The Oil Platforms Case
The Rule of Force in International Law
This paper relates to the Case Concerning Oil Platforms (Islamic Republic of Iran v. United States) of the International Court of Justice and its decision on the same delivered on November 6th, 2003. The dispute is related to a series of events that occurred during the Iran-Iraq war 1980-1988.
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During the war, due to attacks on merchant shipping vessels in the Persian Gulf, the US and other states engaged in “counter-attack” by targeting two Iranian oil platforms and severely damaging them in separate incidents. The US argued that it was only responding to a perceived threat and the attacks were only in the interest of security in the region. Tehran, not buying this theory of self-defence put forth by the US, cited several violations of bi-lateral International treaties crying foul over such use force.
The prohibition of the usage of force by states in engrafted in customary international law as well as in Article 2 (4) of the UN Charter. But both fall short of containing force that is used in the State’s exercise of the right of self-defence. The ICJ in this particular case had to assert whether the force used by the US was really pre-emptive in nature; if it was, was it proportionate. The court whilst delivering its judgment developed an interesting new theory on such use of force by a state, a theory which has only been received critically. This paper shall seek to explore this particular theory in light of the aforementioned case. It must also be noted that this being a recent judgment holds immense practical significance with regard to the US operations in Afghanistan, Iraq and the troubled Baluchistan and NWFP provinces of Pakistan.
To facilitate easy study, this paper has been divided into three parts; the first shall be an appraisal of the facts of the case itself, the second shall be a study of Article 2(4) and the final part will be a review judgment.
II. The Facts of the Case and its Backdrop
The case arose out of certain incidents during the Iran-Iraq war from 1980 to 1988.
The case before the international Court of Justice revolved around the legality of the use of force with relation to two specific attacks against Iranian interests by US forces during the course of the war. The first instance was on October 19th, 1987. The US navy launched armed attacks against Iran’s Reshadat and Resalat oil complexes, both located in the Persian Gulf. This resulted in the complete annihilation of one of the oil platforms, whereas the other was severely damaged. As justification, the US claimed it was acting in ‘self-defence’ and the attack was in response to a missile strike three days prior on the Sea Isle City, a Kuwaiti tanker rebadged as a US flag-carrier in order to better ensure its safety.
The second attack occurred a year later on April 18th, 1988 when US naval strikes severely damaged the Iranian Nasr and Salman complexes, nearly destroying the former. This time the US resorted to its prior justification of “acting in self-defence” again by stating that the attacks were in response to an American frigate, the USS Samuel B. Roberts, having been struck by a mine whilst sailing in international waters near Bahrain. On both instances the US notified the United Nations Security Council of its course of action in accordance with Article 51 of the UN Charter.
The Iranian Government in its Application to the court based its claims on the 1955Treaty of Amity, Economic Relations and Consular Rights between the US and Iran (the Treaty), not sparing basic principles of international law. The Court’s (the International Court of Justice) jurisdiction was founded on Article XXI (2) of the Treaty. Article I of the Treaty provided that “there shall be firm and enduring peace and sincere friendship between the United States of America and Iran”. Article X(1) of the Treaty provided that there should be freedom of commerce and navigation between the parties’ territories:
“Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation.”
Based on Articles I and X(1) of the Treaty of Amity, Iran accused the United States of having breached the Treaty by attacking and destroying the oil platforms. It also submitted that United States’ “patently hostile and threatening attitude towards the Islamic Republic of Iran” was a breach of the very purpose and object of the Treaty of amity including Articles I and X(1), and principles of international law, and that the US was under an obligation to make reparations to Iran for the violation of such legal obligations.
The US denied any breach of obligation with Iran under Article X(1) and replied that the attacks were necessary to protect its national security. This, according to the US, was covered by Article XX(1)(d) of the Treaty and read:
“The present Treaty shall not preclude the application of measures:
(d) necessary to fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.” Also, the US, in another counter-claim pleaded unsuccessfully, claimed that Iran had violated Article X of the Treaty by attacking its vessels and laying mines in the Persian Gulf and “engaging in activities from 1987 to 1988 that were dangerous and detrimental to maritime commerce and navigation”.
The US claims of military attack on merchant vessels and warships were not completely unfounded. During the from 1984 to 1988, known as the Tanker War, numerous vessels were attacked in the Persian Gulf and such attacks were perceived to be purported by the Iranian military by means of aerial attacks and the use of mines. The Llyods Maritime Information Service list noted more 546 incidents, 200 of which were directly attributed to Iran. Iran, however, directed such accusations to Iraq and claimed responsibility for none.
It must be noted here that the Treaty of Amity was signed between the US and Iran back in 1955. After the Islamic Revolution of 1979 in Iran and the installation of the Khomeini as the head-of-state in all practical aspects, relations between the two states soured and was particularly before the start of the Iran-Iraq war. During the revolution, the US expressed its dissatisfaction with affairs in Iran by severing all diplomatic ties with the Islamic state. The American embassy at Tehran was seiged by supporters of the Khomeini and Americans were taken hostage for a considerable period of time. Iran’s previous democratically regime headed by the Shah had been seen by the US as an ally; this did not go down too well with its new Government which accused the US of “over-involvement” with its internal affairs during the past regime. Further, the new government of Iran saw the inability of the Security Council to prevent and contain Iraq’s invasion of Iran in September, 1980 as the result of an anti-Iran bias in the Council and even in the UN as a whole.
Under such circumstances, the Iranian regime saw the increasing presence of American forces in the Persian Gulf as a perceived threat to its interests resulting in the attacks. Ergo, this conflict was not completely unpredictable; nor was it unavoidable as it had been on the offing for a while. In this respect, the Security Council had failed to check the rising tension between the two states. As a body whose primary task is maintaining world peace and stability it had failed to contain such a conflict which could have been resolved had it played a more active role in mediation between the states.
III. Article 2(4) – The Blind-spot
Article 2(4) of the UN Charter reads:
This provision of the Charter however, finds itself lacking and is ill-equipped to handle a rather important aspect international armed conflict. Its blind-spot – it has no provisions for prohibition of military threats or the threat of use of force.
The ambit of article 2(4) is limited to actual use of military force and “threats” to impose economic or political sanctions are beyond it.
According to the general scheme of the UN charter, a violation of Ar. 2(4) may be justified only on two grounds – recourse to self defence and authorisation by the UNSC. This brings us to the moot question – Are states free to reciprocate to threats when no armed attack has actually occurred? This question has been left unanswered and its outcome – the many wars fought even after the UN Charter was adopted. Two perfect examples of such a situation arose in Europe in August, 1914, the beginning of the First World War and again during the Second World War. The question before a nation is whether to ignore the military threat or to issue a counter-threat. In such a situation when one party is advantaged by overwhelming military threat, the threat involved will become lopsided and there will not be any real escalation or build-up of bilateral tension.
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Any country will always place self-defence on a higher footing as compared to a policy of self-restraint considering the demands of national security. The prohibition on the use of force is found both in customary international law and, as stated above, in Article 2(4) of the UN Charter. According to the UN Charter a state is not allowed to use force as a response to any intervention that falls short of an armed attack. The criterions established for the exercise of such retaliatory force include requirements that the force used must be necessary to repel the armed attack; it must be absolutely unavoidable and the force used must be proportionate. The Nicaragua decision [Case Concerning Paramilitary Activities in and against Nicaragua (Nicaragua v. USA)] echoed this principle.
Article 51 carrying forward from Article 2(4) too recognizes states’ right to act in individual and collective self-defence if an armed attack is suffered by any member-state of the UN. Under Chapter VII of the UN Charter, force may also be used to preserve or restore international peace and security in accordance with decisions of the UN Security Council.
In the Nicaragua case, the Court rejected US arguments that US support for military and paramilitary activities in and against Nicaragua could be justified on a basis of collective self-defence. These activities included certain activity of the contras in Nicaragua, including specified attacks, secret mine-laying, and a trade embargo imposed by the US against Nicaragua. The Court found the United States was in breach inter-alia of its obligations under customary international law not to intervene in the affairs of another State, not to violate the sovereignty of another State, not to interrupt peaceful maritime commerce and not to use force against another State. The US had also violated bilateral obligations to Nicaragua under a 1956 Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua. In the Nicaragua case the US chose not to appear before the Court during proceedings on the merits of the case. The Court’s jurisdiction was founded on the United States’ 1946 declaration of acceptance of the Court’s jurisdiction under Article 36(2) of the Statute of the Court, as well as on the bilateral 1956 Treaty.
IV. The Judgement
The approach taken by the International Court of Justice in the Oil Platforms case was controversial. In respect of Iran’s claim, the Court decided to address the question of whether the US attacks on Iranian oil platforms fell within Article XX(1)(d), before moving on to considerwhether there had been a breach of Article X(1) as requestedby Iran. In examining the application of Article XX(1)(d) the Courtdecided to focus on whether US recourse to force had been consistentwith international law on self-defence. The Court reasoned that evena provision protecting national security interests could not have beenintended to sanction the use of force inconsistently with relevant internationallaw. The Court proceeded to find that the US had exceededthe boundaries of international law on the use of force, and this disposedof the US claim that it was protected by Article XX(1)(d). In this way, the case centred on the illegality of the usage of force by the US.
Recalling the discussion Article 2(4), the Court found that the US had failed to produce enough evidence to prove an Iranian “armed attack” in the case of the Sea Isle City and the Samuel B. Roberts. The evidence furnished by the US was so inconclusive that the Court did not discount the possibility of the attacks being carried out by Iraq.
The Court noted that the Sea Isle City, at the time of the attack, was in Kuwaiti waters and the missile was launched on to it from a distance of over a hundred kilometres. The target of the missile, considering the great distance, could not have been pre-determined and it could have been intended to strike just about any target in Kuwaiti waters. With regard to the impugned mine-laying activities of Iran, the Court was again discontent with the evidence provided. There was no conclusive evidence to prove that the mine struck by the USS Samuel B. Roberts was indeed an Iranian one. The region at that time was in a state of turmoil. Both parties were engaged in mining the conflict zone and merely because the impugned mines bore numbers matching an Iranian series, Iran can not be held guilty.
Whilst leaving room for speculation with the issue of the origin of the mines, the Court felt that even if they had actually been of Iranian origin, the US attacks on the Salman and Nasr complexes were unjustified. Recalling the Nicaragua decision, the Court opined that the Iranian attacks, if at all they were Iranian, did not qualify as “the ‘most grave’ form of the use of force” and the US can not claim the defence of “inherent right of self-defence”.
The US contended that the oil platforms were being used as military bases by Iran and were being used for the collection and reporting of intelligence on passing vessels. In this regard too, the Court found the American evidence lacking. Even if the accusations against Iran had been true, the Court opined that the attacks made on the platforms could not have been justified as acts of self-defence. The criteria for claiming the defence of ‘self-defence’ had been established by the Court while acting in its advisory role in the case of Legality of the Threat or Use of Nuclear Weapons; they were “necessity” and “proportionality”. The US had failed to make out a sufficient cause on both grounds.
The Court noted that the attacks on the platforms were not ‘necessary’ as a response to the attacks on the American vessels and the US admitted to have attacked them as a “target of opportunity” and not as pre-determined military targets. While the US attack on the Reshadat and Resalat complexes might have been considered proportionate if it had been found to be necessary, the Court made clear its view that the US attack on the Salman and Nasr platforms could not be regarded as meeting the criterion of proportionality. Although the Samuel B. Roberts had been severely damaged it had not been sunk and there had been no loss of life. The Court concluded that as the US attacks on the Iranian oil platform were not consistent with these requirements of international law on self-defence they could not be found to fall within the protection of Article XX(1)(d) of the Treaty of Amity.
Only at this point did the US get some reprieve when the Court turned to the Iranian accusation of the US having breached Article X(1) of the Treaty of Amity by interfering with the freedom of commerce and navigation between the territories of the two parties. The Court found that Iran had failed to establish that the US had breached Article X(1) on the occasion of either of the attacks at issue. In respect of the first US attack, on the Reshadat and Resalat platforms, the Court reached this conclusion primarily on the basis that these platforms had been put out of commission by earlier Iraqi attacks and were not producing oil at the time. Therefore there was no interference with commerce in oil. In respect of the second US attack, on the Salman and Nasr platforms, the Court’s reasoning was that the US had already stopped all direct oil imports from Iran under an embargo imposed by Executive Order. Therefore, no interference with commerce in oil had resulted from this second attack. The Court emphasised that Article X(1) applied only to protect freedom of commerce and navigation between the territories of the two parties, and its protection did not extend to indirect commerce in oil that continued despite the embargo via the territories of third parties. Accordingly, neither of the US attacks on the Iranian Oil Platforms was found to have interfered with freedom of commerce in oil. The US counterclaim against Iran likewise failed because none of the affected vessels was engaged in commerce or navigation between the territories of the two parties.
Summing the case, in its dispositif at the end of its judgment, the Court stated that, by fourteen votes to two, it:
Finds the actions of the United States of America against Iranian oil platforms on 19 October 1987 and 18 April 1988 cannot be justified as measures necessary to protect the essential security interests of the United States of America under Article XX, paragraph 1(d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran, as interpreted in the light of international law on the use of force; finds further that the Court cannot however uphold the submission of the Islamic Republic of Iran that those actions constitute a breach of the obligations of the United States of America under Article X, paragraph 1, of that Treaty, regarding freedom of commerce between the territories of the parties, and that, accordingly, the claim of the Islamic Republic of Iran for reparation also cannot be upheld.
The Oil Platforms case is of immense significance in present times in light of the growing military activities of the US in the Middle East, especially in Iraq and Afghanistan. However, its detractors criticise the judgment by stating that it laid too little importance on the aspect of trade and commerce and the role it plays in armed conflict. This can not be ignored completely; after all, most battles are fought with a hidden economic interest for atleast one of the parties. The dissenting judges opined that the Court let pass an opportunity for more lengthy engagement with significant questions associated with the effects of armed conflict on trade and commercial activity. But, this case’s primary focus was the use of force and in the opinion of the researcher it has done absolute justice in establishing its principle. The conditions of “necessity” and “proportionality” have not only been reinforced by the Court but also been developed to address the growing concerns of armed conflicts between states.
As the future of Afghanistan and Iraq unfold before us and American interest in Iran’s affairs rises, the contribution of the judgment in the Oil Platforms case can not be ignored. It shall be the judge in assessing US activities in the region and will assist in developing the yard-stick of the usage of force. In a way future military activities of the US and other NATO allies will be moulded by it, ensuring a more secure world.
Harris D.J., Cases and Materials on International Law, Sweet & Maxwell, London, 6th edition.
Goodrich Leland, Hanbro Eward, Simmons Anne, Charter of the UN: Commentary & Documents, Oxford University Press, 3rd edition.
Sturchler Nikolas, The Threat of force in International Law, Cambridge University Press, Cambridge, 2007.
- General List No 90, I.C.J. Reports 2003
- Sturchler Nikolas, The Threat of force in International Law, Cambridge University Press, Cambridge, 2007.
- See the Court’s Order dated 12th December, 1996.
- Judgment of the Court, para 23.
- Counter-Memorial of the United States, Exhibit 9, referred to in the Separate Opinion of Judge Kooijmans, para 11.
- See the Court’s Judgment of 24 May 1980 in the Case Concerning United States Diplomatic and Consular Staff in Tehran.
- Judgment of the Court, para 23ff; Separate Opinion of Judge Kooijmans, para 5ff.
- Goodrich Leland, Hanbro Eward, Simmons Anne, Charter of the UN: Commentary & Documents, Oxford University Press, 3rd edition, p. 49.
- Supra n.2
- Sturchler Nikolas, The Threat of force in International Law, Cambridge University Press, Cambridge, 2007.
- General List no.70, Judgment of the Court of 27th June, 1986.
- Judgment of the Court, para 61.
- Ibid., para 72.
- Ibid., para 64.
- Judgment of the Court, para. 71.
- Judgment of the Court, para. 64.
- Judgment of the Court, para. 74.
- ICJ Reports 1996 (I), p. 245, para.41.
- Judgment of the Court, para. 76.
- Judgment of the Court, para. 77.
- Judgment of the Court, para. 92ff.
- Judgment of the Court, para. 94ff.
- Separate Opinion of Judge Higgins para 51.