IN THE NAME OF GOD
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING THE AERIAL INCIDENT
OF 3 JULY 1988
(ISLAMIC REPUBLIC OF IRAN V: UNITED STATES
OF AMERICA)
MEMORIAL
Submitted by the
ISLAMIC REPWLIC OF IRAN
Volume 1
24 July 1990 TABLEOF CONTENTS
INTRODUCTION ........................................ 1
PART 1 .THE-FACTS .................................. 7
A . Introduction .....................................7
B . The Background FactsRelatingto IR 655 ......... 10
1 . IR 655 Was a Scheduled Flight Within
Air Corridorio................................. 10
2 .Detailsof the Flight ........................15
(a) The Passengers and theCrew .............15
(b) Routine Communicatio with
ATC Centres .............................17
(c) U.S.Monitorino gf IR 655's
Routine Communications ..................21
C. The Background FactsRelatingto the ............25
UnitedStates Warships
1. The Showof Forceof theU.S. Fleetin
the Persian Gulf ............................. 25
2. U.S. Interference in Civil Aviation ..........33
3. The USS Vincennes ............................42
D. The Shooting Downof IR 655 .....................47
1. InitialStagesof the Flight .................47
2. AllegedtlChallenge .bylthe
Vincennesand the Sideç ......................53
3. by the U.S.Warshipsde......................... 60
4. The Firingon the Plane ...................... 65
E. U.S.Attemptsto DenyResponsibilit y...........68
1. Mode IIResponsey"............................. 69 . ii .
2 . The "Coordinated AttackT "heory .............. 77
PART II .. JURISDICTION .............................. 85
A . ProceedingsBefore theundtICA0 Council: ............. 86
1. beforetICA0o.................................. 86
2. Subsequent Actions by ICA0 ................... 95
3. The Final Decisionof the ICA0 Council ....... 104
B . JurisdictionUnder the Chicago Convention ....... 112
C. JurisdictionUnder the MontrealConvention ...... 123
D. JurisdictionUnder the Treatyof Amity .......... 130
PART III . THE APPLICABLEPRINCIPLESAND RULES
OF LAW ................................... 140
A. Introduction .................................... 140
B. The Provisionsof the Chicago Conventio ........ 141
1. The Preamble ................................. 142
2 . Articles 1 and 2 .............................. 143
3 . Article 3 bis ................................ 147
4 . Articles44(a) and (h) ....................... 154
5 . The Annexesto the Chicago Conventio n....... 157
(a) Annex 2 ................................. 158
(b) Annex 11................................ 164
(c) Annex 15................................ 169
C. The Provisionsof the MontrealConvention ....... 172
D. The Treatyof Amity ............................. 179
E. The United Nations Charter ...................... 184
. 1 . The Prohibitionagainstthe use of Armed
Force ....................................... 185
2 . Rules Relatingto a State'sTerritorial - iii -
Sovereignty .................................. 190
3. The Exerciseof Self-Defence ................. 197
F. Customary International La of Neutrality .......205
PART IV - APPLICATION OF THE LAW TO THE FACTS .......209
A. The Deploymentand Conductof theU.S.
Fleet in the PersianGulf ....................... 209
1. Violationof theIslamicRepublic's
in its Commerceand Navigationfer...............210
2. The UnlawfulNOTAMs .......................... 218
3. The Implications of Recommendation.
2.611 of the ThirdMID RAN Meeting ...........228
4. The United States' Violationsof the
Law of Neutrality ........................... 230
5. Conclusions .................................. 236
B. The ShootingDown of Flight IR 655...............238
1.The "Accidental" Argument .................... 239
2. The "Self-Defencel Argument .................. 247
3. U.S. AttitudesIn RelatedIncidents ..........252
4. The United States'FailureTo Accept
RIncidentand To Guaranteetheonsin this
Preventionof SimilarIncidentsin
the Future ................................... 255
C. Conclusion ...................................... 258
PART V - REPARATION ................................. 260
A. StatesViolatedthe ChicagoConvention,the
MontrealConvention,the Treatyof Amity
and RelatedPrinciplesof Customary.
International Law............................... 261
B. Request foran Order that the United States
Cease and Refrain £rom Its Violationsof
International Law ............................... 265
C. Request foran Award of Compensation against
International ObligationsVi....................... 268 1 .The Court'sPower ToAward Monetary
Reparation ................................... 268
2 .The Basis for the Request for
Reparation ................................... 271
3 .The Reparation Requeste d.................... 274
D. Conclusions:State Practice ..................... 285
SUBMISSIONS ......................................... 291
List of DocumentaryExhibits ........................ 297
APPENDIX . Analysisof the ICA0 Report LIST OF ILLUSTRATIONS
Facine. Page
Figure 1 - Position of IR 655 at
Missile Impact ......................... 2
Figure 2 - Position of IR 655 within
Route A59 .............................. 12
Figure 3 - Flight Path of IR 655 .................. 20
Figure 4 - Position of U.S. ships
Missile655Launchingof ...................... 68
Figure 5 - Positions of U.S. ships
and helicopter at 0610 UTC ............. 80 MEMORIAL
SWMITTED BY THE
ISLAMIC REPUBLIC OF IRAN
INTRODUCTION
1. This Memorial is filed pursuant to the
Orders of the Court dated 13 December 1989 and 12 June 1990
fixing 24 July 1990 as the time-limit for the filing of the
Memorial of theIslamic Republicof Iran (hereinreferred to
as the "IslamicRepublic"). The Order was made having
regard to Article 48 of the Statute of the Court and taking
into account the Application filed by the Islamic Republic
on 17 May 1989 institutingproceedings against theUnited
States of America (herein referred to as the "United
States").
2. This case arisesfrom the destructionof a
civilian aircraft - Iran Air Airbus A300, registration
number EP-IBU, operatingas flight IR 655 between Bandar
Abbas and Dubai (herein referred to as "IR 655") - while
flying in the Islamic Republic'sairspace and over its
interna1and territorial waters in the Persian Gulf and the
killing of its 290 passengers and crewby two surface-to-air
missiles launchedby the guided missile cruiser,
Vincennes,on the morning of Sunday, 3 July1988. The
position at which IR 655 was destroyed in relation to the
Persian Gulf is shown on Fiqure 1. 3. It will be shown in this Memorial that the
use of force by U.S.naval units in destroying IR 655 and
the killing of its passengers and crew violated the'most
fundamentalprinciples of international law,including
specific provisionsof the Chicago convention1and the
Montreal conventionL whichgovern and protect international
civil aviation. The shooting down of the aircraft also
violated Article 2(4) of the United Nations Charterand
rules of customary international lawprohibiting the use of
force. In unlawfully intruding into the IslamicRepublic's
interna1 and territorialwaters, in breaching its stated
neutrality in the area, in endangering civilaviation
.generally and in destroying the aircraft, theUnited States
also violated theIslamic Republic's sovereignty and the
principle of non-interventionas well as the principles of
neutrality enshrinedin the Hague Conventionsof 1907. Al1
of these actions were in breach of theTreaty of Amity,
Economic Relations and Consular Rights between the United
1
Convention on International CivilAviation of 1944 as
amended (15 295). A copy of this Convention
together with Annexes 2, 11 and 15 and the 1984
Montreal Protocol (Article3 biç) is attached at
Exhibit 1.
2 Convention for the Suppressionof Unlawful Acts
Against the Safety of Civil Aviation of 1971. A copy
of this Convention is attached at Exhibit 2.States and lranl, customary practiceand rules relating to
the Law of the Sea, including those reflected in the 1958
Geneva Conventionson the Law of the Sea andthe 1982 United
Nations Conventionon the Law of the Sea, as well as the
provisions of Chapter VI1 of the UnitedNations Charter.
This case also involves a flagrant violationof the
principle of non-interferencein the affairs of a sovereign
State and of elementaryprinciples of humanity and norms of
international behaviour.
4. Despite these numerous violationsof
internationallaw, the United States has refused to accept
responsibility. Moreover, since the incident, on 3 July
1988, th.. United States has continuedto provoke the Islamic
Republic by the presence of its fleet in the Persian Gulf
and to endanger civil aviationby threatening civil aircraft
on a number of specific occasions. In short, the United
States has taken no steps to ensure that an incident such as
the shooting down of IR 655 will not happen again.
1 Treaty of Amity, Economic Relations and Consular
Rights between the United States of America and Iran
.signedat Tehran on 15 August 1955 and entered into
force on 16 June 1957 (284 UNTÇ 93, II Recueil des
Traités Bilatéraux 69, 8 U.S.T. 899, T.I.A.S. No.
3853). A copy of this Treaty, herein referred to as
the "Treaty of Amity", is attached at Exhibit 3. 5. Such indifferenceis unacceptable,even more
so when it is recalled that the United Stateshas been the
rnostvocal State in condemning theuse of armedforce on a
number of the other well-known occasions where civil
aircraft havebeen shot down, and in insisting onthe
requirementthat States concerned make reparation and
guarantee that similar incidentswill not be repeated.
6. This case is more abhorrent and
unjustifiablethan those other incidents that the United
States so publicly condemned. Those incidentsal1 involved
the use of forceagainst an aircraft whichhad intruded into
the territorial airspaceof the attackingState. In this
case, not only was IR 655 over the Islarnic Republic'sown
. .
interna1 and territorialwaters and hence in the Islamic
Republic's airspace whenit was shot down, but it was fired
- on by the USS Vincennes which, operating far £rom its own
shores, had intrudedinto and had positioned itself within
the Islamic Republic's territorial sea.
7. Immediatelyafter the incident, the Islamic
Republic referred thematter to the Council of the
International Civil Aviation Organization (the "ICAO
..
Council"). Although on previous occasionsthe ICAO Council
had condemned the actions of rnembers who had shot down civil
aircraft, it took no such action in this case. It is partlyas a result of this unequal treatment that the Islamic
Republic has been compelled to file its Applicationas an
appeal from the ICA0 decision under Article 84 of the
Chicago Convention. In addition,the IslamicRepublic
applies independentlyto the Court under Article 14(1) of
the Montreal Conventionand Article XXI(2) of the Treaty of
Amity.
8. Pursuant to Article 49 of the Rules of
Court, thisMemorial is divided into the followingparts:
- Part 1 contains a statementof the facts
-relatingto the incidentand the attempts
.*
by the United States to deny
responsibility.
- Part II contains a discussionof the
jurisdiction of the Court to hear the case.
- Part III contains a statement ofthe
applicable law.
- Part IV contains an analysis of the
relevant principlesand rules of law as
applied to the facts. - Part V contains a discussion of the
relevant principles of reparation.
- The Memorial concludesby setting forth the
submisçions of the Islamic Republic to the
Court.
9. A number ofdocumentary exhibits and other
evidentiary materials arebeing furnished withthis
Memorial. These are included in Volumes II and III hereto. PART 1
THE FACTS
A. Introduction
1.01 IR 655 was shot down at0654:43 on the
morning of sunday, 3 July 1988, seven minutes aftertake-off
on a regularly scheduledcommercial flight between Bandar
Abbas and Dubai.
1.02 In al1 respects the flight was proceeding
normally. The weather was clear. The captain had assumed a
normal flightpattern, climbing aftertake-off toward his
assigned altitude of 14,000 feet within the designated
internationalair corridor. He was engaging in routine
radio communications withair traffic control units, and the
plane's transponder was transmitting ("squawking") its
assignedMode III (commercial aircraft) code of 67601 . Just
eleven seconds after IR655 sent its last radiomessage, the
Vincennes launchedits missiles whichdestroyed the plane
-
and killed al1 those on board.
1 Under Annex 10 of the Chicago Convention,
internationalcivilian aircraftmust transmit a coded
pulse of energy that can be picked up on secondary
surveillanceradar ("SSR"). This code consistsof
four digits whichare set by the crew before take-
off. Mode III is the form of code used by commercial
aircraft. Mode II is only used by military aircraft. 1.03 The facts of this case are shocking. They
reveal serious violations of international lawby the United
States for which it has refused to accept responsibility.
As the following discussionwill demonstrate, thereis no
excuse whatsoever for the United States' conduct. A State
must be held accountable for actions of this kind, and it is
unacceptable that the çhooting down of a civilian aircraft
in the circumstances discussedbelow should be dismissed as
a mere accident. This action is an internationalcrime.
Indeed, the United States itself, in other incidents
involving the shooting down of civili'an aircraft, has
repeatedlydescribed such actions as international crimes
for which the States concerned bear full legal
responsibility.
1.04 The factualpresentation belowis based in
large part on the Report of the ICAO Fact-Finding
Investigationissued in November1988 (hereinreferred to as
1
the "ICAO Report") . While ICAOdid carry out an
investigationof the incident,substantial partsof the ICAO
Report are based on information containedin a report
unilaterally preparedby the United States' Department of
Defense and issued on 28 July 1988 (the "Defense Department
1 A copy of the ICAO Report isattached at Exhibit 4. - -9-
~e~ort")',most of which was not,or could not be,
corroboratedby the ICAO investigationteam. It is
important for the Court to bear this in mind and to place in
their proper context someof the statementscontained in the
ICAO Report when it comes to assess their probative value.
1.05 The Defense DepartmentReport made public
and given to ICAOby the United States was the
. .
"declassified"version of theReport. As a result, there
are hundreds of deletions in the text. While some of these
deletions clearly cover thenames of individuals, others
cover a good numberof paragraphs. The extent of these
deletions,especiallywhere critical aspects of the incident
are being discussed, suggeststhat therewere other motives
at work. Such a selective presentationof the facts
generally calls into question the value of such a report and
a party's good faith in preparingit. Unfortunately,the
ICAO Report contains no reservations aboutthe Defense
DepartmentReport. Indeed, it adopts, usually without
attribution,a large number of the politicalstatements,
-
allegationsof fact and conclusionstaken directly £rom the
Defense DepartmentReport.
1
Appendix E of the ICAO Report. References to the
Defense Department Reportin this Memorial relate to
the page numbers in Appendix E of the ICAO Report. - 10 -
1.06 It is partly for these reasons that the
Islamic Republicdisagrees with a number ofthe "facts",
"findings"and "conclusions"set out in the ICAO Report.
For clarity of exposition, the Islamic Republichas set out
in detail its differenceswith the ICAO Report in a separate
Appendix at theend of this Memorial. Nevertheless, in the
presentationbelow, the ICAO Report is adopted for reference
purposes, as it contains most of the essential facts and is
the only "independent"source presently existing for such
facts. Although it is referred to below in order to minirnize
the areas of potential dispute(the United States has not
taken issue with any of the conclusions reached therein),
where necessarythe position of the Islamic Republic on the
ICAO Report will be noted.
B. The Backqround Facts Relatinq to IR 655
1. IR 655 Was a Scheduled Fliqht Within the
InternationallyDesiqnated Civil Air
Corridor
-
1.07 On Sunday, 3 July 1988, IR 655 originated
in Tehran (as flight IR 451) for the first of a four-sector
flight plan. The plane - an Iranian registeredAirbus owned
and operated by Iran Air (the Airline of the Islamic
.Republicof Iran) - was scheduledto fly the following
routes:Flight Route Scheduled time (UTC)
IR655 Bandar Abbasd-rDubais 0620 - 0715
IR654 Dubai - Bandar Abbas 0815 - 0910
IR452 Bandar Abbas - Tehran 1010 - 1200
1.08 The flight from Tehranto BandarAbbas was
uneventful andthe plane landedat 0510 hours. A turn-
around check was carried outon the plane while thecrew
remained on theaircraft, and no discrepancies werefound or
maintenance carried out. IR 655 then prepared for the next
leg of its trip from Bandar Abbas to Dubai. The flight plan
had already been filed in Tehran and Dubai was duly
2
informed .
1.09 The Bandar Abbas - Dubai sector was part
of a regular passenger service that Iran Air hadoperated
for over twenty years using the international air corridor,
ATS route A59 (Air Traffic System Amber 59). This flight
was ordinarilyoperated twice a week, on Tuesdays and
Sundays, with the exception of Sunday, 19 June 3.
1
on the basis of Co-ordinatedhesUniversal Time (UTC).
On 3 July 1988, local time in the IslamicRepublic
was 3 ho'urs30 minutes ahead of UTC and local time in
the UnitedArab Emirateswas 4 hours ahead of UTC.
In order to avoid confusion,al1 times referredto in
this Mernorial are UTC unless specificallystated
otherwise.
2 -Ibid., paras. 1.1.1-1.1.3.
3
-bid., para. 2.4.1. 1.10 The position of route A59 together with
the location of IR 655 when it was hit are depicted on
Fiquïe 2 which is a map of the relevant area of the Persian
Gulf. As can be seen, the route lies just northeast of the
Strait of Hormuz and is twenty nautical miles wide from the
Iranian mainland through the reporting point MOBET until a
point roughlytwo-thirds of the way across the Persian Gulf
known as DARAX where the Tehran FIR (Flight Information
. . .
Region) ends and the Emirates FIR begins. At that point it
changes into a 10-mile wide sector to Dubai. At al1 times
on 3 July 1988, IR 655 was well within the lateral limits of
airway A59 1.
1.11 Fiqure 2 also shows the limits of the
Islamic Republic's territorial sea. Pursuant to a 1934 Act,
amended in.1959, the Islamic Republic's territorial sea was
fixed at a distance of 12 nautical miles. As provided by a
1973 Decree Law the 12 mile distance was measured £rom a
series of straight baselinesdrawn from various points along
the mainland coast and a number of islands lying close
offshore. These baselines are ais0 illustrated on Fiqure 2.
According to theExecutive Regulation to the 1934 Act,
1 ICA0 Report, para. 3.1.9.Figure 2 concerning innocentpassage, foreignwarships are required
to obtain the approval of Iranian authorities eight days in
advance of their passage through, or stop over in, the
Islamic Republic's territorial waters. The Regulation also
provides that at no time can there be more than two such
warships in the territorial waters 1.
1.12 IR 655 was not the only flightwhich used
,route A59. As the ICAO Report indicates, there were 28
other Iran Air flights besides IR 655 between BandarAbbas
and Dubai or Bandar Abbas and Sharjah which used the same
corridor during the month preceding the incident. In
addition, there were seven regularly scheduledflights
between Kabul and Dubai and 23 flights between Kabul and
Jeddah which also used the same route 2.
1.13 The ICAO Report notesthat the total
volume of commercial traffic on route A59 for the period
1 -ee, Exhibit 5 for the texts of the 15 July 1934 Act
on the Territorial Watersand the Contiguous Zoneof
Iran, the 29 August 1934 Executive Regulation on
Conditions of the Passage and Stop Overs of Foreign
Warships in Iranian Waters and Ports, the 12 April
1959 Act Amending the Act of 15 July 1934 on the
Territorial Watersand the Contiguous Zone of Iran
and the 21 July 1973 DecreeLaw, together with
translationsof the same reproducedfrom the U.N.
Legislative Series.
2 ICAO Report, para. 2.4.1.from 2 June 1988 to 3 July 1988 was 66 flights, or an
average of two per day. The maximum nurnberof flights
occurred on 23 June 1988 when six flights used the route 1 .
1.14 Delays of flight IR 655 during this period
"were relativelysmall and these flights normally departed
from the gate close to scheduled departuretime2".
1.15 The ICA0 Report States that information
about commercial flights using A59 was availableon board
the Vincennes, whichhad the civil flight schedule current
as of 28 June 1988 in its Combat Information Centre 3 . Since
the published flight schedule was available and known to the
Vincennes on the morning of 3 July 1988 just before IR 655
took off, the Vincennes knewthat IR 655 was expected to
pass over at any moment enroute to Dubai, but that it had
not yet done so 4. It was the only flight due to leave
1 ICAO Report, para. 2.4.2.
L
Ibid.
3 m., para. 2.8.3.
4 The Defense DepartmentReport is based in part on a
tape of the information recorded on the ship's AEGIS
radar system on the morning of 3 July 1988. This
record should show clearly thatno other commercial
flight had passed over that morning.Bandar Abbas across the Persian Gulf early that morning.
According to the time-table available on board the
Vincennes, IR 655 was scheduled to transit thePersian Gulf
between 0620 and 0715. As a matter of fact, IR 655 was
within this schedule when it 'wasdestroyed by the
1
Vincennes .
2. Details of the Fliqht
The ~assenqerç and the Crew
(a)
1.16 .When IR 655 left Bandar Abbas it was
carrying 290people: 274 passengers and a crew of 16. 'Of
these 290, 254 were Iranian nationals, 13 were nationalsof
the United Arab Emirates, ten of India, six of Pakistan, six
of Yugoslavia and one of Italy. Sixty-five of the
2
passengers werechildren or infants .
1.17 The captain, Mohsen Rezaian, was a veteran
pilot for Iran ~ir who had logged 7000 hours of flight time
1
This is confirmed by the transcript of the pilot's
communication withthe Tehran air traffic control
centre. Çee, page B-4 of Appendix B to the ICAO
Report.
2 ICA0 Report, para. 1.2.1. Al1 crew members were
Iranian. A list of the passengers and crew is
attached at Exhibit 6.of which over 2000 hourswere on an Airbus A-300. He had
flown this route for the past two years. The CO-pilot also
had extensive flying experience asdid the flight engineer.
Both the captain's and CO-pilot's commercialpilot licences
were valid at the time as was the licence of the flight
engineerI . The ICAO investigationteam found no indication
that the flight crew'may not have been physicallyor
2
psychologically fitat the time .
1.18 There were also no problems with the
plane. The ICAO Report stated:
"The aircraft was properly certificated,
equipped and maintained in accordance with
existing regulations and approved
procedures. The aircraft was serviceable
when dispatched from Bandar Abbas3."
It added:
"There was no indication offailure during
flight in the equipment of the aircraft
in~luding~thecommunicationsand navigation
equipment ."
1 ICAO Report, para. 1.5.
2 W., para. 3.1.1.
3
W., para. 3.1.2.
4 m., para. 3.1.3. (b) Routine Communicationswith ATC
Centres
1.19 Following normalprocedures, at various
times throughout its flight IR 655 was in radio contact with
ground stations including the Bandar Abbastower, the
regional approach centre (BandarAbbas approach) and the
Tehran air traffic control centre (TehranACC). Radio
communicationswere also exchanged between IR 655 and the
Iran Air station at Bandar Abbas.
1.20 These transmissions startedat 0634:50
when IR 655 contacted the Bandar Abbas tower requesting
1
start-up clearanceand a cruiçing altitude of 14,000 feet .
This request was passed on to Tehran ACC at 0636:23, and
Tehran in turn contacted the Emirates air traffic control
centre (Emirates ACC)to request confirmationof the 14,000
feet level.
1.21 The communication betweenTehran ACC and
Emirates ACC is significantbecause IR 655's transponder
code was specificallymentioned and identified. As the
record shows, at 0637:04 Tehran ACC informed Emirates ACC
1 Transcripts of al1 the radio communications referred
to in these paragraphs may be found in Appendix B of
the ICA0 Report. Accordingly, individual references
for each communication will not be given. that IR 655 would be squawking 6760 - a fact that was
immediately confirmedby Emirates ACC. Those communications
.wereal1 in English, were transmitted overopen VHF radio
frequenciesand must have been heard by or known to the
1
'Vincennes or to its regional command .
1.22 One minute later (0638:03),Emirates ACC
approved 14,000 feet for IR 655 and this information was
relayed to the Bandar Abbas approach together with the
instruction that IR 655 should squawkcode 6760. Bandar
Abbas approach acknowledgedboth the flight level and the
transponder code.
1.23 At 0638:06, IR 655 requested and received
start-up clearancefrom the tower. At 0643:19, the tower
called IR 655 to confirm its clearance and the following
exchange ensued:
Time (UTC) From
0643:19 BND TWR "Iranair 655 copy your ATC
clearance."
0643:24 IR 655 "Go ahead."
0643:25 BND TWR "Iranair 655 is cleared to
destination Dubai via flight
planned route, climb and
maintain flight level 140,
(14,000 feet), after take
off follow simulated MOBET 1
BRAVO departure squawking
ALPHA 6760."
1 below, paras. 1.28-1.35. 43:41 IR 655 "Iranair 655 cleared
destinationflight planned
route, flight level 140,
simulated MOBET1 BRAVO and
squawk 6760. "
0643:53 BND TWR "Squawk6760 Iranair 655
that is correct, cal1 when
ready for departure."
Once again, al1 of these transmissions werein English and
could readilyhave been picked up by anyone monitoringthe
VHF frequency.
1.24 IR 655 took off from runway 21 at 0647. .
The next communication£rom the plane was at 0649:18 when it
contacted Bandar Abbas approach saying that it was passing
out of 3,500 feet. The pilot also indicated that he
estimated reaching MOBET at 0652, DARAX at 0658 and the
destination (Dubai)at 0715. At 0651:04, IR 655 transmitted
the same informationto Tehran ACC and added t?iat it was
passing out of7,000 feet to 14,000 feet.
1.25 '~ehranACC relayedIR 655's eçtimated
arriva1 time at both DARAX and Dubai to Emirates ACC.
Tehran ACC also requested IR 655 to report back when it had
reached 14,000 feet and was passing DARAX (which IR 655
acknowledged),and asked the aircraft to confirm that it was
squawking 6760. IR 655 replied affirmatively. This was at0651:30, several minutes after theVincennes had picked up
the plane on its radar.
1.26 IR 655 then continued its normal flight
pattern towardsMOBET. At 0654:00, it sent its last message
to Bandar Abbasapproach reporting its position at MOBET and
vacating 12,000 feet. Bandar Abbas approachacknowledged,
and at 0654:ll IR 655 said, "thank you, good day". These
were the final words heard £rom the flight.
1.27 When the plane was shot down at 0654:43, a
matter of seconds later, it was still flying within the
Islamic Republic's airspace at approximate coordinates
26O38'22"N;56°01'24"E - well within route A59. It was
ascending to its assigned altitudeof 14,000 feet. And it
was transmittingits commercial code6760. The flight path
of IR 655 together with its position when the missiles were
launched (0654:22),when they struck (0654:43)and where the
wreckage of the aircraft hit the waterare depicted on
Fiqure 3. Al1 these positions are taken £rom the ICA0
Report, based on information givenin the Defense Department
Report. This informationshows that IR 655 was just over
the line betweenthe Islamic Republic's internal waters and
its territorialwaters when the missiles were fired. The
map also showswhere the wreckage of the plane was found, a
point wellwithin the Islamic ~epublic's internal waters. (c) U.S. Monitorinq of IR 655's Routine
Communications
1.28 The evidence showsthat not only should
the U.S. warships have been aware of IR 655's messages,
which were being broadcast over open radio frequencies,but
that the United States actually did have this informationat
the time. This is demonstratedeven by examining the
findingç of the officia1 investigationthat the United
States Governmentcommissioned shortly after the incident.
1.29 The hearings for the United States
Department of Defense investigationof the incidentwere
concluded by 19 July 1988 and its report was issued on 28
July 1988. This was just two weeks after ICAO had ordered
its own fact-finding investigation which was not completed
until November 1988. Thus, the Department of Defense Report
was available to ICAO in preparing itsown Report. On the
other hand, the Defençe Department prepared its Report
without knowledge of the findings that the ICAO team would
reach.
1.30 These facts are relevant to the following
statement that appears at paragraph 4of page E-8 of the
Defense Department Report:
"Iran Air flight 655 took off on runway 21
(heading 210 degrees true), was directedby the Bandar Abbas tower to squawk IFF modeIII code
6760, and began a normal climb out to assigned
altitude of 14,000 feet for the flight, which
lasted a total of 7 minutes before the plane was
hit by the missiles from USS VINCENNES. The
pilot remained withinthe Amber 59 air corridor
(20 miles wide, 10 miles each side of
centerline),made a routine position report to
Bandar Abbas departurecontrol at approximately
0654 Z, and was ascending through 12,000 feet at
a speed of approximately380 kts at the time of
making his report."
1.31 It must be concluded £rom this that at the
time the United States knew these facts either £rom the
Vincennes itself or from other ships in the area or through
its own monitoring and intelligence network. In other
words, the United States had full independentknowledqe of
the actual radio communicationsthat passed between IR 655
and the various air traffic control ground stations. The
United States knew which runway had been used. It knew that
the Bandar Abbastower haddirected the flight to squawk
code 6760 on Mode111 (the normal commercial aircraft mode).
It knew that IR 655 was to make a normal climb within A59 to
14,000 feet. It knew that the last communication£rom IR
1
655 took place at 0654 .
' ' Although the Islamic Republic had filed some evidence
concerning flight IR 655 with the ICA0 Council on 12
July 1988 (see,para. 2.11,below, and Exhibit 36),
it appears the United States had its own sources of
information which independently confirmed the Islamic
Republic's statements. 1.32 When Admiral Fogarty wascalled on to
testify beforethe United States Senate about this report,
he was specificallyasked how the United States was aware of
al1 this information. Admiral Fogarty responded:
"Sir, 1 have to talkto that in closed session.
1 cannot discuss that at this levell."
1.33 What theAdmiral meant by this cryptic
remark was that the manner in which the UniteS dtates had
knowledge ofthe precise details of IR 655's radio
transmissions was classified information. Because the
hearing at which he was testifying was a open session,
Admiral Fogarty could notdiscuss classifiedmatters, which
could only bedone in closed session.
1.34 The DefenseDepartment Report does not Say
whether anyof the U.S. warships or theMiddle East Task
1
-ee, the testimonyof Rear Admiral William M. Fogarty
(Directorof Policy and Plans, U.S. Central Command
on the IR 655 incident) before the Committeoien Armed
Services of the United States Senate, 8 September
1988 (S. Hrg. 100-1035),p. 25. A copy of the record
of this Hearing (hereinreferred toas the "Senate
Hearinqs") is attached at Exhibit 7. g, also, the
Defense Department Report,at p. E-10, where it is
stated that "reliable intelligence information" was
used to corroborate the fact that IR 655 was on a
normal flightprofile £rom Bandar Abbasto Dubai.Force heard these messages. However, the capab2litiesof
the United States to monitor radiotransmissionsand other
communications,even when not sent over open VHF
frequencies, arewell known. The United States had access
to facilitiessuch as AWACS and other intelligence
monitoring sources in the Persian Gulf region. For example,
Caspar Weinberger,U.S. Secretary ofDefense during this
period, has confirmed that the United States was allowed to
use SaudiArabian AWACS facilities, giving immediate access
to just this type of informationin precisely thearea where
the incident took place:
".Saudi-based aircraft would now help us ... and
give us the most valuable thing we could have:
additional time and knowledge of Iranian
intentions andactions in the lower Gulf,
particularly the Strait of ~ormuzl."
The Defense Department Report acknowledget shat U.S.
warships had the capability tomonitor such communications
2
on board . -
1 -re C. W. Weinberger,Fiqhtinq for Peace (Warner
Books, 1990), pp. 407-408. A copy of extracts £rom
this book is attached at Exhibit 8.
2
Defense Department Report, p. E-53, para. 6.
Extraordinarily,the ICAO Report States that the U.S.
ships had no such capability. -, ICAO Report,
para. 2.8.4. 1.35 Thus it must be assumed that theU.S.
warships heard IR 655's communications,al1 of which were on
open radio channels, including its communications whenit
was still on the ground at BandarAbbas some thirty minutes
before the incident. Italso must be assumed that the U.S.
Middle East TaskForce Command,based in Bahrain, was
monitoring flights in and outof BandarAbbas during this
period, given its alleged intelligenceinformationabout the
possibility ofan Iranian attack overthe 4 July weekend and
the presence of F-14s at BandarAbbas 1. Despite this
knowledge and despite al1 of the other clear indications
that IR 655 was a civilian aircraft whichposed no threat to
anyone, the Vincennes requestedand was given permissionby
the U.S. Middle East Task Force Command to shoot downthe
2
plane .
C. The Backqround FactsRelatinq to the United
States Warships
1. The Show of Force of the U.S. Fleet in the
Persian Gulf
1.36 Prior to 3 July 1988, the United States
had amassed a large fleet of warships in the Persian Gulf
1 Defénse Department Report, p. E-65.
L
Ibid., p. E-9.and thenorthern Gulfof Oman. According to the United
States, the purpose of this show of force was to protect
neutral shippingin the Persian Gulf and to escort reflagged
Kuwaiti tankers - an operation that commenced in 1987 and
involved morethan 40 warships in 500,000 tons and beinz
able to doub1.ethat figure at any timeby bringing into
the Persian Gulf the warships stationedin the Gulf of
Oman . In reality, the aim of the United States was quite
different,and the fleet was frequently used to provoke and
intimidatethe ~slamic~epublic and to aid Iraq and its
supporters in thewar that hadbeen imposed upon the Islamic
Republic by Iraq in 1980. It was this attitude which
directly contributedto the downing of IR 655.
1.37 This policy was combined withthe United
States' embargo on al1 goods of Iranian origin andan almost
total restrictionon al1 trade relations withthe Islamic
Republic whichwas in operation£rom 1980 onwardç. The
United States had also put into effect "OperationStaunch"
which was designed to preventthe Islamic Republic
1
purchasingarms frai anywhere in theworld , and was
accompaniedby a near blockade of Iranian ports together
with comprehensive monitoring ans durveillanceof vessels
going to and £rom such ports. No such steps were taken
against Iraq.
1 On "OperationStaunch", E, Weinberger, op. cit.,
pp. 421-424. Çee, Exhibit 8. 1.38 The partiality of the United Statesin
respect to itsoperations in the Persian Gulf is clear from
the Defense Department's ownofficia1 investigation intothe
circumstancessurrounding the downing of IR 655. The Defense
Department Report contains a section entitled "Intelligence
Background" in which certainbackground facts relating to
events in the Persian Gulf are recounted.Although the
Islamic Republic does not accept many of the Report's
. .
conclusions,it is significant that the Report states that
it was Iraq which initiatedattacks on shipping in the
Persian Gulf in 1983 when it acquired FrenchExocet
missiles. According to the Defense Department,these
missiles provided Iraq with"a credible shipattack
capability",and anti-shipping strikes by Iraq commencedin
1984. It was only afterwards that the Islamic Republic was
forced to have recourse to the internationallyrecognized
rights of visit and search of suspect vessels "toprevent
war supplies from reaching lraql".
1 -See, p. E-10 of the Defense Department Report. The
United States has acknowledged that in visiting and
searching vessels, the Islamic Republichad
"exerciseda 'traditionalright'" of a belligerent
"to prevent war supplies £rom being shipped to an
enemy." m, with respectto the vesse1 President
Taylor, New York Times, 13 January 1986 (copy
attached at Exhibit 9). Çee, also, Departmentof
State Bulletin No. 2108, March 1986, p. 41, also
attached at Exhibit 9. 1.39 The Report then goes on to state that the
Persian Gulf war intensifiedin 1987 -
"... when Iraq used its Air Force to conduct an
facilitiesand shipping. The campaign wasl
centered in the central Persian Gulf (CPG) and
intensifiedin May 1987. These expanded
operations culminated in the 17 May 1987
erroneous attack on USS STARK~.
As the Court will recall, the USS Stark was hitby two
French Exocet missiles fired from Iraqi air force planes on
that day. Thirty-sevenU.S. crewmen died in the incident
and the vesse1 sustained substantialdamage. It is
significantthat the United States held Iraq leqally liable
for its action but took no military response 2.
1.40 Despite these indicationsof Iraq's
aggression and its responsibilityfor escalating the
hostilitiesin the Persian Gulf, the United States has
L p. E-10 of the Defense DepartmentReport.
2 See, the statementof A. Sofaer, the Legal Adviser of
the U.S. Department of State, before the Defense
Policy Panel of the Committee on Armed Services of
the U.S. House of Representatives, 4 August 1988,
H.A.S.C. No. 100-119 (1989),p. 55 (herein referred
to as,the "House Hearinqs" ) . A copy of extracts from
these Hearings is attached at Exhibit 10.maintained that its warships wererequired thousandsof
miles £rom its shores juçt off (and often even within)the
Islamic Republic's territorialsea, "to counter Iran's
recklesç behavior towardneutral ships engaged in lawful
commerce1". From 1984 onwardçthe Reagan Adminsitration
publicly anouncedthat the United States had informed
various friendly nationsin the Persian Gulf that the
Islamic Republic's defeatof Iraq would be "contrary to U.S
interests"and that steps would be taken to prevent this
result. In April 1984, it was revealed that President
Reagan had signed two national security decision directives
to set the stage for the u.'s Government to take a more
confrontational stance against the Islamic ~e~ublic'.
1.41 These are clear admissions of partiality.
~oreover, while profeçsing its neutrality,the UnitedStates
1 The Perçian Gulf Conflictand Iran Air 655, United
States Dept.of State, Bureau ofPublic Affairs,
Current PolicyPublicationNo. 1093. This statement
waç taken from an address by then Vice-President Bush
before the Security Council on 14 July 1988. A copy
is attached at Exhibit 11.
Middle East Policy SurveyNo. 102, 20 April 1984; çee
also, F.A. Boyle, "InternationalCrisis and
Neutrality:U.S. Foreign Policy Towards the Iran-Iraq
War" in ~eutralitv: ~hanqinq Concepts and Practices
(eds. A.J. Leonhard & N. Mercuro (1988)), pp. 72-73.continued to act to the contrary. AsGeneral Burpee
acknowledgedbefore theU.S. House of Representatives
Hearings after theStark incident:
"The Iraqisare Our friends or at least
friendl and Iran is the one that is more
hostileY1.,
This sometimestook the form of actually helping Iraqi
forces. Forexample, the 14 May 1988 Iraqi attackon
several Lranian oil tankers close to the Larak Island
terminal took place with the complete cooperationof the
U.S. forces in the area. During this episode,the U.S.
Navy, by jamming the communicationnetwork of the Iranian
warships and creating a safe flight corridor for Iraqi
fighter aircraft,placed its facilities at the disposa1 of
1.42 In reflagging Kuwaitiships, the United
SWtes was openly helpinga State which had consistently
1 -See, Hearings beforethe Committee on Foreign
Affairs, House of Representatives,on 19 May, 1987
('75-507,1987), at p. 41. A copy of an extract £rom
these Hearings is attached at Exhibit 12.
2 U.N. Doc. S/1988,5-16 May 1988.aided Iraq in its war effort. This abusive actionof the
United States was publicly protesteb dy the Islamic Republic
at the timeL. As Secretary of Defense Weinberger admitted,
"(o)ur official policy was to remain neutral", but,he went
on, "we managed to have official United Statesstatements
and actions convey thatwe 'tilted' towardç 1raq2". This is
an understatement,but it reveals that the professed
"neutrality'of the United States in the Iran-Iraqwar waç a
hoax and that the United States'actions in the Persian Gulf
were a breach of the laws of neutrality.
1.43 In practical terms, the presence of such a
large naval force within the confinedarea of the Persian
Gulf heightened tensions and interfered withcivil aviation
despite U.S. assurances to the contrary. In this regard, it
should be noted thatparagraph 5 ofResolution 598, adopted
by the Security Council at its 2750th meeting on20 July
1987 and actively endorsedby the United States, called upon
"al1 other States to exercisethe utmost restraint and.to
refrain fromany act which may lead to further escalation
and widening of theconflict, and thus to facilitatethe
1
-ee, 33 Keesinq's Contemporary Archives 35598
(December1987).
2 ~einberger,2. *., p. 358. a, Exhibit 8.imglementationof the present resolution". The U.S. show of
force in the Persian Gulf and its reflaggingof Kuwaiti
ships were a clearcontravention of this Resolution.
Moseover, under Article 42 of the United Nations Charter,it
is for the SecurityCouncil, not the United States, to
determine what action, if any, "may be necessary to maintain
or restore international peace and security". In
unilaterallyassuming a role as policeman of the Persian
Gulf, the United States ignored theauthority of the
Security Council and contributedto the escalationof the
con£lict.
1.44 The United States'attitude was that it
could station its ships wherever it pleased, and that
neighbouringStates would have to alter their civil aviation
network and other activities in line with the dictates of
the U.S. forces. As has since become clear, this form of
"gunboatdiplomacy"was part of a wider policy of the United
States dir.ectedagainst the Islamic Republic whichwent far
beyond the protectionof neutral shipping. This involved
trying to undermine theIslamic Republic's sovereignty in
any way possible including trade embargoesand an arms
blockade. The United Stateseven went so far as to use theexcuse of protection of neutral shipping to conduct major
attacks againstthe Islamic ~e~ublic'.
1.45 As discussed indetail in the next
section, £rom the beginning of the United States' increased
show of force in the Persian Gulf, the United States'
aggressive attitudeled to numerous incidents involving the
harassment ofcommercial aircraft,for which the United
States had corneunder harsh criticismeven beforethe IR 655
tragedy.
2. U.S. Interferencein Civil Aviation
1.46 The typical practice of the U.S. Navy in
the Persian Gulf was to challenge virtually everyaircraft
1 For example, the United States alleged that it had
succeeded in destroying half the IslamicRepublic's
naval forces in an attack on 18 April 1988,
"Operating Praying Mantis". Weinberger, 9. c., p.
425. Çee, Exhibit 8. As Weinberger notes, "(b)y an
odd coincidence"this attack by the United States
coincided with amajor Iraqi offensive on the Al Faw
peninsula. Weinbergercontinues:,
"The successfulrecapture of AlFaw ... set Iraq
on a course of successful militarycampaigns
that led to Iran's giving up and asking for a
cease-fire."
-ee, also, Defense Department Report,
12.that came even remotelyclose to its warships. The United
States has sought to,justify its actions by referring to the
illegal NOTAMs (notice to airmen) that it promulgated: the
first in January 1984 and the second in September 1987 1 .
These NOTAMs warned aircraft that came within a certain
distance of U.S. warships operating in the Persian Gulf that
they would be at risk £rom "U.S. defensive measures"if they
came too close.
1.47 The 1984 NOTAM purported to warn any
aircraft coming within 5 nautical miles of a U.S. vesse1 at
an altitude of less than 2000 feet that they "may be held at
risk by U.S. defensive measures". The 1987 NOTAM contained
the same wording, but also called on aircraft, inter a,
to maintain a listening watch on 121.5 MHz VHP or 243.0MHz
UHF and to stay clear of U.S. vessels. It also indicated
that aircraft would be called upon to identify themselves as
soon as they were detected and that a failure to respond to
U.S. requests for identificationcould place an aircraft at
risk from U.S. defensike measures2. When faced with the
I
State Department White Paper, Iran Air 655: Steps to
Policy No. 1092 issued by the Bureau of Publicnt
Affairs, p. 2. A copy of this statementis attached
at ~xhibit 13. The texts of the two NOTAMs are set
out in Exhibit 14.
2
-re ICA0 Report, para. 2.2.Islamic Republic's objectionsto the NOTAMs in ICAO meetings
and meetings of the MID RAN States in 1984, U.S.
representatives frequently assured the Islami Republic and
the aviation communitythat its NOTAMs in no way concerned
commercial and passenqer aircraft, which normallyfly well
above 2000 feet and consequently wereat no risk.
1.48 These NOTAMs were subsequently recognized
by ICAO to be illeqal and impractical,and both were
protested by the Islamic Republic atthe time1. They
directly contributedto endangering civil aviationover the
Persian Gulf in general and to the destructionof IR 655.
1.49 As will be explainedin more detail in
Parts III and IV of this Memorial, the NOTAMs were illeqal
because the United Stateshas no riqht to issue NOTAMs in
the Persian Gulf area. They were impracticalbecause their
content was so vague and so wide-ranging that theywould
impede air trafficalmost anywherein the Persian Gulf 2.
Moreover, the United tat ftaesed to take any steps to
coordinate with the relevant civil aviationand military
authorities in the area. The ICAO Report foundas follows:
1
-ee, para. 4.15, -t çeq., below.
2 These aspects of the NOTAMs are discussed indetail
at paras. 4.22, et çeq., below. "There was no coordinationbetween UnitedStates
warships and the civil ATS units responsiblefor
the provision of air traffic services within the
various flight informationregions in the Gulf
areal." ,
1.50 The result of these NOTAMs and the failure
of coordinationwas that the United States caused confusion
and danger to civil aviation in the Persian Gulf. Many of
the resulting incidentshave been well documented. For
example, on 26 May 1987, 18 June 1987 and 13 July 1987 a
number of Iran Air flights were challengedor forced to
divert from their internationally designated routes by U.S.
naval forces. At the time, the Islamic Republic protested
these actions to the President of ICAO and called upon him
to take appropriate measures toensure safety for air
traffic in the region 2. -
1.51 After the 26 May 1987 incident,for
instance, the Islamic Republic's Representative at ICAO
wrote to Dr. Kotaite, the President of the ICAO Council,as
follows :
ICAO Report,para. 3.1.20.
2 Details of these incidents are set out in the Working
Paper presentedto ICAO by the Islamic Republic on 8
July 1988 (C-WP/8644). A copy of this Working Paper
is attached at Exhibit 15. "1 would like to emphasize that this is not the
only event andU.S. naval forces in the Persian
Gulf repeatedly violate the internationallaw
and common practices regarding thefreedom of
flying over the high seas.
My delegation considersthese unlawful acts as a
direct interferenceagainst safetyand
regularity of international air transport
operation. -
In the intereçt of safety of international air
navigation andfor the strict observanceof the
Chicago Conventionand the standards and
recommendedpractices ofICAO, your attention
and appropriate action will be highly
appreciatedl."
Recognizing the significanceof the danger, Dr. Kotaite on
several occasions assuredthe Islamic Republic's delegation
that the matter was receivinghis persona1 attention.
1.52 Of course, the United States' actionsdid
not çolely affectIran Air flights. On 8 June 1988, less
than one month beiore the destructionof IR 655, a British
Airways Boeing 747 on a scheduled flight from London to
Dubai was challengedby a U.S. warship and told to change
course just as it was about to land. At the time, the
flight was under control of Dubai approach, and fortunately
Dubai overruled theinstruction,thus avoiding a very
1 This letter is attachment6 to the IslamicRepublic's
Working Paper attached at Exhibit 15. 1
probable mid-air collision . This led to a strong protest
from Dubai air traffic controllers who requested "that U.S.
warships desist £rom the practice of challenging every
aircraft approaching the airport2". The American Embassy in
Abu Dhabi was forced to apologize.
1.53 Even after the 3 July 1988 incident, the
United States continued to endanger commercial flights. On
3 August 1988, a Gulf Air flight climbing out of Sharjah
heard a warning on 121.5 MHz apparently addressed toitself,
yet the warningwas in fact addressedto an Aerogulf
helicopter operating£rom Dubai. This is a clear
illustrationof the danger and lack ofclarityof these
3
"challenges" . On 30 January 1989, Iran Air 7812, en route
£rom Dubai to Bandar Abbas, was told by the BandarAbbas
radar unit that it was being challenged by a U.S. naval
warship. Althoughthe pilot had been listening to the
1 See, Aviation Week & Space Technoloqy,11 July 1988,
p. 22, a copy of which is attached at Exhibit 16.
-ee, also, Appendix C to the ICA0 Report which
documents othersimilar incidents.
2 -ee, Jane's Defence Weekly, 16 July 1988, p. 64, a
, copy of which is attachedat Exhibit 17.
3
çeq.,Rebelow, for a discussionof the U.S. para. 1.75, L
"challenges".internationaldistress frequency (121.5 MHz), he heard no
challengesL. On 3 March 1989, an Iranian cargo flight en
route £rom Bandar Abbas to Dubai received a warning over the
2
UHF frequency (243 MHz) through theBandar Abbas tower .
Another Iran Air flight (IR 301) en route £rom Tehran to
Kish Island was challengedtwice, on 5 May 198g3 and again
on 5 June 1989, on 243 MHz as it came in to land at Kish
Island. Fortunately Kish Tower was monitoring243 MHz
(which civilian aircraftcannot hear) and relayed the
challenge -o IR 301, thus preventing another potential
-4 ..
catastrophe .
1.54 On dozens of occasions £rom 1984 onwards
military aircraft of the Islamic Republic werealso ,
challenged by U.S. naval forces. Each timethe Islamic
Republic made a protest to the United States through its
intërests section atthe Embassy of theDemocratic and
1 -ee, the protest made by telex to the President of
ICA0 Council on 17 April 1989 by the Administrator of
the Islamic Republic'sCivil Aviation Organization. A
copy of this telex is attached at Exhibit 18.
2 A copy of the IslamicRepublic's protest at this
incident holding theU.S. Government "fully
accountable for the consequences ofsuch acts" is
attached at Exhibit 19. ..
3
-bid.
4 -ee, the protest made by telex on 31 July 1989, a
copy of which is attached at Exhibit 20.Popular Republicof Algeria 1. It is important to note that
on every occasion the Iranian aircraft took immediate steps
to keep clear of the U.S. forces, that no hostile intent was
ever shown by its aircraft, and that no attackwas ever made
L
on a U.S. warship . As a matter of course, U.S. commercial
vessels were never attacked.
1.55 To add to the confusion, U.S. warnings
were often unintelligible:aircraft being challenged would
simply not know whether they were the ones-..ing contacted,
as for example in the Gulf Air incident on 3 ~ugÙst 1988
noted above. The aviation journal FliqhtInternational made
the followingreport:
"British airline pilots have told Fliqht that
radio interrogationin the Gulf by US warships
is confusing. Typically, US warshipswill say
'Aircraft at 20,000 Et, range 15 n.m., bearing
310°; this is US warshipystate your
nationality andintentions'. This is ambiguous,
as the aircraft being asked does not know where
the ship is, and so may not realise the message
is addressed to him3.'
1 Copies of these protests are attached at Exhibit 21.
2
paras. 1.106-1.109,below.
3 Fliqht International, 16 July 1988, p. 8 (copy
attached at Exhibit 22). Frequency 121.5 MHz, the
international distress freuuencv,was also often used
as a "chat" frequency in the ~eisian Gulf. Indeed, a
British airlinepilot familiar with the region
observed that on the very day IR 655,was shot down,
"an open microphone was placed in front of a
commercial radio and was for some time broadcasting
Wimbledon tennis match commentarieson 121.5"; S. 1.56 The conclusionsof the ICAO Report bear
this out. Not only did the Report conclude that "(t)he
presence and activities of naval forces in the Persian Gulf
area have caused numerous problems to international civil
aviation1", it also stated:
"Civil aviation requirements such as airways,
standard approach and departure procedures,and
the fixed tracks used by helicopters to oil rigs
were not a considerationin warship positioning.
This resulted inwarships challenging civil
aircraft often in critical phases of flight,
i.e. during approach to land and during initial
climb. In the absence of a clear method of
addressing challengedcivil aircraft, such
challenges were,on occasion, mistaken by pilots
to whom the challenge was not addressed, causing
additional confusionand danger2. '
1.57 It is highly relevant that the Defense
Department itself has condemned its own warnings as unclear.
As stated in the Department ofDefense Report:
"The,currentverbal warnings issued by CJTFME
(Commander JointTask Force Middle East) units
(&, the Vincennes) do not clearly identify
exactly whichaircraft the ship is attemptinq to
contact5."
1 ICAO Report, para. 2.3.1.
2
Ibid., para. 2.3.2.
3 Defense Department Report, p. E-18 (emphasisadded).The only thing that the ICA0 Report and the Defense
Department Reportfailed to mention was that U.S. warships
had no right to issue such challenges in the first place 1.
3. The USS Vincennes
1.58 Against thisbackdrop of general
interferencein the Persian Gulf, the United States
dispatched the Vincennes tojoin its Middle EastTask Force
in late May 1988.
1.59 The guided missile cruiser Vincennes is
one of the most technologically advanced ships in the U.S.
Navy. It is equipped with state-of-the-artdetection
devices and armaments. At its heart lies the highly-touted
AEGIS combat system, whichhas been described as "the most
advanced shipboard battle managemens tystem in the U.S.
~av~'", but which was new and largely untestedat the time.
1.60 The AEGIS system is supposed to be capable
of detecting, tracking and targeting hundreds of targets
..
1 -ee, para. 1.75, below.
L
Aviation Week & Space Technoloqy, 11 July 1988, p.
19. Çee, Exhibit 16. simultaneouslyout to ranges in excess of 250 nautical
milesL. This has been confirmed not only in the industry
press, but also by Captain George Gee, the Director of the
U.S. Navy's Surface Combat SystemsDivision. In testimony
before the U.S. Senate, Captain Gee confirmed that rhe crew
on board a ship like the Vincennescan sort out "50, 60, 70,
100 'aircraft ata time when they are operating normally2".
He went on to boast thatas part of training the Navy
routinely ran simulated raida sgainst the Vincennes
involving 30 or 40 aircraft in the most intense environments
3
that it could replicate . Given these capabilities,there
would seem little doubt that the Vincennes could properly
have dealt with oneplane.
1.61 The information gatheredby the AEGIS
system is linked tonumerous display consoles inthe Combat
InformationCenter (CIC) on the ship. These consoles not
only display the identificationcode of any plane (in this
1 Aviation Week & Space Technoloqy, 11 July 1988, p.
19. g, Exhibit 16. -ee alsoICA0 Report, para.1.16.1.3
- for 457 km range.
L Senate Hearinqs,p. 28. Çee, Exhibit 7.
3
Ibid. As shall be seen, at the time IR 655 was shot
down, the Vincennes was only tracking one aircraft -
IR 655. Priorto the incident,the AEGIS systemhad
and which identifiediitself to be a non-threat.awaycase they correctly showedthroughout the incident that the
Airbus was squawking the Mode III identification signal
6760), they also show in simple figuresthat are updated
every few seconds the altitude and the speed of an aircraft.
These are the two elementswhich the Vincennes crew
allegedly "misread"on their consoles1. Although the
equipment itself is sophisticated,the informationit
produces is clear and simple. It does not need interpreting
and it is inconceivablethat it could be misread.
1.62 A telling descriptionof the Vincennes and
the attitude on board has been provided by Commander David
Carlson, the Commander of the US$ Sides, an American guided
missile frigate which was operating in tandemwith the
Vincennes in the Persian Gulf on the day of theincidentL.
Writing in the September 1989 issue of Proceedinqs - a
magazine publiihed by the U.S. Naval Institute - Commander
Carlson said:
"Having watchedthe performance of the Vincennes
for a month before the incident,my impression
was clearly that an atmosphere of restraintwas
not her long sui.t. Her actions appeared to be
1 g, paras. 1.86-1.88,below.
L
As will be discussedbelow, the,Sides correctly
evaluated IR 655 as a commercial flight. consistentlyaggressive,and had become a topic
of wardroom conversation... 'Robo Cruiser' was
the unamusing nicknarnethat someone jokingly
came up with for her, and it stuck. My guess
was that the crewof the Vincennes felt a
need to prove the viability of Aegis (the new
highly advanced weapon systerncarried aboardthe
ship) in the PersianGulf, and that they
hànkered foran opportunity to show their
stuffl."
1.63 This description is not £rom a Hollywood
film script: it is the straightforward opinion of the one
man perhaps best placed to put the Vincennes' actions in
their properperspective. No doubt the U.S..Navy did
2
"hanker" fora chance to experiment with its new weapons .
To do so against a civilian airliner thereby murdering290
innocent people was not only irresponsible and illegal; it
was unconscionable.
1.64 There is only one conclusion that can be
drawn £rom these facts: even beforethe crew of the
1
Proceedinqs, September1989, p. -88-(acopy is
attached at Exhibit 23).
2 The Soviet Union described the U.S. fleet as "trigger
happy". Notingalso that the U.S. claim that its
officers had misread the radar were "strange", it
confirmed its policy that a United Nations
peacekeepingforce should have been usedin the
;egion. -internation Herlald Tribune,5 July 1988,
D. 5. A co-- of this article is attached at
Êxhibit 24.Vincennes allegedly "misread" the data recorded by its AEGIS
system and fired the missiles whichdowned theplane, it is
clear that the Vincennes was lookingfor an opportunity to
use its force. Ithad been predisposed to treat the
Islamic Republicas hostile and was orderedto'station
itself and hover in or just outside the Islamic Republic's
territorialwaters. Not only was this provocative,it was
also in violationof the Islamic Republic's sovereignty
since the U.S. warships did not obtain the prior
authorizationof the Islamic Republicrequired under the .
Executive ~e~ulationto the 1934 Act concerning thepassage
1
of warships in Iranian waters . Moreover, it transgressed
the rules relating to innocent passage under international
law, in particularArticle 19, paragraphs 2(b) and (e) of
the 1982 Conventionon the Law of the Sea which provide
that passage is not innocent if a vesse1 exercises or
practices withweapons of any kindor if it engages in the
launching, landing or taking on board of any,aircraft. In
so acting, the United States was clearly looking for a
chance to use force against the Islamic Republic. It was
this attitude whichled to the southboundtrack out of
Bandar Abbas on the morning of 3 July 1988 (IR655) being
labelled by the crew
1 -ee, para. 1.11,above, and Exhibit 5.of the Vincennes from the moment ot fake-off as "Unknown-
Assumed ~nem~l".
D. The Shootinq Down of IR 655
1. Initial Staqesof the Fliqht
1.65 This Memorial has already described the
details of IR 655's flight on 3 July 1988, including its
communications withair traffic control centres. Because,
despite considerable efforts,IR 655"s "black box" was never
found, it is now appropriate toconsider the same events
£rom the point of.view of the U.S. warships, particularly
the Vincennes,during the same period.
1.66 On the morning of 3 July 1988, the United
States had positioned three powerful warships inside the
Islamic Republic's territorial waters in the vicinity of
airway A59. These were the Vincennes, the çideç and the
Elmer Montqomery,an anti-'submarine frigate.
1.67 According tothe United States, at
approximately0647 the Vincennes picked up IR 655 on its .
1 Defense DepartmentReport, p. E-31.- - - 48 -
radar at a distance of some 47 nautical miles. This was
just after take-off. One minute later, the Sides also
1
picked up IR 655 on its radar .
1.68 At the same time, the Vincennes was
tracking one other aircraft. This was an Iranian P-3 which
was detected some 62 nautical miles northwest of the
2
Vincennes at 0647 . It is significantto note that when the
Vincennes first challengedthe P-3, it specifically
identified it as a P-3 even though the plane was not
squawking any'identificationsignal 3. This shows that the
Vincennes was capableof differentiatingbetween different
types of aircraft withoutthe need for an identification
signal and, given the fact that theAEGIS system had a range
of 250 nautical miles, that such identification couldbe
made over the Iranian mainland, includingover the route IR
655 was flying when it made the fitst leg of its trip, £rom
4
Tehran to Bandar Abbas .
-
1
Defense DepartmentReport, p. E-8.
2
ICAO Report, Appendix A, p. A-3.
3 -Ie ICAO Report, Appendix B, p. B-17. At page E-33
of the Defense DepartmentReport the United States
admits that the P-3 was "non-squawking".
4 -ee, para. 1.60, above, and para. 4.24, below. 1.69 In any event, the Vincennesquickly
determined that the P-3 was not a threat since, in the words
of the Defense Department Report, it was on a "routine
maritime patroll". As a result, the enormous capacity of
the ship's AEGIS system and its entire crew had only one
aircraft to deal with - IR 655. As already noted,the
information£rom the radar consoles was simple toread - it
showed the speed,the altitude and the commercialcode of IR
655.
1.70 As soon as IR 655 was detected, the AEGIS
system determined that it was transmitting a normal civilian
transponder code - Mode III 67602. At no time did the
system everdetect anyother emission coming from IR 655.
Some crew members claimed to have seen a Mode II - 1100
responseat 0650 3. The DefenseDepartmentReport, however,
admitted that this Mode II response never reappeared,and in
fact it was not recordedanywhere in the ship'sdata system.
In short, the AEGISsystem never picked up a Mode II
response which might have been associated with a military
1 Defense DepartmentReport, p. E-7.
L
m., pp. E-30 to E-31.
3
m., p. E-35. Allegedly this odwas associated
with Iranianmilitary aircraft.aircraft. As confirmed by the Defen5e Department Report,
based on the data tapesof the informationstored inthe
AEGIS system: "Iran Air Flight 655 was not squawking Mode II
- 1100, but squawked Mode III -6760 durinqthe entire
fliqhtl."
1.71 Despite this clear evidence of the
commercial nature of theaircraft, two of the Vincennes'
senior officers in the Combat Information Centre - the
Tactical InformationCoordinatorand the "Golf Whisky" (the
officer who was responsiblefor managing the air picture) -
2
allegedly heard the plane identifiedas an F-14 . The
Defense Department Reportthen says the following about what
developed:
"From that moment on, the Anti-Air ~arfare
Coordinator's (AAWC) organization,most
especially the Tactical InformationCoordinator
(TIC), ... and the Golf Whisky (ForceAnti-Air
incoming aircraft was an F-14, despite the fact
that the Mode II IFF signal did not reappear and
the ship's SPY;1 Radar System only held Mode III
67603."
1 Defense Department Report,p. E-51 (emphasisadded).
L Ibid., p. E-33.
3 W., p. E-59.There was absolutelyno basis for such a "conviction". To
the contrary, information derived from al1 the ship's
computers as well as the commercialairline schedule showed
the plane as a commercial flight. IR 655's communications
on open radio channels wouldalso have shown this to be the
case.
1.72 The Department ofDefense Reportasserts
that at 0648 - one minute after IR 655's detection - the
Identification Supervisor of the Vincennes consultedthe
commercial air schedulethat was available in the Combat
Information Centre. The Report States that this schedule
was reviewedby the Vincennes' decision-making personnel "on
a regular basisprior to the engagement1". If such
personnel did consult the schedule, they di so at a time
when IR 655 was squawking a Mode III code, was on schedule,
and was climbing withinthe ordinary aircorridor, on a
morning when there was only one commercial flightdue to
depart £rom Bandar Abbas - IR 655.
1.73 The scheduled timeof departure £rom the
terminal was 0620, with actual take-off expected some10-15
minutes later. Due to a slight de1ay;the plane actually
took off at 0647. Nonetheless, this was very close to
1
Defense Department Report, p. E-33.schedule as was confirmedby the pilot's communication
shortly afterwardsto Tehran ACC that he was estimating
arriving at Dubai at 0715. In any event, on the day of the
incident, three U.S. warships had been in the area al1
morning tracking al1 aircraft within several hundred miles.
Their familiaritywith the commercialairline schedule would
have made them well aware that IR 655 had not yet flown
over. Thus, any attempt to suggest that theprecise
overflight timeof IR 655 could not be identifiedfrom the
schedule iswrong and irrelevant. Identifying theplane as
IR 655 should have been simple given that, in the words of
the ICAO ~eport,' "the Aegis systemrecordeda flight profile
consistent with anormal climb profile of an Airbus ~300~".
1.74 It was also at 0648 that the USS Sides
trained her weapons fire control radar on the flightas a
2
precautionary measure . This step is known as
"illuminating"a target, whichmeans that the targethas
been locked inby radar thatthen acts as the guidance
system for any missile subsequentlylaunched. Despite being
illuminated,IR 655 showed no reaction. It neither changed
course nor altered its normal climbpattern.. According to
J. ICAO Report, para. 3.1.26..
2
u., Appendix A,p. A-4.the CommandingOfficer of the çideç, "this was most unusual"
because.obviouslyan attacking aircraftwould have been
expected to start evasive manoeuvres 1. This fact provided
still further evidence that the plane was not a military
aircraft andthat it had no hostile intent.
2. theeSidesChallenqes" by the Vincennesand
1.75 At 0649:39, the Vincennes allegedlyissued
2
its first challenge to IR 655 asking it to identify itself .
This challengewas sent over themilitary frequency 243 MHz
which commercial aircraftsuch as IR 655 are not equipped to
hear and to which they therefore obviouslycannot respond.
The ICAO Report and the Defense DepartmenR teport variously
refer to these communications as"challenges"or "warnings"
to IR 655. What is not statedin these Reports is that
there is no basis ineither aviation lawor practice
allowing "challenges"to be made to civil aircraft. The
whole idea of "challenges"1s so obviouslyoutside the
bounds of legality that it is not a concept recognized in
the vocabulary of internationalair law. There are rules of
interceptionfor intrudingaircraft and warningsthat can be
1 Carlson,=. &.,. p. 89. mi Exhibit 23.
2 ICA0 Report, Appendix A, p. A-5.promulgated onlyby ATC authorities in the event of serious
meteorologicalhazards; these are not "challenges"and they
are obviously not relevant here 1.
1.76 Despite the totally illegal and
unprecedented nature of these "challenges",the United
States seeks to justify its shooting downof IR 655 by
maintaining that the Vincennes and the Sides sent, in the
few minutes before thefiring, a total of eleven challenges
to IR 655 which went unanswered. Of these, seven were said
to have been addressed over the 243 MHz frequency, which
civilian aircraft could not monitor. The other four were
supposedly sentover the internationaldistress frequency,
121.5 MHz, which IR 655 could theoreticallyhave been
monitoring. Even as to these, however, the United States
has admitted that thewarnings were not clear and that IR
655 had good reason not to listen to them in any event.
1.77 It has to be pointed out that in nearly
every case where military forces have destroyed a civilian
aircraft, the responsible partyhas tried to justify its
action on the ground that theaircraft failed to heed
warnings. The Soviet Union advanced thefailure of
~ee, paras. 3.37-3.39,below.intruding aircraftto follow instructionsas justification
for firing in the several incidents in which it was involved
between'l952and 1978, and did the same in the shootingdown
of KAL 007 in 1983. The Bulgarian Government also claimed
that the.El Al aircraft involvedin the 1955 incident
refused to comply with instructions to land. Similarly,
Israel maintainedthat theLibyan aircraft involved in the
21 February 1973 incident inthe Sinai desert refused to
1 -
heed repeated warnings . These justificationsby the
countries involved werenot on the whole recognizedby the
world community, especially theUnited States, as excusing
responsibility forthe incident.
1.78 The Islamic Republic categoricallydenies
that any of the 121.5 MHz messages were actually sent to IR
655 or, if they were, that they were capable of being heard
or understood. The only source ofevidence of the alleged
challenges cornes£rom the Defense Department's ownreport
and, as the following picturethat emerges from the records
shows, must be viewed with gteat caution.
1.79 After the incident, the Commander of the
U.S. Middle East Task Force reportedly requestedthe allied
1 See, W. T. Hhghes, "Aerial ~ntrusionsby Civil
Airliners and the Use of Force",45 Journal of Air
Law and Commerce (1980),pp. 600, et seq.control werelistening to 121.5 MHz throughoutthe relevant
period, but they too reported thatno messages were
recordedL. Neither Abu Dhabi nor Oman ACCs reported
hearing anysuch messages. Given that two of the threo
neighbouring warships and of theground stations heard
no challenges to IR 655 over 121.5 MHz, there is a serious
question whether they were actuallysent or, if sent,
whether they were communicatedin a way that could be heard
by IR 655. Onlyone allied naval vessel,the HMS Beaver,
reported hearingthem.
1.81 Even if the challengeshad been audible,
the United States concedes that theywere so obscure as to
be practically unintelligible to an approaching aircraft.
To cite again £rom the conclusions ofthe Defense
Department'sinvestigation:
"Current verbal warnings and challenges
used by JTFME units are ambiguous because
they do not clearly identify to pilots
exactly which aircraft the ship is
attempting to contact2."
1 ICA0 Report, para. 2.10.6.
2
Defense Department Report, p. E-53; çee, also, p. E-
18.and ground speed arenot necessarily the same and
geographical coordinateswould have been almost impossible
to decipher at short notice. Moreover, bearing and range
information was of little or no assistance to the pilot
because the aircraft couldnot see the ship issuing the
challenge and thus would not know where and at what distance
that ship was. In particular, range expressedin yards
1
would be confusing . In short-
"It is uncertain whether the flight crew
would have been able to rapidly and
reliably identifyTheir flight as the
subject of these challengesand warnings2."
1.84 The ICAO Report notesat paragraph 2.10.18
that only thelast of the four challengesmade on the
international distress frequency identifiedIR 655 with
sufficient detail to permit the pilot, if he had heard the
\
challenge, to realize that his plane wasbeing addressed.
However, the Report fails to mention that this warning was
made only thirty-nine seconds.priorto the destructionof
the plane, and that during eleven of those thirty-nine
seconds, IR 655 was in communicationwith Bandar Abbas.
1 ICAO Report, paras. 2.10.10 to 2.10.17 and 3.1.22.
2
W., para. 3.1.22.Based on the foregoing, it can be concluded that none of the
alleged challenges to IR 655 from the Vincennes and Sides
were either received or understood in time by the flight
crew.
3. IR 655 Was Not Misidentifiedbv the U.S.
Warships
1.85 According to the Defense Department
Report, at 0651 the Vincennes' Combat Information Officer
jumped up and said, "possibleCOMAIR" (commercial airliner) --
to the Commanding Officer 1. This assessment was apparently
based on the fact that IR 655 was seen to be slowly
ascending £rom 8,000 to 9,000 feet and was squawkingMode
III just as would have been expectedof a commercial
2
aircraft . The Commanding Officer acknowledged this report
by raising his handbut did nothingabout it and
----
subsequently proceededto fire on the aircraft 3.
1.86 The Defen~e~DepartmentReport contains
large deletionsin its discussion of this time period, which
1 Defense DepartmentReport, p. E-37; ICAO Report,
Appendix A, p. A-8.
2 Ibid. Çee, ICA0 Report, Appendix A, pp. A-8 and A-
10, Çee, also, House Hearinqs, p. 183 (Exhibit 10).
,
3
Ibid.gives the appearance that the full story has not been made
public. General Crist and others have tried toportray a
state of confusion in the commandcentre of the Vincennes at
this time, with contradictoryand incorrect information
being passed from crew members tothe Commanding Officer 1.
In particular,it is alleged that certain reports were made
by crew members that IR 655 was speedingup, descending and
veering towards the Vincennes. The United States is forced
to admit howeverthat none of the ship's technical equipment
revealed anysuch movements by the approachingaircraft. IR
655 was clearly ascending,and,was in no way veering towards
the Vincennes. Realizing that alleqationsabout IR 655
showing hostile intent are thus totally implausible,the
United States was forced to come up with a psychological
theory to explain the total lack of correlationbetween what
the crew members of the Vincennes allegedly thoughtthey saw
and the information actually portrayed on the consoles in
front of them, which wasrecorded and stored in the AEGIS
system data tapes. This theory, given thecolourful name
"scenario fulfilment",is simply not credible, and even if
it were, it would not excuse the United States' actions.
1 See for example, pp. E-59, et ses., of the Defense
DepartmentReport. 1.87 First, it is not possible to misread the
informationon the radarconsoles. Theyshow information
about an approachingplane in the simplestform. In this
case, they unmistakablyshowed the plane as ascending at a
steady speed. Moreover, it is apparent £rom the diagram on
page E-32 of the Defense Department Reportthat there were
at least a dozen crew members in the Combat Information
Centre with consolesin front of each of them,apart from the large
screen displays' The U.S. position assumesthat al1 of
these crew members simultaneously misread theinformation
---
diçprayed in front of them. Second, there appears to be no
evidence, apart£rom crew members' recollections of reports
of IR 655 descending,that the consoles werein fact
misread. Third, the Vincennes' owntransc,ripts of the
alleged "challenges" made to IR 655 reveal that it was fully
aware throughoutthe flight, right up until the moment the
.- missiles were fired,that thealtitude of the plane was
2
increasingand that its speed was approximately350 knots .
This informationwas correct and was consistent withthe
flight profileof an Airbus, but totally inconsistent with
the U.S. allegation that crew on the Vincennes thoughtthe
plane was diving and increasing speed inan attack profile.
1. On the day of the incident the Vincennes had 358 crew
members, including 24 officers. ICAO Report, para.1.16.1.3.
A. The transcriptsof the challingesare reproduced in
Appendix B of the ICAO Report. 1.88 The "scenariofulfilrnent" theory is Zlawed
in other respects. For example, it fails to explain why the
crew on the çides and the Montqomery did not treat IR 655 as
a threat. Moreover, it relies on the alleged state of
exhaustionof the crew members; yet they infact had freshly
arrived in the Persian Gulf and, at the time, had only one
plane to deal with when they had supposedlybeen trained to
handle hundreds. According to the Commanderoftthe m.,
they hankered for action, whichhardly suggests battle-
weariness and stress.
1.89 At the same time as the Combat Information
Officer on the Vincennes was suggesting that the plane was a
"possibleCOMAIR" (0651), several operators on the Sideç
also evaluated the flight as a commercial "Haj" flight on
its way to Saudi Arabia to pick up pilgrims. Two operators
reported this to the Tactical Action OfficerL. Two minutes
later, the Sides' Commanding Officer decided finallt yhat IR
655 was not a threat to his ship and turned his attention
2
elsewhere . Even the Defense ~e~artmentReport recordsthe
fact that IR 655 was identifiedas commercial. Despite this
ICA0 Report, Ap~endix A, p. A-7.
2 Ibid., p. A-9. The last challenge by the Sideç
correctly identified IR 655's commercial
identificationnumber.admission, it is intetestingto note that five paragraphs of
the Defense Department Report havebeen deleted at this
point1 .
1.90 On the Montqomery there was also no
detection of any electronic emission that would have
correlated IR 655 with an ~-14~~and the Montqomery did not
treat IR 655 as hostile. Standardprocedure must have
dictated that this information, availableboth to the
Montqomery and the Sides, be communicated immediatelyto the
Vincennes, which was in tactical control of the other ships
and with whom these ships were data-linkedand in constant
radio contact 3.
1.91 Such informationwas also availableto the
U.S. Middle East TaskForce through its own intelligence
sources. At 0650, the Vincennes had contacted the Task
Force informing them that it intended to engage an F-14.
"Golf Bravo" (the cal1 sign of the Task Force) told the
Vincennes towarn the aircraft*firstbefore firing. .The
1 Defense Department Report, pp. E-36 to E-37.
L ICAO Report, Appendix A, p. A-9.
3 The Italian warship Espero was apparently also data-
linked to the U.S. warships. ICA0 Report,
Appendix A, p. A-8.Defense DepartmentReport alleges that,despite al1 the
sophisticated intelligenceinformation it had available,
"(i)n the limited timeavailable, CJTFME (a, the Task
Force) could not verify the informationpassed by Us
~incennes'". Again, this is not'plausible. The United
States acknowledgesmonitoring movements at Bandar Abbas and
was clearly able to hear open radio communications from
planes on the runway. IR 655 had been in open radio
communication for over twentyminutes by this the. Such
informationcould have been checked and passed to the
~incennes in seconds. Thus, the Task Force Command must ..
have been aware of the target by the time theVincennes
fired, yet it failed to retract its authorization to fire.
4. The Firinq on the Plane
1.92 At 0654:22, a full three minutes afterthe
Vincennes and the çides had identified the planeas a
possible commercial flight,the Vincennes fired its first
missile followed immediatelyafterwards by a second. At
-
0654:43, IR 655 was hit. On impact, it was flying at an
altitude of 13,500 feet,maintaining a speed of 383 knots,
cruising well within the A59 corridor at a range of
approximately 10 nautical miles from the Vincennes and still
Defense DepartmentReport, p. E-36.squawking Mode III 6760: Itwas not veering inany way
towards the Vincennes in an attack profile.
1.93 Thus IR 655 was well outside the stated
limits of 5 nautical milesand 2000 feet within which,
according to the illegal U.S. NOTAM, a plane would have to
come before it would be at risk £rom U.S. "defensive"
measures1 . Moreover, the Captain of the Vincennes made no
attempt to cal1 for interceptionof IR 655 by U.S. military
aircraft operating in the Persian Gulf region, which would
have taken a matter of minutes, nor 'didhe attempt to £ire a
warning flare. In another reportedincident,a U.S. officer
waited until a real F-14 was at a range of 7 nautical miles
before firing a warning flare 2. No.çuch stepç were taken by
the Vincennes. Thus, even by the United States' own
standards, the action of the Vincennes was totally
unjustified.
1-94 Twenty-fiveminutes after it had destroyed
IR 655, and although the ~ontqomerywas apparentlyable to
1
-sec, para. 1.46, et Seq., above.
2 InternationalHerald Tribune, 9-10 July 1988. A copy
of this article is attached at Exhibit 25.see and give the position of the splashdownof the plane
(and thus presumably could see that it was not an F-14), the
Vincennes reported the destruction of an F-14 1. While the
Defense DepartmentReport gives a second-by-secondanalysis
of the events up to the destructionof the plane, no
information isgiven on what happenedin these subsequent
twenty-five minutes. The shooting down of an Iranian plane,
whether civilian or military, was surely not such an
. .
insignificantevent. It is also noted that neither the
Vincennes nor its other sister vessels assisted in any way
in rescue and.salvage operations after the crash, although
they were bound todo so for the most elementary
humanitarian reasons
1.95 IR 655 was hit at the approximate position
26O38'22" N; 56°01'24" E, and the wreckage splashed down at
26O37'45"N; 56O01' E, some 1.5 miles from Qeshm Island and
6.5 miles £rom Hangham lslandL - in other words in an area
which was well within the Islamic Republic's interna1
waters. The position of IR 655 at the time of firing of the
missile is shown on Fiqure 4, together with the positions of
I
ICA0 Report, Appendix A, pp. A-12 to A-13
2 u., Appendix A, p. A-12; Defense Department
Report, p. E-42.the threeU.S. warships al1 well within the Islamic
Republic's territorialwaters. Search and rescueoperations
were commenced but no survivors werefound. Despite
considerable efforts,the "black box" was not recovered most
pfobably because of the strongcurrents in the area.
E. U.S. Attempts to Deny Responsibility
1.96 Immediatelyafter the incident,the United
States embarked on a concerted effort to misinform the
public and denyresponsibility. In the first 'official
statement about theincident,President Reagannoted that
the airliner was heading directly towards the Vincennes
which fired "to protect itself against possibleattack".
Admiral William J. Crowe, Jr., Chairman of the U.S. Joint
Chiefs of Staff, also stated that the Vincennes "fired in
self-defense",alleging that the plane was "closingat high
speed" on the vincennesl.
In the folloeing days, various
false scenarios wereconjured up to buttress the United
States' plea that its warships had acted in self-defence.
1 The texts of the Reagan and Crowe statementsare set
out in the InternationalHerald Tribune, 4 July 1988.
A copy of this article is attached at Exhibit 26.the threeU.S. warships al1 well within the Islamic
Republic's territorialwaters. Search and rescueoperations
were commenced but no survivors werefound. Despite
considerable efforts,the "black box" was not recovered most
pfobably because of the strongcurrents in the area.
E. U.S. Attempts to Deny Responsibility
1.96 Immediatelyafter the incident,the United
States embarked on a concerted effort to misinform the
public and denyresponsibility. In the first 'official
statement about theincident,President Reagannoted that
the airliner was heading directly towards the Vincennes
which fired "to protect itself against possibleattack".
Admiral William J. Crowe, Jr., Chairman of the U.S. Joint
Chiefs of Staff, also stated that the Vincennes "fired in
self-defense",alleging that the plane was "closingat high
speed" on the vincennesl.
In the folloeing days, various
false scenarios wereconjured up to buttress the United
States' plea that its warships had acted in self-defence.
1 The texts of the Reagan and Crowe statementsare set
out in the InternationalHerald Tribune, 4 July 1988.
A copy of this article is attached at Exhibit 26.These included stories that an F-14 was "hiding"behind IR
655; that the plane was on asuicide mission or part of a
coordinated surfaceattack involvingIranian small boats;
that it was diving towards the Vincennes; that it was
squawking a Mode II code; that it was flying outside the
recognized aircorridor; and that itwas part of a series of
attacks that were planned againstthe United States over the
4th of July period. None of these accounts were in the
least bit accurate, as the United States subsequently
concededl .
1. The 'F-14 Theory" and the Alleqed ModeII
Response
1.97 The initial reportsfrom the Vincennes
claimed that an Iranian F-14 had been shot down. This
1 It is of interest to note that theCommittee on
Public Doublespeakof the National Council of
Teachers of Englishgave the U.S. Defense Department
first prize for 1988 for its report on the IR 655
incident.According to a United Press International
report, the Committee Chairman,William D. Lutz of
Rutgers University,noted that "(t)he language uSed
in the officia1 report and the languageused during
the press conferencewas filled with the doublespeak
of omission, distortion, contradictioa nnd
misdirection". He went on to note that the Report
itself censored "essential information" and lacked
"any original sourceinformation". See Kayhan
International, 21November 1988. A copy is attached
at Exhibit 27.version of events quicklybegan to be circulated by the
United States.
1.98 Much attention in the foreign press was
devoted to the rumour thatIR 655 was transmittinga Mode II
code and thus had to be a military plane. This theory even
found its way into Fliqht International. The headline
appearing in Fliqht Internationalon 16 July 1988 was
indicativeof the kind of informationbeing disseminated.It
read:
"US insists Iran~irbus had military squawk".
The article went on to report that:
"The Pentagon, afterexamining taped records of
the USS Vincennes Aegis weapon system, insists
that the Iran Air Airbus A300 shot down on July
3 was squawking a military transpondercode,
known as Mode 2. It was this that convinced the
Vincennes' captain, Capt. Will Rogers, that the
track was hostilel."
1.99 A Pentagon spokesman,Dan Howard, tried to
reinforce thistheory. When asked whether a Mode II
1 Fliqht International,16 July 1988,p. 8. Çee,
Exhibit 22.response could havecome from another planehiding behind
the Airbus or £rom a military planestill on the ground at
Bandar Abbas, Howard stated:
"The signal (Mode II) could not have come £rom
Bandar Abbas; it had to come from that box (the
small area in the sky theVincennes' radar was
watching), and there was only one thing in that
box - a single aircraftl."
He continued:
"If you're gettinga Mode 2 response £rom an
aircraft then you are talking about a military
aircraft. It doesn'tmatter what the numbe2s
are, it's an Iranianmilitary aircraft ... .
1.100 Admiral Crowe lent his weight to the
"hostile aircraft"story. On 11 July 1988, Aviation Week &
Space Technoloqyreported him as maintaining that when the
aircraft was hit it was bearing directly at the Vincennesat
a high speed of 450 knots and some 4-5 miles outside Che
normal commercialair corridor. ,He termed IR 655's route a
"threateningflight profile" which,when coupled with the
1 See, Exhibit 22 at p. 8
-
2
Ibid.plane's alleged Mode II transmission,led it to be
classified as "hostile" 1.
1.101 Al1 of this was manifestly false.As is
clear even£rom the transcriptsof the challenges allegedly
made to IR 655 'bythe Vincennes, the Vincennes itself was
fully aware at the time thatthe plane was ascending, was
flying at a speed of approximately 350knots, and was within
the air corridor. The only reasonwhy the plane was
perceived to have been headingdirectly at the Vincennes was
because the Vincennes had placed itself directly underneath
the A59 airway in the Islamic Republic's territorialsea.
Moreover, based on Figure 2 on page 22 of the ICA0 Report
and Fiqure 4 herein, it can be seen that if anything IR 655
was heading towards the Montqomery not the Vincennes, yet
the Montqomery treated it as a commercialaircraft.
1.102 The Pentagon also attributed importance
to the fact that the Vincennes had reported that the
aircraft had dived steeply£rom 9,000 to 7,000 feet just
before it was fired upon. When conflicting reports began to
emerge that the Sides had placed the aircraft at 12,000 feet
1 Aviation Week & Space Technoloqy,11 July 1988, pp.
17-18. Çee, Exhibit 16.and ascendinq, Defense Department officials tried tocover
up their embarrassmentby stressing that the çideç' radar
was less accurate than that of thevincennesL. This was
simply more disinformation. As already noted, even the
transcripts ofthe Vincehnes' challenges showthat it knew
2
that the plane had ascended £rom 7,000 feet to 10,000 feet .
1.103 Even if the plane had actually been anF-
14, it still would not have posed any genuine threat to the
Vincennes. This was acknowledgedin Aviation Week & Space
Technoloqy,which wrote that:
"A number of U.S. military and industry
officials ... questioned whether an F-14 posed a
çerious threat to the Vincennes. F-14A fighters
çold to Iran by the U.S. were equippedto carry
air-to-airmissiles and have limited surface
attack capabilities 3."
1.104 Confronted withthe suggestionthat an F-
14 attack against a surface shiw pas highly implausible, the
Pentagon was forced to seek evenmorefar-fetched
1 See, Exhibit 16 at p. 18; çee, also, Fliqht
International,16 July 1988, p. 8 (Exhibit 22).
2
ICA0 Report, Appendix B, p. B-16.
3 Aviation Week & Space Technoloqy,11 July 1988,,p. 16
(Exhibit16).explanations. Dr.Norman Friedman, aU.S. naval analyst,
came out with one such story which was seized upon by
Washington "hawks" as justificationfor theVincennes'
decision to shoot. Friedman argued that the plane - even if
it had been positively identified as an Airbus - still '
"would have madean effective ~amikazel". While recognizing
that the Islamic Republic had almost noanti-surface missile
capacity healso contended that an F-14 couldhave been
equipped with unguided iron bombsthat would have poseda
threat 2.
1.105 These arguments cannot be taken
seriously. According to Fliqht International:
"A US Navy Tomcat pilot has derided theanti-
ship suggestion,saying that hanging anti-ship
missiles on an F-14 would be an extremely
profile wouldnot be at medium-shilevel3."
I
Norman Friedman, "TheVincennes Incident", in
Proceedinqs[NavalReview, 1989,p. 76 (a copy of this
article is attachedat Exhibit 28).
2 -bid., p. 73. Even the Defense DepartmentReport
acknowledgesthat iron bombswould only have been a
threat at a range of 2 nauticalmiles. IR 655 was
shot down at a range of 10 nautical miles. Defense
Department Report, p. E-12.
3 Fliqht International,16 July 1988, p. 8 (Exhibit
-2)."No pilot in his right mind would attacka ship that way"
was the view of the Tomcat pilot.
1.106 The Commanding Officer ofthe Sides,
Commander Carlson, went on record in September1989 to rebut
the various "self defence"theoriesbeing advanced by the
United States, First, he explodedthe myth that Iran might
have been attempting a secret attack on the Vincennes using
a military plane disguised as a civilian aircraft flying in
the commercial air corridor. Commander Carlson wrote:
"My experiencewas that the conduct of Iranian
incident was pointedly mnon-threatening; They
were direct and professional in their
communications,and in each instance left no
doubt concerning their intentions1.'
-1.107 Next, he took on the "hostileF-14"
scenario. Pleading to "spare us more fog", Commander
Carlson askedwhy an F-14 would bother to energize its IFF
systernto squawk Mode II (a military signal) if it was
trying to disguise its presence for a sneak attack. He also
pointed out that one of the reasons why the çides had
classified IR 655 as a non-threat wasbecause of the "lack
1 Carlson, OJ. &., p. 87 (Exhibit23).of any significant known F-14 antisurface warfar(ASUW)
1.108 Finally, he discredited theidea that IR
655 might have beenpart of a wider attackinvolving surface
units. This theory will be taken up in the next section.
1.109 The U.S. Defense Departmentitself has
confirmed CommanderCarlson's assessment. In particular, it
has shown that the United States was well aware that there
was absolutelyno precedent for an air attack on aU.S.
warship by the Islamic Republic,and that on every other
occasion whenU.S. forces had challenged the Islamic
Republic's aircraft,for safety reasons theaircraft had
taken steps to avoid theU.S. ships2. The U.S. Assistant.
Secretary ofDefense statedon 19 May 1987 that "Iran has
been careful to avoid confrontations withU.S. flag vessels
1 Carlson, x. a., p. 89 (Exhibit23).
2
-ee, para. 1.54,above. After each incidentthe
the challengeand a notice of the protest was givenut
to the SecurityCouncil.when U.S. N~V~ vessels have been in the vicinityl". He went
on to express the Departmentof Defense's view on the
Islamic Republic's capacityto launch such an attack:
"Iran lacks the sophisticatedaircraft and
weaponry used by Iraq in the mistaken attack on
the USS stark2."
2. The "CoordinatedAttack" Theory
1.110 The United States has claim>d that on the
-
morning of 3 July 1988, just as IR 655 took off, a nùmber of
Iranian small boats of the BostonWhaler or Boghammer type
attacked its warships. According to this version of events,
having rnisidentified IR 655 as an F-14 immediately after
. -
earlv demonstratedin the Dast "a dëcided intent to
avoid Âmerican warships"and-that as a result the
Department of Defense was "confidentthat we were not
subjectingour forces to imminent hostilities". See
Exhibit 8.
Department of State Bulletin,July 1987, p. 60
(Exhibit 29).take-off, the Vincennes then became convinced that the plane
was joining in the attack by the small boats 1.
1.111 Such a hypothesis hasno basis in fact
and is absurd on its face. The thought that a type of
Boston Whaler, which is ordinarily used for recreational
sports, or a Boghammer, would attack three of the United
States' mostpowerful warships,including a guidedmissile
cruiser and a guided missile frigate,is nonsensical. As
the CommandingOfficer of the çideç remarked, the idea of
such an attack-
,... just does not add up. The harder you look
at it, the more absurd the conceptseems that a
few speedboatswould be taking on the Vincennes
1
Defense Department Report, pp. E-47 to E-49.
Accordinq to the ICAO Report, there were fïve factors
which initially led the Vincennes to classify the IR
655 as a hostile F-14: (i) the fact that it had taken
off £rom a joint civilian/militaryairfield; (ii) the
Abbas was used todeploy F-14sand the thought thatr
there might be hostile activitiesover the 4th of
July; (iii) the alleged Mode II response from the
flight; (iv) the fact that IR 655's flight time could
not be correlatedto the civilian schedule; and (v)
the possibilitythat it might be used to assist
surface engagements. (ICAO Report, para. 3.1.23.)
None of these reasons have.any validity. The first
and second reaçons,even if true, provide no excuse
for downing a commercialaircraft. The third and
fourth reasons havealready beencompletely
disproved. The fifth is taken up in this section. and the Elmer Montqomery with any notion of
successl .
1.112 What actuallyhappened was that at 0412
on the morning of 3 July 1988, the Vincennes sent one of its
helicopters into the Islamic Republic'sinterna1 waters to
"observe" a number of small boats on coastal patrol that
dayL. These boats were operating routinely in the Persian
Gulf within a short distance of the Iranian shore. Two hours
later, the helicopterwas still intruding intothe Islamic
Republic's territory3,and it was allegedlywarned off by
the small boats. According to the Defense ~epartment
Report, the helicopter saw "several small flashes and puffs
of smoke" and left the scene 4.
1.113 Both the Defense Department Reportand
Admiral Kelly in his testimony beforethe U.S. House of
1
Carlson, z. &., p. 92 (Exhibit 23).
L ICA0 Report, Appendix A, p. A-1.
3 Ibid.' The approximate positionsof the Vincennes'
helicopter and the three U.S. warships, just prior to
the incident with the small boats,at 0610-0615, are
shown on Fiq. 5. These positions are based on the
coordinatesand distances givenin Appendix A of the
ICAO Report .
Defense Department Report, p. E-27.Representativeshave tried tocreate the impressionthat the
small boats were in the processof attacking neutral
shipping when the U.S. forces, led by the helicopter,
1
intervened . This story iS al~o false. In fact, no
merchant vesse1 was challengedfor search and visit purposes
on that day andthe Defense Department Reportspecifically
admits that "no merchant vessels requestedassistance"
during the relevant period 2. Consequently,there was
absolutely no justificationfor theVincennes' helicopter to
have flown intoa-eas over the Islamic Republic's interna1
waters that day, or to'have provoked theIslamic Republic's
surface patrols.
1.114 Havingsent a helicopter into the Islamic
Republic's territory,and on the basis of a few warning
shots allegedly fired at the helicopter,both the Vincennes
and the ~otif~omery proceeded north"at high speed" to
intercept thepatrols 3 . The Vincennes opened fire first 4.
1
Defense Department Report, p. E-7; House ~earinq~,p.
87 (Exhibit10).
L DeEense Department Report,p. E-26. ..
3 -bid., p. E-7.
4 Carlson, z. c., p. 92 (Exhibit23). Çee, also,
ICA0 Report, Appendix A, p. A-2.
,Incredibly,even under the United States" version of events
at no time did the small boats come closer than six
kilometres (6,500-6,700 yards) to the U.S. warships 1, and
none of the warships reported any damage from the
engagement 2. Nonetheless,the U.S. forces were still eager
to press the attack.
1.115 How did the Commanding Officerof the
Sides view these events? Observing that the numberof
patrol boats involved in the incident "grew, like
Pinocchio' s nose" with each new U.S. apologia, commander
Carlson concluded that thecoordinatedattack theory"does
not pgss a reasonablenesstest3". First, he noted that it
was the Vincennes'helicopterwhich initiallyprovoked the
incident. In Commander Carlson's words, "the Vincennes'
helicopter was just too damned closeto the boats for its
own good" (it was intruding into the Islamic Republic's
interna1 waters) and "it waç a nuisance to the (Iranian)
boats4". Second, he confirmed that it was theVincennes
I Senate Hearinqs, p. 47 (Exhibit 7).
2
- rd P. 51.
3 Carlson, OJ. G., pp. 87-88 (~xhibit 23).
4
u., p. 92.which fired first. Third, he suggested that thesmall boats
1
never presented a threatto the U.S. ships . His final
observationas to what he sarcasticallytermed "this great
surface battle" was that:
"The Vincennes sawan opportunity for action,
and pressed hard for Commander Middle East Force
to give permission to fire. Deescalationwent
out the window. Equipment failed. The 'fog'
rolled in.. .zt'.
1.116 It should be noted thatthere were no
hostilities in the Persian Gulf on 3 July 1988, and the
route of IR 655 was well outside of any declaredwar zone
between Iran and 'Iraq. This is confkrped by the fact that
route A59 was being used continuouslyby commercial carriers
before and on the day of the incident, as hasbeen shown
above, and has continuedto be used since the incident.
1.117 The Islamic ~e~iblic'scivil air
authorities obviously were well aware of the declared war
zone in and above the northwest of the Persian Gulf, and,
like other airlines, avoided the area. Moreover, in the
1
Carlson, 9. cit., p. 92 (Exhibit23).
2 m. (emphasisin original).interest of ensuring passenger safety, the IslamicRepublic
had initiated a "red alert" procedure wherebyair traffic
systems in the Islamic Republic were notified of al1
military activities which posed a potential safetyhazard to
1
civil aircraft . when a "red alert" status was in effect,
no air traffic clearanceswould be given and aircraft which
2
had already taken off would be recalled . However, this
"red alert" procedure was applied to deal with attacks by
Iraq, not the United States, which was supposedto be a
neutral State whose solerole was allegedly to protect
neutral shipping and whowould thus not be expect&d to
attack civilian aircraft in any circumstances.
1.118 On 3 July 1988, there was no "red alert"
in effect and the air traffic control units at Tehran and
Bandar Abbas were unaware of any activities at sea 3. Even
if they had been aware that a U.S. helicopter had been
warned out of the Islamic Republic's interna1 waters early
that morning, this would hardly have been groundsfor a "red
alert". With regard tothe en~uin~~skirrniss hupposedly
1 ICA0 Report, para. 2.5.1.
2 Ibid.
3
Ibid.created whe'hthe Vincennes decided to steam northwards into
the Islamic Republic's territorialwaters directly
underneath route A59, this occurred coincidentally with the
flight of IR 655. This meant that civil air authorities
would have had no tirneto declare a "red alert" even'if the
situation had warranted it. In fact, however, there was no
apparent safety hazard to civil aircraft. IR 655 was where
it was supposedto be on 3 July 1988. It was the Vincennes
which, by its own acts of provocation,was where it had no
business to be. PART II
JURISDICTION
2.01 This Part establishesthe basis of the
Court's jurisdictionin this case. As the Islamic
Republic's Application made clear, jurisdictionexists under
Article 36(1) of the Statute of the Court. Article84 of
the Chicago Conventionprovides for .the appellate
jurisdictionof the Court, while Article14(1) of the
Montreal Conventionprovides an independent andoriginal
basis of jurisdiction 1 . In this Mernorial, the Islamic
Republic also invokes provisions of the 1955 Treatyof
Amity, EconomicRelatioris, and ConsularRights between Iran
and the United States 2 . Article XXI(1) of this Treaty
provides an independent basis of jurisdictio nor the Court.
2.02 Each of these bases of jurisdiction will
be discussed below. Before doingso, it is necessary to
review the procedural background to the dispute beforeICAO.
Insofar as this case involvesan appeal under Article 84 of
the Chicago Convention,the decision taken by the ICA0
1 The Islamic Republicand the United Statesare
,parties to both Conventions.
2
A copy of the Treaty ofAmity is attached.at
Exhibit 3.Council provides the basis for the appellate jurisdictionof
the Court.
A. The Procedural Backqroundto the Dispute:
ProceedinqsBefore the ICAO Council
1. Initiatives of the IslamicRepublic before
2.03 Immediatelyafter theincident, the
Içlamic Republic took steps to raise the dispute before the
ICAO Council. On 3July 1988, the'Islamic Republic's Vice-
Minister of Roads and Transportationand Administratorof
its Civil Aviation Organization sent a telex to the
President of the Council informing himof the attack on IR
655 and requesting theCouncil to take effective measuresin
1
condemning the United States . This was followed by a
second telex £rom the Vice-Ministeron the same day inviting
the President and Members of the Council together with their
experts to visit and study the incident 2.
-
2.04 On the same day, the Minister of Foreign
Affairs of the Islamic Republic wroteto the Secretary-
1 A copy of this telex is attached at Exhibit 30.
2
A copy of this telex is attached at Exhibit 31.General of the United Nations expressing the Islamic
Republic's outrage at the incident. He drew attentionto
the fact that the Islamic Republichad already warned the
internationalcommunity of the danger to civil aviation
caused by the United States' presence in the Persian Gulf.
He went on to state that "(t)his undoubtedlypremeditated
act of aggression by the United States against thecivilian
airliner of the Islamic Republic of Iran is in clear
violation of al1 internationalrules and principles,
particularlyArticles 1 and 2 of the 1944 Chicago
Convention, andseriously threatenscivilian aviationin the
region". He called on the Secretary-Generalto "mobilize
pertinent international bodies",and to conduct an on-site
1
investigationof the atrocity .
2.05 As has been seen, the immediate reaction
£rom the United States was that its warships had acted
properly and that the United States bore no blameL. Even
when the United States'initial versionof the "facts" was
proved to be wrong, its position as to legal responsibility
remained unchanged. From the outset, therefore,it was
clear that a dispute between the Islamic Republic an dhe
United States had emerged.
1 A copy of this letter is attached at Exhibit 32.
2
-ee, paras. 1.96, et seq., above. 2.06 On 4 July 1988, the President of the ICAO
Council replied to the Vice-Minister'stelexes. In his
reply, the President expressed hiscondolences tothe
Government of the Islamic Republicas well as to the
families of the victims,and indicatedthat he wouldbe
taking steps to convene an ExtraordinarySession of the
Council to consider the requests of the Islamic Republic.
He also added the following important statement, whichthe
. .
Islamic Republictook as reflectingan underlying principle
of ICAO which would be applied in relationto the United
States' action:
"The policy of ICAO is aimed at the safeguarding
of safetyand regularityof civil flights along
the approved ATSroutes and is strongly opposed
to the use of weapons against civil aircraftl."
2.07 In the light ofthe appalling nature of
the event, this expressionof ICAO's policy gave the Islamic
Republic some measureof reassurancethat the United States
would be condemned by the Council for.violatingsuch a
fundamental principleof internationallaw and held
accountable for al1 of the consequences,including full
reparation, flowingtherefrom. Regrettably,the Council
failed to render the appropriate decision,thus
1
A copy of this telex is attached at Exhibit 33.precipitatingthe need for an appeal under Article 84 of the
Chicago Convention.
2.08 On 5 July 1988, the President gave notice'
to the Representativeson the Council that an Extraordinary
Session of the Councilwould be convened on 13 July 1988 to
consider the Islamic Republic's requests.
2.09 Prior to the Extraordinary Session being
held, the Islamic Republic's Representative to ICAO sent the
President a compendium fileof materials relatingto the
incident. These included a detailed Memorandum prepared by
the Islamic Republic outlining a number of previous
violations of international lawcommittedby the United
States in the PersianGulf prior to its attack on IR 655.
The Memorandum was supported by documentaryexhibits,
includingcorrespondencewith ICAO regarding thedangers
caused by the United States' illegal conduct and the steps
required to protect civil aviation inthe region 1.
1
Copies of these materials as they were furnished by
the Islamic Republicare attached at Exhibit 34.
Selections from these materials were,in turn,
circulated under Document No. C-WP/8644 on 8 July
1988 together with an Addendum on 12 July 1988,as a
Working Paper of theICAO Council. Çee, Exhibit 15. 2.10 The Memorandum thus drew attention to the
fact that the act of shooting down IR 655 was not the only
violation of internationallaw by the United States
(although the most outrageous),and that the IR 655 incident
had to be viewed in the context of continuing U.S. breaches
of internationallaw. It specifically referred notonly to
general principlesof internationallaw in this respect, but
also to the Chicago and Montreal Conventions. Finally, it
called on the ICAO Council "totake appropriate measures
against al1 these violations1".
2.11 Further materials were added to the file
pursuant to two ICAO Working Papers dated 7 July 1988 and
12 ~u.1~1988'. The former document included details
regarding the backgroundto the incident, while the latter,
presented by the IslamicRepublic, contained technical
materials about the shooting down of IR 655 including maps
of the area and transcriptsof radio communications between
the pilot and ground control stations.
2.12 The Extraordinary Session of the Council
was held on 13 July 1988. The President of ICAO commenced
1 See, page 5 of the Memorandum attachedat Exhibit 15.
-
2
-ee, Docs. C-WP/8643 and C-WP/8645, copies of which
are attached at Exhibits 35 and 3, respectively. the proceedingsby drawing attention to anumber of
fundamental aspectsof.the ICA0 Charter (the Chicago
1
Convention) relevant to IR 655 . In particular, hestressed
that "(t)he fundamentalprinciple that States must refrain
from resorting to the use ow feapons against civil aircraft
must be reçpected byeach stateL"
2.13 The Representativeof the Islamic Republic
then took the floor and outlined the circumstance of the
incident andthe conduct of the UnitedStates in first
trying to cover up the factsand, as the facts emerged,
subsequently tryingto shift blame onto the Islamic
Republic3. He closed his interventionby presenting a
._.
request to the Council that it consider and deliberate £ive
specific aspects of the incident. These were:
"1. Explicit recognition of a delict of
international character relating to the
breach of international lawand legal
duties of a ContractingState, Member of
ICAO.
2. Recognitionof the fact thatthe
Contracting State shall bear an
1 A copy of the Minutes of this Session (C-Min.
EXTRAORDINARY (1988)/1)is attached atExhibit 37.
2 W., p. 3.
3
-bid., pp. 4-8. internationalresponsibilityfor the
criminal actions of its officiais,
regardlesswhether they have acted within
the limits of their authority or have
exceeded it.
3. Explicit condemnationof the use of weapons
against the Iran Air passenger aircraft by
a member of ICAO, namely the United States.
4. Formation of an ad hoc commission to
conduct an investigationof various legal,
technical and other aspects of the shooting
down of the Iran Air passenger aircraft to
be reported, through the Council, to an
Extraordinary Sessionof the Assembly for
the purpose of taking necessary action in
devising relevant rules, regulationsand
standards,as well as ensuring their proper
and effective implementationfor prevention
of similar occurrence.
5. Demand for the immediate terminationof
present obstacles, restrictions, threats
and use of force againstthe airspace of
the Islamic Republicof Iran and the
coastal States of the Persian Gulf, which
endanger the safeand orderly operation of
civil air transport in the regionl.'
2.14 The United States' Representative madeit
clear £rom the start that the United Stated sid not accept
the formulationspresented by the Islamic Republic. He
claimed that theUnited Statesmight be prepared to provide
some compensationto the families of the victims, but he
conditioned this suggestionby saying that any payments
would be subject to U.S..legal requirements and
1 Exhibit 37, p. 7.consultationswith Congress. He also added that
compensationwould be made on an ex qratia basis "andnot on
the basis of any legal liability or obligation1". In
support of his position, the U.S. Representative then
introduced a series of factual allegationsbefore the
Council, al1 of which were subsequentlyshown to be false.
These included the "fact" that the plane was transmitting a
Mode II IFF response associated withan F-14, that it "was
observed to alter anormal climb and began descendingwhile
heading rapidly toward him (the Vincennes)", andthat the
U.S. warships in the areawere under "attack" by a number of
2
small boats . There is no need to add anything here to what
was said in Part 1 about such allegations.
2.15 At this early stage, therefore,it was
apparent that a dispute had crystallizedbefore the ICA0
Council between the positionsof the Islamic Republic and
the United States over the facts and their implications
under the Chicago and Montreal Conventionsand international
law. Despite the view expressedby several Representatives
that the United States should be condemned for using force
1 Exhibit 37, p. 8. As is clear from the Congressional
hearings on the issue, the U.S. Congress was strongly
opposed to paying any compensation.against a civilian aircraft 1, the United States refused to
acknowledge responsibility.
2.16 The Extraordinary Session continued on 14
July 1988 and resultedin the issue of a summary of
decisions taken by the Council. These included a
reaffirmationof the "fundamentalprinciple" that States
must refrain from usingweapons against civilaircraft and a
2
decision to institutea fact-finding investigation .
2.17 On 19 July 1988, the Administratorof the
Islamic Republic's Civil Aviation Organization sent a telex
to the President of ICA0 expressing the Islamic Republic's
dissatisfaction with the outcome of the Extraordinary
session3. He drew attention to the Islamic Republic's
position that "savage and irresponsiblebehaviour of a
contracting State cannotgo unpunished".
1
"A gross violation of the fundamentalprinciples of
internationallaw and also of the Chicago Convention
to which the Government of the United States has been
Czechoslovakian Representativee put it;wçee, the
Exhibit 37, p. 15.
2
C-DEC EXTRAORDINARY (1988)/2,pp. 1-2. A copy of
this document is attached at Exhibit 38.
3 A copy of this telex is attachedat Exhibit 39. 2. ~ubsequentActions by ICAO
2.18 Two key aspects of the Islamic Republic's
request to the ICAO Council were that the Council should
consider (i) the provision ofrules, regulations and
standards,whose proper and effective implementation could
be ensured, toprevent similar occurrences; and (ii) the
immediate terminationof al1 obstacles, restrictions and
other threats and use of force againstcivil aviation in the
Persian Gulf region.
2.19 Pursuant to one of the decisions whichhad
been taken at the Council's 13-14 July 1988 Extraordinary
Session, a meeting was convened in the Paris officeof ICAO
on 6 October 1988 to review some of these matters, in
particular theprovision of air traffic control services on
route A59 in the aftermath of IR 655's destructionL. The
meeting was attendedby representativesof the responsible
authorities in the region - the Islamic Republic and the
United Arab Emirates -as well as by represenativesof the
International Federation of Airline Pilots Association and
the InternationalAir Transport Association.
1
A copy of an officia1 summaryof this meetingis
attached at Exhibit 40. 2.20 Amongst other business, the meeting
considered the NOTAM for the Persian Gulf area whichhad
been issued by the United Statesin 1984 and its amendment
of 1987, against both of which the Islamic Republic had
1
strongly protested . The summary of the meeting contains
the following conclusion in this respect:
"The meeting expressedits belief that this
NOTAM is in contraventionof approved ICAO
Standards and Recommended Practices. The
meeting disagreed with this practiceby the
United States. It çtressed that the
promulgation of aeronautical information is the
responsibilityof the appropriateATS authority
of the States which provide services in the FIRs
concerned, including the airspace extending over
the high seas, in accordance with relevant ICAO
provisions and the Air Navigation Plan of
ICAOZ.
2.21 The 6 October 1988 meeting also found that
the procedures that had been appliedby both the Islamic
Republic and theUnited Arab Emiratesfor coordinatingair
1
-See, paras. 4.15,et seq., below.
2 The ICAO Report also determined that the United
States' NOTAMwas contrary to established rules. In
particular, it stated that "the promulgationof the
NOTAM was not in conformitywith the provisions of
ICAO Annex 15". ICAO Report, para. 2.2.4. The
correctnessof this conclusion was also confirmedby
ICAO's Air Navigation Commissionin its subsequent
meetings on the incident in February 1989.traffic control serviceswith military activitiesmet ICAO
provisions 1.
2.22 As will be discussed in more detail in
Part IV, these findings have a significantbearing on the
actions of the United States. Forit has been established
by ICAO that the properprocedures werebeing followed on
the day of the incidentby the littoral Statesalong the
Persian Gulf including theIslamic Republicand the United
Arab Emirates - the two Statesmost directly involved with
IR 655's flight plan. It was the United States which failed
to adhere to and implementthe relevant provisionsand
safety recommendationsof the Chicago Conventionand its
Annexes. This was one of the cotitributing factors to IR
655's subsequent destruction.
2.23 On 7 November 1988, the President of the
ICAO Council and the SecretaryGeneral presented to the
1 This conclusionwas also endorsedby the Air
Navigation Commissionat its session of 9 February
1989 where it stated that-
"the current provisionsand special
recommendationswere adequate and, if properly
implementedand applied by al1 concerned,were
capable of providing the necessary safety
protection for civil aircraft".
Minutes of the 8th Meeting ofthe Air ~avigation
Commission on 9 February 1989, Doc. AN Min. 120-8, p.
2 (a copy is attachedat Exhibit 41).Council the Report of the fact-findinginvestigation which
had been commissionedpursuant to the Council's decision of
14 July 1988. The main findings05 this Reporthave been
discussed in Part 1 above.
2.24 A further ICAO Councilmeeting was
convened for 5-7 December 1988 to consider the Islamic
Republic's request that theUnited States be condernned, that
its responsibilityunder internationallaw be recognized,
that reparationfor moral and financialdamages be ordered,
that safety measures beimplementedto prevent the
repetitionof such an incidentand that continuingU.S.
violations and threats in the Persian Gulfbe terminated. In.
advance of this meeting, the ICAO Report was circulated
together with a working paper summarizingthe various
actions that had been taken under ICAO's auspices since the
13 July ExtraordinarySession 1 .
2.25 At the meeting of5-7 December, the ICAO
Report was considered and the ~e~resentativeçof both the
Islamic Republicand the United Statesmade statements. At
the close of the session, the Counciltook an interim
1 A copy of this workingpaper, Doc. C-WP/8718, is
attached at Exhibit 42.decision, the textof which is reproduced in the document
attached at Exhibit 43. Without repeatingeach of the
individual pointsraised inthat decision, it is appropriate
to note that item6 indicated that the Council:
"Reaffirmed again the fundamentalprinciple of
general international law that States must
refrain £rom resortingto the use ofweapons
against civil aircraf tl".
2.26 During the December session, the United
States again advanced its-contentionthat "(t)he Vincennes
was operating lawfully from the strait of Hormuz and was
under attack by Iranian boats when the incident occurred2".
This contention has been effectivelyrebutted by the Captain
of one of the U.S. ships (the çideç) that participated in
the July 3 events, who stated that the small boats posed no
3
threat to U.S. warships .
1 Summary of the FourteenthMeeting-on 7 December 1988,
Doc. C-DEC 125/14, p. 4, a copy of which is attached
at Exhibit 43.
Minutes of the ThirteenthMeeting on 7 December 1988,
Doc. C-Min. 125/13 (Closed),pp. 4-5, a copy of which
is attachedat Exhibit 44.
-fe paras. 1.111 and 1.115, above. 2.27 As for the Representativeof the'Islamic
Republic, he pointed out that the offer of an -ex qratia
payment by the United States would leave no.doubt'thatthe
United States was not accepting its legal liabilityfor the
shooting down of IR 655 despite the findings of the ICA0
Report and the fact that the attack took place within the
Islamic Republic's interna1 waters and territorial sea 1. In
subsequent remarks,the IslamicRepublic'sRepresentative
noted that his Government was holdingto its position that
the U.S. action must be condemned and appropriate
reparationsmade. He added that the Islamic Republic
expected that ICAO's Legal Bureau would be examining the
Report "to identify infringementsof legal principles which
have been committed2",and he closed by saying that the
Islamic Republic specifically requested the Council to
determine four points:
"1) Condemnationof the shooting down of IR 655
by the United States military forces in the
Persian Gulf.
2) Explicit recognitionof'a crime of
internationalcharacter to the breach of
-1e Exhibit 44, at p. 13.
L
m., p. 19. See, also, the Statementof the
Islamic Republic's Representative at the sessionon 5
December 1988, Minutes of the Twelfth Meeting,Doc.
document25is attached at Exhibit 45. A copy of this internationallaw and legal duties of a
ContractingState of ICAO.
3) ~xpiicit recognition ofthe
responsibilitiesof the United States
Government,and calling for effecting
compensationfor moral and financial
damages.
4) Demand for the inmediateterminationof
present obstacles, restrictions, threats,
and the use of force againstcivilian
aircraft in the region, includingCouncil's
appeal to relevant international bodies to
demand the withdrawal of al1 foreign forces
£rom the Persian Gulf."
2.28 A number of delegationsrose in support of
the cal1 to condernnthe United Statesfor its conduct under
the Chicago Conventionand internationallaw. The
Representativeof the Soviet Union, for example,maintained
that therewas "every justification" to condemn the act 1.
The Chinese Representative wasequally unequivocal,stating:
"With regard to the destruction ofIran Air
flight 655 by a United States warship ... the
position of the Chinese Government is very
clear. We condemn this act and believe that the
US Government hasunshirkable responsibility for
the incident. Therefore, it is right and proper
that compensationshould be paid forthe loss of
lives and propertyin the incidentz."
1 See Exhibit 45, p. 20.
2
- rd P. 28. 2.29 At the December meeting the Councia llso
instructedthe Air Navigation Commission to study the safety
recommendations contained in the ICAO Fact-Finding Report 1.
This instruction complied in part with the Islamic
Republic's request that safety measures should be considered
to prevent similar incidents recurring. However, in
restricting theAir Navigation Commission's mandate to a
consideration ofthe one page of Safety Recommendations
given on page 25 of the ICAO Report, the Councilseverely
restricted the effectiveness of the Commission's efforts. -
-
-,
2.30 This instruction differed materially from
the mandate that the Air Navigation Commission had been
given,by the Council during its investigationof the.1983
KAL 007 incident. Atthat time, the Air Navigation
Commission had been given free rein to review theentire
--
fact-finding report, not just its safety recommendations,
and had concluded that there was no justification toshoot
down the aircraft in question. Subsequently, ICAO condemned
- .
the State responsible.
2.31 In this case, however,the Air Navigation
Commission was not permitted to give its opinion on the
1 See, Exhibit 43, p. 2.
-fact-finding reportas a whole. This led the Soviet
Repiesentativeto complain that the Air Navigation
Commission had been hamperedin its work by the limitations
imposed by the councill, and it constitutesan example of
how with respect toIR 655 the Council departed £rom ICAO's
previous practice inexamining incidents involving the use
of armed force against civil aircraft. It is also noted
that theLegal Bureau'sexaminationof the ICAO Report,
which had been requestedby the Islamic- Republic, never
materialized,despite the general agreement ofthe Council
that such an examinationbe conducted.
2.32 In February 1989, the Air Navigation
Commission issued itsfinal report, which was placed at the
Council's disposa1 when it rendered its final decision on
the dispute in March 1989'. The Commissionconcluded its
report as follows:
"... the current ICAO provisions are adequate in
relation to military activities which are
potentiallyhazardous to civil aircraft and, if
1 Minutes of the Air ~avigationCommission's6th
Meeting on 2 February 1989,Doc. AN Min. 120-6, p. 2,
a copy of which is attached at Exhibit 46.
2
See Doc. C-WP/8803, a copy of which is attached at
Exhibit 4.7. Indeed, a number of representatives
referred to it in their individual presentations. properly implementedand applied by al1
concerned, are capableof providing the
necessary safety protectionfor civil
aircraft ."
The clear implicationof this reportwas that one of the
main reasons IR 655 had been shot down was because the ICAO
provisions had not been properly implementedand applied by
the United States. However, since the Commission had not
been asked to review the ICAO Report itself, it was not in a
position to judge that it was the United States who had been
- at fault 2.
-.
3. The Final Decision of the ICAO Council
2.33 The final series of meetings of the ICAO
Council on the incident took place from 13-17March 1989,
when a draft Council Resolution was considered. O15 March
1989, the Representativeof the Islamic Republic stated that
the mandate of the Chicago Convention compelledthe Council
1 Çee, Exhibit 47, para. 2.8.1.
-
2
As a result of various objections, including the
promised to cancel its illegal NOTAM.thee,nitMinuteses
of the Eighteenth Meeting on 13 March 1989, Doc. C-
Min. 126/18, p. 10, a copy of which is attached at
Exhibit 48. In fact, this was not effectively
carried out. g, paras. 4.27-4.28 below.to take a serious position. He regretted the fact that up
to that point the Council had not taken such a stand, and he
indicated that the only way for the Council to fulfil its
duties under the Chicago Conventionwas to condemn the
United States' act of shooting down a passenger aircraft -
al1 the more so since the plane had been downed inan area
over which the Islamic Republic exercisedfull sovereignty I.
2.34 On 17 March 1989, the SovietUnion
proposed an amendment to the draft Resolution condemningthe
use of armed force against civil aviation; including the act
which destroyed IR 655 2. The United States opposed this
amendment, which was ultimately defeated.
2.35 As its final action on the dispute the
Council then adopted the text of the Resolution which
follows :
1
Minutes of the Nineteenth Meetingof the ICA0 Council
on 15 March 1989, Doc. C-Min. 126/19, p. 3. A copy
of this document is attached at Exhibit 49.
2
Summary of the Twentieth Meetingon 17 March 1989,
Doc. C-DEC 126/20, p. 1. A copy of this document
together with the Minutes of the meeting is attached
at Exhibit 50." RESOLUTION ADOPTEDBY THE COUNCIL OF THE
INTERNATIONAL CIVILAVIATION ORGANIZATION
AT THE 20TH MEETING OF ITS 126TH SESSION
ON 17 MARCH 1989
THE COUNCIL OF THE INTERNATIONAL CIVIL AVIATION
ORGANIZATION
Recallinq its decisions of 14 July and 7
December 1988 concerning theshooting down, on 3
July 1988, of Iran Air Airbus 300 on flight
IR655 by a warship of the United States;
Havinq considered the report of the fact-finding
investigationinstitutedby the Secretary
~eneral-pursuantto the decision of the Eouncil
of 14 July 1988 and the subsequent studyby the
Air Navigation Commissionof the safety
recommendationspresented in thatreport;
Expressingappreciationfor the full co-
operation extended to the fact-Eindingmission
by the authoritiesof al1 States concerned;
Recallinq that the 25thSession (~xtraordinar~)
of the Assemblyin 1984 unanimously recognized
the duty of States to refrain from theuse of
weapons against civilaircraft in flight;
Reaffirminq its policy to condemn the use of
weapons aqainst civil aircraft in fliqht without
prejudice-tothe ~rovisionsof the charter of
the UnitedNations;
Deeplv deplores the tragic incidentwhich
occurred as a consequenceof events and errors
in identificationof theaircraft which resulted
in the accidental destruction of an Iran Air
airliner and the loss of 290 lives;
Expresses again its profound sympathy and
condolencesto the Government of theIslamic
Republic of Iran and to the bereavedfamilies;
Appeals aqainurgently to al1 Contracting States
which have not yet done so to ratify, as soon as
possible, the Protocol introducingArticle 3 biç
into the Convention on International Civil
Aviation; Notes the reportof the fact-finding
investigation instituted by the Secretary
General and endorses the conclusions ofthe Air
Navigation Commissionon the safety
recommendations contained therein:
Urqes States to take al1 necessary measuresto
safeguard the safety of air navigation,
particularlyby assuring effective CO-ordination
of civil anomilitary activities andthe proper
identificationof civil aircraf tl."
2.36 This decision was inadequate in thelight
of the gravity of the offence which had been committed
because it failed to .directthe United States to ensure that
-
its activities in thePersian Gulf complied withthe
provisions for the safety of civil aviation set out in the
Chicago Convention and its Annexes. It was also plainly
wrong because it failed to apply to the conduct ofthe
United States the relevant principles and rules of
internationallaw reflected in the Chicago Convention in the
same way that they had been applied in-sarlierICAO Council
decisions relating to other aerial incidents. Whileit will
be necessary to revert to these incidents later on in this
Memorial, two examples deserve mention herebecause they
show very clearly the unequal and inconsistent application
of justice by the ICAO Council with respect to IR 655.
l.
A copy of this Resolution wasattached to theIslamic
Republic's Application.
, 2.37 Tho first involved the destruction of a
Libyan Airlines civil aircraftby Israeli militaryforces
over the Israeli-occupied Sinai Peninsula in 1973. In that
case, the ICA0 Council showed nohesitation in condemning
Israel's action. This was evidenced by the Council's
Resolution on the incidentwhich, in relevantpart, read as
follows :
"THE COUNCIL ...
CONVINCED that such action constitutes aserious
danger against the safety of international civil
aviation;
RECOGNIZING that such attitude isa flagrant
violation of the principles enshrined in the
Chicago Convention:
HAVING considered the report of the
investigation team established bythe Secretary
General in accordance withthe Resolution A19-1,
and findingfrom it no justification forthe
shooting down ofthe Libyan civil aircraft;
1) Stronqly condemns the Israela iction which
resulted in the destruction ot fhe Libyan
civil aircraft and the loss of 108 innocent
liveç;
-
2) Urqes Israel to comply with theaims and
objectives of the ~hicago'~onventionl."
2.38 The second incident involved the Council's
condemnationof the use of armed forceby the Soviet.Union
1
A copy of this Resolution, reprinted inXII I.L.M.
1180 (1973), is attached at Exhibit 51.with respectto the downing of Korean Airlines flight 007
("KAL 007") which had strayed overthe SovietUnion's
airspace on 1 September 1983. In relevantpart, the
Council's Resolution in connection withthis incident read
as follows:
"THE COUNCIL ...
REAFFIRMING that, whatever the circumstances
which, according to the Secretary General's
report, may have caused the aircraft to stray
off its flight plan route, such use of armed
force constitutesa violation ofinternational
consequences;kes generally recognized legal
RECOGNIZING such use of armed force is a grave
threat to the safety of international civil
aviation, and is incompatible with the norms
governing international behavior and with the
Rules, Standardsand RecommendedPractices
enshrined in'the Chicago Conventionand its
Annexes and with elementary considerations of
humanity ...
CONDEMNS the use ofarmed force which resulted
in the destruction of the Korean airliner and
the tragic loss of 269 livesl...".
2.39 Both of these incidents i-nvolved the use
of force by an ICA0 member against an intruding aircraft
which had çtrayed £rom its flight route over highly
sensitive areas of territory belongingto, or occupied by,
1 A copy of thisResolution, reprinted in XXIII I.L.M.
937 (1984), is attached at Exhibit 52. the offending member. In contrast, IR 655 was shot down in
its own airspace and within an internationallyrecognized
air corridor by military forces operating thousands of miles
£rom their own territory. Inthese circumstances,the
.Islamic Republic wasentitled to expect that the ICAO
Council would, if anything, take an even stronger position
condemning the United States'actions than it had in
previous incidents.
, 2.40 This was not the case. The Council's
decision contained no condemnationof the UnitedStates and
no recognitionthat such actions constituted a violation of
principles of internationalLaw embodied in the Chicago
Convention, letalone of "norms governing international
1
behavior" or "elementary considerations of humanity" .
2.41 This manifestly inconsistent decision
reflected a failureby the Counciltq address the Islamic
Republic's application in an even-handedmanner as was
required by considerationsof justice and fairness,and
under the fundamentalprïiiciple of the equality of States.
1
-ee, E. Sochor, "ICAOand Armed Attacksagainst Civil
Aviation", XLIV International Journal (Winter 1988-
89), p. 158, where the author notes the ,
"inconsistencyof the ICAO responsesto this type of
incident".As will be explained in the next section, one of ICAO'S
shortfalls in this respect results from the fact that the
Council is authorized to perform a judicial functio while,
at the same tirne,its composition is heavily weightedby
political factors, including a pronouncedbias in favour of
what Article 50(b) of the Chicago Convention terms"the
States of chief importancein air transport". Anumber of
respected commentators have pointeo dut that the ICAO
judicial processcontains a basic flaw in that Council
members, who are agents of their governments, cannotbe
1
expected tosit as impartial judges . According to one
commentator, this is exactly what happenedin the case of IR
"This curious formula(the Council's decision)
was in fact a concession to the United States
which let it be known that it would not go along
with any text that would invitecomparisonswith
the 'KALaffair2."
1
-1e M. Milde, "Dispute Settlement in the Framework
of the InternationalCivil Aviation Organization
(ICAO)", in Studies on Air and Space Law (1979); T.
Buergenthal, Law-makinq in the International Civil
Aviation Orqanization (SyracusU eniv. Press, 1969),
Pt. III; J. Schenkman, International Civil Aviation
Orqanization (1955).
Sochor, cit., p. 166. 2.42 In these circumstances,the Court is not
only ernpowered, it is bound, to exercise its supervisory
powers over theCouncil's decisions under Article 84 of the
Chicago Convention.
B. ~urisdictionUnder the Chicaqo Convention
2.43 The Court's jurisdictionunder the Chicago
Convention derives £rom Article 84 thereof, which appears
within Chapter XVIII of the Convention entitled "Disputes
and Default". It provides:
"Settlementof disputes
If any disagreementbetween two or more
contracting Statesrelating to the
interpretationor applicationof this Convention
and its Annexes cannot be settled by
negotiation,it shall, on the applicationof any
State concerned inthe disagreement,be decided
by the Council. No member of the Council shall
vote in theconsiderationby the Council of any
dispute to which it is a Party. Any contracting
State may, subject to Article 85, appeal from
the decision of the Counc'il to an ad hoc
arbitral tribunal agreed upon wi-ththe other
parties to the dispute or to the Permanent Court
of InternationalJustice. Any such appeal shall
be notified to the Council within sixtydays of
receipt of notificationof the decision of the
Council. "
2.44 Under this Article, three conditions must
be met before the Court's jurisdictionmay be engaged.
-frst there must be a disagreementbetween two or more 2.42 In these circumstances,the Court is not
only ernpowered, it is bound, to exercise its supervisory
powers over theCouncil's decisions under Article 84 of the
Chicago Convention.
B. ~urisdictionUnder the Chicaqo Convention
2.43 The Court's jurisdictionunder the Chicago
Convention derives £rom Article 84 thereof, which appears
within Chapter XVIII of the Convention entitled "Disputes
and Default". It provides:
"Settlementof disputes
If any disagreementbetween two or more
contracting Statesrelating to the
interpretationor applicationof this Convention
and its Annexes cannot be settled by
negotiation,it shall, on the applicationof any
State concerned inthe disagreement,be decided
by the Council. No member of the Council shall
vote in theconsiderationby the Council of any
dispute to which it is a Party. Any contracting
State may, subject to Article 85, appeal from
the decision of the Counc'il to an ad hoc
arbitral tribunal agreed upon wi-ththe other
parties to the dispute or to the Permanent Court
of InternationalJustice. Any such appeal shall
be notified to the Council within sixtydays of
receipt of notificationof the decision of the
Council. "
2.44 Under this Article, three conditions must
be met before the Court's jurisdictionmay be engaged.
-frst there must be a disagreementbetween two or more contracting Statesrelating to the Convention's
interpretationor application. Second,it must appear that
the disagreement cannot be settled by negotiation. Third,
the dispute must be submitted to the ICA0 Council by any
State concerned in the disagreementand the Council must
render a decision. If these conditionsare met, then the
right of appeal automaticallyvests. In other words, any
contracting Statemay appeal as a matter of riqht from the
Council's decision either to an ad hoc tribunalagreed with
the other party(or parties) to the dispute or, if the
contracting State 50 elects, to the Court,provided that
this is done within sixty days of receipt of notification of
the Council's decision'.
2.45 In the present case, al1 three conditions
were satisfied before the Islamic Republicinstituted these
proceedings. Moreover, the Application wastimely inasmuch
as it was filed on 17 May 1989 and notified to the Council
. two months afterthe Council'sdecision was rendered.
2.46 With respectto the first point, a
"dispute"or "disagreement" betweenthe IslamicRepublic and
1
See, in this respect,Bin Cheng, The Law of
InternationalAir Transport (Stevens & Sons, London,
1963), p. 104.the United States over the interpretationand applicationof
the Chicago Conventioncrystallized immediatelyafter IR 655
was shot down. The Islamic Republic'svery first
communicationto the President of the Council in which ICAO
was notified of the event(the telex sent by the Iranian
Vice-Ministerof Roads and Transportationon 3 July 1988)
requested the Council "to take effectivemeasures in
condemning (the United States') hostile and criminal actsl".
At the same time, the United States was denying
2
responsibilityfor the incident .
2.47 The Islamic Republic's claims were made
more precise in the formal requests that it subsequently
presented to the Councilon 13 July 1988 and 5 December
198~~. Al1 of these requests related to the dispute that
had arisen with respect to the interpretationand
applicationof the Chicago and Montreal Conventions in
relation to the acts of the United States. As stated above,
the United States took issue with this position in its
public statements as well as in the debate before the ICAO
1 see, para. 2.03, above.
-
L see, paras. 1.96, et SeZI.,above.
-
3 -ee, paras. 2.13 and 2.27, above. - - 115 -
Council. Subsequently,the United States went so far as to
oppose the amendment which was propoçed by the SovietUnion
on 17 March 1989calling for the condemnationof the use of
armed force against civil aviationincludingthe act which
destroyed IR 655.
2.48 The Court will appreciatethat the textof
this amendment, which went part but not al1 of the way
towards meeting the Islamic Republic's requests, was very
. similar to paragraph 1of the operativepart of the
Resolution thatthe Council adopted on 6 March 1984
concerning theKAL 007 incident. When the amendmentwaç
proposed, therefore,the issue was immediatelyraiçed
whether with respect to IR 655 the Chicago Convention would
be interpretedand applied in the same way as it had been
vis-à-vis KAL 007.
2.49 If any doubt remained as to the United
States' position on this point, it was put to rest by its
objection to the amendment. Thiç action madeit even
clearer thatthere exiçted a fundamentaldifferencebetween
the Islamic Republicand the UnitedStates over the
interpretationand applicationof the Chicago Convention
with respectto IR 655. The Council then took itç final
decision on the dispute when it adopted its Deciçion of17
March 1989. This Decision did not meetany of the requeçtçsubmitted by the Islamic Republic. It failed to condemn the
United States' use of force and to recognize the United-
States' responsibilities under internationallaw for tbis
act. It failed to cal1 on the United States to take steps
to ensure that such an incidentwould notbe repeated in the
Persian Gulf region. Moreover, it was inconsistentwith the
Council's previous decisions regarding armedattacks on
civil aircraft.
2.50 It is also apparent that the dispute which
had arisen couldnot be settled by negotiation - the second
prerequisite for an appeal under Article 84. The minutes of
the ICA0 Council sessions demonstrate that the Islamic
Republic and the UnitedStates held fundamentallydifferent
positions whichcould not be reconciledduring the exchanges
before the Council. Moreover, from the nature of the debate
before theU.N. Security Counciland £rom other public
statements issued by U.S. spokesmen,it was apparent that
settlementby other forms of negotiation wasalso not
possible - an impasse which was heightenedby'the fact that
the United States had broken off diplomatic relations with
the Islamic Republicsince early 1980.
2.51 In this connection,it is worth noting
that it was not until two months after the Islamic Republic
filed its Applicationbefore theCourt that the UnitedStates was prompted tomake a concrete offer of an- qratia
payment direct to the relativesof the victims throughan
intermediary ratherthan to the Islamic Republic. This
offer related only to immediate relativesf the victims,
and contained nothing with respect to other relativoes the
victims, the destruction of the aircraft, the violation of
the Islamic Republic's territorial sovereigntand other
related damages. Such an offer was unacceptable to the
Islamic Republic.
2.52 The Permanent Court hasalready discussed
the scope of the requirementfor prior negotiations between
States in its judgment in the Mavrommatis Palestine
1
Concessions case . The Court held:
"The Court realizes to the full the importance
of therule laying down that only disputes which
cannot be settled by negotiation shouldbe
brought beforeit ... Nevertheless,in applying
other considerations,the views of the Statest
concerned, who are in the best position tojudge
as to political reasons whichmay.prevent the
settlement ofa given dispute bydiplomatic
negotiation2."
1 Mavrommatis Palestine Concessions, Judqment No2,
1924, P.C.I.J.,Series A, No. 2.
L Ibid. p. 15; andçee, paras. 2.64-2.71, below.The Court then added the following pertinent observations:
"Negotiationsdo not of necessityalways .
presuppose a more or less lengthy series of
notes and dispatches, it may suffice that a
discussion should have been commenced andthis
be the case if a dead lock is reached,or ifïll
finally a point is reached atwhich one of the
Parties definitely declares himself unable, or
refuses, to giveway, and there can therefore be
no doubt that the dispute cannot be settled by
diplomatic neqotiationl."
2.53 The third prerequisitefor making an
appeal under Article 84 - the requirementthat the
disagreementbe submitted to the Council which takes a
decision on it - has also been met. The Islamic Republic
submitted its application on the matter to the Council in
the form of several requests,memoranda and accompanying
documents, and the Council rendered its decision on 17 March
1
Mavrommatis Palestine Concessions, Judqment No. 2,
1924, p.C.1.J. Series A, No. 2, p. 13 (emphasisin
Indian Territory, (PreliminaryObjections),Judqment,
I.C.J. Reports 1957, pp. 148-149; and T. Buergenthal,
S. &. , where the author notes that,"The
requirement ofprior negotiations does not
necessarilydemand that the parties engagein direct
negotiations. It could undoubtedlyalso be satisfied
by negotiationscarried on in a parliamentaryor
conference forum,provided both parties to the
---..te participated therein on opposite sides" (p. 2.54 Two aspects of that decision should be
noted. First, as the ICAO Council Annual Report for 1989
makes clear, the decision rendered on 17 March 1989 was a
final decision. The Annual Report indicatesthat "(t)he
Council completed its action on the subject of the Iran Air
flight 655 incident" after it had reviewed thevarious
reports and issued itsresolutionof 17 March 1989 1 .
Second, when the Council took its decision, it had a full
file before it. This included al1 of the materials furnished
by the Islamic Republic in July 1988 relatinb to the
unlawful conduct of United States forces in the Persian Gulf
leading up to the shootingdown of IR 655, together with the
ICAO fact-findingReport, the Report ofthe Air Navigation
Commission and numerous statements by the Representativesof
both Parties.Based on this information, theCouncil was in
a position to determine which Party had violated the
applicable principles embodiedin the Chicago Conventionand
what consequences flowed therefrom.The fact that it failed
to take the appropriate decision, in stark contrast to its
previous decisions, provides ample jurisdictionalgrounds
for an appeal in this case.
1 Doc. 9530 - Supplement (July 1989), p. 23. A copy of
this page is attached atExhibit 53. 2.55 Indeed, the Court has made it clear in its
judgment in the Appeal Relatinqto the Jurisdictionof the
ICAO Council (Indiav. Pakistan) case1 (the "Appeal" case)
that it will take a'broad, facultative approach to the
exercise of its own jurisdictionover decisions of the ICA0
Council. The Appeal case has special relevancebecause it
is the only case previously to come before the Court on
appeal £rom a decision of the ICAO Council. Because the
case was one of first impression,the Court deemed it
appropriate to make what it termed "a few observationsof a
general characteron the subject2" which, because of their
general nature,apply with equal force tothe present case.
2.56 One element whichthe Court emphasizedis
that while a case such as this one "is presented to the
Court in the guise of an ordinary dispute between States
(and such a dispute underlies it),(y)et in the proceedings
before theCourt, it is the act of a third entity - the
Council of ICAO - which one of the Parties is impugningand
the other defending3'. This led the Court to state the
following:
1
Judqment, I.C.J. Reports 1972,p. 46.
2
u., p. 60, para. 26.
3 Ibid. "In that aspect of the matter, the appeal to the
Court contemplatedby the Chicago Convention ...
must be regarded as an element of the general
régime'establishedin respect of ICAO. In thus
providing for judicial recourseby way of appeal
to the Courtagainst decisionsof the Council
concerning interpretation and application ...
the Chicago Treaties gavemember States, and.
through them theCouncil, the possibility of a
those decisionsl." supervisionby the Court over
2.57 As the Court observed,the "measureof
supervision" whichit is empowered to exercise over
decisions of the Councilexists "for the good functioningof
the 0rganization2". This is especiallysignificant because,
on the one hand, the Council performs a judicial or quasi-
judicial function3 while,on the other, it also has an
importantpolitical componentwhich is reflected in the
substantialweighting inthe Council'scompositionin favour
of certain States (including theUnited States) over others
(including theIslamic Republic).
1 Appeal Relatinq to the Jurisdictionof the ICAO
Council, Judqment,I.C.J. Reports 1972,p. 60,
para. 26.
2
Ibid.
3
-ee, Bin Cheng, op. cit., pp. 100-101; çee, also, the
Declaration madeby Judge Lachs in the Appeal
Relatinq to the Jurisdictionof the ICAO Council
case, Judqment, I.C.J. Reports 1972, pp. 74-75. 2.58 Article 50(b) of the Chicago Convention
bears thisout. In relevantpart, it provides that:
"In electing themembers of the Council, the
Assembly shall give adequate representationto
(1) the States of chief importancein air
transport: (2) the States not otherwise included
which make the largest contributionto the
provision of facilities for internationalcivil
air navigation;and (3) the States not otherwise
included whose designation will insure that al1
major geographic areas of the world are
representedon the Council."
2.59 The'existenceof this bias in favour of
"the States of chief importancein air transport"provides
an even stronger policyrationale for the Court to exercise
its supervisory role over Council decisions. It is
precisely to review and correct inconsistentdecisions such
as the one rendered by the Council with respect to IR 655
that the Court should exercise its jurisdiction. This is
necessary in order to avoid double standardsand to impart a
legal framework upondecisions which might otherwise be
influencedby political or other non-legal conçiderations.
2.60 This necessarilymeans that the scope of
the Court's review muçt be broad. In treatingan appeal
under Article 84 the Court does not act as a cour de
cassation. Rather, Article 84 entrusts the relevant
appellate body, in this case the Court, with al1 the powerof decision of the lowerbody, together withany powers and
remedies which are invested in the appellate body. Asone
authority on ICAO has put it:
"Since the Conventiondoes not, however,limit
the powers of the appellatetribunal, it can be
concluded that the tribunalmay review any
findingsof law and/or fact'madeby the ICAO
~ouncill .'
This is what the Islamic Republicis asking of the Court in-
this case.
C. JurisdictionUnder the Montreal Convention
2.61 The Islamic Republic also submits that by
virtue of the UnitedStates' conduct in destroying IR 655
and in failing to take al1 practical measuresto prevent
such an offence and to make it punishableby severe
penalties, the UnitedStates violated Articles 1, 3 and
lO(1) of the Montreal Convention. The text of these
articles and the reasonswhy the UnitedStates must be
considered to have breached themwill be taken up in the
next Part.
1 Buergenthal,op. cit., p. 145. 2.62 From the foregoing discussion,it is
evident that a dispute exists betweenthe Islamic Republic
and the United States over the interpretationand
application of the Montreal Convention. As early as 8 July
1988 when the IslamicRepublic submitted aMemorandum to
ICAO on the incident, it charged the United States with
1
violating theMontreal Convention . This dispute cameto a
head early on in the proceedings before the ICAO Council
when the Islamic Republic allegedbreaches of the Montreal
Convention and -.e United Statesobjected.
-,
2.63 The very fact that the United States
denies any legal responsibilityfor its actions evidences
the existence of a dispute withinthe meaning of Article . .
14(1), which reads as follows:
--"Any dispute betweentwo or more Contracting
States concerningthe interpretationor
applicationof this Conventionwhich cannotbe
request ofone of them, be submitted toat the
arbitration. If within six months £rom the date
of the request for arbitration the Parties are
unable to agree on the organizationof the
arbitration,any one of those Parties may refer
the dispute to the InternationalCourt of
Justice by request in conformity withthe
Statute of the Court."
1 para. 2.10, above. In these circumstances,Article 14(1) of the Montreal
Conventionprovides a further, independent basisfor the
Court's jurisdiction.
2.64 As noted above, it is not necessary for
forma1 negotiationsto have taken place between theParties
in order for the Court's jurisdictionto vest. Indeed, the
Permanent Court's judgment in the Mavrommatis Palestine Con-
cessions case madeit very clear that-
"No general and absolute rule can be laid down
in this respect. It is a matter for
considerationin each case1."
2.65 In the presentcase, the extent of public
debate over the illegalityof the United States' actions -
whether before the UnitedNations, the ICA0 Council or in
other pronouncements - coupled withthe fact that no
diplomatic relationsexist between the two countries,
demonstratesthat it would befruitless to hope that any
further "negotiation"could be expected toçettle the
dispute. Under Article 14(1), therefore,it is appropriate
to submit the dispute to the Court.
1 Judqment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 13. 2.66 By the same token, it would be unrealistic
to suppose that the Parties could agree on the organization
of a separate arbitrationwithin the six-month deadline
provided forin Article 14(1). Throughout the period £rom 3
July 1988, when IR 655 was shot down, to 17 May 1989, when
the Islamic Republic'sApplication was filed, the United'
States gave absolutelyno indication thatit was interested
in or amenable to an a-d hoc arbitration of the dispute. Once
that Application wasfiled, the United States wason further
notice that the Islamic Republic had a claimregarding the
interpretation andappl-icationof the Montreal Convention.
Still the United States took no steps suggesting thatit
would be interested in arbitrating such a claim separately.
Of course, even if the United States had shown a modicum of
interest in such a procedure, there still would have
remained the difficult,if not impossible,task of agreeing
to the compositionof the arbitral tribunal,its rules of
procedure, and the place of arbitration in the absence of a
provision for an appointing authority - a task which could
well have taken more than six months, if it had been
feasible at all.
2.67 It is important to recall that in the
United States Diplomatic andConsular Staff inTehran case,
the United States admitted in its Memorial that a temporal
arbitration provision (in-thatcase appearing in Article 13of the Convention on the Preventionof Crimes Against
Internationally Protected Persons) was inapplicable.The
United States stated:
"This limitationon the court'sjurisdictioncan
have no application in circumstancessuch as
these, where the party in whose favourthe six
months' rule would operate has by its own policy
and conductmade it impossibleas a practical
matter to have discussions related tothe
oto communicate a directaformal request forven
arbitration. It is submitted that when such an
attitude has been manifested, an application to
the Court may be made without regard tothe
passage of t imel." -
-.
2.68 By the time this Memorial is filed, two
years will have elapsed since the incident took place. Yet
the United States still has given no indicationthat a
separate arbitrationwould be its preferred route. The fact
that a separate arbitration is not feasible cannotallow the\
United States to continue to violate the Conventionand to
bar the Islamic Republic fromrecourseto the Court now.
2.69 Here, again, it is instructiveto recall
what the United States said about a similar situation in the
1 I.C.J. Pleadinqs,United StatesDiplomaticand
Consular Staff inTehran, Memorial of the United
States, p. 155.United States Diplomaticand Consular Staffin Tehran case.
There, the United States contendedthat even if the Optional
Protocols which werethen in issue were interpretedas
requiringa two-monthwaiting period"for the benefit of a
respondentwho genuinely desiredarbitration or
conciliation, adherenceto that interpretationwould not
cal1 for dismissal of the United StatesApplicationat this
stage of the proceedingsl". In support, the United States
cited the judgment in the Mavrommatis case where the Permanent
Court had rejected a challenge to its jurisdictioneven though
one of the instruments necessaryto found itsjurisdiction
(ProtocolXII of the Treaty of Lausanne)hadnot yet been rati-
fiedyhen the application wasfiled. It was ratified and entered
into force only beforethe judgment was rendered. TheCourt
held that -
"... It would always have beenpossible for the
applicant tore-submit hisapplication in the
same terms after the coming intoforce of the
Treaty of Lausanne,and in that case, the
argument in questioncould not have been
advanced. Even if the grounds on which the
institutionof proceedingswas based were
defective for the reason stated, this would not
be an adequate reason forthis dismissal of the
applicant's suit*."
1 I.C.J. Pleadinqs,United StatesDiplomatic and
Consular Staff in Tehran, Memorial of the United
States, p. 151.
2
W., citing MavromrnatisPalestineConcessions,
Judqment No. 2, 1924, P.C.I.J. Series A, No. 2,
p. 34. 2.70 The same reasoningapplies here. For if
it were held that the six-montht sime limit provided for in
the Montreal Convention had somehow not been satisfied, it
would simply be open to the Islamic Republic to re-submit
its Applicationin the same terms in another six months and
then request a joinderof that case with the present one
under Article 47 of the Rules of Court. Moreover, the
dispute in the present caseis so intertwinedwith
violationsof obligationsunder other treatiesand general
international lawthat the Courtis the only competent forum
.-
to deal'with it 1.
2.71 It was forthese reasons, therefore, that
the IslamicRepublic noted in its App1icatio.n that the
arbitration referred to inArticle 14(1) of the Montreal
Convention cannot be considered asa viable courseof action
\
or an obstacle to the Court's jurisdictionhere. This being
the case, the dispute is ripe for adjudication by this
Court.
1
Of course, oncethe Islamic Republic's Application
was filed, the United States was on notice as to the
Islamic Republic's choiceof forum. .Had it wanted to
arbitrate the dispute, theUnited States could within
with the Islamic Republic conferring sspecificgreement
jurisdictionon the Court under Articles 36 and 40 of
the Court's Statute. D. Jurisdictionunder the Treaty of Amity
2.72 In this Memorial, the Islamic Republic
also invokes provisionsof the 1955 Treaty of Amity between
Iran and the ~nited States which it submits havebeen
violated by the United States. ArticleXXI(2) of the Treaty
of Amity contains the relevant compromissory clause.It
provides :
"Any dispute between the High Contracting
Parties as to the interpretationor application
of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the
InternationalCourt of Justice, unless the High
ContractingParties agree to settlementby some
other pacific means."
2.73 Before dealing with the substantive
provisions of the Treaty which have been breached by the
United States and which thereby give rise to a dispute as to
the Treaty's interpretationand application,there are too
preliminary matters requiring comment.These concern (i)
the general applicabilityof the Treaty of Amity as a basis
-
of jurisdictionand the position of the Islamic Republic in
this respect; and (ii) the fact that theTreaty was not
mentioned in the Islamic Republic'sApplication.
2.74 With respect to the first point, it is to
be noted that in a number of cases before theIran-United D. Jurisdictionunder the Treaty of Amity
2.72 In this Memorial, the Islamic Republic
also invokes provisionsof the 1955 Treaty of Amity between
Iran and the ~nited States which it submits havebeen
violated by the United States. ArticleXXI(2) of the Treaty
of Amity contains the relevant compromissory clause.It
provides :
"Any dispute between the High Contracting
Parties as to the interpretationor application
of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the
InternationalCourt of Justice, unless the High
ContractingParties agree to settlementby some
other pacific means."
2.73 Before dealing with the substantive
provisions of the Treaty which have been breached by the
United States and which thereby give rise to a dispute as to
the Treaty's interpretationand application,there are too
preliminary matters requiring comment.These concern (i)
the general applicabilityof the Treaty of Amity as a basis
-
of jurisdictionand the position of the Islamic Republic in
this respect; and (ii) the fact that theTreaty was not
mentioned in the Islamic Republic'sApplication.
2.74 With respect to the first point, it is to
be noted that in a number of cases before theIran-UnitedStates Claims ~ribünal, the Treaty of Amity was invokedby
some U.S. claimants againstthe Islamic Republic itself and
other Iranian respondents. There, the Islamic Republic
invited the Tribunal to declare that the UnitedStates, by
its unabated hostilities towards the Islamic Republic,and
by its repeated violationsof the basic provisions of the
Treaty of Amity, had in effect denouncedthe Treatyof.
Amity. This submissionwas rejected,and the Tribunal,
upholding the continued applicability o fhe Treaty,
proceeded on a number of occasions to find theIslamic
Republic liable to U.S. claimants under the provisionsof
1
the Treaty .
2.75 This Court has alreadyheld in the United
States Diplornaticand Conçular Staff in ~ehran~case that
the Treaty of Amity provides a jurisdictional ground for the
Court to entertaina unilateralappiicationby one of the
contractingparties concerning the interpretatio nr
3
applicationof the Treaty . The Court indicated:
1
The Islamic Republichas not burdened the Court with
the numerous citations that are available £rom the
Iran-U.S. Claims Tribunalwhich bear this point out,
but reserves its right todo so if the United States
takes issue withthe Treaty's application inthis
case.
Judqment, I.C.J. Reports 1980, p. 3.
-bid., p. 27, Para- 52-prepared by the Legal Adviser of the State Department in
1983 and 1984 which show that the United States has
continued to consider the Treaty to be in force'. In fact,
conclusiveproof of the United States' position is found in
the State Department'syearly publication, Treatiesin
Force, which for 1988 and 1989 lists the Treaty of Amity as
still in force2 .
2.77 Under these circumstances,where the
continued enforceability of the Treaty has been upheldby
international judicial fora, where its provisions havebeen.
invoked by U.S. claimants and judicially applied against the
Islamic Republic, and where the other party to the present
case, the United States, has throughout considered the
Treaty as remaining in force, the IslamicRepublic submits
that it is reciprocally entitled to invoke itsprovisions
where this is called for.
2.78- With respect to the second point, the fact
that the Treaty was not specificallyinvoked in the
1
These Memoranda were published in the U.S.
1406 (1983) and XXIIIànI.L.M.r1182 (1984). Copies are
attached at Exhibit 54.
2
A copy of this document is also attached at
Exhibit 54.Application is no bar to it being raised here as an
independent basis of jurisdiction. In support of this
conclusion, the Islamic Republic refers to the Court's
judgment in the jurisdictionalphase of Military and
Paramilitary Activities in and aqainst Nicaraqua (Nicaraqua
v. United States of ~merica)' where Nicaragua invokedfor
the first time in its Memorial a compromissoryclause in its
1956 Treaty of Friendship, Commerce and Navigation (which
was, for al1 intents and purposes, identical to Article
XXI(2) of the Treaty of Amity) as a basis for the Court's
jurisdiction.
2.79 Despite objection £rom the United States
that the Treaty in question had not been raised in
Nicaragua's Application,the Court held that -
"... the fact that the 1956 Treatywas not
invoked in the Application as a title of
jurisdiction does not in itself constitute a bar
to reliance being placed upon it in the
~emorial~.'
The Court observed that insofar as Article 38(2) of the
Rules of Court only provides that the application shall
1
Jurisdiction and Admissibility, Judqment, I.C.J.
Reports 1984, p. 392.
L Ibid., p. 426, para. 80.
-specify thelegal grounds upon which jurisdictionis based
"as far as possible", additional grounds of jurisdictionmay
be brought to theCourt's attention later provided that the
applicant makes it clear that it intends to proceed on that
basis and that the result is not to transformthe dispute
1
brought by the application into a different dispute .
This conclusion was reinforced by the fact that Nicaragua
had reserved the right to amend its submissions in its
application.
2.80 In this case, the Islamic Republicalso
reserved the right in its Application "to supplementand
amend" its submissionsin the courseof further
proceedings2 . By invoking the Treaty of Amity now, the
Islamic Republic fully intends to proceed on the basis of
its provisionsas well as those cited in the Application
regarding theChicago and Montreal Conventions. Moreover,
the characterof the dispute will remain unchangedsince the
same underlying facts that give rise to the United States'
1
Military and ParamilitaryActivities in and aqainst
Nicaraqua (Nicaraqua v. United States of America),
Jurisdictionand Admissibility,Judqment, I.C.J.
Reports 1984, pp. 426-427, para. 80.
Application, p. 8.liability under the Chicago and Montreal Conventionsalso
engage the responsibility of the UniteS dtates under the
Treaty of Amity.
2.81 Moreover, as stated above, the dispute has
been neither adjusted by diplomacy nor settled by other
pacific means, hence entitling theApplicant to invoke the
jurisdictionof the Court under Article XXI(2) of the
Treaty. When the Islamic Republic filed its Application on
17 May 1989, its attempts to negotiate with the United
States over the armed attackagainst its territorial
sovereignty, thekilling of civilians and the destructionof
the aircraft and property had reacheda deadlock, owing to
the refusa1 of the United States Governmentto enter into
any serious discussionof the matter. As the Court held in
the United States Diplomaticand Consular Staff in Tehran
case, "(i)n consequence,there existed at that date not only
a dispute but,beyond any doubt, a 'dispute ...not
satisfactorilyadjukted by diplomacy'within the meaning of
Article XXI,paragraph 2, of the 1955 Treatyl". TG quote
again from this case, "theimrnediate and total refusal" of
the United States authorities"to enter into any
1 United States Diplomaticand'consularStaff in
Tehran, Judqment, I.C.J. Reports 1980, p. 27, para.
51.negotiationswith" the Islamic Republic "excluded in limine
any question of an aqreementto have recourseto 'someother
pacific means' for the settlementof the dispute1'. Th6
Court wenton to note that while Article XXI(2) of the
Treaty "does not provide in express terms that eitherparty
may bring a case to the Court by unilateralapplication,i:
was evident, asthe United States contendedin itsMemorial,
that this is what the parties intended2."
2.82 The Treaty ofAmity provides for a broad
range of rights and obligationsof the Parties, a number of
which are relevant to the present case. The Islamic
Republi-c submits that in destroying IR 655, the United
States violated thePreamble, ArticleIV(1) (callingfor
fair and equitable treatment to be affordedto the nationals
and companies of each Party), ArticleVI11 (providingfor
inost favoured. status for Iran and prohibiting the kind of
trade embargo imposed by the United States which prevents
tne Islamic ~epu'blic from purchasing in particular new Air-
DUS aircraft models due to their United States made
conponents, anS Article X(lj jwhic:~ provides that
1
United States Diplomaticand ConsularStaff in
Tehran,-Judqment,I.C.J. Reoorts 1980, p. 27, para.
52.
2 -bid.I1(b)etweenthe territoriesof the two High Contracting
Parties thereshall be freedom of commerce and navigation").
2.83 Here again, it is appropriateto recall
what the Court said in the Military and Paramilitary
Activities in and aqainst Nicaraqua caseabout a very
similar point made by Nicaragua concerning.itsTreaty with
the United States,since the Court's holding is directly on
point with the jurisdictionalissue raised here. The Court
said:
"Taking into account these Articles of the
Treaty of 1956, particularly the provision in,
inter alia, Article XIX, for the freedom of
commerce and navigation,and the references in
the Preamble to peace and friendship, there can
be no doubt that, in the circumstancesin which
Nicaragua brought its Application to the Court,
and on the basis of the facts thereasserted,
there is a dispute betweenthe Parties, inter
alia, as to the 'interpretation or application'
ofhe ~reat~l."
2.84 This holding is directly apposite to the
facts of this case. Given the United States'refusal to
accept legal responsibilityfor its conduct in the face of
the Islamic Republic's claims, and in the light of the
1 Military and ParamilitarvActivities in and aqainst
Nicaraqua (Nicaraquav. United States of America),
Jurisdictionand Admissibilitv,Judqment, I.C.J.
Reports 1984,p. 428, para. 83.Islamic Republic'sApplication, a disputeover the
interpretationand applicationof the specific provisionsof
1
the Treaty of Amity citedabove clearly exists . Since
Article XXI(2) of the Treaty provides for the compulsory
jurisdiction ofthe Court in such circumstances,the
jurisdictionof the Court is firmly establishedhere.
I The Court's jurisprudencealso makes it clear thatit
is irrelevantwhether the Treaty of Amity was raised
by the Islamic Republicin its statementson the IR
655 incident beforethe ICA0 Council, the United
Nations or elsewhere. As the Court indicated in the
Military and ParamilitaryActivities in and aqainst
Nicaraqua case:
"In the viewof the Court, it does not necessarily
follow that, because a State has not expressly
referred innegotiationswith another State to a
particular treaty as having been violated by conduct
of that otherState, it is debarred from invokinga
compromissory clausein that treaty". (Nicaraquav.
United States of America), Jurisdiction and
Admissibilitv,Judqment,-I.C.J.Reports 1984, p. 428,
para. 83. PART III
THE APPLICABLE PRINCIPLES AND RULES OP LAW
A. Introduction
3.01 In this Part, the Islamic Republicwill
present a statement of the principles and rules of
internationallaw under Article 38(1) of the Statute of the
Court applicable to the question of legal responsibilityfor
the destruction of IR 655 and the killing of the perçons on
board.
3.02 To the extent that the Islamic Republic
invokes violations of conventional law in force betweenthe
Parties, it will be necessary to examine the specific
provisions that have been breached. These include
provisions of the Chicago Convention, the Montreal
Convention, the Treaty of Amity and the UnitedNations
Charter.
3.'03 In addition, it will be necessary to
examine a number of peremptory norms of customary
internationallaw, particularly relating to the useof armed
force and respect for a State's territorialsovereignty,
since these are reflected in the conventionalrules and
indeed throw light on their scope, and are necessary, in any PART III
THE APPLICABLE PRINCIPLES AND RULES OP LAW
A. Introduction
3.01 In this Part, the Islamic Republicwill
present a statement of the principles and rules of
internationallaw under Article 38(1) of the Statute of the
Court applicable to the question of legal responsibilityfor
the destruction of IR 655 and the killing of the perçons on
board.
3.02 To the extent that the Islamic Republic
invokes violations of conventional law in force betweenthe
Parties, it will be necessary to examine the specific
provisions that have been breached. These include
provisions of the Chicago Convention, the Montreal
Convention, the Treaty of Amity and the UnitedNations
Charter.
3.'03 In addition, it will be necessary to
examine a number of peremptory norms of customary
internationallaw, particularly relating to the useof armed
force and respect for a State's territorialsovereignty,
since these are reflected in the conventionalrules and
indeed throw light on their scope, and are necessary, in anyevent, for examining the interpretation ana dpplicationof
the Treatyof Amity. Contemporary international lawo ,f
which thespecial legal regimeof international aviation law
forms an integral part, establishesan absolute legal
prohibition againstthe threat or use of force against the
territorialintegrityof any State. In the present case,
the conductof the United Stateswill have to be assessed in
the lightof these principlesand rules.
B. The Provisionsof the Chicaqo Convention
3.04 The ~hicago Conventionprovides a
comprehensive set ofrules which govern internationalcivil
aviation. Both the Islamic Republic and theUnited States,
along with 160 other States, are parties to the Convention.
It was ratified bythe United States on 9 August 1946 and by
Iran on 19 April 1950, and it continues tobe in force with
respect toboth countries during the relevantperiod covered
by this dispute. While the entire Convention is set out in
Exhibit 1, its Preamble and Articles1, 2, 3 bis and-44(a)
and (h), and Annexes2,11 and 15, are specificallyreferred
to here since these are the provisions which the Islamic
Republic maintainsthe United States more particularly has
breached.event, for examining the interpretation ana dpplicationof
the Treatyof Amity. Contemporary international lawo ,f
which thespecial legal regimeof international aviation law
forms an integral part, establishesan absolute legal
prohibition againstthe threat or use of force against the
territorialintegrityof any State. In the present case,
the conductof the United Stateswill have to be assessed in
the lightof these principlesand rules.
B. The Provisionsof the Chicaqo Convention
3.04 The ~hicago Conventionprovides a
comprehensive set ofrules which govern internationalcivil
aviation. Both the Islamic Republic and theUnited States,
along with 160 other States, are parties to the Convention.
It was ratified bythe United States on 9 August 1946 and by
Iran on 19 April 1950, and it continues tobe in force with
respect toboth countries during the relevantperiod covered
by this dispute. While the entire Convention is set out in
Exhibit 1, its Preamble and Articles1, 2, 3 bis and-44(a)
and (h), and Annexes2,11 and 15, are specificallyreferred
to here since these are the provisions which the Islamic
Republic maintainsthe United States more particularly has
breached. 1. The Preamble
3.05 The ~reamble to the Chicago Convention
reads as follows:
"WHEREAS the future developmentof international
civil aviation can greatly help to create and
preserve friendshipand understandingamong the
nations and peoples of the world, yet its abuse
can become a threat to the general security; and
WHEREAS it is desirable to avoid friction and to
promote that cooperationbetween nations and
depends ;pon which the peace of the world
THEREFORE, the undersigned governments having
agreed on certain principlesand arrangements in
order that international civil aviation may be
developed in a safe and orderly mannerand that
internationalair transportservices may be
establishedon the basis of equality of
opportunity and operated soundlyand
economically;
Have accordingly concluded this Conventionto
that end. "
3.06 A number of basic legalobligations
binding on the contractingParties flow from these
provisions. For example, it is clear thatone of the
principal purposes of the Chicago Conventionas a whole is
to promote the safe and orderly developmentof international
civil aviation. The abuse of civil aviationis spe'cifically
recognizedas being capable of becoming "a threat to the
general security" . 3.07 The shooting downof a civil aircraft
reqistered in and flyinq over the territoryof one State by
the military forces of another is unquestionably contrary to'
the principle of the safe and orderly development of
international civil aviation.O .n its face, such an action '
violates the whole purpose and intent of the Convention as
expressed in its Preamble.
3.08 It would also be an understaternent to
describe the destructionof a civil aircraft bythe use of
weapons as an "abuse" of international civil aviation.As
the Convention's Preamblemakes clear, such abuses can
become a threatto the general security. Thus, any State
which acts in such a way as to abuse internationalcivil
aviation violates not only the express principles underlying
the Chicago Convention,but general principles of security
as well.
2. Articles 1 and 2
3.09 Article 1 of the Chicago Convention reads:
The contractinq States recognizt ehat every
State has complete and exclusive sovereignty
over the airspace above its territory."
And Article 2 provides: "Territory
For the purposes of this Conventionthe
territory of a State shall be deemed to be the
land areas and territorial waters adjacent
thereto under the sovereignty, suzerainty,
protection or mandate of such State."
3.10 Article 1 enshrines the basic rule of
internationallaw that every State has complete and
exclusive sovereigntyover the airspace above its territory.
Article 2 elaborates on this by providing that "territory"
includes the land areas (compris ing,necessarily,any
-
internal waters that may exist) and ter;-itorial waters
adjacent thereto under the sovereignty,protectionor
mandate of such State. On the basis of these provisions,
not only is a State's sovereigntyover its airspace
"complete" in the sense that there is no additional
authority relating thereto which the State does not possess,
it is also "exclusive". TheTourt had occasion to underscore
this point in its judgmentin the Militaryand Paramilitary
Activities in and aqainst Nicaraquacase. There the Court
said:
"The basic legal concept of State sovereignty in
customary international law, expressed in, inter
alia, Article 2, paragraph 1, of the United
Nations Charter, extends to the internalwaters
and territorialsea of every State and to the
air space above its territory. As to
superjacentair space, the 1944 Chicago
Convention on Civil Aviation (Art. 1) reproduces
the established principle of the complete and
exclusive sovereignty'ofa State over the air space above its territory. That convention,in
conjunction with the 1958 Geneva Convention on
the Territorial Sea, further specifieçthat the
sovereignty of thecoastal State extends to the
territorial sea andto the air space above it,
as does the United Nations Convention on thL eaw
of the Sea adopted on 10 December 1982. The
Court has no doubtthat these prescriptionsof
and longstanding tenetç of cuçtomarystabliçhed
international lawl."
3.11 From this it can be seen that
"sovereignty"over airspace implies complete control and
jurisdiction to the exclusionof other States. In the words
of one commentator:
"One aspect.of this claim (of sovereignty)is
the comprehensiveand continuing,even
arbitrary, exclusive competence to control
access to and the use ofg the airspace above
their national territory ."
1
Military and ParamilitaryActivities in and aqainst
Nicaraqua, (Nicaraqua v. United States ofAmerica),
Merits, Judqment, I.C.J. Reports 1986,p. 111, para.
212. 1ee alço, Hughes, z. G., p. 595; and-
O. Lissitzyn, "The Treatmentof Aerial Intruders in
Recent Practice and InternationalLaw", 47 AJIL
(1953),p. 559.
Hughes, *. G., pp. 595-596, citing M. McDougal,
Law and PublicOrder in Space (1965),p. 254. E,
also, the observationof Judge Huber in the Islands
of Palmas case characterizing sovereignty as the
"exclusivecompetence of the Statein regard to its
own territoryu- (Islands of Palmas Case i~etherlands
v. United States), 2 R.I.A.A. 831 (1928),p. 838,
cited in F. Hassan,-"A Legal AnaIysis of the Shooting
of Korean Airlines Flight 007 by the Soviet Union",
49 Journal of Air Law and Commerce (1983),p. 562.A corollary of this principle is that theState which
exercises sovereigntyover its airspacenecessarily
possesses thepower to regulate the use of that airspace
without interference£rom any other State.
3.12 While it is well establishedthat civil
aircraft operating from one State according to recoqnized
international proceduresin international airwaysand over
high seas should be free from any undue interferencefrom
the military forces of another State, fortiori,an
aircraft operating withinthe airspace of its own country of
registration cannot be subject to any outside interference.
Such aircraft are answerable to the authoritiesof that
country alone. .. Itfollows that it is a violation ofArticle
1 of the Chicago Convention andof the underlyingprinciples
of customary international law for any State to take action
which interfereswith the complete and exclusive sovereignty
that anotherState enjoysover its own airspace. While
interferencecan take many forms, certainlyone of its most
extreme expressions iswhen armed force is used to destroy a
civil aircraft whileit is flying within the airspace of its
State of registration. 3. Article 3 bis
3.13 Article 3 biç of the Chicago Convention
provides in sub-section(a) that:
"(a) The contractingStates recognizethat
every State must refrain from resorting to the
use of weaponsagainst civil aircraftin flight
and that, in case of interception,the lives of
perçons on board and the safety of aircraft must
not be endangered. This provision shall not be
interpretedas modifying in any way the rights
and obligationsof Statesset forth in the
Charter of the United Nations."
3.14 This Article, also knownas the 1984
Montreal Protocol to the Chicago Convention, wasadopted by
unanimous consentat an ExtraordinarySession of the ICA0
Assembly on 10 May 1984. Its wide-reachingacceptance was
due primarily to the fact thatsome eight months earlier,
KAL flight 007 had been shot down by Soviet forces after
flying over Soviet airspace. The United States was themost
vocal opponent of the SovietUnion's action,and it
campaignedactively for the latter'scondemnationas well as
for the adoption of Article 3biç. While Article3 biç will
only formallycome into effect after two-thirds ofICAO's
Member States have ratified itl, it is importantto
1 Thus far. some 56 States have ratified Article 3biç.
These do not include theIslamicRepublic and the
United States which, tothis-date,have not ratified
the Montreal Protocol, but have both publicly bound
themselves to respectits provisions.appreciate that the obligations set forth in its
subparagraph (a) reflect principles already wellestablished
in customary internationallaw and, in fact, included within
the pre-existing scopeof the Chicago Convention. Thus,
while Article 3biç is useful in the sense that it clearly
defines and codifies the prohibition against the useof
armed force against civil aircraft, it does not add any new
element to the principlesthat have underlain the Chicago
Convention ever since its inception.
3.15 From ICAO's own records,it is clear that
in adopting Article 3biç, the Assembly did not intend to
create a new rule of lay, but rather to give expression to a
pre-existing one. This was underscoredby the President of
the ICA0 Council, Dr. Assad Kotaite, in his'remarksto the
Assembly on the matter. Dr. Kotaite observed:
"Theremay be some who believe that the
prohibitionof use of force against civil
aircraft is already a firm part of general
internationallaw and that there is no need to
codify thatprovision in the body of the
Convention. True enough,the general
internationallaw is motivated by the principles
of humanity, safetyand protection of human
life. Even in time of war, internationallaw
has explicit provisions for theprotection of
civilians in armed conflict, on the protection
of the wounded andshipwreckedand on the
protection of the prisonersof war. The
International Courtof Justice ruled, referring
to customary international law, that these fundamentallyhumanitarianprinciples are more
exacting in time of peacethan they are in time
of war. There is no doubt that these
humanitarianprinciples concerning the
protection of human life are deeply rooted in
customary international lawl. "
3.16 The Director of ICAO's Legal Bureau also
voiced theopinion that Article 3 biç is declaratory of
existing customary international law. In his view, Article
3 bis recognized,as opposed to created,an obligation not
2
to use weapons against civilaircraft . This view has been
confirmed by many others, -,cludingJudge Gilbert Guillaume
in his article on the destructionof KAL flight007. Judge
Guillaume observed:
"La règle ainsi explicitée ne constitue pas une
nouvelle règlede droit ... La Communauté
aéronautiqueinternationale, en l'adoptant à
l'unanimité, aen effet reconnu l'existence
d'une règle préexistantes'imposant à tous et
\
1
ICA0 A25-Min. P/1, cited in G. Richard, "KAL007: The
Legal Fallout", 9 ANN. Air & Space Law (1984),p.
153. Dr. Kotaite went on to point out, however, that
it was still desirableto have the principle codified
uncertainties.aw in order to remove any
M. Milde. "Interce~tionof Civil Aircraft vs. Misuse prohibant l'emploi des armes contre les aéronefs
civils en vol1."
3.17 Ashas been seen, even before Article3
was adopted, ICA0 had not hesitatedto condemn the use
of force against civil aircraft as a fundamentalviolation
of the Chicago Conventionand internationallaw. This was
the case in both the 1973 Libyan Airlines and the 1983 KAL
007 incidents 2.
3.18 In the first case, Israel claimed that it
..
had downed the plane because it was flying over a sensitive
1 G. Guillaume, "La destruction,le ler septembre 1983,
de l'avion des Korean Airlines (vol KE 007)", Revue
Francaise deDroit Aérien (1984), p. 225.
Unoffical translation: "The rule thus set forth does
not constitutea new rule of law ... The
internationalaeronautical community, inunanimously
adopting it, in effect recognized theexistence of a
pre-existing rule binding upon everybodyand
prohibiting the use of arms against civil aircraft in
flight."
See also, E. Sochor, who states: "With respect to
air law, the amendment (Article3 biç) to the Chicago
Convention banning the use of armed force against a
civilian aircraft did not break new ground because it
only formally recognizeda generally accepted
principle in international law", OJ. c., p. 162.
L
For a review of these incidents, çee, Hughes, OJ.
-it., pp. 611-612; and J. Phelps, "Aerial Intrusions
by Civil and ~ilitary Aircraft inTime of Peace", 107
Military Law Review (1985),pp. 288-290. security areaand because it had not responded to requests
to land (a type of self-defence argument). This contention
was flatly rejected. After commissioning a fact-finding
investigation ofthe incident,the ICAO Council adopted its
Resolution of 4 June 1973 (cited in paragraph 2.37above) in
which theCouncil held that Israel's action constituted"a
flagrant violationof the principles enshrined in the
Chicago Convention"and strongly condemned that action.
3.19 The Council'sdecision in the KAL 007
affair was equally unequivocal. Not only did itreaffirm
that the Soviet Union's use oa frmed force constituted a
violation of international lawinvolving generally
..ecognizedlegal consequences,it stated that such use of
force was incompatible with norms governing international
behaviour, elementary considerations of humanity and the
provisions of the Chicago Conventionincludingits Annexes.
3.20 The KAL precedent is particularly relevant
in view of the uncompromising position that the United
States took. To quote from the United States Alternative
Representativeduring his interventionat the Extraordinary
Session convened bythe ICAO Council to address thematter:
offer a forma1 apology, provide full andnion
complete information regarding thi sncident,
comply with its obligationunder international .lawto make appropriate compensation, and give
credible guaranteesto refrain £rom similar
action in the future1.'
He added:
"The world community has labelled this type of
behaviour £rom private individualsand
organizationsas terroristaction. Foran ICA0
member State to take such action against
airliners which stray into their airspace, and
to assert their intent to do so again sets an
ominous example and is fundamentallyinimical to
the aims and objectives of the ~onvention2."
3.21 The extent of the United States' outrage
ove..the shooting down of a civilian aircraft wasreflected
in Resolution No. 353 passed jointly by the U.S. Senate and
1 C-Min. EXTRAORDINARY(1983)/1,p. 22. A copy of the
relevant extracts from this documentis attached at
Exhibit 55.
L See, Exhibit 55, p. 23. Diplomatic notes that the
United States sent to the Soviet Unioncategorizing
the shooting downof KAL 007 as a breach of
international lawand demanding reparation are
reprinted in XXII 1 .L.M. 1196-1198-(1983). Copies of
these notes are attached at Exhibit 56.
Interestinalv.in the aftermathof this incidentthe
United States and the Soviet Union signedan
- agreement providing forprocedures for foreign
airliners to make emerqency landings in the restricted
areas of the Soviet Union in the event of Denetrationof
its airspace. See, E. Sochor, op. cit., p. 165; 25
M. 105 (1986). In contrast, the United
States has taken no similar remedialaction to assure
that its warships inthe Persian Gulf will not repeat
this unlawful act of shooting down a civil airliner.House of Representativeson 15 September1983 and signed
into law as Public Law 58-58 by President Reagan on28
September 1983'. Amongst other things, the Resolution
condemned the Soviet Union for destroying the aircraft and
murdering those on board, and called for an apology and full
compensation. The Resolution also criticizedthe Soviet
Union for failing to undertake notto repeat similar actions
and demandedthat the SovietUnion "abide by internationally
recognized andestablishedprocedures which arepurposefully
designed to prevent the occurrenceof such tragedies".
3.22 Following these developments, theUnited
States cgmmenced its lobbying for the adoption oA frticle 3
biç into the Chicago Convention. To this end, the United
States introduced a draftamendment to the Chicago
Convention which,in relevantpart, called foreach
contracting State not to use force against civilaviation
and, when intercepting a civil aircraft, not to endanger the
2
safety of the perçonson board . However, £rom the
statementsmade by the U.S. Representatives at the time, and
from the wording of Resolution 353, it was clear that the
L A copy of the House-Senate Joint Resolution 353,
dated 15 September 1983, is attached at Exhibit 57.
2
A copy of this draft amendmentis attached at
Exhibit 55.United States acceptedthat the destructionof a civilian
aircraft by armed force violated theChicago Conventioneven
before Article 3 biç was introduced. Based on these
statements, the United States would be estopped from now
arguing that the useof armed force against a civilairliner
is not a breach of the Chicago Convention.
4. Articles 44(a) and (hl
3.23 Articles 44(a) and 44(h) of the Chicago
Conventionprovide as follows:
"Objectives
The aims and objectives of the.0rganizationare
to develop the principles and techniques of
internationalair navigationand to foster the
planning and development of internationa air
transport so as to:
(a) Insure the safe and orderly growth of
international civil aviation
through* * theworld;
(h) Promote safetyof flight in
internationalair navigation; .., ,."
3.24 These Articles reinforcethe provisions of
the Preamble regardingthe importanceof safety of flight as
one of the principal objectivesof the Chicago Convention.
Thus, to the extent that it may be contended that the
Preamble of an international agreementdoes not create
binding legal obligations,in the case of the ChicagoConvention, these are provided for in Articles 44(a) and
(hl-
3.25 The central roleof the principles set
forth in Articles 44(a) and (h), and their close link to the
prohibition againstthe use of armedforce appearing in
Article 3 biç, were underscoredby the President of theICAO
Council in his opening remarks on the IR 655 incidentat the
Council's Extraordinary Sessionof 13 July 1988. The
President observed:
"In fact, the basic aim and purpose of Our
Organizationas enshrined in theconstitutional
Charter of ICAO - the Conventionon
International CivilAviation - is to agree on
principlesand to make arrangementsin order
that international civil aviation may be
developed in a safe and orderlymanner
throughout theworld. The fundamentalprinciple
that States must refrainfrom resortingto the
use of weapons against civilaircraft must be
respectedby each Statel.'
3.26 While subparagraphs(a) and (h) of Article
44 lie at the very heart of the Chicago Convention,and .thus
-
form the predicate to every dispute that arises thereunder,
it is significantto note that as recentlyas October 1985,
Article 44(h) was specificallyinvoked before the Council by
1 C-Min. EXTRAORDINARY (1988)/1, p. 3 (~xhibit37).a State complainingabout .theun ..lawfuliolation of its
airspace by foreign military forces. This complaint arose
out of the attack and bombing on 1 October 1985 by Israeli
warplanes on areas of Tunisian territory in the vicinity of
the Tunis InternationalAirport. In raising this incident
before the ICA0 Council, Tunisia not only asserted Israel's
violation of the Preamble and Article 1 of the Chicago
Convention, it also drew attention to the violation of the
intent of Article 44(h). After deliberatingTunisia's
requests, the Council adopted a Resolution condemningIsrael
for its violation and urging it to refrain £rom committing
any fkther action which mightendanger the safety of
internationalcivil aviation 1.
3.27 It follows that there is clear precedent
for invoking Article44 of the Chicago Convention when an
unlawful violationof a State's airspace has been committed
which endangers the safety of internationalcivil aviation.
In the circumstancesof this case, nothing couldbe further
removed £rom insuring the safe and orderly growthof
international civilaviation than the shooting downof an
aircraft registered in one State by the armed forces of
1 Copies of this Resolution (Doc. C-Min. 116/11, pp.
84-86) together withTunisia's complaint (Doc. C-Min
116/9, pp. 63-67) are attached at Exhibit 58.another State. Such conduct clearly violates Articles 44(a)
and (h) of the Chicago Convention.
5. The Annexes to the Chicaqo Convention
3.28- The same purpose of air safety is
reflected in the rationaleestablished in Articles 37, 54(1)
and 90 of the Chicago Conventionwhereb. .nternational
standards and recommendedpractices adoptedby the ICAO
Council are designatedas Annexes to the Convention. It is
these Annexes which give substance to the generalprovisions
in Articles 44(a) and (h).
3.29 In compliancewith its mandate, ICAO has
developed eighteen Annexes,three of which (Nos. 2, 11 and
15) are especially relevant in the present context. To
preface a detailedanalysis of the provisionsof these
Annexes, it is important to appreciate the quasi-legislative
role of ICAO. Although each Statehas sovereigntyover its
own territorialairspace as provided forin Article 1 of"'the
Chicago Convention, Article 12 establishesthe following
distinction:
"Each contractingState undertakesto adopt
measures to ensure that every aircraft flying
over or maneuvering withinits territory ...
shall comply with the rulesand regulations
relating to the flight and maneuver of.aircraft
there in force. Each contractingState undertakes to keep its own regulationsin these
respects uniform,to the greatestpossible
extent, with those established from time to time
under this Convention. Over the high seas, the
rules in force shall be those established under
this Convention."
3.30 There are two levels of legislationwithin
the Annexes, "Standards"and "Recommended Practices", which
States should complywith. Article 38 of the Convention
explains the distinction betweenthe two, and provides that
a State which "finds it impracticable to comply" with an
international standard"or which deems it necessary to adopt
regulationsor practices differingin any particularrespect
from those established by an international standard", shall
give immediate notificationto ICAO.
(a) Annex 2
3.31 The Rules of the Air establishedby ICA0
appear inAnnex 2 to the ChicagoConvention. A note to
paragraph 2.1.1. of Annex 2States that -
"(t)he Council of the International Civil
Aviation Organizationresolved, inadopting
Annex 2 in April 1948 ... that the Annex
constitutes Rules relating to the flightand
manoeuvre of aircraft within the meaning of
Article 12 of the Convention. Over thehigh
seas, therefore,these rules apply without
exception". 3.32 According to the foreword to Annex 2, the
entire text of the Annex is comprised of standardsonly,
since al1 recommendedpractices wereupgraded in 1951. By
paragraph 2.1.2., contracting Statesare deemed to have
agreed the following:
"For purposes of flightover those parts of the
high seas where a Contracting Statehas
accepted, pursuant to a regionalair navigation
agreement, the responsibility of providina gir
traffic services,the 'appropriate ATS
authority' referred to in this Annex is the
relevant authority designatedby the State
responsible forproviding those services1."
Therefore an Air Traffic Service ("ATS")provider in the
airspace of State X will be accorded the responsibility
through ICAO for CO-ordinatingan additional area ofhigh
seas airspace, the sovereign and internationalairspaces
together constitutinga Flight InformationRegion ("FIR").
The globe is largelydivided into FIRs provided by States
and the CO-ordination and efficient operation of FIRs within
a certain region, such as the Middle East, are periodically
reviewed by means of Regional Air NavigationConferences,in
this casethe Middle East Region Air NavigationConference
("MID RAN"), under the auspices of ICAO, which adopts their
reports. No other body,especiallynot thernilitary forces
1 Emphasis added.of a third State, is granted any rights overcivil aviation
in an FIR1
3.33 Paragraph 3.3 of Annex 2 sets out the
provisions regarding informationon flights, in particular
the content and filing of flight plans. Paragraph
3.3.1.1.2.1 states as follows:
"A flight plan shall be submittedprior to
operating:
(a) any flight or portion thereof tobe
provided with air traffic control service ...
(c) .anyflight withinor into designated areas,
or along designated routes, when so required by
the appropriateATS authority to facilitate the
provision of flight information,alerting and
search and rescue services;
(d) any flight withinor into designated areas,
or along designated routes, when so required by
the appropriate ATSauthority tofacilitate co-
ordination with appropriate military units or
with air traffic services unitsin adjacent
States in order to avoid the possible need for
interceptionfor the purposes of identification;
(e) any flightacross internationalborders2.'
3.34 In order to obviate the necessity fora
potentially hazardous interceptiob ny State aircraft under
1 The area of Tehran FIR can be seen on page A-2 of
ICA0 Doc. C-WP/8645, a copy of which is attached at
Exhibit 36.
2 Emphasis added.the terms of paragraph 3.8 and appendedmaterial', ATS
authorities need to be apptised of the flightplan
information. This is so that an ATS authority may liaise,
using the procedures to be discussed below in relation to
Annex 11, with "appropriatemilitary units"from its own
State operatinq within its FIR. Liaison with "air traffic
services unitsin adjacent States"is necessary in order to
ensure an effective hand-over from one FIR to another of an
aircraft in flight and thus to ensure the constant provision
of ATS2 .
3.35 The flight plan must be'submitted atleast
sixty minutes before departure of the aircraft "to an air
traffic services reporting office" in accordancewith sub-
paragraphs 3.3.1.1.2.2and 3 of Annex2. On completionof a
flight, a flightplan is closed by the aircraft commander
making a report to the ATS unit at the arriva1 aerodrome
pursuant to the provisionsof paragraph 3.3.1.5. During the
flight, according toparagraph 3.6.2.1, the aircraft -
"shall adhere to the current flight plan ...
submitted for a controlledflight.(i.e,,one to
1
A "State aircraft"is defined in Article 3(b) of the
military,oncustoms or police services. is used in
\
The military forces of a third State by definition
would have no role in this levelof CO-ordination. which air traffic controlservices are provided)
unless a request for a change has been made and
clearance obtained £rom the appropriate air
traffic controlunit, or unless.an emergency
situation ariseswhich necessitates immediate
action by the aircraft, in which eventas soon
as circumstancespermit, after such emergency
authority is exercised, the appropriateair
traffic services unit shall be notified of the
action taken and that this action has been taken
under emergency authority."
3.36 From these provisions, it is clear that
the relevant ATSprovider is the only legitimatebody which
can authorise a deviation froma filed flight plan. This is
subject only to the final authority of the aircraft
commander to deviate where this is required in an emergency
to ensure the safety of his aircraft under national
regulationsof the State of registrationof his aircraft or
pursuant to universally applicableprinciples of good
airmanship. Again, it is obvious that themilitary forces
of a third State have no right to order a deviation froma
filed flight plan.
3.37 The only situation whichmay involve a
deviation from an agreed flight plan is an interceptionby a
State aircraft. Wherean aircraft is still flying true to
its flight plan there should be no need for State aircraft
to become involved atall. Therefore, interception
presupposesa prior deviation due, for example, to a
navigationalerror. Where an aircraft has deviated andthereby penetrates another State's airspace without
authorization (usuallycoupled with proximityto a
prohibited or restrictedarea), then the interception
procedures setout in AppendixB to Annex 2 come into play.
The latter are expressed to be standards by paragraph 3.8.2
of the Annex. Paragraph 1.1 of AppendixB States the
following important principles:
"To achieve the uniformityin regulationswhich
is necessary for the safety of navigationof
civil aircraftdue regard shall be had by
Contracting States tothe following principles
when developing (municipal)regulationsand
administrativedirectives:
(a) interceptionof civil aircraftwill be
undertaken only as a last reçort;
(b) if undertaken,an interceptionwill be
limited to determining the identity of the
aircraft tonits planned track, direct it beyond
the boundariesof national airspace, guideit
away from a prohibited,restricted-ordanger
area or instruct it to effecta landing at a
designated aerodrome ...1."
3.38 In addition,AttachmentA, which has
special recommendatorystatus, setsout the minimum and
maximum standardsfor interceptingState aircraftand
interceptedcivil aircraft. Three phases of interception
manoeuvres are specified,which the intercepting aircraft
may adopt in order to properly and safelyidentify the
1 Emphasis added.intercepted aircraft. Visual and audio çignals are
specified in the Attachment and in the more substantivepart
of the Annex inorder that interceptorand intercepteemay
understand eachother and to avoid any potentially dangerous
opportunitiesfor misinterpretation.
.
3.39 It is submitted that theçeestablish the
upper limits of interferenceby State authorities with civil
aircraft permittedunder internationallaw. A State may go
no further inits own airspace evenif an aircraft is
--
intruding. There is no right of interceptionwhatsoever'in
the Chicago Convention allowing a third State to interfere
in any way with civil aircraftin the FIR under the control
of another State, especiallyif the aircraft is not
intruding but is within the airçpace and FIR of its own
State of registration.
\
(b) Annex 11
3.40 Annex 11 deals with Air Traffic Services:
The key provisions in the present context are those
concerningCO-ordinationbetween military authoritiesand
civilian ATS authorities. In this respect,paragraph 2.14
provides as follows:
"2.14.1 Air traffic services authorities shall
establish and maintain close CO-operatLon with
military authoritiesresponsiblefor activitieç that may affect flightsof civil aircraft.
2.14.2 Co-ordinationof activities potentially
hazardous to civil aircraft shallbe effected in
accordance with 2.15."
Paragraph 2.15 States the following:
,"Thearrangements for activities potentially
hazardous to civil aircraft,whether over the
shall be CO-ordinatedwith the appropriateair
traffic servicesauthorities. The CO-ordination
shall be effected ea-rlyenough to permit timely
promulgation of information regarding the
activities in accordance with the provisionsof
Annex 15."
3.41 Guidance regarding the interpretation of
the above provisions is contained in theAir Traffic
Services Planninq ~anuall (the 'Manual'). As mentioned
above, a State may establish prohibitedor restrictedareas
over its own territory. However, accordingto paragraph
3.3.2.2 of the Manual -
"(i)n areas where no sovereign rights are
exercised (e.g. over the high seas) only danqer-
areas may be established by that body
resoonsiblefor the activities causinq -heir
establishment. "
3.42 A danger area is defined inAnnex 15 as
"(a)n airspace of defined dimensions withinwhich activities
1 ICA0 Doc. 9426-AN/9241984 (emphasisin original).dangerous to the flight of aircraft may exist at specified
times". Paragzaph 3.3.2.4 ofthe Manual provides a
limitation on the establishmentof a danger area over the
high seas which, it is submitted, is the upper limit of the
authority whichthe United States could have arguably
exercised in the high seas portion of the Persian Gulf. It
states:
involved, onlydanger reareas can be established.
Those who initiate danger area restrictions over
the high seas are under an increased moral
obliqation to judge whether establishmentof the
danger area is unavoidable and if it is',to give
full details on the intended activities therein.
It would appear that activities exceedinq a
certain risk level should not be conducted in
such airspace and that othermethods of
achievinq the desired objective, such as
temporary airspace reservations,shouldPbe
applied." (emphasisadded)
3.43 The Manual also deals with temporary
airspace reservations,which is the only other authorized
means of affecting airspace in the circumstancesof this
case within the contextof a NOTAM, itself to be discussed '
separately below. The Manual States in paragraph 3.3.3.1
that -
"(i)t is generally accepted practice that
airspace reservationsshould onlybe applied
during limited periods of time and should be
their establishments ceasesti....A)irspaceused
reservations shouldb .e CO-ordinatedprimarily with the ATS units directly concernedbecause
they will be in the best position to propose and
develop the procedural means required to put the
reservation intoeffect."
3.44 Further guidance on proper civil-military
CO-ordination is premised upon the basic principle expressed
in paragraph 2.2.3 of the Manual that -
"(t)he resultant sharingof the airspacemust
therefore be made in such a manner that military
operations do not constitute a hazard to the
safe conduct of civil flights."
3.45 It is apparent, therefore,that the
obligation placed upon States to CO-ordinate their
potentially hazardous activities with ATS authoritiesin
paragraph 2.15 of Annex 11 is pre-eminent over thatwhich is
placed upon ATS authorities to CO-operate with military
authorities under paragraph 2.14. The latter duty envisages
CO-ordinationby the ATS provider with the military
authorities in its own area of competence.
3.46 During the Third MID RAN meeting held
between 27 March and 13 April 1984l ("the MID RAN Meeting"),
1 ICA0 Doc. 9434. MID/3. A copy of extracts £rom this
document is attached at Exhibit 59.the issue of civil-militaryco-ordinationwas addressed.The
MID RAN Meeting recalledICA0 Assembly Resolution A26-8
which, inter u, resolved as follows:
"1. the common use by civil and military
aviation of airspace and of services shallbe
arranged so as to ensure the safety, regularity
and efficiency of internationalcivil air
traffic; and
2. the regulationsand procedures established
by Contracting States to govern the operation of
their State'.aircraft over the high seas shall
ençure that these operationsdo not compromise
the safety, regularityand efficiencyof
international civilair traffic and that, to the
extent practicable, these operations comply with
the rules of the air inAnnex 2."
The MID RAN Meeting noted that -
"the Middle East region was generally oneof the
most congested, restrictive and difficult' areas
in which t,ooperate, due to the large number of
prohibited, restricted and danger areas, which
led to circuitousroutings inmanycases, and a
number of flight level restrictionson the
airwaysl."
3.47 In compliancewith its mandate, the MID
RAN Meeting promulgatedRecommendation2.6/1 2. The
1 Para. 2.6.2 of the Minutes.
2
E, pp. 2.6-3, et çeq., of ~xhibit 59.Recommendationprovided for a series of detailed and
explicit CO-ordinationmeasures to be taken by MID RAN
States inorder to ensure that civil aircraftcould navigate
safely in the region, unmolested by military activities.
The measures had been fully implementedby the Islamic
Republic and other littoral Statesof the Persian Gulf as
noted in the Minutes of the Meetingof 6 October 1988 held
at the Paris officeof ICA0 which appearas Exhibit 40
hereto.
-
3.48 Before the United>tates-'-interferencein
civil aviationin the region, that is prior to the 1984
NOTAMs, and the destructionof IR 655, therefore,there was
a pre-exiçting regulatory regime governing territorial and
high seas airspace for the wholeMiddle East, includingthe
Persian Gulf. Any State entering this area and proposingto
conduct military activitieswhich might impinge uponcivil
aviation was under a duty to actively seek out the lawful
authorities in order that they could effectproper civil-
military CO-ordination within their own FIR to ensure the
safety of civil aviation. The United States totally ignored
theçe safety regulationsof the Chicago Convention.
(c) Annex 15
3.49 This Annex deals with Aeronautical
,
InformationServices. In the present context, theprovisions concerningthe issuance of NOTAMs are
particularly relevant. A NOTAMis defined in Chapter 2 of
Annex 15 in the following terms:
"A notice containinginformation concerning the
establishment, conditionor change in any
aeronautical facility, service, procedure or
hazard, the timely knowledge of which is
essential to personnelconcerned withflight
operations.
- Class 1 Distribution. Distributionby
means of telecommunication.
- Class II Distribution. Distributionby
means other than telecommunication(i.e. by
mail)."'
3.50 Chapter 3of Annex 15 sets out the
responsibilities and functions of each ContractingState
regarding the provisionof aeronauticalinformationservices
in general, includingNOTILMs. Paragraph 3.2.1 of the Annex
States that-
"(e)ach Contracting State shalltake al1
reasonablemeasures to ensure that the
informationit provides relatinq to its own
territory is adequate, accurate and timely.This
shall include arrangements for the timely
provision of required information to the
aeronautical information services by each of the
State services associated with aircraft
operations." (emphasis added)
Paragraph 3.2.4.1 then provides that- "(m)aterial'tobe issuedby NOTAM shall be
thoroughly checked and CO-ordinatedby the
responsibleservices beforeit is submittedto
the aeronauticalinformation service, inorder
to make certain that al1 necessary information
has been included and that it is correct in
detail prior to distribution."
3.51 The requisitecontents of a NOTAM ar'e
specified inChapter 5of the Annex. A NOTAM is envisaged
,tobe of "a temporary nature" by paragraph 5.1.1, while
paragraph 5.1.1.1 States that a NOTAM "shall beoriginated
and issued"whenever anumber of specified circumstancesare
envisaged. The two most relevantin the presentcontext are
as follows:
"1) presence ofhazards which affect air
navigation (including obstacles(and)military
exercises) ...;
n) establishmentor discontinuance (including
activationor de-activation)as applicable,or
changes in thestatus of prohibited,restricted
or danger areas ...."
3.52 At most, Annex 15 may-permita State to
issue a NOTAM concerninghigh seas airspace within its own
FIR in which a "danger area"exists for a temporary period.
It will be recalledthat such a "danger area" must be of
"defined dimensions". A lesser degree of interferenceby a
State with high seas overflightis possible by means of an
"airspace reservation"of very limited duration. However,
internationalair law does not permit any issue of aNOTAM by one State which impinges or may impinge upon
another State's airspace or which iç unlimited in duration
like that of the United States. This waç also confirmed by
the 23 April 1985 deciçion of the ICAO Council concerning
the illegalityof Iraqi NOTAMs over Iranian airçpace. It
waç in the light of these provisionç that the 6 October 1988
meeting at the Paris office of ICAO concludedthat the
United States' NOTAM with respect to the Persian Gulf -
"...is in contraventionof approved ICAO
Standards and Recommended Practices. The
United States. It stressed that theby the
promulgationof aeronautical information is the
responsibilityof the appropriateATS authority
of the States which provide services in the FIRs
concerned, includingthe airspace extending over
the high seas, in accordance with relevant ICAO
provisions and theAir Navigation Plan of ICAO.
In the light of these circumstances,the meeting
requests the Council of ICAO to urgentlyaddress
this matter, and to take appropriate measureçto
secure the withdrawalof the referencedNOTAMI."
This MID RAN Report was alço confirmed by the ICAO Council.
C. The Provisions of the Montreal Convention
3.53 The Montreal Convention of 1971, following
after the Tokyo Convention of 1963 and the Hague Convention
-ee, Exhibit 40, p. 2.NOTAM by one State which impinges or may impinge upon
another State's airspace or which iç unlimited in duration
like that of the United States. This waç also confirmed by
the 23 April 1985 deciçion of the ICAO Council concerning
the illegalityof Iraqi NOTAMs over Iranian airçpace. It
waç in the light of these provisionç that the 6 October 1988
meeting at the Paris office of ICAO concludedthat the
United States' NOTAM with respect to the Persian Gulf -
"...is in contraventionof approved ICAO
Standards and Recommended Practices. The
United States. It stressed that theby the
promulgationof aeronautical information is the
responsibilityof the appropriateATS authority
of the States which provide services in the FIRs
concerned, includingthe airspace extending over
the high seas, in accordance with relevant ICAO
provisions and theAir Navigation Plan of ICAO.
In the light of these circumstances,the meeting
requests the Council of ICAO to urgentlyaddress
this matter, and to take appropriate measureçto
secure the withdrawalof the referencedNOTAMI."
This MID RAN Report was alço confirmed by the ICAO Council.
C. The Provisions of the Montreal Convention
3.53 The Montreal Convention of 1971, following
after the Tokyo Convention of 1963 and the Hague Convention
-ee, Exhibit 40, p. 2.of 1970, was the third in a series of multilateral treaties
developed under the aegis of ICA0 and designed to deal with
the suppression of unlawful acts againstthe safety ofcivil
aviation and its passengers, crewand.aircraft. To this
end, Article 1 provideç in sub-paragraphs(a) and (b) that:
"1. Any person commits an offence if he
unlawfully and intentionally:
(a) performs an act of violence againsta
person on board an aircraft in flight
if that act is likely to endanger the
safety of that aircraft;or
(b) destroys an aircraft in service or
causes damage to such an aircraft
which renders it incapableof flight
or which is likely to endanger its
safety in.f.,ght."
3.54 The legal prohibition establishedunder
Article 1 is categoricaland unqualified. According to
ordinary rules'of treaty construction,includingthe
provisions ofArticle 31(1) of the Vienna Convention on the
Law of Treaties, this legal prohibition is not simply -
limited to hijackingsor terrorism,but includesal1 acts of
violence againstthe aircraft and perçons on board likely to
endanger the aircraft's safety as well as the destructionof
an aircraft 1.
1
It is worth recalling thatin relationto the
shooting downof KAL 007, the Representative of the
United States termed such action "terroristaction"
(-e, para. 3.20, above). 3.55 By the same token, the reference to "any
person" in Article 1 must be read to include bothnatural
perçons and "persons"such as foreign governmentsor armed
forces. As confirmed by the 1988 Rome Conference of the
InternationalMaritime Organization on adoption of the
Convention on Maritime Safety, Article 3, paragraph 1 of
that Convention, containing a similar provision for
supressionof unlawful acts against the safety of maritime
navigation by "any person", covers "perçons'such as foreign
1
governments and members of their armed forces . It was also
acknowledged in the proceedings of the InternationalLaw
Association at its 1984 Biennial Reunion, when the concept
of "State terrorism" wasdebated, that the kind of acts
which are prohibited by the Montreal Convention are
performed by people; and even government officiais might
become liable by virtue of authorizingor ratifying such
acts 2.
3.56 This conclusion draws support fromthe law
of State responsibilityfor the acts of a State's agents and '
IMO Doc. PCUA 2/pp. 13 and 14 (1988).
See InternationalLaw Association (Report, Paris
Revision), Committee on InternationalTerrorism
(1984), pp. 167-169. Ss- also, A. Sofaer,
"~errorikmand the Law", 64 Foreiqn Affairs (1986),
p. 920; McWhinney,-AerialPiracy and International
Terrorism (2nd rev. ed., 1987), pp. 153-155; and
Sucharitkul "InternationalTerrorismand the Problem
of Jurisdiction",14 Syracuse Journalof Int'l Law
and Commerce (1988), p. 1.officiais. In the Massey claim, for example, Commissioner
Nielson stated the rule in the followingway:
"1 believe that it is undoubtedlya sound
general principle that whenever misconduct on
the part of (perçonsin State service), whatever
may be their particuLar status or rank under
to performawits obligationsunder internationalon
law, the nation must bear the res onsibility for
the wrongful acts of its servants P."
3.57 An even more stringentset of principles
applies to the armed forces of a State. Thus, in the
Youmans case, the United States-Mexico General Claims
Commission rejected an argument advanced by the Mexican
Government that the wroncjfulact of a military official
acting in the discharge of his duties couldnot engage the
responsibilityof the State under internationallaw. The
Commission held:
"If this were the ...rule it would follow that
no wrongful acts committedby an officia1 could
1 Massey v. ~nited Mexican States, 4 R.1.A.A 155
(1927),at p. 159, cited in Repertory of
International Arbitral Jurisprudence Vol. II (ed.
Coussirat-Coustèreand Eisemann. 1989,--. 489: and
çee, generally,J-P. Queneudec,La ~esponsabilité
Internationale de1'Etat pour les Fautes Personnelles
de ses Aqents (Paris, 1966), pp. 173-193; 1.
Brownlie, çlLçtemof the Law of Nations:State
Responsibility(Oxford,1983), pp. 139-141; and D.P.
O'Connell, International Law(London,2nd ed. 1970),
p. 963. could be held liables...rwe do not consider that
the participationof the soldiers in the murder
... can be regarded as acts of soldiers
committed in their private capacity when it is
clear thatat the time of the commissionof
these acts the men were on duty under the
immediate supervisionand in the presence of a
commanding officerl.'?
Similar reasoning underliespart of the Court's holding in
the Nicaraqua case. For example, the United States washeld
liable for a breach of internationallaw by training,
arming, equiping and financing theContra forceswhose acts
were, in this respect,imputable to the United States 2 .
3.58 In the lightof these principles,
therefore, it can be seen that any "person" who commitsa
violation of the Montreal Convention withinthe meaningof
Article 1 thereof necessarily includes a State when the
"person" involved is one of the State's agents or officiais
for whose acts the State is responsible. Inother words, a
1
Youmans v. United MexicanStates, 4 R.I.A.A. 110
(1926),pp. 115-116, cited in Repertory of
International ArbitralJurisprudence,Vol. II, oe,
Res~onsibilityof States for Unlawful Actsof their
Armed Forces (A.W. Sijthoff, Leyden, 1957), pp. 49-
52.
2 Military and ParamilitaryActivities in and aqainst
Nicaraqua (Nicaraqua v. United States of America),
Merits, Judqment, I.C.J. Reports 1986, p. 196, para.
292(3) (dispositif).State acts through its representatives andagents who are
natural perçons. Inthis case, the crew of the Vincennes,
its Commanding Officer,Captain Will Rogers, and his
superiors wereacting directlyunder the authority ofthe
Unïted States 1 .
3.59 Moreover, the shooting downof IR 655 was
an intentional actfor which the United States bears
responsibilitywithin the meaning of Article 1 of the
Montreal Convention. Evidence of the United States "intent"
is provided by the record of actions on board the Vincennes ..
before it fired and the fact that permission to £ire was
sought £rom the United States Middle EastTask Force.
3.60 Article 3 of the Montreal Convention is
also relevant. This Article links the State to the offence
committed by a "person"under Article 1 using thefollowing
language :
'"EachContractingState undertakes to make the
offences mentioned inArticle 1 punishable by -
severe penalties."
1 Moreover, the United States effectively ratifie dhe
action of Captain Rogers when it subsequently awarded
him the Leqion of Merit for his service in the
Persian ~uif. Çee, The Washinqton Post,23 April
1990. a co~v of an extract of which is attached atAs will be shown, the United States violated thisprovision
as well. Ratherthan punishing Captain Will Rogers for the
commission of this internationalcrime, the United States
bestowed on him one of its highestpeace-time honours for
his service in the Persian Gulf.
3.61 Finally, Article lO(1) must also be noted.
It provides:
"1. Contracting States shall, in accordance
with internationaland national law, enaeavour
to take al1 practicable measuresfor the purpose
of preventing the offences mentioned in Article
1."
The actions of the United States were directly contrart yo
this provision. The circumstancesand events set outin
Part 1 reveal not only that the UnitedStates has continued
to interferewith civil aviation in the Region but also that
the United States has failed to take appropriatemeasures to
prevent the recurrenceof offences under Article 1, which,
in this case, involved thekilling of 290 innocent people on
board an aircraft and the destructionof the aircraft
itself. The United States must bear responsibilityfor
these violationsas well. D. The Treaty of Amity
3.62 The relevant provisionsof the Treaty of
Amity have been referred to above in connectionwith the
discussion.ofthe Court's jurisdiction. Apart from the
Preamble, the relevant substantive provisions are Articles
IV(l), VI11 (1) and (2) and X(1) which, for convenience,
are set out below:
"Article IV
1. Each High ContractingParty shall at al1
times accord fairand equitable treatment to
nationals and companies of the other High
ContractingParty, and to theirproperty and
enterprises; shallrefrain fromapplying
unreasonableor discriminatory measuresthat
would impairtheir legally acquired rights and
interests;and shall assurethat their lawful
contractual rights areafforded effectivemeans
of enforcement in conformitywith the applicable
laws."
"ArticleVI11
1. Each High Contracting Party shall accord to
products of the other High ContractingParty,
£rom whatever placeand by whatever type of
carrier arriving, and to products destined for
exportationto the territoriesof such other
High ContractingParty, by whatever routeand by
whatever typeof carrier, treatmentno less
favorable than that accorded likeproducts of or
destined for exportation to any third country,
in al1 matters relating to: (a) duties, other
connectionwith importationand exportation;and
(b) interna1 taxation,sale, distribution,
storage and use. The same rule shall apply with
respect to the internationat lransfer of
payments for imports and exports. 2. Neither High Contracting Party shall impose
restrictionsor prohibitionson the importation
of any productof the other High Contracting
Party or on the exportationof any product to
the territoriesof the other High Contracting
Party, unless the importationof the like
product of, or the exportationof the like
product to, al1 third countries is similarly
restrictedor prohibited."
"Article X
1. Between the territories of the two High
Contracting Parties there shall be freedom of
commerce and navigation."
3.63 It is not necessary to interpret these
provisions asa matter of first impression:the Court has
already had occasion to address virtually identicaltreaty
provisions in the Military and ParamilitarvActivities in
and aqainst Nicaraqua case. That case also involved a
treaty of Friendship, Commerceand Navigation (customarily
called a "FCN" Treaty) similar to the Treaty of Amity with
Iran1. Its Article 1 contained a provision very much along
the lines of Article IV of the Treaty of Amity with Iran,
and itsArticle XIX included a provision calling for freedom
of commerce and navigationsimilar to Article X(1) of the
Treaty of Amity with Iran.
1 The U.S. Deputy Assistant Secretaryof State at the
time the Nicaragua-U.S. and Iran-U.S. treatieswere
signed referred toeach as "the traditional type" of
FCN treaty. Hearing beforethe U.S. Senate,
Committee on Foreign Relations, (84thCong., 2nd
Sess.), 3 July 1956, pp. 1-2. 3.64 The Court's judgment in the Nicaraguacase
sheds light on the scope of the legal obligationimposed on
each Party by their general undertaking that there be peace
and friendshipbetween them. The Court stated:
"There must be a distinction, evenin the case
of a treaty of friendship,between the broad
category ofunfriendly acts,and the narrower
category of acts tendingto defeat theobject
and purpose of the Treaty. The objectand
purpose is the effectiveimplementation of
friendship in the specific fieldsprovided for
in the Treaty, not friendshipin a vague general
sensel.
3.65 ,Here,the specific fields providedfor in
the Treaty of Amity which the Islamic Republic maintains
have been violatedby the United States in shooting down IR
655 are (i) the failure under Article IV(1) to accord "fair
and equitable treatment" to the nationals of the Islamic
Republic who were killed as a resultof the United States'
actions, (ii) the failure under Article VI11 to afford
unrestrictedtrade, in particularconcerningthe Islamic
Republic'sability to purchase a replacementaircraft, and
(iii) the failureto respectthe IslamicRepublic's freedom
of commerce and navigation provided for in.ArticleX(1).
1 Military and ParamilitaryActivities inand aqainst
Nicaraqua (Nicaraquav. United States of America),
Merits, Judqment,I.C.J. Reports 1986,p. 137,
para. 273. 3.66 With respect to the first point, the
obligation of the United States to accord fair and equitable
treatment to nationals and companiesof the Islamic Republic
under Article IV(1) of the Treaty of Amity necessarily
includes the obligation not to interfere repeatedlywith
Iranian commercial aircraft and above al1 not to kill
Iranians or to destroyproperty belonging to an Iranian
Company - in this case an Airbus 300 belonging to Iran Air.
With respect tothe second point, the Court in the Nicaraqua
ca-e has already held that theimpositionof a general trade
.
embargo vTolates the terms of a similar treaty provision
1
calling for.freedomof commerce . And as for the third
point, the use of force by one ofthe Contracting Parties to
destroy a civil aircraft engaged in an international
commercial flightand navigating withinthe assigned air
corridor over the territory of the other Contracting Party
-'-by definition brings into play the whole question of freedom
of commerce and navigationguaranteedunder Article X(1) of
the Treaty of Amity.
3.67 In this context it is again appropriate to
refer to the Nicaraqua case because Nicaragua also claimed
1
~icaraqua (Nicaraquav. United States of Arnerica),
Merits, Judqment, I.C.J. Reports 1986, p. 148, para.
, 292(11) (dispositif).that the United States had violated similar treaty
provisions calling for freedom of commerce and navigation.
Specifically,Nicaragua allegedthat ifs ports had been
mined in contraventionof Article XIX of the 1956 FCN Treaty
which, in its sub-paragraph1, provided that "(b)etweenthe
territoriesof the two Parties there shall be freedom of
commerce and navigation". The Court agreed. It held:
or the reasonsindicated in paragraph 253
above, the Court must uphold the contentionthat
the mining of Nicaraguan portsby the United
States is in manifest contradictionwith the
Article XIX,.paragraph1, of the 1956 Treatyd ...
In the commercialcontext of theTreaty,
Nicaragua's claim is justifiednot only as to
the physical damage to its vessels, but also the
consequential damage to its trade and
commerce1."
This conclusion wasrepeated in paragraph 7 of the Court's
dispositifwhere the Court decided by fourteen votes to one
that -
"... by the acts referred to in subparagraph(6)
hereof (the laying of mines in Nicaragua's
interna1 or territorialwaters), theUnited
States of America has acted, against the
Republic of Nicaragua, in breach of its
1
Military and ParamilitaryActivities in and aqainst
Nicaraqua (Nicaraquav. United States of America),
Merits, Judqment, I.C.J. Reports 1986,p. 139, para.
278. obligationsunder Article XIX of the Treaty of
Friendship,Commerce and Navigation ...lW.
3.68 Given that the laying of mines by one
State in the internal and territorial watersof another
State, leading to the loss of lives and the destruction of
property, constitutesa violation of the obligation to
guarantee freedomof commerce and navigation, the question
arises in the context of this case whether repeated
interferenceswith civil and commercial aircraftby one
State's military forces, resulting in the destructionof a
comiercial airliner over the internal and territorialwaters
of the other State, is any less of a violation of Articles
IV(1) and X(1) of the'Treaty of Amity. The answer, it i's
subrnitted, is clear: such an act constitutesa fundamental
breach of the Treaty.
E. The United Nations Charter
3.69 It has been shown above that principles of
customary international law underlie several of the
provisions appearingin the Chicago Convention,especially
I
Military and ParamilitaryActivities in and aqainst
Nicaraqua (Nicaraquav. United Statesof America),
Merits, Judqment, I.C.J. Reportsl986, p. 147
(dispositif).those relating to a State's sovereigntyover its airspace
(Article1) and the prohibition againstthe use of weapons
aqainst civil aircraft in flight (Article3 bis). Similarly,
the question whether the UnitedStates has breached Articles
IV(1) and X(1) of the Treatyof Amity also gives rise to
issues under customary international law and the United
Nations Charter relatingto the duty of Statesto respect
the sovereigntyand rights of anotherState within the
latter's own interna1 watersand territorialsea. Each of
these topics willbe discussed below.
-
1. The Prohibition aqainst the Use of Armed
Force
3.70 The principle appearingin Article 3
bis (a) of the Chicago Conventionhas a direct connection to
the general and overriding prohibitionunder international
%
law against the threator use of force. This prohibition
appears in Article 2(4) of the United NationsCharter, which
is appropriately mentioned here inasmuchas the second
sentence of Article 3 biç (a) expressly States that the
obligations set outin its first sentence "shallnot be
interpretedas rnodifying in any way the rights andobligationsof States set forth in the Charter of the United
~ationsl".
3.71 Just as the provisions of Article 3 -is
(a) of the Chicago Convention are .expressive of principles
of customary international law, so also is the prohibition
against the threat or use of force found inArticle 2(4) of
the Charter well established in customary international law.
In its Judgment in the Militarv and Paramilitar~Activities
in and aqainst Nicaraguacase, the Court confirmed this
point. Noting that the principlearticulated in Article
2(4) "may ...be regarded as a principle of customary
internationallaw", the Court added that this Article is
frequently referredto as being "not only a principle of
customary international law but also a fundamentalor
cardinal principleof such law2". As such, there can be no
1 Article 2(4)-provides:
"Al1 Members shall refrain in their
internationalrelations £rom the threat or use
of force against the territorial integrity or
political independenceof any State, or in any
manner inconsistentwith the Purposes of the
United Nations."
2 Militarv and Paramilitar~Activities in and aqainst
Nicaraqua (Nicaraquav. United States of America),
Merits, Judqment, I.C.J. Reports 1986, p. 100, paras.
188 and 190 (emphasisadded). The United States
itself has em~hasizedthe customaryand general law
nature of Article 2(4); m., p. 99, para. 187. doubt that theprohibition againstthe threat or use of
force is part of the contemporaryjus coqens.
3.72 The same conclusions flow from an
examination ofthe 1974 GeneralAssembly Resolution 3314
(XXIX) concerning the ~efinitionof Aggression andthe 1970
Resolution 2625 (XXV) entitled "Declarationon Principlesof
International LawconcerningFriendly Relations and Co-
operation among Statesin accordance with the Charter of the
United Nations". Under the former, aggressionis defined in
-. Article 1 as -
"the use of armed force by a State against the
sovereignty, territorialintegrity orpolitical
independenceof another State,or in any other
manner inconsistent with the Charter of the
United Nations, as set out in this definition."
With respectto the latter, and particularly the prohibition
against the threator use of force, the Court has made it
clear thatthis Declarationprovides an indication ofthe
opinio iuriç of Stateson the question 1.
1
Military andParamilitaryActivities in and aqainst
Merits, Judqment, I.C.J. Reports 1986,p. 101, para.
191. 3.73 It will be recalled that inhis
observationson the customary international law nature of
Article 3 biç of the Chicago Convention,Dr. Kotaite
referred to "fundamentally humanitarian principles" more
exacting in times of peace than in times ofwar. This
çtatement had its roots in theCourt's judgment in the Corfu
1
Channel case . There the Court held, in comrnentingon the
obligations incumbentupon the Albanian authorities to
notify shipping ofthe presence of a minefield in its
territorial waters,that-
"Such obligationsare based ... on certain
general and well-recognizedprinciples, namely:
elementary considerations of humanity, even more
exacting in peace than in war ...2."
3.74 The significanceof this holding is not
simply that international law,including theChicago
Convention, prohibitsthe use of forceagainst civil
aircraft but also that it condemns actionsby States which,
in the words of the United Kingdom's Memorial in the Aerial
Incident of 27 Julv 1955 (United Kinqdomv. Bulqaria) case,
"in time of peace unnecessarilyor recklessly involve risk
1
p. 4. Channel, Merits, Judqment, I.C.J. Reports 1949,
2
m., p. 22.to the lives of the nationals of other States or destruction
of their propertyl".
3.75 Similar reasoningmay be found in the case
of Garcia v. United States, a case which was cited by both
the United States and Britain in their pleadings before the
2
Court in the 1955 Aerial Incident case . In Garcia, an
American officerfired on a raft which had crossed the Rio
Grande river fromthe Mexican to the American side. Although
the officer maintained that he had fired at a distance
without intendingto hit anybody, a child aboard the raft
was killed. The Mexico-UnitedStates ClaimsCommission
decided that the action in shooting was-i.*egaldespite the
fact that there was no intentionof killing anyoneand even
3
if the officer's judgment wasin error .
1
Memorial of the UnitedlKinqdom, p. 350, para. 67. As
Professor Alwyn Freeman ha; noted, stateç have a duty -
of "due diligence" in their conduct. This "is
nothing more nor less than the reasonable measuresof
prevention which a well-administeredgovernmentcould
be expected to exercise under similar circumstances".
A. Freeman, OJ. c&., pp. 15-16.
United Mexican States v. United States of America, 4
R.I.A.A. 119 (1928).
Cited by Hughes, 9. c., at p. 606; and E,
Coussirat-Coustèreand Eisemann,9. c., at p. 507. 3.76 It follows £rom these precedents that a
state, over and above its obligationnot to use force
against a civil aircraft, is alsounder a duty not to act in
such a manner as to place civil aviationunnecessarilyor
unreasonably in danger. As the Court's judgment in the
Corfu Channel case makesclear, the force of such a
principle is even more exacting in time of peace - G.,
when there is little l..elihoodthat any resort to the use
of force is either necessary or legitimate.
3.77 One of the central purposes of the Chicago
Convention - the developmentof civil aviationin a safe and
orderly way - is as much violated by conduct which
recklesslyposes a danger to civil aircraftin flight as it
is by the actual use of force againstsuch aircraft. As
will be seen in the next Part, the act of the United States
in placing a guided missilecruiser with a highly
sophisticated weapons system directly underneathan
internationalair corridor and threateningto shoot was
unlawful in itself, and constitutedone of the main factors
which caused thesubsequentillegal destructionof IR 655.
2. Rules Relatinq to a State's Terrigorial
Sovereiqnty
3.78 From the factual discussion in Part 1, it
is evident that the USS Vincennes together with theSidesand the Montqomery were withinthe Islamic Republic's
territorial waterswhen the Vincennes fired on IR 655, and
that the wreckage £rom the flight fell in the Islamic
Republic's internal waters. In addition,the Vincennes'
helicopter had penetrated the Islamic Republic's internal
waters when it was sent to harass coastal patrolsearlier on
the morning of 3 July 1988. These facts bring into play the
legal rules relating to territorial sovereignty and non-
interventionas well as those pertaining to the Law of the
Sea, which also underlie several of the conventional
standards. To reiteratew'hatthe Court has said on this
point:
"The effects of the principle of respectfor
territorial sovereignty inevitablo yverlap with
those of the principles of the prohibitionof
the use of force and of non-intervention1."
3.79 The basic legal conceptof State
çovereigntyin internationallaw is expressed inArticle
-
2(1) of the UnitedNations Charter. Asthe Court hasnoted,
this sovereignty"extendsto the internalwaters and
territorial seaof every Stateand to the air space above
1
Military and Paramilitary Activitiesin and aqainst
Nicaraqua (Nicaraquav. United States of America),
Merits, Judqment,I.C.J. Reports 1986,p. 128, para.
251.its territory"both under customary lawand under the
1
provisions of the Chicago Conventionreferred to above .
3.80 As for non-intervention,the Court in the
Nicaraqua case articulated the followingrule:
"The principle of non-interventioninvolves the
right of everysovereign Stateto conduct its
affairs without outside interference;though
examples of trespass agai'nstthis principle are
not infrequent, the Court considers that it is
part and parce1 of customary international
ïaw2."
The Court then drew attention to itsdecision in the Corfu
Channel case whereit held:
"Between independentStates, respect for
territorialsovereignty is an essential
foundation of internationalrelations3. "
I Militarv and ParamilitarvActivities in and aqainst
Nicaraqua (Nicaraqua v. United States of America),
Merits, Judqment,I.C.J. Reports 1986,p. 111, para.
212. As the former U.S. Agent in this case has
observed, "In general, a nationmay net enter upon
another's territory withoutits consent." A. Sofaer,
OJ. &., p. 919 (emphasisis original).,
2 -bid., p. 106, para. 202-
!maJus Coaens v.- ~ovremennom
imitationsdé la souveraineté etla
théorie de l'abus des droits dans les rapports
internationaux", Recueildes Cours, Vol. 1 (1925). 3.81 In the context of the presentcase, the
Court is faced with a situation wherethe action complained
of - namely, the destructionof IR 655 - took place over the
Islamic Republic'sinterna1waters and territorial seaas a
result of aggressive actionsby U.S. warships that were
themselves operatingwithin that territorialsea.. In view
of the fact thatunder internationallaw the Islamic
Republic's sovereigntyextends to these areas, the question
arises as towhether theU.S. warships' conduct in this
regard violated theprinciple of non-intervention, in
addition to the prohibitionagainstthe use of force.
3.82 Under customary internationallaw, ships.
of al1 States enjoy the right of innocent passage through
the territorialsea of another State. This right was
reflected in Article 14 of the 1958 Geneva Conventionon the
TerritorialSea and the Contiguous Zone and hasbeen
incorporatedin the 1982 United Nations Convention on the
Law of the Sea in Article 17'.
3.83The right of innocentpassage, however, is
not unfettered. Pursuant to Article 18(2) of the Law of the
1 Pursuant to Article 310 of the United Nations
Conventionon the Law of the Sea, the Islamic
Republic made a statement at the time of signature
setting forth its underçtanding withrespect to
certain provisionsof the Convention. A copy of this
statement is attached at Exhibit 60.Sea Convention, for example, passage "shallbe continuous
and expeditious". More importantly,passage must be
"innocent" which,according to Article 19(1) of the
Convention, is the case "so long as it is not prejudicial to
the peace, good order or security of the coastal statel".
In this respect, ~rticles 19(2) (a) and (b) provide that
passage shall be considered to be prejudicialwhen a ship
engages in -
"(a)any threat or use of force againstthe
sindependenceeofithe coastal State, or in any
other manner in violation of the principles of
internationallaw embodied in the Charterof the
United Nations; and
"(b) any exercise or practice with weapons of
any kind."
These principles werealso violated in attacking the Iranian
patrol boats and in shooting down IR 655.
3.84 The same principle set forth in sub-
paragraph (a) of Article 19(2) of the U.N. Law of the Sea
Conventionalso appears in its Article 301. That Article
States:
"In exercising their rights and performing their
duties under this Convention, StateParties
shall refrain from any threator use of force
1 See also, Corfu Channel, Merits, Judqment,I.C.J.
Reports 1949, pp. 30-35. against the territorial integrityor political
independenceof any State, or in any other
manner inconsistent withthe principles of
international lawembodied inthe Charter of the
United Nations."
3.85 It follows from these provisions, which
represent crystallizedrules of customary internationallaw,
that the use of force and theexercise of weapons by a naval
vesse1 within the territorialsea or internalwaters of
another State is inconsistent with the right of innocent
passage and violates the coastal State's sovereignty and
territorial integrity. In the Nicaraqua case, the Court
held that the laying of mines by one State within the
territoria1,seaor internal waters of another State violates
internationallaw in this respect. In the CorfuChannel
case, the Court held that the unauthorized minesweepinb gy
one State of areas within another State's territorial seais
also illegal. Based on these precedents, it surely follows
that it is no less a violation of internationallaw for a
foreign warshipto manoeuvre intothe territorial sea of
another State and shoot down a civilianairliner operating
in that State's airspaceabove its own territorialsea.
3.86 Such actions alsoviolated Iranian law,
governing the right of passage and stopover of foreign
warships in Iranian territorialwaters. Articles 4 to 8 of
the 1934 Act on.the Territorial Watersand the ContiguousZone of Iran and the Executive Regulations issuedpursuant
thereto on 29 August 1934 regulate the passage and stopover
1
of foreign warships inIranian waters . Article 2 of the
Executive Regulationon Conditions for Passage and Stopover
of Foreign Warships in Iranian Waters and Ports provides
that foreign warships must obtain the authorizationof the
Iranian Government eight days in advance of the warship's
entry into Iranian waters and that at no time may there be
more than two such warships in the territori-alwaters. It
is clear that the U.S. warships involvedin this dispute had
entered into Iranian waters without such authorization£rom
the Iranian authoritiesand that in any event they were more
than two warships withinthe territorialwaters on t.hedate
of the incident, thus violating both Iranian law and
customary internationallaw.
3.87 The regulations relating to theinnocent
passage of warships set out in the 1934 Act and Executive
Regulation,which were adopted for the preservationof the
security interestsof Iran, are also in conformitywith
customary internationallaw and Article 19 of the Law of the
Sea Conventionof 1982. A coastal State's right to adopt
laws and regulations governing innocentpassage was
expressly recognized in the negotiations leadingto the 1982
1
Exhibit 5.repeated by the former LegalAdviser of the U.S. Department
of State and the former U.S.Agent in this case, Abraham
Sofaer, in hi'stestimony before the House of
Representatives. Mr. Sofaer claimedthat when theVincennes
fired, it wai "exercising justifiable defensive action1".
3.89 In the light of these statements, it is
appropriate to examine briefly the doctrine of self-defence,
even thoughit is for the Unitéd States to formulate and
prove such a defence. Here, the starting point must be
Article 51 of the United Nations Charter 2 . Article 51
reads :
"Nothing in the present Chartershall impair the
inherent rightof individualor collective self-
defence if an armed attackoccurs against a
Member of the United Nations, until the Security
Council has taken measures necessary to maintain
internationalpeace and security. Measures
taken by Members in the exercise of this right
of self-defence shall be immediatelyreported to
the Security Counciland shall not in any way
affect the authority and responsibilito yf the
Security Council under the present Charter to
take at any time such action as it deems
necessary in order to maintain or restore
internationalpeace and security."
House Hearinqs, p. 48 (Exhibit10).
2
See in this respect,Militarv and Paramilitary
Activities in and aqainst Nicaraqua(Nicaraquav.
United States of America), Merits, Judqment,I.C.J.
Reports 1986, p. 94, para. 176. 3.90 Several aspects of Article 51and of the
right of self-defence generally warrant comment. First, the
use of forcein-self-defenceis an exception to the basic
rule that the threator use of force is prima facie illegal.
This conclusion has been recognized bt yhe Court in the
Nicaraqua case wherethe Court indicatedthat the -
"... normal purpose of an invocationof self-
defence is to justify conduct which would
otherwise be wrongfull."
3.91 In other words,the basic rule of
internationallaw with respectto any use of armed force is
that the action is illegal and that self-defencecan only be
invoked as an exception,or defence, to the normal
applicationof the rule. A State invoking self-defence to
justify otherwise illegal conduct beara s very rigorous
burden ofproof to demonstratethat, in the circumstances,
its actions were a legitimateexercise ofself-defence.This
is al1 the more true in the light of thefact that under
Chapter VI1 of the United Nations Charter, the Security
Council has the exclusive responsibility fod reciding what
measures shouldbe taken in response toany threat topeace. 3.92 The second aspect of Article51 which must
be noted isthat the right of self-defencemay only be
exercised "ifan armed -attackoccurs against aMember". In
the Nicaraqua case, the Court put it this way:
"In the case of individual self-defence,the
exercise of this right is subject to the State
concerned havingbeen the victimof an armed
attackl."
3.93 In the present case, it will be necessary
to examine whether the United States was subject to an armed
attack when it destroyed IR 655. The fact that the targeted
aircraft was a civil aircraft wita hbsolutely no military
capability presents the United States with an insurmountable
hurdle in this respect. Forit is impossible tosee how the
United States can Say that it was "the victim of an armed
attack" £rom an aircraft that was incapableof mounting such
an attack.
3.94 Itis also well settled that a mistake in
identification willnot excuse a resort to armed force in
alleged self-defence when no threat orarmed attack actuallyexists. In the 1904 ~oqq'er Bank incident, for instance,
Great Britain demanded an indemnity from Russia when the
Commander of the Russian Baltic Fleet, then on its way to
the Far East to take part in the Russo-JapaneseWar, fell
under the mistaken belief that~ussian warships were being
attacked in the North Sea by disguised Japanese torpedo
boats. -The internationalcommission whichreviewed the
affair did not find thatany torpedo boats had been present,
and it determined that the firing, which was directed at
what turned out to be British fishing trawlers, was not
1
justified. Russia çubsequentlypaid an indemnity .
3.95 A similar situation arose in the case of
The Jessie between Britain and the United States where U.S.
naval officers unlawfully boardeda British vesse1 in the
2
North Pacific . Even though thiswas a breach of British
sovereignty,the United States attempted to deny
responsibilityon the grounds thatit was not liable for
errors in judgment of its agents. The French arbitrator -
I See, Mandelstam, "LaCommission internationale
d'enquête sur l'incidentde la Mer du Nord", 12 Revue
qénérale de droit international public 161, 351
(1905); Coussirat-Coustèreand Eisemann, %. e.,
pp. 507-508.
6 R.I.A.A. (1921),p. 57.M. Fromageot, a former rnernbeo rf the Permanent Court -
rejected this argument. He held:
"It is unquestionable that the United States
naval authorities actedbona fide, but though
their bona fides rnightbe invokedby the
officers in explanation of their conduct to
show that theirconduct constituted an error in
judgment, and any government is responsible to
other governments for errors in judgment of its
officials purporting to act within the scopeof
their dutiesl."
-
3.96 In this connection,-thereesoning of
Commissioner Nielsen, in his opinion in the KlinqClaim,
2
should also be noted . After observing thatthe killing of
an alien or a citizen by a çoldier is always a serious
matter, Comrnissioner Nielsen held:
"In cases of this ke it is mistaken action,
error in judgment, or reckless conduct of
soldiers for which a government ina given case
has been held responsible. The international
precedents reveal the application of principles
as to the very strict accountablilityfor
mistaken action3. "
Cited in, Coussirat-Coustère andEisernann, 9. a.,
at p. 508.
2 Klinq v. United Mexican States, 4 R.I.A.A. (1930),
p. 575.
3
Cited in, Coussirat-CoustèreandEisemann, z. c&.,
at p. 506. , - 203 - -
3.97 As the Court held in the Nicaraquacase,
"(i)n the case of individual self-defence,the exercise of
this right issubject to theState concerned havingbeen the
victim of an armed attackl." Apart from the need to
demonstrate that it was confronted withan armed attack
before a State can legitimatelyjustify its use of force in
self-defence, aState must also show compliancewith the
criteria of necessity andproportionality. The Court in the
Nicaraqua case found that the United States agreed:
"... in holding that whether the response tothe
attack is lawful depends on observanceof the
criteria of the necessity andthe
proportionalityof the measures taken in self-
defence2."
3.98 In that case, the Court didnot have to
consider in any depth the application ofthe criteria of
necessity and proportionality since the "conditionsine
non requiredfor the exercise of the right.of collective
-
self-defenceby the United States" was not fulfilled - that
1 Military and ParamilitaryActivities in and aqainst
Nicaraqua (Nicaraqua v. United Statesof America),
Merits, Judqment,I.C.J. Reports 1986, p. 103, para.
195.
Ibid., p. 103, para. 194. This view has also .been
confirmed bythe former U.S. Agent in this case: çee,
A. Sofaer, 9. G., at p. 919, where the author
States that "the use of forceagainst another
country's territorial integrity or political
independence isprohibited, exceptin self-defense
and any use of force must be both necessaryand
proportionateto the threat it addresses".is, the condition of an armed attack against the United
States1 . The Court said in this respect:
"As a result of thisconclusion of the Court,
even if the United States activities in question
had been carried on in strict compliance with
the canons of necessityand proportionality,
they would not thereby become lawful. If
however theywere not, this may cystitute an
additional groundof wrongfulness ."
The Court went on to find thatneither criterion could in
fact be met by the United States, just as in the case here,
as will be demonstrated inPart IV.
3.99 In his dissenting opinionin the Nicaraqua
case, Judge SchwebeL.discussedthe applicationof necessity
and proportionality, quotingextensively fromJudge Ago's
3
report to the ~nternationalLaw Commission . Without in any
way endorsing the views set out in Judge Schwebel's dissent,
1
Military and Paramilitary Activitiesin and aqainst
Nicaraqua (Nicaraquav. United States of America),
Merits, Judqment,I.C.J. Reports 1986, p. 122, para.
237.
3 See Judge Schwebels'sDissenting Opinion, I.C.J.
Reports 1986, p. 362, paras. 201, et seq. m, alço,
Yearbook of InternationalLaw Commission, 1980,Vol.
II, Part One, p. 69.it is instructive to note certain remarko sf Judge Ago
quoted there. In discussing these two criteria, Judge Ago
described them as-
"... two sides of the same coin. Self-defence
will be valid asa circumstance precludingthe
wrongfulness of the conduct of the State only if
that State was unable to achieve the desired
result by different conduct involving either no
use of armed force at al1 or merely its use on a
lesser scalel."
3.100 Applying this rule of law here, the
action of the United States in shooting down flightIR 655
was neither necessary nor proportionate, evenif it had been
in response toan armed attack, which was not the case.
These conclusions will be taken up in detail in the next
Part.
F. Customary InternationalLaw of Neutrality
3.101 The U.N. Security Council failed to
recognize the aggressorin the 1ran-ira armed conflict and
failed to take anymeasure to restore the peace during the
conflict. Accordingly, theprinciples of the law of
neutrality foundin customary international law must be
applied to thisconflict. This is particularly true in
1 See, Judge Schwebel's DissentingOpinion, I.C.J.
Gorts 1986, p. 368, para. 212.respect to the United States for it has, throughout the
conflict, repeatedly stated its neutrality.Indeed, upon
the outbreak of the armed conflictin September 1980, the
united States announcedthat it would observe "a strict and
scrupulous attitudeof neutralityL." This policy was
subsequentlyre-emphasizedon many occasions. Relyingon
this stated neutrality, the Islamic Republia cccorded the
United States the rights of neutrals under customary
international'law and expectedthe United States to observe
its obligationsunder that law.
3.102 Under Articles 9, 7 and 8 of the 1907
Hague Convention (No. V.), a-geutral State is obligated to
maintain its impartialityto bath belligerentswith respect
to the provision of arms, munitions of war,
telecommunicationservices and, in general, anything which
might be of use to an army or a fleet, and to ensure that
the same obligation is obierved by its private companies and
nationals. Articles 6, 7, 8 of the 1907 Hague Conventien
(No. XIII) provide that a neutral Stateis forbidden from
supplying in any manner a belligerentpower war material of
any kind, includinganything which could be of use to an
I Statementof the United States delegateat the
meeting of the Security Council. 17 U.N. Chronicle 7
(Nov. 1980).army or fleet, and that a neutral Stateis also bound to
prevent the fitting out or arming of any vesse1 within its
jurisdictionwhich is intended tocruise, or engage in
hostile operations, for use in war oragainst a power with
which thatState is at peace.
3.103 State practice in maritime warfare since
1945 has been consistent inthe applicationof the law of
neutrality. upon signing the 1982 Convention on the Law of
the Sea, a major neutral power, Swedenstated in this
regard:
"It is also the undertakingof the Governmentof
Sweden that the Convention does not affect the
rights and duties of neutral states provided for
in the Convention concerning the Rights and
Warfare (XII1 Convention) i- adopted at the Hague
on 18 October 19071."
In maritime conflicts in the post1945 period, both the
rights and dutiesof neutral vesselshave been observedby
belligerents. Thus, the United States, in its close
blockade of North Korea, demanded fulfillmentof neiitral duties
as it did in the Cuban missile crisis and the Vietnam
1 Multilateral Treaties Deposited with theSecretary
General - Status as at 31 December 1988, p. 766.war.1 Egypt, in the Suez criçis of 1956, initiated a
traditional contraband system which sought to enforce the
observance of neutral obligations, apractice which was
repeated on a smaller scale in the India-PakistanWar of
1965*. The United Kingdom called upon neutraï vessels to
observe these obligations in the 1982 Falkland/Malvinas
Islands conflict with Argentina. Aswill be shown in Part
IV below, the United States has departed from this State
practice and has repeatedly violatedthe laws of neutrality
3
in the Iran-Iraq conflict by siding with and aiding Iraq. .
It was thiscour'seof conduct that led, inter alia, to the
treatment of IR 655 as a hostile aircraft andto its
1 B.A. Clark, "Recent EvolutionaryTrends Concerning
Naval Interdictionof Sea-Borne Commerce asa Viable
Sanctioning Device", 27 J.A.G. 160, 161 (1973).
P. Norton, "Between the Ideology and the Reality: The
Shadow of the Law of ~eutralit~",17 Harv. Int'l.
L.J. 249, 261 (1976); E, also, S. Dinitz, "Legal
ASDectS of the Eqv~tian Blockade of the Suez Canal",
45-~eorqiaL.J. iii (1956).
See, also paras. 1.36, et seq., below.
- PART IV
APPLICATION OF THE LAW TO THE FACTS
4.01 Having considered the principles and rules
of international lawapplicable to this case, it is now
appropriate to applythese principles andrules to the facts
as recounted in Part 1. This will be done under two
headings: (i) the deployment and conduct of the U.S. fleet
in the Persian Gulf leadingup to the incident; and(ii) the
actual shooting down of IR 655.
A. The Deploymentand Conduct of the U.S. Fleet in
the Persian Gulf
4.02 It is important toaddress this issue
first because, to a large extent,it was the presenceand
'conductof the U.S. fleet prior to the actual destructionof
IR 655 which was a contributing factor to the unlawfulact
of shooting down the plane. This conduct violated
internationalLaw in a number of respects.Moreover, these
violationshave continued since 3 July 1988. First, the
activities of the U.S. warships before theincident,on the
day in question, and subsequently,have violatedthe Islamic
Republic's sovereignty and the principle of non-
intervention. These activitiesalso constituteand continue
to be an illegal interferencein the Islamic Republic's
commerce and navigation. Second, the fleet's presence inthe Persian Gulf and the operation of the NOTAM issued by
the United States in 1984 and expanded in 1987 violated and
continue toviolate fundamental principles of international
air law. In particu1ar;the NOTAMs, whereby the United
States threatened to take "defensivm eeasures" against
unidentified aircraft flying within 5 nautical milesof a
U.S. warship and at an altitude of less than 2000 feet, are
completely unlawful 1. Consequently,they provide no legal
justificationfor the actions that theU.S. warships took
against IR 655 on 3 July 1988 (or any other challenges of
other aircraft either before or after the 3 July incident)
even if the United States had abided by their terms which,
as shall be seen, has not been the case. Eachof.these
aspects will be discussed below.
1. Violation of the IslamicRepublic's
Sovereiqntyand Unlawful Interferencein
its Commerce and Naviqation
4.03 In September 1980, the Islamic Republic
was the victim of an armed attack byIraq. While these
proceedings are not the place to litigate the issues
relating to the hostilitiesthat ensued, the fact remains
I Although these NOTAMS havebeen transformedinto
"information" (=, para. 4.28, below) the United
States continues to follow the same procedures in
challenging aircraftas were setout in the NOTAM.that the Islamic Republic was in a state of imposed war
throughout the period £rom 1980 to 20 August 1988. As such,
the Islamic Republichad the right, recognized in
internationallaw, to take certainmeasures, such as visit
and search of merchant vessels in the Persian Gulf, in order
to ensure that theywere not carrying war contraband
destined for the enemy.
4.04 As has been seen in Part 1, the United
States professed to take a neutral stance in the war.
Despite this publicly proclaimed position of neutrality, in
fact the United States took sides with Iraq in the .
deployment of its forces in the Persian Gulf 1. This bias
against the Islamic Republic has been confirmed by Caspar
Weinberger, the United States Secretaryof Defense at the
time and the individualwho was directly responsible for ttie
2
command of the U.S. forces in the Persian Gulf .
4.05 The Defense Department Report makes it
clear that one of the direct consequences of this partiality
was that planes and boats originating £rom the Islamic
Republic were automatically assumed to be hostile to the
U.S. forces even if there was no corroborating evidence for
I
-See, para. 4.33, çeq., below.
2
-See, para. 1.42,above.such an assumption 1 . Another consequence was that U.S.
forces in the Persian Gulf were "trigger-happy",to use the
L
words of the Soviet Union,vis-à-vis Iranian craft . It was
this policy and this attitude which must in part havl eed
the crew onboard the Vincennes to classify IR 655 as
"hostile" imnediatelyafter its take-off from Bandar Abbas
4.06 As for the Vincennes, the Commanderof its
companion ship - the Sides - has already attested to the
fact ,that"her actions appeared tobe consistently
aggressive", that "an atmosphere of restraint was not her
long suit",and that her crew "hankered for an opportunity
to show their stuff3". In other words, in taking up its
position within the ~ersian Gulf prior to 3 July 1988, and
in penetrating the Islamic Republic's territorial waters on
the day of theincident, the Vincennes was predisposed to
treat any aircrafttaking off £rom the Islamic Republic as
hostile and was looking for an excuse to use its weapons.
What this means is that theconduct of the Vincennes, as
well as the presence of the U.S. fleet as a whole, was a
1
The Defense Department Reportis telling in this
regard. It stated that aç long as hostilities
continued inthe area, "Commercialair, particularly
commercial air£rom Iran, is at risk...." (Defense
Department Report,p. E-52; emphasis added.)
2
-ee, International HeraldTribune, 5 July 1988
(Exhibit 24).
3 -ee, para. 1.62, abovepre-planned show of force specificallyintended to
intimidateand threaten the Islamic Republic.
4.07 Despite being confronted withthis kind of
provocation, the Islamic Republic exercised a considerable
measure of restraint. One can imagine how the United States
would have reacted ifa foreign State had amassed itsforces
just off the coast of the United Statesand made similar
threats. Yet the ~slamic Republic didnot rise to the bait.
To the contrary, the U.S. Secretary of Defense at the time
noted thatthe IslamicRepublic demonstrated"a decided
intent to avoid American warshipsl". This was confirmed by
Commander Carlsonof the çides who remarked that inhis
experience, the Iranian military forces were "non-
threatening"in the month preceding the incident and "direct
and professional in their communications'". As also noted
above, the Islamic Republic's military aircrafc tonsistently
heeded challenges-bythe U.S. naval forces in the Persian
Gulf and took steps to avoid them3 .
4.08 According tothe Defense Department
Report, notwithstandingthe "non-threatening" and
"professional" conduct of the Islamic Republic's military
I
Neinberger, 9. c., p. 401 (Exhibit 8).
2 -ec, para. 1.106,above.
3 see, para. 1.54,above.
-
-forces, on themorning of3 July 1988 the Vincennes
despatched its helicopterover the Islamic Republic's
interna1 and territorialwaters in order to intercepa
number of small coastal patrol boats whithe Montqomery
thought might be going to attackmerchant shipping.
Significantly,al1 the Defense Department Reporsays about
this incident is that the Montqomery heardthe small boats
"questioning" amerchant vesse1 over bridge to bridg.
Even had this been true, whichthe Islamic Republic denies,
it would have been entirelyconsistentwith the Islamic
Republic's right under municipal and internationallaw to
visit and searchvessels in order to ensure that war
contraband wasnot being transported to Iraq.
4.09 What is crucial is the fact, also
acknowledged in the Defense Department Reporthat -
merchant vessels requested any assistan£rom U.S. warships
2
at the time . It follows that there was absolutely no
justificationfor the Vincennes' helicopter toviolate the
Islamic~~e~ublic'sairspace on the morning of 3 July 1988,
much less any justification forit to act in a threatening
manner.
1 Defense Department Report,p. E-26. 4.10 By the same token, for the United States
subsequently to have directed its warships intothe Islamic
Republic's territorial seain order to confront the'small
boats violatedboth Iranian law and international law. For
the small boats were actingin an entirely legitimate
fashion withinthe Islamic Republic's territorial and
interna1 waters. This action was made more serious - and
led to disastrous consequences - because in proceeding into
the Islamic Republic's territorial seat ,he U.S. warships
placed themselves directly under air corridor A59. When
coupled with thefact that the U.S. warships were
predisposed to treat virtually any Iranian activity -
whether in the air or on thesea - as hostile, the U.S.
actions led to a situation wherethe shooting down of IR 655
became almost inevitable.
4.11 On any objective analysis, these actions
were far more serious than the violations committedby Great
Britain's naval forces in 1946 when they conducted
unauthor'izedminesweeping operations within Albania's
territorial sea. The latter were designed to render passage
through the Corfu Channel safe, while the actions of the
United States here were designed to intimidateand threaten
the IslamicRepublic, as well as being contrary to theself-
restraint requirementof Security CouncilResolution 598'.
-ee, para. 1.43,aboveIt is highly significant, therefore, that theCourt in the
Corfu Channel caseemphasized that such forms of military
intervention have "given rise to moçt serious abuses1,. In
the context of the present case, the Court's admonition haî
special relevancein view of the presence of a massive show
of force by a superpowerjust off the coaçt of a much
smaller State. As the Court stated:
"Intervention is perhaps still less admissible
in the particular form it would take here; for,
£rom the nature of things, it would be reserved
lead to perverting the administrationofasily
international justice itself2."
4.12 On the basis of the foregoing, it must be
concluded that the conduct of the United States' naval
forces in the Perçian Gulfviolated the Islamic Republic's
territorial sovereignty and the principle of non-
interventionunder cuçtomary international law, and breached
the United States' obligationunder Article X(1) of the
Treaty of Amity to guarantee to the Islamic Republic freedom
of commerce ar.dnavigation. In andof itself, this conduct
led to the reckless endangerment of civil aviationin
contraventionof Articles 44(a) and (h) of the Chicago
Convention. Moreover, in sending a helicopterfrom a U.S.
1 Corfu Channel, Merits,Judqment, I.C.J. Reports 1949,
p. 35.warship with aggressive intent and without authorizationor
justification intothe Islamic Republic'sairspace on 3 July
1988, the United States also violated Articles 1 and 2 of
the Chicago Convention,as well as related principles of
customary international law.
4.13 The actions of the United States in moving
its warships intothe Islamic Republic's territorial waters
were exacerbated by the NOTAM the United States had issued
in.1984.andits expanded versionof 1987. These purported
\
to create a zone (a sort of floa-ting bubble) around every
U.S. warship withinwhich any aircraft that entered could be
"at risk" and subject to U.S. "defensive measures". By
issuing a NOTAM throughits Washington office the United
States tried to legitimize this "defencezone". In fact, the
United States had no authority to issue a NOTAMin anything
but itsown FIR. T~YNOTAM was thus illegally issued and,
hence carriedno legal force. Moreover,an examinationof
the facts in this case reveals that in shooting down IR 655,
the unitid States failed even to abide by the provisionsof
its own NOTAM.
4.14 Because of the importanceof this pointto
the U.S. position, it is necessary to examine the NOTAM in
some detail. This is done in the following section. 2. The Unlawful NOTAMs
4.15 As noted inparagraph 3'.48above, there
was and continues to be a comprehensive regulatory regime
governingterritorial and high seas airspace for the whole
Middle East region. The MID RAN States were given full
responsibility under the auspices of ICAO to establishthe
procedures, pursuant to the Annexes of the Chicago
Convention, necessary toensure the safety of civil aviation
within the region and they carried out thismandate
properly.
4.16 In January 1984 the United States
promulgated a NOTAM warningaircraft of the dangers of
approaching U.S.warships stationed in the Persian Gulf.
Following the attackon the USS stark by Iraq in September
1987, the United States even expandedthe NOTAM. However,
in neither case did the UnitedStates make any attemptto
follow the lawful procedure toobtain the authorizationof
the tat dieectly responsible forthe safety of civil
aviation in the region who had the sole right to issue
NOTAMs in their FIRS'. As noted in the ICAO Report at
paragraph 2.2.4.:
-ee, para. 3.52, above. "The United States NOTAM concerning the
(Persian)Gulf, Strait of Hormuz, Gulf of Oman
and Arabian Sea coveredan area within the
responsibilityof InternationalNotam Offices
Abu Dhabi, Baghdad, Bahrain, Bombay, Karachi,
Kuwait, Muscat and Tehran. Therefore, the
promulgationof the NOTAM was not in conformity
with theprovisions of ICAO Annex 15."
4.17 The Government cf the Islamic Republic
made a clear protest to ICAO in the following termswhen the
1984 NOTAM was issued:
"Reference is hereby made to the (Special
Notice) issued by KDCAYN toOIIIYN, dated 22
(January1984) regarding restrictionof
overflight above certain areas of high seas in
the Persian Gulf and the Sea of Oman. The
notice is a clear violation of internationallaw
and comrnon practices regardingthe freedom of
. . flying over the high seas. It is indeeda
flagrant infringementof principles laid down by
the Chicago Convention on Civil Aviation as well
as other Conventions regarding theLaw of the
Sea.
The notice whichpurports to claim sovereignty
over undefined areas of the high seas in the
Persian Gulf, Sea of Oman and Arabian Sea is
baçically unfounded andlegally invalid and
unacceptable.
The Islamic Republicof Iran considersthe
Sinterna1 affairs of the Coastal Statesof the
Persian Gulf and the Sea of Oman and a threat
against the safety andsecurity of international
air and sea navigation1."
1
The text of this telex is set out in ICAO Doc. MID/3-
WP/108, p. 2. A copy of this documentis attached at
Exhibit 61. 4.18 This protest was reiterat-d following the
issuance of the 1987 NOTAM. On 14 September 1987, a telex
addressed tothe President of ICAO from the Islamic
Republic's Vice-Ministerof Roads and Transportation stated
the protest in the following terms:
"This NOTAM is another clear violation of ICAO
provisions and internationallaw, the words at
the end of the NOTAM to the effect that undue
interferencewith freedomof navigation and
overflightswould be avoided (are) most puzzling
and dangerous since so far as ICAO provisions
(are) concerned naval vessels of Contracting
States have no recognized rolein air navigation
within international airspace. On the other hand
over territorialwaters north ofdthe20N in the
navigation and for the strict observance of
Chicago Convention your immediate action will be
highly appreciatedl.'
4.19 As noted in Part III,the Paris meeting of
6 October 1988 expressed its belief thatthe 1987 NOTAM was
"in contravention of'approved ICAO Standards and Recommended
Practices" and called upon the ICAO Council to take measures
to have the NOTAM withdrawn. After examining the U.S.
NOTAM, the 1984 MID RAN Meeting established as a policy
recommendationfor the whole MiddleEast Region -
"that States shouldmake, as a matter of
urqency, a review of any restrictionsor
prohibitions that theyhave imposedin the
1
-re ICAO Doc. C-WP/8644, Attachment 7 (Exhibit 15). airspace over the high seas with a view'to
eliminating theml."
The MID RAN States were deeply concerned about the
congestionand difficultiesposed to air navigation in the
Middle East. They had taken steps to minimize these
problems throughimproved civil-military CO-ordination and
the establishmentof a policy of eliminating restrictions
(such as were purported to be created by the U.S. NOTAMs) in
the Region. The restraint exerciçed by the littoral States
in the Middle East Region regarding restrictions on
navigation in their own respective FIRis in marked contrast
to the behaviourof the United States, which exercises no
sovereigntyin the region whatsoever.
4.20 In the light of theforegoing,it is
. evident that the Unitea States' NOTAM wasultra vires and a
legal nu1lit.y since it was not issued incompliancewith the
prescribed legalprocedures. In such circumstances,it
-
constitutedan unlawful interference with, and dangerto,
civil aviation,and it directly led tothe downing of IR
655. The actions of the U.S. fleet in challengingcivilian
1
See, ICAO Doc. MID/3-WP/108 (Exhibit61). m,
para. 3.46 above. The Report of the MID RAN Meeting
was confirmedby the ICAO Council.aircraft and forcing them todeviate £rom their assigned
routes purçuant to the NOTAM were also unlawfulL.
4.21 Even had the NOTAM been issuedby the
competent authority, itstex: was manifestly inadequate for
the purpose for which it was intended. Under Annex 15 of
the Chicago Convention,a NOTAM mustbe "of a temporary
nature" and "adequate, accurate and timelyu2. The 1987 U.S.
NOTAM was none of these, and thus represented a violation of
Annex 15 of the Chicago Convention. The NOTAM read:
"In response tothe recent attackon the USS
Stark and thecontinuing terrorist threatin the
region, U.S. naval vessels operating within the
Persian Gulf, Strait of Hormuz, Gulf of Oman,
and the Arabian Sea, north of 20 degrees north,
are taking additional defensiveprecautions.
Aircraft (fixed wing and helicopters)operating
in these areas should maintain a listening watch
on 121.5 mHz VHF or 243.0 mHz UHF. Unidentified
aircraft, whose intentionsare unclear or who --
are approachingU.S. naval vessels, will be
contacted on these frequenciesand requested to
identify themselves andstate their intentions
as soon as they are detected. In order to avoid
1
In its protest to the 1984 NOTAM, the Islamic
Republic had made it clear that -
"the United S.tatesof America will be held
responsiblefor al1 consequences resulting £rom
such violation."
-1ee ~xhibit 61, p. 2.
2 -1ee paras. 3.49-3.52, above. inadvertentconfrontation, aircraft(fixed wing
and helicopters) including military aircraft may
be requested to remain well clear of U.S.
vessels. Failure to respond to requests for
identification andintentions,or to warnings,
and operating in a threatening manner could
place theaircraft (fixed wing and helicopters)
at risk by U.S. defensive rneasures.Illumination
of a U.S. naval vesse1 with a weapons fire
control radar will be viewed with suspicion and
could result in inmediate U.S. defensive
reaction. This notice is published solely to
advise that measures in self-defense arebeing
exercised by U.S. naval forcesin this region.
The measures will be implementedin a manner
that does not unduly interfere withthe freedom
of navigation and overflight (FAA FDC 052/87).
U.S. Naval Forces in the PersianGulf, Strait of
Hormuz, Gulf of Oman, and Arabian Sea (North of ..
20 Degrees North) are taking additional
defensive precautionsagainst terrorist threats.
Aircraft at altitudes less than 2000 Et. AGL
which are not cleared for approach/departureto
or from a regional airport are requestedto
avoid approaching closer than 5 nm to U.S. Naval
Forces.
It is requested that aircraft approachingwithin
5 nm of U.S. Naval Forces establish and maintain
radio contact withU.S. Naval Forces on 121.5
mHz VHF or 243.0 mHz UHF. Aircraft which
approach within 5nm at altitudes less than 2000
ft AGL whose intentionsare unclear to U.S.
defensive measures. This at is a joint USCINCPAC
and USCINCCENT NOTAM affecting operations within
KFDCr)1"spectivearea of responsibility.(112119
1
Çee, ICA0 Report, Appendix F, p. F-4. The second and
third paragraphs of the above NOTAM are a verbatim
repetitionof the 1984 NOTAM. Tne first paragraph
represents agloss on the prior NOTAM in the light of
the USS Stark incident. 4.22 The 1984 NOTAM had purported to establish
a restrictedor danger area bounded by a lateral limit of 5
nautical milestogether with a vertical limit of 2000 feet
which aircraft"not cleared for approach/departureto or
:rom a regional airport (were) requested toavoid"'. This
area was inherentlymobile, since it shifted along witheach
naval vessel. As a result, the NOTAM was contrary to the
Chicago Annexes under which the principles of definition,
clarity, certainty and safetyal1 required that fixed limits
be communicated to aircraft commanders before they filed
--
, their flight plans.
4.23 What the UnitedStates was attempting to
do was to establish a type of "floating defence
identification zone" analogous to the air defence
identification zonesestablished by some States, including
\
the United States, over high seas airspace adjacent to their
own territorial airspace. Apart from the factthat the
NOTAM was unlawfuland ultra vires, such a floating defence
identification zone - which was tantamount to an attempt to
create a zone of sovereignty around eachU.S. warship - is
without basis in international lawand was objected to in
categoric termsby the Islamic Republic. ..
J.
, Of course IR 655 was so "cleared". 4.24 The first paragraph of the 1987 NOTAM
attempted togo even further. It provided that
"(u)nidentifiedaircraft, whose intentionsare unclear or
who are approaching U.S. naval vessels, will be contacted
... and requested toidentify themselves and state their
intentions as soon as they are detected". This purported to
extend the limits of the floating defence identification
zone out as far as the technologyaboard the vessel would
..
allow. In the case of the AEGIS system, this would be 250
nautical miles in al1 directions £rom any U.S. vessel
carrying such a system 1. Such action is manifestly unsafe,
unreasonable and contraryto law.
4.25 Moreover, the existenceof such a NOTAM
violated theauthority of the ATS providers in the region
and infringedon the FIR boundariesof the Persian Gulf
States. Italso flew in the face of the MID RAN States'
exclusive responsibilityfor flight safety in the region.
Not least of all, it amounted to abreach of the principle
of territorial sovereignty enshrined in Articles 1 and 2 of
the Chicago Conventionin that the NOTAMs, by their terms,
covered territorialairspace belonging to other States in
the area, including the Islamic Republic.
1 -ee, para. 1.60, above. No indication is given as to
how an aircraft might know if it had been "detected". 4.26 This violation of sovereignty can be seen
by the fact that whena United States warship approachedor
entered the territorial sea of a littoral State in the
region, as happened on 3 July 1988, the 5 mile - 2000 feet
zone established by the NOTAM would travelwith it,
penetrating into territorialand in some cases interna1
waters includingthe superjacentairspace. The 1987 version
of the NOTAM was automatically violative of sovereignty in
that it resulted in the extension of the floating defence
identificationzone over the mainland of littoral States,
particularly the IslamicRepublic. This is fundamentally
contrary tothe regime establishedby the community of
nations in the Chicago Convention to governglobal airspace
utilisati'on.
4.27 Instead of withdrawing the NOTAM after the
3 July 1988 incident, the Defense Department Report
recommended thatit should be extended evenfurther. The
Report called on the United States Government towarn the
Government of the Islamic Republic"that any fixed-wing
aircraft flying over the waters of the Persian Gulf to or
£rom Iran is suspect as to its intentions towards U.S. Naval
unitsl". The recommendation wenton to Say that aircraft
would only be regarded as a non-threat if they transited the
1 Defense Department Report,p. E-55. - 227 -
Persian Gulfat an altitude of over25,000 feet 1. This
would effectivelyforce ali Iranian civil aircraft to take
off iniand, climb to 25,000 feet and then turn and fly back
over thePersian Gulf. This recommendationis indicativeof
the totallack of consideration bythe UnitedStates for the
principlesof air safety, free commerceand navigation, and
territorialsovereignty. It is "gunboat diplomacy"at its
worst.
4.28. This"gunboat diplomacy" is most abhorrent
where in the IC.40Council Session that dealt with the IR655
incidentand led to the 17 March 1989Decision, the United
States, at tne ij March 1989 meeting by using the incident
as a lesson to the Persian GulfStates, "cancels" its illegal
NOTAMs with the conditionthat thePersian GulfProvider
States disseminateto al1 concerned the U.S. NOTAMs as "in-
7
formation,"-"potentiallyhazardous to thecivil aircraft
operations" and "essentiat lo the safetyof civil aviation"
to "ecsure that acciàents such as the Iran Air flight 655
-
tragety do not occur again.'?' The safety of international
civil aviation must notbe allowed to be so obviously abused.
\\:hil.eATSautliorities may promulgate this "information"
for rafety reason thisdoes not avoid the fact that the
Persian Gulf States have refused to issue it as theirown
.YOT.Aaind its'unabated operationby the U.S. warships continue
to be quite dangerous and totally illegal.
1
Defense De~artmentReDcrt,, p. E-55.
2 -See, Exhibit 48, p. 10.
-
3 -bid. 3. The Implicationsof Recommendation 2.6/1 of
the Third MID RAN Meetinq
4.29 The NOTAMs and the actions of the U.S.
fleet were also in conflict with Recommendation 2.6/1 of the
Third Middle East Regional Air Navigation (MID RAN) meeting
of ICA0 held in Montreal from 27 March to 13 April 1984.
The subject of Recommendation 2.6/1 was "Civil/Military
Coordination". Its purpose was to achieve the "optimum
joint (civil/military)use of airspace with a maximum degree
of safety, regularity and efficiency of .internationalcivil
air traffic". This is a principle enshrined in paragraph
2.14 of Annex 11 of the Chicago Convention 1.
4.30 Recommendation2.6/1 called upon States in
the region to take a number ofactions, including the
following:
- To eçtablish appropriate civil/military
caordinationover civil and military
problems of airspace management and air
traffic control;
- To ensure daily integrationor separation
of civil and military trafficoperating in
the same or immediatelyadjacent areas of
airspace;
- To refrain tothe extent possible from
establishingprohibited, restrictedor
danger areas which could not, in any event,
be established over international waters.
1 -ee, para. 3.40, above. - To review as a matter of urgency any
restrictio'n they may have imposed in the
airspace over the high seas with a view to
eliminatingtheml.
4.31 As noted inPart III above, a chain of
communicationis provided forin internationalair law in
order to protect civil aviation fromharm while in flight.
The civil aviationauthority of State A which wishes to
conduct operations in the FIR of States B and C is under a
duty to seek out the civil aviation authoritiesof States B
and C in order to apprise them of its intentionsand obtain
their agreement. It is then up to States B and C to
formulate and issue any NOTAM which mightbe necessaryand
to effect CO-ordinationwith the military units in their
respectiveFIR in order to ensure that al1 aircraft may
remain inviolate, including civilian ones.
4.32 The MID RAN States in their Recommendation
2.6/1 went a step further ingiving even greater emphasis to
civil-militaryCO-ordinationand, especially, in limiting
the freedom of States in the area to establishprohibited,
restrictedor danger areas which disrupt civilaviation.. The
conduct of the United States in issuing its two unlawful
NOTAMs and the activities of its warshipspursuant thereto
was tantamount to arrogating sovereignto yver areas of the
Persian Gulf which would move with the location of the
1 -ee, Exhibit 59.warships. Al1 this ignored completely the responsibility
delegated to the MID RAN States for their own region.
4. The United States' Violation of the Law. of
Neutrality
4.33 The United States' showof force in the
Persian Gulfwas not for the alleged protection of neutral
shipping but was part of a larger scheme through whichthe
United States sided with andassisted Iraq in the eight-year
conflict withthe Islamic Republic. .It was this partiality
to Iraq and hostility to the IsIamic Republic that was the
basic motive for the international crime committed by the
United States on 3 July 1988. It also helps to explain why
the United States has been so adamant in refusing to admit
its responsibilityfor this crimeor to take stepsto
prevent its recurrence, for behin it has lurked this basic
hostility. The facts available concerning these violations
of neutralityare necessarilylirnited since the U.S.
operations involved werecovert, and what has been disclosed
can only be regarded as the tip-of-the iceberg.
4.34 From the veryoutset of the Iraqi war, the
United States Airborne Warning and Control Aircraft
(AWACS"),which had been stationed in Saudi Arabia forthe
alleged purpose of the legitimate self-defence of that
country, proceeded to supplyIraq with intelligence
information theyhad collected on Iranian military 1
movements . This operation began in 1980 and continued
throughout the eight-year. war.
4.35 The United States also lent its continued
support to a comprehensivecampaign to destablizethe
Islamic Republic's Government by means of C.I.A. sponsorship
of paramilitary raidslaunched fror!~'Iraq into the
Islamic Republicby various Iranian contra groups. It also
tried to promote an interna1military coup d'etat.'
Moreover, in March 1982, the United States removed Iraq from
the official list of States towhom American companies were
prohibited from selling "dual-use'' equipment and technology
that could readily be employed for either civilian or
military purposes, and would most probablybe used for the
latter3 . However, the UnitedStates maintained the Islamic
Republic on that list and continued tobar it £rom the
purchase of such "dual-use" material. As a result, in June
1982, the United Statesissued a license permitting the
1 J. McGuish and A. Terry, "HowU.S. Sky Spies Help
Iraq's War", Sunday Times (London), 7 March 1985,
sec. 1, p..21.
D. Alpern, et al, "America's Secret Warriors",
Newsweek, 10 October 1983, pp. 38-45; J. Peretzell,
"Can Congress Really Checkthe CIA?", Washinqton
Post, 24 April 1983, p. 61; "CIA Courted IranExiles
for7 Years", International HeraldTribune, 20
November 1986, p. 1, col. 1.
David Ignatius, "Iraqis Turning to U.S., Britain for
Armaments", The Wall Street Journal, 5 March 1982, p.
22, col. 1.export of six Lockheed L-100 civiliantransport aircraft to
Iraq1 . Although the sale of the aircraft was licensed to
Iraqi Airways, the L-100 is the civilian version of the
Lockheed C-130 Hercules military transport an troop
2
carrier . Four months later, the United States licensedthe
sale of six small jets to Iraq, four of which admittedly
3
possessed military applications .
4.36 At the end of 1983, it was disclosed that
the United States had informed various "friendly" nations in
the Persian Gulf that the Islamic Republic's defeat of Iraq
would be "contrary toU.S. interests"and that steps would
be taken to prevent this result 4. In April 1984, it was
revealed thatPresident Reagan had signed two National
Security Decision Directives to set the stage for the United
1 Bureau of National Affairs,U.S. Export Weekly, 6
June 1982, 312.
2 "A ~iit Towards Baghdad?", TheMiddle East, June
1982, 7; New York Times, 18 July 1983, p. 3, col. 1.
3
"U.S. Licenses Sale to Iraqof Small Jet", Washinqton
Post, 14 September 1982, p. 12, col.1.
4 Don Oberdorfer, "U.S. Moves to Avert IraqiLOSS",
Washinqton Post, 1 January 1984, p. 1, c6l.l; David
Ignatius, "U.S. Tilts Towards Iraq to Thwart Iran",
Wall Street Journal, 6 January 1984, p. 20, col. 1.States to take a more confrontational stance againsI tran.1
Moreover, in May 1984, it was revealed that theUnited
States was prepared to intervene militarilyin the Iraq-Iran
war in order to prevent an Iranian victory that would
2
install aso-called "radical"Shiite government in Baghdad .
4.37 In November1984 the United States reinsti-
tuted normal diplornatic relationswith Iraq, severed since the
1967 Arab-Israeliwar,3 which although not per -e violativeof
-._.
neutrality, it indicates the depth of the assistance the United
States gave Iraqduring the war while it had no such relations
with the Islamic Republic.
4.38 In February 1985, Textron's Bell
Helicopter Division was allowed to sel1 45 large helicopterç
to Iraq, and Iraqi defence officiais were involvedin
-.
negotiatingthis transaction 4. Subsequently,it was
revealed thatthese helicopterswere intiallydeveloped as
- -
1 Middle East Policy Survey, No. 102 (20 April 1984),
p. 1.
2
G. Gutman, "U.S.Willing toUse Air Power to Keep
Iran From Beating Iraq", Lonq IslandNewsday, 20 May
1984, 3; Ignatius, 9. e., Wall Street Journal, 6
January 1984.
Mansour Farhang,"The Iran-Iraq War", 2 World Policv
Journal (1985), p. 671.
David Seib,"Textron'sBell Unit and Iraq Seem Near
Final Agreementson Sale of 45 Helicopters",Wa
Street Journal, 28 February 1985, p. 32, col. 5.Iranian troop carriers and a United States offficialstated
that thehelicopters were"clearlya dual-use item" with "a
potential for military use 1 ."
4.39 In April 1989, the Islamic Republic
disclosed what the United States considered as one of the
Central Intelligence Agency's rare successei sn Iran: a
network ofagents who provided intimate details and
documents about Iran'smilitary planning. Several U.S.
officials subsequentlyadmitted "that before it was
compromised, the effort yielded valuable military
intelligence,particularlyabout Iran's operations in the
(Persian) Gulfat a time when U.S. naval forces were
confronting the Iranians".These U.S. officials also
admitted that "the CIA network in the Iranian military was
coordinatedby the agency's Iran stationin E'rankfurt2".
4.40 Starting on 21 July 1987, the United
States began to reflag 11 Kuwaiti tankers through a
specially-formedChesapeake Shipping Companyto maintain an
American appearance,and to provide an excuse for escorting
them through thePersian Gulf and preventing theIslamic
L David Ottaway, "U.S. Copter Salesto Iraq Raises
Neutrality Issue", Washinqton Post,13 September
1985, p. 1, col. 6.
L ' 'Stephen Engelberg and Bernard Trainor, "Its Spied
Exposed, U.S. Gropes in Iran", InternationalHerald
Tribune, 9 August 1989, p. 1.Republic's enforcementof Kuwait's compliance with its
duties as a neutral state. Kuwaithad also become a &
facto ally of Iraq in the war. This refiaggingwas most
abusive and provocative. It was abusive both of the law
relating to the nationality of vessels as well as of the
laws of neutrality. It was temporary,and its sole purpose
was to allow U.S. warshipsto escort thereflagged ships and
thus avoid rania asntop and search measures. Afterthose
measures terminated,the Kuwaitis asked for thewithdrawal
of U.S. nationality £rom the ships. Thus, it was an obvious
cover given by an alleged neutral governmentfor a supporter
of one of the belligerents. The United States was quite
aware, in taking these actions, of the Iranian
characterizationof the Kuwaitis and of the Islamic
Republic's protests against the reflaggingpolicy.
4.41 These actions, and the jamming of Iranian
Air Force telecommunicationson 14 May 1988 referred to
above1, clearly indicate that the United States violated the
duties of a neutral government under both 1907 Hague
Conventions (Nos. V and XIII), and under customary
international law as reflected in these Conventions. The
United States' proclamationof neutrality and its
benefitting from the advantagesof neutrality clearly
implied its obligation to observe these duties under
internationallaw and its acceptanceof them.
1 -ee, para. 1.41,above.
-A 5. Conclusions
4.42 The ICAO Report itself acknowledges that
the United States disregarded the safety provisions in the
Chicago Convention. It emphasizes the numerous problernsto
internationalcivil aviation that the presence and
1
activities of naval forces in the Persian Gulf area caused ,
and it points out that thepositioning of warships was done
in total disregardof civil aviationrequirements.
4.43 Indeed, the United Statesis indicted by
ICAO in its Report on the fate of IR 655 at paragraph 2.8.4.
in the following terms:
"There was no CO-ordination betweenUnited
States warships and the civil ATS units
responsiblefor the provision of air traffic
services withinthe various flight information
regions in the Gulf area. Such CO-ordination
would have enabledor at least facilitated
identificationof civil flight operations2."
The necessity'forsuch CO-ordination is enshrined in Annex
11 of the Chicago Convention and is essential to ensure air
safety pursuant to Articles 44(a) and (h) of the Convention.
1 ICA0 Report, para. 2.3.1.
L See, also, the ICAO Report's findings about the U.S.
NOTAM (ICAO Report, para. 2.2.5, cited at para. 4.63,
below).Tne United States totally disregarded these principles. In
so doing, it not only violated the Chicago Convention,it
also contrisuted to the situation whichled to the downing
of IR 655.
4.44 The various violations describedabove
should al1 have been condemned by the ICA0 Council when it
took its decision in March 1989. For the United States had
shown a callous disregard for thesafety of international
civil air operations in the Persian Gulf. Its --tions
interfered withthe Islamic Republic's freedom of commerce
and navigation, andconstituted aviolation of its
territorial sovereignty. Most seriously, these actions,
when combined with the illegal and aggressive conduct ofthe
U.S. fleet in general, resulted in a situation in which the
criminal act of shooting down IR 655 was almost bound to
occur. It was the Council's duty to recoFni-ze and rule on
these facts.
4.45 The conclusion that theUnited States
persistently interfered with air navigation is confirmed by
the fact that several other incidents have occurred since 3
July 1988 in which disaster was narrowly avertedby the
action of the IslamicRepublic's civil air authorities.
These incidents, whichtook place on 3 January, 3 March, 5
May and 5 June 1989 (the latter occurring three weeksafter
,the filing of the Application in this case) were al1
reported to ICAO. Their significancelies in the fact that
the continued presenceof the U.S. fleet in the Persian
Gulf, coupled with the United States' ongoing failure touse
proper means for civil/militaryCO-ordination, makesa
repetitionof the IR 655 tragedy a distinct possibilityand
constitutes a continuing violatioo nf internationallaw1.
B. The Shootinq Down of Fliqht IR 655
4.46 The act of the United States in shooting
down IR 655 consti.tuteda flagrant breachof the Chicago and
Montreal Conventionsand the Treaty of Amity, each of which,
as has been shown in Part III, explicitly or implicitly
prohibits the use of force againçt civil aircraftor
interference withcommerce and navigation. Such an act a150
violated Article 2(4) of the United Nations Charter, which
(like Article3 biç of the Chicago Convention)reflects the
customary rule prohibiting the use of force underlying the
relevant conventionalprovisions.
4.47 Essentially two arguments have beenmade
to justify theUnited tat t ect'ons in this incident. The
first is that the shooting down of IR 655 was accidental.
This version was propounded by the Chairman of the U.S.
1 g, paras. 4.27-4.28, above.the filing of the Application in this case) were al1
reported to ICAO. Their significancelies in the fact that
the continued presenceof the U.S. fleet in the Persian
Gulf, coupled with the United States' ongoing failure touse
proper means for civil/militaryCO-ordination, makesa
repetitionof the IR 655 tragedy a distinct possibilityand
constitutes a continuing violatioo nf internationallaw1.
B. The Shootinq Down of Fliqht IR 655
4.46 The act of the United States in shooting
down IR 655 consti.tuteda flagrant breachof the Chicago and
Montreal Conventionsand the Treaty of Amity, each of which,
as has been shown in Part III, explicitly or implicitly
prohibits the use of force againçt civil aircraftor
interference withcommerce and navigation. Such an act a150
violated Article 2(4) of the United Nations Charter, which
(like Article3 biç of the Chicago Convention)reflects the
customary rule prohibiting the use of force underlying the
relevant conventionalprovisions.
4.47 Essentially two arguments have beenmade
to justify theUnited tat t ect'ons in this incident. The
first is that the shooting down of IR 655 was accidental.
This version was propounded by the Chairman of the U.S.
1 g, paras. 4.27-4.28, above.Join: Chiefs of Staff in his report on the incidentwhich
1
was made part of the Defense DepartmentReport . Based
solely on the Deiense Department'sown self-serving
assessment,the ICAO Councii accepted this view and faund
that the incidentoccurred "as a consequence of events and
errors in identificationof the aircraft" which resultedin
IR 655's "accidentaldestruction",and did not condemn the
United States for its acts. The second argument iç that the
United States actedin self-defence - a contentionwhich was
advanced by the United States beforethe UnitedNations
Security Council and in otherstatements referred to above.
1. The "Accidental"Arqument
4.48 There is no doubt that the shootinq down
of 13 655 was not an accident as might have been the case,
for example, if the Commanding Officerof the Vincennes had
slipped and activated some sort of triggering mechanism. In
this sense, the ICAO Councii's decision is clearly wrong
because the recordshows that the CommandingOfficer meant
to shoot downthe plane that appeared on his ship's radar.
The question is rather whether there was amistaken
identificationof the plane a ..d, if so, whether that
miçtaken identificationjustified in some way the shooting
down of the plane or exonoratea the UnitedStates from legal
1
-See, Defense DeDartmentReport, p. E-64.responsibility.
4.49 The Islamic Republic subrnitsthat the
claim that IR 655 was "misidentified"is not credible. The
overwhelming weight of the evidence shows that the
Vincennes, as well as its sister ships, had the capacity to,
and did correctly, identify IR 655 as a civilian aircraft.
In examining this question, it is appropriate to recall the
test used by the Ünited States in the çtark incident. There
the United States found Iraqfully responsible for the
attack on the grounds that the Iraqi pilot "knew or should
1
have known' that he was attacking aU.S. warship . 4
fortiori, the same can be said about the Vincennes here.
4.50 The relevant facts which show that the
Vincennes couldnot reasonably have been mistaken about IR
655's identity are the following:
- The fact that theVincennes possessedthe
highly advanced technicalcapabilities of
the AEGIS combat systemfor detecting
aircraft, and that the data actually
recorded by the AEGIS was at al1 times
correct and consistent withthe flight
1 Çee, the Diplomatic note presented by the United
States to the Iraqi Ambassador in Washington on 20
May 1987, reprintGd in 83 AJIL (1989),p; 562. A
copy is attached at Exhibit 62. profile of an Airbus ~300~;
- The fact that the AEGIS system correctly
recorded IR 655 as squawking its commercial
Mode III code throughoutthe flight;
- The fact that IR 655 was communicatingon
open radiochannels with air traffic
control centresin English and that the
Vincennes and other U.S. military sources
communicationsi5y;to hear such
- The fact that IR 655 was well within the
international aircorridor, ATS route A59,
which had been used for years by civil
aircraft flying between Bandar Abbas and
Dubai ;
- The fact that the correct identification of
IR 655 as a civilian aircraft squawking
Mode III was made by members of the crew of
the vincennes3 ;
- The fact that the Vi-ncennes possessed and
was familiar with the civil aircraft
schedule which showedthat IR 655 was
scheduled to transitthe Persian Gulf when
it did and that this schedule was examined
by an officer of the ship at the time4;
- The.fact that, with just one exception,
none of the other ships, aircraft, or air
traffic control centresin the area heard
I Çee, ICAO Report, para. 3.1.26
2
The ICAO Report wrongly foundthat U.S. warships were
not equipped to maintain civil ATC frequencies for
flight identification purposes.ICAO Report,para.
3.1.13. The Defense Department Report admits that
the warshipsdid have such capacity (p. E-53,
para. 6).
ICAO Report, para. 2.12, et seq.
-ee, para. 1.72, above. the warning communicationsallegedly sent
by the vincennesl;
- The fact thatsince 1984 Iranian military
aircraft had consistentlyheeded'U.S.
challenges and avoided U.S.naval forces;
- The fact that there was absolutely no
precedent for an Iranian air attack on U.S.
naval forces and that an F-14 was totally
unsuitable for attacks on shipping;
- The fact that theCommanding Officerof the
Vincennes took no action, other than to
raise his hand, when being inforrned by
his Combat InformationOfficer that the
aircraft might be civilianz.
- The fact that both.theSides and the
Montqorneryidentified IR 655 as commercial
and a non-threat.
4.51 Based on -thesefactors, the Islarnic
~epublic cannot accept the conclusion reached in the ICAO
Report that the "aircraftwas perceived as a military
aircraft with hostile intentions3". The Vincennes was in
full possessionof al1 the facts, as was its cornpanion ship
the çideç, and these unmistakably showed IR 655 to be a
-
No civil air authority heardany warninqs, which they
certainly would have if a warning hadbeen sent out
over a commercial channel. Theonly military entity
that has claimed to have heard any warnings wasa
British ship, HMS Beaver, workinqin close
Beaver claimed to have heardwarnings sentout over
the civilian air channel which were heard at neither
Bandar Abbas nor Dubai.
2
See, para. 1.85,above.
3 ICAO Report, para. 3.2.1.civilian fyight.
4.52 Because the facts simply do not support a
claim of accident or mistaken identification,the United
States has been forcedto create a psychological theory to
explain the incident. However, this theory, which rests
largely on the assumptionthat theVincennes' crew was
fatigued and under stress, is equally implausible. The
Vincennes crew had only arrived in the Persian Gulf in May
1988 and were thus fresh. Indeed, this was their first
taste of action. ~oreover, they had been trained to handle
hundreds of planes simultaneouslyattacking their ship under
"the most intense environment that (the Defense Department)
can replicateL". The assertion that theycracked when
confronted with asingle, non-threateningaircraft cannotbe
reconciledwith tne fact that thecrew of the çideç and the
Montqomery correctly identifiedthe plane as commercial.
Instead, what is plausible is that the Vincennes "hankered
for an opportunity toshow its stuff".
4.53 Even if there was amistaken
identification, this amounted to such gross negligence and
recklessnesson the part of the Vincennes that any
characterizationof the act as accidentalor excusable is
1 senate Hearinqs, p. 28. Sec, Exhibit 7.plainly wrong. In municipal law, the only difference
between murder and manslaughter is that inorder to prove
the latter there is no need to show an intention tokill,
but only an unlawful act which resulted in death 1 . Here,
the unlawfulnessof the act can be established on the
objective facts: either the shooting downof IR 655 was
intentionalor it was grossly negligent and reckless. In
either case, the United Statesactions still have the
character of an internationalcrime and the United States
bears full responsibil ity.
-
-.
4.54 Thus, even if-it were true that the
Vincennes mistakenly identifiedIR 655 as an F-14, this
would not deprive the act of shooting it down of the
attributes of an intentionally performed and unlawful act.
Clearly, the Vincennes intended to shoot dowt nhe aircraft
that appeared on-iTi radar screen. Moreover, the mistaken
identificationof the plane as an F-14 would no,thave made
the act of çhooting it down any less unlawful. For even had
it been an F-14;it would have had every right to be flying
in Iranian airspace, and shooting it down in the
circumstanceswould have violated internationallaw.
1
-See, for example, in connection with the destruction
of the Rainbow Warrior,R v. Mafart and Prieur,
before the New Zealand High Court, reprinted in 74
I.L.R. (1987) 241 at 245. 4.55 The United States is responsible forthe
action of the Vincennes in either case. Under international
' law, the testof a State's responsibility is very wide. As
Professor Brownlie points out-
"... the practice of States and the.
jurisprudenceof arbitral tribunals and the
International Court have followed the theory of
objective responsibilityas a general principle
...l.ll
Brownlie also observesthat -
"... objective responsibility rests on the
doctrine of the voluntaryact: provided that
agency and causal connection areestablished-,
there is a breach of duty by result alone2."
4.56 As has been demonstrated in Part III, when
it cornesto the acts of the armed forcesof a State, a very
strict accountability exists whereby the State is liable
even if the intention to causedamage is not shown. In this
connection, it is again appropriate to quote from
Commiçsioner Nielsen's opinion in the Klinq ~laim':
L Brownlie, Systemof the Law of Nations: State
Responsibility, =. a., p. 39.
3
-Klinq v. United Mexican States, 4 R.I.A.A. (1930), p.
cit., at p.in506.ssIn his Opinion, Nielsen refers to a
nurnberof other cases where this principle hasbeen
upheld (e.q., the Falcon and Garcia and Garza cases). "In cases of this kindit is mistaken action,
error in judgment, or reckless conduct of
soldiers for which a government in a given case
has been heldresponsible. The international
precedents revealthe application of principles
as to the very strict accountabilityfor
mistaken action."
Of course, under the precedents referred toin the previous
Part, the rule that a State bears responsibilityfor the
acts of its armed forcesis even stronger wnenthere are
officers present. Here, Captain Rogers was not only
present, he gave the order to fire. Thus, it makes no
difference whether other crew members passed on wrong
information: the United States woulb de liable for the
destruction of IR 655 even if it resulted.frommistaken
actions.
4.57 The acts of the United States also
constituted violationsof Article 1 of the Montreal
Convention. A breach of Article 1 depends first on whether
the act of destroying the aircraft was intentional or
accidental, and ç'econdon whether it was lawful or unlawful.
In this case, there is no doubt thatthe shooting downof
the plane was intentionaland unlawful. This is so even if
the plane was believed to be an F-14. Since the only
,
conceivable justification for shooting downan F-14 would be
in self-defence, it is to that question that this analysis
now turns. 2. The "Self-De£ence" Arqument
4.58 The governing rule is clear: under
international lawthe use of armedforce is prima facie
unlawful. The only exceptionto this rule is where the
State using force acts in self-defence. The United States
has repeatedlyclaimed that the USS Vincennes actedin this
mann.. in shooting downIR 655L. In addition, the ICAO
Report's reference to the United States' alleged
misperception that IR 655 was a military aircraft with
hostile intent, and the ICAO Council's failure tocondemn
the United States for its acts, implicitlygives credenceto
this argument.
4.59 As explained in Part III, in order for the
United States' invocationof self-defenceto be legally
valid, the Vincennes must have been subject to an armed
attack when it fired. However, the facts show the contrary:
not only was IR 655 not hostile, it had no capability to
mount an armed attack. Indeed, even if IR 655 had been an
F-14, it still would have been unlawful to shootthe plane
down since it would have been operatinglegitimatelywithin
its own airspace. Even had the V.incennes been subject to
interception by Iranian coastguardor had been warned out of
1 -ec, para: 3.88, above.Iranian waters, it would have had no right to take defensive
measures involvingthe use of force in a situation whereit
an6 other U.S. warships had unlawfully intrudedinto, and
were hoveringin, the Islamic Republic's territorialwaters.
4.60 The only question that remains therefore
is whether theUnited States not only misidentified the
plane as an F-14, but also reasonably believedthat it was
about to be attacked by that F-14. Here again there is no
factual basisfor a belief that any United States warship
was about to be attacked. The Airbus was behaving normally
for a commercial flight: it was ascending at a speedfar
slower than-+,fighter plane would descend in a dive attack;
and it was operating in the regular commercialair corridor.
Thus, even if the plane had been identified as an F-14, it
had not in any way adopted an attack profile. Moreover,
there was no precedent for attacks on U.S. warships by
Iranian military aircraft and, in any event, an F-14 would
never be used to attack a ship 1. -
4.61 It is significant that both the çideç and
the Vincennes illurninated the plane, but that IR 655 took no
defensive measures and did not illuminateany of the U.S.
warships in return - an act which would have been necessary
1 -ee, paras. 1.103-1.109,above.if the plane had been preparing for a missile attackof the
kind mounted against the Stark. The lack of either
offensive tactics (illumination)or defensive measures
(evasion)by' IR 655 provided further evidence that the plane
had no hostile intent. Consequently,both the Sides and tne
Montaomery dismissedthe plane as a commercial flight. All
these facts were knownto the Commanding Officerof the
Vincennes: yet he still made the decision to fire.
4.62 It is further necessary torecall that
under the NOTAM that had been issued by the United States,
aircraft approaching a U.S. warship were only supposed tobe
at risk of "defensive measures"if they had not been cleared
from a regional airport and if they came within 5 nautical
miles of a warship at an altitude of less than 2000 feet. In
this case, the interceptionof IR 655 took place at a
distance of 10 nautical miles£rom the Vincennes and at a
height of 12,950 feet. Not only was this outside the
lateral and vertical limits appearing in the NOTAM, but IR
655 was also a flight "cleared" to depart from a regional
airport to which the NOTAM purportednot to apply. Thus,
under the United States' own NOTAM, there was no
justificationto attack.
4.63 Even if the provisions of the NOTAM had
been followed, the ICA0 Report itself has recognized thatits terms were so ambiguous as to be effectively useless.It
stated:
"The full implicationsof the rules of
engagementof the United States warships were
not sufficiently reflected in the notice
promulgated by the United States. It was not
specified whatwas considered tobe 'operating
in a threateningmanner', what distancewas
considered 'well clear of United States
warships', and what was meant with'could place
the aircraft at risk by United States defensive
measures'. The safety risks imposed by the
presence of naval forcesin the Gulf area to
civil aviation may have beenunderestimated,in
particular as civil aircraft operated on
promulgated tracks including standard approach
and departure routes from airports in the ~.
areal."
Thus even if the procedures set out in the NOTAM had been
followed, they would not have helped IR 655 or other
civilian traffic to realize that theywere in danger. The
provisions of the NOTAM were simply too vague.
4.64 The only remaining allegation that needs
to be dealt with is the claim that the Vincennes was under
attack £rom Iranian patrol boats and believed IR 655 to be
part of this attack. This theory, based entirely on the
Defense Department Report, has been discussed in Part 1 as
the "coordinatedattack" theory. Itwas shown there to have
no basis in fact.
I ICAO Report, para. 2.2.5 4.65 What is known is that the Vincennes'
helicopter intruded into the airspace over the Islamic
Republic's interna1 waterssome two hours before the IR655
incident and waswarned off by coastal patrolboats 1. After
this incident,which the Commander of the çides clearly
viewed as a provocationby the helicopter, the Vincennes,
which wasalready in the territorial sea of the Islamic
Republic, manoeuvred toattack the boats. It was this
unlawful intrusioninto the Islamic Republic's territorial
sea that resulted in the Vincennes being positioneddirectly
under the flight path of IR 655. This in itself waçan
illegal act in that U.S. warships onlyhad at most the right
of innocent passage through the Islamic Republic's
territorialwaters, and only if the priorauthorizationof
the Islamic Republichad been obtained. More importantly,
however, the theory that thewarships were under a
coordinatedattack has been shown to be absurd. Indeed, the
Commanding Officer of theSides, who was directly involved
in the incident and the perçon best placed to judge it,
publicly ridiculed'theidea that a few small boats would
attack some of the U.S. Navy's most powerful ships after
1
this had been advanced by U.S. spokesmen .
1 As pointed out above, no requests for assistance were
received by the Vincennes before it decided to
despatch the helicopter.
-ec, para. 1.115, above. 3. U.S. Attitudes In Related ~ncidents
4.66 It is thus quite impossibleon any legal
grounds to excuse the United States' use of force in this
incident. The United States shouldbe condemned and should
be ordered to make reparations for its acts. In the past,
no State has argued thisprinciple more strongly than the-
United States itself. In particular, theUnited States has
steadfastly condemnedthe shooting down of aircraft, whether
civil or military, by the armed forces of another State. For
..
the United States to adopt an entirely differentstance now
with respect to the shooting down of flight IR 655 is
unacceptable. While it is not-necessaryto recanvass al1 of
the previous aerial incidents on which the United States has
expressed a position - many of these are quite well known -
it is appropriate to focus on a few examples that involved
civilian aircraft so as to illustrate the degree to which
the United States has altered its stance for purposes of
this case.
4.67 One such incident, following the Second
World War, involved a Frenchcommercial airliner on a flight
£rom Frankfurt to Berlin. On 29 April 1952, this flight was
fired on by a Soviet fighter. Although the pilot managed
to land the plane safely, passengers were wounded. In
response, the Allied High Commissionersin Germany (whoincluded an American representative)made a joint protest in
which they stated:
"Quite apart £rom these questions of fact
(whether the aircraft was outside the corridor),
to £ire in any circumstances even'by way of
warning, on an unarmed aircraft in time of
peace, wherever thataircraft may be, is
entirely inadmissible and contrary toal1
standards of civilized behaviorl. "
4.68 On 23 July 1954, a Cathay Pacific flight
£rom Bangkok to Hong Kongwas shot down by fighters of the
People's Republic of China. Numerous passengers were either
killed by the attack or drowned after theaircraft crashed
south of Hainan Island. Again, the reaction £rom the United
States was one of condemnationunder what were said to be
"universallyrecognizedprinciples of internationallaw2".
It was claimed at the time thatthe plane had been fired on
3
by accident because it was mistaken for a hostile aircraft .
This was not accepted by the United States, who referred to
the incidentas an "act of barbarity". In any event, the
Chinese governmentdid not regard its mistaken
1
Cited in O. ~issits~n, 9. c&., at p. 574; E,
also, Lowenfeld, "Agora,Iran Air Flight 655; Looking
Back and LookingAhead", 83 A.J.I.L. (1989),pp. 338-
339.
Lowenfeld, 9. &., p. 339.
Hughes, 9. e., p. 602.identificationas relievinq it of responsibilityfor the act
and paid compensation tothe U.K. qovernment on behalf of
al1 the victims reqardlessof nationality.
4.69 On 27 July 1955, an El Al airliner was
shot down by Bulqarian forces while flyinq from Vienna to
Tel Aviv. Al1 58 passenqersand crew were killed. Once
aqain, the United States declared that the attack was "a
grave violation of accepted principles of international
4.70 The incident involvingIsrael's illegal
downing of a Libyan civilian aircraft in 1973 has been
referred to above 2. The ICA0 Resolution condemning thisact
as a flagrant violationof the Chicago Convention was
supported by 28 States of the 30-member Council. Lastly,
the reaction of the United States to the downinq of Korean
Airlines fliqht 007 in 1983 was summed up by President
~eaqan in referrinqto the incident asthe "Korean Air Line
massacre3". A few days later, he siqned into law Public Law
58-58 of 15 September 1983 condemninqthe Soviet Union for
L
Çee, paras. 3.17-3.18, above.
3 A transcriptof President Reagan's'speechis set out
in the New York Times, 6 September 1983, a copy of
which is attached at Exhibit 63.this act. Moreover, the United States' Representative
before ICA0 pressed for condemnation of theincident,and
the UnitedStates implementedsanctions' against the Soviet
Union in response.
4.71 In this case, the gravity of theincident
is greatly heightened bythe fact that the Vincennes had
unlawfully intruded into the Islamic Republic's territorial
waters and that IR 655 was flying within the Islamic
Republic'sairspace over which the Islamic Republic
exercised exclusive sovereignty. The facthat there was a
Treaty ofAmity applicable'betweenthe two Statesmakes the
act even moreserious since it constitutesa violationof
the whole purpose of the Treaty, as well as of its specific
provisions regarding the treatmeno tf nationals and the
freedom of commerce andnavigation. It was also repugnant
that the U.S. warships didnot attempt to assistin any
rescue operationsafter the crash ofIR 655.
4. The United States' Failure To ACC~D~
Responsiblitvfor Its Actions in this
Incident and To Guarantee the Prevention of
Similar Incidents in the Future
4.72 The United States refused to accept
liability forthe destruction ofIR 655, and failed to offer
any compensation to the Islamic Republic unti two months
after the Applicationwas filed in thiscase, and then in ahighly questionableform. It has also failed totake steps
to guarantee the non-repetitionof such an incident. The
offer then made took the form of an ex qratia payment to be
made to some intermediarybut not to the Islamic Republic.
The amount oifered was totally inadequate,as will be
discussed in the next Part. This responseof the United
States to itsdeliberateact of shooting down the aircraft
is itself a breach ofthe Montreal Convention.
4.73 As discussedin Part III above1, Articles
3 and lO(1) of the Montreal Convention impose certainduties
on State Partiesthereto. Article 3 requires a tat teto
make offences under Article 1 punishable by severe
penalties. AS pointed out in paragraph 3.59, instead of
doing that, the United States awarded the CommandingOfficer
of the Vincennes one of its highest peace-time honours 2.
Such a gesture could onlybe consideredan insult to the
innocent victimsand theirsurviving dependentç.
4.74 adthe United Statesassumed liability
and paid appropriatecompensation,the failure to impose
severe penalties on the individuals involved would have
become academic, since the United States itself would have
1 e, paras. 3.60-3.61,above.
2
-Ie Exhibit 64.admitted responsibilityand paid therequisitepenalty. But
its present stance is in clear violationof Article3. An
offer to make an inadequate- qratia payment does not
remedy this breach ofthe Montreal Convention;and the
honouring of the naval officer most directly responsibwaç
publicly to scoff at that Convention.
4.75 After the Starkincident, the United
States made a forma1 demand on Iraq in a State Department
note of 20 May 1987~ asserting tha-
- Iraq was at fault;
- The Iraqi pilot"knew or should have known"
that the Starkwas a U.S. ship;
- Iraq should prosecute the pilot concerned;
- Iraq shouldpay full compensationfor the
injuriessustained;
- A joint enquiryshould be undertaken to
avoid similar incidents in the future and
to determine appropriate disciplinary
action against the responsibleIraqi
personnel.
It is impossible tojustify the conduct of the United States
in the present case in the light of the position it took in
1 See, para. 5.37, below and =bit 62.
-reponse tothe çtark attack. International lawdoes not
allow a State to "blow hot and cold" in this manner, and the
standards the United States sought to enforce on Iraq in the
Stark incident should now, as a minimum, be imposedon the
United Statesin this case.
4.76 The United States has alsofailed to take
steps to prevent the repetitionof such an incident. In
particular, it has continuedto operate under the provisions
of its illegalNOTAM (althoughit purported to cancel the
NOTAM), it has continued toendanger civil aviation, andit
has failed to take proper steps to ensure the activities of
its fleet comply withthe safety provisions set out in the
Chicago Convention andits Annexes. The NOTAMs and the
movements of the U.S. warships continue to violate the
Islamic Republic'ssovereigntyas well as rules governing
the rightof innocent passage. Such actions also constitute
a continuing violation of thT ereaty of Amity both by virtue
of the U.S. trade embargo andof the U.S. fleet's continuing
interference withthe Islamic Republic's freedom of commerce
and freedom of navigation.
C. Conclusion
4.77 The failure of theICA0 Council tocondemn
strongly the United States for shootingdown IR 655,
together withthe Unites States' violationsof basicstandards of air çafety, iç unacceptable. It iç alço
unacceptablethat such an internationalorganizationçhould
apply an appropriately strict standard to the conduct of
certain States - as was the case when the ICA0 Council
condemned earlier aircraft incidents - and yet avoid facing
up to clear violations of international lawby the United
States in the present case. The principle of the equality
of States does not allow an organ of the UnitedNations to
treat majorpowers in one way and other States quite
differently,categorically condemning the trançgressionsof -
- -,
the latterbut only "deploring"those of the former.
4.78 When al1 is said and done, it is apparent
that the rnannerof operations of the U.S. fleet in the
Persian Gulf (which continue to this day), the action of the
United States in shooting down 13 655, and its response to
this criminal act, al1 involve violations of internation*
law of the mostçerious kind.reponse tothe çtark attack. International lawdoes not
allow a State to "blow hot and cold" in this manner, and the
standards the United States sought to enforce on Iraq in the
Stark incident should now, as a minimum, be imposedon the
United Statesin this case.
4.76 The United States has alsofailed to take
steps to prevent the repetitionof such an incident. In
particular, it has continuedto operate under the provisions
of its illegalNOTAM (althoughit purported to cancel the
NOTAM), it has continued toendanger civil aviation, andit
has failed to take proper steps to ensure the activities of
its fleet comply withthe safety provisions set out in the
Chicago Convention andits Annexes. The NOTAMs and the
movements of the U.S. warships continue to violate the
Islamic Republic'ssovereigntyas well as rules governing
the rightof innocent passage. Such actions also constitute
a continuing violation of thT ereaty of Amity both by virtue
of the U.S. trade embargo andof the U.S. fleet's continuing
interference withthe Islamic Republic's freedom of commerce
and freedom of navigation.
C. Conclusion
4.77 The failure of theICA0 Council tocondemn
strongly the United States for shootingdown IR 655,
together withthe Unites States' violationsof basicstandards of air çafety, iç unacceptable. It iç alço
unacceptablethat such an internationalorganizationçhould
apply an appropriately strict standard to the conduct of
certain States - as was the case when the ICA0 Council
condemned earlier aircraft incidents - and yet avoid facing
up to clear violations of international lawby the United
States in the present case. The principle of the equality
of States does not allow an organ of the UnitedNations to
treat majorpowers in one way and other States quite
differently,categorically condemning the trançgressionsof -
- -,
the latterbut only "deploring"those of the former.
4.78 When al1 is said and done, it is apparent
that the rnannerof operations of the U.S. fleet in the
Persian Gulf (which continue to this day), the action of the
United States in shooting down 13 655, and its response to
this criminal act, al1 involve violations of internation*
law of the mostçerious kind. PART V
REPARATION
5.01 The Islamic Republic has demonstratedin
previous Partsthat in shooting down IR 655 the United
States violated its obligations under the Chicago and the
Montreal Conventions, the Treaty of Amity and related
provisions of customary international law. From these
violations of internationallaw flows the obligation of the
United States to make reparation for its unlawful actions.
The Permanent Court of International Justicestated this
fundamental principlein its judgment in the case concerning
the Factory at Chorzow:
"It is a principle of internationallaw that the
breach of an engagement involves an obligation
to make reparationin an adequate form.
Reparation thereforeis an indispensable
complement of a failure to applya convention
and there is no necessit for this to be stated
in the convention itself1. 01
1 Factory at Chorzow, Jurisdiction, JudqmentNo. 8,
1927, P.C.I.J., Series A, No. 9, p. 21. In the
United States Diplomatic and ConsularStaff in Tehran
case, having found that theIslamic Republic had
breached its responsibilities to the United states,
the Court statedas follows:
"As to the consequences ofthis finding, it
clearly entails an obligation ... to make
reparation for the Cnjury thereby caused."
Judqment, I.C.J. Reports 1980, pp. 41-42, para. 90. 5.02 The Islamic Republic seeks three kinds of
reparationfor the violations by the UnitedStates of its
international obligations.First, it seeks declaratory
relief, and accordingly it calls upon the Court toadjudge
and declare that theUnited States has violated its
obligationsunder internationallaw. Second, it submits
that the Court shoulddecide that the UnitedStates iç under
an obligation to cease and refrain from al1 such conduct as
may constitute breachesof such obligations. w, it
--seeks reparation forthe damages caused by the United States
in sfiooting down IR 655, in a form and an amount to be
determinedby the Court. These three requestsfor
reparationare discussed in turn below.
A. Request for a Declaration that theUnited States
Violated the Chicaqo Convention,the Montreal
Convention,the Treaty of Amity and Related
Principlesof Customary International Law
5.03 With respect to the Chicago Convention,
the precedingdiscussion hasshown that thedecision of the
1
ICA0 Council was erroneouç . In applying and interpreting
the principlesupheld in theConvention,the Council should
have foundthat theUnited States had committed fundamental
violationsof the principles embodiedin the Chicago
,1
-ec, in particuiar,para. 2.36, above.Convention and condemned the United States for its actions L .
The Council also should have called upon the UnitedStates
:O make appropriate reparation for its wrongful acts 2. It
is the failure to take these actions which, inter alia, is
the subject of this appeal. With respect to the Montreal
Convention and the Treaty of Amity, the Islamic Republic has
also shown that theUnited States has violated Articles1, 3
and lO(1) of the former aswell as the Preamble and Articles
IV(1) and X(1) of the latter. -
5.04 The Court has the cornpetence to judge on
the interpretation andapplication of these Conventions
pursuant to Article 84 of the Chicago Conventionand Article
14 of the Montreal Convention, respectively. It hasthe
same authority torule on disputes relating to the
interpretation orapplication of the Treaty of Amity under
Article XXI(2) of that Treaty. Once seized of a dispute
pursuant to those Articles, there is no doubt that like any
other international tribunal the Court ha she power to
grant declaratoryrelief of the kind requested.
1 As noted above, the ICA0 Council strongly condemned
Israel's shooting down of a Libyan civilaircraft and
the Soviet Union's destruction of KAL 007. Çee,
paras. 2.37-2.39, above.
2 See, para. 5.14, below. The Council has aduty not
only to uphold the principlesofthe Chicago
Convention but also under Article 44ff) to protect
the rightsof the States which are parties to the
Convention. 5.05 This general principle has most recently
been expressed by the Tribunal in the Case of New Zealand
aqainst France (Chairman,Jiménez de Aréchega), inthe last
stage of the Rainbow Warrior affair. It noted thatthere
exists -
"... une habitudede longue date des Etats et
des Cours et Tribunaux internationaux d'utiliser
la satisfactionen tant que remède ou forme de
reparation (au sens large du terme) pour les
violations d'une obligation internationale1."
In considering itsown power to grant declaratory relief by
making a statement to the effect that France had acted
illegally, the Tribunal concluded as follows: .,
"11 est indubitableque ce pouvoir existe et
qu'il est considérécomme une importante
sanction2."
1 Award of 30 April 1990, pp. 115-116, para. 122
Unofficial translation:
"... a longstanding practice of States and of
international Courtsand Tribunals to use
'satisfaction'as a remedy or form of reparation
(in the wide sense of the term) for,violations
of an internationalobligation."
This practice is discussed in detail by Professor
Arangio-Ruiz in his Second Report to the
International Law Commission (1989) (A/CN.4/425).
-Ibid., p. 116, para. 123. Unofficial translation:
"It is beyond doubt that this power exists and
that it is considered to be an important
sanctiorî." - 264 -
The Tribunal went on in that case to condemn Francefor the
violation of its international obligations to New Zealand.
5.06 With respect to the practice of the
International Court,it has exercised thepowers to make
declarations of this kind on a number ofoccasions. In
Chorzow Factory, for example, the Permanent Court stated
that the purpose of a declaratory judgment was-
"... to ensure recognitionof a situation at
law, once and for al1 and with bindingforce as
between the Parties; so that the legal position
then established cannotagain be called in
question in so far as the legal effectsensuing
therefrom are concernedl."
And in the Corfu Channelcase, having determinedthat the
British navy had acted illegally, the Court declaredthat
"the United Kingdom violated the sovereignty of the People's
Republic of ~lbania~".
5.07 In this case, it is essential that the
full legal responsibility of the United States for its acts
in this incidentbe recognized. This is a prerequisite of
the claims for monetary and otherforms of reparation
1 Interpretation ofJudqments Nos. 7 and 8 (Factory at
Chorzow), JudqmentNo. 11, 1927, P.C.I.J., Series A,
No. 13, p. 20.
2
Corfu Channel, Merits, Judqment, I.C.J. Reports 1949,
p. 36 (dispositif).discuçsed below. Thus, .inthe dispositif of its Judgment on
the Merits in the Nicaraqua Case, the Court first enumerated
the UnitedStates' violationsof international lawand then
in paragraphs (12) and (13) called on the United States to
cease such actions and to make reparation forthe injury it
had caused1 .
5.08 Accordingly, the Islamic Republic calls
upon the Courtto exercise its power to grant declaratory
relief and to declare that theUnited States has violated
its internationalobligations under the Chicago Convention,
the Montreal Convention, the Treaty of Amity and related
principlesof customary international law.
B: Request foran Order that the United States
Cease and Refrain from Its Violations of
International Law
5.09 It has been shown above that the United
States continues toendanger civil aviation in the Persian
Gulf in violation ofthe Chicago Convention aswell as to
£ail to observe and abide by the principlesof free commerce
and navigation ençhrinedin the Treatyof Amity. The
activities'ofthe U.S. fleet in the Persian Gulf also
constitutea continuingabuse of the territorial sovereignty
1 Military and ParamilitaryActivities in and ~qainst
Nicaraqua (Nicaraquav. United States of America),
Merits, Judqment, I.C.J. Reports 1986, pp. 146-148,
para. 292 (dispositif).of the Islamic Republic and of the principle of non-
interventionin breach of Articles 1 and 2 of the Chicago
Convention, as well as an interference in the Islamic
Republic's interna1 affairs, while the continuing trade
embargo on the IslamicRepublic is in violation of the
principles enshrined in the Treaty of Amity.
5.10 In the light of these continuing
violations of internationallaw, the Court should use its
powers to ordèr the United States to cease and refrain from
--.
al1 actions in violation of internationallàw which endanger
civil aviationas well as al1 actions in violationof the
Treaty of Amity. In the United States Diplomaticand
Consular Staff in Tehran case the Court ordered the Islamic
Republic immediatelyto "take al1 steps to redress the
situation resulting £rom the events of4 November 1979
... Similarly, in the Nicaraquacase where the Court
adjudged that thebreaches of international1aw.b~ the
United States were still continuing, the Court decided that
the United States was "under a duty immediat&lyto cease and
to refrain £rom al1 such acts as may constitute breachesof
the foregoing legal obligations ... .,
L United StatesDiplomatic and Consular Staffin
Tehran, Judqment, I.C.J. Reports 1980, p. 44,
sitif).
2
Military and ParamilitaryActîvities in and aqainst
Nicaraqua (Nicaraquav. United Statesof America),
Merits, Judqment,I.C.J. Reports 1986, p. 149,
para. 292 (dispositif). 5.11 It is a generally acceptedprinciple that
States must not only make reparation for their breaches of
internationallaw but must take steps to cease and refrain
£rom committing such breaches. Afterthe KAL 007 incident,
the United States was the first to cal1 upon the
international communityin general and the SovietUnion in
particular to take steps to prevent the repetition of such
an incident. It sponsored the adoption ofArticle 3 biç of
the Chicago Convention, andit concluded a bilateral
agreement withthe Soviet Union to set up procedures for
emergency landings inrestricted'areasof the Soviet Union 1.
In Public Law 58-58, enacted afterthe incident, the United
States called on the Soviet Union to "agree to abide by
internationally recognized and established procedures which
are purposefully designed to prevent the occurrence of such
tragedies2". For purposes of safety as well as to prevent
continuing violationsof international law,the Islamic
Republic submits that theUnited States should be ordered to
cease and desist £rom al1 acts in the region which endanger
civil aviation and which are in violation of international
law.
1 Çochor, z. C&., p. 163.
2
-1e Exhibit 57. C. Request for an Award of Compensation aqainstthe
United States for Its Violation of International
Obliqations
1. The Court's Power To Award Monetary
Reparation
5.12 As noted above, the Permanent Court
held in theChorzow Factory case that reparation must be
made for breach ofan international obligation. In the
Chorzow Factory case, where the Court's jurisdictionderived
frorna Convention between Poland and Germany under which any
dispute concerning the interpretationor application of the
Convention was to be resolved by the Court, the Court
considered itself empowered by this provisionto make a
1 .-
rnonetaryaward . In the New Zealand v. France case, where
exactly the same wording (grantingpower to the Tribunal to
resolve any dispute submitted toit concerning the
1
In the United States Diplornatic and Consular Staff in
Tehran case, which involvedin part a violation of
the same Treaty of Amity in question here, the Court
held that theIslamic Republicwas "under an
obligation to make reparation ... for the inj-ry-
caused ...". Judqrnent,I.C.J. Reports 1980, p. 45,
para. 95 (dispositif). Judge Lachs, in his Separate
Opinion in that case, stated that in his view this -
paragraph of the dispositif was redundant as the
frornthe finding that the Islamic Republic wasally
responsiblefor the injury. Ibid., p. 47. In the
Nicaraqua case, which also involved a treaty with
almost identical. wording to that in question here,
the Court decided that the United States was under an
obligation to make reparation to Nicaragua. Military
and ParamilitarvActivities in and aqainst Nicaraqua
(Nicaraquav. United States of America), Merits,
Judqment, I.C.J. Reports 1986, p. 149, para. 292
(dispositif). C. Request for an Award of Compensation aqainstthe
United States for Its Violation of International
Obliqations
1. The Court's Power To Award Monetary
Reparation
5.12 As noted above, the Permanent Court
held in theChorzow Factory case that reparation must be
made for breach ofan international obligation. In the
Chorzow Factory case, where the Court's jurisdictionderived
frorna Convention between Poland and Germany under which any
dispute concerning the interpretationor application of the
Convention was to be resolved by the Court, the Court
considered itself empowered by this provisionto make a
1 .-
rnonetaryaward . In the New Zealand v. France case, where
exactly the same wording (grantingpower to the Tribunal to
resolve any dispute submitted toit concerning the
1
In the United States Diplornatic and Consular Staff in
Tehran case, which involvedin part a violation of
the same Treaty of Amity in question here, the Court
held that theIslamic Republicwas "under an
obligation to make reparation ... for the inj-ry-
caused ...". Judqrnent,I.C.J. Reports 1980, p. 45,
para. 95 (dispositif). Judge Lachs, in his Separate
Opinion in that case, stated that in his view this -
paragraph of the dispositif was redundant as the
frornthe finding that the Islamic Republic wasally
responsiblefor the injury. Ibid., p. 47. In the
Nicaraqua case, which also involved a treaty with
almost identical. wording to that in question here,
the Court decided that the United States was under an
obligation to make reparation to Nicaragua. Military
and ParamilitarvActivities in and aqainst Nicaraqua
(Nicaraquav. United States of America), Merits,
Judqment, I.C.J. Reports 1986, p. 149, para. 292
(dispositif).interpretationor applicationof the Accord) was the basis
of its competence,the Tribunal relied on the Chorzow
Judgment in findinq thatit had power to make a monetary
award. It stated:
"Le Tribunal considère qu'il est habilité à
rendre un jugement de compensation monétaire
pour violationde l'Accordde 1986, la
résolutionde 'toutconflit concernant
l'interprétationou l'application' des
dispositionsde cet Accord relevantde sa
compétence (affairede l'usine Chorzow
(Juridiction)PCIJ Pubs. Série A., No. 9, p.
21)1.11
5.13 Virtually the same wording as that on
which the Court based its jurisdictionin the Chorzow
Factory case is found in the Chicago Convention,the
Montreal Convention and theTreaty of Amity. Accordingly,
the Islamic Republic subrnits that theCourt clearly has tne
power to award monetary andother forms of reparationfor
the breaches by the United States of its obligationsunder
internationallaw and requeststhe Court 'toexercise its
competence inthis respect. As the Court held in the
Nicaraqua case:
1 Award of 30 April 1990, p. 114, para. 117. Unofficial
translation: .
"The Tribunalconsiders that it is empowered to
make an award of monetary compensation for
violationof the 1986 Agreement, since the
resolutionof 'any.disputeconcerning the
interpretationor application'of the provisions
6f this Agreementfalls within its jurisdiction
(Case concerninq the Factory at Chorzow
(Jurisdiction) P.C.I.J., Series A, No. 9, p.
21). " "In general, jurisdiction todetermine the
merits of a dispute entails jurisdiction to
determine reparationl."
5.14 Insofaras the Islamic Republic's
submissions constitute an appeal £rom the decision of the
ICAO Council, it is significant that the Council has
previously found itself to be empowered tocal1 on States to
make reparationfor their illegal acts. This is clear £rom
the Councll's action in the KAL 007 incident. Having
recognized the responsibility of the Soviet Union for
destroying KAL 007, the Council's Resolution stated'as
follows :
"... such use of armed force ... is incompatible
with the norms governing international behavior
... and invokes qenerally recoqnized leqal
consequences ...L."
The generally recognizedlegal consequences werethe making
of reparation.
5.15 Even the ICAO Assembly has implied that
it has such powers. Having condemned Israel for its actions
in interceptinga Lebanese civilaircraft charteredby Iraqi
1 Military and ParamilitaryActivities inand aqainst
Nicaraqua (Nicaraquav. United States of America),
Merits, ~udqment, I.C.J. Reportsl986, p. 142, para.
283.
L
-ee, Exhibit 55 (emphasisadded).Airways over Lebanese territory in 1973, the Assembly called
on Israel to desist £rom acts of "unlawful interference"and
warned thatif.Israel continued"cornmitting çuch acts the
Assembly will take further measures against Israel to
protect internationalcivil aviationL".. Although the nature
of the reparation to be made in the event of a breach of
provisions of the Convention is not specified in either the
Chicago or the Montreal Conventions, this does not affect
the Court's power. As held in Chorzow Factory,already cited
above-
"Reparation ... is the indispensable complement
of a failure to apply a convention and there is
no necessity for this to be stated in the
convention itself 2."
2. The Basis for the Request for Reparation
5.16 The Islamic Republic has shown that the
action of the United States was unlawful. Moreover, the
United States has recognized that"indemnificationis
required where the exercise of armed force is unlawfu13". In
çuch circumstances,the standard of compensati.on has been
1
Actions of the Council, 80th Session, August-December
1973, ICA0 Doc. 9098 C/1017, pp. 56-58.
2 Factory at Chorzow, Jurisdiction,Judqment No. 8,
1927, P.C.I.J., Serieç A, No. 8, p. 21.
3
-1ee the Statement of Abraham R. Sofaer, the former
U.S. Agent in this case, on 4 August 1988. House
Hearinqs, p. 49. Çee, Exhibit 10.set out in the Judgment in Chorzow Factory, Merits in the
followingway:
"The essential principle contained in the actual
notion of an illegal act - a principle which
seems to be eîtablishedby international
practice and in particularby the decisions of
arbitral tribunals - is that reparationmust, as
far as possible, wipe out al1 the consequences
of the illegalact and reestablish thesituation
which would, in al1 probability,have existed if
that act had not been committed. Restitution in
kind, or, if this is not possible, payment of a
sum correspondingto the value which a
restitutionin kind would bear; theaward, if
need be, of damages for loss sustained which
would not be covered by restitution in kind or
payment in place ofit - such are the principles
which should serve to determine the amount of
internationaldlawl. "n act contrary to
5.17 While this standard represents reparation
for unlawful expropriation under international law,it is
important to recall that the Islamic Republic submitsthat
the shooting downof IR 655 was not only unlawful but that
it was such a flagrant and extreme violationof
international lawthat it has the character of an
internationalcrime. Ar-ticle19 of the draft Articleson
State Responsibilityadopted by the International Law
Commission in 1976 recognizes theexistence of crimes by
States in internationallaw. Article 19(2) reads as
follows:
1 Factory at Chorzow, Merits, Judqment No. 13, 1928,
P.C.I.J., Series A, No. 17, p. 47. "2. An internationallywrongful act which
results £rom the breachby a State of an
the protectionof fundamental interests of
the international community that its breach
is recognizedas a crime by that community
as a whole constitutesan international
crimel."
5.18 Under the basic principlesof humanity
upheld by the international community, the shooting downof
a civilian plane representsone of the most heinouscrimes
for which a State could be responsible. No Statehas more
strongly upheldthis view in the pastthan the United
States, as has been seen above in connection withits
reaction to theKAL 007 and other incidents.
5.19 In such circumstances,the Islamic
Republic submits that the very highest formof compensation
must be awarded not only to compensate the victims and to
make reparation for the harm done to Iran Air and the
Islamic Republic,but also to demonstrate the disapprobation
of the international community for act which are so
anathema to basic rules of international law and norms of
behaviour. In the new "kinderand gentler" world community
that the United States has been espousing such acts deserve
even greater sanction.
1
Yearbook ofthe InternationalLaw Commission (1980),
Vol. II, pp. 30-34. 5.20 Moreover, the United States would be
responsibleto make reparationto the Islamic Republic
whatever thecircumstancesof the shooting downof IR 655. A
State is responsibleeven for its mistakes. Referring
specificallyto IR 655, Professor Lowenfeld notes that "the
liability of a state.for shooting down aplane does not
depend on negligence",and concludes thatthe correct legal
position is t..t thereis "liability regardlessof fault, so
long as the cause is established,as it clearly was in the
case of Iran Air 65~~". Thus, even in finding, albeit
erroneously, that IR655 was shot down by accident, theICA0
Council should have recognized the responsibility of the
United States for this act and called upon the United States
to make appropriatereparation.
3. The ReparationRequested
5.21 The Islamic Republicsets forth below the
specific elementsof reparationrequested:
1. Compensationfor the killing of the290
perçons on board IR 655, including but'not
limited to compensationfor the value of
1
Lowenfeld, OJ. &;, p. 338. the life loçt, the loss tothe estate of
the deceased, and compensation for loss of
.contributions andpersona1 services, for
mental suffering, grief and shock, and for
'loss of persona1 belongings.
2. Compensationfor the loss to Iran Air of
the Airbus A-300 andthe property on board.
3. Compensationto the IslamicRepublic for
the injury to its legal interest, its
honour and its dignity,caused by the
violation of the Islamic Republic's
territorial sovereignty, the attac on IR
655 itself, and theattitude of the United
States in alleging the Islamic Republic's
fault and in refusing toaccept full
responsibilityfor its unlawful act.
4. Punitive or exemplary damages because of
the criminal nature of the act.
5. Compensation forthe loss to Iran Air of 16
experienced andtrained crew members. 6. Compensationfor the disruption to Iran Air
services.
7. Al1 expenses and other costs of the Islamic
Republic, IranAir, and others, including
the relativesof the victims, arising from,
inter alia, al1 search and rescue and other
investigative operationscarried outby the
Islamic Republicin connection withthe
destructionof IR 655.
8. Any and al1 other relief that the Court may
deem appropriate.
5.22 Each of these heads of damage is discussed
briefly below. What this discussion showsis that in
similar circumstances international courts and tribunals
have consistently granted reparation of the kind requested.
The Islamic Republicreserves the rightto amend these heads
of damage and to provide detailed quantificationof each
head at such time and in such manner as the Court may deem
1
appropriate .
1 The Islamic Republic notesthat this practice has
been followed inseveral cases including theChorzow
Factory, Corfu Channel, and Nicaraqua cases. 5.23 Under Item 1 above, the IslamicRepublic
seeks compensationfor the killing of the 290 perçons on
board IR 655. This includesnot only an amount representing
the value of the life lost, but also the damages resulting
to the survivors from the death, in terms of the loss of
contributionsor persona1 services rendered to family and
relativesby the deceased, and the mental su£fering, grief
and shock causedto such survivors by the incidentand the
loss of their loved ones together with an amount to satisfy
any obligationsof the deceased.
5.24 The case involving by far themost
numerous claims arising outof deaths related tothe sinking
of the Lusitania. These claims were settled by.the United
States-GermanMixed Claims Commission,establishedunder an
agreement of 10 August 1922. The formula derivedby the
Commissionwaç to allow amounts -
"(a) which the decedent, had he not been killed,
would probably havecontributed tothe claimant,
add thereto (b) the pecuniary value to such
claimant of the deceased'spersona1 services in
claimant's care, education or supervision, and
also add (c) reasonable compensationfor such
mental sufferingor shock, if any, caused by the
violent severing of family ties, as claimant may
actually have sustainedby reason of such
deathl."
1 Cited inM. Whiteman, Damaqesin InternationalLaw
Vol. 1, p. 682. Detailed factorsto be considered
under this formula were also set out by the
Commissionand are reprintedby Whiteman. 5.25 While such factors are clearly relevant in
this case, the Islamic Republic submitsthat the fact thata
victim had no dependents does not mean that no reparation
should be paid. The assets of the individualwould
ultimately havegone either to the closest relative, or if
there were noclaims, to the State itself. Accordingly,
reparationshould be made for the entire loss. Recognition
of the inequity of any other methodhas been given in
internationalpractice. 1n the Mixed Claims Commission
cases, the German Commissioner (Kiesselbach)noted that
Britain "measuredthe damage caused ... by examining a
'considerablenumber of cases' on lines substantiallythe
same as establishedby this Commission ... and that by thus
reaching an average amount they valuedthe life of each
civilian national on that basis reqardlessof whether the
deceased left surviving dependentsor notl".
5.26 The Islamic Republic also submits that an
amount of compensationshould be awarded for the value of
the life lost. Again, this principle has been recognized in
internationallaw. For example, in a claim made on behalf
of the heirs of Maurice Langdon before theGeneral Claims
Commissionbetween the.UnitedStates and Panama, although
finding that the deceased did not in any way financially
support the claimants, the Commission deemed that there was
1 Cited in Hackworth, Diqest of International Law
(1943)Vol. 5, p. 748 (emphasisin original).a minimum of "reparationdue by one State to another on
account of its responsibilityfor the death of the latter's
citïzenl". Such amount should be awarded irrespective of
income, dependents,age or status, but in recognition ofthe
loss to the State resulting £rom the killing of one of its
citizens.
5.27 The Islamic Republic also submits that
under internationallaw the compensationfor mental
suffering,grief.and shock of relatives should be calculated
--
"without regard to the victims' financial sithtion2". The
Içlamic Republic notesin this context that in 1968 Israel
paid to the United States sums ranging £rom $10,000 to
$25,000 (present value approximately equivalent to $35,000
to $85,000) for mental anguishalone arising out of the
deaths caused by the Israeli attack onthe USS ~iberty~. In
the Stark case, the United StatesY-acknowledget dhat there
was no objective way to evaluate amounts for mental shock
and therefore set standard amounts for these losses. In a
1 Çee, Coussirat-Coustèreand Eisemann, S. G., at
p. 519.
2
Such a principle is enshrined in a 1975 Resolutionof
the Cornmitteeof Ministers of the Council of Europe.
-1e Article 12 of Resolution (75)7 "Relative à la
Réparation des Dommagesen Cas de Lésions Corporelles
et de Décès", Résolutions et Recommandationd su
Comité des Ministres dans les Domaines des Droits
Civil, Commercial, Public etInternational,Vol. 1,
1964-1982 (Strasbourg, 1983). ,
House Hearinqs, p. 64. Çee, Exhibit 10.number of instancesamounts in excess of $800,000 were paid
by Iraq under this head alone.
5.28 With regard to the loss of the aircraft
(Item 2), the governing~principlesare set out in the
Chorzow Factory case 1 . In order to put the Islamic Republic
in the same position as it would have been if the aircraft
had not been shotdown, it should be compensatedon behalf
of Iran Air for the loss of the Airbus A-300. Although
Chorzow Factory involved an unlawful expropriation,this had
the same effect as if the factory had been destroyed.
Moreover, the same principles were upheld in the Corfu
Channel casewhere the Court ordered compensation tothe
United Kingdom for the "destruction"of the destroyer
"Saumarez" 2.
5.29 In the light of theabove principles, the
Islamic Republic requests areplacementAirbus. Under the
present trade embargo imposed by the United States in
3
violation of the Treaty of Amity , the Islamic Republichas
been unable to buy another Airbus,or virtually anyother'
1
-1e para. 5.16, above.
L Corfu Channel, Assessment of Amount of Compensation,
Judqment, I.C.J. Reports 1949, p. 249.
3 In the Nicaraqua case, the Court held that theUnited
States trade embargo was a violation of a similar
treaty. Militarv and ParamilitarvActivities in and
aqainst Nicaraqua(Nicaraquav. United States of
America), Merits, Judqment, I.C.J. Reports 1986,
p.148, para. 292, subpara. (11) (dispositif).
-kind of civil aircraft which usesU.S. parts or technology,
and which iç suitable for Iran Air's commercial fleet and
crew1. In such circumstances,monetary compensationwill
not cure the loss suffered,and the Islamic Republic must
therefore receive a replacement aircraft as restitution.
5.30 Item 3 concerns the injury to the Islamic
Republic itselfby the action of the UnitedStates. Such a
ground for compensationhas a long tradition in
internationallaw and a numberof States havesought
recovery on such a basis. For example, in the Carthaqe and
Manouba cases heard by the Permanent Courtof Arbitration in
1913, France requested 100,000francs for the "préjudice
moral et politique résultantde l'inobservationdu droit
commun internationalet des conventionsréciproquement
obligatoirespour l'Italie comme pour la rance‘".
Similarly, in the Aerial Incident of27 July 1955 case,the
United States asked in its Memorial to be awarded $100,000
3
on essentiallythe same basis .
1
Copies of the relevanttrade embargo regulations are
attached at Exhibit 65.
2
-1e 11 R.I.A.A. (1913)pp. 460-461, cited in
Coussirat-Co.ustéra end Eisemann, =. &., p. 332.
Unofficial translation:
I...moral and politicalprejudice arising £rom
the non-observance ofgeneral international law
and of conventionsmutually bindingon Italy and
France..!.
I.C.J. Pleadinqs,Aerial Incidentof 27 July 1955,
p. 253. 5.31 Most recently, in the New Zealand v.
France case the Tribunal recommendedthe payment of a sum of
$EU 2 million by France into a £und to promote good
1
relationsbetween the two States . This recommendation
arose £rom the findingthat France had violated its
obligations to New Zealand, and did not represent
compensationfor any material damage. The award also noted
that the 1986 Agreement between the two States, endorsed by
the united Nations Secretary Generaland requiring payment
of $7 million by France, representeda "réparationnon
seulementdu dommage matériel ... mais égalementdu
préjudice immatériel subi,indépendammentde ce dommage
matériel2".
1
Award of 30 April 1990, pp. 118-119, paras. 124-128.
The terms of reference empowered the Tribunal onlv-to
make recommendationsin this area.
2 Ibid., pp. 113-114, para. 115.Unofficial
translation:
"Compensationnot only for material loss ... but
also for non-material damage suffered,
independently ofthis material loss."
Some measureof the insult felt by New Zealand can be
against the French agentswho had blown up thent
Rainbow Warrior. Itnoted that the offences were
"terrorist acts" although committed by French
officers acting under orders. It was "al1 the more
reprehensiblethat the operation should havebeen
carried out by agents of a foreign Stateon the
territory ofan ally". It also noted that the
Court's sentences should serve as a "deterrent" and
"should reflect the sense of public outrageand
condemnationof the type of offences committed". R,
v Mafart and Prieur, New Zealand, High Court,
Auckland Registry, 22 N0vembe.r1985 (DavisonC.J.),
reprinted in 74 I.L.R. (1987) 242. 5.32 The kinds of non-material losses for which
New Zealand had been seeking compensation arevery similar
to those for which compensation is requested here. In its
Memorandum to the Secretary General,New Zealanddeclared
that it was entitled to "a compensation for the violationof
sovereignty and the affront and insult that was involvedl".
5.33 Under Item 4, the Islamic Republic claims
punitive damages against the United States for the criminal
nature of its act. Although in some cases tribunals have
been reluctant to make awardsof punitive damages, where the
circumstances haveso demanded such awards have been made.
For example, in the I'm Alone,.case - which arose £rom the
United States' action in destroying a Canadian vesse1 - the
Commissioners came tothe followingconclusion in.1935:
States oughtioformally to acknowledge itsd
illegality,and to apologise ... therefor, and,
further, that as a material amend in respect of
the wrong theUnited States should pay the sum
of $25,000 ...2."
1 74 I.L.R. (1987) 2'41at 259. A number of older cases
are cited by Whiteman where compensationhas been
paid for injury to a State's honour and dignity. Çee,
Whiteman, z. &., p. 80, et seq., and fn. 186
thereto.
Cited in Whiteman, z. &., p. 154.Moreover, in the Janeç case (U.S.A. v. United Mexican
States), the Commissionnoted "that the various degrees of
improper governmental actionwould be taken into account in
determining the amount of damagesl". The Islamic Republic
submits that in the light of the special circumstancesof
.
this case and as a recognitionof the sanction placed on the
United States' criminal action, a similar award should be
made by the Court here.
5.34 With regardto the related losses of.Iran
Air (Items 5 and 6 above) the Islamic Republic should also
be compensated for the loss of 16 experienced crew members
and for the losses~causedby the disruption to Iran Air's
services. With regard to such consequentialdamages the
Court acknowledgedthat these formed part of thereparation
due in the Nicaraquacase, stating that -
"...Nicaragua'sclaim is justifiednot only as
to the physical damage to its vessels, but also
the consequential damage to its trade and
commerce2. "
1 See Feller, The Mexican Claims~Commissions1923-
1934, 1971 (Kraus reprint-), p. 295.
2
Nicaraqua (Nicaraquatav.AUnited Statesof America),
Merits, Judqment,I.C.J. Reports 1986,p. 139, para.
278. 5.35 The final head of damages (Item 7) is for
expenses arising out of the destructionof IR 655. Whiteman
sumrnarisessuch expenses as follows, noting thatal1 are
recoverable:
"(1) those expenses incurred by the decedent
prior tohis death, and those incurred on
account of his death and paid from the estate;
(2) those expenses incurred by the individual
claimant incidentalto the presentation and
developmentof the claim; and (3) those expenses
incurred by the claimant government in the
settlementof the claiml."
D. Conclusions:State Practice
5.36 There is an extensive amount of State
practice on the reparationmade in cases of wrongful death
2
and destructionof property . After the Israeli attack on
the USS Liberty in 1967 which resulted in substantialdamage
to property and the death of 34 crew members, compensation
between $325,000and $1,075,000 in present dollars was paid
to the United States on behalf of the relativesof the
victims. Israel also paid for the damage to the vessel.
Whiteman, z. c&., p. 791.
2 7ee, for a review of 'his State practice, George T.
Yates III, "State Responsibilityfor Nonwealth
Injuries to Aliensin the Postwar Era" in
International Lawof State Responsibilityfor
Injuries to Aliens, (1983) Lilliched., p. 213. 5.37 Following the attack on the USS Stark in
1987, the United States sent Iraq a diplomatic note,
1
extracts from which are set out below .
"At the time of the attack, the U.S.S. Stark was
flying the American flag and its identification
was clearly indicated in largewhite numeralson
its hull. The U.S.S. Stark twice notified the
Iraqi aircraft that it was approaching aU.S.
warship. The Government of Iraq is aware that
U.S. vessels navigate in the area. In the
circumstances, Iraqi personnel knew or should
have known that theU.S.S. çtark was an American
vessel. Moreover, they should have taken the
wkietherit was a legitimatemilitary target.mine
,
The attack by the Iraqi aircraftresulted in a
tragic and-needlessloss of life, persona1
injury and property damage."
The same reasoningapplies, 5 fortiori, in relation to the
attack on IR 655. The note continued as follows, setting
out thegr-nciples of reparation that the United States
believed to be applicable in that case:
"... the Secretary ofState wishes to make clear
that the UnitedStates Government expects the
Government of Iraq to issue instructions
necessary to ensure that United States personnel
and propertywill not again be endangered by the
wrongful actionsof Iraqi militarypersonnel,
including disciplinaryactions as appropriate
... The United States Governmentexpects that
in accordancewith international lawand provideity
1
53 AJIL '1989) 562. Çee, Exhibit 62. full compensationfor thedeaths, persona1
injuries,and the property damage sustained in
this tragicevent ."
Iraq repliedas follows:
"The Iraqi Government, respectfulof the
requirementsof internationallaw ... agrees to
give compensationfor the unfortunateand
unintentional accident which occurred ...
Compensation is offered for the loss of life,
personal injuries and material damagesl. "
5.38 Following this exchange, the U.S. State
Department.presented a bill to the Government of Iraq for
$29.6 million, or $800,000 perperson. Negotiations then
ensued and a settlement wasreached for $27,350,374,or
approximately$740,000 per person. Iraq also agreed to pay
compensationfor the damage to the vessel.
5.39 The United States has clearly acknowledged
that the same principles applyin the shooting down of a
civilian aircraft. After the attack onKAL 007, the United
States Representativein the ExtraordinarySession of the
ICA0 Council called on the Soviet Union to "complywith the
obligation under internationallaw to make appropriate
compensation2". In a DiplomaticNote submitted to the
Soviet Union, the United States maintainedthat "the Soviet
1
-ee, Exhibit 62.
2 A copy of this statement is attachedat Exhibit 55. Union's responsibilityunder internationallaw for these
actions and its concomitant obligationto make reparation
are beyond dispute1".
5.40 It was not until two months after the
filing of the Application in this case, almost a year after
the incident, that the UnitedStates gave any indication of
the amount of an offer of compensation tothe victims. The
sums offeredare a fractionof the amount claimed by the
United States in the Starkincident and paid by Iraq. The
United States has offered to pay a maximum of $250,000
through an intermediary directly tothe family ofeach full-
time wage-earningvictim, and $100,000 for each of al1 the ..
.. other victims, whichsums are to be divided between
2
surviving spouse, children and parents of the victim . In
other words thesums offered are far less than the amounts
3
received for mental sufferingalone in the çtark incident .
The United States has madeno offer to compensateother
relatives ordependents of the victims, nor to compensate
1
A copy of this Noteis attached at Exhibit 56.
2
Letter from the Embassy of Switzerlandto the
Ministry of Foreign Affairs of the Islamic Republic
of Iran dated 12 July 1989. This letter is attached
at Exhibit 66.
3 -ee, para. 5.27, above.for the loss of the plane nor the infringement ofthe
Islamic Republic's sovereignty,nor even to guarantee that
such an action will not be repeated.
5.41 The offer that has been made is on its
face inequitableand inadequateand fails to acknowledgeor
take into account.theUnited States' liability for shooting
down IR 655. The principles of law discussed above define
the standards that the IslarnicRepublic submitsshould be
adopted inadjudging the reparation to be awarded in this
case. Moreover, as a final insult, the United States
refuses to make any payment directly to the Governrnent of
the Islamic Republicbut insists that arrangementsshould be
made to make payrnentsforthe victims. This is in
contraventionof the universally recognized principle that a
State has the right to espouse such claims. SUBMISSIONS
In the light of thefacts and the arguments set
out above, the Islamic Republic of Iran respectfullymakes
the following Submissions,which it reserves the right to
modify, amplifyor supplement at later stages of these
proceedings.
May it please the Court, rejectingal1 contrary
claims and submissions,to adjudge and declare, as follows:
~irst ,the Court has jurisdictionto entertain
the appeal £rom the decision of the ICA0 Council presented
in theApplication andthis Memorial pursuant toArticle 84
of theChicago Convention.
Second, the Court has jurisdictionto entertain
the dispute set forth in the Application and this Memorial
as it relates to the interpretationor application ofthe
Montreal Convention, on the basisof Article 14(1) of the
Montreal Convention.
Third, the Court has jurisdictionto entertain
the dispute set forth in this Memorialas it relates to the
interpretationor applicationof the Treaty of Amity, on the
basis of-Article XXI(2) of the Treatyof Amity. Fourth, that the decision of the ICA0 Council
was erroneous and that the United States, in shooting down
IR 655 on 3 July 1988 while it was flyingwithin the Islamic
Republic's airspace,violated fundamental principlesof
internationallaw,'includingits legal obligationsunder:
- Articles 1, 2, 3 biç, 44(a) and 44(h) and
Annexes 2, 11 and 15 of the Chicago Convention;
- Article 1 of the Montreal Convention;
- Articles IV(1) and X(1) of the Treaty of Amity;
..
and
- Rules of general and customary international law
relevant to the interpretationor applicationof
the above Treaty provisions.
Fifth, the United States, in failing to make the
offences mentioned in paragraphfourth above punishable by
severe penalties and in failing to take al1 practical .
measures for the purpose of preventingsuch offences, has
violated its legal obligationsunder Articles 3 and 10(1) of
the Montreal Convention.
Sixth, the United States, in committing the
violations mentionedin paragraph fourth above, has
committed acrime under internationallaw. Seventh, the United States, in stationing its
warships in the Persian Gulf within the Islamic Republic's
internalwaters and territorial sea and in the high seas,
and in issuing and operating under the NOTAMs discussed
herein, has interfered with and endangered civil aviation in
violation ofArticles 44(a) and 44(h) and Annexes 2, 11 and
15 of the Chicago Convention.
Eiqhth, the UnitedStates, in stationingits
warships in the Persian Gulf within the IslamicRepublic's
internal waters and territorialsea andin the internation waltms,
and in issuing and operating under the NOTRMs discussed
herein, has violated its legal obligations to the Islamic
Republic to guarantee freedomof commerce and navigation
under Article X(1) of the Treaty ofAmity.
Ninth, the United States, in stationing and
operating its warships andtheir accompanying aircraft
within theIslamic Republic'sinternalwaters and
territorialsea on 3 July 1988, and at other times discussed
herein, violated the Islamic Republic's sovereignty at nde
principle of non-interventionunder Articles 1 and 2 of the
Chicago Conventionand general andcustomary international
law. a, the United Statesis under a duty
immediatelyto cease and refrain£rom al1 such conduct as
may constitute breachesof the foregoing legal obligations.
Eleventh, the United States is under an
obligation to makereparationsto the Islamic Republicfor
al1 of the violations of its internationalobligations
mentioned above, and bearing in mind thecriminal nature of
the offences, in a sum to be determined by the Court at a
subsequent stageof the proceedings. The Islamic Republic
.reservesthe right to introduceand present to the Court in
due course a precise evaluation of these reparations owing
by the United States. -The Hague (Signed)
24 July, 1990 Mohammad K. Eshragh
Agent of the Islamic Republic
of Iran LISTOF EXHIBITS
Exhibit
1 Conventionon International Civil Aviation
of 1944as amended(theChicago
Convention).
Protocolrelatingto an amendment to the
Conventionon International Civil Aviation
(Article 3bis).
Annexes2, 11 and 15 to theConvention on
InternationalCivilAviation.
Convention for the Suppressioof Unlawful
of 1971 (theMontrealConvention).iation
Treatyof Amity,EconomicRelationsand
Consular Rights betwet ene UnitedStates
of Americaand Iranof 1955.
Reportof ICA0Fact-Finding Investigation . .
(Appendix to C-Wl8708).
Act of 15 July1934on the Territorial
Watersand the ContiguouZsone of Iran.
Copyof thedocumentin Farsi.
Translation.
ExecutiveRegulation of Conditionsof the
Passageand Stopovers of ForeignWarships
in IranianWatersand Portsof 29 August
1934.
Copyof the documentin Farsi.
Translation.
Act of 12 April 1959Amending the Acotf
15 July 1934 otnhe Territorial Water snd
the Contiguous Zon of Iran.
Copyof the documentin Farsi.
Translation.
IranianDécret-Loi of 21July 1973.
Copyof the documentin Farsi.
Translation.
List of Passengersand Crewon board flight
IR 655.Hearingbefore theCommitteeon Armed
Servicesof the UnitedStates Senateheld
on 8 September 1988 (SenateHearings).
Extractsfrom Weinberger,Fightingfor
Peace.
Extractfrom The New York Times, 13 January
1986.
Page 41, Departmentof State Bulletin
No. 2108, March 1986.
Extractsfrom Hearingsbefore theDefense
PolicyPanel of the Committee onArmed
Services, House of Representatives, held on
3 and 4 August, 9 Septemberand 6 October
1988 (HouseHearings).
Addressof Vice-President Bush before the
United Nations Security Councilon 14 July
1988.
Extractfrom Hearingsbefore the Committee
on ForeignAffairs, House of
Representatives, held on 19May 1987.
State DepartmentWhite Paper "IranAir 655:
Steps to AvertFutureTragedies"by R. S.
Williamson. Currentolicy No. 1092.
NoticestotiAirmen (NOTAMs)of Januarytes1984
and September 1987.
ICA0workingpaper C-ml8644 dated 8 July
1988.
AddendumNo. 1to C-ml8644 dated 12 July
1988.
Pages 16 to 23 of Aviation Weekand Space
Technologv, 11July 1988.
Page 64 of Jane'sDefenceWeeklv, 16 July
1988.
Telex from theAdministrator of the Islamic
Republic'sCivil Aviation Organization,
dated 17 April 1989.
Protestsby the Islamic Republic to the
United States throughits Interests Section
at the Embassyof the Democraticand
JanuaryRe1990.cof Algeria,dated 23 Telex from theAdministratorof the Islamic
Republic'sCivilAviation Organization,
dated 31July 1989.
Protestsby the Islamic Republitco the
at the Embassyof the Democraticand Section
PopularRepublicof Algeria,dated 15
February1984, 16 March 1984,28 March 1984
and 6 July 1989.
Page 8 of Fli~htInternational,16 July
1988.
September1989. and 92 of Proceedinzs,
24 Extract£rom The InternationalHerald
Tribune,5 July 1988.
Extractfrom The International Herald
Tribune, 9July 1988.
26 Tribune,4oJuly 1988.rnationalHerald -- -..
Extractfrom Kavhan International2,1
November1988.
28 Paees 72 to 74. 76 and78 to 79of
~r8ceedinzs/~avalReview,May 1989. "The
VincennesIncident"by Norman Friedman.
29 Page 60, United States Departmenof State
Bulletin,July 1987.
3O Telex from the IslamicRepublic'sVire+-
Ministerof Roads and Transportation dated
3 July 1988.
31 Vice-Minister of RoadaIsnd Transportation
dated3 July 1988.
32 Letter from theMinisterfor Foreign
Affairsof the IslamicRepublic dated 3
July 1988.
33 ele fromxthe Presidentof the ICA0
Councildated 4 July 1988.
34 Letter £rom the IslamicRepublic's
Representative at ICAO dated7 July 1988
and attachments.
ICAO workingpaper C-WPl8643dated 7 July-
1988.ICAOworking paper C-WPl8645,"Technical
Aspectsof the ShootingDown of Iranair
Flight655 by US NavalForcesudated12
July 1988.
Minutesof the First Meetingof the
ExtraordinarySessionof the ICAO Council
on 13 July 1988 (ICAO document C-Min.
EXTRAORDINARY(1988)ll)dated 14 July 1988.
Summaryof the Second Meeting otfhe
ExtraordinarySessionof the ICAO Council
on 14 July 1988 (ICAO documenC-DEC
EXTRAORDINARY(1988)/2)dated 14 July1988.
Telex£romthe Administrator ot fhe Islamic
dated 19 July 1988.ation Organization
Officia1Summary of discussionat informa1
meeting ofICAO in Parison 6 October1988.
Navigation Commissioonn 9 February 1989
(ICAO DocumentAN. MIN. 120-8)dated17
February1989.
ICAOworking paper C-WPl8718dated 1
December1988.
Summary ofthe Fourteenth Meeting othe
ICAOCouncil,125th Session, on 7 December
1988 (ICAOdocument C-DEC125114)dated7
December1988.
ICAO Council,125th Sessionon 7 December
1988 (ICAODocumentDRAFT C-Min125113
(closed))dated23 January1989.
Minutes ofthe TwelfthMeetingof the ICAO
Council, 125th Sessioonn 5 December1988
23 January1989.AFTC-Min.125112)dated
Minutes ofthe 6thMeeting ofthe Air
Navigation Commissio nn 2 February1989,
(ICAODocumentAN. MIN. 120-6)dated21
February1989.
ICAO workingpaper C-WPl8803,dated2 March
1989.
Minutesof the EighteenthMeeting ofthe
ICAOCouncil,126th Session on 13 March
dated27 June 1989.tDRAFTC-Min126118) '1
Minutesof the Nineteenth Meeting of the
ICAO Council,126thSession,on 5 March
1989 (ICAOdocumentDRAFT C-Min 126119)
dated 24 July 1989.
Summaryof the Twentieth Meeting of the
ICAO Council,126thSession,on 17 March
March 1989.ocumentC-DEC 126/20)dated 20
ICAO CouncilResolution Concerning Israeli
Attack on Libyan Civil Aircraftdated 4
June 1973.
ResolutionAdoptedby the ICA0 Councilon 6
March 1984.
Page 23 of ICAO Annual Report for1989,
Document9530 - Supplement(July1989).
of InternationaloLaw tooIranianForeignion
ExchangeRegulationsdated 15 February
1984.
United StatesMemorandumon the Application
of the Treaty ofAmity to Expropriations in
Iran dated 13 October 1983.
United States Department of State,Treaties
in Force, 1988/1989. ..
Pages 22 and 23 of ICAO DocumentC-Min.
EXTRAORDINARY (19831 )1.
Draft Amendmentto theConventionon
International Civil Aviation,ICAO
Assembly, 25th Session (Extraordinary).
ICAO Document A25-WP/3dated 28 November
1983.
DiplornaticNotes to the Union of Soviet
SocialistRepublics £rom the United States
dated 12September1983.
353tcondemningthe SovietCriminal Resolution
Destructionof the Korean CivilianAirliner
dated 15 September1983.
..
Pages 63-67,84-85 of Minutesof the Ninth
Meetingof the ICAO Councilon 16 October
1985 (ICAODocumentC-Min. 11619 and
116/11).
Extracts£rom the ICA0 Report of the Third
Middle East RegionalAir Navigation Meeting in Montrealon 27 Marchto 13 April 1984
(ICAODocument9434MID/3).
Statement of the Islamic Republiocn
signingthe 1982UnitedNations Convention
on the Law ofthe Sea.
Third Middle EastRegionalAir Navigation
Meeting,(ICAOworkingpaperMID/3-WP/108)
dated5 April1984.
62 Documentconcerning settlemen of claims
betweenthe UnitedStatesand Iraq arising
A.J.I.L.(1989)pages561 to 564.rk,from83
Transcript of extractfromThe New York
Times,6 September1983.
Transcript of extractfromThe Washington
-9st 23 April 1990.
65 U.S. trade embargo legislation.
66 Letter£romthe Embassyof Switzerland
dated12 July 1989.
67 Certification. APPENDIX
ANALYSISOFTHE
ICA0 REPORT APPENDIX
ANALYSIS OF THE ICAO REPORT
1. This is the Appendix referred to in paragraph
1.06 of the Memorial. As pointed out in paragraphs 1.04-
1.O5 of the Memorial a number of the "facts", "findings"
and "conclusions'~ reached in the ICAO Report are based on
information contained in the Defense Department Report,
which formç Appendix E to the ICAO Report. Some of these
"facts", I'findings" and "conclusions" have been adopted
in a judgmental or incorrect fashion, and without
attribution, in the ICAO Report. The Islamic Republic
sets out below its detailed comments on a number of the
paragraphs or sections of the ICAO Report where this is
most apparent, and where the Islamic Republic's position
differs £rom that set out in the ICAO Report.
2. Paraaraphs 1.16.1.1 - Part 1 of the ICAO Report
purports to contain "Factual Information". This
paragraph States, for example, that Io(i)t was reported
that 1rinian boats ... were involved in surface action
with United States warships at the time of the IR 655
flight" and that the Islamic Revolutionary Guard had
"employed small boats of the Boghammer and Boston Whaler
types" in the "surface action". The Islamic Republic
does not accept this statement as "Factual Information".
The facts are that a helicopter £rom the Vincennes had
intruded into the Islamic Republic's interna1 waters and
had been warned off by a number'of coastal patrol boats.The Vincenneshad then proceededtowardsthe boatsat
high speed and opened £ire on them. (çee,paras. 1.110-
1.115 of the Memorial). The IslamicRepublic alsonotes
that the Defense Department Repori ts the solesource for
the "factualstatement"in paragraph1.16.1.1,a matter
not mentionedin the ICAO Report.
3. Paraaraph2.1.1 - Tiiisparagraphadopts,again
without attribution, the positionof the UnitedStates
that its"naval forces ...enteredthe (Persian Gulf)
area to providea protectivepresenceand safeguardthe
freedomof navigation". As made clear--. paragraphs
1.36-1.45of the Memorial,the Islamic Republic does not
accept thisposition.
4. Paraara~hs2.1.2 - This paragraph refers to the
challenges madeby the U.S. warships. It fails to
mention that the U.S. warshipshad no rightwhatsoeverto
\
issue such challenges (s, para. 1.75 of the Memorial).
5. Paraera~h2.2 - This paragraph discusses the
U.S. NOTAMs. It fails to note that the Islamic Republic
had repeatedlyprotestedthese NOTAMs. While it does
mention in paragraph2.2.4 that the NOTAMswere not
promulgated"in conformitywith the provisions of ICAO
Annex 1511,it fails to state clearlythat theUnited
Stateshad no rightwhatsoever toissue a NOTAM for the Per-
siariGu1 areas and in the manner it did, and that the
NOTAM itselfwas illegalon its face. The Report alsofails to note anywhere that the Vincennes did not follow
the rules in its own NOTAM (çee, the discussion at
paragraph 4.62 of the Memorial). .
6. Paraaraph 2.8.3 - The Islamic Republic does not
accept the statement in this paragraph that the
information in the flight schedule available on board the
Vincennes was "at best, of limited value in detemining
expected time of overflights" and that "(i)n the absence
of flight plan and flight progress information, a
realistic traffic picture could not be established and
positive aircraft identification could not be obtained on
that basiç". As pointed out in paragraphs 1.72-1.73 of
the Memorial, IR 655 was the only plane due to fly over
route A59 from Bandar Abbas to Dubai early that morning
and the U.S. warships, who had been monitoring al1
aircraft in the area al1 morning, and who were familiar
with the schedule (çee, Defense Department Report, p. E-
33), knew it had not yet passed over.
7. Parapraph 2.8.4 - The Report States correctly
that there was "no CO-ordination between United States
-
warships and the civil ATS units responsible for the
provision of air traffic services within the various
flight information regions within the Gulf area".
However, it goes on to state erroneously that "United
States warships were not provided with equipment for VHF
communications other than on the international air
distress frequency 121.5 MHz. Thus, they could not - 4 -
'--.
monitorcivil ATC frequenciesfor flightidentification
purposes". This statementis extraordinarygiven that at
page E-53,paragraph 6 of the Defense Department Report
it is admitted there was at least a limitednumber of VHF
radioson U.S. surfaceunits. Therefore,the warships
had a VHF capabilityand whilst nodoubt it was finite,
threewarshipsin formationcould monitora considerable
number of VHF channels giventheir technological
sophistication.This is apart from the manyother
facilitiesavailableto the UnitedStates to monitor such
communications.
8. Paragra~h 2.10 - This paragraph (in 19 sub-
paragraphs) analyset she "challenges" made by the U.S.
warships. Itagain fails to note anywhere thatthe U.S.
warshipsliadno rightwhatsoeverto make such challenges
(çee,paragraph 1.75 of the Memorial).
9. Paragraph 2.11 - This paragraphdiscusses
actionson board the Vincennes. It containsinformation
taken almost exclusively frot mhe Defense Department
Report. Itfails to expressany reservationabout this
Report,which containshundredsof deletions,or about
some of the factual allegation made therein. For
example,-inparagraph 2.11.6 it is stated that"a number
of operatorsmisread the displaysand wrongly interpreted
the information". There is no basis for this statement
other than the Defense Department Report,although this
is not noted in the ICA0 Report. Moreover,this is anallegation which the Islamic Republic totally rejects
(-, paras. 1.86-1.88 of the Memorial).
10. Paraaraph 3.1.13 - This restates the point
already discussed above (para. 7). The Defense
Department itself admits it was capable of monitoring
civil ATC frequencies.
11. Paraaraph 3.1.18 - The' comment in the final
sentence of this "finding" that "the absence of altitude
information on the large screen displays did not allow
ready assessment of the flight profiles in three
dimensions" is again seriously misleading. Although the
"large screen" does not display the altitude e1ement;it
does display the speed and SSR code. In addition, there
were numerous console operators in the Combat Information
Centre with small screens in front of them which clearly
displayed altitude information.
12. - The litany of excuses for
the action taken by the Vincennes which appears in these
two paragraphs is drawn verbatim £rom the Defense
Department Report without attribution and in a.manner
suggesting that these were independent ICAO "findings".
The Islamic Report totally rejects these "findings" about
the United States' alleged misidentification of IR 655.
13. Para~ravh 4 - This paragraph contains the
Safety' Recommendations of the ICAO Report.. Although al1these recommendations (except the last, item (h)) involve
actions that have to be taken by milrtary forces involved
in potentially hazardous activities in order to ensure
the safety of civil aviation, the Islamic Republic notes
that neither in the ICAO Report nor in the ICAO Decision
is any attempt made to judge whether the United States
had complied with these recommendations in the past or to
cal1 upon the United States to ensure that it complied
with such recommendations in the future.
14. Appendix A - This contains a second-by-second
record of the sequence of events leading up to the
destruction of IR 655. It is based in large part on the
similar record produced in the Defense Department Report
without however acti-ibuting individual çtatements in the
record to this source. The Islamic Republic does not
accept a number of statements made in this record, in
particular the repeated allegations that individual crew
members on board the Vincennes once saw a Mode II response, or
misinterpreted the information on their display screens.
-
Memorial of the Islamic Republic of Iran