INTERNATIONAL COURTOF JUSTICE
CASE CONCERNINGOIL PLATFORMS
(ISLAMICREPUBLICOF IRAN V. UNITED STATES OFAMEFUCA)
PRELIMINARYOBJECTION
SUBMITTEDBY
THE UNITED STATESOF AMERICA
16 DECEMBER1993 TABLEOFCONTENTS
Page
INTRODUCTION AND SUMMARY ....................... 1
PART1. STATEMENTOF FACTS RELEVANT TOJURISDICTION ......... 4
Chapter1. Military Forces of the United States and Other Nation Ws ere
Presentin the Persian Gulfin Response tomedAttacks Against
Innocent ShippingDuringthe Iran-IraqWar ............... 5
Chapter II. United States Military Forces Destrothe Iranian Oil Platform
at Rashadat(Rostam)on 19 October 1987in Responseto Its Use
to SupportAttacksby Iran AgainstU.S.and Other Neutral Vessels
Engaged in Peaceful Activities in the Persian G........... 21
Chapter III. United States Military Forces DestroIranian Oil Platformsat
Nasr (Sirri) and Salma(Sassarion 18April 1988in Responseto
Their Use to Support Attacks by Iran Against U.S. and Other
NeutralVessels Engaged in Peaceful Activitn thePersian Gulf
.................................. 23
PART II. THE COUkT HAS AUTHORITYIN THESE PRELIMINARY
PROCEEDINGS TO UPHOLD THE OBJECTION OF THE
UNITEDSTATESTOTHECOURT'S JURISDICTION ........ 27
PART III. THE 1955 TREATYPROVIDESNO BASIS FOR JURISDIC-
TION IN THISCASE ....................... 33
Chapter1. Iran'sAllegations of Violatiby theUnitedStatesof the United
Nations Charteand General International Law Are Not Within the
Court'sJurisdiction ........................ 34
Chapter II. The 1955 Treatyis Wholly Irrelevantto the Dispute That is the
Subjectof Iran'sApplication .................... 39
Section1. Article1DoesNot Create Legal ObligationDiffer-
ing From OtherFCNs .................... 40
Section2. Article IV(1) Addresses the ProtectionsThat the
United States Owesto the Nationalsof Iran inthe
Temtory of the United States.............. Section 3. Article X(l) WasIntended to Promote Freedom of
NavigationandCommerce -Not ObstmctIt . . . . . . . . ..
Section4. Article XX Confirmsthat the 1955 Treaty 1sNot
Intended to Address Questions Relatint go the Use
of Force bythe PartiesDuringArmed Confiict . . . . . . . .
SUBMISSION . . . . . . . .. .. . . . . . . .. . . .. . . . . . . . .
ANNEX 1 : IranianAttackson Innocent ShippingDuringthe Iran-IraqWar . . . . ..
TABLEOF ILLUSTRATIONS
TABLEOFEXHIBITS INTRODUCTIONAND SUMMARY
1. On 2 November 1992, the Governmentof Iran filedan Applicationwith this Court
instituting the present case against tUnited States. Iran stated that the case arisout of the
attackanddestruction ofthree offshoreoilproductioncomplexesby warships of theUnitedStates
Navyin breachof variousprovisionsof the Treaty ofAmity,Economic Relations,and Consular
Rights of 1955 between theUnited States and Iran' (hereinafter "the 1955 Treaty" or "the
Treaty") and international law.. TheUnited States submits the following preliminary objection
to thejurisdictionof the Courtto entertain the claimsfiledby Iran.
2. Theseeventsoccurredduringthe eight-year war between Iran and Iraq in the context
of a long seriesof attacks by Iranianmilitary andparamilitaryforces on U.S. and other neutral
vessels engaged inpeacefulcommerce in the Persian Gulf.
3. In itsApplication,the Governrnentof Iran seeks relief from this Court exclusiveyn
the basis ofthe 1955Treaty. More specifically,Iran requeststhe Court todeclarethat: (1) the
Court has jurisdiction overIran's Applicationunder the 1955 Treaty;(2) the United States,in
attackinganddestroyingthe platforms, breached its obligations to IrunderArticles1andX(l)
of the Treaty and international law;(3) in adopting a patently hostileand threatening attitude
towardsIranthat culminatedin the attacks, the United States breached thebjectandpurposeof
theTreaty; and(4) the United States isunderan obligation tomakereparationsfor the violation
of its international legal obligations.
4. In this case,Iran is invoking,derArticle36(1)ofthe Statuteof the Court, thebasis
ofjurisdiction provided for in ArticXXI(2)of the 1955Treaty. Thisprovisionconferson the
' 8 U.S.T.899,TIAS 3853,284 U.N.T.S. 93,Exhibit1. Courtjurisdiction to decidedisputes relating tothe interpretationand application ofthe Treaty.
It is the contention ofthe UnitedStatesthat there is no relationshipbetweenthe Treatyand the
claims contained in Iran's Application,which focus exclusively on the exercise by regular
militaryunit. of the United Statof its inherentrightof self-defensein thefaceof armedattacks
by Iranian military and pararnilitaryunits. The UnitedStates thereforeis requesting that the
Court address the issueof jurisdiction first, in accordancewith Article79, paragraph6, of the
Ruiesof Court.
5. In its Memorial,Iran alsoassertedthat the UnitedStatesviolated"internationallaw",
referringattimesto the UnitedNations Charterandvariousother conventions,includingthe1981
Algiers Accords between the United States and Iran, and, more generaily, principles of
international law. While these allegations reflect thetrue characterof the dispute which Iran
seeks to bring before the Court, the Court must disregard them, since the Court has no
jurisdiction overanyof theseallegations.
6. In effect, Iran is seekingby these proceedings to have theCourt do what Iran failed
repeatedly to have the SecurityCouncildo - condernn theUnited Statesas a participant on the
side of Iraq in its war withIran.2 In doing so, Iran seeks tobring to this Court a disputeover
which the Court has nojurisdiction. The Court hasthe authorityunder Article 79 of the Rules
of Court to act on this preliminary objection. TheUnited States submits that the Courtshould
do so by rejectingIran'simproper invocationof the Court's jurisdiction.
7. The United States reserves its right to object to any other issue of the Court's
See,e.g.,Casecon ce min^ OilPlatforms(IslamicRevublicof Iran v.UnitedStatesof Americal
MemoriaS l ubmittedby thelslamicRepublicofIranof 8 June 1993 (hereinaftrranianMemorial)V , ol.
IIIExh. 75; IranianMemorial, Vol V, Exh. 91. -3-
jurisdiction over, or the admissibiiity of, Iran's claims that arises in the course of these
proceedings,aswellasthe right under Article 80 of the Rulesof Court to presentcounter-claims
in the eventthe Court determinesthat ithasjurisdiction in this matter. PART 1
STATEMENTOFFACTS RELEVANT TOJURISDICTION
1 .O1 The Applicationand Memorial filedby Iran in this case arebasedon eventsthat
occurredon 19October 1987 and 18April 1988in international watersofthe Persian Gulf.In
consideringthe questionofjurisdiction,manyof the factual assertionsmadeby Iranneednot be
addressed at this time. It is,however, importantfor the Courtto appreciatethat eachof these
events occurred during the eight-yearwar between Iraqand Iran andin the contextof a long
series of attacks by Iranian military and paramilitaryforces on U.S. and other neutral vessels
engaged in peaceful activitiesin the Gulf. The eventsof 19October 1987 and 18April 1988
cannot be separated from theeventsthat preceded themand fiom the hostile environmentthat
existedat thosetimesdueto the actionsof Iran'sown forces.
1.O2 For more than three years prior to 19October 1987, Iran repeatedlyhad attacked
innocent merchantshippingin the Gulfas a part of its conductof the Iran-Iraq war,whichhad
been waged activelysince September 1980. Several U.S. merchant ships, as well as several
hundredmerchantshipsfromother States,wereattackedanddarnagedby Iraniannavalvessels,
aircraft, mines, and missilesduring this period. Iran asserts that"[tlhe Iranian measurestaken
againstshippingin the PersianGulf were not ~nlawful,"~ yet the shipsattackedby Iranwerein
international waters or the territorialsea of third States navigatingto and fiom non-Iraqiports
inside and outside the Gulf. As far as we can determine,these ships were not stopped and
searchedby Iranto ascertainwhetherthey weretradingwith Iraqor canying contrabanddestined
forIraq,notwithstanding thefactthat Iran exercised that right againsn tumerousotherships. The
UnitedStatesisawareof noevidencethat theshipsattackedby Iranhadresistedvisit andsearch,
-. -.- - - - - - - -
IranianMemorial,para. 4.77. Seealso, iibidparas. 1.43,1.54,4.59 & 4.63. -5-
or that they were armed. or that they were carrying contraband destined for Iraq, or that they
sailed under the convoy of Iraqi warships or were escorted by Iraqi military aircraft.
Consequently, these Iranian attackson merchant shipping were plainlyunla~ful.~
1.03 Although United States naval forces have been present in the Persian Gulf since
1949,'theseeventsexplainwhy additional U.S.military forces were deployed to the Gulfduring
the periodin question andwhy they found itnecessaryto attack Iranian offshore facilities on 19
October 1987and 18April 1988.
1.04 The information set forth below is based on publicly available sources, including
information submitted to theSecurity Council and assembled by the Secretary-General at the
request of the Security Council. If needed, the United States is prepared to submit additional
information to establish the factserted by the Unitedtat tes.^
B. Boczek, "TheLawof MaritimeWarfareandNeutrality intheGulfWar," inTHE PERSIA NULF
WAR:LESSON FSORSTRATEGY L, W ,ND DIPLOMACp Y. ,173,at pp. 17185 (C.Joyner ed.1990),
Exhibit2.
5
U.S. Dep'tof State,"U.S.Policinthe PersianGulf,"SpecialReportNo. 166,p.3 (July 1987),
Exhibit3.
6 In this submissio,he UnitedStateshasreiûtea numberof factualassertionscontainin Iran's
Memorial. Factuaalssertionsnotcontestednthis submissishouldnotbetakenasadmitted.merchant vessels la~ful,~ even though under the laws and customs of war they remained neutral
vessels notsubject to attack on sight.
1.O6 These Iranian attacks on innocent merchant vessels in the Gulf intensified in 1987
and continued until the end of hostilities. Iran attacked200merchant ships between May
1984 and August 1988,about half of the ships attacked by both sides during t'OBetween
1984 and 1988, more than320 persons were reported killed, wounded or missinasa result of
attacks by both sides." According to one authority, the total tonnage of ships sunk or so badly
damaged as to be written off asconstmctively lostas a result of attacks by both sides in the
"Tanker War" totalled morthanhalfthe24 million tons of allied merchant shipping sunk during
al1of World War II."It has also been asserted that merchant ship losses in the "Tanker War"
IranianMemorial,para.4.59;LetterfromIranianForeignMinister Vellayatito the U.N.Secretary-
General,23 July 1987,auoted in Dartin 33 KEESINSECOR DF WORLD EVENTS,35598 (, ec. 1987),
Exhibit 8; A. deGuttr& N. Ronzitti, eds.THEIRAN-IRAQ AR(1980-1988)ANDTHE LAW OFNAVAL
WARFAR(E hereinafter citedas "deGu&tRonzitti),p. 30, Exhibit9.
1O
The U.S. Navy has compiled,with the assistanceof Lloyd'sof London,a comprehensivelistof
the 198 lranian attacksonerchantshippingbetween 13May 1984 and4 August 1988. U.S. Navy,
"COMIDEASTFORListof Iranian ShipAttacks AgainstNeutrai Shippingin the PersianGulf Between
1984 and1988"(hereinafter "Navy List"),ibit 10. So far as theUnitedStatesisaware,no complete
tabulation ofal1merchantshipsattackedby bothsidesbetween21 September1980 and 10 August 1988
has beenpublished. Thenumberinpublishedlistsvariesbetween373and 543 ships. SeeAnnex1,note
3. Iran's attempt to minimizethe numberof its attacks(Iranian Memorial,para. 1.56) consequentlyis
notwellfounded. Irandoesnotquanti@in its Memorialthe numberof merchantshipsit attackedduring
the war. Those attacksare characterizedby Iran as exercisesof its right of self-defenseon the basisof
theassertionthatthesewere"neutralvessels resisting visitand searchor canying cargoesdirectlyrelated
to sustainingtheIraqiwareffortrenderedthemselves liable to attack,"IranianMemorial, paras.1.43,4.59
& 4.63.
" A. Cordesman& A. Wagner,2 THELESSON SF MODERN WART : HEIRAN-IRAW QAR,p. 546
(1990) (hereinafter cited as "Cordes&anWagner"), Exhibit 11.The General Council ofBritish
Shipping (GCBS)estimated that 471merchantseamenwere killedbetweenMay 1981and 1June 1988
inthe TankerWar. GCBSGuidanceNotes,re~rintedinde Guttry& Ronzitti,p. 292, Exhibit9.
'* International Ass'n of Independent Tanker OwrsMTERTANKO")Statement(Dec. 1987),
auoted in Sreedh&rKaul,p. 1,Exhibit6. - 8-
esceedrld the total of al1merchant shipping lost in al1other actions since World War 11.'~
1.O7 The hostile environmentin which innocent shipping in the Persian Gulf was exposed
as a result ofIranian (and Iraqi) attacks was addressedby the Security Council as early as June
1984. In Resolution 552, the Security Council condemned attacks on commercial ships en
route to and from the ports of Kuwait and Saudi Arabia, demanded that such attacks cease and
that there be no interference with ships en route to and from States that are not parties to the
hostilities, and requested the Secretary-General to report on the progress of the implementation
of that resolution.I4 The Secretary-General solicited information from Member States and the
International Maritime Organization relevant to the implementation of the resolution. He
submitted his fuistreporinDecember 1984 detailing attacks on neutral shipping in the Persian
Gulf, including nurnerous attacks by Iran. The Secretary-General supplemented his report in
January 1985, December 1985, December 1986, Januar y987, December 1987, and January
1988.'~
l3 F. Wiswall, "Neutrality,the Rightsof Shippingandthe Useof Forceinthe PersianGulf,"31Va.
J. Int'L.619, 620(1991),Exhibit 12.
l4 Resolution 552, UnitedNations SecurityCouncil 2546thmeeting, 1June 1984),UnitedMations
Document SIRES1552(Exhibit 13). The resolutionwas adopted foliowingcomplaintsto the Security
Council by the Governments of Bahrain, Kuwait, Oman,Qatar, Saudi Arabia,and the United Arab
Emiratesof Iranian attackson commercial shipsen route toand fiom Kuwaitand Saudi Arabia,Exhibit
13.
15 Attached are the Report plus Addenda ofthe Secretary-General,which recount the datesof
incidents,the narne,type and nationality of the vessels a,nd informationonthe locationandtype
of attack, through31 Dec. 1987,Exhibit 14. Thesedocumentsgenerallydo not identiQ the attacking
nation. Reportof the Secretary-GeneralPursuance ofSecurity Councii Resolution552,U.N. Security
CouncilDoc.SI16877(Dec.1984);Add.l,22 (Jan. 1985);Add.2,31(Dec. 1985);Add.3,31(Dec. 1986);
Add.4,22(Jan. 1987);Add.3,Corr. 1,10(Feb. 1987);Add.5,31 (Dec. 1987);andAdd.6,26(Jan. 1988).
The Secretary-Generaldid not publisha comparablelist ofthe attackson shippingthat occurredring
1988. Sreedhar & Kaul list attackson shippingfrom 1981throughthe end of the war in 1988, andin
almost every case identify the attackingnation but do not identiS, ships subjectedto visit and search,
Exhibit6. 1.O8 In all, these reports from the Secretary-General describe 330 attacks on innocent
merchant shipping by both sides, including approximately 140 attacks by Iran.l6 The Secretary-
General's reports list only35 incidents of Iranian visits and searches of merchant ships. none of
which is reported to have been attacked subsequently by Iran or Iraq." There is no indication
that Iran made a prior effort to stop and search the vessels it did attackas required under the
laws and customs of war. This is not surprising given Iran's attitude that merchant ships could
be legitimate military targets simply because the vessels involved, or their cargoes, belonged to
states that allegedly supported Iraq in thear.
1.O9 The United States includes asAnnex 1to this pleading a more detailed description
of unprovoked Iranian attacks on merchant vessels during the 1987-88 period.
1.10 The major aim of U.S. policy in the region during the Iran-Iraq war was to seek a
peaceful settlement of the confiict, especially through U.N. Security Council. l9In the interim,
16
The number of Iranian attackswas determinedby comparingthe informationin the Secretary-
General'sReport withthe other lists inhibits6 and 10.
l7Anothersource identifies27 incidentsinwhichmerchantshipsen route to Kuwaitwerevisitedand
searched by Iranian forces betweenMay 1985and January 1986. None of these ships was a tanker.
Schiller, pp.14-118,Exhibit5. Noneof theseshipsis listedas havingbeenattackedduringthe voyage
inquestion.
18 Iranclaimsto haveinspectedscoresof merchantshipstransitingthe Straitof Hormuzdailyduring
the war. Iranian Memorial,para. 4.56 (the IranianNavy visitedand searched "many hundreds of ships,
and seizedcontraband cargoin a small minorityof cases"); "IraniansStop 2 Soviet FreightersBelieved
Carrying Cementfor Iraq,"N.Y. Times,4 Sep. 1986,p. Al, Exhibit 15;"Iran MarinesBoard 14Ships
in Search forIraq War Goods,"N.Y. Times, 3 May 1987,p. A22, Exhibit 15. (Copies of al1of the
newspaper articlesreferred to in this Part are collectedchronologicallyinhibit 15.) Cordesman &
Wagnerreport Iran intercepted nearly 300cargo shipsduringOctober 1985,and keptupthat rateduring
the restof the earlywinter,p. 213, Exhibit 11.
19Duringthe Gulf war,the U.N. Security Counciladoptedsix resolutions callingupon Iran andIraq
to ceasetheirmilitaryoperations. Res.479, U.N. Sec.Council(2248th meeting,28 Sep. 1980),revrinted
in U.N. Doc. SmJFt36, p. 23; Res.514, U.N. Sec. Council(2383rd meeting, 12July 1982),U.N. Doc.
-
S/RES/514;Res.522.U.N.Sec.Council(2399th meeting,4 Oct. 1982),U.N.Doc.SRES1522;Res.540.however,the United Statesundertook appropriate stepsto protect its interestsand those of other
friendly States, especiallybecause of an Iranian threat to close the Strait of Hormu- a major
strait used for international navigati-nand the likelihood thatU.S. ships would be attackedin
the Gulf."
1.11 In particular, the United States exercised its right under international lawto deploy
additionalwarships to theGulf to protect merchant ships flying the U.S. flag, and laterto protect
U.S.-ownedand othermerchant ships flying other flags,that were not bound for Iran or Iraq and
were not carrying contraband for either of the two belligerents. Other States also deployed
warships to the Gulf for thispurpose, including the United Kingdom, France, the Netherlands,
Italy, Belgium, and the USSR.2'
1.12 NumerousIranian helicopter attacks against merchant shippingwere launched from
Persian Gulf oil platforms in 1985 and 1986.22 Subsequently, Iran's indiscriminate attacks on
merchantvesselswere conductedby smallhigh-speed twin-engine boatsof Swedishmanufacture,
commonly called Boghammers. These patrol boats were equippedtypically with machineguns,
U.N. Sec.Council(2493rdmeeting,31Oct. 1983),U.N.Doc.S/RES/540;Res. 552,U.N.Sec. Council
(2546th meeting,1 June 1984),U.N.Doc.S/RES/552;Res. 582, U.N. Sec .ouncil (2666thmeeting,24
Feb. 1986),U.N.Doc.S/RES/582;Res. 588,U.N.Sec.Council(2713thmeeting,8Oct.1986),revrinted
in U.N. Doc.S/MF/42,p. 13;Res.598,U.N.Sec.Council(2750th meeting2 , 0July 1987),U.N.Doc.
-
S/RES/598.Theseresolutions arereproducedinExhibit13.
20 "U.S.PolicyinthePersianGulf', pp. 3-4,Exhibit3.
21
Cordesman & Wagner,pp. 314-315,Exhibit 11; "U.S.Policy inthe PersianGulf, Exhibit3;
StatementbytheItalianMinisterof Defence,8September1987,revrintedindeGuttry & Ronzitti,p.445,
Exhibit9. In April 1987, Kuwait signedn agreement withthe SovietUnionto lease Soviettankersto
Kuwait;by May 1987the firstof three Sovietshipsleasedto Kuwaitbeganoperatingin the Gulf,with
a Sovietfrigateandwominesweepers asescorts. "IraqiMissileHitsU.S. NavyFrigateinPersianGulf',
N.Y.Times,18 May1987,p.A-1, Exhibit15.
22 NavyList,Exhibit10;Cordesman & Wagner,pp.230-23 1,Exhibit11.rocket launchers (including rocket-propelled grenades),and small arms. They weremanned by
members of the Islamic RevolutionaryGuard CorpsNavy (IRGC or Pasdaran). The IRGC also
used similarly armed Boston Whale boats and other small boats. In addition, the IRGCused a
numberof islands,oilplatfonns,and shore-basedradar stations in the Persian Gulf to supportand
coordinateattackson merchantshipping. Iranian speed boats were deployedfrorn such facilities
to attackshipping and to lay naval mines.Other attackson merchant shipping were conducted
by regular Islarnic Republic of Iran Navy (IRIN)personnel from Iranian frigates or fighter air-
1.13 U.S.-owned vessels were arnong those attacked by Iranian military vessels. For
example, on 9 July 1987, an Iranian Engate attacked and damaged the U.S.-owned, Liberian-
flaggedtankerPeconicoff Kuwait, and on 6 November 1987,Iranian Pasdaran speed boatsfrom
Abu Musa attacked with rocket-propelled grenadesthe U.S.-owned, Panamanian-flagged tanker
"
Grand Wisdom inthe southern Persian Gulf about20miles west of the United Arab Emirates.
On 16 November 1987, Iranian small boats attacked and severely damaged the U.S.-owned,
Bahamian-flagged tanker EssoFreevort and the U.S.-owned, Liberian-flagged tanker Lsnear
the Straitof Hormuz.26From the information available tothe United States,none of these ships
l3Cordesman & Wagner,p.285,Exhibit 11.
24Cordesman & Wagner, iu.
" Sl16877lAdd.5,pp. 8, 14,Exhibit14; Sreedha& Kaul,pp. 119& 124,Exhibit6;Cordesman &
Wagner, p. 334, Exhibit 11.In fact,the GrandWisdom was subject toa gunattackfroman Iranian
frigate.NavyList,p.6, Exhibit10.
Sl16877lAdd.5, p. 15,Exhibit14;Sreedhar& Kaul,p. 125,Exhibit6;Cordesman & Wagner,p.
335, Exhibit11;"GunboatsAttack U.S.Tanker",Foreign BroadcasItnformation Servic. earEastand
South Asia, 16 Nov. 1987, p.23 (hereinafte"mu) Ex,hibit 15;"LloydsReportsLiberian Tanker
AttackedbyIran",FBIS,17Nov. 1987,p.20,Exhibit15.wasboundto or fiom Iraqi ports orcanying contraband or Iraqi oil, 27and none had been subject
to visit and searchby Iranian warships on the voyagein whichthey were attacked.
1.14 U.S. militaryforcestook an active role in responding to requests for help fromU.S.
and othervesselsin distresswhen attackedby Iranian military andparamilitary patrol boats. For
example,on 12December1987,following an attackby an Iranian frigate off Dubai, a helicopter
from the destroyer USS Chandler rescued 11 seamen from the buming Cypriot-flagged tanker
Pivot, which was canying a full load of SaudiArabian cmde oil. Four crewrnen were injured.
two seriou~l~.~~ On 25 December 1987, a U.S. Navy helicopter rescued eleven seamen and a
British Navy helicopter rescued nine searnen fiom a burning South Korean freighter, the
Hvundai-7, after it had been attacked by Iranian small boats 25miles north of Sharjah. 29
1.15 This assistancesometimes brought U.S. military forces into hostile contact with the
Iraniansmall boats, which would attack theU.S. forces. For instance, on 8 October 1987,three
Iranian fast attack boats in international waters about 15miles southwest of Farsi Island fired
upon U.S. helicopters that had taken off fiom the mobile sea base Hercules to defend it. Two
of the three U.S. helicoptersretumed fire, sinking al1three of the Iranian boats30 On 9 October
1987,the United States notified the Security Council that ithad taken this action in the exercise
" OutboundtankersattackedbyIraqgenerallycarriedKuwaitior Saudioil.
28 Sf16877fAdd.5p ,. 17,Exhibit14;Sreedhar & Kaul,p. 126,Exhibit6; "U.S.NavyRescuesTanker
CrewinGulf',N.Y.Times,13Dec.1987,p.L-3, Exhibit15.
29 Sf16877fAdd.5p ,. 18,Exhibit14;Sreedhar & Kaul, p.128,Exhibit6;"LloydsCited inAttackon
S.KoreanShip",FBIS,28Dec.1987, p.27,Exhibit15.
30 Letterfromthe PermanentRepresentative of theU.S.to the U.N.Security Council9, Oct. 1987,
U.N. SecurityCouncilDoc. Sf19194,Exhibit 16;Letterfrom PresidentReaganto the PresidentPro
Temporeof the Senateandthe Speakerof the House, 10Oct. 1987, inWeeklyCompil.of Pres.Docs.,
p. 1159(1987)Exhibit17; Cordesman & Wagner, pp.325-326,Exhibit 11.of its inherent rightof self-defense.
In thatcommunication. the United States noted that ithad
informed Iran previously thatit would take appropriate defensive measures against such hostile
attacks." Separately, the United States informed Iranthrough the good offices of the Protecting
Power, the Government of Switzerland, that Iran should take note that such hostile actions will
be defended against in the future by U.S. forces asin the recent
1.16 Other nations also were forced to take steps to protect their shipping from these
atta~ks.~~After the 13July 1987attack by two Iranian small boats on the French container ship
Ville d'Anvers,France broke diplomatic relationswith Iran and announcedon29 July 1987that
the aircraftcarrier Clemenceau and three support shipswere being dispatchedto the Gulf area. 34
After the 3 September 1987 attack on the Italian cargo ship Jollv Rubino, Italy announcedthat
it would sendshipsto the Gulf to protect Italian mer~hantrnen.~~
1.17 In additionto fastattack boats,Iran used naval mines, missilesand aircraft to attack
neutral merchant shipping in the Gulf.
1.18 Contrary to Iran's denials of minelaying in international waters, in1987and 1988
Iran laid at least seven mine fields in the international waters of the Persian Gulf and inthe
- . --
3' U.N. Doc.Sl19194,Exhibit16.
3' MessagefiomtheU.S.toIran,18April1988; in Dep'tof State Bulletin,une 1988p , .36,Exhibit
18.
33 Britishand Soviet warshipshad been inthe Gulfsinceshortlyafterthe beginningof the war.
Cordesman & Wagner, pp. 1031 ,28& 316,Exhibit 11.
34Sl16877lAdd.5,p. 8; Exhibit6, Sreedhar & Kaul,p. 120,Exhibit14;"FrenchShipisAttacked in
Gulf, RaisingParis-Teheran Tensions",N.Y. Times,14July 1987,p.A-6,Exhibit15.
35Italyfirmlyprotestedto Iranaboutthisattack. Statemen ty the Ministerfor ForeignAffairs,11
Sep. 1987r,e~rintedindeGuttry & Ronzitti,p.449,Exhibit9. Cordesman & Wagner, pp .11,3 13-314,
Exhibit 11;"IranFires Missileat Kuwait",Wash.Post,5Sep.1987,p. A 1,Exhibit15. -14-'
internûrional waters of the Gulf of Oman. These mines inflicted extreme damage to ships and
lossof life.
1.19 Forexample, on 24 July 1987.the S.S. Bridgeton, a U.S.-reflagged Kuwaiti tanker
under U.S. military escort into the Gulf, hit an Iranian mine in international waters about 18
miles \vest of the Iranian island of Farsi, causing extensive damage to the ship.36 Map 1.
Consequently, the United States ordered U.S. Navy minesweeping helicopters to the G~lf.~'
Other nations dispatched mine hunting and sweeping unitsas well. On 11 August 1987, the
United Kingdom and France announced that they would send a total of seven mine hunting
vesselsto the~ulf.~' In September,Belgium, the Netherlands, andItaiy announced thatthey also
would dispatch a totalof seven minesweepersto theGulf 3.
1.20 Unfortunately, despite these efforts, the mines laid throughout the Gulf continued
to inflict extensiveamage to innocent vessels. In August and September 1987,three ships hit
Iranian mines, resulting in thesinking of two of them andthe death of four cre~rnen.~~
36 S/16877/Add.5,p. 9, Exhibit14;Sreedha& Kaul,p. 120,Exhibit6; ExhibitIl, Cordesma&
Wagner,p. 298; M.'Palmer,GUARDIAN OFSTHE GULF:A Historyof America'sExpanding Role Inthe
Persian Gulf,1883-1992,p. 131,Exhibit19;"AftertheBlast,Joumey Continues" ,.Y.Times,25July
1987,p.5, Exhibit15.
37 Cordesman & Wagner,pp. 299-300,Exhibit 11;"U.S.Actsto Bolster GulfMineDefenseson
SeveralFronts",WallStreetJourna4Aug.1987,p. 1,Exhibit15;"8U.S. HelicoptersArrive forMission
to Sweepthe Gulf', N.Y. Times,17Aug. 1987,p. A-1,Exhibit15;"U.S.Orders8 Old Minesweepers
totheGulf',N.Y. Times,20Aug. 1987, p. A1,Exhibit15.
38Cordesman & Wagner,pp.304-305,Exhibit11; "EuropeansSend MineSweepers",Wash.Post,
12Aug.1987,p. Al, Exhibit15.
39 Cordesman & Wagner,pp.313-315,Exhibit11;"DutchSending2 Ships toHunt Mines inGulf',
N.Y. Times,8 Sep. 1987,p. A3,Exhibit 15;"Perezde Cuellar'sGulf TripEndsin ApparentFailure",
Wash.Post,16Sep. 1987,p. Al, Exhibit15.
40Thesewerethe TexacoCaribbean,Anita,andMarissa 1. SI16877lAdd.5,p.9, Exhibit14; Sreedhar
& Kaul, pp.120, 121,Exhibit6. I 1 1 I I I 1 I 1 I I I I I 1 I 1 1 1 I I 1 I -
50' 52' 5)' 56' 58'
1987-1988
A Selectedoit plotform
A Worshipottocked
A lronionminefield
Persion
Specially preparedfor presentotionto the lnternationolCourt of Justice 1.21 At times Iran denied that it was the source of these mines. Nevertheless. in a
Tehran radio dispatch on 20 August 1987, Iran admitted thatit had mined the Persian Gulf.
purportedly to "protect" its coa~tline.~' On 21 September 1987,the Iran Air was observed by
U.S.helicopters laying mines at night near the Bahrain Bell inan international shippingchannel
usedregularlyby U.S.shipsinthe central PersianGulf. The United States military forces seized
the Iran Air and subsequently destroyed the vesse1so that it could no longer threaten U.S. and
neutraivessels. NinearmedIranian-mademines ready for deploymentin shipping channelswere
foundon board. Chartsaboard theshipdetailing the minelayinghelped the U.S. Navy locate and
disarm nine additional mines identicalto those captured on the Iran Air that similarly had been
laid thatnightby Iran Airin international shippingchannels. 42 These facts conclusively disprove
Iran's denials that Iran Air was engaged in minela~ing.~~ Contrary to well-established
international law, no notice had been given to the international comrnunitythat these minefields
had been laid, and none of these mines had been set to disarm when it broke loose from its
mooring as required by international la^.^^
"
"Iran Says itMinesthe Gulf', Wash.Post, 21 Aug. 1987,p. Al, Exhibit 15; "Discovering
Self-Interest",.Y. Times,23 Aug. 1987,p. D22,Exhibit15. Iranadmitslaying mines only near the
KhorAbdullah.IranianMemorial,para. 4.65.
42Letterfromthe Permanent Representativ oeftheU.S.tothe PresidentoftheU.N.Security Council,
22 Sept. 1987,U.N. Security Council Doc.S119149,Exhibit20; Letterfrom PresidentReaganto the
Speakerof the Houseof Representatives andthe PresidentProTemporare for theSenate,24 Sep. 1987,
inPublicPamrsof thePresidents of theUnitedStates: RonaldReagan(1987).at p.1074(1989).Exhibit
21;"Caught in the Act",Time,5Oct. 1987, pp. 20,22, Exhibit22;O'Rourke,"Gulf Ops,"inU.S.Naval
Instituteroceedings/NavaR l eview 1989p,.50.n.3,Exhibit23.
43
IranianMemorial,paras.1.97,1.98 & 4.68.
44 Articles l(2)& 3, HagueConvention VI11 of 1907;Exhibit 21,Letterfrom PresidentReagan;
Exhibit 11, Cordesman & Wagner, pp.565 & 589 n.57,Exhibit 11;Boczek,p. 179,Exhibit2. Iran
acceptsthe requirementof giving noticeto the international communitwyhen itlaysnavalmines,yet it
makesno excusefor failingto do so for the mines itadmitshaving laid.IranianMemorial, para4 ..66 - 16-
1.22 In accordancewithArticle51of the UnitedNations Charter, on22 September 1987,
the United States notified the Security Council thatit had taken this action against the Iran Air
in the exercise of its inherent right of self-defense. In that communication, the United States
noted that it had previously informed the Iranian Governrnent that it would take appropriate
defensivemeasuresagainstsuchprovocativeactions, which present an immediate riskto al1ships.
includingthose of the United States.45On 9 October 1987,theUnited Statesagain advised Iran
that the laying of mines in international waters will be defended against in the future by the
United States.46This waming to Iran was repeated on 19October 1987. 47
1.23 Nevertheless, on 13April 1988,Iranian ships laid new minefields in international
watersusedby US and other neutral vesselsin the southern Gulf, near Shah Allum shoal and the
Rostam platform. The next afiernoon, 14 April 1988, at about 5:00 pm, the USS Samuel B.
Roberts, retuming to Bahrain after having previousiy convoyedU.S. merchant vessels through
the area, encountered three newly-laid contact mines in international waters near ShahAllum
sh0a1.~* While attempting to back out of the minefield, the Roberts stmck a submerged mine,
which caused extensive darnage to the vesse1and injured ten crewrnen, some serio~sl~.~~Map
4s UN Security CounciDoc.Sl19149,Exhibit20.
46 See,MessagefromtheU.S.toIran,18April1988,Exhibit18.
47-Ibid.
48ContrarytoIran's assertion that eaterwas"extremelyshallow"(IranianMemorial,para.1.116),
thechartedwater depth atthispointis 62metersor36fathoms. S~Annex 1, para. A 1.17.
49 Letterdated 19April 1988fromPresidentReagan totheSpeakeroftheHouseof Representatives
and the PresidentPro Temporeof the Senate,in PublicPa~ersof the Presidentsof the UnitedStates:
RonaldReaean (1988),at p. 477(1990),Exhibit25; Cordesman & Wagner, pp.298,375-376,Exhibit
11;"BlastDamagesU.S.Frigate inGulf',N.Y. Times,15Apr. 1988A , 21,Exhibit15.The mineexplod- 1.24 On 18 April 1988,the United States attacked theNasr (Sirri) and Sassan(Salman)
platforms. which,inaddition toproducing oil, wereused to support attackson innocent shipping.
On the sarneday,the UnitedStatesdulynotified the Security Council thatit hadtaken this action
in the exercise of its inherent right off-defen~e.~'Also on that same day, the United States
separately remindedIran thatit had beenrepeatedly warned of the consequences of placing mines
in the international waters ofthe Persian Gulf in violationof international51aw.
1.25 Iranalsoattackedinnocent shippingby surface-to-surface missiles. Iran maintained
Silkworm missile sites on the Faw Peninsulafrom the time it captured the peninsula inJanuary
1986. Iran launched Silkworm missiles from those sites in1987, damaging Kuwaiti shipping
facilities anderchant ships off Kuwait."
1.26 On 4 and 5 September 1987, Iran fired three Silkworm missiles from the Faw
Peninsula toward Kuwait. The missiles landed in Kuwait but caused little damage. At about7
a.m. local time15 October 1987, an Iranian Silkworm missile fired from the Faw Peninsulahit
the U.S.-owned, Liberian-flagged oil tanker Sungari which was anchored off Kuwait's Mina
al-Ahmadi port in Kuwaiti territorial waters. Fortunately, there were no casualties. about 6
a.m. localtirnethe next morning, another Iranian Silkworm missile hit theaft crew compartment
ed on the portsideof thekeelby the engineroom,openinga hole30 by 23 feet. Extensivedamage
occurredfromthe explosionandsubsequentfireandflooding.O'Rourke, p.44,Exhibit23.
JO
Letterfromthe ActingPermanentRepresentativeoftheU.S.to theU.N.Security Council,18April
1988,U.N.Security Council Doc.SI19791,Exhibit26.
5' Messagefromthe U.S. to Iran,18April1988,Exhibit18.
52 Cordesman & Wagner, pp.3 11-312,Exhibit11. -18-
of theSea Isle Citv,a Kuwaiti-owned,U.S.-flaggedtanker proceedingto the oilloadingterminal
from the anchorage seven nautical miles east of Mina al-Ahmadi. Eighteensearnen.including
the U.S.captain,were injured. 53
1.27 On 19 October 1987, United States forces destroyed thR eashadatplatformin the
Rostamoil field. Theplatform,whichwas inoperativeas an oil production facility, ''was located
nearthe sealanes andhad beenusedby the Pasdaranto track and report ship movements, as well
as to launch mines and boatattack~.~~On the same day, the United States dulynotified the
Security Councilthatit hadtakenthis action inthe exerciseof its inherent rightof self-defense.56
Irancontinueditsmissile attacks, andon 22 October 1987,anotherIranianSilkworm missilehit
Kuwait'sSeaIslandterminal.57
1.28 Iran denies firing the Silkworm missilesfrom the Faw Penin~ula.~~ It asserts "the
Sea Isle Citv was well-beyondthe range of a Silkworm missile even if such missileshad been
53 U.N. security CouncilDoc. Sl16877, Add.5, p. 14, Exhibit 14; Letter from the Permanent
Representative of Kuwaitto the U.N. Security Council,15October 1987,U.N. SecurityCouncil Doc.
S119210,Exhibit 28; U.N. Doc. Sl19219,Exhibit27; PresidentialLetterto Congress,20 October 1987,
p. 1212, Exhibit 29; Cordesman & Wagner, pp.311-312, 328-332, Exhibit 11; "Iran FiresMissileat
Kuwait", Wash.Post, 5 Sep. 1987,p. Al, Exhibit 15; "Iran Hits U.S. Owned Tanker",Wash.Post, 16
Oct. 1987, p. Al, Exhibit 15; "UN Head Told of Attack", m, 19 Oct. 1987, p. 17, Exhibit 15:
Cordesman & Wagner,p. 328-329,Exhibit 11.
54 IranianMemorialpara. 1.10 1.
" Palmerp. 139,Exhibit 19.
56 Letter from the Permanent Representativeof theU.S. to the U.N. Security Council,19October
1987,U.N.SecurityCouncil Doc.SI19219,Exhibit27.
57"Silkworm HitsKuwaitiOil Terminal",Wash.Post,23 Oct. 1987,p. A-1,Exhibit 15.
58
IranianMemorial,paras. 1.105,4.72, and4.74and Maps4 and 5.placedon F~o".'~In this respect, Iranassertsthat the Silkworm'smaximum effective rangewas
about 85 km (or 45.7 nautical miles), while the distance from Iranian-held territory on Faw
60
Peninsula tothe ship was almost 110km (or 60 nautical miles).
1.29 Nonetheless, Iran had publicly threatened to attack Kuwait with missile^.^-'
Moreover, Iran does not explicitly deny possessing anySilkworm sites on the Faw Penin~ula.~'
In fact, it possessed two sites and a storage facility located therefrom the time it captured the
peninsula from Iraq. Finally, the shipas located within the outer limit of the range of the
Silkworm missilespossessedby Iran.63 Map 2.
1.30 Iran also inflicted considerable damage on innocent merchant shipping in the Gulf
through aircraft attacks, usually by F-4 fighter aircrafi using Maverick missiles and gravity
bombs. Most of the 71 Iranian attacks on shipping between May 1984 and October 1986used
these ~ea~ons.~~On 2 February 1988,two Iranian F-4s once again attacked a merchant ship in
the southem Persian Gulf with Maverick missiles,this time firing two at the Liberian tanker
59IranianMemorial,para.4.72.
60
IranianMemorial,paras.1.105,4.72,and4.74andMaps4 and 5.
"
On 25 July 1987,Tehranradio quotedIranianPresidentAli Khameinias threateningto fire
missilesat Kuwait.New~ortR.I.DailvNews,4 Sep.1987,p. 1,Exhibit15.
62IranianMemorial,para.1.105.
63The ship wasactuallyiocated 50.8 nautical m(s4km)measuredalong thegreatcirclefrom
the tip of the FawPeninsula. IranpossessedneseHY-2 Silkwormmissileswhich have amaximum
rangeof95km(5 1 nauticalmilesSee,N. Friedman,THE NAVAI LNSTIWTG EUIDE TOWORL D AVAL
WEAPON SYSTEM (S989),p.79,Exhibit30. See alsoJANES EAPOS NYSTEM 1985-86,p. 75,Exhibit
31.
64 Maverickmissilescan be launchedfrom ranges of0.5 to 13nautical milesand are television
guided. Thelaunching aircraftmustbeableto keepisualtrack ofthe target,butdoesnothaveto scan
the target with radar.Friedman,pp.&4775-76,Exhibit30;Cordesman & Wagner,pp.393,409 n.90,
579 & 590n.68.Exhibit11. i 49' I X)'
- -
l R A N
IRAQ
30' 30'
Peninsulato SS Seo lsle City
- 50.8 nouticol miles
KUWAIT
Persian
29'
Gulf
'Oomh
.Umm al
- -
f 3
SAUDl Distance from
AL Faw Peninsula
to SS Sea Isle City
A R A B I A
28' kilometers
Specioliypreporedfor presentotionto thl ourtof Justice Petrobulk Pilot.65
'' Sreedhar& Kaul,p. 130,Exhibit6; Cordesman & Wagner,p. 363, Exhibit11;"IranTriesAerial
AttackonCargoShipinGulf',ChristianScienceMonitor,3 Feb. 1988, p.2, Exhibit15.
, CHAPTERII
UNITEDSTATES MILTTARY FORCES DESTROYED THEIRANIANOILPLATFORMSAT
RASHADAT (R0ST.-.VI) ON 19 OCTOBER 1987IN RESPONSE TO THEIRUSE TO
SUPPORT ATTACKS BY IRAN AGAINST U.S. AND OTHERNEUTRAL VESSELS
ENGAGEDIN PEACEFUL ACTIVITIES IN THE PERSIAN GULF
1.31 On 19October 1987,the United States responded to the attack on the Sea Isle
as the latestin a seriesof Iranianmissile attacks againstU.S.-flaggedand other non-belligerent
vessels. At approximately2 p.m.localtimeon that date, after loudspewarningsin Farsiand
English to personnellocatedontheRashadat(Rostam)~latfok andafierallowingthemto depart
the platform, Armed Forces of the United States attacked and destroyed the platformT. he
platform,whichwasinoperativeas an oilproductionfacility,was armed and equipped with rad"r
andcommunicationsdevicesbeyond that reasonably required for the defensipurposesalleged
by Ir&. Rather,this facility frequently wasusedfor surveillance inthe southcentral Gulf,and
asa stagingbasefor small boat and helicopter attasn innocent shipping.Themilitary forces
stationed on the platfhadmonitoredthemovementsof nearby United Statesmerchantvessels
bytwosurface search radarand othermeans,assisted in resupplying small boats and helicopters
which attacked innocent shipping; and coordinated mine lanngthe pathof US vessels67
1.32 In connection with the attacon the Rashadat Platform.U.S. forces boarded and
searched another non-producing platform nearby ,e Resalat (Rakash),when Iranian military
personnel onthe platform engaged in action that threatened U.S. fmanningoneof its two
66
IranianMemorial,paras1.102and1.103.
67 SI19219,Exhibit27; PresidentiaiLetterto Congress,20Oc1987,Exhibit29; Cordesman &
Wagner, p.330,Exhibit11. -22 -
twinZU-23mm guns to use against the approaching U.S. forces. TheU.S. searchteam boarded
the platform immediately following the departure of theIranian military personnel manning the
platfom and discovered two different kinds of radarsand other equipmentuseful tosupportand
coordinate attacks on innocent shipping. Rakash was destroyed to prevent its continued use in
supporting ship attacksin the southern Persian Gulf.
1.33 In accordance with Article 51of the Charter of theUnitedNations, on 19October
1987,the United States irnmediatelynotified the Security Councilthat it had taken this action in
the exercise of its inherent right of self-defense. In that communication, the United States
referred to the missileattack on theSes as the latest in a seriesof such missile attacks
against U.S.-flagged and other non-belligerent vesselsin Kuwaiti waters in pursuit of peaceful
commerce. The UnitedStates alsonotedthat these Iranian actions were only thelatest in a series
of unlawhl armed actions by Iranian forces against the United States, including laying minesin
international waters for the purpose of sinking or damaging U.S. flagged ships and firing on
United States aircraft without prov~cation.~'
S/19219,Exhibit27. TheactionsoftheUnitedStatesweresupportedbyother countries withships
in the area. Forexarnple,inresponse toa questioninthe Houseof Lords, the BritisMinisterof State,
ForeignandCommonwealth Office,statedthat:
"Basedonthe evidence availablei,t isourviewthat the actitakenbytheUnitedStates
on 19thOctober was entirelyjustifiablinexercise oftheir rightof self-defenin the
faceoftheimminentthreatoffutureattacks."
Exhibit9,490Parl.Deb. H.L.(5thser.)724(1987),re~rinted indeGuttry & Ronzitti,atp.370. CHAPTERIII
UNITED STATES MILITARY FORCES DESTROYED IRANIANOIL PLATFORMSAT
NASR (SIRRI) AND SALMAN(SASSAN)ON 18 APRIL 1988IN RESPONSE TO THEIR
USE TO SUPPORT ATTACKS BY IRAN AGAINST U.S. AND OTHER VESSELS
ENGAGEDIN PEACEFUL ACTIVITIES INTHE PERSIAN GULF
1.34 At approximately 5:00 p.m. local time on 14April 1988, the USS Samuel B.
Roberts struck a minein the vicinity of the Shah Allum Shoals,in international waters,while
returning to Bahrain after escorting US merchant vesse1in the Gulf. Ten U.S.sailors were
injured, one seriously, and theship was damaged severely.United States and other mine
clearance forces located and neutralized the remaining minesthesetwo minefields laidin
the convoy routeknownby Iran to be usedby neutral, including U.S., ves,ndintendedby
Iranto damageor sinksuchvessels. The mines were identifiedas Iranian-made moored contact
mines(withIranianserialnurnbers),of the sametype andseriespreviously found on thAirran
and in the otherminefields inthe Persian Gulf andGulf of Oman. The fact that theynotre
encrusted with marine growth constitutedear evidence that theyhad been laid recently by
1.35 In response to thisunlawfuluse of force andas a proportionatemeasureto reduce
the likelihood of further Iranian attacks on merchantvessels,on 18 April 1988, United States
military forces attacked and destroyed thegas oil separation platformsNasr (Sirri), located 19
nautical miles southwestof Sirri Island, and Sassan (Salman), located 3.5 nautieorthiln
of the UAE-ownedAbu Al BuKhoosh oil field. These platforms, likethe Rashadatplatform
69 U.N. DOC.Sl19791,Exhibit26; Letterfrom PresidentReagan,19April 1988,Exhibit25;
Cordesman& Wagner, p.376,Exhibit11; "U.Finds2MinesWhereShip wasDamaged" ,.Y.Times,
16Apr. 1988,p. 32,Exhibit15;"U.SWarshipDamaged by GulfBlast",Wash.Post,15Apr.1988p.
A2 1Exhibit15. -24 -
destroyed inresponse to the Iranian Silkworm attack on the Sea IsleCitv in October 1987,were
beingusedby Iranianmilitary authoritiesto support attacksby Iranian gunboatsand to lay naval
mines. The action taken by U.S. military forces was designed to prevent further use of the
platforms forthese unlawful purposes.
1.36 Iran's assertion that the platfonns were manned and armed for defenseonly7'is
in~orrect.~' The platforms were manned by Iranian naval Guards. After being warned in Farsi
and English to evacuate the platforms, twenty-nine personnel left Sassan platform in two
tugboats;28to 30 leftiaterafter giving up the fight. Searchesof the two platforms revealed that
Sassan was armed with three ZU-23mm automatic guns, and quantities of rocket-propelled
grenades and a 12.7 mm heavy machine gun of the type used by the IRGC in its attacks on
merchant shipping72
1.37 On the same day, the United States sent a message to Iran reminding it of the
repeated warnings of the United States of the consequences of placing mines in international
waters of the Persian Gulf in violation of internala^.'^
1.38 In retaliation, Iranian fighter aircraft were deployed from Bandar Abbas airport to
join Iranian frigates and small boats from Abu Musa Island and Qeshm Island in attacks on
'OIranianMemorial,para 1.13.
" Cordesman & Wagner,p.376,Exhibit11;H.Pawlisch, "OperatioPrayingMantis,inM. Palmer.
ON COURSE TO DESERT STORMT :HEUNITED STATEN SAVY AND THE PERSIAN GULF (U.S. Naval
Historical CentContributionstoNavalHistoryNo. 5, 1992),p. 142,Exhibit32;B.B. Langst&nD.
Bringle, "Operation Praying ManT:e AirView," inNavalInstituteProceedingsMavaReview1989,
May1989, p.56,Exhibit33;Perkins, "Operation Praying MaTs:eSurfaceView,"ibid.p.68,Exhibit
33.
''Cordesman & Wagner;p.285,Exhibit 11
73 MessagefromtheU.S.to Iran,18April1988,Exhibit18. - 25 -
U.S.-ownedor associated oil rigs,platformsandjack-up rigs. Duringtheresulting engagement
with U.S. forcesprotecting these rigs and platforms,two Iranianfrigatesand one missilepatrol
boatweresunkor severelydamaged. One of theIranianF-4s that scrambled fromBandar Abbas
during this incident failed to respond to repeated U.S.warnings. When itcontinuedto closeon
U.S. vessels, theUSS Wainwrightlaunched missiles,damagingthe aircraft. 74
1.39 On 18April 1988,theUnitedStates,in accordance with Article51of the Charter,
notified the SecurityCouncil that ithad taken this actionin the exerciseof its inherentright of
self-defense. The UnitedStatesnoted that the armed attack on the USS Samuel B.Robertswas
but the latest in a series of offensive attacks and provocationsIranian naval forces had taken
againstneutral shippingintheinternationalwatersof the Persian Gulf. The United Statesfurther
noted that it had informed the Governmentof the Islamic Republic of Iranthrough diplomatic
channelson four occasions,most recently on 19October1987,that the UnitedStateswouldnot
accept Iran's mine-laying ininternational watersor in the waters of neutral states in the Gulf
where this would endanger U.S. and other neutral vessels. At that time, the United States
indicatedthat it did notseeka military confrontationwith Iran,but that itwouldtake appropriate
defensivemeasures againstsuchhostilea~ts.~~
1.40 As the United States asserted inits communicationto the SecurityCouncil, U.S.
actions were taken against legitimate militarytargets and al1feasible measures were taken to
minimize the risk of civilian cas~alties.'~In fact, there were no civilian casualtiesbecauseal1
74 LetterfromPresident Reagan1 ,9 April1988,Exhibit25.
'' U.N. DOCS . l19791,Exhibit26;MessagefromtheU.S.to Iran, 18 April1988,Exhibit18.
76U.N.Doc.Sl19791,Exhibit26. The actionsofthe United States wer supported by othecountries
with shipsinthe area. Forexample,on April18th,the BritishSecretaryof StateforForeignandCom- - 26 -
personnel on board both platformswere members of theIranian armed forces.
monwealth Affairs,Mr. Mellor,statedto the Houseof Commons:
"The Americanshave clear evidenceof fiesh Iranian mine laying,a cowardly act which
we utterlycondemn.
** * *
. . . We support the Americanaction as a measured and proportionate response ttohe
Iranianmine laying.
* ***
The unacceptable actionin the recent incident wasclearly the decision of the
Iranians to start laying mines aga-- a cowardly act--the consequenceof which was
the severe damage done to the United States warship in international waters. In those
circumstances, the United States was fully entitled to the right of self-defence, under
Article 51 of the United Nations Charter, to take measured and proportionate action
against Iranian oil platforms which, the United States says,are used to facilitate attacks
on international shipping. 1do not believethat we would be any nearer preventingthe
spread of hostilities in the Gulf if the United States refused to take action on the
provocation offeredby this fiesh mine-laying incident."
131Parl. Deb., H.C. (5th Ser.) 551-5551 ,8Apr. 1988,revrinted in de Guttry& Ronzitti,pp. 285-286,
Exhibit9.
Mr. Mellor laterstatedto the Foreign AffairsCommitteeregardingthis incident:
"What is clear is that the Iranians are put on noticethat if they persist in mining
internationalsea lanes in a waywhich causesdamagecertainlyto United States interests,
they must expect a measured andproportionate response, relying on the right of any
sovereign stateto take actions in self-defence under Article 51 of the United Nations
Charter."
re~rintedin de Guitry& Ronzitti,p. 331,Exhibit9.
On 19 April 1988,the FrenchMinistry forForeignAffairs stated thatit
"reaffirms its attachment to the fieedom of navigation andafety in the Gulf and has
requestedan immediateend to miningoperationsand anyother act hostileto shippingin
international waters,since suchactivitiescan only leadto measuresof self-defence being
taken in accordancewith international lawand the UnitedNations Charter."
Reprintedin de Guttry& Ronzitti,p. 414, Exhibit9. PARTII
THECOURTHAS AUTHORITYINTHESEPRELIMINARY
PROCEEDINGSTOUPHOLD THE OBJECTIONOF THE
UNITED STATESTOTHE COURT'S JURISDICTION
2.01 Iran is invoking ArticleXXI(2) of the1955 Treaty between Iranand the United
Statesas the basis for theCourt'sj~risdiction.~~The United States notes at theoutset that. as
Applicant,it is Iran'sduty to establish thatthe Court hasjurisdiction tran'sApplication
isotherwiseadmi~sible.~'TheUnited States will demonstrate that Irnannotmeetthatburden.
ArticleXXI(2) conferson the Court jurisdiction todecidedisputes relating to the interpretation
and applicationof the Treaty. It isthe contentionof the United States that tnot a dispute
involvingthe interpretationor applicationof 1955 Treaty and, accordingly, the Court has no
jurisdiction under the Treaty. The United States invokes Arti79eof the Rules of Courtand
requests that the Court address the iefjurisdictionfirst.
2.02 Thisobjectionraisesa questionof whether there is a reasonable connecnetween
thetreatyinvokedby Iran toestablishjurisdiction and tclaimssubmittedto the Court. In the
view of the United States,on the basisof any reasonable interpretatof the1955 Treaty, the
factsreadilyavailable tothe Courtsustainthis objection. TheCourtcandisposeof the objection
at thisstage even ifthe objectionraisesissues that touch uponthe meritsof the case. Paragraph
6 of Article 79 of the Rules of Court authorizes the Court to addressal1 legal and factual
questions that bear on the issue of a preliminary objection, even to textent of adducing
77
CaseConceming OilPlatforms(IslamicReuublicofIranv.UnitedStatesofAmerica)A. pplication
of the IslamicRepublicof Iran of2 November 1992,p. 8 (hereinaftIranianApplication)Iranian
Memorial, para. 2.01.
S. Rosenne,THE LAW AND PRAc~CE OF THE INTERNATION CAULRT p.580 (2ded. 1985)
("Generally,inapplication of the principle anrciumbiturobatiotheCouwillformallyrequire the
party puttingforwarda claimto establish the elementofctandof law onwhichthedecision in its
favourmightbegiven."),Exhibi34. evidenceon such questions,in order to disposeof that objection. Thehistoryof that provision
demonstratesthatitsessentialpurposeisto facilitateandencourage the Court to dispose of cases
at the preliminary objection stage even whereto do so may touch upon the merits of the
proceeding.
2.03 Intheearly1970s,in connection with the consideration of proposalsto enhancethe
effectiveness of the Court, representatives inthe Sixth Cornmitteeof the GeneralAssembly
criticizedthe previous practiceof the Court injoining preliminary objections the merits. The
debates in the Sixth Committee were surnmarized in 1970 in the analytical reportof the
Comrnitteeto the General Assemblyas follows:
"In particular, the view was expressed that it woulb de usehl for the Court to
decideexpeditiouslyon al1questions relatingtojurisdiction and other preliminary
issues which mightbe raisedby the parties. The practice of reservi-ngdecisions
on suchquestionspending consideration of the meritsof the case had many draw-
backs and had been sharply criticized in connexion with the South West Africa
cases andthe Barcelona Traction case."79
This was repeated the next year and was surnmarizedas follows in the 1971 report of the
Cornmittee:
"Mention was also madeof a suggestion thatthe Court shouldbe encouragedto
take a decision on preliminary objectionsas quickly as possible and to refrain
fromjoining them tothe merits unless it was strictlye~sential."'~
2.04 In 1972,the Rules of Court were revised to encourage decisions on question of
jurisdictionandadmissibilitypnor to themerits phase.Previously,the Rulesexpressly authorized
the Court to jointhe objectionto the merits. Paragraph5 of Article 62 ofthe 1946Rules had
79 Reviewof the Roleof the International Cou orft Justice,Reportof the SixthCommittee11
December1970,UNGeneral AssemblD yoc.Ai8238,p. 19,Exhibit35.
80
Reviewof the Role ofthe International Cour otf Justice,Reportof the SixthCommittee,10
December1971, UN General AssemblD yoc.Ai8568,p.21,Exhibit36.provided:
"Mer hearingtheparties theCourt shallgiveitsdecisionon the objectionor shall
join theobjection tothe merits."
In 1972, the Rules relating to preliminary objectionswere revisedto eliminate this express
authorization andprovideinstead arule intended to encourage the disposof suchobjections
prior tothe considerationof themerits, evenif thisrequired addressing quesof law or fact
thatmaytouchuponthemerits. Paragraph 7of Article 67of the 1972Rules,whichcorresponds
to paragraph 7of Article79of thecurrentRules,provides:
"After hearing the parties, the Court shall give its decision in the form of a
judgment, by which it shail either upholdthe objection,reject it, orrethat
the objectiondoes not possess,in the circumstancesof the case, an exclusively
preliminarycharacter.If theCourtrejectsthe objectionor declaresthat it doesnot
possess an exclusively preliminary character,it shall time limits for further
proceedings."
2.05 Moreover,the Court added a new provisionin Article6 that provides:
"Inorderto enablethe Court to determine itsjurisdictat thepreliminary stage
of the proceedings,the Court, whenever necessary, may request the parties to
argueal1questionsoflaw andfact,andto adduceail evidence, which bearonthe
issue."
81
Theserevisionshavebeenrecognizedas oneof themostimportant changesmadeinthe Rules.
2.06 Pnor to theserevisions,the Courthadfeltcompelled tojoin theissueofjurisdiction
withthe meritswheredeterminationof a prelirninaryobjectionrequired consideraof questions
of fact or lawthat may bear a closerelationshipto someof the issuesonthe meritsof thecase.
Asrecognizedby the Memberof the Courtwhowasthechairmanof the Court'scornmitteethat
''
E. JimenezdeArechaga, "ThA ernendmenttso theRulesof Procedureofthe InternatioClourt
of Justice,67 AmericanJournalof InternationLaw, pp. 1,at p 1(1973),Exhibit37;G. Guyornar,
COMMENTAI DUEREGLEMEN DE LA COUR INTERNATONALEDE JUSTICE- INTERPRETATION ET
PRATIQUp E.,371(1972),Exhibit38.proposedthese revisions and one of their principal architects, paragraph6 is intendedto provide
a different solution to such difficulties:
"In the presenceof such an objection, the Court, insteadof bringing in the whole
of the merits byeansof ajoinder, would, accordingto paragraph 6, request the
partiesto argueat the preliminary stagethose questions, eventhose touching upon
the merits,whichbear onthejurisdictional issue. Thus, there would nolonger be
justification for leaving in suspense or for postponing a decision of the Court's
ownjuri~diction."'~
Similarly, Professor Guyomar concluded:
"L'alinéa 6 reconnait àla Cour le droit d'inviter les PartiBsdébattre tout point
de faitou de droit, eà produire tout moyende preuve ayanttrait Bla questionde
la compétencede la Cour, ceciafin de permettre cette dernièrede se prononcer
surce point au stage preliminaire de la procédure. L'accent semble donc mis sur
lanecesitéde statuer sur la comvétence avant d'entamer l'examen de l'affaire au
fond: c'est là un tldment nouveau et vraisemblablement très im~ortant."'~
(Emphasis added).
2.07 The UnitedStates'objectionto Iran's assertionofjurisdiction under the 1955Treaty
isthe kind of objection whichcan and should be disposedof under paragraph 6of Article 79 of
the Rules. This objection goes to the question of whether there is a reasonable connection
betweenthe Treaty and Iran's claims andraises the fundamental issue of the absenceof consent
by the United States tothese proceedings.
2.08 In accordance with Article 36(1)of the Statute, thejurisdiction ofthe Court under
E.Jimenez deArechaga;op.cd., p. 13, Exhibit37
83 G. Guyomar, B. A., p.371, Exhibit 38. As translatedinto English,ProfessorGuyomar
concluded: "Paragraph 6 acknowledges theCourt'srightto invite theParties to debaanypointof fact
or law,andto produceanyevidence relating to the issueof theCourt'sjurisdictiinordertoallowthe
Court to rule on thispointinthe preliminary staof the procedure.In thiswav,theemuhasisauuears
to be ulacedonthe needto ruleonthe rnatterof iurisdictionuriorto undertakinganexaminationof the
caseonits merits. Thisisanew andseerninglvvervim~ortantelement."(Ernphasisadded.) -31 -
the 1955 Treaty rests on the consent of the States c~ncemed.'~
2.09 A state cannot be presumed to have consented to jurisdiction simply on the basis
of a mere assertion by another State that a particular dispute arises under one of those conven-
tions. As the Court expressly held in Arnbatielos, "It is not enough for the claimant government
to establish a remote connection between the facts of the claim" and the treaty upon which
jurisdiction was founded.*' The claimant government must establish a reasonable connection
84 See Anelo-IranianOil Co. (United Kinedomv. Iran).Judment. I.C.J. Reoorts 1952,p. 93, at p.
103;~mbtielos (Greecev.UnitedKingdom).PreliminarvObiections.Judmnent.I.C.J.Reoorts 1952,p.
28,at p. 38; Interoretationof PeaceTreatieswithBulearia Huneari andRomania.First Phase.Advisorv
Ooinion. I.C.J. Reoorts 1950,p. 65, at p. 71. Asthe Court said in the PeaceTreatiescase, "Theconsent
of States,parties toa dispute,isthe basis ofthe Court'sjurisdiction incontentiouscases." Interoretation
of Peace Treatieswith Bulaaria Hunnarv and Romania First Phase, Advisorv Ooinion. I.C.J. Reoorts
-9950 p. 65,atp. 71. InBorderandTransborderArmedAction(Nicaraauav. Honduras),Jurisdictionand
Admissibilitv. Judement, the Court afirmed the essential nature of its responsibility to establishthe
consentof the partiesto conferjurisdictionuponthe Court,I.C.J.Reoorts 1988,p. 69, 76.
Ambatielos. (Greecev. United Kingdom).Merits,Judment. I.C.J. Reoorts 1953, p. 10,at p. 18.
In that case,the questionwas whetherthe Court hadjurisdiction undera 1926Treaty ofCommerceand
Navigation betweenthe United Kingdom and Greeceto decidewhetherthe United Kingdomwas under
an obligation to submit to arbitration a dispute betweenthe two govemments as to the validity of the
Ambatielos claim in so far as the claim was based on an 1886 Treaty of Commerceand Navigation
betweentheparties. TheCourt rejectedthe contentionby the United Kingdomthat beforethe Courtcould
decide upon arbitration it was necessary forthe Court to determine whetherthe claim was actually or
genuinely based upon the 1886 Treaty, holding that to do so would be to substitute the Court
impermissibly for the special commission of arbitration establishedunder the 1886Treaty. W., pp.
16-17. In the unique circumstancesof that case,the Court concluded thatit mustdeterminewhetherthe
argumentswere "suficiently plausible" to establisha connectionbetweenthe claim andthe 1886Treaty.
W., p. 18. Beforeconcludingthat ithadthejurisdictionto referthe disputeto the special commission,
the Courtanalyzedthe particularclaimto determineif itcame within thescopeof the 1886Treaty. Ib&
pp. 16,18. Forthepurposesof that case,the Court concludedthat its functionwas limitedto determining
simply whether the argumentswere of a suficiently plausiblecharacterto warrant a conclusion that the
claim at issue was based onthe treaty. W., p. 18. A few years later, in a case involvinga contract
disputebetweenUNESCOand fourformer employees,the Courtwasasked to addressa similar question
of interpretation regarding the relationship oftheontract claims to the provisionsof theStatuteof the
Administrative Tribunal ofthe International Labour Organization.In that case,the Court concludedthat
"It is necessary thatthe complaint should indicatesomegenuinerelationshipbetweenthe complaintand
the provisions invoked" and characterized the issueas "whetherthe terms and the provisions invoked
a.-ear to have a substantial and not merely an artificial connection with the refusal to renew the
contracts." Judgments of the ~dministrative Tribunal of the IL0 uoon Comolaints Made Aeainst
UNESCO.Advisorv O~inion.I.C.J. Reoorts 1956,p. 77,at p. 89. -32 -
between the treaty and the claims submitted to the Co~rt.'~
2.10 For the purposes of disposing of the United States' objection. the Court may rely
on a reasonable interpretation of the 1955 Treaty in relation to the facts as described in
documents of the United Nations or other international organizations, supplemented as necessary
and appropriate by the submissions of the Parties." In accordance with paragraph 6 of Article
79, the Court may and, in the view of the United States, should uphold the objection of the
United States without proceeding to the merits of this case.
86 Militarv and Pararnilitarv Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Adrnissibilitv.Judgrnent,I.C.J. Revorts 1984,p. 392, at pp. 427-429. In that
case, the United States objected that a treaty of Friendship, Commerce and Navigation relied upon by
Nicaraguato establishjurisdiction inthose proceedingswas irrelevantto the subjectrnatter ofNicaragua's
clairns before the Court and, therefore, provided no basis for such jurisdiction. Although the Court
concluded that the treaty provided a basis for jurisdiction, it did so on the basis of an analysis of
Nicaragua's clairnsin light of the circurnstancesin whichNicaragua brought itsApplicationto the Court
and the facts asserted by Nicaragua. A similar analysisof Iran's claims in light of the circurnstancesin
which Iran brought its Applicationto the Court andthe facts assertedby Iran dernonstratesthat the 1955
Treatydoes not providejurisdiction inthese proceedings.
*' TOthe extent that a factual issuerelating to the events of 19October 1987and 18April 1988
arises incidentallyto the disposition ofthese objections,that issuecan be resolvedon the basis ofUnited
Nations documents, such as the reports subrnittedby the Secretary-Generalrelating to attackson neutral
shipping in the Persian Gulf or information publicly and widelyavailable. To the extent necessaryand
appropriate,this informationcan also be supplernentedby pleadings ofthe Parties. - 33-
PARTIII
THE 1955TREATY PROVIDESNO BASISFOR JURISDICTION IN THISCASE
3.01 AlthoughIranseeksto characterizethiscaseas one involving violationsof the 1955
Treaty, it is clear fromitsApplicationand Memorialthat Iranisattempting tousetheTreatyin
order to bring before the Court claims that the Unitedviolatedprovisionsof the United
NationsCharter andprinciplesofcustomaryinternationallawrelating to theuse of forceby one
state againstanother. As Iraniswellaware, the Courthasnojurisdiction tohearsuchcomplaints
againsttheUnitedStates. Iran's effortsto recastthe 1955Treaty,addressingpurelycommercial
andconsularmattersas addressingthe fundamentalissuesof war andpeacefly inthe faceof the
terms of the 1955Treatyand itshistoryas wellas thejurisprudenceof theCourt. -34-
CHAPTER1
IRAN'S ALLEGATIONSOF VIOLATIONSBY THE UNITED STATESOF THE UNITED
NATIONS CHARTER AND GENERAL INTERNATIONAL LAW ARENOT WITHINTHE
COURT'S JURISDICTION
3.02 The specific eventsupon which Iranreliesin its Applicationof 2 November1992.
andMemonalof 8June 1993,toestablishjurisdictionof theCourtunderthe 1955Treatyarethe
destructionof the oil platformat Rashadat(Rostam)in Octoberof 1987andthe oilplatformsat
Nasr(Sirri)and Salman (Sassariin Aprilof 1988.
3.03 After the destructionof the Rashadat(Rostam)platform, by letter of 21October
1987 to the SecurityCouncil, Iran characterized theattack by the United States as an "act of
aggression" which "representsan illegal resort to force againstthe sovereigntyand territorial
integrity"of Iran. It went onto referto "theseriesof aggressiveacts"that theUnitedStates "has
carried out in the past month" against Iranand "its aggression againstIranian patrol boats."
Withoutexpresslyhaving requested action,Iranchidedthe Security Council forits silenceinthe
face of the "aggressive intentions"of the United States. Finally, Irandeclared that "it will
continue totakethenecessaryandeffectivemeasuresunderArticle51of the Charterin orderto
defend its territorial integrity and sovereignrights againstAmericanpolicy ofaggression,"and
that "the United Statesand its clientswill haveto bear full responsibility for the consequences
of a firethey initiallyset."88
3.04 Iran's reaction six monthslater to the second set of events upon which itrelies
confirmsand clarifies Iran's objectionsto U.S. actionsasviolationsof the Charter. In its letter
88 LetterDated20 October1987fiomthePermanentRepresentativ ef theIslamicRepublicofIran
to theUnitedNations addressed to tShecretary-General,1October 1987 U,N SecurityCouncilDoc.
SI19224,Exhibit39. -35 -
to the Secretary-Generalof 18 April 1988, after reiterating its chargesthat the United Stateshad
committed "acts of aggression against the territorial integrity of [Iran]," Iraasserts that "it is
expected that international organizations and Your Excellency condemn this Arnerican act of
aggression which contravenesthe Charter of the United~ations."'~
3.05 Neither the Secretary-General nor the Security Council or any other international
organization took any action on the basis of those communications. To the contrary, the
internationalcommunity condemned Iran's unlawful attacks against innocentneutral shippingin
the Persian G~lf.~
3.06 At no time during these events or during the four years following them did Iran
assert any claim that the actions ofthe United States violated the 1955 Treaty, or initiate any
discussion regarding these events and possible compensation. The failure to raise these matters
during this long period becomes even more surprising in view of the case Iran filed against the
United States in this Court in May 1989 in connection with the aerial incident of 3 July 1988.
Oneof Iran'sprincipalassertionsinthat case is that the United Stateshad been engagedfor some
time preceding that incident in a course of aggressive action against Iran. In making that
assertion, Iran relies upon actions the United States had taken to protect its merchant vessels
engaged in innocent activity in the Gulf.9'
89LetterDated18April 1988fromthe Acting PermanenR t epresentatiof the Islamic Republiocf
Iran to thUnitedNationsAddressed to the Secretary-General1,8April1988, UNSecurityCouncilDoc.
Sl19796,Exhibit40.
90
Seefootnote 76,sm.
91 See,e.g.,Case Conceminathe Aerial Incideno tf 3Julv 1988(IslamicRe~ublicof Iran v.United
States ofAmerica),Mernorialof the IslamicRepublicof Iran, pp. 25-26, 29-31, 209, 230, 234-235,
Exhibit 41. SeealsoCaseConcemine theAerialIncidentof 3 Julv 1988 (IslamicRe~ublicof Iran v.
UnitedStatesofAmericalObservationsofIranonUSPreliminaryObjections,pp.34,42. -36-
3.07 Yet, even after Iran belatedlyintroducedthe argumentin July 1990that the 1955
Treaty provided an added basisfor the Court'sjurisdiction in that case, Iran remainedsilent
regarding the destructionof the three platforms for almost anothertwo years. It was not until
July of 1992that Iran for thefirst time assertedany violationby the UnitedStatesof the 1955
Treatyin connection withtheseevents.
3.08 While there existedmany channels that Iran mighthave used to raise this matter
withtheUnitedStates, theexistenceof onechannelin particularmakesthe failureof Iranto raise
thernatterespeciallyegregious.Duringthe entirefour-yearpenod betweenthe occurrenceof the
eventsat issue andthe time Iranraisedthismatterwiththe UnitedStates,theUnitedStatesand
Iran were in continuouscontact regardingthe resolutionof other legaldisputesbetweenthem,
particularlythroughtheirrepresentativesat theIradünited StatesClaims Tribunalin The Hague.
Indeed,it wasin connection with oneof thosediscussions,in July 1992,thatIran firstbelatedly
raisedthisclaimunderthe 1955Treaty. '*
3.09 In its Memorial, Iran asserts that the United States has "violated fundamental
principlesof international law"in a nurnberof respectsunrelatedto the 1955Treatyupon which
it relies to establishthe Court'sjurisdictionandrequeststhe Court tomakefindingsbasedupon
thoseviolations,withoutevena pretenseof establishing thejurisdictionof the Court to entertain
such ~laims.~~ Iran has not asserted thatthejurisdiction of thisCourtarisesunderArticle36(2)
of the Statuteof the Court, norpursuantto the compromissoryclauses of any convention other
92
IranianMemorial,para.2.18.
93
u, para.3. -37 -
than the 1955 Treaty. In its Memorial, however,Iran makesvariousassertionsthat the United
Stateshasviolated theUnitedNations Charter,rulesof customary internationallawregardingthe
useof force,neutrality, sovereignty, non-interventiona,ndthe Algiers~ccords.~~
3.10 The United States denies that its actionshave violatedany ofthese conventions,
principles, or rules of customary international law. In any event, this Court does not have
jurisdictionto determinewhetherthe UnitedStateshasviolatedthe UnitedNations Charter,rules
of customary international lawor the Algiers Accords,and must accordingly disregardthese
allegati~ns.~~
3.11 In this regard, it is important to note that in the Nicaragua case,the Court
considered Nicaraguan allegations that the United States violated principles of general
international law, but didnot do so under the comparableFCNtreaty with Nicaragua. Rather,
the Court consideredthese allegationsin connection with the generalacceptanceof the Court's
jurisdiction by the United Statespursuantto the declarationit filed under Article 36(2) of the
Statue of theCourt.%The Courtlimiteditsconsiderationof the FCNtreaty to alleged violations
of the specific terms of that treaty (see discussion in Chapter II below). In the present
proceeding,thereisno claimthatthe CourthasjurisdictionunderArticle36(2)of thestatuteof
94Id., pp32-33, 78-79.
-
95 In Avvlication of the Conventionon the Prevention and Punishmentof the Crime of Genocide
[Bosnia and Hengovina v. Federal Revublic of Yugoslavia (Serbia and Montenegro)L Order of 13
September 1993, the Court rejected an effortby a claimant to rely upon customary and conventional
international lawsof warwhere theclaimant invoked an instrument which did nobty its termsconfer
jurisdiction over that subject on the Court.
96 Militarv and Pararnilitarv Activities in and Aaainst Nicaragua Wicaragua v. United Statesof
America). Merits.Judament. I.C.J. Re~orts 1986,p.97, para.182, pp. 135-136 ,aras.270-272; Militarv
andPararnilitarvActivitiesinandAgainstNicaraguaNicaragua v. United Statesof America).Jurisdiction
and Admissibili~, Judament. I.C.J.Revorts 1986, p.424, para.73. -38 -
the Court and the Court's consideration of Iranian claims is, therefore, limited to alleged
violationsof the terms of the955 Treaty.
3.12 Iran apparently did not contemplatethat the1955 Treaty had any relation to the
events at issue in these proceedings, even fora long time after it had belatedlyassertedthatthe
Treaty was relevant tothe aerial incidentof3 July 1988. Nonetheless, havingfailed to obtain
condemnationoftheUnitedStates inthe SecurityCouncil, Iran seeksthroughthis action torecast
the complaints it made to the Security Council that the United States violated general
international lawas violations of the 1955Treaty. However, neither the 1955 Treaty nor the
jurisprudenceof the Courtsupportsucha callous manipulationof the Treatyor the Court. -39 -
CHAPTER II
THE 1955 TREATY IS WHOLLY IRRELEVANT TO THE DISPUTE THAT IS THE
SUBJECTOF IRAN'S APPLICATION
3.13 Iran'sclaimsrelateexclusivelyto the eventsof19 October 1987 and 18 April 1988.
The 1955 Treaty is wholly irrelevant to those events.s this Court held in Ambatielos, "It is
not enough for the claimant Govemment to establish a remote connection betweenthe facts of
the claim and the Treaty" upon whose compromissory clauseit relies.97Iran must establish a
reasonable connection between the 1955 Treaty and its claim against the United States relating
to the eventsof19 October 1987 and 18April 1988. Iran has failedto do so.
3.14 The 1955 Treaty is concerned withthe commercial interestsof the nationals of the
two countries in the territories of the other party and with certain consular matters,not with the
consequences of events such as those with which this case is concerned, involving hostile
encountersbetween armed forcesof the two Parties in the context of an ongoing armed conflict.
3.15 The Treaty is one of a series of what were commonly referred to as "Friendship,
CommerceandNavigation" or "FCN"treaties entered intoby the United States following World
War II. Those treaties contain provisions covering such subjects as entry and sojourn, personal
fieedoms,property rights, rightswith respect to business activities, taxation,exchange regulation,
and other matters affecting the status and activities of citizens and enterprises of one country
within the territories of the ~ther.~' The purpose of the treaties is to provide protection for the
97Ambatielos(Greece v. UnitedKingdom).Merits.Judgment,I.C.J.Reports 1953p ,.10. at p.18.
98 Treatv with Belgium:Message fiomthe Presidentof the UnitedStates, S.Exec.Doc.J, 87th
Cong., 1stSess.,p.2 (1961),Exhibit 42. Treatvwith Viet Nam: Message fiom the Presidentof the
UnitedStates,S.Exec.Doc.L, 87thCong., 1stSess.,p.2(1961),Exhibit43; CommercialTreatieswith
Belgiumand VietNam,S. Exec. Rep.No. 9, 87thCong.,1stSess., p. 1(1961),Exhibit44; Treatiesof
Friendship.Commerce.andNavigationwithIsrael.Ethio~iaItalv.Denmark,Greece,Finland,Germanv.property and interests of American citizens and companies in the territory of the other party and
to assure fair and nondiscriminatory treatmentwith respect to engaging in commercial, industrial
and financial activities in those countries, in retm for like assurances for the nationals of those
other partiesinthe temtory of the United States.99 There is simply no relationship between these
wholly commercial and consular provisions of the Treaty and Iran's Application and Memorial,
which focus exclusively on allegations of unlawful uses of armed force.
3.16 Iran assertsthat the United States attacks on the oil platforms at Rashadat (Rostam),
Nasr (Sini) and Sairnan (Sassan) directly violate Articles 1,IV(1) and X(l) of the 1955Treaty. 'O0
Even a cursory review of these articles of the 1955 Treaty shows that they have no reasonable
connection to the incidents of 19 October 1987 and 18April 1988.
Section 1. Article 1 Does Not Create Legal Obligations Different from Other
FCNs.
3.17 Article 1 provides that "There shall be firm and enduring peace and sincere
friendship between the United States of America and Iran." Iran asserts that Article 1creates
and Javan:Hearingbeforethe Subcommitteeof theSenateCommitteeon ForeignRelations,83dCong.,
1stSess.,pp.2-3 (1953),Exhibit45; Treatvof Amitv.EconomicRelations,and Consular Rightswiththe
Sultanof Muscatand Oman andDevendencies:Messagefromthe President ofthe UnitedStates, S. Exec.
Doc. A, 86th Cong., 1stSess.,p. 2 (1959), Exhibit46; CommercialTreatieswith Iran. Nicaragua,and
The Netherlands, S. Exec. Doc. 9, 84th Cong., 2d Sess., p. 1 (1956), Exhibit 47; Treatv of Amitv,
Economic Relations.and Consular Rightswith the Sultan of Muscat and Oman and Devendencies:
Message fromthe Presidentofthe UnitedStates,S. Exec.Doc.No. 186thCong. 1stSess.(1959),Exhibit
51;Treatvof Friendshiv.Commerce,andNavigationwith ChinaS. Exec. Rep.No.8, 80thCong.2d Sess.
(1948), Exhibit 56. See also Herman Walker, "Modem Treaties of Friendship,Commerce, and
Navigation,"42 MinnesotaLawReview,pp. 805-809 (1958),Exhibit48.
100
See,e.g., IranianApplication,pp. 5-6andIranianMemorial, paras.3.02, 3.48, 3.59,3.69. -41 -
legal obiigationsrelating not only to the maintenanceof "firm and enduring peace", but also
"sincere friendship", that go beyond the specific obligationsset out in the remainder of the
Treaty. Indeed, Iran constmes this Article as creating a "precise" obligation tocomply with
general principles of international law relating tothe use of force between States and, more
generally,to friendlyrelations- evenif someof thoseprincipleshad not beenclearly articulated
or wideiyrecognized whenthe Parties entered intothe 1955 Treaty.
3.18 In makingthese arguments,Iran seeks to transformthe 1955 Treaty fromonethat
ispurelycommercial and consular into one that legally governtshe overall relationshipbetween
the two States, involvingnot only fundamental questionsof use of force relatingto the security
of the State, but the entire scopeof their generalrelations as well. Thus, Iran goes so far as to
assertthat "the generalattitudeadoptedby the UnitedStatestowardsthe war"between Iraq and
Iran "flagrantlyviolatedthe United States'obligationsunderthe terms of Article 1of the Treaty
and general international law."'O'
3.19 AstheJudgrnentinthe Nicaraguacasesuggests,Iran readsfartoo muchinto Article
1. Inthatcase,the Courtwas askedto addresssimilarquestionsrelatingto the scopeof the FCN
treaty between the United States and Nicaragua. There Nicaragua asked the Court to rule that
"a statewhichentersinto atreatyof friendshipbinds itself ..to abstain fromanyact toward the
otherpartywhichcouldbe classifiedas an unfriendlyact". The Court rejectedthis overreaching
interpretation. Itheld that:
"There must be a distinction, evenin the case of a treaty of friendship,between
the broad category of unfriendly acts, and the narrower categoryof acts tending
to defeat the object and purpose of the Treaty. That object and purpose is the
101
IranianMernorial , aras.3.30and 3.48. effective implementation of friendship in the specific fields provided for in the
Treaty, not fiiendship in a vague general sense." 'O2
3.20 Althoughthe Courtwent on to find that certain activities in which the United States
engaged violated the FCN with Nicaragua, it did so only after it satisfied itself both that the
United Statesactivities were directedagainst purely commercial activities protected by the FCN
andthat suchactivitieswere notnecessaryto protect the essential securityinterestsof the United
States.'03 Neither of those conditions exists in regard to the Application filed by Iran in this
case.
3.21 Iran seeksto distinguishits 1955Treaty fiom the one at issue in the Nicaragua case
based on the slight differences j.nthe language of the two treaties. Thus, while the Nicaraguan
treaty refers to the goal of strengthening the bonds of peace and friendship in the Preamble, the
1955Treatyaddressesthis subject in Article 1. 'O4Iran suggeststhat this difference was intended
'O2 The Court noted in connectionwith this holdingthat the FCN in question, likethe 1955Treaty,
specificallyobligatesthe partiesto accord syrnpatheticconsideration to,and afford adequate opportunity
forconsultationregarding representationsthe otherpartymay makerespectingthe operation ofthe treaty.
Militarv and Paramilitarv Activitiesin and Against Nicaragua (Nicaraguav. United Statesof America),
Merits.Judgment, I.C.J. Reports 1986,p. 137. At no point duringthe fouryearsfollowingthe eventsat
issue here, or in the period leadingup to the filing of its Application, didIran identify the activitiesof
the UnitedStatesas matters affectingthe operation ofthe Treaty. Notably,otherquestionsrelatingto the
operation ofthe Treaty were raisedduring this period, in connectionwith matters beforethe IranIUnited
States Claims Tribunaland the eventsof July 1988.
'O3
Militarv and Paramilitarv Activities in and Against Nicaragua (Nicaragua v.United States of
America), Merits, Judgment.I.C.J. Reports 1986,pp. 140-142.
104The preambularparagraphof the Nicaragua FCN reads:
The United States of America and the Republicof Nicaragua, desirous of strenahening,
the bondsof veaceand friendshi~traditionallvexistingbetween them andof encouraging
closereconomicand cultural relationsbetweentheir peoples,and beingcognizantof the
contributions which may be made towards these ends by arrangements encouraging
mutuallybeneficialinvestments,promotingmutually advantageous commercial intercourse
and otherwise establishing mutual rights and privileges, have resolved to conclude a
Treaty of Friendship, CommerceandNavigation,based in generaluponthe principles of - 43-
to create "broader obligations in the field ofpeaceful and friendly relations" "in additionto the
specific obligations frequentin thiskind of treaty."'O5
3.22 The history relating to these treaties indicates that this difference in languagewas
not intended or understood to create an obligation differentfrom that already containedin other
FCNs. As was explained with regardto a virtually identical Article in theFCN with Ethiopia:
"Such provisions though not included in the recent treaties of friendship,
commerce, and navigation, are in keeping with the characterof such instruments
and serve to emphasizethe essentially friendly characterof the treaty."lo6
3.23 Invoking the provision inthe Preamble relating to friendship, Nicaragua, like Iran,
asserted that its FCN is "without doubt a treaty of friendship which imposeson the parties the
obligation to conduct amicable relations with each ~ther."'~' Indeed, the Court was asked by
Nicaragua tonile that "a state which enters intoafriendship treaty binds itself, for so long as the
Treatyis in force, to abstainfrom any act toward the otherparty which could be classifiedas an
nationalandmost-favored-nation treatmentunconditionallyaccorded..Our emphasis.)
Treatyof Friendship, Commerca e,dNavigationBetweentheUnitedStates ofAmericaandtheRepublic
of Nicaragua,9 U.S.T. 449, T.I.A.S. 40243,67 U.N.T.S.3(enteredinto forceMay24, 1958,terminated
May1, 1986),Exhibit49.
Article1oftheIranFCNreads:
There shallbefirm andenduringpeaceandsincere friendship betweentheUnitedStates
ofAmericaandIran.
8U.S.T. 899, TIAS3853,284U.N.T.S.93,Exhibit1.
IO5 IranianMemorial,para.3.29.
106TreatvofAmitvandEconomicRelationswithEthiovia:MessagefromthePresidentoftheUnited
States, S.Exec.Doc. F, 82dCong.,2dSess.,p.2(1951),Exhibit50.
'O7 Military and ParamilitarvActivitiesinand AgainstNicaragua(Nicaraguav. UnitedStatesof
America),Merits. JudgmentI..C.J.Re~orts1986,pp. 136-137,para. 272.unfriendly act."'O8
3.24 In distinguishingbetween the broad category of unfriendly acts and the narrow
categoryof actstendingto defeattheobjectandpurposeof the treatyin theNicaragua case, the
Court did notdeal simply withthat treaty, but addressed more generally "the caseof a treatyof
friendship".lo9In doing so, the Court looked to whatthe partiesmay have foreseenin the trea-
ty."' In regardto this question,the UnitedStates,like the Court, hasviewedfriendshiptreaties
generally alike.
3.25 Duringtheratificationprocessrelatingto thefour FCNsthat containprovisionssuch
as that found in Article 1 of the 1955Treaty, the provision was not viewed as making any
substantive change fromthe traditional FCNs. For exarnple,in regard to the FCN with Oman
and Muscat, after pointing out that this FCN is an abridgedversion of the traditionalFCN,the
U.S. Senate was informed: "In both form and substance, however,it adheres to the general
pattern of the standard treatyof friendship, commerceand navigation.""' Moreover, although
substantive differences between that FCN and the standard treaty were discussed during
considerationby the Senateof that treaty,the addition of a new Article 1was not identifiedas
a substantivedifference.'12 The sameis true with respectto the otherFCNs. 113
"' Treatvof Amitv. Economic Relationa s,ndConsularRightswith the Sultan of MuscatandOman
and Dependencies:Message fromthe President of theUnited States,S. Exec. Doc. A, 86thCong., 1st
Sess.,Appendix 1,p. 1(1959),Exhibit46. -45-
3.26 The understanding that the movemeno tf languagefiom the Preamble to Article1
did not result in anysubstantive differenceon this subjectfiom the traditionalFCN is further
supportedby an intemal unclassified studyof the standarddraft treaty of friendship,commerce
and navigationthat waspreparedby the Departmentof Statein 1962. That study analyzedal1
of the FCN treaties of theUnited States fiom 1946to that date articleby articleand paragraph
by paragraph, including the fourthat containedthe provision found in Articl1of the 1955
~reaty."~ The Study included tables for each treaty comparing its provisionsagainst the
provisionsof thestandarddraflandprovidingbriefsummariesof theprincipal variationsbetween
theindividualtreaty and the standarddraft.The standarddrafidealtwith the subjectof friendly
and peaceful relationsinthe preamble, as in the Nicaraguatreaty.
3.27 The Study confirms that the introduction ofnew Article 1was not understoodto
reflectanychangein the legal obligationsof the parties. The Studyexplainsthat the summaries
of variations discuss onlythose variations witha measureof substantiveeffect.'I5Notably, in
regardto eachof the four FCNs containinga provisionsuchasArticl1 of the 1955Treaty, the
summary of variations omittedany reference to the new provision, although the change is
Il3Commercial Treatieswith Iran.Nicaragua. andtheNetherlands,S. Exec. Rep. No.9, 84th Cong.,
2d Sess., pp. 7-8 (1956), Exhibit 47; A Treatv of Friendshiv, Commerce. and Navigation between the
United States of America and the Revublic of China: Hearing before a Subcommittee of the Senate
Cornmittee on Foreign Relations,80th Cong.,2d Sess., pp.34-35 (1948), Exhibit 52. While noting the
new provision, the report on the FCN with Ethiopia indicatesthat the FCN does not differ significantly
in this respect from other FCNs. Treatvof Amitv andEconomicRelationswith Ethiovia:Messagefrom
the Presidentof the United States, S. Exec. Doc. F, 82dCong., 2d Sess.,p. 2 (195l), Exhibit 50.
114C. Sullivan, DEPARTMEN OF STATE.TREATY OFFRIENDSHIC P,OMMERC E,D NAVIGATION.
STANDARD DRAFT(.ANALYSI ASNDBACKGROUND p).,336,369-73 (1962), Exhibit 53.carefully noted in the comparison tabIl6
3.28 Itis difficult tobelievethat Iran construe1955 Treaty as regulating the general
relations of the parties, much less the right of the parties in such fundamentalmatters as the use
of force. It is clear that theN Treaty was not introduced as some sort of substitute for or
supplement to therules of armed conflict and the use of force contained in theUNCharter, the
laws of war and general international law,as Iran suggests. There was no conceivableneed for
such a substitute in a commercial treaty since these general rules already were applicable tothe
two parties. There is also no suggestion whatsoever in the history of the Treaty that it was so
designed."'
3.29 Indeed,Iranrejectedsucha construction in another context. In a pleading objecting
to the continuing operation of the Treatyin connection withclaims before the Iran-U.S. Claims
Tribunal establishedby the Algiers Accords, Iran asserted:
"The situation which existed (and which included thesending of a U.S. military
exvedition into Iranian territory, as well as the seinire of Iranian assets) was not
one whichcouldbesaidto beregulatedby the terms of the 1955 Treaty of Arnity.
The situation was unforeseen by that Treaty and cannot be regulated by it."
(Emphasis added).Il8
117CommercialTreatieswithIran, Nicaragua,ndthe Netherlands, .Exec. Rep.No.9, 84thCong.,
2d Sess.(1956),Exhibit47;C. Sullivan,DEPARTME NFTSTATET .REATY OF FRIENDSHC IO,MMERCE,
AND NAVIGATIO ST.ANDAR DDRAFT (.ANALYS AIND BACKGROUN pDp.),336,369-73(1962),Exhibit
53. There isnothinginthe Treatythat onewouldfind essentialif thesematterswere intendedto be
covered: forexample;no affirmationof the right of self-defense;no referethetauthorityof the
SecurityCouncilor regionalbodiesto authorize enforcement actbyMemberstates;no referenceto
therightsofstatestotakeaction withtheirinternwaters,territorialseasoradjacentwatersto enforce
their lawsor dealwith securitythreats;no provisions for permisend impermissibleuses of naval
mines, rightsofvisitandsearch;carriageofcontraband, legite ilitarytargets,andthelike.
Il8 AmocoInternationalFinancialCorn.v. The IslamicReuublicof Iran.et. al., Defenseand
CounterclaimoftheIslamic RepubliofIranet.al.,Case No.56,Iran-UnitedStates Claims Tribu2,4
May1984,pp. 28-30, Exhibit54. Inthiscase,thepartieshadentered intoa seriesofagreementsIt follows from this assertion by Iran that the situation that existed atthe time of the events of
October 1987and April 1988occurred was also not one foreseen by the Treaty and cannot be
regulated by it.
Section 2. Article IV(1)Addresses the Protections Thatthe United States Owes
to the Nationals of Iran in the Territory of the United States
ArticleIV(1) provides:
"EachHigh ContractingPartyshall at al1times accord fair and equitable treatrnent
to nationals and companies of the other High Contracting Party, and to their
property andenterprises;shallrefrain from applying unreasonableor discriminato-
ry measuresthatwouldimpair their legally acquired rights and interests; and shall
assure that their lawful contractual rights are afforded effective means of
enforcement, in conformity withthe applicable laws."
3.30 Article IV(1) deals withthe treatrnent by one party of nationals and companies of
the other party that come within its territory for commercial or private purposes. It is designed
to precludehost Stateactions that would impair ownership and managerial control, and to permit
the vindication of contractual rights of such nationals and companies. This article must be read
in the context of other Articles of the Treaty, which provide for the rights of nationals and
companies of one Party to enter and remain in the territoryof the other Party for the purpose of
conducting commercial activities. As the U.S. Senatewas informed in regardto these provisions
establishinajoint venture toproduceandmarketnatural gasandrelatedproducts.Claimantarguedthat
Iranhaddepriveditofits50%propertyinterest inthebusiness.Amongother thing, the partied sisputed
the applicableinternational standards for expropriation I.ran arguedthat theTreatywas no longer
operative. TheTribunalheldthattheTreatywas inforce,at least atthetime of the expropriation.See
AmocoInternationalFinance Corn. v.Iran, Award310-56-3, 15 Iran-UnitedStates Claims Tribunal
Reports, pp.189,214-219 (1987),Exhibit55. -48 -
during the process of ratifyingthe Iranian FCN:
Articles II. IV. V and VI svell out the rights of nationals and comvanies of one
partv in the temtorv of the other with respect tojuridical status, accessto courts,
protection of property, pursuit of permissible enterprises, acquisition and sale of
property, protectionof inventions,trademarks, and tradenarnes,and equal or most
favored nation treatment regarding taxes, fees,or charges. (Emphasisadded).'I9
3.31 Article IV cannot be read as a wholesale warranty by each Party to avoid
al1 injury to the nationals and companies of the other Part yegardless of location of those
nationals and companies and regardless of whether the injury relates to commercial activities
addressed in the Treaty. The events of October 1987 and Àpril 1988 do not implicate actions
by the United States against the nationals or companies of Iran in the territory of the United
States, which is thefocus of Article IV.
3.32 In this respect, it 1simportantto note that Nicaragua, inits case against the United
Statesbefore this Court,unsuccessfidlysought to applythe comparable provisionof its FCN with
the United States in a similar manner. Nicaragua suggested thatthe requirement for "equitable
treatment" precluded the United States from killing, wounding or kidnapping citizens of
Nicaragua. The Court expressly declinedto accept Nicaragua's assertion thatthe provision for
"equitable treatment" creates an obligation on the part of the United States in regard to
Nicaraguan citizens in Nicaragua, but concluded it did not needto take a decision on this claim
because Nicaragua had failed to satisfy the Court that the United States was responsible for the
actions in question.
3.33 The terms of the 1955 Treaty demonstrate that this provision, likethe comparable
119
CommercialTreatieswithIran.Nicaragua,andTheNetherlands,S.Exec. Rep.No.9, 84th Cong.,
2dSess., p.9(1956),Exhibit47. - 49-
provision found in other FCNs, was intended to address the actions of one party within its
territory against the nationals of the other party.Iz0 Iran has not alleged that there has been
discriminatorytreatrnentagainstIraniannationalsor companies in the United States. Thus Article
IV(1) has no reasonable connection to the incidents of 19October 1987 and 18April 1988.
Section 3. Article X(l) Was Intended to Promote Freedom of Navigation and
Commerce -Not Obstruct It
3.34 Article X(l) provides that "Between the territories of the two High Contracting
Parties there shall be freedom of commerce and navigation." Iran's claimas stated in both the
Applicationand its Memorial does not involve commerce "betweenthe territories of' the United
States and Iran.'2' Furthermore, Iran's claim does not in any fashion allege a course of action
on the part of the United States to hinder the freedom of maritime commerce. Quite to the
contrary, al1of the actions by the United States were taken to advance freedom of navigation,
consistent with the views expressed by the Security Council in Resolution 552. This is to be
120
Suvra,para 3.15. The Courthasstatedthat
"The verypurposeof a treatyof amity... isto promotefriendlyrelationsbetweentwo
countriesconcerned,andbetweentheir peoples,moreespeciallybymutualundertakings
toensurethevrotectionandsecuritvoftheirnationalsin eachother'sterritorv."
U.S.Divlomatic andConsularStaff(UnitedStates ofAmericav.IslamicRevublicofIran), I.C.J.Re~orts
1980 p,.3, 28, para.54(emphasisadded).
121Asthe U.S.Senatewas informed duringtheprocessofratieing the 1955Treaty, ArticlX
... detailsthe rightsofvessels flytheflag of eitherparintheportsofthe otherand
in general providesnationaltreatmentand most-favored-nation treatmene t,xcept for
coastwise,inland,andfishingtrafic.
CommercialTreatieswith Iran,Nicaragua.and TheNetherlands, S. Exec.Doc.No. 9, 84thCong.2d
Sess.,p. 3(1956),Exhibit47. -50 -
contrasted with the claims presented in Nicaragua, in which the Court foundthat the mining of
Nicaraguan ports by the United States directly interfered with activities protected by the
comparableprovision of that FCN. 12*
3.35 In this instance, it is Iran's actions, rather than any actions of the United States,
which most closely resemblethe acts upon which the Court foundjurisdiction in the Nicaragua
case. Specifically, it is Iran-- not the United States -- which attacked vessels attempting to
engage in innocent shipping; it is Iran--not the United States --which mined sea lanes for the
purpose of preventing peaceful maritimetransit.
Section4. Article XXConfirms that the 1955Treaty 1sNot Intended to Address
QuestionsRelating to the Use of Force by the Parties During Armed Conflict.
3.36 Any doubts as to the applicabilityof the 1955 Treaty to Iran's claims isdispelled
by Article XXof the Treaty,paragraph (l), which provides:
"1.The present Treaty shall not precludethe applicationof measures:
* * * *
(d) necessary ..to protect its [aparty's] essential securityinterests."
3.37 The intended relationship of this provision to the jurisdiction of the Court was
expressly addressed during the process of obtaining ratification of other friendship treaties with
the identical provision. Thus, in connection with the ratification of the treaty with China the
Department of State submitted to the United States Senate a memorandum on the dispute
settlement clause that addressed the scope of the compromissory clause providing for the
12'
Militaw andParamilitawActivitiesin andAgainstNicaragua(Nicaraguav. United Statesof
America),Merits.Judgment.I.C.J.Reports1986,p. 139.submission of disputesunder that treaty to this Court. That Memorandurnprovides:
"The compromissory clause . . . is limited to questions of interpretation or
application of this treaty; i.e., it is a special not a general compromissory clause.
"Furthermore, certain important subjects, notably immigration, traffic in military
supplies,andthe "essentialinterestsof the country in time of national emergency",
are specifically excepted from thepurview of the treaty. In view of the above, it
is difficult to conceive how Article XXVIII could result in this Government's
being impleaded in a matter in which it mightbe embarra~sed."'~~
A sirnilarmemorandumwas latersubmittedto the Senate in regard to FCN treaties with Belgium
and Viet Nam. That memorandum pointsout:
"a number of the features which in its view make this provision satisfactory . . .
These includethe fact that the provision is limitedto differences arising immedi-
ately from the specific treaty concerned, that such treaties deal with familiar
subject matter and are thoroughly documented in the records of the negotiation,
that an established body of interpretation already exists formuch of the subject
matter of such treaties, and that such purely domestic matters as immigration
policy and military security are placed outside the scope of such treaties by
specific exception^."'^^
This histoq demonstrates that the 1955Treaty was not intendedto reach matters relatingto the
essential security interestsof the parties.
3.38 As the Court held in the Nicaragua case, the Courtcannot entertain a claim under
the 1955 Treaty unless it is first satisfied that the conduct complained of does not constitute
"measures ... necessaryto protect" the essential security interests ofthe United States. 125
123
A Treatvof Friendshi~.Commerce.andNavigationBetweenthe UnitedStatesof Americaand
the Reoublicof China:Hearinp; beforea Subcommitteeof the SenateCommitteeonForeignRelations,
80thCong. 2dSess.,pp.29-30 (1948),Exhibit52.
124CommercialTreatieswithBelgiumandVietNam, S. Exec. Rep. No9 . , 87thCong.,1st Sess.,pp.
7-8 (1961),Exhibit44.
12' Militantand PararnilitarvActivitiesIn andAgainstNicaragua(Nicaraguav. UnitedStatesof
America),Merits, JudgmentI,.C.J.Reports1986,p. 136,para. 272. -52 -
3.39 The Court held that this provision did not, in the specific circumstances of the
Nicaragua case, remove the dispute in that case as to the scope of the treaty from the Court's
jurisdi~tion.'~~The factual situation in that case, however, was far different from the case now
before the Court.
3.40 In the Nicaragua case, the Court held that U.S. national security interests
werenotthreatenedby the insurgent attacks against El Salvador that had formed the basis of the
U.S. claim to have acted in self-defense. In contrast, Iranian attacks on U.S. and other neutral
vesselsinthe PersianGulfclearly threatened U.S. national security interests. In the current case,
the UnitedStates invokesthe comparable article in the 1955Treaty for the purpose of supporting
itsargument thatArticles1,IV and X of the 1955Treaty relied upon by Iran were never intended
to address the use of force issues presented by Iran's claims in connection with the events of
October 1987 and April 1988. The United States maintains that, in the circumstances of this
case,the Courtis authorizedto dispose of Iran's Application under Article 79 paragraph 6 of the
Rules of Court even if this requires addressing questionsof law or fact that may touch upon the
merits.
3.41 The measurestakenby the UnitedStatesagainst Iranian oil platformson 17October
1987 and 18 April 1988 were taken in the exercise of the inherent right of self-defense
recognized under Article 51 of the United Nations Charter. They were taken by United States
military forces in the face of armed attacks by Iranian military forces against U.S. and other
vessels engaged in innocent activities in the Persian Gulf and against facilities being used to
supportsucharmed attacks. As the Court stated in the Nicaragua case in regard to the provision
'26 Ibidp., 116,para.222. -53 -
of the FCN relating to protection of essential security interests:
"The Court does not believe that this provisio..can apply to the eventuality of
the right of individualor collective self-defen'"."
The Court further stated: "It is difficult to deny that self-defense against an armed attack
corresponds to measures necessary to protect essential securiinter est^."'C^onsequently, the
Court is presented with exactly the typeof situation the 1955Treatydoes not cover.
3.42 In conclusion,Iran's claims relating to the eventsof 19October 1987and 18April
1988 cannot sustain the jurisdiction of the Tribunal under the 1955 Treaty, because they are
wholly irrelevant tothe subjectmatter contemplatedby the Treaty.
12'Ibi dp.116-117,para.223.
12' ArticleXXI(d)of the NicaraguaFCN has been describedby the SenateForeignRelations
Committeeas containing "theusualexceptions relati...to measuresfor collectiveor individualself-
defense." ArticeX(d)oftheIranFCNisvirtuallyidentical.CommercialTreatieswith Iran.Nicaragua.
andtheNetherlands,S. Exec. Rep. No. , 84thCong.2d.Sess.p. 4 (1956),Exhibit47. -54 -
SUBMISSION
TiieUnited States of America requests that theCourt uphold the objection of the United
Statesto thejurisdiction of the Court anddecline to entertain the case.
16December 1993
Conrad K. Harper
Agent ofthe United States
of America TABLEOF ILLUSTRATIONS
1.
Map 1,Locationof Incidentsin the Persian Gulf 1987-1988 . . . . followingpage 14
2. Map2, DistancefromAl Faw Peninsulato SS SeaIsleCity . . . followingpage 19 TABLEOF EXHIBITS
Pursuantto Article50of the Rulesof Court,the UnitedStateshas alsodepositedseveral
documents in the Registry inconnectionwith these PreliminaryObjections. The documents so
depositedarenotedbelow.
1. Treaty of Amity, EconomicRelations,and ConsularRightsof 1955 betweenthe United
StatesandIran, 8 U.S.T. 899,TIAS3853,284 U.N.T.S. 93.
2. C. Joyner, "The Geography andGeopolitics of the Persian Gulf', in THE PERSIAN
GULF WAR: Lessonsfor Stratem.LawandDiplomacv,p. 4 (C. Joynereditor, 1990)and
B. Boczek, "Law of Maritime Warfare and Neutrality inthe Gulf War", in 'JHJ
PERSIAN GULFWAR: Lessonsfor Stratem. Law and Diplomacv, p. 173,at pp. 179,
185 (C. Joynereditor, 1990).
3. U.S. Dep't of State, "U.S. Policy inthe PersianGulf', U.S. Department of State
SpecialReport No. 166,p.3 (July 1987).
4. "SituationbetweenIran and Iraq",34 YEARBOOKOF THE UNITEDNATIONS1980.
pp. 312-319(1983).
5. T. Schiller,"The GulfWarand Shipping:Recent Developments", in VIOLENCE
AT SEA: A review of terrorism, actsof war and viracv. and countermeasuresto
prevent terrorism,p. 109,at pp. 114-118(B. Parritteditor, 1986).
6. Sreedhar and Kaul, TANKER WAR: Asvect of Iran-Iran War 1980-88,pp. 1, 87-134
(1989).
7. Statementofthe United Statesin theU.N.SecurityCouncil,May 30, 1984",Department
of StateBulletin,pp. 73-74 (August 1984).
8. Letter from Iranian Foreign Minister Vellayatito the U.N. Secretary-General,23 July
1987 quoted in part in 33 Keesing'sRecord of World Events, pp. 35597-35598 (Dec.
1987).
9. The Iran-Iraa War (1980-1988)and The Law of Naval Warfare (A. de Guttry and N.
Ronziti,editors),pp. 30,44-45,285286,292, 331,370,414,445,448-449 (1993).
10. U.S. Navy, COMIDEASTFORList ofIranianShip AttacksAgainstNeutra1Shippingin
the Persian Gulfbetween 1984and 1988.
11. A. Cordesman and A. Wagner, 2 The Lessonsof Modem War: The Iran-IraciWar, pp.
103, 128, 213, 230-231, 273-274, 281, 283, 285, 290-291, 298-300,304-306, 311-316,
318-319, 325-326, 328-332, 334-335, 338, 3413 ,45, 363, 365-366, 368,375-376, 393,
409, 544-546, 559,562-565,579, 589-590(1990).12. F. Wiswall, "Neutrality, theRights of Shipping and the Use of Force in the
Persian Gulf', 31 Virginia Journal of InternationalLaw, pp. 619-620, 626,628-
629 (1991).
13. Resolution479, UnitedNations SecurityCouncil(2248th meeting,28 September
1980),reprintedin UnitedNationsDocumentS/iNFl36,p. 23.
Resolution514,UnitedNations SecurityCouncil(2383rd meeting, 12July 1982),United
NationsDocument SIRES15 14.
Resolution 522, United Nations Security Council (2399th meeting, 4 October 1982),
UnitedNationsDocumentSIRESl522.
Resolution 540, United Nations SecurityCouncil (2493rd meeting, 31 October 1983),
UnitedNationsDocumentSIRESl540.
Resolution 552,UnitedNations SecurityCouncil(2546th meeting, 1June 1984),United
NationsDocument SIRESl552.
Resolution 582, United Nations SecurityCouncil (2666th meeting,24 February 1986),
reprintedin UnitedNationsDocumentSlRES1582.
Resolution 588 United Nations Security Council (2713th meeting, 8 October 1986),
reprintedin UnitedNationsDocumentSmF142, p. 13.
Resolution598, UnitedNationsSecurityCouncil(2750th meeting, 20 July 1987),United
Nations Document SIRESl598.
14. Report of theSecretary-Generalin Pursuanceof SecurityCouncil Resolution552(1984),
UnitedNationsDocumentSI16877(with addenda).
Letterdated 1September 1987from the Permanent Representative to the United Nations
of Kuwait addressedto the Secretary-General,U.N. Doc. SI19091(1 September 1987).
Letter dated 22 September 1987 from the Permanent Representative of the United
Kingdomto the United Nationsaddressedto the Presidentof the SecurityCouncil,U.N.
Doc. SI19147(22 September 1987).
Letterdated16October 1987from thePermanentRepresentativeofKuwaitto the United
Nations addressedto the Secretary-General,U.N. Doc. SI19215(1 6 October 1987).
15. Newspaper articles, 19811988(in chronologicalorder).Letter dated 9 October 1987from the PermanentRepresentativeof the United Statesof
America to the United Nations Addressed to thePresident of the Security Council,
United Nations Document SI19194.
Letter dated 10 October 1987from PresidentReaganto the President Pro Temporeof
the Senateandthe Speakerofthe House, WeeklyCompilationof PresidentialDocuments
(1987).
"U.S. Messageto Iran A,pr. 18, 1988",Departmentof StateBulletin,p. 36 (June 1988),
M. Palmer, Guardiansof the Gulf, pp. 133, 139(1992).
Letterdated22 September1987from the ActingPermanentRepresentativeof the United
States of America to the United Nations Addressed to thePresident of the Security
Council, United Nations Document SI19149.
Letter dated 24 September 1987from PresidentReaganto the Speakerof the Houseof
Representativesand the PresidentPro Temporeof the Senate,BookII, PublicPauersof
the Presidentsof the United States.RonaldReaean(19871,pp. 1074-1075(1989).
"Caught in the Act: TheU.S. Nails Iran Laying Minesin the Gulf", Time, 5 October
1987,pp. 20, 22.
R. O'Rourke, "GulfOps" ,Naval ReviewProceedin~s,p. 44, 50, n. 3 (1989).
Convention Relativto theiaying of AutomaticSubmarineContactMines (Hague, VIII),
October 18, 1907, 36 Stat. 2332;TS 541, 1Bevans669.
Letter dated 19 April 1988 from President Reagan to the Speaker of the House of
Representativesand the PresidentPro Temporeof the Senate, Book1, PublicPauersof
the Presidentsof the United States.RonaidReagan(19881,pp. 477-478 (1990).
Letter dated 18 April 1988 from the Acting Permanent Representativeof the United
States of America to the United Nations Addressedto the President of the Security
Council, United Nations Document SI19791.
Letterdated 19October 1987fromthe Permanent Representativeof the United Statesof
America to the United Nations Addressedto the President of the Security Council,
United Nations Document SI19219.
Letterdated 15October 1987from the Permanent Representativeof the United Statesof
America to the United Nations Addressedto the Secretary-General, United Nations
Document SI19210.Letter dated 20 October 1987 from President Reaganto the Speaker of the House of
Representativesand thePresident ProTempore of the Senate,Book II, PublicPa~ersof
thePresidentsof the United States. Ronald Reagan(1987),p. 1212(1989).
N. Friedman, "StrikeISurfaceWarfare", The Naval Institute Guide to World Naval
WeavonsSvstems,pp. 47, 75-76,79 (1989).
"Jane's WeaponSystems",ShivborneWeavons,p. 75(1985-86).
H. Pawlisch,"A. Operation PrayingMantis", inM. Palmer,OnCourseto DesertStorm:
TheUnitedStates Naw andthe Persian Gulf, p.142(1992).
B. Langston and D. Bringle, "Operation PrayingMantis: The Airview", U.S. Naval
Instituteroceedings,p. 56 (May 1989)andJ. Perkins,"OperationPraying Mantis: The
SurfaceView",id.p. 68.
S.Rosenne,TheLawand Practiceof the InternationalCourt, p.580 (2d. 1985).
Reportof the SixthCommittee,UNGA(25thsess.,Dec. 1970),U.N.Doc.N8238.
Reportof the SixthCommittee,UNGA(26thsess.,Dec. 1971,U.N.Doc.N8568.
E.JirnenezdeArechaga,"TheAmendmentsto the Rulesof Procedure of the International
Court of Justice,"67ArnericanJournal of InternationalLaw,pp. 1, 11,and 13(1973).
G. Guyomar, Commentaire du Reglement de la Cour Internationale de Justice -
IntervretationetPratiaue,p. 371(1972).
LetterDated20 October 1987from the PermanentRepresentativeof the Islamic Republic
of Iran to the United NationsAddressedto the Secretary-General,21 October1987,UN
SecurityCouncilDoc. SI19224.
Letter Dated 18 April 1988from the Acting Permanent Representative of the Islamic
Republicof Iranto theUnitedNations Addressedto the Secretary-General, 18April 1988,
UN SecurityCouncilDoc. Sl19796.
Iran v. United States (CaseConcerningthe Aerial Incidentof 3Julv 1988LMemorialof
theIslamicRepublicof Iran,pp. 25-26,29-31, 209, 230,234-235.
Treatvwith Belgium:Messagefrom the President ofthe United States,S. Exec. Doc.J,
87th Cong.,1st Sess.(1961).
Treatv with Viet Nam: Messagefrom the President of theUnited States, S. Exec. Doc.
L, 87th Cong.,1st Sess.(1961).Commercial Treaties with Belgiumand VietNam, S. Exec. Rep.No. 9, 87th Cong. 1st
Sess., (1961).
Treatiesof Friendshiv.Commerce. andNavigationwith Israel. Ethiopia.Italv,Denrnark.
Greece, Finland, Germanv. andJavan: Hearina before the Subcommitteeof the Senate
Committeeon Foreign Relations, 83d Cong.1stSess.(1953).
Treatvof Amitv,EconornicRelations.and ConsularRightswith the Sultanof Muscatand
OmanandDevendencies: Messapefrom the President of theUnitedStates,S.Exec.Doc.
A, 86th Cong.,1stSess. (1959).
Commercial Treatieswith Iran, Nicaragua. andThe Netherlands,S. Exec. Doc. 9, 84th
Cong.2d Sess.(1956).
H. Walker, "ModernTreatiesof Friendship, Commerce,andNavigation,"42 Minnesota
LawReview,pp. 805-809 (1958).
Treaty of Friendship, Commerce,andNavigation Between the United States of America
andtheRepublicofNicaragua,9 U.S.T. 449, T.1.A.S4024,367 U.N.T.S. 3(Entered into
ForceMay24, 1958)(TerminatedMay 1, 1986).
Treatv of Amitv and Economic Relationswith Ethio~ia:Messagefrom the President of
the UnitedStates,S. Exec.Doc.F, 82d Cong.,2d Sess.(1951).
Treatvof Amitv, Economic Relations.andConsularRightswith the Sultanof Muscatand
OmanandDemndencies:Messagefrom the Presidentof the UnitedStates,S. Exec.Doc.
No. 1,86thCong., 1stSess. (1959).
A Treatvof Friendshi~.Commerce,andNavigationBetweenthe United Statesof America
and the Revublicof China:Hearingbefore a Subcommitteeof the SenateCommitteeon
Foreign Relations. 80thCong., 2dSess.,p.. 1,29-31,33-35 (1958).
C. Sullivan, Devartment of State. Treatv of Friendshiv. Commerce,and Navigation.
Standard Draft.(Analysisand Background),pp. 336, 369-73 (1962). [A complete copy
of this documenthas beendeposited in the Registry.]
ArnocoInternationalFinancialCOIVv . . The Islamic Revublicof Iran, et.al.. Defenseand
Counterclaim of the Islarnic Republic of Iran et.al., Case No. 56, Iran-United States
ClaimsTribunal,24 May 1984,pp. 28-30. [Acomplete copy of this document has been
deposited in the Registry.]
ArnocoInternational FinanceCornv. Iran, Award310-56-3, 15Iran-United StatesClaims
Tribunal Revorts,pp. 189,214-219 (1987).56. Treatv of Friendshiv. Commerce, and Navigationwith China, S. Exec. Rep. No. 8, 80th a
Cong., 2d Sess. (1948).
57. D. Hiro, "TheLongest War",Routledge,p. 189-90(1991). m ANNEX 1
IRANIANATTACKSONINNOCENTSHIPPING
DURING THE IRAN-IRAQWAR ANNEX 1
IRANIANATTACKSONINNOCENT SHIPPING DURINGTHEIRAN-IRAQ WAR
A1.O1The informationsetforthbelowisbasedon publiclyavailablesources,including
information submitted to the Security Counciland collected by the Secretary-Generalat the
request of the SecurityCouncil. If needed, the UnitedStates is preparedto submit additional
informationto establishthe factsassertedbythe UnitedStates.
A1.O2 In the Statement of Facts,the United Statesnoted that the Governent of Iran
conducted extensive attacks against innocentshipping during the Iran-Iraq war. The ships
attacked by Iran were navigatingin internationalwaters or third countryterritorialseas to and
from ports ofcountries not involved in the hostilitiesbetween Iran and Iraq.' As far as the
United Statescan determine,these ships were not stopped and searchedby Iran to determine
whether they wertradingwithIraq orcarryingcontraband destinedfor Iraq notwithstandingthe
fact thatIran exercised thatright againstnumerous other~hips.~The followingis a description
' The United Kingdom estimated between 800 and 1,000merchant ships entered the Persian Gulf
each month. "Current UK Policy Toward the IrdrWar," Second Report of the Foreign Affairs
Committee,reprintedin de Gu&tRonzitti,THEIRAN-IRQAR(1980-1989)~~~ THELAW OF NAVAL
WARFARE (1993), p. 291, Exhibit 9. Other estimates range between 2,400 and 3,000 ships transited
through the Strait of Hormuz eachh during the Tanker War. Sree&hKaul, TANKERWAR,p.
1 (3,000); Joyner, "The Geography andGeopoliticsof the Persian Gulf," in GULFWAR:AN
LESSON FOR STRATEGY L, WAND DIPLOMAC YC.Joyner,ed. 1990),p. 4, Exhibit 2.
Iranian commanders claimedto have visitedmerchant shipstransiting the Strait of Hormuzscores
of times daily and hundredsof times each "IraniansStop 2 Soviet FreightersBelievedCanying
Cement for Iraq," N.Y. Times, 4 Sep. 1986, p.Al, Exhibit 15; "IranMarinesBoard 14Ships in Search
for Iraq War Goods," N.Y. Times, 3 May 1987, sec. 1, p. 22, 15. While no reliable data is
availableon the numberof shipssearched andcargoseizedby Iranrabandduringthe TankerWar
(19811988),the Secretary-General reported,pursuantto SecurityCouncil Resolution552, on attackson
innocentand neutralrchant ships by both sides in the Gulf War. His report lists 30 ships that were
visited and searched by Iran between September 1985 and September 1986, and five in 1987.
Sl16877lAdd.2and 3, Exhibit 14. Anotherauthor identifies27 shipsvisited and searched byIranian
forces between May 1985 and January 1986. Schiller, "The Gulf War and Shipping: Recent
Developments," in VIOLENCEAT SEA:A REVIEW OFTERRORISM A,CTSOF WAR AND PIRACY A,ND -57-
of some of the Iranian attacks against shipping between early 1987 and extending into the
surnrner of 1988.3 The reports of the Secretary-General pursuant to U.N. Security Council
Resolution 552 of 1 June 1984 (Exhibit 14), and the histories in Exhibit6 and 10, provide
additional information relating to the hostile environment for innocent shipping in the Persian
Gulf resulting from attacks by Iranring the peri~d.~
COUNTERMEASURESTO PREVENTTERRONSM (B. Parritt. ed. 1986), pp. 114-118,Exhibit 5, using data
compiled from Lloyd's Listand Lloyd's Casualty Report).None of these ships are listed as having
subsequentlybeen attackedduring the voyage in question. The United States has been unable to verie
the statement in Exhibit 2 that occasionally,Iranian warships attackedmerchant ships even after having
stoppedand visited them,and clearedthem to continueon theirvoyage. Boczek,"TheLawof Maritime
Warfare and Neutrality in the Gulf War,"THE PERSIAN GULFWAR:LESSONS FOR STRATEGY L,AW,
AND DIPLOMACp Y.,174,Exhibit2.
Iran beganattackingmerchant ships in 1984. TheGeneralCouncil of British Shipping stated that
Iran attacked 1merchantships between 1984and 1June 1988. GCBS GuidanceNotes,p. 292, Exhibit
24. Another sourceindicatesthat in 1987and 1988 alone, Iranian gunboats attacked 142neutral ships,
andatotalof 282merchantships between 1984and1988from morethan 28 flag States. A. Cordesman
& A. Wagner, 2 THELESSONS OF MODERN WAR:THEIRAN-IRAQ WAR,pp. 365-366, 544-546(1990),
Exhibit 10. Sreedhar& Kaul, pp. 87-134, Exhibit 5, identify 176Iranian attackson shipsbetweenMay
1984 and July 1988. A more recent compilationby the U.S. Navy, based on reports from Lloyd's of
London,lists 198attacksby Iranon merchantshipsbetween May 1984andAugust 1988,Exhibit5.
The Secretary-General'sreport'andsix addenda identie 373 ships attackedby both sidesbetween
1 June 1984 and 31 December 1987, Exhibit 14. Sreedhar & Kaul list 436 ships sunk or damaged
between 25 October 1981 and 8 July 1988,xhibit 6. Another sourceclaims that during the Iran-Iraq
War, some536ships wereattackedby both sides,resulting in the actualor constructiveloss of 102ships,
and the death of morethan 345 crew. Wiswall, "Neutrality,the Rightsof Shippingandthe Useof Force
in the PersianGulf," 31Va. J. Int'l L. 619,628 (1991), Exhibit 12. Other sourcesgive slightlydifferent
figures. See, for example,O'Rourke, "Gulf Ops",U.S. NavalInstituteProceedings/NavalReview 1989,
May 1989,p. 43 (543 ships), Exhibit 23; and Sreed&aKaul, p. 1(437 ships), Exhibit 6. The British
General Council ofShippingclaimed 407 merchant shipswere attackedby both sidesbetween 1984and
1 June 1988, and that 471 seamen were killed during the tanker war between 1981and June 1988.
Exhibit9, p. 292. Another sourceassertsthat between 1984and1988morethan 320 personswerekilled,
wounded or became missing as a result of attacks by both sides on 353 ships from more than 31 flag
States. About two-thirds of these shipswere oil tankers or product tankers. Co&dWagner,pp.
365-366, 544-546, Exhibit 11. The ships sunk and constmctivelylost as a result ofattacksby both sides
caused the loss of more than half the 2.4 million tons of allied shipping lost during World War II
(Sreedhar & Kaul, p. 1, Exhibit 6) and more than the total of al1merchant shipping lost in al1other
actionssince World WarII. Wiswall, 31 Va.J. Int'l L. 619, 620, Exhibit 12.Section1. IranianSmallBoatAttacksCaused ExtensiveDamageto MerchantVesselsand
the Deathsof NumerousMerchantSeamen.
A1.03 Iran's attacks were mainly directed towardthe crew quarters or bridges of
merchant vessels. For thispurpose Iran used small high-speedtwin-engine boats of Swedish
manufacture, commonlycalled Bogharnmers. These patrol boats were typically equipped with
machine guns, rocket launchers (including rocket-propelled grenades), and smallrms. They
weremannedby membersof the Islamic Revolutionary Guard Corps Navy (IRGC or Pasdaran).
The IRGC used similarly armed Boston whale boats and other smalc lraft.' For example,
throughout1987and in 1988untilthe cessationof hostilities,Iranianmilitaryvessels conducted
extensive, unprovoked attacks on ships ofvarious nations, causing extensivedamage and the
deaths ofnurnerousmerchantseamen. Someof the more egregious attacksare described in the
following paragraphs.
A1.O4 On 26 February 1987, IRGC Navy patrol boats attacked C ahinesecargo vessel,
the Wu Jiang,in international waters nearthe Rostamplatform. The ship carried no cargo of
militaryvalue. The patrol boatsrakedthe crewquarterswith smallarmsfirerepeatedlyfor four
hours, leaving fourcrewmen dead.6 Off the coast of the United Arab Emirates, on11 March
1987, the Saudi-registered tanker Arabian Sea was attackeb dy missiles launched from IRGC
Navy vessels,while on27 March 1987,the Singapore-registered tankerSedra-1wasattackedby
what appearedto be an IranianNavy frigate using aSeakillermissile;at least sevensearnenwere
Cordesman& Wagner,p. 285, Exhibit 11. Other attackson merchantshippingwere conductedby
regularIslamicRepublicof IranNavy (IRIN)personnelfromIranianfrigatesor fighteraircraft.
Sl16877fAdd.5,p. 4, Exhibit 14; Sreed&arKaul, p. 115,Exhibit 6; Cordesma& Wagner,p.
341 n.2, Exhibit 11. -59-
killed.'
A 1.O5 On 4 May 1987, an Iranianpatrol boat severely darnaged aPanamanian-flagged
tanker, the Petrobulk Regent,that had left Kuwaitcarryingkerosene toIndia. One member of
the tanker's crew was wounded in the attack in which seven missiles hit theship.' On 5 May
1987, the Japanese-registeredShuhoMani was attackedby an Iranianpatrol boat; the nextday
the Sovietcargo ship Ivan Korotevev was attacked witrocketsand machinegun fireby Iranian
patrol boats inthe southern Persian Gulf,sufferingsevereda~nage.~On 11 May 1987, Iranian
patrol boats attackedthe Kuwaiti-bound, Indian-registered product tanker B. R. Ambedkar off
the Coastof the United Arab Emirates.l0 On 18 May 1987, Iranian Revolutionary Guard boats
firedonthe Liberian-registeredsupertankeGrolar Robinenrouteto Kuwait with rocket-propelled
grenades causing a fire in the living quarters." On22 May 1987, Iranian revolutionaryguard
units attacked and seriously darnagedthe small Qatar-registered tankerRashidah northwestof
Bahrain.l2
A1 .O6 Iran attacke8 shipsbetween June and August1987,includingthe following. On
27 and 29 June 1987 respectively, Iranian patrol boats attackedthe Norwegian-registered
supertanker Mia Margrethe, causing injuriesto four persons, and the Kuwait-registered
' Exhibit14,Sl168771Add.5,p. 5;Sreedhar& Kaul,p. 116,Exhibit6.
Sl16877lAdd.5,p.6,Exhibit14;Sreedhar& Kaul, p. 11Exhibit6.
Sl16877lAdd.5,p. 6,Exhibit14;Sreedhar& Kaul,p. 117,Exhibit6.
'O S/16877/Add.5,p. 7Exhibit14;Sreedhar& Kaul,p. 117Exhibit6.
"
Sl16877lAdd.5,p. 7,Exhibit14; Sreedhar& Kaul, p. 118Exhibit6; Cordesman & Wagner, p.
290,Exhibit 11.
l2Sl168771Add.5p,. 7Exhibit14;Sreedhar& Kaul,p.118,Exhibit6; Cordesman& Wagner,p. 290,
Exhibit11. -60 -
containership Al Meraaab.I3 On 9 and 13July 1987 respectively, Iranian patrol boats attacked
and damagedthe Liberian-registeredU.S.-owned supertanker Peconic and the French-registered
containership Ville d'Anvers.'4 By 3 August 1987,Iranian television and radio publicized that
the Iranian Navy and IRGC Navy were conducting "Martyrdom Maneuvers", which involved
training suicide squadsto ram warships with explosive-ladenspeedboats,in a blatant atternptto
intimidate the free passage of shipping through the Persian ~u1f.I' On 18 August 1987,two
Iranianpatrolboatsattackedthe Liberian-registeredchemical tanker OscoSierra outside the Strait
of Hormuz.I6 On 31August 1987Iranian motor launchesraked the Kuwaiti containershipJedel_
-li with machine-gun fire and blastedtwo holes in its side with rocket propelled grenades. "
A1.O7 Arnong the 13 ships Iran attacked in September 1987were the following. On 2
September 1987,Iranian patrol boats attacked the Japanese-registered tanker Nisshin Mani with
rocket-propelled grenades and the crew quarters of the Italian-registered containership Jollv
Rubinowithbazookas.I8On 9 September 1987,an IranianNavy frigate raked the Cypriot-regis-
teredtankerHavenwithrocket andmachine gun fire. ''On 19 September 1987,an IranianNavy
l3 Sl16877lAdd.5 ,. 8,Exhibit14;Sreedhar & Kaul, p. 119,Exhibit6.
l4 Sl16877lAdd.5 ,. 8,Exhibit14;Sreedhar & Kaul, pp. 119-120,Exhibit6.
l5
"U.S.Plansto SendElite Units toGulf', Wash.Post, 5 Aug. 1987, p. A-1,Exhibit 14;"Iran
ConcludesNavalExercises",Wash.Post, 8 Aug.1987, p.A-13,Exhibit14.
l6 Sl16877lAdd.5 ,. 9, Exhibit14; Cordesman & Wagner, p.306,Exhibit11.
l7 Sl16877lAdd.5 ,. 10,Exhibit14;Sl19093,Exhibit14;Sreedhar & Kaul, p. 120,Exhibit6.
l8 Sl16877lAdd.5 ,p. 10-11,Exhibit14. - 61-
frigate attacked the Saudi-registered tankerPetroshi~ B in the Strait of H~rmuz.~~On 21
September 1987 IRGC Navy small boats attacked the British-flag tanke Grentle Breezeand set
it afire, killing a crewrnan.
A1.O8 Iran attacked 7ships in October 1987, including the following. On 7 October
1987, an Iranian patrol boat machine-gunnedthe Saudi-registered loaded bunker vessel Raad
Al-Bah ~111.~On 13October 1987,Iranianpatrol boats attackedthe Liberian-registered tanker
Atlantic Peaceoff Dubai.23
A1.O9 Iranattacked9 shipsinNovember1987,includingthe following. On6November
1987, an Iranian Navy frigatecarried out an attack on the U.S.-opera?edPanamanian-flagged
105,484-dwt tanker Grand Wisdom, sailing about20 miles West of the main United Arab
Emirates port of Jebel Ali.24 Five days later, two IRGC Navy gun boats hit the Panama-
registered Japanese tanker Liauid Bulk Exdorer in the Strait of ~ormuz.~~ On 15 and 16
November 1987,Iranian speedboats attackedthree tankers, the U.S.-managedLiberian tanker
& nearthe StraitsofHormuz,theU.S.-ownedshipEssoFree~ortsailingunderBahamianflag,
'O
I.id 9p. 11. Thisvesse1wasattackeda secondtimeon 12 Oct. 1987. m., p. 14;Exhibit6,
Sreedhar& Kaul,p. 123.
'' Sl16877lAdd.5p ,. 11,Exhibit14. TheUKstronglyprotestedthisto Iran. UN Doc.S119147,
Exhibit14.
22Sl16877lAdd.5p ,. 13,Exhibit14; Sreedha& Kaul,p. 123,Exhibit6;Cordesman & Wagner,p.
326,Exhibit 11.
23
SI16877lAdd.5p , . 14,Exhibit14.
24 Cordesman & Wagner, p3. 34,Exhibit11;Sl16877lAdd.5p ,. 14,Exhibit14;Sreedhar & Kaul,
p.124,Exhibit6.
25 Cordesman & Wagner,p. 335,Exhibit11,Sl16877lAdd.5 p. 14,Exhibit14;Sreedhar & Kaul,
p.124,Exhibit6.and the small Greek-owned tanker,the Filikon L.26 On 23 November 1987,Iranian speedboats
attacked the Romanian-registered cargo ship Fundulea, seriously injuring three crew members,
and the Panamanian-registered containership Uni-Master." On 26 November 1987,an Iranian
Navy frigate attackedthe Kuwaiti cargo ship Ummal-Jathathel. 28
Al. 10 Iran attacked 18 ships in December 1987, more than in any previous month,
including the following. In early December 1987,Iranian patrol boats hit, set ablaze, and sank
the Singapore-registeredcombinationcarrier Norman Atlantic, and attackedthe Danish-registered
products tanker Estelle Maersk, killing one of its crew and seriously injuring another
crewmember." On 18December 1987,IRGCNavy small boats openedfire on the Liberian-regi-
stered supertanker Saudi Svlendor off Dubai and the Norwegian-registered supertankerHavv~
-ariinthe Strait ofHorm~z.~~ On 23 December, anIranianNavy fiigate attacked and set ablaze
the Norwegian-registered supertanker Berge ~i~.~' On 25 December 1987, a U.S. Navy
helicopterrescued 11seamenand a British Navy helicopter rescuednine seamen from a burning
South Koreanfieighter,the Hwndai-7, after it had been attackedby Iranian small boats 25miles
north of ~harjah.~'
26 Cordesman & Wagner,p. 335,Exhibit 11;SI16877fAdd.5,p. 15,Exhibit14; Sreedhar & Kaul,
p. 125,Exhibit6.
'' Sl16877lAdd.5p, . 16,Exhibit14;Sreedhar& Kaul,p. 125,Exhibit6.
28 -bid.
29 Sl16877fAdd.5p ,. 16,Exhibit14;Sreedhar& Kaul,p. 126,Exhibit6.
30 Sl16877lAdd.5p, p. 17-18,Exhibit14;Sreedhar& Kaul,p. 127,Exhibit6.
3' Sl16877fAdd.5p ,. 18,Exhibit14;Sreedhar & Kaul128,Exhibit6.
32"LloydsCitedonAttack on S..KoreanShip", Fm 28Dec.1987,p. 27,Exhibit15;Sl16877lAdd-
.5,p. 18,Exhibit14;Sreedhar& Kaul,p. 128,Exhibit6. - 63-
Al. 11 Other nations were also forced to take steps to protect their shipping. After the
13 July 1987 attack by two Iranian small boats on the French container ship Ville d'Anvers,
France broke diplomatic relations with Iran and announcedon 29 July 1987 that the aircraft
carrier Clemenceau and three supportships were being dispatched to the Gulfa~-ea.~~ After the
3 September 1987 attack on the Italian cargo ship Jollv Rubino, Italy announced that it would
sendshipsto the Gulfto protect Italian merchantmen.34 On 3 October 1987, Iran launched about
60 armed speedboats, apparentlyat the SaudiArabian offshore oil field at Khafji. SaudiArabia
sent jets and warships to intercept these patrol boats and turn them back. No gunfire was
SectionII. IranianNaval Mines Damaged NumerouV s esselsand Prompted the Deployment
of Minesweepersand Sea LaneSurveillance Forcesto the Gulf.
A1.12 Iran also without notice laid mines inthe international waters and international
shipping channels of the Gulf to threaten and darnage ~hipping.~~Of the 16 ships reported to
have struck mines in the Gulf, most were reported to have hit mines laid by Iran in 1987 and
33Sl168771Add.5p ,. 8, Exhibit14;Sreedha& Kaul,p. 120,Exhibit6; "FrenchShip isAttackedin
Gulf, Raising Paris-TeheranTensions",N.Y. Times, 14Jul. 1987,p. A-6,Exhibit 15; "Mine-Hunter
Helicopters SenttoGulf',Wash.Post,30 Jul. 1987,p.A-1,Exhibit15.
34 "IranFiresMissileatKuwait",Wash.Post,5 Sep. 1987,p.A-1,Exhibit15.
35"SaudisTurn BackIranianFlotillaNearOil Terminal",Wash.Post, 4 Oct. 1987,p. A-1,Exhibit
15.
36
Ithas beenreportedthatIranhada wide rangeof surfaceandbottomandat leastsome timed or
intervalmines thatbecameactiveaftera fixedperiodof timeorafterseveralshipspassed by.Whilethe
fulrangeofIran'sminesassertsatthat time arenotknownpublicly, therewasspeculationthey included
contact,magnetic,acoustic,bowwave,pressure,andtemperature minesa ,ndpossiblyremote-controlled
mines,someof which were largemetalmineseasilydetectedby sonar, whileothersweretoo small for
easydetection,andotherswerenonmagnetic.Cordesman & Wagner, pp.562-63,Exhibit 11. A1.13 On 17 May 1987, a Soviet-registered tanker leasedto Kuwait and under Soviet
escort,the MarshalChuvkov,strucka mine laid by Iran in the deep water approaches toKuwait's
main oil terminal.38On27 May 1987,the 275,000dwt Liberian-flagged tanker Primrose struck
an Iranian-laidmine offthe Kuwaiti coast; on 9 June 1987,the Greek-flagged275,OOdwt tanker
Ethnic hit an Iranian mine near Kuwait; on 19June, 1987,the 270,000 dwt Liberian-flag tanker
Stena Exdorer struck an Iranian laid mine.39 On 24 July 1987, about 80 miles to the southeast
of Kuwait,the Bridgeton,a Kuwait-ownedU.S.-flagged414,266 ton supertanker in ballastunder
U.S.rnilit. escorten route toKuwait,hit an Iranianmine at 27'59'N 049'50'E, in international
waters about 18 miles Westof the Iranian naval guards base on Farsi island, causing extensive
damage to the hip p.^ ' n 22 September 1987, before mine clearance operations began, the
Panarnanian-registered Marissa 1survey ship sank after hitting a mine north of Bahrain; four of
its seven crewmen were believeddead. 4'
A1.14 Consequently,the United States ordered U.S. Navy minesweeping helicopters to
37 Sreedhar & Kaul,pp. 87-134,Exhibit6, list8ships hittingminesbetweenOctober1981 andJuly
1988,7 ships hittingmineslaidby Iran (al1betweenMay 1987andApril 1988)andoneship hittinga
mine laid by Iraq (1 Feb. 1984). TheUN Secretary-Generarleported10ships hitminesbetweenJune
1984and December1987,but ascribedno responsibilityfor the mine-laying. SI16877and Add.1-6
Exhibit14.
38 "IraqiMissileHitsU.S. NavyFrigatein PersianGulf',N.Y.Times,18May1987,p. A-1,Exhibit
15;Sl16877lAdd.5p , . 7,Exhibit14;Sreedha& Kaul,p.1 18,Exhibit6.
39 Sreedhar& Kaul 118,Exhibit6; Sl16877lAdd.5p , . 7,Exhibit14; Cordesman& Wagner,p. 345
n.42,Exhibit11.
40 "AftertheBlast,Joumey Continues" ,.Y. Times,25July 1987,p. 5, Exhibit15; Cordesman &
Wagner,pp. 298-299, 563-64,Exhibit11;Sl16877lAdd.5, p. 9, Exhibit 14;Sreedhar& Kaul,p. 120,
Exhibit6.
4' Sl16877lAdd.5 ,. 11,Exhibit14;Sreedhar & Kaul121,Exhibit 6. - 65 -
the Other nations dispatched mine hunting and sweeping units as well. On 11 August
1987, the United Kingdom and France announced that they would send seven mine hunting
vessels to the Gulf.43In September, Belgium, the Netherlands, and Italy announced that they also
would dispatch seven minesweepers to the Gulf. 44
A1.15 Unfortunately, despite these efforts, the mines laid throughout the Gulf continued
to infiict extensive damage to innocent vessels. On 10 August 1987,after Iran had laid its fourth
minefield, the U.S.-owned, Panama-registered tanker Texaco Caribbean stmck a mine in the Gulf
of Oman off Fujairah, Oman.4' On 15August 1987, the UAE-flag supply ship Anita sank after
hitting a mine laid by Iranjust outside the entrance to the Strait of Horm~z.~~
Al. 16 At times Iran denied that it was the source of these mines. Nevertheless, in a
Tehran radio dispatch of 20 August 1987, Iran adrnitted that it had mined the Gulf, purportedly
to "protect" its coa~tline.On 21 September 1987, U.S. helicopters identified Iran Air, an Iranian
Navy logistics supply ship, laying mines at night near the Bahrain Bell in an international
42 "U.S.Acts to BolsterGulf Mine Defenseson SeveralFronts",Wall St. Journal,4 Aug. 1987,p.
1, Exhibit 15;"8U.S. Helicopters Arrive forMissionto Sweepthe Gulf',N.Y. Times, 17Aug. 1987,p.
A- 1, Exhibit 15; "U.S. Orders8 Old Minesweepersto the Gulf', N.Y. Times, 20 Aug. 1987,p. A-1,
Exhibit 15; Cordesman & Wagner, pp.299-300,Exhibit 11.
43 IEuropeansSendMine Sweepers",Wash.Post, 12Aug. 1987,p. A-1, Exhibit 15; Cordesman &
Wagner, pp.304-305,Exhibit 11.
44 "Dutch Sending2 Shipsto Hunt Mines in Gulf', N.Y. Times, 8 Sep. 1987, p. A-3,Exhibit 15;
"Perez de Cuellar'sGulf Trip Ends in ApparentFailure",Wash.Post, 16Sep. 1987,p. A-1, Exhibit 15;
Cordesman & Wagner,pp. 313-315,Exhibit 11.
45 "Iran Says it Minesthe Gulf', Wash.Post, 21 Aug. 1987,p. A-1, Exhibit 15; SI16877lAdd.5,p.
9, Exhibit 14; Cordesman & Wagner,p. 304,Exhibit 11.
46 Sl16877lAdd.5,p. 9, Exhibit 14;Sreedhar & Kaul 120,Exhibit6.
47 "Iran Saysit Minesthe Gulf', Wash.Post, 21 Aug. 1987,p. A-1, Exhibit 15;"Discovering Self-
Interest",.Y. Times,23 Aug. 1987,sec.4,p. 22, col. 1,Exhibit 15.shipping channel used regularly by U.S. ships in the central Persian The ship was
incapacitatedbythe helicoptersandthen boardedby the U.S. Navy. 49The IranAir wasmanned
by regular elementsof the IranianNavy." Nine anned Iranian-made SADAF-02contactmines
ready for deploymentin shippingchannelswere found on board the Iran ~ir." Charts aboard
the Iran Air detailingthe minelaying scheme helpedthe U.S. Navy to locale and disarmnine
other mines, identicalto those captured on the IranAir,that the Iranian sailorshad pushed into
the sea earlierthat nightusinga gangplank. '2
Al. 17 On 13April 1988, Iranian ships laid two newminefieldsin the convoy channel
of the central Gulf, onenear the Shah Allurn Shoals, the other in the vicinity of the Rostarn
platf~rm.~~The next afternoon, at about 5:00 pm, the U.S. Navy guided missilefngate, USS
48S119149,Exhibit20; President'sLetterto the PresidentPro Tempore ofthe Senateandthe Speaker
of the House, II PAPERS OF PRESIDENR TEAGAN2 ,4 Sept. 1987, at 1074,Exhibit 21. The helicopter
crewsusedinfrarednight-visiondevicesto identifythe objectsbeing placedin the wateras mines. Time,
5Oct. 1987,at 20,Exhibit22. See alsoCordesman & Wagner,pp. 318-319,Exhibit 11.
49 The helicopters strafed the Iranian vesse1until it stopped laying mines. When the helicopters
returned forty minutes later and discovered thatthe minelayinghad resumed, theyattackedand disabled
the ships. President'sLetterof 24 Sept. 1987,Exhibit21.
'O President'sLetterto Congress, 24 Sep. 1987,Exhibit21.
5' Time, 5Oct. 1987,at 22, Exhibit22. Of the 31crewmenassignedto that ship,three werekilled;
two were reported missing;and 26, includingseveralwounded,were pickedup by U.S. forcesandtaken
to U.S. Navy ships for examinationand medicaltreatment. Arrangementswere madeto transfer the26
Iranian sailorsto Omani authorities,,ina operation supervisedby the InternationalCommitteeof the Red
Cross. Theywere then repatriatedto Iran. TheU.S. Navyeventuallyscuttledthe ship in deepwatersoff
Bahrain. m.
'* Time, 5 Oct. 1987, at 20, Exhibit 22; O'Rourke, "Gulf Ops," U.S. Naval Institute
ProceedingsMavalReview 1989,44, at 50 n.3,Exhibit23, Iranoriginallyclaimedthe shipwas carrying
food, UN Doc. Sl19161, 29 Sep. 1987,Exhibit 9, then changed its story, sayingthat the ship, loanedto
the Iranian Navy by its owner, the Islamic Republic of Iran Shipping Company, was ferrying military
supplies from Bandar Abbas to Bushahr. D. Hiro, THELONGEST WAR:THEIRAN-IRAQ MILITARY
CONFLIC(T 1991),p. 189,Exhibit 57; Cordesman & Wagner,p. 319,Exhibit 11.
53 SeeMap 1. - 67-
Samuel B. Roberts, returning to Bahrain after completing the 25th convoy of 1988, in
international waters at26'23'N 052'18'E, 11nautical miles west of Shah Allurn shoal at about
56 miles east of Ra's Rakam, Qatar,54spotted three shiny five horned contact mines floating in
the water 0.3 nautical miles in a line off its starboard bow, perpendicular to the ship's track.
While attempting to back out of the minefield, the Roberts struck one of the sixteen newly-laid
mines.55 Ten U.S. sailors were injured, three seriously, and the ship was severely da~naged.'~
The U.S. and other mine clearance forces recovered several of the mines; they were SADAF-O2
mines, with Iranian serial nurnbers with the safeing device ina~tivated.~' These mines were
identical to those found in the Kuwaiti, Farsi and Khor Fakkan minefields and on the Iran Air.
54 Thechartedwater depth atthis point is 62 metersor 32 fathorns.
55 "Blast DarnagesU.S. Frigate in Gulf', N.Y. Times, 15 April 1988,p. A3, col. 1, Exhibit 15;
Cordesman & Wagner, pp.298, 375-376,Exhibit 11; Sreedhar & Kaul, p. 132,Exhibit 6. One author
erroneouslysays the Roberts stmckan Iraqi mine. Wiswall,31Va. J. Int'lL. p. 626 n.26, Exhibit 12.
56 Cordesman & Wagner,p. 376, Exhibit 11.
57 Ibid. The United States had previously recovered44 mines in the Gulf, 16 in 1988;the most
recent minedetectionhad been on 9 April 1988. Ail of these mines wereencmstedwith marinegrowth
andshowedsignsof havingbrokenawayfiom their moorings. N.Y. Times, 15April 1988,p. A3, Exhibit
15. LaterWesternships found morethan 13 newlylaidmines. Westernminesweepingeffortinthe Gulf
found a total of 89 mines in 7 different minefields,two of which were in the lower Gulf and the rest
strung out over the convoy routes. They included79 Soviet M-08 mines and 10 Iranian-made Myam
mines, which were smallercontact mines. In addition, theauthorsreportedthere were large numbers of
floatingmines. The totalnumber of mines neutralizwas 176,including89 rnoored and87 floating,and
a total of 83 M-08sand 95 Myams. The authors note that the mines wereoften poorly moored and had
no safetydevices.IM., pp. 565and 589n.57.Section III. In Addition to Small Boat Attacks and the Laying of Naval Mines, Iran
Launched Silkworm Missiles Against Kuwaiti Shipping and Shore Facilities and Air-to-
Surface Missiles against InnocentMerchant Shipping.
Al. 18 Iran alsoattacked innocent shippingby surface-to-surface missiles. Iran occupied
missile sites and launched Chinese-manufactured HY-2 Silkworm missiles from the Faw
Peninsula to disrupt shipping of'oil to andfrom neutralcountries. On 4 September 1987, Iran
fired a Silkworm missile fromthe Faw Peninsula toward Kuwait; the missile hit anuninhabited
beach area two miles south of an oil loading terminal.58 The sarne day Iran fired a second
Silkworm missile that hit near Mina Abdullah, 30 miles to the south of Kuwait City. On 5
September Iran fired a third missile which hit near Failaka Island, 13 miles from Kuwait's
northemcoa~t.'~On 15October 1987,however, an Iranian Silkworm missile fired from the Faw
Peninsula hit the U.S.-owned, Liberian-flagged oil tanker Sun~arianchored off Kuwait's Mina
al-Ahmadi port in Kuwaiti territorial waters. There were noca~ualties.~~The next day another
Iranian Silkworm missile hit the Sea Isle City, a Kuwait-owned, U.S.-registered tanker while
proceeding to the oil loading terminal from the anchorage nine nm east of Mina al-Ahmadi, at
29005'N048017'E. Eighteenseamen,includingthe U.S. captain, were injured. 6'On 22 October
1987, an Iranian Silkworm missile hit Kuwait's Sea Island terminal, a 2,500-foot-long pier, an
"Iran Fires Missileat Kuwait",Wash.Post, 5 Sep. 1987,p. A-1, Exhibit 15; Cordesman &
Wagner,pp.3 11-312,Exhibit11.
59 Cordesman & Wagner, p.312,Exhibit 1 1.
60 Sl16877lAdd.5,p. 14,Exhibit14;Sl19210,Exhibit28; "IranHitsU.S.-OwnedTanker",Wash.
-ost,16 Oct.1987,p. A-1,Exhibit15; Cordesman & Wagner,pp. 328-329,Exhibit 11.
61 Sl16877lAdd.5p, .14,Exhibit14;Sl19215,Exhibit14; "UN HeadTold ofAttack",Fm 19Oct.
1987, p.17,Exhibit15;Hiro,TheLongestWar,p. 190,Exhibit57. - 69-
oil-loading facility 9 miles out in the Gulffiom the Ahrnadi oil complex, which was the only
facility in water deep enough so Kuwait could easilyload supertankers of up to 500,000 tons.
No tankers were berthedat the terminal at the time of this atta~k.~~
Al. 19 Iran denies firing the Silkworm missile which hit the Sea Isle It asserts
"the Sea Isle City was well-beyond the range of a Silkworm missile even ifsuch missiles had
been placed on F~o."~~In this respect, Iran asserts that the Silkworm has a maximum effective
range of only 85 km or 45.7 nautical miles (one nautical mile equals 1.852 km), while the
distance from Iranian-held territory on the tip of Faw Peninsula to the shiplmost 110km
or 60 nauticalmiles. Nonetheless, Iran had publicly threatened to attack Kuwait with mis65les.
Moreover, it does not explicitly deny possessing any Silkworm siteson the Faw PeninsulaIn
fact, it possessed at leasttwo sites and a storage facility located there fromthe time it captured
the peninsula from Iraq in January 1986. And finally, the ship was located 50.8 nautical miles
or 94km (greatcircle distance) from the tower at the tip of the Faw Peninsula,at the outer limit
of the missile'sange.67 SeeMap 2.
A1.20 Iranalsoinflictedconsiderabledamage on innocentmerchant shipping inthe Gulf
62"SilkwormHitsKuwaitiOilTerminal",Wash.Post,23Oct.1987,p.A-1,Exhibit15; Cordesman
& Wagner,pp.331-332,Exhibit 11.
IranianMernorial, paras.1.105,4.72and4.74,andMaps4and5.
64IranianMernorial,para.4.72.
65 On 25 July 1987,Tehranradio quotedIranianPresidentAli Khameinias threatening tofire
missilesatKuwait.Newuort, R.I.DailvNews,4 Sep.1987,p. 1,Exhibit15.
66
IranianMemorial,para.1.105.
67
IranpossessedChineseHY-2Silkwormmissileswhichhaveamaximumrange of95km(5 1 nm).
N. Friedman,THENAVAL INSTiTUT EUIDE TO WORLD NAVAL WEAPONS SYSTEMS (1989), p. 79,
Exhibit30;JANE'WS EAPOS NYSTEM 1985-86,p.75,Exhibit31. -70 -
withattacksby Iranian military aircraft, usuallyF-4 fighter aircraftusing Maverick missilesand
gravityb~mbs.~'Maverick missilescan be launchedfrom ranges of 0.5 to 13nautical milesand
aretelevision guided. The launchingaircraft mustbe able to keepvisualtrack of the target,but
doesnot haveto scanits target with radar69 Mostof the 71 Iranian attackson shipping between
May 1984 and October 1986used these weapons. On 2 February 1988, twoIranian F-s once
againattacked amerchant ship, the Liberian tankerPetrobulkPilot inthe southern Persian Gulf,
this time with two Maverick missile^.'^
SectionIV. IranianAttacks onInnocentShippingContinuedthroughout1988.
A1.21 Iranian patrol boats attackedthe Norwegian tanker Igloo Esvoo on 15 January
1988, near the Strait of Horm~z.~' Agence France-Presse reported anIranian attack on the
Liberian-registeredAtlantic Charisma and an attack onthe Liberian-registered Rainbow, both on
15 January 1 988.72 On 21 January, Iran attackedthe Nonvegian-owned Hafvel in the Strait of
Hormuz and, the following day,,set ablaze the Panarnanian tanker Tovaz. Iran asserted that its
attack on the Hafvel was a mi~take.~~Iranian speed boats on 22 January 1988, attacked the
Cordesman & Wagner,pp.393,409n.90,fl9 & 590n.68,Exhibit 11.
69Friedman,pp. 47 & 75-76,Exhibit30.
70 Sreedhar& Kaul,p. 130,Exhibit6;Cordesman & Wagner, p. 363,Exhibit11; "IranTriesAerial
AttackonCargoShip inGulf',Christian ScienceMonito r,Feb. 1988Exhibit 15.
7'
Sreedhar& Kaul,p. 128,Exhibit6. -71 -
emptyDanish-flaggedTorm~otna.~~On3 February 1988,Iranianspeedboatshit and set ablaze
a Norwegian freighter Petrobulk Ruler approximately tennautical miles from the UnitedArab
Emirates port of Al-Sharjz~h.~'On 4 February 1988,an Iranian naval frigate attacked the
Panamanian-registered Tavistock near ~ubai.~~ On 6 February 1988, the U.S.-owned,
Liberian-registered Diane was set ablazein an attack by the same frigate off the coastof the
UnitedArab mirat tes.O^n9 February1988,anotherIranianfrigateattacked the Liberiantanker
Ver~niaue.~~
A1.22 On12February,Iranianmilitaryunitsfiredon U.S. helicoptersonreconnaissance
overa Kuwaiticonvoy. On 7 March 1988,U.S.helicoptersonreconnaissanceflightscameunder
machine-gunfire froman oil platform andseveralboatsinthe central
A1.23 In March 1988, IRGC Navy patrol boats and an IRIN frigate attacked the
Norwegian supertanker Berge Lord, Liberianships Furni and Iberian Reefer, and theCyprus-
flagged tanker OdvssevH in the Strait of Hormuz, as well as the Singaporean-registeredship
Harglimt 12 miles off the Dubai coast (killing two crewrnen), Liberia's Atlantic Peace near
Sharjah,andthe Norwegian-registered NeptuneSubam.
A1.24 BetweenMayandJuly 1988,Iranianpatrol boatsin the StraitofHormuz attacked
74M.
75Ibid p,130.
76W.
77IU.
78M.
79Cordesman & Wagner,p. 368Exhibit11.
Sreedhar& Kaul,p.131,Exhibit6. - 72-
the Japanese Ace Chem; the Liberian Mundanas Rio; the West German Dhaulagiri; the
U.S.-owned, British-registered supertanker Esso Demetia, and the Nowegian-owned Berne
Strand.81
Sreedhar& Kaul,pp. 133-134,Exhibit6.
Preliminary Objection submitted by the United States of America