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1、IN THE NAME OF GOD INTERNATIONAL COURT OF JUSTICE CASE CONCERNING THE AERIAL INCIDENT OF 3 JULY 1988 (ISLAMIC REPUBLIC OF IRAN V: UNITED STATES OF AMERICA) MEMORIAL Submitted by the ISLAMIC REPWLIC OF IRAN Volume 1 24 July 1990 TABLE OF CONTENTS INTRODUCTION . 1 . . PART 1 THE-FACTS 7 . . A Introduc
2、tion 7 B . The Background Facts Relating to IR 655 . 10 1 . IR 655 Was a Scheduled Flight Within the Internationally Designated Civil Air Corridor . 10 2 . Details of the Flight . 15 . (a) The Passengers and the Crew 15 (b) Routine Communications with ATC Centres . 17 (c) U.S.Monitoring of IR 655s R
3、outine Communications . 21 . C . The Background Facts Relating to the 25 United States Warships 1 . The Show of Force of the U.S. Fleet in the Persian Gulf . 25 . 2 . U.S. Interference in Civil Aviation 33 3 . The USS Vincennes . 42 . D . The Shooting Down of IR 655 47 1 . Initial Stages of the Flig
4、ht . 47 2 . Alleged tlChallengesll . by the Vincennes and the Side . 53 3 . IR 655 Was Not Misidentified by the U.S. Warships . 60 . 4 . The Firing on the Plane 65 E . U.S. Attempts to Deny Responsibility . 68 1 . The F-14 Theory and the Alleged Mode II Response . 69 . ii . . . 2 The Coordinated Att
5、ack Theory 77 PART II . . JURISDICTION . 85 A . The Procedural Background to the Dispute: Proceedings Before the ICA0 Council . 86 1 . Initiatives of the Islamic Republic before ICA0 . 86 . 2 . Subsequent Actions by ICA0 95 3 . The Final Decision of the ICA0 Council . 104 B . Jurisdiction Under the
6、Chicago Convention . 112 C . Jurisdiction Under the Montreal Convention . 123 D . Jurisdiction Under the Treaty of Amity . 130 PART III . THE APPLICABLE PRINCIPLES AND RULES . OF LAW 140 A . Introduction . 140 . B . The Provisions of the Chicago Convention 141 1 . The Preamble . 142 2 . Articles 1 a
7、nd 2 . 143 3 . Article 3 bis . 147 4 . Articles 44(a) and (h) . 154 5 . The Annexes to the Chicago Convention . 157 (a) Annex 2 . 158 (b) Annex 11 . 164 (c) Annex 15 . 169 C . The Provisions of the Montreal Convention . 172 D . The Treaty of Amity . 179 . E . The United Nations Charter 184 . 1 . The
8、 Prohibition against the use of Armed Force . 185 2 . Rules Relating to a States Territorial - iii - Sovereignty . 190 3. The Exercise of Self-Defence . 197 F. Customary International Law of Neutrality . 205 PART IV - APPLICATION OF THE LAW TO THE FACTS . 209 A. The Deployment and Conduct of the U.S
9、. Fleet in the Persian Gulf . 209 1. Violation of the Islamic Republics Sovereignty and Unlawful Interference in its Commerce and Navigation . 210 2. The Unlawful NOTAMs . 218 3. The Implications of Recommendation. 2.611 of the Third MID RAN Meeting . 228 4. The United States Violations of the Law o
10、f Neutrality . 230 5. Conclusions . 236 B. The Shooting Down of Flight IR 655 . 238 1. The Accidental Argument . 239 2. The Self-Defencel Argument . 247 3. U.S. Attitudes In Related Incidents . 252 4. The United States Failure To Accept Responsibility for Its Actions in this Incident and To Guarante
11、e the Prevention of Similar Incidents in the Future . 255 C. Conclusion . 258 PART V - REPARATION . 260 A. Request for a Declaration that the United States Violated the Chicago Convention, the Montreal Convention, the Treaty of Amity and Related Principles of Customary. International Law. 261 B. Req
12、uest for an Order that the United States Cease and Refrain rom Its Violations of International Law . 265 C. Request for an Award of Compensation against the United States for Its Violation of International Obligations . 268 1 . The Courts Power To Award Monetary Reparation . 268 2 . The Basis for th
13、e Request for Reparation . 271 3 . The Reparation Requested . 274 D . Conclusions: State Practice . 285 SUBMISSIONS . 291 List of Documentary Exhibits . 297 APPENDIX . Analysis of the ICA0 Report LIST O F ILLUSTRATIONS Facine. Page Figure 1 - Position of I R 655 a t Missile Impact . 2 Figure 2 - Pos
14、ition of I R 655 within Route A59 . 12 . Figure 3 - Flight Path of I R 655 20 Figure 4 - Position of U.S. ships and I R 655 a t Time of Missile Launching . 68 Figure 5 - Positions of U.S. ships and helicopter a t 0610 UTC . 80 MEMORIAL SWMITTED BY THE ISLAMIC REPUBLIC OF IRAN INTRODUCTION 1. This Me
15、morial is filed pursuant to the Orders of the Court dated 13 December 1989 and 12 June 1990 fixing 24 July 1990 as the time-limit for the filing of the Memorial of the Islamic Republic of Iran (herein referred to as the Islamic Republic). The Order was made having regard to Article 48 of the Statute
16、 of the Court and taking into account the Application filed by the Islamic Republic on 17 May 1989 instituting proceedings against the United States of America (herein referred to as the United States). 2. This case arises from the destruction of a civilian aircraft - Iran Air Airbus A300, registrat
17、ion number EP-IBU, operating as flight IR 655 between Bandar Abbas and Dubai (herein referred to as IR 655) - while flying in the Islamic Republics airspace and over its interna1 and territorial waters in the Persian Gulf and the killing of its 290 passengers and crew by two surface-to-air missiles
18、launched by the guided missile cruiser, Vincennes, on the morning of Sunday, 3 July 1988. The position at which IR 655 was destroyed in relation to the Persian Gulf is shown on Fiqure 1. 3. It will be shown in this Memorial that the use of force by U.S. naval units in destroying IR 655 and the killi
19、ng of its passengers and crew violated the most fundamental principles of international law, including specific provisions of the Chicago convention1 and the Montreal conventionL which govern and protect international civil aviation. The shooting down of the aircraft also violated Article 2(4) of th
20、e United Nations Charter and rules of customary international law prohibiting the use of force. In unlawfully intruding into the Islamic Republics interna1 and territorial waters, in breaching its stated neutrality in the area, in endangering civil aviation . generally and in destroying the aircraft
21、, the United States also violated the Islamic Republics sovereignty and the principle of non-intervention as well as the principles of neutrality enshrined in the Hague Conventions of 1907. Al1 of these actions were in breach of the Treaty of Amity, Economic Relations and Consular Rights between the
22、 United 1 Convention on International Civil Aviation of 1944 as amended (15 295). A copy of this Convention together with Annexes 2, 11 and 15 and the 1984 Montreal Protocol (Article 3 bi) is attached at Exhibit 1. 2 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviatio
23、n of 1971. A copy of this Convention is attached at Exhibit 2. States and lranl, customary practice and rules relating to the Law of the Sea, including those reflected in the 1958 Geneva Conventions on the Law of the Sea and the 1982 United Nations Convention on the Law of the Sea, as well as the pr
24、ovisions of Chapter VI1 of the United Nations Charter. This case also involves a flagrant violation of the principle of non-interference in the affairs of a sovereign State and of elementary principles of humanity and norms of international behaviour. 4. Despite these numerous violations of internat
25、ional law, the United States has refused to accept responsibility. Moreover, since the incident, on 3 July 1988, the . . United States has continued to provoke the Islamic Republic by the presence of its fleet in the Persian Gulf and to endanger civil aviation by threatening civil aircraft on a numb
26、er of specific occasions. In short, the United States has taken no steps to ensure that an incident such as the shooting down of IR 655 will not happen again. 1 Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran .signed at Tehran on 15 August 1955 a
27、nd entered into force on 16 June 1957 (284 UNT 93, II Recueil des Traits Bilatraux 69, 8 U.S.T. 899, T.I.A.S. No. 3853). A copy of this Treaty, herein referred to as the Treaty of Amity, is attached at Exhibit 3. 5 . Such indifference is unacceptable, even more so when it is recalled that the United
28、 States has been the rnost vocal State in condemning the use of armed force on a number of the other well-known occasions where civil aircraft have been shot down, and in insisting on the requirement that States concerned make reparation and guarantee that similar incidents will not be repeated. 6 .
29、 This case is more abhorrent and unjustifiable than those other incidents that the United States so publicly condemned. Those incidents al1 involved the use of force against an aircraft which had intruded into the territorial airspace of the attacking State. In this case, not only was IR 655 over th
30、e Islarnic Republics own . . interna1 and territorial waters and hence in the Islamic Republics airspace when it was shot down, but it was fired - on by the USS Vincennes which, operating far rom its own shores, had intruded into and had positioned itself within the Islamic Republics territorial sea
31、. 7. Immediately after the incident, the Islamic Republic referred the matter to the Council of the International Civil Aviation Organization (the ICAO . . Council). Although on previous occasions the ICAO Council had condemned the actions of rnembers who had shot down civil aircraft, it took no suc
32、h action in this case. It is partly as a result of this unequal treatment that the Islamic Republic has been compelled to file its Application as an appeal from the ICA0 decision under Article 84 of the Chicago Convention. In addition, the Islamic Republic applies independently to the Court under Ar
33、ticle 14(1) of the Montreal Convention and Article XXI(2) of the Treaty of Amity. 8. Pursuant to Article 49 of the Rules of Court, this Memorial is divided into the following parts: - Part 1 contains a statement of the facts -relating to the incident and the attempts .* by the United States to deny
34、responsibility. - Part II contains a discussion of the jurisdiction of the Court to hear the case. - Part III contains a statement of the applicable law. - Part IV contains an analysis of the relevant principles and rules of law as applied to the facts. - Part V contains a discussion of the relevant
35、 principles of reparation. - The Memorial concludes by setting forth the submisions of the Islamic Republic to the Court. 9. A number of documentary exhibits and other evidentiary materials are being furnished with this Memorial. These are included in Volumes II and III hereto. PART 1 THE FACTS A. I
36、ntroduction 1.01 IR 655 was shot down at 0654:43 on the morning of sunday, 3 July 1988, seven minutes after take-off on a regularly scheduled commercial flight between Bandar Abbas and Dubai. 1.02 In al1 respects the flight was proceeding normally. The weather was clear. The captain had assumed a no
37、rmal flight pattern, climbing after take-off toward his assigned altitude of 14,000 feet within the designated international air corridor. He was engaging in routine radio communications with air traffic control units, and the planes transponder was transmitting (squawking) its 1 assigned Mode III (
38、commercial aircraft) code of 6760 . Just eleven seconds after IR 655 sent its last radio message, the Vincennes launched its missiles which destroyed the plane - and killed al1 those on board. 1 Under Annex 10 of the Chicago Convention, international civilian aircraft must transmit a coded pulse of
39、energy that can be picked up on secondary surveillance radar (SSR). This code consists of four digits which are set by the crew before take- off. Mode III is the form of code used by commercial aircraft. Mode II is only used by military aircraft. 1.03 The facts of this case are shocking. They reveal
40、 serious violations of international law by the United States for which it has refused to accept responsibility. As the following discussion will demonstrate, there is no excuse whatsoever for the United States conduct. A State must be held accountable for actions of this kind, and it is unacceptabl
41、e that the hooting down of a civilian aircraft in the circumstances discussed below should be dismissed as a mere accident. This action is an international crime. Indeed, the United States itself, in other incidents involving the shooting down of civilian aircraft, has repeatedly described such acti
42、ons as international crimes for which the States concerned bear full legal responsibility. 1.04 The factual presentation below is based in large part on the Report of the ICAO Fact-Finding Investigation issued in November 1988 (herein referred to as 1 the ICAO Report) . While ICAO did carry out an i
43、nvestigation of the incident, substantial parts of the ICAO Report are based on information contained in a report unilaterally prepared by the United States Department of Defense and issued on 28 July 1988 (the Defense Department 1 A copy of the ICAO Report is attached at Exhibit 4. - 9 - - eort), m
44、ost of which was not, or could not be, corroborated by the ICAO investigation team. It is important for the Court to bear this in mind and to place in their proper context some of the statements contained in the ICAO Report when it comes to assess their probative value. 1.05 The Defense Department R
45、eport made public and given to ICAO by the United States was the . . declassified version of the Report. As a result, there are hundreds of deletions in the text. While some of these deletions clearly cover the names of individuals, others cover a good number of paragraphs. The extent of these delet
46、ions, especially where critical aspects of the incident are being discussed, suggests that there were other motives at work. Such a selective presentation of the facts generally calls into question the value of such a report and a partys good faith in preparing it. Unfortunately, the ICAO Report con
47、tains no reservations about the Defense Department Report. Indeed, it adopts, usually without attribution, a large number of the political statements, - allegations of fact and conclusions taken directly rom the Defense Department Report. 1 Appendix E of the ICAO Report. References to the Defense De
48、partment Report in this Memorial relate to the page numbers in Appendix E of the ICAO Report. - 10 - 1.06 It is partly for these reasons that the Islamic Republic disagrees with a number of the facts, findings and conclusions set out in the ICAO Report. For clarity of exposition, the Islamic Republi
49、c has set out in detail its differences with the ICAO Report in a separate Appendix at the end of this Memorial. Nevertheless, in the presentation below, the ICAO Report is adopted for reference purposes, as it contains most of the essential facts and is the only independent source presently existin
50、g for such facts. Although it is referred to below in order to minirnize the areas of potential dispute (the United States has not taken issue with any of the conclusions reached therein), where necessary the position of the Islamic Republic on the ICAO Report will be noted. B. The Backqround Facts