targets off the coast of Kuwait.
Section 1. The Missile WasLand-LaunchedFromthe Faw Area, Not Launched
Froman Iraqi Aircraft
A. KUWAIT MIlLlTARY PERSONNELOBSERVEDTHE MISSILESWHlCHSTRUCKSUNGAR~AND
ISLE CITY AND OTHER MISSILESWHlCHSTRUCKKUWAITI TERRITORY APPROACHMG
FROM THE FAW
1.69 As noted above, the missile which struck SeaIslCity wasthe seventh
missilein a series of anti-ship cmise missiles which were fired fromtheFaw area. The
firstthree missiles (21and 24 Januar,nd 2 September, 1987)landedshort --on and
Il3Iran'sMemorial,p.43,para.1.105.
Il4AnnextoIran'sObservations andSubmissions,pp. 15-16,para37.
Il5ibid.pp. 16-17, par39-
4s around Faylakah Island. A subsequent missile (4 September) oversSea Isle
Termimland Kuwait harbor. Thefifimissile (5 Septembw) landed shoagain,in
Kuwait bay. The sixth and seventh missiles finally found --Sungari and Sea Isle
City, anchored off the Coastof Kuwait.
1.70 Kuwaiti military observers on Kuwaiti islands located near the Faw
116
peninsula observed each of these missiles a~proaching from the Faw".rColonel
Yacoub Al-Suwaiti, then-Commander of Kuwait Air Defense Forcesrsonally observed
the missile whichtruck Sea Isle City approaching from the direction of the Faw area. The
missiles were easily visible because of their bright plumes, low altitude and relatively slow
speed of flightl'*.
B. THE MISSILESFIRED ATKUWAIT IERRITORY WERE HY-2 CRUISE MISSILE S-
ORDNANCE WHICH COULD ONLYBELAUNCHED FROM LAND
1.71 Because of the nature of thc explosions that owhenrcruise missiles
i
smck Sungori and Sen Isle City, military personnel were nto collect sizable
l
fragments fromthe October impacts which could be analyzed. HowevU.S.and Kuwaiti
I
missile fragment analysis conîïrrned that two of the missiles inthe series fired from the
116
Iran'scounselemphasizedinoral proceedingsontheU.S. preliminaryobjectionthattheFaw
1 peninsulawasinfactIraqiterrit--the suggestionbeing thatifmissileswerhmirethe
Faw,theywerefiredby Iraqiforces. Ithowever, commonknourledgethatIranifrces
capruredtheFawpeninsulain Febmary 1986. Seesupranote91.
"' StatementofKuwaitArmedForces, paras.4-5,7-9, 11,14,Exhibit82.
]I~bid T.hus,contemporaneousU.S.intelligencereportingdistributedto militaryandpolitical
decisionmakersreflectedtheconclusion thatSeoIsle City hadbeenstruckby a missile firedfrom
theFawareabyIranianforces. "PersianGulf:MilitaryActivity,"NationalInfeliigenceDigest, 16
Octobei1987,Exhibit92. Faw area (21 Januaryand4 September) were HY-2 anti-shiprni~siles"~.U.S analysis
further established that t4eSeptembermissile did not havethe type of airframe found in
anair-launched mi~si1e.l~~ Morerecent analysis by anAustralian missileexpert confirmed
the accuracy of the previous U.S. analysis documented inthe U.S. Naval Intelligence
report found at Exhibit 8612'.
1.72 Iran has not denied that the anti-ship missilesin its ordnance inventory were
HY-2 missiles. To the contrary, Iran has effectively aknowledgedthis fact by making
prominent reference in its own pleadings to articles fiomJane Defence WeekIywhich
statethat Iran'smilitary forcesdeployed HY-2anti-ship missiIesduring the Iran-Iraq
122
war .
1.73 The significanceof Iran's acknowledgementandthe analysisconducted by
the United States and Australia demonstrating that the missilesfired wereY-2 missiles is
that HY-2missiles aresurface-lounched ordnancelz3. Thatis, an HY-2 missilecannot be
launched from an aircrafi. As explained in note 1.04,ground-launchedand air-launched
missiles have airframes with distinct mounting features. Themechanical and electronic
mounting features ona ground-launched missile allowfor its attachent from the bottom
to a land-based launcher,whereas the same features onair-launchedmissiles are located on
119See StatementofNormanLesko,para. 3,Exhibit 83.
lm
Ibid.,para.S.
12Pin,"StatementonExamination of MissilePhotographs,"para. 10,Exhibit86.
122Annexto Iran'sObservations & Submissions,p.17, n.58,citingExhibits23 and24.
i
12See thebrochureproducedbytheChinesemanufacturerofthe W-2 missile,annexedas
Exhibit 85;Jane S Weapons Sy.~rems(1988-89),Exhibit93. thetop ofthe missile to allow forattachmentto an aircraft. Consequentthe HY-2
airframe, designed to be launched fromthe ground, couldnot beproperlyattached to, and
launched from, an aircraft.
C. NO IRAQIAIRCRAFTCAPABLEOFLAIJNCHINGA CRUlSEMISSILEAT SU ISLE CITY WERE
AIRBORNEINTHERELEVANTAREAATTHETIMEOFTHEATTACK
1.74 For defensive purposes,U.S. forces in the PersianGulfcarefùilymonitored
i
Iraqi and Iranian aircraft activity. U.S. Air Force airborneradarpl--"AWACS'"
planes - were aloft 24 hours per day in the northern Gulf monitoringIraqi aircraft. As
noted by Rear Adrniral HaroldBemsen, then Commander of theU.S.Navy MiddleEast
Force, in his statement attachedasExhibit 43, U.S. radar planesdidnot detect any Imqi
milit- aircraft aloft in the northernGulf on the rnorningSeaICiw u7asatta~ked'~~.
Rear Admiral Bernsen thus discarded,on the basis of this intelligence,thcpossibiliry that
the missilewas fired by an Iraqiaircraft.
SECTION2. IranMaintainedMissile SitesintheFawArea
1.75 On 9 September 1987,just days after three Iranianmissilelaunches from the
Faw area, U.S. reconaissance satellitesphotographed a missile stagingsite in the Faw area.
On 16October 1987 --only fourhoursfollowing the missile attack onSeaIsleCi@ --U.S.
reconaissancesatellites againphotographedthe same Faw areamissilesite. The
photographs in question are appendedat Exhibit 94. Both sets ofphotographsreveal an
l
Iz4Statemçntof RearAdrniral HarolBernsen,para.21,Exhibit43.
48active cruise missile staging facility composed of missiIe launchers, missile cmtes, and
missile trar~s~orters'~~.The United States believes that the attack on Sea Isle Citywas
staged from the missile site depicted in the annexed photographs126. Duringoral
proceedings on the merits, the United States will present the testimony of satellite imagery
experts who will explain and confirm the substance of thisevidence to the Court. This
photographic evidenceand expert testimony will squarely refute Iran's claim that it did not
maintain missile sites in the Faw area, including its claim that the Faw was composed
"alrnost entirely"of marshland, and was therefore incapable of sustaining missile sites1*'.
122Additionalphotographicevidence appended atExhibit94 establishes that the missile
equipment photographs in question were specificallyderived fromsatellite observatioofterritory
inthe Faw area.
The missiIesite photographs annexedat Exhibit94were produced from original
photographicdata captured by U.S. reconaissancesatellites. As wilbe explainad duringthe
Court's oralproceedings,U.S. analysts basedtheir assessment of Iran'sFaw areamissilefacilities
on the original photographicdata, which providedthe analysts with greater detailand claritythan
canbe seen inthe the photographsthat accompanythis submission. National security
considerationsprecludethe United Statesfromsubmittingthe original photographic data tothe
Court. To allowfor their submission to the Couri,and ultimately, disseminationtothe public in a
manner consistentwith nationalsecurity guidelines,the United States has reduced the resolution
of theoriginal imagesusing computer imageprocessingtechniques. Althoughthis process
reducedthe visualclarity of the original images,it didnot affecttheir integritywith respecttothe
depictionof the equipment obsewed on the ground.
126That is, a missile and launcher from this site weretransported by truck to the Iranian launch
site, identifiedon Map 3.1. The missile was fired andthe launcher was then withdrawn.
In Annexto Iran's Observationsand Submissions,pp. 15-16, para.37. The annotatedBritish
Admiralty Chartannexedat Exhibit 95 demonstratesthat the missile stagingsite photographed by
U.S. satellites,andthe launch sites used by Iranianforceswere located on dry landratherthan
marshland,the latterbeingdepicted on the AdmiraltyChart in green. See Iranian HY-2Cmise
Missile Sites,Depictedon BritishAdmiralty Chart2847, Exhibit 95. Section 3. The Missile Which Struck Seo IsleCit y ad SufficieutRange to Bave
Been Fired From the Faw Area
1.76 Iran has claimed that any missile fired fromFau,area did not have
sufficient range to stnke Sea City on 16 October 1987'~~.It has cited in support of this
proposition three references speculating that the range HY-2hmissilewas
approximately 80 kilometers. (If the missile's range was limi80dkilometers, then it
could not havestruck Sea IslCi@, which was approximately 98kilometers hm Iran's
Faw missile site when attacked.) Two of these references were published in March and
June of 1987, prior to the missile attacks in question; the third reference waspublished in
1990, but merely references the June 1987ticle'29. This debate regarding missile range
obscures the basic fact that Kuwait Armed Forces personnel observed nurnerous miss--es
includinç that which ~truckSea IsCi@ --approaching from the Faw area. Whether the
sourcesof thc speculation citby Iran believed thHY-2 missiles could rravel onIy 80
kilometers is, ultimately, irrelevant. The fact is that they travele98akilometers,
dernonstrating that the capabilities of the missiles exceeded the initial speculations of
experts.
L28Annexto Iran'sObservationsand Submission,pp. 16-18,paras.39-31,ExhiX,t
'29See ibid.,p. 17,para.39,andExhibits 18,23, and 24annexedtherïhe.twoJane'sDefence
WeeklyarticlesreferencedbyIranciteumamed sources. Ibid.,Exhibits23 and24. Notably,the
1987-88 editionofJane'sWeaponsSystemrdoesnot lista range forthe HY-2missile,indicating
that thistatisticwassubjectto speculationandnotyet verified.SeeExhibit96. Iran'sthird
authority,Cordesman,LessonsofModem War,VolumeII,p. 274,merelycitesto one of the
Jane'sDefenceWeeklyarticles already citedby Iran. SeeCordesman,LessonsofModern Wm,
VolumeII,pp. 274and342,n. 9,Exhibit 18to Iran'sObservationsand Submissions,andExhibit
97annexed hereto.Notably,onthepageimmediatelyfollowingthat citedby Iran,Cordesman
includesatablewhichcontradictsthetext citedby IranandStatesthat the rangeof theHY-2 is95
kilomerers. 1.77 In any event, and contrary to Iran's assertions, the distance traveled by the
missiles fired from the Faw did nor exceed their capabilasreported by the missile's
manufacturer and verified by independent experts. As notedove, the anti-slip missiles
in Iran's inventory wereY-2 cruise missiles. The Chinese manufacturer's brochure for
the HY-2 specifiesthat the missile has a "powered range?'of Km. This product claim
ha been verified by the Austraiian Defense Intelligence Organization which subjected to
rigorous testing a fully functiHY-2 anti-ship missileOn the basis of an aerodynamic
and fuel anaiysis of tHY-2 missile, the Australian Defence InteIligence Organisation
concluded that the missile has a range of kilo me ter^ Th'^16October missile,
launched ffom the site designated on Map 1.10,travel98 kilomefersbefore striking Sea
Isle~ity'~'--a distance clearly within the missile's powered range capability1'*.
1.78 Thcmissile analysts invoked in the articles by Iranwere requiredtospeculate
regarding the HY-2'slimited range because, until Iran's deploymand use of thHY-2
13Pit t,tatementon ExaminationofMissilePhotographs," para.12,Exhibit86.
1
1 13Iran'ssubmissionsto the Courtdevotedconsiderablediscussionto whetherthe4 September
1987cmisemissilewhichstnickMina Abdullaon Kuwait'swast had suficient rangeto have
been firedfromthe Fawpeninsula. Thismissilelaunchisnot directlyrelevantto Iran'sclaim or
to thedefenseof the UnitedStates. Nonetheless,the UnitedStatesnotesthatthe 4 September
i missilefired fromthe Fawmissilesite designatedon Ma.IOwhichsmck MinaAbdulla
! traveled106kilometers--a distancenotsignificantlyin excessofthe 105kilometerpowered
1 range ofthe HY-2.
1
13"Powered range"isthe range thata fueled, functionalmiscapableoftraveling.
"Effectiverange,"by contrast,he lesser rangeat whicha manufacturerreprexnts that a missile
iscomisrentiylikelyto striketargetsaccuratelyand effe--it is not,however.the outer
rangelimitationon a missile'sfunction. TheChinesemanufacturer'sbrochureindicatesthat the
"effectiverange"of theY-2is upto 95km. Likewise,beginningwithits1988-89
volume,Jane's WeaponsSystemslistedtheeffectiverangeof theHY-2as95 km. SeeExhibit98.
Thus,the missilewhichtraveled98 kilometersand sbuckSeoIsle Citydidnotsignificantly
exceedthe statedeffectiverangeof tHY-2 anti-shipmissile. inthe Persian Gulf, militvy analystshad not observed the missile's acutaI combat
performance. According 10Jane 'sIntelligence Review, wiîhhe exception ofone launch of
an MM-38 Exocet in theFalklands War in 1982, "the record of other launches of Coast
defence missiles incombat is based almost exclusively on the performance of the Chinese
HY-2 ... in the Persian ~ulf'~~." Thus, Iran's launches of anti-ship missiles during the
Tanker War helped defne experts' understanding of the HY-2's capabilities.F'rioto the
Iran-Iraq war, the Western analysts referenced in the articles citedra nere necessarily
engaging in speculation regarding the rangeofthe HY-2 missile. The Iran-Iraq war; and
theseries of missiles launched byIranfiom the Faw area, proved such speculation
inaccurate13.
133
de Lionis,Jane'sInfellligenceReview,p.25,Exhibit91
LMIran citedin its Memorial and inthe Annex to itsObservationsand SubmissionsaU.S.
Departmentof Statedocument characterizingthe rangeof Iran's missileas83kilornetcrs. Iran's
Memorial, Exhibit67; Annexto Iran's Observationsand Submission,p. 17,para.39 andn. 60.
Iran furtherpointsto the factthat this document containsa map which details Iranianmissilesites
at Qeshm lsland and Kuhestak, but not in the Fawarea. However, the map did notpurportto
reflect an exhaustiveassessmentof Iran's militarycapabilities. Rather, it merely identifiedthose
missile sitesthat appearedto pose the greatest threat to freedomof navigation and theU.S. escort
mission at thetime: missile sites which couldhavetargeted shippingering the Gulf throughthe
very narrow Shait of Hormuz.
ïhe notation inthe U.S. document suggestingthat Silkwormmissiles have a rang85of
kilometers reflectsconfusion regarding missile nomenclature. Asnoted above, Iran deployedHY-
2 anti-ship missilesduring the Iran-Iraq conflict. Thesemissiles, and others inthe samefamilyof
ordnance, arecommonlyknown as "Silkworm" missiles. In fact,the true Silkwormand the HY-2
used by Iranare distinctin a number of respects, including range. Sikwom missileshavea listed
effective rangeof85kilometers. SeeJane's StrategicWeaponsSystems(September 1996):
Exhibit 93. TheHY-2anti-ship missile has a listedeffective rang95okilometers,andas noted
above, its poweredrange iseven pater (105km). Thus,becausethe HY-2 missile deployedby
Iran waslooselytermed a "Silkworm" in commonparlance,the author ofthe document
mistakenly referenced the listedeffective rangeof a true Silkwormmissile inthe map,notthe
listed effective rangeof an HY-2 missile. CHAPTER V
INWSPONSE TO IRAN'SUNLAWFULACTS,THEUNITEDSTATESTOOK
DEFENSIVEMEASURESAGAINSTIRAN'SROSTAhIOILPLATFORM
COMPLEX
1.79 Afier Iran's16October 1987attack on Sea Isle Citythe United States
determined that military action in self-defense was necessary to stop Iran'scontinuing
attacks on U.S. ves~els"~.
1.80 Iran'spattem of med attack was clearly aimed at disrupting neutral
maritime commerce, and in particular,the continued operation of US.-flag tankers
carrying oil fiom Kuwait and theirU.S. naval escorts. As detailed above, Iran unlawfully
mined routes comrnonly sailed by US.-flag vessels near Fuja)?;rtiwhere U.S.convoys
fomed up, in the vicinity of Farsi Island (darnaging the U.S.-flagBridgetononthe first
Operation Earnest Will escort mission), near the Bahrain Bellnavigation aidIraneAjr
mine-laying incident), and near the deep water entrance ta Kuwaport. Iranian forces
thenengaged U.S.forces directly, firing upon U.S. heliwptmnear Farsi, and fiom the
Rostarn offshore oil platform complex. This pattem culmiatewith Iran's missile attack
onthe U.S.-flagSea Isle City.Repeated U.S. diplornaticeffortsto convince Iran ta
suspend its hostile actions againstU.S. shipping had obviously failed, and there was no
'"Letterdated20October1987fromPresidentReaganta the SpeakeroftheHouseof
RepresentativesandthePresidentProTemporeofthe Senate,Book II,Publi Papersof the
Presidentsof theUnitedStates,RonaldReagan(1987),p. 1212,Exhibit99(hereinaftercitedas
President Reagan'settertoCongressdated20October 1987)M; er dated19October1987
fromthePermanent RepresentativoeftheUnitedStatesofAmericatothe UnitedNations
Addressedto thePresidentoftheSecurityCouncil,UnitedNationsDocument919219, Exhibit
100(hereinaftercitedaUN DacS119219); StatementofGeneralGeorge B. Crist,para. 10,
Exhibit44;Statementof RearAdmiralHarold J.Bemsen,para. 23,Exhibit43. reason tobelieve that Iran's attacks wouldcease. To the contrary, thebelligerentrhetoric
of Iran's leaderssuggestedthat Iranwouldcontinueto targU.S . erchant andnaval
vessels.
Section1. The Formulationof a U.S.DefensiveResponse - Considerationof
PossibleTargets
1.81 U.S. military and political decisionmakersthus tumed to the formulationof
a limited,necessary and proportionate wayto respond to Iran's armedattacks. The
necessitywas to protect U.S. merchant and navalvessels in the Persian Gulf and toseek
to restoretheir security by undermining Iran'scapability to identiS., locate,and attack
U.S. merchantvessels and their naval escorts.
1.82 In the first instance, the obvioustarget for such dcmaurese would
seemto bethe missile facilityin the Fawareainvolved in the attackon SeoCiry.
Uponcloserstudy, however, this optionprovednot to be advisable. Arnongotherthings,
the Fawpeninsulahad beencaptured fromIraqby Iran in early 1986,and the Faw area
was still an active battle front. Attackingtargetsin the Faw area couldhave inîluenced
the courseof the war and would likely have beenperceived as an eftodoso. Such an
anack thuswould have risked compromisingtheperception of the United Statesas a non-
belligerent,and threatened escalation of, or involvementof the United Statesin,the
conîlict. Defensiveresponses againstotherpossible military targets in Iranian landterritory presented the same nsks, as well as risks of unacceptablecollateral damage and
civi1ianand military casualties and were therefore disrni~sed'~~.
1.83 Equallyimportant, striking Iran's cruise missilesitein the Faw area would
not have significantly reduced Iran'soverall threat to U.S.v-ess--a threat which
included undersea mines, and attacksby helicopters, navalvessels, and gunboats. Iran's
cmise missiles in the Faw area could not range past Kuwait,but Iran's total threatU.S.
vesselsextended southeastof Kuwait al1the way to the Straitof Hormuz.
Section 2. The Decision to Select the Rostam Platform Complex asthe Target of
the U.S. Defensive Response
1.84 One defensivemeasure offeredthe potentialof reducing the threat to U.S.
vessels without the seriousrisks of widening the conflictandotherrisks posed by striking
targets in Iraniantemtory. As will be shown here, the UnitedStates hadcornpelling
evidence that Iran'soffshore oil platforms--particularly RostamS ,irri,and Sassar-i
were serving as military facilities, supporting Iranian navalactivities and facilitating
attacks on neutral sl~i~~in~'~'. ecause of the involvernentof the platforms in Iran's
-
amed attacks, these facilitieswere considered appropriatetargets for defensive
'36StaternentofRearAdmira1 HaroldBernsen,para. 25-28, Exhibit43;StaternentofGeneral
GeorgeCrist,para.10-1 1,Exhibit44.
13'TheUnitedStatesdoesnotdeny that Iran's offshoreoilplatfoms at Rostam, Sas-, andSim
wereeitherproducingat leastsomeoilor mighthavebeencapableofdoing so if theyhadnot
ben previouslyattacked'by Iraq.However, inadditiontoany commercialpurposeanduse,Iran
employedtheseoffshoreoilplatformsasmilitary facilities. rneasu~es'~~T. he evidencc supportingthis conclusion falls into fourprincipalcategories.
operationaldocuments and materials found by U.S. forces abard the Iranianmine-
laying vesse]Iran Ajr, establishedthat Rostam served as a miIitary communications
faciliq, transmitting messages between Iran'sFirst Naval District Headquartersandother
navalunits. Second, contemporaneousreporting of many commercialentities that closely
monitoredthreats to shipping in the Gulfconfirmedthe platforms' military role. This
incIudedreports of direct observations of helicopter attacks against neutral shipping being
launchedfrom the oil platforms. m, the circumstances surroundingIranian attackson
neutral shipping, as analyzed by military experts, indicated the involvementof Iran's oil
platformsin many of these attacks. Suchanalyseswere onginally conducted
contemporancously by U.S. forces in the Gulf; in preparation for this proceeding,they
were corroborated by British and Frenchexperts'39.
1.85 u, documents seized by U.S. forces which boarded the Rostam
complexfurtherconfirmed the conclusionsreached by U.S.rnilitaryplannem. These
documents dispel al1doubtthat Iran's Rostam, Sassan, and Sim oilplatforms were
engaging in military activities which facilitatedIran's attacks onU.S. vessels and other
neunal shipping.
138Statementof RearAdmiralBernsen, para .6,Exhibit 43;StatementofGeneralCrist,para.
12, 16-17,Exhibit44.
139
RearAdmiralRichard Cobbold (Retired),andCommanderMichaelCodner(Retired), Royal
UnifedServices Institutefor DefenceStudie"TheUtilityofIranianOffshoreOilPlatformsin
theConductof Helicopter, SmallCraft,andMineAttacksAgainstMerchantShippingDuring
theIran-IraqWar,"May 1997,Exhibit57;Contre-amiralMichelHeger(Retired) et Yves Boyer,
"U.S.and Iranissuesin the Gulf(1987-88): Exhibit18.A. DOCUMENT SElZEDFROM THE IRANIANMINE-LAYWG VESSEL IRAA'AJ RSOWED
ROSTAM' S ILITAR R OLE M ATTACKA SGAINSTMERCHAN SHIPPING
1.86 WhenU.S. forces capturedIran Ajron 21September 1987,they found
evidence establishingthat the Rostam oil platformwasbeing used as a military facility
involved in operationsagainst shipping. U.S. forcesseizeda teletype roll of radio naval
communicationstransmined, received, and monitoredbIran ~jr'~'.The teletype
recorded communicationsbetween Iran Ajrand Rostarn,and betrveenRostam and other
Iranian military units. These recordings, annexed intheir entirety a70(both in
the original Farsiand English translation)show that Inaval unitshad difficulty
maintaining directcontactwith each other and withIran'snaval headquartersover many
kilometers of openwater. The centrally-located Rostamplatforin complex played a key
role inurrnountingthese difficulties by actiagmilitary communication link,
coordinating communicationbetween Iranian navalforces. Thwas not a benign,
civiliantask. Thesemessages show that the Rostarnplatform served asa tactical
communications link between Iran'snaval headquart--referred to as "the Fleet" in the
teletype messages included in Exhi69t--and Iran'smine-laying shIran Ajronthe
veIy day (21 September 1987)thaIranAjr was embarkedon its mine-laying mission14'.
Other messages showthat Rostam was a communicationslink for Iranian warships,
''OA photographoftheteletypemachinefoundonboarIranAjrisdisplayedinIHustrati1.8:
followingp.30. U.SforcesseizedthreegeneraltypesofdocumentsfroIranAjr:teletype
messages(seeExhibit69 and70),paper-tapemessage(seeExhibit71 and72),andstandard
formsthatwerecompletedbyhand (seeExhibit101).
141Selectedmessages froteletypecommunicationdeviceMessages 1and2,Exhibit69. includinAlvund and Subulun,which played a prominent, and particularly desiruetive
role in attacking neutral shippingduring the T~ar"'.
1.87 These recordedcommunicationsestablished that Rosiam was a military
communicationsfacility, relayingmessages between Iraniannaval headquarters and
Iranian military vesselson the wa--a function that is vital to the conduct of naval
operations and inconsistent with Iran's claim that the platformwas an exclusively civilian
facility defended by a fewanti-aireraft gunners.
B. CREDIBLS EHIPPINGAND DEFENSE SOURCET SHAT MONITORE Dn~ TANKER WAR
REPORTED THAT IRANLAUNCHEA DTTACKS ON MERCHANS THIPPMG FROM THE OIL
PLATFORMS
1.88 Many crediblenon-Amencan shipping and defensesources that closely and
contemporaneously rnofitored attackson merchant shippingreportinoIran'suseof its
offshoreoilplatfoms asmilitary facilities. These reports confimied other intelligence
gatheredby U.S orces whichindicated that the platfoms were being used as actual
staging bases, luunch helicopterand small boat artaeksonneutraIwmmerciaI vessels.
1. The Oslo-based International Associationof Independent Tanker
Owmers(Intertanko), penodicallypublisheTankerSofety Circdar Lettersto its
members, descnbing the evolvingthreat to shipping causedby theTankWar. Sofety
CircularNo.54 of 16April 1986related as follows:
"One of the crewmembers on BERGE KING, on her way topick up cargo from
Ras Tanura, said that he saw two helicopters on the Iranian off-shore installation,
Rostam Island. Oneof them lifted and attacked,but the missilefell hmlessly
142Ibid.Messages3 and4.Therole playedbyIraniannavalvesselinattackinneuîral
merchantshippingisdescribedinHootonJuneS IntelligenceReviep.219:Exhibi4; see ulso
Jordan,Jane'sIntelligence Rev,.215,Exhibit5. intothe sea. The other helicopter lifted whenthe first one retumed to the
installation andfired a misile (xic)which landcdin the air conditioningroorn
without exploding. The Nonvegian government made a protestto Iran afterthis
attack.
At least 14ships are reported to have been attacked from this installationcalled
Rostam Island. located about IOOkm fiom the Iranian shore line."
STELIOSwas in ballast when set ablaze by an air strike as a missilesmashed into
the engine room. The captain on STELIOS reported that he sawthe attacking
143,,
helicopter take off from Rostam Island .
Likewise,in Safety CircularNo.58, B of 20August 1986,Intertanko reported "that
attacksmust be expected both from Abu Musa, Rostam, and Sassan Island. Iran is
denyingbeing responsible for these attacks. Helicoptersare knorin to operatewithin a
rangeof 60nm, and vessels should by to stay outofthe range of these helicoptersduring
day~i~ht'~~."
2. The General Council of British Shipping (GCBS),anassociation
of Britishship owners and operators, provided its rnernkrs withperiodic "Guidance
Notesto Owners with Vessels in Arabian Gulf' fiorn 1985-1988. These reportswere
designedto help GCBS rnembers understand and respond to the nsks involvedin sailing
in thePersian Gulf war zone. Beginning in 1985,GCBS warned itsmembers that
"[rjecentreports indicated that the Iraniansare now also using helicopters (possibly
operatedfrom oil platforms) both to overfiy vessels, launch missiles andintercept
143IntertankoTankerSafetyCircularLetterNo.54, 16Apnl 1986, para.3,Exhibit16.
144
IntertankoTankerSafetyCircularLetterNo.58,B,20 August 1986, para.ii,Exhibit102;see
alsoIntertanko,TankerSafetyCircularLetterNo. 62, 12DeCernber 1986,para.iii,Exhibit20.vesstl~~~~."ln 1986, GCBS reported that Iran was launching helicopter attacks hm the
Rostarn and Sassan oil platfoms, and described the weapons used by theheli~o~terj~~~.
GCBS again confirmed that Iran was conducting air reconnaissance and staging
helicopter attacks on rnerchant vessels from its oil platforms at Rostam and Sassan in its
publications in 1987and 198814'
3. Lloyd's Maritime Information Service, a highiy respected British
maritime information service cornpany affiliated with Lloyd's of London, published a
number of reports on the Tanker War stating that Iran used its offshore oil platforms to
observe and report on passing vessels and to stage attacks on vessels by helicopters and
small boats. Lloyd's reporting discussed the involvement of i on am'" and aIso Sassan
and '49in these attacks.
145
General Councilof British Shipping, GuidanceNotes,1October 1985,pp. 12, 17,Exhibit
103.
]" General Councilof British Shipping, GuidanceNotes,30 May 1986,pp. 12, 14,Exhibit 104.
147
General Councilof British Shipping, GuidanceNotes,Febmary 1987,pp. 13, 17,Exhibit 105;
General Councilof British Shipping,GuidanceNotesfor Shipping,pp. 36,6 I, Exhibit2.
148
See"Iraln aunchingattacks from Gulf oil platform,"Lloyd'sList,Apnl3, 1986,p. 1,Exhibit
106;see also"SaudiArabian tanker damaged in Gulf attack,"Lloyd'sLisr.Apnl7, 1986p. 1,
Exhibit 107(helicopterattack believed to be mountedfromRostam platform).
149See"Iran sets upnew tanker attack base," Lloyd's List,May 14, 1986,p. 1(discussing
Rostam and Sassanas attack bases); "How Gulf shipping toll is mounting;" Lloyd'sList, August
7, 1986,p.2 (discussingIranian helicopterattacks launched fromoiI rigs near the Sim andFateh
oil teminals); "Iraqijets set Sassan field ablaze," Lloyd's List,November 15, 1986,p. 1
(discussing Sassanas an attack base). All of these articlesare annexed at Exhibit 108. 4. Jane'sInformationGroup, a British Companyrecognized as the
kvorld'spreeminent private defense informationservices fimi!extensively reported on the
Tanker War, and published several reports indicating that attacksonmerchant vessels
were launched from the Rostarnplatform complex. One suchreportrelated that --
"Iran is reported to be operating helicopters hm an oilplatform to mount strikes
against vessels in Gulf shippinglanes, writes Mark Daly.
The Rostam platform, 65nm [nauticalmiles] fromthe Iranianmainland, has been
the base for atleast14 strikes this year, British shippingsources haxre~aid'~~."
5. The Norwegian Shipowners'Association (NSOA)alsoprovided
guidance to its members regardingthe Tanker War. Such guidancewas provided by the
organization's ContingencyPlanningSection, headed at the tirne by Captain Christen
Feyer ~untervo~d'~'.Captain Puntervold collected informationon threats to shipping
hm various sources includingrepresentatives from shippingwmpanies in the Gulf who
received first-hand reports from crews; ship masters who were artackedin the Gulf; and
representatives of companies which ferried supplies in theGulland therefore were
knowledgeable of area conditions and risk~'~*.Captain Puntervolddetermined that more
than fifty Iranian attackson neutral shipping occurred in thevicinity of the Iranian oil
platforms at Rostarn, Sassan,and Sim, and that Iranian forcesurereusing these platforms
"Iran mounts airstrikesfromoilplatform," Jone'sDefenseWeekly,26 April 1986,p.
747, Exhibit109; see also"Gulfwarintensifies,shippingandoil rigsface increasingthreat,"
Jme's InternationalDefenseReview, 311987,p.279,Exhibit 14;Jordan,Jane'sIntelligence
Review,p. 220, Exhibit5.
15'StatementofCaptainChristenFeyerPuntervold,para. 2:Exhibit11
Is2Ibid.,para.5. for militq purposes --specifically, to launchsmall boat and heliwpter attackson neutral
One example of a report from a ship master descnbing an attack onhis vessel is
MasterM.Faury's reportof the 4 March 1986attack on his vessel, Chmmont,ouned by
the Frenchaffiliate of British Petroleum. Master Faury reported that his starboard watch
seamanobserved
"du décollagede deuxhélicoptèresnonidentifiésdes deux plate formesdu champ
pétrolifère ROSTAN,a alors aperçu un des hélicoptèresouvrir le feu d'une
distanceévaluée à 1'5et d'une altitudede 60 mètres. Aussitôtà 17.58par 25.47N
et 52.43E le navire a éttouchépar unmissile à tribord arrièràla hauteur du
pont 2 sous une incidence de 20' environ de l'axe du navire. Sousl'impact
extinctionde la chaudièreTribord,émissionde fumée noire épaisse.Retour des
hélicoptères àleur base154."
6. Shipping companies,acutely aware of the dangerof sailing near
Rostam:Sassan, and Sirri, resorted to extraordinq rneasures todistancetheirvessels
fromtheseplatfoms. For example, bath thc Kuwait Oil Tanker Companyand Chevron
Oil Companyloaded their tankers with lessoil to reduce their draftsothey could sail in
increasinglyshallowwaters farther south from the oilplatforms --a significantdeparture
frorn theroutethey would have normallytaken. Thisprocedure increasedthecosts and
153Ibid para.8-9.
154Sea ProtestofCaptainM.Faury,5March1986,Exhibit110. TheEnglishtranslationofthe
passagequoted aboveisas follows.
"[acrewmemberobserved]thetake-offoftwounidentifiedhelicoptersfiomtwo rigsin
Rostamoilfield. Hethensaw oneofthehelicoptersopen fireatan esiimateddistanceof
1'5and an altitudeof60meters. Thereupon,at 1758hours,at 25O47 ' and52O43E ' , the
vessel washitbya missileontherearstarboard side,levewith deck 2,atan angleof
approximately 20"inrelationto theessel'saxis. Thestarboardboilerwentouton
impact,releasingthickblacksmoke.Thehelicopters returnedtobase."risksof sailing in the Gulf: oiltankers sailed withouta full carga less follod
direct route;watersso shallow that the risk of groundingwas enhanced ~i~nificantly'~~.
These risks and costs were incurred to reduce what was clearly perceived to be an even
Fer and more seriousri--an attack by Iranian forces launched fiorn,or coordinated
by, Iran's Rostam, Sim, and Sassan oil platforms.
C. IRAN'SATTACKIN HGELICOPER AND GUNBOA TESQU~RE OFFSHORE ASSISTANCE
FROM IRAN' S IPLATFOLVS
1.89The oil platforms' role in launching andfacilitating attacks on commercial
vessels and U.S. navalvessels was not only shownbythe direct evidence noted above. It
wasalso clcar fromexpertanalysis of the conandicircumstmcessurrounding
Iran's attackson neutralvessels.
1.90 Theanalysis of Iran's attacks on merchant ships bagcarefiil study
of thelocation of those attacks. Map 1.12on the fpageplots Iranian attackson
neutrai shipping in the central and souihem Gulf. Thismap reflects that more than 80 of
Iran'sttacks onneutral merchant shipping occurredwithin 50nautical miles of Iran'soil
platforms at Rostam, Sassan, and Sim. Iran's announcedmaritime exclusionzone, also
depicted on Map 1.12,forced ships to sail within a verynarro-a comdor that
channeled shippingvery near Iran's oilplatforms. The distance fiom Iran's oil platforms
to the route of U.S.tankerswas short: less than 15nautical miles from Sim and Rostam,
Is5StatementofColinEglington,p10,Exhibi31;"ArabGulfTransiInstructio21May
1986ChevronOilCompanytelegram,Exhibi111.
63 and less than30 nautical miles from Sassan. The platforms were equipped with surface-
search radar,'j6 and with helicopter pads to facilitate helicopter launches. Lrrtnianvessels
- both vessels fenying supplies and gunboats loitenng behveen missions --were also
able to tie-up to the platform structures.
1.91 The platforms were therefore in an excellent position to observe the flow o'f
merchant shipping (both visually and with radar), and to stage helicopterand gunboat
attacks on merchant shipping. In fact, Iranian forces attacked45-50 shipsuithin 50'
nautical miles of ~ostam'~'. Iranian forces similarly attacked35-40 ships~ithin 50
nautical miles of ~assanl~',and approximatelythe same number rvithin 50nautical miles
of Sim. Each of these attacks --and the pattern they created- are noted on Map 1.12.
1.92 The platforms had to play a role in these attacks because of Iran's decision
to use helicoptersand srnall boats to attack shipping. Independent militaty experts asked
by the United Statesto study the tactical circumstances smounding Iran's attacks on
shipping in connection with thiscase agree159.Iran's helicoptershad neither the mnge
nor the target-finding capability to conduct these attacks without assistance fiom an
offshore facility near the intended targets. Iran's small gunboats aiso needed staging and
156See"Transfer and Turnover Listofthe ReshadatOilPlatformRadarCustodian;"Exhibit 117.
157
Locationsofthe IranianattacksonmerchantshipsnotedonMap 1.12arebasedon data
compiledbyLloyd'sMaritime Information Service, see Exhibit9, theNorwegianShipOwners
Association,see Exhibit 12,the General Counciol fBritish Shippio,eeExhibit2; and inthe
caseofthe Febmary 16,1985attackonPetroshipA, byExxonOilCompany,see Exhibit 112.
Becausethe Sassan platformcornplexis only30nauticalmiles6om Rostam,atîacksthat
occurredbetweenthe two platformsmaybewithin50nauticalmilesofbothplatforms. Sixteen
of the attackswithin50 nautical milesof Rostam wereonly20nauticaImilesfrom Sasm.
159See RoyalUnitedServicesInstituteReport,Exhibit57;AdmiralMichelHegerand Yves
Boyer,"U.S. andIran issuesintheGulf,"Exhibit 18.target-finding assistancefrom offshore facilities.Iran used itsoffshore oil platforms at
Rostam, Sassan, and Sirrifor precisely these purposes.
1.93 The helicopterIran principally used to attack ships was the Augusta-Bell
212, which was not equipped with radar16'. Absent radar instrumentation, Iran's
attacking helicoptersrequired assistance in locating merchant shipping targets over the
more than 3,600 squarenautical miles (6,667 square kilometers) of Persian Gulf waters in
which helicopter attacks on shipping largely took place161.Without suchassistance,the
helicopters could not have located their targets, as they did not have the fuel or range to
traverse the Gulf searching visually for ship targets.162
"Before shipping can be attacked effectively,a surface picture (shipping plot)
must be built up by surveillance. Surveillance canbe carried out by dedicated ...
reconnaissanceaircraft equipped with a suitable radar, by radarequipped shipsor
by fixed radar installations. Surveillance entails the rewrding of the positions and
tracks of ship contacts63.,
Consider, for example, a helicopter that launched from Iran's militarybase on Abu Musa
Island, and sought to attack shipping in the vicinity of Rostam or Sassan --approximately
RoyalUnitedServicesInsrituteReport,pp. 8-9Exhibit57;AdmiralMichelHegerandYves
Boyer, "U.S andIran issuesintheGulf,"p. 7,Englishtranslationp. 8, Exhibit18;Intertanko,
The TankerWar,p. 24, Exhibit 1;GeneralCouncil ofBritishShipping,GuidanceNotesFor
Shipping,p. 61,Exhibit2;Jane'sAI1the World'sAircraji 1975-76, p. 129,Exhibit113.
RoyalUnitedServicesInstituteReport,p. 3,Exhibit57.
162PersianGulfmeterologicalconditions (dust andsandstorms,and dryhaze)furtherhindered
the abilityof helicopterstolocate visuallytargets. SeeAdmiralMichelHegerandYves Boyer,
"U.S.andIran issuesintheGulf,"p. 8, Englishtranslation,pp.9-10, Exhibit18.
16'RoyalUnitedServicesInstituteReport,p. 3,Exhibit57. Thereportcontinues:"Construction
of acomprehensive shippingplottakes tirne. Typicallyanairbome reconnaissanceunit ... will
take45 minutesto anhourto constructa shipplotof positions coursesandspeedsofshippingin
an areaof3,600 nautical mileswith levelsof shippingdensiv, typicalofthe Gulf? Ibid. 120 miles (222 kilometers) away. See Map 1.12. Unless directed toa target, the pilot
would not know in which precise direction to plot a course so as to locate, intercept, and
attack a vesse1on the water 222 kilometers away. Equipped withradars, the platforms
served this target-tracking function, relaying the location of shipping to Iranian rniiitay
forceslM. No other Iranian facilities were positioned effectively to sweil the Gulf waters
monitored by the oil platforms with their radar
1.94 Iran's oil platforms also servedas bases which Iaunchedhelicopter attacks
on shipping. This, too, was dictated by the tactical limitations of the helicopters. The
AB-212 helicopter has a maximum range of 267 miles'66. This listed range illustrates the
distance a helicopter can travel in a straight line from point A to poinB. If, hotvever,the
AB-212 helicopter seeksto travel from point A to point B, and thenreturn to point A, the
range must be immediately halved. The range must then be furtherreduced to take
account of the weight of weapons, the altitude at which it is flying (lower altitude flying
I6jSittinghighabovethe water, platformpersonnelcouldalsoobserveshippingvisually.
"Visualdetectionof shippingduringthe daycouldtypicallyhave beenachievedof largeships at
15nm ... Visualidentificationof shippingby classcouldhave been providedfrom theplatfom
outto rangesofabout10nm in goodvisibility. Identificationby nameofflag could havebeen
achievedat rangesof 1to 2 miles." Ibid.,p. 12.
'65Occasionally,Iranianforcesusedaircraftto observe shipping.But the use ofsuchaircrafi
surveillancewasinfrequentand episodic,andhaddiminishedsubstantiallyby 1987. Statement
of Vice AdmiralAnthonyLess, para.13,Exhibit48;RoyalUnitedServicesInstifirteReport,p.
11,Exhibit 57. Indeed,mariners"neversawCl30 overflightsinthe regionaroundthe
platforms." Statemeno tf ColinEglington,para. 10,Exhibit31. Fromatacticalperspectivethis
wasto beexpected."[Ilt is considerablymoredificult" to surveilshipsaccuratelyif
"surveillanceisnotcontinuous,forexampleifairbornesurveillance do notrelieveoneanother
onstation. ... Shipsor fixedplatformsdonot ofcoursehavea problemof continuity." Royal
UnifedServiceslnstituteReport,pp. 3-4,Exhibit57.
166Jane 'Al1the World'sAircrafr1975-76,p. 129,Exhibit 1 13.expends more fuel) and the amount of time required by the helicopter to maneuver over
its mget. When these factors are considered, expetienced pilots conclude that the AB-
212 helicopter can effectively, and safely, anack targets thaare approximately 60
nautical miles from its launch point167.As map 1.12 indicates, the only Iranian launch
facilities within 60 nautical miles of many helicopter attackson shippingwere Iran's
platforms, including Rostarn. Thus, the oil platforms allowed Iran to best--
"- économiserau maximum le potentiel des hélicoptirestant lors de laphase de
recherche dela cible, deson identification et de I'attentede l'autorisation de tir,
-dans une moindre mesure, mettre ces hélicoptèresà I'abn des aléa
météorologiques parfois brutaux,
-étendreau maximum la duréede la présencediurne sur zone ...,
-garantir la fiabilitédes communications radio ...
-stationnerles hélicoptèresdans une position d'attente la plus proche possible
(moins de 60M) de cette zone àhaute densité detraffic.. .168
167
AdmiralMichelHegerandYvesBoyer,"U.S.and IranissuesintheGulf," p. 7,English
translationp.9, Exhibit 18;Intertanko,The TankerWar,p. 24, Exhibit 1;Intertanko,Tanker
SafelC yircularLerterNo.58B,20 August 1986,p. 2, para. iiExhibit102. Britishmilitary
snidiesexpertsconsultedbythe UnitedStateshaveconcludedthattbeAB 212helicopterhad an
effectiverangeof "ratherlessthan 100nm [nauticalmiles]." RoyaIUnitedServices Instituje
Report,p. 9, Exhibit57. Atthisrange,however,a helicopterwouldhaveonly"ten minuteson
task3 --that is, onlyten minutesto fly aroundoncereachinga point 100milesaway fromits
launchbase. Ibid Considerablymoretimethanthat isrequiredfor a helicopterto surveil
shipping effectively. Ibid.,p. 3. Allowinghelicoptersgreatertime andopporhinilyto maneuver
and toengageinsurveillancesubstantiallyreducestacticalrange,whichis whyFrenchand U.S.
expertsand thosecitedbyIntertanko concluded thattheAB212helicopterhadan effective
tacticalrangeof approximately60nauticalmiles.
168Ibid.,pp. 10-11. The Englishtranslationof thequotedpassage follows:
"economizethepotentialof helicoptersduringthephasesof searchingforthe target,
identifyingit,andwaitingfor authorizationto fire,
-to a lesserextent,shelterthese helicoptersfromsometimesbrutalmeterological
hazards, 1.95 Iran's helicoptersand smallgunboats needed the oil platfoms for another
reasonaswell. As noted by AdrniralHegerand Professor Boyer?helicoptersand small
gunboatswhich identified commercial shipping targets and sought permission to attack
hm the Iranian chain-of-command did not possess sophisticated radio equiprnentwhich
couldreach Iran's rnainland between 100-200miles a~a~.'~~These attackingunits
thereforeneeded the oil platfoms to relay military commu~cations~and indeedused
them for suchpurposes, as evidenced by messages found on IranAjr.
1.96 British rnilitary studies expertsconsulted by the United Statesto assess
independentlyIran's attackson shippingreached a similar conclusion regardingthe use
of the platfoms to stagehelicopter attacks. Following their studyof Iran'sattackson
merchant shipping in the central and southem Gulf, Admirai Richard CobboId(Royal
Navy,retired) and Commander MichaelCodner (Royal Navy,retired) of theRoyal
United StudieçInstitute in London concludedthat such attacks ''wouldnot have been
170x
feasiblewithout the use ofthe Rostam, Sassan,and Sim platfoms . Their concIusions
elaborate:
-andextendto themaximumthelengthof dayîimepresence inthezone. ..
-guaranteethe reliabilityofradiocommunications, [and]
-placethe helicoptersinareadinessposition ascloseaspossible(less than60 miles) to
thezoneofhighshipping density ..."
169Bid, pp.7, 9,13, Englishtranslationpp. 8, 1O,15.
''ORoyal UnitedServicesInstituteReport, p. iv,para.12, Exhihit57 "The oilplatfoms were highly likely to havebeen used for rada3, andto a small
extent,visual surveillanceof shipping crossing the area ...
"Helicoptersare highly likelyto have beendeployedto the oil platforms sewing
as fomd operating bases. ... The shortertransittimes [resulting fiom use of
the platformsas fonvard bases] would allowhelicopters to spend very much
longertimeson taskdoing visual reconaissanceand carrying out attacks."
"Thisjudgement is confimed by the densepattem of ship attacks aroundthe
Rostamand Sassanplatforms, a pattern that is not easily explained otherwise.
Someattackscan beassociated similarlywith SirriGOSP."
"By the sarnetoken, it is probable that the oil platforms 171::led similarfunctions
in suppon of small boat attacksand tactical mine-laying .
Thesejudgments reflectthe British experts' detailedanalysisof Iran'scapabilitiesand
tactics, includingthe basic military principles goveming"the planning and executionof
attackson shipping"by armed forces;the capabilitiesof Iranian equipment; the command
andcontrol arrangementsrequired for successful atîacks;and the supponing facilitiesand
assets requiredto achieveprobabilities of success thatmilitaryjudgment would deem
172tr
prudent andadequate .
1.97 AdmiralHeger and Professor Boyer likewiseconcluded upon analysisof the
circumstancesthat"la seuleméthoderaisonnablepourattaqule ernavires de commerce
dans le Golfe à l'aide d'hélicoptères de masse moyenneconsiste à placer ceux-ci en
'embuscade,'principalementsur les plateformes pétrolières de Sini, Sassan et Rostam et, dans une moindre mesure, sur l'île d'Abu usa."'^^
1.98 As noted above,tcletype recordings found on boardthe Imnian vesse1Iran
Ajr indicatedthat it usedthe Rostarn platform as a communications Iinkon the night it
was caught in the act of mine-laying by U.S. forces. The RoyaIUnited ServicesInstitute
study helps to explain the role of Iran's offshoreoil platfoms in laying mines. The study
shows how Iran's oil platformswould have been necessary to Iran's 'tactical mining" --
that is, the laying of mines in advance of specific targets basedontheir likelyroute. The
study explains:
"For successful tactical mining it is necessaiy for the minelayer to be able to
respond at shortnoticeto intelligenceand surveillanceinformation giving data of
the potential target's likely movements. The minelayer would berth aiongside an
oilplatform waiting forthese target details. When aierted,it w-ouldsortie out and
Iaya number of mines fairly densely to ensure detonationacross an areaof water
thatyould spanthe assessed track of the t~tr~et''~."
This explanation confirmsthe conclusions reached atthe timeby U.S. forces reçarding
the manner in which lran laidthe mines which struck the US.-Bag oil tanker Bridgeton.
173AdmiralMichelHegerandYvesBoyer, "U.S.andIran issuesintheGulf," p. 11English
translation. 13,Exhibit18. TheEnglish translationofthequotedpassageis: "the only
ceasonablewayto attackcommercialvesselsintheGulfusingmedium-weighh t elicoptersisto
placethem in'ambush'primarilyonthe Sirri,Sassan,andRostamoilplatfoms and toa lesser
extentonthe islandofAbuMusa."
174Royd UnitedServices InstituteReport, p. 20, Exhibi57Section 3. The United States Took DefensiveMeasures Against the Rostam
PlatformComplex
1.99 With evidence such asthat noted above, and other intelligencein hand, the
UnitedStates concludedthat Iran's oilplatforms played a significantrolein facilitating
and stagingattacks on neutral shipping. Theplatforms directlylaunchedhelicopter
attacks,transmitted communications between Iranian naval forces involvedin attacks on
merchantshipping, and acted ascrucialfomd observation bases. Theplatforms
directlyparticipated in anderformedbelligerent-offensiveactions andas such forfeited
any conceivableclaim to civilian status. Therefore, following Iran's 16Octobermissile
attackon Sea Isle Ciiy, the United Statesdetermined that anacking the Rostamplatform
complex idselfdefense would lessenthe threat to the securityof U.S.vesselsand reduce
or terminate Iranian attacks, thus meetingthe military and legal requirementsof necessity
andproportionality.
1.100 At approximately 1400hours (local tirne)on 19October 1987,personnel
on the Rostam platform complex werewarned by loudspeaker and overopenradio
channelsin Farsi and English to departbefore the platform complex was attackedby U.S.
forces. Followingthe departure of Iranianpersonnel, U.S. forces searchedthecornplex
and discovered 23 millimeter guns and equipment usefd incoordinatingattackson ships,
includinga marine surface-searchradarwith a range of 48 nautical miles(89km)and
communicationsequipment'75.U.S. forcessubsequently used artilleryand explosives to
'" Statementof Commander Marc Thomasp ,ara.11-12,Exhibit61.
71 cause substantial darnageto structures in the abandoncdplatform complex to preventits
continued use in supporting attacks on shipping.
1.101 The United States has no independentevidence of injuries to Iranians
during the Rostam platfom engagement. Iran claimsthat "a large number of civilian
techical employees"were inju~ed"~. As notedhowever, warnings were given and
personnel were seento evacuatethe platform beforeit was anacked.
1.102 In accordancewith Article 51of the UNCharter, the United States
promptly reportedthis action in self-defense to the UN Security C~uncil'~'.
Section 4. Documents Discovered on the Rostam Plaîform Complex Conîïrmed
the Military Funcîion of Rostam, Sim, and Sassan
1.103 The U.S. forceswhich boarded one of the Rostamplatforms found
documents which confirmed that Iranhad integrateditsoffshore oil platforms at Rostam,
Sassan, and Sirri into its military stru~ture."~ These included an IraniaNnavyorder
entitled "Instructionsfor Radar Stations179,7anIranianNavy order entitled "Operating
Instructions forthe Deploymentof Observers on Oil Platforms in the Persian ~ulf''';an
Iran'sMemorial,para 1.113.
177UN DocSl19219,Exhibit100.
178
StatementofCommanderMarcThomas,paras. 12-13E , xhibi61;StatementofConway
Zeigler,para. 4,Exhibit67.
179Amed Forceof theIslamicRepublic ofIran,nie FirstNavalDistrictFIeet<<Intelligence»,
“instructionsforRadarStations,"Exhibit114.Iranian Navy order entitled "Instructions for Exchanging WAR ~ntelli~ence''~;"a file
entitled"nie RADAR Custodian Turnover and Transfer file's2;and a 2-ring notebook
hand-titled "Archive of Incoming Messages," which contained sheets of original message
traffic, both typewitten and hand~ritten''~.
1. The "Instructions for Deployment ofObservers on the Oil
Platfoms in the Persian Gulf' directed the First Naval District to deploy military
observation posts on Rostam, Sassan, and Sim. The document specifieç:
"The First District has the mission of deployingfour(4) observations posts on the
oil platfoms in southem parts of the Persian GuIfin order to gather information
about the enemy's airand sea traffic anddestroy ilscraJ. (Ernphasis added)Ig4."
Iraq did not operate naval craft in the central and southem GuIf during the Iran-Iraq
conflict; thus, the reference to enemy sea traffic in the Insmictions for Oil Platfoms
document necessarily refers to to thevessels of non-belligerentStates including the
United States, whose warships rnost prominently esconed merchant convoys rhrough the
Gulf.
IslamicRepublicof Iran Anned Forces, Fleet,1STNavalDistrici ((Intelligence)),
"instructions fortheDeploymentof Observerson OilPlatfoms inthePersianGulf,"Exhibit
115.
181IranianlslamicRepublicNavy,PersianGulf andGulfof OmanFleet,Operations,
"InshuctionsforExchangingRadarIntelligence," 26May 1987,withwver letter,Exhibit 116.
'" "TransferandTurnover Listof the ReshadatOilPlatform Radar Custodian," Exhibit 117.
This file containsinventoriesofequipment,includingDECCA1226SurfaceRadar,andship
recognitionandnavigationequipment.
183
"Archiveof lncomingMessages,"Exhibit 118.
IwIslamicRepublicofIranArmedForces, Fleet,1STNavalDistricf ((Intelligence)),
InstructionsfortheDeploymentof Observerson OilPlatfoms inthe PersianGulf, English
translationp.3, Exhibit115. 2. TheIranianNavyorder entitlcd "OperatingInstmctionsfor the
Deploymentof Observerson OilPlatforms inthe Persian Gulf' confirmedthe observers'
directrolingathenng militas. intelligence. It established thefollowing"purpose" and
"goal":
"1. PURPOSE
TO ESTABLISH COMMUNICATIONSBETWEEN THE OBSERVERS
DEPLOYEDON THE SALMAN,ROSTAM, RAKHSH, AKD P.P.
(PRODUCTIONPLATFORM)OIL PLATFORMS ANDTHEISLANDOF
SIRRIAND LAVANANDFROMTHESEISLAIUiS TOFLEET
HEADQUARTERSAND 1STNAVAL DISTRICT(BANDARABBAS.)
2. GOAL
THE IMMEDIATEEXCHANGEOF INTELLIGENCEFROM THE OIL
PLATFORMSTO SIRRIANDLAVANUSMG THE RADIOS OF
OBSERVERSONTHEPLATFORMS ANDTHEh',THE IMMEDIATEAND
SECURETRANSMISSIONOF 'I'HESEMESSAGESFROMTHE ISLANDS
TO FLEET HEADQUARTERSAND THE 1ST NAVALDISTMCT (BANDAR
AB BAS)''^."
Thisdocument indicatesthatthe "ProductionPlatfom" rnentionedin the "Purpose"
paragraphwas 32kilometerssouth-westof Sim Is--theplatfonn we describeas the
"Sirriplatform," againstwhich the UnitedStates ultimately took defensiverna~suresin
April 1988. The ~latformdesignated"Salman" is referredasthe "Sassari"
Theseinstructionsalsocontainedcommunications codesto beusd by observers
ontheplatforms. The codesasignnumbergroupingsto representparticularwords used
185
IbidAnnex G (Communications), Ensanslatiop. Exhibit114.
IbidE.,glishtranslap.3.in messages by platfonn observer$. Arnongthe words assigncd codes were:"America,"
II
Bilain," "French," "Kuwait," "Saudi Arabia,"""merchantman,""escon hip,"
"aircraft carrier," "destroyer," "heading," "speed," and''course'87."These codesplainly
demonstrate that Iran's oilplatform personnel were tasked with obsenring, andreporting
on, the movements of merchant vessels and their naval escorts, including U.S.vessels.
3. The "Archiveof IncomingMessages," contains a varietyof
outgoing and incomingmessages of the kind one would expect from a naval outpost
tasked with collectingand reporting intelligenceon vesse1movwithsewing
as a tactical communications link. The followingexcerpt of an outgoing message from
Rostarn is illustrative:
"2. THE CONVOYAT 172327WAS SEEN ONRADARATBEARiNG
096 DISTANCE48 MILES FROM THE PLATFORMANDWAS TRACKED
ANDPLOTTED.
3.THENUMBER OF MILITARYVESSELS IN THE CONVOY1s6
SHIPSANDTHEYARE TRAVELiNG iN SiNGLEFILE AND THEIR
CURRENTPOSITION IS 335 DEGREE,DISTANCE21 MILESFROMTHE
PLATFORM AND THEIR COURSEANDSPEED1s 285 DEGREE,7KNOTS.
4. IF APPROVED,THEPLATFORMWiLL TURN OFF THE RADAR,
ANDONCE EVERY 15OR 30 MINUTES, WILL TURN ON THE RADAR
ANDPLOTTHE CONVOY. FACTSAREREPORTEDFORINFORMATION
ANDNECESSARY ACTION'^^.^
18Ibid.AnnexG(Communications),Englishtranslationp18codes1-136.
18Selectedmessages fromArchive ofIncomingMessages, Message4,Exhibi117;see
olsoMessageNumber5whichfollowsa more standardformainhandwritingonthe back
refersto "Spmance,"a destroyercU.S.warships. This message, and the instructionsfor observersquotadabove, demonsrnie that
the personnel on boardthe platforms did not limit themselvesto commercial activitics
and airdefense functionsasIran claims. Rather, they carriedonmilitas- surveillance of
navaland merchant shippingto facilitateIran's attackson suchshipping by providing
the precise courses and locationsof vessels to be attacked. The documents alsoconfirm
the conclusion drawn fromthe teletype roll seized onIran Ajr: that the platforms
functioned as military communicationsrelay stations.
4. The document"Instructions for RadarStations," contains anAnnex
entitled "Method of ReportingRadar Targets." This annexinstnicts observers to report
the position, course, speed,and other information about "surfacetargets"-- that is,
shipping."'
1.104 In sum,these documents show beyond questionthat lrm's offshore oil
platforms at Rostam, Sirri,and Sassan were an integralpart of Iran'smiIitary intelligence
and communications network and were employedto mount med attacksagainst U.S.
shipping. The documents confirmedthe U.S. conclusionthatthe platforms posed a
significant threat to the safety of neutral merchant and navalvessels, including U.S.
vessels involved in OperationEarnest Will.
189ArmedForce oftheIslamicRepublic of Iran,TheFirstNavalDismctFleet<<Intelligence>,
"InstnictionsforRadar Stations,Englishtranslationpp.15-16,Exhibit 114.
76 $ Iranian-laidMinefields
+ Iraqi-laidMinefields
lranianExclusionZone
---- U.S.ShippingConvoy
Kilometers
Saudi
ArabiaMine damageto USS Samuel B.Roberts(FFG;58),
14 Apri1988 jr
* 222 CHAPTERVI
THEUSS SAMUELB. ROBERTS STRIKES AN IFLANIAN MINE,AND IS
SEVERELYDAMAGED
1.105 On 14 April 1988,while retuming to Bahrain after escorting a convoy of
U.S.-flag merchant vessels, the U.S. warsUSSSamuel B.Roberis stnick a mine near
theShah Allurn Shoal--a common navigation reference for vessels uansiting the central
Gulf.(See Map 1.13 and Illustration 1.14 on the following pages.) Ten U.S. sailors were
injureby the mine explosion. The United States incurred almost $50 million in costs
associated with the rescue, transport and repair oUSSSamuelB.Roberts following
the Iranian atta~k'~'
1.106 Upon successfully navigating out of theminefielwithout furtheincident,
U.S. forces summoned U.S. and allied mine-clearing forces to Shah Allum area, to
hunt and detonate any remaining mines in the water. Firçt onscene was the U.S.
warship USSTrenlon, with a complement of mine-hunting and mine-clearing personnel.
On 15April, explosive ordnance disposai divers frUSS Trenton discoveredtwo mines
inthe vicinity of tUSSSamuel B.Roberts attack19'. The mines were moored to
The USSRoberts wasinitiallytowedto a Dubaidrydock,wherepreliminaryrepairswere
madeuponthe vesse1to enableitto betransportedto the United States.Q&Aon SamuelB.
RoberrsRepair,21 September1988,Exhibit120. Afterthese initialrepaUSSRoberts was
transportedfromDubaito Newport, RhodeIslandontheMVMigh Servmt2,and latertowed
tothe BathIron WorksinPortland,Maine. Overthenexttwelvernonths.theBath IronWorks
repairedUSSRoberts. Thecostsofthe repairs madeatthe BathIronWorksare fullydetailedin
thePostOverhaulAnalysisReportattachedas Exhibit 121. As reflectedinthisreport,the
UnitedStatespaid$45,979,647to repairdarnagecausedby theranianmine.
19'StaternentofViceAdmiralLess,para.5, Exhibit48seealsoDeclarationof RearAdmira1
Nutwell,11April 1997,para.4, Exhibit122;"Persian Gulf MiUpdate,"28 April 1988U.S.
militarycablefrom Commander, Joint TaskorceMiddle East,Exhibi123. 192 .
anchors and were not encrusted with marine growth , indicating thattheyhad been laid
recently. The numbers clearly visibleon the hvo mines were 02-5627-051-16 and 02-
5617-026-18'~~.These number signatures matched the numbering found on -
(1) mines onboard Iran Ajr;
(2) a mine fromthe Al Ahmadi minefield laid inthe deep water approach to
Kuwait harbor retrieved in June 1987; and
(3) ' mines found at the Khor Fakkan anchorage in waters off the Coastof
Fujayrah in October 1987.
The mines were thus identifiedas rania an'^^.
1.107 On 17April 1988, ~el~ium/Netherlands~~~ mine-clearing forces found
additional mines bearing Iran'ssignature nurnbering system in the vicinityofthe USS
Samuel B.Roberts mining'96. The Belgium/Netherlands forces tt-ansrnittedthis
information totheU.S. Navy cornmand, confirming the observations made by U.S. divers
152
SiatementofDonaldJones,para. 17,Exhibit37.
193
Ibid para. 16.The preciseminenumberswererecordedin a contemporanwiusU.S.military
cable. See"PersianGulfMineUpdate,"28 April1988cablefromCommander, JointTaskForce
MiddleEast,Exhibit 123.
194
An intelligencesummaryprovidedto U.S. political andmilitaryleadersin the UnitedStates
chainof command on16April1988reflectsthis identification.See "MoreMinesFoundin
Persian Gulf,"National IntelligenceDaily,16April 1988,Exhibit 124;see also Dedarationof
Rear AdmiralRobertNutwell,para.4. Seepara. 1.43,supra,for a reviewof theminenumbers
foundonother Iranianminesinthe Gulf.
lq5BelgiumandTheNetherlandsmaintainajoint minewarfarecommand,conductingtraining
and operationsinan integrated unit.
1% AffidavitofCommanderC.W. Tempelaars,DutchNavy, para1 .1-12,Exhibit47. on 15April 1988'~~.BelgiumDJetherlands forces subsequentIylocated and detonated
threeadditional moored mines'9s. (SeeIllustration 151on the following page.)On 20
April 1988,they also retrieved an anchor that held one such miinposition'99.A Dutch
mine expert discovered that the mine anchor (known to Dutch experts as a mine "chair")
'kas shaped like a pot or deep bowl, which was verdiffere~from the mine chair for a
Russian M-08 mine [which] .. was shaped more like a c~adle'~~."The Dutch mine
expertMer noted that the mine anchor/mine chair "was uniikan).ofthe mine chairs
recorded inour [NATO technical] man~al*~'."
1.108 Thus, the nurnbenng of the mines found in thUSSRoberts minefield
matched the numbering found on other Iranian mines, and the distinctive "deep bowl"
character of the mine anchor found in thUSSRoberts minefield matched the deep-bowl
anchors found on the mines on board IranAjr and those found inKuwaiti waters.
1.109 Iran insists that any mine whicstmck theUSSSamuelRoberts was laid by
Imq. Iraq, however, was never known to lay mines in thecentralGulf whm the USS
197
StatementofCaptainLany Andrews,30May 1997,paras.9-10,Exhibit125.
198AffidavitofCommanderC.W. Tempelaars, paras.13-15,Exhibit47. On 19ApriI 1987and
22 April 1987,duringa searchof waters nearthUSS Roberts mining,French andU.S. mine-
countermeasureforces located additioIranianminesinanadjacentminefieldintheviciniîyof
theRostamoilplatfonn. See "PersianGulfMineUpdate,"28 April1988cablefrom
Commander, JointTaskForce Middle East,Exhibit 123.
199AffidavitofCommanderC.W. Tempelaars,para. 14,Exhibit47.
m
AffidavitofChiefPettyOfficerA.J.D.M.Verhulst,para.9 (emphasisadded),Exhibit65.
Cornparisonphotographsof an Iranianmineanchoranda RussianM-O8mineanchorare
annexedat Exhibit64.
201Amdavit ofChief PettyOfficerA.J.D.M.Verhulst,para.9, Exhibit65. Minefield
lranianSADAF-02 minebefore
detonationby US divers Samuel B. Roberts struck a minezo2. U.S. experts had documented Iraqi mine-laying only
in thenorthem reaches of the Gulf --not in the central or southem Gulf,or outside the
Straitof ~ornuz~~~. Likewise, the understanding of expert Belgium/Netherlands mine
forceswas that Iraq confined its mine-laying to the northerGUI?".
1.110 Iraqi forces did not lay minesin the centraland southem Gulf because they
couldnot. First, Iraqi naval vessels capable of layingmines did not operate inthe central
and southem Gulf. Second, Iraq did not havethe capability effectively to deploy mine-
laying aircraft 300 miles (555 kilometers) or more south of iis landtemtory in the central
and southem GUI~SO~.
202Ira notes that Iraq was rcsponsiblefor the mining of threemerchantvessels in 1982-1984,
(more than three years before thevarious mining incidents describedherein)thus implyingthat
Iraq might have been responsibleforthe USSRoberts mining. Basedon these three incidents,
Iran boldlyStatesthat Iraq couldlaymines "almost anywhere inthe Gulf." Annexto Iran's
Observations and Submissions,p. 19,para. 45. Iran fails to explainthat the ships stnick by Iraqi
mines (Mohan, Evangelia-S, andCiw of Rio) were located inthe mostnorthern reachesof the
Gulf, inthe vicinity of the KhorMusachannel and within approxirnately50 miles of Ira--
approximately300 miles fromthe siteof the USSRoberts mining.
20;
Statementof Captain LamyAndrews,para. 6, Exhibit 125.
?O4Affidavit of Commander C.W.Tempelaars,para. 6, Exhibit47.
205Statementof Rear AdmiralHaroldBemsen, para. 5, Exhibit43; Statementof ViceAdmiral
Anthony Less, para. 7,Exhibit48; Aff~davitof Commander Tempelaars,para.6., Exhibit 47.
Iraq did possess helicopters whichcould lay minesby air. But flyingsuchhelicoptersinto the
central or southem Gulf wouldhave been dificult if not impossible,anivasnever reported
anempted. More than that, "the process of layingmines from theair is ext~emelydifficult and
timeconsuming, and would haveexposedthe Iraqi forcesto almostcertain detectionfrom
Iranian forces." Statementof CaptainLanyAndrews, para.6, Exhibit 125. Indeed, Captain
Andrews, the commanderof U.S.mine counter-measures forcesin theGulf notesthat Iraqi
aircrafi engaged in such an extendedmine-layingjoumey "certainlywould have been detected
flyingsouth by Our'AWACS'airborneradar aircrafi in the Gulf." Ibd. No such Iraqi activity
was ever detected, and Iran hasnot pointed toany evidence suggestingothenvise. 1.11 1Neither wasIraq knom to use the type of mines found in theUSSSamuel
B. Robertsminefield, elsewhere in the Gulf, and boardIranAjr. As partof the
process by which the Iran-Iraq conflict was ended, Iraq disclosedtheandplocation of
themines ithad laid in the Gulf in 29 different mine fi(SeeMap 1.13.) The 1988
U.S. military cable annexewith the Statement ofDonald Jones at Exhibi37
memoridized the informationreceived by the United States and other States from Iraq.
The cable indicates that Iraqi forceslaid nurnerous Myand Manta mines, but
exclusivelyin the northem Gulf. There is no mistakintheMyam and Manta mines used
by Iraq, withthe mines found near thUSSSamuel B.Roberts incident and onIranAjr --
they are radically different206.The types and locations of Iraq's minefields further
confirm that the mining oU.S. and othershipping desmibed above was accomplished by
Iran,andnot by Iraq.
1.112 In contrast to its denialthisproceeding, Iran's rnilitary Iderwere
more forthrîght at the time the USSSamuel B.Roberts rniningin claiming
responsibility for mine attacks on shipping. In radio-broadcast remartheoday of the
USSSamuel B. Robertsmining, Commodore Mohamrnad Hoseyn Malekzadegan,
commander of the Iranian Navy, affïmed that Iranian forces were engaged in mine and
2W Myamminesareconsiderablysmallerthanthe mines usedby IranintheGulf.TheMyam
weighsapproxirnately50kilograms;the minesfoundinthe Gulfweighedmorethan170
kilogramsand were morethan250milimeterswiderindiameter thantheMyam. TheItalian-
manufacturedMantamineisalsoverydifferentfromthe Iranianmine foundin theGulf : hile
the Iranianmineisa largespherewitha steel casing, theMantais shapedlikea ùuncated cone,
and featuresa glass-reinforcedplacasing.Seethecomparisonphotographsof Myam,Manta
and Iranianminesat Exhibit127;seealso SîatementofDonald Jones, para., xhibit37;
NavalTechnical IntelligenceCenter, "ForeignerialExploitationMemorandumReporf" pp.
4-8, Exhibit38. Ifcircumstancespermit, theUnitedStatesintendsto makeavailableto the
Court sampleMyamand Manîa minesfor inspectionduringoralproceedings. missile attacks onU.S.vessels inan effort to drivU.S .orcesout of thePersian Gulf
region. He explained that the harassrnenof allied navietoward this end"ha been a
wholehearted task by the [IranianNavy over the past year, compnsing indirect blows in
particular to tU.S. fleet, afTectingboth its warshipandits merchant vessels,with
,>
mines or ....
207
ForeignBroadcast Information Service",RadioPhone-InProgramWithDefense Officiais,"
14 Apnl 1988,p. 53 (programentitled"In LineWiththe Oficials, in StepWith thePeople),
Exhibit13. CHAPTER VI1
IN WSPONSE TO IRAN'SMININGOFTHE USSSAMUELB. ROBERTS, THE
U.S.TOOK DEFENSIVEMEASURESAGAINSTIRAN'SSASSAN Ah?> SIRRI
OIL PLATFORMS
Section1. The Deeision to Take Defensive Measures
1.113 After USSSamuel B. Roberts struck the Iranian-laidmine on 14April
1988,the United States determinedthat military action in self-defensewas again
necessary to seekto halt furtherIranian attacks on U.S. ve~se. he attack on USS
SamuelB.Roberts, and thediscovery of the minefields laidby Irandemonstrated that
Lrancontinued to threatenU.S.-flag merchant ships and their U.S. warship escorts.
1.114 U.S. officiaislauncheda process to determinea necessary and
proportionate defensive responseto Iran's continuedacks. Once again, the need was to
diminish Iran's capabilityto identify, locate, and attack U.S.vessels. General George B.
Cnst, then the Commander-in-Chief,U.S. Central Command,explained his reasoning in
planning the U.S. defensiveesponse as follows:
"In recornmendingtargetsto the Secretary of Defense and the Chairman of the
JointChiefs of Staff,mypriorities were essentially unchanged from Operation
Nimble Archer,the attack ontheRostam platforms; Mer degrade Iran'sability
to attack our Navy shipsandthe oil tankers theywere escorting, maintain our
208Statementof GeneralCrist,par16,Exhibit44;StatementofViceAdmiralAnthonyLess,
para.9,Exhibit48;Letterdated19April1988 fromPresidentReagantothe Speakerofthe U.S.
HouseofRepresentativesandthe President Pro TemporoftheU.S .enate:Book 1,Public
Papersof thePresidentsoftheUnitedStates,Ronald Reagan(19888pp.477-478(1990),
Exhibit129 (hereinafter"President Reagan'lsetterto Congress19April1988");Letter
dated 18April1988 fromthe Acting Permanent epresentatioftheUnitedStatesofAmerica
tothe Presidentof theSecurityCouncUN, DocumentSI1 9791:Exhibit130(hereinafte"UN
Doc 19791"). status as non-belligerents, avoid escalating military hostilities withIran,and keep
out ofwar with ~ran'~."
1.115 Once again, to avoid compromisingthe perception of the United States as a
non-belligerent,and to avoid any escalationof military conflict nith Iran,the United
Statesexcluded Iranian land-basedtargets such as an ordnance storage sitenorth of
Bandar Abbas where the United Statesbelieved sea mines were stored,and the port
facility at BandarAbbas where vessels were loaded with mines beforethey sailed on their
mine-layingmissions210.Ultimately, General Cnst and others in the chain of command
concIudedthat Iran'soffshore oil platforms at Sassan and Sirri would be the most
appropnatetargets for a defensive response, inview of the rnilitaq function served by
these platforms, and the desire of the United States to minimize collateral and incidental
damageresulting from a defensive response.
1.116 The considerations that guided this decision were those that led to the
selectionof the Rostam platform complex asa target, as detailed in Chapter V.
1.117 The multiple Iranian naval instructionsregarding deploymentof observers
onthe oilplatforms in the Persian Gulf found on the Rostam platforms were irrefutable *.
evidencethat the offshore oil platforms at Sassanand Sim collected andreported
intelligenceconceming passing vessels --intelligence clearly designedto facilitate
attackson shipping2'l.
1°)Statement ofGeneralCrist,paras.16,Exhibit 44.
210Statement ofViceAdmiralLess,paras.10,16,Exhibit 48.
211See pp. 72-76, paras. 1.103-1.104 ,upra. 1.118 Thelocation ofIranianattackson shippingin the southernGulfprovided
funher evidenceof these platforms' deadlyrole. Asis apparenthm Map 1.12the Sirri
platformis approximately12miles fromtheroutesailedbyU.S. convoys. Iranattacked
morethan40neutralmerchant shipswithin50nauticalmiles of thisplatform. Iran
attackedapproximately40 neutralmerchantshipswithin50nautical milesof Sassan,the
southem-mostof Iran's oilplatformslmilitaryoutposts. Sassanwas lessthan 30miles
hm the shippingroute transitedby U.S.convoys. LikeRostam,both Sirriand Sassan
urereequipped withsurface-searchradarandhelicopterlaunchfacilities, andcouldharbor
smallgunboats. The concentration of attacksneartheseplatforms --and the absenceof
otherIranianfacilitiescapable of facilitatingtheseattackson shippi-- led U.S.forces
to concludethat theplatforms played an important rolein Iraniaattacksonshipping. As
detailedaboveat pp. 64-70, independentBritishandFrenchmilitaryexpertshavesince
reachedthe sarneco~clusion.
1.119 Contemporaneousreporting by commercialentities vitallywncemed about
the safetyof shippingin the Gulf--Lloyd'sMaritimeInfornation Service,Intertanko,
the GeneralCouncilof British Shipping,andJane'sdefencepublications - wnfirmed the
militaryfunctionofthe platforms2'2.Thestatementsof CaptainPuntervoldfromthe
ContingencyPlanning Department of theNonvegianShipowners'Associationand
CaptainColinEglingtonfrom the KuwaitOil TankerCompany showthat the merchant
shippingcomrnunityunderstood Iran'suse of the Sassanand Sini platformsbothto
Seepp.58-63 ,ara. 1.88supro.observe and report onpotentialtargets and to stagandtsrnall gunboat
attacks213.
1.120 Further evidenceof Sassari'smilitary role occurredat approximately 0200
hours (localtime) on 6 May 1988,when two U.S. helicopters on routine patrol fiom iSS
Simpson were fired uponby heavy weapons fiom the Sassanplbythree small
~
boa& in the vicinity of theplatform. The helicopters didnot return fue and flew away
~
without being hit214.
Section 2. U.S. Forces Attack the Sassan and Sirn platforms
1.121 The miningof USSSamuB.Roberts demonstratedthat Iranianforces
continued to threaten the safety and security oandnaval vesseandfuily
I
intended to continue their attacks. In view of the mass ofevidence describeciabove, the
I
United States determined that attacking these platforms in self-defensewould reduce or
terminate such Iranian attacksand Iimit Iran's ability furtherto threaten the security of
U.S. vesiels, thus satisfyingthe military and legal requirandntsof necessity
proportionality.
1.122 The U.S. attackon Sassan began at approximately0800 hours (local time)
on 18April 1988~". Personnel on Sassan were warned in Farsiand English that the
SeeExhibit11and31.
21See"SassanOilFieldIncid6March1988cablefromCommander,JointTaskForce
MiddleEast,Exhi131.
21Thefollowingdescripofthe U.S.attackonthe SassanandSim platformsisdrawn
principallyfiomPerkins,"OperationPrayingMantis:The SuUS.A'avuIInstitute platform would bc attacked, andweregiventen minutes to dep&. Thty minutes after
die U.S.assault began, the platfomwas boarded. The boarding partydiscovered that
helicopter rocket fire in the initial assault haddestroyed and set ablazethe commandand
communications center of the platform,making a search of the area impossible216.Other
structures on the platform were then substantially destroyed with explosives. Iran claims
that "[sleveral Iranian personnel sufferedinjuries217.The United Statesis not aware of
amyIranian civilian casualties.
1.123 The U.S. attack on theplatform in the Sim complex began at
approximately 0815hours (localtime)on 18Apnl 1988. Personnel onthe Sim platfom
were warned in Farsi and Englishthat the platformouid be destroyed, and were given
time to depart. Much of the top portionof the Sirri platfom was deslroyedby naval
I
@ire. A boarding party could not board the platform because secondaq explosions
l
and fires rendered such action unsafe2''. Iran claims that "[tlhere werea nurnber of
casualtiesand injured2I9." The United States is not awareof anyIranian civilian
casualties.
-.e
Proceeding Ms,y 1989,pp.66-70,Exhibit132;seealsoStaternentofViceAdmira1Anthony
Less,paras.17-19,Exhibit48;PresidentReagan'sletterto Congressdat19 April1988,
Exhibit113;UN Doc 19791,Exhibit130.
2'6StatementofViceAdmira1Less, para.18,Exhibit48.
217
IranianMernorialp.49,para.1.122.
218Perkins, "OperatiPrayingMantis:nie SurfaceViews"; p. 69,Exhibit132;Staternentof
Vice AdmiralAnthony Less,para.18,Exhibit48;President Reagan's lentr Congressdated19
April1988, Exhibit129;UN Document 19791,Exhibit130.
2'9Iran'sMernorial,p49,para.1.123. 1.124 As was the case with the attackagainst Rostam, the defensive measures
taken againstSassanand Sirri were motivatedby rnilitary considerations --not by an
intentto infiicteconomic damage, as Iran has claimed. Vice Admira1Less,then
Commander,Joint Task Force Middle East, notesthat --
"wedid not generate military optionswiththe goal of darnagingIran'seconomic
andcommercialinterests. Had wesoughtto inflict economic damage,wewould
haveultimately attacked, or ata minimum,considered attackinga varietyof more
significanteconomic targets suchas Iran'smajor oil facility at Kharg Island,or
thekey oil loading facility at Simsland~~~."
Nor did theUnited States decide to attack Iran'ssignificant oil installation on Lavan
Island, whichwould have inflicted considerablygreater economic damageuponIran than
the U.S.attackon the oil platforms. Ultimately,the most telIingevidence ofthe
intentionsof theUnited States in engaging Iran'splatforms wasthe manner inwhichthe
platformswereattacked by U.S. forces. Hadthe United States intended toinfiict
economicdamageupon Iran, it would haveattacked the platformsin a mannerthat
destroyedthemcomplerely,thus renderingtherebuilding process as dificult, expensive,
and lengthyaspossible. U.S. forcespossessedthe explosive power andtechnical
expertiseto demolishcomprehensively not onlythe top structures,but thevery
foundationsof Iran's oil platforms. Inthe event,however, the United States electednot
to usesuchoverwhelmingforce in attackingtheplatforms. U.S. militq personnel
employedsufficientexplosivesto render theoil platform structuresuninhabitableand
unfit foruse as radar outposts or attacklaunchfacilities. To be sure, theattackswere also
" Statementof ViceAdmiralLess, para. 9, Exhibit48calibrated intheir magnitude to prevent Iran from quicklyrestorinç the platformsto use
as rnilitary bases. Butthey did not involve the more significantmagnitude of forcethat
would have been employedhad the U.S. intended to infiict economic darnageupon Iran's
oil industry.
1.125 Notably, afterthe U.S. defensive responsesagainst the Sini and Sassan
platforms, Iranian forces attacked only two commercialvessels within 50nautical miles
of the Sim or Sassanplatforms during the remainder of the Iran-Iraq warx'.
1.126 Although notthe subject of Iran'sclaim for reparations, Iran has discussed
in itswritten submissionsadditional naval engagementsbetween Iran and the United
States on 18Apnl 1988~~~D . uring these engagements,theIranian guided missilepatrol
boat Joshan was sunkafterit approachcd U.S. Navy vesselsand refused toalter course
upon request by U.S. forces. U.S. forces then observedthe Irania frigate Sahand sailing
at high speed inthe direction of U.A.E. oilfields. Concemed îhat Sahandwas on a
retaliatory mission, U.S. comrnanders tasked aircraft to 'mvestigate. AstheU.S. aircraft
approached the area,they were fired upon by forces onSahand The aircraft retumed
fire, sinking the Iranian fiigate. U.S. aircraft were alsotasked to locate the Iranian frigate
221TheDanish-flag Kmam Maerskwasattacked 2 July1988,and theNonvegian-flagBerge
Lordwasattacked4August1988. Both wereassaultedbyIraniansmall gunboats inthe vicinity
of Abu MusaIsland. SeeLloyd's Maritime Information ServiceV, esselsDamagedintheGulf,
p. 122,Exhibit9;IranianshipattackrecordsoftheNonvegianShipOwnersAssociation,
annexedat Exhibit11.
'22Iran'sMernorial,pp.50-52, paras. 1.124-1.132;Annexto Iran'sObservationsand
Subrnissions,pp. 24-25,paras.57-60. Sabalun. Theydid so laterinthe dayon 18 April 1988,and were fired uponbySabalan.
Again,the U.S. aircraft rcntrned fire, disabs ab alun^^^.
1.127 In accordance with Articl5 1of theUN Charter, the United States
prornptly reported this actinnself-defensetotheUN Security ~ouncil~~~.
223See Statementof ViceAdmiralAnthonyLess,para. 19,Exhibi48; Perkins,"Operation
PrayingMantis: TheSurfaceView,"p. 5,Exhibit 132;Langstonand Bnngle,"OperationPraying
Mantis:TheAirView," US. NovalInsrituteProceedings,May1989,pp. 56-59,Exhibit133;
PresidentReagan'sletterto Congressdate19April 1988,Exhibit129.
"'UN Doc Sl19791.Exhibit130. PART II
U.S.MILITARYACTIONS AGAINST THEPLATFORMS
DID NOTMOLATE ARTICLEX(l) OF THE 1955TREATY
2.01 At theprevious phase of this case, the Courtlefi to the merits the issue of
whether Iran couldshowthat the U.S. military actionsagainst the offshore platfoms
violated ArticleX(l) of the 1955Treaty. This PartwillshothaIran cannot make such
a showing. ArticleX(l) does not by itself create specificlegal obligations relevant to
Im's claims. Theprovision is aspirationai. Absentspecificcontent denved from other
provisions of the Treaty(and there are noh implementingnoms pertinent 10Iran's
claims inother articlesof the Treaty), ArticleX(l) cregulatethis dispule.
2.02 In addition,thisPart willshow that, eifArticle X(1) could bcconstruedas
urged by IranIrancan prove no violationothe Article. At îhc relevanttimes, the
Rosiam, Sim and Sassanplatfoms were not producingoil that entered into direct
commerce betweenIran and the United States. CHAPTER 1
THE U.S.MILITARY ACTIONSDIDNOTVIOLATEARTICLE X(l)
BECAUSETHATPROVISION MERELYESTABLISHESA GENERALGOAL,
NOTENFORCEABLEOBLIGATIONS
Section 1. The Court's Judgmenton JurisdictionDid NotResolveAi1Interpretative
Issues Presentedby Article X(l)
2.03 In its Judgment onjurisdiction, the Court rejected U.S contentions
concerning the inapplicability of Article X(l) to U.S. military actions against the
platforms. However, the Courtmade clear that it did not decial1interpretive issues
I presented by Article X(1). The language of the Judgrnentof 12December 1996reflects
the caretaken by the Court to confine its ruling to the question of whether it had
jurisdiction to further examiIran'clairns under Article X(1).
2.04 The Court thus stressedthat it was only considering "whatconsequencesin
i terms of thejurisdiction of the Coucan be drawn fiom ArticleX, paragraph 1225".The
Court alsoobsewed that whilethe lawfulness of the destruction of the platforms
1 22673
"cm beevaluared in relation to that paragrap, there rernained"adispute asto the
225OiiPlatforms(IslamicRepublicofIranv.UnitedStatesofArnerical(Preliminary
Objection)para.37 (emphasisadded).
226ibid.para.51 (emphasis added).interpretation and application" of Article X(1). Hence, the Court stiIl had before it the task
of actually "enteriain[ing] this dispute7.,,
2.05 This careful language shows that the Court, in findingthat ithad
jurisdiction "to entertain" a dispute about the meaningof ArticleXII), did not resolve the
dificult interpretive issues presented by that provision. As theCourt recognized, it can
oniy definitively adjudicate the nghts and obligations arising out of ArticlX(l) at the
rneritsphase.
Section2. Article X(l) Establishes aGeneralGoal,Not SpecificLegalObligations
ThatCanBe Enforced by the Court
2.06 A key interpretive issue not yet addressed by the Court is whether Article
X(1), regardless of the types of "commerce" to which it ma? pertain, in factgives rise to
legai obligations that are sufficiently defined and precistoregulate this dispute. As
this section will dernonstrate, Article X(1) does not create such obligations. Rather, it
establishes a general goal whose operational content can oniy be found in other specific
provisions of the Treaty.
2.07 Article X(l) of the 1955 ~reaty~~'provides, in its entirety:
227
Ibid.,para.53. See also para.55(2)(concluding,inthedispositif.thatthe Courthad
jurisdiction"to entertaintheclaimsmadeby theIslamicRepublicofIranunderArticleX,
paragraph1 " ofthe 1955Treaty).
22s AstheCourtknows,the 1955Treaty wasoneofa numberof substantivelysimilartreaties
concludedbythe UnitedStatesafter WorldWar II.nie mode1U.S. textfor suchtreatiesappears
ina comprehensivestudypreparedbyMr.Charles Sullivanfor the Departmentof State. Charles
Sullivan,Departmentof State,TreaiyofFriendship,CommerceandKavigaIion.StandardDraji
(A-d) (hereinafter"SullivanStudy").Except forthe use ofthephrase
"HighContracting Party" inthe 1955Treaiy,insteadof the term "Paq" in the StandardDraft, "Between the temtones of the two High ContractingParties there shall be
frcedomof commerceand navigation."
2.08 The 1955Treatyis a long and technically sophisticatedagreement
containing detaileddes regulating many complex commercialand investment issues.
By contrast, Article X(1)is strikingly general. It is far too impreciseto define the legal
nghts and obligations of the Parties in specificettings. Rather,the United States
subrnitsthat Article X(l) establishes a generalgoal. Thespecificlegal nghts and
obligations of the Parties inurtherance of that goal areelaboratedand implemented
through other, far moreprecise, provisions inthe Treaty. TheCoua's conclusion
regarding the fùnctionof Article 1of the 1955Treaty is equally aptwith respectto
ArticleX(1): it "must beregarded as fixing an objective,inthe light of which the other
Treaty provisionsare to be interprcted and applied22.,,
2.09 The limitednature of Article X(l) is clearlydemonstratedbythe fact that it
cannot resolve the manypracticalquestions about nghts andduties that
characteristicallyarise ina complex commercial relationship. Thus, forexample, it is
not possible onthe basisof Article X(l) to determinewhetherthe 1955Treaty would
authorize one Partyto imposeaccess charges on vesselsof theother entering itsports.
A generalobligationto maintain "freedomof commerceandnavigation" might suggest
that such chargesare prohibited. However,the specificnghts and obligations
ArticleXof the 1955Treatyisidentical toArticleXIX of theStandard Draft.A copy of the
SuIIivonStudy hasbeensubmittedtotheCourt inthis case.
229 Oil Plarjorms (IslamicRepublic ofIran v.UnitedStates ofAmerica) (Preliminary
Objecrion). para.28.prescribedin otherprovisions --inthis case,ArticleX(3) --make clearthat such
chargescan be imposedin appropriatecircumstances.
2.10 ArticleX(l)'s inabilitytoprovidemeaningfulguidanceregardingspecific
legairights andobligations appearsinmanyother situationsoutsidethecontextof
maritimecommerce. For example,it is not apparentwhether"fkeedomof commerce
andnavigation" allowsthe Partiestothe 1955Treatyto impose quantitativerestrictions
on importsor exports of particularproducts. The broadlanguagemightsuggestthat
quantitativerestrictionsmay notbeallowed. However,the more specifictext of Article
VIII(3) showsthat they are, if specifiedconditionsare satisfied.
2.11 Similarly,the broadaffirmationof "freedomof commerceand navigation"
inArticle X(l) wouldnot automaticallyentitle an IranianIawyerto practicehis or her
professionin the United States,ora U.S.lawyerto do so inlm. Thematteris not
govemedby Article X(1). Instead,the Parties'specificri&& and obligationsare
establishedby ArticleII(2),requiring thatprofessionalsof one Partyrnustsatisfythe
otherParty'sdomesticrequirementsforadmissionto professions.
2.12 Moreover,notwithstandingArticleX(l)'s cal1for "kdom of commerce
and navigation,"the 1955Treatywouldnot obligate eitherPartyto ail ou^ nationals of
theotherto purchasereal propertyin itstemtory. ArticleV(1)of the 1955Treaty
providesrights only forthe leasingofrealproperty,althoughother similartreaties
authorizeownership. Forexample,the 1954Treatyof Fnendship, Commerceand
Navigation Betweenthe United Statesand Greece alsodeclaresthat "[bletmeenthe tenitories of the two [Parties]there shall be freedof commerce and r~abi~ation~~~".
Unlikethe U.S. -IranTreaty, however, it confersthe right to national treatment in
purchasing real property. Because Article X(l) doesnot establish precise and
enforceable legalnghts or obligations,there can bemany such significant differencesin
the overall system ofobligations in FCNtreaties containingidenticaiprovisions on
"fieedom of commerceand navigation."
2.13 Nothing in the practice of the Partiessuggesthat Article X(l) createda
broad legai requirementto protect commerce in areasnot specifically addressed
elsewhere in the 1955Treaty. Many issues potentiailyaffecting fieedom of commerce
between the United Statesand Iran are simply left outside the Treaty. For instance,the
1955Treaty doesnot include a provision entitlingnationals of one Partyto transit
throughthe temtory of the other. While suchtransit might well foster commerce, in the
absence of a specificallyelaboratedright, noParty hasasserted the nght under the 1955
Treaty to suchtransitz3'. Similarly, commercial aviation landing andoverfiight rights fall
within some conceptionsof "commerce." It is clear,however, that neitherthe United
States nor Iran claimsthat Article X(1) entitles aircraftof either counm to land inor
overfly the temtory of the other. Such nghts are governed,with specificity, in other
international agreements.
230
5UST1829,TIAS3057,224UNTS279, ArticleXXI(1).
231
OtherU.S.post-World War II commercialtreatiesdoprovideforaright oftransit. Although
suchtreatiesîypicallycontaina generalprovisioncomparableto ArticleX(1)conceming
"hedom ofcommerceand navigation," see, e.g.Art.XiX(l), Treaty ofFriendship,Commerce
and NavigationBetweentheUnitedStatesandJapan,4UST2063,TlAS 2863,206 UNTS 183
(1953), therightoftransitisestablishedthrougha specificprovision,ArticXX. 2.14 Cornmentatorswho have addressedprovisionsin U.S. commercialtreaties
comparable to Article X(1) of the 1955Treaty confm the provisions'lirnited role.
Sullivandescnbes the article inthe Standard Draft correspondingto Article X(1) of the
1955Treaty, as "inthe natureof a declarationof principle rab than a definitive legal
Similarly, in his reviewof navigationprovisions in U.S.commercial treaties,
Piper characterizesthe stipulationregarding "the freedom of commerceand navigation
benveen the temtones of the parties," cornrnonlyfound in both pre-World WarII and
pst-World War IIcommercialtreaties, as a "broad declaration"that "appearstobe
hortatory, indicativeof the parties'good ihentions, and not a cornmitmentto undertake
233,,
specificaction .
2.15 Thus, the Partiesto the 1955 Treaty did not use the term "fkedom of
commerce" to create a broad universe of additional rights or obligationsbeyond those
specifically and carcfullynegotiatedelscwhere. Article X(l) is nota residual, catch-al1
provision crcating broad rules governing matters not specificallyaddressed elsewhere.
Any such broad constructionofArticle X(l) would swallowupthe restof the Treatyand
render ineffectivethe many carefulcompromisesit contains. JustasArticleX(l) of the
1955Treaty does not regulateharborcharges or quantitative restrictions on trade, it does
not, by itself, regulateactions by Party because they mighthavethe incidental effect of
interfenng with production of goods for export.
232 SrrllivanStudy,supra,atp.286.
233 DonPiper, "NavigationProvision s UnitedStatesCommercialTreaties," 11Am J. Cornp.
Law.pp. 191-92(1962),Exhibit 134. CHAPTER II
IRANHAS FAiLED TO SHOW THATU.S. ACTIONS AGAiNST THE
PLATFORMS HAD ANY CONSEQUENCESFORTRADE BETWEENTHE
PARTIES
2.16 Even if Article X(1)could be constmed to create an independentlegal
obligationto refrain from actions potentially afTectingthe production ofynes ofi
goods, Iran'sclaim must fail. In the contextofthis dispute, any protections a£fordedby
Article X(1)would apply only if U.S. militaryactions againstthe pIatforms affected"the
export tradein Iranian oi~~w"here suchtrade was "betweenthe tenitories" ofthe
parties2j5. As this Chapter demonstrates, Iran has not --oand cannoishow --that
the U.S .nilitaryactions against the offshoreplatfoms in fact affectedcommince
Lranianoil between Iran and the United Statesas required by the Treaty.
Section 1. Article X(l) Can Only Apply To Iranian Trade With The United States
2.17 The express temtorial limitationof Article X(1)is clear. Thetext applies
oniy to vade "@J]etweenthe temtones of theHigh ContractingParties." Atthe
jurisdiction phase, the Courtnoted the caretaken by the Parties in dtheterritorial
231
OilPlotforms(IslamicRepublicofIranv.UnitedStatesofAmericaj(Pre1iminaryObjection),
para.51.Seealso para.50(holdingopenthepossibilitythatfreedomofcommerceunder
ArticlX(l) couldbe impededonlywithrespectto "goods destinedtobeexporteorcapable of
affectingtheirtransportandstorwithaview toexport").
235
ArticlX(1) ofthe1955 Treaw. scope of various provisionsof the 1955Treaty. Thus,in rejectingthe U.S. contention
that Article IV(1) applied onlyto the treatment by one Partyof nationais ofthe other
within its temtory, the Courtnoted that Article IV(l), "unlikethe other pagraphsof the
same Article, does not includeany temtonal limitation" andthus hasa %der scope"
than those other paragraphs236.
2.18 Similat attentiontothe temtorial scopeof theParties'undertakings in
Article X(l) is requiredhere.The different paragraphs ofArticleX have different
temtorial fields of application.hus, Article X(4) establishescertainprotectionsfor
cargoes carried "to or fiom the temtones of such otherHigh Contracting Party."Unlike
Article X(1), this provisionis not frarned interms of cargoesc&ed betweenthe two
Parties. Article X(3) alsoappliesbroadly to "[v]esselsof eitherHigh Contracting Party"
that "cornewith their cargoesto al1ports, places and waters"ofthe other Party. It is not
limited to vessels arrivingfromthe tenitory of the othePany.
2.19 By contrat, if Article X(1) is regarded ashavingindependentlegal effect,
1 it can apply only to commerceand navigation "[bletweenthetemtories" of the Parties.
The phrase "betweenthetemtones" of the Parties (istead of "between the Parties") is a -.
significant limitation. Itmakes clear that the article doesnot encompass, forexample,
! goods that transit throughor are modified in third countries. Instead, ArticleX(1)
!
addressesonly trade movingdirectly fiom the temtory of onecountry to the tmitory of
the other. Any obligationarising under this provision can applyonly to actions
l
potentially affecting goodsdirectlyexported from Iranto theUnited States.
236
Uil Plaiforms (IslamicRepublic of Irav.UnifedS~aresofAmerica)(Preliminary Objection),
para.35. Section 2. Iran HasNot Established That U.S. Militar~ Actions Against the
Platforms Had Any EffectUponIranian Trade With The United States
2.20 Iran has thus far failed to establishthat U.S. military actionsagainst the
platfoms had any tangible, legally relevant effect on Iranian trade with the United States,
specificaiiy on Iran's oil exports to the United States. Given the produstatu of the
platforms at the time of the U.S. military actions against them and theprevailingtrade
relations behveen the United States and Iran, Iran has not shthat anyoil produced by
these platforms was in fact being shipped to the United States at the relevant times. Thus,
ithas not shown --and, we submit, cannot show --that theU.S.actions against the
platfoms brought about any diminution in oil exports to the United States.
2.21 The oil produced by these platfoms at thtirneof theU.S. military
actions wnstituted asmall ponion of Iran'soverall oil production. In Octobe1987, as
lra nasacknowledged in its Mernorial, the Rostam and Rakhsh platforms simply were
not producing any oi~~'~.None of Iran'sdaily oil production o2.39million barreIs at
that time came from these faci~ities~~'.In Apr1988, the Sim and Sassan platforms were
237Iran'sMernorial,para 1.101. Iranexplainsthattheseplatfoms werenotproducingas a
resultof Iraitacksinitiatedin 1986See Table1I.A.1:Iran'soffshoreoilproductionhistoryon
a field-by-fieldbasis,Oil ProductionCapacityinthe Gulf,PartIII,IslarnicRepublicof Iran,"
Centrefor GlobalEnergyStudies,p. 1-103 (1995)(hereinafter"CGESStudy"),Eihibit 135.
238SeeTableon "Worldwidecmdeoilandgas production,"Oil & Gm Jozimal,8Febmary
1988,p. 62,Exhibit 136.togetherproducingonly about 60,000barrelsper day23qo ,r2.8% of Iran'sdaily
productionof 2.15 million barrelsper day atthattime2".
2.22 At thejurisdiction phase, the Courtnotedmerely that oil exports fiom Iran
to the United Stateswere ongoing until after 19October 1987,the date of the firstU.S.
military actionagainstthe Iranianoffshoreplatfo~s24'. As the Court correctlynoted,the
United Statesdoesnot contest this fact. However,to prevail on its claimthat Article
X(1)protectstheproduction of goods forcommerce,Iranmus?do more than establish
that it exportedoil to the United States in October 1987. Iran must showthat the
particularactionsunderlying its claims --the U.S. military actions against the platform--
affectedoil exportsfiom Iran to the United States. Iranmust prove that it exportedto the
United Statesoil produced by these particularplatformsand that theseexportswould
have continued had the U.S.military actionsnottakenplace.
2.23 ThisIrancannot do. With respectto the Rostam and Rakhshplatfoms,
Iran acknowledgesthat the platfonns were not producingoil whenthey were damagedby
the UnitedStateson 19 October 1987~~'.Irancannotprevail on a claim that the United
States violatedArticle X(l) by damaging an installationalreadyseverely darnaged by
Iraq and that wasnot at the time engagedin theproductionof oil.
259 SeeTable II.A.1CGESStudy,Exhibit135.
240 SeeTableon"Worldwidecrudeoiland gas production,Oil & GasJountdnl8 August 1988,
p. 31,Exhibit137.
24' OilPlaffom (IslarnicRepublicOfIran v.UnitedStatesofAmerica)(Prelimimvy Objection ,
pan. 44.
"* Iran'sMernorialpara 1.101. 2.24 Iran cannot reasonably contend that U.S. military actions against these
non-producing platforms violated Article X(1) because the facilimight at some later
date have resumed production of oil thmight have been exported tothe United States.
(Iranasserts that repair work on these platforms was "closeto completion" on 19 October
1987,but offers no supporting evidence for this, nor does Iran explain why Iraq would
not have immediately attacked and disabled these platformsonce againhad they
resurned production.)
2.25 Speculativeassertions cannot provide the basis for a findingatState
has violated its international legal responsibilities. Here, no exports of oil from the
Rostam complex from Iran to the United Stateswould have been possible even if
production eventually hadresumcd. On 29 October 1987,tcn days afterthemilitary
actions against these platforms, President Reagan signedExecutive Orde126 13, which
prohibited the import into the United States of most goodsincluding oi--and services
of lrania onîgin243.
2.26 Thus, the October 1987 U.S. militas. actionsinvolved facilities not then
producing any oil, let alone oil for export to the United States. Ten days later, al1direct
oil exports between Iran and the United Stateswere ende--including exports of any
crude oil that might somedayhave been produced by the Rostam and Rakhsh platforms.
213 52 F.R.41940,Exhibit138. In1987,Iran exported some$1.7billion in gocdsto the United
States,the bulkofwhichconsisted ofcmdeoil andotherpetroleumproducts.U.S . eneral
Impons, WorldAreaandCountryof Originby ScheduleA CommodiiyGroupings,1987
Decemberand Annual549(1988),Exhibit 139. DirectexportsfromIran totheUnited States
vimially ceasedafterthe issuanceof ExecutiveOrder 12613.SeeU.S.GeneralImports,World
Area and Country of OriginbyScheduleA Commodiiy Groupings,1988Decemberand Annual
652(1989),Exhibit 140. ExecutiveOrder 12613did notprohibitirnportsintothe United States
of petroleum productsrefinedfrom Iraniancmdeoil inthirdcountries.Underthe circurnstances, Iran has not shown --and cannot show --that the U.S. military
actionsagainst these platfonns had any affect on commerce between Iranand the United
States. Iranthus cannot show any violation of ArticleX(l) by the United States
involving these platforms244.
2.27 The case is even more clear with respectto the Sim and Sassan platfoms
damaged by the United States on 18April 1988. By that date, the direct importation of
Iranian oil intothe United States had cea~ed*~'.Thus, even ifthe Sirri and Sassan
platforms were producing oil inApnl 1988,they could not have producecioil for export
to the United States. The destruction of these platforms could not have afïected
commerce "between the temtones of' Iran and the United States.
Iranhas not claimedinthis casethatExecutiveOrder 12613violatesthe 1955Treaty, and
ratherbasesitsclaimsolelyon U.S.militaryactionsagainstthe offshoreplatfoms. It isthe
positionof theUnitedStatesthat ExecutiveOrder 12613,whichreflectedaPresidentialfinding
that"Iranisactively supportingterrorism asan instrumentof statepolicy"and "hasconducted
agressive and unlawfulmilitaryaction againstU.S.-flagvesselsand merchantvesxls of other
non-belligerentnationsengagedin peacefulcommercein internationalwatersofthePersianGulf
andterritorial watersof non-belligerent nationsof that region,"is entirelylawfulunderthe 1955
Treaty. Giventhe natureofIran'sclaim, however,the statusof ExecutiveOrder12613is not
beforethe Court.
MS
SeeU.S.GeneralImportsandImportsforConsumption, ScheduleA ComrnoditybyCountry,
Table 2, Section 3330040(Cnide Petroleum,Testing25 DegreesAPIor Over),October1987 -
December1988,Exhibit 141. Accordingto this monthlyU.S.CensusBureaureport,the last
Iraniancmde oil exportto the UnitedStatespermined underExecutiveOrder12613was
deliveredin December1987,andtherewere noexportsofIraniancrude totheUnitedStates
whatmeverin 1988. Ibid. Section3. TheCourt's Judgment in theNicaragua Case1sNot Pertinent
2.28 Giventhe dramaticallydifferent factualcircumstances, the Court's
considerationof theU.S.-Nicaragua FCN Treatyinthe case concerningMilitaryand
ParumilitaryActivities inand against Nicaragua (Nicaraguav.UnitedSiaies of
America) is simplynot relevant here. First, the actionsthat the Nicaragua Courtfoundto
violate the Fnendship, Commerce and Navigation Treatybehveen the United Statesand
Nicaragua ("theFCN Treaty") were of a quite differentcharacter hm those involved
here. There, theCourt found that the United Statesviolatedthe FCN Treatythroughthe
mining of Nicaraguanharbors and attacks on portfacilities. Suchacts directly affected
harborsand ports,which are vital components inthe systemof maritime commerce.
They threatenedfar greater and more direct effectson commerce and navigationbenveen
thetemtories ofthe Parties than did the U.S. actionshere,involvingoffshoreplatforms
that at therelevanttimes either could not produceoilor couId not export oil to theUnited
States-
2.29 Moreover,the mining of ports andthe attacks againstNicaraguan facilities
that the~Vicaragua Court found to violate the FCNTreaty occurredin 1983or early 1984,
longbefore trade between the temtories of the UnitedStatesand Nicaragua ended
pursuant to the 1May 1985U.S. Executive Orderthat endedbilateraltrade. Accordingly,
the U.S. actionsinthe Nicaragua case potentially affectedongoing commercebetween
the territones of theParties in a way U.S. actionsin this case did not. In contrastto the
A'icaraguacase,the nmowly-targeted U.S. actionsagainst Iran'soffshoreplatformsdidnot have a legally significant effect on commerce between the temtories of lran and the
United tat tes^^^.
2.30 In ignonng such critical distinctions, Iran in effect asks Court to rewrite
the 1955Treaty. It asks the Court to strike the phrase "between the thtories ofthe two
High ContractingParties," and to createa new Article X(l) that declares: "There shall be
hedom of commerce and navigation." Such an article, Iran as~s, would be violated
whenever "one Party causes hm to the commercial activities ofthe ~ther~'~".This
imaginative constmction of Article X(1), however, is not supported by thetext or by the
practice of the Parties. Read "literallyasIran would have the Court rewrite itArticle
X(1) would seem to obligate each Party to maintain fullfreedom of navigation and
commercewith al1other counuies, an outcome in no way supponed by the practice of
either the United States or Iran.
2.31 Iran's Memorial urges the Court to dispense wit hhe territorialrestrictions
of ArticleX(l) because it is impossible to know to whom Iraniangoods introduced into
the Streamof commerce will ultimately be sold or re~old'~'.As noted above, this
ignoresthe plain wording, which is limited to commerce and navigation "between
the territories othe High Contracting Parties." Moreover, Iran essentially asks the
244
Evenabsentthese importantfactualdifferences, characteristicsoftheNicnragirocase limit
itsusefulnessin guidingthe Courtinassessingthe 1955Treaty here. Atthejurisdictionphase,
bothNicaraguaand the UnitedStatesdevotedonly limitedaîtentiontothe FCNTreaty; the
Courtat the meritsstagehadthe benefitof onlyNicaragua'sviews. As a result questionssuch
asthe legaleffectof thecounterpartto ArticleX(1)ofthe 1955Treatywerenot fullypresented.
Moreover, atthemerits stage,theCourt'sconsiderationofthe issues relatedto theFCN Treaty in
theA'icaraguacaseweresubsidiarytothe other,broaderbasesoftheCourtsjudgment.
247
Iran'sMemorial,para. 3.66. Courtto disregardprinciples of internationaltrade law which draw significantIegal
conclusionsfrom the rnovementthroughandthe conversion in one Stateof gwds
onginating in another State. It asks the Courtto announce new pnnciples underwhich
the exportto the United States by a third countryof any product at somepoint
wnnected with Iran, regardlessof the forminwhich it arrives inthe United States,
becornes"commerce"between the temtones of Iran and the United States govemedby
a bilateraltreaty between the United Statesand Iran. The Court shouIdnot rewriteclear
trearylanguagein this inventiveway.
2.32 Thus, as we have shown,Iranhasnot shown thatthe U.S. actionsagainstthe
offshoreplatforms intempted any commercepotentially subject to ArticleX(1)of the
1935Treaty. The Court cannot ailow Iranto escape ifsburden of proving the fa-
essentiaito its claims simply by assertingthatgoods of Iranianotigin might someday
in somewayfindtheir way to the UnitedStates. Such suppositionscannot substitute
for eridence. PART 111
THEU.S.ACTIONS AGAINSTTHEOILPLATFORMS
CAMEWITHINTHEEXCEPTIONCREATED BYARTICLEXX(l)(D)
INTRODUCTION
3.01 TheU.S.actions against Iran's offshoreplatformsdid not violatethe 1955
Treatybecausetheywerewithin the "essentialsecurityinterests"exceptioncreatedby
ArticleXX(l)(d) of theTreaty. The plain languageofthisprovision, earlierdiscussions
ofsirnilarlanguagebythe Court, and theprovision'shistoryandcontext,al1showthat
the U.S. defensivemeasuresare not prohibitedbytheTreaty.
3.02 The factspresented in Paofthis Counter-Memonaishowthat these
actionsweretakento protect essenU.S.securityinterests,including both thesecurïty
ofU.S .esselsandnationalsin the Persian GulfandessentialU.S. secwîty interestsof
a broadernatureinthe region. The facts alsomakeclearwhythese measureswere
necessary,giventhernilitaryrole of the platformsinfacilitatingand supportkg
udawful rniningandsmallboat, helicopterandmissileattacksagainst U.S. and other
neutralvessels. Therefore,suant to ArticleXX(l)(d),the 1955Treaty doesnot
applyto them. CHAPTER1
ARTICLE XX(l)@) CLEARLYAPPLIESTOTHISCASE
Section1. TheLanguageof ArticleXX(l)(d) 1s Bmadin Scope
3.03 Article XX of the 1955Treaty clearly excludes the measures complainedof
by Iran kom the applicationofthe Treaty. Article XX(l)(d) States:
"1. The present Treaty shallnot preclude the application ofmeasures:
(d) ... necessary ..to protect its [aParty's] essentialsecurityinterests."
3.04 The first clause establishes that no provision of the Treay prohibthe
types of measures described inthe Article. Obligations underthe Treaty simplydonot
apply to, and cannot prohibit or limit, measures falling within theexception. Article
XX(l)(d) creates a completedefense to any claim that coveredactionsviolate the
Treaty.
3.O5 To come within this exception, a Party'smeasures must have been necessary
to protect its essential security interests. This treaty requirement, likeany other, is to be
interpreted "ingood faith in accordancewith the ordinary meaningto be given to the
terms of the treaty in their contextand in light of its object andpurpo.e
-
249Article31,Vienna Convention onthe LawofTreaties. 3.06 The ordinarymeaningsof thetems usedareclea. Ameasureis "aplanor
courseof action intendedto attain some~bject~'~,t"hat is!"anaction takenasa rneans
to an end2"". There is no reasonto believethattheterm wasused in anynarrower
sense intheTreaty. Thetermwould thereforeincludearmed actionsaswellas other
types ofmeasures.
3.07 ArticleXX(l)(d) requiresthat coveredmeasures be "necessarytoprotect [a
Party's]essentialsecurityinterests.""Necessary"measuresarethose "neededto
252rr
achieveacertainresultor effect , or thatare "requiredorneedfuI to bed~ne'~~''.
Necessity must be determinedin lightof the facts.
3.08 Theterms "essential"and"security"are alsogermane. "Essential"conveys
the ideaof importance;standarddictionariesdefine"essential"as "affectingtheessence
of anything;'material,' ArticleXX(l)(d) thusapplies to security
interestsof importance,and not tointereststhat arelimitedor marginal. The security
interestsin questionherecertainlymet thisstandard.
2% 9 TheOxfordEnglishDictionary,p.528(2ded. 1989).
nte ArnericanHeritage Dictionary oftheEnglishLanguage,p. 1 117(3deà. 1992).
252
Ibid.,p. 1207.
253 10TheOxford EnglishDictionary,p.276(2ded. 1989).
'" 5 TheOxfordEnglishDictionary,p.402 (2ded. 1989). "3.09The term "securîty"means "the sûfetyor safeguardingof the interests ofa
State,organization,person,etc., against dange?55,"and "freedomf6m risk or danger;
safegS6". The plain meaningof the term "security" canthus bequite broad.
Section 2. U.S. Measures Met the Requirements ofthe Exception
3.10 The actionsof theUnited States inthis casefellulthin the exception created
by Article XX(l)(d).
3.11 Iranian actionsduringthis period clearlythreatenedessential security
interests of the United States. Theunintermpted flowofmaritimecommerce in the
Gulf was essentialto theeconomyand security interestsof rnanyStates, including the
United States. This commerce was severelythreatenedby Iran'srepeated attacks on
neutralvessels which were neither canying contrabandnorvisiting Iraqi ports. These
attackç made navigation inthe international waters of the Gulf very hazardous, caused
subtial darnageand financialloss, and dramaticallyincreasedmaritime insumnce
rates and other costs of operation.
3.12 Iranian attackson U.S. warships and commercialvessels also rhreatened
other more irnrnediateU.S.securityinterests. The livesof U.S.nationals, including
mernbers of the U.S. ArmedForces, were put directly atrisk. U.S.naval vessels were
seriomly impeded in escortingUS.-flag vessels and in otheressential securir~.duties.
The U.S. Government and U.S.nationals suffered severe financiallosses. Any State
*''14 TheOxfordEnglishDictionary, p.853(2d ed. 1989).
TheAmericanHeritage Dictionary ofthe EnglishLanguage,p. 1632(3d ed.1992).facedwith rechng attacks on its warshipsand commercial vessels wouldcertainly
I
beat such actions as seriousthreats to itsessential security interests. Theexception in
ArticleXX(l)(d) clearly applies to suchevents.
3.13 Further, it was clear atthe timeof the attacks on SeoIslCityand
USSamuel B. Robertsthat diplomaticmeasures were not a viable means ofdetemng
Iran fromits attacks. As described inPart I~", the United Statesand othergovemments
maderepeated diplomaticprotests tothe Iranian Government in reactionto earlier
Iranianattacks. The issuewas raised inthe UnitedNations Security Council,which
clearlycondemned and demanded anend to Iran's attacks. Iran'sconduct,however,
madeclearthat the anacks would continue.
3.14 Accordingly, armed action inself-defense was the only optionleft tothe
United Statesto prevent additionalIranianattacks. As shown in Pan 1,Iran'soffshore
oilplatforrnsplayed an important role in guiding and wnducting Iran's anacks on U.S.
andother neutral ships2S8.Military actionagainst these platforms wasnecessary,in
eveT sense of the word, to protect essentialU.S. sec* interests.
Section3. Other Governments Also SawIran's Actions As ThreateningTheir
SecurityInterests
3.15 The actionsand views of other govemments corroboratedthe U.S.view of
the threatto its security. Many otherStatesalso saw Iranian actions inthe Gulf as
257See,e.g., supra,paras1.08- 1.11,1.22,1.24, 1.39,1.47.
258Supra,paras.1.84 et seq.
111 threateningboth their own interests and globalsecurity. The Seturis- Council.in
Resolution 552(1984),expresseddeep concem about Iran'sattacks. The Council was
"[cloniinced that these attacks constitutea threat to the safety and stabiIityofthe area
and have serious implications for internationalpeace and sec~rity'~~".In Resolution
598,adopted on20 July 1987,the Security Council deplored attacks on neutral
~hippin~~~'.
3.16 Many other States deployed warships to the Gulf in response to Iran's
attacks including Belgium, France, Italy, TheNetherlands, the Soviet Union, and the
UnitedKingdom. Some States publicly endorsedthe necessity and appropriatenessof
the U.S .efensive actions againstthe Iranian oil platforms. Follorvingthe Rostarn
action, theBritish Government stated that the U.S. action "wasentirely justifiable in
exerciseoftheir right of self-defence in the face of imminent threat of futureaitacksZ6'".
Followingthe action against Sirri and Sassan,the British Govwnment againexpressed
itssupport. TheBritish Secretary of Statedeclared "1do not believe thawe wuld be
anynearerpreventing the spread of hostilities in the Gulf if the United Statesrehsed to
259
Resolution552, Exhibit27.
2m
Resolution598,Exhibit 142.
261de Guw andRonzini, p. 370Exhibit26. 262ri
take action on theprovocationofferedby this freshmine-layingincident . The
French Governrnentstatedthat it:
"reaffims itsattachrnentto the freedomof navigationandsafetyin the Gulfand
has requestedan irnrnediate endto mining operationsand any other act hostileto
shipping ininternationalwaters,sincesuchactivitiescan only leadto measuresof
self-defenceking taken in accordancewith internationallawandthe United
Nations
262
Ibid p.286, Exhibit26.
263Ibid p.41 4,Exhibit26. CHAPTERII
THE NICARAGUACASE DOESNOT LIMITTHE
APPLICATIONOF THE EXCEPTION HERE
3.17 Language identicalto ArticleXX(1)of the 1952Treaq aIsoappeared in the
U.S.Treaty of Fnendship, Commerceand Navigation betweentheUnited States and
Nicaragua, and was consideredinthe Court's 1986Judgment in thecaseconcerning
.Militaiy andParamilitaiy Activifies in and againstNicaragua micarav.aUnited
SraiesofAmerica). The Court recognizedthat the exception in thattreatyencompassed
rneasurestaken in self-defense:
"[Alction taken in self-defence,individual or collectivebeiconsiderd as
part of the wider categoryof measures qualified in ArticlasX'necessq to
protect'the 'essentialsecurityinterests' ofa P...yItisdifficulttdeny that
self-defenceagainstan armedattack corresponds to measuresnecessatoprotect
esscntial secwity intete~ts*~."
Although the Court thus concluded thatthe broad concept of "essentialsecurity
interests"encompasses self-defenseagainst armed attack, it ultimatelyfoundthat
particuiarU.S. measures involvingNicaragua did not faIl withinthat treaty'sexception.
3.18 TheUnited Statesdoesnot agree with many of the factualand legal
conclusionsinvolved in the Court's1986Judgment, but these issuesarenot germane
here. The Court's findingwithrespectto the essentialsecurity interestsexception in
'" Militq andParamilitaiyActivitiesinandagainstNicaragua(hTicmagua.
UniiedStatesofAmerica),Merits, Judgmen. C.J. Reports1986para224.that casereflectedthe Court's view of the facts,and in particularviewsthat
Nicaraguahad notengaged in any armed attackand thatthere wa insuscient evidence
of significantNicaraguan support for insurgentforcesin neighboring countries,so that
U.S. essential securityinterests were not threatened.eed,the Court consideredonly
one piece of evidenceof a threat to U.S. securityinterests: a 1May 1985Presidential
finding by PresidentReagan. The Court statedthat, evenif this finding showeda threat
to national security,it could notjustify U.S. actionsbefore it was executed26'.
3.19 In contrast, this Counter-Mernorialpresents extensive evidence showingthe
threat to U.S. securityinterestsresulting fromIran'scontinuedIawful attackson U.S.
vessels and its generaldisruption of neutral maritimecommerce in theregion.
3.20 The Court also evaluated the necessity ofthe U.S. measuresen in
Nicaragua inresponse to alleged threatsto U.S.securîty interests, concludithat
mining andartackson ports and oil installationswere not"necessaty" within the
meaning ofthe Treaty. The Court indicatedthat a findinof necessity cannot bebased
wholly on the subjectivejudgment of a Party,and foundno evidencethat Nicaraguan
policies were a threat to essentialU.S. securityinterests*".
3.21 The situation in this case again is drarnaticallydifferent. The Courthas
before it a detailedand compelling record showingthe necessary connection between
U.S .ctionsandthe protection of U.S. securityinthe face of Iran'scontinued deadly
attacks. The necessity of U.S. actions is shownby specific facts before the Court,
265Ibid.,para.281.
2"Ibid.,para282.documenting Iran'swidespreadattacks on shipping. Thedangers of lettingsuch attacks
on U.S.vessels continuewithoutresponsewere not subjective or hypothetical. The
evidence shows that lives,the safety of ships, and vital sea Ianeswereat risk.
3.22 Thus,the applicationof the treaty exception inthis case involves
circumstances fundamentallydifferent frornthose inthe hTicaragua case. Here,the
evidence cornpelsthe conclusionthat the U.S.rneasureswerenecessaq to protectthe
essential security interestsof the United States. CHAPTERIII
THEHISTORY AND CONTEXTOFARTICLE
XX(l)@) CONFIRMITS BROADSCOPE
3.23 The background of Article XX(l)(d) confirms that it createsa broad
exceptionapplicable in thiscase. The Courthas already noted that in interpretingthe
1955Treaty, "recourse may be had to supplementary means ofinterpretation suchas the
preparatorywork and the circumstances in which the treaty was con~luded~~'"a,nd has
consideredother similar U.S. treaties in construing the 1955~reaty*~'.Iranhas
likewisecited such materialsas guidesto interpretatiod".
3.24 This section showshow the historyof Article XX(l)(d), and of
correspondingprovisions in other FCN Treaties, confimis the breadth ofthe Article
XX(l)(d) exemption. This history shows thatthe "essential securityinterests" provision
is a broadexception intended to covera wide range of measures and situations. It
wnfirms, asthe Court said in theNicaragua case, that "theconcept of essential security
267OilPlatfornu(IslamicRepublicofIran v.UnitedStatesofAmerica).Prelimina~Objection,
Judgment, para.23.
268Ibid.paras.29 and47.
269See,e.g.,Iran'sMernorialparas.2.24- 2.27and 3.27. interests certainlyextends beyond the concept of an armed attack!and hasbeen subject
to very broad interpretations in the past270".
3.25 Thepredecessors to "essential security"clausesin U.S. treaties were
originally designedprimarily for cases of war or hostilities,but they were later extended
to applyto other situations. Thefirst such clauseappearsto have been in a 1938trade
agreement betweenthe United States and Canada. Itprovided thatnothing in the
agreement "shallbe construed to prevent the enforcementof such measures" as either
pam. "maysee fit to adopt ... (c) relating to neutralityor to public security; or (d)
should that countrybe engaged in hostilities or wd7'". Similar provisions were
included in wartime U.S.trade agreements in the early 1940's.These helped to remedy
uncertainty stemrningfiom the unsettled state of customary international law as to the
effect ofwar on treaties.
3.26 Followingthe Second World War,the scopeof suchexceptions was
broadened. Treatieshad tobe reconciled with the Charter, which authorized Security
Council sanctionsand other actions potentially affectingtreaty cornpliance. Moreover,
in lia of Article2(4) of the Charter, "war" seemedless likely to provide the relevant
legal framework. Otherpossible uses of force, as well as other possible emergency
situations, had to be addressed.
Militmy andParamilita~ Activities inand againstNicaragua flicarapu v.
UnitedStates ofArnerieu),Merits, Judgment,1C.J Reports 1986, para.224.
271ReciprocalTradeAgreement, 17November 1938,United States-Canada, ArticleXII(l), 53
Siat.2348, EAS No. 149, Exhibit 143. 3.27 The "essential security" provision in t1955 Treaty evolved against this
background. The first U.S.post-war FCN treaty, signed in 1936with Chini provided in
Article XXVI(l)(d) that:
"1.Nothing in this Treaty shall be construed to prevent the adoption or
enforcementof measures:
(d) necessary in pursuance of obligations for the maintenance of international
peace and security, or for the protection of theential interesof the country in
272r,
time of national emergency .
3.28 This provision was thought to confer broadri&% of unilateral action. The
State Department report on the Treaty for theSenate stated that "exceptions aiso are
ùicluded to givethe two parties the requisite freedoof action intimes of national
emergency273". Another State Department memorandurn for the Senate noted that:
"certain important subjects, notably.. the 'essential interestsof countryin time of
national ernergency,'are spçcifica~lyexceptedfrom thepunierv of the treaty. In view
of the above, it is diffictoconceive of how article WIII could result in this
274.,
Government's being impleaded in a matter in which it mightbeembarrassed .
272Treatyof Friendship,Commerce,andNavigationbehveentheUnitedStatesofArnericaand
the Republicof China,4November 1946,6 3tat. 1299,TIASNo. 1871,25 UNTS69,Exhibit
144.
213Friendship, Commerce,andNavigation withChina:Messagehm thePresidentofthe
UnitedStates, S.Exec.Doc.J, 80thCong., 1stSess.,p. 3 (1947): Exhibit 145.
274
A TreatyofFriendship, Commercea ,nd Navigationbehveenthe C'nireSiatesofAmerica and
the Republicof China:Hearing beforea Subcommitteeofthe SenateCommitteeonForeign
Reiations,80th Cong.,2d Sess.,p.30( 1948),Exhibit 146. ArtjcleXXViII was thedispute
senlementclauseinthat treaty. The Senate Foreign Relations Committee's Report on theTreatysimilarly emphasized
the Senate'sview that underthe Treaty, "[wle retain freedornofaction in times of
national e~ner~enc~~~~".
3.29 The second FCN Treaty, with Italyin 1948,containedan "essential
interests"clause like that in the treaty with The U.S. FCNTreaty with Ireland
in 1950,however, made importantchanges in the scope ofthis clauseand set the pattern
for later treaties, including the 1955Treaty between the UnitedStates and Iran. Article
XX(1) of the 1950United States -Ireland treaty reads:
'1 The present Treaty shallnot prevent the application ofmeasures:
...................... ................... 277 ,,
(d)necessary ... to protect itsessential secwity interests .
3.30 The 1950text thus added the word "security" to givegreaterprecision
regarding the interests to be protected. The new text also droppad die previous
limitation to actions taken "intime of national emergency." Action was authorized
whenet~erit was "necessary .. to protect ... [aparty's]essenha]security interests."
The exception was no longer restricted to circumstances of "war,""hostilities," or
"national emergency."
275
TreatyofFriendship,Commerce,andNuvigationwithChina:S. Exec.Rep.No. 8, 80th
Cong.,2dSess., p. 3(1948),Exhibit 147.
276TreatyofFriendship,CommerceandNavigationbetweentheUnitedStatesofAmericaand
theltalianRepublic,2 February1948,63Stat.2255,TIAS No. 1965,79UNTS171.
'''Treaty of Friendship,CommerceandNavigationbetweentheUnited States ofAmericaand
Ireland,21January1950,l UST 785,TIAS No.2155,206UNTS 269, Exhibit 148. 3.31 The "essentialsecurity"clausein the United States -IrelandFCNTreaty
was repeatedinensuing FCN Treaties, includingthe 1955Treaty betweentheUnited
StatesandIran. The clause consistentlywas seento createa broad and far-reaching
exception. SenatorHickenloopersummedupthis view in 1953,duringthe hal Senate
debateonseveralsuchtreaties:
"Thesetreaties havebeen formulated ...to avoid my interferencewith or
qualificationsof therightof theUnitedStatesto apply suchsecuritymeasuresas
it mayfindnecessary. ... Eachofthe treaties ... containsa general reservation
makingit clearthat nothinginthetreatyshallbe deemedto affecttherightof
to applymeasures'necessaryto protectits essentiaisecurity
interests .,
3.32 In 1954, the year in whichthe UnitedStates andIranbegan FCNTreaty
negotiations,the United Stateswas alsonegotiatingsimilarireatieswithGemany and
TheNetherlands. Gemany, concemedaboutthe breadthof the exception,wught a
definitionofthe words "toprotectits essentialsecurityinterests." TheU.S.sideargued
againstsucha definition. Itexplainedthat:
"noprecisedelineationor interpretationexistedfor this expressionand thatthe
languagehad beendraftedin sucha manner as to leaveawide areaof discretion
to bothparties inrderto allowfor necessaryaction overan indefinite future.
Theyaddedthat no seriousconsequenceswereexpectedfrom thisremtion as
longasthe relationsbetweenboth countriesremainedfriendly,and stressedthe
word [sic] 'necessaryand 'essential'had beenaddedto emphasizerhatthe
reservation wasnot to be invoked in afrivolousmar~ner~~~."
27899Congression01 Record,p. 9315(1953), Exhibit 149.
2T9DispatchNo.2254 from U.S.High CommissionB , onn to U.SDepartment ofState,17
Febniary1954,pp. 1-2,Exhibit 150. 3.33 The Geman delegation then asked whether the clause =asjusticiable. The
U.S. sidethought"thatnationa1 as well as international corn wouldprobably give very
heavy weight to argumentspresented by the govemment invoking the reservationand
wouid have dificulty in finding ajusticiable issue280".The U.S.negotiators citedthe
Senate debateof 21 July 1953,cited above, as showing the importanceandbreadth of
the exception.
3.34 In the negotiations between the United Statesandthe Netherlands, the
Netherlands delegationalso sought to narrow the securityinterests exception. The U.S.
side did not agree:
"IïJhey concurredin the thought that this reservationwas to be used for ??nous
reasons, and wasnot intended to be a loophole throughwhich arbitrq actions
would or could be taken so as to defeatthe purposes of theTreaty. The U.S.side
emphasized tha the presence in the Treaty of an ample secwîry reservation is,
however, decmedessential by the United Sfates. Theyadded that theycould see
no advantage whatsoever in trying to elaborate on the prescnt wording, anthat
anyattempt to elaborate on it would give rise to misapprehensions lest its scope
was being narrowedto the detriment of the United Statestotake the rneasures it
might consider cssential or vital to the national secun... They ernphasized that
each Party would have to determine, accordingto its own discretion, what vias
essential from theviewpoint of its security interests2"."
-*
3.35 The negotiatorsultimately agreed to a Protocol to the FCN Treatyrecording
their common understanding that "each Part yetermines, according to its own best
IsOlbid,p. 3.
281DispatchNo.238from U.S.Embassy, TheHagueto U.S.Department of State,15
September 1954p , 2,Exhibit151. Seealso,DispatchNo. 107fromU.S.Embassy,nie Hague,
to U.S.Department of State, 3 August1954,Exhibit152.judgment, the rncasures deernednecesçaryto protect its essential securityinterestsZz2".
3.36 The specific wording of the "essential security"clause doesnot appear to
have been exarnined in detail duringthe negotiations between Iranand the United States
on the 1955 Treaty. However,the clause was cited at least mice incontextsshowing
that it was understood to createbroad exception. In responseto Iran'sconcems that
the Treaty would permit foreign stateenterprises to acquire contoflIranian
corporationsby purchasing stock,the U.S. side ,inte rlia,cited the security interests
clause as showinghow the U.S.drafttreaty need not cornpelthis resultZg3.
3.37 The State Departmentalso instructed the U.S. Ernbassy toreject an Iranian
proposal to subject the right to entry inArticle II to " intemal safetyreg~lations~~~".
The U.S.side contended that the right to enforce interna1safetyregdations was amply
covered by Article m(l)(d). The Embassywas authorizd to providea written
statement recording that the treaty recognizedthe paramount right aState totake
measures to protect itself and publicsafety.
3.38 In sum, the history andcontext of Article XX(l)(d), includingthe history of
similar articles in other treaties,confirm that it createsa broad exctotihe
obligations ofthe 1955 Treaty for al1types of measures needed to protectessential
282 Treatyof Friendship,CommerceandNavigationbetweentheUnitedStates ofAmerica and
theKingdomoftheNetherlands, 17March 1956, Protocol,para18,8 UST 2043,TlAS No.
3942,285 UNTS 231, Exhibit 153.
2s3TelegramNo. Il74 fromU.S.Deparhnentof State to U.S.Ernbassy,Tebran, t3December
1954, p.2, Exhibit154.
2&1TelegramNo. 1561 fromU.S.Deparhnent ofStateto U.S. Embassy ,Tehran, 15Feb~ary
1955. Exhibit 155.sccurityintercsts.The articleleaveseach Party widediscretion todetermine,according
to its ounbestjudgmentof thecircumstances t,hemeasuresnecessaq ta protect its
securityinterests. CHAPTER IV
THE APPLICATIONOF ARTICLE XXI(1)P )BVIATES THE
NEEDTORESOLVEA NüMBER OFISSUESREGARDIh'GTHE
RIGHT OFSELF-DEFENSE
3.39 Thenextsectionof this Counter-Memonalwill explain in detail the position
of the United Statesthat its actionstthe Iranianplatforms were lardui exercises
of thenght of self-defense. The Court'sw of this position would require
judgments, interalia,asto whetherthe precedingIranianactions constituted armed
attacks,whetherthe U.S. response metthe requirementsof necessity and
proportionality,and whether any aspect ofthe timingor selection of targets affectsthe
validity of U.S.actionslegitimate measuresof self-defense.
3.40 Exceptforthe issue of the necessiU.Sf.ctions, none of these issues
must be dccided inorder to applyArticle XX(l)(themeasures taken were
necessaryto protectessential U.S.interests,they areexcluded hm the Treaty without
regardto theirrnpliancewith any other criteria,including the requsorthetf
exerciseof self-defense. This is consistent with thepurpose of Article XX(l)(d), which
wasto excludesuchmeasures fÏom scrutinyunderthe Treaty. Of course, this would not
exemptthem fÏomthe reach of other applicabledes of internation--including
limitson the use of forceand the law of self-defense. However,such matters wouldfa11
outside thejwisdiction of the Court in this case, which is Iimitedto the Treaty.
3.41 Accordingly,if the Courtconcludesthat U.S. actions fall within Article
XX(l)(d), it neednot, and indeed, may not, proceedwith respect to the issues
discussed in thefollowing sectionof this Counter-Memorial. PART IV
U.S.MEASURESWERELAWFULACTIONSIN SELF-DEFENSE
CHAPTER1
THEACTIONSOF U.S.FORCESAGAINSTTHEOFFSHOREPLATFORMS
WERE LAWFULACTIONSIN SELF-DEF'ENSE RESPONDmGTOARMED
ATTACKS BY IRAN
4.01 While the UnitedNations Charter bans most uses of force, it also makes abundantly
clear that States subjectedto armed attack have the nght to act in self-defense. The United
States ui11show in this section that U.S. actions met ail legal requirements for the exerciseof
selfdefense.They weretakenin response to armed attacksby Iranian forU.Son.aval and
commercial vessels. They were necessary in order tIran'ability to continue such attacks
and to restore the securityof U.S. vessels. They were proportionaito Iran'smed attacks.
They were timely. They complied fullyh al1other relevantrequirements of the law of
armedconfiict.
4.02 Iran in its Memonal agrees that such actions, iftaken in lawful self-defense, are not
I
"The preclusion of the wrongfulness of an act of a Stateby a Iawfidmeasure of self-
defence iwell-establishedand is reflected in Article34of the 1980draftArticleson the
Law of StateResponsibility, prepared by the InternationalLaw Commission
Iran'Mernorial,par4.11(citationomitted,emphasisadded). We agreewith Iran in this respect. Ifthe U.S.measureswercIanful actsof self-defensc,they
were notwrongful, under'the 1955 Treatyor othenvise.
4.03 Resolution of theissuesraisedin this Part of the StaternentofDefensethus calls for
theCourtto examine thenght of self-defense. The nght of self-defensein responseto armed
attackis today of fundamentalimportanceto the safety andstabilityoftheinternationalorder.
TheUnitedNations Chartercontainsavitalsystem forcollectivesecurity,but, asthe Court is
wellaware,that system cannotensuretheprotection of Statesfromunlarvfularmed attack in al1
circumstances. Hence,asthe Charter recognizes,Statesmustbe ableto ensuretheir continued
existenceand to protect themselvesfromarmed attack throughthe appropriateuse of armed
forceforthe limitedpurposeof self-defense. In practice, it remainstniethat"[tlhe scope of the
rightof self-defensewithininternationalsocietymay largclydeterminethe degree of security
stateslegallyenjoy286."
4.04 Thus, this case posesmattersof great importance tothe internationalorder. The
Court'sjudgment can have profoundimplicationsfor theprotectionandpreservationof
internationalpeace and security.
! 28RotenTucker, "ReprisaisandSelf-Defense:ThC eustomary Law,"66Americm Jomal of
InfernationalLaw,pp. 590-91 (1972).
i CHAPTER Il
THE U.S. ACTIONS SATISFIED THE CHARTER'S REQUIREMENTS REGARDING
FORCE AND SELF-DEFENSE
Section 1. Self-Defense and the Charter
4.05 TheU.S. actions in this case were takenfor limiteddefensive purposesinresponse
to med attacksby Iran. They were not aimed at aitering the integrity or political
l
independenceofthe Islamic Republic of Iran, orat changing its territorial or maritime
l
boundaries orsystem of govemment. The U.S. actionswere not canied out to punishIran or to
l
darnage its economy. Instead, they were taken forthe limited purpose of restoringthe security
l
of U.S. vessels and their crews by eliminating facilitiesused btoconduct or support
l
unlawful armedattacksagainst them.
I
1 4.06 Theseactions were quintessential actionsin self-defense permithy theCharter.
Article 51of the Charter expressly recognizes andaffirms the inherent rofself-defense:
!
"Nothing in the present Charter shall impairthe inherent ri& of individual or collective
self-defence if an armed attackcurs againsta Member of the UnitedNations?until the
Secuiity Council has taken measures necessaryto maintain internationalpeace and
security.Measures taken by Members in the exercise of thri& of selfdefence shall be
immediatelyreportedto the Security Council... ."
As we shaiI show,the United Statesconsistently acted in accordance with these
requirements287.
287 Infe ria,immediatelyfollowingits actioagainstRostam,SirriandSassan ,he UniteStates
submittedtotheSecurity CouncithereportsrequiredbyArticle51.Exhibits100 and130. 4.07 Neither the text nor history of Article 51288n ,or thepractice of States, indicates that
the rigbt ofself-defense is to be construed narrowly or thatit isas somesuggest ," a
privilege289.ttThe nght of self-defense remains a fundamentai safeguard of the contemporary
international order. It cannot be construed in artificial or unreasonable ways that deny States
facing med attack the right and capacity to defend their se~urit~~~~.
Section 2. The Right of Self-Defense Must Be Assessed in Light of Al1theSurrounding
Cireumstanees
4.08 Like other important parts of the law regulating the use of force, the legality of acts
as self-defense can only be detennined in relation to specificeventsand circumstances. The
applicable legal standards "have to be interpreted and applied to individual cases. Facts,
analysis and deliberation will be required to reach appropriate wnclusions ihat takc into
account both standards and circ~rnstances~~'."
288On thehistoryof ArticleSI, see, e.g., YoramDinstein,Wur,Aggressionand Self-Defence,p. 177
(2nd:ed. 1994); MyresMcDougalandFlorentin0Feliciano,TheInfernarionalLawof Wm:
TramnafionalCoercionand WorldPublic Order,p. 235(1994) ('ït isof commonrecord inthe
preparatoryworkof the CharterthatArticle5 1 wasnot draftedforthepurposeof deliberatelynarrowing
the customary-lawpermissionofself-defenseagainsta currentor imminentunlawîülattackby raising
the requireddegreeof necessity.Themovingpurposewas,rather,to accommodateregionalsecurity
organizations(most speciticallytheInter-Americansystem ...withinthe Charter'sscheme .."); Oscar
Schachter,"The Rightof Statesto UseArmedForce," 82 MichiganLawReview. pp. 1633-34(1984).
289
IanBrownlie,InternationalLawund theUseofForcebySfafes,p.273(1963).
290On thecontemporaryimportance ofself-defense,see, e.g.,Dinstein,supra,p.204 (The factsof life
at presentare suchthata Stateconfrontedwithanarmedattack cannotseriouslyexpect an effective
internationalpoliceforceto corneto itsaid.. . ");McDougalandFeliciano,supra,pp. 235-38.
"' OscarSchachter,InternationalLawin TheoryandPracrice, p. 147(1991). 4.09 General Prînciple 5 of theSanRemoManual emphasizes that thenature and extent
of militaryaction necessary in each caseof self-defensedepcndson thecircumstances. "How
far a Stateisjustified in its military actionsagainst the enemy riil1depend upon the intensity
and scale of the armed attack for which the enemyis responsible andthe gravi&of the threat
posed29'." Thus, the overall pattern of Iran's continuingdeadly and illegaluses of forcemust
betakeninto account in applying the elementsof the law of self-defense.
4.10 As the next section will demonstrate,each of the two specific attacksthat preceded
United Statesdefensive measures --the missile attack oSea Isle Cify,andthe mining of the
USSSamueI B.Roberts --was anarmed attack giving nse to the nght of self-defense.
However: the evidence shows that these attackswere part of a largerpattern of Iranian actions
involvingthe unlawful use of force against U.S.and other neutral vessels. Thipatternof
Iranianconduct added to the gravityof the specific attacks, reinforced thenecessity of action in
self-defense,and helped to shapethe appropriateresponse.
292
SanRemoManualonInternational Lm ApplicabletoArmedConflictsa!Seo, Principle5,at p7.
(LouiseDoswald-Beck,ed.)( 1995,hereinafte"SanRemoManuaP'). Whilenotagreeingwiththe San
RemoManualin al1respects, theUnitedStates believes tht ostofitprovisionsrefiectcustomary
internationalIaw. CHAPTERIII
IRAN'SACTIONS WERE ARMEDAïTACKS
Section1. Iran'sActionsWereArmed Attacks
4.11 Article 51preservesthe inherentright of self-defensewhere there is an armed attack
against a Member of theUnitedNations. Under any plausibledefinition, Iran'sactions here
were armed attacks. The defensiveactionsof the United Statesinsthe platforms followed
two specific attac--the missile attack on the U.S.-flagtankerSeaIsle Ciryon 16October
1987and the mining attackon USSSamuel B.Roberts on 14April 1988. As the evidence
shows, Iran attackedthesevessels using powerfanddeadlyweapons causing injury, great
danger to life, and extensivedamage to properThesewerenot isolated border incursionsby
a few soldiers followinga confused or rashjunior oficer, or other ofalimited
consequence. These weredeliberate, dangerous military actionsthat wereof a broad
pattern of unlawfuluseof force by Iran against U.S. vesseIsandtheir naval escortsparticipating
in Operation Earnest Will.
4.12 These wereclearlyarmed attacks giving rise to the rofself-defense. The
Def~tion of Aggression adoptedby the General Assemblyincludes as aact of aggression
"[aln attack by the armedforcesof a Stateonthe land, seaor air forces,or manne or air fleetsof
another ta te*^ Pr"fessorBrownlie writes that "the conditionsin which forciblemeasures of
293
Article3(d)DefinitionofAggressionGA Res.3314 (XXIX)(1 D4ecember1974),Annex, GAOR
2% Sess.Supp.No.31(Vol.l),Doc.Al9631. self-defence arejustified are: (a) The occurrence of a resort towhicheaffccts the sta...
orships ...under itsprotection (if these are attacked on or over the seas...)294'7.
Section 2. The Attack on Sea Isle Cit y as an Armed Attack Against the United States
4.13 Iran contends that the Court cannot consider the missile attack on the SeaCitye
asan med attack on the United States because the ship lackedany connection to the United
States."mhe Sea Isle City had no comection with the United Statesand an artack on this
vessel could notjustify the exercise of the nght of self-defentheUnited tat tes^^ T'.s
claim cannot stand. Sea Isle City was properly registered in the United Sandeflewthe U.S.
flagincornpliance with al1applicable standards of internatioand U.S. law. She was a U.S.-
flag vessel, and the attack upon herjustified acts of self-dbytheeUnited b ta tes'^.
4.14 The applicable international law on nationality of swascodified in mro
internationa1conventionsthe 1958Convention on the High seas*" and the 1982 UN
Convention on theLaw of the seaZ9'. The United States is parto thefirstand not the second,
although it views the provisions in the 1982Convention on nationality of shassreflective of
2% lm Brownlie,InternationalLawandthe UseofForce byStates,p.433(1963){emphasisadded)
295Iran'sMernorial,para.4.75,
Thefollowingdiscussion relatestoSeaIsle City,but hersituationis identicalin theserespectsto the
othertentankersformerlyregisteredinKuwaitthattransferredto U.S.registt).:Bridgeton.Chesapeake
City, GusKing, GusPrince,GusPrincess,Gas Queen Middleton,OceanCity,Suif Cityand Townsend.
297
1958Conventiononthe HighSeas,13 UST2312,TIAS5200,450 UNTS82. ArticIes4-6of the
1958Convention address nationaliofships. SeeExhibit 156.
38 1982UNConventionon theLawofthe Sea,U.N.DOCMCONF.62i122,enteredinto force 16
November1994.Articles91-92and 94addressnationalityof ships.SeeExhibit157.customary international law. Iran is not party to either ConventThe.relevant provisions of
both Conventions are substantialiy the sam--some provisions areidcnticd. The U.S.
registration of the former Kuwaiti vessels satisfied îùlly the requirements of both Conventions.
4.15 Under international law, States have the Rght to cotheirnationaiity on ships by
registering the ship, authonzing it to fly its flag, and issuing papers docurnenting the ship's
nationality. There are two fundamental limitations on registraofovessels. First, vessels may
only be registered to onetat te^ ^^gistration oSeaIsle Ciiywas transferred exclusively to the
United States.
4.16 Second, there rnust be a "genuine link" between the ship andfiagState. Boththe
1958 and 1982 Conventionsshow that this concept requires that a State effectively exercise
jurisdictioand control over administrative, technicandsocial maltersab~ard a v~sse1'~~
Additionally, States "shall take such measures for ships undefiagas arenecessary to ensure
safetyat sea...30'." The dornesticmeasures taken by the United States in connection wiSea
IsleCifiifully met these requirernents. The grant of U.S. regtotthe vessel subjected itato
range of requirements and stringent controls under U.S. law, including,idia,strict safety
requirements. There was indeed a "genuine link" between the vesseand the United States.
259
1958Convention, art.: "Shipsshallsail undertheflagof oneStateon...". 1982Convention,
art9.2:"shipsshallsailunderthe flagof oneStateonly."
1958Convention, art.: "Theremustexist a genuine linkbetweenthe Stateand the ship;in
particular,the Statemusteffectivelyexercise itsjurisdictionand controIin administrative,technicaland
social mattersovershipsflying itsflag." 1982Convention,91(1):"There mustexistagenuine link
between theStateandthe ship";andart94(1): "EveryStateshall effectively exerciseitsjurisdiction
and controlinadministrative,technicaland socialmattersovershipsflyingitsflag."
Ml 1958Convention, art.0(1);1982Convention,art.94(3). 4.17 The international legal requirements for the granU.S. nationality of vessels have
been irnplemented through a series of U.S. statutory and administrative In brief,
U.S. law requires that vessels be designed, constructed, and equipped to ensure safe operation303,
and that vessels have a U.S. captain and be manned by the appropriate number of properly
trained officers and crew3". The U.S. Coast Guard is required to inspect vessels to ensure
compliancewith al1design, construction, equipment and manning requirements305.This
elaborate Statutory and regulatory scheme was applied SeaIsle Cifyand Mly satisfied the
international law requirement of "genuine link." The United States effectively exercised
jurisdiction and control over administrative, technicai, and social maasewellas over
operationalsafety.
4.18 Registration ofSea Isl e ity and other similarly situated vesurasdone in
wnformity to existing U.S. lawsand regulations. No new lawsor regulationswere enacted.
Appropriate certificates of documentation were issued306.Ownership and tiofethe vessels
were transferred to a U.S. corporation,and the vcssels became subjto U.S. legaI requirements
authorizing the U.S. Government to requisition them in the event of a national ernergency.
Relevantstatutesandregulationsare reproducedat Exhibit 158.
303Codeof FederalRegulations,Title46,Chapter33,Section3306. Exhibit158.
3" Code of Federal Regulation, itle46,Chapter 121, Section12110(d);Title46,Chapter81, Sections
8101-8103. Exhibit 158.
305Codeof Federal Regulations, itle46,Chapter33, Section3306.Wibit 158.
l
306Seo IslCeiry5U.S.registrationdocuments areat Exhibit159. TheGeneraIIndexor Abstractof Title
reflects that thevesse1wastransferredto ChesapeakeShipping, Inc.andrenamedSeaisle Ciy on 10
June 1987.Accordingly, Sea Isle CI^ possessed a genuine link withthe United States,and was fully entitled
to theregistry and protection of the UnitedStates.
Section 3. The Nicaragua Decision and Armed Aîtack
4.19 Nothing in this Court'sbnef discussionof the concept of armedattack in
hfilitary and Paramilitary Activities inand against Nicaragila (hTicaragüav.
UnitedStates ofAmerica), affectstheconclusionthat these were armedattacks. The Court
thereprimarily considered whetherthe sendingof armed bands or irregularforces can
constitutean armed attack, concludingthat they would if they were of such gravity asto
constitutean armed attack if canied outby regular forces307.Nothing in the Court's opinion
suggestedthat mine and missile attacks on naval and commerciav l esxis were anything less
thananarmed attack.
4.20 Thus, the evidence showsconvincingly thatthe United Statesacted in response to
seriousarmed attacks by Iran. Should theCourt concludethat these not med attacks,
extremelydifficult questions wouldarise forthe international legd order.rt cannot be that
internationallaw leavesa State unableto defend itself if its vessels are subjectedto deadly
attacksby missiles and mines.
307M.ifiiaryandParamiliiq ActiviriesinandagainstNicaragua
Wicaraguav. UnitedStatesofAmerica),Merits,Judgment,1C.J Reports 1986p,ara. 195. CHAPTER IV
THE USEOFFORCE WAS NECESSARY
1
I 4.21 Asthe Court recently has confirmed,the use of force in self-defissubjectto
I
the fundamentalrequirements of necessity and proportionality:
l
"The submissionofthe exerciseof the rightof self-defenceto the conditions of necessity
and proportionalityis a rule of customary international Aswrthe Court statedin the
case concerningMilitary and Paramilitary Activities in and against
~Vicaragua(Nicaragua v. UnitedStates of America) (I.C.JReports 1986,p. 94,para.
176.):'Thereis a specific rule whereby self-defencewould warrant only measureswhich
are proportionalto the armed attack andcessaryto respond toifa de well established
in customaryinternational law.' This dualcondition applies equatoArticle 51ofthe
Charterw , hatcver the means of force employed30s."
The SunRemoMunual makes clear that the "principlesof necessity and proportionalityapply
equally to armedconflict at sea and require that the conduct of hostilities by a Stateshould not
exceed the degreeand kind of forc... required to repel an armed attack against it andto
l
restore its secu~ity'~~."The U.S.Navy'Commander's Handbook on the Law ofNavol
l
Operations similarlyprovides that that the use of self-defense is subject to the requirementsof
l
necessity andproportionality310
3oLegaliwoftheThreator UseofNuclearWeapons,Advisoiy Opinion,1 C.J Reports 1996,para.41.
309
SanRemoManual, Principl4,atp. 7.
;Io
U.S.DepartmentoftheNavy, TheCommander S Handbookonthe Law ofNava2Operations (NWP
1-Id@, Ociober1995, (hereinafteCommander S Handbook) sectio4.3.2, Exhibit160.The
Commander'sHandbookis widelyregarded asanauthoritative statemetf thlepl niles overningthe 4.22 The U.S. actionsat issue here satisfied both requirementsThis $&on will analyze
the requirement of necessity,showing how the actions takenbythe United States were
necessary "to repel an armedattack and to restore its security,"in the words of the SanRemo
Manual. The next section will analyze proportionality.
Section 1. There Were No Peaceful Alternatives to Self-Defense
4.23 Action in self-defensewas necessary becausepeacefulmeans could not bring an
end to Iran'srepeated uses of force culminating in the amed attackson SenIsle City and USS
Samuel B. Roberts. Diplomaticefforts did not succeed inelirninatingthe threats to U.S.
vessels. The United States and other countries resorted to the Security Council, seeking a halt
in Iran'sdangerous behavior. Through diplomatic communicationstransmitted toIran through
the Su;iss protecting power,the United States called for Iranianrestraint311.All such
diplomatic efforts failed. Iran'saggressive behavior continued.
4.24 Moreover, whenthe armed attacks on theSea IsleCity and onthe
USSSamuelB.Roberts took place, Iran consistently deniedresponsibility for them, as it
continues to deny responsibilityto this day3'*.Indeed, Iranseeks to deny, or in any event to
i
lawofamed conflictatsea. Itisusedbyapproximately 25 nationsasa principallegalguideregarding
thesernatters.
311See,e.g.,supra paras.1.22, 1.24,1.39,1.47.
I
312
See,e.g.,Iran'sMernonal, paras.4.66,4.74;Iran's Objectionsnd Submissions on theUnitedStates
PreIiminv Objection,Vol.1,paras. 1.04- 1.05,3.44,andAnnexparas. 36-52. (While Irandenies
responsibilityfortheseattacksintheseproceedings,Iranianleadersinotherforahave beenless
ckurnspect. Seesupraparas. 1.30,1.31,1.42,1.112.) minimize, its involvement in the numerousand well-documented Iranianattackson neutral
vessels in the ~ulf3'~.
4.25 Thus, this case stands in sharpcontrast to Iraq'smissileanack onC'SSStark.Iran
assertsthat the United States did notact even-handedly, because it did not respond militarily to
themissileattack on ~~SStark~'~.This is not correct. Themissile firingon USSStarkwas an
isolatedand unintended event, not part of a systematic and continuingpatternof attacks on U.S.
I
vessels. There was no indication or reasonto believe that Iraq had deliberatelyattackeda U.S.
vessel. Followingthe event, Iraq expressedregret, offered compensationandpromptly entered
intodiplomatic negotiations to addressclaims and senle the maner onmutually agreedterms.
Thus,unlike Iran, Iraq acknowledgeditsresponsibility for the damageit caused and entered
into anegotiated peaceful resolution.
4.26 Iran's continuingrefusaisto moderate its behavior, and itsconstantdenials of
involvement.ruled out the possibility of any peaceful diplomatic solution. In he absenceof
peacefulmeans to restore security, militaty action in self-defensebecamenecessaq.
Section 2. Action in Self-DefenseWas Necessary to Restore Security
4.27 The right to use force in self-defense is not limited to repellingananack while it is in
progress. A State can also use forcein self-defenseto remove continuingkts to its future
security. As the SanRemoManualexplains, a State that has been attacked" is entitled to resort
313
See. e.g,Iran'sMernorial,paras. 4.52,4.62 (thelatterparagraph include squotationdescribing
deliberate machine gun androcket attacksonships'bridgesbyIranianRevolutionary Guard Forces.)
314Iran'sObservationsandSubmissionstotheUnitedStatesPrelirninaryObjections atpara.1.14,
Annex,para.23.to force againstthc attacker but only to the extentnecessaryto defend itself andto achieve such
defensive goalsas repelling the attack, reçoveringterritoand removing rhreaistoitsfuture
~ecrrri$~~." Professor Henkin agrees that "self-defenseincludes a nght both to repel the armed
attack andto takethe war to the aggressor statein order effectively to terminatethe attack and
316i>
prevent a recurrence . Professor Schachteraddsthat use of force may bejustified "when a
State has good reason to expect a senes of attacksfrom the same sourceand suchretaliation
serves a deterrentorprotective function1.,,
4.28 Iran's position is apparently that self-defenseis lirnited to actionsto repelan attack
while itis in progress318.Iran's Memorial refersto the possibility that:
"[Tlhere may be circumstances in which thevictim State has expenenced a seriesof
attacks,and apprehends further attacks, sothatthe measures taken, althouaff therlast
actual attack are designed to protect the Stateagafunire attacks. An illusuation would
be in the destructionof bases from whichattackshad occurred inthepm, and from which
futur aetackçwere anticipared."
Iran seems to contendthat such action would notbe self-defense"'.
4.29 Sucha limited view would render self-dcfenseillusory in caseslikethis The armed
attacks here lastedonly a few seconds. They involvedmines secretly hidden inthe sea and
anti-ship missiles that stmck anonymously andwith little warning. Following such attacks,the
Il5
San Remo Manual, p.76 (emphasisadded).
316LouisHenkin,"UseofForce: Law and U.SP .olicy,"p45 inRigh r.Migkr,In~ernaionaILawand
the UseofForce(CouncilonForeign Relations)2 (nd.ed.,1991).
"'Oscar Schachter I,nternationaLaw in Theoryand Pracricep. 154(19911,
'18Iran'sMemorial,para.4.32
319Iran'sMemorial, para4.33(emphasis inoriginal). starus quo unte could not be restored simply by driving an attacking force back across the
border from whencethey came. Mines had exploded andmissileshadbeen fired; sailors were
gravely injured and vesselsdamaged. The threat of furtherattacksagainst U.S. vessels and
theirnaval escorts continued. Thus, it was necessaty to restoreconditions in which thevessels
of the party that was attackedcould again go about their lawfulbusiness safeIyand freely3*0
4.30 The U.S. actionsagainst these offshore platforms were necessary to restore such
conditions for the safety of navigation. As Par1shows in detail,the offshoreplatforms
l
destroyed by U.S. forceswere used by Iran to identify andtargetvessels for anack. They were
l
part of Iran'ssystemof comrnandand control,for directingattacks by Iranian combat forces,
andwere used as bases forattackingvessels and aircraft. Iran claims that theU.S. attacks were
unlawful becausethey involvedthe wrong target, insisting thatthese platforms had little
l
rnilitary use3*'.The Courtrnustjudge the persuasiveness and integrity of this position in Iight
of the compelling evidencepresented regarding the platforms' role in Iran'sattacks on
shipping.
320The U.S.Navy's Commander's Handbook specifiesthatthe usofforce inself-defensernustbe"in
al1circumstanceslimitedinintensity,durationandscopetothatwhich isreasonablyrequiredto counter
the attackor threatofattaandto ensurethecontinuedsafeiyof U.S.forces." Section4.3.2(emphasis
added.) Exhibit160.
"' Iran'sMernorial,paras.l.10- 1.103. CHAPTER V
THE U.S.USEOP FORCE WASPROPORTIONATE
4.31 Actions in self-defense must be proportionate. Force canbe used in self-defense,
but only to the extent that it is requiredto repel the armed attack andto restore the security of
thepartyatta~ked~~~.
4.32 Proportionaiity does not require that actions taken in selfdefense be limited to a
mirror image of the armed anacks that have been suffered. On this particularpoint, like Iran,
we agree with Judge Ago:
"It would be mistaken... to think that there must be proportionality between the conduct
constitutingthe armed aîtack and the opposing conducr. The actioneeded tohalt and
repulse the attack may well haveto assume dimensions disproportionate to those of the
attack suffered. Whatmatters in this respect is the result to be achievedby the "defensive"
action, and not the forms, substanceand strength of the action its....Itslawfulness
3233,
cannot be measured except by its capacity for achieving the desird resul.
Similarly,proportionality does not necessity dictate that defensiveactions beresiritoad
particulargeographiczone. "[Ilt does not seem unreasonable as a mle to ailow a Stateto
retdiate beyond the irnmediate area of the attack when that Statehas sufficient reason to expect
continuation of attacks (with substantialmilitary weapons) fromthe same source4.,
322Sa RnemoManual, GeneralProvisions4 and5,p. 7.
323IraniaMernorial,para.4.21,quotingRobertoAgo,"Addendum to theEight heport onState
Responsibility,Yearbookof the InternationalLaw Commission,1980,Vol.II,PartOne,Doc.
AICN.10 18lADD.5-7,p. 60,para 121.(Hereinafier,"Ago Report.")
3% Oscar Schachter,InternationalLawin Theoïy andPractice,p.154(199 1)
I 4.33 The U.S. actions in this case were proportionatetoIran'sarmcd attxks on U.S.
vessels andto the circurnstancescreated by thoseanacks. Iran'sattacks iuereextremelysenous
in themselves. Iran used deadly weapons that inflicted casualties on the crewsofthe
SeaIsleCityand the USSSamuelB. Robertsandbadly darnaged hth vessels. Only chance,
andthe exertionsand ski11of the crew of the USSSamuelB.Roberts,preventedthe sinking of
1
the ship andsubstantial loss of life. The gravityof these attacks was magnifiedbythe history
ofunlawfulandaggressive Iranian conduct andby Iran'sclear hostility to the continued
operation ofU.S. vessels in the Gulf. The attacksonSea Isle Cityand USSSamuelB.Roberts
were not isolatedevents. They were parts of a recuning pattern of attU.Ss.essels and
their naval escortsthat began with the mining of the Bridgetonon 24 July 1987and that posed
aclear thrcat of further attacks.
4.34 Thus,U.S .uthorities had to identifyproportionate military actionsthat couldhelp
to restorethe safety of U.S.vessels. As the recordshows, U.S.authoritieswnsidered a range
of possible actionsto do sa. Some options wererejected because of wncerns retoted
proportionality,among other factors. Some possibletargets were rejected becausetheir
destructionthreatened an excessive level of casualtiesor of damage to property;.because they threatened expandingthe scope or level of conflictbenveen the United States and
Iran; or for other similarreason~~'~.
4.35 The targetsultimately chosen were installationsusedfor military purposes, whose
destruction helped substantiallyto restore the safety of navigationand proportionateto
Iran'sarmed attacks. TheU.S. uses of forcewere limitedintime, place and objective. Further,
the choice of these targetsgreatly limitedthe risk of collateraldamage. The targets were not
located in ornear populationcenters. Substantial (and successful)efforts were made to further
limit the extent of casualtiesand of damageto non-miiitarytargets; so far as the United States
isaware, there were no Iraniancasualties in these operations. The targets chos--offshore
platfoms with relativelysmall crews -- by their nature limitedthe nsk of Iranian casualties.
U.S. forces wamed Iranianpersonnel on the platforms andallowedthem toevacuate to safety
before the platfoms werefired on. (No similar warningwasgiven tothe crews ofthe
SeaIsle Cifyand the USS Samuel B.Roberts.) Finally, theplatfomis were notcompletely
destroyd. The damageinflicted was consistentwith the U.S .urpose of neutraliting their
military functionsthreateningU.S. vessels.
"5~eesupra paras. 1.81- 1.84,1.113-1.120 CHAPTERVI
THEU.S.ACTIONSWERETIMELY
1.36 Iran contends that the U.S.actions were not self-defensebecause they weretaken
afterthe armed attacks on U.S.vessels. Irancontends that "in the natureof things measures of
defenceagainst an armed attack haveto be undertaken during the ac'tuaatta~k~~~."
4.37 The Couri cannot acceptthis contention. As we have shown,Iran'sposition would
render seIf-defensivemeasures againstattacks at sea by mines or missilesimpossible, for
attacksby such weaponslast but a few seconds, and the initiators ofthe attack maybe many
milesaway. AcceptingIran's positionwould merely encourage anaggressor to adopt such
methods ofattack'l7. Of greater importance,neither the concept oself-defense,nor the
concept of necessity,demands instantresponseto ananned attack. luternational law does not
require that a State choose betweenresorting to arrned force instantlyand withou~reflection, or
sacrificingits right to takeprudent andconsidereddefensive action.
4.38 Instead, the law must accorda State that has been attackedthe oppomuiity to
investigatematters, not leasttoonfirmthat it has indeed been attacked and by whom. This is
especiallytme of attacks at sea using weapons that are hidden, like mines, orthat can be
Iaunchedfrom great distances, likemissiles. In such attacks,the causeof particular darnage
often rnay only be discovered throughcareful investigation.
i
"' Iran'Mernorial,para. 4.32.
327
Dinsteinsupra, p.223. 4.39 Even when the identity of an atiackeris known, it miIl often taketimeto assemble
and instnictthe forcesthat will cany out the response. Time will also be requiredto select
targets whosedestruction will have the necessaryeffect and yet not pose disproportionaterisks
of coilateraldamage and casualties. Requiring instantaneous response could dramatically
increasethe risk ofdisproportionate damage.
4.40 Suchcare and deliberation in the exerciseof self-defense does not impairthe
defensive characterof the actions ultimately taken, although their charactercan be
misconstrued(as Iran seeks to do here). As JudgeHiggins has noted, "[wlhen a stateis not able
to engage immediately in action to defend itself, subsequent action can (wrongly)take on the
328,,
appearanceof reprisals, though it is still action in self-defence.
4.41 As authority for itsposition, Iran'sMemonal again quotes Judge Ago forthe idea
that "armedresistanceto armed attack shouldtakeplace immediately, i.e. whileihe attackis
stillgoingon and not after it has er~ded~'~."Forthe reasons described above, this cannot be the
geneml rule. Moreover, in situations like this, involving a campai@ of unlawful anacks, there
must bethe rightto act in self-defense throughactions generaily aimed at terminatingfiuther
attacks andat restoring security, as by neutralizingthe platforms used to launch attacksor to
identify theirtargets. In such circumstances, Judge Ago indicated a quite different,and far
more appropnate, principle in a sentence closely following that quoted by Iran:
"If, however,the attack in question consisted of a number of successiveacts,the
requirementof the immediacy of th330tif-defensiveaction would have to be looked at in
thelight of those actsas a whole .
328RosalynHiggins, ProblemsandProgress.InternarionalLawmidHow We Use II(1994).p. 241.
329Iran'sMemorial,para. 4.32,quotingAgoReport,p.70,para 122.
3M Ago Report,p. 70,para. 122,Exhibit 161. This is precisely the casehere, where Iran's attackswerepart ofa continuing campai~ of
attacks onU.S.vesselsoperating lawfully in the Gulf.
4.47 Iran also con tend^ tha^ he pre-planning of possible defensive rneasures precludes
thepossibility of self-defense. Again, this cannot be. Modem military organizations regularly
plan for possible future contingencies; for the most part, suchplans arefiled aurayand never
acted upon. Here, as Part 1makes clear,the process of selectingthe platforms as targets for
defensiveaction involveda wide-ranging considerationof options following the attacks onSeo
Isle Ci@and USSSamuelB.Roberts, includingoptions previously identified by military
planners. Indeed,the needfor such a carefùl assessmentofpossiblemilitary actionshelps to
show why immediateresponse to armed attack may notbe appropriate.
4.43 Iran's also invokesSecretary of State Webster'snoted discussion of self-defense in
the dispute between the United States and Great Britainregarding TheCaroline as dernanding
instant action in self-dcfense,but in doing so takes Webster'sargumentquiteout of its
context3''. Webster'sanalysis establishedthe requirementsof necessity and proportionality as
cornerstones of the legaldoctrine of self-defense. However,it isnot correct to invoke his
'3'Iran'sMernorial,para.4.36.
332
Onthe Cmolinedispute,seeMyresMcDougalandFlorentin0Feliciano.TheInternarionullawof
War, p. 217(1994) ("thestandardofrequired necessithasbeenhabituallycastin language soabstractly
restrictiveasalmost,ifreaditerally,to imposeparalysis. Suchistheclear importoftheclassical
perorationofSecretaiyofState Webster intheCarolinecase ....");JohnBasset Moore, II Digestof
InternationalLaw,pp 409-414 (1906);RobertJennings,"TheCarolineandMcLeodCases," 32 Am. J.
Inr'lh,? p. 82 (1938);MartinRogoffandEdwardCollins,"TheCarolineIncidentandthe
DevelopmentofInternationalLaw," 16 BrooklynJ.Int'lLaw, p.493(1990).argumentto contend that each act of self-defense must be instant,instinctiveandwithout
refl~ction~~~.
4.44 As many writers have noted, "[tlhe famous Caroline case... underscores the
limitations imposed on anticipatory defense3j4." The Caroline wastied to a dock in Schlosser,
New York when British forces crossedthe Niagara River at night, enteredthe United States,
seizedthe ship, set her aîïre, and set her adrifi over Niagara Falls. TheBritish forceswere not
responding to a past attack. Instead, they anticipatedthe vessei'spossibleuseto support a
future one. It was in these specialcircumstances, involvingthe anticipationof a future attack,
tharWebster argued for a very high standard of necessity --that the need to use force be
335 9,
"instant,overwhelming, and leaving no choice of means, and no momentfor deliberation .
Whetheror not these ringing words accuratelyexpress contemporaryinternationallaw with
respect to action taken in anticipation of a future attack, they do not apply wherean attack has
alreadytakenplace. Such an attack createsa need andjustification for considered, proportional
actio asnecessary to restorethe securîty ofthe victim.
332 C$ Iran'sMernorial,para 4.18.
" Oscar Schachter,InternationalLawinTheoryandPractice,p. 151 (1991.)Seealso Brownlie, supra,
pp.256-60; Higgins,supra,p.242 andHiggins,"nie AttitudeofStates Towards the International
Regulation ofthe Useof Force,"in TheCurrentLegalRegulationofthe O3eofForce, pp.442-44 (A.
Cassese,ed.,1986); McDougal and Felicianosupra, p.23 1;Rogoffand Collins,supra, p. 506.
335nie textof Webster'sletterof24April1841isquotedbyRobertJemings, supra,at52Am.J Int '1
imv, p.89. CHAPTER VI1
THE PLATFORMS WERELAWFULTARGETS,AND U.S . CTIONS
OTHERWISESATISFIEDALLAPPLICABLEREQUIREMENTSOF
THE LAW OF ARMEDCONFLICT
4.45 Theevidence plainly shows that theRostam, Sim and Sassanplatforms were
legitimatemilitarytargets under the law of aimedconfiict. Whateverthecircumstancesof their
original construction,they were being used forimportantarypurposesin supportof Iran's
attacks uponnon-belligerentvessels, includingU.S. vessels. They hadcornrnand,control,
communicationsand intelligencenctions. Aswas dernonstratedin Pa1of thisCounter-
Memorial,the platforms were usedinter alias stagingpoints for helicopterand boatattacks;
as partof Iran'snavalcommunications system;and as platforms to identifi andtrack targetsfor
Iranianattacks.
4.46The U.S. attacks on the platformssatisfiedal1otherapplicable requirementsof the
law of amed conflict. The rnost importantof these were surnmabytheCoun in itrecent
advisoy opinionregarding thThreat or Use ofNuclearWeapons:
"The cardinalprinciples contained in thetexts constitutingthe fabnc ofhumanitarian law
arethe following. The first is airnedattheprotection of thecivilian populationand
cidian objects and establishes the distinction betweencombatantsand non-combatants;
Statesmust never make civiliansthe objectof attacks and must consequentlynwer use
weaponsthat are incapable of distinguishingbetween civilian and militarytargets.
Accordingto the secondprinciple, it isprohibitedto cause unnecessarysuffenng to
cornbatants:it is accordingly prohibitedto use weapons causing thhm suor
uselesslyaggravatingtheirufferin~~~~."
4.47 As we have shown,these obligationswere fully satisfiedin the U.S.operations
againstthe platfoms. Civilians were not made theobject of attack;indeed,the United States
336
Legaliyofthe Threator UseofNuclear Weapons,Advisoiy Opinion,I.C.J.Reportspara78.soughtto avoid Iraniancasualties, civilian and military. Advance nowaçe given of the
intended U.S action,and the platforms' crews were giventhe oppominity to evacuate to safety
if they chose to do so.ny crew members did evacuatetheplatforms before they were
destroyed. While Iranalleges that there were casualtiesrelatedto these operaiions, the United
Stateshas no informationregarding any casualties. nie meansemployedby the United States,
generally naval gunfireand demolitions placed by boardingparties, involiredIawfulweapons
not posing the nsk of unlawful suffering. The extent of destruction was limited to that required
to attain the militaryobjective sought, that is, to end theplatforms' usefor military purposes. CHAPTER VI11
THE U.S.MEASURESWERE NOT REPRISALS
4.48 As we have showninthis Counter-Memonal, the UnitedStatesacted in self-defense
to restore the security of U.S. vesselsoperating in the Gulf, includingthose involved in
OperationEarnest Will. The facilitiesdestroyed were used byLra nora range of military
purposes related to its attacks onU.S. vessels. These actions wereproportionate, and were
deliberatelylimited in scale. TheUnited Statesacted shortly afterIran'sattacks. Itsactions
involved militarytargets and were carefullyexecutedto minimizedarnageto life and other
risks.
4.49 Iran, persisting in itsdenialsthat it attacked U.S. vesselsandtbat its platforms had
anynaval role, attempts to portraytheseU.S. actions as illegalreprisals. Indeed, counsel for
Irancontended during the September1996oral proceedings concemingjurisdiction that "the
USattackshad al1the hallmarksof economicretaliation againçtIran,"and were nottaken for
reasonsof self-defen~e~~ '
4.50 These claims cannotstand. Part1presented extensive evidenceshowingthe
platforms'military roles. Theyperformed command, control, communicationsand intelligence
functionsrelated to Iran'sattackson U.S. and other neutral vessels,and provided a staging point
forsuch attacks. Statements by seniorU.S. cornmandersdetailedthe military considerations
thatled to selection of the platfoms asappropnate targets for defensi~reaction. The evidence
showsconvincinglythat these actionswere measures taken in self-defense,and notreprisals.
337
C/R 96/14of 19September 1996,p.38. 5.51 As Iran's Memoriai acknowledges,it is dificult to articulate or apply an effective
distinctionbetween self-defenseand reprisals338.Iran contends that the key tothisdistinction
lies"in the aimor purpose of the action taken;" actions taken for a punitive ratherthan
defensivepurpose are prohibited repnsals339.This is a fiequently expressed view of the
5.52 Iran'sMemoriai offers a senes of "charactenstics" supposed to showthat U.S.
actionshada prohibited punitive purpose341.The first is timing, which we bavediscussed at
length As wehave shown, international law does not require that force beused inself-defense
instantly,instinctively and without due attentionto the consequences. Particularlyin casesof
armed attacksby weapons like missiles or mines, there must bean appropriate opportunity to
confirmtheattacker'sidentify, and then to assess appropriate measutes to restoresecurity inthe
face of suchattacks, in a manner that doesnot involve disproportionate collateraldamage.
5.53 Iran'sother criteria largely involveassessmentof disputed facts,particularly
regardingIran's useof its offshorc platforms as part of its naval command,control,
communicationsand intelligence systems in attacking neutral vessels. As to these matters, the
Court is nowwell aware of the U.S.position. Their resolution will ultimately dependupon the
Court'sassessmentof the facts,which offer a surer foundation for legal analysisthandoes
33sIran's Memorialp,ara.4.30.
339Ibid.
See,e.g.,1Oppenheim S InternationalLaw, p.419 n. 12 (9thEd., Sir RobertJemingsandSir
Arthur Wattse,ds.) (London 1992a)nd authoritiestherecited.
Iran'sMemonal,para.4.31. speculation abouthigh officials' motivesor lay authors'or humed officials'characterizationsof
evenb. In its reportsto the Securîty Council filedpursuantto Article 51of the Charter,the
I United States expressedits view that these actions weretaken in self-defense. Other statements
in which non-lawyer officials try to describe events to public and press do not have suchlegal
l
5.54 ThisCourt also has made clear that the presenceof additional motives on thepart of
l
1 some actorsdo not impair the right to act in self-defense,where the legal requirementsfor itare
othemise present. In Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. UnitedStates ofAmerica), the Courtrejectedthe contentionthat improper
motives would precludean otherwise valid claim of self-defense:
"Nicaragua claims that the references made bythe United States to thejustification of
collective self-defence are merely "pretexts" forthetivities of the United States. Ithas
allegedthat thetrue motive forthe conduct of the United States i... to impose itswill
uponNicaraguaand force it to comply with UnitedStates demands. In the Court's view,
however, if. ..the otherappropriate conditionsaremet, collective self-defence could be
legally invokedby the United States, even thoughthere rnay bethe possibility ofan
additional motive, one perhaps even more decisivefor theUnited States, drawnhm the
politicalorientation ofthe presenticaraguan Government. The existence ofan
additional motive, other than that officially proclaimedby the United States, couldnot
deprive the latter of its right to resort to collective ~elf-defence~~~".
342
Ina similarsituation,solearbihatorPierreLaLivedeclinedtoheatas legallydeterminativa
broadcaststaternenby thePresidentof Pakistantothe effectthatPaliistanandIndiawereatwar,onthe
groundthat referenceto "war"shouldnotbeunderstood ina legalortechnicalsense.DalmiaCement
Ltd.v.NationalBankofpakistan, 67 I.L.Rp. 618(1984).
34Militav andParamilita~Activities inandagainst Nicaragua
(iVicaragüav UnitedStatesofAmerica),Merits,Judgment,1C.J Reports1986, para.127, 4.55 Thus, the U.S. measures atissue in this case werevalid measures in self-defense,
not reprisals.344
344
This case does not raise the issueof "belligerent reprisal--that is,actions by onParty to an
armed conflict that would othenviseviolate the rules of warfare,butwhichare permissible forthe
limited purpose of cornpellinganotherparty to the conflict tcease itsown violations. Here, there was
nothing about the U.S.actionsthatwould violate the mles of warfare.If the Court were, however, to
find thatU.S. forces had violatedthe mles of armed conflict,the doctrineof klligerent reprisa1would
bean alternative legaljustification for U.S. actions. CHAPTER IX
THE 1955TREATY DOES NOTLIMITACTIONSTAKENINSELF-DEFENSE
4.58 ThisPart has shown how the law of self-defenseapplies in the circumstances of this
case.The 1955Treaty between the United States and the Islamic Republic oIran does not in
any way redct or impair the nght of the Parties to act in self-defense in accordance with the
principles discussed here.
4.59 Some treaties can limit or channel the exercise of the rofselfdefense. "[Wle
now fmd rnany arrangements, bilateral and multilateral, that inirolvereciprocal restraints on
national miiitary activity. They extend to kinds of weapons, deploqment of forces, military
exerciscs, testing and in some cases size of force,However, treaties that limitherîght of
self-defense affect matters of fundamental importance for tsecurityor eventhe survival of
States. States accept such limitationsdelibcratcly, expliciand,with great care. They are not
entered into unintentionally or by accident.
4.60 The 1955Treaty is not a treaty limiting the exercise of thehtof self-defense. It
does not control the use of arms or regulate the conduct of military operainoself-defense.
None of its provisions can plausiblbe read to do so. The Treaty'plainwords make clear that
it isnot one of the special class of treaties which the partiestonl'mitthe scope of possible
actionsin self-defense.
NS OscarSchachter,"Self-Defenseandthe Ruleof Law," 83AmericunJournulof Int? Law,p. 269
(1989). IllustrationsofchtreatiesincludetheTreatyonNon-ProliferationofNuclearWeapons, 1July
1968,21UST483, 729 UNTS161;the bilateral US.-Soviet Treatyon iheLimitationofAnti-Ballistic
MissileSystems,26 May 1972,23UST3435,944 UNTS 13;andtheU.S.-SovietTreatyon the
Elhination ofTheir Intermediate-RangandShorter-RangeMissiles(TheINFTreaty),reprinted in 27
1ni. hgul Materials 84(1988). 4.61 This Courtrightly recognized in itsrccent advisory opinion regarding the
Legaliw of the Threator Use of Nuclear Weapons that treaties such as this, designed for
conditionsof peace,cannot be interpreted to depnve a State of its nght to selfdefense. The
Court there examined the contention that treatiesfor the protection of the environment
prohibited the use of nuclear weapons. The Courtrejectedthis claim, empIoyingreasoningthat
applies with equal forcehere:
"The Courtdoes not consider that the treaties in question could have been intendedto
deprive a State of the exercise of its nght of self-defence under international law because
of its obligationsto protect the environment 346.,
Neither wasthis treaty intended to deprive the United States of its right to self-defensein the
face of armed attack. Nothing in its language orhistory, or in the practice ofthe parties,
indicates that it limits or supersedesthe fundamental,inherent nght of self-defcnsein response
to armed attack
346
LegaliryoftheThreator UseofNuclearWeapons,Advi.roïyOpinion.1C.J Reports 1996, para. 30.
155 PART V
THECOURT SHOULD DENY THERELIEFSOUGHTBY
IRANBECAUSEOF ITS OWNILLEGAL CONDUCT
5.01 As is shown iPar 1ofthis Counter-Memonai, Irancrtmedon a
widespread and deliberate campaignof deadly attacks against neutralcommercial
vesselsbound to and from ports of other States in the Gulf. Iranmerchant
vessels from more than 30 countriesincluding the United States. Asdl be show in
the U.S.counter-claim in the nPartIran's conductviolatedthe 1955Treaty. These
anacks also violated other vitalpnnciples of international lawprohibiting such uses of
force.
5.02 Notwithstanding its ownmanifestly illegal armedattacksagainst neutral
shipping and neutral tradc, Iranseeks inthis case to invokca treaty designed to regulate
friendlyrelations between States. It asks this Courtto adjudgethat theUnited States,
through its defensiveactions againstIran's offshoreplatfoms, violabxia provision of
the1955Treaty calling for "freedomof navigation and commerce"between the
territories of Iran and the United States.he circurnstances,theUnited States
submitsthat Iran'scynical and selectivereliance upon this treaty,and its effort to enlist
the Court forthese ends, are inconsistent withthe pnnciple of goodfaith which is a key
elementof the interpretation andapplication of treaties.
5.03 The Court shouldrejectIran'sclaim in this case and honor'thebasic
principle that a tribunal should "refiis[e]relief to a plaintiff whoseconductin regard to 347,,,
the subject-rnatter of the litigation has been improper. Iranshould dot k ableto
invoke selectively the Court's authorittopromote its oun interests andat ihesame
time expect the Court to ignore Iran's serious breaches of international law which gave
rise to the measuresof which it now complains.
5.04 The principle thata party in litigation may not attempt treap advantages
from its own wrong --nullus commodum capere de sua injuriapropria --iswell-
established in international la^^^ ^umerous arbitraldecisions reflectthe
unwillingness of international tribunals to grant relitoparties whose own conduct
with respect tothe underlying dispute was ~ron~ful~~~.This principle that a party that
3d7Diversionof Waterfrom the Meuse,Judgment, 1937,P.C.I.J, Series MB, Ab. 70, p. 77
(SeparateOpinionof Judge Hudson) (quoting 13Halsbury'sLaws ofEnglmd. (2nded. 1934),p.
87)-
318See B. Cheng,General PrinciplesofLaw asApplied byInfernarionalCourrsundTribunuls,
pp. 149-58(reprinted. 1987). The PermanentCourtof Justice applied the principlethata State
maynot profit fromwrongdoing in the contextof treaty relations. Factoyut Chonow,
~urisdiction,JzidgmentNo. 8,1927,P.C.I.J.,SeriesA, no.9,p.31;Jurisdictiofioftk Courts of
Danzig,Advisoiy Opinion, 1928,P.C.I.J.,SeriesB, No. 15.pp.26-7; see also Inferpretationof
Peace Treotieswith Bulguria,HungmyandRomuniu,Second ph as^,A&isov Opinion,I.C.J.
Reports 1950,p. 244 (Judge Read dissenting)(therecan be no doubt that, as settledin the
ChorzowFactoryCase, a State should not be permitted"to profit fromitownwrong"in any
judicial proceeding).ee also Cheng, pp. 149-50;Gerald Fimaurice, 'The GeneralPrinciples
of InternationalLawConsideredfromthe Standpointof the Rule of Law," 92Recueildes Cours,
pp. 117-19(1957); Jenks, TheProspects ofInternationalAdjdication, p. 413(1961).
349See, e.g., Tippetts,Abbett, McCarthy,Sfrattonv. TAM-AFFA, 6 Iran-U.S.C.T.R.,pp. 219,
228(1984)("It isa well recognized principle in manymunicipal systems and ininternationallaw
that no one shouldbe allowed to reap advantagesm their own wrong,~Vullus Commodum
CapereDeSuaInjuria Propria.") See also TheMaryLowell Case (1879), 3.MooreIntl Arb.,
pp. 2772,2776 (upholdingdismissalof a claimwherean allegedly wrongfullyseizedvesse1was
engagedin illegalconduct; "this illegalitywas of sucha character asto cany with it forfeitureof
the protection ofthe United States flag");MontijoCase (1875),2 MooreInrlArb., pp.1421,
1437 (''Noonecan be allowed to take advantageof his ownw~ong"); TheMedeaand
The GoodReturn Cases (1866), 3MooreInt'lArb., pp. 2730,2739 (noting, inrejectinga claim
wherethe claimant engaged in piracy, that "[a] pariywho âfor redress mustpresenthimself
with clean hands"). has engaged in wrongful conduct loses the nght to demandjudicial relief is also
recognized in the writings of publicists350.
5.05 SirGerald Fitzmaurice nghtly indicated thata Statemay be debarred from
complaining of actions taken by another States, when itprovoked those actions through
itsO-n uniawful conduct:
"[A] Statewhich is guilty of illegal conduct may bedepnved of the necessary
locus standi injudiciofor complaining of correspondingillegalities on the part of
other States,speciallyif these were consequential onor were embarked uponin
order to counter its own illegali--in short wereprovoked by it. In some cases,
thepnnciple of legitimaterepnsals will remove anyaspects of illegality from
such counter-action. But even where the acts remainper se illegal, it may be that
the State suffenng from it is deprived by its own pnor illegaliiy ofjuridical
grounds of c~m~laint~~'."
As we have shown in thisCounter-Memorial,the U.S. actions against the oilplatforms
were lamful. But in any case, they were only necessarybecauseof Iran's campaign of
unlawfularmed attacksagainst U.S. and other neutral ships.
5.06 Iran itselfhas invoked such principles. In severalcases &fore theIm-
United States ClaimsTribunal, Iran has pressed to haveclaimsagainst it disrnissed
because of alleged deficiencies in the conduct of the claimant. In its pleadings, Iran has
invoked and descnbed the doctrine as follows:
"The claim shouldbe dismissed under the universal,equitable doctrine of 'clean
hands.' The doctrine,which is supported by a vast anddiverse body of
3m
See. e.g.,Cheng,pp. 149-58;Fitzmaurice,pp. 117-19;E.Borchard, Diplornatic
ProtectionofCitizensAbroad, p. 713(1915) ("Itisanestablishedmaximofal1law,
municipalandinternational,thatnoonecanprofitbyhisownwon& and thaa plaintiff ora
claimantmustcorneinto courtwithcleanhands.");C.Rossi, Equiy undinfernarionaI Lnw, pp.
164-65 (1993)(theprincipleof "clean hands"isa "generalprinciplof law").
'" Fiîzmaurice,p. 119. internationallegal literanue, Statepracticeand internationalcase-Iaw,Statesthat
anybodywishing to bring aclaimbeforeanint352,,ionalcourt,musthaveacted
properlyand correctlypriorto theclaim. .. .
5.07 As therecordmakesclear,Iran,in view of itswidespreadunlawfulattacks
on neutralcommerceandnavigation,cannotpass its oun testof having"acted properly
andcorrectlypnor to theclaim." Accordingly,Iran ispreeluded hrn complainingthat
theUnitedStateshas not fulfilleditsobligationsunderthe Treaty whenitsown illegal
wnduct gavense to the rneasuresof whichit now cornplains. The Court accordingly
shouldreject Iran'sclairns.
352Ai-yehv.Iran, CasesNos. 842,843 & 844,Respondent'sHearing Mernorialand Written
Evidence,Vol. III, Doc. 80ExhibitC,p. 44 (23~ar. 1993)(1ran-Ü.s. ClaimsTribunal),Exhibit
162. PART VI
COUNTER-CLAIM
6.01 In light of the Court'sdecision onjurisdiction inthcase, the United Statessubmits
with itCounter-Memonal thiscounter-claim, as permitted underRule 80 of the Rules of the
Court. The counter-claim isbasedon actions by Iran inthe PersianGulf during 1987-88that
created extremely dangerousconditions for shipping, and therebyviolatedArticle X of the 1955
Treaty. Iran'sactionsresulted insignificant damage to U.S. commercialand military vessels
and, as explained previously,ultimately led the United Statestotake lawful, defensive mesures
against the offshoreplatfoms Iranused to support its attacks on shipping. This counter-claim is
within thejurisdiction of the Courtand is directly connected withthesubject matter ofIran's
claim.
6.02 The United Statesasks theCourt to find that Iran violatedits obligations under the
1955Treatyandthat, accordingly, Iran isunder an obligation to rnakefidlreparation to the
United States fortheseviolationsand for the injury thus caused,in a form and amount to be
deterinined by the Courtat a subsequentstage of the proceedings. AsIran hasdone with respect +
to its claim, the United Statesreserves the nght to introduce andpresenttothe Court in due
course a detailed evaluationof the reparation owed by Iran. CHA.PTER1
FACTUALBACKGR,OUND
6.03 Much of the informationrelevanttothe counter-claimhasalreadybeenrecounted in
establishingthe U.S. defenseto Iran'sclaim. 1particuiar,the United Stateshasshow how the
war betweenIran and Iraq extendedintothe Giilfin 1984withthe TankerRraraw r henIraq
initiatedattackson tankersusing Iran'soilterminaiat KhargIsland3". LackingcomparableIraqi
targetswhichcouid be easily attacked, Iran choseto retaiiateagainstneutraicommercialvessels
going toand fromthe ports of Gulf CooperationCouncilmemberStates,particularlySaudi
ArabiaandKuwait. To that end, Iranconducted morethan 200attacksoutsidethe wartime
exclusionzoneit had establishedagainstvesselsfrom 31differentStates.includingat least seven
U.S .essel~~~~.
6.04 Theseattacks took many forms. Iranian gunboats equippedwithmachineguns,
racket launchers,and smail armsconductedunl~rovokedattacks on vesselsofvariousnations,
causingextensivedamage andthe deathsofnuinerousmerchant~earnen~~' I.ranianfixed-wing
aircraftandhelicoptersstagednumerousattacksagainstmerchantshipsin thecentraland
southem~ulf~'~.Iran without noticeseededmines on the hi& seas in internationalshipping
chameIs, andeven in Kuwaiti territorialwaters,to threatenand darnagemerchantves~els~~'.
353See.generally,supra,paras.1-1.O1-1.1.08.
354See. generally,supraparas.1.O2- 1.104.
355See.generally,supra,paras.1.O4- 1.06.
Ibid.
357See. generally. suprparas1.04,1.19- 1.47,1.105-1.112.Indeed, as stated above,the United States seizeanIranian ship,IranAjr,as it wasplanting
mines in international waters of t~~18~'. Fwther, Iran established sites hm which it
launched missilesto dismpt maritime commerce3s9.
6.05 These Iranian attacks severely dismpted maritime commerce inthe Gulf. They
createdconditions that were extremely dangerous for al1merchant vessels, including thoseof the
United States. Iran did notlimit its attacks to vesselscarrurarmaterial for Iraq,norvessels
that resistedranianeffortsto visit and search. Indeed,Iran'spnmq objective was simplyto
engage in a form of maritime terrorism,resumably in an effortto coerceother Statesto take
sides against Iraq.
6.06 After a plea for help from several Gulf Statesaffected by Iran'sattacksm,the
Security Council adoptedResolution 552of June 1, 1984,which condernned theattacksand
demmded thatthey cesse? Nevertheless, the attackscontinued unabated. The UnitedStates
was extrernely concernedabout the Iranian attacks, particularlyin light of the large volumeof
U.S. maritime trade passing through the Gulf. Most ofthis trawas with States other than Iran,
but there was asignificantamount of trade between theUnited Statesand Iran. For instance, in
1987:Iran exported some $1.7 billion in goods tothe United Statesje, while the United States
See supra, paras.1.4- 1.47.
359Seesupra, paras. 1.0, .5- 1.78.
xu Seesupra, para.1.09.
"' Seesupra, para 1.10.
362See.e.g.,U.SG.eneralImports,World Area and Counîryof Originby ScheduIeA Commodity
Groupings,1987DecemberandAnnual549(1988), Exhibit139.exported to Iran goods valuedatapproximately $54 million3". Until November 1987,the
rnajorityof Iranian exports to the United States consistedcmde oil and other petroleum
p~oducts~~b, ut significant quantities of other commodities were also exported from Iran to the
United States"'. Further, while Iranian exports to the United States ceaafterthe issuance of
U.S. Executive Order 12613 on October 29, 1987366e ,xportshm the United States to Iran
continued. Indeed, in 1988,at the height of OperatioEamest Will, thevalue of United States
exports to Iran increase--by nearly $20 million-- to some $73 million'".
6.07 Most goods transported between the United States and Iran were canied on ships
tmveling through the Persian Gulf. Of the approximately $54 million in goods exported fkomthe
United States to Iran in 1987, $35,215,695 in goods wereransported through the Persian Gulf to
Iran byships3". In 1988, of the approximatelyS73 million ingoods exported from the United
363
See InternationalMonctaryFund,Direction of lrade Stafisiics Yearhook(l.991),p. 226,Exhibit 163.
See U.S.GeneralImpons,WorldAreaandCouiltryof OriginbySchedule A CornrncdityGroupings,
1987Decemberand Annual(1988), p. 549,Exhibii:139.
MS Accordingto tradestatisticscompiledbythe U.S.BureauoftheCensus,theUnited States imported
some$92millioninmanufacturedgoods,primarily textiles,andsome$12millioninfood productsin
1987. Ibid.
366ExecutiveOrder 12613,52Fed.Reg.41940(Oct.29, 1987),Exhibit138. Tradestatisticsindicate
thatsome$9million ofIranianexports,primarilyn~anufacturedtextileproducts,shippedpriorto the
impositionof sanctionsweredeliveredto the UnitedStatesin 1988.eeU.S.General Imports,World
Area and Countryor Originby ScheduleA Commodity Groupings,1988ûecemberand Annual(1989),
p.652,Exhibit 140. Asdiscussedearlier,noIranianoil productsweredirectlyexportedto the United
Statesin 1988.See supra, para.2.2- 2.27.
367See InternationalMonetaryFund Direction ofimradeStatistics Yearbook p. 226,Exhibit 163.
U.S.GeneralExports: World Area andCountryofOriginby Schedule E CommodityGroupings,
1987DecemberandAnnualReport(1988),p. 632, Exhibit164. States to Iran, $62,797,701 in goods were transported through the Persian Gulfto Iran by shipP9.
Similarly, during this period, ships traveling through the Persian Gulf were the principal mode of
carriage of goods from Iran to the United States. In 1987, sorne$1.4 billion of goods
(approximately 12 million tons) were transported to the United States by shipsfm. Of the
approximately $9 million in Iranian exports delivered to the United States in 1988, some$3
million were transported to the United States by ships'".
6.08 Reflecting its concem with the effect on this maritime trade of Iran's attacksand
mining in the Gulf, in 1987 the United States sent a nurnber of communications to Iran through
the Governrnent of Switzerland stating that Iran's actions were dangerous and cautioning Iran
abour actions against U.S. ve~sels'~. Nevertheless, Iran's anacks continued, and ultirnately
I
I resulted inseveredarnage to several vessels of U.S.flag or owned by U.S. persons. None of
l
these vessels was bound to or frorn Iraqi ports or carried Irwar materials, nor hadany been
requested by lranian forces to subrnit to visit and search. Iran's attacks incluthe following:
1. Mine aitack on Bridgeton (24 July 1987). As described ab~ve'~.on 24July 1987 the
U.S.-flagBridgeronstnick an Iranian mine in an intemational shipping chanriel approximately 18
369U.S.General Exports:WorldAreaandCountryby ScheduleECommodityGroupings,1988
DecemberandAnnualReport(l990), p. 789,Exhibit165.
370
U.S.GeneralImports: WorldAreaand CountryofOriginby ScheduleA CommodityGrouping,
1987December andAnnualReport(1988),p. 549,Exhibit139. Acwrding to this statisticalsurvey,the
majority,interms ofdollar valueandtonnage,of importsto the UnitedStateshm Iranconsistedof
mineralfuelsand relatedproducts.Ibid.
371
U.S.General Imports,WorldAreaandCountryofOriginby Schdule A CommodityGroupings,
1988Decemberanddual Report(1989),p.652,Exhibit140.
3R Seesupra, paras.1.22, 1.24, 1.39, 1.47.
373
Seesupra,paras.1.25 -1.31.mutical miles southwest oftheIranian island, FarsiThe mine blew a large whole in the hull,
flooding several compartmentsn4.
2. Mine attack on TexacoCaribbean (1 O Auoust 1982). On 10 August 1987the US.-
owned Texaco Caribbean struck a mine at the :KhorFakkan anchorage offFujairah, blowing a
four-meter hole in the ship's hull, and causing oil to Ieak into the ~ate?'~. After off-loading its
cargo to another vessel, TexacoCaribbean made its way to Bahrain for repairs. Particular note
must be paid to the fact that TexacoCaribbean was canying iranian cmde oil; which it had
loaded atHormuz Island; the vessel was visiting at Fujairah before its expected voyage to
R~tterdam"~. Iran's actsof mining narrow waters and anchorages to terrorize maritime shipping
with other Gulf States inescapably also darnaged and inhibited twithIran itself.
3. Missile attack on Seo Isle Citv Qlber 1987).At about 6 a.m. local tirne on 16
Octokr 1987, an lranian missile fired from the Faw area hitU.S.-flagSen IsleCiw, which
waç proceeding from its anchoragetothe oil loading terminaatKuwait's Mina al-Ahmadi
port377.The missile hit the accommodations quarters, injursweral searnen and permanently
biindingthe U.S. captain. Themissile set Sea Isle Cityfm and caused extensive damage.
374See Lloyd's MaritimeInformationService,VesselsDamagedin theGu&p. 74,Exhibit9; Sreedhar
& K. Kaul,TankerWar:AspectofIraq-Iran War1980-8(1989),p. 120(hereafter"Sreedhar & Kaul"),
Exhibit80; M. Palmer,Guardiansofthe Guw AI.IistorofAmericas ExpandingRoleIn thePersian
Wf; 1833-1992,(1992),p. 131(hereafter"Palmer"),Exhibit 166; "Afterthe Blasf JoumeyContinues,"
A!I: Times,July25, 1987,Exhibit167; ReportoftheSecretary-Generalin Pursuanceof Security
CouncilResolution552(1987),UnitedNations DocumentS/16877/Add.5,p. 9 (hereafter"U.N.
DocumentSI16877lAdd.5")(1987),Exhibit 168.
375 Seesupra,paras. 1.3- 1.36;seealso U.N.DocumentSl16877tAdd.5,p. 9,Exhibit 168.
'" See,generally, StatementofGeneral andParticularDamageandP and 1Claim perTexaco
Cmibbean, Exhibit 169.
"' See supra, paras. 1-1.78. 4. Gunboat on hcv (15 Novernber 1987). On 15 Novernber 1987'diree lranian
gunboats attacked and damaged the U.S.-owned oil tankeLucy near theSbait ofho mi^^'^.
Lucy,%-hichwas en route to the United Arab Emirates, lost power temporarily due to engine
room damage, but after emergency repairs made her way to Dubai for permanent repairs.
5.Gunboat attack on Esso Free-~ort(16November 19871. On 16November 1987
Iranian gunhats attacked and severely damaged the US.-owned oil tankeEssoFreeport near
the Strait of Hormuz as it was departing the Gulf watcargo of Saudi oilln. LikLucy the day
before,EssoFreeport headed for Dubai forrepairs.
6. F g 1988). The US.-ownd bulk carrier
Diane, en route frorn Bahrain and the United Arab Emirates for Japan, masartacked by an
Iranian frigaieand Iranian gunboats o7 February 1988, setting heronfirand causing extensive
damage to ber hull, decks, and equiprnent. After emergency repaiDiane proceeded toFujairah
for permanent repair~~'~.
7. Mine B.Roberts (14 April 1988).As previously descfibed3",
on 14 Apnl 1988, while retuming to Bahrain after escorting a convoy U.S.flag merchant
vessels, the U.S. warshiUSSSamuelB.Roberts srnick a mine near thShah Allum Shoal. Ten
378
See Statementof GeneralAnd PariicularAverageon MotorVesselLucy(RocketAtîack -November
15th,1987):Exhibit 170;Lloyd'sMaritime InformationServiceVesselsDamaged in theGulf p. 89,
Exhibit9; U.N.DocumentSl16877lAdd.5,p. 15,Exhibit 168.
379See Lloyd's MaritimeInformationServiceVesselsDamaged intheGulj;p.90,Exhibit9;Sreedhar
& Kaul,p. 125,Exhibit80; U.N.DocumentSl16877lAdd.5,p. 15,Exhibit 168.
380
Statementof Generaland ParticularAverageonMotorVessel Diane (AnackedbyIranianGun Boats
-February7, 1988),Exhibit 171.
38'Seesupra,paras. 1.10- 1.112.U.S. sailors were injured. So severely damagedthat it counotcontinueunderits ownpower,
USS Samuel B. Robertshadto betowed to Dubai forpreliminaiyrepairs,and thentakento the
United States for final repairs,a processthat tooktwelvemonths.
6.09 Thus, Iran'sactionsresulted in extremelydangerousconditionsfor al1vessels
operating in the Gulf, includinga number of U.S. vessels whichsuflered severepropertydamage
and injury to theircrews. The United States siibmitsthatWs actions evisceratedkey rightsof
U.S. vessels underArticleX of the 1955Treatyto cometo or to pas throughiranianports,
places, and watersand tocarryproducts into andthroughtheGulf. Moreover,Iran'sactionswere
totally inconsistentwithitsobligationto provitlefriendlytreatmentand assistanceto U.S.
vessels. CHAPTERII
JUIUSDICTION ANDADMISSIBILITYOF THE COUNTER-CLAIM
6.10 Jurisdictionover this counter-claimis based on Article36(1) of the Statuteof the
Court,as read in conjunctionwithArticleXXI(2)of the 1955Treaty. As the Courtis well
aware,ArticleXXl(2) provides:
"Any disputebetweenthe HighContractingPartiesasto theinterpretationor
applicationof thepresent Treaty,not satisfactorilyby diplomacy,shall
besubmittedto the InternationalCourtof Justice,unlesstheHigh Contracting
I Parties agreeto settlementby some otherpacificmeans."
In its decision onjuri~diction~'~t,he Court rejected theU.S. viewthatmilitaryactions areoutside
l
the scope ofthe 1955Treaty. Inlightof that decision,the UnitedStatessubrnitsthat Iran's
l
actionsin the Persian Gulf in 1987-88againstU.S. vesselsviolatedIm's obligationsunder
l
AriiclX of the 1955Treaty. Followingthe Court'sDecember1996Judgment,the United
l States requestedthat the Govcrnmentof Iran enter into negotiationsforthe paymentof
I
compensation to the United StatesfordamagesincurredfromIr'stions.onthe grounds that
theyviolated ArticleX ofthe 1955Treaty. The GovernmentofIran,however,hasnot agreedto
l
enter intosuchnegotiations. Consequently,thereexists a disputebemeen the Partiesconcerning
l the interpretationor applicationofthe 1955Treatythat has notbeen satisfactorilyadjusted by
1
diplomacyand thereforeis withinthejurisdiction of this Court.
!
I 6.11 The factsand lawuponwhichthe United Statesreliesindefendingagainst Iran's
i
! claim andthe factsand lawupon whichthe United Statesreliesinpresentingthis counter-claim
I
382Oil Plarforms(IslamicRepublicofIranv.UnitedStates ofAmerica)(PreIiminq Objection), para.
55(2).are intimatelyconnected. Iran has alleged that the United States violated X(1)cof the
1955 Treaty. The U.S d.efense includcs, arnongother things, showing that Iranengaged in
extensiveeffortstodismpt maritime commerce in the Gulf by laying mines and attacking
commercialandnon-commercialvessels of Statesnot involved in theIran-Iraqconflict. Those
Iranianeffortsincluded armed attackson U.S.vessels, which led to a lawfulexercise of self-
defenseby the United States against the Iranianoil platfins1987-g8.
6.12 In passing upon whether Iran'sclaim or the U.S. claim of selfdefense is well-
founded,the Court by necessity will pass upon~hesame factsthat underlie the U.S.counter-
claim. Further,in delineatingthe scopeof ArticXe of the 1955Treaty and considering its
applicabilityto military attacks,the Courtwill ~iddressmanyof the same legalissues at stake in
the U.S.counter-claim. In short, an assessrnentof the validiryof Iran'sdemand forreparation
"restslargely"on the same factual and legalissiies at stake in the U.S. claimfor reparation for
Iran'sattackson U.S. vessels in the ~ulf3~~.ASsuch, under the des andjurisprudence of the
Co* theU.S.counterclairn is properly bcfore the Court.
'a3SeeAsylum case,LC.J.Reports19-50p. 266atri280 ("It ernergesclearfromtheargumentsof the
Partiesthatthesecond submissiooftheGovernment of Colombiqwhichconcemsthedemandfor safe-
wnduct restslargelyontheallegedregularityofthe asylumwhichisprecisetywhatisdisputedbythe
caunter-claim.") CHAPTERIII
IRAN'SACTIONS AGAINSTU.S.VESSELSVIOLATEDARTICLEX
OF THE 1955TREATY
6.13 Iran'sactions againstU.S.commercialand militaryvesselsin the Gulfduring
1987-88violatedIran'sobligationsunderArticle X of the 1955Treaty. ArticlX provides:
"1.Betweenthe temtories of the twoHighContracting Partiesthereshallbe freedomof
commerceand navigation.
2. Vesselsunder the flagof eitherHighContractingParty,andcarryingthepapers
requiredbyits law in proof of nationaiity,shailbe deemedbz vesselsofthatHigh
ContractingParty both onthehigh seasandwithin theports,places andwatersof the
otherHighContracting Party.
3. Vesselsof either High ContractingPartyshall have liberty,on eqd tem with
vesselsofthe other High ContractingPartyand oneqwl termswith vesselsof any third
country,tocornewith theircargoesto al1ports, places and waterssuch otherHigh
Conhcting Party open to foreign commerceand navigation. Suchvesselsandcargoes
shallinal1respects be accorded nationaltreatmentandmost-favored-nationtreatment
withintheports, places and watersof suchother High ConîractingParty;buieachHigh
ContractingParty may reserveexclusiverights andpriviIegestoitownvessels with
respt to the coastingtrade,inlandnavigationand nationalfisheries.
4. Vesselsof either High ContractingPartyshall be accordednationaltreatmentand
most-favored-nationtreatmentbythe otherHigh ContractingPartywith respectto the
nght tocany al1productsthat maybe canied by vesse1 to or fiomthe temtories ofsuch
otherHighContracting Party;and suchproductsshallbe accorded treatmentno less
favorablethan that accordedlikeproductscanied in vesselsof suchother High
ContractingParty, with respectto:a)dutiesand chargesof ailkinds, (6)the
administrationof the customs,and(c)bounties,drawbacksandotherprivilegesof this
nature.
5. Vesselsof either High ContractingParty thatare in distressshallbe permito take
refugeinthe nearestport or havenof the otherHigh Contracting Party,andshallreceive
friendlytreatment and assistance.
6. Theterm "vessels",as used herein,meansailtypes of vessels,whetherpnvately
ownedoroperated,or publiclyowned oroperated;but this termdoesnof exceptwith
referenceto paragraphs2 and 5 ofthe presentArticle, includefishingvesselsor vessels
of war." Section 1. Applic:ationoArticlX(1)
6.14 The Courtin itsjudgment onjurisdiction did notpronounceitself definitivelyonthe
scope and applicationof Article) of th1955 Treaty. Rather,theCourt simplyfound that it
had jurisdiction "toentertaintheclaims" by IrariunderA~(1)'" .s discussedin ParII,
the United Statescontendsthat ArtiX(1)establishesa generalgoalregardingthe freedomof
commerce and navigationbetweenthe United States andIran,butdoesnot itselfcreatespecific
enforceablelegal obligations. It isthe other specificprovisionsoX thatdefinethe
particular rights and obligationsowedby the Parties in mattersofcommerceandnavigation. The
U.S. counter-claimis consistentwiththis view, inthat Iran'sviolationswithrespecttX Article
ariseunder other provisionsof ArtX.le
6.15 Shouldthe Court,however,decidethat ArticleX(1)itselfestablishesindependent
rightsand obligations, theUnitedStatessubmit:;that the legalbasisof the counter-claimis al1
the more forceful. To theextentthat the Court fnds that ArticleX(1)imposesanindependent
IegaIobligation protectingIraniancommercialactivitiesfU.S .ttrtcit çurelymust also
protect U.S. vesselsin the Gulf fromunprovoked attacksby Iran.
6.16 In particular,it is difficultto imaginea morfotmof interferencewith
freedomof navigationandcommercethan a senes of amed attacksagainstthe commercial
vessels of anothPart andthe militaxyvessels escortingthem. TheIranianamks on neutral
shipping in the Gulf, particularlythe laying ofniinesand firingof long-range surface-to-surface
missiles, severelythreatenedU.S.-ownedanclU.S.-registeredvesseIsin the Gulf,includiig
384
Oil Platforms (IslarnicRepublic ofIran v.UnitedStates ofArnerica)(Preliminpara.ection),
55(2). thow ciirryingcargo between the territoriesof thetwo Parties. Inits decisih'icur~gu~v.
UnitedStates, the Court found, amongotherthings,that the allegedU.S.minelaling violated a
comparableprovision of theU.S.NicaraguaTreatyof Friendship, Commerce,andNavigation3''.
Given thatIran relies on that case to supportits claim in this case, Iranmustlikewiseconcede
that thealleged Iranian mine-laying andother armedactions againstmaritime commercein the
currentcase, if proven, would violate its interpretationAX(1)lof theUS-Iran Treaty of
Amity.
Section2. Applicationof the RemainderofArticleX
6.17 Whateverthe Court may concludeaboutthe scopeof Article X(1) t,e United States
submitsthatIran's actionsin the Gulf againstU.S. vesselsing 1987-88violatedIran's
obligationsunder the remainderof ArticleX to respect, and to accord favorableand friendly
treatmentto, U.S. vessels operating inthe Gulf. ArtiXleas awhole reflectsIran'sagreement
thatU.S .esselswould be favorably treatedwhen conductingmaritime tmde inthe Gulf, i.e.,
whenpassingthrough the Strait of Hormuzand potentially calIingat Iranianports or passing
throughIranian waters. Iran's gunboat,missile,helicopter, andaircrafiattacks,and its laying of
P.
mines in the Gulf, were completely inconsistentwith this right. Iran'sactionsimposed the
gravestof dangers on U.S. vessels conductingmaritimetrade in the Gulf.includingtrade with
Iran. Iran'sarnpaign of armed attackswasneither favorablenor friendlyto U.S.vessels. It both
generally hinderedthe ability of U.S. vesselsto engage in maritime commercein the Gulf, and
385MiIifw and Paramilitaïy Activities inandagainstNicaragua (Ticmagua. v.U.S.j,Merits,
Judgment,LC.J Reports 1986,paras.253,278.placed severalU.S. vessels in severedistress. In short,Iran'sactions did notjust violatesome
technical aspectof theprovisions of ArticleX. Theyviolatecithe very hem of the Article.
6.18 The UnitedStates showed in Part :IIthat therwas no trade Meen theterritones
of Iran and the UnitedStates in oii from the Ro:jtamand SidSassan platforms whenthose
platforms weredestroyedin October 1987and .Qnl 1988,respectiveIy, sothat Iran'sclaim
under ArticleX(l) regardingthe platforms must fail. The facts that rehte Iran's claimunder
Article X(l) do not, however,affect this counter-claim. First, the United States has shownhere
that there was extensivemaritime commercebetweenthe United Statesand Iranwhichwas
directly threatened byIranian attacks. Second,whileArticle X(1) is expressly limitedto trade
between the temtones of the two Parties, the other provisions of Article X are not so limited.
FOTinstance,under ArticleX(3),Iran must permitU.S. vessels originating hm or destinedto
U.S. ports to comewiththeir cargoesto al1"poi-ts,placesand waters"of Iran opcnto foreign
commerce and navigation,which includes innocentpassagethrough Iranianterritorialwaters,
wheher or not thevessels visit at Iranian ports. Jnconsidering the scope of thisright of acceçsto
ports,this Courthas found that:
"[Iln orderto enjoy access to ports, foreignvesselspossess a customaryright of
innocentpassage intemtonal waters for thepurposes of entering or leaving
intemal waters;Article 18,paragraph l(b), of the United Nations Conventionon
the Lawof theSea of 10December 1982,does no more than cadi@customary
intemationallaw on this point. Sinceh:edom of navigation is guaranteed,first in
the exclusiveeconomiczones whichmay exist beyond territorial wate(Art.58
of the Convention),and secondly, beyoridtemtorial waters and on the hi@ seas
(Art.87), it followsthat any State which enjoysanght of access to ports forits
ships alsoenjoysal1the freedom necesauy formaritime navigation. It may
thereforebe saidthat, if this nght of accessto the port is hindered by the layingof
mines by anotherState, what isinfringe~iisthe freedom of communicationsand
of maritimecommerce386."
386 Miiitary and ParamilitaryActivities inand against Nicaragua (Nicarv.uUnitedStates), Merits,
Judgment, LC.J R.eports 1986para.214. 6.19 Iran violated this general freedom ta conduct maritime navigation --which is
i integrally linked to the specific nght of U.S. vessels to cal1at Iranian ports or pass through its
waters --by hindenng U.S. vessels through the laying of mines and other attacks, whether or not
specific vessels were in factcalling at Iranian ports. Sirnilarly, under the provisions of ArticX,
the United States enjoyed a general freedorn from any Iranian actions directed at placing U.S.
I vessels in distress, regardless of whether particular vessels were calling aIranian ports3".
I
i 6.20 There is nojustification for Iran's actions under other noms of international law,
nor under Article XX(l)(d) of the 1955 Treaty, on the theory that they were necessaty to protect
Iran's "essential security interests." Iran had no need to attack neutral vessels that were neither
visiting Iraqi ports nor canying any Iraqi war rnatenals. Iran's security interests were in no way
affecteciby diis peaceful cornmercc.
6.21 Further, these attacks did not conform to thelaw ofmned conflict,paticularly
customary rules goveming a belligerent'sobligations governing visit and search3''of neutral
387Iran certainlycannotcontendthat itsactionssatisfiedits obligationsunderArticleX becauseIran
anackedal1nations equally.First,Articles X(3) andX(4)requirenotjust most-favored-nationtreatment,
butnational treatmentas well. Iran didnotattackIranianvessels. Second,ArticleX(5)is an absolute
standard;treatmentof non-U.S.vesselsis irrelevant. Third,as shownin PartIIIran'sattacks,including
thelayingof mines, were apparently directed againstparticular vesselsof the UnitedStatesand other
countriesoperating inthe Gulf(particularlycarriersof oil).
See, cg., ErikCastren,ThePresentLawof WarandNeutraIiy(1 954). pp.316 etseg. (hereafter
"Castren")E, xhibit 172(describingtheconditionsunderwhicha belligerent mayundertakecapture
prdings); L.C.Green,ïïze ContemporaryLawofArmed Conflict,p. 163-164, Exhibit 173 ("On
encountering enemy merchantshipsor a neutralvesselwhichhesuspectsmay be liableto seizure,a
belligerentcommandermayinstructit ta heave-toandsubmitto visitand search. Ifafierthe visithe has
groundsforseizingthevessel,hemustdivert it ta the nearestprizecourtto adjudicateuponthe legality
of the seizureandto authorisecondemnationofthe vessel oritscargoifthese proveto be of enemy
character.")vessels and obligations with respect to the laying of mines. Indeed, by targeting commercial
vessels of non-belligerent States that posed nothreat to IranIran'sconduct was entirelyatodds
with a host of humanitarian rules of warfare enibodied in customary international law and
reflected ina wide variety of scholarly witing8', manuals of warfare issued by many States3w,
and widely-accepted Conventions, including the 1907 Hague Convention Relative to the Laying
of Automatic Submarine Contact Mines, the 11207Hague ConventionRelative toCertain
Restrictionswith Regard to the Exercise of the Right of Capture inNaval War, and the
Convention Concerning the Rights and Duties of Neutra1 Powers in Naval War. Because Iran's
attacks against non-belligerent vessels violated such basirules goveming armed conflict, the
Security Council condemned the attacks, refening specifically to shipping en route to and from
ln this case, the vessels attackedby Iran w,rrenot delivering uioIraq (indeed, several were
en mute outof the Gulf). Yet even iftheywere engaged in such û-ade,customaryinternational law
permitssuch trade so longas it does notincludeccntraband of war (war materiel)or oîhenvise contribute
to~e belligerent's war fighting capability. See,e.,r.,A. &iN. Ronzitti, ïhe Lm ofNeutrality:
ThirdStatesCommercialRightsandDuties,in ThtiGulfWarof 1980-88; TheIm-Iraq Warin
IniernutionuLl egalPerspective(1.Dekker & H. Piisteds.), pp. 221,222-23, Exhib174 (The right of
neutralsto engage in trade with belligerents,subjeiitto certain limitwasorecopizcd by the
traditionalcustomary law of war. Theexistenceol'this right was confirmedby the most highly qualified
internationallegal writers and could be inferredfrom a number of instrumenttreaiylaw.)
i.
The doctrine of contraband of warwould certainly not support Iran'sattacks. Ibid.,p. 233 ("the
doctrineof contraband ofwar could certainlynotjustifi Iran's frequentattackson non-belligerent
merchantvessels bound for non-belligerentports or, even more so,attacks on veswls coming from such
ports.")
389
See.e.g.,Jean Pictet, ThePrinciplesofIntemotionalHumanitmianLaw(1966), p. 32,Exhibit 175;
(Humanitarianlaw demandsthat each personbe treated with humanity); Frits Kalshoven,Constraintson
the Wagingof War(1987), pp. 34-35, Exhibit 176 (notingthe cardinal humanitarian lawprinciplesthat a
belligerentshould not attack civilian populationsas such, and must distinguishat al1times between
personstaking part inthe hostilities andmemberof the civiliaripopulati); GézaHerczegh,
DevelopmentofInternational Humanitaria Lnaw(1984), pp. 139-143,Exhibit 177.
'90Seegenerally,NationalImplementation ofInternationalHumanitarian Lav (M. Botheed. 1990)
(selectedbibliography provides referencesfor military and red cross manuals). al1ports of Statesthat were not parties to the h~stilities'~'.These customarynilesremained fully
in force at the time of these incidentand fully applicable to Iraniga.
6.22 This Court's past discussions of the pnnciples applicable to theuse of submarine
mines clearIy show the deficiencies in their use by Iran. In the Nicaragua case,the Court
observed that if a State lays mines in any waters "in which the vessels of another Statehave
rights of access or passage, and fails to give any warning or notification whatsoever,indisregard
of the security of peaceful shipping, it cornmits a breach of the principles of humanitanan law
1
underlying the specificprovisions" of the 1907 Hague Convention on contact In the
Cor& Channelcase, the Court characterized the requirement for such notification as denving
from "certain general and well recognized pnnciples, namely: elementary considerations of
hurnanity .. .394" The use ofmines against non-belligerent cornerciai vessels (aswe11as
directing land-based missiles and other weapons at such vesselsj clearly contravenes what the
' S.C. Res.552(1 June 1984),Exhibit27;see also S.C.Res.582(24February1986),Exhibit29; S.C.
Res. 598 (20July 1987),Exhibit 178.
392
See,cg., Castren,p. 282,Exhibit 172:
"TheStateswhichdid notaccedeto theHagueConvention(VIII)cannotbeheldto havean
unlimitedrightto laymines. It is quiteclearthateventhesePowersmaynot lay minesinthe
territorialwaters of neutralStates. It is probablyalsotruethatsuchPowersmaynot laymines
offtheenemyCoastmerelyto interceptmerchantshipping,thattheyareboundto observethe
dutyto notifythe layingofmines,thattheyhaveto take additionalsafetymeasuresto protect
innocentshippingandthat they alsomustremoveminesat theendof thewar."
393MilifaryandParamilitaryActivitiesin andagainstNicaragua(Nicaragua v.UnitedStatesof
America),Merits,Judgment,1C.J.Reports 1986,para.215.
394Cor- Channel,Merits,Judgment,I.C.J.Reports1949, p.22.Court has characterizedasone ofthe cardinal principles ofhumanitarian Iaw--that States must
never makeciviliansthe object of attackJ9'.
6.23 Nor can Iran'sviciousattacks against unarmedvesselsengaged in commercial
activities,without first resoriingto visit and search, bejustified as a means of Iranian self-
defense. Such attacks on non-military, non-Iraclitargets werenot, in anysense, anecessary or
proportionate response to Iraqi armed action. E.venif it could be argued that Iranhad some right
to take action with respectto third country vessels supportingIraq'sconduct of the war, unlawful
mining and wanton attacks(as opposed to visit and search) cannot be excused as necessary and
proportionate self-defense,nors "necessaryto protect.. .essentid security interests." As such,
Iran's actions were not permissible either under internationalnoms on the use of force or under
Article XX(lO(d) of the 1955Treaty.
6.24 The Unitcd Statesnotes that some,.but not al],of the U.S. vesselsattacked by Iran
were under the U.S.flag. Nevertheless, the jurisprudencofthi Csourt recognizes that it is
appropriateto protectowncrship intcrests under contemporarycommercial treaties in appropriate
circu~nstance$~~.In the circumstances of this case,the States under whose flag these U.S.-
owned vessels operated haveconfirmed that the:yhave no objectionto the presentation by the
United States of a claimasedon attacks against these U.S.-ownedvessels3". Thisis important,
395
Legaliryof theThreator UseofNuclear Weapoiw,AdvisoryOpinion,I.C.J Reporis1996, para.78.
3%
See,generally,EletironicaSiculaS.P.A.(ELSI),Judgment,1C.J Reports1989,para132 (finding
undera commercialtreatythat theUnitedStatescouldclaimonbehalfof U.S .ationalsfordamageto
immovablepropertytechnicallytitledina foreigncompany,where thecompany was whollyownedby
dieU.S.nationals).
à97See Exhibit179,containing communicationfsromforeigngovemmentsindicatingconsent toU.S.
presentationoftheclaimsat issue. Liberianauthoritieshaveconfimedtheir lackofobjectionorally. for wherethe Courtpreviously has foundthe nationaiity of the injured entityto be of relevance
in precluding a claim, it has done so out ofconcem that the rîghtsof the State of nationality be
re~~ected'~'. Moreover, in the circurnstancesof this case, presentationof claimsrespecting
US.-owned vessels in this forum are intimatelyrelated to the claims based onU.S.-flag vessels
and may be the only means for their vindication. Finally, to the extentthatthe Court findsthat
ArticleX(1) provides independent legalprotection to maritime commerce,the Court must find
that suchprotection encompasses US.-owned vessels engaged in maritimetrade in the Gulf and
their cargo regardlessof whether the vesselsare under U.S. flag.
6.25 The United States also submitsthat its counter-claim is not dependent onan
espousalof claims held by U.S. nationais. Rather, the United States claimis based on Iran's
obligationtothe United States itself to abide by the provisions of ArticleX. Iran's overall
conduct in creating extremely dangerous conditionsfor the conduct ofU.S.maritime trade in the
Gulf, including the attacks on U.S. vessels,violated Iran's obligationsunderArticle X. In
ascertainingwhat reparation should bemade for such a violation, itis appropriateto consider
damageto the interestsof the U.S. Governrnentand its nationals, regardlessof the legal form
under which those interestsarise. Suchdamage would include the significantcosts incurred by
the United States in deplhying additional forcesto the Gulf to protect maritimecommerce by
escortingvessels, clearing minefields, and other activities".
398
BarcelunoTraction,Lightand PowerCompany,Limited,SecondPhme,Judgmen!,I.C.J.Reports
1970, paras.85 - 103 (findingundercustomaryinternationallaw thatBelgiumdidnothavestandingto
bring aclaimonbehalfof Belgianshareholdersforinjuryto a Companyfomed underCanadianlaw.)
I '~3 Ge, e.g..UnitedStatesGeneralAccountingOffice, BurdenSharingcAlliedProtecrionofShips inthe
Persian Gd' September1990,Exhibit 32. 6.26 Accordingly,the United Statesrequeststhatthe Court findthat, in laying minesin
the Gulf andothenviseengagingin militaryactionsin 1987-8Sthat wercdangerous and
detrimentalto maritimecommerce, the Governmentof Iran breachedits obligationtothe United
StatesunderArticle X ofthe 1955Treaty. As such,Iran isobligatedto makefull reparationto
the UnitedStatesforviolating the 1955Treaty.in a formand amountto be determinedby the
Cow at a subsequentstage. TheUnitedStatesreservesthe rightin that subsequentstageto
supplementinformationcontained inthis pleadingregardingattackson U.S.r~esselsa,s wellasto
add mer instancesof Iranianattackson U.S.vessels intheGulf in 1987-88. SUBMISSIONS
On the basis of the facts and arguments set out above,the Governrnentof
the United States of Amenca requeststhat the Court adjudge and declare:
1. That the United Statesdidnot breach its obligationsto theIslamic Republic
of IranunderArticleX(1) of the Treaty of Amity betweentheUnited States and
Iran, and,
2. That the claimsof the IslamicRepublic of Iranare accordinglydismissed.
Withrespect to itscounter-claim,and in accordance withArticle80 of theRules
of the Court, the United Statesrequeststhat the Court adjudgeanddeclare:
1. That in aitackingvessels,laying mines in the Gulf and othekse engaging in
military actions in 1987-88thatwere dangerous and debimental to maritime
commerce,the Islamic Republicof Iran breached itsobligationsto the United
Statesunder ArticleX ofthe 1955Treaty, and
2. That the Islamic Republicof Iran is accordingly underanobligationto make
full reparationto the United States for violating1953 Treatyin a fom and
arnountto be determinedby the Court at a subsequent stageofthe proceedings. TheUnitedStatesreservestherighttointroduandpresenttotheCourtindue
courseapreciseevaluationof thereparatlwedbyIran.
23June1997.
\~~;da&a.)K~~r
MichiidJ.Matheson
Ageni:oftheUnitedStateofArnerica TABLEOF MAPS AND ILLUSTRATIONS
Followin~Pape:
Map 1.1 IranianExclusionZone andIraqiWarZone 7
Map. 1.2 Navigatingthe Gulf
Duringthe TankerWar
Illustration 1.3 IranianWeaponsSystemsUsed
in Attackson MerchantShipping
Map 1.4 IranianAnacks on MerchantShipping
Map 1.5 MiningofAl Ahrnadi
Map 1.6 US.-flag Bridgeton
StrikesanIranianMine
Map 1.7 IranianMiningof Khor Fakkan
Illustration 1.8 IranAjr Captured
MiningInternationalWaters
Map 1.9 CaptureofIranAjr
Map 1.10 IranianHY-2Missile Attacks
fromthe FawArea
Illustration 1.11 Damageto MerchantShipsfrom
IranianMissileAttacks
Map 1.12 IranianAttackson MerchantShipping
NearIran's OilPlatforms
Map 1.13 IranianandIraqi Minefields
IIlustration 1.14
Darnageto USSSamuelB.Roberts
Illustmtion 1.15 USSSamuelB. RobertsMinefield TABLE 017EXHlRlTS
Pursuantto Article 50of the Rulesof theCoun, the UniteStateshasalso
depositedseveraldocumentsin the Registryin connectiowith this Counter-Memorial
andcounterclaim. The documentsso depositedarenoted below.
1. InternationalAssociation ofIndependentTanker0-ners, IradIraq Conflict,The
TankerWar-NoEnd?, June 1988.
2. GeneraiCouncilof British Shipping,Iradlraq: TheSituation in theGulf;
GuidanceNotesfor Shipping, Febmuy 1988.
3. Intertanko,TankerSafety CircularL'ctterNo. 52, 12February 1986.
4. Ted Hooton, "TheTankerWarinthe:Gulf, 1984-1988,1Jane 3Intelligence
Review, May 1992.
5. JohnJordan,"TheIranianNavy,"Jane SIntelligenceReview,May 1992.
6.
"IranadmitsGulf attackson mcrchatitships,"Jane 'Defence WceRly,9August
1986.
7. "Howinsurersassess shippingrisks,"Lloyd'sList, 7 August 1987.
.S. "Noticeto Mariners," reprintedin Gi:neralCouncilof British Shipping,Guidance
Notesfor Ownersand Masters withi~essels in theArabianGux 29 June 1984.
9. Lloyd's MaritimeInformationService,VesselsReported ToHave BeenArtacked
and Damaged DuetoActs of Hosrili~By theIraqis and Iraniansin fheGuwrea
SinceMay 1981.
10. StatementofNorman Hooke,Assistant Managerof Data SeMces, Lloyd's
MaritimeInformationService, 15 M,xy1997.
11. Statementof Captain ChristenFeyerPuntewoid, 15January 1997.
NorwegianShipowners'Association recordsof Iranianattackson merchant
shipping.
12. Leftblankintentionally.
13. ForeignBroadcastInformationService,"RadioPhone-inProgramWithDefense
Officiais,"14Apnl 1988.
14. "Gulf WarIntensifies,"Internationa,!DefenseReview, March1987. "Iran BuildingUpits OwnÀrms Industry,"Jane T&fente Weekb, 20 lune 1987.
"ShipsbannedfromtheGulf of Oman dangerzone,"Lloyd'sList, 14August
1987.
Intertanko,TankerSafetyCircularLetterNo. 54, 16Apnl 1986.
RearAdmiral(Ret.)MichelHeger and YvesBoyer,"U.S. and Iran Issues inthe
Gulf(1987-1988).
"Newpatternof attackon shipstradingwith Kuwait,"Lloyd's List, 13January
1997.
Intertanko,ankerSafetyCircularLetterNo. 62, 12Decernber1986.
Reuterswirereport,9July 1987,repnnted inLloyd'sWeekiyCasualy Reporting
Service.
Intertanko,TankerSafetyCircularNo. 61, 12November1986.
"Norwaytells IranIt WillNot TolerateGulf ShipShkes," Reuters'24 December
1987.
"Iran attacksPanamanianand Norwegian tankersin Gulf," BBC Summatyof
WorldBroadcasts,19March 1988.
"IranPromisedto LeaveJapanese ShippingAlone,KunariSays,"Kydo News
Service,JapanEconomicNewswire,4 July 1987.
de Guttryand Ronziti,TheIran-IraqWarandThe h ofNaval Warfare(1993). -.
Resolution 552,UnitedNations SecurityCouncil(2546' meeting, 1June 1984),
reprintedin UnitedNations DocumentSlRESl552.
Resolution588,UnitedNations SecurityCouncil(2713~meeting, 8Octokr
1986),reprintedinUnitedNations DocumentSDNFf42.
Resolution582,UnitedNations SecurityCouncil(2666" meeting, 24 February
1986),repnnted in UnitedNations DocumentSIRES1582.
"U.S.PolicyinthePersian Gulf,"U.S. Departmentof StateSpecialReportNo.
166,July 1987.
Statementof ColinEglington,8May 1997.LetterfromIranian ForeignMinisterVellayatito the U.N.Secretary-General,23
July 1987quotedin partin 33Keesi,vg'sRecordof WorldEvents,pp. 35597-
35598 (December1987).
Iranv.UnitedStates(CaseConcerningtheAerialIncident of3July 1988),
Memorialof theIslamicRepublicofIran, pp. .
Statement of KuwaitNavalForceOlficialsRegardingtheMMinin ogf Waters Near
Al-Ahmadi Port DuringtheIran-IraclWar,21May 1997.
"Iranians in minelayingcampaignagainstKuwait,"Jane'sDefenceWrekly,27
June 1987.
"Another shiphits a mine offKuwait,"Lloyd'sList, 28 May 1987.
Statement of DonaldJones, 3 May1997.
"Iraqi Minefieldsin the Persiani;"November 1988U.S. militarycablefiom
Commander-in-Chief,U.S.CentralCommand.
Naval TechnicalIntelligence Cente. oreignatenel ExploitationMemorandum
Report,"ClusterGin,"May 1988.
"Message to Iran," UnitedStatesDepartmentof State,23May 1987.
"DiplornaticNote: AnacksonMercllantVessels,"25 September 1986U.S.
Department of StateCable.
"Weinbergerwarnsagainstattacksin Gulf;Iranthreatens,"UnitedPress
International,5 May 1987.
"Demarcheto Iran: Useof Silkwomis/ProtectionRegime,"UnitedStates
Department of State,18July 1987.
Statement of RearAdmiralHaroldElemsen,26 May 1997.
Statementof GeneralGeorgeCnst, 15May 1997.
Letter of CaptainTurkiAlTurk i,perintendentof Operatiom,KuwaitOil
Tanker Company, toNancyMulene:<,EconomicOnicer, Embassyofthe United
Statesof America, 16Apnl 1997.
Central IntelligenceAgency, "RevolutionaryGuardResponsibilityfor Bridgeton
Mining Incident,"July 1987. Affïdavitof CommanderC.W.Tempelaars,DutchNaw, 3 Apnl 1997.
Statementof ViceAdmiralAnthonyLess,29May 1997.
Statementof SeniorChiefJay Ulrich, 12May 1997.
ForeignBroadcast Information Service,"Hashemi-RafsanjaniPoliticalSermon,"
24 July 1987,p. S2, col. 2, p. S4, col. 1.
"Iranwamingas 'Bridgeton' beginsloading,"Lloyd's List, 1August 1987.
Reuterswirereport, 10August 1987,reprintedinLloyd's WeeklyCasualfy
ReportingService.
UnitedKingdomMinistryof Defence,"MineClearanceOperationsOffFujayrah
ByHMShips - 21 Septemberto 25October1987."
Leftblankintentionally.
ForeignBroadcast Information Service,ajlisSpeaker'sPrayer SermonViews
GulfEvents,"2 1August 1987,pp. S5,col. 1;S4,col. 1.
"MessageFor the Governmcntof Iran,"U.S.Departmentof State.
AdmiralRichard Cobbold & Commander MichaelCodner,Royal UnitedServices
institute, TheUtiliryoflranian OfJshoreOil PlutformstheCon&cf of
Helicupter.Small Cra) and MineAriach AgainsiMerchontShippingDuringthe
Iron-IruyWar,May 1997.
Declarationof Robert Codney,4 June 1997.
"LandingCraft Engagement," 21September1987,cable fromCommander, U.S.
NavyMiddle EastForce.
"U.S. escorts'GasPrince'despitethreats,"Lloyd's List, 24 Septernber1987.
Statementof Commander MarcThomas,21 May 1997.
Photographsof IranAjr and its minecargo.
Belgian- DutchAnalysisReporton Pesian GulfMines,29 May 1997.
Comparisonphotographsof RussianM-08 andIranianSADAF-02mines.
Statementof Chief Petty OfficerA.J.D.M.Verhulst,DutchNaw, 11April 1997."Iran Majlis SpeakeronOil Exportsand MineProduction,"BBCSummay oj
WorldBroadcasts, 18 August 1987.
Statementof ConwayZeigler,5 May 1997.
24 September 1987 articlefrom the United Pressinternationalwire service.
SelectedFarsi Messages from ateletypecommunicationsdevice onIran Ajr.
Complete collectionofteletypemessagesseizedonboardIranAjr.
Translations oftheselectedpaper-tapemessages senthm, and receivedby Iran
Ajr,tapes1,16, and21.
Complete collectionofpaper-tapemessagessenthm, andreceived byIranAjr.
A communicationfromIran's FirstNaval District(Intelligence)to Irannval
units includingIranAjr.
Reuterswire report,22September 1987,reprint4inLloydS WeeklyCusuul@
ReportingService.
Photographof IranAjr minecurrentlyin the possessionof the BelgianNavy.
MemorandumofEdward P. Djerejim, Acting AssistarSecretaryof Statefor
Near Eas t ffairs,anaching"Messa1:eto IranonNavalIncident."
Letter date22 September 1987 frornthe ActingPermanentRepresentativeof the
United Statestothe UnitedNationsîddressedto thePresidentof the Security
Council,United NationsDocument SI19149.
"Iranian SmallBoat Engagement,"9 October1987 cablefrom Commanderin
Chief,U.S. Central Command.
Edgar O'Ballance,TheGulf War, 1988.
Sreedhar& Kapil Kaul,TankerWar:Aspect ofIraq-IranWar1980-88 (1989).
"AnniversaryOffensive:GulfFlare-Up,"Jane'sDefence Weekly,1March 1986.
StatementofKuwaitArmedForcesOficials RegardingMissile Attackson
Kuwaiti Temtory Duringthe Iran-IraqWar,21 May 1997.
StatementofNormanLesko, 21March 1997. Naval Technical Intelligence Center,Foreign Material ExploitationProgram,
"Cluster Copy," October 1979.
POLY Technologies, HY-2Coast-DefenseMissile brochure.
MarkPin, "Statement on Exarninationof Missile Photographs andReports," 27
March 1997.
Reutersand UnitedPress Internationalwire reports, 15October 1987,reprinted
inLloyd's WeeklyCasualiyReportingService.
Statementof CaptainJohn JosephHunt, 25 March 1997.
21Apnl 1997Letter from Capt.Turkial Turki, GeneraISuperintendent;Kuwait
Oil Tanker Company,to Ms.NancyMulenex, Economic Oflicer, Embassy ofthe
United States of Amenca.
Reutersand UnitedPress Internationalwire reports, 16October 1987,reprinted
inLloyd's WeeklyCasualtyReporringService.
de Lionis, "The Coastal MissileThreatin the MiddlEast,"Jane'sIntelligence
Review, January 1994.
"Petsian Gulf: Military Activity,"NationalIntelligeDaily,16October1987
Jane'sStraregicWeaponsSystems,September 1996.
U.S. reconaissancesatellite photographsof Iranian missilesites inthe Faw area, 8
October 1987.
Iranian HY-2 Cmise Missile Sites,Depictedon British AdrniraltyChan 2847.
Jane S WeaponsSystems1987-1988.
A. Cordesman & A. Wagner,2 TheLessons ofModern War:TheIran-IraqWar
(1990).
Jane S WeaponsSystems1988-1989.
Letter dated 20 October 1987fromPresident Reaganto the Speakerofthe House
of Representativesand the PresidentPro Tempore ofthe Senate,BookII,Public
Papersof thePresidentsof the UnitedStates,RonaldReagan (1987)(1989).100. Letterdated 19October 1987fromihePermanentRepresentative ofthe United
StatesofAmericato the UnitedNationsAddressed tothe Presidentofthe
SecurityCouncil, UnitedNations Document S/19219.
101. Standard formscornpletedbyhand.
102. Intertanko,TankerSafew CircularLetterNo.58B,20 August 1986.
103. General Councilof British Shipping;,adIraq: TheSituation intheGulf;
Guidance NotesforShipping,1 October 1985.
104. General Councilof British Shipping;IradIraq: TheSifuationintheGulf;
GuidanceNoresfor Shipping,30 May 1986.
105. General Councilof British Shipping;,IradIraq: TheSituationintheGulf;
GuidanceNotes for Shipping,Febniary 1987.
106. "Iranlaunchingattacksfrom Gulf o:ilplatform,"Lloyd'sList, 3April 1986.
107. "SaudiArabiantanker damagedin Gulfattack,"Lloyd SList, 7April 1986.
108. "Iransetsupnew tanker attackbase,"Lloyd'sLisr,14 May 1986;"How Gulf
shippingtoll ismounting," Lloyd? List,7August 1986;"Imqijets setSassan
fieldablaze,"Lloyd'sLisr,15Noveinber1986.
109. "Iranmountsair strikesfrornoil platform,"Jane'sDeferneWeekly,26 April
1986.
110. SeaProtestof Captain M. Faury, 51vIarch1986.
111. CHEVRONOil Companytelegramdated21May 1986.
112. ArabianGulfShipAttacks,ExxonOilCompany.
113. Jane'sAll rheWorld'sAircraji 1975-76.
114. AmiedForceof the Islamic Republic ofIran,TheFirstNaval DistrictFleet
<<Intelligence>, Instructions forR.adarStations.
115. IslamicRepublicof IranArmedForces,Fleet,FirstNaval District ((intelligence)),
Instructionsfor the DeployrnentofbserversonOii Platfoms in the Persian
Gulf.
116. IranianIslamicRepublicNavy, PersianGulfandGulfof OmanFleet,Operations,
"Instructionsfor Exchanging RadarIntelligence,"26 May 1987,with coverletter. 117. "Transfer and TurnoverListof the ReshadatOil Plafonn RadarCustodian."
118. Archive of IncomingMessages,Rostam Oil Platform.
119. SelectedMessagesfromArchive of IncomingMessages,RostamOil Platfom,
120. Q & A on USSSamuel B.RobertsRepair, 21 September1988.
121. Post OverhaulAnalysisReport on the USSSamuelB.RobertsRepair.
122. StatementofRear AdmiraiRobert M.Nutwell, 7Apnl1997,
123. "Persian GulfMineUpdate,"28 April 1988,cablefromU.S.Naval Joint Task
Force MiddleEast.
124. "More Mines FoundinPersian Gulf,"NationalIntelligenceDaiiy, 16April 1988.
125. Statementof CaptainLarryAndrews, 30 May 1997.
126. D.L. Wiswall, "Neutralitythe Rightsof Shippinand theUse ofForce in the
Persian Gulf,3 1 VirginiaJournal oInternationaLw (1991).
127. PhotographscomparingMyarn,Manta, and IranianSADAF-02mines.
128. Lefiblank intentionally.
129- Letterdated 19April 1988from PresidentReaganto the Speakerof the Houseiof
Representativesand thePresidentPro Temporeof theSenate,Book 1,Public
Papers ofthePresidentsofthe UnitedStates,RonaldReagan (1988),pp.477-
478 (1990).
130. Letterdated 18April 1988iÏom the ActingPermanentRepresentativeof the
United StatesofAmericato the President of theSecurityCouncil,UnitedNations
Document SI19791.
131. "Sassan Oil Field Incident,"6 March 1988cablefromCommander,Joint Task
Force MiddleEast.
132. Perkins,"OperationPrayingMantis: The SurfaceView," US. .NavalInstitute
Proceedings,May 1989,p. 66.
133. Langston and Bnngle,"OperationPrayingMantis:The AirView," U.S.Naval
InstituteProceedings,May 1989,p. 54.134. Don Piper, "Navigation ProvisionsinUnited States CommercialTreaties," 11
American Journal of CornompurarivrL ?aw 184, 191-92 (1952).
133.. Table II.A.1: Iran's Offshore oilproduction historyon a field-by-fieldbasis, in
"Oil Production Capacity intheGulf;Part III, IslarnicRepublic of Iran," Centre
for Global Energy Studies (1995).
136. Table: "Worldwide cnide oil and gai production," Oand GasJournal, 8
February 1988.
137. Table: "Worldwide cmde oil andgac:productionl" Oiland GusJournal, 8 August
1988.
138. Executive Order 12613,52 FederalIkegister41940 (October 1987).
139. U.S. General Imports, WorldAreaand Countryof Originby ScheduleA
Commodity Groupings, 1987Deceniberand Annual(1988):p. 549.
140. U.S. General Imports, WorldAreaaiidCountryof Ongin by ScheduleA
Commodity Groupings, 1988Deceniber andAnnual(1989):p. 652.
141. U.S. General Imports and ImportsforConsumption, Schedule A Commodityby
Country, Table 2,Section 3330040 (Cnide Petroleum, test i-^25Deg-eesAPI or
over), 0ctober 1987- Decernber19s8.
142. Resolution 598, UnitedNations Seci~ritCouncil(2750thmeeting,20July 1987),
UnitedNations Document SIRESl598.
143. Article XI(l), Reciprocal TradeAgi-eement,United States- Canada,6 Treaties
and other International Agreementsf the United Statesof Amenca 122(1946)..
144. Treatyof Frienrlship,Commerce,and Navigationbeîweenthe UnitedStates of
America and the Republic of China,6 Treaties and otherInternationalAgreements
ofthe United States of America761(1946).
145. Friendship, Commerce,andNavigarionwith China:Messagefiorn thePresident
of the UnitedStates,SenateExecutiveDocumentJ, 80" Congress, ln Session,p.
3 (1947).
146. A Treaty of Friendship, Commerce,ond Navigation Berweenthe UnitedStates of
America and the Republic of China:Hearing beforea Subcommiiîeeof the Senate
Committee on Foreign Relations,80" Congress, 2d Session,p. 30 (1948).
147. Treatyof Friendîhip, Commerce,andNavigation with China, SenateExecutive
ReportNo. 8,80", Congress, 2d Session, p.3 (1948). 148. TreatyofFriendship.Commerce,and NavigationBehve.cnthe UnitedStatesof
America and Irelund,21 January 19501 UST785,TIAS No. 2155, 206üNTS
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149. CongressionalRecord,83d Congress,1''Session,9315(21 July 1953),
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l
152. DispatchNo. 107fromU.S. Embassy, TheHague,p. 2 (3 August 1954).
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153. TreatyofFriendship,Commerce,andNavigationBetweenthe UnitedStates of
Americaandrhe KingdomofrheNetherlands,27 March 1956,Protocol,para. 18,
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154. TelegramNo. 1174fromU.S. Departmentof Stateto U.S.Embassy,Tehran,13
December1954,p. 2.
155. TelegramNo. 1561fromU.S. Departmentof State to U.S.Embassy,Tehrm, 15
I
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156. 1958 Conventionon theHighSeas, 13 UST 2312,TIAS 5200,450 UNTS 82,art.
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157. 1987 ConventionontheLaw oftheSea,UnitedNations Document
l AlCONF.621122,entered into force 1.6November1994, art91-92.94.
158. Code of FederalRegulations,Title46, Chapter33, Section 3306;Codeof Hederal
Regulations, Title46, Chapter 121,Section12110(d);Code of Federal
Regulations,Title46 Chapter 81,Sections8101-8103.
159. SeaIsleCityU.S. RegistrationDocuments.
1 160. U.S.Departmentof the Navy, TheCommander S Handbookon theLawofNaval
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Cornmodity Groupin1987Decemberand AnnualReport(988)p.632.
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Groupings,988Decemberand Annid Report 990),.789.
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170. Excerptsfrom Statementof GeneralruidParticularAverageon Motor VesselLucy
(RocketAttac-15November 1987).
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Counter-Memorial and Counter-claim submitted by the United States of America