InTheNameof God
INTERNATIONAL COURTOFJUSTICE
CASECONCERNING OILPLATFOR%IS
(iSLAMICREPUBLIC OFIRANV.
UNITED STATESOFAMERICA)
REPLYANDDEFENCETO COUNTER-CLAIM
Submittedbythe
ISLAMICREPUBLICOFIRAN
Volume1
10March 1999 TABLEOFCONTENTS
PART1 INTRODUCTION ........................................................
..1........................
CHAPTERI . THE STRUCTUFtE OF IRAN'S REPLY AND
DEFENCETOCOUNTER-CLAIM ..........................1.........
CHAPTER2 . THE GENERALCONTEXTUNDEIUYING THE U.S.
ATTACKS ON THE PLATFORMS ....................................
Section 1. Introduction...............................................3.......
................
Section 2. Iraqi AggressionagainstIran...........................................
Section 3. Iraqi Attacksin the Persian Gul......................................
Section 4. Kuwait and Saudi Arabiasupported Iraq ..........................
Section 5. The United States disregarded the Obligations of a
Neutra1State .............................................-13.......
................
Section 6. Lran'sPosition inthe Persian Gulf...................................
Section 7. Lran'sAllegedAttacks on the United States................2.....
Section 8. Iraq'sAttackson "Friendly"Targets .......................2........
Section 9. The Essential Security Interests of Iran andthe United
States...................................................24..
................
PARTII THEATTACKSONTHEPLATFORMS ...........................................................
CHAPTER3 . THE PLATFORMS IN RELATION TO THE OIL
TRADE AND THE CONFLICT IN THE PERSIAN
GULF .......................................................27...................
Section 1. The Platforms were Commercial Installations ..............2.....
Section 2. The Role of the Platforms in Relation to Commerce with
the UnitedStates .........................................3...............
section 3. Steps that Irantook to defend the Platfonn................36....
Section 4. The Oil Platfoms were not used for Non-Commercial
Purposes .................................................40.....
...............
A. Communicationsand radar .............................41.................. B . Small boats iindhelicopters................ ...........4.9..
2. Helicopters ...........................................5...............
CHAPTER4 . THE OCTOBER 1987 ATTACK ON THE RESHADAT
PLATFORMS ................................................5........
......
Section1 . Introduction ..............................................5..........
....
Section2 . The Failure of the UnitedStates to demonstrate that Iran
had Silkworm Iviissilesin the FaoAreawhich could have
been firedat Kilwait.......................................6........
A . The absence of credible U.S .vidence .........................
B . The existerice of evidence contradicting the U.S.
thesis..................................................6.....
..........
C . The existence of an Iraqi missile site on an
unoccupied part of theFaopeninsula ...........................
Section3 . TheQuestion ofRange ..................................................
Section4 . The Testimonyof Kuwaiti MilitaryObserversdoes not
establishthe Provenance ofthe Missilesin Question .........2.
Section5 . Iraq's Missile Capabilities and its Interests in
"internationa1i:zingts Conflict withIran ....................4....
A . Iraq'smissi1.capabilities..........................................
B. Iraq'sinterestin "internationalizing" the confl............
Section6 . The United States' Retaliation was designed to cause
Maximum Economic Damageto Iran by destroyingOil
Platforms that hadno Connection withthe Eventsrelated
to theSeaIsle Ci@ ...................................................................
Section7 . Conclusions .........................................................
....
CHAPTER5 . THE APFUL 1988 ATTACK ON THE NASR AND
SALMANPLATFORMS ..................................................
Section 1. The Eventsof 18April 1988 .........................................
Section2. The Miningo:f theSamuelB .Roberrs ........................0...... Section2. The Concept of "Clean Hands" in State Claims and the
United States' TwofoldArgumenton that Basis ...........17.6.
Section3. The Clean Hands Argumentas a Ground for denying the
Admissibility of the IranianClai.......................17.......
Section4. The "Clean Hands"Argument asa Defence at the Merits
Stage...................................................8..
............
I Section5. Conclusion on the United States' Argument based on
"Clean Hands" ..........................................8.............
Section6. ShouIdthe Court howeverdecidethat the "CleanHands"
Argument does have an Autonomous andIntrinsic Legal
1 Relevance in Direct State-to-State Claims, this would
militate iFavour ofthe IranianClaim ...................18......
l
PARTIV IRAN'S DEFENCE TOTHEUNITEDSTATES'COUNTER-
CLAIM ......................................................
........187..........................
1.
CHAPTER9. THE UNITED STATES COUNTER-CLAIMAND THE
BASISFORITS ADMISSIBILITY .........................................
l Section . Introduction .........................................1 87...........................
Section2. The Court'sOrderof 10March 1998 .....................188............
Section3. Outstanding Issues in relation to the Court's Order of
10March 1998 ..........................................9.............
A. The issue of freedomof navigation.....................9.....
B. What is the commerce"betweenthe territories of the
two High Contracting Parties"whose freedorn is
guaranteed byArticleX(l)? ..........................9......
C. The admissibility of the United States' counter-claim
(independentlyofArticle 80)............................3......
Section4. Structure of Iran's Defenceto the United States Counter-
Claim .................................................196..
.................
CHAPTER 10. THE SPECIFIC ALLEGATIONSOF THE UNITED
STATES IN RELATIONTO ARTICLE X(1) OF THE
TREATY OF AMITY .....................................1.9...........
Section 1. Introduction...........................................199.......
................. Section2. The United Stiztes'Claims with Respect to Non-U.S.-
FlaggedVesselis........................................200..........................
l
Section3. Nationalityof CIlaims:TheIssueof Reflagging ...........2....
Section4 . The SpecificIncidentsonwhichtheUnitedStatesRelies ...05
l
A . TheBridgeton(24July 1987) .........................206...............
I
B . The TexacoCaribbean(10August 1987) ..............207.......
D . TheLucy(15or 16November 1987 ..................2......
E . The EssoFreeport(16November1987) ...............211........
...........................................
F. TheDiane (7 February1988) 212 1
G . The U S.S.>~amlreBl. Roberts(14April 1988)...........1.3
Section5. The United Stsites'Reservationof a Right to add Further
Vessels................................................214...
.................
Section6 . Conclusion.............................................-215......
.................
I
CHAPTER 11. THE UNITED STATES "GENERICCLAIM" UNDER
ARTICLE X(l) ...........................................217........
.................
Section 1 Introduction ...........................................217........1 .................
Section2 . Iranas aState exercising theRightofSelf-Defence .......217...
Section3 . The Scope of Protection of the Treaty of Amity.
ArticleX(1) ...........................................218........
.................
Section4 . The GenericA.llegationsoftheUnited States .............2....
Section 5. The UnitedStiites'Claimforthe Costsof its Intervention
in the PersianGulf.....................................2.............
Section6 . Conclusion ............................................2.........
....
CHAPTER 12. RESERVATIONAS TO FURTHER IRANIAN FUCHTS
ANDCLAIMS ...........................................225........
.................
Section 1. Reservation: "EssentiaSecurityEnterests"...............2.....
Section 2. Reservation:Ilie Issue of"CleanHands" ................2..6... vii
Section 3. Reservation of IranianRights with respeto Further
CategoriesofDamageto Iran .........................2...........
PARTV SUBMISSIONS ..................................................
..2.....................
LIST OF EXHIBITS,STATEMENTS,AND EXPERT REPORTS
CERTIFICATION PART I
INTRODUCTION
CHAPTER 1. THESTRUCTUREOFIRAN'S FUCPLY AND DEFENCE TO
COUNTER-CLAIM
1.1 This RepIy and Defence to Counter-Claim is filed in accordance with
the Court's Order of 10 March 1998, as extended by its Orders of 26 May 1998 and
8December 1998,the latterof which extendedthe time-limit for the filing of Iran'sReplyand
Defence to 10 March 1999. It responds both to the United States' Counter-Mernorial of
23June 1997 and to the United States' Counter-Claimof the same date. The United States'
Counter-Claim was held admissible bytheCourtunderArticle 80 of the Rules of Court, inthe
Order of10March 1998,onthe basis set outin that Order.
1.2 inappreciating the issubefore the Court, it is essential to view the
incidents whichre the subject of Iran'sclaimsandthe United States' counter-claim within the
overail perspective of the Iraq-Iran War (1980-1988).This is the subject of Chapter2 of this
Part, which sets out a number of largely uncontested propositions about that confl-ct
propositions whichthe United StatesnonetheIesstends to ignore if not conceal.
Against thisessential background, this Repand Defence consists of
1.3
four further Parts. Part II addresses the United States' factual allegations.Chapter 3 of Part II
will show that the platforms were not engaged in offensive military operations but were
commercial installations with a continuing role to play in commerce between Iran and the
United States at thetime they wereattacked. Chapters4 and 5 of Part II will then describethe
U.S. attacks on these platfoms and will address the United States' ûllegations concerning
Iranianaîîacks oUS. vessels.
1.4 Par II addresses the legaldefences ofthe United States. This Part will
show that the attacks were a breach of ArticleX(1) of the Treatyof Amity (Chapter6), which
cannot be excused either as Iawful self-defence or by reference to alieged U.S. essential
security interestsder Article XX(l)(d) of the Treaty of Amity (Chapter 7). Finally, it willshow that Iran's claims cannot be set aside by reference to the notion of "clean hands"
(Chapter 8).
1.5 Part IV will then preslrnt Iran'sDefence to the U.S. counter-claim
(Chapters 9-11).In Chapter 12,Iran sets out certain specific reservationsasto its own legal
position in, and the scope of, these proceedings. These reservations arise fiom the Court's
finding as to the admissibility of the U.S. counter-claim. Findly, Part V presents Iran's
submissions both withregardto its claimsand with regardto the U.S.counter-claim.
1.6 In addition to the Reply and Defence - which is Volume 1 -there are
5 volumes of evidentiary materials attachedio this pleading. Volume II contains an expert
report on the U.S. position in the Iraq-Iran war as weIas docurnentaryexhibits. Volume III
contains reports on the continuing oil cotnmerce between Iran and the United States
contemporaneous witb the attacks on the pls~tforms.Volume IV contains statements by oil
Company and military personnel responsible for, or actually present ontheplatforms atthe
time of the attacks. Finally, Volumes V and VI contain statements, evidence and expert
reports relevant in particular to the United States' aliegationsncerning Iranian attacks on
U.S. interests.
1.7 In Part V of its Memorial, Iran analysed in a prelirninary way the
substance of Iran'sclaim for compensation. This issue has not been addressed further in this
pleading. Iran continues to reserve the right to defer until a subsequent stage of the
proceedings a detailed discussion onthe form and quantum of compensationowing.
1.8 Iran also reserves the right to respond to any new allegations or
evidence thatmay be referredto in the United States'Rejoinder and in particular to anyfurther
allegations bythe United States with regardto its counter-claim'.
1
The United States has itself made a specific reservationin this(U.Sar.ounter-Mernorial,
para.6.26).Iranaddresses thisissueWer inChapter10below. CHAPTER 2. THE GENERAL CONTEXTUNDERLYINGTHEU.S.
ATTACKS ON THEPLATFOIUMS
Section 1. Introduction
2.1 In both its Mernorial and its Observations and Submissions on the U.S.
Preliminary ObjectionIra ntressed to the Court the importance of understanding the general
factual contextnderlyingtheU.S .ttacks onthe oil platforms'. Iransubmits that the relevant
factualcontext is the following:
-
Iranwas acting in self-defence in an imposed war in response to massive Iraqi
aggression;
- Iraqwasresponsiblefor the so-called tankerwarand nearly al1commentators
recognise thatthePersian Gulf would have been entirely safe for shippingif
the internationalcornrnunityhad taken action to stop Iraqi attackson shipping;
- Iraq received substantial financial and military assistance in its wareffort from
its Persian Gulf allies, principally Kuwait and Saudi Arabia; and
-
The United States also assisted Iraq politically, economically and militarily
both in the war in general and in its operations in the PersianGulf.
It is only against this background that the Court can appreciate the legality of the actions
which are the subjecofthe present dispute.
2.2 The United States sought to avoid facing these issues in the
jurisdictional phase. It argued thatch issues were only relevant to claims over which the
Court had no jurisdiction, and it relied on the bare assertion that the United States acted
neutrally and was only concerned to protectreedom of navigation'. The United States did
I
See, Iran'sMernorial, Chapters II and III, and Iran'sObservationsand SubmAnnex,s,
2ectionsA toD.
See,forexample,U.S. PreliminaryObjection,IntrnndSurnrnarp,aras.5-6.not, however,expIicitlycontesta singleoneoi'the factualstatements madeby Iranconcerning
the underlying context.
2.3 The United States coritinues to seek to avoid these issues in the
Counter-Memorial. It notes that the Court lias concluded thatits jurisdiction is limited to
ArticleX(1) ofthe Treaty, andon thatbasisargues:
"Al1of Iran'spast allegationsttegardingal1forms of alleged U.S. misconduct,
other than the U.S. actions againstthe oil platforms,areaccordinglyno longer
at issue, and the United States has not addressed them in this Counter-
Mern~rial"~.
This of course misstatesthe issue. Iranis not arguing thatthe Court has jurisdiction over a
claim based on any other alleged U.S. misconductd.It is arguing that a consideration of the
factual contextis relevanttoan appreciation ofwhatledthe UnitedStatesto attack aseriesof
largelyundefended commercial oil pIatformsoperatedby the NationalIranian Oil Company
("NIOC"),and in particularto any consideration of thelegalityof such actsin the light of any
alleged Iranianacts.
2.4 In reality,the United States hasbeen unable ta avoid addressing this
underlying context andhas itself sought tojustifi its own position inthe war. Thus the
United Statesasserts at paragraphs 1 12- 1.11of its Counter-Mernorial that itwas a "neutral
party"in the conflict,that itwasthe policyof the United Statesto prohibitarmssales to both
Iran and Iraq, and that it insisted that bbr:lligerentsshould respectthe neutrality of States
not partyto the conflict, and "trightof such [Sltatesto navigatefreelytheir vesselsthrough,
and engagein commercein, the PersianGulf"'. It is preciselysuchassertionsas to the nature
of U.S. policy at the time whichIran contests, and which are addressedin this Chapter.
Similarly,the UnitedStatesspendsmanypages of its Counter-Mernorial seeking tojustiQ its
attacks on Iran's oil platformsby referenceto Iran'salleged rolein the so-called tankerwar,
specifically Iran's alleged attacks onneutrd shipping and on U.S. vessels. Finally,the
underlying contextis relevant tothe U.S. deknce based on ArticleXX(l)(d) of the Treatyof
3 U.S C.ounter-Mernoria, troductiandSuinmary,para.1.13.
4 Not intheseproceedingand subjectothert:servatmadeinChapter12,below.
5 U.S .ounter-Mernorial,ara.1.13.I Arnity that the "uninterrupted flow of maritime commerce in the [Persianj Gulf was essential
to the economyandsecurity interestsof.. . the United Statesv6.
2.5 While such issues will be addressed in this Chapter, Iran would aiso
i draw the Court'sparticular attention to the Report of Professor Lawrence Freedmanattached
in Volume II hereto. Iran has asked Professor Freedman, a world-renowned expert on
l military,diplornaticand political history, to express his own independent view on the policy
of the United States towards the Iraq-Iran war and on the situation in the Persian Gulf in
particular. Professor Freedman is an independent expert, and Iran does not necessarily agree
with every statement he makes. Where possibIe, Professor Freedman has used official U.S.
sources and statements by senior U.S. administration oficials7. His report speaks for itself,
but it may be pointed out that, on the basis of the statements and evidence adduced in his
report, Professor Freedmanconfims a number of the points addressedbyIran in this Chapter:
- U.S. policy was not govemed by how best to protect international shippingor
fieedom of navigationa;
- U.S. policy during the warshifted fiom equivocal neutrality at the beginning to
direct actions against Iranin the 1986-1988period9;and
- Kuwait and Saudi Arabia gave substantial supportto Iraq''.
2.6 Professor Freedman's analysis only refers to published sources.
ReIativelylittleis known publiclyabout the covert operations conducted by the United States
in support of Iraq. Information that is in the possession of Iran supports the view that the
pattern of direct US. military support to Iraq was on an even more extensive scale than
Professor Freedmansuggests. This evidence wilI be referredto in what follows.
6 Ibid .ara.3.11.
7 See, ReportofProf. Freedman, Vol. II, para.3; Prof. Freedman'sther sources arlisted inhis
bibliography.
a Ibid.para4(c).
9 Ibid.para23.
10 See,ingeneral,ibidparas.33-45. 2.7 This Chapter will be kept brief, not least because of the detail in
Professor Freedman's Report, but alsobecause the United States has not sought to rebut the
statements madeby Iranin its Memorial and in its Observations and Submissions concerning
the general context underlyingthe U.S. attacks.
Section 2. Iraqi Aggression againstIran
2.8 The most important aspect of the generai context is the fact thatIran
was acting in self-defence inan irnposed war in response to massive Iraqi aggression. This
basic fact is conspicuously ignoredby the United States.
2.9 On 22 September 1980Iraq launchedsimultaneousstrikes against Iran's
airfields (includingTehran airport) while its mies advanced alonga 450-mile front into the
west of Eran,an area containing some 90 percent of Iran'soil production". Fordmost eight
fullyearsIran was subject to continuous aggressionfiom Iraq,anaggressionwhichthreatened
Iran'sterritorial integrity,in one of the longest and most destructive conflicofthis century.
Iraqi occupation of Iranian tenitory continued throughout thewar. Even after Iran agreed
unconditionallyto a cease-firepursuant to Re:solution598on 18July 1988, Iraq again refused
to acceptthe cease-fireand continued its attzickson Iran, makingeven fiuther incursions into
Iranian territory than during its September 1980 invasion, and launching further chemical
weapons attacks onIran1'.Iraq'soccupation ofIranianterritorydid not end until August 1990
and the Iraqi invasion of Kuwait.
2.10 During this conflict, Iran'scivilian population was subject to repeated
missile and chemical weaponsattacks. As early as 1981,Iran protested at such attacks to the
Security Council. At the initiative of the Secretary-Generai,and at Iran's repeated request,
independent experts visited bothStates to examine these protests. The reportson this issue in
1984,1985, 1986, 1987and 1988by a fact-findingcommission establishedby the Secretary-
General al1provided conclusiveproof of Iraq'scontinuous use of chernical weapons against
militaryand civiliantargets. None of these reports foundany evidenceof chemical attacksby
II
12 Iran'MernorialE,xhibi9,p.230.
Ibid.,pp.242-243. IranI3.Ln March 1988,after Iran had captured the Iraqi town of Halabja, Iraq attacked the
town with chemical weapons, killingover 5,000of its own citi~ens'~.
2.11 Iran will not dwell at length on the Security Council's reactionduring
the conflict to Iraq'saggression or to Iraq'suse of chernical weapons. This issuehas already
been discussed in Iran'searlier pleadings, and Iran's position hasnot been questioned by the
United States". Professor Freedman also discusses the U.N. response at paragraphs 9-14 of
his report, largelyconfirming Iran's position. Sir Anthony Parsons, then British Ambassador
to the United Nations, summed up his view on the Council's reactionas follows:
"Given that the Iran-Iraq war was precisely the kind of conflict which the
United Nations was created to deter or, failing that, to bring to a conclusion,
and that the deliberations of the Security Council were not vitiated by super-
power rivalry, the Council's performance was, not ta mince words,
contemptible"16.
The Security Council did not issue its first Resolution until one week after Iraq's invasion of
22 September 1980. The Security Council failed to recognise that there had been a breach of
the peace let alone an Iraqi aggression, failed to demand Iraqi withdrawal to internationally
recognised boundaries, and subsequently failed to condemn unequivocally Iraqi chemical
weapons attacksand Iraq'sattacks on shipping in the Persian Gulf. Only in 1987was a breach
of the peace acknowledged. As will be discussed further below, the United States was at the
forefront of opposition to any Security Council action which would be against Iraq's
interests".
2.12 The United States has sought in the past to argue that Lranwas the
recalcitrant partyin bringing an end to the conflict. Despite the unacceptable nature of many
Security Council resolutions, Iran repeatedly showed itself willing to accept a soIution
moderated by the United Nations, and in particular worked throughout the conflict with the
office of the Secretary-General to achievethis end. Iran'spositive reactionto Resolutions 582
13 See, ibid, Exhibi1t and12.
14 Ibid E,xhibit20.
15 See, Iran'sMernorial,paras. 1.58-1.74,andIran'sObservsndSubmissions,Annex,paras. 5-7.
16 Exhibit1,Vol. IIp. 44.
17 See,para.2.29,below.(1986)and598(1987)has been discussed in:km'sMemorial18.Iran's position on Resolution
598 (1987)is confimed by Professor Freednian's analysis19.It was Iraq which violated the
cease-fireprovisionsof this Resolution.
2.13 Eleven years after the conflict began Iran's positiow nas vindicated.
Iran recallsto theCourt theconclusions ofthe Further Report ofthe Secretaq-General to the
Security Council on the Implementationof SecurityCouncil Resolution 598 (1987). This
Report, dated9 Decernber1991,placedfullresponsibility forthe conflicton Iraq, The Report
beganbynotingthat:
"...the war between Iranand Iraq, whichwas going tobe waged forso many
years, was started in contravention of international law,and violations of
internationallawgiveriseto responsibilityforthe c~nflict"~~.
It went onto note thatthe specificconcern of'the internationaclommunityin this context was
"the illegal use of force and the disregard for the territorial integrity of a Membe rtateWz'.
The Reportthengaveits findingthat the "outstandingevent"amongsttheseviolations was:
"...the attack of 22 September 1980 againstIran, which cannot be justified
underthe Charter ofthe UnitedNations, any recognizedrules and principlesof
internationalIaw or any principles of international morality andentails the
responsibilifyfor theconflictW2'.
2.14 The Report pointed out that Iraq'sexplanations for its actions on
22 September 1980 "do not appear sufficientor acceptableto the internationalcomrnunity"
and added thatIraq's aggression againstIran "whic h as followed by Iraq's continuous
occupationofIranianterritory duringiheconflict"was "in violationof the prohibitionof the
use of force, which is regardedas oneof the rulesofjus ~ogens"'~.
18
Iran'Memarialp, aras.1.63-1.71.
19 See, Reportof Prof. Freedma,ol. II,paras.57-66.
20 Iran'sMernaria, xhibit4p.2.
21 Ibid.
22 Ibid.;emphasisadded.
23 Ibid.;emphasisadded. Section3. Iraqi Attacksin thePersianGulf
2.15 There is no doubt that Iraqstartedthe so-called "tankerwar" as a matier
of deliberate war policy24. This policy appears to have been adopted on the basis of U.S.
recomrnendations. As one author notes:
"American foreign-policy specialists helped Iraqevolve the strategy that came
to be knownas 'thetanker war',arguing forcefully for lraqiattacks on shipping
to and from Iran in the [Persian] Gulf as a way of focusing world attention on
the ~ar".~~
Taking the war into the Persian Gulf had two main aims for Iraq - to weaken Iran
economically andto internationalise the ~onflict~~.
2.16
The United States acknowledgesthatIraqstarted the tanker war:
"In 1984 ... Iraq cornmenced attacks against tankers carrying Iranian oil
through the [Persian] GuIf, seeking to disrupt Iran'soil industry and to deprive
Iran of oil revenues. Iraq's attacks, accomplished largelyby fighter aircraft,
targeted tankers exporting oil from Iranian terminals - in most cases on the
Iranian side of the [Persian] Gulf, within 80 nautical miles (148 kilometers) of
Kharg Island"27.
2.17 This is almost al1the United States has to Sayabout Iraq'srole in the
tanker war. It is inaccurate on a number of points. First, Iraq'sattacks began in 1981, when
Iraqattacked and destroyed a Panamanian tanker, the Louise PB. Second, Iraqi attacks were
carried out not only by fighter aircraft but also by ground-based and ship-based missiles,
helicopters and by minesz9. Third, Iraq did notjust attack in or near ECharIsland but was able
to carry out attacks anywhere in the Persian Gulf, with numerous attacks on vessels near Sirri
Island, Lavan Island and Larak Island, as well as on some of Iran's oil platforms in the
24 Exhibit2,Vol.II,page48.
25 Exhibit3, Vol. II,p. 166. See,also,ReofProf.FreedrnanV,ol. II,para.1h. 17.
*\ee, Reportof Prof.FreedmanV, ol. II,paras.16-19.
27 U.S.Counter-Memoriap l,ara..1.
28 Ibid.,Exhibit9, page 1.
29 Forhelicopter attackss,ee, for example,U.S.Counter-MernoEl,xhibit2, 57. Formineattacks,
see, forexample,thereferencesinIran'sObservatisndSubmissionsA, mex, para45.southernPersianGulf O. Finaily, Iraq did notjust attack vessels trading with Iran.As will be
discussedfurtherin Section 8 below, Iraq atiackeda nurnberof vessels of"friendly"States,
including the U.S.S.Stark,a U.S. navalvesse.1 whichwas in international waters whenit was
hit, as well as Saudi and Kuwaiti vessels,and even a U.A.E. oilri?. As one author notes,
Iraq operated a "shoot first - identify later" policy". A U.S. military analyst confirmsthat
"few Iraqishipattacks were precededbyvisuadidentifi~ation~~T ".he resultwas that ail vessels
were potential targetsforIraqiattack.
2.18 Iraq'sattacksincreasedin number andin violenceas the war went on,
specifically fiom 1984when it gained access to Exocet missiles fired from Super Etendard
aircraft, and throughits use of Chinese Badgerbombers armed with C6OI missiles with a
515kgwarhead3'.
2.19 As numerous commentatorshave noted,the international cornmunity
took no steps either tostopor evento conderrlnIraqi attacks. SirAnthonyParsonsnotes that -
"... there was nospecific,internationalcondernnation of theIraqi attacks and
no serious attempts made tcn persuade or coerce Iraq into desisting fiom
ti~ern''~~.
Professor Freedman refers tovarious proposais formultilateralor U.N.-sponsoredefforts to
protect shipping, noting that these did not siicceedbecauseit was felt thatSecurityCouncil
approvalwould notbe forthcoming and thattheywouldbe challengedbyIraq36,
2.20 It is equallyclear that had absolutelyno interest in a "tankerwar".
Iranon severaloccasionsrequested an endtlsIraq's hostile actionsin the Persian GUI? '. As
Sir AnthonyParsons puts it, "Iranhad no int~restin endangeringthe sealanes through which
30 See, Statementof Mr.Hassani,Vol. IVpara:14-21.
31 See,Iran'sMernorial,para. 1.38, 1.92-1.93,and 1.105;andalso, Reportof Prof. Freedma, ol. II,
para.47.
32
33 Iran'Memorial,Exhibit15.
34 Ibid.,Exhibi13,p.606.
35 U.S.Counter-MemorialE ,xhibit2p. 32.
36 IranO'sbservationand Submissions,Exhibit16,p.19.
Reportof Prof.Freedman,Vol. II,paras.54-55.
37 See, Reportof Prof. Freedman, ol. II,para.53. al1 her exports and most of her imports pa~sed"~'. This view is reflected by another
commentator:
";..the Iranians are the party most interestedin keeping the [Persian] Gulf open
to tankers ...The United States coulddo farmore to pacie the [Persian] Gulf,
if that is what it really wants to do, by persuading iraq to stop its attacks on
Iranian shipping, which are what started and perpetuate the naval war in the
[Persian]Gulf '39.
Section 4. Kuwait andSaudiArabiasupported Iraq
l
2.21 Kuwait and Saudi Arabia,and certain other Persian Gulf States, actively
supported the Iraqi war effort. Iran hasdescribed in its Mernorial and in its Observations and
i
Submissions the nature of this suppodO. None of these points have been rebutted or even
contested by the United States. Further details of the nature of this support are provided in
Professor Freedman'sReport4'.
2.22 These facts concerning Kuwaiti and Saudi supportare not controversial.
The nature of this support was known to the United States at the time. A November 1987
Report to the Senate Cornmittee on Foreign Relations stated explicitly that Kuwait had
"chosen to serve as Iraq'sentrepot and thus as its de facto all~"~~.The same Report noted that
"from the begiming of hostilities ...Kuwait put aside its past differences with Iraq" and
entered into a "'strategicmarriage of convenience' withBaghdaduJ3:
"Kuwaitpermitted the useof its airspaceforIraqisorties against Iran,agreed to
open its ports and territory for the transshipment of war materiel (mostly of
French and Soviet origin), and joined with the Saudis in providing billions of
dollars in ail revenues to help finance the Iraqi war effort. In clear and
unrnistakableterms, Kuwait took sidesMM.
38
39 Iran'sObservationsandSubmissions,Exhibit16,pp. 19-20.
40 N.R.Keddie,inIran'sMernorialE , xhibit34, p.46.
41 See, ibid.,paras1.45-1.48andIran'sObservationsandSubmissions,Annex,paras.26-28.
See,Reportof Prof.Freedman,Vol. II,paras.33-45.
42 Iran'sMemorial,Exhibit28, p. 27.One commentator refersto "500to 1000heavy trucksa daycarting
goodsto Iraq"ftom Kuwait, evenatthebeginningof thewar. See,Exhibit4, Vol. II,p. 77. .
43 Iran'sMernorial,Exhibit28, p.36.
44 Ibid., p.37;ernphasisadded. 2.23 Saudi Arabiaand Kuwait provided massive financiaa lid to Iraqfor its
war effort andunderthe WarReliefCnideOitAgreementcomrnittedthemselvesto providing
to Iraqthe proceedsof neutral zonecrudesales45.Bythe end ofthe war"Baghdad owedthe
best part of 100 billion dollars to the oil-rich Arab [Sltates which had financed [its] war
effort"46.
2.24 While such financial aid and maritime trade with these countries
supportedthe Iraqi wareffort, the sarnecountriesalso suppliedrnilitaryaid. In some cases,
thiswaslogistical. CordesmanandWagner, twoU.S.cornrnentators,notethat Kuwait "seems
to have allowed the Iraqi Navy to send small ships down the Sebiyeh watenvay between
Kuwait and Bubiyan Island" and thus gain access to the Persian GulF7. There are also
numerousreferencesto Saudi ArabiaprovidirigAWACS intelligence reportsto Iraq, and both
sidesallowinguse of their airspaceand even theirterritoryas staging posts forlraqiattacks4'.
Iranianintelligence reportsconfirmthesepoints49.
2.25 However,these States.werealso direct or indirect suppliers of armsto
Iraq. The Reportto the SenateCornmittee citedaboverefersto Kuwaiti ports beingused for
transshipmentof war materiaPo. Moreover,severalPersian Gulf Stateswere knownto have
issued end-user certificatesfor rnilitm artelid in fact destined forIraq. Evidenceproduced
in the Scott Report,an independentjudicial enquiryinto the BritishGovernment'sarms sales
practiceto Iraq duringthis period,confinnsthis:
"... the Iraqis have no problems over obtaining equipment thanks to the
willingnessof countriessuchas SaudiArabiaand Jordanto actas the notional
end-user".
An SIS Report dated 13 November 1986 reported information thatend-user
certificates had been supplied by Abu Dhabi (6 shipments), Jordan
45
46 See, IranMernorial, xhibit25,26and 27, p. 105.
47 Exhibit1,Vol.II,p55.
48 Iran'Observationand SubmissjonsE,xhibit18,p.278.
On AWACS, see, Reportof Prof.Freedman ,ol.II,para25(F).
49 See,StatementofGen.Fadavi,Vol.V,paras.9-20.
50 See, also,ibid. (11 shipments), Oman and Saudi Arabia (1 shipment) for munitions which had
beenpassedon to I~tq"~'.
In other words, not only were proceeds from the commercial maritime trade of a number of
Persian Gulf States being used to finance the Iraqi war effort, but also there was significant
trade in military equipment going to the ports of these countrîes, but destined ultimateIy for
Iraq. Again, the United Statesis carefülto avoid consideration ofthese issues.
2.26 Findly, it should be noted that Kuwait has publicly apologized for its
support of Iraq in the war. For example, in an interview in Der Spiegel, in September 1994,
Kuwait's Foreign Minister stated:
"1 would like to use this opportunity for us to ask Iran publicly... for
forgiveness for us having supported Iraq in the war against Iran from 1980to
1988.We committed a great error thenUs2.
Earlier,in August 1990, on a visitto Tehran,the Foreign Minister hadexpressed regret for the
position taken by his Government in the war, as well as for the resolutions adopted by the
Gulf Cooperation Councilat the tirne,which he depIored and confirmed had becn made under
pressure from Iraq. A sirnilar messagewas given in 1992by another Kuwaiti officiais3.These
officiai recognitions of Kuwait's positionrnakeit impossible for the United States to assert
that Kuwait was aneutral in the conflict.
Section 5. The UnitedStatesdisregarded the Obligations of a Neutra1 State
2.27 The Uriited States asserts that it was neutral in the conflict, although it
has not actualiy sought to rebut a single one of the examples of U.S. support for Iraq cited in
Iran's Memorialor in Iran's Observationsand Submissionss4.Nor has it taken issue with Iran's
position as tohe duties incumbent on the United Statesin the face of Iraq'saggression against
Iran whether under general international law, the U.N. Charter or under Security Council
51 Exhibit5,Vol. II,para. E2.14.
52 Exhibit13,Vol. II.
i 53 Ibid.
54 See,Iran'sMemorial,paras. 1.75-1.90,and Iran'sObservationsandSubmissions,Annex,paras. 8-19.Resolutions, the latter of which explicitly called on other States "to exercise the utmost
restraint and to refrain from my act which may lead to a further escalation and widening of
the conflict". This languagefrom Resolution 479 (1980) was repeated virtually word for word
in Resolution 598of 20July 1987adopted unclerArticles 39 and 40 of the ChartelJ5.
2.28 Asthe neutral State which it asserts itself to beythe United States had to
comply with the basic duties of the law of neutraiity, narnely the duty of abstention and the
duty of impartiality. However, it is weli-known, and widely confirmed by a variety of
sources, including U.S. officiais, that the United States supported Iraq dipiomatically,
politically, economically and militarily, while at the same time taking increasingly hostile
actions against Iran. Itwas this support for Iraq and hostility to han which ultimately ledthe
United Statesto attackIran'soil platforms.
2.29 Onthe diplomatic and political frontthe United Statessupported Iraq in
the Security Council and elsewhere. In the Security Council it opposedal1atternpts to identifj
Iraq asthe aggressor or in any way to blame Iraq either for refùsing to withdraw to
internationally recognised boundaries, or for its actions in the tanker war, or for its use of
chernical weap01-1~~ J~.ier Perez de Cuellar, then Secretary-General, noted that the United
States "was umemittingly hostile to Iran, arid therefore itwas not inclined to support anv
Security Councilaction that minht be favourable to TehranW5'.
2.30 The United States also :~ctedto rehabilitateIraq by taking Iraq off its list
of States supporting terrorism in 1982and by reswning full diplomatic relations with Iraqin
198458. For the U.S. Defense Department's Director for Counter-Terrorism, there was no
doubt about Iraq'scontinued involvement iri terrorism. The tnie reason for removing Iraq
from the list "wasto help [Iraq] succeed in the war against IranHs9.Under U.S. law, removal
of Iraq from the listof States supporting tei~orisrnand renewal of full diplomatic relations
55
Iran'MernorialE, xhibit2p.23.
56 See,Iran'sObservatiosndSubmissions, Armex,para.10;see,also, Reportof Prof.Freedman,Vol. II,
para.25(i-i).
57 Exhibit5,Vol.II,p. 178;emphasiadded.
58 Reportof Prof.FreedmanV, ol. II,pa25(A) and(G).
59 Exhibit7,Vol. Il.allowed an increase in trade with Iraq, the granting of large U.S. financial credits, and the
export to Iraq of dual-useequipment.
2.31 As a result, trade between the United States and Iraq increased
substantially during the course of the war. Between 1983 and 1989, trade between the two
countries grew from $571 million to $3.6 billion6'. Substantial U.S. Export-Import (EXIM)
Bankand ComrnodityCredit Corporation credits were aiso grantedto enable lraqi purchase of
U.S. goods, and as much as $730 million of direct exports of sensitive dual-use technology
occmed6'.
2.32 The United States also provided direct and indirect rnilitary assistance
to Iraq. This included sharing of intelligence information, joint military briefings and
providing assistance to Iraq in obtaining weapons fiom thirdcountnes. These facts have
already beenreferred to inIran'spleadings and havenot been contested by the United StateP2.
The intelligence-sharing arrangement has been referred to explicitly in U.S. Congressional
Records, its purpose being described there as to provide Iraq with "intelligenceand advice
with respect to the pursuit ofthe w~r"~~.The AWACS assistance, either direct or through
Saudi Arabia, is also well-attested". The US.-supplied data was said to include satellite
reconnaissance photosof strategic Iraniansites for targeting bombing raids,data on Iranian air
force and troop positions, communications intercepts, and other vital inf~rrnation~~. One
comrnentator notes that Iraqreceived:
"...reports every 12 hours on the Iranian military activity on the ground -
cuIled fiom the information gathered from the many Arnericansatellites
orbiting the[Persian] Gulf and from the ArnericanAwacs - which were passed
on to Baghdad via Riyadh. This information played a vital role in aiding the
effectiveness of the operations mountedby Baghdad"66.
These facts arealso confinned by Iraqi sources67.
Ibid.
Reportof Prof.Freedman, ol.II,para.25(B),(Cand(D).
See, forexample,Iran'sObservatioandSubmissionsA , nnex,para.12.
Iran'MemorialE, xhibit47; emphasisadded.
Exhibit4, Vol.II,120. See, also,Reportof Prof.Freedma, ol.II,par251F).
Exhibit8Vol. 11p.46.
D.Hiro,atExhibit4,Vol.11,p. 160.
Exhibit9, Vol. II. 2.33 This support started in 1982,at a critical moment in the conflict afler
Iran'srecapture of Ktiorramshahr, when it was perceived that there was a real risk of Iranian
victov. This has alsobeenconfirmed underoathinjudicialproceedingsin theUnitedStates
byHowardTeicher, a staff member of the U.S. National SecurityCouncil from 1982-1987:
"6. In June, 1982, President Reagan decided that the United States could not
afford toallow Iraq to lose the warto Iran. President Reagandecided that the
United States would do whatever was necessary and legal to prevent Iraq fiom
losing the war with Iran..
7. CIA Director Caseypersonally spearheadedthe effort to ensure that Iraqhad
sufficient military weapons, arnrnunitionand vehicles to avoid losing the Iran-
Iraq war... the United States actively supported the Iraqi war effort by
supplying the Iraqis with billions of dollars of credits, by providing U.S.
military intekgence and advice to the Iraqis, and by closely monitoring third
country arms sales to Iraq to makesure that Iraq had the military weaponry
required. The United States E~SO provided strategic operational advice to the
Iraqis tobetter use their asselsin combat. For example, in 1986, President
Reagan sent a secret message to Saddam Hussein telling him that Iraq should
step up its air warand bombi~igof Iran. This message was delivered by Vice
President Bush who communicated it to Egyptian President Mubarak, who in
turnpassed the message to SacldamHussein ...1authored Bush's talking points
for the 1986meeting with Mul~arak"~~.
2.34 Apart from intelligence assistance, observers also confirm that the
United States specifically encouraged arms sales to Iraq, One author reports a senior U.S.
diplomat in Baghdad proposing that there bt: a "covert selective lifting" of U.S. "restrictions
on third-party transfers of U.S.-licensed mi1ii:aryequipmentto Iraqub9.According to the sarne
author such arms apparently were received by Iraq from Egypt,Jordan, Kuwait and Saudi
Arabia and "[a]mong the weapons so supplied were TOW anti-tank missiles, Huey [sic]
helicopters, srnaIlarrns,mortars, and one-ton MK-84b~rnbs"~~.
2.35 At the same time as it was pursuing this policy of support for Iraq, the
United States had put into place Operation Staunch against Iran in the spring of 1983. The
68 Exhibit10, Vol. II, parasand7. This statement wafiled in anaction beforethe FloridaDistrict
Court.The UnitedStates,whichwas a party to the action,challengedMr. Teicher'sstatement longthe
groundsof its irrelevatothataction.
6-9 B.W.Jentleson,atExhibit8, Vol.p. 45.
70 Ibid. aim of this policy wasto stop or discourage al1third Statesas fa as possible from sellingarms
to Iran. Caspar Weinberger, then Secretary of Defense, confirmed that the aim of this policy
was to limit Im's "abilityto secure weapons, ammunition and other supplie^"'^,Al1such
actions have to be considered in the light of the fact that Iran was subject to aggression and
thatIraqwas responsible for the conflict. At a minimum,the United States had the obligation
to act neutrall- to treat each belligerent equallyandimpartially.
l
2.36 U.S. support for Iraq and its actions against Iran were rnost obvious
with regardto the situation in the Persian Gulf. Here intimidation and direct action wereused
against Iran. On countless occasions, U.S. rnilitary forces violated Iran's territorial
sovereignty, infnnged its airspace and intercepted itsaircraft and naval vessels in violation of
international la^'^. The United States also carried out electronic jamming of Iran's
communications while at the sarne time openly cornrnunicatingwith Iraqi forces engaged in
attacks againstshipping7'.
2.37 One exarnple of U.S. assistance to Iraqwas its decision to reflag and
provide convoy protection for Kuwaiti tankers. Sales proceeds fromthe crude supplied by
these tankers fonned the basjs for Kuwajt'scontinuedfinancial support for Iraq'swar effort.
The United States appeared to justiQ Iraqi attacks on the basis that international shipping
trading with Iran was a legitimate miiitary target. Professor Freedman refers to President
Reagan's statementin 1984that "the enemy's commerceand trade is a fair target", contrasting
that with attacks on vessels trading with "neutrals" like Saudi Arabiaand Kuwait7" Such a
distinction was necessary to US. policy. It explains why the United States would not support
l multilateral efforts to protect international shipping because this would have hindered Iraq's
attacks on shipping trading with Iran7'.It also explains why,until near the end of the conflict,
l
the U.S. Navy's instructions were only to protect U.S. flag ve~sels'~. Any wider protection
could also potentially have hindered Iraq. Hence also theneed to reflag Kuwaiti vesselsunder
the US. flag. However, the United States cannot make this distinction. Both Saudi Arabia
71
72 See,Exhibit 11,Vol. II,p. 1449.
73 See, Iran'sMernorial,Exhibit31.
74 See, ibidan,d Exhibi48;see, also, StatemoftCol. Rezai,Vol. VI.
75 Reportof Prof. Freedman,Vol. II, p71..
Professor Freedmanrefers the proposaito provide internationalprotection toshippingor reflagging
1 76dera U.N.flag. Reportof Prof, Freedman,Vol. II,paras.55-56.
See, Iran'sObservationsand Submissio nnnex,para.24.and Kuwait were exporting crude oil on behalf of Iraq and were allowing their ports to be
used for Iraqisupplies.
Other U.S. comrnentators have recognised that anydistinction between
2.38
shipping for Kuwait and shipping for Iraq \vas spurious. The U.S. Assistant Secretary of
Defence at the time noted that in reflagging K.uwaitiships the United States "becarnede facto
allies ofIraq"". Senator SamNunn, Chainnan of the Senate Arrned Services Committee
made the same point, noting that "[tlhe U.S. liecisionto protect Kuwaiti tankers is viewed in
the region as a clear alignment with Iraq und its [Persian] Guy As one
Congressmannoted in considering U.S. reflaggingpolicy:
"Thereality is that not only we are tiltingtoward Iraq,but we are rryingtuhelp
Iraqwinthesea war byguardingIraqi andKuwaiti~hipping"'~.
It should also not be forgottenthat Kuwait, unlike the United States, has
2.39
repeatedly andpublicly apologised toIran for its support ofIraq during this periodsO.
2.40 Thus, U.S. policy was not detennined by concems for international
shipping or freedom of navigation. Rather itwas part of an overall policy of support for Iraq,
about which U.S. officiaishave been explicit, In generaltenns, Henry Kissinger has stated
baldly that"theReagan and Bush administrations supportedIraq against Iran"". In July 1987,
a U.S.spokesmanadmitted that the United St.ateshad "animportant stakeinIraq'scontinuing
abilirytusustainits defensesN Tghe.Vice-I'resident Bushstated that at the time, the United
States was looking for means "to bolster Iraq's ability and resolve to withstand Iranian
attacksMs3A. ssistant Secretary Korb notedth.atin reflaggingKuwaiti ships the United States
had a hidden agenda:
77
78 Iran'MemorialE, xhibit;emphasisadded.
79 Ibid.,Exhibit32, p. 1469;emphasisadded.
80 Exhibi13,Vol.11.l,p. 107;emphasisadded.
SI Iran'MemorialE, xhibit45.
82 lbid.,Exhibit4p.66;emphasisadded.
83 lbid.,Exhibit50. "...when we went in, we wanted to ensure that Iran didn'twin that war fiom
Iraq. That was our real obiective. and so we were doinp;a lot of thinas to
ensure that we could teach theIraniansa lesson"".
2.41 It was this hostility to Iran and support for Iraq, cornbined with a
determination to "teachthe Iranians a lesson",which led the United States to make a series of
directattacksagainst Iran:
- Destruction ofthe IranAjr on 21-22September 1987;
- The sinking of three Iranianpatrol boatson8 October 1987near FarsiIsland;
- The attack of October 1987on the Reshadat platforms closely followedby the
imposition of U.S. sanctions against Iran;
- The attackof Aprii 1988,at the sarnetime as a major Iraqioffensive on the Fao
peninsula, on the Salmanand Nasrplatforms, as well as simultaneous attacks
on Iraniannaval vessels and aircraft;and
- The attack of July 1988 on various Iranian patrol boats, followed by the
shooting-down of a civil airliner,IR655,causing the loss of 290 lives.
Section 6. Iran'sPosition in thePersianGulf
2.42 In considering Iran's position inthe Persian Gulf, the United States
ignores the entirety of the points made in the precedingSections of this Chapter. Itignores
the fact that Iraqi attacks went uncondernned. It ignores the financial and military assistance
given by other States to Iraq, assistance which dependedon crude oil and military hardware
shipments through the Persian Gulf, and which in Iran'sview were a ciearviolation of these
States' professed neutrality. It ignores itown support for Iraq, and the significance of its
reflagging of Kuwaiti vessels.
84
Ibid.,Exhibi51;emphasisadded. 2.43 Al1these facts arehowever essential to anappreciation not only ofU.S.
actions in the Persian Gulf, but also of Iran'sactions. As to these actions, Iran comments as
follows:
First, IranhouId bejudged byits actions andnot by political statements made
by some of its officials. Suchsi:atements,made in time of war, necessarilywith
political and other considerations in mind, cannot be determinative of Iran's
actud responsibility.
Second, itshould not be forgclttenthat only one percent of shipping passing
through the Persian Gulf(there were almost 600 monthly transits by ships of al1
flags) was affected by the "tanker war",with an even smaller percentage
sufferingany serious damage".
Third, by far the greatest suffer-:rsin the "tankerwar"were vessels trading with
Iran. Even U.S. sources aclmowIedge that Iraqi attacks against shipping
continued from 198 1-1984 without international condemation and without
Iranianresponses6.
Fourth,U.S. Exhibits filed with the Counter-Memorial confim that Iranneither
had the weaponrynor the intemionto inflict major darnage on other vessels:
"[The air launched missiles uscd by Iran] are...of littluse against large ships
and cm be fired only by day. At sea, the Iraqis hadweapons of destruction,
while the Iranianshad only weapons ofharassrnent .,.The Iranian navy did
not have many ships suitable fcirthe attack ofmer~hantmen"~'.
Fifth, even the various tables of attacksattached to the U.S. pleadings show
thatout of an estimated 230 allegedIranianattacks, inover half no damage or
85 Ibid.,Exhibit32, p. 1467.
86 Ibid.
$7 U.S.Counter-MernoriaEl, hibit18,pag5-?;ernphasisinoriginal. only very slight damage was caused, and in aimost 200 cases there is no
evidence of any serious injuries. There areoniy a handful of reports of vessels
being severely darnaged or of constructive total losses as a resultof alleged
IranianattacksB8.
Sixth, Iranwas engaged in extensive stop-and-search activities throughoutthe
warprecisely in order to stop the illegal transport of goods destined directlyor
indirectly forIraqsg.These actions were consistent with international law and
recognised to be soW. In manyinstances vessels resisted stop-and-search. In
some cases, Iranianforces were ableto arrest and searchthe vesse1in question.
In others, although the vesse1did not show that the goods were destined for
Iraq,it was known that Iraqwas the "end-userugt.
Finally,it should be noted thano other Statehas brought anyaction againstIran as a result of
Iran'salleged attacks. As noted above, Kuwait has apologisedto Iranfor its roie inthe war.
Section 7. Iran'sAllegedAttacks on the United States
2.44 The large part of the U.S. allegations conceming Iran's actionsin the
l
tanker war relate to alleged actions againstnon-US. flag vessels. The United States'concem
!
for non-U.S. flagshipping is a pretence. At the time, the United Statesdid nothing to prevent
Iraqi attacks on non-U.S. flag shipping.U.S. naval forces were instructed not to take actions
1 to defend non-U.S. flag shipping, and the United States has never sought to argue that its
attacks on the platfoms were justified by collective self-defence, Le., the defence of other
States whose flaggedvessels might be affectedg2.
i
88 See, afso, Iran'sObservationsandSubmissions,Annex, para.29. Moreover,at least 70 percentof al1
attaçkswere, accorditoU.S .ources themselv,ttributedto IrSee,Iran'sMernorial,Exhibitp.1467.
89 See, Staternetf Gen.Fadavi,Vol.V, paras.33-39.
90 For theU.S.attitude,see, Reportof Prof.Freedman,Vol. II,ph.a58.,
91 See, Iran'sObservationsandSubmissioAnnex,para.28;seealso,StatemenofGen.Fadavi,Vol. V,
i paras.33-39.
92 See, Iran'sObservationsand Submissions, An, aras.201,for a moredetailed discussionof this
issue. 2.45 The real focus of the U.S. complaint is that U.S. forces and US. flag
vessels were subject to specific attacks by Iran, and in particular that the alleged Iranian
attacks against the Sea Isle Ci@and the SamztelB. Robertswere the culmination of a pattern
of hostile actsby Iranagainst the United States.
2.46 This does not reflecthe position taken by U.S. Administration officiais
or military personnel at various times during the conflict. Caspar Weinberger noted that
Iranian forces "clearly dernonstrate...a decided intent to avoid Arnerican ~arships"~~. A
July 1987State DepartmentBulletin confims this:
"To date, Iranhas been carefiil to avoid confrontation with U.S. flag vessels
when U.S.Navv vessels havetieenin the vicinitfg".
i The Commander of the U.S.S.Sides, a U.S. naval vesse1operating in the Persian Gulf at the
i time, statedasfollows:
i
"My experience was that the conduct of Iranian military forces
... was
pointedly non-threatening. They were direct and professional in their
communications, and in each instance lefi no doubt concerning their
intentionsw9',
2.47 The United States refers to three U.S. flag vessels which it aileges were
subjected to attack by Iran, as weil as "at 1i:astsix" alleged attacks on US.-owned vessels
l
l flyingthe flags of other States. The three U.S.-flagged ships were the Bridgetothe SeaIsle
Cityand theSamuel B.Roberts. While the substanceof these allegations will be addressed in
l
Chapters4 and 5 below, Iranwould note here that twoof these vessels were reflagged Kuwaiti
l tankers. The link between these vessels, which remained Kuwaiti-owned, and the United
l
l Stateswas entirely artificialg6.Moreover, Kiiwait'srole in the warhas been discussed above.
The revenues from the trade conductedbythme tankers was beingused specifically to support
93
94 Ibid.,Exhibit54;emphasisadded.
95 Ibid.Exhibit55.
% See, Exhibit14,Vol. II161. the Iraqiwar effort. The reflagging andprotection of these tankers thus provided significant
support to Iraq'sareffort.
2.48 The alleged attacks on the US.-owned (but not U.S.-flagged) vessels
will be addressed in the contextofthe U.S. counter-claim.Attacks against such vessels (even
if attributableto Iran)cannot be considered as attacks against the United States giving rise to a
l right of self-defenceaccording to Article 1of the Charter. As alreadynoted, the U.S.Navyfs
own operating instructions at the time confirm that no protection would beoffered to non-U.S.
flagvessels.
2.49 Although there were no fatalities in the attacks on the Bridgeton, Sea
IsleCi@ and theSamuelB.Roberts,there were injuries,and damage to the vessels. However,
and irrespectiveof the question ofresponsibility for these incidents,such damagesmust be set
againstthe ovenvhelrningpolitical, economic and militarysupportgiven by the United States
to Iraq in a war which was started by Iraq's aggression, for which Iraq has been held
responsibie,andwhich cost hundreds of thousands of Iranianlives.
Section 8. Iraq'sAttacks on "Friendly"Targets
2.50 It is also a relevant aspect of the background to this case that Iraq
frequently attacked "friendly" targetswhether by accident orby design. Professor Freedman
refers to severaI Iraqi attacks on Saudand Kuwaiti-flagged vessels which were picking up
cmde from Iran'sKharg Island, Iraq'saim being to dissuade those countries from allowing
their flaggedvessels to trade with Iran9'.Reference is also madeto an Iraqi attack on a U.A.E.
oil rig apparentltoencourage the Emirates tu lend greatersupport tothe Iraqiwareffortg8.
2.51 This was a pattern throughout the war. As early as 1984, the Middle
l East Economic Surveynoted as follows:
"Perhaps the most striking featureofIraq'sattacks on shipping in the [Persian]
Gulf over the past,week has been not so much their escalation in intensity as
themisdirection of their targets. One ofthem turned out tobe a Greek products
97
98 Reportof Prof,Freedman,Vol. II,pa47-48.
Ibid .,ra.47. tanker chartered byKuwait and.another a Saudi offshore drilling supply vessel.
When attacked both of these ve:sselsappear to have been quite a longway from
Kharg Island andwell outside the exclusion zone declaredby Iraq in 1982. Not
surprisingly,the whole affair bas been a cause of embarrassrnentand dismay in
the two [Persian] Gulf statesconcerned which have been arnongthe staunchest
backers of Iraq in its three andiihalf yearold warwith Iranuw.
There arenurnerousexarnplesof such conduct. As the sarnesource notes, in 1985,the Serifis
travelling in ballast fiom Saudi Arabia to Kuwait was reported as having been struck by Iraqi
jetsLw.Even in 1988such attacks continued:
"Iraqi bornbers on successive i~ightsdropped air-launched Silkworm missiles.
One of them crashed into a fülly-loaded Danish supertanker that had just lefi
the port of Iraq's ally, Saudi Arabia. Two other Silkworrns dropped the
following night roared past a US.-led convoy of reflagged Kuwaiti tankers
before theycrashed into the sea.. Kuwaitis also an Iraqally"lO1.
2.52 The best knownexample was the Iraqi attack on the ü.S.S.Stark. This
attack was conducted well outside the Iraqi exclusion zone, apparentlyby a converted civilian
planeIo2.There have been persistent reports thatIraq had hoped that the blame for this attack
would fa11on Iran, and that only when this proved impossible didit take responsibility for the
attackIo3.Whatever the truth of this, itwas the U.S. policy of treating Lraqas friendly and
taking no steps to condemn or stop Iraqi attacks which led to the death of 37 U.S. sailors in
this incident.
Section 9. The EssentialSecurity Interests of Iran and the United States
2.53 There can be no issue about the essentiaI security interests ofIran in this
Case. han was subject to aggression, and its position has been vindicated -although without
anycompensation of any kind - by the Secretary-General's Report..Inthe Persian Gulf, Iran
was facedwith Iraqiattacks against its commt:rcialshipping, attacks whichwere unfortunately
not met with timely condernnation by th.e international community, and which were
99 Exhibit15,Vol. 11.The Iraqi exciusionzone referredto in this citationionsMap2 attached to
Iran'sMernorial. Iran declarewarzone which,unlikean exclusion zone,is legalunder internationallaw. See,
Iran'sMernorial,para. 1.42.
'O0 Exhibit15,Vol. II.
101 Iran'sMernorial,Exhibit68.
102 Statementof Col. Pakan,Vol. VI, par8-12.
103 See, forexample,Reportof Prof. Freedman,Vol. II,para.47.effectively supported by the United States. Iran cannot now be accused by the United States
for actions which, even on the United States' own case, were markedly lesser in scope than
Iraq'sactions. Al1han's interests lay in keeping the Persian Gulf safe,and Iran sought a cease-
fire in the Persian Gulf,
2.54 The United States describes its essentialsecwity interests at this tirne in
paragraphs 3.1 1-3-12 of its Counter-Mernorial. These are said to include the "uninterrupted
flowof maritime commerce",which the United States argues -in a telling phrase-
"...was severelythreatened by Iran's repeated attacks on neutral vessels which
wereneither carryingcontraband nor visiting Iraqiports".
According to the United States, these attacks made navigation hazardous, caused damage and
financial loss, and increased insurance costs.
2.55 The United States rests its entire case that the alleged Iranian attacks
were different from Iraqi attacks on the assertion that the vessels allegedly attackedby Iran
were not visiting Iraqi ports. As already show, and quite apart frorn any question of Iran's
responsibility forsuch attacks, this distinction carmot be sustained. By entering the Persian
Gulf to protect Kuwaiti vessels, the United States actually increasedthe risk to shipping.The
attack on the Starkwas a prime example of the result of thispolicy'O4.
2.56 In any event, the United States sirnply does not show how its own
essential security interests suffered as a result of hazardous navigation, what damage it
suffered if any, nor how itwas affected by increased insurance costs, even assuming these
could be regardedas essenrialsecurip interests. Nor does it show why such factors, assuming
they did exist, were the responsibility of Iraand not Iraq.Finally, the United States fails to
comment on the factthat maritime commerce did continue largeIyuninterrupted.
2.57 The other "essential security interests"to which the United States points
relate to the alleged Iranian attacks on U.S. warshipsand commercialvessels, the threat to
U.S. nationals, and the impeding of U.S. escort duties. Iran'salleged responsibility for these
'"
See, also,Reportof Prof.Freedman,Vol. II,p46-49.attacks will be discussed in subsequent Chapters.Sufice it to notehere again that it was US.
policyto protect Iraq's alliesandto provide a shieldforIraqiattacks which brought the United
States tothe Persian Gulf, The United State:siactions in the Persian Gulf at this time were
takenunilaterally,and without SecurityCount:ilauthorisation.Whilethe forces of other States
entered the Persian Gulf, it is rernarkable 1:hatnone of thern became involved in hostile
actions. The United States chose a unilateral approachbecauseof itsdetermination to support
iraqand its hostility to han, and because it Imewthat any multilateral efforts in the Persian
Gulf would primarily have to be directed at Iraqa restrictionon Iraq'swarstrategy that the
UnitedStates would notsupport. PARTII
THE ATTACKS ON THE PLATFORMS
CHAPTER 3. THEPLATFORMS IN RELATIONTOTHEOILTRADEAND THE
i CONFLICTINTHE PERSIANGULF
i
3.1 The oil platforms that are the subject of the present Case were
commercial installations which, at thetime of the U.S. attacks which destroyed them, were
either actually producing oil or were under repair with a view to resuming production
following darnage caused by earlier Iraqi attacks.This is acknowledged by the United tat tes'.
Nevertheless, the United States also alleges that the oil platforms were used to launch
l helicopter and gunboat attacks on U.S. shipping and other commercial vessels and formed an
I
I integral part of Iran'smilitary intelligence and communications network2,On this basis, the
United States claims that its destruction of the platforms wasjustified in the name of self-
defence3.
3.2 This Chapter will demonstrate that the United States' allegationsas to
l
l the military use of the platforms are unfounded. Any military equipment on the platfonns was
I of a very limited nature, and destined for the defenceof the platforms thernselveThe greater
partof it had been installed only following Iraqi attackson oil platforin 1986. It was not in
1
Iran'sinterest to militarise the platforms for offensive purposes, nor would it have served any
I
practical purpose since Iran had sufficient rnilits ixes on nearby islands and its mainland,
and the platfoms were of no military value at all.
I 3.3 It will also be show that, in realitythe attacks were directed at Iran's
freedom of commerce, including commerce with the United States. This is reflected by the
fact that the United States decided (i) to destroy commercial installations of great economic
, importanceto Iran,and (ii) to target the central production platformin each attack (as had Iraq
1
2 U.S.Counter-Memoriap l,ara.1.8h.137.
Ibid., paras.1.05 and 1.As4will be seen inChapters4 and5, below,theUniteStatemakesno
claimthatheoil platformswereinvolvedineithertheSea Isle CityincidentSamuel B. Roberts incide-t
3venthoughthedecisionto attacktheplatfowasostensiblytakenasaresultof thesetwo events.
U.S.Counter-Mernoriapl,ras.1.99and1.115. -28 -
previously), therebycausing maximum commercial dmage by putting out of action al1of the
satellite platforms, and regardless of whether or not the particular platform it targeted was
equipped with militarypersonnel or equipment.
Section1. The Platforms arere CommercialInstallations
3.4 The development of Iran's offshore fields and facilities following the
signing of the Treaty of Arnity on 15August 1955has been described in Iran's~ernorial~.
The Reshadat, Resalat, Salman and Nasr fields were developed by U.S. and other foreign
companies at the end of the f960s. Al1of thz pIatforms on these fields are located on Iran's
continental sheIf and within its exclusive economic zone5. Ever iince the development of
these fields, the oil platfoms have fonned xi essential partof Iran'soffshore oil production.
Their average combined production figure before theIraqi attacks was nearly 200,000barrels
per day6.
3.5 A diagram of the Reshiidat and Resalat platforms was reproduced with
Iran's~emorial'. niese platfoms were linkeclto some40 separatewellss.
3.6 The Reshadat Offshore Complex (referred to by the United States as
"Rostam") consisted of three drillingand production platforms,R-3, R-4and R-7,linked to a
total of 27 oil wells. The R-7 platfom wiE itself composed of three drilling platforms,
containing production facilities and living quarters9.As may be seen fiom Diagram No. 1
contained in Mr. Hassani's Statement, the crude oil produced by the R-3 platform was
transported by submarine pipeline to the R-4 platform andthence, together with the crude oil
produced by R-4 ,o theR-7platform, which was the mainplatfom upon which al1production
from the Reshadat fielddependedl TOh.oil ~"oduced by aIIthe Reshadatplatforms including
. .
4
Iran'sMemorial, para..11et seq.
5 Thegeographicalpositionsoftheoil platformsareshownonMap1of Iran'sMemorial.
6 Formoredetailsee,Starementof Mr.Hassani,Vol. IV, AnnexesC,Fand1.
7 Iran'Memorial,Exhibit5.See,also,Statementof Mr.Hassani,Vol. Ip.3.
8 See, StatementoMr.Hassani,Vol. IV,paras.5 and7.
9 See, Statementof Mr.Sehat,Vol. IV,para.1.1
'O Staternentf Mr.Hassani,Vol. Ip. 3. R-7was then transported, afier initial water and gas separationon R-7, by submarine pipeline
stretching sorne 108km to Lavan Island where storageand export facilities existed",
3.7 The Resalat Offshore Complex (referred to by the United States as
"Rakhsh") consisted of one drilfing and production platform (R-1). The crude oil produced
frorn the 14 wells linked to this platfonn was transported by submarine pipeline to the
Reshadat R-7platform, and from there, afler waterand gas separation, along with oil fromthe
Reshadat field to Lavan 1sland12.
3.8 Salman Offshore Complex (referred to by the United States as
"Sassari") consisted of seven inter-connected platforms, including one drilling and two
production piatforms, together with 21 separate satellite oil wells. The oil from these
platforms and wells was transported by submarine pipeline to the main complex and thence,
afier water and gas separation, to Lavan 1slandf3.
3.9
Nasr Offshore Complex (referred to by the United States as "Sirri")
comprised one central platform, one flaring point, and six oil platforms located around the
central platfonn, serving 44 production wells. Cnide oil from the latter was transported by
submarine pipeline to the central platforrn and thence the 33km to Sirri Island for secondary
processing and~X~OI-& I'~.ddition, theNasr centralplatform served as a collection point, for
transfer by pipeline to Sirri Island, for the crude oil produced by the four oil welis in the
Nosrat ~ield'~.
3.10 After the crude oil produced fkom the Reshadat/Resalat fields and
Salman, which had undergone an initial separationprocess on thepIatforms,had been pumped
by undersea pipe-line to Lavan Island, further processing took place in order to separate more
" See, ibid., Vol.IV,para.6.
12 Ibid.,para7.
13
14 Ibid p.,ra8;see, also,Statementf Mr.Emami,Vol. IV,para.1.
See, Statementof Mr.Hassani,Voi. IV,p. 4, andMr.Alagheband,Vol. IV, paras.3-8 anAnnexesA
1sd B.
See,Statementsof Mr.Wassani,Vol.IV, p.4, andMr.AlaghebandV, ol.IV,para.9.gas and water. A part of production was refiriedon Lavan Island (with a refinery capacity of
up to 25,000 barrels per day) and the refined products were then used for domestic
consumption in Iran. The remainder of the ciude was destined for export. A similar process
occurred for cmde produced on the Nasr pIatform, although in that case cmde went via Sirri
Island. There was no refineryon Sirri Island andthus al1production was used for export.
3.11 It should be notedthat .theextraction of crude oil for exportwas (and is
still) effectedby Iran (as by other producer States) on the basis of commercial production
progammes which take into account not only the needs of the market, but also the contractual
engagements that the producing State has entered into previously. In particular, Iran'soil
would ofien have been sold prior to its actual production under long-term contracts. The
actual extraction of crude oil thus represented the first stage in the fulfilment of commercial
obligations undertaken by h.
3.12 Before the warwith Iraq,crude would be shipped direct fromLavan for
export. However from 1985anwards, with the upsurge of Iraqi attacks, especially against the
Kharg, Sirri and Lavanterminals, and the danger faced by the ships trying to reach these
terminals, itwas decided to create floating oil terminals ("FOTs"). This meant that the crude
oil produced from onshore and offshore fieldswould be carried by shuttleships to the FOTs to
be stored thereandthen exported on a shipto ship basis16.
3.13 The Reshadat R-7 platform had been attacked by Iraq on 16October
1986, resulting in the stoppage of production not only from R-7 itself, but also from the
Reshadat R-4 and R-3 platforrns and the Resalat platform'7. Various actions were taken
following that attackin order to resume production, as described in the Statement of Mr.
Sehat, attached heretoI8.While a secondattai:kby Iraq on the Reshadat complcx had occurred
l6
Inorderto safeguardtheirsecurity,andththesecurityof essentiallranianpetroleurnexpons against
Iraqiattacks,suchterminals were constanyovediiround.Forinstance,the floatingpetroleumtermina1fiom
around 8Febniary 1985was the Valfajr1,locatednlzarSirriIsland;from29 June 19itwas moved close to
Bandar Abbas (Hormuz) and renarnedValfajr2; anitwas in turn relocatedffom around31 Julyof tsame
year nearSirriIslandunderthe nameof Valfajr1, tbe furtherrelocatedfrom 15August 1986 nearBandar
Abbasas Valfajr2, and fiom 30 Septernber1986ina locationctose to SirriIslandunderthe nameVaifajr3.
See, Statementof Mr. Hassani,Vol. IV,paras.12-13.
17 See,Statementof Mr.Sehat,Vol. IV,para.13.
18 Ibidp.,ra14. on 15July 1987and caused certain setbacksto the reconstruction work,it wasanticipatedthat
crude oil production from the Reshadat and Resalat fields would resume by the end of
I
October 1987".
3.14 Like Reshadat, the Salman complex had also been attackedby Iraq on
16 October 1986.It sufferedvery light damageon that occasion,and after repairs was ableto
resumenormalproduction afterthreedays2OT . he followingmonth,however,on 14November
I 1986, Iraq attacked again and succeeded in inflicting more extensive damage on the
platform21.Once again,a work programmewas undertakenimmediatelyin order to repairthe
darnageand resume production. These works had beenvirtually completedat the time of the
U.S.attackin April 1988~~.
3.15 As for Nasr, the cornplex had escaped any attack by Iraq, and was
producingnormallyat an average rate of more than 36,000barreIsper day atthe time of the
U.S.attackon 18April 19~8~~.
1 3.16 In sum, given the disruption the Iraq-Iran war was causing to Iran's
economy, the oil platforms, which had always played an important role in Iran'seconomy,
becameeven more important duringthe war. The economic importanceof the platforms was
clearly recognisedby Iraq and this resulted in Iraq'saggressivestrategy for attemptinto put
an end to Iran's offshore oil production capabilities. The economic importance of the
platforms also explains why, when the platforms were darnaged by Iraq, repairs were
immediatelyundertakenbyNIOC with a view to resumingproduction and exportvia Lavan,
Sirriand the FOTs.
19
Ibid.,para.16.
10 Se, StatementofMr.WassaniV, ol. IV,par17.
21 See,ibid,, andStatementof MEmami,Vol. IV,para.6.
22 See, Statementof Mr.Emarni,Vol. IV,para.6.
23 See, Statementof Mr.Hassani,VoIV,Annex1. Section2. TheRoleof the Platformsin Relationto Commercewith theUnitedStates
3.17 In its Counter-Mernorial, the United States asserts that in order to
prevail on its clairns:
"Iran must prove that it exported to the United States oil produced by these
particular platforms and thatthese exports would have continued had the U.S.
military actions not taken place"24.
3.18 The United Statescontinues by noting that Iran acknowledges that the
Reshadat platforrns were not producingoil when they were damaged by the United States on
19October 1987**, and that in any event th€:U.S. Executive Order 12613, issued ten days
after the military action against the Reshadat:platfonns and six months prior to the attacks on
the Nasr and Salman platforms, ended al1 direct oil exports between Iran and the United
statesz6.On this basis, the United States concludes that "[tlhe destruction of these platfonns
could not have affected commerce 'betweenth.etemtories of Iran and the United tat tes"^^.
3.19 Iransubmits that the position taken by the United States in this regard is
misguided both as a matter of treaty interpretation and as a matterof fact. The question of the
United States' erroneousinterpretation of Article X(l) of the Treaty of Amity is dealt with in
Chapter 6 of this Reply. As far as the facts are concerned, andwhile Iran does not accept the
stringent test put forward by the United Stiites, Iran will demonstrate below, purely on a
subsidiarybasis, that it can satisb even that test. Iran will show that it did export to the United
States oil produced by the platforms concernr:d,and that those exports would have continued
had the U.S. military actions not taken place.
3.20 As for the first branch of the United Statesfargument - that "Iran must
prove that it exported to the United States oil produced by these particular platforms" - it
should be noted that whereas in peacetime Iran had sold crude oil in cargoes where the
24 U.S.Counter-Mernorial,ara.2.22.
25 ibid, para.2.23,
" Ibid paras.2.25-2.27.
27 Ibid ,ara.2.27.I producing field was specifically identified, this system changed dunng the war with Iraq. At
that time, al1 Lranian light crudes and heavy crudes, respectively, were mixed and sold
genericaIly as either "Lranianlight" or "Iranian heavy". The low level of production of these
I fields as compared with that of onshore fields allowedthisoil to be absorbed by both light and
heavy cmde oil produced by onshore fields. In the context of the war, therefore, NIOC mixed
oil produced bythe offshoreplatforms with every cargo of cnideZ8.
3.21 With respect to the Reshadat platforms in particular, the United States
asserts that "Iran acknowledges that the platforms were not producing oil when they were
darnaged bythe United Stateson 19October 1987".However,as has been shown above, these
platforms were in the process of being repaired following an Iraqi attack, and had they not
been attackedby the United States while they were under repair, they would have been able to
resume production within amatter of daysZ9.
3.22 It is true that the sanctions adopted under Executive Order No. 12613
on 29 October 1987effectively put anend to any imports of Iranian crude oil into the United
Statesjust ten days afier the attack on the Keshadat platforms. However, those sanctions did
not have the effect -nor were they intended to have the effect - of prohibiting imports of
petrolewn products refined from Iranian crude oil into the United States, nor the purchase by
U.S .ompanies of Iranian crude oil3'.
3.23 As is demonstrated by a White House Fact Sheet dated 26 October
1987,therewere substantial jmports of Iraniancrude oil into the United States during 1987~'.
That Fact Sheetstates:
"- U.S.purchases fiom Ir~anin 1986totalled some $600 million, $500 million
in petroleum and $100 million in other products. Oil earnings by Iran from
sales to theU.S. from January through July of 1987 are estimated to be over
one billion dollars.
See,Statementof Mr.Hosseini,Vol. IIpara6.
See,Statementof Mr. SehaVol. IV,para.16.
See, ingeneral,Reportof Prof.Odell,Vol.III.
See,Exhibit16,Vol. II. - Imports of Iran cmde oil into the U.S. and its territories averaged 90,000
barrels per day (bpd) in 1986;theyjumped to anaverage of 250,000 bpd inthe
first seven months of 1987(6;!0,000bpd in July alone). Estimates for August
are 468,000 bpd and for Septeinber345,000 bpd.The rise can be explained, in
part, by increased Iranian procluctionto obtain additional revenue for thewar
effort"32.
There was thus clearly a market for Iranian crude oil directly imported intothe United States
rightup to theissuanceof ExecutiveOrder No. 12613 of 29 October 1987, which temporarily
halted these imports of crude 0i1~~A . s noted, however, the Executive Order did not halt
imports into the UnitedStatesof petroieump1:oductsrefined fromIranian crude oil.
3.24 As hasbeen explained, the oil produced fromthe platfonns in question
was systematicallybIended with every cargo of cmde during the war with Iraq. Therefore,
each cargo of crude oil exported from Iran contained a certain percentageof oil produced by
those platforms34,or would have contained ithad the platforms not been put out of action by
the United States. When the sanctions were imposed by the United States in October 1987,
Iran found itseIf with a surplus cmde oil pi-oductionof approximately345,000 bpd, which
untilthenhad been importedbythe United States.Itthereforehad to find other outlets for this
production. The solution wasto use the surplus refining capacity in the Mediterranean and
North-WestEurope.
3.25 Iran has attached to this pleading an expert report by Professor Peter
Odell, an authority on the international oil economy3'.That report shows that expons of
Iranian crude oil to Western Europe increasi:dconsiderably from 1986 to 1987, andagain in
1988. In 1986such exports amountedto 25.2million tons, representing7.3%of total Western
Europeancrude oiI imports. In 1987,these figures leapt significantlyto36.7 million tons and
11.2%, respectively, andthe total volume of imports increasedagain in 1988, to 43 million
tons, representing12.3% of total imports36.
32 Ibid.
See,StatementofMr.Hosseini,Vol. III,par14-7,and 19-21.
34 Ibid., par8,etseq,
See,ReponofProf.OdeIl,Vol.III.
36 Ibid.,p. II., 3.26 At the sarne time, the United States had to make good the shortfall that
it suffered when Iranian cnide oii imports were prohibited. It had, in the past, already been
importing petroleum products from Western European refineries in the Mediterranean and
North-West Europe. Afterthe imposition of the sanctions, these irnportsincreased fiom 11.2
million tons in 1986to 13.6million tons in 1987and 17.9milliontons in 1988~~.
I
3.27 Cnide oiI is a fungible product that does not retain its original identity
once it reaches a refinery and is processed. It is thus impossible to prevent crude oil of a
1
particular origin from being includedin refined products destined for a particular customer. It
is, of course, also impossible to state categoricallythat any particular fraction of cmde oil of a
particular origin isnecessarily included in any particular refined product. However, there is
statistical evidence that a quantity of oiI found its way to the United States. If Iranian crude
oil was received by a refinery, and if that refinery in turn exported prodücts to the United
States, then it follows that a quantity of Iranian oil wasnecessarily irnported into the United
States in the fom of products. It is in the nature of the international oil trade that Iranian oil
codd not be excluded from the United States. As former U.S. Defense Secretary Caspar
I
Weinberger has stated:
"...oil is a fimgible comrnodity - once it leaves port it can end up anywhere ...
a very Iarge percentage of the oil in the [Fersian] Gulf is lifted, shipped and
refined through and byArnericanoil campanies ...There is one market for oil,
and it isa globalmarketu3'.
3.28 While there is no way of determining the exact quantities of Iranian oil
imported into the United States, it is possible to reach a notional figure, based on a ratio
between the total quantities of Iranian crude oil imported into Western Europe, andthe total
quantities of refined products exported from Western Europeto the United States. Taking the
figures provided in Professor Odeli's Report, this exercise ieads to notional quantities of
560,000 tons in 1986,increasing to 1,O2million tons in 1987and 1.51million tons in 1988~~.
37 Ibid.
3s Exhibit 17,Vol. II.
39 See, ReportofProf. Odell,Vol. III,p. 11. 3.29 Furthemore, the sanctions on imports of Iranian crude oil into the
United Stateswere lifted in 1990 and 1991 vrhen theU.S. State Department allowed certain
imports, provided that payments were made into the SecurityAccount controlled by the Iran-
U.S. Claims ~ribunnl~~.The sale of Iranian crude oil to U.S. cornpaniescontinued until 1995,
when new Presidential Orders were issued by President Clinton. During that period, the oil
platfoms that had been attacked by the United States were either still under repair following
the U.S. attacks or were functioning at less than their normal production leve14'.While
production on Salman was provisionally resiuned at the rateof 10,673barrels per day on 2
August 1988,final cornrnissioning and regular productionat the rate of 23,667 barreIsper day
after completion of reconstruction works took place only in mid-September 1992, with full
production at the rate of 131,292 barrels per claybeing reached onlyduring 1993". Similarly,
the major repairsand cornrnissioning oftheNasr complex were completed only on 21 January
1992with average productioneventuallyrising to close to the rate prevailing prior to the U.S.
attack~~~.As for Reshadat, provisional productioncommencedon 24 October 1990 at the rate
of only 856barrels per day, and only 365 barrels per day for Resalat, and also gradually
increasing thereafter to a rate of 10,516 baf'r4:per day by 1993-1994~~. In other words, the
U.S. attacks on the platfoms had a direct detrimental effect on the commerce of crude oil
between Iranand the United States during this period.
3.30 Iran submits, therefore, that there continued to be a flow of oil
commerce between Iran and the United States following the issuance of Executive
Order 12613,and that the level of that commerce couldhave beengreater if the United States
had not attackedIranianoil platforms thatwe:reproducingcrudeoil for export.
Section3. Steps that Iran took to defendthe Platforms
3.31 Itwas widely known tliat one of Iraq'sprime objectives in the war was
to impede Iranian oil production, since it was well aware that oil wasessential to the Iranian
economy and thus to its war effort. This point is confirmed by many of the exhibits relied
40 See, Exhibit 18,Vol. II.
41 See, Statemetf Mr.WassaniV, olIV,paras.16-21.
4Z See, Statemensf Mr.Emami,Vol.IV,para.IO,andMr.Hassani,Vol. IV,para.18.
43 See, StatemensfMT. Hassani,Vol. IV,para.21,andAnnexJ,andMr.AlaghebandV , ol. IV,para.18.
44 See, Statemetf Mr.Hassani,Vol.IV,para.16,andAnnexE. upon by the United States in its ~ounter-~emorial~~.In addition to the Iraqi attacks on the
Reshadat and Salman platforms referred to above,there were numerous Iraqi attacks on Lavan
and Sirri ~slands'~.Although there was no successful Iraqiattack on the actual oil platforms
making up the Nasr cornplex, Iraq carried out various attacks and inflicted damage on
neighbouring installations such as Sirri oil jetty and the Valfajr floating oiI terminal at times
when it was situated near Sirri Island, thereby underscoring the fact that Nasr too was
vulnerable to attack.
3.32 Iraq had weapons with sufficient range to attack anywhere in the
Persian Gulf, and its attacks on the Reshadat and Salrnanoil platforms in 1986demonstrated
both its desire and capability to attack Iran'soil installations wherever they were situated in
the Persian Gulf. Furthemore, the increasingly sophisticated weaponsavailable to Iraq as the
war progressed meant that the threat of attack increased rather than decreased from 1986
onwards.
3.33 In these circumstances, it can hardly be disputed that Iran had a
legitimateright to defend the platforms by a militarypresenceand the installation of defensive
military equipmenr. As will be seen, that presence was cornmensurate only with the need to
defend the platforms, and was not designed for offensive use. Indeed, there is no evidence
that the presence of the military personnel with their light weaponswas particularly effective
in deterring hrther Iraqi attacks. Reshadat platform was attacked a second time by Iraq on
15July 1987after further military equipment had been installed following the first attack on
16 October 1986~'and Salman platform was also attacked a second time on 14 November
19~6~'.
3.34 While Iran had to ensure that provision was made forthe defence of the
platforms against attack, it would haverun counter to its own interest to risk further involving
45
See, U.S.Counter-MernoriaEl,xhibi102,p. 1,referringto"Irastrateg..to stoporhamperIran'soil
exports"andibid E.,hibit105p. 12,which notesasfollows"Aspartof itspolicyof attackingIraniantargetsto
restrictheflow of Iranianoil, andconsequentthe revenue tofightthe war, Iraqattemptedan attackon an
offshoreoil facilityinthe Sassan fieldon 16' October[1986].Thisanwas unsuccessfulalthougha further
l strike onanoil platfoin thsamearea on the14' November [19861causedconsiderabledamage".
46 See,StatementoFMr.Hassani,Vol. IV,para. 14.
47 See,Statementof Mr.Sehat,Vol. IV,paras.13, 15and19.
48 See, Statementof Mr.EmarniV, ol.IV,para4.the platfoms in the war by militarising them to a greater extent and thus makingthem even
more obvious targets. The steps taken by Iranto defend its platforms were therefore measured
and limited in scope. The equipment it installed on them was notably less sophisticated than
the military equipment installed on theplatfoims of neighbouring States in the Persian ~ulf4~,
and there were onlya small number of low Ieirelmilitarypersonnel on the platforms who were
conscripts and nothighly trained5'.
3.35 Prior tothe Iraqiattackon the Reshadat Complex on 16October 1986,
the military equipment on that Complex wa.; limited to a 23rnmair defence cannon. There
was also a navigation radar, installed on theR-4 platform. This was not however a rnilitary
radar, but a general use Decca navigation surface radar commonly used on yachts and
commercial vessels. As a surface radar it \vas only able to detect objects approaching the
platfoms fiom the sea or aircraft flyingat very low altitude". It could not distinguish targets
in the sarne way as a military radar. The range of frequency and the band width were limited
and it had no "International Friend or Foe" capacity. It could only distinguish one target at a
tirne, and could not follow several targets sirnultaneous~~~~U . nder ideal clirnatic conditions,
the maximum range ofthe radar was 48 nau1:icalmiles. Moreover, the radar was old andin a
general stateof disrepair5'.
3.36 After Iraq'sattack, furrher light weapons were installed forthe defence
of the platform, including a second 23m cannon on R-4". These cannons had a range of
approximately 2,000 rnetres, but could only be fired horizontally or into the air, and not
downwards at passing boats. Twelve so1die:rswere stationed on the same platform under the
command of a Navy chief petty officerS5.
49 See,Statementof Mr.Hassani,Vol. IV,para.26.
50
See, Statementsof Mr. Salehin,Vol. VI, para.7 (v), Mr. Mokhlessian,Vol. VI, para.7, and Mr.
5IlmanianV, ol. IV,para1.
52 See, Statementof Mr.Mokhlessian,Vol.VI, para.4.
53 See,Statementof Gen.Fadavi,Vol.V,para.25.
See, U.S.Counter-MernoriaE l,xhibit117,aridStatementof Gen.Fadavi,Vol.V, para.25.
54 Sec,Statementof Mr.Sehat,Vol. IV,para.19.
55 See,Statementof Mr.SalmanianV , ol. IV,p.li..1 3.37 Following the lraqi raids on the Saiman Complex, two 23rnr anti-
aircraft cannons were installed to defend those platforms. They were operated by about twelve
Navy soIdierswho were also armed with several G-3rifless6.
3.38 Inreaction to Iraqiattacks on Sirri Island andthe nearbyValfajr floating
oil terminal, the Nasr complex was also equipped with a 23mm limited-range anti-aircraft
cannon and, subsequently, a manually operated machine gun operated by up to 15 naval
conscriptss7.
3.39 This was the sum total of rnilitary equipment and personnel on the oil
platfoms ai the time of the U.S. attacks in October 1987and April 1988.Al1the remaining
personnel on theplatforms were NIOCpersonnel, and the remaining equipment was of a kind
that was perfectly usual on commercial oil installations.
3.40 At the timeof the U.S.attacks, 59NIOCpersonnel were workingon the
repairs on the Reshadat Complex and 14 on the Salman Complex; 15 were carrying out
routine duties ontheNasr ~orn~lex~~.
3.41 Theequipment on eachplatform was standardequipment that would be
found on any oil platform. It incIuded communications equipment such as, on Nasr, a VHF
radio and a multi-channel sailor radio, which wasused for providing contact withsupply boats
and the oil fields5'.Likewise, Reshadat had a telephone linkand a short-range sailor radio6',
and Salrnan a telephone link and a radio room. The military personnel used NIOC'sradios to
communicate with the Lavan and SirriIslandbases.
3.42 In order to allow for the transport of NIOC personnel, spare parts and
provisions to and from the platforms, each complex had a helicopter pad forNIOCts Bell and
Alouette helicopters and rnooring facilities for the relatively largeNIOC boats that were used
56
57 See,StatementofMr. Ebrahimi,Vol. IV,para.5.
See,StaternentfMr.AlaghebandV, ol. IV,para.13.
58 See, StatementofMr.Hassani,Vol.IVparas22-24.
59 See, StatemenofMr.AlaghebandV, ol. IV,para.12.
60 See, StatementofMr. Sehat,Vol. IV,para.21.for personnel. These, again, were perfectly ordinary facilities that could be found on virtually
any offshore oilplatforrn6'.
3.43 In sum, the United States has provided no evidence for its assertion that
the type of equiprnent and extent of military personnel on the platforms shows that the off-
shore installations were highly militarised for offensivepurposes62.Iran's measuresto defend
its oil platforms were very modest and were entirely reasonable and legitimate given the
history of Lraqiattacks. As will be shown in paras. 3.55 to 3.65 below, the documents said by
the United States to have been found on the ,platformsare proof that the role of the military
personnel andthe equipment on the platforms did not extend beyond defending the platforms,
Section4. TheOilPlatformswerenot usedforNon-CommercialPurposes
3.44 Iran did not need to use the platforms as part of its military structure.
Iran has an extensive coast-line and numerou:;islands. During the war against Iraq, Iran made
use of these natural assets and of its military bases and stations on Abu Musa, Sirri, Lavan,
Larak,Kish and other isIands, as well as its nilmerousmainland military posts, forexample at
Bandar ~bbas~~.It was more effective and rnuch safer for Iran to make use of al1of these
specialised military facilities and to keep the vulnerable and highly visible platforms
demilitarised except to the extent required for their own defence and to provide comfort to
NIOC personnel.
3.45 The United States accepts that the platforms were producing oil at the
time of the U.S. attacks on the platforms or were under repair following Iraqi attacks, but it
asserts that it has "compelling evidence" that Iran'soffshore oil pIatfoms -particularly those
concerned in the present case -were also serving as military fa~ilities~~.As will be show
below, the United States has produced no evidence of use of either the Salman or Nasr
platforms as military facilities; such "evidenci:"as it has produced with regard tothe Reshadat
61 See,Statementof Mr. Hassani,Vol. IV,para. 27.
62 In anyevent, the radar and other eqtriprnenton Reshadatwasdestroyed by the UStateafter they
had boarded the platform:the Nasr platform was cornpletelydestroyed in the U.S. attacks thereby making
independentanalysisof the platformequipmentirnpocsible;and althoughthe UniStatesboardedthe Salman
63atfom, there isno recordof itshavingfound any militaryor-useequiprnentofany kindonthat platfom.
61 See,Statementsof Mr. Mokhlessian,Vol.VI, paras. 1-3and Mr.Salehin,VVI, para.4.
U.S.Counter-Mernorial,para1.84. platforms will be shown below to be unreliable or speculative, and is contradicted by the
evidenceproduced by Iran.
A. Communicationsand radar
3.46 One allegation bythe United Statesis that the platforms were serving as
I
general communications relay and radar stations for military purposes, guiding hian forces
and tracking the movements of other countries'shipping. Iran will discuss hereafter various
Exhibits to the U.S. Counter-Memorial which are documents allegedly found by the United
States on the IranAjrand the Reshadat p~atfomi65.In each case the United States has
provided what it refers to as "selected" messages and what purports to be a complete
coIlection of such messages. The United States has also exhibited various documents
concerning instructions forradar operators and observer^ B^ef.re entering into a detailed
discussion ofthose Exhibits, Iran must make two general points. First, with regard to the
messages,Exhibits 70, 72 and 118purport to be a "completecollection"of messages foundby
the United States. It must howeverbe assumed that the United States has exhibited only those
messages that itcm attempt to use in support of its case, and that there wereother messages
that were even more innocuous than those that the United States has chosen to exhibit.
Second, with regard to al1the Exhibits for which the UnitedStates has provided an English
translation of the original Farsi, there are inaccuracies in the translation, the mosts of
whichhave been noted in the footnotesto the following discussion.
3.47 The first category of evidence relied upon by the United States in this
regardconsists of documents allegedlyfound on the Iranian vesse1IranAjr, which the United
States had attacked on21 September 1987 because itwas said to have been laying mines6'.
l According to the United States, those documents prove that Reshadat passed along tactical
militarymessages between the Iran Ajrand other Iraniannaval unid8. Exhibits 69 and 70 to
theUS, Counter-Mernorial, being the documents allegedly found on the Iran Ajr, contain
"Selected Farsi Messages" and a "Complete Collection of Teletype Communications",
i
respectively. The "selected" messages are mostIy querying whether previous messages have
65
66 Ibid Ex,hibi69, 70,71,72, 11and119.
67 Ibid .xhibit114, 115, 11and117.
68 See, para5.20-5.21below.
U.S. Counter-Mernoril,ara1.86.been received, or responding to such queries. They are entirely innocuous. Inparticular, no
military instructionsare given,and there is ncbmention of minelayingor anyother aggressive
activity.As to the "complete" set of cornrnu.aications,the sarne observation applies. To the
extent that there is any mention of rnilitaiy rnatters, these documents confirm that the
communications were intended for the defime of the platforms. For example, message
S/111710 states that "the possibility of any type of enemy air attack on vital and sensitive
points - especiaIly ports, islands and vessels..is conceivable", and gives them the "[olrder
that while beingcompletely vigilant, you have completedefensive readiness to confront air
threat~"~~.This was nothingmore thana waming to be on guardagainstpossible Iraqi attacks.
3.48 Exhibits 71 and 72 to the U.S. Counter-Memorial, which contain
"SelectedPaper-TapeMessagest'and a "Complete Collection" of such messages, respectively,
purport to be messages sent between the Irar~ Ajr and the 1''Naval District. These invite the
sarne cornrnents as Exhibits 69 and 70. Again, they are perfectly innocuous, and contain no
mention of minelaying or anyother aggressive activity. Two out of the three "seIected"
messages either query whether previous messages have been received or confirm that
messages have been sent or received. The third message - which does not even mention
Reshadat - appears to be giving the position of theIran Ajr and nothing else. Furthemore,
only hyo of the total 41 tapes contained in Exhibit 72 contain any mention of Reshadat, and
those are duplicates of tapes already presented in Exhibit 71. Iransubmits, therefore, that the
documents aIlegedlyfound onthe IranAjr pr13videno evidence whatsoever thatReshadat was
involved inoffensive rnilitaryactivities. Moreover, there wasno mention atal1of Salman and
Nasr platforms.
3.49 The United States ôlso relies on what it terms "miIitary analysis" to
assert that the platforms used radar and visiial surveillance to report on merchant shipping,
and that helicopters and small boats also used the platforms for target-finding. Iran will deal
below with the allegationsrelatingto the existenceof radarson the platformsand to helicopter
and small boat attacks.
69
Ibid .x,hib70; emphasisadded. 3.50 It suffices to make here just a few comments about the conclusions
drawn by two of the United States' mainmilitary experts with regard to visual surveillance.
Exhibit 57 to the U.S. Counter-Memorial is a report by Rear Admira1 Cobbold and
Commander Codner of The Royal United Services lnstitute for Defence Studies. It states that
"platfoms were highly Zikelyto have been used for radar, and to a small extent, visual
surveillance of shipping crossing the arean". In other words, the authors of the report were
making no more than a supposition without corroborating evidence.The United States infers
from this report, however, that the platforms were actually used for visual surveillance in
connection with attacks by Iranian forces71.Leaving aside the hypothetical nature of the
evidence relied upon for the statement, the allegation regardingvisual surveillance is in itself
coniradictory. On the one hand, the United States argues that poor visibility in the Persian
Gulf meant that the unsophisticated Lranianhelicopters and patrol-boats could not function
without radar and visual surveillance assistance from the platforms72; on the other hand it
argues that the platformsthemselves were used forthe visual monitoring of merchant shipping
at considerable distance^'^.
3.51 The United States claims that personnel on the platforms could detect
shipping up to 15nautical miles away, and could visualIy identifi shipping by class up to
10nautical miles in "good ~isibility"'~.On the other hand, it is acknowledged that the flagof
a vesse1 couId only be identified at a distance of 1-2nautical miles75and Rear Admiral
Cobbold and Commander Codner, the experts relied upon by the United States, note that "an
attack unit may reqüire to close a target to within 1mile to achieve positive visual
identifi~ation"'~.Moreover, even if vessels passed close enough for personnel on a platform to
be able on occasion to distinguish the flag or name of a ship, the hazy weather much of the
time in the Persian GuIf normally made such identification impossible. In any event, most
merchant shipping stayedas far south as possible in order to avoidthe warzone7'.
'O U.S.Counter-MernoriaEl,xhibit57,p.22;emphasisadded.
71
72 U.S.Counter-Mernoriapl,ara.1.91.
See, ibid., par1.93,fi.162,where itis statedthat"PersianGulfmeteorologicalconditions(dustand
"andstorms,and dryhaze)furtherhindered theabilityof helicoptelocatvisuallytargets".
See, ibid .ara.1.93h. 164, whereitis statedthat"Visualdetectionof shippingduringthe daycould
74picallyhave beenachievedof largeshipsI5 nm".
Ibid.
75 Ibid,
76 Ibid.,Exhibit57,p.5.
See, U.S.Counter-Memorialp,ara.1.88(6). 3.52 RearAdmira1CobboIdand Commander Codneralso taIk hypotheticalIy
about the roie the platforms could have had irimaking for belligerentpurposes a "compilation
of a plot of shippingtra~ks"'~.However, no such documentation has beenexhibited or is even
alleged to have been found. Nor is there any evidence demonstrating that personnel on the
platforms were involved in a task of this kind. In any event, Lloyds of London provide
information on al1maritime commercial traflic by telex, and such activities by the personnel
on the platforms wouldtherefore have been quite superfluous.
3.53 The experts further assert, againwithout any proof, that the piatforms
concerned were al1equipped with Decca 1 radar which, they acknowledge, is "similar to the
radar fitted to manycommercial ~hi~s"'~.Even if this had been the case (which it was not,
Reshadat R-4 alone being equipped with such radar), it provides no evidence of offensive
militaryactivityonthe platforrns.
3.54 Most of the conclusioiis made in the report by Rear Admiral Cobbold
and Commander Codner are based on corljecture and make no reference to any factual
supporting evidence. When discussing "PotentialIranian Supporting Assets", the experts'
concludingparagraphwith regard to the oil platforms uses the phrase "couId havetteight tirnes
in connection with the supposed military iactivities of the platforrns80.Quiie sirnply, the
experts do not make a single definite statement in this regard. Evidence to show the kind of
military assistance offered by the platforms, had it existed, would have been easy to collect
uponboardingtheReshadatplatfoms. Nonr has beenadducedbythe United States.
3.55 The final category of evidence relied upon by the United States in
connection with the role allegedly piayc:d by the platforms in communications and
surveillance consists of certain documents that it says were found on "one of the Rostam
7.3 Ibid., Exhibitp.22.
79 Ibid.,p. 12.
10
Ibid.p. 13;emphasisadded. platfoms" which "confimed that Iran had integrated its offshore oiI platforms at Rustam,
Sassan,and Sirri into its military ~tructure"~'.
3.56 However, the only documents produced by the United States in this
category are completely consistent with the restricted local defence role that the rnilitary
personnel stationed on Reshadat played. As has already been noted in Iran'sMemorial, they
had means of communication with Lavan Island's defensiveoperating station and in particular
acted as look-outs for Iraqi planes flying lowto avoid radardetection which were reported to
Lavan1slands2.
3.57 It is in this context that the United States' comments on a document
entitled "Instructions for the Deployment of Observerson Oil Platforms in the Persian Gulf'
rnust be readg3. The United States alleges that this document was found on Reshadat and
points out that it included instructions "to gather information about the enemy'sair and sea
traffic and destroy its craft". The United Statesthen proceeds to give an interpretation of these
instructions thatgoes against al1comrnon sense: "Iraqdid not operate naval crafi in the centrai
and southern [Persian] Gulf during the Iran-Iraqconflict; thus,the reference to the enemy sea
traffic in the Instructions for Oil Platforms document necessarily refers to to [sic] the vesseIs
of non-belligerent states incIuding the United statesUs4.It 1squite obvious, however, that in
the sentence quoted by the United States, reference is being made to both the air and sea
"craft" of the "enemy" - i.e., Iraq; and as already noted above, Iraq was to attack the oil
platfoms consistently during the war, developing air capacity throughout the entire Persian
~ulf~, Furthemore, given that the document is dated 23 October 1980, i.e.,at the very
beginning of the war, it cannot permit an assertion that the "document necessarily refersto to
[sic] thevessels of non-belligerent states including the United States, whose warships most
prominently escorted rnerchant convoysthrough the [Persian]~ulf'",
81 U.S.Counter-Mernoriap l,ara1.103.
See, Iran'sMemorial,para. 1.102.
83 U.S.Counter-MernoriaE l,xhibit115.
84 U.S.Counter-Mernoriap l,ara1.I03(1).
85 See, paras.2.17 and3.31-3.33,above.
i '' U.S. Counter-Mernori aara,1.103(1). 3.58 The document explicitly sets out a "Protection plan for rigs and
platforms"87aswell as covering the duties of observers on oil platforms. There duties consist
of helping to ensure that maritime trafic "can easily reach Iranian and other ports of fiiendly
countries in the region",and assisting in the cletectionof Iraqi units by close observation of air
and sea trafics8. In keeping with Iranlspolicy not to militarise the platfoms, the instructions
include the order - as translated by the United States - that: "Theobservers will cooperate with
the NlOC officiaisduring their stay on the pIatforms" and "will not carry arms while on the
platforms"89.
3.59 The United States attributes great importance to certain words assigned
communications codes in Annex G to the same document, picking out certain examples such
as "America", "Britain", "French", "vessel", "escort ship", "aircraft carrier", "heading",
"speed", "course", etc., and concluding that tl~euse of such words demonstrates that "Iran'soil
platform personnel were tasked withobserving, and reporting on, the rnovements of rnerchant
vessels and their naval escorts, including U.S. vessel~"~~L . eaving aside the fact that these
instructions date from 1980, seven years tlefore the destruction of Iran's oil platforms, it
shouId be noted that a total of 136commun.icationscodes are listed, from which the United
States has taken a highly selective sample. If the complete list is consulted, it becornes clear
that the codes served a descriptive purpose whicti would allow the situation to be monitored
objectively9'.It would be unrealistic not to have descriptive terms such as these, if only to
avoid instancesofmistaken identity.
IbidE.xhibit 115,p. 2.
88 Ibid.,pp. 2-3.
89 Ibid.,p. 5.A reviewof the U.S.translationorthese documentsin factrevealsa number ofdiscrepancies.
For example, the order translated by the United States as "The observers will not cany arms while on the
platforms"is infact muchmoredetailed andprecisewhenproperlytranslated,readingas follows: "The observers
dispatched to theoil platforms sbelunarmedand, forsecuritypurposes,shalbe prohibited fromcanying any
arms to the oil platforms". Similarly, parag1(B) is translated by the United States as "They [the Islamic
RepublicNaval Forces]musttight to theend the enemieswhoinvadedtheir beloved countries", whereasmore
accuratetranslation showsagain that theoriginalis niuch morespecific: "Theymust wwar againstthe lraqi
milifaryforces and figtothe endtheinvadingenernyof Iran";emphasisadded,
U.S. Counter-Memorial, para1.103(2).Note that theU.S. rnistakenlyrefers to Exhibit 114here, when
in fact cornmentinaon Exhibit 115.
91 Examples of the communication codes inc,lude:sS.,awacs, antenna, peaceful, fsiendly, dangerous,
undenvater, submarine,civilian,militaryaircraft andcivilaircraft,etc. 3.60 The United States also refersto Exhibit 118to its ~ounter-~ernorial~~,
an "Archive of Incoming Messages" allegedly retneved from Reshadat, stating that it
dernonstrates that the personnel on board the platforms "câmed on military surveillance of
naval and merchant shipping to facilitate Iran's attacks on such shippingUg3.However, a
review of these messages once again shows that the platforms were involved only for
purposes of their own defence.
3.6 1 A message dated 18 October 1987 -which was sent to Reshadat only
forinformation -statesthat there must be "instantaneous defensi readiness" to counter "the
possibility ofan air attack on rnilitary and economicfaci~ities"~~A. message dated 6 October
1987 states that "the possibility of an attack on the islands, platforms, and units at sea is
conceivable". Another message, whichappears to be dated 11October 1987, is reproduced in
the U.S.~ounter-~emorial~'. It gives details of a military convoy in the vicinity. However, no
nationality is specified and there is no mention ofattacking the con~o~~~A . hrther message,
dated 6 October 1987,requests confirmation that the platforms are to be operational 24 hours
a day. Other messages deal with practical matters such as sending new binoculars. Lnfact, the
messages are the type of routine messages that one would expect in the circurnstances. They
lend no credence to the United States' allegation that the platforms were engaged in
coordinating attacks on merchant shipping.
3.62 Lastly,the United States comments ona document, also ailegedly found
on Reshadat, entitled "Instructions for Radar ~tations"~~.The only comment that the United
States makes is that the Annexto these instructions requiredobservers "to report the position,
course, speed, and other information about 'surface targets'-that is, It seems that
the United States may be trying to imply that use of the word "surface targets" means that
92 U.S. Counter-Mernorial,ara.1.103(3f)i.188.Hereagain,theU.S.mistakenlyrefersto Exhibit117
when infactcornmentinon Exhibit118.
93 U.S.Counter-Mernoriapl,ara1.03(3).
94
95 Emphasisadded.
% U.S.Counter-MernoriaEl,xhibit19,andU.S C.ounter-Mernoria,ara.1.103(3).
Itshouldalsobeborneinmindthatwhenthe word"target" isusedinthesemessages,iisclearfiomthe
97ntextthatit isusedinthesenseof aradartargetandnot a militarytarget.
98 U.S.Counter-MernoriaEl,xhibit14.
U.S.Counter-Mernoriapl,ara.l.lOJ(4).shipping was designatedas a military target. In fact there is nothing sinister about the use of
the word "target"in thiscontext, since it designatesanobjectto be observed on radar,
3.63 The most the document shows is that Reshadat was part of a
communications network of stations connected with each other fordefensive purposes. There
is nothing in these instructions relating to offensive actions or intelligence gathenng for
offensive purposes. Furthemore, neither Salrnan,Nasrnor Resalat is rnentionedin the list of
radar stations referred to in this documentg9 -contmry to the United States'allegations that
Salrnan andNasr were using radar to assist in Iran'swar effort. Indeed, the fact that Salman
was not equipped with radar may be inferred from Exhibit 33 filed by the United States with
its Preliminary Objection, where it is stated that the Salman platform "appearedunalerted"
beforethe U.S. attack'OO.
3.64 With respect to the document entitled "Instructions for Exchanging
Radar Intelligence", the United States has rnade no ~omrnent'~'.This is again a perfectly
innocuous document that mereIy confirrns that the radar on the Reshadat platform was used
for purposes of defending the pIatform (andniakes no mention of the other platforms attacked
by the United States). As with the documerits described above, the main purpose of these
Instructions was to lay down standard procegures for communication of information relevant
to defence against Iraqi air attacks. This puipose is explicitly set out in paragraph 1 of the
~nstructions'~~.
3.65 Finally, the United States has no comments to make on the document
entitled "Transfer and Turnover List of the P-eshadatOil Platform Radar ~ustodian"'~~.That
document consists of a series of hand-writt~:nreceipt notes concerning the turnover of the
99
U.S.Counter-Memorial,Exhibit 114,p. 31 refersto: "theEast RadarStations consistingof the LARAK
Radar andobserver stations,and the WesternRadar stationsconsistingof the ABU MUSA Radar and observer
'*ation.he RESHADATplatform Radarstations(MCIRVARiDR , 4and theSIRRJIslandRadarStation".
'O' U.S .relirninaryObjection,Exhibit33,p. 68.
'O2 U.S.Counter-Mernorial,Exhibit 116.
It may be noted in this regardthat, once agitin,the Englishtranslation differsFromthe original Farsi
versionin asignificantrespect. At page 5 theEnglishtranslation,under the heading "General", the second
sentence Statesinteralia, that radar coverage can help to "identiQ and coordinate al1 air targets".This
translation omitsthe next words that appear in the Farsi text, which refer to "warningagainst attackby hostile
aircraft".
'O3 U.S. Counter-MernoriaExhibit 17. radar and other equipment on the ReshadatPlatform. It sets ouacatalogue of that equipment
which runs counter to the United Statesf attempts to make the platforms appear to be
sophisticated cornmand centres with highly developed surveillance capabilities that were
essential to Iran'smilitary activities. The firstmessage is representative:
"1. The wire for the Iightingof theDECCA-1226radar is out.
2. The DECCA-1226radartuning doesnot work.
3. The nightvision binoculars are broken andunusable.
4. The tripod binoculars are broken andmissing the primary lens".
Moreover, this supposedly sophisticated military equipmentcm be seen to have included such
items asa plastic set-square,a file cabiand a sewingmachine.
3.66 In fact, Iran had perfectly adequate methods of obtaining information
about maritime traffic in the Persian Gulf, and had no need to usethe platforms for this
purpose.First, it had radar bases at such places as Bandar Abbas and Kish Island. Second,
aerial reconnaissance wasperformed by the Air Force. Third, there waa telex link to Lloyds
of London which provided information on al1maritime commercial traffic. And fourth, there
were small speed boats which would stop vessels to obtain information as to whether they
were canying commercial or military goods, and to veriQ the name, flag and destination'".
There was no need for the platformsto become involved in these activities and they were not
so involved.
B. SmaH boats and helicopters
3.67 In addition to general surveillance activities, the United States also
alieges that the platforms were used to launch smallboat and helicopter attacks on neutral
vessels and that they caused a "significantthreat to the safety of neutral merchant and naval
1 vessels, including U.S. ve~sels"'~~.
3.68 The materials produced as evidence by the United States in this regard
comprise articles and reports producedby commercial entities, giving indirect accounts of the
104 See,Statemenof Gen.Fadavi,VoV, paras33-39.
'O5 U.S .ounter-Mernorial,ar1.104. alleged military use of the platfoms. Apart fiom the fact that many of the reports carry
dis~laimers'~',the language in both the reports and the articles cannot be considered as proof
of the U.S. allegations. On the contrary, the language is extremely cautious, using phrases
such as "helicopters Ipossibly operated fiom oil p~atforms)"1°7" ;believed to have been"'08;
"attributedto"Io9;"Iran is reported to beftH0.
1. Smallboats
3.69 The United Statesclaims that Iran'ssmall gunboats needed and obtained
staging and target-finding assistance from offshore facilities as they did not possess
sophisticated radio equipmentl". Thisallegation does not withstand scmtiny. Map 1.12in the
U.S. Counter-Memorial (for which the United States indicates no source) plots just four
alleged small boat attacks in the central Persian Gulf region, three of which are shown as
roughly equidistant from Reshadat platform and Lavan island, and seven alleged small boat
attacks in the southern Persian Gulf region, :six of which are shown as much closer to Abu
Musa and Sirri Islands than to the Nasr plarform, and the seventh being nevertheless well
within a 50nautical mile radius ofthose islantis.
7
3.70 Of note in this regard ;arestatements made by Rear Admiral Cobbold
and Commander Codner intheir report referred to above, as follows:
"Radars, wharfage, landing pads and iogistic facilities on Iranian islands could
provide similar support in s~uveillance, picture compilation, CO-ordination,
control and logistics as the oil lilatforrns.From the pattern of small crafi attacks
in the approachesto the Straits of Hormuzand the Straitsthemselves it appears
likely that Abu Musa and other islands were used extensively as forward
operatingbases""*
'O6
U.S.Counter-MernoriaE l,xhibit2p. 1statesthat"GBCS ..cannot acceptresponsibilityianyway for
anyerrors,omissionsorrnisinterpretations"U;.S. Counter-Mernorial,xhibit1, preface,statesthat:"Noaction
orpresurnptionshouldbetakenormade withoutindependentconfirmation".
'O7 U.S.Counter-Mernoria l,xhibi103,p. 12.
i 108 Ibid.,Exhibit107.
! 109 Ibid.,Exhibit109.
110 Ibid. Thesereportsofien refer to "Rostisliind"andnotto anoiIplatform,andgenerallydo not refer
to SalmanandNasr.
III U.S.Counter-Mernoriap l,ara.1.92.
II? IbidE .xhibi57, p. 13. and
i
"Problems of target identification may explain why only four small craft
attacks..took place in the South-East Basin as cornparedwith the much larger
numbers in the verymuch more confined areas south-east of Abu Musa and in
the Straits of ~ormuz""~,
These passages support the view that the platforms were not usedfor Iran'salleged attacks by
small boats, andconfinn that there were very few alleged incidents in the viciniof the
platforms.
3.71 The gunboats were based on land and needed ajettyto be launched. It
would thereforehave been impractical to use the platfoms as staging baseven if han had
wanted to(which wasnot the case). Quite apart from the fact thatthe gunboats had no need to
berth at the platforms, their size poarisk thatinrough seaconditions they would damage
themselves by crashing against theplatforms. It was equally impractical for medium sized
boats such asminelayersor patrol boats to tie up at the platforms.
3.72 Despite the fact that the platforms were close to Saudi Arabian and
U.A.E. piatforms as well as the shipping lanes, and thus could easily be monitored by third
parties, anddespite the fact that al1communications from theplatfoms were made over open
channels and were thus easily intercepted, the United States has provided no evidence to
1
support its contention that the platforms were used for launching small boat attacks or that
small boats were"10iterin~""~behind them. The US. Counter-Memorialcontains no concrete
1
evidence such as photographs, intercepted messages or even contemporaneous eye-witness
reports to support its contentions in this regard, but instead has reliedely on general
specuiationand the presentation of the inconclusive andunsubstantiated~a~ 1.12.
l
113 Ibid.,20.
114 U.S.Counter-Mernoril,ara.1.90. 3.73 In any event, there is no record of any alleged Iranian small gunboat
attack on a U.S. vesse1 during the entire Iraq-Iran war. On the contrary, there is strong
evidencethat there was not even a threat of such atta~k''~.
2. Helicopters
3.74 The United States furtlier alleges that Iran used its platforms to launch
helicopter attacks, as its helicopters lacked "the range and the target-finding capability to
conduct these attacks without assistance frcim anoffshore facilitynH6.This is wrong. The
Agusta Bell 212 helicopters owned by the huiian Navywere equipped with anauxiliary fuel
tank and had a rangeof 360nautical miles"'. As maybe seen fkomthe rnaps annexed to the
Statement of Mr. Salehin, attached hereto, even at half that range (i.e., ailowing for the
helicopter to retum to the same base), the helicopters did not need to use theplatforms, given
the number of Iranianrnilitarybases on Iran'smainland and offshore i~lands''~.
3.75 The view expressed in the U.S. Counter-Mernorialas to the range that
the standard AgustaBell 212 helicopter coulclcover is in any event contradicted by the United
States'own Exhibits. The Counter-Mernorial quotes Jane'sAl1the World'sAircraft 1975-76
which, albeit out of date, givesa maximum range of 267 nautical miles'lg, which the United
States then reduces to what it describes as a "realistic"range o60 miles. Another sourceused
by the United States gives a maximum range of 350 nautical miles"'. But even under the
United States'own incorrect estimate of 60 miles, more than half of the alleged helicopter
attacks occurred within reach of Sirri, Abu Musa and Lavan Islands. Under the estimate of
350nautical miles, al1of the alleged attackswere well within reachof those Iranian islands.
3.76 The United States is ~lso wrong when it claims that al1the platforms
were equipped with surface-search radar1*'vvhich,it alleges, was used to assist helicopten in
locating their targets. It has produced no evidence in support of this assertion. Iran had one
''' See,para.2.46, above.
Il6 U.S.Counter-Mernoria para.1.92.
'17 See,Statementof Mr.Salehin,VolVI, para.2.
t18 See, ingeneralStatementof Mr.Salehin,Vol. VI,anAnnex B to thatStatement.
U.S .ounter-Mernoriapl,ara.1.94,h. 166.
IZD Ibid E.,hibit2p.61.
121 U.S. Counter-Mernorial,pari.90. general use radar on one platform (R-4) in the ReshadatfResalat cornplex. This was not a
military radar and it was oId and defective.
3.77 The United States claims that Iranian helicopters lacked sophisticated
radio equipment and therefore needed the platforms to receive and reiaymessages to and from
Iran's rnainland122.This again is incorrect. The iranian helicopters were equipped with a
direction finder system which allowed them to be guided duringmissions by means of radio
communication Sirr^.sland is within 100miles even of the furthest platform, Reshadat.
Abu Musa Island is also within approximately 100miles of the other three platfoms. As both
of these islands were equipped with radar and radio facilities,it is disingenuous to assert that
helicopters in this area had to use the platfoms in order to be in direct contact with the
rnain~and'~~I .n anyevent, as has been noted above, the radio facilities onthe platforms were
unsophisticated and were designed for civiIian and not rnilitary use, broadcasting over open
ainvaves.
3.78 Moreover, the United States is misleading in the conclusions it draws
from many of the publications upon which it relies. For exarnple, it states that the 1987and
1988 GCBS Guidance Notes confirm that Iran was using the platforms to stage helicopter
attacksi2'.Reference to the relevant Exhibits shows, however, that the 1987report states that
"Iran has not conducted a helicopter attack since the beginning of October 19~6'~~ "nd the
1988 report states that "only one helicopter attack has been reported since November 1986
involving the 'TenryuMm', on 2othApril 1987"12'T . here is no suggestion that this alleged
attack was staged from an oil platform, nor was it reported that there was any damage to the
vesse1itself Again, therefore, Iran submits that the United States has produced no credible
evidence in thiscategoryto sustain its allegations ofthe rnilitaryuse of the platforms.
3.79 The only piece of purportedly direct evidence that the United States
puts fonvard in suppo~-tof its assertion that the Reshadat platform was used as a base for
U.S.Counter-Mernoria para.1.95.
123 See, StatementfMr. Salehin,VolVI, para.4.
124 See, ibid.
12' U.S .ounter-Mernoriapara.1.88(2).
126 Ibid.Exhibit105,p.20.
12' Ibid E.,hibit2, p.36.helicopter attackson merchant shipping is a ":;eaprotesby the Captain of a French merchant
vessel, theChaumont, concerning an incident that occurred on 4 March 1986 - again more
than eighteen months before the United States attacked ~eshadatl~'. This evidence cannot
however be considered asreliable, fora series of reasons.
3.80 First, the protest is written by the Captain of the Chaumont, who does
not claim personally to have seen the helicopters taking off from Reshadat. Rather, he is
reporting what he had been told by his watch officer, whoin hini was simply reporting what
his watch seamanhad told him. In other words, the Captain's"sea protest1'is no more than a
twice-removedhearsayaccount.
3.81 Second, the incident is reported as having taken place at 1758 hours
local tirne, on 4 March 1986. In the area wllere the Chaumontwas located, the sun sets at
about 1820 hourslocal time on 4 March. The attack thereforetook place shortly before sunset.
hanian helicopters were not equipped with night flight equipment'29.For this reason they
could only operate only in daylight and in good weather, from 30 minutes after sunrise to 30
minutes before s~nset'~'.
3.82 Third, the Chaumont was reported to be located at 25'47N, 52O43'E
when the incident occurred. That point is located at approximately 23 kilornetres from
Reshadat. Therefore,even in daylight and in good weatherconditions, it is highly unlikely that
it would have beenpossible from that distanclito see a helicoptertaking off from Reshadat.
3.83 A review of the U.S. Exhibits showsthat there is no independent record
of a single allegedIranian helicopter attack ona U.S. vessel during the entire Iraq-Iran war.
There did not even appear to be a perceiv'zdthreat of such an attack on U.S. vessels13'.
According to the most comprehensive sourcf:slisting alleged Iranian attacks and relied on as
Exhibits by the United States, the Iast repori:edIranian helicopter attack in the Iraq-Iran war
was on that on the Tenryu Maru, a Japanese vessel (with regard towhich sources agree that
128 Ibid .xhibi1IO.
See, StatementMr. Salehin,Vol. VI,par5.
13' See,ibid.,paras.5an7(vii).
13' See,para.2.46,above. the shots missed the vessel, there was no damage or injury and the vessel continued on its
journey to Kuwait). That incident occurred six months before the first U.S .ttack on Iran's
platforms. Whatis more, for over a year before 19October 1987,when Reshadat was attacked
by the United States, only one other helicopter attack is recorded, in February 1987on the
Turkish Cypriot product tanker, Sea Empress(with respect to which sources agree that there
was only minor damage,there were no injuries or casualties and the vessel continued on its
journey to Kuwait), and there is moreover conflicting evidence as to whether the vessel was
attackedby gunboats or heli~o~ters'~~.
3.84 There is therefore no evidence ofanyhelicopter threat to shipping in the
Persian Gulffor over a year before the first U.S. attack and for over a year anda half before
the second U.S. attack; and even before 1986, the reported attacks in the vicinity of the
platfoms were few in number and caused little damage. What is more, the U.S. assertion that
U.S. shipping was at ri~k'~~ finds no independent corroboration in the United States'own
Exhibits.
3.85 In an attempt neverthelesstojusti@ its attacks againstthe platforms, the
United States asserts that "on 8 October 1987, a U.S. Navy helicopter on a reconnaissance
mission in the central [Persian] Gulf was fired upon bya heavy machine gun on the Rostam
oilplatfomi. The U.S. helicopter did not return f~re"'~T.he United Statesannexes a statement
by Rear Admira1Bemsen describing this alleged incident135.There is however no report of
this incidentin anyof the other U,'S.Exhibits, including press reportsand sources which aim
comprehensively to list the different attacks andatternpted attacks aIlegedIy perpetrated by
Iran. This is most surprising given the prompt dissemination by the United States into the
press of reportsof any supposed Iranian act of aggression.
..
3.86 At the tirne of the alleged attack, the United States stated that the
helicopter had seen some shots being fired from the Reshadat platform but that "the
helicopter...left the area without shooting back because it was not certain whether the gunfire
'32 Accordingto U.S.PreliminarObjection,Exhibit6, tvesselwasattackeby gunboats;butaccording
toU.S. PreliminaObjection,Exhibit10,thevesselwasattackebyahelicopter.
133 U.S.Counter-Mernoria p, ra1.80.
Ibid .ara.1.51.
' Ibid.,Exhibit43,para.17.was aimed at it"136.In another U.S. document dated the dayafter the incident, it is stated that
the helicopter was fired on "by an unidentfled source vicinity Rostarn oil field"I3';and the
sarne language is repeated in the letter dated 9 October 1987 from the Permanent
Representative of the United Statesto the United Nations, addressed to the President of the
Security~ouncil"'. Thus, there is simplyno evidence of anyhostile act by Iranin connection
with this alleged incident. Moreover, the United States ignores the important question: what
possible right did a U.S. military helicopter have to approach Iran'scommercial oil platforms
at such short range?
3.87 FinaIly,the United Stateshas put fonvard no evidence of anyailegedly
incriminating equipment on boardthe Salrnailand Nasr platforms. It appears that the United
States did not even seek to recover any equipment or documentation from those platforms,
preferring instead to engage in wholesale desimction. In any event, there could not havebeen
any evidence of Salman and Nasr forming part of anoffensive military networkas they played
no offensive partin Iran's war effort, and there could not have been any evidence of any
helicopter or small boat attacks using these p1;itfomsas no such alleged attacks had even been
reported in the vicinity for over a yearand ahalfbeforethe attack.
3.88 In conclusion, this revicw of the United States' contentionsand alleged
evidence confirms that the platforms played no offensive military role in relation to the
conflict inthe Persian Gulf. The platforms were commercial installations serving an important
economic function, including trade with the United States, and Iran had a legitimate nght to
defend them. The United States has produced no evidence that the platforms were used for
extraneous, non-commercial purposes beyclnd the requirements of low-level local self-
defence. On the contrary, the few exarnples of factual evidence put forward by the United
.States,such as the documents allegedly fouiid on Reshadat after the event, merely confîrm
Iran's position that Reshadat was playing a perfectly innocuous role, one which was quite
normal and legitimate in the circumstances. The fact that it was only the key platforrns, upon
136 See, Iran'sMernorial,Exhibit64see, alsoibid .xhibit74,in which the U.S. helicopterpilot is
reportedas sayingththeIranians"rnighjtust have btestingtheirweapons".
13' U.S.Counter-MemoriaE l,xhibit78;ernphasi:added.
138 U.S. PreliminarObjection,Exhibit16. which al1 the other interco~ected installations depended for initial oil processing and
transport to export terminais, that were so thoroughly destroyed by the U.S. attacks, leaving
intactother structures which could equally well have served the aggressive rnilitp auryoses
allegedby the UnitedStates, is also suggestive. In short, the United States had no reason to
attackthe platforms, unless it was to cause disruption to Iran'soil production capacity, thereby
in effect assisting Iraqin its war effort139.
I
139
With regardto the Reshadat complex,the United Statesset out to attack the central productionplatform
(R7) the same platform whichhad been attackedtwice by IrIt wasR4 which was the onlyplatfom in the
i complexwith a radar; and was also on R4 that the bulk of the rnilitarypersonnel and equipmentwas located
(see,Statement of Mr. Salmanian, Vol. IV, paras. 3-4). However, the United States admits that it had not
intendedto bornb R4, butthat this platform was attacaetarget of opportunity"(Iran'sMernorial,Exhibit
69). The United States also targeted the main platfoms in the Salman and Nasr complexes,causing maximum
longterm economicdamage. CHAPTER4. THEOCTOBER 1987 ATTACK ON THE RESHADATPLATFORMS
Section 1. Introduction
4.1 It is undisputed that on 19 October 1987the United States carried out
I the attack which destroyed the Reshadat platforms. There is cornpelling evidence that this
attack wasnot a spontaneous reaction to events that had occurreda few daysearlier, but that it
hadbeen plamed for months in advance as part of the United States' predisposition to treat
Lranwith hostilitinthe context of the United States' supportforIraq during the Iraq-Iranwar.
4.2 Prima faciet,he destruction of Iran's oil platfoms was an inherenîly
illegal act which violated Article X(of the Treaty of ~rnity'. It follows that the United
States bearsthe burdenof provingthat its actions were legallyjustjfied. Given the gravity of
those actions which involved the use of force, the onus on the United States is particularly
heavy.
4.3 In an attempt to meet this burden, the United States has relion a
mixture of circumstantial evidenceand pure speculation to support the allegation that its
1
destruction of Iran'splatfoms was a necessarresponseto a missile attack that had occurred
l
three days eariier against the SeaCityeThat missile attack is said, rather vaguely,either to
have corne from Iranian held territory on the Fao peninsula or from another Iranian missile
site "in the Faorea". Briefly stated, the United States advances the following assertions to
l
I legitimizeitsactions.
4.4 First, the United States arguesthat in 1986 Iran captured Iraqimissile
sites in the Fao peninsula from which the missilench issaid to have emanated. Nowhere,
however, does the United States actually identifi with evidence the missile site from which
the missile was supposedly launched2.
1 The legal implicationsof theattackwithtothTreatyofAmityare discussin Chapte6sand
7, below.
i 2 U.S.Counter-Mernorialp,ara.1.54. 4.5
Next, the United States alleges that Iran had Silkworm missiles on the
Fao peninsula or in the Fao area, although no proof is offered for this contention3. In
particular,the United States fails to address the contemporaneous evidence issuedby the State
Department and other sources indicating that, to the extent that Iran possessed Silkworms,
these were located alongthe Strait of Homu;! hundreds of kilometres to the south4.Nor does
the United States disclose that Iraq maintained afourth site on Fao which went uncaptured by
Iran.This site was pointed southwards towards Kuwait, meaning that it was entirely possible
for Iraqto have launchedthemissiles in question.
4.6 Third, the United States argues that the operational range of a
Silkworm, contrary to evidence which the United States itself has placed in evidence, was
more than 95 kilometres5. The conclusion urhichthe United States seeks to establish is that
such missiles could therefore have been firedfromthe Fao peninsula which wasmore than 95
kilometres from the Sea Isle City B.ut the contemporaneous record shows the contrary6.
Moreover, to the extent that the United States argues that aSilkworm could theoretically have
an operational range greater than 95 kilometi-es,the United States fails to point out that Iraq
itself had such missiles whose range had been upgraded. The United States does not even
address the possibility that the missile that tiit the Sea Isle Ci@could have been fired from
land-basedsites in Iraqwhere there were extensive Silkworm inventories.
4.7 Fourth, the United States offers statements from Kuwaiti observers on
Faylakahand Bubiyan Islands whoclaim thai:they saw missiles coming from the direction of
the Faopeninsula7. Wfiat the UnitedStates failtodisclose, however, isthe facthatany such
observers, if they really did see the missiles in question, could not have witnessed the actual
Iaunchof the missiles because they were too far away. Nor does the United States discuss the
fact that missiles do not have tolyin a stra.ightline to reach their target. Such missiles are
often programrnedto fly ina curved, or dog-leg, trajectory.Hence, the mere fact that someone
spots a missile overhead coming from a cenain direction does not constitute evidence as to
where that missile was Iaunched from. The missile in question could perfectly well have
3 Ibid.
4 See, Iran'sMernor, xhibit67.
5 U.S . ounter-Mernoril,aras.1.76-1.77.
6 See,Section3, below.
7 U.S.Counter-Mernorial,para1s..69-1.70. originated fromthe Iraqi missile site which remained operational onan unoccupied portion of
theFao peninsula.
4.8 Fifi, the United States rules out the possibility thatthe missile could
have been fired from an Iraqi aircraft on the basis that missile fragments said to have been
recovered by Kuwaiti authoritiessome ten rnoothsprior to the events of October 1987 (but
subsequently destroyed) were not from air-launched missiless. Surprisingly, however, no
fragments were recovered fiom the missiles which hit the Sea IsleCity or the Sungari in
October 1987. Thus, it is impossible to Say what kind of missiles were used on those
occasions.
l
4.9 In addition, the United States alleges that on 16 October 1987 its
AWACS aircraft failedto spot anylraqi planes capable of firing a missile in the area9.But the
United States has not provided any information about the location of its AWACS or their
operational capabiiities on the day in question. The Court is simply invittoaccept at face
value the United States'assertions without any corroborating proof. Moreover, there is no
evidence that theAWACS,wherever they were, were ableto trackthe actual missile whichhit
the SeulsIe Cip. IfAWACS could notdetect amissileof the sizoef a Silkwom, they could
equally well have failed to spoa small aircraft firing a missile, as happened with the U.S.S.
Stark N.or does the United States discuss the possibility that the missile could have been
launched from a ship - indeed, an Iraqi ship-operating in the Khor Abdullah north of the
island of ~ubi~an''.
4.10 Finally, the United States has introduced various satelIite photographs
which purport to show an Irania mnissilestaging mes". These photographs are totally
jnconclusive as to the components that they are said to identifi. Moreover, the United States
has not demonstratedanyconnection betweenthe so-called "stagingarea" and the actual firing
of anymissiles of thetype said to have originated from theFaopeninsula.
i
8
I 9 Ibid.,para. 1.71.
IO Ibid .,ra. 1.74,
1I Thesepointsarediscussedinthe Reportof Mr.Briand,VI, para1.6-1.7and3.6-2.7.
See,U.S.Counter-Mernoripa,a. 1.75andExhib94. 4.11 In the following sections, Iran will expand on each of these points to
show that, at the endof the day, the United States has simplyfailed to prove that the missile
which hit the SeaIsle Ci@was an Iranian rni:;sile.Although Irancannotbe expected to prove
a negative,it wiIlalso demonstrate that Lraqrnaintainedan uncaptured missile site on the Fao
peninsula which was pointed towards the soiith -in other words, towards Kuwait - and that
Iraq possessed ship-to-surface and air-to-surface missiles capable of striking Kuwaiti waters
as well. It follows that it was entirely possible that the missile which hit the Sea Isle Ciq, as
well as the other missiles to which the United States refers, could have originated fiom Iraq.
The fact that Iraqhad every interest to "intemationalize" the confiict in 1987 by provoking
third Stateswill bediscussed in Section5 below.
4.12 While Iran is confident that, even on the evidence it has submitted, the
United States has faiied to satisfy its burden of proving that Iran was responsible for the
missiIe attack on the Sea Isle Civ which triggered the destructionof the Reshadat platforms,
Iran is submittingin VolumeVI to this Reply an expert report prepared by Mr. Jean-François
ri and"M. r. Briand is a former French naval officer andan expert in missile technology. His
report discusses the materials introduced Iiythe United States relating to missiles and
confirms two important cûnclusions. First, on the basis of the information provided by the
United States, it cannot be concluded that the missile that struck the Sea IsleCi@ -or the
Sungari for that rnatte- came frorn Iran. Second, Iraq had the capability to launch the sarne
kind of missile attack, and the United States has not show that Iraq was not at the origin of
the incidentsinquestion13.
4.13 Iran is aIso furnishing three further statements by Colonel Mahrnood
Farshadfar, Mr. Mohamrnad Youssefi, and Colonel Abdol-Hossein Pakan which provide
furtherinformation undermining the U.S. thesis. These statementsare attached as Exhibits in
Volume VI.
12 Reportof Mr.Briand,Vol. VI.
13 Ibid.,para1.7and2.13. 4.14 Colone1Farshadfar, an TranianAir Force officer,addresses the satellite
photographs introduced by the United States and explains how they in no way demonstrate
either the presence of Iranian Silkwom (HY-2) missiles in the "staging area" said to have
I been photographed or that such missiles couldhave been fired fiom Iranian-h portions of
the Fao Peninsula towards the Sea Isle Ci&. Mr. Youssefi is an Iranian missile expert. His
I testimony reveals that Iran had noSilkwonn missile capacityon the Fao peninsula capableof
striking at Kuwait. Colonel Pakanis an Iranian Air Force officer. His statement, which
discusses the air-bornemissile capability that Iraq had, is based on information that Iran
gathered duringthe courseof theIraq-Iranwar.
4.15 Together, these staternentsconfirmthe conclusion that the United States
had not demonstrated that the missile attacks in question were of Iranian origin. They also
affirm, together with other independent reports that are being furnished with this Reply, that
Iraq did have such capabilities and that it was entirely plausible that the events which
precipitated the United States' retaliation against Iran'stforms were instigated by Iraq.
4.16 As a matter of fact, Iran denieç anyand al1responsibility for the missile
attack that hit the Sea Isle City .ut there is an additional point, which the Court is
respectfùlly asked tobear in mind. For whatever the provenanceof the missile launches relied
upon by the United States to justi@ its attack, the United States has not shown any link
between the Reshadat platforms that were destroyed and the attacks in question. These
platforms were located over 500 kilometres southeast of the Fao peninsula. Yet thisdid not
prevent the United States frorn purposely destroying the central producing platforrn in the
Reshadat cornplex,together with a nearby auxiliary platform that was not originally intended
to be attacked bythe United States,in order to shut down productionfrom al1the surrounding
oil fields and maxirnizethe economic damage to Iran. Section2. The Failureof the UnitedStaitesto demonstratethatIranhad Silkworm
Missiles intheFao Areawhicli couldhave beenfiredat Kuwait
A. The absence of credible U.S.evidence
4.17 In its Counter-Mernoriiilthe United States asserts that Iran maintained
missile sitesither on captured parts of the Fao peninsula or in the "Fao area" from whichthe
missile that hit the SeaIsleCiv is alleged to have been launched. To support this assertion,
the United States has introduced satellite photographs of a so-called Iranian missile "staging
area" located in Iranian territory. These photographs were purportedly taken on 9 October
1987 and 16October 1987,the Iatter being the day that the Sea Isle Citywas struck. As will
be seen below, the photographs are not only of such a poor resolution as to preclude any
identification of missiles, they also fail to estabIish in any way that Iran actually fired a
Silkwonn on the day in question from that cirany other, undisclosed, site in the Fao areaIn
short, no evidence has been offeredlinking diemissile launches to any particular site or to the
"staging area".
4.18 The circumstances in ~vhichIran captured various Iraqi missile sites on
the Fao peninsula are described in the Staternent of Mr.oharnmad Youssefi which appears
inVolume VI.
4.19 As Mr. Youssefi explains, it is tme that Irancaptured three Iraqi missile
sites located on Fao as part of its counter-offensive during the course of 1986. These sites
contained concrete shelters and fixed launching pads for Iraqi missiles. Due to the fact,
however, that the Fao peninsula was subject to some of the most intense fighting of the war
throughout 1986and 1987 and that there werc technical limitations to Iran's capacity to deploy
missiles frornFao, itwas impossible for Iranto usethese sites'".
4.20 Despite the sophisticai:ednature of the United States' resources in the
area including,if the United States is to be tleiieved,AWACS surveillance and the capability
to photograph Iranian "staging areas" on the veryday the Sea IsleCi0 was stmck, the United
14
Staternenof Mr.YoussefiVol.VI,paras14-15. States has failed to produce a single piece of evidence showing either the captured Iraqi sites
that Iran wasaid to have used or the presence of Iranian Silkwoms in other parts of the "Fao
area". Thus, there is simply no proof for the U.S.contention thatwas an lranian Silkworm
missile fired from the Fao areawhich was responsible forthe darnage inflicted on tSea Isle
! cityI5.
4.21 Even the satellite images producedwith the U.S. Counter-Memoriai do
not purport to show a missile launching site.Al1that these photographs are said to depict is a
"stagingarea".But a staging area for what?
4.22 Iran was in the midst of a war that had been imposed on itby Iraqi
aggression dating back to September 1980.It is thus hardIy surprising that in the mid-1980s
Iran had military installations on its territory near the Iraqi front. But introducing blurred
pichires of an alleged Iranian installation hardly constitutes proof either that Iran possessed
Silkworm missiles at the northern end of the Persian Gulf or that such missiles, if they existed,
were transported to other sites so that they couIdbe used to attack the Sea City T.here is
simply no link between the installation said to have beenphotographed and themissile launch
which triggered the U.S.attack on the Reshadat oilplatfoms.
1 4.23 The photographs in question are of such poor quality that they do not
prove anything. As Mr. Briand's Report concludes, the photographs do not permit one to
I
I distinguish the components said to comprise the "staging site"; nor do they suggest that the
site was evenoperational16.
1 4.24 Colonel Farshadfar confirrns these observations. After analysing in
detail each of the graphics introduced by the United States, he concludes that the photographs
do not depict a site of the configuration that one would expect either foHY-2 (Silkworm)
missile launching area or a "staging area"". Photographs of sheds or trucks prove nothing
l5 Facingpage42 of its Counter-Memoril,heUnitedStates has placmapwhichpurportsto show
missileattacks emanating locationsbothintheoccupiedportionof theFaoPeninsulaandareasto theeast
Silkwormmissilesateitherofthesesites.he UnitedStatesprovidesno evidenceshowing the presenceof
16
17 Reportof Mr.Briand,Vol. VI, para.1.5.2.
Statemenof Col.Farshadfa, ol.VI.since they do not identiQ what is contained therein. Moreover, the alleged "missile
transporters" purportedly identified by the United States do not possess the same
characteristics that would be found if Silkworm missiles had actually been present or if the
areawasindeed a missile site''.
B. The existenceof evidence contradictingtheU.S.thesis
4.25 It should corne as no surprise that the United States has failed to
demonstrate the existence of Iranian Silkworm missiles either on the Fao peninsula or at the
alleged "stagingarea" or indeed at any other Iranian site in October 1987.This is because ail
of the evidence at the time pointed to the fact that, to the extent that Iran possessed
Silkworms,they were positioned farto the soiithalong the Straitof Homuz.
4.26 In Exhibit 67 to Iran'sRfemorial,Ira iirnisheda document prepared by
the United States Department of State in October 1987 - i.e.precisely at the relevant time-
which showed the depioyment of Iranian Silkwormsalong the Strait of ~ormuz'~.Despite the
fact that this document showed other Iranian military bases fiirther north, there was no
suggestionthat Iranhad stationed Silkworms in thenorthern reachesof the Persian Gulf or on
the Faopeninsula. Moreover,the State Depanment document indicated thatthe range of Iran's
Silkworms was only 85kilometres, far Iesstlian the distance between the captured Iraqi sites
on Fao and the SeaIsle Cis.
4.27 This item was far froni an isolated example. On 28 March 1987, for
exarnple,Jane'sDefence Weekiyreached thesame conclusion, namely, that Iran'sSilkworms
were locatedalong the Strait of~orrnuz~~.Furtherevidence taken fromJane'spublications on
6June 1987and 1August 1987shows the same thing. There was no suggestion that Iranhad
Silkworms in the northern Persian GU~P',anclthe range of the missiles in question was stated
to be 80kilometres at most.
1s Ibid .aras.6-23.
19 Iran'MemorialE, xhibit67.
20 See, Exhibi19,Vol. II.
21 Exhibit20 and2 1Vol.TI. 4.28 Further documents jintroducedby the United States show a consistent
pattern. For example, in Exhibit 97 to the U.S. Counter-Mernorial the United States has
included an extract from Cordesman and Wagner's TheLessons of lWOdern War: TheIran-
Iraq War (1990). This source, at page 274, indicates that Iran'sHY-2 (Silkworm) missiles
were only located along the Strait of Worrnuz.It also confirms that Iran'sSilkworms had "a
maximum range of 95 kilometers" but that tfiey were "rnost effective at ranges under 40
kil~rneters"~~.
C. The existenceof an Iraqi missilesite on an unoccupiedpart of the Fao peninsula
4.29 As the discussion above reveals, the United States has been highly
selective about the information it has elected todisclose to the Court concerning the situation
on the Faopeninsula in the autumn of 1987.Notable in this regard is the United States'failure
to disclose that, when Irantook over portions of the Fao peninsula, itdid not capture a fourth
Iraqi missile site located just to the west of Iranian-held territory. Mr. Youssefi'sStatement
provides the details of this site together withan aerial photograph and a map indicating where
it was 10cated~~.
4.30 The Iraqi site became hlly operationalafier Iran occupied portions of
the Faopeninsula. It contained a missile launching pad which, significantly, was oriented at a
165"anglewhich meant that the missiles launched fromit were pointed towards the south, not
towards As will be explained below, it was thus entirely possible for Iraq to launch a
missile fromthis site which could have struck at Kuwaiti territory.
4.31 There is also evidence documentingthe fact that during the 1980s,Iraq
had modified its own Silkworm missiles soas to increase their range. If referenceis made to
the document that appears at Exhibit 22, it can be seen that a missile expert affiliated with
Jane's reported as follows:
22 U.S .ounter-MernoriaExhibit97, pp.274-275
23 Staternenof Mr.Youssefi,VolVI.
24 Ibidp,ara.9. "Iraq developed extended range 'Silkwom' variants in the mid-1980s, known
as FAW-150and FAW-200with ranges of 150 and 200 km respectivel...
Basically, the Iraqi FAW-150/200 design concept was to extend the
'Silkworm's' liquid propellantnks, in much the same way that Iraq extended
the tanksof theSS-1 'Scud B' to make the extended range ~l- uss se bailistic
missilew2*.
Iraq's useof such weapons becameal1too fxniliar during its subsequent conflict in Kuwait in
1990,butthat didnot preventIraqfromutilizing suchweaponsthreeyearsearlier.
4.32 With respect to the location of missiles in October 1987,therefore, the
record shows the following:
First, no evidence has been introduced by the United States actually showing
operational Iranian missile sites, on either the Fao peninsula or on Iranian territory,
capable of strikingat Kuwait.
Second,the areaphotographed by thi:United Statescannot be said to be a missile site
based on the information provided;Iior is there anyevidence of IranianSilkwoms at
this or any other site.
Third, the United States'own evidence points to the existence of Iranian Silkworms
in the Strait of Honnuz, but no m:issilesat the northern end of the Persian Gulf,
whether on Iranianterritoryor on oc1:upiedportions of the Faopeninsula.
Fourth, Iraq did have anoperational missile site locateata position on Faojust to
the west of areas occupied by Iran. This site contained a fixed missile launching
system aimed at Kuwait. Moreover, Iraq had engaged in extensive missile attacks
against Iran and "friendly" third States and possessed a significant arsenal of such
~ea~ons~~.
26 Exhibit22, Vol.p.20.
See,para.2.51,above. F$h, Iraq possessed Silkwom missiles with anupgraded range capability of 150 to
200kilometres, which waswell within the range of Kuwait'sharbour.
Section3. TheQuestionofRange
4.33 In the factual Annex to Iran's Observations and Subrnissions, Iran
pointed out that the maximum range oa Silkwom missile wasstated to be95 kilometres, but
that the effective range was fact much les-usually in the range of 80kilornetres. han then
went on to describe how the nearestpoint on Iranian-held territory on the Fao peninsula in
1987was 98 kilornetres fiom the Sea IsleCi&, thus placing the vesse1out of rangeof any
hypothetical Iranian missile launch. Several independent sources were funiished which
confirmedthese conclusions.
'
4.34 The United States simply ignores al1of this evidence by arguing that
"[tJhe fact is that they travateleast98 kilometers"*'.The only support introduced by die
United States for this bald assertion is the allegation that Kuwaiti observers on Bandyan
FaylakahIslands saw missiles that were said to have been firedtowards Kuwait "approaching
fromthe Faw area"28.
4.35 In the following section, Iran will address the deficiencies which
undermine the validity of the statements made by Kuwaiti military personnel regarding their
contentions that they saw missilescoming frorn the Fao area. In this section, Iran will
dernonstrate again that the factual assertions concerning the range of Iran's missiles upon
which the U.S. argument is predicated ignoreal1of the contemporaneousevidence.
l
4.36 It should corneas no surprise that whena manufacturer of a miss-ins
this case, Chin-advertises that the missile hasan operational range of a particular distance,
this distance is likelyto be the maximum range of the missile's capability.Suppliers are not in
the habit of understating their product's performance.
27
28 U.S.Counter-Mernoripl,ra.1.76.
Ibid. 4.37 In the case of Chinese HY-2, or Silkworm, missiles, the maximum
range was stated to be 95 ki~ornetres*~I.ran has already pointed to the fact thata number of
authoritative sources in 1987placed the effective range of an Iranian Silkworm at much less
than 95kilometres. Forexample, Jane'sDeferrceWeeklynoted on 6 June 1987that:
"In its sales brochure,the missile's rangeis stated as 95 km, although Western
analystscredit the range as no more than 80krn,similar to that of the Soviet SS-
N-ZC~~O.
4.38 Two experts whom the United Statesrelies on, Cordesman and Wagner,
make a similarobservation.They state that:
"The Silkworm is most effective at ranges under 40 kilometers, but it has an
effective range of 70-80 kilometersif a ship or aircraft can designate the target
and allow the Silkworm to reach the point where its on-board guidance can
home inon the targetH3'.
4.39 Two further technical clocumentssupplied by the United States attest to
the limited range of a Silkworm. The first is a brochure for the HY-2 (Silkworm) missile
produced by POLYTechnologies. Under the missile's characteristics, therange is indicated as
"20-95kt-11") ~he. second is an extract from Jane's Weapons S'stem s988-1989. Here, too,
the rangeof a Chinese HY-2missile is recorded as being "20-95km"33.
4.40 Thus, there is extensive independent evidence introduced by both
Parties which contradicts the United States' theory that han possessed missiles of sufficient
range to stnke the SeaIsleCity.
4.41
In thefaceof this evide:nce,the United States has fallen back on a report
byan Australian military analyst prepared in 1997,ten years afier the events in question. That
See,Statementof Mr.Youssefi,Vol. VIwtiichrefers to the Chinesemanufacturspecificationsfor
themissile.
30 Exhibit20,Vol. II.
31 U.S.Counter-MemoriaE l,xhibit97, p.274.
32 Ibid.,Exhibi85.
33 Ibid.,Exhibit98.
i
i report is based on no more than a hypothetical simulation of an HY-2 missile launch
performed years after the fact. Such after-the-fact suppositions can in no way overcome the
weight ofthe contemporaneous evidence which uniformlyreflects a different view.
4.42 Even if one accepts (arguendo)the supposition that a SiIkworm missile
could hypothetically be used with effectiveness at ranges greater than 95 kilometres, this still
would not prove where themissile that hit the Sea IsleCib came fiom. This is so for several
reasons.
4.43 Firsr of aI1,the United States has admitted that no missile fragments
were recovered either fiom the attack on theSeaIsle Civ or, for that matter, on the Sungari.
As theReport of Mr. Briand notes, this lacuna in the U.S. submissions is ~ur~risin~~~.
Whatever its cause, the end result is that it is impossible for the United States to identify what
kind of missile hit these vessels. There couid be any number of possibilities: air-to-surface,
ship-to-surface, land-to-surface. But there is no evidence thatthe missiles in question were
Silkworms, much less that they originated from Iran.
4.44 Second, as has been seen, Iraq also possessed an operational missile site
in the vicinity ofFao. This site was equipped with a fixed launcher, which was pointing at
Kuwait, and was only 103 kilometres frorn the point where the Sea Isle Cig was struck. It
follows that, to the extent that the United States now argues that a Silkworm could have
travelled 105kilometres3',it couldjust as plausiblyhave originatedfrom this lraqi site.
4.45 Third, as has been shown, there are independent reports by missile
experts working for JaneLithat during the mid- Z980s, Iraq had acquiredthe abilityto upgrade
its Silkworms so asto extend their range to 150kilometres and Once again, therefore,
itwas entirely possible that IraqcouId have been the origin of the attack on the Sea IslCis.
As the Report of Mr. Briand confirms, "Les arguments développésdans les annexes au
34 Reportof Mr.BriandVol. VI, para1.2-1.4.
35 U.S.Counter-Mernoriaplara1.77.
36 See,Exhibit22, Vol. Il. Contre-Mémoiredes Etats-Unis ne permettent pas d'affirmer queles missiles incriminésn'ont
pas pu être tirésar l'1rakn3'.
Section4. TheTestimonyof KuwaitiTvIilitary Observersdoesnot establishthe
Provenanceof the Missilesin Question
4.46 The United States has triedto compensate for its iack of evidence
demonstrating that Iran had the capabilityof firing the missile that hit tSea Isle Ciryby
introducing the testimony of two Kuwaiti military observers who claim that they, or forces
under their cornmand, saw various missiles which were launched towards Kuwait coming
fiom the Fao area3'.The conclusion that the United Statesdraws from this report is that Iran
must have fired the missiles in question.
4.47 There are a whole host of reasonswhy this report is simply not credible
evidence ofthe provenance ofthe missiles.
4.48 Iran has aIready pointed out that the United States itself admits that
there are no missile fragments from either the 15October 1987 missile attackon the Sungari
or the 16October 1987attack on the SeaIslt? City T.hetwo Kuwaiti officials who signed the
reportannexed to the U.S. Counter-Mernorial go hrther. They state that nor are there any
I missile fragments remaining from the January 1987 and September 1987 missile launches,
I
i which were aiso supposedly directed at :Kuwait by Iran. AI1 the evidence concerning
l fragments was apparently lost when Iraq ii~vadedKuwait in 1990~~ . he Court will thus
appreciate that there is nowaythat anyof the Kuwaiti officials'testimony regarding the nature
l
1 of themissiles thawere firedcm be independentlyverjfied.
4.49 That being said, it is i:mportato read carefully what isalleged in the
observers' report. Forexample, it is alleged that on 21 January 1987 and 24 January 1987
Kuwaiti Air Defence personnel stationed oii Faylakah Islandtracked on radar and visuaily
i
observed a missile in flight "originating fromthe directionofthe Faw peninsula"40.
37 Reportof Mr.BriandVol.VI,para.2.13.
38 U.S .ounter-Mernoriai,paras. 1.69-1.70anc!Exhibit82.
39 Ibid., pa10.
40 Ibid.para.4.
! 4.50 At the outset, it should be noted that Faylakah IsIand is some 60
kilometres south of the Fao peninsula. As the Report of Mr Briand notes, it was thus
impossible for anyone stationed on Faylakah to haveobservedthe actuallaunch of a missile4'.
At most, al1that anobserver could Sayisthat he sawa missiIefiying in a general direction.
4.51 Missiles, however, do not have to travel in a straight line. Indeed, it is
cornrnonpractice for a missile to be programrnedto turn, or take a dog-leg, during its flight in
order to strike a particular target. The Report of Mr. Briand concludes, therefore, that it was
entirely possible for a missile targeting Kuwaittsharbour to belaunched from the remaining
Iraqi site in thevicinity of Fao and to be prograrnmed soas to fly over both Bubiyan and
Faylakah blands en route to its destjna~ion~~M . erely spotiing a missile flying in a certain
direction overhead is not probative evidence of where that missile was fired frorn. This is
particularly the case when the records and specifics of the Kuwaiti radar tracking systems,
which are said to have followedthe missiles, have notbeenproducedby the United States.
4.52 The sarne deficiencies undermine the statement thatmissiles were seen
being launched "from the Faw peninsula" on 2 September, 4 September and 5 September
1987~~.Once again, the Report of Mr. Briand notes that, even fiom Bubiyan Island, it is
doubtfulthat the actual launch of a missile could be observed withprecisionJ4. At most, only a
short segment of a missile's flight could reasonably have beenseen, given the small profile
that a missile inflight presents.
4.53 Of course, much of the Kuwaiti account isno more than hearsay and
must be discounted as such. Nowhere is it alleged that theauthors of the report themselves
witnessed theevents of January or September 1987,or that of 15 October 1987 against the
Sungari. They simply rely on other, undisclosed, reportsof unverifiable origin from other
individuals.
41 Reportof Mr.Briand, ol.VI,para.1.5.1.
42 Ibid., par2.9.
43 U.S.Counter-Mernoria l,xhibit82, paras.7-9.
43 Reporïof Mr.Briand,Vol. VI,para..S1. 4.54 The onlyaccount thatpiirportsto be fiom an eyewitness is that of one of
the signatories to the report, General Al-Suwaiti,concerning the events of 16 October 1987.
On that day, GeneralAl-Suwaiti states thathi: was visiting Auha Island, a small island to the
south-eastof Faylakahwhich iseven furtherawayfrom the Fao peninsulathan ~a~lakah~'.He
says that he observed "a missile flying overhead, between Faylakah Island and Auhat [sic]
Island, in a south-south-easterly direct-oorjginatingfrom the direction of the Faw peninsula
and flyingin the direction ofthe Sea Island ~eminal"'~.
4.55 Due to the possibility that a missile could follow a curved trajectoit,
is impossible for someone to say with any certainty where the missile was launched from
when the person in question is over 60 kilornetres away fiom the launch site. Moreover,he
does not even Saythat he saw this missile actually hit tSea Isle Ci&. It follows that the
testimony adduced by the United States in thisrespect cannot be regarded as dispositive as to
the provenance of such missiles. This conclusion is reinforced by the fact that the United
States has not demonstrated the existence of[ranianSilkworm missiles in the Fao area at any
time during the relevant period.
Section5. Iraq'sMissile Capabilitiesa.ndits Interests in"internationalizing"its
Confiictwith Iran
4.56 At this juncture, it is worth recalling that the United States bears the
burden of proving that its destruction of the Reshadatplatforms was justified as a matter of
self-defenceand that Ira n as responsible forthe missile which struckthe SeaIsle City,which
triggered the U.S. response. Based on the foregoing discussion, Iran believes that it has
thoroughly rebutted the theories advanced irithe U.S. Counter-Mernorial pointing to Iran as
the source of the missile.While it is not up to Iranto prove where the missile that hitthe Sea
Isle Ci@ camefiom, it may be instructive to refer to Iraq's capabilitiesin this respect in order
to place the issue inproper perspective.
45 For thelocationof Auha(or Awhah)Island,see, U.S.Counter-MerMl,ap1.10.
46 U.S.Counter-Mernorial,Exhibit82,par14. A. Iraq's missilecapabilities
4.57 In the preceding sections, Iran has introduced evidence which
establishes the following:
• Iraq had a well-developed Silkworm missile capability at the time of the events in
question.
• Iraq possessed an operational missile site on the Fao peninsula just to the west of
areas occupied by Iran in 1986and 1987.
l I Thatmissile site was oriented in a southerlydirection towardsKuwait.
Iraq had also dernonstrated the ability toupgrade the range of its Silkworm missiles
in the 1980sto cover ranges up to 150or even200 kilornetres.
4.58
In addition,the evidence also establishes the following:
Iraq possessed ship-to-surface Silkworm-typemissiles which it had deployed against
Iranian and ather ships during the Iraq-Iran War. In particular, Iraq operated OSA-
cIassvessels inthe Khor Abdullah watenvay north of BubiyanIsland.
None of the arguments advmced by the United States based on missile fragments
from earlier launches allegedly analysed in Kuwait are inconsistent with the
possibility thathese kinds of missiles fired from naval vessels could have stmck the
Sea IsleCi&.
• Iraq also possessed air-to-surface missiles which had been used throughout the war.
These missiles had been deployed not only against Iran, but also against vessels
belonging to third States including the U.S.S.Stark. Sinceno fragments were recoveredfiom either the SeaIsleCity or Sungariincidents,
it is impossible to rule out the possiliility that both vessels were hit by air-launched
Iraqi missiles.
4.59 The fact that Iraq'sinveintoryincluded STYXmissiles which were fitted
on OSA-class vessels was well knownby 1987 and has been confirmed by the Report of
Mr. ri and^ 'hese missiles were also kni~wnas "Silkworms" and were adapted from
Chinese HY-2and C-601
4.60 Aithough Iraq'saccess to the Persian Gulf was limited, its OSA-class
vessels operatedin areas aroundBubiyanIslaridand tothe north ofFaylakah. As the Report of
Mr. Briandmakesclear, it was perfectly possible for Iraq to have launched missile attacks
directed towards the harbour at Kuwait from this type of vesse1and for the missiles to have
overflown look-out posts on Faylakah and~u'bi~an~~.
4.61 It was also cornrnon knowledge that Iraq possessed air-to-surface
missiles which could be fitted on to military aircraft such as Mirage F-1or Super Etendard
fighters, mid-rangebombers and even modifir:dcivilian planes such as the Falconjet.
4.62 Perhaps the best knovm example of Iraq's use of airbome missiles
concemed itsattack on the U.S,S.Starkon 1;'May 1987,just a few months before the events
of October. The conventional wisdom was that the missile that hit the Stark had been fired
fiom an Iraqi Mirage F-1 fighter. But, Colonel Pakan notes, Iranian rnilitary intelligence
confirmed that the attack had actually been carried out by a small, modified Iraqi civilian
aircraftS0.
4.63 The United States has endeavoured to show that the missiles which
were fired towards Kuwait, includingthe missile that hit the SeaIsle Ci@, were not launched
frorn Iraqi aircraft.he United States bases its conclusion on the allegation that the missile
47 Reportof Mr.Briand,Vol.VI, para.2.2.
48 Ibid.
49 Ibid.para.2.8.
50 Statementof Col. PakaVol. VI, para.9. fragments recovered from the January and September missile launches did not have the type
ofairfiame found on air-launched missiles and that on 16October 1987,the day the Sea Isle
City was hit, U.S. AWACS didnot detectany iraqi aircraft operating in the northern Persian
GU~ lP
4.64 There are several flaws to this argument. With respect to the January
and September incidents,the United States has acknowledgedthat no missile fragments exist
for independentverification because theywere lost when Iraq invaded Kuwait in 1990. With
respect tothe missile launches on 15 and 16 October 1987, it is said that no fragments were
ever found. Thus, it is impossible to mleout the possibility that the missile that struckthe Sea
IsleCiry was an air-launched missile.
4.65 As for the United States'argument that its AWACS did not spot any
Iraqi aircraft operating in therea on 16 October 1987, the information provided by the
Respondent is simply insufficient to support the conclusion for which it is advanced. For
example, the Court is given no information about the location or operational capabilities of
AWACS on the day in question. It is expected to accept at face value the U.S. assertions.
Moreover,as the Report of Mr. Briand pointsout, there is the unexplained questionof how, if
the United States did have AWACS capable of monitoring the northern Persian Gulf at the
time, they'did not detect the flight path of the missile that hit the Sea Isl e +iv5*. s.
Mr. Briandobserves, if an AWACS was incapableof spotting and tracking a missile launch,it
could equally well have missed a low-profile Iraqi fighteror a modified civilian plane armed
with missiles53.
4.66 What is known is that Iraq possessed missile capabilities on land (the
uncaptured fourth site on the Fao peninsula), sea (small OSA-class vessels) and in the air
(bombers, fighters and Falcon jets).Any one of these could have been the source of the
missile that struck theaIsle Ci&.
51
52 U.S.Counter-Memorialparas1.73-1.74.
53 Reportof Mr.Briand,VolVI,para1.6.
Ibid.,para.2.7. B. Iraq'sinterestin "inti:rnationalizing"the conflict
4.67 In response to this possibility, the United States asserts that "it would
have been unwise and contrary to its interests for Iraq to attack oil tankers in Kuwaiti
waters"54.This oversimplistic view of matter:;fails to take into account Iraq'sgenuine interest
at the time to furtherengage its neighbours and the United Statesin the conflict.
4.68 Chapter 2 has already discussed Iraq's predilection for attacking
"fiiendly" targets during the courseof the Irm-Iraq war. These matters are also addressed by
Professor Freedman in his ~e~ort". Suffice it to recall here that there are several weil-
docurnentedexamples where iraq attacked vessels or installations belongingto its allies.
4.69 These included a tanker chartered by Kuwait, a Saudi drilling supply
vessel, another tanker travelling from Saudi Arabia to Kuwait, and various European and
other vessels which were dealing with Kuwait. In 1988, Iraq fired on Danish supertanker
leaving Saudi Arabia with Silkworm missiles, and two other Silkwoms were fired by Iraq on
a U.S.-led convoy of reflagged Kuwaiti tankerss6.
4.70 The missile attack on the Starkis another such example. Although this
incident was explained away asa "rnistake",the evidence is not so clear-cut. As Commander
David Carlson, the Comrnanding Officer of n U.S. naval frigate operating in the Persian Gulf
at the time, observed:
"Ifthe attack was intentional, i:henit was a successhl ploy to get us [the United
States] involved insorting out.their [Iraq's]surface picture through the process
of elimination that would be niade possible by greaterco~~eration"~'.
4.71 During 1987, Iraq wai; in a particularly vuinerable position in its war
against Iran .t had lost portions of the Fao lieninsula and was suffering from the debilitating
54 U.S . ounter-Mernorial,para. 1.66.
55 Reportof Prof.Freedman,Vol. II,paras.46-19.
56 See,para. 2.51,above.
57 Iran'sMemorialAmex 55. effects of a prolonged conflict with Iran. Lraqwas in need of further assistance from its Arab
neighbours and embarked on an attempt to internationalizethe conflict.
4.72 Inthese circurnstances, it was in Iraq'sinterestto convince neighbouring
I
States such as Kuwait to step up their support for Iraq. On a number of occasions, Iraq
expressed dissatisfaction with the ievel of support itwas receiving from Kuwait. The Court
wiil be aware that three years later Iraqinvaded Kuwait.
I
4.73 There were thus plausible reasons why Iraq may have wished to
provoke Kuwait and others into its conflict in 1987. Whatever the case,the fact remains that
the United States has not satisfied its burden of proof that Iranwas responsible for either the
missile that hit the SeaIsleCi& or any other missile attackslaunched towards Kuwait.
Section6. TheUnited States'Retaliationwas designedto cause MaximumEconomic
Damageto Iran bydestroyingOil PlatformsthathadnoConnectionwith the Events
relatedto theSea Isle City
4.74 On 19 October 1987, NIOC personnel on the central Reshadat-7
platform had been dismantling turbines for major overhauland repair of damage caused byan
Iraqi attack on the platform on 16 October 1986'~.At 14:25 hours, US. forces informed
personnel on the platform, viaradio, of their intention to destroy the platform, allowing them
i
only five minutes within which to evacuate. At this point, the remedial work abruptly ceased
and the workers were removed to a stand-by ship59.It is noteworthy ht Pentagon officials
confimed that "[tlheIraniansmade noattempt tofirebackV6O.
4.75 Thereafter, the U.S. forces, consisting of four destroyers, and other
naval support craft and aircraft, proceeded to attack the Reshadat-7 production c~tn~lex~~.
After 90 minutes of shelling, they achieved the total devastation and sinking of the
instalIations platform, including the turbines which supplied power to the platforms, the
58 See,Statementof Mr. Sehat,Vol. IV,para. 18.
59 Ibid.,There were 59 NIOC personnelworking on the Reshadatcornplexat the time (see, Statement of
MT. Hassani,Vol. IV,para.22).
60 Iran'sMemorial,Exhibit69.
I 61 See, Iran'sMemorial,paras. 1.106,et seq. control roorn, the laboratory and the instrumentand general repair work~ho~~~T .he outbreak
of fire on the drilling platform resulted in the blowing out of 12oil producing wells and the
destruction of a drilling rig and the living quarters. Further damage was incurred at the
comecting point of the submarine pipelines from the R-1 and R-4 piatforms to the main
pipeline transportingcrude to Lavan Island; and the water and chemicals storage tanks, water
treatrnent plant and spare parts warehouse were totally de~tro~ed~~ A.s is made clear in the
Statement of Commander Marc Thomas, th( l:ader of the assault team, the object of the
exercise was not merely to neutralise the alleged rnilitary facilities on Reshadat. Commander
Thomas states: "Accordingto the plan, my unit would board and destroy what was lep of the
pluiforr afterUS. Navy ships shelled them"'j4.Thus, afterthe shelling ended, the destruction
was finished off by an explosive ordnance disposa1detachment, which boarded the heavily
darnaged platform by combat rubber craft imd boat. Charges were placed in two of the
damaged stanchions,the third stanchion having been severed alreadybythe ~hellin~~~.
4.76 After having totaIly dmtstroyedthe Reshadat-7 platform, the United
States destroyeda second platform in the sanie complex, the R-4 platforrn, that had not been
included in the original plan of attack, but which was seen as an "unexpected 'target of
c~~~ortunity"'~ Th.e result of this gratuitous action was to further increase the darnage to Iran
as amatter of pure revenge.
4.77 There is no dispute between the Parties as to the United States having
canied out the attackon the Reshadat platforrns on 19October 1987.According to the United
States its attackwas in legitirnate response to the firing of the missile which struck the Sea
Isle ci$'. Yet as Iran has demonstmted, before launching its attack on the Reshadat
62
63 Statementof Mr. Sehat,VolIV,para. 18.
64 Ibid.
U.S .xhibit61, para. 8;emphasisadded.
, 65 Ibid.,para.9.
€6 Iran'sMemorial,Exhibi69.
67 See, U.S. Counter-Mernorial,para. 1.79andfi-135 and Exhibit 99, and para1.102;and Iran's
Mernorial,paras. 1.110, 1.112and 4.71 and Exhibits 73.nSee, alsU.S C.ounter-Mernorial,para. 1.132
and Exhibits43 and100.As stated by Rear Admiral Harold Bernsen: "TheU.S.National CommandAuthority
ultimatelydecidethaU.S orces shouldstrike Rostamas a defensivemeasure,in response to Iran'smost recent
attackagainstSeaIslCity"(U.S.Counter-Mernorial,'Exhibit43). See, also, Iran'sMemorial,Ex"..the9:
UnitedStatesplans to takeno furtheraction inresponseto the IranianSilkwormmissileattackonthe US-flagged
Kuwaiti ship Sea Isle Ci.";and Exhibit 71: "Thi: precision with whichwe tried to identi@a target was
propartionateto theiratby aSilkwonnmissile..c~fthe Sea IsleCity...". platfoms, the United States failedto determine-and made no effort to determine -the source
of the missile which stmck the Sea IsleCity I.deed, there is evidence that the United States
was determined to go ahead with its assault, regardless of whether ithad anyjustification for
doing so.
4.78
As was explained during thejurisdictional phase of the proceedings, the
actions of the United States were carefully planned so as to destroy the centrai production
platform -the R-7 platform - which in turn was connected to a series of other producing
platfoms and weIIsand to the exportfacilities on Lavan Island. By attacking the central
platform, the United States eliminated the possibilityf oil ,being produced and transported
fiomanyof the other connected facilities.
4.79 In Chapter 3, Iran showed that the Reshadat platforms destroyed by the
United States were commercial instailations which had no military role except for the
presence of a small number of defensive personne1who were stationed there to help repel
Iraqi air attacks on the platforms thernselves. The Reshadat complex was located over 500
kilometres to the southeast of the Fao peninsula. The United Stateshas shown absolutely no
connection between these installations and the incident that took placeon 16 October 1987.
On the face of it, there could be no such connection given the distancesinvolved and the lack
of anycommunication link to Fao. As the WashingtonPost reportedon 20 October 1987,U.S.
intelligence sources confirmed that there were "no Silkworm launch sites at Faw, making a
military strikeon thearea pointless"68.
4.80 Despite the obvious lack of any Iinkbetween theReshadat cornplexand
the alleged missile attacks far to the north, the United States in its Counter-Memorial argues
that the platforms contained radar that was used to assistranian attacks on neutral shipping
and that they were thus a legitimate target. For example, the statement of Rear Admira1
Bemsencontains the following comment:
68
Iran'Mernorial, xhibit69. "There were a number of factors supporting the choice of Rostam [Reshadat].
The platfom's radar, strategically located in the central Gulf, routinely
monitored al1shipping that passedwithin radar and line-of-sight range"69.
Similarly,the letter dated 19October 1987fromthe U.S. Representative to the UnitedNations
SecurityCouncil which raised the matter also soughttojustify the attackon the basis that the
Reshadat platform had radaron itwhich was iisedto harassneutral shippingO.
4.81 These allegations are scarcely credible. There was no radar on the
central R-7 Reshadat platform. There was only standard communication equipment of the
kindthat one would expect to find on a producing major oil platform. The only radar that
existed in the complexwas situated onthe neiuby R-4 platform, and it was ina stateof serious
disrepair7'.Yet theR-4 platform was not even on the target listprepared by the United States
in response to the events conceming the Sea.Isle CiS. The United States'original intention
had been to destroy the central platform- the R-7 platform -alone. The only reason why the
R-4 platform was attacked at al1is because .theU.S. military happened to see it nearby and
decidedto destroy it as"atarget of ortun tu nit^"^^.
4.82 It follows that the assertion that the platforms were attackedbecause of
their radar facilities was no more than a preiext. The tme intent of the United States was to
destroy the central platform so that production and transportationof crude oil from al1the
surroundingfields would be stopped.
4.83 As a result of the attacb:by the United Stateson the Reshadat platforms,
Iran suffered substantial damage. In particul=, it suffered damages including, but not limited
to:
- Expenses and costs resulting from rescue operations, extinguishing of fires on the
platforms, etc.
69
70 U.S.Counter-Mernorial,Exhibit43, p26..
71 Ibid .x,hibi100.
72 See,para.3.65, above.
See, Iran'sMemorial,Exhibit69.-
Expenses and costs incurred for the reconstruction and recommissioning of the
platforms;
- Lossof production, darnage to the oil fields, environmental damage, and other related
elements; and
- Injuries to personnel on boarthe platfoms at the time of the attacks.
Section 7. Conclusions
4.84 Iransubmits that it has arnplyshown that the United States has failedto
prove thathan was responsible for the missile thatstmck the SeaIsle Ciy, or, indeed, for any
of the other missile attacks addressed by the UnitedStates. Notwithstanding the deartb of
evidence linking Iran to the events in question, the United States embarked on the pre-
meditated destruction of virtuaIly defenceless oil platforms which had no connection
whatsoever to anyalleged missile activities that took place in the vicinity of the Fao
peninsula. CHAPTER 5. THE APRIL 1988ATTACK ON THE NASRANDSALMAN
PLATFORMS
5.1 As was the case with the Reshadat platforms, the Nasr and Salrnan
platforms were installations of a purely commercial nature. They had a sole hction - the
production of oil -and they were again anentirelyinappropriatetarget for military attack.
Section 1. TheEventsof 18April1988
5.2 United States forces attacked the SaImanand Nasr offshore installations
on 18April1988,in what has been described as "a major surface action againsta deterrnined
and fanatical enemy"'resulting in an "Americanvictoryin the [Persian] [Gfulf''.In the course
of that action, not only were the Saimanand Nasr platfoms destroyed, but also "halfthe
IranianNavyU3T . his U.S. attack happenedat preciselythe same time as Iraq had launched its
successfuloffensive to recapture the Faopeninsula.
5.3 The U.S. attack on Salman occurred ata moment when about 14NIOC
platform personnel were irnplementing the final steps to resume that platform's crude oil
production, which had been haIted by an attack by Iraqi warplanes on 14 November 1986.
Initially, a06:OO hours, two U.S. destroyers and a supply ship closed in to a distance of
approximately 1.5miles from the platforms. One hour later, personnel on the platforms were
warned by radio that they would be given five minutes to evacuate. Upon expiry of the five
minutes, and before the evacuation could be compieted,the U.S. warships opened fire on the
drilling platform. As the shelling intensified,platforrnemployees and soldiers, some of whom
had been wounded, plunged into the sea and were rescued by boat4.After they had travelled
one mile from the platform they were ableto observe sixteen helicopters and two warplanes
I U.S. PreliminaryObjection,Exhi32, p. 144.
2 Ibid.p. 145.
3 See, Iran'sMernorial,Exhi44,p.425.
4 See, Statementof Mr.Ebrahimi,Vol. IV,para.Inthisrezardthe wordsof oneof thecommandersof
theoperationareiliuminating:"Warnian armed(oiiplatfor]..priorto openingtire mayregisterhi& onthe
humane scale, bitclearlyrankslow intermsof relativetacticaladvantage.Weshouldrethisrequirement"
(U.S.Counter-Mernorial,xhibit 132,p. 70).bombarding the platform. After the bombixdment, U.S. forces boarded the platfonn5.
However, they found no evidence that Salrnan was being used for military purposes.
Following the boarding,the complex wasdest1:oyedbymeans of explosives.
5.4 Eight soldiers stationed on Salman were wounded in the course of the
U.S.attack, two of them seriouslf. In addition, there was severe material damage. Men the
NIOC personnel returnedta theSalmanplatforms 24 hours later,they found that seven pumps
on the power generation platform,threegasccimpressorturbines and two power generators on
the main oil wel1platform, as well as the control room and two living quarters had been
completely destroyed7. ExpIosiveshad been ptacedon the power generation platform, buthad
failed to detonate, and were later neutralised by Iranian military experts. If these explosives
had detonated, this would have destroyed the equipmentnecessary for the transport of oil to
Lavan Island, and would thus have disrupted for a considerably greater length of time the
production of crude oil from the Salrnancorriplexa.As it was, production from the whole of
the Salrnan complex and its satellite oil weIls was totally intempted for four months as a
result of the U.S. attacks on essential parts of the complex; and regular production did not
resume until September 1992,reachinga nornlal level only in 19939.
5.5 At about 8:13hours on the sarne day, the U.S. Navy also attacked the
Nasr complex, which at the time was producing oil normally.NIOC's 15 platform personnel
were informed by radio of the US. intention to destroy the platforrn. Al1personnel working
on that platform, after ascertaining that theU.S. attack was indeed imminent, lefi the platform
by tug boat. Seven minutes later the platform was under attack by U.S. helicopters and
warships. The operatioo stopped only at 16:00 hours, and the US. forces then left the area
after having destroyed and rnelted down al1fiwr decks of the Nasr Main Production Platform
(or Central Platf~rm)'~.Yet again, the United States had concentrated its fire upon the
platform which centralised al1 oil production in the complex. The result was that al1
production in both the Nasr and Nosrat fields was interrupted,since the oil produced by those
5
Thismay be seen fromthe slogansthatwere painteon thewreckedplatfonn (see,Iran'sMernorial,
photographonbackpagefacing p. 50).
6 Statemenof Mr.Emami,Vol. IV,para.7.
7 Ibid.,para.8.
8 Ibid.,para.9.
9 Ibid.para.10.
1O Statemenof Mt.Alagheband V,ol.IV,para.15. fields could no longer be transported to the Centra1Platfonn for initial processinand transfer
by pipeline to Sirri Island". Normal production did not resume untilnearly four years later. In
addition, water injection, which was performed by means of a separate pipeline from Sini
Island to the Nasr main producing platform and fiom there to various subsidiary platforms,
was interrupted forseveral years as a result of the destructionof the main platform. This led to
a drop in reservoir pressure and thus to a reduction in the quantitiesproduced12.
i 5.6 The U.S. attack on both the Salman and the Nasr platfoms was part of
an overall militaryplan called "OperationPrayingMantis". The operation was on such a large
scale that it has been compared with a major naval battle fought by the United States during
the Second WorldWar, in which about 30 ships were sunk:
"For the first time since the Battle of Leyte Gulf on 23-26 October 1944,U.S.
naval forces and supporting aircrafi fought a major surface action against a
determined and fanatical enemy"13.
5.7 It is perhaps no coincidence that U.S. forces engaged so large a part of
the Iranian navyand attacked two Iranian oil platfoms at the southern end of the Persian Gulf
on the very day when Iraq had launched its offensive to recapture theFao peninsula, which
had been occupied by Iran for the previous two years. Tthas been reported that the United
States informed Iraq of its intention to put "Operation Praying Mantis" into action on that
date:
"Admiral Ace Lyons had developed plans to 'drillthe Iranians back into the
fourth century'when U.S. forces struck back hard [on 18 April 19881,sinking
six Iranianwarships and destroying two oil rigs. At the same time, the Iraqi
hy launched a surprise attack against Iran to recapture the strategic Fao
peninsula. UsingUS.-supplied rnilitary intelligea nndeknowing that US.
strikes against Iranian targets would commenceon April 18,the Iraqis
launched their only successful ground assault of the war,just before the United
States destroyed the IranianNavy"''.
II Staternentsf Mr.Hassani,VolTV,para.21, andMr.Alagheband,Vol.IV,para.16.
l2 Statementof Mt. Alagheband,Vol.IV,para17.
13 U.S.PreliminarObjection,Exhibit32p. 144.
14 Exhibit23,Vol. II. 5.8 As Iran has shown, U.S. policy during the Iraq-Iran war was
consistently to favour Iraq, despite the fact that it was Iraq which, by its aggression against
Iran ,ad started the war.The United States "actively supported the Iraqi war effort", such
support taking the form of financial assistance, the provision of rnilitary intelligence and
advice, and the giving of "strategic operationiiladviceto the Iraqisto betteruse their assets in
Against this background, it may be surmised that U.S. assistance to Iraq also took
the form of distracting the attention of Iranian forces by attacking the Salman and Nasr
platforms and Iraniannaval vessels at the sam.etime as Iraqwas attackingthe Fao peninsula.
5.9 In officia1staternents fi~ilowingthe destruction of the Salmanand Nasr
platforms, the U.S. authorities attempted to portray the attack as a spontaneous response to a
specific incident, the miningof the SamuelB.Roberts,which had occurred four days earliert6.
However, the plan had takenmonths of shaping by U.S. rnilita forces, who were merely
looking for an opportunity to put it into operation. Preparations had begun ten months
earlierl7.They had involved, inter alia, "exert:isesstressinganti-Silkworm ...tactics, boarding
and search, Sledgehammer (a procedure to vector attack aircrafi to a surface threat), convoy
escort procedures, naval gunfire support, ...rnine detectionand destruction exercises ...a 96-
hour Persian Gulf scénario, with athree submarine threat overlaid ,.,[and] live, coordinated
Harpoon missile firings"". It was reported. that "[bly late March [1988], each ship had
completed dozensof these exerci~es"'~.
5.10 The operation itself has been described as a "textbook assault" which
"went as planned"2DA . fter the destruction of the Nasr cornplex,the U.S. ships involved in the
attack patrolled the area for several hours. In the afternoon of the sarne day they fired six
missiles at the Joshan,an Iranian patrol boa.t,scoring direct hits with five of them, and then
sank the ship with gunfire2'.There were 11 killed and 33 injured. Shortly before this, an
15
16 Exhibit10,Vol. Il,par7.
17 See, U.SCounter-Mernoria El,xhibits129arid130.
18 Ibid.,Exhibit132,p.66.
19 Ibid.,p.67.
Ibid.
20 Ibid. InCommander Perkinw s'ords:"[tlhe objectiveswerecl-aSinktheIranianSaam-classfrigate
Sabalan or a suitablesubstitu-eNeutralizethe su.rveillpostson the SassanandSirrigasloil separation
platforms(GOSPs)andtheRahkish GOSP, ifsinkingashipwasnotpracticable(ibidp. 68).
21 U.S.Counter-Mernoria Ei,xhibit132,69. IranianF-4 plane approachingthe areahad been stmck by a missile fired from one of the U.S.
shipsZZI.n a separate incident at around the same time, near the Mubarak oil-field, U.S. A-6
warplanes sank a small Iranian patrol boat with Rockeye bombs, and two iürther small patrol
boats weredisabled bythe US. war
5.11 A third group of U.S. warships had originally beenassigned the task of
sinking the Iranian fiigate, Sabalan, which could not initially be located. Later in the day,
however, a similar Saam-class frigate, the Sahand, was discovered in the Strait of Hormuz.
Several U.S. A-6 war planes, together with a U.S. warship, launched numerous bombs and
missiles at theSahand,which sank a few hours later?.4I.nthis attack, there were 45 killed and
87 injured. About an hou and a haIf Iater, the Sabaianwas located on the north side of the
Strait of Hormuz. A U.S.A-6 war plane crippled it with a laser-guidedbomb, leaving it dead
in the wate?'.
5.12 Operation Praying Mantis thus achieved sweeping losses on the Iranian
side. In the words of former Defense Secretary,Caspar Weinberger, "on a singl deay nearly
halfthe IranianNavy was de~troyed"~.In total, one frigate (the Sahand) was su&, another
frigate (the Sabalan) severely damaged, two patrol boats (theJoshanand one Bogharnmar)
sunka ,nd two further patrol boats (also Boghamrnars) disabled. One Iranian F-4 plane was
also damaged. Lnaddition, there were heavy Iranian casualties. It will be recalled that one of
the commanders of the operation, Commander Perkins, stated aftenvards that "[tlactics and
procedures that had been honed overrhe previous nine month had been drumatically
valid~ted"~';in other words, there was no question of the attack being a spontaneous and
limited response to a particular incident. The Guardian newspaper, on 20 April 1988,
cornrnented that "[allthough Washington rnay have intended no more than a 'measured
response'...,itseems asif local Arnerican commanders were looking for a fight and needed
only the slightest pretext fromthe Iraniand"''.Giventhe scale of this attack and its timing to
22 Ibid.,p. 70.
23 See, ibid.,Exhibit 13358 andIran'sMemorial, Exhibit 79.
24 See, U.S.Counter-Mernorial,Exhib133,p. 59.
25 See,ibid.
26 See,Iran's Memorial,Exhibit 44, p. 425.
27 U.S.Counter-Mernorial,Exhib132,p. 70.
28 Iran'sMemorial,Exhib83.coincidewith the Iraqi offensive on Fao, it appearsthat the true airnsof the United States were
to destroyhan'sdefensive capabilitieand to iissistIraq.
5.13 As a result of the attacirsby the United States on the Salman and Nasr
platforms, Iran suffered substantial damage. In particular, it suffered damages including, but
not limitedto:
- Expenses and costs resulting fiom rescue operations, extinguishing of fireson
the platforms,etc.;
- Expenses and costs incurred for the reconstmction and recommissioning of the
platforrns;
- Loss of production, damage tc~the oil fields, environmental darnage, and other
related elements; and
- Injuries to personnel on board theoil platformsat the time of the attacks.
This is quite apart from the damage to the various naval vessels and personnel referred to
above.
Section 2. The Mining of theSamuelB.Roberts
5.14 According to the United States, its attack on the Salman and Nasr
pIatforms was made in self-defence, and specificaIlyin reaction to the incident involving the
Samuel B. Roberts, which had stmck a niine in the Persian Gulf four days previously.
President Reagan stated as follows in histter of 19April 1988to the Speaker of the House
of Representativesand the President Pro Ten~porof the Senate:
"On April 14, 1988, the U!SS SAMUEL B. ROBERTS struck a mine in
international watersof thfersian Gulf..
An examination of the mines remaining inthe water established that they were
M-OSmines, the same type hiin was caughtplacing in the water fromtheIRAN
AJRon September 21, 1987.They had been freshly laid in an area transited by
U.S. convoys. No barnacles or marine grow-th were on the mines. Most
important,the mines bore markings of thesarnetypeand series as on thoselaid
by the IRAN AJR. No doubt existsthat Iranlaid these mines for the specific purpose of damaging or sinking U.S. or other non-belligerent ships. We have
warned Iran repeatedly against such hostile acts.
In response to this attack on the ROBERTSand commencing at approximately
1:O0 a.m. (EDT), ApriI 18, 1988, Armed Forces of the United States assigned
to the Joint Task Force Middle East, after warning Iranian personnel and
providing an opportunity to escape, attacked and effectively neutralized the
Sassan and Sim Platfonns, which have been used tosupport unlawful iranian
attacks on non-belligerent ~hipping"~~.
Similarly, the United States' Acting PermanentRepresentative tothe United Nations wrote as
follows to the President of the SecurityCouncil:
"At approximately 1O 1OEastern DaylightTime on 14April the USS Samuel B.
Roberts was stnick by a mine approximately 60 miles east of Bahrain, in
international waters. Ten U.S. sailors were injured,one seriously, and the ship
was damaged. The mine which struck the Roberts was one of at least four
mines laid inthisarea.The United Stateshas subsequently identified the mines
by type,and we have conclusive evidence thatthese mines were manufactured
recently in Iran.The mines were laid in shipping lanes known by Iran to be
used by U.S. vessels, and intendedby themto darnageor sink such vessels.
Starting at approximately O100 Eastern Daylight Tirne 18 April U.S. forces
attacked military targets in the Persian Gulf which have been used forattacks
against non-belligerent shipping in international waterways of the Persian
Gulf13'.
5.15 The United States begins its attempt toestablish Iran'sresponsibility for
a general patternof minelaying and specifically for the mining ofthe SamuelB. Roberts by
referring to "Iran'sresponse to the reflaggingf Kuwaiti vesselstt3'.According to the United
States,this "response" began in May-June 1987when the Soviet oil tanker MarshalChuykov
and three other vesselsallegedlyslmck mines laid at the deepwater entrance to Kuwait'sal-
Ahmadi port, close to the edge of the Iraqiexclusion zone32.eports differ as to whether these
vessels were hit by missiles or mines. Moreover, a number of reports suggest that if the
vessels were hit by mines, the mines had probably floated down from the war zone in the
29 U.S.Counter-MernoriaEl,xhibit129,477.
30 IbidE.,hibit130.
31 U.S . ounter-Mernoria, a1,ChapterII,Section2.
32 Ibid .,ra.1.19.north - very possibly from the Shatt Al hib or from the entrance to the port of Bandar
Khomeini, where Iraqwas knownto have laid.mines. The United States produces no evidence
to show the mines were Iranian. In any event, none of the four vessels concerned was
Arnerican, and al1the reports suggest that the vessels suffered only minor damage, with no
ca~uaities~~.
5.16 On 24 July 1987, the US.-flagged Bridgeton - which was in fact a
reflagged Kuwaiti tanker - strucka mine inthe international shippingchannel, off Iran'sFarsi
Island34.Following the mining of the Bridge#tun ,U.S. navy mine-clearing force apparently
Iocated a field of mines "south of Iran'sFar:;iIsland", which the United States describes as
being "near the location where the ... Bridgeton was str~ck"~~I.n fact the United States'
exhibits show that this exercise took place 17miles awaf6. No mines were found in the
irnrnediatevicinityof where the Bridgetonwasstruck. Moreover, this mine-sweeping exercise
took place four months after the BridgetonIlad stnick a mine3'.It cm hardiy be considered
that the discovery of mines four months 1ati:rand 17miles distant is sufficient evidence to
prove that the particular mine which struck theBridgeton was of thesme provenance.
5.17 At the time, the United States was less clear as to what happened to the
Bridgeton.One report refers to Washington sources stating that there wouldbe no retaliation
for the attack on the Bridgeton because the United States "was not sure who was
respon~ible"~~ I. one of the United States'own Exhibits, it isnoted that:
"Early in the war mines were laid by both sides at the head of the [Persian]
Gulf. Sorne of these have occasionally been reported to have broken loose.
These would drift SE on the i3Wside of the [Persian] Gulf and could, due to
prevailing currents, drift anti-clockwise round the area. They are brown or rust
coloured and, floating low in the water, would be difficult to see. The Farsi
33 See, Iran'sObservations aSubmissions,Exhibit18.InthatExhibititis statedthaone ofthesefour
vesselswas hitbyan "unidentifiedwarplane"Itis also suggestedthattPrimrose andthe Murshnl Chuykov
34re damaged by"fiee-floatingorbreakaway"mines.
35 See,U.S.Counter-Mernorial,para s..25-11.
36 See,ibid.para.1.29fn.52.
See,ibid.Exhibit49, p2. Although notspi:cifiedintheExhibit,this presumably reo 17 nautical
miles.
37 See,ibid .xhibi43, p. 1.
38 See, IranMernorial, xhibit57. Island area is the rnost likely area where these mines would interfere with
neutral ve~sels"~'.
5.18 The United States however now alleges not only that the mine that hit
the Bridgeton was Iranian,but also that the Bridgeton was targeted deliberately by Irado. in
this regard Iran has consulted anexpert in mine warfare, whose report is attached to the
present Reply4'.That expert concludesthat the mine thathit the Bridgeton wasprobably of the
M-08 type,of which both Iraq and Iranhad manufacturëd derivatives. In other words, it could
have been either a Soviet M-08, an Iraqi LUGM or an Iranian SADAF-0242.He further
concludes that it would have been to al1intents and purposes impossible deliberatelyto target
the Bridgeton, given the handling difficultiesthat wouIdbe experienced intrying to laya mine
from a small patrol boatJ3,the riskof detection, and the enormous mmgin for error resulting,
inter alia, from the time necessary for the mine to cornplete its anning cycle, the size of the
Bridgeton, and the possibility of a change in course44.
5.19 Two other vessels (neither of which was a U.S.-flag vessel) are alleged
to have hit mines in the territorial waters of the United Arab Emirates off Fujairah in the Gulf
of Oman in August 198745.The first incident involved the Texaco Caribbean, which was
carrying Iranian crude oil from Larak Island, and was therefore hardly likelyto be a target of
Iranian attack. The second involved the Anita, a small service vessel. Again, there is no
evidence thatIran had any part in placingthese mines. Iran was as concemed as anyone about
the appearance of mines in this area, outside the Persian Gulf, which was used by a large
number of Iranian vessels as a stopping-off point before entering the Strait of Hormuz.
Following the Texaco Caribbean incident, Lranirnrnediately protested about the laying of
mines in this areaand offered and obtained permission to assist in the rninesweeping efforts
there46.
U.S. Counter-Mernorial,Exhibit2, p.48.
Ibid.para. 1.27.
Reportof Mr.Fourniol,Vol.VI.
Ibid, paras.4.2-4.4.
The SovietM-08 mine weighed226.8 kg.See,U.S.Counter-Mernorial,Exhibit38,p. 7.
Ibid., paras.4.5-4.16.
U.S. Counter-Mernorial,par1.34.
See, Iran'sMemorial,Exhibit58, and Iran'sObservationsand Submissions,Exhibit27. 5.20 The United States has also alleged that on 21-22 September 1987, its
forces caught the landing crafiIran Ajr in the act of minelaying in international waters. The
United States has however produced no independent evidence that theIran Ajr was involved
in such minelaying.In fact, as Mr. Farshchian,the Commanderof the IranAjr, makes clear in
his Statement attached to this Reply, the Iran Ajr was simply transporting mines to the
northernend of thePersian GulF7 .his is furtlierborneoutbytheexplicitinstructions thatare
attached to Mr. Farshchian'sStatement8. Those instructions simply refer to carrying a special
consignrnent, and make no mention of minc:Iaying.As for the fact that the Iran Ajr was
travelling in international waters on the southern side of the Gulf when was attacked by the
United States, this was a perfectlynormal roiite to take, since it avoided the more dangerous
war zone close to the Iranianshore49.
5.21 The proposition by the United States that mines were pushed off the
side of the IranAjr by means of a ramp canot realistically be sustained. Al1minelaying is
done from the rear of a vessel, and pushing a mine off the side of a vessel wouid create a
dangerous situation. In any event, the rampfound on the IranAjr was too flimsy to support
the full weight of a complete mine system, and was also positioned in such a way that
handling of themines would have beenvery d.ifficultS0.
5.22 It was afier its attacon the IranAjr that the United States allegedly
devised a rneans of determining whether mines wereof Iranian manufacture or not. This was
because the mines that were being transportcd on the IranAjr bore a stencilled number on
their outer casing5'.Given the close sirni1arii;iesbetween the Soviet M-08, Iraqi LUGMand
Iranian SADAF-02 mines, this was the onl:ydetail which, according to the United States'
evidence, imrnediatelymarked out Iranianmines frorntheir Soviet andIraqi counterparts.
5.23 Itshould be recalledthat the United States seeks to justifj its attack on
the Salman andNasr platforms by the specifii:incident of the Samuel B. Robertsstriking what
47 See ,tatementofCol. Farshchian,Vol. VI, p4.aSee ,lso, Iran'sMemorial,paras.1.97-1and,
Iran'sObservationsandSubmissionAnnex para.34.
48 StatementofCol.FarshchiaV,ol. VI,Amer: 1.
49 See,ibid para.6.
50 See,Reportof Mr.Foumiol,Vol. VI,paras.5.2-3.4.
51 See, U.S.Counter-Mernoril,xhibit37. was allegedly an Iranian mine. The United Statest Exhibit 123, entitled "Persian Gulf Mine
Update", dated28 April 1988, is a cable from the U.S. Naval Joint TaskForce Middle East.
That cable Iists various mines which were located and detonated between 15 and 28 April
1988.Theentry for the mine aIIegedIystruckbythe Samuel B. Robertsreads as follows:
"Shah Allum Minefield: A total of eight M-08 mines have been discovered in the
Shah Allum Minefield starting with the mine S.B. Roberts struck on 14 April.
FoIIowingare the Iocations and mineserial nurnbersfound onthe mines:
UNIT DATE DESTROYED/LOCATION SERIAL
NUMBER
USS S.B.Roberts 14Apr. 26-22.80W052-18,OOE No mine N~mber"'~.
If the only wayof irnmediately charactensing a mine as Iranian was by meansofa nurnbering
system whichwas allegedly uniquely Zranian,responsibility could hardly be attributed to Iran
for a mine for which the United States had been unable to determine a number. Moreover, it
should benoted that the mines statedtohave been discoveredby the United Statesin the Shah
Allum minefield were described here as "M-08 minestt, i.e.the Soviet mines from which not
only SADAF-02but alsothe Iraqi LUGMmineswerederivedS3.
5.24 Iran must therefore reiterate what it has already stated in its
Observations and Subrnissions on the U.S. Preliminary Objection: the United States has
produced no independent evidence of Iran's responsibility for the mine which struck the
Samuel B.Robert?,
5.25 As Iran has explained in its Memonal, the only mines laid by Iran were
laid in the Khor Abdullah channel north of Bubiyan Island. These mines were laid for
defensive purposes to prevent Iraq from usingthis watenvay to attack Iranian positions. Such
mines had no effect oncommercial shipping..
5.26 In any event, the mine threat in the Persian Gulf should not be
exaggerated. According to the United States, only 176 mines were found during the eight
52 Ibid .,hibi123.
53 See,Reportof Mr. Fourniol,VVI,paras1.10-1.12.
54 Iran'ObservationsandSubmission,M~X, para52.yearsofthewar.Ofthese,95 wereMyarns5'.PAyams are small Sovietmines with onlya 20 kg
charge and are designed for usein rivers and lakes against small craft. They were used
extensivelybyIraq in 1990,afier its invasion~fKuwaitS6T . he rest wereapparentlySovietM-
O8 minesor derivativesthereof. Eventhese niines were of little dangerto tankers and larger
merchantvessels.
5.27 Furthemore, the UniteclStatescannot simplyignoreLraq'sinvolvement
in the rnining of the Persian Gulf. Iraq chose to attack any vessel quite indiscriminately,
regardlesseven of whetherthe vessel was trading with Iran, regardingthem al1as legitimate
targets.
5.28 On 14February 1982, ;inIraniantanker,the Mokran, hiean Iraqi mine
nearthe port of Bandar Mahshah?'. A Greek freighter, theEvangeliaS., hit anIraqi mine on
1 1September 19825g A.Cypriotfreighter,the Ci@ ofRio, struckanLraqiminecloseto Bandar
Khomeini on 1 Febmary 198459A . Liberiaii freighter, the Dashaki i,reported as having
stnickan Iraqi mine sornefour miles fromtheNasr oil fields on7June 1984,as itwas leaving
Lranto travelto Saudi Arabia6'.Iraq thus coidd lay its mines almostanywherein the Persian
Gulf.As theexperience duringthe Kuwaiticrisisshows, Iraqhad a large arsenalof mines and
hadnohesitation in usingthem6'.
5.29 The United States is urlableto sustainits statement that Iraqwas never
knownto lay mines in the central Gulf where the Samuel B.Roberts struck a mine6'.As has
been seen above, Iraq had already launcheli attacks against the Reshadat andSalman oil
platforms,and also againstLavanIsland, in the Straits ofHormuz,and near LarakIslandb3I .n
particular, ships had struck Iraqi mines closeto the Nasr oil fields and off the Coastof
Fujairah.Iraqachievedthis rangeby usingthe facilitiesof friendlyPersianGulf Statesa.
U.S. PrelirninaryObjectAnnex p. 67, pa;Al. 17fn57
See,Reportof Mr. Fourniol,Vol. VI,para. 1.3.
See, Iran'sMernorial,Exhibit16,p. 164.
Ibid.
Ibidp.165.
Ibid.
See, U.S.PrelirninaryObjection,Exhip.626.,
U.S .ounter-Mernorial,pa1.109.
Seeparas.3.31-3.33,above.
SeeStatementofMr.Fadavi,Vol. V, paras. 9-20. 5.30 As Iran noted in its Qbservations and Submissions on the U.S
Preliminary Objection, the United States itself has pointed to reports that the mine which
struck theSamuel B.Roberts was an Iraqi mineor floating mine ofunknown pr~venance~~.
5.31 Finally, even if mines could be identified as being definitely of Iranian
manufacture, this does not necessarily mean that they wereIaid by Ira nn the locations where
they were discovered.Iraq was known to have cleared mines from the Khor Abdullah channel
located north of Bubiyan island, where Iran had laid mines to target Iraqi vessels. That
channel is very shallow, and mines laid there were easily visible. Once spotted, the mines
could be recovered. It would then have been perfectly feasible forIraq to recover these
Iranian mines and then to re-lay them; and it would have been normal military practice for it
to do SO~~.
5.32 Iraq at least had aninterest in laying mines, whereas Iran had none.
Unlike Iraq, Iran wasdependent on shipping for exporting itsoil from the Persian Gulf. Mines
werea threat to Iranian shipping as much as to any other shipping. Inparticuiar,the areasin
the southem part of the Persian Gulf and in the Gulf of Oman,where Iran is alleged to have
laid mines, were regularly used by Iranian shipping or shipping tradingwith Iran. The Texaco
Caribbean, which hit a mine offthe port of Fujairah in the Gulf of Omanon 10 August 1987,
was carrying Iranian crude oi16.t was out of concern for the danger of mines to its shipping
that Iran engaged in extensive minesweeping operations. As one Iranian Naval Commander
pointed out ina radio interviewon 17April 1987:
"Forseven years,the IranianNavy has maintained security in the Persian Gulf.
For seven years, Iraq has laidmines and we have gathered them ... We have
minehunting helicopters, minesweeping ships, as well as minehunting diving
tearn~"~~.
5.33 Iraq, on the other hand, did have aninterest in minelaying, not only to
disrupt shipping trading with Iran, butalso to create exactly the kind of threat which would be
65 U.S. Prelirniny bjection,Amex, p.6para.Al. 17h. 55.
66 See , eportoMr. Foumiol,Vol.VI,paras.1.23eseq.
67 See,Iran'ObsewationsandSubmissions,Exhibit25.
68 See ,bid., Exhibit26.bound to increase the western powers' presencein the Persian Gulf and thus increase the
pressure on Iran.Iraqwas successful on both counts.
5.34 In surna ,s with the attack on theSea IsleCity t,e United States has
provided no proof that it was Iran whowas rr:sponsiblefor anyof the mining incidents that it
attributes to Iran,d specifically for the attac:kon theSamuelB.Roberts.The evidence that it
has provided for theSamuel B. Roberts -the "PersianGulf Mine Update" of 28 April 198F9 -
refers to the mine concerned as an M-08, of which both haq and Iran had rnanufachired
derivatives70. o serial nurnber which, accorciingto the United States, might have linkedit to
the mines found on the Iran Ajr was found on that mine7'.Finally, evenif the mine had been
positively identifiedasn Iranian-manufacturedmine, this is not evidence that itwasIran,and
not Iraq,who had laid iin the position where it stmck the SamuelB.Roberts.
Section3. TheLackof Connection betweenthe Miningof theSamuel B. Roberts and the
U.S.Attackon theSalmanandNasrPlatforms
5.35 As with its attack on i:heReshadat platforms, whiie the United States
attempts to justiQ its attack on the Salman and Nasr platfoms as an act of self-defence in
response to the mining of the Samuel B. Roberts, there was no connection whatsoever
between this particular mining incident, or irideedany other mining incident, andthe Salman
and Nasr platforms, norhas any such conneciion been alleged.
5.36 What meagre evidence the United States has submitted to the Court in
anattempt to show that the Salman and Nasr platforms were used for rnilitary purposes is
welated to mining. As the United States itself admits, targets which it considered were
involved inminelayingwere deliberately excluded from attack:
"Once again, to avoid compromising the perception of the United States as a
non-beiligerent,and to avoid any escalation of rnilitary conflict with Iran, the
United States exciuded Iranian Iand-basedtargets such as an ordnance storage
site north of Bandar Abbas vihere the United States believed sea mines were
69 U.S.Counter-Mernorial,Exhibit 123.
'O See,Reportof Mt. Fourniol, Vol. VI, 1.91.12and 1.19.
71 U.S. Counter-Mernorial,Exhibit 123. stored, and the port facility at Bandar Abbas where vessels were loaded with
minesbefore they sailed on their mine-laying mission^"'^.
Instead, it was concluded that the Salman and Nasr platforms "would be the most appropriate
targets fora defensive response, in viewof the military function served by these platforms"".
5.37 There is an evident contradiction between a wish to "avoid
compromising the perception ofthe United States as a non-belligerent"and a selection of vital
installations which were also regarded as "military" targets. The reasoning appears post hoc
and unconvincing. The professed desire of avoiding compromising the perception of the
United States as a non-belligerent hardly squares with the scale ofthe operation, as described
in paras. 5.6,et seq.,above.
5.38 Ln any event, in its catalogue of alleged military activities of these
platforms, the United Statesmakes no referenceto mining, let alone to the SamuelB. Roberts
incident. Ira nas already demonstrated the falsity of the United States'allegations as to the
military use of the platfoms7~ It sufices to note here that in anyevent the alleged activities -
coIlection of intelligence, radar, helicopter launching,the harbauring of small gunboats and
the firing of g~ns~ ~havenothing to do with mining.
5.39 Insum, the United States chose targets that, evenin its own admission,
were unrelated to mining activity, were distant from where the mine which stmck the Samuel
B. Roberts was laid, and were non-military in character. The Nasr and Salman pIatfoms
served a sole objective, which was oil production. The fact that theU.S. attack was aimed at
neutralisingoil platfoms whichdid not harbourminesand whichhadnothing to do with mine
layingclearly suggests that the United States'airn was to strike economic targets that werean
essential part of Iran'war effort, and thus to weaken Iranand assist Iraq76.
72 U.S.Counter-Mernoriapl,ara.1.115.
73 Ibid.
74 See,Chapter3, above.
75 U.S. Counter-Mernorial,aras. 1.117-1.120.
76 See, U.S. PrelirninarObjection,Exhibit 32p. 142, where it is stated that "thepurpose U.S.
retaliati..was to neutralizeSassanand Sirrigas-oil separation platfsGOSP) andto targetan Iranian
navalvesse1inrecompensefordamage inflictedoSamuelB. Roberts". 5.40 This is confirmedby thefact thatthe U.S. National Security Planning
Group chose the optionof attackingtheoil pliitforms"because itavoidedanystrikeon Iranian
land targets,was far from the fighting in the.upper [Persian]Gulf, and demonstrated Iran's
acute vulnerabiliy to any interruptiota its oiexperts"".Inthe wordsof a U.S. Commander
involved inthe operation:
"As the sunset on 18 April, al1objectivesof Operation PrayingMantis had
been achieved.. . The Iraniart war effort had been stmck a decisive and
devastatingblo~"'~.
This was hardIy the Ianguage of a neutral State concemed "to avoid compromising the
perceptionof [itselflas a non-belligerent"79.
77 See, ibid.,ExhibitII, p.376; emphasisaddetl.
78 U.S . ounter-MernoriEl,xhibit132,p.70.
79 See,U.S.Counter-Mernorial,ar1.115. PARTIII
REPLYTO THE LEGALDEFENCESOFTHEUNITEDSTATES
CHAPTER6. THE U.S.ATTACKSBREACHEDARTICLEX(l) OF THETREATY
OFAMITY
Section1. ArticleX(1)createsSpecificLegalObligationsthat can be enforcedby the
Court
6.1 In Chapter 1 of Part II of its Counter-Mernorial, the United States
endeavours to dernonstrate that it did not breach ArticleX(1) of the 1955 Treaty oArnity,
asserting that this provision is "aspirational", i.e., that it establishes a general goal and not
specific legal obligations. Hence, the United States Counter-Mernorialtakes the position that
the Court's 1996Judgment did not resolve al1interpretativeissues regarding Article X(1)'.
6.2 In the following paragraphs, Iran will rebut the United States'
allegations,oth in the light of the structure of the 1955 Treaty of Amity and frorn the
standpoint of general principles of internationaleIatedto the Iawof treaties.
6.3 As for the allegation that the Courtdid not resolve the issue in its 1996
Judgment, the United States contends that the Court confined itself merely tojurisdictional
matters. In so doing, the United States confuses two different conceptual probiems: a) the
questionof the interpretatioofArticle XII); and b) the question of the alleged "aspirational"
character of this provision.It will be shown here that not only has the Court, both in its
Judgrnent of 1996and in its Order of 1998,provided an interpretationof ArticIeX(I) which is
definitive, but also that in so doing it has clearly and definitely mled out the alleged
"aspirationaicharacter''of this provision.
6.4 It is useful to recall in the first place the reasoning that the Court
followed with regard to Article 1 of the 1955 Treaty of Arnity. The Court denied having
jurisdiction on the basis of that Article because it saw ArtIas "by itself..not capable of
generating legal rights and obligations"'. Rejecting the position taken by Iran, the Court
t U.S.Counter-Mernorial,par2.03-2.15.
2
1C.J Reports1996,p.820, par52.decided that "Article1 must be regarded as fixing anobjective, in the light of which the other
Treaty provisions are to be interpreted and a~pplied"~F .urthermore, the Court stated that its
conclusion was in conformity with the interpretation it had given of the FCNTreaty between
the United States andNicaragua4.
6.5 In contrast, when analysing Article X(i), the Court employed a
completely different reasoning. There, th.e Court concentrated on the guarantee by
ArticleX(1) of "freedom of commerce", expressly putting aside the part of the provision
concerning "freedom of navigation" that wris not invoked by Irans. Far from stating that
Article X(l) was too general a provision, theCourt upheld its jurisdiction on that basis. It
thereby clearly confirmed that the provision concerning "freedom ofcommerce" does indeed
create specificandenforceable legal obligations. Moreover, the Court was unequivocalon this
issue since, regarding the destruction of the oil platforms by the United States, it decided
expressis verbis that "its lawfulness can bt?evaluated in relation to that paragraph" (1.e.
Article X(1))'.
6.6 The same idea is stat1:din other passages of the 1996 Judgment. In
paragraph 50, for instance, the Court upheld the argument that ArticleX(1) was a source of
specificlegalobligations:
"...Article X, paragraph I, cifthe Treaty of 1955 does not strictly speaking
protect 'commerce'but 'j?eedomof commercef.Any act which would impede
that 'freedom'is thereby prohibited"'.
In other words, this provision is consideredas prohibiting by itselfcertain acts and, on this
basis alone, the Court will be able to give a Judgment on the rnerits of whether the U.S.
attacks against the oil platforms were aviolat.ioofthe 1955Treaty of Amity.
6.7 In the same vein, the Court noted, in paragraph 51 of the 1996
Judgment, that the destruction of the oil platforms was capable of having harmhl
3 Ibidp.,814,para.28.
4 Ibid.
5 Ibid, p.817,para.38.
6
7 Ibid.,p. 820para51;emphasisadded.
Ibid.,p. 819, para.50; emphasisinoriginal. consequences on kanian oil exports and could thereby have "an adverse effect upon the
fieedom of commerce as guaranteedbyArticle X; paragraph 1,ofthe Treawof 195jM8 T.his
cleariy proves that Article X(1) does not establish a general goal merely to be used in the
interpretation of other paragraphs of the Article, but thatit does indeed create autonomous
legal obligations (which do not need other provisionsto be enforced).
6.8 The United States attempts to include within the jurisdiction of the
Court in the present case not only "freedom of commerce" but also "freedom of navigation".
Accordingly, while it contends that the Court should decide against the Iranian claim, as the
part of Article X(l) concerning "freedom ofcommerce"is asserted to be "purely aspirational",
on the other hand, it asks the Court to uphold its counter-claim, based on the allegation that
Iranhas violated the other part of Article X(1), Le.,the provisions concerning "freedomof
navigation". The reason given by the United States for this anomalous contention is that the
principle of "freedom of navigation" is specified in the subsequent paragraphs of Article X
(and specificaIIy in paragraph 3), and that therefore the Court would be able to apply it
without further difficulties. Incontrast, in the United States'view, the principleof "freedomof
commerce" could not be used by the Court, as it is not specified anywhere other than in the
first paragraph of Article X. In other words, the United States claims that its destruction of
Iranian oil pIatforms does not constitute a breach of Article X(1) but, in turn, that alleged
Iranian attacks on United States (owned or reflagged) ships would be a breach of the same
provision since, in its submission, those attacks inf'ringedthe onIy enforceable freedom
protected by the aforementioned provision, namely "freedomof navigation".
6.9 This theory must be rejected. It must be noted that "freedom of
navigation", as guaranteed by Article X(1), cannot be taken into account at the stage of the
merits in the present case. As Iran will further demonstrate below, the Court established its
jurisdiction exclusively with respectto a dispute related to "freedom of commerce". The Court
has defined its jurisdiction in this case very precisely, stating that it will evaluate both the
Iranian claim and the United States' counter-cIaim onIy in the light of the freedom of
commerce as guaranteed by Article X(1) of the Treaty of Amity of 1955. An analysis of
alleged violations of the freedom of navigation by the Parties would fa11outside the scope of
8
Ibid.p. 820,para,51;ernphasiadded.the Court's jurisdiction in the present case, as the Court itself has clearly and definitely
decided.
6.10 Consequently, it isunnecessary and irrelevant to deal with "freedomof
navigation" in the present instance, as the 'UnitedStates does: attention must be focused
exclusively on "fieedom of commerce" as gu.aranteed.by Article X(1). The very fact that no
reference is madeto "freedom of commerce" in the remainder of Article X mustmean that it
was seen asalready self-sufflcient and enforceable, asthe negotiators of the Treaty did not
feel the need further to delineate it. On the other hand, the negotiators did feel that necessity
as far as "freedom of navigation" wasconcenied, asthey implemented it in paragraphs 2 to 6
of Article X. This codïrms the interpretationthat the protectionof "freedom of commerce" in
Article X(l) creates specific enforceable obligations for the Parties,as was stated by the Court
in 1996.
6.11 The United States contends that "[tlhe limited nature of Article X(l) is
clearly demonstrated by the fact that it cannot resolve the many practical questions about
rights and duties that characteristically aise in a complex commercial relationship ...For
example, it is not apparent whether 'fieedomof commerce and navigation'allows the Parties
to the 1955 Treaty to impose quantitative restrictions on imports or exports of particular
products. The broad language might suggest that quantitative restrictions may not be
allowedVgI .ran cannot agree with this interprr:tationof the scope andextent of Article X(l) of
the 1955Treaty of Arnity.On the contrary, it respectfully submits that the expression "there
shall be freedom of commerce", which hasbeen employed frequently by treaty-drafters for
centuries,certainly does not have the effect of forbidding al1kinds of barriers or restrictions,
nor of regulating al1the aspects of commercial transactions between States.This expression
declares and solemnly enunciates a principle governing commercial intercourse between the
two High Contracting Parties. As Walker, who served in the United States Department of
State,rightly pointed out:
9
U.S.Counter-Mernoriap,ras.2.09-2.10. "The treaties [vil.United States commercial treaties]deal with the subjects
within their purview in language of simple elementary principle, of a
constitution-like character. Their avoidance of detail and of statute-like
elaborationandspecificity isin keeping with theiressentialcharacrer.. . Being
designed to serve as a basic charter of relations for a Iongperiod of years, they
must be confined to fimdarnentals so framed as to preserve their validity over
the vicissitudes andchangingconditions of an indefinite future"'0.
6.12 As one of the most distinguished authonties in this field has rightly
stated:
"La libertéde commerce ne veut pas dire fianchise de commerce. Tout le
commerce international est basé,depuis des siècles,sur l'existencede droits de
douane perçus à l'occasion de l'entrée,de la sortie ou du transit des
marchandises. La taxation des échanges estun fait de première importance
pour toute la réglementation du commerce international"".
6.13 In other words,Article X(I) states that neither of the High Contracting
Partiescan prohibit commerce andtor impede the free flow of trade between them. This does
not mean that taxes may not be levied or that quantitative restrictions cannotbe imposed on
commerce between "the territories of the two High Contracting Parties"": it implies that the
High Contracting Parties cannot take any rneasures that impede commerce between thern. In
short, "la circulation des marchandises entre les pays contractants à travers les frontières
douanièresne doit pas êtreinterdite"I3orrenderedimpossible.
6.14 This analysis was confirmed by the reasoning of the Court in its
Judgrnent on the merits of the Nicaragua case in 1986,when it stated that Article XIX(1) of
the FCNTreaty - which is formulated in the sarneterms as Article X(1) of the 1955Treaty of
10 Walker, H., "The post-war commercial treaty pragram of the United States", Political Science
Quarrerl', Vol.73(1958),p. 74; emphasis added.
II Nolde, B., "Droitet technique destraites de commerce",ColfectedCourses of The Hague Acadeof
InternationaLaw, Vol.3 (1924-Il), 391; emphasisadded.
I2
Accordingto Nolde, "[Lla libertéde commerce, quelleque soit la formulequi la proclame,n'est pasun
principe absolu. Jamais les Etats n'ont voulunetvoudront admettre que toutes marchandises dans toutes
circonstancespuisselnitremententre ranslepays ou librementen sortiLa libertg commercialeesune règle
sujette A de multiples conditionsiide multiples restrictionop. cit.p.374. In this respectitisworth
recallingthat this authoritativeopinion reflects alongtradition in this mattergoing backE.,Le droit
desgens ou Principesdela loi naturelle appliqàéla condziiret au afluires la Narionet des Souverains,
Amsterdam, 1758, LivreII,Ch.11,para. 23.
13 Nolde, B.,op. cit.,p. 374.Amity between Iranand the United States - entails legal effects. There,the Court said that it
"must uphold the contention that the mining of theNicaraguan ports by the United States is in
manifest contradiction with the fieedorn of navigation and commerce guaranteed by
Article XIX, paragraph I ,of the 1956Treatyl Id.
6.15 Furthemore, the interpretation of Article X(1) that is put fonvard by
Iran is the only interpretationthat is plainliiaccordancewiththe letter and spirit of Article 1
of the 1955Treaty of Amity. This Mer confims the Iranian position, as the Court has
expressly stated that "Article1 must be regarded as fixing an objective, in the light of which
the other Treatyprovisionsare to be interpreted and applied"".
6.16 On the basis of the forcgoing, it is respectfullysubmitted that the Court
should reaffirm - as it has already finally mled in its Judgment of 1996 - that ArticleX(I) of
the Treaty of Amity of 1955 does establish specific and enforceable legal obligations
concerning "fieedom of commerce". The United States cannot reopen the argument on this
point, which isalready res judicata behireen the Parties. The Court has clearly and
definitively stated that "[tlhe argument made on this point by the United States must be
rejected"16.The Court has also definitively decided that the "lawfulness [of United States
attacks onthe Iranianplatforms] caribe evaluated in reIationto" ArticleX(1).Inpoint 2 of the
dispositive part of its Judgment, the Court has held that it hasjurisdiction "pourconnaître des
demandes formuléespar la République islamiqued'Iranau titre du paragraphe 1de l'articleX"
(as itisworded in the French text of the 19516 Judgment, which is the authoritative text)". In
other words, Article X(1) isunquestionably atreaty mle on the sole basis of which the Iranian
claimcanbe examined on itsmerits by the Court.
14 I.C.JReports1986,p. 139,para.278.
l5 I.C.J. Reports 1996814, para.28.
16 Ibid ..820,para.51.
" InEnglish"toentertaitheclaimsmadebytheIslamicRepublicof IranunderArticleX,paragraph1,of
thatTreary". Section2. Interpretationof ArticleX(1)
A. The meaning of "commerce"
6.17 The Court has already had occasion to express its view as to the
interpretation of the word "commerce" and as to the meaning to be attributed to that word, in
its 1996Judgment. The Court recalled that the United States sought to restrict the rneaning of
the word to activities of "actual sale or exchange of g~ods"'~,whereas Iran, adopting a wider
interpretation, argued that the word also covers upstrearn activities "which, at a prior stage,
enable the goods to be made ready for exchange"lg.After an analysis based on several
definitions of the word "commerce" taken from legal or general dictionaries, the Court
expressly adopteda broad interpretation of the notion of commerce. At paragraph 45 of itç
Judgrnent,the Court held that:
"Thus, whether the word 'commerce'is taken in its ordinary sense or in its legai
meaning, at the dornestic or international level, it has a broader meaning than
the mere referenceto purchase and salewt0.
6.18 The Court therefore concluded that Article X(1) of the 1955 Treaty
covers not only the activities of sale and purchase, but also the ancillary activities that are
integrallyrelated to commerce".
6.19 In adopting this broad interpretation, the Court reached a decision
whichis in conformity wjth the etymologyof the word "commerce". The notion of commerce
flows from the Latin word commercium,which designates very broadly al1legal relationships
betweenpnvate persons concerning the use of their goods2*.
18
19 Ibid.,p. 817,para.40.
20 ibid., para. 39.
Ibid.p. 818,para.45.
21 Ibid., p. 819, para.49. The Courtrecaiiedthis definitionof commercein par35rof its Ordero10
March 1998concerning the U.S. Counter-Claim.It should be noted here thatJudge Higgins confirmed in her
SeparateOpinionthat: "The Court has persuasivelyshown in paragraph45 of the Judgment that 'commerce'is
generallyunderstoodas goingbeyondpurchase andsale and includinga multitudeof activitiesancillarythereto"
(1.C.JReports 1996,p. 859,para.43).
22
See, Jauffret, ADroit commercial,22"ded. by Mestre, J., Paris, 1995,p. 1. The word "commerce"
originates from a contractiof the Latin words crm and merx (a word meaning merchandise, derived from
Mercury, the Roman messengergod). /uscommercia i,ranchof Romanprivate law,is comrnonlydefinedasal1 6.20 It is true that under the influence of aneconomic approach, this word
has taken on a narrowermeaning, referringmiiinlyto the circulation and distribution of goods.
However, this rather restrictive concept has remained limited to the economic world, and has
not affectedthejuridical notion of
6.21 As the Court has stated.,modern law - be it municipal or international -
deciines to limit "commerce" to no more than activities of sale and exchange, but also
includes within the notion of commerce all those ancillary activities which are integrally
linked thereto, arnongwhich the most fkqueritly mentioned are operations ofprod~ction'~and
transport.
6.22 For example, U.S. niunicipal law attributes a broad meaning to
"commerce", as is demonstrated by the legal interpretation that is placed upon Article 1,
Section 8 of the Constitution of the United States (often referred to as the "Commerce
Clause") which authorises Congress "to regdate Commerce with foreign Nations, and arnong
the several States, and with the Indian Tribes". The U.S. legislative authorities, with the
approval of judicial bodies - and in particuliir the Supreme Court - have given a very broad
interpretation of the notion of commerce and have legislated on this basis inareas going far
beyond the simpIesaleor purchase of goods. Asa court in the District ofNew York has held:
"'Commerce', in its sirnplestsignification, means an exchange of goods; but in
the advancement of society,labor,transportation, intelligence,care, and
various rnediums of exchange, become commodities and enter into
cornrner~e"~~.
activitks relatinto the exchange and transport of goods. See, iparticular, VolterrE., /stit~~i'ididirittu
privato romano, Rome, 1961, p. 63, and Guarino, A., Diritto privato romano, 4hed., Naples, 1970,p. 299.
Gaudel notes that therewas an evolution in Roman Law, the very strict legal meaningofcommercium being
graduallyextended until it finally became much broaderthan the econornic definition. According to thaatuthor,
the notion ofcommercium may even define the rightto be a party to legal relationsSee,.Gaudel, G., "Essai
sur la notionde 'commercium' àl'époque ancienne" I'uria,Etudes de droit romainParis, Vol.IX, 1962,pp. 34
and 57.
23 In doctrinal works, a distinction is made srlmostsystematicallybehveen the purely economic- and
therefore restrictivenotion of commerce, and the niuchbroader juridical notioSee, inter aliaon this point
Jaufiet,A., op. citp. 1;Houin,R., Rodière,R. Droit commercial, 7" ed., Tome 1,Paris, 1981,p. 2; DJuglart,
24, Ippolito,B.,Cours de droit commercial,Vol. I,9' ed., Paris, 1988,p. 6.
See, for example, Legal Thesaurus, 2"ded., New York 1980,p. 86, which refers to"production and
distribution"(emphasisadded)under the word"cornierce".
25 Lenroorv.WesternUnion Tel.Co., D.C.N.Y.,52 F. Supp. 142, 148, 149. 6.23 Although the distinction between activities of production strictosensu
and of commerce isnot absent in the case Iaw of the United StatesSupreme Court, that Cowt
considers that the latter exists as soon as an instrument is used which allows the commercial
operation to be perfomed, or as soon as goods for export begin their movement towards the
finaldestinationz6.This flows fiornthe Daniel Ballcase (1871)concerning the application of a
federal safety regulation to a small vesse1operating in th? waters of the Grand River, i.e.,
exclusively within the State of Michigan. In that judgment, the Supreme Court noted as
follows:
"So faras she was empIoyed in transporting goods destined for other States,or
goods brought from without the limits of Michigan and destined to places
within that State, she was engaged in commerce between the States. [She] was
ernployed as an instrumentality of that commerce:forwhenevera commodi~
has begunto move as an article of tradefiom one State tu another,commerce
in thar commodity between the States has commenced. The fact that severaI
different and independent agencies are employed in transporting the
cornmodity, some acting entirely in one State, and sorne acting through two or
more States does in no respect affect the characterof the tran~portation"~'.
6.24 It is quite clear in this context - and U.S. municipal case law is
unarnbiguous in this regard - that any activity of transport is an integral part of commercez8.
This includes navigation and shipping9, but also al1other means of interstate transportation,
inparticular railways3',as well as interstatetelecommunicationsJ'.
26 in itsjudgment in TheUnitedStatev.E.C. Knighr,156U.S. 1,15 S.Ct. 249, 39 L.E325 (1895),the
SupremeCourt held that an antitrust lawdid not apply to a sugarrefinerybecause production precededand was
distinct from commerce. Even iftheproducts were intended tobe sold in other States, the impact of the
monopoIy on subsequent commerce was only indirect,and could not constitutejustification for applying the
27ommerceClause".
TheDanielBall,77 U.S.(10 Wall.) 557, 19L.Ed.999(1871);emphasisadded.
2s Sec, interdia, the followingcitations:"'Commerce'includestransportationof commoditiesbetweenthe
citizensof the different states", Barksdale v. Ford, Bacon and DavD.C. Ark., 70 F. Supp. 690, 700;
"'Commerce'consistsof intercourse and traffic,and includesthe transportation of personsand property, as well
as the purchase, sale md exchangeof commodities", VeazeyDrug Cov.Fleming, D.C.Okl., 42 F. Supp.689,
693; "Wheregoods arepurchased in one state for transportationto anotherthe 'commerce'includes the purchase
29much as itdoesthe ri-ansportat, amlerIceCo. v.Fleming,C.C.A.N.C.,127F.2d 165, 170.
30 Gibbonsv.Ogden,9 Wheat, 1(1824).
Inferstate Commerce Commission v. Brimson, 154 U.S.447 (1894); Hozrsto& Texas Railwuy v.
UnitedStates,234U.S. 342 (1914).
31 Pensacola TelegraphCo.v. Western Union TelegraphCo.,96 U.S. 1(1878). 6.25 Iran does not wish toenter intounsound comparisons orto apply to
Article X(1) of the 1955Treaty ofArnitythe U.S. courts' interpretationof the "Commerce
Clause". Thesole aim of theseremarks is toclemonstratethatthe notion of commerce is given
a broad interpretation in the U.S. legal systl:m,and that the authors of the 1955Treaty of
Amity can neither have beenunaware of it nor disregardedit. When they negotiated that
Treaty,itwas againstthe backgroundof thisbroadnotion ofcommerce.
6.26 The broad interpretationof "commerce"is moreoverconfîrmedby both
U.S. and continental (especially French) doctrinal authorities, who ofte incIudewithin this
termthe activitiesof production, storageand transport.For example, TheGuideto American
Law definescommerce as "[tirade and traffic carriedon between different peoples orStates
and theirinhabitants,includingnot onlythe purchase, sale, andexchangeof commodities but
also the instnimentalities,agencies and mems by which business is accomplished", adding
that the word "commerce" also includes the transporo tf persons and g~ods'~. The
Dictionnaire dedroitprivé,publishedby the Centrede recherche en droit privé et comparé du
Québec, definescommerce(indicating thatthe equivalentterm in English is "commerce")as
"l'ensemble des activités,faitesdans un but clespéculationq, uicontribuentà laproduction et
ù la circuiationdes biens,ainsi qu'àlafourniturede services"33.
6.27 As faras continental doctrineisconcerned, Jauffret has noted that:
"[lle commerce que régitle droit commercial s'entend tout aussi bien d la
distribution des produits que de leur fabricarion, de l'industrie au sens
économiqueque du négoceet couvre même des activitésconnexestelles que
celIes dela banque,dutransport,des assurances.. ."14.
Houin and Pédamon emphasise that therc earibe nodoubt that commerceis understoodas
having abroad'rneaning:
32 TheGuideroAmerican Lw, Eve~one'sLegalEnqclopaedia, Vol. 3, St. Ppp. 53-54,
33 Dictionnaire de droit privéet lexiques bilingues,Deuiéme édrevueet augmentée, Centrede
rechercheendroiprivéet comparédu Québec,Cow.arsvill,991,p. 103.
34 See,JaufietA., op. cip.1;emphasisadded. "[il1recouvre non seulement les activitésde distribution et de circulation des
biens et des richesses: achats et revente, transport..maisaussi les activités de
productionet detransformation:manufacture.. ."35.
Sirnilarly,Houin et Rodièrenote that:
"le mot 'commerce' dansle langagejuridique a un sens beaucoup piuslarge que
celui qu'on donne à ce mot dans le langage ordinaire et dans la science
économique. Il englobe non seulement l'activitéde ceux qui se bornent à
acheter des marchandises pour les revendre sans transformation, mais aussi
celle des industriels, des banquiers, des assureurs, des commissionnaires,
courtiers et agents d'affaires, des entrepreneurs de spectacIes, des
transports...'13'-
In this regard mention mayalso be made of the book by De Juglart and Ippolito, who make a
distinction between the legaI and economic definitions of commerce and note that the legal
definition is broader. In their view:
"[dlans l'expression 'commerce'envisagéedu point de vue juridique, il faut
comprendre non seulement les opérationsde circulation et de distribution des
richesses que font les commerçants mais aussi Ies opérationsde production
quefont les industrielset les opérations financières quefont les banquiers"".
As a fina1exarnple of what could otheMise become a tedious enurneration, the authors of a
work entitled Droit du commerce internationalD , roit international del'entreprisealso make
a distinction between the narrow definition of commerce as being iimited to trading and
distribution activities, and the broad definition which also includes service, finsuicial and
production activities.They note as follows:
"Observé d'unpoint de vue international, il est généralement enseigné que le
commerce regroupe les mêmes,notions en les entendant largement au point
d'engloberla plupart des activités écon~rniques"~~.'
35 See, Houin,R.,PkdamonM, ., Droit commet-cial,8"ed., Paris,1985,p. 2; emphasisadded.
36 See, Houin,R., Rodièr, .op. cil., p. 2; emphasisadded.
'' See,De JuglartM.,Ippolito, B., tif.p.6; emphasisadded.
38 Mousseron,J.-M., Fabre, R., Raynard, J.,Pierre, J.-L., Droit du commerce internaiionDroit
internorionulde l'entreprise,Paris,1p. 13. 6.28 This is the legal context within which should be viewed the opinion
that was ciearly expressed by the Court in its 1996Judgment in the present case. Relying on
the jurisprudence of its predecessor in the CLicarChinn case, the Court cited the following
decisive dictumofthe Permanent Court inthat case:
"Freedom of trade, as established by the Convention, consists in the right - in
principle unrestricted - to engage in any commerciaI activity, whether it be
concerned with trading properly so-called, that is the purchase and sale of
goods, or whether it be concemed with industry, and in particular the transport
business; or, finally, whether it is camed on inside the country or, by the
exchange of imports and exports, with other co~ntries"~~.
According to the present Court, freedom of commerce wasthus understood by the Permanent
Court as:
"contemplating not only the piirchase and sale of goods, but also industry, and
in particular the transportbu si ries^"^^.
6.29 Numerous dictionariec.confirm that the notion of commerce includes
the concept of industry. For exampIe, the Eïlcyclopédie Dalloznotes that "[dlu point de vue
juridique, l'industrieest une forme de ~ommcrce"~'T . he Dictionnaire de droir privé,referred
to above, cites Professor Perrault'sbook on commercial law, according to which "[l]e mot
commerce, correspondant ici à l'industriemanufacturière, à l'industrie commerciale,et à celle
du transport, englobe les opérations, posées en vue d'un bénéfice, pourla transformation des
matières premières, l'échangedes objets ouvrés et leur dépla~ement"~~W . est's Legal
Thesaurus, published in 1986 under the editorship of Professor Stasky, and also Burton's
LegalThesaurus adopt a similar approach,by including the English notion of "industry" under
the heading of If one agrees wlth Collins EngIishDicfionary that the notion of
39
40 I.C.J.Reports 1996,p.819,para48.
41 Ibid.
42 Enqclopédie Dalloz, Répertoirede droit int4?rnatP,aris1968,p.344.
Perrault, Droit commerciatome 1, no6, p. 19, citedby the Dictionnaire de droit privé et lexiques
bilingues, op.cil.,103.
43 Wesr'sLegal Thesourus,St Paul,1986,p. 151;LegaI Thesaurus,2"*ed., New York 1980, p. 86See,
however, contra,the DissentingOpinion of Vice-I'residentSchwebel,who made a distinctionbetween the
notionsof "trade"and"commerce"s,tatingthattheformerhas abroadermeaning which,unlikethelatter,canbe
extendedto coverindustry(I.C.J.Report1996, pp887-888). "industry" covers any "organized econornic activity concerned with manufacture, extraction
and processing of rawmaterials or construction", it is dificult to understand how the activity
of oil platfoms could fail to be included within the scope of commerce. In this regard, the
French Code minies rtates that: "L'exploitationdes mines est considérée comme un acte de
commerce. ."44.The sarne Code explicitly includes within the definitionof "mines","les gîtes
connus pour contenir ...des hydrocarburesliquides ou gaze^"^'.Consequently, the whole
process of exploitation of oil wells is clearly considered in the French Codeminier as being a
commercial activity.
6.30 The Court has issued an express ruling on this point, adogting an
absolutely unambiguous position which is resjudicata for the remainder of the present case.
The Court'sdictum was that "oïl production, a vital part of [Iran's]economy,constirutes uo
importantcomponentof itforeign tr~~de"~ It~.hould be noted in this regard that the French
textof the Judgment (which is the authoritative text) uses the following words "la production
pétrolièrede l'Iran, pièce maîtresse de l'économiede ce pays, constitue une composante
majeure de son commerceextérieur",It is therefore indisputable, for the later stages of the
present case, that freedom of commerce covers not only the sale and purchase of petroleum
products and their transportand storage, butalso oil production.
6.31 It may therefore be concluded that in adopting a broab definition of the
notion of commerce as including industry and, in particular, oiI production, the Court has
aligned itself fùlly with the meaning that is normally attributed ro that expression in both
municipal law and positive international law.This position is final and is resjudicata in the
present case. Indeed, this is quite apparentfiom the SeparateOpinion of Judge Shahabudeen
appended to the Judgment of 12 December 1996 and from the reaction of the doctrinal
authorities to that Judgment4'.
44
45 France'sCodeminier,D.n.56-838of 16August 1956,Article23.
46 Ibid A.ticle2.
47 I.C.J. Reports1996,p.820,para5 ;emphasisadded.
Judge Shahabudeen stressesin his SeparateOpinion appendedto the Judgmentof 12 December 1996
that"...the remainderof the Judgmentmakesit clear that whatthe statementmeansis that the Court isrequired
to make a definitive interpretation ofthe Treaw ai ihisjuridictional phase".He adds indeciding the
jurisdictional issue,the Court could cornpetentlyrendera definitive interpretationof theTreary, it is difficultto
see how that interpretationcould fail to govern at the mer... Butgiven the importanceof the opposite
interpretation to the holding madby the Court at the prelirninary stage, it is dificuit to see how that
interpretation coubereversed at the meritsstage".See,1.C.J.Rep1996, pp. 822 and 839; emphasisadded. 6.32 However, one cannot remain silent with regard to the criticisms
provoked bythe Court'sdecision in this regard. The most clear-cutcriticism came fiom Vice-
President Schwebel who, in his Dissenting Cipinion,criticised the Court for having included
production activities withinthe notion of corrimerce.In his view, al1production activities, far
fiom being ancillaryto commerce, are prior and separate activities4'.Three comments may be
made with regardto this criticism.
6.33 Firsr,this semantic distinction and its legalconsequences do not accord
with the reality of industrial activities. From the logical point of view, how can a boundary
line be drawn betweenthe two when extraction is one of the very few operations that take
place prior to the marketing of a raw material on the international market? When a natural
resource is intended for export immediately afier its extraction, it is difficult to see how the
destruction of the facilities that are necessaiy for its production andlor transport would not
affect commerce49.In this particular case, extraction and marketing are not two consecutive
and separate phases in time, but one and the same continuous operation which permits the
transfer of goods to consumers on the world market, in other words "worldcommerce", This
is particularly evident if it is considered that crude oil contracts are very often signed on a
long-termbasis andconsequently that crude oil in the ground is fiequently sold even before its
actual extraction: the activity of the oil platforms constitutes then the first step in the
execution of the pre-agreed commercial transaction. In addition, the particular nature of oil
extraction, and the highly sophisticated techniques and facilities that it involves, and in
For doctrinal comment,see, for example, Jos, E., "Affaire des plates-formespktrolières,Iran c. Etats-Unis",
A.F.D.I.,Vol. 42, 1996,p408; Bekker,P.H.F .1nti:mationaldecisions.Oil Platfoms", A.J.I.L.,Vol, 91 (July
1997),p. 522; Ruiz-Fabri, H., Sorel, J.-M., "Jurisprirdence.Cour internationalede Justice. Affaire desptates-
formes pétrolières,.D.I.,Vol. 124 (1997), p. 869; Evans, M.D., "Oil Platforrns(Islarnic Republicov.Iran
United States of America) Preliminary ObjectionInternurionaalnd Comparative Law Quurteriy,Vol. 46
(1997),p. 699.
I.C.J.Reports1996,p. 887. In Vice-President Schwebel'sview,none of the references put fonvardby
the Court wouldpermitthe conclusionthat production activities areincluded withinthe notion of commerce.In
particular, he concludes that "commerce in ordinary and in legal usage is simply not understood to embrace
production".See,also,theSeparateOpinionof Judge Higgins, whostatesthat "[blutyet a furtherstep is required
to showthat commerceisgenerallyunderstoodto includethe meansof production of thatwhichmay, much later
in the chain,fonn the subject manerof internationalcommerce",1.C.J Reports 1996, p. 859, para. 43; emphasis
in original. Finaily,Judge Shahabudeen notes in his Separate Opinion thatthere is clearly a distinction to be
madebetweentheprocessesofproductionand commerce; see,LC.J Repartis1996,p.838.
49 EvenJudge Shahabudeenacknowledges,in his SeparateOpinion,that althougha distinction shouldbe
madebetweenthe processesof productionand commerce, "wherethe preciseline isto bedrawn betweenthem is particular its importance in the present case for iranianexports, are all factors that ctearly
militate in favour of their inclusion under the heading of commerce.
6.34 Second,even if one were to admit, arguendo that the Court should not
have given a broad interpretation of the notionof commerce,it is importantnot to makea
similar error in giving too extensive an interpretation of the notion of production. If it were
admitted that a distinction should be made between operationsofproduction and of commerce
(which would be wrong, as has been shown above, following the opinion that has been
explicitly upheld by the Court), it should then be noted - with regard to the exploitation of
minera1 raw matenals - that the former does not go beyond the simple extraction of the
products. When such extraction is given an added value resulting either from the
transformation of natural resources or from transport with a view to making such resources
availabie to the consumer, it moves on from the realm of production as such, to that of
commercestrictosensus0.
6.35 The third remark is that the Dissenting Opinion of Vice-President
Schwebel highlights quite clearly the opinion upheld by the majority of the Court with regard
to the definition of "commerce". The Court has held -and thisjudgment is now resjudicafa
between the Parties - that the notion of commerce, and thus the freedom of commerce
guaranteedbyArticle X(1), covers productionactivities,andin particularoil production.
6.36 FinaIly, it shouId be emphasised that it is quite indisputable and
undisputed that the notion of transport is an integral part of commerce. This flows from very
long-standingjurisprudence of the Permanent Court, inthe OscarChinncase, as confirmed by
the present Court in this case". Moreover, this.is in line with municipal U.S. case law, as
mentioned above. It is therefore sufficient to refer here to the dictionaries cited bytheCourt in
lessclearin thecase of an industryin which production wasclosely articulated toextemal commerce",I.C.J.
Reports1996,p. 838.
50 See,withregardto this distinction,Jauffret,A., LagardandHamel,J., Droitcommercial,2nd ed.
Tome1,Paris,1980,p.2.
5i "Theexpression'freedomof trade'wasthusseen by thePermanentCourtasconternplatinnotonlythe
purchaseandsaleof goods, butalso industry,andinparticularthetransportbusiness",I.C.J.Reports 1996,p.
819,para.48. Inthisregardthe Courtrelied ontheprecedent oftheOscar ChinnCase. Inthatcase, theUnited
KingdornhadstressedinitsMernorialatp.35: "Itis submittethatthe expressions'commerce', 'commerciails',
one of widescopeandincludes al1activitiesconnectedwitthesale,purchase,exchangeandfransportoti~of
commoditiesforgain",P.C.I.J., SeriesC,No. 71;emphasisadded.its Judgment of12December199652t,o the doctrinalauthorities mentionedabove, and to the
nurneroustext-booksand dictionarieswhichclearlyinclude transport within commerce. This
is recognised by JudgeHiggins in herSeparateOpinion, when shestatesthat the transport of
goodsis a fundamentalaspectof c~mmerce'~.
6.37 In conclusion, itrnay thereforebe emphasised thatby giving a broad
interpretation ofhe notionof commerce,covt:ringboththe exchangeof oil products and their
production, transport and storaget,he Court has aligneditself with the view that has been
adoptedby international practice and the majority of doctrinal authorities. However, even if
one were to accept the theory that extraction as such would not fa11within the notion of
commerce (which is a theory that,as has been noted, the Court did not accept), iits
indisputablethat anyadditionalfùnctionaddingto the production operationeither a transport
activityor an improvementin qualityallowssuchactivityto be categorisedas commerce.It is
quiteclear,as will be demonstratedbeiow,that theoil platforms were atthe origin notonlyof
the extraction ofcrude oil, but alsoof an im:provement in the quality ofthe crude oil andits
transportto exportterminals.
B. Article X(1) protects "freedomof commerce"
6.38 The Courthas notedthat ArticleX(l) of the 1955Treaty ofArnitydoes
not protect commerce as such,but "freedomof commerce".Oncecommercehas beendefined
as coveringal1ancillaryactivities that are intrinsically linto commerce,including(but not
limited to) production, transport and storagei,t is clear thatany encroachment uponsuch
activitiesis a violation of freedomof commerce.This was in factthe position thatwas taken
byIran initsMernorial,whereit statedthat:
"The very fact of preventing goods from reaching the stage of sale, by
inte~ening in a previous pliase through coercive or restrictive rneasures,
52 Thus,theDictionnairedela terminologie du droitin~ernatlxpresslymentionstransportasoneof
the exchange relationshipscovered by internationalcommerce,and Black's Law Dicrionory men"...s
transportatiofpersonsaswell asof goods,bothby landandsea";se1C.J .eports1996 ,.818,para.45.
53 According toJudge Miggins:"Thattransportation(or 'carriageof'goods') is an essential part of
commerce iswellrecognizedinthe leadingtextbook;on thesubject,as well as inthecitations relied onbythe
Courtin paragraphs45 and46", 1.C.J Report1996,p. 861, para50.It rnaybe notedthatVice-President
Schwebel,whomakesacleardistinction betweeprotiuctiandcommerce, says nothigbouttheclassification
of transportinoneotherof thesecategories. equally representsa violation of the fiieedomof commerce. In other words,
such a violation could be caused by obstacles blocking anyof the processes of
production, packaging, stockage, carriage or distribution of goods, and not only
during the finalpart of thispro ces^"^^.
6.39
Byprotecting freedomof commerce, ArticleX(1)of the 1955Treatyof
Arnity prohibits any obstruction not only of specific commercial activities, but also, more
broadly, of the ability to enter into âctual commercial relations or to continue a flow of
exchange that has alreadybeen established.
6.40 In its Judgment of 12 Deccmber 1996, the Court accepted Iran's
argument. Paragraph50ofthat Judgment, whichdefines freedom of commerce,states that:
"Unless such freedom is to be rendered illusory, the possibility must be
entertained that it could actually be impeded as a result of acts entailing the
destmction of goods destined to be exported, or capable of affecting their
transport andtheir storagewith a view to e~port"~~.
6.41
The Court has thus already decided that it is not only when one of the
Partiesto the Treatyof Amity destroys goods that are alreadyinexistence andarereadyto be
exported that a violation of ArticIe X(1) occurs. The principle of "freedom of commerce"
cornesinto playat an earlier stage, since it prohibits anyaction that might prevent or impede
commerce in anyway whatsoever, including actions directed against facilities whosepurpose
is to enable such goodsto reach the market and enter commercial circuits. Iran considers that
by attacking the three oil platforms at issue in this case, the United States not only destroyed
natural resources whose importance for Iranian exportswas recognised by the Court itselPb,
but also caused serious damage to important workings of a weI1-establishedcommercial
mechanism. The U.S. attacks on the Iranian oil platforms area perfect example of the Court's
description of acts that are prohibited under Article X(1) as violations of the freedom of
54 Iran's Memorial,para.3.64.
5s I.C.J.Reports 1996,p. 81para.50.The Court cited thispassageagain in itsOrder of 10Mar1998,
at para.35.
56 "The Court notes that Iran'soil production, a vital part of that country'seconomy, constitutes an
important cornponentof its foreigntrade", 1.C.J.Reporls 1996, p. 820, para. 51. See, also, in this regard the
SeparateOpinionof Judge Higgins,stating:"It is equallytrue that petroteurnisan importantcommercialexport
from Iran tothe United States"1C.X Reports 1996, p. 859, para. 43. Judge Shahabudeenalso implicitly
recognisesthis pointwhen, dealingwiththe distinctionbetweencommerceand production,he mentio"...but
wherethe precise line is to be drawn between themis less clearin the case of an industryin which production
wascloselyarticulatedto externalcommerce",I.C.Reports1996,p. 838.commerce. Indeed,the U.S. actions consisted iiot only of the "destructionof goods destined to
be exported", but above al1seriously impaired Iran'sability to market and export the products
of its oil industry,preciselyecause such actions were capable "of affecting their transportand
their storage witha view to exportW5'.
6.42 The question whether there actually were commercial exchanges of
petroleum products between the Parties at thr:time of the attacks on the platforms is hardly
significant. Article X(1) does not require specific commercial activities to be undenvay
before, during, and after any obstruction of'the freedom of commerce. This provision is
designed to guarantee fiee-flowing commercial relations between Iran andthe United States,
and its aimwould clearly be prejudiced if theexport of goods were irnpededby obstacles of
my kind, including the destruction of indispensable links in the chain of international
commerce.
6.43 This interpretation flows logically from the broad definition of the
notion of commerce that has been adopted by the Court, as has been shown in this Reply. The
sarne interpretation is an obvious corollary of the notion of "freedom of commerce" as
discussed by the Court in its Judgrnent of 12December 1996. Moreover, it is the only
interpretation that is compatible with the ietrer and spirit of Article1 of the 1955 Treaty of
Amity,since ahostile attitude, resulting in the placing byone Partyof obstacles in the way of
the other party'sability to enter into cornmc:rcialrelations, conflicts with the principle laid
down in that article, accordingto which "[tlhere shail be firm and enduring peace and sincere
iî-iendshipbetween the United States of Amenca and Iran" Itmay benoted in passing thatthis
conflict is even more flagrant whenit is remembered thatthe acts in question were a violation
of the fundamental principle of the non-use of force in international relations. In facas the
Court has indicated, the principle laid dcwn in Article 1 is an essential criterion for
interpreting the other provisions of the 1955Treaty ofAmityand particularly, in the present
case, ArticleX(1).
- - -. .. .
5'
I.C.JReports 1996,p. 81para.50. C. The meaningof "between the territoriesof the two HighContracting Parties"
6.44 In its Counter-Mernorial, the United States alleges that, concerningthe
interpretation of Article X(l) of the 1955 Treaty of Amity, Iran"asks the Court to strike the
phrase 'betweenthe temtories of the two HighContracting Partiesf,and to createa new Article
X(1) that declares: 'There shaIl be freedom of commerce and na~igation"'~~I .nstead, the
United States putsfonvard a narrow interpretation of the provision,aIleging that it "addresses
only trademoving directly from the territory of one countryto theterritoryofthe other"".
6.45 By doing so, the United States both completely misunderstands Iran's
allegations and puts fonvard a wrong, restrictive and unexplained interpretation of
ArticleX(1).
6.46 Far from "striking" the expression "betweenthe territories of the two
High Contracting Parties",Iran has alreadystated that the interpretationof this expression is a
questionof special relevance inthe present case6'.
6.47 Firs there can be no doubt that the words "between the territories of
the two High Contracting Parties" do impose a territorial scope and Iimitation of application
for Article X(1) that arepartly different from those of other provisions in the 1955 Treaty.
For example, commerce carried on by an Iranian citizen between the territories of the United
States and a third country would certainlynot fa11within the scopeof this provision, as it does
not invoIve freedom of commerce "between the territories of the two High Contracting
Parties" to the1955Treaty of Amity. On the other hand, there shall befreedom of commerce,
even conducted by nationals of a third State, between the territories of Iranand the United
States. In other words, the expression "between the territones [and not 'peoples'or 'citizens']
of the two HighContracting Parties" means that commerce between the territories of the two
Parties shall be free, in theense of not being obstmcted or prevented, whatever may be the
nationaiityof the persons conducting them.
59 U.S.Counter-Mernorial,para.2.30.
60
61 Ibid.para.2.19.
Iran'sMernorial,para.3.62. 6.48 Second,as stated above, Article X(l) specifically ensures "fieedom of
commerce" between the territories of Iranand the United States. It is clear that this provision
wouId be violated if the free circulationof goods between the tenitories of the two countries
were hinderedby obstacles of any kind, including the destruction of facilities designedfor that
purpose, regardless of the question of whetlnersuch facilities were actually participating in
commercial activities betweenthe Parties at the precise time of the attacks.
6.49 Iran submits that this interpretation is strongly supported not only by
the ordinary meaning to be given to the terms of the provision (specifically, "freedom of
commerce"), but alsoby the Court's 1986Judgrnent in the Nicaragua case. As is well-knawn,
the Court held inthat case that "the rnining of the Nicaraguan ports by the United States [was]
in manifest contradiction with the freedom of navigation and commerce guaranteed by Article
XIX, paragraph 1, of the 1956 Treaty"62between the United States and Nicaragua (which
contains exactlythe same language as Article X(1)of the 1955Treatyof Amitywith Iran).
6.50 In order to reach this conclusion, nowhereinthe 1986Judgrnent did the
Court concern itselfwith verifying whether specific commercial activities were taking place
between the territories of Nicaragua and the United States at the moment of the U.S. attacks.
Notably, the Court did not seek to determine:whether the oil in the terminal that was attacked
was intended to reach directly the territory of the United States nor whether the ships that
were sunk or that avoided stopping at rnined Nicaraguan ports were carrying on commerce
between the territories of thetwo Parties at that precise moment. The Court only pointed out
that "[iln the commercial context of the Treaty, Nicaragua's claim[was]justified not only as
to the physical darnage to its vessels, but also the consequential darnage to its trade and
62
63 I.C.J.Report1986,p.139, para.278.
Ibid. 6.51 Thus, it is clear from the 1986Judgrnent that the Court was concerned
with the hm thathad been done to Nicaragua'scapacity to carryon external commercial
relations, specificallywith the territory of the United States. The mining andthe artacks were
directed against Nicaragua's infrastructure destinedto participate in its external commerce
(nameIy,ports, oilterminais, etc.). Consequently, they severely impaired Nicaragua's normal
course of trade and thus constituted a clear violation of "freedom of commerce" in the sense
explained above, no matter whether specific commercial activities were under way at that
precise time. Furthemore, as the installations that weretargeted were located in a zone where
Nicaragua enjoyed sovereign rights and as it had been demonstratedin the proceedings that
the United States was a traditional and important commercial partner of Nicaragua, there
could be no doubt that the asserted breach amounted to a violation of freedom of commerce
"between the temtories of thetwo High Contracting Parties". Consequently,the Court needed
to go no further in its findings.
6.52 The United States' allegation that the Court's Judgment in the
Nicaragua case is not pertinent in the present instance is unconvincing6j.The similarities
between the two cases are evident. In both, military actions were directed against facilities
mainly used for foreign trade. In both, the targets were located in a zone where the injured
State enjoyed sovereignrights. Both Nicaragua and Iranwere traditional commercial partners
of the United States. Therefore, it is patent in both cases that the United States'actions caused
severe prejudice to the freedorn of commerce between the territories of the two Parties to the
1956and the 1955Treaties, respectively. The United States'allegationin the present case that
there was no ongoing commerce between Ira nnd the United States at the precise time of the
attacks is totallyrrelevant, for the reasons explained above.
6.53 In addition, Iran strongly rejects the United States' allegation that the
phrase "between the territories" of the Parties means that Article X(1) onIy protects goods
direchi) exported from Iran to the United States6'.Such an interpretation would result in
64
65 See,U.S.Counter-Mernorial,paras.2.28-2.29.
Ses,ibid., para. 2.19.adding a supplementary condition whichis absent in Article X(1) .othing in the wording of
thisprovision allowsit to be afirrned - as the United States does - that the trade of goods
departing from Iranand transiting through orbeing modified in third countries before reaching
the United Statesis excluded fromthe protection of "freedom of commerce".Particularly,Iran
cannot understand how the United States cm assume such a limitation fiom the expression
"between the temtories of the two High Contracting Parties". The interpretation suggestedby
the United States results from an entirely arbitrary reading of the provision. That reading is
supported by absolutely no authoritative opinion, isunexplained, and patently contradicts the
Court's1986Judgment in the Nicaragua case,
6.54 Iran also wishes to highlight the intrinsic paradox contained in the
United States' theories.The United States alleges that ArticleX(l) cannot be applied in the
present instance as al1direct oil exports froni Iran to the United States were ended by U.S.
Executive Order 12613of 29 October 1987 i:anorder that the United States considers to be
"lawfu lnder the 1955Treat~")~~I.n other words, the United States isasking the Court to rule,
in manifest contradictionwith the principlepncta suntservanda,that a unilateral act of oneof
the Parties to the Treaty of Amity of 1955 can put an end to the protection granted by a
provision of the Treaty itself. The guaranteeof "freedom of commerce" contained in Article
X(l) would then have virtuallyno effect, as either one of the Parties could abolishit by simply
adopting a unilateral measuresuch as anembargo.
6.55 This unacceptable conclusion would also entai1 absurd effects, as it
would imply that one of the Parties would br allowed to invoke a temporary interruption in
trade between the Parties, due ton embargo,tojustif) the destruction of installations thatare
vital for the exercise of the "freedom of commerce" that is perrnanently protected by the
Treaty, thus causing darnage that would be perpetuated even beyond the period of the
embargo itself.
66
See, ibidparas2.25-2.27inparticularfootr244. 6.56 In addition, Iran would point out that the United States' allegation
concerning the embargo is in any case inapplicabIeto the first attacks, which occurred on 19
October 1987,i.e. ten days before the U.S. Executive Order. It is self-evident that the United
States cannotjustify a wrongful act that has already taken place on the basof an event that
allegedly interrupts the guarantee contained in Article X(1) but which occurs after the
wrongful act.The embargo would then have the curious effect of "curinex post?unilaterally
andwith extunceffects, the illegality of the U.S.attacks against the platforma time when
the platforms were protected by Article X(1).
6.57 In parallel, the United States argues that the Court cannot judge the
lawfülness of the Executive Order in the present instance6'. Though Iran agrees that the
legality of the U.S. embargo, as to which Iranexpressly reserves its position, is not here at
stake, it must stress the further contradiction contained in this argument. It is self-evident that
a State cannot invoke a situation that it has itself provoked in order to exclude the application
of a provision and argue, at the same time, that the Court cannot pronounce judgment on the
resulting situation.
Section 3. Application of Article X(1)in Relation to theAttacks on the Platforms
A. The platformswere protected byArticle X(1)at the time
6.58 As has been demonstrated above, Article X(l) of the 1955Treaty of
Amity protects "commercett within the juridical meaning of the term, z.e.not only the
functions of sale and purchase, but alsoany ancillary activities that are intrinsically linkedto
commerce, in particuiar the activities of production, transport, storageor improvement of the
raw material. In this sense, itis clear that the oil platforms play a direct role-in Iranian
commerce, forthree main reasons.
6.59 First those platforms were technoIogica1 facilities that were
indispensable for the industrial exploitation of goods which were essential products for
Iranian commercial exports. The intrinsic link between the production activity of the
67
See,ibid. platforms and Iran'scommerce is particularly evident as manycmde oil contracts were (and
are) signed on a long-termbasis, so that crude oil inthe groundis often "sold" even before its
actual extraction; the exploitation of the oil wells is then an element of the commercial
transaction itself, an activity constituting the performance of a contractual commercial
obligation. As has already been shown, al1the platforms that were attacked had apparatus for
the dnlling and extraction of oil from the various submarine wells. Reshadat Offshore
Complex consistedof three drilling and production platforms(R-3, R-4 and R-7) connected to
27 oil wells; Resalat Offshore Complex consisted of a drillingand production platform (R-1)
exploiting 14 oil weils; Salrnan Offshore CompIex consisted of seven inter-connected
platforms, of which one was for drilling and two for production, and 21 separate satellite oil
wells; Nasr Offshore Complex had a central platform, a flaringpoint and six other platforms,
exploiting 44 oil wells; and fouroi1wells wert:exploited in the Nosrat field, which was linked
to Nasr Offshore Complexa.
6.60 Second, the central platform of each complex was also designed to
separateoff gas and water fromthe oil, the latter being sentby submarine pipeline to Lavanor
Sim, where further separating off took place6'. Thus, the R-7 platform in the Reshadat
Offshore Complex collected the oil that it produced together with the oil received from
platforms R-1, R-3 and R-4, and perfonned a first separation of gas and water fiom the oil
before theoil was sent toLavanIsland70. The oil produced by the various platforms making up
the Salman Offshore Complex was collected ai the central complex, where a first separation
of oil and gas and water was performed before the oil was sentto Lavan Island7'.Similarly,
the oil produced by the various platforms in the Nasr and Nosrat fields undenvent the sarne
process on Nasr main production platform, before being sent for further processing to Sirri
Island72.The platforms therefore performed a subsequent operation that went beyond.mere
i ... extraction and which also faiis within the notion of commerce, insofar as it refines the quality
I.
of the raw material intended forexport and thus gives it added value.
68 See,paras.3.4-3.9,aboveSee,alsoStatementof Mr.Hassani,Vol. IV,paras.5-10.
69 See,StatementofMi-.Sehat,Vol. IV, para.10;Statementof Mr.Emami,Vol. IV, para.1;Srarementf
Mr.Alagheband,Vol. IV, para. 10.
70 See,paras.3.6-3.7above;andStatementof hlr. Sehat,VolIV,para.10.
71 See,para.3.8, above;and Statementf Mr.Elnami,Vol. IV,para.1.
n See,Statementof Mr.Alagheband,Vol. IV,para.10. 6.61 Third, al1of the platfoms that were attacked also allowed transport of
the crude oil from its place of extraction to a further destination, through pipelines. This
operation was indispensable for the export of the oil, since tankers had no docking facilities at
anyof the platforms themselves. Thus, at Reshadat Offshore Complex theoil produced by the
R-3 platform was transported by subrnarine pipeline to the R-4 platform, from where it was
sent, together with the oil produced by the R-4platform, to the R-7 platform; platform R-I of
the Resalat OffshoreComplex sent al1the production of its 14oil wells via pipeline to the R-7
platform; and R-7was Iinkedbypipeline to Lavan Island, where it sent al1the oil produced by
the Reshadat and Resalat Complexes. Similarly, the oil produced by the various platforms of
the Nasr Offshore Complex and bythe weHsin the Nosrat field was transported by pipeline to
the central platform of the Nasr Offshore Complex and from there to Sirri Island, through a
33-kilometre pipeline73.In her Separate Opinion appended to the Court's 1996 Judgment,
Judge Higgins considered that "no comparable allegations of fact were made as to the
transportational function of the installations destroyed" in the Salman ~ornplex~~h .an must
respectfully point out that this statement is incorrect. As has already been shown in Iran's
Mern~riai'~ and above", the central platform of the Salman Offshore Complex wasconnected
to LavanIsland by pipeline, and sent through the pipeline to Lavan al1the oil produced by the
seven inter-connected platforms andthe 21satellite welis ofthe complex.
6.62 The United Statesargues that ArticleX(l) did not protect the platforms
ut the time of the attacks. With respect to the Reshadat and Resalat platforms, attacked on
19October 1987, the United States alleges that thesefacilities had previously been damaged
by Iraq and consequently were not producing oil at the time. Furthemore, the United States
argues that no exports of oil would have been possible even if the repair work on these
facilities had been completed as, ten days afler the military actions against the platforms,
United States Executive Order 12613 ended ai1 direct oii exports fiom Iran to the United
States7',With respectto the Salman andNasrplatforms, attackedon 18April 1988,the United
73 See,para.3.9, above.See, also,StateofnMr. Hassani,Vol. IV,paras.6-10.
74 I.C.J. Reports 1996, p. 861, para.51. For this reason,and in accordancewith her interpretationof
Article X(l), JudgeHiggins consideredthat the Court did not havejurisdictionwith regardto the Salman
complex.
75 Iran'sMemorial,para.1.17.
76 See, para. 3.8, above. See, also, Statementof Mr. Hassani,Vol. IV, para. 8 and diagram1; and
Statementof Mr. Emami,Vol. IV,para1.
77 U.S.Counter-Mernorial,para2s..23-2.26.States only recalls that,by that date, the direct importationofIranianoil into the United States
had ~eased'~.
6.63 These allegations are irrelevant because, as bas been previously
dernonstrated,the existence of ongoing direct exports between the two Parties is not required
for the application of ArticleX(1). What has to be shown is that the relevant platfoms were
facilities designed for the performance of activities that were covered by the principle of
freedom of commerce betweenthe territories of Iran andthe United States.
6.64 In this context, it mus?be recalled, as the Court stated in 1996,that
"Iran's oil production, a vital part of that country's economy, constitutes an important
component of its foreign trade"". As mayclearly be seen from Chapter 3, Section 2, above,
the platforms that were attacked were valuable elements of an existing cornplex of Iranian oil
production intended for foreign trade, inclilding with the United States. Even after the
embargo of 29 October 1987,their productio~icontinuedto find its way to the territory of the
United Statesor could have so continued if the United Stateshad not destroyed the platfoms.
Consequently, it cannot be denied that al1 the oil platfoms that were attacked were
components in a system of Iradünited States commercial relations that existed before the
United Statesembargo,survived during the embargo,and was available for future direct or
indirect exports from the territory of Iranto the territory of the United States. As such, al1the
oil platfoms were and are protected at any time under the provision ensuring freedom of
commerce betweenthe territories of the two E'artiesto the 1955Treaty of Amity,regardless of
their actual productionat anygiven time.
6.65 Subsidiarily, Iran wishes to point out that even if a more restrictive
interpretationof Article X(1) were to be adoyited,the oil platforms, at the tirne of the attacks,
would still have been covered by the protection of the freedom of commerce guaranteed by
the 1955Treaty of Amity. In fact, as has already been shownin Chapter 3, Section 2, above,
either the oil platforms were producing oil at the time of the attacks, and their production
reached, directlyor indirectly (through third .States)the territory of the United States, or they
78 Ibid.para2.27.
79
I.C.J.Report1996,p.82 1,para.51.I were under repair at that precise time, and wereexpected to resume their activity imminently.
In other words, these platforms were not only a vital component of a system of potential
commerce betweenthe Parties, they were also participating at the time of the attacks in the oil
exports fromthe temtory of Iran to the temtory of the United States.
I
6.66 Moreover, with regard to the platforms attacked on 19 October 1987,
the United States argues that they were not to be considered as being protected ut the time of
the atracb, since ten days later a U.S. embargo ended al1 direct exportsfiom Iran to the
United States. As noted above, this argument is incoherent, as the United States aileges that
the protection granted by Article X(1) could at any given time be "brushed aside" expost and
with retroactive effect, by means of a unilateral decision intempting trading activities
between the Parties. Also subsidiarily, Iran submits that, in order to determine the scope of
protection ratione temporis of Article X(l) and the illegality of the U.S. actions against the
platforms, reference should be made only to the time when the platforms were attacked, and
not to Iaterevents, such asthe U.S. Executive Order.
6.67 For these reasons, it is Iran's submission that the platforms were
protected byArticIeX(l) at the time of the U.S. attacks.
B. The attacksbreachedArticleX(1)
I 6.68 The attacksagainstthe platfoms were carried out by United States
military personnel. As described above, the attack on 19October 1987was conducted by US.
naval destroyers, war-planes and helicoptersgO;and numerous U.S. military forces were
involved in the attacks on 18 April 198881 . onsequently, there can be no doubt -and this is
not disputed by the United States - that the attacks against the platfoms are attributable to the
United States in application of the general principles of international law concerning State
responsibilityas codified bythe InternationaILaw Commission'sDraft articless2.
80
81 Ses para.4.75, above.
82 See,paras.5.2,et seq.,above.
See, UnitedNations,Reportofthe ZnternationalLaw Commissioiothe GeneralAssernbly,1996, U.N.
l doc..4/51/10,pp. 125-151. The articles concerningattributionin the I,L.C.'sDraft Articles were further
discussedbytheCommissionin 1998, followingthesuggestionsbytheSpecialRapporteur(see, notably,United
I 359-408).eportofthe Internationl awCommissionto theGeneralAssembly,1998,U.N.doc. N531I0, paras. 6.69 The attacks were directed against commercial facilities that were %
protected by Article X(l) at the time and located in a zone where Iran enjoyed sovereign
rights. The details of the way in which the attacks were conducted and of their consequences
are described aboves3.
6.70 Etis clear that al1the atiiacksimpeded the normal functioning ofthe oil
platforms andthat they even resulted in the complete interruption of the platforms' activities
for a period of time, thus preventing gravelyr~b ovo the possibility for Iran to enjoy freedom
of commerce as guaranteed by Article X(1).TJotabiy,on 19 October 1987,the Reshadat and
Resalat Offshore Complexes were under repair, following Iraqi attacks, and were expected to
resume their activity shortlys4. As described above, the U.S. attacks destroyed the R-4
platform, as well as the vital installations o:fthe R-7 platform, thus darnaging the central
cornponent ofthe complex which was essential for the normal functioning of the who1ea5a ;s a
consequence ofthe attacks, the repair work wa.sinterruptedandprovisional production didnot
recommence until three years laterg6.On 18 April 1988,the works undertaken inthe Salman
Offshore Complex, followingthe Iraqiattacks,were about to be completeda7.The U.S. attacks
caused severe darnage to the installations of the platforms and interrupted al the repair
activities in the Salman cornplex, with normal production levels only being reachedagain in
199388 .hat same day, the U.S. attack against the Nasr Offshore Complex - which was
functioning normally at the time -resulted in thedestruction of vital installations thereon and
caused the disruption of the activities not o~ilyof the Nasr compIex itself, but also of the
Nosrat oil fields9.
6.71 As al1these platforms were protected by Article X(1) at the time, Iran
submits that the Courtmust inevitably conclu.dethat the U.S. attacks violated that provision,
as they created a severe obstacle to the freedom of commerce between the territories of Iran
and the United States.
83
See,paras.4.74,etseq. and5.2et seq.above
84 See,para.3.13, above.
85 See,paras.4.76 and4.78,above.
s6 See, para.3.29, above.
87 See,para.3.14,above.
88 Sec, paras.5.3-5.4,above.
89 See,para.5.5,above. 6.72 In addition, Iranmust stress that the attacks wereconducted through the
use ofmed force againstoil platfoms in an area wheie Iran exercised sovereign rights, thus
violating a nom of customary internationalIaw, also embodiedinthe U.N. Charter (Article 2,
paragraph 4). Although this fact is not directly relevantto the present instance, it serves as a
Mer indication that thU.S. actions breached Article X(1) A.s the Court stated in its 1996
Judgment, "theobjective of peace and fiiendship proclaimed in Article 1of the Treaty of 1955
is suchas to throw light on the interpretation the other Treaty provisions, and in particular
of Articles IV and XN9'I.t is clear that the creation of obstacles to the fieedorn of commerce
between the tenitoriesof the two High Contracting Parties,by the use of force in breach of
customary international lawembodied in the U.N.Charter,rides roughshod over the objective
of peace and friendship of the Treaty of Arnityand constitutes a flagrant violation of
Article X(1).
6.73 As a result of the attacks, and as has also beendescribed above, severe
darnage was incurredby al1the relevant Iranian oil platfoms, resulting in a decrease in Iran's
oil productionintended forforeign commerce for a protracted penod oftime. In addition, Iran
was obligedto engagein extensive remedial actionsin order to re-establish the previous levels
of activity and rebuild its infrastructure on the platforms designed for foreign commerce,
specifically with theUnited States, and to ensurethe protectionof the environment.
6.74 For these reasons, Iran asksthe Courtto adjudgeand declare that, by its
actions on 19 October 1987 and 18 April 1988, the United States viotated Article X(1)
protecting freedomof commerce betweenthe territories of the twoHigh Contracting Parties to
the 1955Treaty of Arnity,that the United States hasconsequently engaged its international
responsibility and,as a consequence, thatithas the duty to.make full reparation to Iran for al1
the darnages,losses and injuries caused.
90
1.C.J.Report1996,p.815,para.31. CHAPTER7. THE ABSENCEOFJUSTIFICATIONFORTHEUNITEDSTATES'
ATTACKS
Section 1. Introduction
A. Overview
7.1 This Chapter deals with the counter-arguments raised by the United
States that:
(a) its attacks werejustified as self-defence,and
(b) Iran'sclaim cannot be upheld because the attacks werejustified or excluded from the
Treaty ofAmity by Article XX(l)(d), since they were measures necessary to protect
the "essential security interests" ofthe United States.
Iran will show that the daim of seif-defence is completely flawed bothas a matter of fact and
as a matter of law, andthat the United Statescannotescape its responsibility under the Treaty
of Amity by relying on Article XX(l)(d).
7.2 In order to put the Iranian argument into its proper context, some
general legalcomments must be made on the status of the conflict between Iran and Iraq, as
well as on the impact which that conflict had, inlegalterms, on the relationship between the
Parties to the present proceedings and, in particular, so far as the law of neutrality is
concerned.
7.3 For reasons explained in Chapter2 above, it should not be forgotten, in
considering these issues, that Iran was subjectto a massive and continuing aggressionby Iraq,
for which Iraq has been held responsible.It is Iran's position thatthe intemationai cornmunity
shouldhave assisted in resisting this aggression.At a very minimum, third States were obliged
to remain strictly neutral. It should also not be forgottenin this context that the United States
inparticular wasparty to a Treaty of Amitywith Iran. B. Thesrmed conflict betweenIraq andIran and the lawof neutrality
7.4 At the relevant time an international armed conflict was taking place
between Iraq and Iran. There seems to be general agreement that,as a minimum, obligations
arising from the law of neutrality appiied to tliat conflict, even though no forma1state of war
was recognised bythe Parties tothe conflict'. Under current internationallaw, the application
ofthe law of neutralitydoes not presupposethe existence of a state ofwar in the formal sense.
Theexistence of anarmed confli ofta certainscale is sufficient2. There cm be no doubt that
the anned conflict betweenIraqand Iranwas ofa scale sufficient to trigger the applicabilityof
the lawof neutrality.
7.5 The law of neutrality is an estabIished domain of international Iaw. It
has been modified by the Charter ofthe United Nations, in particular by the prohibition ofthe
use of force, as well as by the powers of the Secut-ityCouncil to react to a threat to or breach
of the peace or an act of aggression. But subject to these modifications, the law of neutrality
is still aalid concept. As the Court held in itijAdvisoryOpinionontheLegalityofthe Useor
Threat of UseofNuclear Weapons:
"The Court finds that as in tlie case of the principles of humanitarian law
applicable in armed conflict, international law leaves us no doubt that the
principle of neutraliw, whate:ver its content, which is of a fundamental
character similar to that of the humanitarian principles and rules, is applicable
(subject to the relevant provi.sions of the United Nations Charter), to al1
ii3
international armed conflict,,. ,
Consequently, the position of the United States with regard to the armed conflict has to be
evaluated in the light of the applicable rules of the law of neutrality, Then, it has to be
determined whether and, if so, to what extlint the modifications of the law of neutrality
I See, Bothe, M., "Neutrality at Sea", in Dekker, J. F., Post W.H.G.(eds.), Guy War of 1980-
1988,1992,pp.205, et seq., p.206.
2 Schindler,D., "Transformationsof the Law of Neutrality si1945",inDelissen, A.J.M.Tanja, G.J.
(eds.), HumunitarianLaw of Armed Conflict. ChallengesAhead. Essays iHonour of Frits Kalshoven, 1991,
pp. 367, etseq., at p. 375; Bothe, M., "The Law ofNeutrality",in Fieck D. (ed.), The Handbook of
HumanitarionLawinArmedConflict, 1995 ,p. 485, et seatpp.490, etseq.
3 I.C.J. Reports1996,. 261,para. 89. effected by the Charter of the United Nations confirm the evaluation arrived at under the
traditionai rules of the law of neutrality.
7.6 Any State which is not an actual party to an armed confiict is subject to
the rights and duties of a neutral State. As a matter of iaw, there is no intermediate status of
non-belligerency between participation in an armed conflict and neutrality. The fact that in
relation to some confiicts, the stahis of certain States has been described as one of "non-
-belligerency"has not led to a change of the well-established customary mle4. This question
has to be disiinguished hm the question whether and, if so, to what extent, the law of the
U.N. Charter has modified the law of neutrdity. As will be shown, the U.N. Charter gives
certain rights to and imposes certain duties on neutrai states5. But these specific
modifications must not be confùsed with a wholesale sweeping away of the restraints of
neutrality by a unilateral claim of simple non-belligerency. Thus, the first question to be
asked is what are the rights and duties of the Parties to the present proceedings under the law
of neutrality. Then, as a second step, it has to be determined whetherand, if so, to what extent
different or additional rightsand duties arise underthe Charter.
7.7 The United States accepts that it was at no stage a party to the armed
conflict between Iraq and Iran. Accordingly, the rightsand duties of the United States have to
be determined by applying the rules of the law of neutrality, subject to any qualification that
may be necessary under the Charter. This, too, seems to have been accepted by the United
States, at least in itofficial statements6. There are two basic obligations under the law of
neutrality,namelythe du@ of abstention and thedutyof impartiality7. The duîy of abstention
means that the neutral Statehas to abstain from providing military assistanceto a belligerent.
Under this rule, the neutral State is not only prohibited from becoming involved in actual
fighting, but also from providing arms and other militaryequipment, whether the State does so
itself or whether it permits arms to be furnished by private persons or enterprises within its
4 Bothe, M.,"The LawofNeutrality", opcit.p. 486, note 2.
5
6 Schindler, D.,op. cit., atp.etseq.
Menefee, S.P.,"United State-Commentary",in de Guttry,A.,Ronzitti,N. (eds.), TheIran-Iraq War
71980-1988) andtheLaw ofNaval Warfare,1993 ,p.99, eseq.,at p.12.
Bindschedler,R.L., "Neutralit, oncept andGeneralRules",in Bernhardt, R. (ed.), Encyclopeifa
PubliIcnternationaLaw, Vol. 3,1997, pp. 549et seq., at pp. 551-552; Castrén,F., ThePreLmnl ofWar
and Neutralify, 1954, 44 ; PolitakisG.P. M,odern Concepts oftheLm ofNaval Wagare and Maririme
Neufralifypp. 366et seq.;see, also, Article 9 of Hague ConveVtand Articl9 of Hague Convention XII1
of 1907.jurisdiction8. The duty of irnpartialitymeans that the Statemust refiain fiombehaviour which
would tip the balance of the conflict in favoiir of one party or the other. The neutral State
must, in other words, refrain from interfering inthe outcome ofthe conflict.
7.8 The duty of abstention and that of impartiality were grossly violatedby
the U.S. "tilt"towards Iraq. This tilt resulted in a number of activities supporting Iraq which
had a significant influence on the course of the conflict9. U.S. support for Iraq, although
incompatiblewith the officia1statusof neutralityclaimed by the United States,was not a state
secret,butwas inpart at least overt. That doe:;not make it anyless unlawful.
7.9 As has been explained above, this support took various forms. The
United States systematicaily protectedthe interests of Saudi Arabia and Kuwait, two States
whicE gave (and were known to be giving) substantial military and financial aid to Iraq.
These two States are generally considered to have been allies of Iraq. Concerning Kuwait,
this is proved indisputably by the very fact that Kuwait officially recognised it later, when it
presented to Iran its apologies for having supported Iraq. The United States, fiu-thermore,
actively heIped to facilitate Iraq'saccess to war technology and arms deliveries fiom third
States. It placed at Iraq's disposa1decisive inilitary intelligence. It went so far as to give
directions to Iraq's fîghter planes attacking Irimian targets in the Persian Gulf. On the other
hand, it took active ateps to bar Iran's access lo rnilitary equipmentI0.These forms of support
for one of the belligerents are clear-cut violationsof the duties of neutrality. Furthemore, the
extraordinary change of trade patterns to the advantage of Iraq also constitutes a measure
which tips the balance infavow of one of the belligerentsand therefore constitutes a violation
of the dutyof impartiality.
7.1-0 As already stated, the behaviour of the United States must not only be
evaluated accordingto the yardstick of the lam.of neutrality,but alsoin the light ofthe rules of
the United Nations Charter relating to the use of rnilitary force. There is no denying the fact
that the anned conflict between Iraq and Irrin was started by Iraq. As the Report of the
Secretary-Generalof the United Nations confirms, it was a war of aggression perpetrated by
8
9 Oeter,S.,NeutralitütundWufienhandel1,992,.atpp.216,etseq.
'O ReportofProf. FreedmanV, ol. II,pa25.
See,ingeneral,Chapter2, above. lraq of which Iran was the victim". The United States, in its Counter-Mernorial, does not
make anyattempt to deny this legal evaluation of the conflict.
7.1 1 Under curent international law, it is not only aggression in the sense of
the act of the aggressor State itself which is unlawful, but also any assistance given to the
aggressor12.Thus,the support given by the United Statesto Ira q as not only unlawfùl under
the law of neutrality, it was also iilegal under the provisions of the Charter relating to the use
of force.
7.12 It is inconceivable that the law of neutrality or the provisions of the
Charter relating to the use of force could legitimise, by whatever legal construction, support
being given to an aggressor. Such legitirnation would be contrary to the basic purpose of the
Charter to protect the victim of aggression. If and to the extent that the United States becarne
involved in actual fighting related to this conflict, this would mean, on the part of the United
States, fighting in support ofan aggression,and it would therefore be unlawful. It may bethat
the Charter does not require third Statesactivelyto assist States confi-ontedby aggression, and
that collective self-defence isa right but not a duty. At the very least, however, the duties of
neutrality and impartiality imposed on a third State in relation to a State which is a victim of
aggression must be reinforced and made even more rigorous. In the present case the law of
neutrality and the provisions of the Charter may not have pointed in exactly the same
direction, but they combinedto prohibit any fom of assistance to the aggressor.
Section 2. TheFlawed Claimof Self-Defence
7.13 Against this background, it is possible to assess the basic counter-
argument against Iran's claim - the United States' argument that its attacks on the platforms
werejustified as self-defence. han's refutation of this argumentwill proceed as follows.
(1) Under the Charter of the United Nations, the right of self-defence as recognised by
Article 51has to be restrictively interpreted.
l I See, Iran'sMernorial,Exhibit42;see, also, paras. 2.12 and 2.14, above; Kaikobad,K.H., "luad
bellurn:Legal Implicationsof the Iran-IWar",in Dekker,J.F.,Post, H.H.G.(eds.)op. cit., p51, etseq.,
l2.59, etseq.Weller, M.,"Comments",ibid., pp.70,et seq.
Meyrowitz,H.,Leprincip d'égalitdes belligirentdevantledroit dela guerre1970,pp.375, et seq.(2) This applies in particuIarto thenotiori ofan armed attack which triggers the right of
self-defence. Theremust be a specificmed attack.
(3) Even if there were a general situation of hostile behaviourof Iran against the United
States, which Irandenies and the United Statescannotprove, this did not amount to an
armed attack. Thus, the only possible bases for a right of seif-defence are the two
single incidents invoked by the United States, narnely the fact that the Sea Isle City
was hit by a missile and the fact that the U.S.S.Samuel B. Roberts hit a mine. In
relation to these events, the United States bears the burden of proof that there was an
attack whichcan be attributed to Iran. TheUnited States is unable to establish that this
wasthe case.
(4) Evenif there were, in both cases, acts attributable to Iran, the claim of self-defence
fails as a matter of law. The attack againstthe Sea Isle City was not an armed attack
within the meaning of Article 51, because a single merchant ship does not belong to
those external manifestations of a State which are protected under the prohibition
contained in Article 2(4) of the Chartlzr,especially if they are in foreign ports. Thus,
the military action against this individual merchant ship did not trigger a right of self-
defence. In relation to the Samuel B. Roberts, the essential point is that mine-Iaying
during an armed conflict is not illegal,perse and cannotbe considered equivalent to an
armed attack.
Even if the wo events arnounted to armed attacks by Iran, the military operations by
the United States would not be justified, as they did not constitute self-defence within
the meaning of Article 51. Self-defence is limited to that use of force which is
necessary to repel an attack (the pririciple of necessity). This rule was violated, in
particular,because the choice of the target for the U.S. measures by way of "self-
defence" was totally unrelated to the alleged attack. Furthemore, once an attack is
over, as was the case here, thereis no need to repelit, and any counter-force no longer
constitutes self-defence, Insteadit is anunlawful armed reprisal or a punitive action.
The use of force in order todeter future attacks does notcorne within the definition of
lawful self-defence,but constitutes unlawful pre-emptive action. . (6) Finally, even if the two operations iaunched by the United States constituted self-
defence, they were still illegal as violations of the principle of proportionality, the
damage inflicted by them tu Iranbeing grossly disproportionate to the damage caused
bythe two events alleged to constitute armed attacksby Iran.
A. Theinterpretation of the rightof self-defence
7.14 In seeking to justifj its operations in destroyingthe three oiI platfoms,
the United States has principally relied on the contention that these operations constituted a
valid exercise of the rightof self-defence. The United States' contention is notonly unfounded
as a matter of fact; it is also based on an erroneously expansive interpretationof the notion of
self-defence. A few introductory words conceming the interpretation of the United Nations
charter and the prohibition ofthe use of forceare accordinglynecessary.
7.15 The basic point of departurefor any argument or interpretation is the
purpose of the Charter to protect future generations from the scourge of war, as the Prearnble
of the Charter puts it. Accordingly, Article 2(4) of the Charter contains a generalprohibition
of the use of force in international relations. For the same reason, the Charter has kept the
exceptionsto this prohibition ofthe use of force to an absoluteminimum. Unilateral recourse
to arrned force is thus limited to the exercise of the right of self-defence. Other justifications
forthe use of force, whether or not legitimate in earliertimes, areno Iongervalid.
7.i6 This basic approach has important implications forthe interpretation of
the rightof self-defenceas recognised by Article 51of the Charter. An extensive construction
of this provision could easily undermine the absolute characterof the prohibition of the use of
force". Aspointed out byone author", the wording of Article 51 is "deliberately restictive".
Along the same lines, Brownlieargues that:
13
14 See, Schachter,.,"Self-DefenceandtheRuleof Law", 83AJIL 259 (1989),pp. 277, seq.
Dinstein,Y.,War,Aggression andSelf-Defence,2ned.,1994,p. 183. "... a restrictive interpretation of the provisions of the Charter relating to the
use of force would be justifiable and that even as a matter of 'plain'
interpretation the permission iii Article 51 is exceptional in the context of the
~harter"'~.
7.17 As a consequence, the notion ofarmed attack triggering a right of self-
defence must be more narrowly constmed than the notion of unlawful use of force in
Article 2(4)of the Charter. As the Court held in itsNicaraguaJudgment of 27June 1986:
"the Court does not believe that the concept of 'armedattack' includes ...also
assistance to rebels ... Such a:rsistancemay be regarded as a threat or use of
force ... .6
This statement clearly irnplies that not every use of force is tantamount to an armed attack".
Inthe words of Professor Randelzhofer:
"Ztis to be emphasised that Articles 51 and 2(4) do not exactly correspond to
one another in scope, i.e. not every use of force contrary to Article 2(4) may be
responded to with armed selfIdefence. The U.N. Charter did not intend to
exclude self-defence entirely-, but restricted its scope considerably. A
cornparison of the different lxording of the two provisions illustrates that,
remaining uncertainties apart, 'med attack'is a much narrower notion than the
'threat or use of force'... The:view of the present author, narnely that there
exists a gap between Arts. 2(4-)and 51, corresponds to the prevailing view in
international legal writingsand issupported by U.N. practice..."'8.
7.1 The United States' stance,on the other hand, is based on a concept that
theendjustifies the means, that anyaction which it ailegesis usefülto defend the securityof a
statelg autornatically falls within the definition of lawfkl self-defence. Thejurisprudence of
the Court inthe Nicaragua case suggeststhe need for a morecarehl and restrictive approach.
It is in this spirit that the right of self-defence hasto beterpreted.
15 Brownlie ,.,InternationLaw andihe Use cfForce byStates,1963,p.273.
l6 1,C.J.Reports1986,pp. 103-104,para.195.
17 Higgins,R.,"Internationalaw and theAvoiiiance,ContainmenatndResolution ofDisputes",RdC230
(1991V),pp.9, efseq.,atp.320.
18 RandelzhoferA, ., "Ar51m.n. 4",inSimma,B. (ed.)TheCharter ofthe UnitedNations, 1994.
l9 See, inparticula, .S.Counter-Memoriap l,ar4.07. B. The UnitedStateswas not subjectedto an armedattack
1. The requirementof a specific armedattack
7.19 The United States claims that itacted in self-defence against armed
attacks launched by Iran. The acts of hostility principally singled out as armed attacks and
alleged to be attributable to Iran are the missile attack on the tanker Sea IsleCity on
16October 1987 and the fact that the Samuel B. Roberts hit a mine on 14 April 1988. In
addition, theUnited States also makes reference to several other attacks which it attributes to
Iran co,ntending that they constitute "a larger pattern" of Iranianactions2'. It is, however, not
possible to conclude on the basis of the facts alleged by the United States that there was a
general situation amounting to anmed attack against which the United States could claimto
be ina position of self-defence.
7.20 The situation of a continuous amed attack could exist if there were an
armed conflict between the United States and Iran. In this case, it would indeed not be
necessary to evaluate each single act of hostility in the light of the rules concerning ius ad
bellum;the legalityor othenvise of the hostilities would fa11to be determined in relation to the
conflictas a whole. In the case of suchan armed conflict, the relevant question in relation to
the right to self-defenceould be which State was responsible for the act of aggression which
initiated the fighting. The State acting in self-defence againstan med attack is not precluded
fromtaking the initiative in relationto a particular rnilitaryoperation, within the framework of
the overall armed conflict resultingom the attack.
7.21 The notion of armed conflict is, thus, also a key to the answer to the
question whether it is a situation as a whole which hasto be evaluated in the lofthe iusad
beIlurn,and not each particular military operation, which may or may not have been a
response to another one undertaken by an enemy. For this purpose, the definition of the term
"armed conflict" in the context of thiusin bello can be relied upon. A correct definition of
the term "armed conflict" is given in the Declaration made by the United Kingdom on
signature of ProtocolI Additional to the Geneva Conventions of1977:
20
See,for instance,U.S.Counter-Memorial,para.4.10. "the tem... implies a certain levelof intensity ofmilitary operations..and this
level of intensity cannot be less than that required for the application of
Protocol I..."
The latter part of the phrase refers to the negative definition of the term "armed conflict"
containedin Protocol II:
"This Protocol shall not apply to situations of interna1 disturbances and
tensions,such as riots, isolated and sporadic acts of violenceand other acts of
similar natures, as not beingarrnedconflicts".
Similarlythe manual The Law of ArmedCorcflictapproved in 1981 by the U.K. Ministry of
Defence definesthe term "armed conflict"as
"surtainedand concertedmilitaryoperations&intowarn2'.
7.22 Whatever incidents mqy have occurred betweenthe United States and
Iran during the Lraq-Iranwar may have been evidence of "tension", they rnay have been
"isolated and sporadic acts of violence", butthey were not "sustained and concerted military
operations akln to war", and certainly not on the part of Iran. Thus, there was no overall
armed conflict wherethe question of who attacked first would be meaningful. The situation
existingbetweentheUnitedStates andIran vas nut comparable to that of an invasion which
existed, for instance, between Iraqand Kuwait in 1990191. Inthat case, there was a
continuous situation of an armed attack whichjustified counterforce being used at a time
22
when there was no longer actuai fighting going on . It was the continuous occupation of
Kuwaiti territory which perpetuated the arrned attack made by Iraq. Nothing of the kind
existed inthe present case, as betweenIranand the United States. Thus, the question whether
there was anarmed attack triggeringthe righi.to self-defence on thepart of the United States
cannot be asked and answered for the situation as a whole, but only for each singIe incident
whichoccurred.
21 TheLaw ofArmed ConJiclManual preparedbytheU.K. ChiefofGeneralStaff, 1981p.6.
22 Higgins,R., ocit.pp.297, et seq. 7.23 This type of approach has also been adopted by the Security Council,
for example, in relation to issues arising between Israel and its Arab neighbour States. The
Security Council has consistently treated such situations as not arnounting to continuous
internationalarmed conflict, but rather has:
"... treated each new cornplaint arising out of a non-contested act of armed
force as though it had occurred in a non-belligerent, if not truly peaceful,
environment" 23.
I TheU.N.Secretariathas described U.N.practice as follow$':
"It was also stressed that self-defence could not be invoked continually, but
only fora single case of aggressionat a tirne".
In relation to an Israeli incursion into Lebanon, the Delegate of Argentina,for instance, stated
before theSecurityCouncil:
"... these actions have gone beyond what cm be justified as a Iegitimate
exercise of the right of self-defence, particularly in relation tothe specijîc
inciden refsrred to in the IsraeliAmbasçador'sletter"25.
7.24 Inthe present case, Iikewise, thereis also no basis for the application of
a "cumulation of events" theory of self-defence. Iisnoteworthy that such a theory has never
beenacceptecf by the SecurityCouncil, either in this or in other c~ntexts~~.
7.25 The United States itself, in earlier staternents, has consistently reliedon
'
rpecifisaîirallegedly iriggering iirrighiof self-defènçe. Arpainted out in the US. Counier-
Mernorial:
"...the legality of acts as self-defense can only be determined in relation to
specific events and circum~tances"~~.
23 O'Brien,W.V., "Reprisais,Deterrenceand Self-Defencein CountertOperations",30 Va.JI.of
1 ~nternntiona/Lmi.42i(ii90).~ip.4?6.
24 RepertovofPractice of U.N.Organs, SupplVol. Ip. 177.
25 SCOR,1649 mtg,24 June1972,p. 19(emphasisadded).
26 AlexandrovS. A.,Self-DefenAguinstthe UseofForceinInrernationalLaw,1996,p. 167.
27 U.S.Counter-Mernorial,ar4.08.And furtheron:
"... each of the two specific attacks that preceded United States defensive
measures - the missile attack on Sea Isle City a,d the mining of the USS
Samuel B. Roberts - was an arrned attack giving rise to the right of self-
defensel'*'.
7.26 The United States,at the time of the events, considered each alleged act
of hostility on its own. When its Permanent Representative to the U.N. complainedto the
U.N. Security Council about severd acts attributed to Iran, reference was made to specific
e~ents~~.Along the same lines, the Secretary of Defense stated on 19October 1987after the
U.S. attack on the Reshadat oil platform:
"Theaction isnow complete ..Weconsiderthis matteras now cl~sed"~~.
This position can only be explained on the basis that the United States was itself of the view
ihatthere wasno overall general situation of 'med aîtackplacing it in a continuous situation
of self-defence. Moreover,the United States clidnot raise, at the time of the events, anyclaim
in relation to the incidentsich it now has m.adethe subjectof the counter-claim.
7.27 The United States~mts to have it both'ways:it wants to have the rights
of a neutral State and at the sarne tirne the rights it would have only if it were a partyto an
armed conflict. Thus, the United Statesmaint:ainsthat it wasneutral in relation to the conflict
between Iraqand han and that the overall relations between the United Stateson the one hand
and each of the two parties to the armed co~tflicton the other hand were generally peacefül
andgoverned bythe Iawof peace. If this is the tme characterisation of the situation,then each
incident has to be evaluated on itswn merit.3as to whether it constitutes an armed attack or
an action in self-defence. On the other hand, if there had been, as the United States also
claims, ageneral pattern of aggressivebehaviour on the part of Iran, this would have placed it
in a general situation of self-defence, and cine could no longer Say that the situation was
exclusively governedby the law of peace.
2s Ibid.,para4.10.
29
IO lbid., p194-195.onzi~i,N.,op.cifpp.220-224. 2. The facts and the burdenof proof
7.28 The burden of proof concerning the existenceof an armed attack which
would trigger the right of self-defence lies onthe United States. It is a general rule of the Iaw
of evidence thatthe party relyingon the exception to a general rule must prove the facts which
are the basis forthis exception. Inthis sense, the general rule is the rule prohibiting the use of
force,and self-defence is the exception. Furthemore, as the Court held in the Nicaragua
case3':
"it is the litigant seeking to establisha fact who bears the burden of proving
it..".
There is no doubt that a State which relies on self-defence must prove that itis, as a matter of
fact, ina situationof self-defence. As has rightly been pointedout:
"...the state claiming self-defence must establish armed attack or its related
i32
notion of aggression ... .
7.29 To the extent that the United States relies onthe existence of a general
pattern of aggressive behaviour on the part of Iran, it must prove it. This the United States is
unable to do. In regard to the alleged pattern of aggressive behaviouron the part of Iran, the
only discernible "pattern" is one of unsubstantiated allegations. In particular, the U.S.
Counter-Mernorial misquotes the Security Council when it Statesthat the Security Council
"condemned Iran's~ittacks"~~N. either in Resolution 552, quoted by the United States, nor in
any other resolution did the Security Council rnake any determination as to the origin of
attacks on shipping, about which the Council was "deeply concemed" (Resolution 552) and
which it "deplored (Resolutions 582 and 598). Nor did the Council state or determine that
any of the acts mentioned in the Council resolutions constituted an armed attack or a pattern
of aggressive behaviouragainst any State. The Council never went tothe other extreme so as
to specifically blame Iran for anything. It is, thus, inappropriateto quote the Security Council
in support of the allegation that Iran adopted anaggressive behaviour against any State, let
3t
32 I.C.J.Report1984, p.437, para101
13 U.S.Counter-Mernoriatpl,ra1.10.alone the United States. On the contrary the subsequent Report of the Secretary-General
pursuant to Resolution 598held Iraq responsible forthe entiretyof the confli~t~~.
7.30 The United States tries to draw a general picture of Iranian attackson
neutral shiPPing35. However, the United States cannot justi@ its attacks on Lran's oil
platforms by reference to alleged Iranian attacks on "neutral" vessels. The United States
cannot, and has never sought to, sustain an argument basedon collective self-defence. As
pointed out in Chapter 2, U.S. policy in the P1:rsianGulfat the time was only to protectUS.-
flagvessels.
7.31 The United States houever also refers to alleged hostile acts by Iran
against US.-flag vessels or U.S. forces, as co~istitutingthis "pattern"of Iranian aggression. As
Iranhas already explained, these allegations are unsubstantiated. Also, at least two of the
incidents -the attackson the IranAjr on 21-22 September 1987andon Iranianpatrol boats on
8 October 1987 - wereattacks on Iranianvessi:lsby the United States.
7.32 Turning to the two specific individual incidents which are alleged by
the United States to form a basis for an exercise of the right of self-defence, it has aIready
been pointed out in Iran'sMemorial and is explained in more detail above, that the United
States'assertionswith regard to these incidents are essentially flawed on the facts. The new
evidence put forwardby the United States by no means establishes that the darnage to the two
ships could be attributed to han, still less tAatthe incidents in question constituted armed
attacks.
7.33 Inthe case ofthe SeaIsle Ci@, the only clearly established fact is that it
was hit by a missile. The United Stateshas failedto prove that the missile was fired from a
site which was under Iranian control at the relevant time. Iran has submitted persuasive
evidence that there are a number of different possibilities which contradict the U.S. version of
the facts.
34
35 See,paras.2.13-2.14, above.
Inparticula, .S. Counter-Memotipara. .O4 7.34 In the case oftheSamuelB.Roberts,the only clearly established fact is
thatit hit a mine. The evidence subrnitted by Iranshows thatit is sirnply not possiblto
determine with any certainty whether a particular detonatmine was Iranianor Iraqi. The
mines possessed by both countries were very similar. But even if it could be shownthat the
mine which hit the Samuel B. Roberts was of Iranian origin, this does not exclude the
possibility that the mines laid by Iraq.Iraqcould have "harvested" mines legitirnateIylaid
byIranin the Khor Abdullah areaandreused them elsewhere. The evidence produced by Lran
shows that Iraq had the capacity to Iay mines in the Persian Gulf both by ships and
helicopters". Furthemore, in order to be qualified as anmed attack,atthe very least the
mine-laying would have had to be specifically directed against aU.S. target. There isno
evidence produced by the United Statesto supportsuch acontention.
7.35 Thus, there are many plausible alternatives to the version of the facts
put fonvard by the United States. In this situation, the Court cannot accept a clairn of self-
defence. The United States has fallen well short of satisfying its burden of demonstrating an
armed attack.
3. The specificincidents
(a) The Sea Isle City
7.36 The Sea Isle Ci&was a reflagged Kuwaiti tanker. Even assuming that
itsreflaggingwas opposable to Iran, so that forpresent purposes it is to be treaaeUnited
Statescommerci aessei3',the factthat iwas hitby amissile does not amount to an armed
attack on the United States. An attackagainst suca ship ina foreign port was not an armed
attack against the United States for the purposes of Article 51 of the Charter. This is
especially so when there isno evidence that theSeaIslCit y as specificallytargeted.
7.37 Article 2(4) of the U.N. Charter prohibits the use of force between
States,i.e.by States against States. What is protected by the prohibiofthe use of force is
the State, in particular State territory. Certain external manifestations of a State are also
36
" See,Report of MT.Fourniol,Vol.VI,paras.2.1-2.12.
See, para10.9-10.14below, fotheargumentthatthereflaggingwas not opposatoeIraninthe
circumstances.protected, but not al1of them3*. Arrned fon:es and warships are generally considered to be
such external manifestations. On the other hand, individualrnerchantships are not anexternal
manifestation of the flag State, protected by Article 2(4). Thus, military action against an
individualrnerchantship maybe an infringerrientof the rights of the flag State, but it does not
constitute anarmed attack against that Stateiliggering that State'sright of self-defence. This
isthe viewheld bya considerable number of i~uthors'~. Inparticular,this view wasstressed in
comments relating to the Mayaguezincident. Inthat case,the United States had reactedto the
seizure by Cambodian armed forces of a single US. merchant vesse1by attacking targetsin
Cambodia. Accordingto a well-knownjurist:
"...the United States erred in 1975,when it treated a temporary seizure of the
merchant ship Mayaguez by Cambodian naval units as an armed attack
(invoking self-defence to legitimise the useof force in response)"".
7.38 This view is confined by the United Nations General Assernbly
Resolution concerning the Definition of Aggression. Article 3(d) of that resolution lists
arnongthe acts whichquali@as acts of aggre:;sion:
"Anattack by the armed force:;of a State on the land, sea or air forces, marine
and air fleetsof another tat te""'.
The word "fleets" was deliberately chosen inorder to make clear that only massive acts of
violence againstthe merchant shipping of a State, attacking whole fleets, wouldarnount to an
42
act of aggression .
3'
Thisis inparticulcontroversialinrelationto foreignnationalsabrosee,Alexandrov, S.A.,op. ci!.,
204; Bothe,M.,"NeutralityatSea",op.cit.,p. 209.
'' Bothe,M.,ibid.;and18Germon Yearbookqflnternational Law 127 (19751,at 134;Alexandrov,S.A.,
op.cit., pp. 194,etse4.;Donner,M.,Die neutraleHandelssch~fahim begrenztenmilitarischenKonflikl, 1993,
p.64; Lagoni,R., "GewalwerbotS,eekriegsrechut ndSchiffahrtsfieihmGolfkrieg",Festschrijif~r Wolfgang
Zeidler,1987,pp. 1833,erseq., atp. 1840; contra,Greenwood, .,inDekker,J.F.,Post,H.H.G.(eds).op.cil.,
pp.213, et seq.
40 Dinstein,Y.,op.ci!., p. 198; in the sarnesense BeyerU.,"MayaguezIncident" , BernhardtR, .,
(ed.),3 EPIL333;Alexandrov,S.A.,op. cit., p. 194,etseq.
41 XII11L.M.,p. 713.
42 See, Bothe,M.,op. cif.;Domer, M., op. ciand Lagoni,R.,op. cit.see,inadditionBrornç,B., "The
Definitionsof Aggression", dC 154 (1977 1),pp.299, et seq., atp. 351;Ferencz,B.B.,Dejning International
Aggression, 1975, Vol. 2p. 36; Repon of the SpecialCommitteeon the Questionof Defining Aggression,
Reportof theSixthCommittee,U.N. Doc.PJ9411,para.20. 7.39 The conclusion to be derived fiom the preceding considerations isclear.
The missile attack on the Sea lsle Ci@, whoever launched it, did not constitute an med
attack against the United States and thus cannot trigger the right of individual self-defenfor
the United States.
7.40 As the missile hit its target in Kuwait'sterritorial waters, there was an
attack against Kuwait. This would, as a matter of principle, entitle the United States to
exercise a right of collective self-defence in favour of that State. Butthe United States does
not claim to have acted in the defence of Kuwait. Furthemore, as the Court held in the
Nicaraguacase", this would require a request or at least the consent of the victirn of the
armed attack, i.e.Kuwait. There was no such request or consent. On the contrary, Kuwait
expressly stated thatit alone was responsible for the defence of itsterritory.
7.41 On the other hand, an armed attack againstan individual rnerchant ship
constitutes an illegal infringement of the sovereignty of the flag State. Under international
law,a Statehas the right to protect itself against such infringements. Thisisclem and obvious
in relation to violations of territorial sovereignty. Itis notessaryto evoke the rightof self-
defence to justi@ preventing persons (whether agents of another State or not), vehicles or
aircraft from penetrating into theState'sterritory. Similarly,a flag State can use force against
a foreign vesse1or aircraft actually attacking a merchant ship under its flag. It need not stand
idle and !et the ship be destroyed. But this is where lawful counterforce ends. The essential
point inthe Mayaguezcase was that the United States reactionwent far beyond that legitimate
degree of counterforce..This is also the situation in the present case.
(b) The Samuel B. Roberts
7.42 TheSamuelB.Robertswas hit by a mine. Even assuming that themine
had been laid by Iran, it by no means follows that laying the mine which finally hit a US.
warship constituted an armed attack against the United States. This couid onIy be the case if
the mine had been laid specifically for the purpose of hitting U.S. warships, but there is no
evidence to support this. In any event, laying mines in international waters during an armed
43
1.CJ. Reports986, p.105,para.199.conflict is not illegalperse44. This has been the consistent position ofthe United States and
its NATO allies. It is, for instance, reflectedinthe United States'Commander's Handbook on
the Law ofNaval ~a.fare~':
"Naval mines are lafil weapons, but their potential for indiscriminate effects
has led to specific regulation of their deployment and employment by the law
of armed conflicttt.
7.43 It istme that restrictions appIy if the laying of naval mines is to be
lawful. In particular, precautions must be taken in order to limit the effects on neutral
shipping. Notificationsmust be made (as sooiias military exigencies permit), anchored mines
must become harmless as soon as they have broken their moorings, the locations of mine
fields rnust be recorded and the mining must ]lotimpede transit passagethrough international
straits or archipelagic sealanes passage. If these precautionary measures are not taken, this
mayconstitute a violation of the applicable law relating to the conduct of hostilities in respect
of the other belligerent or of neutral States. But any failure to take such precautionary
measures, whether negligentor intentional, does not give the mine-laying the character ofan
armed attack. The notion of an med attack bynegligence is contradictory. An armed attack
requires an intent to atta~k~~. It is only under very specific circumstances, which are not
present here, that offensive mine-layingmay amount to an armed attack. The mere fact that a
United States ship hit a mine, even if that inine were proven to be an Iranian one, is not
sufficient to establish that there was illegalmine-Iaying,letalone an armed attack against the
United States.
C. Thelink between an armedattack and action taken in self-defence: The
requirements of necessity and proportionality
7.44 Even if, contrary to the:conclusions reached so far, it is supposed that
there was anarmed attack against the United States, the destruction of the two oil platforms
44 See, Hague ConventionVI11of 1907 relatiCO thelayingof automaticsubmarinecontact mines.This
Convention,sometimescriticisedas beingtoo permissive,isstill helavalid expressionof the law relating
tothe layingof mines. See,althe Court'sfüidingin its 1986Judgmentin the Nicaraguacase (I.C.J. Reports
1986, para.215, p. 112).See,also, Levie, H.S., "1907 Hague Convention VlIi Relative to the Laying of
SubmarineAutomatic ContactMines",in Ronzitti,N. (ed.),Law ofNmnl Warfare, 1988, pp.129,erseq., at
p. 146.
45 TheCommander5Handbook ontheLawofNmal Operalions,NWP9 (REV.A)/FMFM1 -10,9.2.3.
46
Higgins,R,,opcit.p. 14. still cannot be regarded as a valid exercise of the right of self-defence. The exercise of the
right of self-defence istrictly limited by the principles of necessity andproportionality47:
"According to the better and prevailing view, any recourse to the right of self-
defence.. .is subject to the principle of proportionality. Consequently,lawful
self-defence is restncted to the repulse of anarmed attackand must not entai1
retaliatory or punitive actionsnJ8.
7.45 On the level of abstract principle,the United States concurs in the mles
of necessity and proportionality. Butit will now be shown that its claim that its attacks were
both necessary and proportionate in relation to the alleged attacks is, once more,flawed, both
as a matter of fact and of law.
1. Necessityand the prohibitionof reprisals
7.46
The United States argues that the actions cIaimed to constitute self-
defence were "necessary" as there were, according to the United States, "no peacefül
alternatives to self-defense" because "Irac onsistently denied responsibility" for the alleged
attack~'~. This is contrasted with Iraq's behaviour in the Stark incident where Iraq
"acknowledged ifs re~~6nîibiiit~"~~.This line of argument arnounts to saying that if a State
denies having attacked the United States, this denial renders "necessary" a United States
response using military force. Thisrequires no fùrthercomment.
7.47 The principle of necessity means that ody that use of force which is
necessary in order to repel an attack constitutes lawful self-defence. If an anned attack is
terminated, there is no fiu-therneed to repel it". Thus, self-defence is lirnited toan "on-the-
spot reaction", i.e., the necessay, immediate response to an arrned attack. This is the
principle of irnrnediacy: it means that the employment of counter-force must be temporally
47
48 1.C.JReports1986,p.94, para.176.
Randelhofer,A., "Art.51 m.n.37", in Simma,B. (ed.),op.cit.;Ago, R., Addendumto the Eighth
ReportonStateResponsibility,YILC 19801111p. 53;Brownlie,I.,op. cit.,p.434; Dinsteinop. citp.202.
49 U.S .ounter-Mernoria l.ra.4.24.
50 Ibid .ara.4.25.
Ago, R., op. cil., p. 70; Malancnik,P., "Counter-Measureasnd Self-Defence as Circurnstances
Precluding Wrongfulnesisn the InternationLaw Commission'sDrafl Articles on State Responsibility",in
Simrna,B., SpinediM.(eds.),UnitedNatiomCodijîcutionofSrareResponsibility,1987,pp. 197,254.interlocked with the arrned attack triggering Inthe case of the invasion ofanother State's
territory, in principle an attack still exists as longthe occupation continues. But in cases of
single med attacks(as distinguished from ageneralsituation of armedconflict), the attack is
terminated when the incident is over. In siich a case the subsequent use of counter-force
constitutes a reprisal and not anexercise of self-defences3. Inthe present case, both the attack
on the SeaIsle Ci@ and that on the Samuel B. Robertshad terminated when the counter-force
was exercised. Thus, the counter-force did not constitute an act of self-defence within the
meaning of Article 51. It cannot, therefore, bejustified under thisprovision.
7.48 Lnsuch a situation, cciunter-forceis not defensive; it is a means of
retaliation or punishrnent, and as such canncrtconstitute self-defence within the meaning of
Article 51. Retaliation, punishrnent orthe eriforcementof rights (Le.,reprisals) are not valid
reasoiisjustifying the use of forces4. As was stated byR. Higginsin 196355:
"Forcible self-help for the piu-poses of obtaining rights already violated is
illegalt.
7.49 More recently,Judge Higgins has saidthat:
"...self-help isunlawful under the Charter.. .The texts of Articles 2(4) and 51
clearly do not allow reprisals; and the study of other instruments and practices
andjudicial decisions does not allow oneto conclude that there has been anyde
facto amendment of the Charteron this point..."56.
Anauthor quoted by the United States, Oscar Schachter,clearlyagrees:
"...a reprisal for revenge or as a penalty (or 'lesson') would not bedefensive.
United Nations bodies or third States rnay legitimately condemn such
retaliatory actions asviolations of the charterns7.
52 Dinstein,Y.,op.cii., pp.214, etseq.
53 See, alsCassese,A., "Article51",iCot, J.]?Pellet, ALuChartedesNationsUnies, 1991,pp.773,
etseq.
54 Schachter,O., "TheRightof States toUse ArmedForce",82 Michigan Law Review 1620 (1984), at
p. 1638.
'' Higgins, R., The Development of Internatil?nulLaw Throvgh the Political Organs of the United
Nations,1963,p.2 17.
56 Higgins,R., "Internationl awandthe Avoidance,Containment and Resolutionof Disputes",op. cit.,
pp.308, etseq.
57 Schachter,O., InternationalLaw in Theoiy and Pracrice,p. 154; see, U.S. Counter-Mernorial,
para.4.27. 7.50 In the practice of United Nations organs, armed reprisais or punitive
action have constantly been ~ondemned~~.To quote the Ambassador of France before the
SecurityCouncil:
"While it is clear that France regardsterrorist acts as totally reprehensible, it is
i slso clear that we take the same attitude towards acts of reprisal"59.
To conclude, the purpose of the United Statesf attacks on the platforms was not that of
repelling an actual attack. Itwas, at most, a reactionto an alleged wrong that had happened in
the past. Infact the true nature of the attacks was not evena reaction to any aIleged previous
attack. They were attacks on Iran's economy whichhad been pianned for a long tirne and for
which the incidents only fmished a desired pretext.
2. IIlegaIityof anticipatoryseIf-defenceor forcefuldeterrence
7.51 The United States, however, relieson a broader concept of "necessity",
defining self-defenceas anaction "necessaq to restore security" 60.
i
7.52 It is sometimes argued, indeed, that avalid exercise of the right of self-
defence alsoexists wherecounter-force is used in orderto prevent a recurrence ofthe first use
of force. The United Statesfargument mainly relies on a passage in the San RemoManual, a
statement of the law of naval warfare elaborated by a groupof experts which has, however, no
officia1status. Thepassage reads as follows:
"The principle of necessity and proportionalityapply equally to armed conflict
at sea and requirethat the conduct of hostilities by a State should not exceed
the degree and kind of force, not otherwiseprohibitedby law of armed conflict,
requiredto repel anattackagainsrif andto restore if securiVM6'.
The problernposed by the formula used by the SanRemo Manual and by opinions advocating
a broader conceptof necessity consists inthe need to distinguish amore permissive concept of
58 O'Brien,W.V.,op.cir., pp.438, seq.
59 33 UNSCOR,2072"~ rntg.,p5.
60 See, U.SCounter-Mernorial,PartIV,Chap. IV,Sect2.
61 San Remo Manual, Sec.4; emphasisadded. self-defence from pre-emptive military actiorxwhich does not constitute lawhl self-defence.
I
As already noted, international law does not recognise merely pre-emptive action as self-
defence6'. Inthe wordsof Y. Dinstein:
I
"Regardless of the shortcomingsof the,163tem, the option of a pre-emptive use
of force is excluded by Article :j1... .
7.53 Some authors take a ~iuancedstance on the question whether self-
defence is restricted to the case where an armed attack hasalready occurred. But in the light
of the fact that a claim of anticipatory self-defence can beyand often has been, abused, they
definethe circumstances in which a first strik:ecould be Iegitimisedas self-defence in a very
restrictive way, using the old formula of the:Carolin cease6'. Self-defence is restricted to
those cases where the necessity is "instant,ovl:rwhelrning,leaving no choice of rneans,and no
moment for deliberation". This view is shared by Amencan authors on whom the United
States relies6'. The United States has failed 1.0give any proof that this restrictive custornary
law standard for anticipatory self-defencehas been replaced byanymore permissive
7.54 It is worth noting that the United States Rules of Engagement for the
Forces in the Gulf were based on a concept of self-defence based on the Caroline formula.
"Self-defence" which the on-scene commarider is authorised to undertake is defined as
foIlows:
"US ships or aircraft are auttiorized to defend themselves against an air or
surface threat whenever a hostile intent or ahostile act oc~urs"~~.
Thekeynotions of "hostileintent" and "hostile act" are defined as follows:
62 Alexandrov, S.A., op. cil., p. 165;Brownlie,I.,op.p.278; Bothe,M.,Lohrnann,T.,"Dertürkische
Einmarsch im NordirakW 5,SchweizerischeZeitschrift,fürinternationalesundeuropüischesRecht/Revue suisse
de droifinternationnicf de droiteuropéen441 (1995), p.449; Mratek,J.,"Prohibitionofthe Use andThreat
of Force:Self-DefenceandSelf-HelpinInternationa l,awW ,7 CanYIL81(1989), p. 96.
63
63 Dinstein,Y.,op.cit.p. 184.
Hi'gginsR, .,"InternatioLlawandthe Avoiclance ,ontainment andResolutionof Disputes",op. cil.,
p.3 10.
65 See,forexample,SchachterO , .,In~ernationl awin TheoryandPractice,p. 152.
66 See,U.S .ounter-Mernoria pa,ras4.43-4.44.
67 26 I.L.M.1433(1987)-p. 1454. "Hostile intent: The threat of imminent use of force against friendly forces, for
instance,any aircraft of surface ship that manoeuvres intoa position where it
could fire amissile, drop a bomb or usegunfire.. .
Hostile act: Occurs whenever anaircraft, ship or land-based weapon system
actuaily launches a missile, shootsa gun or drops abomb toward a shiptt6'.
7.55 If correctly understood, the San RemoManualdoes not go beyond this
limited concept of necessity. In the sentence following the one quoted by the U.S. Counter-
MemoriaI,the restrictions to which the rightof self-defence is subject are cIearlyindicated:
"Hawfar a State is justified in its rnilita actons agains tte enemy will
depend on the intensity and scale of the armed attack for which the enemy is
responsible andthe gravityof thethreat posed"69.
7.56 The question raised by this formulation and by the U.S. argument is
whether it is possible to combine two variations of the right of self-defence, narnely that of
self-defence againstan actual attack and anticipatory self-defence, and by doing so to justi@
actions which would not be justified under either concept, considered on its own. The
expression coined by Osca Schachter in this respect, "defensive retaliation", is revealing.
This is a very dangerous concept which the Court, it is respectfully submitted, should not
accept. It would certainly be contrary to the principle of the restrictive interpretationthe
rightof self-defence accepted by the Court in theNicaraguacase7'. The authors on which the
U.S. Counter-Memorial relies use this conceptin a much more cautious way than does the
United states7', and in the way they use it, the,concept would aot justify the snacks in the
present case.
7.57 Rie U.S. argument, in the final analysis, tries to blur al1the relevant
distinctions which international law has developed to prevent abuses of the claim of self-
defence, of which there are fartoo many examples. The distinction between self-defence on
the one hand and reprisais and punitive action on the other must be upheld. Only reaction to
68 Ibid.
69 San Remo Manilui,sec.5.
'O See, para7.17 ,bove.
71 Henkin,L., "Useof Force:Law andU.S. Policy",in Councilon ForeignRelations(ed.), Righ~vs.
Mighl.InternationalLmv and the Use of Force,19p.45, clearlyrefersto thesituationof a fully-fledgedwar
of aggressionwhichhastobedistinguishefromthatofsingle incidents,which isthecasehAsto Schachter,
see, beiow.an existing, ongoing attack constitutes self-defence. Similarly,the distinction between self-
defence and pre-emptive self-help must be u.pheId.Onlysuch anticipatory self-defence as is
legitimisedunder the Carolineformula cm bt:consideredlawful.
7.58 It is obvious that the United States' actions did not constitute self-
defence in this sense. Even the "Schachter formula"just mentioned, ie. the concept of
"defensive retaliation"does not cover the U.!;.actions. Sucha formula would only legitimise
action to prevent the recurrence of attacks 'Pom thesomeso~rce"'~.It might havejustified a
counter-attack against a missile launching site in the case of the Sea Isle City incident or
against mine-layingboatsin the case of theSrzmuel B.Roberts. Itwould notjustifi the attacks
againstthe oil platforms.
7.59 In order for the UniteclStates to meet the requirements of instant and
ovenvhelming necessity, the platfoms which were the objects of the attacks must at least
have constituted some kind of a threat. This, clearly, was nat the case, though it helps to
explain the United States' obsession with characterising the platforms as "military
installations". The evidence submitted by Iranclearly shows thatthe platforms were not, and
could not be, used for such purposes as harassing U.S. maritime commerce or militarily
threatening U.S. naval vessels in the Persimi Gulf. If, for instance, radar instalIations on a
platform were considered a military threat, as the United States claims they were, it must be
emphasised that the only installation which had a radar set (albeit a commercial navigation
set, in disrepair and malfunctioning) was the R-4 platfom. The destruction of that platform
had not originally been planned by the United States, and the commander of the operation
ordered its destruction onlyas a "target of oppomuiity"73. The U.S. operation was directed
against the centrallatform which had no radar. This can onlybe explained by the fact that it
was the easiestway to put the entire oil prodiictionsystemout of operation and, thus, to inflict
maximumeconomicdarnage to Iran. But the infliction of maximum econornichm certainly
was not "necessary"for the purposes of self-defence. Thus,the wholedesign of the attack on
the Reshadat complex cm only be explaineri as a punitive measure or reprisal, which is not
lawful under international law. As explaineclin Chapter 5 above, the sarne remarks apply to
the U.S. attacksonthe Salman and Nasr ptatforms.
''
73 See,para.4.76, above.tioLml inTheorya.vdPraciicep. 154emphasisadded. 7.60 To sumrnarize, preemptive rnilitary action going beyond anticipatory
self-defence in this strictly limited sense is unlawful and has constantly been condernned by
the United ~ations'~. A strictly lirnited right of anticipatory self-defence in the sense of the
Caroline formula must not be confused with deterrenceand retaliation which do not constitute
lawful self-defen~e~~.
7.61 Thus, the political legitimation used, namely "teaching Iran a lesson"
not to use force againstthe United Statesand its allies, cannotjustiQ the United States' use of
counter-force as a matter of law. The ciaim made by the United States that the operations
were necessary in order to deter future acts thus cannotjustifi the operations.
3. The attacks were, in any event, wholly disproportionate
7.62 In order for the use of armed force against another State to constitute
Iawfulself-defence, in addition to the principle of necessity the principle of proportionality
applies. It is an uncontroversial requirement of self-defence that counter-forcemust not be
excessive in relation to the first use of force76. This means that the damage done by the
counter-force must be cornensurate with or generally comparable to that caused by the first
use of force.
7.63 Despite the US. affirmations to the contrary, there was a gross lack of
balance between the damage allegedly caused by the "attacks" on the United States and the
destruction which resulted fiom the United States' attacks on the platforms. The U.S. attacks
inflicted extremely heavy darnage on the oil platforms, resuiting in a total loss of their
productive capacity, which, under the circumstances, was a very serious blow to the economy
of Iran. Again,it should not be forgottenthat Iran was at that time subject to massive Iraqi
aggression, and that Iraq'sown attacks focusedon Iran'soil activities, which are of course the
life-blood of the Iranian economy. It should also not be forgotten that the first U.S. attack in
October 1987 was followed ten days later by stringent sanctions against Iran; and that the
74 Alexandrov,S.A., op.cil.p. 159,etseq.,andpp. 172,etseq.;O'Brien,W.V., op. cil.pp.426, etseq.;
Schachter,O., TheRightof States tUse ArmedForce",op. cil.p.1635.
75 Higins, R., "internationalLawandtheAvoidance,ContainmentandResolutionof Disputes",op. cil.,
3 13;SchachterO., "SelfDefence andthe RuleofLaw",op. cci,p.273.
RandelJiofer,A."Art.51 m.n 37IqinSima, B. (ed), op. cil..second set of attacks on Iran'soil platforms, on 18April 1988,was part of a major military
operation, "Operation Praying Mantis", which also involved the destructionof half the Iranian
Navy, simultaneous with a major Iraqi offensiveon the Fao peninsula.The United Statesmust
show that these operations in their entirety were proportional. However, the incidence of the
damage caused to two U.S.-flagged ships, one of which was a reflaggedKuwaititanker, can in
no way be compared; it waswholly incommeiisuratewith and out of proportion tothe damage
causedto the platforms and to Iran. Furtherrnore,this hm was excessive in relation to any
damage suffered by the United States,because the platforms were purely civilian installations
that served no offensive militaryp~rposes77. It must be concluded that the U.S. counter-force
waçdisproportionate to the alleged first use of force.
D. Conclusion
7.64 The United States' attempt to justi@ its actions by reiying on self-
defence fails for a number of reasons. Therr:was no armed attack against the United States
which could be attributed to Iran. The United States bears the burden of proving the facts
constituting such an attack, and hasfallen well short of satisfiing this requirement. But even
if there had been such an attack, the United States'actions were still unlawful as theydid not
meet the requirements ofnecessity and propoitionality.
Section3. The United States' Defencerelating to Essential SecurityInterests
A. Introduction
7.65 ArticleXX (1) (d) of the Treaty ofAmityprovides that:
"1. Thepresent Treaty shall notpreclude the application ofmeasures
(d) necessary to fulfil the obligation of a High Contracting Party for the
maintenance or restoration of international peace and security, or necessary to
protect its essential security interests".
- --
77
ThisisexplainedinmoredetaiiinChap.3,above. 7.66 In its Preliminary Objection, the United Statesargued that "the Court
carinot entertain a claim under the 1955 Treaty unless it is first satisfied that the conduct
complained of does not constitute 'measures.. . necessary to protect' the essential security
interestsof the United statest17'. The Court rejected this argument. It noted that the United
Statest position on this point had been modified during oral argument on the Preliminary
1
Objection, andthat this was consistent with its previoiis decision onan identical provision of
another Treaîy of Amity in the case concerning Militaryand ParamilitaryActivities in and
againstNicaragua. The Courtconcluded that:
i
"Article XX, paragraph 1 (d), does not restrict its jurisdiction in the present
case, but is confïned to affording the Parties apossible defence on the merits to
be used shouidthe occasion ari~e"~~.
And it went on to reject a reIated United States argument that the Treaty of Amity has no
applicationto the use of force.
7.67 Now the United States makes the argument based on "essential
securiQ" interestsby way of a defence at the merits stageg0.Inconsideringthis argument,it is
necessary first to consider the meaning of Article XX(l)(d), and then its application to the
presentcase.
B. The meaning and interpretation of Article XX(l)(d)
1 7.68 As the Court observed during the PreliminaryObjection phase of the
present case, an identicaily-worded provisionof a similar treaty with the United States was
considered by it in the Nicaraguacase. The Court decided that there was"no reason to vary
the conclusionsit arriveclatin 1986"~~.Confomlably vith the weli-ertablishcd practice afihe
Court with respect to ite own previour decisionsg2,those conclusions are accordingly the
starting pointfor analysingthe present case.
I 78 U.S. PreliminaryObjection, pa3.38.
79 I.C.J.Report1996,p. 811,para.20.
80 U.S. Counter-Mernorial,Part III.
81 I.C.J.Report1996,p. 811,para.20.
62 See, e.g., the analysis by Shahabudee, ., Precedent inthe WorldCourt,Cambridge, 1997, in
I particularChap.10. 7.69 In Nicaragua, the Court made four points about the interpretation of
ArticIeXXI(l)(d) of the Nicaragua-United States FCNTreaty:
(a) First, it held that the interpretation and application of that exclusion was a matter for
the Court, and that the invoking StateIiadno right of "auto-interpretation" with respect
to that provision83. It cantrastedthis 'Niththe language of Article XXI of the General
Agreement on Tariffs and Trade, whch refers to action which the party in question
"considersnecessaf ror the protectia-nof its essential securityinterests in specified
in the sarne vein the Court stressed that the requirement that the measures be
(b)
"necessary" was an objective one for judicial application by the courts5. It may be
noted that the word "necessary" OCCUIS no fewer than nine times in this Treaty, in
different formulations (viz., in Articles I1(3),(4) ("reasonably necessary"); IV(4)
("necessary or incidental"); VII(1); VIII(5) (twice); XV(1) ("necessary and
appropriatel'), XIX(c), XX(l)(d)). This is objective language, the language of
necessity. It is not the language ofsub-jectiveself-judgment.
(c) As to the first eIement of paragraph (l)(d), relating to "measures... necessary to fùIfiI
the obligations of a Party for the mainrenanceor restoration of international peace and
security", theCourt noted that this plirase only applies to measures which the State
concerned was obliged to take, e.g., by virtue of Article 25 of the Charter, and that it
therefore had no application to "the: eventuality of the exercise of the right of
individualor collective self-defencews6.
I.C.J.Reports1986,p. 116,para222.
Ibid., emphasisadded.Anotherrelevantcon.rastwould have been theConnallyAmendmentto the
UnitedStates'acceptancofjurisdictionundertheOptionalClause. TheUnitedStatesknewperfectlywell how
to phrasan automaticreservation,exciudingsomecl~s of issuesfrornthe Court'jsurisdiction onthebasisof its
ownsubjective determination. utArticleXX(I)(d)dciesnotSay"necessary,intheopinionof theUnitedStates
ofAmerica, toprotectitsessentialsecurityinterestsasdeterminedbytheUniredStatesof America".
1.C.3.Reports1986, p1 6, para.222.
86 Ibid .,117,para.223. (d) The Court accepted that measures taken in self-defence would be covered by
paragraph (1)(d). However, it was forthe Court:
"... to assess whether the risk run by these 'essential security interests' is
reasonable and, secondly, whether the measures presented as being designed to
protect these interests are not merelyusehl but 'ne~essary"'~~.
By inference, in such a case the onus is on the State relying on paragraph (I)(d) to establish
the justification. This is consistent with the Court's emphasis, in its 1996 Judgrnent in the
present case, on the point that paragraph (l)(d) creates "a possibIe defence on the merits".
Even if paragraph (l)(d) is formulated as an exclusion of certain conductfromthe ambit ofthe
Treaty ("shall not preclude the application of measures ..."), nonetheless its effect is to
legitimize conduct othetwise unlawful under the Treaty, and it therefore has the effect of a
substantivedefence". The onus is on the Party invoking itto establish such a defenceS9.
7.70 Guidance as to the interpretationand application of Article XX(l)(d) of
the 1955Treaty of Amitycan also be obtained from the wayin which the Court in Nicaragua
applied the equivalent provision of the 1956 Nicaragua-United States Treaty to the facts of
that case. Having deterrnined that the United States had committed acts "incontradiction with
the ternis of the ~reat~"", the Court made the followingpoints.
(a) First, the question was whether the activities were necessary at the relevant time,
having regardto the factual situationat that time.
"If the activities of the United States are to be covered by Article XXI of the
Treaty,they must have been, at therimetheywereraken,measures necessary to
protect its essential securityinterestsw9'.
68 Ibidp .,ra.224.
TheUnitedStates describes ArticleXX(l)(d) as creating"acompletedefenseto anyclaimthatcovered
actionsviolatetheTreaty"(U.S. Counter-Mernoriap l,ara3.04). Itgoesontotreattheparagraphaseffectively a
"self-judgingreservation,inwhichcase iwouldnotbeadefenceproperlyso-calledatall.
89 Thusthe UnitedStates'argumentthatthe Court mustbe "firstsatisfiedthatthe conduct complained of
does notconstirute'measures...necessaryto protect'the essentiasecuri tnterestsof the UnitedStates"(U.S.
PteliminaryObjection,para.3.38) preciselyinvertsthesituation.
90 Z.C.. Reports1986, p. 140,para.280.
91 Zbid.,p. 141,para.281;emphasisadded. Thus, it is not enough that some general or generic response might have been called
for; theparticular response in the particular circumstancesof the case hasto be looked
at, and seento bejustified by thepartic:ularfacts.
(b) Secondly,re-emphasising theimportariceof the objective requirement of necessity,the
Court went on to hoIdthat the measures taken bythe United Statesin that case (attacks
on ports and oil installations, the mining of theports and the general trade embargo)
were not "necessaIyUand were thercfore not exempted by paragraph (l)(d). The
relevant passage reads asfollows:
"282. Secondly, the Court emphasizes the importance of the word 'necessary'
in ArticleXXI :the measures taken must not merely be such as tend to protect
the essential security interestsf the partytaking them, but must be 'necessary'
for thatpurpose. Taking into account the whole situationofthe United Statesin
relation to Central Arnerica, so fa as the Court is informed of it (and even
assurning that the justification of self-defence, which the Court has rejected on
the legal level, had some validity on the politicaI level), the Court considers
that the mining of Nicaraguari ports, and the direct attacks on ports and oil
installations,cannot possibly be justified as 'necessary' to protectthe essential
security interestsofthe United States.As to the trade embargo,the Court has to
note the express justification for it given in the Presidentialfinding quoted in
paragraph 125above, and that ihe measure wasone of an economic nature,thus
one which fell within the sphere of relations contemplated by the Treaty. But
by the terms of the Treaty itself, whether a measure is necessary to protect the
essential security interests of a party is not, as the Court has emphasized
(paragraph 222 above), purely a question for the subjective judgment of the
party;the text does not refer i:owhat the party 'considers necessary' for that
purpose. Since no evidence at ;il1is available to show how Nicaraguan policies
had in fact become a threat to 'essential security interests'in May 1985,when
those policies had been consi:;tent, and consistently criticized by the United
States, for fouryears previously, the Court is unable to find that the embargo
was 'necessary' to protectthosi: interests. Accordingly, Article XXI affords no
defence for the United States in respect of any of the actions here under
cor~sideration''~~.
Clearly the Court was here applying an objective standard, having regard to al1the
facts including the impact of the measures on the targeted Stateand the consistency of
the position adoptedby the United States.
-
92
Ibid.pp. 141-2para.282. (c) In the present case, wharis primarily relevant is the Court'sdecision in relation to the
mining of ports and the use of force against Nicaraguan ports andoil installations,as
distinct fromthe trade boycott. Inrelationto this,it is significant that two members of
the Court who dissented from itsdecision on the application of paragraph (l)(d) tothe
trade boycott, nonetheless agreed with the Court in relation to the mining of ports.
Thus Judge Oda in his Dissenting Opinion said:
"Frorn rny point of view, the United States decision on a trade embargo, quite
unlike that on layingof mines, is open tojustification under Article XXITrade
is not a duty of a State under general international law butmay onIy be a duty
imposed by a treaty to which that State is aparty,andcm be suspended under
certain circumstances expressly specified in that treaty. In fact, the United
States, when'declaring a trade embargo on 1 May 1985,did not announce its
relianceon this particular provision of the Treaty, but, instead, gave notice on
the sarneday to terminate the Treaty. Even so,1am inclined to maintain that, in
principle, the tradeassured by Article XIX,paragraph 3, of the Treaty, could
also justifiably have been suspended in reliance on another provision, Article
XXI,of the same Treaty.
89. 'Layingmines' is totaliy different,in that it is illegal in the absence of
anyjustification recognized in international law, while Article XXI of the
Treaty, being simply one provision in a commercial treaty, can in no way be
interpreted to justi@ a State party in derogating from this principle of general
international law.1 must add that this action did nat meet the conditions of
necessity and proportionality that may be required as a minimum in resort to
the doctrine of self-defenceunder general and customary international law. I
thus conclude that, under thejurisdiction granted to the Court by Article XXIV
of the 1956 Treaty, the Court should have found the UnitedStates responsible
onIy for violation of Article XIX by laying mines in Nicaraguan waters. It was
for thi93reason only that 1 voted for subparagraph (14) in the operative
clauset'.
Judge Jennings took essentialIythe sarneposition inhis Dissenting Opinion:
"Again it must be emphasized that the issue here is not simply the Iawfùlness
or unlawfulness of the act in general international law,but whether it wasalso
in breach of the terrnsof the Treaty? Certainly itis prima facie a breach of
Article XIX,providing for freedom of navigation; but is it a 'measure' excepted
by the proviso clause ofArticle XXI? Although not without some remaining
doubts, 1 have corne to the conclusion that Article XXI cannot have
93
Ibid pp.252-3,paras.88-89. contemplated a measure which cannot, under general international law, be
justified even as being partof an operation inlegitimateself-defence"".
7.71 In the light of the positi.onstaken by Judges Oda and Jennings, as well
as by the Court itself, it is submitted that pariigraph(l)(d) must be interpreted in the light of
general internationai law, and that it cannot legitimise or permit breaches of the Treaty of
Arnitywhich are also clear breaches of mandatoryrulesof international law. Although it may
be that, as the Court has held, the rules of general international law are not incorporated by
reference into the Treaty of hity by way of its Article 1,nonetheless, as it has also held,
Article 1is relevant to the interpretation of he Treaty, and thereby so too are the rules of
international law relating to friendly relations between Statesin accordance with the Charter
of the UnitedbIations9'. This istrue not only of Article X(1) but also of Article XX(l)(d). In
a Treaty of Arnitywhich includes Article 1, a11exception clause relating to conduct necessary
to protect the essential security interests of the parties must be read in a restricted sense. It
certainlyshouIdnot be interpreted so as to allow one Statetojudge for itself what measures it
cm take, no rnatter how darnaging to the other party.Nor can it be interpreted so as to allow
that party to act in a way which is wholly unijustifiedunder the normal rules for maintaining
friendly relations between States. So interpr-eted,the Treaty would become not a treaty of
arnity but a framework for making unacceptable derogations frorn the normal standards of
interstate relations.
7.72 It must be stressed here that themles of international law relating to the
use of force and self-defence themselves seek;to balance the necessity and proportionality of
measures which wouId othenvise interfere with or impair the rights of the target State, and
that they accordingly operate within the sarne sphere of reference as paragraph ~l)(d)~~. Tt
94
Ibid ..541. JudgeSchwebel (dissenting)did not deal in muchdetailwiththe issueof essential security
interestsin relation towfulbehaviour. He relied rrither onthe obligationsof the UnitedStates underthe Rio
Treaty (thefirst limb of paragraph (l)(b)), and noted only that the United States' "con...cannot be
dismissedinview ofthe increasingintegration of Nicaraguaintothe group of Statesled by the Soviet Union, and
Nicaragua's continuingsubversioof its neighbouribid.p. 387,para. 254.
95 I.C.J.Reports1996,p.815,para. 31.
% The samethingcan be said of the rules of internationallaw relating tocounter-measfonnulated
in the Draft Articles on State Responsibilityof 1996and considered by the Court in the Case concerningthe
Gabcikovo-Nagymaros Project (1C.J. Reports 1996, pp. 55-57, paras. 82-87). Under those rules,
countermeasuresinvolvingthe useof force are unlawfulper se (DrafiArticieson State Responsibility, Article50
para.(a)and seeafsoparas.(b) and (e)). Inotherworcls,the lawof countenneasurescannot beused to evade the
restrictions internationallaw imposeson useof force in internationalrelations. Nor,it is subrnitted, should
ArticleXX(l)(d)be so interpreteItshouldbe added thattheUnitedStatesdoes notrely on countemeasures as would be odd indeed if the Court, the principal judicial organ of the United Nations
established under the Charter, were to hold that rneasures piainly unlawfiil underthe Charter
were nonetheless lawful under the Treatyof Amitybecause they were objectively "necessary"
to protect the "essential security interests" of the United States. The Charter regime is
carefullyconstructed and carefully balancedso asto preserve andprotect the essential security
interestsof States, including the most powerful States. Yet the United States in effect calls on
the Court to hold that the regime of self-defence undermodern international law made it
impossibie for the United States lawfülly to protect its essential security interests in the
present case. If it were possible for the United States by lawfùl means (e.g., through self-
defence or other lawful means) to protect its alleged essential security interests,then it would
not have been necessary for it to do so by meanswhich plainly vioiated international law. In
other words, it is reasonable to regard the provisions of the Charter relating to the use of force
and self-defence as a long-standingand carefully considered reflection of essential secuity
interests, including those of the rnostpowerful States (who were, after all, the authors of the
Charter regime). The valid, necessary, objectivelyjustifiable security interests of States find
suEicient room for expression within the framework of the Charter. The corollary is that
conduct which is clearly unlawful under the Charter cannot be legitimized by reference to
Article XX(l)(d), or the notion of essential security interests. As has been dernonstrated
already, that is the case with the United States' attackon the platforms.
7.73 These considerations are reinforced by two further elernents of
Article XX.
(a) The chapeau of Article XX, which refers to "the application of measures" enumerated
in paragraphs (a) - (d). Most of those measures are concerned with regulatoryactivity,
or with administrative action taken pursuant to law or with legai authority. It is the
application of such measures which is not precluded, and not the extra-legal
application of armed force at the discretion of one of the parties97.
justiSing theattacksontheoil platfoms inthe prescase. Nor(unsurprisingly)oesitrelyon any doctrineof
belligerent reprisals.
97 The United Stateseeksto relyonthetTavauxpréparatoireosf otherFCNtreaties negotiaaroundthis
time,insupportof aview ofparagraph(1) (d)rejectedbytheCourtinNicaraguaandinconsistentwithArticle1
of the 1955Treaty(whichwas not containedin the treatiesreferredto) (U.S. Counter-Memoria,aras.3.27-
3.35). In fact the only relevant passagesin the negotiationswith Iran(cited U.S. Counter-Memorial,
paras.3.36-3.37) lend supportthe viewthatparagraph(l)(d) was concemedwith theapplicationof measures
such asregulationsorlocal lawsotherwiseconsistentwiththetreaty. (b) The first limb of paragraph (l)(d) is limited to measures "necessaryto fulfil the
obligations of a High Contracting Party for the maintenance or restoration of
international peace and sec~uit~"~~.The carefùl language of this proviso speaks
against the interpretation ofthe rest of Article XX(l)(as embodying an unqualified,
extra-Iegal discretion to use force oin whatever occasion. If paragraph (l)(d) only
applies to measures which are necessary tofulfilobligations ofaPart yor so important
a purpose asthe maintenance or restoration of international peace and security(a term
clearly borrowed fiom the Charter), then it would be incongruous and even
contradictoryto interpret the rest of the sub-paragraphin the lax and permissive terms
advocated by the United States, term:;which would allow it to violate the Charter so
faras the Treaty is concerned. On this view, the "auto-interpretation"excluded by the
Court inNicaragua would return bythe back door.
7.74 These arguments establish that a reasonable and consistent
interpretation of ArticleX(l)(d) cannot justifi or permit conduct involving a use of arrned
force which is clearly unlawful under the United Nations Charter. Indeedthis is consistent
even with the historyof the clause presented.by the United States. Certain qualificationsby
reference to times of national emergericy were deleted fiom earlier versions of
paragraph (l)(d), afier 1945. The United States notes that the earlier provisions "hadto be
reconciled with the Charter, which authorizi:d Security Council sanctions and other actions
potentially affecting treaty compliance. Moreover, in light of Article 2(4) of the Charter,
'war7 seerned less likely to provide the relevant legal fra~nework~~~~I.n other words,
paragraph (l)(d) as a whole was modified to bring its language and operation into line with
Charter concepts, not to create a subjectiveand self-serving method of evading the Charter
entirely.
7.75 Under these circumstzmces,it is not necessaryto consider what the
position would be if a bilateral treaty provision did expresslypurport to authorize a breach of
ajus cogens nom, such as that contained in Article 2(4) of the United Nations Charter.
Under Article 53 of the Vienna Convention on the Law of Treaties, a provision of a treaty
I 98 Emphasisadded.
99 U.S.Counter-Mernoriap,ra.3.26. which conflicts with a nom ofjus cogensis void, and under Article 44(5),no separability of
such treaty provisions is pemitted. That is to Say, the treaty as a whoIe is void. These
rigorous provisions must in turn generate a stringent principle of interpretation, so thaany
provisionof a treaty is tu be interpreted,atal1possible, so as not tu conflict with such a nile.
The principle that a treatyis to be interpreted to be consistent with international law combines
here with the principle of the effectiveness of the treaty as a whole (ut res mugisvaleat quam
pereat). The Treaty should be interpreted so as to be valid; and Article XX(l)(d) should be
interpreted consistently with general international law, and in particular with the standard
rules for arnityand friendly relations between States which inspire its Article1. In the present
case, there is no question that the tems of Article XX(l)(d) allow ample scope for the
interpretationand application of the proviso in ways whichare consistent withthe peremptory
noms of international law. Among such peremptoy noms, those relating to the use of force
provide the clearest case, and their relevance for interpretative purposes is reinforced by the
existence of Article 1of the 1955Treatyof Amity.
7.76 To summarize, a peremptory nom of international law must be allowed
peremptory effect at the level of the interpretation of agreements governed by international
law, including the Treaty of Arnity. For these reasons Article XX(l)(d) cannot be interpreted
so as to createadefence orjustification in relation to a use of force unlawful under the Charter
because itplainly, indeed flagrantlyexceeds the requirements of self-defence.
C. Article XX(1)Cd)does not excuse the attackson the platforms
7.77 If the argument just made is correct, then it follows that the attacks on
the platforms can be neither justified nor excused by reference to Article XX(l)(d), unless
they can be justified by reference to the right of individualor collective self-defence. It is
neither "necessary",nor cm it serve "essential security interests" as conceived of within the
frarneworkof a Treaty of Amity, for a State to engage in an unlawful use of force airned at the
facilities ofthe other party to that Treaty. For these reasons, Article XX(l)(d) has no
additional exempting authority,over and above the provisions ofthe Charter, so far as the use
of force is concerned. It does not render lahl or perrnissible under the Treaty of Arnity
conduct that "didnotmeet the conditions of necessityand proportionalitythat rnaybe required
as a minimum in resort to the doctrine of self-defence under general and customary international law" 'Oo. The "essential security interesta"exemption "cannot have conternplated
a measure which carmot,under general internationallaw, bejustified even as being part of an
operation in legitimate self-defence"l0'.
7.78 It has already been deinonstrated that the attacks on the oil platfoms
did not rneet the requirements of intemationa.1law in relation to individual or collective self-
defence. It follows that those attacks were notjustified under Article XX(l)(d) as "necessary
to protect [the] essential security interests"of the United States.
7.79 However, even if this argumentis not accepted (and that would involve
rejecting a virhially urianirnous decision of'the Court on an identical treaty provision in
Nicaragua), nonetheless the United States' attacks on the platforms were not justified or
excused under Article XX(l)(d). Independentlyof their illegality in tems of the law relating
to the use of force, those measures were not objectivelynecessary, nor were they justified by
reference to any actual security interests of the United States. They were justified neitherin
Iawnor in fact, as will now bedemonstrated.
7.80 .Bgfore doing so, ..,.q initial question needs to be raised. In order to
.:!1
establish its defence under Article,.X ,X(l)(d), must the United States refer to the facts as
-hma. :proved before the Court, or is it entitled to rely on its perception of the facts at the tirne,even
.*ti.
1 ,jki 'though that perception cm now be show to Iiavebeen incorrect and inaccurate? The answer,
i it is submitted, is clear. As the Court held in Nicaragua, the requirement of necessity under
paragraph (l)(d) has to be established objectively,and does not involve any measure of auto-
interpretation. But if the United States coulctrely on its own (incorrect) interpretation of the
facts, auto-interpretation would again be reiiitroducedby the back door. For these reasons,
and because it involves the application clf a legal instrument binding on the parties,
- paragraph (l)(d) can only be applied by reference to the facts of the case as found by the
Court.
7.81 Indeed, it appears that the United States does not contest this, since it
argues that:
To use thelanguage of Judge Oda in Nicarag~raI.C.J.Reports 1986, p. 253; see, para.7.70(cabove.
loi To use thelanguage of JudgeJennings,ibid.,?. 541;see, para.7.70(c), above. "Thefucts also make clear why these mesures were necessary, given the
military role of the piatforms in facilitating and supporting unlawful mining
and small boat, helicopter and missile attacks against U.S. and other neutral
vessels. Thmefore,pursuant to Article XX(I) (d), the 1955 Treaty does not
apply to thern"lo2.
Iran doesnot of courseagree with the United States' view of the facts. But in this passageand
elsewhere the United States seeks tojusti@ its conduct by reference to facts as found, not any
"facts"as they may havebeenperceivedorpresented at the tirne. With this approach,at least,
Ira agrees.
7.82 On this basis, the relevant test, as formulated by the Court in
Nicaragua, involves asking two questions: first, whether the risk run by the "essential security
interests" is reasonableand, secondly, whether the measurespresented as being designed to
protect these interests, that is to Say,the attacks on the platforms, were not rnerelyusehl but
"neces~ary"~~~T .his involves a number of questions which it is convenientto take in turn.
1. The identification of United States essential security interests.
7.83 The principal United States security interest identified in the Counter-
Mernorial is "the unintempted flow of maritime commerce in the [Persian] ~ulf'l~'. The
United States fails to note that this interest was, in the same generalterms, of equal concern to
Iran itself. Virtually the whole of Iran's export trade was maritime based, and it had an
absolutely vital interein the continued safe production of oil, and in its safe export from the
Gulf region. At the general level,that vital interest was a shared one.
7.84 Indeed,.the interestwas more vitai to Iran than it was to the United
States, since it was Iran which was frghting desperateiy in a warof self-deferrceagainst cleaï
and undisguised aggression. Iraq,the aggressor, had other means of fiielling its war effort,
includingoverlandpipelines andfinancialassistance fromotherPersianGulf States.
'O2 U.S.Counter-Memorial,para.3.02;emphasisadded.
'O3 I.C.J.Reporls1986,p.I17,para.224.
'O4 U.S. Counter-Mernoripara.3.11. 7.85 In addition, if the UnitlzdStates seeks to rely on an essential security
interest, itnust at least act in a way which is consistent, i.e.,which is reasonably adapted to
maintain and secure that interest, and which tioes not use that interest merely as a screen for
actions taken for quite other reasons. The United States never took action against Iraq in
respectof its "essential security interests",and.did little or nothing to persuade Iraq to stop the
"tankerwar".It is quite clear that Iran had no independent interest in pursuing that aspect of
the conflict. As explained in Chapter 2 above, if the United States had really wanted to
maintain the "uninterrupted flow of maritime commerce", the simplest and quickest method
was to urge (or even compel) Iraq to stop its provocations. That it never even attempted to do
so discredits its reliance on an objectivelyjustifiable "essential security interest" of the kind
avowed in this case. To the contrary, the Uruted States encouraged and assisted Iraq in its
attacks in the Persian Gulf.
7.86 Part of the difficulty lies in the fact that the term "unintempted flow of
maritime commerce" includes both legitimate trade with third Statesin the Persian GuIf, and
trade which was clearly and notoriously :intended to assist Iraq in waging a war of
aggression'05. For an avowed neutral such itsthe United States, the encouragement of the
Iraqi war effort can hardly be presented as an "essential security interest", yet it is important
not to allow the use of "neutrai" language,referring to what were shared interests, to obscure
the real picture.
7.87 The United States goes on to cite "other more irnmediate U.S. security
interests"'", including the prevention of attackaon U.S. warships and commercial vessels and
the protection of the personnel on those ships and vesseIs. The first point to be made here is
that Iran denies responsibility for the actions in question: in relation to the seven cases
specified in the United States Counter-Claiin, these issues are discussed in further detail
belowIo7. But in anyevent the points made already in this Chapter are equally applicable:
United States actions at the time were motivated by a general hostility to Iran and support for
'O5 See, Article27 oftheDraftArticles onStateResponsibil(1996),whichprovidesthat:
"Aid or assistanceby a State toanotherSaite, if it is establishedthatit is renderedfor the
commissionof an internationally wrongfu cilctcarriedouby the latter,itself constituans
internationalyrongfulact,even if,takenalclne,suchaidorassistance wouldnotconstitutethe
breachofan internationaolbligation".
lM U.S.Counter-Mernoria p,ra.3.12.
'O7 See,Chap. 10,below. Iraq,and not for any genuine concern for freedom of navigation, which was on any view
threatenedmuchmore, and more seriously,by iraq than by Iran.
2. The risk presented to those United States interests.
7.88 It is clear that there were risks to freedom of navigation and commerce
in the Persian Gulf at the relevant time, and to the vessels sailing in the region (many of them
to Iranianports and terminais). But the essential reason forthesrisks,and for the war, must
be borne inmind. It is cornpleteland systematicallyignored by theUnited States.
7.89 Iraq had comrnenced an unprovoked war,and was prosecuting it by al1
means including air strikefar down the Persian Gulf, mine-laying, missile attacks including
on neutral shipping, attackson Iranian cities and facilitiesandthe use of chemical weapons. It
is widely recognised that the riskpresented to freedom of navigation and commerce was
attributableto Iraq. Moreover, as Professor Freedmandemonstrates in the annexed report:
"There is no evidence of a policy debate governed by the question of what
actions would best protect international shipping, nor that concerns with
fieedorn of navigation broughtU.S . arships to the Persian ~~lf'"~~.
7.90 Moreover the risks need to be kept inperspective. Onty a very srnall
proportion of shipa were affected and those mostly by a form of haras~rnent'~~.The success
of convoying carried out in a non-confiontational way cm be seen hm the Arrriilla Patrol,
which was a British naval protection exercise introducedin 1980. According to one British
source:
"Incidents, once escort was introduced, there were apparently none. This may
have been due to relatively tight rules of engagement ... The hilla Patrol
continues to this day"'iO.
Thisis a vitalpoint. Evenwhen they encountereddifficulties (dueprimarily to Iraq, and quite
apart from the fact that the whole war was the responsibility of Iraq), none of the States
presentin the Persian Gulf (except for the United States and Iraq) found it "necessary" to
'Og ReportofProf.FreedmanV, ol. para4(c).
'09 See, ibipara.33.
"O Hill,R.J"Amilla PatroGl~lfMisions", heNavaReview,April1994.target the platforms, or evento mention them in any expressions of concern about freedomof
navigation.
3. The relationshipbetweenthoseUnitedStatesinterestsandthe attacks on the
pIatForms.
7.91 The United States implicitly accepts the need to link its attacks on the
platforms with the wider context of the so-called "tanker war". It does so by the repeated
assertion that the platforms were "militaryfa.cilitiesWt,hat they "played animportant roIe in
guidingand conducting Lran'sattacks on U.S. and other neutral ships""'. For the reasons
already given, this is simply not true. The platforms were essential production facilities,
wholly unsuited to perforrn the "military"rolt: in which they are cast by the United States. If
that is so,thenan essential link in the chain by which the United States seeks to establish a
defenceunder ArticIeXX(l)(d) breaks.
4. Whetherthe attacks were not merelyuseful but necessary
7.92 Inaddition, the Court iiiNicaraguarequired that the measures taken be
"not mereiy useful but necessary". The case:fornecessity is made by the United States in the
followingpassage:
'O..it was clear at the timeof the attacks on SeaIsle Cis and USS Samuel B.
Roberts that diplomatic measlires were not a viable means of deterring Iran
fiom its attacks ... Accordingly, armed action in self-defense was the only
option lefi to the United Statesto prevent additional Iranianattacks"'12.
This passage calls for severalobservations.
(a) First, as to diplomatic measures no1 being viable, there is little evidence that these
were seriously tried (other than in th<:context of actions clearly slanted in favour of
Iraq and seeking to extricate it from any responsibility for its action in starting the
war). In particular, no specific issues were raised in diplomatic correspondence in
relation to the military use of the platfi~ms,or their possible availabilityas targets.
II? U.S.CCounter-Mernorilparas.3.13-3.14. (b) Secondly, the "diplornatic rneasures" taken, so far as they reiated to the Security
Council's concems, nowhere stated or implied that the United States had my
entitlement to use armed force against the platfoms, or indeed in any other way
against Iran.
(c) ThirdIy,neither the Security Council, nor any other State,complained of the use of the
platforms for militarypurposes at that or any other time.
Nor did they identifj the
platfoms as military targets,Aparîfrom the United States, the only other State which
ever attacked the platforms militarily was...Iraq.
(d) The question has nothing to do with self-defence, and the United States' argument
citedabove, which refers to "armedaction in self-defence", therefore missesthe point.
Iran accepts that if the United States was acting in self-defence in attacking the
platforms, then its conduct was justified or excused by Article XX(l)(d). But it has
already been demonstrated that the United States was not acting within the lirnits of
individual or collective self-defence. What the United States needs to establish, for
present purposes, is that, on the assumption that its attacks on the platforms were
unlawful and in breach of the United Nations Charter, nonetheless they werenecessary
in order to protect its essential security interests, within the meaning of a treaty
provision in force. Neither in the passage quoted, nor elsewhere in the Counter-
Mernorial, does the United States directly seek to sustain that remarkable, and
untenable, proposition' 13.
7.93 Quite apart from the lack of credible evidence that the platforms were
military facilitiesrnpIoyedto orchestrate attacks on United States ships, there is no evidence
that the attacks on them actually had, or were calculatedto have, the effect intended. Iran was
at the time trying to cope with an aggressor, an aggressor strongly supported by certain
neighbouring States and even by the United States (despite its professed neutrality). The
attacks on the platforms (associated with simultaneous attacks on Iranian naval forces) were
"3 Not evenJudgeSchwebelinhis dissentinNicaraguu nequivocallysupportedthis proposition.Inhis
view theUnitedStateswas actingincollective self-befenin thacase, even if some of its conwasprima
facieinconsistentiththeTreatyof Amity(I.C.J. Reports 1986,387,para.254).rather caiculatedto give Iraqthe upper hand in negotiating theterms of a cease-fire. That was
not an essential security interest the United States, nor were the attacks on the platfoms
necessaryor conducive forthe purpose now relied onby the United States.
7.94 Above all, the requirement of necessity fails to confront the clear
inconsistency in theUnited States' conduct. If the United States' concern wasthe safety of
neutral shipping in the Gulf, why were Iraqi facilities not targeted? Even U.S. sources
acknowledge that it was Iraq which carrierout by far the larger nurnber of attacks on
shipping, as well as causing by far the greatest destruction. If the United States' dominant
concern was the safetyof its own ships, why did it not respondby way of self-defence when
the Stark was hit with significant damage and lossof life? The lack of any "necessity" for
U.S.action against the platfoms is clearly demonstrated by the absence of significant action
by itagainst Iraq, faced with far worse provoc:ationon its part. In fact, there is clear evidence
of U.S upport for Iraq'sactions in the Persian Gulf. The UnitedStates may conceivably have
been acting in its perceived "interests"at the time, the interests ofsupporting anaggressor in a
continuing war of aggression- but it is unable to bring itself candidlyto admit its real reasons
for action. Nor could those reasons possibly suffice to justiQ destructive attacks on a vital
commercial facilityas "necessary"to protect "essentialsecurityinterests".
7.95 In addition, the following further elements of fact are relevant to the
Court's appreciation of theissues of necessity and of the relationship betweenmeaand ends
which areraised by ArticleXX(l)(d):
+ No other State considered that its secur:ityinterests ithe region called for a military
response against Iran; a11 confined themseives to diplornatic measures and limited
measures of self-protection. This contrtrsts sharply with the collective military action
taken by manyStates at the time of Iraq'sinvasion of Kuwait,
4 The rnilitary strikes against the platfoms were evidentlthe result of many months of
planning. They were not pianned or conceived in tems of an operation justified by
ArticleXX(I)(d), for the simple reason that the alleged eventswhich are now said to have
justified the actionsad not occurred and were not foreseeable.+ The April 1988 attacks coincided with Iraqi attacks on the Fao peninsula; there are
indicationsthat the timing was not fortuitous.
+ The specific targeting of the particular platfoms (Iike earlier Iraqi targeting) bore no
relationship to the alleged "military" use of particular platfoms but was calculated to
causemaximum damage to Iran'seconomy,injuryto whichis not relicd on by the United
States as onofits essential security interests. The aim was, in othertoodestroy the
platfoms as commerciaI productive installations, and not merely to neutralise their (very
Iimited)self-defensiveapacity.
D. Conclusion
7.96 For these reasons, the defence based on the essential security interests
of the United States fails tojustiQ the United States'attackson the platforms. CHAPTER8. THEUNITEDSTATES "CLEANHANDS"DEFENCE ~
Section 1. The United States'argument accordingto which Iran's handsare not cIean
8.I In Part V of its Counter-Mernorial, the UnitedStates argues that Iran "is
precluded from compiainingthatthe United States has not fulfilledits obligations under the
Treaty when its own illegal conduct gave rise to the measures of which it now cornplains"'.
Hence, the United States contends that in the present case Iranhas no locusstiijudicio.
8.2 In an attempt to corroboratthisassertion, the United Statesallegesthat
Iran has breached not only relevant provisions of the 1955Treaty of Arnity, but also general
mles of international law, namely those pertaining to the prohibition of use of force2,as well
as other, as yet unspecified, breacofsinternational Iaw.
8.3 Even thoughneither the Court nor theJudges who appended Separate or
Dissenting Opinions to the 1998Order made ariyreference to this argument, Iran wiIl show in
this Chapter that the Court must state - and has in fact already implicitly stated - its
irreIevancein the present caseand that it must therefore dismiss it.
8.4 Before discussing the notion of "cIeanhands" and its implications for
the present case, Iran is obliged to highlight the egregious nature of the United States'
argument. Iran questions howthe United States can invoke such an argument, vis-à-vis Iran.
During the relevant years Iran was fighting to repel an aggression comrnitted by Iraq, and was
thus exercising its inherent right of self-defence against an aggressor. In this context, Iran
could have .legitirnatelyexpected significantassistance from the other United Nations member
States,who are bound by the United Nations Charter provisions to condemn aggression.
Having regard to Article1 of the Treaty of Arnity, Iran might have expected to be actively
supported by the United States in the exercise of its inherent right of self-defence against
aggression. At the very ieast, it was entitled to expect genuine neutrality from the United
States,and a scrupulous refusa! to favour the aggressor. Instead, the United States, from the
I U.S.Counter-Mernoripl, r5.07.
2
Ibid .ra.5.O1.beginning of the conflict, adopted a hostile stance vis-à-vis Iran, The United States' conduct
was inconsistent with the spirit, as well as the letter, of the 1955 Treaty of Amity, In this
respect, lran cm only point to the extreme character of the United States' "clean hands"
argument, giventhe United States' own behaviourinthe circumstances.
Section2. The Conceptof "CleanHantls"in StateClaimsandthe United States'
Twofold Argunienton thatBasis
8.5 In Iran's view, the co:ncept of "clean hands", while reflecting and
incorporatingfundamental principIes oflawinspired bygood faith, is not an autonomaus legal
institution. On the contrary, the concept of "clean hands" requires the operation of other
institutions or legalmles for its implementatil~n.It is only in the context of the large number
of principles and legal maxims permeated by this concept, that the requirement of good faith
between Statesis finally made concrete.
8.6 The concept of "dean hands" finds its origins in Roman law, as an
equitable doctrine,in English law andalso in 1:slarnic lad.
8.7 This principle is imple~nentedin international law by the operation of
al1those legal institutions that prevent aState either from benefiting fkomits wrongs or from
harming other Parties, for exarnple by a change of representation or attitude (estoppel or
preclusion). Accordingto "theteachings of the most highlyqualified publicists of the various
nationsM4t,he prerequisite of clean hands in certain Stateclairns is just one more application
. . Islamic law acknowledgesthe condition of "good faith" which is ofien put into practice through the
notion of"abuseof rights" or throughthe obligationto complywith accepted undertakingsand,more generally,
throughthe obligation toadopt an "honest"attitudeincommercialrelations andtransactions.See, inthis respect:
SamiA. AldeebAbu-Sahlieh,S.A., "L'abusde droit ea droit musulman etarabe", inAbus de droit et bonnefoi
(Ed. Pierre Widmerand Bertil Cottier),Fribour1994.pp. 89-113; Weeramanîry,C.G., IslamicJurisprudence.
4nInternationalPerspedive, London, 1988,pp. 66,72.,141.
Itrnay nonetheless be observed that there is no entry for "clean hands",or other similar concepts, in
some of the most influential works in this field, arnong which may be cited: Encyclopuedia of public
internationalIm (1st & 2nd ed.), Amsterdam; Strupp, K., Schlochauer, H.-J., Worterbuchdes Volkerrechts,
Berlin, 1960-1962;andeven in the Restatemenof theLaw (Third),TheForeign Relationsofthe UnitedStates,
St. Paul;American InternationalLaw Cases(Déak,Riramset al.), Dobbs Ferry; EisemannP.-M. in,Coussirat-
Coustère,V. Répertoirede la jurisprudence arbitrale internationale,Paris, 19itappears only under the
heading of "diplomatic protection"; Bin-ChenGeneralPrinciplesof Law as applied by International Courts
and Tribunals,London, 1953,pp. 149-155. of the paramountprincipleof "goodfaithtt5.ClassicRoman law had alreadyhighlightedthis
condition: Nemo ex suo deficto meliovemsuam conditionemfacere potest6, which was
inhented by mediaeval law in such maxims asNeminidolus suus prodesse debet, Ex turpi
causa non oritur actio7,Nullus comrnodurncapere de sua proprio iniuria8.In English law,
maximssuch as "He who seeks equity, must do equity"', "He who cornes into equity, must
1110 t,
come with clean hands , Equity does not suffera wrongto bewithout a rernedy"" are to
sirnilareffect.Indeed,the requirementof clean hands sharesa cornmonsource with another
well-knownadage, Exiniuria ius non oritur12.
8.8 A review will be madehere of dl thoseIegalinstitutions or mles which
implement in different manners and in different circurnstancesthe good faith principle, by
rehsing to allow a partyto benefit from its wrongful conduct or to change its attitude or
conduct in order to hami another party'slegallyprotectedinterest Ind13e.d, itmuçt not be
5 Fitmaurice, SirG., op. cit.pp. 117-122;Miaja de laMuela, A. "Le rôle de la condition des mains
propresde lapersonne lésée dans les réclamations devantlestribunauxinternationaux",Mélanges offertliJuraj
Andrassy,The Hague, 1968,pp. 189-191; "BonaFides ..est doncun conceptstrictementjuridique; c'estla fides
dubonusvu romani, l'attitudesociale du Romainqui aide lesautres autantqu'iIpeut et ne nuiàpersonne, selon
la phrase quelquepeu emphatiquedu de oficis 3,XO de Cicéron: 'bonusvir qui prodest quibus potest et nocet
nemini"',Broggini, G. "L'abus de droit et le principe de la bume foi. Aspects historiques et comparatifs", in
Abusde droit et bonnefoi...op. cirp. 5.
6 Digest 50.17.134 (Ulpianus). This adage was citedin the Good Return and Medea case (Ecuador v.
United States of Arnerica), award deIivered 8 August 1865, by the Mixed Commission, in Moore, Vol. 3,
p. 2378. However,in thatcase the Commissioners weredealingwitha diplomaticprotection claimand notwith a
7ure interstateclaim.
The afinity betweenthe "cleanhands" and Ex mrpi causamaxims 1sstressedby Kodilinye,G., "Afiesh
approach to the Ex TurpiCausa and le& Hands' maxims",DenningLawJournal, 1992, p. 102, where the
authorStatesthat:"Itseemsthat the [municipallaw]courts now seethe twomaximsnot as separate principlesbut
as expressionsof the samebroad principle, foundedonpublic policy [onlyernbryonic ininternational law], that
the Court will not entertain an action in contract or tort or establishan equitable right so wouldbe an
8mont to the public conscience".
Arminjon,P.,Nolde,B., WoIff,M., Traitéde droit comparé,Vol. II,Paris, 1950,p. 5 13.
9 Ibid.
ID Ibid.
1I Ibid
IZ
See, inter alia, Judge Schwebel's Dissenting Opinion appendeto the Court's Judgment (Merits)in the
Militas. and Paramilitaty Activities in and against Nicaragua case, I.C.J.Reports 1986, p. 373, para. 222.
International tawjurisprudence is imbued with this principie; see, for instaINA Corporation v. Iran case
(Mixed Tribunal),caseNo. 161, decision rendered 12 August 1985,inI.L.R.,Vol. 75, p. 444: "The principle of
ex malojus non orifrcisa generalprinciple of lawthat barspartyfrom profitinghm his tvrongfulconduct".
l3 See, Judge Alfaro'sSeparateOpinion appendedto theCourt'sJudgment(Merits) in the Templeof Preah
Vihearcase,1.C.J.Reports 1962,p. 40.perrnitted that "la cause finale du délitdevienne le motif de l'absolution du délinquant et que
de l'Œuvrede lafraude accomplie surgissele moyend'innocenter le fia~deur'"~.
8.9 Before dealing with die functions of the clean hands principle in
modern internationalIaw,mention should be rnade of the obvious theoretical confusion which
affects the US, Counter-Memorial regarding this principle. At two points in particular this
conceptual confusion becomes quite clear: the:United States is concemed about Iran'salleged
lack of cieanhands, andthus the clean hands cifa State,yet it strivesto support this daim with
a long enurneration of doctrinal and case law quotations dealing with diplomatic protection,
where the clean hands of foreign nationals, aridnot of their State,are at issue15.The doctrine
is clear as to the needto distinguish betweenthese two quite different situations16.
S.10 It should also be observed at the outset that the United States seems to
invoke the "plâintiff sown wrongful conduct" defence in Part V of its Counter-Mernorial as
both: a) a ground for inadmissibili@" of the Iranian claim and b) a defence on the merits.
However, in neither case has the United States succeeded in showing that the clean hands
principle has an autonomous legal scope and standing in international law, nor that it can bar
Iran from claiming reparation for the United States' violations ofthe 1955 Treaty. The
foliowing paragraphswill deal with iran's response to the United States'twofoldargument.
Section 3. The CleanHandsArgumentas aiGroundfor denyingthe Admissibilityof the
IranianClaim
8.11 It is true that in another field of State responsibility, the clean hands
concept appears as one of the prerequisites foi-the admissibility of State claims, namely those
14
Alabama case (United Statesof Americav.United Kingdom),award delivered on 14 September 1872,
La Praddle, Vol. 2, p. 891. Likewise:Corsaire "G'eneralArmstrong" case (üniteb States of America v.
Portugal),awarddeliveredon 30 November 1852,PasL:risie internationale, pp. 30-31.
15 See, respectively,U.S.Counter-Memorial,para5.04and h. 350,infine.
16 Garcia Arias, L., "La doctrine des 'clean hands' en droit international public",Annuaire de
I'Associationdes auditeurs et des anciens auditdel'Académie de droit international, Vol. 30 (19,.18,
particularlythe fieldof clean hands where a clear-cutclistinction betweenthe hvosituations is drawn.See, also,
the B.E. Chattivs.UnitedMexicanStates case, award deliveredby theGeneral Claims Commission on23 July
1927, R.S.A., Vol. 4, pp. 284-285, where the Mixed Commission rightly made a distinction between the
'?ational'swrongfblconduct" andhis own State's.
This is precisely the function that comrnon law recognises and ascribes to this institution:"Under this
doctrine,equitywillnotgrantrelief to a party,who, a;an actor, setosetjudicial rnachineryin motion and arising in the context of diplomatic protection. But, it must be stressed, the prerequisite is
exclusively confined to that context, and hence it deals only with a foreign individual's clean
hands and not his own State's. Therefore, one canonly agree with the United States'
contention, supported by extensive jurisprudential and doctrinal quotations, according to
which a citizen requesting diplomatic protection fromhis own Statemust present hirnselfwith
clean hands. Yet this fallsfar short of demonstrating that such a principle is required in direct
State-to-State claims.
8.12 In this respect, the United States has failed to dernonstrate in its
Counter-Mernorial that international law has accepted the first of these uses, namely that of
linclean hands as a bar to the admissibility of a State'sclairn. In fact, it is civil law thathas
had a farmore important influencein this respect, and the meagre case law in this field shows
that international law recognises this principle as havinglegal significance only at the merits
stage, or even only atthe stage of quantification of darnages18.
8.13 Furthemore, since the Court has already established its jurisdiction in
the present case to adjudge and declare whether the United States' activities have violated
legal obligations arising out of Article X(1) of the 1955Treaty of Amity, the cIean hands
argument does not allow the United States to argue that Iran is "deprived of the necessary
locus srandi in judici~"'~. For these reasons, the Court should reject the United States'
argument based on clean hands as a ground for rejecting the admissibility of the Iranian claim
in the present case.
obtain some remedy, if such party in prior conduct has violated conscienceor good faith or other equitable
principle",Black'sLaw Dictionaryoh ed., 1991,St.Paul,p:250; ernphasisadded.
''
See, SalviolG., "La responsabilité dEtats et la fixationdes dommageset intérsar les tribunaux
internationaux",ollecred Cowses ofTheHague Academy oflnternational Law, Vol. 28 (1929-III), p265-
196.
See, U.S.Counter-Mernorial,para. 5.05, which quotes Fitmaurice, Sir G., "The General principles of
internationallawconsideredfromthe standpoint ofthe rofelaw",Collected Coursesof ThHague Academyof
InrernntionaLm, Vol.92 (1957-II), p. 119:"[A]State whichisguiltyof illegalconduct maybe depriofthe
necessary locwstandi in judicio for complaining of corresponding illegalities onthe pofother States,
especially if thesewere consequential onor were embarked uponin order to counterits own ill-in short
were provokedby it.Insome cases, theprinciple oflegitimreprisaiwill remove anyaspect ofillegali~frorn
such couttter-actionernphasiadded. Whateverrnaybe theappropriatenessof this statement,the UniStates
fails to give adequate weight tothe last portionof this quotation. In fact,the rationale for this argument rests on
theconceptof legitimatereprisalsand not on "cleanhands"pse.This rneansthat the U.S. cleanhands defence
in the present casemusbeviewed in the lightof the lawStateresponsibility(see Chap. 7, above). This long
sentencewas previouslyreproduced in judge Schwebel'sDissentingOpinionappended tothe Court'sJudgment
(Merits) intheNicaraguacase, 1C.J Reports 1986,p. 394, para.271. 8.14 Furthemore, Iran must stress that the United States' position, as set out
in the four pages of its Counter-Memorial devoted to this subject, is far from being
indisputable from "the standpoint of the rule of law". The United States' assertionof Iran's
Iaco kfcleanhands is no more thm apetitio principii: according to the United States, lra nas
no rigfitto locusstandi injudicio because it 'hasitself infringedthe 1955Treaty of Amity. in
order for the Court to admit such a claim, the United States would have to adduce evidence
proving such alleged violations by Iran.This means, froma procedural point of view, that the
Courtmust have the necessaryjurisdiction in the present caseto entertain such a claim!
8.15 Ex hypothesi, should the Court establish that Iran has infiinged
Article X(l) of the 1955Treaty of Amity, then the United States' clean hands defencemay
have an effect only at the darnage quantification stage2'.Indeed, as the Court has recently
stated, even where there have been intersecting wrongfùl acts, the obligation to make
reparationnonctheless subsists2'.
8.16 To this end, the United States will have to prove that the alleged Iranian
acts are a violation of freedom of commerce under Article X(1) and consequently fa11within
the onlyjurisdictional basis inthe present case, ie. ArticleX(1).
8.17 As Iran has show above,international law has espoused the civil law
position concerning the concept and theoperation of "cleanhands", Thus, since Iranis not, as
the United States Counter-Memorial claim,~,"deprived of the necessary locus standi in
judicio", as the Court has rightly found in its 1996Judgment, the United States can only avail
itself of this argumentas a defence at the merits stage. But the question remains as to how the
United States may avail itself of the argument. In fact, as Iran will show in the following
paragraphs, the "clean hands" argument as formulated by the United States has no
autonomous standing in international law mcl hence cannot be used alone as a defence at the
rneritsstage.
--
20 See,Salmon,J., "Laplacede la fautde lavictimedansledroitde iaresponsabilité internatione"e,
droit internationàll'heure de sa codijication.Eru1en l'honneurde Roberto Ago, Vol. 3, Miian, 1987,
pp.385,etseq..
21 Case conceming the Gabcikovo/NagymarosProject (Hungay v.Slovakia), Judgment (Merits),
25 September1997,I.C.J. Reports1997,pp.81-82paras.152-155. Section4. The"Clean Hands"Argumentas a Defence at the Merits Stage
8.18 Since, as Iran has already show in the preceding paragraphs,the "clean
hands" argument filfils no function whatsoever as far as the adrnissibility of claims is
concerned, it is necessary to analyse the role and functions of that argumentat the merits
stage. As Ira n ill dernonstrate,this principle has no autonomous legal scopeor relevance at
this stageeither.
i 8.19 First of aIl, the "clean hands" concept cannot per se be considered and
invoked as a "circumstance precluding wrongfulness". The InternationalLaw Commission of
the United Nations (hereinafter referred to as the "ILC")in its Commentary on Draft articles
on State re~~onsibili#~ has affirmed that al1the circumstances precluding wrongfulness are
exhaustively and restrictively enurnerated therein (articles 29-34)13,"clean hands" not being
rnenti~ned~~T . hus, if the concept of "clean handst'is to be applied, it must be construed as
falling withinone of the categories identifiedbythe ILC.
8.20 In this regard, the United States has relied upon a "self-defence"
argument in order to justify the destruction of Iranian oil platforms. The Iranian response to
this argument has already been given elsewhere in this ~e~l~~~ N.evertheless, and however
sound this argumentationmay be, the "clean hands" concept cm play no autonomous role asa
defence.
8.21 Secondly, the ILC rightly highlighted in 1979 the difference between
"circumstances precluding wrongfuIness" and other "circumstances which might have the
effect not of precIuding the wrongfulness of the act of the State but of attenuating or
22 This Comrnentaryis considered not only themost eminent internationaljuribut alsoby recent
jurisprudence as a refiection of general international law in the field of State responsibility.See, for instance,
Rainbow Warrior(New Zealand v. France), arbitral award delivered on 30 April 1990, in Revuegénéralede
droitinternationapublic, Vol. 94 (1990), pp. 838, et seq., paras. 76et seq.; Case concerning the
Gabcikovo/NagymarosProject. 1.C.J Reports 1997,pp. 3seq.,paras50, etseq..
i 23 rI.L.C, 1979V,ol. IlParcII,p. 109.
24 The ILCdid not retain the "plaintiffs wrongfulconduct" as a circumstance precluding wrongfulness.
See,Salmon,J., opcit.p.372.
25 See, Chap.7,above.aggravating the responsibility entailed by thar a~t"*. his means that, at the most, the clean
hands defence could have an effect in relation to the quantificationof darnages.Iran has
disposed of this argumentabove, and will therefore not dealwith it anyfurtherhere.
8.22 However, since the "clean hands" argumentdoes not fit into one of the
"circumstancesprecluding wrongfulness", and since the United States has failed to show that
this argument cm bar the Iranian claim or be an autonomous defence, the Court should reject
it.
8.23 Finally, the United Statesasks the Court to dismiss the Iranian claim on
thepetitp ioincip tiat Iran had previously committed unlawful acts which "gave rise to the
measures of whichit now ~orn~~ains"~~ It. is not clear whether this statement is made in an
attempt tojusti@ the destruction of Iranian oiI platforms on the basis of inadimpientinon est
adimplendum,thewell-known principle of the law of treaties, or on the basis of self-defence
and reprisals2'I.n any event, as han has alrrady shown, the "clean hands" argument has no
legal relevanceper se, since other concepts or mechanisrns,drawnfrom the law of treaties and
the law of State responsibility,uIfil this function. Outside the specific context of diplornatic
protection, the "ciean hands" concept does :notoperate independently: it is certainly not a
substitute for the Court's decision on issiies of substance, nor a "catch all" principle
incorporatingor supplanting every other legal principle.
8.24 The question then arises whether the "clean hands" principle plays any
role at al1outside the field of diplornatic protection (which is clearly not at issue here). The
answer is in the affirmative only where this legal concept is implemented by the operation of
other institutions. Furthemore, the lack of aiitonomous legal relevance of the "clean hands"
defence is particularly strengthened in the present case, since the United States has filed a
counter-claim, in regard to which the United States invokes, to a great extent, theame facts
as it invokes in support of its "clean hands" defence. Iran will deal with the "clean hands"
defence inthe lightof the United States'counter-daim inthe followingSection.
26
Y.I.L.C.,1979,Vol.II. Pari I109.
"' U.S.Counter-Mernoria p,ra.5.07.
lbid.,para.5.05.Iran'sresponsesto theseallegationsare givenelsewherein other SectionsofthisReply.
Chapter7, particular,ealswith theirsoundness,from thepointof view of internationallaw,notablyin the
tightofprinciplesofStateresponsibility. Section5. Conclusionon the UnitedStates'Argumentbased on "CleanHands"
8.25 .Iran has shown in the preceding Sections that the comrnon law
constructionof the "cleanhands"conceptas a bar to the admissibilityof State-to-Statedirect
claims has not beenendorsedby internationallaw. Furthemore, it has been established that,
at the meritsstage, thisconceptplays noautonomousjuridical role and consequentlythat the
UnitedStates cannotinvokeitassuchtojusti@the destructionof Iranianoilplatforms.
8.26
l In this Section,Iranwilldemonstrate thatthe filingby the UnitedStates
- and the provisionalacceptanceby theCourt -of a counter-claimfoundedon the samefacts
as those which are adduced to support the "clean hands" defence, results in the legaI
irrelevanceof that defence. The fact that the Court has already givena ruling provisionally
establishing its jurisdiction on the United States' counter-daim divests the "clean hands"
defenceof its last vestiges of legaloundnessand relevance.
8.27 The United Stateshas filed a counter-claimaskingthe Court to adjudge
and declarethat Iranhas committedunlawfulacts in the "samefactualcontext".First of all, it
is proper to distinguish betweenU.S. allegations concerningon the one hand violationsof
Article X(1) of the Treatyof Arnity and, on the other hand, violations of other Treaty
provisionsas wellas otherunspecifiedbreachesof generalinternationallad9.
8.28 Concerningthe former, the United States arguesin its Counter-Claim
that alleged Iranian attacks on United States (reflagged or owned) vessels infringed
Article X(1) of the 1955 Treaty of hi$*. In this regard, the Court has already given a
I
decision stating that it hasjurisdiction to entertainal1those United States clairns,provided
that the latter are based on facts which constitute a violation of Article X(l) of the 1955
29
Among these should be noted asserzedviolations of international humanitarianlaw or amed conflict
(see,U.S.Counter-Mernorial, paras.6.21-6.23).The queofithevalidityof the UnitedStates' allegationsin
30is respect cannotbe entertainedby the Court,sincethe latterhasnojurisdictionon that matter.
I Part III of this Reply willdeal with the legal validity of these assertions fiom the point of view of
internationallaw.Treaty of Amity ("freedom of commercet').'Therefore,the United States' argument based on
"cleanhands" loses any autonomous iegal relevance, if indeed it had any before the filing of
the United States' counter-clairn3'.Its irrelevance is al1the more evident since the Court has
upheld its jurisdiction to look into the allegedIranianviolations of Article X(1).
8.29 The strong logical coruiectionbetween the United States' "clean hands"
defence andthe counter-claim is highlighted by the fact that that defence isIocated at the end
of the Counter-Mernorial and paves the way for the Counter-Ciaim. Thus, the "cleanhands"
defencefinds itself at the crossing point betweenthe rebuttal of the Iranianallegations and the
filing of the United States'own ~lairns~~I.n its discussionof the U.S.counter-claim in PartIII,
below, Iran will show that there has been no infringementby Iran of ArticleX(1).
8.30 On the other hand, no daim based on breaches of other provisions of
the Treaty or other unspecified breaches of general international law alleged by the United
States cm be entertained by the Court.
8.31 In conclusion, and on the basis of the foregoing, the United States'
argument based on Iran's unlawful conduct has no autonomous legal relevance in the present
case andthe Court should reject it.
Section6. Shouldthe Courthoweverdecidethat the "CleanHands" Argumentdoes
haveanAutonomous andIntrinsicLegalIRelevance in Direct State-to-StateClaims,this
would militatein Favourof theIranianClaim
8.32 Should the Court neve:rthelessdecide that the "clean hands" argument
does have an autonomous and intrinsic legiil relevance in direct State-to-State clairns, Iran
respectfullyrequests the Court to adjudge and declarethat it has "clean hands" in the present
31 Furthemore, it should not be forgottenthat .ludgeAnzilotti,in his DissentingOpinion appended to the
Judgment in theDiversion of Wurerfrom the Meuse case, (P.C.I.JSeriesAA3,No. 70, p. 52),considersthe
counter-claimto be thejurisdictional applicationoexceprinon adimpleti contractus.
32
The U.S. Counter-Mernorial itself ingenuously betrays intanglement: "In passing uponwhether
Iran'sclaim or the U.S. claim of self-defenseis well-founded, theConecessitywill pass uponthesame
facttshat underliethU.S. counter-claim.Further,in delineatingthe scope of Article X 1955hTreaty and
consideringits applicabilityto militaryattacks,the Courtwill addressrnanysamehelegalissueat stake in
the U.S.counter-clairn.Inshort, anassessrnentof the ,validityof Iran'sdemandfor reparation'restslargely'on the
samefactuaa lnd Iegal issueat stake in the U.S. clairnfor reparationfor Iran's attU.S.ovessels in the
[Persian]Gulf' (para.6.12;emphasesadded). case and therefore is not precluded from having locus standin judiciI on.fact, the "clean
hands" argument as a bar to admissibility could only exclude a claim where the alleged
illegalityof the conduct of a claimant is indissolubly and intimately related to the heart of the
claim. In the present case, on the contrary, as Iran has already dernonstrated and will further
demonstrate below,there is neither afactual nor a legal Iinkbetweenthe attaconthe Iranian
oil platfoms by the United States, on the one hand, and, on the other hand, the incidents
alleged by the United States to entai1 Iran's international responsibility.Thus, Iran is not
divested,by virtueof its alleged unlawful conduct, ofits natural locusstiijudicio.
8.33 A second point in the same vein must be stressed. Should the Court
decide that the "clean hands" argumentdoes have an autonomous and intrinsic legal relevance
in direct State-to-State claims, Iranpectfully requests the Court to adjudge and declare that
the United Statesdoes not have "clean hands" inthe present case and therefore is precluded
from having locusstandii njudici both on its defence and on its counter-claim, insofar as
these are based on factswhich are tainted by the UnitedStates'unlawful behaviour.
8.34 The United States cannot rely uponthe alleged unlawfùlness of asserted
Iranian activities in the Persian Gulf. During the Iraq-Iran war,the United States failed to
abide by well-established mles pertaining to neutrality, and failcd to comply with its speciaI
bilateral obIigations under both the Algiers Declarations and, of direct concern here, the
Treaty of Arnity. Specificaily, it encouraged and assisted Iraq in its attacks on shipping in the
Persian Gulf. It also protected the maritime trade of Iraq's allies, which was contributing
towards Iraq'swar effort. T'us, Iran respectfully submits that the Court should not entertain
the United States' defenceand counter-claim based on those acts which are tainted by the
United States'rongful conduct during the relevant period. - 187 -
PARTIV
IRAN'SDEFENCETOTHE UNITEDSTATES'COUNTER-CLAIM
CHAPTER9. THE UNITEDSTATES COUNTER-CLAIM AND THE BASISFOR
ITSADMISSIBILITY
Section 1. Introduction
9.1 With its Counter-Mernorialof 23 June 1997,the United States lodged a
counter-claim allegingviolation of Articlef the 1955Treatyof Amity by Iran. Inits Order
of 10March 1998,the Court heId the counter-claim admissibleunder Article 80 of the Rules,
though subjectto important provisos which will be analysedbelow.
9.2
In its counter-claim, the United States alleges that "actions by ...n
created extremeiy dangerous conditions for shipping" and "resulted in significant damage to
U.S. commercial and military vessels ...[which] ultimately led the United States to take
lawful, defensive rneasures against the offshore platforms Iran used to support its attacks on
shipping"'. In particular the United States refers to darnages allegedly incurred by seven
vessels, although -despite the implications of the passage quoted above - most of these
incidents bore no relationship whatever, causalor othenvise, to the United States' attacks on
the oil platfonns. In this context, the United States attempts toide a background for its
counter-claim through statistical information relating to the value of goodsted fromthe
United Statesto han in 1987 and 1988 and to the fact that these goods, for the most part, were
transported through the Persian Gulf to Iran by ship2. As those data show, there was a
substantial increusein the volume of trade in these years, which seems to have ken limited
only by the unilateral trade sanctions imposedby the United States.
9.3 In its submissions, the United States defines its counter-claim in the
following terms:
"1.That in attacking vessels, laying minin the [Persian] Gulf and othenvise
engagingin military actions i1987-88 that were dangerousand detrimental to
1 U.S .ounter-Mernorial,Partpara.6.01.
2 Ibid .,ras.6.06-6.07. maritime commerce, the Islamic Republic of han breached its obligations to
the United Statesunder Article X of the Treaty..."3.
Paragraph (2) of the submission goes on to refer to the requirement of full reparation for these
alleged breaches.
9.4 In terrns of Article 80 of the Rules, it is of course the submissions
which define the scope of any conter-clairri. In its submissions the United States alleged
conduct of Iran which is "detrimental to maritime commercet'. In doing so it echoes, after a
fashion, Iran's claim against the United States which, so fm as it falls within the jurisdiction
of the Court, is based on fieedom of cornnlerce "between the territories of the two High
Contracting Parties".
Section 2. The Court':;Orderof 10March 1998
9.5 In its Order of 10 March 1998 the Court dealt with the issue of its
jurisdiction over thecounter-clairn inthe followingterms:
"Whereas the counter-claim p::esentedby the United States alleges attacks on
shipping, the laying of mines, and other military actions said to be 'dangerous
and detrimental to maritime commercet; whereas such facts are capable of
falling within the scope of rlrticleX, paragraph 1,of the 1955 Treaty as
interpretedby the Court; and whereas the Court hasjurisdiction to entertain the
United States counter-claim insofur as thefacta slleged muy haveprejudiced
thefreedomsguaranteedbyArticleX,parugraphlU4.
9.6 In Iran's submission,this passage is significant in the following three
ways.
First, although the Court upholdsitsjiirisdiction over the conter-claim, it doeso only
to theextent that itcan be shown that the facts alleged by the United States (which
facts, of course,tis fortheUnited States to prove) did intruth involve prejudice to the
freedoms guaranteed by Article X(1) of the Treaty of Amity. In that sense the Court
3 Ibid.,p180.
4 Orderof 10March 1998,para.36;emphasisadded. only upheld itsjurisdictionprima facie over the United States' claim, andit remains to
be seen whether that claim does actuallyfa11under paragraph 1 of Article X.
Secondly, Article X(1) is not to be read as a general guarantee of freedom of
commerce in the vicinity of Iran, or in the Persian Gulf region. The Treaty only
protects freedom of commerce between the United States and Iran. Thus there is a
specific bilateral inter-State elementto the protection affordedby Article X(i), and the
United States has to show that protected commerce was impaired in its fieedom by
unlawful action attributable to Iran.This burden of proof has already, of course, been
imposed on Iran in respect ofthe oil platformss. It applies equally to the United States
in respect of the categories and instrurnentaiities of commerce in respect of which it
claims.
Thirdly, just as Iran's cIaim (to the extent itfalls within the Court's jurisdiction) is
l concerned only and exclusively with Article X(l), so this is true of the United States
l
counter-ctaim. Other paragraphs of Article X are onIy relevant in the present
l
proceedings to the extent that they may be relevantto the interpretation or application
l of paragraph 16. Thus, for example, paragraph 5 is an independent guarantee
conceming vessels in distress: it is not limited to vessels engaged in commerce or
l
l navigation between the territories ofthe High Contracting Parties, and it isirrelevant
l in the present proceedings7. This limitation is consistent with the Court's insistence
that "the Respondent cannot use a counter-claim as a means of referring to an
I
international court daims which exceed the limits of its jurisdiction as recognized by
the partiesv8. In the present case, the extent of the jurisdiction recognised by the
Parties, and accepted by the Court, is that definedby Article X(1).
6 See,I.C.J.Reports1996,p. 820,para.51.
This consequenceof the Court'sOrderwaspointedoutby Judge Higginsinher SeparateOpinion tothe
7rderof 1OMarch 1998. See,also,Judge ad hoc Rigaux,dissenting.
The UnitedStatesgives no particularsof United States vesselswithinthe meaningof the Treaty seeking
8aveninIranianports in circurnstancesof distress.
concerning Applicationofthe ConventiononthePreventioandrPunishmenrof theCrimeof Genocide(Bosniae
& Herzegovinav Yugoslavia).I.C.J.Reports 1997, p. 257, para.31. In turn this insistence onthe reciprocal
effectofjurisdiction accepted in casugoes backto the crucialdebatesinthe Permanent Court onthe predecessor
of Article 80. See, the Reportof the Cornmirteeof Co-ordinatiMayf 1934;P.C.I.J.,SerieD, No. 2, 3d
addendum at p. 871, which noted ththe allowance forcounter-claimsdinot cause difficulty "étantdonné Section3. OutstandingIssues in relatia~n to theCourt's Order of 10March 1998
9.7 Three issues howeverremain to beconsidered by way of preliminaries
to the consideration ofthe counter-claim.
A. Theissue of frleedomofnavigation
9.8 Article X(l) of the Treaty ofAmity protects both freedom of commerce
and fieedom of navigation; both protections are qualifiedby the introductory words"between
the territories of the twoHigh Contracting Partiestt. Iran'sclaim in the present case, to the
extent that it falls within the jurisdiction of ihe Court, is lirnited to fieedorn of commerce9.
This was made very clearinthe PreliminaryOlbjectionphase, wherethe Court notedthat:
"the question the Court must tlecide, in order to determine its jurisdiction, is
whetherthe actions ofthe United StatescompIainedof byIranhad the potentiai
to affect 'freedom of commerce' as guaranteedbythe provision quotedabove".
And in the foliowing paragraphs the Court fi~cusedexclusively on freedom of commercein
relationto Article~(1)".
9.9 The United States'sub~.nissioni,n itscounter-claim, likewise refers to
conduct which is "dangerousand detrimental to maritime commerce"". Itwould appear,
therefore, that the clairns of the Parties are limitedto freedom of commerce as protected by
ArticleX(1),and not to freedom of navigationas such, and that the Court precisely qualified
itsjurisdiction in this sense in 1996.
9.10 The Court in its Order of'1 0 March 1998was perhaps less.cIear. After
referring to passages of its 1996Judgment interpreting the conceptof freedom of commerce,
and after referring also tothe United States':;ubmissionwith its own emphasis on "maritime
qu'ellétaitprévue seulemednatnsles limitesde laconipdtencedelaCourtelles qu'ellest tabliespoles
besoins del'instance aucoursde laquellela demande.reraitfaite"(emphasisadded).
9 TheUnited Stateshasaccusetheplatformsof rnanythings,butnotyetof acapacityfornavigation.
10 I.C.J.Reports 1996,p. 817, para.38;andthewholepassageEompp.817-820.
II U.S.Counter-Mernoriap. 180. commerce", the Court said that "such facts are capable of falling within the scope of
ArticleX, paragraph 1,of the 1955Treaty as interpreted by theCourt;and whereas the Court
hasjurisdiction to entertain the United States counter-claim in sfaras the facts alleged may
have prejudiced the fieedoms guaranteed by MicIe X, paragraph 1 "'*. As has been seen, the
only aspect of ArticleX(1) interpreted by the Court was the aspect dealing with freedomof
commerce, and this wasthe sole basisofjurisdiction upheld. Onthe other hand, it is true that
theCour referred in the plural to "the freedoms guaranteed"bythat paragraph.
9.11
Iran accepts that commercial navigation between the territories of the
High Contracting Parties, within the meaning of Article X(l), is covered by the guarantee in
that paragraph, and that this covers whatever is properly incidental to such commerce,
including production for the purposes of commerce. Itdoes not, however, accept that non-
commercial navigation is protected byparagraph 1,or that the freedom of such navigation is
in issue in the present case, for thellowingreasons:
(1) The United States' counter-clairn is couched exclusiveIy in terms of maritime
commerce, asnoted already .
I So is the Iranisuiclaim inthiscase, as it now stands. For theUnited States to be able
(2)
to bring claims based on non-commercial navigation would expand the case
significantly, and there are strong indications, in the Order of 10 March 1998as well
as in the earlier Judgment, that such issues are excludfiom thepresentcase.
I (3) In any event, non-commercial vessels (i.e.vessels of war) are not protected by
Article X(1). This is expressly provided in ArticleX(6):
''Theterm 'vessels',as used herein, meansalltypes of vessels, whether privately
owned or operated, or publicly owned or operated; but this tem does not,
except with reference to paragraphs 2 and 5 of the present Article, include
fishing vessels or vessels of war",
12
Orderof10 March 1998,para.36; emphasisadded.It is true that paragraph 1 does not actually use the word "vesseis". But it does refer to
fieedom of navigation, and such navigation connotes, indeed requires, the use of vessels.
Interpreted in the general context of ArticleX: as a whole, it isclear that vessels of war only
benefit from the discrete guarantee in paragraph 5. They are expressly excluded from
paragraph 113,
B. Whatis the commerce "betweenthe territoriesof the two High ContractingParties"
whose freedom is guaraanteed by Article X(l)?
9.12 The second outstanding question is the identification of the commerce
whose fieedom is protected by Article X(1:i. As noted already, that commerce must be
"between the territories of the HighContractirigPartiesrt. The Court made it clear in its 1996
Judgment that commerce forthis purpose was not restricted to mere acts of purchase and sale:
it extends to "al1transactions of import and e:cport,relationships of exchange, purchase, sale,
transport,and financial operations between nation^" It^freedom could be impeded by "acts
entailing the destmction of goods destined to be exported, or capable of affecting their
transport and their storage with a view to e~~ort"'~ - it being understood that the facilities
attacked in this case were very largely dedicated to the export trade, including trade with the
United States.
9.13 In Iran'sview, whether a particular transaction, facility or instrument is
part of commerce "between the territories of'the High Contracting Parties" depends on the
particular facts and on the nature of the tr;insaction, facility or instrument. As shown in
Chapter 6, it is possible to givea broad meaning to the notion of commerce and of freedom of
commerce (as the Court did), and still to insist that the actual words introducing ArticleX(l),
be given their ordinary and natural meaning. The question is essentialiy one of fact in each
case, based on a broad conception of the idea of commerce and ordinary meaning ofthe words
"between the territories of the High ContractirigParties".
13 See,Chapter6, above for furtherdiscussionol'thescopeof AX.icle
14
(19601,p. 126.eports 1996,p. 818, para.45, citinDicrionnairde la terminologie dzidroit internalionni
15
I.C.JReports1996,p. 819, para.50. 9.14 Iran has also explained in Chapter 6 above that the oi1platforms were
engaged in protected commerce within ArticleX(1).It will be shown below, however,thatthe
incidents which are referred to in the U.S. counter-claim cannot in fact be considered, on any
reasonable reading of ArticleX(I), as being involved inprotected commerce 16.
C. Theadmissibilityof theUnitedStates'counter-claim (independentlyof Article80)
9.15 The third issue that requires ~Iarificationrelates to the question of the
admissibility of the United States' counter-claim, independently of the requirements of
Article 80. The Court in itOrder of 10March 1998did not deal with issues of admissibility
other than those specifically mentioned in Article 80. Indeed the United States' position was
that the only question for the Court at that stage was whether the counter-claim was "directly
co~ected"". The Court dealt also with the question ofjurisdiction over the counter-claim, to
the extent (but only to the extent) of deciding that if the United States counter-claim fell
within the scope of Article X(l), it fell within the Court's jurisdiction. The Court did not
address issuesof admissibilitynot covered by Article 80,which therefore remain open.
I 9.16
The first of these concerns the United States' rightto espouse claims in
relation to the specific incidents it identifies. The United States addresses this issue in a
summztryway in paragraph 6.24 of the Counter-Memorial, but it goes on to note in paragraph
6.25that the "counter-clairnisnot dependent on an espousal of claims held by U.S. nationals".
It is notlear to Iran whether infact the United States is seeking to espouse claims in respect
of anyor al1of the specific incidents to which it refers. The United States' subrnission with
regard toits coiinter-claim,which is framed in general tems, suggests that this may not be the
case.Jndeed,the damages identified by the United States appearto concern primarily the costs
of deploying forces inthe Persian ~ulf'~.
9.17 Without clarification of these issues, Iran must limit itself to making a
general objection that any such purported espousal is inadmissible. The United States has
16 Subject to the possible exceptionof the TexCaribbean, aclaim in respect of which mustin any
eventbe dismissedon other grounds.
l7 Asthe Courtnoted inthe Orderof10 March 1998,para.22.
a
U.S.Counter-Memorial,para.6.25.simplynot shown,or even attempted to show,that inthe context ofa clairnunder Article X(l)
of the Treaty of Amity ithas the right to espouse claims in respect of the specific incidents
mentionedIg.Iran reserves its right to develop these arguments further in the light of any
subsequent clarification of thisissue.
9.18 The second issue of adrnissibilityconcerns Article XXIof the Treaty of
Amity. It wiI1be recalled that Article XXI(;!) allows either Party to subrnit to the Court a
dispute as to the interpretation or application ofthe Treaty of Amity, which has not been
"satisfactorily adjusted by dipiomacy". It is truethat this is, in Sir Robert Jennings'words,
"notan exigent requirernent"20.However,the words must be given some meaning; there must
have been some attempt, not a purely foimal gesture, in the direction of satisfactory
adjustment by diplomacy. This is further *ronfimed by the preceding paragraph of that
Article, ArticleXXI(l), which readsas follows:
"Each High Contracting Party shail accord sympathetic consideration to,and
shall afford adequate opportunity for consultation regarding, such
representations as the other High Contracting Party was makewith respect to
anymatter affecting the operation of the present Treaty''.
As will be shown below,the United Statesfailedto meetthese obligations.
9.19 The relevant correspondenceis set out in Exhibit 24. It includes the
following:
United States'letter of 26 March1997;
United States'letter of 3 April 1997;
Iran's responseof 22 April 1997;
Iran'siùrther response of 12June 199;';
19 TheSarnrlelB. Robertswas a warshipand is thusexcludedfiom the Treaty. Theultimateownership
interestsin the reflaggedtankBridgeron andSea i'sleCi9 laywiththe KuwaitiState,and in anyeventthe
reflagging wasnotopposabieto Iran.TheUnitedStateshasproducedno evidenceas to theownershipinterests
oftheothervessels, letaloneanyjustificationforitsespousalofsuchownershipinterests.
20 Militav and Pararnilita~ Activiriin anclagainsr Nicaragua (JurisdictionI.C.J. Report1984,
p.556. United States'letter of 16June 1997;
Iran'sresponse of20 June 1997.
The Court will see from this correspondence that Iran was willing to discuss issues of
compensation arising from the events in the Persian Gulf at the relevant period, includingthe
incidents mentioned by the United States in its letter of 26 March 1997, without a pior
admission of responsibility by either side. In its letter to the Court of 23 June 1997, the
I
United States inferred that Iran had rejected negotiations, "proposing instead that the Parties
conduct negotiations on a broader range of subjects". This is a complete mischaracterisation.
The letter of 12 June 1997expressly referred to Iran's"readiness to enter into negotiations",
and this was reaffïrmedin the letter of 20 June 1997.
9.20 Other features of the claims raised in the United States' letter of
26 March 1997 include its listing of incidents affecting particular ships, 9-10 years after the
event, which had never previously been dcdt with in diplomatic correspondence, let alone
been the subjectof diplomatic claims. Details of the particuIar incidents are set out Eurtherin
the following Chapter.
9.21 It is, of course, for the Court to interpret the language of Article XXIof
the Treaty of Amity. If the requirements of the phrase "not satisfactorily adjusted by
diplomacy" are to be considered as satisfied just because Iran - while agreeing to open
negotiations - declined to accept responsibility in advance and on the basis of an artificially
limited description ofthe dispute (only the claims of the United States, none of the claims of
Iran), then it may be that the counter-clairn was "not satisfactorily adjusted by diplomacy".
But it is odd to treat the "satisfactory workings of diplomacy"as equivalent to the acceptance
of adiktat. The United States' positionis indeedparadoxicai. For the purposes ofjurisdiction
over its counter-claim, it went out of its way to stress theclose relationship between clairn and
counter-ciaim, the identity of the facts, etc. When it cornes to a possible negotiated
settlement, however, the United States regards the claim and counter-daim as completely
different andunrelated. Iran'sposition at the time (which has not changed) is that it is willing
to negotiate with the United States al1unresolved issues between the two States arising from
this period;naturalIysuch negotiations would be without prejudice on both sides. The United
States has never shownthe slightest interest in a diplomatic resolution of any of these issues.It made no effort, beyond the most nominal, to bring about any adjustment. Inthe special
circumstances of the present case, Iran submits that the United States has not shown that its
counter-claim couldnot be "satisfactorily adjusted bydiplomacy", and thatsuch counter-claim
is accordingly inadmissible.This conclusion i;;confirmedbythe United States'failure to meet
its obligations under Article XXI(1)to accord any consideration or allow any consultation
with regardto Iran'sconcerns.
Section4. Structure of Iran'sDefence to the United States Counter-Claim
9.22 Although the United States in its letter of 26 March 1998 cited a
number of specificvessels whose right to fieedom of navigationunder Article X(l) was, in its
view, impaired, itdoes so in support of a generic claim to freedom of navigation inthe area at
the time. Et further reserves the right to bnng forward hrther allegations (although that
freedom is not available to Iran, which has from the beginning been clear asto the instances
and events in respect of which itwas claimirig). For the reasons already given, in respect of
any particular allegation of a violation of Article X(l), itmust be shown, in addition to
unjustified impairment of the freedom, that the subject in question was either itself part of
commerce between the territories of the High Contracting Parties, or that it was sufficiently
associated with such bilateral commerce. IIIthis regard, it is usehl to anaIyse the United
States' claims in two ways -first, to the ex.tentthat the United States refers to attacks on
specific vessels (the specific claims), and secondly, to the extent that it refers to a more
general impairmentof freedom of commerce between the temtones of the High Contracting
Parties (the genericclaim).
9.23 As to the speczyc claiins, the United States rnust prove the following
elements:
(1) that relevant instrumentalities of commerce (including vessels as defined in
ArticleX(6) of the Treaty of Amity), were engaged in commerce between the
territoriesf the High Contracting Parties;
(2) that conduct attributable to Iran violateci their fieedorn to do so, contrstry to
ArticleX(l) of the Treaty of Amity; andI (eventually) the quantum of damages or compensation directly attributable to that
(3)
violation.
9.24 As to the generic claim, the United States must prove the following
elements:
(1) the existence of commerce between the temtories of the High Contracting Parties,
independently of anyindividuallynamed ship or other instrumentality;
that conduct attributable to Iran violated the fieedom of that commerce, contrary to
(2)
Article X(l) of the Treatyof Arnity;and
(3) (eventually) the quantum of darnages or compensation directly attributable to that
violation.
9.25 In both respects the onus of proof is on the United States, in line with
the principle that the internationalresponsibility of a State is not to be presumed21.
9.26 In the circumstances it is proposed to deal first with the specific
l
instances so far relied on by the United States (see, Chapter IO), and secondly with the
l
"generic claim"under Article X(1)(see, Chapter 11). Finally, certain reservations as to Iran's
legal position vis-à-vis the United States will be made, with a view to preserving the equality
of the Partiesunder the Treatyand before the Court (see,Chapter 12).
I 21
Inthe SpanishZone of Morocco Ciaims (Claim 27),Arbiîrator Hubewas faced with damagecaused
but incucurnstanceswhichremained unclearfnthosecircumstancesthe claim failed:
"Les documentset explications orales fournispar les Représentantsdes Parties n'tas l'époque
exacte Blaquellele vol a eu lieu. Or, dans le doute, il ne semblepas admissiblede présumer queIe vol
se soit produitune époqueoù un état normal de pacification régnait encore dans la région. Pareille
présomption seraitcisivepour laquestionde la responsabilitéde l'Espagne. Maisentrenvoyantà
son rapport préliminaire surla notion de la responsabilité,le Rapporteur déclace,qui est de
l'espèce,se ralIier au principe suivantlequel la responsabilité intedea1'Etatne se présume
pas".
U.N.R.I.A.A.,Vol. (1924),p. 699. CHAPTERIO. THESPECIFICALLEGATIONSOFTHEUNITEDSTATESIN
RELATIONTOARTICLE X(l) OFTHETREATY OF AMITY
Section 1. Introduction
10.1 This Chapter addresses the specific allegations so far made by the
United States of breach of Article X(I) of the Treaty of Amity. Ettakes each allegation
separatelyandconsiders, in relationto that allegation,the following preliminâry questions:
(1) United States nationalis and/or economic interest? It is true that there can be
l commerce "betweenthe territories of the High Contracting Partiesttin foreign vessels
i
(i.e., vessels which are neither Iraniannor United States). Thus the nationality of the
ship or other mode of transport is not decisive for this purpose. Nonetheless, it is
plainly relevant to the question of any right the United States may have to espouse a
claim. Moreover, for reasons to be expiained shortly, it is Iran's view that the United
Statesby its conduct at the time limited itself to protecting United States flag vessels
only and is thus precluded from cfaimingon behalfof other vesseis. For these reasons,
thefirst question is whether the vessel concerned had United States nationality. An
associated question, relevant at least in terrns of the United States' right to claim
reparation, is who was beneficially interested inthe vessel in question and its cargo.
Engagedin inter-Par@commerce? Was the vesselor other instmentality engaged in
(2)
commerce between the temtories of the High Contracting Parties, as required by
ArticleX(l)?
Engaged in inter-Par@ navigation? In the alternative, was it engaged in navigation
(3)
between those territories, forthe purposes of Ar~(l)'?
10.2 These issues arepreliminary to the question of whether the incidents in
question are attributabIe to Iran, or had any connection with the platforms, or constitute a
1 Iwas argued in paragraphs 9.8-9.11abovethat the Court'sjurisdiction in the presentcase extendsonIy
to commerce and not to non-commercial navigation. This questionis asked in the alternative, and without
prejudiceto this position.breach of Article X(1). It is the answer to these prelirninary questions which wiIl determine
whether in fact theseincidents do fa11withinthe Court'sjurisdiction.
10.3
The various incidents referred to will be dealt with seriatim, and in
chronological order. Before doing so, however, severalcornmon issues asto the nationalityof
tfieclaims brought by the United States arising out of these specific incidents need to be
discussed.
Section2. The United States' Claims with Respect to Non-U.S.-Flagged Vessels
10.4 The United States expressed its concern about possible attacks on its
shipping in a number of communications seni.to Iranin 1987.In one of these communications
the United States cautioned Iran against"any act which threatens Ournaval units or any US.
flag shippingH2.In another communication, dated31August 1987,the United States avowed
that:
"Our military forces operating in the [Persian] Gulf pose no threat to Iran, but
will assist in maintaining freedom of navigation and will protect US. flag
vessels. U.S. flag vessels are strictly neutral with respect to the conflict
between Iran and Iraq. They curryno cargoofany kin fdoreither country ... .
Iran has already pointed out that the United :Statespolicy for shipping security in the Persian
Gulf concentrated on US.-flag vessels, asillustmtedby itsneed to refiag Kuwaiti vesseis4.In
addition, of course, the last phrase of this citation is a clear admission by the United States
that the relevant vessels were not engaged in commerce between the territories of the High
ContractingParties.
2
SeeU,.S . ounter-Mernorial,para. 1.24;emlihasisadded;see, also, the U.S. communication toIran of
18July 1987 (U.S. Counter-Memorial, Exhibit 42In this communication, the UnitStates refers to the
reflaggingof Kuwaiti vesselsand states:"faIflueregisteredunderUnitedStateslaw,protection accorded
them in the PersianGulf will be the same as that providedto any other US.Jlag vessel";emphasisadded. The
United States statesin the sarne letter: "The Governnientof the IslamicRepublic obeIfulfyaware
that the UnitedStates willa11appropriate measuresto protect and defenUS.lflagships...."; ernphasis
added.See,also, letterfrornthe United StoIrandated23 May 1987(U.S. Counter-Memorial,Exhibit39).
The UnitedStates also referredto U.S.-flaggedmerchantvessels priorto the day the TexacoCaribbean stnick a
mine(U.S.Counter-Mernorial,Exhibit43).
3 U.S.Counter-Mernorial,Exhibit56;emphasisadded.
4 See ,hapter2,above;see,also, Iran'sObservationsand Submissions,Amex, para. 24. 10.5 The United States has also qualified the actions taken against the
platfoms as necessary for the protection of shipping under its own flag. For exarnple, the
United States has described its action ,against the Reshadat platforms as "a reasonable,
proportionate defensivemeasure"allegedly "intendedto undermineIran'sability to attack U.S.
flag shippingand U.S. naval escort forcesu5. When the United States addressedthe selection
of targets for its attack onIran'sReshadat platforms, code-narned"OperationNimble Archer",
it argued that the target had to be "directly related to Iranian beIligerence against U.S. flag
shippingf16. The reason for choosing to attack the SaIman and Nasr platforms during
Operation Praying Mantis was the same. According to General George Crist: "In
recornrnending targetsto the Secretaryof Defense and Chairman of the Joint Chiefsof Staff,
my prioritieswere eîsentially unchangedfrorn operationNimble ~rcher"~. ,
10.6 Prior to its letter to Iran of 26 March 1997,the United States had not
suggested that it had any claim against Iran, nor justification forits attacks on the platfoms,
other than in respect of US.-flagged vessels. In its Ietter to the Security CounciI dated 19
October 1987,referring to its attack that day onIran'soil platfoms, the United States sought
to justiQ its actions by specific reference to the Sea IsleCi@ "a United States flag vessel,
[struck]in the territorial waters ofKuwait"'. The United States allegedin the same letter that
the attack on the Sea Isle CiQ was the latest in a series of "unlawfularmed attacksby Iranian
forces againstthe United States,incIudinglaying mines in international waters for thepurpose
of sinking or damaging United States flagships". In that letter the United States did not
specificalIymention alleged Iranianattackson the Bridgeto onthe Texaco Cavibbean, which
had aIso occurred before the U.S. action against Iran's platforms on19October 1987. Yet it
now purportsto be able to clairnfor darnagesto those vessels in itscounter-claim.
10.7 Moreover, in the oral pleadings before the Court on its PreIiminary
Objection, the United States mentioned only three vessels with regard to what the United
Statescalled "hostile engagements" betweentheUnited Statesand Iran:the Bridgeto tne,Sea
5 U.S.Counter-Memorial,Exhibi43.
6 Ibid.,Exhibi44,
7 Ibid.
8 Iran'Memorial,Exhibit73.Isle Ci@andthe Samuel B.Roberts. Commander Neubauer, speaking for the United States,
stated:
"Should the Court proceed to thernerits in this case, it wobedcalled upon to
detennine complex legal and factual controversies regarding these hostile
engagements. Was the Islarnic Republic of Iran responsible as the United
States contends, forthe unlawfiil attacb on the US tankers Bridgeton, anSea
IsleCity an,dthe guided missile fngate USSSamuel B ~oberts?"~.
Similarly,in its letter to the SecurityCouncil dated 18April 1988,the United States soughtto
justify its attack on the Nasr and Salman platformson the same date by reference only to the
alleged Iranian attack on the SamuelB. Robe,~rs.Although the incidents involving the Esso
Freeport,Dianeand Lucy occurred prior to tlie U.S. decision to attack the Nasr and Salman
platfoms, the United States did not invoke them as justification for its attack. It is
undoubtedly only since its belated decision tGfile a counter-claim that the United States has
attempted to findgrounds for asserting a claim for damages with respect to those vessels.
10.8 When each of the Severispecific incidents alleged in the U.S. counter-
claim occurred, onlythree of the vessels involved, inaddition to the USS. SamuelB. Roberts,
which was a U.S. war vessel, were sailingunclerthe flag of the United States. Havingregard
to the statements consistently made at the tirne, the United States is precluded now from
relying on alleged incidents involving foreign flag vessels in terms of its rights under
ArticleX(1)of the Treatyof Amity.
Section3. Nationality of Ctaims:The Issue of Reflagging
10.9 A second preliminary issue relates to the reflagging of non-neutral
shipping with a view to its protection. In December 1986the Kuwait Oil Tanker Company,a
Kuwaiti corporation, expressed an interest in reflagging its vessels under the U.S. flag.
Despite confirmation by the United States that the reflagging wouId be allowed only if the
vessels inquestion met United States requirernents, the U.S. Coast Guarddid not carry out a
full inspectionof the Kuwaiti tankers to be reflagged. In order to circumvent the problern of
non-inspection, the Department of Defense authorised waiversallowing one year for Kuwaiti
-
9
CR96112,16 September1996,pp.38-39. ships to cornply with United States safety regulationsI0. As of 2 June 1987the Kuwait Oil
Tanker Company and the U.S. Coast Guard had signed a formal memorandum of agreement
by which the partiesagreedto a one-yearsafetyrequirement waiver and to minimal manning
requirements". Inparticular, only the rnasterof each vessel wasrequired to be a United States
12
citizen.
10.10 Transfer to U.S. registered ownership of the vessels was arranged by
Santa Fe Corporation, a company owned by Kuwait Petroleurn Corporation, through the
creation in May 1987 of Chesapeake Shipping Inc., a company formed under Delaware Law.
By June 1987 ownership of al1 11 Kuwaiti tankers had been transferred to Chesapeake
Shipping, Inc. Al1stock in Chesapeake was owned by the Kuwait Oil Tanker Company, a
subsidiary of the State-owned Kuwait Petroleum Company. Thecompany'sassets were $350
l million, the value of the tankers. Afier Chesapeake Shipping had assurned ownership and
l
operation of the tankers, it immediately rechartered them back to Kuwait Oil Tanker
comPany".
10.11 It was possible for the United States to apply minimal manning
requirements due to a loophole in the registration regulations: if a vessel was not departing
l
fiom a U.S. port, itwas not required to employU.S. mariners until such time as it returned to
l
i a U.S. port - a remote possibility for the reflagged Kuwaiti tankers14. This "loophole" was,
however, closed by Law H.R. 2598, adopted on 11 January 1988,which in turn required a
review of theregistration of the Kuwaiti tankers. The new law required that on US.-flagged
i
l vessels al1licensed searnen, and 75% of unlicensed searnen, be U.S. citizens, regardless of
l whether the ship called at American ports15.At the time of w-riting,Iran has not been ableto
discoverwhether the reflagged vessels complied withthe new law, were granted an exemption
fiom it, or reverted to their earlier registration. The United States,which has this information
in its archives, will nodoubt be able to inform the Court accordingly.
IO See,Exhibits25and 26, Vol.II.
II See,Exhibit26,Vol.II.
12 See, ibid.
13 See, Exhibit33, Vol. II
! 14 See,Exhibit26, Vol. II.
1 1s Ibid. 10.12 However this may beyit is known that when the Bridgetonstnick a
mine, and when the Sea Isle Civ was struck by a missile, it was the Kuwait Oil Tanker
Company, a Kuwaiti corporation, which appears to have met the cost of repairs. Indeed, the
United States does not even seem to have asked Kuwait Oil Tanker Company for an
assessrnentof the alleged damages until April 1997'~.United States naval officers evidently
continued to thin kf the Bridgetonas bein~;Kuwaiti despite its reflagging. According to
Rear Admira1Bernsen: "Prior to the attack on the Bridgeton, Iranianforces had attacked a
number of other Kuwaiti-owned vessels; it was clear that Iranwas targeting Kuwaiti vessels
for attack"".
10.13 The determination of the nationality of vessels for the purposes of the
Treaty of Arnityis regulated by Article X(2).
"Vessels under the fiag of either High Contracting Party, and carrying the
papers required by its law in proof of nationality, shall be deemed to be vessels
of that High Contracting Party both on the high seas and within the ports,
places and waters of the otherEfighContractingParty".
It might perhaps be argued that this provisioii is effective to overcorne any generaI difficulty
with flags of convenience which were gran.tedother than in accordance with the normal
procedures and in contexts where there wai; no effective change of ownership, beneficial
interest or control. Iran does not accept tha.tparagraph 2 was effective to displace normal
niles for the nationality of ships. But the cardinal point is that the matter is quite otherwise
where the reflagging is carried out for a non-neutral purpose. Whatever its general effect
might be, Article X(2) has to be read in the context of the well-established rule of general
international law, to the effect that the reflagging of a non-neutral vessel, as a device to
achieve protection, isvoid.
10.14 As a rule, the neutral oi.non-neutral characterof a ship is determined by
the flag it flies. But for that very reason, the transfer of a belligerent ship to a neutral flag is
16 See,U.S.Counter-Mernoria El,hibi45 and89.
17 IbidE.,hibit43. void, at least as a general rule18. There are exceptions to this mle if the transfer was unrelated
to the purpose of protecting the ship. But there is an unrebuttable presumption that the
transfer is void if a retransfer is reserved. In the case of the transfer of Kuwaiti ships to the
U.S. flag, in view of the unneutral behaviour of Kuwait (a point which cannot be disputed, as
I
Kuwait has officiallyrecognised it), the flag of Kuwait must be considered as equivaient to a
belligerent flag for the purposes of the apptication of this rule. Clearly, the reflagging was
made exclusively for protective purposes. This was the explicit and avowed sense of the
measure 1. Whether there were arrangements for a retransfer is not known. But the clear
protective purpose is enough to render the transfer void, andthus it is not opposable to Iran in
the present proceedings. That conclusion is reinforced by the fact that the transfer itseIf
(which involved a waiver of the normal rules for U.S. registration of a flag) constituted a
breach ofneutrality by the United States: it was part and parce1of a policy which violated the
two basic obligations of neutrality, namely the duty of abstention and the duty of impartiality.
Therefore, for the purpose of the application of the Treaty of Arnity, the reflagged ships
cannot be considered as U.S.-flagged vessels. As explained above, the United States is not
entitled to bnng anyclaim in relation to such vessels.
Section4. The Specific Incidents onwhichtheUnitedStatesRelies
10.15 Iran turns then to the specific incidentsto which the United States refers
in itscounter-claim. These were:
I
1s See,Art.56 ofthe 1909London Declaration: "Thetransferofan enemyvesselto a neutral fiag, effected
afier the outbreakof hostilitisvoid unless it is proved that suchtransferwas not made in order to evade the
consequencesto which an enemy vessel,as such, is exposed". TheDeclarationis consideredto be an expression
of customary law, at least to a large extent. For details see, Kalshoven, F., "1909 London Declaration,
Commentary",in RonzittiN., (ed.), TheLaw of Naval Wa.fare,1988, pp. 271, et seArt. 56 is not amongthe
provisionswhichKalshoven mentions asbeingmodified by subsequentpractice. In the samesense see Verzijl,
J.H.W., InternurionaiLaw in Historicai Perspective, Part IX-D, 1979, p. 225. Earlier British and American
practice seernto have been somewhat more liberal, but always requirtd that a tranwasr made bonafide,
which probablyrneant thatthe transfer was really commercial,and not protective; ses, Colombos, C.J., The
InternationalLawofthe Sea, 1967, pp.560, et seq.; OppenheimiLauterpacht,InternatioLaw, Vol. II,7th ed.
1952, p. 284. Duringthe Fust World War, Art. 56 was indeedconsidered as binding, i.e., an expression of
customarylaw; ibid., p. 286. The San RemoManualdoes not containa provisionon reflagging, butit considers
theflag onlyasprimafacie evidence of the neutral characterof a ship(Sec. 113).
19 Menefee,S.P., in De Guttry, A., Ronzitti, N., (eds.), TheIran-Iraq (1980-1988) and the Law of
i Nmal Warfare, p. 122, et seq. Reflagging was requested by Kuwait for this very purpose.See, Secretary of
Defense,A Report tothe Congress on Security Arrangementsin the PersianGulf, 15 June 1987,in De Guttry,
A., Ronziîti,N., op. cit.,158,et seq.: "...in March 1987,tU.S.agreed inprinciple to Kuwait'sdecisionto
reflag elevenof itstankers andagreed to providethem protecinthe Persian Gulf...".(A) The Bridgeton(24 July 1987)
(B) The Texaco Caribbean(1 0August 19137)
The SeaIsle Ciy (6 October 1987)
(C)
@) TheLucy(15or 16November 1987)
(E) The Esso Freeport (16November 1987)
(F) The Diane (7 February1988)
The US.S. Samuel B.Roberts (14April 1988)
(G)
Theywill be dealt withintum.
A. TheBridge,fon(24July 1987)
10.16 The Bridgeton, a refla,ggedKuwaiti tanker, struck a mine on 24 July
1987. That incident occurred when the Bridgeton was approximately 18 nautical miles
southwest of Farsi Island, in the northern part of the Persian Gulf. Three days earlier, the
Bridgetonhad departedfromKhor Fakkan in the Gulfof Oman,off the United ArabEmirates,
accompanied by three U.S. Navy warship escorts and another merchant vessel, the Gus
Prince, another reflaggedKuwaiti vessel. The Bridgeton, which wasin ballast, was en route
to Kuwait and, in fact, continued on its jour-neyafter it had struck a mine. Damage to the
vesse!wason itp sortside,100-200 feefromthebowand no injuries resulted.
10.17 With regard to the prt:lirninaryquestions of whether U.S. nationality
andor economic interest was involved; whether the Bridgeton was engaged in inter-Party
commerce, and whether it was engaged in inter-Party navigattheanswers are as follows:
US, nationality andor economicinterest? Prior to its refiagging by the United States,
(1)
the Bridgeton wasthe Al Rekkah,a Kuwaiti owned, registered and flagged oil tanker.
Ithas been shown above that the refiagging is not opposableto Iran. In anyevent
there was no changein the real economic interests involved, which were note of
anyU.S.Company.
(2) Engaged in inter-Par@ commerce? The Bridgeton was in baIlast, and was not
intendingtocarrypetroleumproducts from Iran, but wasen route to Kuwait. (3) Engaged in inter-Partynavigation?No.
It follows from the above that the Bridgetondoes not fa11within the scope of Article X(l) of
the Treaty.
10.18 The United States' allegation thatthe Bridgetonhad been "targeted for
attack"", and the evidence that it relies on in support of this allegationhas serious flaws, as
l
has been shown above21. In the light of these facts, there is accordingIy no basis for
establishinga breach ofthe Treaty of Amityby Iran, even ifthe United States could overcome
thepreliminary requirements astojurisdiction andadmissibility set out above.
B. The TexacoCaribbeua(10 August 1987)
10.19 The Texaco Caribbean was a Panamanian-registered tanker which
struck a mine of unknown provenance at the Khor Fakkananchorage in the Gulf of Oman off
Fujairah, United Arab Emirates on 10August 1987~~.As a hole blown in the ship'shull had
caused oii to le& intothe water, the TexacoCaribbeanoff-loaded its cargo to another vesse1
(the D'Artagnan)and made its way to Bahrain for repairs. There were no casualties. The
TexacoCaribbeanhad loaded Iranianlight crudeoil at the Iranian trans-shipment termina1at
Larak~sland~~ and was to transport its cargo -which belonged to the Norwegian shipping and
trading Company,Seateam -to ~otterdam*~.
10.20 lran itself submitted a protest to the United Nations following the
attack2'. Iran also asked permission to clear the United Arab Emirates'waters of mines and
obtained permission to assist in minesweeping operations therez6. Iran'sconcern about mines
20
U.S. Counter-Mernoriapl,ara.1.27. The UnitedStatesoffersas proofthatthe Bridgeton hadbeen
targetedforattackits own CentraIntelligenceAgencyreport(U.S. Counter-Mernorial,xhibit46). See, also,
21S. Counter-MernoriaEl,xhibit32.
See,paras.5.16-5.18,above.
22 U.S.Prelirninary bjection,Annex1,p.65.
23 Iran'Observationsand Submissions, xhibit25.
24 See, U.S. Counter-Mernorial,ara6.08(2)f~otnotethereto andExhibit169,andIran'sObservations
andSubmissions,Exhibit25.
25 Iran'Memorial,Exhibit58.
26 Iran'sObservationsandSubmissions, Annexp,ara.51, andIran'sMemorial,para.58. See, also, U.S.
Counter-Mernoria El,xhibit52.in this area was self-evident, since a large .numberof Iranian vessels used this area as a
stoppingpoint before entering the Strait of ~ormuz~~.
10.21 The answers to the preliminary questions in relation to the Texaco
Caribbean areas follows:
(1) United States nationali@ andor economic interest? When the Texaco Caribbean
stmck a mine on 10 August 1987, it was registered in Panama and Panamanian-
flagged. According to reports, onthe day of the incident it was under a single-voyage
charter to the Nonvegian shipping arid trading Company,Seatearn, and "was under
orders to proceed to Nonhwest Europe with a cargo belonging to that cornpany"28.
The United States alleges that this vesse1was US.-owned, but has produced no
evidence to confirmthis, ortojustiQ ixsespousal ofthis claim.
Engaged in inter-Party commerce? For the reasons set out in Chapter 6 above, it is
(2)
accepted thatthe Texaco Caribbean was engagedin commerce between the tenitories
of the High Contracting Parties, since :itwas carryingoil from Iranwhich was part ofa
generalflow oftrade in oil in whichthe United States participated as amajor importer
and consumer.
Engaged in inter-Par@ navigation? The Texaco Caribbean was not, however,
(3)
engaged in inter-Party navigation since it was sailing fiom the territory of Iran to the
tenitory of theNetherlands.
10.22 In any event, there is no evidence whatever, and certainly no sufficient
evidence, that the.mine was laid by Iran. Nor isthere any evidence of anyconnection, legalor
factual, between the alleged attack on this vesseand the attack on either of the platforms, and
none is alleged by the United States. Finally, even if it was anIranian mine which stmck the
Texaco Caribbean (of which there is no evi.dence),this would be an insufficient basis for
responsibility on the basis of a breach of thr Treaty of Amity by Iran. If the mine was an
"
28 IranObservationsandSubmissions,Amex, para.51.See,also,para.5.32, above.
Iran'sObservatioandSubmissions,Exhibit:25. Iranianmine, it is certain that this was an accidenIrancould have had no interest whatever
in deliberateIymining a ship caqing oil from one of its own ports, and there no indication
whatever that it did so; indeedai1the indications are to the contrary. Ttshould a1sobe noted
that there were no casualties,and neither theners nor the charterersmade any claim against
iran for compensation.
C. The Sea IsleCify(16 October 1987)
I
l
10.23 Another reflagged vessel included in the Conter-Claim, the Sea Ide
City, was struck by a missile of unknownprovenance on 16 October 1987at approximateiy
6:00 a.m., local tirne. The Sea Isle City had been "proceeding from its anchorage to the oil
loading terminal atKuwait's Mina al-Ahmadi port"2g. Iran has discussed the circurnstances
surroundingthe attack on the Sea IsleCity in detaiI in Chapter4.
10.24 The answers to the preliminary questionsin relation to thSea Isle Ciry
appearto be as follows:
(1) United States nationali~ andior economic interest?Like the Bridgeton, until
late 1987, the Sea Isle City was a Kuwaiti-flagged vessel, the Umm Al
Maradern.The issue of reflagging has already been dealt with. As explained,
therewas no change in the real economic interests involved, which were not
those of anyU.S.person.
(2) and (3) Engaged in inter-Party commerce or navigation? The Sea Isle Ci@ was
engaged in neither inter-Party commerce nor inter-Party navigation. It was
neither travelling to anIranian port, nor carrying or intended to carry Iranian
cargos.
10.25 Furthemore, for the reasons explained above in Chapter 4,
responsibility for the attack on the Sea Isle City cannot be attributed to Iran, and no
connection between the attack and the platforms has even been allegedby the United States.
29 U.S. Counter-Mernorial,para.6.08(3).The question of whether there was a breacih :rinapplicablesincethe missilewas not fired by
Iran,andthe SeaIsleCity was in anyeventn0.tprotectedby ArticleX(1) of the Treaty.
10.26 Finally,the UnitedStatescharacterisedthe attack on the Sea IsleCiy as
an attack on hwait3', and prior thereto hiid stated that it had no obligation to defend
hwait3'. U.S. oEcials had, rnoreover,dec1:xedthat "the umbrellaof American deterrence
did notextendbeyond internationalwaters"32.Whenhit by the missile,the SeaIsle Citywas
in Kuwaititenitorial watersand,thus,underdieprotection ofKuwaitiforces:
"Diplornatic sources said the ~iossibilityof a U.S. response to the attack was
complicated by the fact that tht:Sea Isle City was inKuwaiti territorial waters
undertheprotection of Kuwaiti forces.
U.S. Secretaryof State George Shultz.. .described the missile strike as an
attack on ~uwait"~~.
D. TheLucy (15 o:r16 November 1987)
10.27 The Lucy, a Liberian-registeredvessel, was attacked near the Strait of
Homuz, while en route to the United Arab'Emirates.The Lucywas sailing fiom Japan via
Singaporeto Ruwais.
10.28 The answersto the preliminary questions inreIationto the Lucy appear
to be as follows:
(1) UnitedStatesnationali&and'oreconomicinterest?The Lucy was registercdin
Liberia, andits home portwas Monrovia. The United States has produced no
evidenceto confirmU.S.ownership ofthis vesselor tojusti@its espousal of a
claimfor any damageto theve:;sel.
30 When the Sea IsleCit y asstnick, the responseof Secretary of State George waslthat the
incident"constituandattackon Kuwait";see, U.S.PieliminaryObjection,Exhip.190.
31 U.S .ounrer-Mernorial,xhib97,p.332.
32 Exhibit27, Vol. II.
33 Exhibit28, Vol. II. (2)and (3) Engaged in inter-Pary commerce or navigation? The Lucy was neither
travellintoan Iranianport,nor carryingor intendedtocany Iraniancargos.
10.29 The Reportof the Secretary-Generdof the United Nations refersto this
1 attacktakingplace on 15November 1987 at03:00hours local time,and notes there were no
ca~ualties~T.his was the date usedin the U.S. PreliminaryObjecti~n~O.ther reports suggest
an attack occurredon 16 November at08:30 hours, whichis the date now relied onin the
counter-clairn,Thereappearsonlyto have beenrelativelyminordarnageto the vessel,and no
1
injuries,and the vesselwas abltocontinue its voyage. The alleged incident occurrar from
the oil platfoms,and in the circumstancesdescribedabove this incidentcannot constitutea
breach of ArticleX(l) of the Treaty.
E. TheEssoFreeport(16November1987)
10.30 TheEsso Freeportwas a Bahamian-registered oil tankers ,ailing fiom
Ras Tmura, Saudi Arabia to Louisiana. Accordingto the United States, it was attackedat
11:35 hourson 16November1987, near the Straitof Hormuz,off the coasof ~rnan~~.It was
loaded with a cargo of Saudicmde oil". The United Statesalleges that it was "severely
damagednear the Straitof Hormuzas it was departingthe Gulf with a cargoof Saudi0i1"~'.
However,the grenadesallegedlyfired againstthe Esso Freeport did not penetrateand afterit
had proceededto Fujairah for inspection,the Esso Freeporfcontinuedon its voyage3'.There
1 is notevena damagereportfor thevesseI.
10.31 The incident occurred amonth after the United States attacked the
Reshadat platforms and fivemonths prior to the U.S. attack on the Nasr and Salman
34 U.S. PreliminObjection,Exhibitp. 15.
35 U.S.PreliminaObjection,par1.13.
36 U.S.Counter-Mernoril,xhib168.
37 The United States stin its PreliminaryObjec(para. 1.1h. 27) that "[olutboundtankers
attackedby Iraqgenerallycamed KuwaitiorSaudioil".
38 U.S.Counter-Memorialp,ara.6.08(5).
39 Seeibid .,hibit9, p.90. platforms. No mention was made of this attack at the time as justification for the United
States'attacks on the Nasr and Sahan ~latfor~ns~~.
10.32 In anyevent, the ansaers to the specific preliminary questions in
relationto the EssFreeport show that therecm havebeen nobreach of Article X(1).
(1) UnitedStatesnationality andhr economic interesr?At no relevant time has the
Esso Freeport either flown a U.S. flag or had a registered owner of US.
nationalityAt the time of the .incident,tEsso Freeporfwasregisteredin the
Bahamas. The United States his produced no evidence to justifj its claim that
thisvessel was US.-owned or Ikr its pwported espousal of such a claim.
(2)and(3) Engaged in inrer-Pars, comn~erceor navigation?The Esso Freeport was
engaged intrade between the tl:rritoriesof Saudi Arabia and the United States,
and therefore was engaged iri neither inter-Party commerce nor inter-Party
navigation.
F. TheDiane (7 February1988)
10.33 The Diane, a Liberian-flagged tanker, was aliegedly attacked on
7 Febmary 1988when it was sailing at position 25'49W -55"40tE,approximately 17 miles
offRas al-Khaimah in the United Arab Emirates. It was loaded with Saudi crude oil and was
en route to Japan. It proceeded through tlie Strait of Hormuz to Fujairah, United Arab
Emirates for ternporaryrepairs for damage resultinfroma small fire. Thereafier,the vessel
proceeded to Japanwhere itcompleted discharge of al1of its cargo4'.
I
10.34 According to Exhibit 1'71 to the U.S.Counter-Mernorial,an Iranianship
had requested identification from the Diane when it was at position 25"51T\i - 55'41'E
concerning "name/port of registry/last portlport of destination". Iran has already pointed out
1
l that out of a concern to protect its own trade and shipping, to dissuade third States fiom
40 General Cristas putthe incidentsin context:"forthesamereasonsthatRowasmattackedafier
Iran'sattackon tSea IsleCity,1 thoughIran'O-Rshoreil platfoms at Sassanand Sirriwould be valid
targetsU.S . ounter-Mernoril,xhibit44.
41 U.S.Counter-Mernorial,xhibit 171. violating laws of neutrality and to counter continuing Iraqi aggression, Lranexercised a right
of visit and search4*. It was therefore not surprising tantiranian ship requested the Diane
to identifj itself.
10.35 The answers to the specific preliminary questions appear to be as
follows:
(1) UnitedStates nationalityandhr economicinterest?TheDiane was not a U.S.-
! flagged ship. Again, the United States has furnished no evidence as to its
espousal of allegedUS.-ownership interests inthis vessel.
Engaged in inter-Pary commerceor navigarion?The Diane was engaged in
(2)and (3)
trade between the temtory of Saudi Arabia and, in the first instance, that of
Japan. There is no indication that anyof itcargo was Iranian in origin. It was
therefore engaged neither in inter-Party commerce nor in inter-Party
navigation.
l 10.36 Again, in such circumstances there can have been no breach of
!
ArticleX(1)of the Treaty of Arnity.There is no record ofanyinquiries, and no previous clairn
I has been madeagainst Iran in respect of this vessel.
G. The U.S.S.Samuel B.Roberts (14April 1988)
I 10.37 The seventh vesselreferred to in the U.S. Counter-Clairn, the Samuel B.
Roberts, was a U.S. naval vessel which stmck a mine on 14 April 1988 near Shah Allum
Shoal. The SamuelB. Robertswas returningto Bahrainafter having completed its missionof
escorting U.S. flgmerchant ships.
10.38 The answers to the preliminary questions in relation to the Samuel B.
Roberts are straightforward. The SamuelB. Robertswas a United States warship, and it was
not engaged in inter-Partycommerce or in inter-Partynavigation.
42 Iran'sObservationsand SubmissioAnnex,paras.27-28. 10.39 In any event, there is no sufficient evidence that the mining was
attributable to Iran, for the reasons already g;iven.Although the United States relied on the
mining incident in seeking to justifi the attack of April 1988, there is no evidence that the
platfoms had anything whatever to do with the mining incident.There was no breach of the
Treatyof Amity,since (a) the mining was not attributable to iran; (b) the SamuelB. Roberts,
as a warship, is not entitled to the protection of Article ~(1)~~; (c)even if the mine was
Iranian,there is no credible evidence of ana~ack by Iran; in the context of a defensive war,
contact with a drifting mine does not necessarilyimplyunlawful conduct.
Section 5. The United States'Resemation of a Right to add Further Vesseb
10.40 Finally, while the United States specifically refers in its counter-claim
to darnages incurredby seven vessels, it consi.dersit "appropriate"to enlarge its counter-claim
and request the Court to "consider al1damagc:to the interests of the U.S. Govemment and its
nationals, regardless of thelegal form under which those interests ariseU4'.Additionally, the
United States has resewed the right in a subsequent stageof the proceedings,duringwhich the
Court is to determine the form and arnoiint of reparation, to "supplement information
contained in this pieading regarding attackson U.S.vessels, as well as to add Mer instances
of Iranian attacks on US. vessels in the Gulfin 1987-8gu4'.
10.41 Iran fails to see how the United States can at this stage further enlarge
its counter-claim. A respondent must specifi, no later than in its Counter-Mernorial, the
precise grounds onwhich it bnngs a counter-daim46.Thus whilc both parties have the rightto
supplement the information available to the Clourtin relation to claims already properly before
it,neither has the right to bring anynew claini beyondthose which arecontained, respectively,
inthe Application and in any ~ounter-~lairn'~. In fact the alleged events on which the United
States bases its counter-claim occurred over ten years ago, and it is thus hardly conceivable
43 See,para.9.11(3),above.
44 U.S .ounter-Mernorial,para.6.25; emphasisinoriginal.
45 Ibid .,ra. 6.26.
46 See,Article80 otheCourt'sRules,whichismandatoryin its langauge.
47 See,CertainPhosphateLands inNauru,I.C.J.Reports1992,p.240 (clairnwith respect to the assetsof
the British Phosphate Commissioners, cognate with origiclaim but not included in Application, held
Uiadrnissibie). that any new ground for a claim could be discovered now. As has been seen above, the
United States has failed even to show that it has a valid claim with respect to the seven
incidents on which it presently relies,
10.42 Accordingly, in Iran's view the claims and counter-claims presently
before the Court are closed, and cannot be added to. Each party may of course adduce new
evidence in relation to those claimsand counterclaims, but they may not do more than that.
Iran reservesthe rightto objectto the admissibilityof any new counter-claimsthatrnaybe
brought bythe United States.
Section6. ConcIusion
10.43 Of the seven specified incidents of alleged Iranianinterference with
"United Statesshipping" in the Gulf during the years 1987-88:
No fewer than six incidents involved vessels which were not (even arguably)
engaged in commerce or navigation between the temtories of the High Contracting
Parties (Bridgeton;Sea Isle Ci&; Lucy; Esso Freeport;Diane; US.S. Samuel B
Roberts).
I
Only one of the vessels was even arguably covered byArticle X(I) of the Treaty of
~rnity~'. And there is no evidence linking Iran witb the incident involving the
TexacoCaribbean; indeed the evidence is to the ~ontrary~~.
This conclusion is hardly surprising. Iran had no history of expressing hostility toward, still
less attacking, U.S. vessels. As its officiais were aware "Iran [had] been careful to avoid
confrontations with U.S.flag ve~sels~~~~.
48
In addition, the Samuel B. Roberts as a vesse1ofwar was expressly excluded frorn the scope of
An.X(i) of theTreatyby ArtX(6). Itwas, in anyevent,notengagedinnavigation betweenthe territoriesof the
High Contracting Parties.
49 The United States did not referto or rely on the alleged attack on the Texaco Caribbean as a
I justification for either attack on the platforms. There is no evidencewhateverthat any of the platfonns was in
any way involvedinthe allegedattackon the TexacoCaribbean.
j0 Iran'sObservationsand SubmissionsAnnex, para.33,and Iran'sMernorial,Exhibit54. 10.44 For the reasons given, to the extent that the United States'counter-claim
is basedon the seven attacksspecified (and whether these are treated as individual incidents
eachpotentiallythe subject of theirownclaim, or as evidence in support of the genericclaim),
there is no substance inhem and no basis of claim with respectto those incidents exists under
ArticleX, paragraph 1,of the 1955 Treaty. CHAPTER11. THE UNITED STATES "GENEFUC CLAIM" UNDER ARTICLEX(1)
Section1. Iatroduction
11.1 As noted above, the United States' counter-claim is primarily
formulated ingeneral terms, to the effect that "actionsbyIranin the Persian Gulf during 1987-
88...created extremely dangerous conditions for shipping, and thereby violated AXtiofe
the 1955Treaty". The consequence was, it is said, that there was "significant toU.S.e
commercial and rnilitary vessels. The pariicular allegations of such damage have been
reviewed in the previous paragraph, and have been shown to be, collectively, unfounded, not
attributable to Iran, not covered by Article of the Treaty, ancilorcomparatively minor.
The question is what is lefi of the United States' counter-claim when al1 the particular
instances or case(sofar adduced) which are used to substantiate it have been shown to be
unfounded. Inthis regarditshould be stressed, again, that the ofproof is on the United
States,and that onus cannot be evaded bycouching a cIaim in broad andgeneral terms.
Section 2. Iran aa State exercisingthe Rightof Self-Defence
11.2 One general fact must be noted at the outset, although the United States
is conspicuouslysilent about it. The war from 1980-1988 was begun by Iraq, without the
slightestjustification. It was, througitusuration,awarof self-defence so far as Iran was
concerned. During that war there were flagrant breaches of neutrality by other States in the
region. Even when an eventual cease-fire was proclaimed, Iraq remained in occupatioof
important areas of Iranian territory, an occupation which did not cease (and then only
fortuitously)until after the Iraqi invasionof ~uwait~. During that conflict, Iranian cities were
repeatedly bornbed by Iraq, chernical weapons were repeatedly used by Iraq, and han
1
2 U.S .ounter-Mernorial,para.6.01.
It is also noteworthy in this contextthat one of thtofunderlie the Iraqi invasionwas
Kuwait'slate insistence thatthe vast fundsmadeavailableto Iraqfor the prosecutionof itsaggressive waragainst
Iran hadbeenprovidedon the basisof a loanraanoutrightgrant.See,Exhibit 1,Vol.II,p. 55. suffered huge casualties, civilian and military. Third States, owing a duty under general
internationallawof strict neutrality towards a State defending itself agains atgression, ca~ot
expect the same levels of fieedom and security as would be the case in peace. The
circumstancesof such a conflict must be relevant in assessingcompliance with standards such
as those contained in ArticleX(1).
Section3..The Scope of Protectioriof theTreaty ofAmity,Article X(1)
11.3 Turning ta the actual content of Article X(1) of the Treaty of Amity,
which requires "fieedom of commerce" between the territories of the High Contracting
Parties,severalpoints needto be made.
• It is subrnitted that the Court's reference to conduct "having an adverse effect" upon
protected commerce does not express the test for a breachof that provision. Rather,the
possibility of an "adverse effect" merely shows that there is a case to answer. The
legality of particular conduct can be evduated by reference to the "adverse effect"
standard", butmust also takeinto account the fact that fieedom is never absolute, and
a variety of factors (cg. domestic price or exchange control) could have an"adverse
effect" on the protected commerce withoutraising issues of breach.
Article X(1) should be interpreted as requiring, as a prerequisite, an "adverse effect"
upon protected commerce,but sometkiingmore is necessary before it cm be held that
there has been a breach of that provision. Such a breach may be constihited in a
variety of ways. A direct military attiick on a vesse1engaged in protected commerce,
or on someother instrumentality relevantly concerned with such commerce, is cleariy
aninfiingement of the freedom of that commerce. So also would be discrimination
against such vessels or instrumentalitits, or the imposition of clearlyunreasonable and
oppressive regulations or administrative requirements. On the other hand the
undertaking in respect of freedom of commerce "between the territories of the High
Contracting Parties" does not involve an unconditional guarantee. Those engaged in
commerce and navigation with a Stai:ehave to submit to the normal legal system of
3
1.C.. Reports 199p.820, para5 1.
I that State and to anyburdens or disadvantages that may occur as a result of outside
circurnstances- of which perhaps the most extrerne is aggression.
11.4 To some extent these comments are of anabstract character having
regard to the facts of the present case. The Parties agree thatn unjustified rnilitary attack on
a facility or vessel engaged in the process of commerce between the temtones of the High
Contracting Parties would violatethe guaranteecontained in Artide X(1) -at least if the State
responsible forthe attack knew or ought to have knownthat the facility or vessel belonged to
the other Party. Questions of justification would then be raised, and in particular the
application of ArticleXX(1)of the Treaty.
Section 4. TheGeneric Allegationsof the UnitedStates
11.5 Against this background it is useful to review the general allegations
made by the United States in respectof the counter-claim. These may be summarized as
follows. In each case, the United Statest allegation is followed by brief comment, a more
detailed reîutation of the United States' allegations beingfound elsewhere in this Reply and
Defenceto Counter-Claim.
"actionsby Iran in the Persian Gur during 1987-88.. .created extrernelydangerous
conditionsfor ~hi~~ing"~.
Comment: The claimthat it was Iran which "created"theseconditions distorts the
truth. Although the United States cannot deny that "Iraq initiated attacks on tankers
using Iran's oil terminal at Kharg~sland"~,it thereafier systernaticallyignores that fact,
and the wider fact that, as has been seen in Chapter 2 above, it was Iraq which
throughout sustained the "tanker war". Authoritative U.S. sources confirm that the
danger in the Persian Gulfcame from Iraq. It is clear that the United States directly and
indirectly supported Iraq in its attacks in the Persian GulfItis instructive to note, in
this regard, that the threemost destructive incidents involving third Statesduring the
entire war were the various United States attacks on the piatforms (and on the Iranian
4 U.S.Counter-Mernoria p,ra.6.01.
5 Ibid para.6.03. navy), the shooting down of the Iran Air flight by the United States, and the attack on
the US.S.Stark. In the face of these facts, it is said thatwas Iran who "created" the
relevant conditions.
"Iranchose to retaliate against neutpal commercial vessels going to andj-om the
ports of the Gulf Cooperation Council memberStates, includingSaudi Arabia and
~uwait"~.
Comment: On the face of it, this allegation relates to vessels not engaged in trade
between the territories of the High Contracting Parties, and it is therefore strictly
irrelevant to any daim based on Article X(1) of the 1955 Treaty. Of course, each
individual incident wouid haveto be e;rarnined,as between, on the one hand, a State or
States clairning to be injured as a resiilt of the incident and, on the other hand, Iran.
Such an examination would require the Courtto look at such issues as (a) whether the
ship in question declined to cooper-ate in the exercise by Iran of its legitimate
belligerent rights; (b) whether it was in fact assisting in a breach of neutrality on the
part of Kuwaitor Saudi Arabia; (c) whatprecisely was involved in each incident; and
(d) what damage was caused. This examination would take piace against the
background of the relevant applicable law, which would not be the 1955Treaty. The
United States has no standing to cornplainin the context of aState responsibility claim
on behalf of third States, a point it see:msexpressly to have accepted at the time when
it disavowedanyright to protect ships whichwere notu.s.-flagged7.
In anyevent, handoes not accept that it "chose to retaliate against neutral commercial
vessels going to and from the ports o:fthe Gulf Cooperation Council rnember States".
But the essential point for presentpurposes is that this allegation cannot be resolved at
the general level at which it was madi: The individual incidents haveto be exarnined,
6 U.S.Counter-Mernoria p, ra.6.03.
7 See,paras.9.16-9.17above. their relation to the commerce andnavigation protected by Article X(l) exarnined, and
relevant conclusionsdrawn as between Stateswith standing to raise those issues.
Iran enguged in indiscriminate mine-laying in the Prsian Gulf;as witness the Iran
Ajr incident8.
Comment: irandenies that it engaged in indiscriminate mine-Iaying. The IranAjr
incidenthas been dealt with above, and cornprehensivelyrefutedg.
I "Iran'sprimary objective was simply to engage in a form of maritime terrorism,
presumably in on eflort rocoerce other States to takeside against Iraq"".
Comment: The notion that Iran was seeking to coerce other States "to take sides
against Iraq"is acurious one. Iran had a right to expect, afortiori in a warof self-
defence, that the PersiaGulf States,asweIl as States outside the region, should act at
least in accordance with strict measuresof neutrality. Whateverthe legal position may
have been before 1945, in the period of the Charter, third States are not at liberty
actively toassist a State engaged in a war of aggression. This obligation is not
dependent on Security CounciI resolutions but exists under general international law.
Itis independent of particular definitions of what constitutes contraband; an aggressor
isjust asmuch assisted bymoney as it is by munitions. Thefact that the United States
now equates "tak[ing] sides against Iraq" with neutral behaviour in the war only
iIlustrateshow farits own behaviour was fromneutrality.
8 Ibid., par6.04.
9 See,paras5.20-5.21above.
IO U.S.Counter-Memoriap l,ara.6.05. Iran's conduct "severely disrupted maritime commerce in the [Persian] Gulf',
induding UnitedStates commercewith~ran'l.
Comment: Article X(1) does not protect "maritime commerce in the [Persian]
Gulf', but "commerce between the territorieof the High Contracting Parties". In fact
on the evidence of the United Statesown figures12,commerce between the two States
increased significantly, a fact the United Statesmakesno attempt to explain.
•
Despitewarnings, "Iran5 attackscon~inued,and ultirnatelyresulted in severe damage
to severalvesselsof US./lag or ownedby US. persons" 13.
Comment: This staternent does not even allege attacks on commerce betweenthe
territories of the High Contracting Parties. The cases of the seven vessels specifically
mentioned have already been dealtwiih in Chapter 10.
• "lranevisceratedkeyrights of US. vesselsunderArticle X of the 1955Treas fo corne
arrdpass through Iranian ports, places and waters and to carry products into and
throughthe [Persian] GU^'^,
Comment: The deliberate imprecision of this pleading is remarkable. The vessels
specificallymentioned by the United Stateswere at no stage prevented from access to
"Iranianports, places and waters". None of them were bound for those ports, places or
waters. There was substantial commerce betweenthe two States during the relevant
period (as the United States'own figures show) but none of it had anything to do with
six of the seven vessels it mentions. And of course Article X(1) of the Treaty of
Amity -the only relevant provision fcjrpresent purpose- does not guarantee fieedom
of commerce andnavigation "into anclthrough the [Persian]Gulf'. The United States'
1I Ibid .ara.6.01.
12 Ibid.,paras.6.06-6.07.
13 Ibid.,para.6.08.
t4 Ibidp.ara.6.09. reaction to a clairn by Iran to act as guarantor of fieedom of commerce and navigation
in the Persian Gulfregion as a whole can be imagined!
Section5. The United States' Claim for the Costs ofi&Intervention in the Persian Gulf
1.6 Finally, a word should be said about the extraordinary claim by the
United States that Iranis responsible for "the significant costs incurred by the United Statein
deploying additional forces to the [Persian] Gulf to protect maritime commerce by escorting
vessels, clearing minefields, and other a~tivities"'~.As formulated,this belongs strictly not to
the present phase of the case but to the subsequent stage at which any damages for which
either party rnaybe held responsible are to be quantified. Nonetheless, a nurnber of points
should be made at this stage, without prejudice to themore detailed argument, if necessary, at
a later stage:
The U.S. forces were not requested to act in the Persian Gulf by Iran, and were
certainly not engaged in the protection ofcommerce and navigation with Iran.
The general presence of U.S. forces in the Persian Gulf was a matter of itsown
strategic interests and'allegiances. As such these were neither lawful nor unlawful;
they are simply facts16. But they are undeniable facts, and they show how
extraordinary it is to claim that the United States' presencein the PersianGulf arose
from, or is to be attributed to, alleged breaches by Iran of ArticleX(l) of a bilateral
Treaty of Amity.
O The effect of the presence of those forces in the Persian Gulf was to provide a shield
for non-neutral behaviour by Kuwait, and thus to support the Iraqi war effort. To
claim that the cost of these rneasures is imputable to Iranis unsupportable.
15
Ibid p.,ra6.25.
16 Of coursetheuseof those forcein particuloperationsisanothermattersee,ingeneral,Chapter2,
above. Section6. Conclusion
11.7 The compilation of individual cases establishes no pattern at all, let
alone a genericcaseof State responsibility, il'none of the individual cases can be established.
Claims of State responsibility need tobe particularised, and proved as such. Deficiencies in
such proof, or limitations inthe appIicablelaw, are not to be remedied bythe multiplication of
generalphrases, or the interlardingof adjectives. As soon as it descendsto the particiilart,he
United States' counter-claim fails, on technical grounds (the vessels were not covered by
Article X(1) of the Treaty of Amity;they were not engaged in commerce between the
territories of the High Contracting Parties; the United States has no standing to complain in
relation to the particular vessels), on substantial grou(thereis no evidence of attribution to
Iran, thereis no evidence of breach); most often on both. A case that fails in al1relevant
particulars cannot survive as a matter of "genlzralimpression". For these reasons, Iran submits
that the United States' generic counter-claim, like theecific claims or assertions on which it
isbased, failsand should be dismissed. CHAPTER12. RESERVATIONAS TOFURTHERIRANIANRIGHTS AND
CLAIMS
12.1 Finally, in relation to the United States' counter-claim, certainformal
reservations arein order.
Section 1.Reservation: "EssentialSecurityInterests"
12.2 The first relates to the question whether, in respect of any particular
incident, or indeed the general course of conduct alIeged by the United States, Iran has
available tot a defence or justification pursuant to Article XX(l)(d) of the 1955Treaty of
Arnity. Ira nas already set out its poswithnrespect to Article XX(I)(~)',and what is said
there applies equally in terms of a defence to the counter-claim. Iran does not believe that
ArticleXX(l)(d) can be used to exclude from the Treaty of Arnity, or to justifi, conduct
involving a use of force which is otherwise in breach of the Treaty, and cleariy contraryto the
relevant, peremptoryrules. In relation to the general situation facing it in the Persian Gulf,
km wasentitled to take al1appropriate measures in self-defence. Inthat context some impact
on the fieedorof trade and commercewas irievitableand cannot be hetobreach the Treaty.
Beyond that the assessrnent of necessityhasto take into account therelevant legalstandards.
1 12.3 On the other hand,ifthe Court should hold, contrary to this primafy
submission, that the United States was "entitled"by virtue of Article XX(l)(d) to take action,
irrespective of the legality of the actiongeneral international law,on the basis that such
action was deemed necessary to preserve the essential security interestsof the Statetaking that
action, Iran claims exactly same freedom for itself. That essential security interests were
involved on Iran's part is absolutely clear; Iran was defending itself against aigression, in a
war which was costing countless casualties and extraordinary damage to its territory,
1
infrastructure and people. Iran'ssecurity interests weremuch more nearly engagedthanthose
ofthe United States.
1 See, Chap.Sect.3above. Section 2. Reservation: l'he Issue of "CleanHands"
12.4 Similarly, Iran has already set out its views on the United States'
invocation ofthe "cleanhands"doctrine2. Iran does not beljeve that that doctrine canbe used
to prevent an examination of the merits of Iran'sclaim or, to the extent that it may fa11within
Article X(1) of the 1955 Treaty of Arnity, of the United States' counter-claim. Again,
however, should the Court hold that the clean hands doctrine does have an autonomous
exclusionary operationin favour of the United States, Iran reservesthe right to invoke the very
same doctrine against the United States. T:hereason is, intea rlia, that the United States'
indiscriminate use of force and its express ;md tacit support for the aggressor State in the
conflict collectivelywere such as to disentitIe it any relief.
Section 3. Reservationof Iranian Rights vvithrespectto Further Categories of Damage
to Iran
12.5 Finally, to theextent that the United States isheld entitled to introduce
what are effectively new claims to relief in the present proceedings, Iran again reserves the
right to do likewise. Iran has limited the scope of this claim to darnage to the commercial
property of a separate State commercial entekprise,deliberately targeted by the United States
with a view to maximising the damage to Iran. The Court has further limited that limited
claim in its Judgrnent on the Preliminary Objection. If the United States seeks now to widen
the scope of the caseto include darnageto naval vessels expressly excluded fromthe scope of
Article X(1) of the Treatyof Arnity, and generally the whole range of actions associated with
this phase of the Iraq-Iran War, Iran must reserve the sarne rights to do so to the extent
procedurally possible (andif necessary in sepuate proceedings).
2
See,Chap. 8,above. PARTV
SUBMXSSXONS
With regard to Iran'sclaims, and in the light of the facts and argumentsset out above, and
subject to the reservations set out in Chapter 12 above, the Goverment of the Islamic
Republicof Iranrequests the Court to adiud~e and declare:
1. That in attacking and destroying on 19October 1987 and 18 ApriI 1988 the oil
platforms referred to in Iran'sApplication,the United States breached its obligations to
Iran under Article X(l) of the Treaty of Amity, and that the United States bears
responsibilityfor the attacks; and
2. That the United States is accordingly under an obligation to make full reparation to
Iran for the violation of its internationalalobligations and the injurythus caused in
a form and amount to be determined by the Court ai a subsequent stage of the
proceedings, the right being reserved to Iran to introduce and present to the Court in
due course a precise evaluation of the reparation owedby the United States; and
3. Anyother rernedythe Courtmay deem appropriate.
1
I With regard to the United States'counter-claim,and in the light of the facts and arguments set
out above, and subject to the reservations set out in Chapter 12 above, and, in view of the
present uncertain nature of the United States'counter-claim, Mer subject to the reservation
of Iran'sright to amend these submissions, Iran requeststhe Court to ad-iud~ and declare:
I 1. That the United States' counter-claimdoes not fa11within the scope of Article X(1)of
the Treaty of Arnity as interpreted by the Court in these proceedingsand accordingly
that the counter-claimshould be dismissed.2. Thatthe United States' counter-claim isi,any event, inadmissible:
(a) generally,in thatthe United States has notsatisfiedthe requirementsof Article
XXI of the Treaty of Arnit-ywith respect to the satisfactory diplomatic
adjustmentofthe claim;
(b) in any event, to the extent that it relates to vessels which wenot of United
States nationalityor whoseUn.itedStatesflag was not opposable toIran at the
tirne.
3. ThatIrandid not,in anyevent, breachits obligationsto theUnitedStatesunderArticle
X(l) of the Treatyof Amityas interpretedbythe Courtin theseproceedings.
4. Thataccordinglythe United States'counter-claimbe dismissed.
Date: 10March1999
[Signed]
M. Zahedin-Labbaf
Agent of the Governent of
the IsIarnicRepublicof Iran LIST OF EXHIBITS,STATEMENTS, AND EXPERTREPORTS
Expert Report
"TheUnited States Positionon the Iran-IraqWar"
Reportprepared by Professor LawrenceFreedman
DocumentaryExhibits
Anthony Parsons,From CoId War toHot Peace - UNInterventions1947-1994, "The
Iran-IraqWar: 1980-88",London, 1995,pp.44and 55..
Eric Hooglund, "Strategand Political Objectivesin the Gulf W-rIran'sView", in
The Persian Guv Wur - Lessons for Strategy, Lm, and Diplomacy, edited by
ChristopherC. Joyner,New York,Connecticut,London, pp.39-58.
Elaine Sciolino, The OutlawStute-Suddam Hussein's Qued for Power and the Gulf
Crisis,New York, 1991,p. 166.
Dilip Hiro, The Longesr War-TheIran-IraqMilitay Conjlict,New York, pp.71, 76-
77, 119-120 and158-160.
The Right Honourable Sir Richard Scott, "Report of thInquiryinto the Exportof
Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions", Vol. II,
pp.823-827.
Javier Pérezde CuéllarAPilgrimagefor Peace,London, 1997,pp. 131and 178.
"At War, Iraq Courted US Into Economic Embrace", The Washington Post, 16
September 1990.
Bruce W. Jentleson, WithFriendsLikeThese- Reagan,Bush,and Saddum 1982-1990,
New YorldLondon, 1994,pp. 31-36,42-67.
"Officers in exile plot Saddam's fallu, The Independent, 13 March 1998, and
translation of excerpts fiom interviews in Al-Hayat, 5 September 1997 and 6
September 1997,together with original Arabictext.
Declaration of Howard Teicher before the United States District Court, Southern
District of Florida, CaseNo.: 93-241-CR-Highsmith.United States:Secretary of Defense Report(Weinberger Report) tothe Congress on
SecurityArrangements in the PersianGulf, 15June 1987,reprinted at 26 I.L.M 1433
(1987),p. 1449.
A. Reza Sheikholeslami, "Saudi hibia and the United States: Partnership in the
Persian Gulf', in Iran-Iraq War - The Poliricsof Aggression, editedby Farhang
Rajaee,UniversityPress ofFlorîda,pli.103-109.
"Gehirneiner Ameise"("Brain of an Ant"),Der Spiegel, October1994, with English
translation of extract; "Kuwait apologizesto Iran for backing iraq duringeight-year-
war",Tehran Times, 26 October 1994; "Un haut responsablekoweitien condamne
'l'agressio'e l'Irakcontre l'Iran",AFP, 14February1992; "CheikhSabah se félicite
de la 'positionde principe'deIran",AFP,23 August 1990;"Cheikh Sabah regretteles
anciennes prises de positions du Koweitcontrel'Iran,selon Radio-TéhéranA,FP, 23
August 1990.
David D. Caron, "Choice and Duty in ForeignAffairs -The Reflagging of Kuwaiti
Tankers",in ThePersian Guy War -iLessonfor Strategy,Lawand Diplomacy,edited
byChristopher C. Joyner, New York,Connecticut,London,pp. 161-167.
Middle East Economic Survey,Vol. XXVII,No. 25, 2 ApriI 1984, pp. Al-A2 and
Middle EastEconomic Survey,Vol. XXVIII, No. 17,4 February1985,p. AS.
"IranTrade Sanctions",WhiteHouse:FactSheet,26 October 1987.
Caspar Weinberger, Fighting forPeuce -Seven Critical Years ut the Penragon,
London,1990,pp. 274-275.
"U.S.Permits Import of IranianOil to BolsteSecurityAccorrnt" , edey's Litigulion
Reports,Iranian Claims, 31December1990.
"Iransteps upcover of Hormuzwith Chinese-suppIied Styx",Jane's DefenceWeekly,
28 March 1987, p. 531.
"Iran'sSilkworm threatin the Gulf', Jane'sDefenceWeekly,6 June 1987,p. 1113.
"Runningthe gauntletin the Gulf',Jane'sDefence Weekly,1August 1987,p. 182,
"Cruise:A missilefor the '90s",Jan)iDe@nce We~kly7, May 1994,pp. I9-20.
HowardTeicherand Gayle Radley Teicher,TwinPillars to Desert Smrm,New York,
1993,p. 392.
Exchangesof correspondencebetween theAgent of the IslarnicRepublic of Iran and
the Agent of the United States of Ainerica, dated 26 March 1997, 3 April 1997,22
April 1997, 12June 1997, 16June 1997and20 June 1997.25. Myron H. Nordquist and Margaret G. Wachenfeld, "Legal Aspect of Reflagging
Kuwaiti Tankers and Laying Mines inthe Persian Gulf', 31 German Yearbookof
InternationalLaw (1988),pp. 148-1 49.
26. Julie Mertus, "The Nationality of Ships 'and International Responsibility: The
Refiagging of the Kuwaiti Oil Tankers", DenverJournal of International Law and
Policy,Vol. 17,No. 1(Fall 1988),pp. 210-211, 232.
27. JaniceGross Stein,"TheWrongStrategyin the RightPlace",inInternational Security,
Winter1988/89,Vol. 13,No. 3, p. 150.
28. "Kuwait Missilehits U.S.-flagtankeroff Kuwait,18Wounded",Reurers, Abstract,16
October 1987.
VOLUME III
1. Statement of Mr. Seyed-Hossein Wosseini
2. Report of Professor PeterOdell
1. Statement ofMr.AbolghassemHassani
2. Statement ofMr.Nader Sehat
3. StaternentofMr.Mohammad-AliSaIrnanian
4. Statement of Mr.Gholam-HosseinEmami
5. Statementof Mr.MahmoodEbrahimi
6. Statement ofMr. SeyyedMoharnmad-SadeghAlagheband
1. Statementof GeneralAli FadaviStatementof Mr.MohammadYoussefi
Statementof Colonel Abdol-Hossein:Pakan
Reportof Mr.Jean-FrançoisBriand
Statementof ColonelMahmood Farshadfar
Statementof CaptainParvizFarshchiltn
Reportof Mr.JacquesFourni01
Statementof Mr.MohsenSalehin
Statementof Mr. MoharnmadMokhlessian
Statementof ColonelAbbas Rezai CERTIFICATION
1,the undersigned, M. Zahedin-Labbaf,Agent of the Islamic Republicof Iran, hereby certif!y
that the copy of each document attached in Volumes II to VI of the Reply and Defence to
Counter-Claim submitted by the lslamic Republic of Iran isan accurate copy; and that al1
translations prepared bythe Islamic Republic of Iranare accuratetranslations.
[Signe4
M. Zahedin-Labbaf
Agent ofthe Islarnic
Republic of Iran
Reply and Defence to Counter-claim submitted by the Islamic Republic of Iran