Interpreting Self-Defense Restrictively: The World Court in the Oil Platforms Case

The judgment in the Oil Platforms case between Iran and the United States is the third decision by the International Court of Justice in a series that restrictively interprets the international law on the use of force. The article provides an overview of the case and comments in detail on the parties’ arguments and the Court’s fi ndings on the right to self-defense, essential security interests and related evidentiary issues. The case is seen as a remarkable statement of the world court emphasizing the limits of the use of force and the role of the UN Charter at a time when the traditional law on self-defense is challenged by political events and legal writing.


D
iscussions on the lawfulness of pre-emptive strikes as included in the US National Security Strategy of September 2002 and on the legality of the Iraq war in spring 2003 have seriously challenged the law on self-defense as refl ected in Article 51 of the UN Charter. 1 Pressed to take a position, the United Nations recently stated in the Report of the High-level Panel on Threats, Challenges and Change that »we do not favour the rewriting or reinterpretation of Article 51«. 2 The Panel recommended that States who have good For the present debate on the law of the use of force and the role of the UN Charter in this respect, the Court's judgment of 6 November 2003 in the case concerning Oil Platforms between the Islamic Republic of Iran and the United States of America is of great interest nevertheless.The case concerned the Iranian claim for reparation from the United States for attacking and destroying three offshore oil production complexes owned by the Iranian National Oil Company in 1987 and 1988.The claim was met by a US counter-claim seeking reparation from Iran for allegedly attacking vessels and otherwise engaging in military activities during the Iran-Iraq war to the detriment of the United States.
Shortly before the beginning of the Iraq war, the Court was seized with a parallel discussion relating to the admissibility of armed force and related evidentiary issues.Indeed, only two weeks after Secretary of State Colin Powell presented his case against Iraq with satellite imagery before the Security Council on 5 February 2003, similar pictures were produced by the United States in the public sittings in the Oil Platforms case to show Iranian missile sites in support of the US defense arguments and counter-claims.That the Court did pronounce on the right to self-defense although it was not obliged to do so from a technical legal perspective, as will be discussed below, indicates that its judgment in the Oil Platforms case is intended to contribute to the present debate concerning the law on the use of force.
The judgment on the merits in the Oil Platforms case is the third decision by the Court in a series that extensively deals with the international law on the use of force and especially with the right to self-defense.With the present decision, the Court confi rmed its restrictive approach regarding the limits of the lawful unilateral use of force already contained in its jurisprudence in the case concerning Military and Paramilitary Activities in and against Nicaragua and in the Advisory Opinion on the Threat or Use of Nuclear Weapons. 5 In the following sections, I will begin with a brief overview of the facts, the main arguments by the parties and the judgment.I will then review in detail the parties' contentions concerning the right to self-defense and related issues of evidence and contrast them with the respective fi ndings of the Court.Finally, I will make some remarks on the signifi cance of this judgment for the law on self-defense and how it relates to the ongoing debate on a potential re-defi nition of the existing international law on the use of force.

Factual Background
The background of the dispute is the so called »Tanker War« in the Persian Gulf, which was part of the armed confl ict between Iran and Iraq from 1980 to 1988 following the invasion of Iran by Iraqi forces. 6As a reaction to the Iraqi invasion, Iran imposed a blockade of the Iraqi coast and established a defense exclusion zone around its coast.In return, Iraq set up a prohibited war zone and later a total exclusive zone in the northern part of the Gulf.The establishment of these zones seriously hampered international shipping by assigning navigational corridors, increasing interception and search, and in the case of the Iraqi zone, prohibiting all shipping.In 1984, Iraq had begun to attack tankers carrying Iranian oil in an effort to cut off Iran from its main revenue.In the course of the Tanker War, numerous commercial and military vessels of various nationalities were attacked by aircraft, helicopters, missiles, warships or mines while both Iraqi and Iranian naval forces were operating in the Gulf.Iran denied, however, responsibility for any incidents except those involving vessels refusing an orderly request for stop and search.It emphasized that its involvement in the Persian Gulf had an exclusively defensive character, reacting to the Iraqi aggression which, it alleged, was supported diplomatically, politically, economically and militarily by some formally neutral States, including Kuwait, Saudi Arabia and the United States.
Besides the damage and loss relating to the attacked ships, the situation caused great inconvenience and costs to the international shipping community which sought to ensure security in various ways.In 1986, Kuwait, which was particularly concerned about alleged Iranian attacks against its merchant vessels, requested the United States and other States to refl ag some of its ships and to provide protection through military escort during their passage through the Persian Gulf.These measures did not, however, prevent that tankers and escorting warships continued to be attacked or struck mines until the end of the confl ict.
Two incidents are central to this case.On 16 October 1987, the Sea Isle City, a Kuwaiti tanker refl agged to the United States, was hit by a missile while anchoring close to Kuwait's harbor.Three days later, the United States alleging Iranian responsibility for the missile attack and asserting to be acting in selfdefense, launched a naval attack against two Iranian offshore oil production facilities, the Reshadat (»Rostam«) and Resalat (»Rakhsh«) complexes.The second incident related to the US warship Samuel B. Roberts, which struck a mine in international waters near Bahrain on 14 April 1988 after completion of an escort mission.On the assumption that the mine was of Iranian origin, the United States attacked and destroyed the Salman (»Sassan«) and Nasr (»Sirri«) complexes, claiming self-defense four days after the incident.Following previous Iraqi attacks in 1986, nearly all complexes had been under repair.According to Iran, however, production was about to restart at the time of the US attacks.As a consequence of the attacks, most of the oil platforms were completely destroyed and normal production levels could not be resumed until 1993.

Jurisdiction and Claims
Iran claimed damages for the loss arising from the destruction of the oil platforms.As the United States had terminated its unilateral declaration of acceptance of compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute of the Court, Iran could not directly base its claim on a violation of the international law relating to the use of force.The only possible basis of jurisdiction for Iran was the dispute settlement clause of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the parties (hereinafter referred to as the »1955 Treaty«). 7Iran therefore claimed that the destruction of the platforms was a violation of the freedom of commerce as stipulated in Article X, paragraph 1, of the 1955 Treaty,8 similar to Nicaragua's invoking of the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua (hereinafter referred to as the »1956 Treaty«) -a treaty whose relevant provisions are substantially identical to those of the 1955 Treaty.As in the Nicaragua case, the parties' dispute concerned both the general international law on self-defense as well as issues of treaty interpretation.However, in contradistinction to the Nicaragua case, where the Court's jurisdiction was not only founded on the dispute settlement clause of the 1956 Treaty but also on unilateral declarations under Article 36, paragraph 2, of the Court's Statute, the 1955 Treaty was the sole jurisdictional base in the Oil Platforms case.During the hearings, Iran requested the Court to adjudge and declare »that in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms referred to in Iran's Application, the United States breached its obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, and that the United States bears responsibility for the attacks«.The form and amount of reparation was to be determined at a subsequent stage of the proceedings.
The United States requested the Court to adjudge and declare that it did not breach its obligations under the 1955 Treaty and that the Iranian claims be dismissed.It maintained that it had not violated the Treaty as there was no commerce between the territories of the parties at the relevant period of time.Further, the United States contended, that it had only destroyed the platforms to defend its essential security interests in accordance with Article XX, paragraph 1 (d), of the 1955 Treaty.This paragraph states that the Treaty shall not preclude the application of measures necessary to protect the essential security interests of a High Contracting Party.The United States saw its essential security interests affected by the alleged Iranian missile and mining attacks against US and other neutral shipping threatening the free fl ow of maritime commerce between the Gulf States and the rest of the world.In addition, the United States maintained to have made use of its inherent right to self-defense in response to the specifi c inci-dents involving the Sea Isle City and the Samuel B. Roberts, and more generally to a series of alleged Iranian attacks amounting to an armed attack in a general sense.The following sections consider these issues in greater detail.
The United States also made a counter-claim requesting the Court to adjudge and declare that, »in attacking vessels in the Gulf with mines and missiles and otherwise engaging in military actions that were dangerous and detrimental to commerce and navigation between the territories of the United States and the Islamic Republic of Iran«, Iran itself violated Article X, paragraph 1, of the 1955 Treaty and would accordingly be obliged to make full reparation.9On the one hand, the counterclaim related to ten individual ships having suffered attacks allegedly committed by Iran.On the other hand, the United States claimed that Iran had violated the freedom of commerce and the freedom of navigation as provided in the 1955 Treaty in general by making the Gulf unsafe through the sum of attacks against United States and other neutral shipping, laying mines and conducting other military activities.Iran requested the Court to dismiss the counter-claim and submitted several objections to the Court's jurisdiction and admissibility.It also contended that all vessels except one, in respect of which the counter-claim was inadmissible because it did not fl y a US fl ag, were not engaged in commerce or navigation between the territories of the parties.As regards the generic claim, Iran submitted that the United States had not discharged its burden of proof that there was any actual interference with commerce or navigation between Iran and the United States.

The Judgment
The Court dismissed both claim and counter-claim on the grounds that there was no treaty-protected commerce and navigation between the territories of the parties that the respective actions could have violated.It nevertheless addressed the US defense relating to essential security interests and used it as an argumentative bridge to examine issues of self-defense.With fourteen to two votes, the Court found in its operative paragraph relating to the Iranian claim »that the actions of the United States of America against Iranian oil platforms on 19 October 1987 and 18 April 1988 cannot be justifi ed 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«.It was only then that the Court pronounced on the claimed treaty violation and found »further that the Court cannot however uphold the submission of the Islamic Republic of Iran that those actions constitute a breach 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. 10his fi nding is puzzling for a number of reasons, a fact that was also criticized by several Judges and commentators. 11That the Court dismissed the US defense for the alleged treaty violation before it concluded on an actual violation of the 1955 Treaty, 12 not only reversed the normal order of examination but also failed to observe considerations of judgment economy.In strictly legal terms, the fi nding on Article XX, paragraph 1 (d), of the Treaty and the law on self-defense was not necessary, given that the Court denied a violation of the freedom of commerce pursuant to Article X, paragraph 1, of the Treaty.For this reason, the fi nding practically constitutes an obiter dictum by which the Court expressed an argument that was not a ground for the decision.In international judicial proceedings, it is unusual to include an obiter dictum on a defense in the dispositif, and even more so in the same operative paragraph as a fi nding on treaty violation covering a completely different subject matter.Moreover, by including a fi nding on the failed US defense argument, some Judges claimed that the Court had violated the ne ultra petita rule by pronouncing on something that had not been requested in the Iranian submissions.
The Court thus actively seized the opportunity to say something on the general international law on the use of force.Only this can explain why signifi cant parts of the judgment deal with issues that were not strictly necessary for the outcome of the case from a technical legal perspective.In the following sections, I will review the respective contentions of the parties in fact and law on this point and contrast them with the corresponding fi ndings of the Court.

The Relationship between Essential Security Interests and Self-defense
At the time of the attacks, the United States had justifi ed the destruction of the platforms with self-defense according to Article 51 of the UN Charter. 13In the proceedings before the Court, however, it primarily based its arguments on Article Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.«not precluded by the Treaty in any event«. 14The 1955 Treaty would constitute a self-contained regime excluding the application of general international law and Article XX would be a lex specialis to the principle of self-defense.The Court's separate consideration of essential security interests and selfdefense in the Nicaragua case would show that in the present case the Court lacked jurisdiction to examine self-defense, as it only had jurisdiction on the basis of the 1955 Treaty unlike in the Nicaragua case with its two-fold jurisdictional basis as explained above. 15an contended that the US approach would be inconsistent with the purpose of the 1955 Treaty, 16 as it allowed that the protection of essential security interests could cover the use of force unlawful under general international law.Article XX of the 1955 Treaty, even if it was a lex specialis, could not circumvent peremptory rules of international law relating to the unilateral use of force.Any justifi cation for the US attacks on the grounds of the 1955 Treaty would have to be preceded by an examination of the principle of self-defense under the general international law on State responsibility. 17In support of this contention, Iran cited Judge Sir Robert Jennings' statement on the relationship between essential security interests and self-defense in the Nicaragua case that, the corresponding »Article XXI [of the 1956 Treaty] cannot have contemplated a measure that cannot, under general international law, be justifi ed even as being part of an operation in legitimate selfdefense.« 18Further, Iran pointed out that in the Nicaragua case, the Court had placed particular emphasis on the justifi cation of US action provided at the time of the attack, and that the Court's interpretation of the 1956 Treaty had indeed been preceded by a detailed examination of the law on self-defense. 19 its consideration of the US justifi cation, the Court followed the order of defense arguments proposed by the United States but essentially applied the logic of the Iranian contentions.The Court began with examining whether the United States had lawfully protected its essential security interests according to Article XX, paragraph 1 (d), of the 1955 Treaty, but then quickly turned to issues of self-defense under general international law. 20The Court confi rmed its jurisprudence in the Nicaragua case where it had stated that actions taken in self-defense might be considered as part of the wider category of measures necessary to protect the essential security interests pursuant to the identical provision Article XXI of the 1956 Treaty between the United States and Nicaragua.In the Court's dictum, this approach supports the view that the interpretation and application of Article XX, paragraph 1 (d), of the 1955 Treaty, invoked to justify actions involving the use of armed force, would »necessarily entail an assessment of the conditions of legitimate self-defense under international law«. 21The Court followed the Iranian argument that it would be inconsistent with the purpose of the 1955 Treaty to foster fi rm and enduring peace and sincere friendship between the parties, if Article XX, paragraph 1 (d), could be interpreted to tolerate an unlawful use of force of one party against the other.Citing Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties, according to which »any relevant rules of international law applicable in the relations between the parties« shall be taken into account for the interpretation of a treaty, it found that Article XX could not have been intended to operate wholly independently of the relevant rules of international law on the use of force but that the application of the latter forms an integral part of interpreting the 1955 Treaty.While recognizing that it had only jurisdiction so far as conferred by the consent of the parties, the Court was nevertheless satisfi ed that its jurisdiction to decide on the interpretation or application of Article XX, paragraph 1 (d), extends, where appropriate, to the determination whether action alleged to be justifi ed under that paragraph was or was not an unlawful use of force by reference to international law applicable to this question. 22The Court also stated that the question whether the US measures were necessary to protect its essential security interests overlaps with the question of their validity as acts of self-defense. 23After an examination of the law on self-defense, the Court concluded that the US actions would not be justifi ed as necessary pursuant to Article XX, paragraph 1 (d), of the 1955 Treaty »since those actions constituted recourse to armed force not qualifying, under international law on the question, as acts of self-defense, and thus did not fall within the category of measures contemplated, upon its correct interpretation, by that provision of the Treaty.« 24The Court thus clarifi ed that, as a principle, a treaty regime that allows for certain protective measures cannot depart from the general international law on the use of force. 25 respect of the conditions for lawful individual self-defense, the Court pointed to its jurisprudence in the Nicaragua case and stated that the United States would have to show that it was victim of an armed attack for which Iran was responsible.In this context, the United States would be required to distinguish »the most grave forms of the use of force (those constituting an armed attack) from other less grave forms«. 26The Court also reaffi rmed the principles of necessity and proportionality and required that the platforms were a legitimate target open to attack in the exercise of self-defense. 27

Evidentiary Issues
In its argumentation on general international law on the use of force, the United States had justifi ed the destruction of the platforms with self-defense as a response to the specifi c incidents involving the Sea Isle City and the Samuel B. Roberts and, more generally, as responding to a series of alleged Iranian attacks against US and other neutral shipping.

Missile attack on the Sea Isle City
With respect to the Sea Isle City, the United States claimed that it had been the victim of an armed attack when Iran allegedly fi red a missile at the ship that lay anchored in Kuwait's territorial sea.The United States alleged that the missile was a landlaunched HY-2 (or Silkworm) missile shot from a distance of about 95 km from the Fao peninsula close to the Iraqi-Iranian border.In support of its claim, it produced various types of evidence.The most prominent was satellite imagery of several missile sites on the Fao peninsula, which were allegedly under Iranian control at the time of the attack.These images were complemented by a detailed expert analysis. 28In addition, the United States produced an expert statement analyzing missile fragments found in similar incidents in 1987, as well as the testimony of two Kuwaiti offi cers reporting that missiles had been launched from Iranian-held territory in the Fao area in 1987.One offi cer also claimed to have seen the path of the specifi c missile that hit the Sea Isle City. 29The United States found that it had thereby discharged its burden of proof, in particular as the missile site was allegedly located in an area under exclusive Iranian control.Referring to the Court's jurisprudence in the Corfu Channel case, the United States argued that, similar to the United Kingdom with respect to alleged Albanian mine-laying in its territorial sea, also the United States »should be allowed a more liberal recourse to inferences of fact and circumstantial evidence« with respect to Iranian missile launching. 30an countered that the United States could not rely on the looser evidentiary standards set by the Corfu Channel case. 31The sophisticated US surveillance technology and potential physical evidence of missile fragments should have enabled the United States to produce direct evidence which it did not.Further, Iran argued, unlike in the Corfu Channel case where there was certainty about the type of mine and location of explosion, the exact type of missile and the location from where it was fi red remained unclear in this case.Iran contended that the United States had not suffi ciently proven that the missile was Iranian.In particular, it claimed that the US satellite imagery was inconclusive.Iran further declared that the missile sites it acknowledged to have occupied in 1986 were inoperable throughout the occupation period, as the area was subject to fi erce fi ghting.Moreover, Iran argued, the testimony of the Kuwaiti offi cers was partly inconsistent and based on hearsay ten years after the attack. 32Instead, it suggested with reference to previous incidents that Iraq allegedly fi red the missile motivated by its interest to internationalize the confl ict through attacking neutral vessels in the Gulf. 33According to Iran, Iraq possessed modifi ed Silkworm missiles that substantially exceeded the standard range of 95 km and could have been fi red from Iraqi missile sites located further west in the Fao area.Contrary to the US statement, 34 such missiles could have taken a turn during their fl ight leading witnesses to misjudge their point of origin. 35

Mine-laying and the Samuel B. Roberts
The United States also claimed it responded in self-defense to a second individual attack, namely the mining of the Samuel B. Roberts.In this context, the parties disputed whether the mine that hit the vessel was of Iranian origin, as the United States asserted, or rather laid by Iraq, as suggested by Iran.The United States referred to reports of international shipping information services according to which it was generally known that Iran was undertaking a systematic mine-laying campaign against neutral shipping, a policy also announced by senior Iranian offi cials.That the Samuel B. Roberts was indeed hit by an Iranian mine could be assumed, according to the United States, as several Iranian mines had been discovered in the vicinity a few days after the attack and as the Iranian vessel Iran Ajr was caught in the process of mine-laying a few days earlier. 36Iran, on the other hand, pointed to its general interest in keeping the Gulf open to neutral shipping as its oil trade, unlike Iraq's, was completely dependent on shipping.It further contended that the United States had not discharged its burden of proof that Iran had laid the mine to hit the Samuel B. Roberts. 37Iran claimed to have laid mines only for defensive purposes in the northern part of the Gulf.Contrary to the US contention that the mine in question was necessarily a moored mine, 38 Iran suggested that it could also have fl oated down from the war zone in the North, instead of having been anchored in the international waters where the Samuel B. Roberts was hit.Further, it argued that the United States was mistaken about the Iran Ajr incident, as the vessel would merely have transported mines. 39th parties referred to the Court's fi ndings in the Corfu Channel case relating to matters of evidence to support their contentions.an Albanian minefi eld discovered in the vicinity, because there was certainty about the exact type of the mine.This, however, was not the case in respect to the mining incident involving the Samuel B. Roberts, Iran held. 41

The Court's fi ndings
After »having examined with great care the evidence and arguments presented on each side«, the Court found »that the evidence indicative of Iranian responsibility for the attack on the Sea Isle City is not suffi cient to support the contentions of the United States«. 42At the outset, it noted that the United States had not produced any direct evidence, such as recovered fragments of the type of missile that hit the vessel.With respect to the presented satellite imagery and corresponding expert evidence aiming to show that the missile was fi red from Iranian-held territory in the Fao area, the Court found that the images were not »suffi ciently clear« to establish the point despite the expert reports offered by both parties.The Court did not rely on the witness evidence provided by the United States either.It objected to the fact that the testimony of the Kuwaiti offi cer was given ten years after the incident, and that his statement was inconclusive concerning the launching and collision point of the missile and that it contains some discrepancy between the English and Arabic text. 43As regards the possible range of Silkworm missiles and their capacity to take turns, the Court avoided any decision on the parties' dispute.Instead, it pointed again at the lack of direct evidence as to the general type of missile that hit the Sea Isle City and deemed the US evidence on the nature of other missiles fi red at Kuwaiti territory at the time »suggestive, but no more«. 44The Court also dismissed as suffi cient evidence a general statement of the Iranian President some time before the incident that threatened to attack the United States if the latter continued to be involved in the confl ict.Finally, the Court observed that the assumptions by international shipping services as to Iranian responsibility for the attack were secondary evidence that did not disclose the original source of information.In this context, it cited its fi nding in the Nicaragua case according to which »such reports, however numerous, will in such case have no greater value as evidence than the original source«. 45th much less explanation, the Court found that the United States had not discharged its burden of proof in respect of the mining attack against the Samuel B. Roberts. 46It simply noted that mines had been laid at that period by both Iran and Iraq.This fact would make evidence of Iranian mine-laying in other instances inconclusive as to Iran's alleged responsibility for the particular mine that the Samuel B. Roberts struck.The discovery of moored mines in the same area with serial numbers matching other Iranian mines, particularly those found on the Iran Ajr, would be »highly suggestive, but not conclusive.«It is noteworthy that the Court in general dismissed without much reasoning the evidence prepared with great care to justify the US attacks.Several Judges deplored that the Court had not spelt out in further detail its standard of proof for the evidence submitted despite the fact that the outcome of the case depended to a large extent on evidentiary questions. 47The judgment does not provide much guidance with respect to the parties' contentions relating to the standards of proof set by the Corfu Channel case.Further, it reveals a certain tendency to shun in-depth examination particularly of the technical evidence submitted by the parties.With respect to the missile attack on the Sea Isle City, the Court was not explicit whether it allowed a more liberal recourse to circumstantial evidence, for example concerning the missile-launching site, on the grounds that one party had exclusive control over the area in question. 48Moreover, when examining the offered evidence, the Court refrained from any detailed fi nding on the evidentiary value of satellite imagery despite its elaborate presentation and supplementary expert information by the United States.Instead, it mainly focussed on the witness evidence which it rejected.Similarly, the Court avoided an in-depth examination of the evidence relating to the technical characteristics of the missile by pointing at the lack of any direct evidence for the type of missile that hit the Sea Isle City.In case of the Samuel B. Roberts incident, the Court primarily focused on the concurrent Iraqi and Iranian mining of international waters in the Gulf.Although a minefi eld was discovered shortly after the mining incident in the present case as in the Corfu Channel case, the Court came to a different conclusion concerning the alleged Iranian mine-laying than with respect to the Albanian responsibility for mining.While the Court did not provide any explanation for its reasoning, an important difference may explain the difference: In the latter case, the British ship struck a mine in Albania's territorial sea over which Albania had exclusive control, whereas the Samuel B. Roberts incident took place in international waters.After the Court concluded that mines were laid by both belligerents in the Gulf and that therefore evidence of other Iranian mine-laying operations was not conclusive as to Iranian responsibility for the Samuel B. Roberts incident, the Court did not fi nd it necessary anymore to examine in detail the circumstantial evidence offered by the United States.As a consequence, it remains unclear what relevance the Court attaches to the existence of a minefi eld that has been discovered around the same time of the incident and can be attributed to the concerned State.

Armed Attack and Individual Incidents
Besides factual issues, the parties disputed the legal requirements for lawful self-defense.action occurs outside a State's territory, Iran maintained, the attacked object must be an external manifestation of that State to make it a victim State entitled to self-defense.According to Iran, this would be the case with armed forces or warships, but not with a commercial ship.In support, it referred to Article 3 (d) of the General Assembly resolution 3314 concerning the Defi nition of Aggression on which the Court had relied in the Nicaragua case as an expression of customary international law in determining whether Nicaragua had committed an armed attack triggering the right to self-defense. 50Iran further argued that, given that the Sea Isle City was hit in Kuwait's territorial waters, Kuwait but not the United States as fl ag State could possibly be considered as the victim of an armed attack.As a consequence, the United States could neither claim to have acted in individual, nor collective self-defense as Kuwait had not requested the United States to do so.The United States, on the other hand, contended that the fl ag State and the State whose territory was violated have a concurrent right to exercise their right to self-defense. 51Further, it held that attacks against individual commercial ships could trigger the right to self-defense, since they would belong to the external manifestations of a State similar to embassies. 52e second contentious point concerned the question whether Article 51 of the Charter requires an armed attack that is specifi cally targeted against a particular State.Pointing at the generally restrictive approach of the Charter with respect to exceptions to the prohibition of the use of force, Iran affi rmed this.It could not be said that the attacks on the Sea Isle City and the Samuel B. Roberts had been directed against the United States, as neither vessel had been specifi cally targeted.According to Iran, a missile shot from a distance of about 100 km into Kuwait City's harbor could not have been able to distinguish between a US and another State's fl ag.The only State that could claim to be attacked would be Kuwait but not the United States. 53Iran also denied that there was a specifi c mining attack against the Samuel B. Roberts.Mining in armed confl ict, it pointed out, was subject to certain precautions prescribed by the ius in bello.If restrictions on the use of mines were not respected by one of the belligerents, this would not mean that the mining in question constituted an armed attack against the State whose ship happened to hit one of the mines.In other words, a violation of the ius in bello through unlawful mining would be irrelevant with respect to the question of whether the alleged mining constituted an armed attack in accordance with the ius ad bellum. 54Iran stated that the situation might be different in case of targeted mine-laying.But it said that the United States had only produced indirect evidence as to the alleged Iranian origin of the mine but nothing to demonstrate that the mine-laying was specifi cally directed against the Samuel B. Roberts. 55The United States rejected the requirement of a specifi cally targeted armed attack against a particular vessel.It stressed that it would be impossible for the law of self-defense not to apply to situations in which highly dangerous weapons such as missiles or mines are used indiscriminately. 56Otherwise, the United States contended, the right to self-defense was being interpreted too restrictively and victim States protected insuffi ciently. 57spite the parties' detailed contentions, the Court did not clearly pronounce on the applicable criteria for the existence of an armed attack in accordance with Article 51 of the UN Charter.This was criticized by several Judges who called the Court's manner of dealing with the issue half-hearted and a missed opportunity. 58The judgment nevertheless contains some hints that an armed attack needs to be specifi cally targeted against a State. 59By noting that the missile that hit the Sea Isle City was fi red from a distance of more than 100 km and only programmed to hit some target in the Kuwaiti waters, the Court expressed that it took seriously the Iranian argument requiring a specifi cally targeted attack.Similarly, with respect to the question whether mining can constitute an armed attack, the Court did consider the fact that it had not been established that alleged mine-laying of the Iran Ajr »was aimed specifi cally at the United States«, and that the mine that hit the Bridgton, one of the damaged US ships on which the counter-claim was based, »was laid with the specifi c intention to harm that ship, or other United States vessels«. 60th respect to the controversial issue whether the right to self-defense can be triggered by an attack against an individual vessel, however, the Court remained ambiguous, if not contradictory.In two instances, the judgment contains statements which could possibly be interpreted to relate to this issue.Firstly, the Court's fi nding in paragraph 72 that it »does not exclude the possibility that the mining of a single military vessel might be suffi cient to bring into play the 'inherent right of self-defense'« could be viewed to have tacitly excluded attacks against individual commercial vessels from the scope of self-defense, even if the Court did not refer to the General Assembly's defi nition of aggression.Secondly, the Court's observation in paragraph 64 that »the Texaco Caribbean, whatever its ownership, was not fl ying a United States fl ag, so that an attack on the vessel is not in itself to be equated with an attack on that State« could be read in such way that the Court in general does consider the possibility that an attack against a single commercial ship may constitute an armed attack against the fl ag State.As the interpretations of these fi ndings are contradictory, however, it appears that the Court did not intend to comment at all on the question whether forcible action against individual merchant vessels may constitute an armed attack against the fl ag State.Instead, it seems that the Court rejected the claim for armed attacks in connection with the two incidents on narrow grounds, i.e., by pointing at the lack of suffi cient evidence and by denying that the attacks were specifi cally targeted.

Continuous Armed Attack
In addition to the specifi c incidents involving the Sea Isle City and the Samuel B. Roberts, the United States claimed that, by launching a systematic campaign with mines, missiles and other weaponry against US and other neutral shipping in the Persian Gulf, Iran had committed a series of attacks amounting to an armed attack in a more general and continuous sense exceeding the scope of the individual incidents.Being strategically located, the platforms would have played a central role as military support facilities in this pattern of attacks. 61In support of its contentions, the United States cited reports of international shipping information services and documents seized from the Iranian mine-laying vessel Iran Ajr.
Iran objected to this argumentation on factual and legal grounds.In terms of facts, it held that the United States had not suffi ciently proven that it had been the victim of a series of Iranian armed attacks, as the US argumentation was merely based on general allegations and unsubstantiated reports. 62urther, most of the mentioned incidents, with the exception of the Samuel B. Roberts and, possibly, two refl agged Kuwaiti vessels including the Sea Isle City, did not involve US fl agged vessels and thus could not be taken to contribute to a continuous armed attack against the United States.
In terms of law, Iran argued that Article 51 of the Charter has to be interpreted restrictively.Therefore, the concept of a continuous armed attack comprised of several smaller-scale incidents was an invalid legal construction and each incident would have to be considered on its own merits. 63In line with the Court's jurisprudence in the Nicaragua case, 64 individual attacks that do not reach a certain threshold of force, as, according to Iran, missile or mine attacks against single vessels, could not be added up to amount to one big armed attack triggering the right to self-defense.Similarly, individual attacks that per se have been terminated could not be linked together to construe an ongoing armed attack required to respond in self-defense.Referring to the practice of the Security Council in the Arab-Israeli confl ict, 65 Iran maintained that the law of self-defense requires that military action is in principle a direct response to a specifi c ongoing armed attack in contrast to the state of war where force could be used in a less restrictive way. 66The US justifi cation based on the concept of a continuous armed attack, Iran contended, would violate these requirements and thereby unduly undermine the general prohibition of the use of force prescribed by the UN Charter.The United States, on the other hand, asserted that the Iranian argumentation was too restrictive.It argued that, either individually or in their entirety, small-scale attacks could constitute armed attacks according to Article 51 of the Charter.Having to look at each incident individually would provide a right for any attacking State freely to conduct sneak attacks beyond the reach of any viable legal regime of self-defense. 67otwithstanding the signifi cance of the issue, the Court did not comment on the parties' legal arguments concerning the concept of a continuous armed attack but dismissed the US argumentation on factual grounds.The Court examined the different incidents individually and emphasized that »Even taken cumulatively, … these incidents do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualifi ed as a 'most grave' form of the use of force« that, in contrast to »other less grave forms«, would constitute an armed attack. 68Thereby, the Court avoided setting a precedent that links individual small-scale attacks together which thereby reach the threshold for the use of force required for an armed attack in the sense of Article 51 of the Charter. 69

Necessity
With reference to the Court's jurisprudence in the Advisory Opinion on the Threat or Use of Nuclear Weapons and in the Nicaragua case, 70 Iran submitted that self-defense only covers measures necessary to respond to an ongoing armed attack.Iran cited Professor Ago's statement on the principle of necessity in his Report to the International Law Commission's draft articles on State responsibility, according to which »the reason for stressing that action taken in self-defense must be necessary is that the State attacked … must not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force.« 71It would follow from this that, according to Iran, lawful defensive action must be an on-thespot reaction aimed at protection against an armed attack that has not yet been terminated.Otherwise, the forceful action would not constitute self-defense but unlawful retaliation. 72n case of the Sea Isle City and the Samuel B. Roberts incidents, Iran held that both attacks had already been terminated when the United States destroyed the platforms several days after the incidents.
The United States objected to this reasoning and contended that the right to self-defense was of no use, if it was limited to repel an ongoing armed attack.If this were to be the case, the attacked State would not have any possibility to prevent missile or mining attacks.Further, the United States submitted that the requirement of an on-the-spot reaction without a moment of deliberation would either make the right to self-defense impotent or risk escalating the confl ict, as the defendant State was precluded from any reasonable attempt to determine the responsibility for the attack, whether any peaceful alternatives to the use of force remain, and what risks of collateral civilian casualties exist. 73In addition, the United States claimed that State practice, in particular the developments following the attacks on 11 September 2001, confi rmed the less restrictive US interpretation on self-defense. 74The Security Council had declared the attacks against the World Trade Center a threat to the peace although they had ended already.Thereby, the United States argued, the Council had acknowledged the need for protection against the continuing threat by terrorist attacks which could not have been achieved with non-forceful measures.Iran rebutted that the terrorist attacks against the World Trade Center could not be compared with the smallscale missile and mining incidents in the Gulf, in particular also because the involvement of the Security Council would make a difference. 75e second main argument of the parties relating to the principle of necessity concerned the question whether the United States had chosen the platforms as a legitimate target in response to the alleged Iranian missile and mining attacks.Iran denied this and claimed that the platforms did not have anything to do with the attacks on the Sea Isle City and the Samuel B. Roberts.The law on self-defense, Iran argued, would require that the military action is directly related to the armed attack requiring a direct and immediate link between the defense and the attack. 76Had the United States really intended to respond to the Sea Isle City and Samuel B. Roberts incidents as it claimed, it should have targeted the missile sites or the mine-laying boats as the source of the attacks, but not the platforms which were located several hundred miles away.Instead, Iran alleged that the United States did not destroy the platforms in self-defense but to infl ict as much economic damage on Iran as possible.This conclusion was to be drawn, according to Iran, because the United States had destroyed the Salman and Nasr complexes in the course of a large military offensive against Iranian forces in the Gulf coordinated with a major Iraqi offensive in the North, the so-called »Operation Praying Mantis« conceived ten months ago. 77Further, because the United States had destroyed the Reshadat R-4 platform as a target of opportunity not included in the original operations plan. 78e United States countered that the destruction of the platforms was necessary to defend its security interests in the Gulf and to stop further Iranian attacks against US and other neutral shipping.With respect to the Iranian same source argument, it held that this would relate to the attacking State in general, not the specifi c site from which the armed attack was started. 79In determining how best to respond to an armed attack, the United States objected to the Iranian contention that the existence of an armed attack has to be established solely on the basis of objective criteria. 80Instead, it argued that the victim State has to evaluate all elements of self-defense, i.e., the existence of an armed attack as well as the requirements of necessity and proportionality, on a case-by-case basis in the light of all governing circumstances and information available. 81In line with this reasoning, the United States maintained that it had deliberately targeted the platforms as a necessary and proportionate response to the alleged Iranian attacks.Eyewitness accounts, reports of international shipping information services and documents seized from the Iran Ajr would demonstrate, the United States argued, that the platforms were in reality not used for commercial but for military activities by providing landing pads for helicopter attacks and serving as a communications, monitoring and reporting facilities integrated into the Iranian Navy. 82an, on the other hand, denied that the platforms had been used for offensive militarypurposes.It claimed that only a very small military presence had been stationed on the platforms with the sole function to defend the exposed offshore installations against Iraqi attacks.According to Iran, the US material did not prove anything exceeding normal defensive actions to be expected at the time of war, in particular no concrete link between any support activity on the platforms and any of the alleged attacks against US and other neutral shipping. 83milar to its approach relating to the requirement of an armed attack, the Court was reluctant to engage in much of the parties' legal argumentation on the principle of necessity but rejected the US contentions primarily on factual grounds.The Court did, however, follow the Iranian argument relating to the margin of appreciation by the victim State for the existence of an armed attack when it re-emphasized that »the requirement of international law that measures taken avowedly in self-defense must have been necessary for that purpose is strict and objective, leaving no room for any 'measure of discretion'«. 84esides, the Court referred to its jurisprudence in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons and the Nicaragua case and concluded that, in as far as nature of the target is concerned, it was »not suffi ciently convinced that the evidence available supports the contentions of the United States as to the signifi cance of the military presence and activity on the … oil platforms«.As regards the Sea Isle City and Samuel B. Roberts, the Court was »not satisfi ed that the attacks on the platforms were necessary to respond to these incidents«. 85In this context, the Court placed particular importance to the fact that the United States had not previously »complained to Iran of the military activities of the platforms, in the same way as it complained repeatedly of minelaying and attacks on neutral shipping, which does not suggest that the targeting of the platforms was seen as a necessary act« and that the Reshadat R-4 platform had been attacked as a target of opportunity.By merely confi rming its previous jurisprudence and mainly focusing on factual issues, the Court refrained from further developing criteria for determining which action can be considered as necessary self-defense.Instead, it found that »The conditions for the exercise of the right of self-defence are well settled.« 86

Proportionality
Iran also maintained that the US action violated the principle of proportionality.The Sea Isle City and the Samuel B. Roberts had only been damaged with six and respectively ten persons injured and an estimated cost of repair of about USD 50 million.In contrast thereto, the platforms had been completely destroyed, their productive capacity was lost for several years and a serious blow given to the already war-strained Iranian economy.According to Iran, the US action had been excessive. 87The United States, on the other hand, contended that its actions were proportionate. 88It stated that the question of excessiveness would have to be judged in the light of what the defensive action was supposed to achieve.The fact that the Iranian attacks against US and other neutral shipping would have signifi cantly decreased after the destruction of the platforms would prove the United States right.Moreover, had the alleged Iranian attacks been allowed to continue, the economic damage and disruption and the risk to the peace in the region would have been far greater than what was caused by the limited US action.
The Court held that the US attacks on the Reshadat and Resalat platforms could have been deemed proportionate if the conditions for lawful self-defense had been met.But in respect of the destruction of the Salman and Nasr platforms, the Court clearly stated: »As a response to the mining, by an unidentifi ed agency, of a single United States warship, which was severely damaged but not sunk, and without loss of life, neither 'Operation Praying Mantis' as a whole, nor even that part of it that destroyed the … platforms, can be regarded, in the circumstances of this case, as a proportionate use of force in self-defense.« 89Once more, like with the previous requirements, it is apparent that the Court focused on facts rather than standards that further elaborate the principle of proportionality.

Final Remarks
The judgment in the Oil Platforms case is a remarkable statement by the principal judicial organ of the United Nations emphasizing the limits to the use of force and the role of the UN Charter at a time when the traditional law on self-defense is being challenged by political events and legal writing.Even if its operative paragraphs also indicate the Judges' diffi culties in reaching consensus, considerations of Rechtspolitik nevertheless seem to have guided their deliberations and acceptance of serious procedural irregularities which otherwise would not have passed. 90 is true that the Court did not pronounce in full clarity on the legal requirements for lawful self-defense and thus failed to further develop its previous jurisprudence on the issue.However, the Court did follow a restrictive approach to the unilateral use of force and did not confi rm any of the US arguments interpreting the law on self-defense more loosely.Not only emphasized the Court that the general international law on the use of force cannot be circumvented by treaty provisions allowing for measures to protect the security interests of States.It also re-affi rmed the principles of necessity and proportionality and clarifi ed that a State must base its decision to respond in self-defense to an armed attack on strict and objective criteria.Furthermore, the Court dealt with the requirement of an existing armed attack in a restrictive way.On the one hand, it set the standard of proof to be met for the assumption of an armed attack in the absence of direct evidence very high.By rejecting the circumstantial evidence submitted with great elaboration by the United States, the Court made it very diffi cult for a State to claim facts that could give rise to the use of lawful force but, because of their nature, can hardly be proven with direct evidence, such as launching, production or storage sites of modern weapons technology in another State's territory.Certainly, the Court did not deem the offered satellite and other photographic evidence to be sufficiently strong evidence to cause a change of onus of proof to the effect that the alleged attacker had to prove the negative, i.e., its innocence.On the other hand, the Court refrained from setting a precedent that embraces the concept of a continuous armed attack that allows a response in self-defense to a series of small-scale attacks without being specifi cally linked to the individual incidents.It thereby avoided that the requirement of an ongoing armed attack is unduly stretched and the general prohibition of the use of force undermined.
Of course, the judgment only has binding force inter partes.But States as scholars do tend to quote judgments of the Court as authoritative decisions.With its judgment in the Oil Platforms case, the Court has nevertheless clarifi ed that it continues to interpret the existing international law on the use of force restrictively in spite of the debate on its transformation through the recent military interventions in the Middle East and corresponding claims in favor of the doctrine of pre-emptive strikes.
Commentators' views on the judgment have been diverse.For those who welcomed the decision, the Court acted as the »'general guardian of legality' within the international community in its entirety.« 91Despite the problematic methodology, they maintained that the judgment strengthened international law and they hoped that it would help to end the current trivialization of the unlawful use of force in international relations. 92ore criticial voices argued that the Court's political approach had undermined its legitimacy and created uncertainty as to the role of international adjudication. 93In their view, the Court had spelt out legally unsupported limitations on the right to self-defense without developing positive criteria to be used to counter pin-prick attacks in the maritime context or threats posed by terrorism and weapons of mass destruction.Such limitations would undermine states' ability to deter aggression and thereby encourage, rather than discourage, the use of force.In the view of these writers, the judgment did not increase the Court's appeal to states. 94e criticism is not new that the international legal system cannot always be enforced, especially against powerful States.However, it seems that States who want to use force in lawful self-defense continue to face the choice between either having to conform to a restrictive approach including strict standards for the appreciation of evidence, or to risk condemnation by the Court.The recent revelations concerning the lack of suffi cient evidence relating to weapons of mass destruction in pre-war Iraq highlight the necessity of maintaining a tight stance towards the use of force.
The United States stressed that in that case the Court had not determined that Albania itself had laid the mines only because the United Kingdom had not furnished any evidence in support of that assertion.With respect to the question whether Iran laid the mine that hit the Samuel B. Roberts, the United States argued that it produced much more evidence than the United Kingdom at the time.Therefore, the Court should make a direct fi nding concerning the Iranian origin of the mine which it was not prepared to do as regards the alleged Albanian origin in the Corfu Channel case.40Iran, on the other hand, claimed that the Court had only confi rmed Albanian responsibility for the mine-laying on the basis of circumstantial evidence in connection with the existence of 34 Verbatim Record, CR 2003/9, p. 43.35 Verbatim Record, CR 2003/6, p. 59; Reply, p. 73.36 Verbatim Record, CR 2003/9, pp.26-36.37 Verbatim Record, CR 2003/7, pp.18-20.38 Verbatim Record, CR 2003/17, pp.15-16.39 Verbatim Record, CR 2003/15, pp.34-38.40 Verbatim Record, CR 2003/13, pp.25-26.