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A Reply to Professor Kraska on the Iranian Shootdown of the US Global Hawk Drone

Published on July 17, 2019        Author: 
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Prof. Kraska has argued in his latest EJIL: Talk! article that the incident regarding the downing of a US drone by Iran happened due to the scarce knowledge of international law by an Iranian Revolutionary Guard Corps (IRGC) commander. While I do appreciate Prof. Kraska’s discretion in referring to US intelligence sources, on the other hand the US President himself openly provided to the media the same assessment.

I will now concentrate on some points raised by Prof. Kraska:

  1. The US counterattack was cancelled.

This observation implies by default and without any specifics that the action conducted by Iran was in fact an attack confirming the US policy on the equivalence of  use of force with armed attack. One might disagree and follow the difference between the two as expressed by the ICJ in the Nicaragua case (para. 191). It is also difficult to understand this point of view, as the author did not state from the beginning that he was taking the US declarations on the position of the drone as a given fact. Even so, Iran’s declarations to the UN Security Council (UNSC) would have been worth mentioning to the reader for awareness purposes. In his letter, the Iranian Ambassador defines the US violation of his Country’s airspace as a “hostile act” to which Iran responded in self-defense. This is a shift on the interpretation of self-defense by Iran that actually aligns with the US view (use of force = self-defense). For more insights on the topic see here. Read the rest of this entry…

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Filed under: Iran, Use of Force
 

Misunderstanding of International Aviation Law May be Behind Iran’s Shootdown of the U.S. Global Hawk Drone

Published on July 1, 2019        Author: 
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On Thursday, June 20, the Iran Revolutionary Guard Corps Navy (IRGCN) shot down an unarmed U.S. surveillance drone, nearly igniting open conflict between the United States and Iran. The $180 million U.S. Navy RQ-4A Global Hawk was struck by an Iranian Islamic Revolutionary Guard Corps (IRGCN) surface-to-air missile launched from near Goruk, Iran. With strained relations over new U.S. sanctions against the regime and coming after weeks of drama over evidence suggesting Iran was emplacing limpet mines on commercial oil tankers in the Strait of Hormuz, the incident caused President Trump to order – and then to abruptly cancel – strikes against Iranian military facilities. After first promising quick retaliation, President Trump took a step back, stating, “ have a feeling — I may be wrong and I may be right, but I’m right a lot — I have a feeling that it was a mistake made by somebody that shouldn’t have been doing what they did.”

Apparently, the decision to cancel the counterattack was made because U.S. intelligence assessed that the shootdown was made by a local IRGCN commander and was not sanctioned by the regime in Tehran. Intelligence reports suggest that the Iranian regime was “furious” with the wayward commander’s decision to attack the drone, and the U.S. President deescalated the situation.

The U.S. has suffered decades of Iranian violations of the freedom to transit through and above the oceans near Iran. The IRGCN appears as a matter of policy to selectively harass foreign commercial and naval ships conducting lawful transit in the Strait of Hormuz, and in 2016 it unlawfully detained two U.S. small boats and their crews, which were exercising innocent passage in Iranian territorial seas. Yet the recent shootdown of the U.S. drone likely arose from a lack of understanding of international aviation law and Iran’s rights and responsibilities as a party to the 1944 Convention on Civil Aviation (the Chicago Convention) and the rules promulgated by the International Civil Aviation Organization (ICAO).

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Attribution of Naval Mine Strikes in International Law

Published on June 24, 2019        Author:  and
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On Thursday, June 13, two ships were damaged within forty-five minutes by (current evidence suggests) limpet mines, while transiting the Gulf of Oman at the mouth of the Strait of Hormuz. The Japanese product tanker, Kokuka Courageous sustained damage from either a limpet mine or a projectile, just as Prime Minister Shinzo Abe met with Iranian Supreme Leader Ayatollah Ali Khamenei in Tehran to try to reduce regional tensions. The Front Altair, also a tanker, suffered far more severe damage to its starboard hull, including a hole at the waterline, which – it has been suggested – was the result of a torpedo strike. This is very difficult to confirm – torpedoes tend to cause much more significant damage, and the damage sustained by Front Altair might also be consistent with a moored or floating mine strike, or the detonation of an attached limpet mine. Both ships caught fire and their crews abandoned ship. Four ships were also damaged by limpet mines off the coast of Fujairah on May 12, 2019. A UAE inquiry pinned responsibility on an ‘unidentified state actor.’

World oil prices increased as daily freight rates for oil supertankers climbed as much as fifty percent to reflect the heightened risk. Insurance rates for a seven-day transit have increased fifteen percent. Some seventy of the world’s supertankers are in the region – ten percent of global capacity – but many remain idle due to the threat. The United States blamed Iran for the attacks, and indeed there is evidence that points to Iranian involvement. The UK also attributes responsibility to Iran. Iran has denied responsibility, and Iranian Foreign Minister Javad Zarif responded on twitter that the United States or its allies were likely behind the assaults and that the charge was ‘[without] a shred of factual or circumstantial evidence.’

The United States has pledged to keep the Strait of Hormuz (SOH) open to traffic. Secretary of State Mike Pompeo attributed the attacks to Iran based upon ‘intelligence, the weapons used, the level of expertise needed to execute the operation, recent similar Iranian attacks on shipping, and the fact that no proxy group operating in the area has the resources and proficiency to act with such a high degree of sophistication.’ On June 17 he doubled down, promising to present in the coming days ‘lots of data, lots of evidence’ linking the attacks to Iran. President Trump stated flatly, ‘Iran did do it.’ U.S. Central Command released a video which appears to show an Iranian Revolutionary Guard Corp Navy (IRGCN) patrol boat removing an unexploded limpet mine from the Kokuka Courageous. Trump added, ‘I guess one of the mines didn’t explode and it’s probably got essentially Iran written all over it… It was them that did it.’

In this piece, we explore the available evidence for attribution in light of the international law on point. May the attacks be attributed to Iran, and if not, what additional evidence would have to be produced? And once (if) attribution of the attacks is made out, what measures may affected states then take in response? Since there is no evidence that there exists an international armed conflict under Common Article 2 of the Geneva Conventions, we do not address international humanitarian law, although in the last few days the shoot down of a US UAV and reports of a bombing mission switch off are starting to complicate this assessment.

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President Trump admits US strike against Iran would have been illegal

Published on June 21, 2019        Author: 
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Yesterday President Trump apparently aborted a US strike against Iran, in response to Iran’s destruction of an unmanned US surveillance drone. US and Iranian accounts continue to differ on whether the drone was shot down in Iranian airspace or in international airspace. Ashley Deeks and Scott Anderson have helpfully analyzed the international legal framework applicable to any US strike in response to the destruction of the drone over on Lawfare, to which I have little to add in principle. In particular, they’ve explained the more expansive and the more restrictive theories of self-defence on which the legality of a US strike would hinge (see also Ashley’s previous post here).

But, President Trump has tweeted in the past hour, as he does, and his tweets effectively (if inadvertently) admit the illegality of the aborted US strike under any conceivable theory of self-defence, no matter how expansive:

 

Note, first, how President Trump describes the aborted US strike as being meant ‘to retaliate’ against Iran for the destruction of the drone. But it is black letter jus ad bellum that the purpose of self-defence can only be to stop an ongoing attack, or (possibly) to prevent imminent future attacks. It cannot, however, simply be to retaliate against an attack committed in the past. Thus, even if US historically expansive views on the right to self-defence were to be accepted in their totality, and even we were to accept that the US drone was in international airspace when it was shot down and that this was an armed attack by Iran against the US in the sense of Article 51 of the UN Charter, the US head of state has just admitted to the world that the strike he authorized, and then rescinded, was retaliatory and not defensive in nature.

Similarly, he expressly admitted that the attack would have been disproportionate, as 150 lives would likely have been lost for one destroyed unmanned drone. And as we all know, proportionality is a key requirement of the customary law of self-defence. Thankfully, President Trump ultimately decided to abort the strikes, and therefore no violation of Article 2(4) of the UN Charter took place. Hopefully any conflict between the US and Iran will be avoided. But that said, it is also clear from what the US President tweeted to all of us, so explicitly and so ungrammatically, that the proposed military action of his government, had it taken place, would have been illegal. And again, under the President’s own admission, it would have been illegal regardless of whether one embraces a more restrictive or a more expansive theory of self-defence.

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Justifying Self-defense against Assisting States: Conceptualizing Legal Consequences of Inter-State Assistance

Published on May 23, 2019        Author:  and
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Cause for thought: Israel’s airstrikes directed against Iran and Syria

Israel has acknowledged to have repeatedly struck Iranian military targets in Syria. While confrontations occur frequently, the incident of January 21, 2019 has received  particular attention. Israeli guided missiles, apparently fired over Lebanese territory (UN Doc. S/PV.8449, p. 31f), hit Iranian military targets in Syria, also leading to personal and material damage of Syria. Israel invoked its right to self-defense, apparently reacting to Iran firing a surface-to-surface missile towards the Golan Heights on Sunday, January 20 from Syrian territory. Syria’s precise role in the Iranian action beyond this territorial link remains murky.

The problem: self-defense affecting assisting states

The Israeli claim to self-defense faces various legal questions (e.g. whether the attack meets the necessary threshold or whether annexed territories can be defended). This contribution does not aim to assess the Israeli claim, but shall use this example to shed light on one problem only: May the victim of an armed attack defend itself not only against the attacker state, but also against an “assisting” state?

Even if the use of force by the defending state (here Israel) against the attacking state (here Iran) is assumed to be justified by self-defense, it also forcefully infringes upon the territorial integrity of the assisting State (here Syria), as protected under Article 2(4) UNC, and warrants justification, too. The claim that strikes directed against an actor within the territory of another state are not a prohibited use of force against the territorial state has been repeatedly rebutted.

In fact, in the Security Council debate on the January incident, Syria labelled the Israeli strikes as “acts of aggression targeting the Syrian Arab Republic”, a “gross violation of international law” (S/PV.8449, p. 31f). Iran like Russia condemned the Israeli action, emphasizing the infringement of Syria’s sovereignty. Interestingly, Israel (unlike the USA or Germany) showed awareness of the problem by holding “the Syrian regime responsible for the missile that was launched against Israel from Syrian territory” (S/PV.8449, p. 8). The IDF added that “Syria paid the price for allowing Iran to conduct attacks from its soil.”

While the permissibility of self-defense against states supporting non-state actor violence is being extensively discussed, self-defense against states assisting another state has received little attention Read the rest of this entry…

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Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Published on March 6, 2019        Author: 
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On 13 February 2019, the International Court of Justice (ICJ) issued its Judgment on the preliminary objections raised by the US to Iran’s claims in the Certain Iranian Assets case. The dispute involves the exercise of jurisdiction over Iran by US courts and the seizure of assets of Iranian state-owned companies to satisfy those court’s judgments. According to Iran, these actions are in breach of the US obligations under the 1955 Iran-US Treaty of Amity. The background to the case and the Court’s recent decision have been analysed elsewhere (see, eg, here). In this post, I want to comment on one specific element of the Court’s reasoning: its decision in relation to the US objection based on Article XX(1) of the Treaty of Amity.

Article XX(1) states, in relevant part, that:

The present treaty shall not preclude the application of measures …

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfil 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.

The US argued that the function of this provision was to exclude certain matters from the substantive scope of the Treaty, with the consequence that they fell outside the Court’s jurisdiction which is limited, under Article XXI, to disputes relating to the interpretation and application of the Treaty. The Court rejected the US preliminary objection and decided, as it had done on previous occasions, that the provision in question constituted a ‘defence on the merits’ (para 47). This seems to be the right approach: Read the rest of this entry…

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The ICJ’s Provisional Measures Order in Alleged Violations of the 1955 Treaty (Iran v United States)

Published on October 3, 2018        Author: 
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The ICJ this morning issued its Order regarding Iran’s request for the indication of provisional measures in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States). This post is intended as a brief summary of the reasoning of the Court. After a short introduction, I will outline the Court’s approach to the three core elements required for an indication of provisional measures: prima facie jurisdiction, plausibility of rights and nexus with provisional measures requested, and risk of irreparable prejudice and urgency.

The facts of the case, including the hearings on the request for provisional measures, are covered in an earlier post. In brief, Iran claims that the re-introduction by the United States of sanctions against it following the latter’s withdrawal from the Joint Comprehensive Plan of Action (JCPOA) in May 2018 violates the 1955 Treaty of Amity between the two States. In its request for the indication of provisional measures, Iran sought the Court’s order that the US shall, inter alia, suspend its reintroduction of the sanctions, as well as allow transactions already licensed to be implemented.

In its Order of this morning, Iran, in part, prevailed, with the Court indicating some of the provisional measures requested by Iran. Thus, the Court required that the US ‘remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of (i) medicines and medical devices; (ii) foodstuffs and agricultural commodities; and (iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation’. The Court also ordered that the US must ‘ensure that licenses and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction’ where they relate to the goods and services noted above, and that both parties ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’

It is interesting to note that the provisional measures in this case were adopted by the Court unanimously, and thus with the support of the US Judge ad hoc Charles Brower. This is, by no means, the first time a US judge has supported a Court ruling against the US, but it is nevertheless interesting (particularly from a judge ad hoc). Judge Thomas Buergenthal supported judgments of the Court against the US in a number of previous cases, including the Oil Platforms merits judgment (after Judge Schwebel had dissented from the Court’s 1996 finding of jurisdiction in that same case).

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The Iranian Suit against the US Sanctions and the 1955 Treaty of Amity: Brilliant Plan or Aberration?

Published on September 7, 2018        Author: 
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The Iranian economy is already feeling the effects of the United States economic sanctions that are successively being reinstated following the US withdrawal from the Joint Comprehensive Plan of Action (JCPOA) on 8 May 2018. In an attempt to save what can be saved, Iran seized the International Court of Justice in July requesting the latter to order and declare that the 8 May and subsequent sanctions are unlawful; that the United States shall stop its threats with respect to the further announced sanctions and that it shall compensate Iran. The claim is accompanied by a request for provisional measures by which Iran seeks to obtain, in particular, the immediate suspension of the sanctions and the non-implementation of the sanctions announced. Last week, both parties met in court for the hearings on the provisional measures request.

Iran has not claimed a violation of the JCPOA but alleges breaches of the Treaty of Amity, Economic Relations, and Consular Rights signed by Iran and the United States in 1955. The reason is simple: neither Iran nor the United States accepts the compulsory jurisdiction of the ICJ, both states having withdrawn their optional clause declarations. A compromis not being in sight, Iran can only ground the ICJ’s jurisdiction on a compromissory clause. While the JCPOA does not contain such a clause, the Treaty of Amity stipulates in its Article XXI (2) that “[a]ny dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.”

The case, and the provisional measures request, raises many interesting questions, including  for example, whether the mainly economic damages alleged by Iran are irreparable as is required for the indication of such measures, and whether the request could possibly pre-empt the decision on the merits. However, this post is uniquely concerned with whether the idea to rely on the Treaty of Amity helps overcome the hurdle of jurisdiction. While the existence of jurisdiction need only be proved prima facie in the provisional measures phase, the Court will at a later stage have to take a definite decision (assuming the case is not dismissed for manifest lack of jurisdiction at the provisional measures stage). One of the most problematic issues is whether the dispute is about the interpretation or application of the Treaty of Amity despite the existence of the JCPOA. If this is the case, invoking the Treaty of Amity was a smart move by Iran.

The Iranian idea can potentially be attacked in two places: the actual scope of the application and the request, as well as the potential inapplicability of the Treaty of Amity. Read the rest of this entry…

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The Israeli Strikes on Iranian Forces in Syria: a case study on the use of force in defence of annexed territories

Published on June 8, 2018        Author: 
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Factual Background and Legal Issue

The extensive air strikes launched by Israel on Iranian forces and assets across Syria in the early morning of 10 May 2018 present a complex case study which deserves proper legal scrutiny. According to the reconstruction given by the Israel Defence Forces (IDF), the strikes were decided in retaliation for a rocket barrage fired some hours earlier from Syrian territory on IDF forward outposts in the Israeli-controlled Golan. Despite denials by Iranian officials of any direct involvement of their military in Syria, the rockets were immediately attributed by the IDF to the Quds Force, the special unit of the Iranian Revolutionary Guards in charge of extraterritorial operations.

Reacting to the alleged Iranian attack and to Syria and Iran’s condemnation of Israel’s response as an act of aggression against Syria, the governments of the United States, the United Kingdom and Germany explicitly referred to Israel’s right to act in self-defence against Iran. The same Israeli Prime Minister Netanyahu, before the operation could take place, had invoked ‘Israel’s obligation and right to defend itself against Iranian aggression from Syrian territory’. This claim, although phrased in legal terms, was not formalised in an Article 51 letter filed with the UN Security Council, which should include a justification for the use of force against both Syria (whose territorial integrity was violated) and Iran (whose forces and facilities were targeted). A self-defence argument however would raise in the present case a legal issue related to the status of the territory attacked: the Golan Heights, occupied by Israel after the Six-Day War in 1967 and annexed in 1981. Can an annexing state invoke Article 51 UN Charter to justify the use of force in self-defence against an armed attack directed exclusively at a territory that it annexed? This post submits that the answer to this question, which appears unsettled and largely unexplored, cannot overlook the situation of manifest illegality that a self-defence argument would purport to preserve and protract. Read the rest of this entry…

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‘With Friends Like That, Who Needs Enemies?’: Extraterritorial Sanctions Following the United States’ Withdrawal from the Iran Nuclear Agreement

Published on May 29, 2018        Author: 
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On Monday 21 May 2018, the US Secretary of State announced that, as a result of its withdrawal from the Joint Comprehensive Plan of Action (‘JCPOA’ or ‘Iran Nuclear Deal’), the United States is set to impose the ‘strongest sanctions in history’ against Iran. While the remaining states parties are committed to preserve the Iran Nuclear Deal, whether the JCPOA can in fact survive in the face of the US change of heart is a matter of uncertainty. Of particular concern is the effect that the resumption of US economic sanctions will have on non-US companies that have flocked to Iran in the aftermath of the JCPOA. Unlike the sanction programmes implemented against Iran by various states before 2015, the US measures present distinctively extraterritorial features, directly targeting foreign companies carrying out business with Iran despite the absence of a significant connection with the United States. The European Union has already vowed to take action in order to protect its trade interests and to ‘block’ unwarranted interference by the United States. As tension in the transatlantic relations mounts, serious questions arise concerning the legality of the US sanctions regime under international law. This post will focus in particular on the compatibility of these measures with the international rules governing the assertion of jurisdiction by states. It will be shown that, in the absence of an adequate jurisdictional basis, the extraterritorial aspects of the US sanctions regime must be considered unlawful. Some measures that the European Union and other JCPOA states can take in order to react to these wrongful acts will further be considered. Despite the availability of legal means to counter the US sanctions, a negotiated settlement between the United States and its economic partners remains the most viable solution to this standoff.

The long arm of the US sanction regime

Despite the Trump administration’s lack of specific directions on the issue, the US Treasury Department’s Office of Foreign Assets Control (OFAC) recommends that persons engaged in transactions with Iran:

‘should take the steps necessary to wind down those activities to avoid exposure to sanctions or an OFAC enforcement action under U.S. law after August 6, 2018, or November 4, 2018, depending on the activity’ (Question 1.4).

Of particular concern for foreign firms are the provisions contained in Executive Order 13590 (providing for an almost complete ban on the Iranian petrochemical sector), Executive Order 13622, and Executive Order 13645 (which prohibit foreign financial institutions from carrying out a vast set of transactions on behalf of Iranian entities). As recently as August 2017, Congress also vested the US President with ample powers to take measures against:

‘any person that … knowingly engages in any activity that materially contributes to the activities of the Government of Iran with respect to its ballistic missile program, or any other program in Iran for developing, deploying, or maintaining systems capable of delivering weapons of mass destruction’ (Section 104 of the Countering America’s Adversaries Through Sanctions Act).

Alongside their broad content, these measures all are characterised by an unspecified — and potentially unlimited — jurisdictional scope. Through these provisions, the United States seeks to compel not only US persons, but ‘any person’ — wherever located and regardless of their connection with the United States — to refrain from engaging in certain transactions with Iran. This is problematic in several respects. Read the rest of this entry…

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Filed under: Iran, Nuclear Weapons, Sanctions