Public sitting held on Monday 17 February 2003, at 3 p.m., at the Peace Palace, President Shi presiding

CR 2003/5
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2003
Public sitting
held on Monday 17 February 2003, at 3 p.m., at the Peace Palace,
President Shi presiding,
in the case concerning Oil Platforms
(Islamic Republic of Iran v. United States of America)
____________________
VERBATIM RECORD
____________________
ANNÉE 2003
Audience publique
tenue le lundi 17 février 2003, à 15 heures, au Palais de la Paix,
sous la présidence de M.Shi, président,
en l’affaire des Plates-formes pétrolières
(République islamique d’Iran c. Etats-Unis d’Amérique)
________________
COMPTE RENDU
________________
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Present: President Shi
Vice-President Ranjeva
Judges Guillaume
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka
Judge ad hoc Rigaux
Registrar Couvreur
¾¾¾¾¾¾
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Présents : M. Shi, président
M. Ranjeva, vice-président
MM. Guillaume
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka, juges
M. Rigaux, juge ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
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The Government of the Islamic Republic of Iran is represented by:
Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the Iran-US Claims Tribunal,
Deputy Director for Legal Affairs, Bureau of International Legal Services of the Islamic
Republic of Iran, The Hague,
as Agent;
Mr. D. Momtaz, Professor of International Law, Tehran University, member of the International
Law Commission,
Mr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company,
Mr. Michael Bothe, Professor of Public Law, Johann Wolfgang Goethe University of
Frankfurt-am-Main, Head of Research Unit, Peace Research Institute, Frankfurt,
Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, member of the English and Australian Bars, member of the Institute of International
Law,
Mr. Alain Pellet, Professor at the University of Parix X-Nanterre, member and former Chairman of
the International Law Commission,
Mr. Rodman R. Bundy, avocat à la cour d’appel de Paris, member of the New York Bar, Frere
Cholmeley/Eversheds, Paris,
Mr. David S. Sellers, avocat à la cour d'appel de Paris, Solicitor of the Supreme Court of England
and Wales, Frere Cholmeley/Eversheds, Paris,
as Counsel and Advocates;
Mr. M. Mashkour, Deputy Director for Legal Affairs, Bureau of International Legal Services of the
Islamic Republic of Iran,
Mr. M. A. Movahed, Senior Legal Adviser, National Iranian Oil Company,
Mr. R. Badri Ahari, Legal Adviser, Bureau of International Legal Services of the Islamic Republic
of Iran,
Ms Nanette Pilkington, avocat à la cour d’appel de Paris, Frere Cholmeley/Eversheds, Paris,
Mr. William Thomas, Solicitor of the Supreme Court of England and Wales, Frere
Cholmeley/Eversheds, Paris,
Mr. Leopold von Carlowitz, Research Fellow, Peace Research Institute, Frankfurt,
Mr. Mathias Forteau, docteur en droit, Researcher at the Centre de droit international de Nanterre
(CEDIN), University of Paris X-Nanterre,
as Counsel;
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Le Gouvernement de la République islamique d’Iran est représenté par :
M. M. H. Zahedin-Labbaf, agent de la République islamique d’Iran auprès du Tribunal des
réclamations Etats-Unis/Iran, directeur adjoint des affaires juridiques au bureau des services
juridiques internationaux de la République islamique d’Iran à La Haye,
comme agent;
M. D. Momtaz, professeur de droit international à l’Université de Téhéran, membre de la
Commission du droit international,
M. S. M. Zeinoddin, chef du service juridique de la National Iranian Oil Company,
M. Michael Bothe, professeur de droit public à l’Université Johann Wolfgang Goethe de
Francfort-sur-le-Main, directeur de la recherche à l’Institut de recherche pour la paix à
Francfort,
M. James R. Crawford, S.C., F.B.A., professeur de droit international, titulaire de la chaire
Whewell à l’Université de Cambridge, membre des barreaux d’Angleterre et d’Australie,
membre de l’Institut de droit international,
M. Alain Pellet, professeur à l’Université de Paris X-Nanterre, membre et ancien président de la
Commission du droit international,
M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Frere Cholmeley/Eversheds, Paris,
M. David S. Sellers, avocat à la cour d’appel de Paris, Solicitor auprès de la Cour suprême
d’Angleterre et du Pays de Galles, cabinet Frere Cholmeley/Eversheds, Paris,
comme conseils et avocats;
M. M. Mashkour, directeur adjoint des affaires juridiques au bureau des services juridiques
internationaux de la République islamique d’Iran à La Haye,
M. M. A. Movahed, conseiller juridique principal à la National Iranian Oil Company,
M. R. Badri Ahari, conseiller juridique au bureau des services juridiques internationaux de la
République islamique d’Iran à La Haye,
Mme Nanette Pilkington, avocat à la cour d’appel de Paris, cabinet Frere Cholmeley/Eversheds,
Paris,
M. William Thomas, Solicitor auprès de la Cour suprême d’Angleterre et du Pays de Galles,
cabinet Frere Cholmeley/Eversheds, Paris,
M. Leopold von Carlowitz, chargé de recherche à l’Institut de recherche pour la paix à Francfort,
M. Mathias Forteau, docteur en droit, chercheur au Centre de droit international de Nanterre
(CEDIN) de l’Université de Paris X-Nanterre,
comme conseils;
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Mr. Robert C. Rizzutti, Vice-President, Cartographic Operations, International Mapping
Associates,
as Technical Adviser.
The Government of the United States of America is represented by:
Mr. William H. Taft, IV, Legal Adviser, United States Department of State,
as Agent;
Mr. Ronald J. Bettauer, Deputy Legal Adviser, United States Department of State,
as Co-Agent;
Mr. Michael J. Matheson, Professor, George Washington University School of Law,
Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States
Department of State,
Mr. Michael J. Mattler, Attorney-Adviser, United States Department of State,
Mr. Sean Murphy, Professor, George Washington University School of Law,
Mr. Ronald D. Neubauer, Associate Deputy General Counsel, United States Department of
Defence,
Mr. Prosper Weil, Professor Emeritus, University of Paris II, member of the Institut de droit
international, member of the Académie des sciences morales et politiques (Institut de France),
as Counsel and Advocates;
Mr. Paul Beaver, Defence & Maritime Affairs Consultant, Ashbourne Beaver Associates, Ltd.,
London,
Mr. John Moore, Senior Associate, C & O Resources, Washington, D.C.
as Advocates;
Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The Hague,
Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The Hague,
Ms Kathleen Milton, Attorney-Adviser, United States Department of State,
as Counsel;
Ms Marianne Hata, United States Department of State,
Ms Cécile Jouglet, United States Embassy, Paris,
Ms Joanne Nelligan, United States Department of State,
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M. Robert C. Rizzutti, vice-président des opérations cartographiques, International Mapping
Associates,
comme conseiller technique.
Le Gouvernement des Etats-Unies d’Amérique est representée par :
M. William H. Taft, IV, conseiller juridique du département d’Etat des Etats-Unis,
comme agent;
M. Ronald J. Bettauer, conseiller juridique adjoint du département d’Etat des Etats-Unis,
comme coagent;
M. Michael J. Matheson, professeur à la faculté de droit de l’Université George Washington,
M. D. Stephen Mathias, directeur chargé des questions concernant les Nations Unies auprès du
conseiller juridique du département d’Etat des Etats-Unis,
M. Michael J. Mattler, avocat-conseiller au département d’Etat des Etats-Unis,
M. Sean Murphy, professeur à la faculté de droit de l’Université George Washington,
M. Ronald D. Neubauer, assistant au bureau du conseiller juridique adjoint du département de la
défense des Etats-Unis,
M. Prosper Weil, professeur émérite à l’Université de Paris II, membre de l’Institut de droit
international, membre de l’Académie des sciences morales et politiques (Institut de France),
comme conseils et avocats;
M. Paul Beaver, expert consultant en questions de défense et affaires maritimes, Ashbourne Beaver
Associates, Ltd., Londres,
M. John Moore, associé principal, C & O Resources, Washington D. C.,
comme avocats;
M. Clifton M. Johnson, conseiller juridique à l’ambassade des Etats-Unis à La Haye,
M. David A. Kaye, conseiller juridique adjoint à l’ambassade des Etats-Unis à La Haye,
Mme Kathleen Milton, avocat-conseiller au département d’Etat des Etats-Unis,
comme conseils;
Mme Marianna Hata, département d’Etat des Etats-Unis,
Mme Cécile Jouglet, ambassade des Etats-Unis à Paris,
Mme Joanne Nelligan, département d’Etat des Etats-Unis,
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Ms Aileen Robinson, United States Department of State,
Ms Laura Romains, United States Embassy, The Hague,
as Administrative Staff.
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Mme Aileen Robinson, département d’Etat des Etats-Unis,
Mme Laura Romains, ambassade des Etats-Unis à La Haye,
comme personnel administratif.
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The PRESIDENT: Please be seated. The sitting is open.
The Court meets today, pursuant to Articles 43 et seq. of its Statute, to hear the oral
arguments of the Parties on the merits in the case concerning Oil Platforms (Islamic Republic of
Iran v. United States of America).
Before recalling the principal phases of the present proceedings, it is necessary to complete
the composition of the Court. With effect from 6 February 2003, Messrs. Hisashi Owada,
Bruno Simma and Peter Tomka became Members of the Court. At the same time,
Judge Abdul Koroma and myself were re-elected for a further term of office. We congratulate our
new colleagues, as well as our colleague re-elected, and are very happy to have the benefit of their
participation in the work of the Court.
Article 20 of the Statute of the Court provides that “[e]very Member of the Court shall,
before taking up his duties, make a solemn declaration in open court that he will exercise his
powers impartially and conscientiously”. As it is specified in Article 4, paragraph 3, of the Rules
of Court, that provision does not apply to Members of the Court whose term of office continues,
following their re-election. I shall now say a few words about each of the new Members of the
Court. I shall then invite them, in the order in which they take precedence by virtue of Article 3,
paragraph 3, of the Rules of Court, to make their declaration.
Judge Hisashi Owada, of Japanese nationality, has a Bachelor of Arts degree from the
University of Tokyo and a Bachelor of Laws degree from Cambridge University. He entered the
Foreign Service of Japan in 1955 and followed a successful career within the Ministry of Foreign
Affairs, both in his country and abroad; he has also represented Japan in several international
conferences. He was Deputy Minister, and then Vice-Minister for Foreign Affairs of Japan until
1993. Between 1994 and 1998, he was Permanent Representative of his country to the United
Nations, and, from 1999, he was a Special Adviser to the Minister for Foreign Affairs of Japan and
Senior Adviser to the President of the World Bank. Judge Owada has combined his diplomatic
responsibilities with a remarkable career in academia, having published many works on
international law and taught in prestigious institutions, including, in recent years, Waseda
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University Graduate School and New York University, as well as the Hague Academy of
International Law.
Judge Bruno Simma, of German nationality, studied law at the University of Innsbruck,
where he obtained a doctorate degree in 1966. In 1973, he became Professor of International Law
and European Community Law at the University of Munich, where he has been teaching ever since
and where he was director of the Institute of International Law; he was Dean of the Faculty of Law
of that university between 1995 and 1997. Judge Simma has also lectured in other prestigious
academic institutions, such as the Hague Academy of International Law and, lately, the University
of Michigan Law School. His publications in international law are numerous and well known; I
would mention, in particular, his collaboration with Alfred Verdross in the publication of the
Universelles Völkerrecht, his work as editor of the Commentary to the United Nations Charter, and
his participation in the creation of the European Journal of International Law. Judge Simma is also
familiar to the Peace Palace, since he has appeared before the Court as counsel in several cases. At
the time of his election, he was since 1996 a member of the United Nations International Law
Commission.
Judge Peter Tomka, of Slovak nationality, obtained his Master’s degree in Law, summa cum
laude, at Charles University in Prague, where he also completed a PhD in International Law. He
has devoted his professional activities to the Ministry of Foreign Affairs of Czechoslovakia and,
later, Slovakia. In Prague, he was Head of the Public International Law Division and then went to
New York, where he became Counsellor and Legal Adviser at the Permanent Mission of
Czechoslovakia to the United Nations. From 1993, he was successively Deputy Permanent
Representative and Acting Permanent Representative of Slovakia to the United Nations. Back in
Bratislava, he later became Director General for International Legal and Consular Affairs, before
assuming, in 1999, the position of Permanent Representative of Slovakia to the United Nations.
Judge Tomka has represented Czechoslovakia and Slovakia in numerous international conferences
and institutions, and was the Agent of Slovakia before this Court in the case concerning the
Gabèíkovo-Nagymaros Project. In 1999, he was elected member of the United Nations
International Law Commission. He has also assumed academic functions at Charles University in
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Prague and at Comenius University in Bratislava, and has published numerous works in
international law.
I shall now invite each of these judges to make the solemn declaration prescribed by the
Statute, and I request all those present to rise. Judge Owada.
Judge OWADA:
“I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.”
The PRESIDENT: Thank you. Judge Simma.
Judge SIMMA:
“I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.”
The PRESIDENT: Thank you. Judge Tomka.
Judge TOMKA:
«Je déclare solennellement que je remplirai mes devoirs et exercerai mes
attributions de juge en tout honneur et dévouement, en pleine et parfaite impartialité et
en toute conscience.»
The PRESIDENT: Thank you. Please be seated. The Court takes note of the solemn
declarations made by Judges Owada, Simma and Tomka and I declare them duly installed as
Members of the Court.
I should recall in that regard that, since the Court does not include upon the Bench a judge of
the nationality of the Islamic Republic of Iran, that Party has availed itself of its right, under
Article 31, paragraph 2, of the Statute, to choose a judge ad hoc, and that it has chosen
Mr. François Rigaux, Professor at the University of Louvain (Belgium) and Member of the Institut
de droit international. In accordance with Article 31, paragraph 6, of the Statute, Article 20 does
apply to judges ad hoc. Professor Rigaux made his solemn declaration on 16 September 1996, at
the opening of the hearings on the preliminary objection of the United States, and was then
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installed as judge ad hoc in the case; in accordance with Article 8, paragraph 3, in fine, of the Rules
of Court, he is not required to make a new declaration for the present phase of the case.
*
On 2 November 1992, the Islamic Republic of Iran filed in the Registry of the Court an
Application instituting proceedings against the United States of America concerning a dispute
“aris[ing] out of the attack [on] and destruction of three offshore oil production complexes, owned
and operated for commercial purposes by the National Iranian Oil Company, by several warships
of the United States Navy on 19 October 1987 and 18 April 1988, respectively”. In its Application,
Iran contended that these acts constituted a “fundamental breach” of various provisions of the
Treaty of Amity, Economic Relations and Consular Rights between the United States of America
and Iran, which was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957,
as well as of international law. The Application invoked, as a basis for the Court’s jurisdiction,
Article XXI, paragraph 2, of the Treaty of 1955.
*
By an Order of 4 December 1992 the President of the Court fixed 31 May 1993 as the
time-limit for the filing of the Memorial of Iran and 30 November 1993 as the time-limit for the
filing of the Counter-Memorial of the United States. By an Order of 3 June 1993, at the request of
Iran, he extended to 8 June 1993 the time-limit for the filing of the Memorial; the time-limit for the
filing of the Counter-Memorial was extended, by the same Order, to 16 December 1993.
Iran duly filed its Memorial within the time-limit as thus extended.
*
Within the time-limit as extended for the filing of the Counter-Memorial, the United States
raised a preliminary objection to the jurisdiction of the Court pursuant to Article 79, paragraph 1, of
the Rules of Court adopted on 14 April 1978. Consequently, by an Order dated 18 January 1994,
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the President of the Court noted that, by virtue of Article 79, paragraph 3, of the Rules of Court, the
proceedings on the merits were suspended, and fixed 1 July 1994 as the time-limit within which
Iran might present a written statement of its observations and submissions on the preliminary
objection raised by the United States.
Within the time-limit thus fixed, Iran presented such a statement, and the case became ready
for hearing with respect to the preliminary objection.
At the public sittings held between 16 and 24 September 1996, the Parties were heard on the
question of jurisdiction of the Court. By a Judgment dated 12 December 1996 the Court rejected
the preliminary objection of the United States and found that it had jurisdiction, on the basis of
Article XXI, paragraph 2, of the Treaty of 1955, to entertain the claims made by Iran under
Article X, paragraph 1, of that Treaty.
*
By an Order of 16 December 1996 the President of the Court fixed 23 June 1997 as the new
time-limit for the filing of the Counter-Memorial of the United States. Within this time-limit, the
United States filed its Counter-Memorial; this pleading included a counter-claim concerning
“Iran’s actions in the Gulf during 1987-88 which, among other things, involved mining and other
attacks on U.S.-flag or U.S.-owned vessels”.
In a letter of 2 October 1997 Iran expressed its opinion that “the counterclaim as formulated
by the United States [did] not meet the requirements of Article 80 [, paragraph 1,] of the Rules” and
its wish “to submit a brief statement explaining its objections to the counterclaim”. At a meeting
convened on 17 October 1997 with the Agents of the Parties by the Vice-President of the Court,
acting President in the case, the two Agents agreed that their respective Governments would submit
written observations on the question of the admissibility of the United States counter-claim. On
18 November 1997, Iran forwarded to the Court a document entitled “Request for hearing in
relation to the United States counter-claim pursuant to Article 80 (3) of the Rules of Court”, which
contained its observations on the admissibility of the counter-claim; by a letter dated
18 November 1997 the Registrar sent a copy of that document to the United States Government.
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By a letter from its Agent dated 18 December 1997, the United States submitted to the Court its
observations on the admissibility of the counter-claim set out in its Counter-Memorial, taking into
consideration the observations presented by Iran; by a letter dated 18 December 1997, the
Registrar communicated a copy of the observations of the United States Government to the Iranian
Government. Having received detailed written observations from each of the Parties, the Court
considered that it was sufficiently well informed of their respective positions with regard to the
admissibility of the counter-claim.
By an Order of 10 March 1998 the Court held that the counter-claim presented by the United
States in its Counter-Memorial was admissible as such and formed part of the current proceedings.
It also directed Iran to file a Reply and the United States to file a Rejoinder, relating to the claims
of both Parties, and fixed 10 September 1998 and 23 November 1999 respectively as the
time-limits for the filing of those pleadings. Lastly, the Court held that it was necessary moreover,
“in order to ensure strict equality between the Parties, to reserve the right of Iran to present its
views in writing a second time on the United States counter-claim, in an additional pleading the
filing of which [might] be the subject of a subsequent Order”.
*
By an Order of 26 May 1998, at the request of Iran, the Vice-President of the Court, acting
President in the case, extended the time-limits for the filing of the Reply of Iran and of the
Rejoinder of the United States to 10 December 1998 and 23 May 2000, respectively. By an Order
of 8 December 1998, at the request of Iran, the Court further extended the time-limits for the filing
of the Reply and the Rejoinder to 10 March 1999 and 23 November 2000, respectively.
Iran duly filed its “Reply and Defence to Counter-Claim”, and the United States its
Rejoinder, within the time-limits as thus extended.
By a letter dated 30 July 2001 and received in the Registry on 7 August 2001, the Agent of
Iran, referring to the above-mentioned Order of 10 March 1998, informed the Court that his
Government wished to present its views in writing a second time on the counter-claim of the
United States. By an Order of 28 August 2001, the Vice-President of the Court, taking account of
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the agreement of the Parties, authorized the submission by Iran of an additional pleading relating
solely to the counter-claim submitted by the United States and fixed 24 September 2001 as the
time-limit for the filing of that pleading.
Iran duly filed the additional pleading within the time-limit as thus fixed and the case was
ready for hearing on the merits.
*
At a meeting held on 6 November 2002 by the President of the Court with the Agents of the
Parties, the Agent of Iran, subject to confirmation, and the Agent of the United States agreed that
the oral proceedings on the merits should begin on 17 or 18 February 2003; the Agent of Iran
subsequently confirmed the agreement of his Government. At the same meeting the Agents of the
Parties also presented their views on the organization of the oral proceedings on the merits.
Pursuant to Articles 54 and 58 of the Rules, the Court fixed 17 February 2003 as the date for the
opening of the hearings and adopted a timetable for them. The Registrar informed the Parties
accordingly by letters of 19 November 2002.
*
At the above-mentioned meeting of 6 November 2002, the Agents of the Parties informed
the President of the Court that they had decided not to present witnesses during the oral
proceedings. The Agent of the United States nevertheless expressed his Government’s intention,
under Article 56 of the Rules, to file a new document containing additional analysis and
explanations by experts concerning certain evidence already produced in the case. On
20 November 2002, the United States filed an expert’s report dated 18 November 2002, together
with a copy of a diplomatic Note dated 20 November 2002 from the Royal Norwegian Embassy in
Washington D.C. to the United States Department of State. In a letter dated 20 January 2003 and
received in the Registry on 22 January 2003, the Agent of Iran informed the Court that his
Government did not object to the production of the above-mentioned documents by the United
States and asked the Court, pursuant to Article 56, paragraph 3, of the Rules of Court, that
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comments of Iran’s own expert on the United States expert’s report “be made part of the record in
the case”.
On 22 January 2003, the Court decided to authorize the production of the above-mentioned
documents by the United States and comments thereon by Iran; the Registrar informed the Parties
accordingly by letters of the same date.
*
I would add that, having consulted the Parties, the Court has decided, in accordance with
Article 53, paragraph 2, of the Rules of Court, that copies of the pleadings and documents annexed
will be made accessible to the public on the opening of the oral proceedings on the merits. Further,
in accordance with the Court’s practice, these pleadings without their annexes will from today be
put on the Court’s Internet site.
I note the presence at the hearing of the Agents, Counsel and Advocates of both Parties. In
accordance with the arrangements on the organization of the procedure which have been decided
by the Court, the oral hearings will comprise a first and a second round of oral argument. Each
Party will have a total of five full sessions of three hours for the first round and a total of two full
sessions of three hours for the second round.
Iran will present its first round of oral arguments on its claims this afternoon, on Tuesday
18 February at 10 a.m. and on Wednesday 19 February, at 10 a.m. and 3 p.m. The United States
will present its first round of oral arguments both on the claims of Iran and on its own
counter-claim on Friday 21 February, at 10 a.m., on Monday 24 February, at 3 p.m., on Tuesday
25 February at 10 a.m. and on Wednesday 26 February at 10 a.m. and 3 p.m. Iran will then
conclude its first round of oral argument with respect to the counter-claim of the United States on
Friday 28 February at 10 a.m.
Iran will then present its oral reply on Monday 3 March at 10 a.m. and, for a speaking time
of one-and-a-half hours, at 3 p.m. For its part, the United States will present its oral reply both on
the claims of Iran and on its own counter-claim on Wednesday 5 March at 10 a.m. and 3 p.m. Iran
- 18 -
will conclude its second round of oral argument with respect to the counter-claim of the
United States on Friday 7 March at 10 a.m. for a speaking time of one-and-a-half hours.
Thus, I shall now give the floor to H.E. Mr. Zahedin-Labbaf, Agent of the Islamic Republic
of Iran.
*
* *
Mr. ZAHEDIN-LABBAF: In the Name of God, the Merciful and Compassionate.
1. Mr. President, distinguished Members of the Court, it is an honour and a privilege for me
to appear again before the Court today in this very important case, as Agent of the Islamic Republic
of Iran. I am particularly pleased now to be representing my country in the merits phase of the
case. I am also pleased that the United States has continued to participate in this legal process, and
that it is represented here today.
2. May I also take this opportunity, in the name of the Iranian delegation, to congratulate
you, Mr. President, and you, Mr. Vice-President, on your respective elections to office, and at the
same time pay tribute to you, Judge Guillaume, for the leadership you have provided to the Court
over the past three years. May I also congratulate the new Members of the Court, Judges Owada,
Tomka and Simma.
3. As I explained during the oral proceedings that were held in 1996 on the United States
preliminary objection, this case concerns violations by the United States of the Treaty of Amity that
was entered into in 1955 between Iran and the United States. These violations occurred when, in
October 1987 and April 1988, United States naval forces attacked and destroyed three sets of
Iranian commercial oil installations. As the Court can see on the map which appears on the screen
(and which is at tab 1 in the judges’ folders), these installations were situated on Iran’s continental
shelf in the Persian Gulf. They were owned and operated by the National Iranian Oil Company.
4. The United States sought to have Iran’s Application dismissed on the basis that the Court
lacked jurisdiction to entertain Iran’s claims. However, by its Judgment of 12 December 1996 the
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Court rejected the United States preliminary objection and held that it had jurisdiction to entertain
Iran’s claims on the basis of Article X, paragraph 1, of the Treaty of Amity. Although Iran had
originally relied on other provisions of the Treaty of Amity in addition to Article X, paragraph 1, it
respects the Court’s decision and will continue to comply with the Judgment in these oral
proceedings.
5. Article X, paragraph 1, of the Treaty of Amity (which is at tab 2 in the judges’ folders)
provides that “Between the territories of the two High Contracting Parties there shall be freedom of
commerce and navigation”. In that regard, the Court found in its Judgment on the preliminary
objection that the destruction of the oil installations by the United States was capable of having an
effect upon the export trade in Iranian oil and, consequently, of having an adverse effect upon the
freedom of commerce as guaranteed by Article X, paragraph 1, of the Treaty of Amity1
.
6. Iran will show during these oral proceedings that the United States military actions against
the Iranian oil platforms certainly did have such an effect, and that they were thus violations of the
United States obligation under Article X, paragraph 1. Iran will further show that these violations
caused Iran substantial damage, and that as a result Iran is entitled to receive both declaratory relief
and financial compensation, the quantification of which will be reserved to a subsequent phase of
the proceedings.
7. Mr. President, Members of the Court, before handing the floor over to counsel for Iran,
who will further develop the factual and legal issues that arise in this case, I would like to say a few
words about the context in which the United States attacks on the Iranian oil platforms occurred.
8. At the time of those attacks, in 1987 and 1988, Iran had already been engaged for over
seven years in a long and bloody conflict, the Iran-Iraq war. That war was caused by an
unprovoked aggression of Iraq against Iran when Iraq invaded and occupied Iranian territory. The
fact that Iran was the victim of Iraqi aggression was recognized by the Secretary-General of the
United Nations2
in a report to the Security Council which is contained in the judges’ folders at

1Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 1996 (II), p. 820,
para. 51.
2Memorial of Iran, Exhibit 42 (Further Report of the Secretary-General on the Implementation of Security
Council resolution 598 (1987), 9 December 1991 (United Nations doc. S/23273)).
- 20 -
tab 3. The same fact has even been acknowledged recently ¾ albeit belatedly ¾ by prominent
United States officials, including the current President of the United States3
.
9. At the time of the United States attacks on Iran’s oil platforms, the so-called “Tanker
War” in the waters of the Persian Gulf had been continuing for more than six years. Again, the
spread of the war to the Persian Gulf was also due to Iraq, which in 1981 had begun to attack both
Iranian and neutral shipping.
10. Curiously, the United States written pleadings barely mention the fact that there was a
violent war taking place at the time of the United States destruction of the oil platforms. Iraq is
hardly ever mentioned, and the United States seeks to leave the reader with the impression that, for
some reason known only to itself, Iran was deliberately and gratuitously creating a dangerous
situation for neutral shipping in the Persian Gulf.
11. Mr. President, the reality is of course quite different. Iran had been forced into a war and
had similarly been forced into the extension of the conflict into the Persian Gulf, the circumstances
for which it bore no responsibility. Put simply, and as Professor Momtaz will also show in more
detail, during that war Iran was fighting for its survival against an enemy which had no hesitation
in violating fundamental rules of international law in its prosecution of the war. I wish the
international community had been as emphatic in condemning and stopping repeated attacks with
chemical weapons committed by Iraq against my country as it is now in enquiring into the mere
possible threat of future use of chemical weapons by Iraq. When Iran needed the protection of
international law, there were few voices to speak on its behalf. But Iran believes that international
law protects States which are the subject of an armed attack ¾ irrespective of the misguided views
of a major power. Under international law, Iran was entitled to defend itself against attack, and
was fully justified in trying to ensure that no contraband was shipped through the Persian Gulf to
support the Iraqi war effort. It also had to make strenuous efforts to protect its economy, both by
ensuring the defence of its oil installations and by keeping the Persian Gulf safe for shipping
serving Iranian ports.

3Address to the United Nations General Assembly by President George W. Bush, 12 September 2002 (United
Nations doc. A/57/PV.2).
- 21 -
12. As the Court will be well aware, the oil industry was and remains by far the most
important sector of the Iranian economy, and it was of course particularly vital to Iran during the
Iran-Iraq war. The United States nevertheless attempts to put a sinister interpretation on the fact
that there were a small number of military personnel stationed on the oil platforms that its fleet
destroyed. But what could be more normal, at a time of war, than the fact that the commercial
infrastructure that contributed to the most essential sector of the Iranian economy should be
defended ¾ albeit in modest, almost token ways ¾ against attack by the enemy, Iraq, and its
war planes? Indeed, the very platforms that were destroyed by the United States had already
undergone attacks by Iraq, and it would have been very strange if Iran had not sought to defend
them by the limited means at its disposal.
13. Mr. President, distinguished Members of the Court, it was not Iran’s behaviour that was
abnormal: it was the behaviour of the United States, which claimed at the time, and still claims
before the Court today, that it was a neutral party in relation to the conflict. In the circumstances,
at a time when Iran was fighting for its very survival, the least one would have expected from a
neutral State was that it should act in a neutral manner, with even-handedness towards each of the
participants in the conflict, and that it should not favour one of the participants over the other. As
was noted in the Judgment of 12 December 1996, this Court stated that it “cannot lose sight of the
fact that Article I [of the Treaty of Amity] states in general terms that there shall be firm and
enduring peace and sincere friendship between the Parties”. The Court further stated that:
“The spirit and intent set out in this Article animate and give meaning to the
entire Treaty of [Amity] and must, in case of doubt, incline the Court to the
construction which seems more in consonance with its overall objective of achieving
friendly relations over the entire range of activities covered by the Treaty.”4
14. Mr. President, Members of the Court, how did the United States comply with its general
obligation of neutrality and the objective of achieving friendly relations with Iran as spelt out in the
treaty? Ironic as this may seem in today’s circumstances, the United States actively supported Iraq,
the aggressor State. This occurred despite the United States undertaking in the Algiers
Declarations of 1981 “not to intervene, directly or indirectly, politically or militarily, in Iran’s

4Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 1996 (II), p. 820,
para. 52.
- 22 -
internal affairs”5
, and in contravention of the provisions of Article X, paragraph 1, of the Treaty of
Amity which, as the Court has observed, must be read and interpreted in the light and spirit of
Article I of the same Treaty.
15. You will no doubt have read the press reports on this subject which appeared at the end
of last year, and which confirm earlier accounts to which Iran has already referred in its written
pleadings. Mr. Bundy will be addressing you in greater detail concerning the constant United
States support for Iraq throughout the Iran-Iraq war and the hostile United States actions taken
against Iran. I would just like to highlight here the fact that these recent press reports, which are
stated to be based on a review of “thousands of declassified United States Government documents
and interviews with former policymakers”6
, confirm what Iran has been saying throughout these
proceedings ¾ namely, that the United States consistently provided intelligence and logistical
support for Iraqi aggression against Iran, and that the United States was “concerned that Iraq should
not lose the war”.
16. So, on the one hand, the United States was actively assisting Iraq with its intelligence and
logistical support ¾ which included the supply of “numerous items that had both military and
civilian applications, including poisonous chemicals and deadly biological viruses”7 ¾ and was
giving further indirect assistance by reflagging and escorting Kuwaiti tankers which were shipping
cargoes whose proceeds were being used to finance the Iraqi war effort. Mr. Bundy will give
further details of the very substantial financial assistance provided, both directly and indirectly, by
the United States to Iraq.
17. On the other hand, the United States imposed an embargo upon Iran and, amongst other
things, in the two incidents which are the subject of this case, destroyed commercial oil-producing
facilities that were an essential part of Iran’s economy. Also ¾ although this is not the subject of
the present claim ¾ the United States boasted that it had destroyed half of the Iranian Navy during
the attack on the Salman and Nasr platforms in April 1988. That attack took place, not

5
International Legal Materials, Vol. XX, No. 1, p. 224.
6
See, for example, International Herald Tribune, 31 December 2002-1 January 2003.
7
Ibid.
- 23 -
coincidentally, at the same time as Iraq launched its counter-offensive to retake the Fao peninsula
from Iran.
18. Unlike other States which, although professing neutrality, in fact assisted Iraq’s war
effort during the conflict, the United States has never sought to apologize to Iran for its non-neutral
behaviour in the conflict. While Kuwait has made public apologies8
and a British Foreign Office
Minister has stated that “the United States and Britain have a lot to apologize for over their support
of Iraq”9
, Iran has received no apology from the United States itself.
19. Iran can only explain the United States conduct throughout the Iran-Iraq war, and its
subsequent failure to make any kind of apology, as stemming from an instinctive predisposition of
hostility towards Iran. This had continued unabated since the time of the Islamic Revolution,
despite the official settlement of the tensions between the two countries pursuant to the Algiers
Declarations. The United States had no logical or legal reason to support Iraq against Iran: Iraq
was the aggressor State who had launched an unprovoked invasion of Iranian territory; Iraq was
the party who was using chemical weapons and launching missiles against Iranian civilians; and
Iraq was the party who took the conflict to the Persian Gulf by attacking both Iranian and neutral
shipping. Iran, on the other hand, was the victim; Iran used only conventional weapons in its
defence and respected the laws of warfare; and Iran was the party in whose interest it was to keep
the Persian Gulf open to shipping.
20. As regards the subject-matter of Iran’s claim in this case, the United States cannot deny,
and, in fact, has not attempted to deny, that it was responsible for the destruction of the oil
platforms. Instead, it has put forward a series of arguments in an attempt to justify its actions. The
United States principal argument is that it acted in self-defence. At the time, it alleged specifically
that its attack on the Reshadat complex was in self-defence following a missile attack on the
reflagged Kuwaiti tanker Sea Isle City in a Kuwaiti port; and that its attacks on the Salman and
Nasr complexes were in self-defence following an incident when the United States warship
Samuel B. Roberts hit a mine in the central part of the Persian Gulf. The United States is now less
specific, and appears to be alleging that its actions were taken in self-defence against a number of

8
Iran’s Reply and Defence to Counter-Claim, Exhibit 13 (various press reports from 1990, 1992 and 1994).
9Reuters News, 24 March 2000.
- 24 -
other events that occurred during the Iran-Iraq war ¾ in the same way as its counter-claim is based
on a number of individual incidents but also, apparently, on the generally dangerous situation
prevailing in the Persian Gulf at the time, for which it appears to attribute all responsibility to Iran.
As will be shown in more detail in the course of these oral proceedings, the United States
arguments based on self-defence must fail.
21. Moreover, the United States cannot seriously argue that it acted as it did because its
“essential security interests” were at stake. The United States had not been invaded; the United
States was not fighting for its survival; and there was no threat either to oil supplies to the United
States or even to oil prices which, during the course of the war, had actually fallen by 50 per cent.
To the extent that any threat may be said to have existed, it was caused by Iraq.
22. These facts underline the emptiness of the United States argument that its attacks on
Iran’s commercial oil installations were legitimate because they were necessary for the protection
of its essential security interests. If any State’s essential security interests can be said to have been
in need of protection at the time, they were those of Iran, who was under attack from Iraq and who
was also having to face non-neutral conduct from a number of countries, not least the United
States. For reasons that will be further explained by Professor Crawford, Iran has not sought to
rely on an “essential security interests” argument to justify any of the actions that are attributed to it
by the United States in this case. If, however, it were to rely on this argument, it would be seen
that there was no comparison between Iran’s essential security interests and those alleged by the
United States.
23. I would add that despite this clear imbalance in the respective security interests that were
at stake, the conduct of Iran’s forces was described by a United States commander on duty in the
Persian Gulf as “pointedly non-threatening”10. It is true that Iran was not content to allow shipping
notoriously carrying contraband goods in support of Iraq’s war effort to pass unquestioned through
the Persian Gulf. For this reason Iran conducted legitimate stop-and-search operations, in
conformity with international law. This was confirmed at the time by American and British

10Memorial of Iran, Exhibit 55 (Carlson, Commander D., “The Vincennes Incident”, Proceedings/Naval Review,
September 1987, p. 87).
- 25 -
Government officials11. In contrast, the conduct of the United States has been described as
aggressive and provocative. In July 1988, this is what was said by a United States National
Security Officer whose responsibilities involved Iran: “[American naval units] have been deployed
aggressively and provocatively in the hottest parts of the Persian Gulf”, and “Our aggressive
patrolling strategy tends to start fights, not to end them. We behave at times as if our objective was
to goad Iran into a war with us.”12
24. Mr. President and distinguished Members of the Court, this is the context that Iran
believes must always be borne in mind when the respective arguments of the Parties are heard in
this case.
25. I will now indicate the order and content of Iran’s presentations with regard to its claim.
With the Court’s leave, Professor Crawford will first provide an overview of the case as a whole
from a legal point of view.
26. Later this afternoon, Professor Momtaz will address the legitimacy of various actions that
Iran took in order to protect itself, and indeed neutral shipping, in the context of Iraq’s aggression.
In particular, Professor Momtaz will deal with the war zone that was declared by Iran along its
Persian Gulf coasts and will show that, far from having the illegal or sinister intent attributed to it
by the United States, this war zone was declared so that neutral shipping was warned of the dangers
of travelling through the waters concerned. He will also show that Iran was entitled in the
circumstances to engage in stop-and-search activities in an effort to prevent the shipping of
contraband to fuel the Iraqi war effort.
27. Professor Momtaz will be followed by Mr. Bundy, who will describe in more detail the
extent of the United States support for Iraq and its actions taken against Iran ¾ conduct which
forms the context within which the United States attacks on the platforms must be considered.
28. Tomorrow morning, Professor Pellet will analyse Article X, paragraph 1, of the Treaty of
Amity, which was violated by the United States when it destroyed Iranian oil installations with its
attacks of October 1987 and April 1988. In particular, Professor Pellet will show that these attacks

11Reply and Defence to Counter-Claim by Iran, Vol. II, Report of Prof. Freedman, para. 34, fn. 58; Memorial of
Iran, Exhibit 115 (Hansard, H. C. Debs., Vol. 91, Cols. 278-279).
12G. Sick, “Failure and Danger in the Gulf”, New York Times, 6 July 1988, p. A23.
- 26 -
were in direct breach of the United States obligation to ensure the freedom of commerce protected
by Article X, paragraph 1.
29. Professor Pellet will be followed by Dr. Zeinoddin, who is the Head of the Legal
Department of NIOC ¾ the National Iranian Oil Company ¾ which owned and operated the
platforms. Dr. Zeinoddin will describe how the various platforms were designed and operated, and
will provide details on their status at the time of United States attacks. He will also explain the
commercial damage that Iran suffered as a result of the United States attacks on these facilities,
whose oil production was vital to Iran’s economy.
30. We will then turn to the two attacks carried out by the United States, and the two specific
events which, at the time, were said to have justified them. First, Mr. Sellers will describe the
attack of October 1987 on the Reshadat complex, which was said to be in self-defence against the
missile attack on the Sea Isle City. He will show that the United States has failed to meet its
burden of proving that it was Iran who launched the missile that struck the Sea Isle City.
31. Second, Mr. Bundy will deal with the attacks of April 1988 on the Salman and Nasr
complexes. He will show that, here again, the United States has failed to meet its burden of
proving that the Samuel B. Roberts was targeted by an Iranian mine or of establishing any link
whatsoever between that incident and the Salman and Nasr platforms. Mr. Bundy will further
show that, even if Iran’s responsibility could be proven, which it is not, this would not have
provided any justification for the destruction of the Salman and Nasr platforms and indeed half of
the Iranian Navy.
32. Professor Bothe will then analyse the law of self-defence and the obligations that are
incumbent upon neutral States. This will be done both by reference to the alleged general situation
of armed attack that now appears to be put forward by the United States as justification for the
actions that it claims to have taken in self-defence, and in relation to the specific events to which
the attacks on the platforms were said at the time to be in response.
33. Professor Crawford will then turn to the United States alternative defence, based on
Article XX, paragraph 1 (d), of the Treaty of Amity, the “essential security interests” clause. He
will show that this defence must fail. As a matter of law it is necessary for the United States to
show that the measure concerned was necessary to protect its essential security interests. This is an
- 27 -
objective test, and in applying it the Court has to take into account that what is in issue here are two
major uses of armed force in breach of the United Nations Charter. Having regard to this, and to
the facts of the matter as Iran has presented them, it will be seen that no essential security interest
of the United States was threatened by Iran. Moreover the measures taken were not necessary, or
even useful, to protect any security interest in freedom of navigation or in maintaining the flow of
oil from the Persian Gulf.
34. Professor Pellet will then deal with the United States “clean hands” argument, and will
show that this argument, like the United States other arguments, lacks merit.
35. Finally, Professor Crawford will return to outline the remedies that Iran seeks from this
Court.
36. Mr. President, Iran will not be dealing with the United States counter-claim until after it
has heard the United States first-round presentation. However, I would just say a few words now
regarding the counter-claim.
37. First, it should not be forgotten that, although the Court has held in its Order of
10 March 1998 that the counter-claim is admissible under Article 80, paragraph 1, of the Rules of
Court, the Court has not disposed definitively of all issues of jurisdiction and admissibility. Iran
has raised a series of such issues in its Reply and in its Further Response to the United States
Counter-Claim13, and maintains its objections to jurisdiction and admissibility in these oral
proceedings.
38. In any event, there is no merit to the United States counter-claim, as Iran will show at the
appropriate time. At the present stage, I would simply remind the Court that the United States did
not raise any such claim ¾ even on a diplomatic level ¾ until after the Judgment of
December 1996 had rejected its preliminary objection. Moreover, although the shipping of many
other nations suffered damage during the Iran-Iraq war, no other nation has seen fit to claim
compensation from Iran for such damage. These facts in themselves, Iran submits, are sufficient to
demonstrate the artificiality of the counter-claim.

13Reply and Defence to Counter-Claim by Iran, paras. 9.1 et seq.; Further Response of Iran to the United States
Counter-Claim, paras. 5.23 et seq.
- 28 -
39. Before passing the floor to Professor Crawford, I feel obliged to say a few words about
an allegation that has been made by the United States in its Rejoinder. This allegation is that Iran
has made false representations in its written presentations to the Court, in particular in its responses
to the United States allegations regarding missile sites and mining14. Mr. President, Iran considers
that this is a very serious accusation for which there is no basis and which cannot be allowed to
stand. Mr. Sellers and Mr. Bundy will be dealing with the relevant facts in their respective
presentations to the Court. For my part, I must assure you that Iran has always been and will
continue to be truthful in its presentations to the Court. Iran has the greatest respect for the Court,
as the principal judicial organ of the United Nations.
40. Finally, Mr. President, distinguished Members of the Court, I must stress that Iran
remains committed to the rule of law and to the peaceful settlement of disputes. It is confident that
justice will be done in this case, and that the Court will take care to view the United States actions
in 1987 and 1988 in the light of the rule of law.
41. Mr. President, that concludes my opening statement. I would be grateful if you would
now call upon Professor Crawford, who will continue with the next part of Iran’s presentation.
Thank you.
The PRESIDENT: Thank you, distinguished Agent of Iran. I now give the floor to
Professor Crawford.
Mr. CRAWFORD:
Introduction and overview
Mr. President, Members of the Court.
1. It is my task in these opening remarks to place the present case in its legal context and to
provide an overview of Iran’s presentations on issues of law.
The Court’s 1996 decision rejecting the United States preliminary objection
2. In doing so, I begin with your decision on the preliminary objection, way back in 1996.
The Court we have the honour to address is of course the same Court as in 1996 ¾ you are now so

14Rejoinder of the United States, paras. 1.06, 1.49 et seq. and 1.68 et seq.
- 29 -
permanent and so well established that you do not need to have the word “permanent” in your
name, as your predecessor did. But I cannot resist observing that of the 16 judges who took part in
that decision, only eight remain Members of the Court; and I hope this gives me some licence to
remind you of what was decided on that occasion. For you both gave and took away: Iran royally
accepts of course the negative aspects of your decision, as it concerns Article I and Article IV of
the Treaty, just as it accepts and relies on the positive aspects, in particular those concerning the
scope and application of Article X, paragraph 1.
3. Let me begin with one important point on which the parties agree and which the Court has
clearly confirmed. The Treaty of Amity was in force at all relevant times and it remains in force
today15. The United States successfully relied on the Treaty in the United States Diplomatic and
Consular Staff in Tehran case16. United States individuals and corporations have repeatedly relied
on it for various purposes before international tribunals, including the Iran-United States Claims
Tribunal, as well as before the United States own courts. The Treaty governs the relations between
the parties in accordance with its terms. If either party engages in conduct covered by the Treaty
which is in breach of its provisions, then the responsibility of that party is engaged and the other
party is entitled to invoke the Treaty and to claim compensation for any injury suffered17. So that is
a point on which the parties agree.
4. Then there are a series of propositions which the United States has at various times
controverted or denied, but which you clearly established by your Judgment. Let me mention three
of them.
5. First, the Treaty prohibits conduct of the parties inconsistent with its substantive
provisions; for example it imposes an obligation on them not to interfere with the freedom of
commerce between their respective territories, and it does not matter what character the conduct in
question possessed. In fact this is not just a commercial treaty ¾ it is entitled a Treaty of Amity,
Economic Relations and Consular Rights. But even in relation to its provisions dealing with
economic and commercial questions, such as Article X, paragraph 1, the Treaty sets a general

15I.C.J. Reports 1996 (II), p. 809, para. 15.
16I.C.J. Reports 1980, p. 28, para. 54.
17See ILC Articles on Responsibility of States for Internationally Wrongful Acts, annexed to GA
resolution 56/83, 12 December 2001, Arts. 1, 12, 31, 42.
- 30 -
standard for the conduct of the parties, without any requirement that the breach be commercial in
character. You said this very clearly in 1996, in paragraph 21 of your Judgment, which is set out in
my text, but which I will not read.
“The Treaty of 1955 imposes on each of the Parties various obligations on a
variety of matters. Any action by one of the Parties that is incompatible with those
obligations is unlawful, regardless of the means by which it is brought about. A
violation of the rights of one party under the Treaty by means of the use of force is as
unlawful as would be a violation by administrative decision or by any other means.
Matters relating to the use of force are therefore not per se excluded from the reach of
the Treaty of 1955. The arguments put forward on this point by the United States
must therefore be rejected.”18
6. I will however, take the liberty of reading the International Law Commission’s paraphrase
of that paragraph in its commentary to Article 12 of the ILC Articles on State Responsibility.
The PRESIDENT: May I interrupt you, Professor Crawford, for just a moment. Please
speak a little slower. Thank you.
Mr. CRAWFORD: Sir, I hope you won’t have to remind me, though I’m trying to catch up
after the initial loss of half an hour, but I will speak slower. This finding was re-emphasized, as I
say, by the International Law Commission quoting the Court in its commentary to Article 12. The
commentary reads in part as follows: “[T]he breach by a State of an international obligation
constitutes an internationally wrongful act, whatever the subject matter or content of the obligation
breached, and whatever description may be given to the non-conforming conduct.”19 That is what
you said and that the Commission confirmed.
7. Secondly, you confirmed that the essential security interests clause, Article XX,
paragraph 1 (d), did not affect your jurisdiction, but gave the United States (and for that matter
Iran) “a possible defence on the merits to be used should the occasion arise”20. This was how you
had interpreted the equivalent provision of the 1956 Treaty in the Nicaragua case in 1986, and you
saw “no reason to vary [your] conclusions” as to that provision21. I might add that although in its
written argument the United States had argued that paragraph 1 (d) went to jurisdiction ¾ that it

18I.C.J. Reports 1996 (II), pp. 811-812, para. 21.
19ILC Articles, commentary to Art. 12, para. 10.
20I.C.J. Reports 1996 (II), p. 811, para. 20.
21Ibid.
- 31 -
excluded issues of essential security as a preliminary matter from the jurisdiction of the Court ¾
the United States conceded in oral argument that Article XX “was a merits issue”22. Indeed, as I
read his dissenting opinion, counsel for the United States was criticized by Judge Schwebel for
making that concession23. But the Court was clear on the point ¾ just as the Treaty is clear. The
Court’s jurisdiction extends to interpreting and applying the whole of the Treaty including
Article XX. Iran has to establish a case that there was a violation of a substantive provision of the
Treaty: here it is Article X, paragraph 1, interpreted in the light of Article I. Once it has done so,
the United States may rely on Article XX, paragraph 1 (d), as a “a possible defence on the merits”.
8. The third point, you upheld your jurisdiction under Article X, paragraph 1, of the Treaty.
You held that this provision is not confined to maritime commerce but extends to commerce in
general. As you said, “The Treaty of 1955 is . . . a Treaty relating to trade and commerce in
general, and not one restricted purely to maritime commerce.”24 And the clear guarantee given in
paragraph 1 has to be interpreted, and was interpreted, in that light. Moreover, Article X,
paragraph 1, could not be limited merely to acts of purchase and sale; it was concerned with a
wider range of activities including “the procurement of goods with a view to using them for
commerce”25. Thus relying among other sources on the Dictionnaire de la terminologie de droit
international produced under the authority of President Basdevant, you adopted a broad
interpretation of commerce: “all transactions of import and export, relationships of exchange,
purchase, sale, transport, and financial operations between nations”. No one with any
understanding of guarantees of freedom of trade and commerce in national as well as international
law could be surprised by such an interpretation; indeed no one familiar with the interpretation of
the United States Constitution could be surprised by it. It is an interpretation of commerce, and of
freedom of commerce, that would instinctively appeal to a United States lawyer, even if it does not
forensically appeal to the United States in this case. It can reasonably be thought to reflect the
shared understanding of the parties to the Treaty of Amity. Freedom of commerce is not just

22As quoted by the Court: ibid. For the concession see CR 96/13, pp. 32-33 (Mr. Crook); ibid., p. 55
(Mr. Chorowsky).
23I.C.J. Reports 1996 (II), pp. 878-881.
24I.C.J. Reports 1996 (II), p. 817, para. 41.
25I.C.J. Reports 1996 (II), p. 818, para. 45.
- 32 -
freedom at the common border, freedom at the customs house; it is freedom in the flow of
commerce. Otherwise one party to a treaty of this kind could devastate the economy of the other,
eliminate all possibility of commerce, yet argue that because there was some notional freedom at
the frontier, Article X, paragraph 1, has been complied with. That would be wholly inconsistent
with the idea of freedom and with the operation of a legal guarantee. Yet ¾ as applied to the
platforms and the oil infrastructure they represented ¾ that is the interpretation on which the
United States effectively relies. The flow of the single most important commercial commodity
between the two States, oil, can be cut off at its source by deliberate destructive action ¾ and still
there is freedom of commerce. The Court will be familiar with the statement of the Roman author
Tacitus ¾ “They make a wilderness and call it peace.”26 Adapted to the present case, this might
read: they destroy the source of wealth, the instruments and substance of commerce, and they call
it freedom. Indeed, without quoting Tacitus, you made exactly the same point:
“Article X, paragraph 1, [of the Treaty of 1955] does not strictly speaking
protect ‘commerce’ but ‘freedom of commerce’. Any act which would impede that
‘freedom’ is thereby prohibited. Unless such freedom is to be rendered illusory, the
possibility must be entertained that it could actually be impeded as a result of acts
entailing the destruction of goods destined to be exported, or capable of affecting their
transport and their storage with a view to export.”27
9. Moreover the guarantee of freedom of commerce “between the territories of the two High
Contracting Parties” was attracted in this case. As you said, it was not necessary “to enter into the
question whether [Article X, paragraph 1] is restricted to commerce ‘between’ the Parties. It is not
contested between them that oil exports from Iran to the United States were ¾ to some degree ¾
ongoing at least until after the destruction of the first set of oil platforms.”28 You went on to
reserve to the merits the question “if and to what extent the destruction of the Iranian oil platforms
had an effect upon the export trade in Iranian oil”, but you noted nonetheless “that their destruction
was capable of having such an effect and, consequently, of having an adverse effect upon the
freedom of commerce as guaranteed by Article X, paragraph 1. It follows that its lawfulness can
be evaluated in relation to that paragraph”.

26Agricola, Chap. 30.
27I.C.J. Reports 1996 (II), p. 819, para. 50.
28I.C.J. Reports 1996 (II), pp. 817-818, para. 44.
- 33 -
10. This is, with respect, both clear and ¾ as far as it goes ¾ complete. You upheld your
jurisdiction on the basis of an unequivocal interpretation of Article X, paragraph 1. You left open
certain questions, primarily questions of fact ¾ as well as the issue of a possible defence arising
from Article XX, paragraph 1 (d).
11. On the other hand, you also held that Articles I and IV of the Treaty did not provide a
basis for the Iranian claim. In the case of Article I, you rejected the argument that it incorporated
by reference into the Treaty the whole of general international law. It was preambular in effect,
even though it was contained in a separate Article. But you still said that Article I was “not without
legal significance”29. In your words:
“by incorporating into the body of the Treaty the form of words used in Article I, the
two States intended to stress that peace and friendship constituted the precondition for
a harmonious development of their commercial, financial and consular relations and
that such a development would in turn reinforce that peace and that friendship. It
follows that Article I must be regarded as fixing an objective, in the light of which the
other Treaty provisions are to be interpreted and applied.”30
And subsequently you took Article I into account, in particular in the interpretation of Article X,
paragraph 1. I refer in particular to paragraph 52 of your Judgment31
.
12. You also rejected Article IV as a basis for Iran’s claims. It was only concerned with “the
way in which the natural persons and legal entities [of the other State] are, in the exercise of their
private and professional activities, to be treated by the State concerned”32
.
13. Now it is sometimes suggested that the Court at the stage of the merits may revisit or
revise its findings on preliminary objections. But as to the law, that cannot be right. Your decision
of 12 December 1996 is a judgment, not an order; it is an adjudication, not an indication. It
establishes the various propositions of law which you laid down with the force of res judicata
under Article 59 of the Statute. The position as to the facts may perhaps be different, in that
determinations on questions of fact might be expressed to be provisional and subject to further
examination. But you were careful to make it clear what issues of fact were left open or required
further discussion. By contrast, you definitively interpreted the Treaty of Amity so as to establish

29I.C.J. Reports 1996 (II), p. 815, para. 31.
30I.C.J. Reports 1996 (II), p. 814, para. 28.
31I.C.J. Reports 1996 (II), p. 820, para. 52.
32I.C.J. Reports 1996 (II), p. 816, para. 36.
- 34 -
authoritatively that Iran’s claim did not ¾ as to Articles I and IV ¾ fall within the Treaty, and ¾
as to Article X ¾ that it did fall within the Treaty, assuming the facts to be as Iran stated them.
The phrase “fall within” that I have just used is taken from paragraph 16 of the Judgment.
14. It may be noted that in 1996 you went further into issues of interpretation than you had
done in some earlier cases, or that some of the judges in separate or dissenting opinions thought
was necessary. Judge Shahabuddeen, in his separate opinion, pointed out that paragraph 16 of the
Judgment means “that the Court is required to make a definitive interpretation of the Treaty at this
jurisdictional phase”33. The result of that was a definitive ruling on the scope of the Treaty as he
recognized. If I may use the language of Judge Higgins in her separate opinion, the Court engaged
in a “detailed analysis” of the Treaty, not an “impressionistic” analysis34. The resulting decision is
“definitive”35
.
15. In short there would be no point in the Court’s exercise of detailed interpretation at the
level of the preliminary objections if the issues apparently then decided could be revisited at the
merits. Indeed, if you were to revisit the scope of Article X, there might be a question of your
revisiting the scope of Articles I and IV. But you will be pleased to know that I won’t address you
further on those articles. Your 1996 Judgment provides both Parties with a clear and secure
basis ¾ a secure platform, if I can use the word ¾ on which to consider the facts and claims of the
Parties now.
The Court’s 1998 decision on the United States Counter-Claim
Mr. President, Members of the Court:
16. I should briefly mention your Order of 10 March 1998 on the Counter-Claim. As the
Agent has just mentioned, Iran proposes to reserve its comments on the Counter-Claim until we
have heard what the United States has to say. I would only note that in your Order you expressly
reaffirmed your decision on the interpretation of Article X, paragraph 1, quoting inter alia the

33I.C.J. Reports 1996 (II), p. 822.
34I.C.J. Reports 1996 (II), p. 855, paras. 29, 30.
35Ibid., para. 31.
- 35 -
passage about freedom of commerce from your Judgment on the preliminary objection which I
have just quoted36
.
Mr. President, Members of the Court, I was going to go on now to outline Iran’s case on the
merits. In view of the various happy events that have occurred since 3 o’clock this might however
be a time to take a break.
The PRESIDENT: The Court adjourns for ten minutes and then will resume. Thank you.
The Court adjourned from 4.20 p.m. to 4.30 p.m.
The PRESIDENT: Please be seated. Professor Crawford, please continue.
Mr. CRAWFORD: Thank you, Sir. Before the break I outlined the Court’s Judgment on
preliminary objections and the principal matters that the Court then decided. I turn now to Iran’s
case on the merits.
Iran’s case on the merits
17. As the Court has said Article X, paragraph 1, of the Treaty of Amity was in force at all
relevant times and governed the conduct of the parties in their mutual relations. The notion of
freedom of commerce, as the Court said, is a broad one, extending, as a minimum, to “acts
entailing the destruction of goods destined to be exported, or capable of affecting their transport
and their storage with a view to export”. An unjustified attack on commercial facilities, in use or
intended for use for the purposes of production, transportation and storage of oil for export to the
United States, would thus be a breach of Article X, paragraph 1, unless it was held to fall within
one of the exceptions set out in Article XX, paragraph 1.
18. And that is Iran’s case. In its essentials, it is an extremely simple case, despite all the
complications the United States has sought to introduce. It can be encapsulated in the following
three simple propositions:
(1) First, the United States, an avowed neutral in the war between Iraq and Iran, on two separate
occasions deliberately attacked and destroyed these commercial facilities, thereby seriously

36I.C.J. Reports 1998, p. 203, para. 35.
- 36 -
affecting and impairing freedom of commerce in oil between Iran and the United States,
contrary to Article X, paragraph 1, of the Treaty.
(2) Second, in relation to this action, there is no circumstance precluding wrongfulness; in
particular, the conduct was not a lawful exercise of self-defence ¾ which was the justification
given by the United States at the time.
(3) Third, this conduct was not “necessary to protect [the] essential security interests of the
United States”, within the meaning of Article XX, paragraph 1 (d), of the Treaty. That
sub-paragraph did not therefore preclude the operation of Article X, paragraph 1, in this case.
19. It is really as simple as that. But it may be helpful if I offer some preliminary
observations on each of these three points, which will be further elaborated by counsel for Iran over
the next two days.
20. On the first point, the deliberate attack on and destruction of commercial facilities
engaged in commence, including, in particular, commerce in oil destined for the United States. It
can hardly be doubted that such an attack ¾ unless otherwise justified in law or excluded from the
terms of the Treaty by express provision ¾ would violate a guarantee of freedom of commerce
between the territories of the two States parties. There is no doubt about the attribution of the
conduct to the United States ¾ that is not in dispute. Moreover, as my colleagues will show, this
was an attack on commercial facilities as such. It was not collateral damage; it was not the result
of mistaken targeting. The platforms did not get in the way of an attack on some legitimate target.
They were not hit because of a mistaken address. The United States intended to damage and
destroy these facilities and ¾ except as to one platform, where the detonator did not explode ¾ it
achieved that intention. Of course, inadvertent conduct can constitute a breach of a treaty: all that
is required for a breach, in the terms of Article 12 of the ILC Articles, is that it be “not in
conformity with what is required of the State by the obligation”; and a guarantee of freedom of
commerce might well be infringed by inadvertent conduct. But no such question arises here; this
conduct was deliberate and knowing. The United States had first-hand knowledge of the Iranian oil
facilities in the Persian Gulf: United States contractors had assisted in the construction of precisely
these facilities, and we can assume that the details of their construction and operation were known
to the United States. The specific targets were selected not because they were military
- 37 -
installations ¾ that they were part of Iran’s “war machine”, to use the journalists’ favourite phrase.
They were lightly armed for self-defence and the reason for that was that they had been previously
attacked by Iraq. They were attacked by Iraq precisely as commercial facilities and they were
attacked by the United States precisely as commercial facilities. Moreover, as we will show, they
were attacked in a way which was calculated to maximize the commercial harm and impact upon
Iran.
21. Now, prima facie, this is a breach of Article X, paragraph 1; this is not in conformity
with what is required of the United States by the obligation arising from that paragraph. There had
been a long-standing trade in oil between Iran and the United States, and it included oil from these
fields, extracted and transported using the facilities of the National Iranian Oil Company (NIOC),
the State company which owned and operated the platforms. The facts of the trading situation will
be outlined by Dr. Zeinoddin when he speaks tomorrow. He has been the Head of the Legal
Division of NIOC since 1981. The platforms were not used for military purposes, they were
civilian facilities. Iran had had a substantial navy, and there were dedicated radar stations and units
along its coastline. Iran did not need cumbersome oil platforms to play a role in its military efforts
in the war with Iraq; it needed to keep them operating precisely as the civilian facilities they were
destined to be. For example, the equipment found on the Reshadat platform consisted of a small,
non-functioning radar unit and a small anti-aircraft battery, put there in an attempt to deter or ward
off further Iraqi air attacks and to give the civilian personnel operating the platforms at least a
minimum sense that they were being defended.
22. The underlying point may be illustrated by an example. For a neighbouring neutral State
to blow up a bridge, connecting it to another State which is defending itself in a war started by a
third State, would evidently be inconsistent with freedom of commerce across the bridge. Let us
assume that the bridge had traditionally been built to facilitate trade and commerce between the
two States; it had been an important, expensive, well-known aspect of the infrastructure
underpinning long-standing commercial relations between them. Political relations between the
two States might have ebbed and flowed; there might have been political changes in one or both
States which meant that those relations were difficult, perhaps extremely difficult. No doubt there
could have been faults on both sides in a deteriorating political relationship. But still their
- 38 -
commercial relations continued, and the bilateral Treaty of Amity, Economic Relations and
Consular Rights remained in force notwithstanding political difficulties. Either party could have
terminated that Treaty on six months’ notice; neither party did; both continuously relied on it. In
such a case, the destruction of the bridge would be plainly inconsistent with freedom of commerce
between the two States. It would then be for the State which destroyed the bridge to show that it
did so because its essential security interests made this necessary ¾ a difficult thing to show, you
might think, and not something that could be done simply on the assertion of the destroying State
as to its perception of security interests.
23. Now it is for the United States to tell the Court whether it thinks the deliberate
destruction of bridges is consistent with freedom of commerce. But at least it appears not to defend
such conduct outright. Leaving the issues of self-defence and essential security interests to one
side, it appears to accept that a deliberate attack on a commercial facility, which has historically
been used to produce and transport commercial goods traded between the two States, is or would
be a violation of freedom of commerce. But it argues that the situation of the platforms is different.
First, it points out that at the time of the 1987 attack the Reshadat platforms were under repair as
the result of an earlier Iraqi attack. Dr. Zeinoddin will deal with these facts in more detail, but the
position was that the platforms were nearly repaired and were about to resume production; they
had in the past been used to support the export trade in oil to the United States and they were about
to resume. The commerce whose freedom is guaranteed by Article X, paragraph 1, is not a
temporary phenomenon: it is a pattern of trade over the years. The United States appears to
believe that if our hypothetical bridge had been damaged by a third party so that it was temporarily
out of service and under repair, it would be consistent with the freedom of commerce for the United
States to destroy the bridge utterly. It is a curious concept of freedom.
24. Then the United States asserts that, shortly after the destruction of the Reshadat
platforms, it imposed an oil embargo with Iran which was in force at the time of the attack in 1988
on the Salman and Nasr platforms. The first point to make here is that, obviously enough, the
United States own action subsequent to the 1987 attack ¾ in imposing the embargo ¾ cannot
justify the attack, if it was a breach of the Treaty of Amity. A valid claim of Iran resulting from the
1987 attack does not disappear because the United States subsequently engages in some other
- 39 -
conduct hostile to Iran. Whether that has effects on quantum, or on the remedies available, is a
matter to which I will return on Wednesday, but it cannot have any effect on the reality of the prior
breach of the Treaty in relation to the 1987 attack.
25. Now as to the 1988 attack on the Salman and Nasr platforms, it is true that there was no
direct trade in oil between Iran and the United States in 1988, at the time of the attack, because of
the embargo. But that objection ignores the term “freedom” in Article X, paragraph 1: this
paragraph guarantees not just actual commerce on a given day but freedom of commerce on a
continuing basis ¾ a point Professor Pellet will emphasize tomorrow. Moreover it is one thing to
impose an embargo which can be readily lifted and was in fact partially lifted in 1991; it is another
to destroy a commercial facility which was constructed for the purpose of commerce in oil, in
particular with the United States, which had been historically used for that purpose and which was
destined to be used again. Thus the United States impaired freedom of commerce between the two
States, just as surely as the destruction of a bridge built between their respective territories would
have done; and it would not have mattered if there had been a temporary embargo in crossing the
bridge.
26. Now of course there are no direct physical bridges between the United States and Iran.
They are not adjoining neighbours, as Iraq adjoins Iran. But nor were they adjoining neighbours in
1955 when the Treaty of Amity was signed. The freedom of commerce between the territories of
the High Contracting Parties which Article X, paragraph 1, guarantees is freedom of commercial
relations between these two States, situated as they are. And the reality of the freedom of
commerce that is guaranteed by paragraph 1 has to be assessed in that context, and having regard to
the realities of the particular trade in question. In fact, the way oil flows in international markets is
both direct and indirect; it can be trans-shipped, refined, mixed, traded, exchanged and on-sold.
Iran has produced an expert report on this by Professor Odell, which is Volume III of Iran’s Reply.
But to test the United States argument, let us assume for a moment that it was Iran which in 1987
imposed an embargo on oil export direct to the United States. Of course Iran did not do so, any
more than it ever attempted to close the Straits of Hormuz: neither of these things was remotely in
its interest to do. But let us make that assumption, and let us further assume that as part of the
embargo Iran tried to insist that no Iranian oil be trans-shipped even indirectly to the United States.
- 40 -
On this scenario, Iran would have insisted that the Netherlands, for example, to whose Rotterdam
refineries many consignments of Iranian crude were shipped, must ensure that no drop of oil ever
reached the United States ¾ it would be a secondary boycott. Could Iran have justified its
embargo on commerce with the United States on the basis that the oil in question transited or
stopped over in a third State? I do not think so. The United States would have been justified in
treating the boycott as a breach of Article X, paragraph 1. Having regard to the characteristics of
the oil industry, and the fact of long-standing, historic trade in oil between Iran and the United
States, the Iranian measures would have been inconsistent with freedom of commerce between the
territories of the High Contracting Parties.
27. The point about the embargo is important in a number of ways. The Court will have
observed that Iran has not raised the question of the embargo ¾ the United States embargo, the real
embargo, not the hypothetical one ¾ as such, that is to say, as a substantive breach of the Treaty of
Amity. This is not because the United States embargo raised no issue under Article X,
paragraph 1; it certainly did, and Iran will say that the embargo as an unlawful act cannot be relied
on by the United States in an attempt to mitigate its obligation to pay compensation for losses
arising from the destruction of the platforms. But that is not an issue in the present phase of the
case: for the moment we are concerned with whether there has been a breach, not with the question
of quantum. And in any event, in formulating its substantive claims against the United States, Iran
focused on its real grievance in terms of the economic values protected by Article X, paragraph 1,
that is to say, on the destruction of the platforms. Above all, what strikes one about these United
States actions is their destructiveness. An oil embargo might have reduced or if it had been
imposed on third State trans-shipment even halted trade in oil for the time being. Whether or not
that would have breached Article X, paragraph 1, it would at least have left Iran the freedom to sell
its oil on the open market to third States, something it could easily have done in fact. The damages
for such a breach would thus have been much, much limited. But to destroy the facilities
themselves ¾ now there we have the negation of freedom!
28. For these reasons it is understandable that the principal United States focus in this merits
phase of the present case is by way of defence. The Court having already denied the United States
argument that military action cannot violate a commercial treaty, the United States focuses mainly
- 41 -
on its defences to the claim rather than the question of breach. It seeks to justify the United States
conduct in destroying the platforms. And that brings me to Iran’s second basic proposition. This is
that, in relation to this action, there is no circumstance precluding wrongfulness; the conduct was
not a valid or lawful exercise of self-defence.
29. Now for the purposes of these proceedings Iran accepts that action otherwise lawfully
taken in self-defence could constitute a circumstance precluding wrongfulness in relation to
Article X, paragraph 1, of the Treaty. In other words, it accepts the proposition contained in
Article 21 of the ILC Articles on State Responsibility which reads: “The wrongfulness of an act of
the State is precluded if the act constitutes a lawful measure of self-defence taken in conformity
with the Charter of the United Nations”. There is no express stipulation to that effect in the
1955 Treaty, but there does not need to be. If the United States was acting in self-defence in
attacking and destroying or attempting to destroy the platforms, then Article X, paragraph 1, of the
Treaty is not one of the “obligations of total restraint” of which you spoke in the Nuclear Weapons
Advisory Opinion37. Freedom of commerce may suffer when action is taken in self-defence; it is
not an “intransgressible” value.
30. But the United States was not acting in self-defence in its attacks on the platforms. It had
not itself been attacked by Iran, and it had certainly not been attacked by the platforms, which were
commercial facilities. It was nominally in the position of a neutral, not a belligerent, yet it acted as
destructively as a belligerent, and vis-à-vis the platforms in essentially the same manner as the
aggressor, Iraq. Professor Bothe will explore these issues further on Wednesday.
31. This brings me to Iran’s third proposition, which you will recall is as follows. The
United States conduct was not “necessary to protect [the] essential security interests of the United
States”, within the meaning of paragraph 1 (d) of Article XX, of the Treaty. I will discuss this in
detail on Wednesday and will not anticipate what will be said then. Let me just make two
preliminary points. First, the Court has jurisdiction over Article XX as over the rest of the Treaty
of Amity. Article XX, paragraph 1 (d), is not an automatic reservation, nor is it an automatic
source of a defence to any action, no matter how extreme, how destructive or how unjustified.

37I.C.J. Reports 1996 (I), p. 242, para. 30; and see the ILC’s commentary to Art. 21, paras. 2-6.
- 42 -
When it operates, national security is a categorical and pressing matter, one which international
tribunals must recognize. But national security can cover a multitude of sins, and it must be kept
within appropriate limits ¾ it is not simply a trump card to be pulled out of the sleeve for cursory
inspection by the tribunal. So, and this is my second point, if the United States is really to establish
that national security compelled it to act as it did, it must articulate that defence, the issue of
national security, and show the necessity of its action. That was the approach you took to a
provision in exactly the same terms in the Nicaragua case, and we call on you to apply the same
approach here.
Conclusion
32. Mr. President, Members of the Court. It is obvious that in assessing the claims and
counter-claims of the parties concerning breach of one provision of a bilateral treaty, you will have
to take into consideration the wider context of the war of self-defence, and virtually of national
survival, in which Iran was engaged at the time. In order to assist the Court, we commissioned an
independent report by a respected expert, Professor Laurence Freedman of Kings College London,
which you will find in Volume II of Iran’s Reply. As I have said, it is an independent report and
Iran does not necessarily agree with every word of it: Professor Freedman was asked to write this
report by himself, precisely to assure independence; the report was not dictated to him. But it does
give you some idea of the overall context, and in that sense we commend it to you. By contrast the
United States has still to respond to most of the points made in the Freedman Report.
33. In fact the principal United States response, confronted with such material, is to assert its
irrelevance. But it is not irrelevant, because it is necessary to take into account both the factual and
legal context. At a time when Iran was, patently, exercising its right of self-defence against an
armed attack, against an outright aggression, it sought to maintain, if not friendly, then at least
correct relations with the rest of the world, including the United States. The maintenance in force
of the Treaty of Amity was an aspect of this. For this Court it is not the case that amidst the clash
of arms the laws are silent; you made that clear in Nicaragua, and again in the Nuclear Weapons
Advisory Opinion; we ask you to do it again here. The United States accepted to keep the Treaty
of Amity in force while adopting what (it now admits) was a patently shortsighted tilt towards Iraq.
- 43 -
In the course of doing so, it committed acts going way beyond any real or imagined necessity or
interest, punitive acts which infringed the freedom of commerce between the two States and did so
obviously and by any measure, thereby violating a treaty in force.
34. Mr. President, Members of the Court, no doubt international law has to be applied
realistically, and I suppose a court might hesitate before a major power which is invoking essential
security interests to justify its behaviour. But for this Court the fundamental value is the rule of
international law. States can hardly be expected to comply with international law ¾ as they are
constantly enjoined by the powerful to do ¾ unless the powerful can themselves be called to
account for their own actions by the same standards before a tribunal which has jurisdiction. You
have already held that you have jurisdiction. Iran respectfully calls on the Court to apply the law to
the merits of this case, with neither fear of the consequences nor favour for the more favoured
State ¾ with neither anger nor partiality ¾ sine ira et studio ¾ if I may quote Tacitus once
more38. And doing so, you should conclude ¾ we respectfully submit ¾ that these attacks on the
platforms were a clear breach of a treaty in force, Article X, paragraph 1, of the Treaty of Amity,
and you should draw the necessary legal consequences that flow from this finding.
Thank you, Mr. President, Members of the Court, and I would now ask you, Mr. President,
to call upon Professor Djamchid Momtaz to address the Court.
The PRESIDENT: Thank you, Professor Crawford. I now give the floor to
Professor Momtaz.
M. MOMTAZ :
La légitimité des mesures adoptées par l’Iran dans le golfe Persique
face à l’agression de l’Iraq
Au nom de Dieu, clément et miséricordieux.
Monsieur le président, Madame et Messieurs les juges,
1. Je suis profondément sensible à l’honneur qui m’est fait et au privilège qui m’est accordé
de pouvoir m’exprimer aujourd’hui devant la plus haute juridiction internationale. Je suis en outre
très heureux de pouvoir, par l’exposé que je suis appelé à faire, assister la Cour dans sa tâche. Cet

38Annals, Book 1, Chap. 1.
- 44 -
exposé portera sur la légitimité des mesures adoptées de 1980 à 1988 par la République Islamique
d’Iran dans le golfe Persique, et ceci dans le but de faire face à l’agression préméditée de l’Iraq.
2. Je tiens d’emblée à préciser que ma plaidoirie ne doit pas être considérée comme un
réquisitoire contre l’Iraq et qu’il ne s’agit nullement ici d’établir la responsabilité de ce dernier
dans le déclenchement du conflit armé, réalité que nul ne conteste désormais. C’est en ayant
présent à l’esprit ce contexte qu’il conviendrait, Monsieur le président, d’évaluer les arguments
présentés par les Etats-Unis pour justifier la destruction des ensembles de plates-formes pétrolières
de Reshadat le 19 octobre 1987 ainsi que Salman et Nasr le 18 avril 1988.
3. Monsieur le président, il est désormais bien établi que le 17 septembre 1980 l’Iraq
dénonçait unilatéralement le traité relatif à la frontière et au bon voisinage signé avec l’Iran le
13 juin 1975, et qu’il lançait, quelques jours plus tard, le 22 septembre 1980 contre le territoire
iranien ses divisions blindées. En moins d’une semaine l’Iraq parvenait à occuper
quelque 30 000 kilomètres carrés du territoire iranien. Il aura fallu attendre la veille de l’invasion
du Koweït par l’Iraq, en 1990 pour que l’intégrité territoriale de l’Iran soit de nouveau rétablie.
4. Le rapport du Secrétaire général des Nations Unies, établi sur la base du paragraphe 6 de
la résolution 598 du 20 juillet 1987 du Conseil de sécurité et consacré à la détermination de la
responsabilité du conflit reconnaît d’ailleurs expressément la responsabilité de l’Iraq dans le
déclenchement du conflit qui se prolongea jusqu’au 20 août 1988. Dans ce rapport, rendu public
le 9 décembre 1991, le Secrétaire général précisait en effet :
«Même si l’Iran avait quelque peu empiété sur le territoire iraquien avant
l’éclatement du conflit, cet empiétement ne justifiait pas l’agression de l’Iraq contre
l’Iran à laquelle a fait suite l’occupation par l’Iraq du territoire iranien pendant toute la
durée du conflit, et ce en violation de l’interdiction de l’usage de la force qui est
considérée comme l’une des règles du jus cogens.»
Pour le Secrétaire général, l’attaque lancée contre l’Iran par l’Iraq constituait :
«Le fait saillant, parmi les violations du droit international, que l’on ne saurait
justifier en invoquant la Charte des Nations Unies, des règles et principes reconnus du
droit international ou les principes quelconques de la morale internationale et qui
entraîne la responsabilité du conflit.»39
La version anglaise, version originale du rapport du Secrétaire général figure sous l’onglet 3 du
dossier des juges. Il s’agit plus précisément des paragraphes 6 et 7 de ce rapport.

39 S/23273.
- 45 -
5. Pour faire face à cette agression caractérisée, la République islamique d’Iran n’avait
d’autre alternative que de réagir en ayant recours, en vertu de l’article 51 de la Charte des
Nations Unies, à son «droit naturel de légitime défense individuelle». C’est dans l’exercice de ce
droit et en vue d’assurer la défense de ses côtes et empêcher l’Iraq d’accroître sa combativité et de
contrecarrer ainsi l’initiative de ce dernier d’étendre la guerre aux eaux du golfe Persique que l’Iran
a été amené à prendre des mesures conformes au droit de la guerre sur mer. En d’autres termes,
Monsieur le président, il n’est pas douteux que dans cette guerre qui lui a été imposée, l’Iran était
en droit de compter que le jus in bello serait respecté et ceci tant par l’Etat agresseur que par les
Etats neutres. C’est en parfaite conformité avec le droit de la guerre que l’Iran a été contraint de
bloquer les côtes de l’Iraq, d’instituer une zone de guerre et d’intercepter les navires de commerce
neutres, points que j’évoquerai tour à tour au cours de ma plaidoirie.
I. La zone de guerre de l’Iran et la zone d’exclusion totale de l’Iraq
6. Monsieur le président, le jour même de l’attaque de grande envergure lancée par l’Iraq, le
commandant en chef de la marine iranienne adressait une notice aux navigateurs amenés à se
rendre dans le golfe Persique40. Par cette notice, la République islamique d’Iran instituait le blocus
des côtes iraquiennes et déclarait zone de guerre les eaux adjacentes à ses côtes.
7. A propos du blocus, je ne ferai que rappeler très brièvement qu’il s’agit d’une méthode de
combat propre à la guerre sur mer, par laquelle le belligérant qui l’impose s’efforce d’interdire
toute communication entre le littoral ennemi et la haute mer. La décision de la République
islamique d’Iran de bloquer les côtes de l’Iraq était tout à fait conforme à la déclaration de Paris du
30 mars 1856, dont les dispositions réglementent les rapports entre belligérants et neutres dans la
guerre sur mer, cette déclaration de Paris est considérée comme étant l’expression d’une coutume
désormais bien établie.
8. Quant à la zone de guerre mise en place par l’Iran, plus communément appelée zone
d’opérations, elle était destinée à mettre en garde la navigation neutre contre les dangers pouvant
résulter des combats en mer ainsi qu’à assurer la défense du territoire iranien en réglementant la
navigation neutre. Dans cette zone de guerre, qui s’étendait jusqu’à une ligne reliant les points les

40 Notice to Mariners n° 17/59; cf. A. De Guttry et N. Ronzitti, The Iran-Iraq War (1980-1988) and the Law of
Naval Warfare, Cambridge, 1993, p. 37.
- 46 -
plus éloignés de la mer territoriale des îles iraniennes du golfe Persique, les navires de commerce
neutres, quelle que soit leur destination, étaient invités à emprunter des couloirs de navigation qui
leur étaient assignés et à communiquer régulièrement leur position aux autorités iraniennes41. La
carte qui va être projetée sur l’écran montre l’étendue de cette zone de guerre instituée par la
République islamique d’Iran en 1980.
9. La réglementation appliquée par l’Iran dans cette zone de guerre, tout en sauvegardant la
sécurité des côtes iraniennes et en évitant toute intrusion ennemie, était destinée principalement à
sauvegarder la libre circulation des navires de commerce neutres à destination et en provenance
des ports iraniens. En effet, dans la mesure où, contrairement à l’Iraq, la seule et unique voie
d’exportation du pétrole iranien, alors principale source de financement de son effort de guerre,
passait par les voies de navigation du golfe Persique, le maintien de la liberté de navigation
devenait évidemment vital pour la République islamique d’Iran. C’est ainsi qu’à plusieurs reprises
l’Iran s’engagea officiellement à n’épargner aucun effort pour sauvegarder cette liberté de
navigation et à garantir le libre transit à travers le détroit d’Hormuz servant à la navigation
internationale42
.
10. En revanche, l’Iraq exprima très clairement à maintes reprises sa volonté d’empêcher par
tous les moyens l’Iran d’exporter son pétrole par le golfe Persique. C’est d’ailleurs à cette fin que,
dès le 7 octobre 1980, l’Iraq déclarait zone interdite à toute navigation les eaux du golfe Persique
situées au nord du 29e
parallèle nord. La carte qui est projetée sur l’écran sera complétée,
Monsieur le président, en précisant la position de cette zone d’exclusion totale de l’Iraq43. Etaient
inclus dans cette zone d’exclusion non seulement l’île de Kharg, principal terminal pétrolier de
l’Iran, mais aussi les ports iraniens d’Imam Khomeini et Bouchir.
11. Monsieur le président, le 16 août 1982, l’Iraq étendait sa zone d’exclusion pour y
englober les eaux distantes de 60 kilomètres de l’île de Kharg. La carte projetée sera finalement
complétée par l’ajout des limites de la zone d’exclusion totale de l’Iraq après son extension

41 Notice to Mariners n° 23/59 du 21 janvier 1981; cf. De Guttry et Ronzitti, op. cit., p. 38.
42 Lettre du ministre des affaires étrangères de l’Iran au Secrétaire général des Nations Unies S/14
226 ¾ 22/1/81; cf., également, Memorial of Iran, Vol. II, Exhibit 22, p. 316.
43 US Defence Mapping and Hydrographic Center (DMAHIC) Special Warning n° 50; cf. De Guttry et Ronzitti,
op. cit., p. 72.
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en 1982. La carte sur laquelle sont tracées les limites de la zone de guerre iranienne, la zone
d’exclusion de l’Iraq ainsi que son extension en 1982, figure sous l’onglet 4 du dossier des juges44
.
L’effectivité de la zone d’exclusion de l’Iraq fut assurée non pas par des bâtiments de surface mais
par des avions de combat qui attaquaient à vue tout navire de commerce. C’est ainsi d’ailleurs que
l’Iraq reconnut à plusieurs reprises avoir utilisé ses super étendards armés d’exocets pour frapper et
couler des pétroliers arborant des pavillons neutres navigant dans la zone d’exclusion de l’Iraq45
.
12. Monsieur le président, ces raids n’ont pas épargné les bâtiments battant pavillon d’Etats
qui s’étaient pourtant alignés sur l’Iraq dans le conflit armé l’opposant à la République islamique
d’Iran. On en veut pour preuve l’attaque menée le 25 avril 1984 contre le pétrolier battant pavillon
de l’Arabie saoudite le Safina Al Arab, révélée par le président Saddam Hussein en personne46. Les
frappes iraquiennes n’ont d’ailleurs pas été limitées aux pétroliers se trouvant dans la zone
d’exclusion mise en place par l’Iraq. Parmi les nombreuses autres attaques imputables à l’Iraq, je
me contenterai de citer celles menées contre deux pétroliers se trouvant au sud-est du Koweït où ils
venaient de charger. Ces attaques, à l’extérieur de la zone d’exclusion, ont été d’ailleurs annoncées
par les autorités iraquiennes elles-mêmes, je veux parler de ces deux pétroliers qui se trouvaient
aux approches des côtes du Koweït le 27 mars 198447. Peu après, plus précisément le 9 mai 1984,
le ministre iraquien du pétrole avouait, lors de la réunion de l’Organisation des pays arabes
exportateurs de pétrole (l’OPAEP) que l’aviation iraquienne, agissant parfois d’une altitude très
élevée, était incapable de reconnaître préalablement le navire de commerce qu’elle prenait pour
cible48, preuve s’il en est de la responsabilité de l’Iraq dans les attaques indiscriminées qu’il mena
contre la navigation neutre.
13. Telle a été l’attitude des Etats-Unis face à ces attaques. Les Etats-Unis non seulement
s’abstiendront de condamner ces frappes mais adopteront tout au long du conflit une attitude
bienveillante et je dirais même complaisante à l’égard de l’Iraq. Cette politique est en flagrante

44 DMAHIC Special Warning n° 62; cf. De Guttry et Ronzitti, op. cit., p. 72.
45 AFP ¾ 6 2 et 5 mai 1984; cf., également, Reply and Defence to Counter-Claim by Iran, Vol. II, Exhibit 15.
46 AFP – 27 avril 1984; cf., également Rapport du professeur Freedman, Reply and Defence to Counter-Claim by
Iran, Vol. II.
47 AFP – 2 mai 1984; cf. également, Reply and Defence to Counter-Claim by Iran, Vol. II, Exhibit 15.
48 AFP – 9 mai 1984.
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contradiction avec l’engagement maintes fois réitéré des Etats-Unis de sauvegarder le libre flux du
pétrole provenant du golfe Persique dont l’économie du monde occidental en dépend étroitement49
.
En réalité, Monsieur le président, cette politique suivie par les Etats-Unis était parfaitement
conforme à la détermination des Etats-Unis d’Amérique d’empêcher la victoire de l’Iran dans la
guerre qui l’opposait à l’Iraq, et cette volonté devait logiquement conduire les Etats-Unis à un
soutien sans faille de leur part à l’effort de guerre iraquien. Mon collègue, M. Bundy, sera amené
tout à l’heure à approfondir devant vous cette question et à mettre en exergue les moyens mis en
œuvre par les Etats-Unis pour parvenir à leurs fins. L’un des subterfuges utilisés, que je serai par
contre appelé à examiner dans la seconde partie de ma plaidoirie, a été les obstacles régulièrement
mis à l’exercice du droit de l’Iran, en tant que belligérant, d’intercepter et de visiter les navires
neutres en vue de s’assurer qu’ils respectaient le droit de la neutralité. Question dont je vais être
amené maintenant à traiter.
II. L’interception et la visite des navires neutres par l’Iran
14. Monsieur le président, d’après les principes universellement reconnus, un bateau de
guerre belligérant a le droit d’arrêter, dans les eaux soumises à la libre navigation, un navire de
commerce neutre et de procéder à l’inspection de sa cargaison afin de s’assurer qu’il observe les
règles de neutralité et qu’il ne transporte pas de contrebande de guerre. La déclaration de Paris, à
laquelle je me suis déjà référé, énonce ce principe par un dictum bien connu des internationalistes, à
savoir : «le pavillon neutre ne couvre pas la contrebande de guerre». Il est désormais établi que la
détermination des articles de contrebande de guerre relève de la compétence exclusive des
belligérants50. Tel est d’ailleurs le fondement juridique de la loi relative au droit de prise adoptée
par le Parlement iranien le 31 janvier 1988. Conformément à cette loi qui codifie en fait la pratique
suivie par la marine iranienne tout au long du conflit armé en mer, est qualifié de contrebande de
guerre et, de ce fait, susceptible d’être saisi, tout matériel ou bien de nature à accroître la
combativité de l’ennemi. Destinées à annihiler l’effort de guerre de l’Iraq, les opérations
d’interception et de visite menées par la République islamique de l’Iran à l’encontre des navires

49 Secretary of Defense, A Report to the Congress on Security Arrangements in the Persian Gulf, 15 June 1987;
cf. Memorial of Iran, Vol. II, Exhibit 32.
50 Ch. Rousseau, Droit des conflits armés, Pédone, 1983, p. 471.
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neutres étaient donc tout à fait conformes au droit des conflits armés et visaient tout simplement à
faire face à la guerre d’agression qui lui était imposée.
15. D’ailleurs, Monsieur le président, la licéité des opérations d’interception et de visite n’a
été contestée ni par le Conseil de sécurité ni par les Etats dont les navires avaient été interceptés par
la marine de guerre iranienne. Suite à l’interception et à la visite le 13 janvier 1986 du
Président Taylor, battant pavillon américain, par la marine de guerre de l’Iran, les Etats-Unis
reconnaissaient expressément le droit des belligérants de mener de telles opérations en haute mer51
.
Des doutes, Monsieur le président, ont été néanmoins exprimés sur la légalité de ces opérations
lorsqu’elles visaient des navires de commerce se dirigeant vers le territoire koweïtien ou en
provenance de ce territoire. Le gonflement sans précédent du tonnage des marchandises
débarquées dans les ports du Koweït avait rendu l’Iran quelque peu suspicieux quant à la
destination finale des marchandises débarquées dans les ports du Koweït. Afin de s’assurer que ces
biens n’étaient pas destinés à l’ennemi, l’Iran conformément au droit de la guerre sur mer, a
intercepté et visité ces navires de commerce neutres qui se rendaient dans des installations
portuaires du Koweït. Ces opérations ont été menées en application de la fameuse théorie de
«voyage continu» prise en compte et appliquée par la jurisprudence des prises, thèse d’ailleurs
consacrée par la Haute Cour de justice britannique le 16 septembre 1915 dans la fameuse affaire
Kim52. Cette jurisprudence autorise la saisine de contrebande de guerre se trouvant sur un navire
neutre dans son voyage entre deux ports neutres si sa destination finale est le territoire ennemi.
D’ailleurs, Monsieur le président, ces opérations d’interception menées par la marine de guerre
iranienne ont permis entre autres à la marine iranienne d’établir que la destination de l’armement
transporté par le navire danois Elsa Cat, intercepté en août 1981, était en réalité hostile puisque
cette cargaison était destinée à l’Iraq53. Il en va de même de la cargaison du navire El Muharaq
battant pavillon koweïtien, arrêté en juin 1985, dont l’étiquetage indiquait clairement qu’elle était
destinée à l’ennemi54
.

51 Statement by Principal Deputy Press Secretary of the President 13 January 1986; cf. Reply and Defence to
Counter-Claim by Iran, vol. II, rapport du professeur Freedman, par. 34, note 58.
52 Ch. Rousseau, Droit des conflits armés, Pédone 1983, p. 486-487.
53 Cf. Ch. Rousseau, «Chronique des faits internationaux», RGDIP, vol. 86, 1982, pp. 812 et suiv.
54 Cf. Observations and Submissions of Iran on the United States. Preliminary Objection, vol. I, Annex, par. 28 et
vol. II, Exhibit 20.
- 50 -
16. Il a été aussi établi que, pour contourner le blocus de ses côtes, l’Iraq utilisait les
installations portuaires du Koweït pour écouler une partie de sa production de pétrole ainsi que
pour exporter la production des gisements de Kafji, situés dans l’ancienne zone neutre entre
l’Arabie saoudite et le Koweït, gisement qui avait été mis en 1983 à la disposition de l’Iraq afin de
soutenir son effort de guerre contre l’Iran55
.
17. Il ne s’agit évidemment pas ici de faire le procès du Koweït et ce dans la mesure où tous
ces faits que je viens de relater ont été ultérieurement reconnus par les autorités koweïtiennes qui, à
plusieurs reprises, ont présenté leurs excuses pour l’attitude hostile adoptée par ce pays à l’égard de
l’Iran. Je relaterai à ce propos la déclaration faite à l’occasion d’une interview du cheikh Sabah,
ministre des affaires étrangères du Koweït, et remontant à septembre 1994, au cours de laquelle il
s’est exprimé en ces termes : «I would like to use this opportunity for us to ask Iran publicly . . . for
forgiveness for having supported Iraq in the war against Iran from 1980-1988. We committed a
great error then»56. Il ne s’agit pas non plus comme je l’ai déjà dit de faire le procès de l’Iraq. En
revanche, ce que nous cherchons à établir devant vous est la responsabilité des Etats-Unis qui, en
tant qu’Etat prétendument neutre, n’en ont pas moins soutenu, et ceci en toute connaissance de
cause, le Koweït et l’Arabie saoudite dans leur entreprise en faveur de l’Iraq.
18. En vue d’entraver les opérations d’interception et de visite menées par la marine de
guerre de l’Iran, la marine des Etats-Unis accordait une protection militaire, sous forme de convois,
aux navires de commerce se rendant ou en provenance du Koweït. Il est vrai que, conformément
aux articles 61 et 62 de la déclaration de Londres du 26 février 1909 sur le droit de la guerre sur
mer, les navires de guerre neutres sont autorisés à convoyer les navires de commerce battant leur
pavillon. Dans ce cas, les navires de commerce seront exempts de visite, mais le commandant du
convoi reste tenu de donner par écrit, à la demande du commandant d’un bâtiment de guerre
belligérant, toute information que la visite serait susceptible de faire obtenir. Or, l’escorte assurée
par la marine de guerre des Etats-Unis ne répondait pas à ces conditions. Procédant par voie
d’intimidation et de menace, les commandants des navires de guerre des Etats-Unis rendaient en
pratique impossible tout contact en vue d’obtenir des garanties quant à l’absence de toute

55 War Relief Crude oil Agreement F. Mehr ODIL, Vol. 20 n° 1989, p. 105-106, Memorial of Iran, Exhibit 27.
56 Reply and Defence to Counter-Claim by Iran, Exhibit 13.
- 51 -
contrebande de guerre à bord des navires qu’ils convoyaient. J’en veux pour preuve les
avertissements lancés par les navires de guerre des Etats-Unis en vue de dissuader la marine
iranienne d’intercepter et de visiter le President Mc Kinley battant pavillon américain et cela le
14 mai 198657. De même, les Etats-Unis, en étendant leur protection à tous les navires de
commerce, ont violé la déclaration de Londres, plus précisément son article 62, qui exige des
navires de guerre qu’ils escortent uniquement les navires de commerce arborant leur pavillon, ceci
à l’exclusion de navires battant tout autre pavillon.
19. C’est sans doute pour se conformer à cette règle que les Etats-Unis décidaient, le
30 juin 1987, d’autoriser les pétroliers koweïtiens, et ce en l’absence de tout lien substantiel avec
ces derniers, d’arborer leur pavillon. Des voix se sont d’ailleurs élevées au sein du Congrès
américain pour condamner ce «repavillonnement», considéré comme étant l’expression de
l’alignement des Etats-Unis sur l’Iraq. Pour le sénateur Nunn, président de la commission des
affaires étrangères du Sénat, la raison invoquée pour justifier cette politique méconnaissait le fait
que l’Iran avait été victime d’une agression, aussi bien sur terre que dans la guerre des tankers58
.
20. En définitive, il est indubitable que tous ces gestes de bienveillance à l’égard de l’Iraq, et
des Etats qui le soutenaient, constituaient a contrario autant d’actes de malveillance à l’égard de
l’Iran, et, par conséquent, un manquement au devoir des Etats-Unis, qui s’étaient déclarés neutres
au début du conflit. En effet, l’article 9 de la convention de La Haye du 18 octobre 1907
concernant les droits et devoirs des puissances neutres en cas de guerre maritime impose aux
neutres une obligation d’impartialité les contraignant à traiter les belligérants de manière identique.
La marine de guerre des Etats-Unis a, en fait, participé activement à la guerre par des actes hostiles
dirigés contre des objectifs civils iraniens, dont les plates-formes pétrolières attaquées en
octobre 1987 et avril 1988, et ceci en violation de l’article X, paragraphe 1, du traité d’amitié, de
commerce et des droits consulaires du 15 août 1955 liant l’Iran et les Etats-Unis. Ces attaques
étaient destinées à porter un coup à la production pétrolière de l’Iran, attaques que les Etats-Unis
ont tenté de camoufler en invoquant le droit individuel de légitime défense.

57 New York Times, 15 mai 1986, Memorial of Iran, Exhibit 30.
58 Memorial of Iran, Exhibit 32.
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Parvenu au terme de mon exposé, je vous serais reconnaissant, Monsieur le président, de
bien vouloir accorder la parole à M. Bundy.
Je vous remercie, Madame et Messieurs les juges, de votre attention.
The PRESIDENT: Thank you, Professor Momtaz. I now give the floor to Mr. Bundy.
Mr. BUNDY: Thank you, Mr. President
Mr. President, Members of the Court, it is, for me, a great honour to appear before you today
on behalf of the Islamic Republic of Iran in this important case.
The background to the attacks on the platforms: United States support for Iraq in its war
efforts and the United States predisposition to treat Iran with hostility
A. Introduction
1. For the third time in the past two decades, the eyes of the world are focused on the
northern Persian Gulf where the threat of hostilities once again casts an ominous shadow over
current events. The significance of this fact I trust will not be lost on the Court, and the fact that
the present case arises out of a previous conflict in the same region. While it may be difficult in
such circumstances to find a silver lining in the storm clouds of war, it is fitting that this Court, as
the principal judicial organ of the United Nations, is called upon to decide this case in accordance
with the rule of law.
2. In its oral argument during the jurisdictional phase of the proceedings (CR 96/12, p. 23),
and again in its Counter-Memorial (para. 1.01), the United States stressed that “[t]he setting for this
case is the Iran-Iraq War which raged from 1980-1988”. This is a statement with which Iran fully
agrees. Indeed, the attacks by United States naval forces on Iran’s offshore oil platforms, which
form the subject-matter of the present dispute, cannot be divorced from the factual context within
which those attacks took place. The events of October 1987 and April 1988 did not occur in a
vacuum. They were linked to a whole pattern of hostile United States behaviour towards Iran that
had its roots in policies that the United States Government, at its highest levels, adopted in support
of Iraqi aggression against Iran.
- 53 -
3. Despite admitting that the setting for the case is the Iran-Iraq war, the United States has
gone on to argue, I would suggest in a disingenuous fashion, that: “All of Iran’s past allegations
regarding all forms of alleged US misconduct, other than the US actions against the oil platforms,
are accordingly no longer at issue, and the United States has not addressed them in this
Counter-Memorial.” (Counter-Memorial of the United States, para. I.13.) To this the United
States has added, in a procedurally untimely fashion, a jurisdictional objection in its Rejoinder.
There it is asserted that Iran’s references to past United States conduct “raise issues that are outside
this Court’s jurisdiction and have no relevance to this case” (Rejoinder of the United States,
para. 1.09).
4. Not only does the United States misstate the issue in jurisdictional terms, its arguments
regarding the relevance of its own conduct leading up to the attacks on the oil platforms are
demonstrably misplaced. The Court is not asked in these proceedings to decide whether the United
States support for Iraq violated international law. Iran’s claims rest solely on the proposition that
the United States breached Article X, paragraph 1, of the 1955 Treaty in destroying the three sets of
oil platforms in question.
5. The United States, in turn, has invoked self-defence as justification for those attacks. And
as the Court observed in the Nicaragua case:
“[T]he normal purpose of an invocation of self-defence is to justify conduct
which would otherwise be wrongful. If advanced as a justification in itself, not
coupled with a denial of the conduct alleged, it may well imply both an admission of
that conduct, and of the wrongfulness of that conduct in the absence of the
justification of self-defence.” (Military and Paramilitary, Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, p. 45, para. 74.)
6. The question, therefore, is whether the United States has sustained its burden of proof that
its invocation of self-defence, or even its plea of essential security interests, is legally justified. To
decide that issue, the Court cannot avoid addressing the motives ¾ the real reasons ¾ behind the
United States actions. Was the United States genuinely acting in self-defence when it attacked
Iran’s platforms? Or, did its interests lie elsewhere? Were its actions part of a broader policy
which was designed to place military and economic pressure on Iran ¾ a policy which the then
United States Assistant Secretary of Defence, Lawrence Korb, described in the following way?
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“[W]hen we [the United States] went in, we wanted to ensure that Iran didn’t win that war from
Iraq. That was our real objective, and so we were doing a lot of things to ensure that we could
teach the Iranians a lesson.” (Memorial of Iran, Exhibit 51.)
7. Mr. President, destroying Iran’s oil platforms, which were so essential to Iran’s economy
and commerce, was one of those things designed to assist Iraq and to teach Iran a lesson. This was
not an exercise in self-defence, but rather one based on short-term and, ultimately, misguided
expediency. Moreover, it was conduct which was in breach of Article X, paragraph 1, of the
Treaty of Amity.
8. In considering these issues, it is important to bear in mind, as Iran’s Agent has said, what
the Court had to say about Article I of the Treaty of Amity in its 1996 Judgment on jurisdiction.
As the Court will recall, Article I provided that: “There shall be firm and enduring peace and
sincere friendship” between the two Contracting parties.
9. While the Court did not consider that Article I provided a separate basis of jurisdiction in
the case, it did not thereby rule that Article I was deprived of all relevance. As the Court stated:
“by incorporating into the body of the Treaty the form of words used in Article I, the
two States intended to stress that peace and friendship constituted the precondition for
a harmonious development of their commercial, financial and consular relations and
that such a development would in turn reinforce that peace and that friendship. It
follows that Article I must be regarded as fixing an objective, in the light of which the
other Treaty provisions are to be interpreted and applied.” (I.C.J. Reports 1996 (II),
p. 814, para. 28.)
10. It therefore follows that any appreciation of the true position, including the application of
Article X, paragraph 1, of the Treaty to the attacks on the platforms, necessarily entails an
examination of the United States conduct leading up to those attacks themselves and a
consideration of the United States obligations under Article I of the Treaty in the light of which
Article X, paragraph 1, is to be interpreted and applied. And it is this conduct which I will
presently review.
*
* *
- 55 -
11. The United States maintains that it was strictly neutral in the Iran-Iraq conflict. It argues
that United States policy prohibited the export of arms to both Iran and Iraq, that the United States
wished to bring about a cessation of hostilities without victor or vanquished and that its aims were
directed at preserving freedom of navigation in the Persian Gulf (CR 96/12, p. 25 (Neubauer)).
12. These assertions are contradicted by the contemporary evidence, including statements
issued by senior United States Government officials at the time. As the record shows, and as I shall
review, the United States actively supported Iraq in its war efforts against Iran and was predisposed
to treat Iran throughout the conflict with hostility. That predisposition carried over to the attacks
on the oil platforms in October 1987 and April 1988 and even to events afterwards such as the
downing in July 1988 of an Iranian civilian airbus with the loss of 290 lives.
13. To give the Court a flavour of the United States attitude prior to its attacks on the
platforms, let me quote from a sample of views that reflected official United States policy at the
time. First let’s start with James Baker, the former Secretary of State:
“The policy of the United States Government at the time was to assist Iraq in
their war against Iran in order to create, in effect, a counterweight to Iran . . . So we
supplied Iraq with a lot of intelligence support and probably quite a bit of material
support as well.” (James Baker, former Secretary of State (quoted in The Making of
Saddam, BBC Radio 4, 27 January 2003, 20h00-20h30 GMT).)
Then we have Ambassador Richard Murphy who was at the time the Assistant Secretary of State
for Near Eastern and South Asian Affairs. He testified in front of the United States Senate as
follows:
“Because of our interest in seeing the Iranian revolution contained within Iran,
the United States has an important stake in Iraq’s continuing ability to sustain its
defenses.” (Ambassador Richard Murphy, Assistant Secretary of State for Near
Eastern and South Asian Affairs, in testimony before the US Senate Foreign Relations
Committee on 29 May 1987 (Memorial of Iran, Exhibit 49).)
We then have Lawrence Korb, whom I referred to a few moments ago, the former Assistant
Secretary of Defence. He stated:
“We now know, and I think even before this incident, that when the United
States went into the Gulf it was not simply just to escort Kuwaiti tankers. We wanted
to ensure that Iran did not win that war. In other words, we became de facto allies of
Iraq.” (Lawrence Korb, former Assistant Secretary of Defense, 2 July 1992
(Memorial of Iran, Exhibit 51).)
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¾ William Colby, the former Director of the Central Intelligence Agency, wrote: “It
was pretty obvious that the United States was tilting towards Iraq.” (2 July 1992,
Memorial of Iran, Exhibit 51.)
¾ Howard Teicher, a Staff Member to the National Security Council of the United
States, wrote in testimony before a United States federal court: “In June, 1982,
President Reagan decided that the United States could not afford to allow Iraq to
lose the war to Iran. President Reagan decided that the United States would do
whatever was necessary and legal to prevent Iraq from losing the war with Iran.”
(Reply of Iran, Exhibit 10.)
¾ George Shultz, another former American Secretary of State: “Our support for Iraq
increased in rough proportion to Iran’s military successes: plain and simple the
United States was engaged in a limited form of balance of power policy. The
United States could not stand idle and watch the Khomeini revolution sweep
forward.” (Reply of Iran, cited in the Freedman Report, p. 46.)
¾ And finally, Henry Kissinger: “The Reagan and Bush administrations supported
Iraq against Iran . . . By extending assistance after Iraq had become the strongest
power in the Gulf, they contributed to its later aggressiveness, which culminated
in the annexation of Kuwait.” (Memorial of Iran, Exhibit 45.)
14. Recall, if you would, Mr. President and Members of the Court, that these statements
related to a context in which Iraq, in contravention of basic principles of international law ¾
indeed, of jus cogens ¾ was the aggressor, in which Iraq was using chemical weapons against Iran
and launching indiscriminate missile attacks against Iranian cities, and in which Iraq had initiated
and prosecuted the so-called “tanker war”. Yet, the United States nonetheless allied itself with
Iraq.
15. Before moving on to the specifics of conduct which demonstrate the United States
unremitting hostility towards Iran, two further points need to be emphasized in order to place this
evidence in its proper legal context. The first is that the kind of statements to which I have just
referred and which were put on the screen have been recognized by the Court as constituting
evidence which is prima facie of a “superior credibility”, to use the Court’s own characterization.
As the Court stated in the merits phase in the Nicaragua case:
“The Court takes the view that statements of this kind, emanating from
high-ranking official political figures, sometimes indeed of the highest rank, are of
particular probative value when they acknowledge facts or conduct unfavourable to
the State represented by the person who made them. They may then be construed as a
form of admission.” (I.C.J. Reports 1986, p. 41, para. 64.)
16. Secondly, the United States has not denied any of the evidence which so clearly shows
that its actions during the Iran-Iraq war were designed to assist Iraq and to prejudice, intimidate and
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punish Iran. Iran has addressed this evidence in detail in all of its written pleadings, including in
the jurisdictional phase and on the merits. But the United States has remained silent. It proceeds as
if Iraq did not exist or at least as if its relationship with Iraq was not a factor which influenced its
conduct towards Iran.
17. Based on that fundamentally flawed premise, the United States simply discards Iran’s
discussion of the factual context within which the attacks on the platforms took place as
“diversionary tactics” (Rejoinder of the United States, para. 1.10). But they were no such thing.
The evidence that Iran has referred to has been extensively documented and is a matter of public
record, and it shows unequivocally that, prior to, during and following the attacks on the platforms,
the United States ¾ as incredible as it may seem today ¾ supported Iraq militarily, logistically,
financially and diplomatically. United States policy was driven by an intense antipathy towards
Iran and a predisposition to teach Iran a lesson despite the fact that Iran was the victim of Iraqi
aggression. That was the context in which the attacks on the platforms took place. As such, it is
directly relevant to the issue of whether the United States invocation of self-defence can be
sustained or whether the United States conduct in destroying the platforms was genuinely
necessary to protect its essential security interests.
*
* *
B. Specific examples of US conduct hostile to Iran
18. On 22 September 1980, Iraq invaded Iran thus triggering the war. As the Court has
heard, in his report to the Security Council on the implementation of Security Council
resolution 598, the Secretary-General of the United Nations characterized that event ¾ Iraq’s
invasion ¾ as one which could not be justified under the United Nations Charter, any recognized
rules and principles of international law or any principles of international morality, and which thus
entailed responsibility for the conflict. Iraq was the aggressor, and Iran was forced to take
defensive measures and to become engaged in a conflict which it neither sought nor was
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responsible for. In these circumstances, if anyone was entitled to exercise its inherent right of
self-defence recognized in Article 51 of the Charter, it was Iran. That elementary, yet fundamental,
fact is ignored by the United States in its pleadings.
*
* *
1. The removal, in 1982, by the United States of Iraq from its list of States supporting
terrorism and the freeing of export credits for Iraq
19. If we turn to the specifics of United States conduct in the region, in March 1982 during a
crucial point in the Iran-Iraq war when Iran was just beginning to repel the Iraqi invasion and
beginning to expel Iraq from Iranian territory, the State Department removed Iraq from its list of
countries supporting terrorism. That had enormously favourable implications for Iraq which as a
result became eligible for a wide range of trade and export credits with the United States ¾ a vital
development for the Iraqi régime which was strapped for cash in view of its military campaign
against Iran. Needless to say, no similar financial facilities were offered by the United States to
Iran.
20. There was also no justification for this move ¾ removing Iraq from the State
Department’s terrorism list ¾ in terms of Iraq’s record with respect to terrorism. As the Defense
Department’s then director for counter-terrorism programmes remarked: “No one had any doubts
about his [Saddam Hussein’s] continued involvement with terrorism. The real reason was to help
them succeed in the war against Iran.” (Reply of Iran, Exhibit 7.)
21. As I said, as a result of that action, trade between the United States and Iraq, including
trade in items which had a clear “dual use” capability, increased from approximately $570 million
in 1983 to over $3.6 billion in 1989, the year after the second attack on the platforms (Reply of
Iran, Exhibit 7).
22. In 1982 alone, a $300 million loan was guaranteed by the United States to Iraq
(Memorial of Iran, Exhibit 46; Reply of Iran, Exhibit 8). That had the inevitable consequence or
effect of allowing Iraq to free up other financial resources for military purposes. The United States
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also began to supply Iraq with sensitive “dual use” materials. For example, a large consignment of
helicopters, which had clear military potential, were sold to Iraq. Shipments of trucks, computer
equipment and chemical products followed. As the United States knew full well, all of this
material clearly could be, and was, used by Iraq for military purposes against Iran (Reply of Iran,
Exhibit 8). In 1984, as Professor Freedman explains in his report, Vice-President Bush intervened
with the United States Export-Import Bank (EXIM) to provide $484 million in credits to Iraq ¾
one of the largest financial commitments that bank has ever made (Freedman Report, Reply of Iran,
Vol. II, pp. 19-20). According to a 1992 United States Congressional hearing on Iraq, as early as
October 1983, the State Department had lent its support to this policy. A contemporary State
Department cable stated:
“In considering ways to build international confidence in Iraq’s economic and
financial future, we should give serious thought to offering Eximbank credits. New
U.S. credits . . . will demonstrate U.S. confidence in the Iraqi economy. [And] this in
turn could encourage other countries to provide similar assistance. Such concrete
demonstrations of support could ease pressure on Iraq.” (Memorial of Iran,
Exhibit 50).
*
* *
2. President Reagan’s issuance of a national security decision directive to support Iraq in its
war efforts
23. Initially in its war campaign Iraq had the upper hand by virtue of its invasion of
September 1980. But by the spring of 1982, the strategic situation had begun to change.
24. Howard Teicher was, at that time, a staff member of the United States National Security
Council responsible for the Middle East and for Political-Military Affairs. In sworn testimony
before a United States federal court, Mr. Teicher described the situation in the following way ¾
and the Court can find his complete testimony under tab 5 of your folders:
“In the Spring of 1982, Iraq teetered on the brink of losing its war with Iran. In
May and June, 1982, the Iranians discovered a gap in the Iraqi defenses along the
Iran-Iraq border between Baghdad to the north and Basra to the south. Iran positioned
a massive invasion force directly across from the gap in the Iraqi defenses. An Iranian
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breakthrough at this spot would have cut off Baghdad from Basra and would have
resulted in Iraq’s defeat.” (Reply of Iran, Exhibit 10.)
25. As Mr. Teicher testified in federal court, United States intelligence had detected this gap
and the massing of Iranian forces opposite it. The consequences of that discovery, in Mr. Teicher’s
words, were the following: “President Reagan was forced to choose between (a) maintaining strict
neutrality and allowing Iran to defeat Iraq, or (b) intervening and providing assistance to Iraq.”
(Ibid.)
26. President Reagan opted for the latter course, deciding that “the United States would do
whatever was necessary and legal to prevent Iraq from losing the war with Iran” (Reply of Iran,
Exhibit 10). Now that decision was formalized by the issuance of a National Security Decision
Directive (“NSDD”) in June 1982. The Directive itself remains classified by the United States,
although Mr. Teicher has stated that he has first-hand knowledge of it because he was one of its
co-authors. And the Directive has also been referred to in a recent Washington Post article that was
reprinted at the end of last year in the International Herald Tribune (which you can find at tab 6 of
your folders).
27. In his court testimony, Mr. Teicher explained United States policy in the following way:
“CIA Director Casey personally spearheaded the effort to ensure that Iraq had
sufficient military weapons, ammunition and vehicles to avoid losing the Iran-Iraq
war. Pursuant to the recent NSDD, the United States actively supported the Iraqi war
effort by supplying the Iraqis with billions of dollars of credits, by providing U.S.
military intelligence and advice to the Iraqis, and by closely monitoring third country
arms sales to Iraq to make sure that Iraq had the military weaponry required.” (Reply
of Iran, Exhibit 10.)
28. 1982; just two years after Iraq’s invasion of Iran, any notion of United States neutrality
in the conflict had become a complete fiction. Quite apart from the United States failure to
denounce Iraq for starting the war, the highest echelons of the United States administration had
directed that the Government should do whatever it can to prevent Iraq from losing that war.
Moreover, that policy was in contravention to United Nations Security Council resolutions which
had repeatedly called upon all States “to exercise the utmost restraint and to refrain from any act
which may lead to a further escalation and widening of the conflict” (Memorial of Iran,
Exhibit 24).
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Mr. President, it is 6 o’clock. I have probably another 20 to 25 minutes, but I will be
perfectly happy to do that tomorrow morning. I am at the Court’s disposition.
The PRESIDENT: You may continue, please.
Mr. BUNDY: Thank you, Mr. President.
3. Despite Iraq’s use of chemical weapons against Iran, the United States increased its
support
29. As early as November 1983, Secretary of State Shultz was informed by a senior State
Department official that intelligence reports showed that Iraqi troops were resorting on an “almost
daily” basis to the use of chemical weapons against Iran (International Herald Tribune,
31 December 2002-1 January 2003, judges’ folders, tab 5). And despite those reports, in December
1983 the United States administration sent to Iraq a special envoy, Donald Rumsfeld, currently the
United States Secretary of Defence and one of the leading proponents today of taking military
action against the very same Iraqi régime he visited in 1983. Amongst other things, in 1983,
Mr. Rumsfeld informed Saddam Hussein that the United States was prepared to re-establish
diplomatic relations with Iraq that had been broken since the 1967 Middle East war (ibid.).
30. Iraqi use of chemical weapons against Iran gave rise to repeated Iranian complaints. In
March 1984, a report was prepared by four specialists who visited Iran, and that report was
submitted to the Secretary-General of the United Nations and to the Security Council: and those
specialists unanimously concluded that chemical weapons had been used against Iran (Memorial of
Iran, Exhibit 11).
31. As admitted by counsel for the United States in oral argument during the jurisdictional
phase, Iraq also “began the so-called ‘Tanker War’ when it commenced attacks against tankers
carrying Iranian crude through the Gulf” (CR 96/12, p. 23 (Neubauer)). Expert reports, in fact,
noted that American foreign policy specialists actually had helped Iraq devise the strategy of
attacking ships trading with Iran: they put the citations to that evidence, you will find, in the
compte rendu (Further Response of Iran, para. 3.34; and see Exhibit 3 to the Reply of Iran and the
Freedman Report).
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32. One would have thought, Mr. President, that these two developments ¾ the use by Iraq
of chemical weapons and its instigation of the tanker war ¾ would have elicited the strongest
condemnation from the United States, particularly if, as the United States alleges, it was truly
neutral in the conflict. After all, we cannot help but be struck by the fact that hardly a day goes by
now without Washington reminding the world that Iraq has used chemical weapons against, and
invaded, its neighbours in the past ¾ Iran amongst others. In this respect, it was scarcely a source
of satisfaction to Iran to hear President Bush, in his speech to the General Assembly on
12 September last year, remind the international community that Iraq had attacked Iran in 1980 and
had gassed Iranians. Where was the voice of the United States administration when those events
took place?
33. Instead of condemning Iraq, the United States first tried to have the Security Council
impose an arms embargo on Iran (Memorial of Iran, para. 1.86). And after that effort failed, on
26 November 1984, just after President Reagan had been re-elected for a second term, the United
States restored full diplomatic relations with Iraq. The Iraqi Foreign Minister at the time,
Tarik Aziz, who is currently the Deputy Prime Minister, was invited to the White House to meet
with President Reagan and Secretary Shultz to mark that occasion. That development could only
be viewed in the context of the ongoing Iran-Iraq war as an outright endorsement for Iraqi policy
and conduct. Iran, on the other hand, was blamed for the conflict and made the target of
“Operation Staunch”, a United States initiative designed to deny the supply of weapons to Iran.
34. The Secretary-General of the United Nations despatched further missions to Iran to
investigate the continuing reports that Iraq was using chemical weapons in April 1985,
February 1986, April 1987, March 1988 and July 1988. And on each occasion, Iraq was found to
have resorted to such weapons (Memorial of Iran, Exhibit 12). Nonetheless, United States support
for Iraq continued unabated. As the former Secretary-General of the United Nations,
Mr. Pérez de Cuellar, has recalled, the United States “was unremittingly hostile to Iran, and
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therefore it was not inclined to support any Security Council action that might be favourable to
Tehran” (Reply of Iran, Exhibit 6).
*
* *
4. Provision by the United States of intelligence to Iraq
35. In the meantime, the United States Government had authorized an intelligence sharing
programme with Iraq pursuant to which Iraq received sensitive satellite reconnaissance
photographs to assist in its military strategy. According to European intelligence sources, Iraq was
furnished, amongst other things, with warnings of attacks by Iranian planes which were monitored
by American AWACS or these aeroplanes that survey from radar up in the air operating out of
Saudi Arabia in the Persian Gulf (Reply of Iran, Exhibit 4, p. 160). According to one analyst:
“These [AWACS reports] were supplemented by reports every 12 hours on the
Iranian military activity on the ground . . . which were passed on to Baghdad via
Riyadh. This information played a vital role in aiding the effectiveness of the
operations mounted by Baghdad to defeat the massive Iranian offensive of March
1985.” (Ibid.)
36. Those reports were subsequently confirmed by the former head of Iraqi military
intelligence, a man named General al-Samarra’i, who escaped from Baghdad in 1994 after the
Kuwait conflict (Reply of Iran, Exhibit 9). General al-Samarra’i indicated that he had been the
chief military contact between the CIA in the United States Embassy in Baghdad and the Iraqi
Army. In that capacity, he stated that he met with the CIA once or twice a week to review United
States satellite photos.
37. In addition to providing intelligence to Iraq on Iranian positions, United States
Government officials also played an instrumental role in arranging the sale of sensitive and
controversial weapons to Iraq. Mr. Teicher, once again in his Federal court deposition, a National
Security Council staff member, testified that the Director of the CIA, William Casey, along with
the Deputy Director, Robert Gates, authorized and approved the manufacture and sale of cluster
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bombs from a third party to Iraq (Reply of Iran, Exhibit 10, p. 6). There was no doubt as to how
Iraq intended to use those munitions.
*
* *
5. Iraq’s attack on the U.S.S. Stark and the reflagging of Kuwaiti vessels in 1987
38. By early 1987, the year of the first attack on Iran’s platforms, the United States was
considering expanding its support for Iraq by reflagging Kuwaiti tankers many of which, as
Professor Momtaz has said, were carrying Iraqi oil. To place this new development in context as a
precursor to the subsequent United States attacks on the platforms, it is necessary to bring to the
Court’s attention a few key points.
39. Before the reflagging initiative could be put into place, on 17 May 1987 Iraq attacked a
United States naval vessel ¾ the U.S.S. Stark ¾ with a missile killing 37 sailors. Rather than take
action against Iraq, who many commentators considered at the time was attempting to
internationalize the conflict by drawing the outside powers in, the United States response was to
blame Iran for its alleged recalcitrance in ending the war.
40. On 20 May 1987, three days after Iraq’s attack on the Stark, Secretary Shultz wrote to
the United States Congress in the following terms: “Quite apart from the Iraqi attack on the
U.S.S. Stark, Iran continues publicly and privately to threaten shipping in the Gulf. It is this basic
Iranian threat to the free flow of oil and to the principle of freedom of navigation which is
unacceptable.” (Memorial of Iran, Exhibit 53.)
41. And that was followed nine days later by testimony from the Assistant Secretary of State,
Richard Murphy, before the United States Congress. Notwithstanding Iraq’s attack on the Stark
that had just taken place, he testified, “Iranian attacks threaten to cause the further spread of the
war” (Memorial of Iran, Exhibit 49, p. 66). And also in that statement Secretary Murphy said that
“because of our interest in seeing the Iranian revolution contained within Iran, the United States has
an important stake in Iraq’s continuing ability to sustain its defenses” (Ibid.).
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42. Here you had, Mr. President, a direct Iraqi attack on an American warship which took
place in the context of (i) a war that Iraq was responsible for starting, (ii) a continued Iraqi use of
chemical weapons, and (iii) a “tanker war” which Iraq was also responsible for starting, as admitted
by the United States in these proceedings and the United States was blaming Iran. In fact, two days
after the attack on the Stark, President Reagan approved the reflagging plan, which was another
development clearly designed to assist Iraq.
43. The disingenuous nature of the American Administration’s logic was not lost on
informed observers at the time. As I have already noted, the Assistant Secretary of Defence,
Mr. Korb, expressed the view that the decision to reflag Kuwaiti tankers was designed “to ensure
that Iran did not win that war”. In his words, as I have said, “United States became de facto allies
of Iraq” (Memorial of Iran, Exhibit 51).
44. The highly-respected Chairman of the United States Senate Armed Services Committee,
Senator Sam Nunn, took a similar position. In a report that he prepared for ultimate submission to
the Senate Majority Leader in June 1987, shortly before the first of the attacks on the platform,
Senator Nunn advanced the following points: these are direct quotes from him.
¾ “[T]he challenges to freedom of navigation originate with Kuwait’s ally Iraq.”
¾ “The U.S. decision to protect Kuwaiti tankers is viewed in the region as a clear
alignment with Iraq and its Gulf allies”.
¾ “This U.S. step reduces the downside risks for the principal aggressor (Iraq) in the
‘tanker war’ to continue its attacks. Moreover, by doing so, the United States is
confronting Iran with whom it shares the objective of keeping the Gulf open for
the free flow of oil.”
¾ Finally, Senator Nunn said that the Administration’s justification for this policy
“ignores the basic fact that Iran has twice been the victim of initial Iraqi
aggression: in the land war and in the ‘tanker war’” (Memorial of Iran,
Exhibit 32).
45. Another senator, Senator Dornan, added his voice to those who questioned the wisdom
of United States policy, and he stated: “The reality is that not only are we tilting towards Iraq, but
we are trying to help Iraq win the sea war by guarding Iraqi and Kuwaiti shipping.” (Reply of Iran,
Exhibit 12.)
46. In sum, the reflagging policy was one more element in a concerted effort undertaken by
the United States to support Iraq and to intimidate and provoke Iran: and it is no coincidence that
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two months after the United States escorted the first Kuwaiti tanker under this new reflagging
policy the United States launched its first attack against Iran’s oil platforms.
*
* *
6. Other evidence documenting the actions taken by the United States against Iran
47. Mr. President ¾ you’ll be relieved that I only have about five minutes left ¾, in
reviewing the context within which the United States attacks on Iran’s oil platforms took place, I
focused primarily on statements issued by ranking members of the United States Government itself.
I have confined myself to this category of evidence because the Court itself has stated that it can be
of particular probative value ¾ statements of this kind ¾, particularly when such statements
acknowledge facts or conduct unfavourable to the State represented by the individual making them.
48. But that is not to say that this evidence stands in isolation. The Court need only refer to
the significant body of third-party evidence, press reports, Iranian witness statements and expert
studies, including the study of the highly-respected expert, Sir Laurence Freedman, furnished in
Iran’s written pleadings, to appreciate that the pattern of hostile conduct in which the United States
was engaged against Iran was a matter of public knowledge. As the Court observed in the
Nicaragua case, “public knowledge of a fact may nevertheless be established by means of these
sources of information, and the Court can attach a certain amount of weight to such public
knowledge” (I.C.J. Reports 1986, p. 40, para. 63). In the present case, the statements provided by
Iranian witnesses, third-party observers, press reports, published works, they corroborate the
evidence put forward by senior United States Government spokesmen to which I have referred
previously.
49. If the United States chooses not to address this evidence, that is its prerogative. But that
scarcely diminishes the probative value of the evidence as a whole. If, on the other hand, the
United States belatedly decides in its oral argument that it must confront these facts, then let it
produce the National Security Decision Directive which remains classified but which played such a
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central role in formulating United States policy in support of Iraq. And let it also try to explain
how the policies it engaged in, to which I have referred, were not designed to prejudice Iran as was
so amply attested to by the United States own government officials.
*
* *
C. Conclusions
50. Mr. President, Members of the Court. In its Rejoinder, the United States referred to a
statement made by the former Secretary of State, Madeleine Albright, two years ago.
Mrs. Albright said the following: “[A]spects of U.S. policy towards Iraq, during its conflict with
Iran appear now to have been regrettably short-sighted, especially in light of our subsequent
experiences with Saddam Hussein.” (Rejoinder of the United States, p. 7, fn. 11.) Our colleagues
on the other side of the Bar contend that “while such statements may be of diplomatic or historical
interest, they shed no light on the specific facts or legal issues raised by this case” (ibid.).
51. Such backhanded attempts to dismiss the relevance of United States conduct towards
Iran in the years leading up to the destruction of Iran’s oil platforms cannot be sustained. Policies
may change; principles do not. As the late Judge Lachs so rightly observed in his separate opinion
in the Nicaragua case: “Almost all disputes arising between States have both political and legal
aspects; politics and law meet at almost every point on the road. Political organs, national or
international, are under obligation to respect the law.” (I.C.J. Reports 1986, p. 168.)
52. The attacks on Iran’s oil platforms were not isolated incidents divorced from the overall
conduct of the United States during the Iran-Iraq war. While counsel for Iran will, in subsequent
presentations, focus on the events immediately surrounding those attacks, the evidence which I
have reviewed today, and which is in Iran’s pleadings, shows that the United States was embarked
at the time on a premeditated, extensive and concerted policy of supporting Iraq to Iran’s detriment.
The platforms were not attacked out of any notion of self-defence or of protecting essential security
- 68 -
interests. They were destroyed in contravention of Article X, paragraph 1, of the Treaty as a result
of this conscientious policy of truly unremitting hostility towards Iran.
53. In the light of today’s environment, it is all the more important for the Court to rest its
decision on principle, not, as the United States would have it, on self-serving and short-sighted
elements of political expediency which were contrary to treaty obligations that the United States
owed to Iran.
54. Mr. President, that concludes my presentation. I am extremely grateful for the patience
of the Court and I would ask you, tomorrow morning, if you would call upon Professor Pellet to
continue Iran’s presentation. Thank you very much.
The PRESIDENT: Thank you, Mr. Bundy. The Court will now adjourn until tomorrow
morning, when the hearing resumes at 10 a.m. Thank you.
The Court rose at 6.20 p.m.
___________