JUDGMENT
1. On 29 November 1979, United States of America instituted proceedings against the
Islarnic Republic of Iran in respect of a dispute concerning the seizure and holding as
hostages of members of the United States diplomatic and consular staff and certain other
United States nationals in Tehran.
5. After due notice to the Parties, 18 March 1980 was fixed as the date for the opening of
the oral proceedings ; on 18, 19 and 20 March 1980, public hearings were held, in the course
of which the Court heard the oral argument of the Agent and Counsel of the United States ;
the Government of Iran was not represented at the hearings.
6. Both the countries were parties to one or more of the following Conventions and
Protocols
(a) the Vienna Convention on Diplomatic Relations of 1961 ;
(b) the Optional Protocol to that Convention concerning the Compulsory Settlement of
Disputes ;
(c) the Vienna Convention on Consular Relations of 1963 ;
(d) the Optional Protocol to that Convention concerning the Compulsory Settlement
of Disputes ;
(e) the Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, of 1973.
8. In the course of the written proceedings the following Submissions were presented on
behalf of the Government of the United States of America :
“The United States requests the Court to adjudge and declare as follows
(a) That the Government of Iran, in tolerating, encouraging, and failing to prevent and
punish the conduct described in the preceding Statement of Facts, violated its international
legal obligations to the United States as provided by
– Articles 22,24,25,27,29,31,37 and 47 of the Vienna Convention on Diplomatic
Relations,
– Articles 28,31,33,34,36 and 40 of the Vienna Convention on Consular Relations,
190
– Articles 4 and 7 of the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents, and
– Articles II (4), XIII, XVIII and XIX of the Treaty of Amity, Economic Relations, and
Consular Rights between the United States and Iran, and
– Articles 2 (3), 2 (4) and 33 of the Charter of the United Nations ;
(b) That pursuant to the foregoing international legal obligations, the Government of Iran
is under a particular obligation immediately to secure the release of al1 United States
nationals currently being detained within the premises of the United States Embassy in
Tehran and to assure that al1 such persons and al1 other United States nationals in Tehran are
allowed to leave Iran safely ;
(c) That the Government of Iran shall pay to the United States, in its own right and in the
exercise of its right of diplomatic protection of its nationals, reparation for the foregoing
violations of Iran’s international legal obligations to the United States, in a sum to be
determined by the Court ; and
(d) That the Government of Iran submit to its competent authorities for the purpose of
prosecution those persons responsible for the crimes committed against the premises and staff
of the United States Embassy and against the premises of its Consulates” ; in the Memorial :
“The Government of the United States respectfully requests that the Court adjudge and
declare as follows :
(a) that the Government of the Islamic Republic of Iran, in permitting, tolerating,
encouraging, adopting, and endeavoring to exploit, as well as in failing to prevent and punish,
the conduct described in the Statement of the Facts, violated its international legal obligations
to the United States as provided by :
– Articles 22, 24, 25, 26, 27, 29, 31, 37, 44 and 47 of the Vienna Convention on
Diplomatic Relations
– Articles 5, 27, 28, 31, 33, 34, 35, 36, 40 and 72 of the Vienna Convention on Consular
Relations :
– Article II (4), XIII, XVIII and XIX of the Treaty of Amity, Economic Relations, and
Consular Rights between the United States of America and Iran ; and
– Articles 2,4 and 7 of the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents ;
(b) That, pursuant to the foregoing international legal obligations :
(i) The Governrnent of the Islamic Republic of Iran shall immediately ensure that the
premises at the United States Embassy, Chancery and Consulates are restored to the
possession of the United States authorities under their exclusive control, and shall ensure their
inviolability and effective protection as provided for by the treaties in force between the two
States, and by general international law ;
191
(ii) the Governrnent of the Islamic Republic of Iran shall ensure the immediate release,
without any exception, of al1 persons of United States nationality who are or have been held
in the Embassy of the United States of America or in the Ministry of Foreign Affairs in
Tehran, or who are or have been held as hostages elsewhere, and afford full protection to al1
such persons, in accordance with the treaties in force between the two States, and with general
international law ;
(iii) the Governrnent of the Islamic Republic of Iran shall, as from that moment, afford
to al1 the diplomatic and consular personnel of the United States the protection, privileges
and immunities to which they are entitled under the treaties in force between the two States,
and under general international law, including immunity from any form of criminal
jurisdiction and freedom and facilities to leave the territory of Iran ;
(iv) the Governrnent of the Islamic Republic of Iran shall, in affording the diplomatic
and consular personnel of the United States the protection, privileges and immunities to
which they are entitled, including immunity from any form of criminal jurisdiction, ensure
that no such personnel shall be obliged to appear on trial or as a witness, deponent, source of
information, or in any other role, at any proceedings, whether formal or informal, initiated by
or with the acquiescence of the Iranian Government, whether such proceedings be
denominated a ‘trial’, ‘grand jury’, ‘international commission’ or otherwise ;
v) the Governrnent of the Islamic Republic of Iran shall submit to its competent
authorities for the purpose of prosecution, or extradite to the United States, those persons
responsible for the crimes committed against the personnel and premises of the United States
Embassy and Consulates in Iran ;
(c) that the United States of America is entitled to the payment to it, in its own right and
in the exercise of its right of diplomatic protection of its nationals held hostage, of reparation
by the Islarnic Republic of Iran for the violations of the above international legal obligations
which it owes to the United States, in a sum to be determined by the Court at a subsequent
stage of the proceedings.”
17. At approximately 10.30 a.m. on 4 November 1979, during the course of a
demonstration of approximately 3,000 persons, the United States Embassy compound in
Tehran was overrun by a strong armed group of several hundred people. The Iranian security
personnel are reported to have simply disappeared from the scene ; at al1 events it is
established that they made no apparent effort to deter or prevent the demonstrators from
seizing the Embassy’s premises. The invading group (who subsequently described themselves
as “Muslim Student Followers of the Imam’s Policy”, and who will hereafter be referred to as
“the militants”) gained access by force to the compound and to the ground floor of the
Chancery building. Over two hours after the beginning of the attack, and after the militants
had attempted to set fire to the Chancery building and to cut through the upstairs steel doors
with a torch, they gained entry to the upper floor ; one hour later they gained control of the
main vault. The militants also seized the other buildings, including the various residences, on
the Embassy compound. In the course of the attack, al1 the diplomatic and consular personnel
and other persons present in the premises were seized as hostages, and detained in the
Embassy compound ; subsequently other United States personnel and one United States
192
private citizen seized elsewhere in Tehran were brought to the compound and added to the
number of hostages.
18. During the three hours or more of the assault, repeated calls for help were made from
the Embassy to the Iranian Foreign Ministry, and repeated efforts to secure help from the
Iranian authorities were also made through direct discussions by the United States Chargé
d’affaires, who was at the Foreign Ministry at the time, together with two other members of
the mission. From there he made contact with the Prime Minister’s Office and with Foreign
Ministry officials. A request was also made to the Iranian Chargé d’affaires in Washington for
assistance in putting an end to the seizure of the Embassy. Despite these repeated requests, no
Iranian forces were sent in time to provide relief and protection to the Embassy. In fact when
Revolutionary Guards ultimately arrived on the scene, despatched by the Government “to
prevent clashes”, they considered that their task was merely to “protect the safety of both the
hostages and the students”, according to statements subsequently made by the Iranian
Government’s spokesman, and by the operations commander of the Guards. No attempt was
made by the Iranian Government to clear the Embassy premises, to rescue the persons held
hostage, or to persuade the militants to terminate their action against the Embassy.
19. During the morning of 5 November, only hours after the seizure of the Embassy, the
United States Consulates in Tabriz and Shiraz were also seized ; again the Iranian
Government took no protective action. The operation of these Consulates had been suspended
since the attack in February 1979 (paragraph 14 above), and therefore no United States
personnel were seized on these premises..
35. In its letter of 9 December 1979 the Government of Iran maintained that the Court
could not and should not take cognizance of the present case for another reason, namely, The
problem involved in the conflict between Iran and the United States is thus not one of the
interpretation and the application of the treaties upon which the American Application is
based, but results from an overall situation containing much more fundamental and more
complex elements. Consequently, the Court cannot examine the American Application
divorced from its proper context, namely the whole political dossier of the relations between
Iran and the United States over the last 25 years. This dossier includes, inter alia, al1 the
crimes perpetrated in Iran by the American Government, in particular the coup d’état of 1953
stirred up and carried out by the CIA, the overthrow of the lawful national government of Dr.
Mossadegh, the restoration of the Shah and of his régime which was under the control of
American interests, and al1 the social, economic, cultural and political consequences of the
direct interventions in our internal affairs, as well as grave, flagrant and continuous violations
of al1 international norms, committed by the United States in Iran.”
36. The Court, however, in its Order of 15 December 1979, made it clear that the seizure
of the United States Embassy and Consulates and the detention of internationally protected
persons as hostages cannot be considered as something “secondary” or “marginal”, having
regard to the importance of the legal principles involved. It also referred to a statement of the
Secretary-General of the United Nations, and to Security Council resolution 457 (1979), as
evidencing the importance attached by the international community as a whole to the
observance of those principles in the present case as well as its concern at the dangerous level
193
of tension between Iran and the United States. The Court, at the same time, pointed out that
no provision of the Statute or Rules contemplates that the Court should decline to take
cognizance of one aspect of a dispute merely because that dispute has other aspects, however
important. It further underlined that, if the Iranian Government considered the alleged
activities of the United States in Iran legally to have a close connection with the subjectmatter of the United States’ Application, it was open to that Government to present its own
arguments regarding those activities to the Court either by way of defense in a CounterMemorial or by way of a counter-claim.
In the present case the principal claims of the United States relate essentially to alleged
violations by Iran of its obligations to the United States under the Vienna Conventions of
1961 on Diplomatic Relations and of 1963 on Consular Relations. With regard to these claims
the United States has invoked as the basis for the Court’s jurisdiction Article 1 of the Optional
Protocols concerning the Compulsory Settlement of Disputes which accompany these
Conventions. The United Nations publication Multilateral Treaties in respect of which the
Secretary-General Performs Depository Functions lists both Iran and the United States as
parties to the Vienna Conventions of 1961 and 1963, as also to their accompanying Protocols
concerning the Compulsory Settlement of Disputes, and in each case without any reservation
to the instrument in question. The Vienna Conventions, which codify the law of diplomatic
and consular relations, state principles and rules essential for the maintenance of peaceful
relations between States and accepted throughout the world by nations of al1 creeds, cultures
and political complexions. Moreover, the Iranian Government has not maintained in its
communications to the Court that the two Vienna Conventions and Protocols are not in force
as between Iran and the United States. Accordingly, as indicated in the Court’s Order of 15
December 1979, the Optional Protocols manifestly provide a possible basis for the Court’s
jurisdiction, with respect to the United States’ claims under the Vienna Conventions of 1961
and 1963. It only remains, therefore, to consider whether the present dispute in fact falls
within the scope of their provisions.
47. The occupation of the United States Embassy by militants on 4 November 1979 and
the detention of its personnel as hostages was an event of a kind to provoke an immediate
protest from any government, as it did from the United States Government, which dispatched
a special emissary to Iran to deliver a formal protest. Although the special emissary, denied
al1 contact with Iranian officials, never entered Iran, the Iranian Government was left in no
doubt as to the reaction of the United States to the taking over of its Embassy and detention of
its diplomatic and consular staff as hostages. Indeed, the Court was informed that the United
States was meanwhile making its views known to the Iranian Government through its Charge
d’affaires, who has been kept since 4 November 1979 in the Iranian Foreign Ministry itself,
where he happened to be with two other members of his mission during the attack on the
Embassy. In any event, by a letter of 9 November 1979, the United States brought the
situation in regard to its Embassy before the Security Council. The Iranian Government did
not take any part in the debates on the matter in the Council, and it was still refusing to enter
into any discussions on the subject when, on 29 November 1979, the United States filed the
present Application submitting its claims to the Court. It is clear that on that date there existed
194
a dispute arising out of the interpretation or application of the Vienna Conventions and thus
one falling within the scope of Article 1 of the Protocols.
50. The United States also presents claims in respect of alleged violations by Iran of
Articles II, paragraph 4, XIII, XVIII and XIX of the Treaty of Amity, Economic Relations,
and Consular Rights of 1955 between the United States and Iran, which entered into force on
16 June 1957.
54. No suggestion has been made by Iran that the 1955 Treaty was not in force on 4
November 1979 when the United States Embassy was overrun and its nationals taken hostage,
or on 29 November when the United States submitted the dispute to the Court. The very
purpose of a treaty of amity, and indeed of a treaty of establishment, is to promote friendly
relations between the two countries concerned, and between their two peoples, more
especially by mutual undertakings to ensure the protection and security of their nationals in
each other’s territory. It is precisely when difficulties arise that the treaty assumes its greatest
importance, and the whole object of Article XXI, paragraph 2, of the 1955 Treaty was to
establish the means for arriving at a friendly settlement of such difficulties by the Court or by
other peaceful means. It would, therefore, be incompatible with the whole purpose of the
1955 Treaty if recourse to the Court under Article XXI, paragraph 2, were now to be found
not to be open to the parties precisely at the moment when such recourse was most needed.
Furthermore, although the machinery for the effective operation of the 1955 Treaty has, no
doubt, now been impaired by reason of diplomatic relations between the two countries having
been broken off by the United States, its provisions remain part of the corpus of law
applicable between the United States and Iran.
56. The principal facts material for the Court’s decision on the merits of The present case
have been set out earlier in this Judgment. Those facts have to be looked at by the Court from
two points of view. First, it must determine how far, legally, the acts in question may be
regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or
incompatibility with the obligations of Iran under treaties in force or under any other rules of
international law that may be applicable.The events which are the subject of the United States’
claims fa11 into two phases which it will be convenient to examine separately.
57. The first of these phases covers the armed attack on the United States Embassy by
militants on 4 November 1979, the overmining of its premises, the seizure of its inmates as
hostages, the appropriation of its property and archives and the conduct of the Iranian
authorities in the face of those occurrences. The attack and the subsequent overrunning, bit by
bit, of the whole Embassy premises, was an operation which continued over a period of some
three hours without any body of police, any military unit or any Iranian official intervening to
try to stop or impede it from being carried through to its completion. The result of the attack
was considerable damage to the Embassy premises and property, the forcible opening and
seizure of its archives, the confiscation of the archives and other documents found in the
Embassy and, most grave of all, the seizure by force of its diplomatic and consular personnel
as hostages, together with two United States nationals.
58. No suggestion has been made that the militants, when they executed their attack on
the Embassy, had any form of official status as recognized “agents” or organs of the Iranian
195
State. Their conduct in mounting the attack, overrunning the Embassy and seizing its inmates
as hostages cannot, therefore, be regarded as imputable to that State on that basis. Their
conduct might be considered as itself directly imputable to the Iranian State only if it were
established that, in fact. on the occasion in question the militants acted on behalf on the State,
having been charged by some competent organ of the Iranian State to carry out a specific
operation. The information before the Court does not, however, suffice to establish with the
requisite certainty the existence at that time of such a link between the militants and any
competent organ of the State.
59. Previously, it is true, the religious leader of the country, the Ayatollah Khomeini, had
made several public declarations inveighing against the United States as responsible for al1
his country’s problems. In so doing, it would appear, the Ayatollah Khomeini was giving
utterance to the general resentment felt by supporters of the revolution at the admission of the
former Shah to the United States. The information before the Court also indicates that a
spokesman for the militants, in explaining their action afterwards, did expressly refer to a
message issued by the Ayatollah Khomeini, on 1 November 1979. In that message the
Ayatollah Khomeini had declared that it was “up to the dear pupils, students and theological
students to expand with al1 their might their attacks against the United States and Israel, so
they may force the United States to return the deposed and criminal shah, and to condemn this
great plot” (that is, a plot to stir up between the main streams of Islamic thought). In the view
of the Court, however, it would be going too far to interpret such general declarations of the
Ayatollah Khomeini to the people or students of Iran as amounting to an authorization from
the State to undertake the specific operation of invading and seizing the United States
Embassy. To do so would, indeed, conflict with the assertions of the militants themselves who
are reported to have claimed credit for having devised and carried out the plan to occupy the
Embassy. Again, congratulations after the event, such as those reportedly telephoned to the
militants by the Ayatollah Khomeini on the actual evening of the attack, and other subsequent
statements of official approval, though highly significant in another context shortly to be
considered, do not alter the initially independent and unofficial character of the militants’
attack on the Embassy.
60. The first phase, here under examination, of the events complained of also includes
the attacks on the United States Consulates at Tabriz and Shiraz. Like the attack on the
Embassy, they appear to have been executed by militants not having an official character, and
successful because of lack of sufficient protection.
61. The conclusion just reached by the Court, that the initiation of the attack on the
United States Embassy on 4 November 1979, and of the attacks on the Consulates at Tabriz
and Shiraz the following day, cannot be considered as in itself imputable to the Iranian State
does not mean that Iran is, in consequence, free of any responsibility in regard to those attacks
; for its own conduct was in conflict with its international obligations. By a number of
provisions of the Vienna Conventions of 196 1 and 1963, Iran was placed under the most
categorical obligations, as a receiving State, to take appropriate steps to ensure the protection
of the United States Embassy and Consulates, their staffs, their archives, their means of
communication and the freedom of movement of the members of their staffs.
196
62. Thus, after solemnly proclaiming the inviolability of the premises of a diplomatic
mission, Article 22 of the 1961 Convention continues in paragraph 2 :
“The receiving State is under a special duty to take al1 appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity.” (Emphasis added.) So, too, after
proclaiming that the person of a diplomatic agent shall be inviolable, and that he shall not be
liable to any form of arrest or detention,
Article 29 provides :
“The receiving State shall treat him with due respect and shall take al1 appropriate steps
to prevent any attack on his person, freedom or dignity. ” (Emphasis added.)
The obligation of a receiving State to protect the inviolability of the archives and
documents of a diplomatic mission is laid down in Article 24, which specifically provides that
they are to be “inviolable at any time and wherever they may be. Under Article 25 it is
required to “accord full facilities for the performance of the functions of the mission”, under
Article 26 to “ensure to al1 members of the mission freedom of movement and travel in its
territory”, and under Article 27 to “permit and protect free communication on the part of the
mission for al1 official purposes”.
Analogous provisions are to be found in the 1963 Convention regarding the privileges
and immunities of consular missions and their staffs (Art. 3 1, para. 3, Arts. 40,33,28,34 and
35). In the view of the Court, the obligations of the Iranian Government here in question are
not merely contractual obligations established by the Vienna Conventions of 1961 and 1963,
but also obligations under general international law.
63. The facts set out in paragraphs 14 to 27 above establish to the satisfaction of the
Court that on 4 November 1979 the Iranian Government failed altogether to take any
“appropriate steps” to protect the premises, staff and archives of the United States’ mission
against attack by the militants, and to take any steps either to prevent this attack or to stop it
before it reached its completion. They also show that on 5 November 1979 the Iranian
Government similarly failed to take appropriate steps for the protection of the United States
Consulates at Tabriz and Shiraz. In addition they show, in the opinion of the Court, that the
failure of the Iranian Government to take such steps was due to more than mere negligence or
lack of appropriate means.
64. The total inaction of the Iranian authorities on that date in face of urgent and
repeated requests for help contrasts very sharply with its conduct on several other occasions
of a similar kind. Some eight months earlier, on 14 February 1979, the United States Embassy
in Tehran had itself been subjected to the armed attack mentioned above (paragraph 14), in
the course of which the attackers had taken the Ambassador and his staff prisoner. On that
occasion, however, a detachment of Revolutionary Guards, sent by the Government, had
arrived promptly, together with a Deputy Prime Minister, and had quickly succeeded in
freeing the Ambassador and his staff and restoring the Embassy to him. On 1 March 1979,
moreover, the Prime Minister of Iran had sent a letter expressing deep regret at the incident,
giving an assurance that appropriate arrangements had been made to prevent any repetition of
197
such incidents, and indicating the willingness of his Government to indemnify the United
States for the damage. On 1 November 1979, only three days before the events which gave
rise to the present case, the Iranian police intervened quickly and effectively to protect the
United States Embassy when a large crowd of demonstrators spent several hours marching up
and down outside it.
Furthermore, on other occasions in November 1979 and January 1980, invasions or
attempted invasions of other foreign embassies in Tehran were frustrated or speedily
terminated.
65. A similar pattern of facts appears in relation to consulates. In February 1979, at
about the same time as the first attack on the United States Embassy, attacks were made by
demonstrators on its Consulates in Tabriz and Shiraz ; but the Iranian authorities then took the
necessary steps to clear them of the demonstrators. On the other hand, the Iranian authorities
took no action to prevent the attack of 5 November 1979, or to restore the Consulates to the
possession of the United States. In contrast, when on the next day militants invaded the Iraqi
Consulate in Kermanshah, prompt steps were taken by the Iranian authorities to secure their
withdrawal from the Consulate. Thus in this case, the Iranian authorities and police took the
necessary steps to prevent and check the attempted invasion or return the premises to their
rightful owners.
66. As to the actual conduct of the Iranian authorities when faced with the events of 4
November 1979. the information before the Court establishes that, despite assurances
previously given by them to the United States Government and despite repeated and urgent
calls for help, they took no apparent steps either to prevent the militants from invading the
Embassy or to persuade or to compel them to withdraw. Furthermore, after the militants had
forced an entry into the premises of the Embassy, the Iranian authorities made no effort to
compel or even to persuade them to withdraw from the Embassy and to free the diplomatic
and consular staff whom they had made prisoner.
67. This inaction of the Iranian Government by itself constituted clear and serious
violation of Iran’s obligations to the United States under the provisions of Article 22,
paragraph 2, and Articles 24,25,26, 27 and 29 of the 1961 Vienna Convention on Diplomatic
Relations, and Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations.
Similarly, with respect to the attacks on the Consulates at Tabriz and Shiraz, the inaction of
the Iranian authorities entailed clear and serious breaches of its obligations under the
provisions of several further articles of the 1963 Convention on Consular Relations. So far as
concerns the two private United States nationals seized as hostages by the invading militants,
that inaction entailed, albeit incidentally, a breach of its obligations under Article II,
paragraph 4, of the 1955 Treaty of Amity, Economic Relations, and Consular Rights which,
in addition to the obligations of Iran existing under general international law, requires the
parties to ensure “the most constant protection and security” to each other’s nationals in their
respective territories.
68. The Court is therefore led inevitably to conclude, in regard to the first phase of the
events which has so far been considered, that on 4 November 1979 the Iranian authorities :
198
(a) were fully aware of their obligations under the conventions in force to take
appropriate steps to protect the premises of the United States Embassy and its diplomatic and
consular staff from any attack and from any infringement of their inviolability, and to ensure
the security of such other persons as might be present on the said premises ;
(b) were fully aware, as a result of the appeals for help made by the United States
Embassy, of the urgent need for action on their part ;
(c) had the means at their disposal to perform their obligations ;
d) completely failed to comply with these obligations. Similarly, the Court is led to
conclude that the Iranian authorities were equally aware of their obligations to protect the
United States Consulates at Tabriz and Shiraz, and of the need for action on their part, and
similarly failed to use the means which were at their disposal to comply with their
obligations.
69. The second phase of the events which are the subject of the United States’ claims
comprises the whole series of facts which occurred following the completion of the
occupation of the United States Embassy by the militants, and the seizure of the Consulates at
Tabriz and Shiraz. The occupation having taken place and the diplomatic and consular
personnel of the United States’ mission having been taken hostage, the action required of the
Iranian Government by the Vienna Conventions and by general international law was
manifest. Its plain duty was at once to make every effort, and to take every appropriate step,
to bring these flagrant infringements of the inviolability of the premises, archives and
diplomatic and consular staff of the United States Embassy to a speedy end, to restore the
Consulates at Tabriz and Shiraz to United States control, and in general to re-establish the
status quo and to offer reparation for the damage.
70. No such step was, however, taken by the Iranian authorities. At a press conference
on 5 November the Foreign Minister, Mr. Yazdi, conceded that “according to international
regulations the Iranian Government is duty bound to safeguard the life and property of foreign
nationals”. But he made no mention of Iran’s obligation to safeguard the inviolability of
foreign embassies and diplomats ; and he ended by announcing that the action of the students
“enjoys the endorsement and support of the government, because America herself is
responsible for this incident”. As to the Prime Minister, Mr. Bazargan, he does not appear to
have made any statement on the matter before resigning his office on 5 November.
71. In any event expressions of approval of the take-over of the Embassy,.and indeed
also of the Consulates at Tabriz and Shiraz. bv militants came immediately from numerous
Iranian authorities, including religious, judicial, executive, police and broadcasting
authorities. Above all, the Ayatollah Khomeini himself made crystal clear the endorsement by
the State both of the take-over of the Embassy and Consulates and of the detention of the
Embassy staff as hostages.
72. At any rate, thus fortified in their action, the militants at the Embassy at once went
one step farther. On 6 November they proclaimed that the Embassy, which they too referred
to as “the U.S. center of plots and espionage”, would remain under their occupation. and that
199
they were watching “most closely” the members of the diplomatic staff taken hostage whom
they called “U.S. mercenaries and spies”.
73. The seal of official government approval was finally set on this situation by a decree
issued on 17 November 1979 by the Ayatollah Khomeini. His decree began with the assertion
that the American Embassy was “a center of espionage and conspiracy” and that “those
people who hatched plots against our Islamic movement in that place do not enjoy
international diplomatic respect”. He went on expressly to declare that the premises of the
Embassy and the hostages would remain as they were until the United States had handed over
the former Shah for trial and returned his property to Iran. This statement of policy the
Ayatollah qualified only to the extent of requesting the militants holding the hostages to
“hand over the blacks and the women, if it is proven that they did not spy, to the Ministry of
Foreign Affairs so that they may be immediately expelled from Iran”. As to the rest of the
hostages, he made the Iranian Government’s intentions al1 too clear : “The noble Iranian
nation will not give permission for the release of the rest of them. Therefore, the rest of them
will be under arrest until the American Government acts according to the wish of the nation.”
74. The policy thus announced by the Ayatollah Khomeini, of maintaining the
occupation of the Embassy and the detention of its inmates as hostages for the purpose of
exerting pressure on the United States Government was complied with by other Iranian
authorities and endorsed by them repeatedly in statements made in various contexts. The
result of that policy was fundamentally to transform the legal nature of the situation created
by the occupation of the Embassy and the detention of its diplomatic and consular staff as
hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of
the Iranian State, and the
decision to perpetuate them, translated continuing occupation of the Embassy and
detention of the hostages into acts of that State. The militants, authors of the invasion and
jailers of the hostages, had now become agents of the Iranian State for whose acts the State
itself was internationally responsible. On 6 May 1980, the Minister for Foreign Affairs, Mr.
Ghotbzadeh, is reported to have said in a television interview that the occupation of the
United States Embassy had been “done by Our nation”.
Moreover, in the prevailing circumstances the situation of the hostages was aggravated
by the fact that their detention by the militants did not even offer the normal guarantees which
might have been afforded by police and security forces subject to the discipline and the
control of official superiors.
75. During the six months which have elapsed since the situation just described was
created by the decree of the Ayatollah Khomeini, it has undergone no material change. The
Court’s Order of 15 December 1979 indicating provisional measures, which called for the
immediate restoration of the Embassy to the United States and the release of the hostages,
was publicly rejected by the Minister for Foreign Affairs on the following day and has been
ignored by al1 Iranian authorities. On two occasions, namely on 23 February and on 7 April
1980, the Ayatollah Khomeini laid it down that the hostages should remain at the United
States Embassy under the control of the militants until the new Iranian parliament should
have assembled and taken a decision as to their fate. His adherence to that policy also made it
200
impossible to obtain his consent to the transfer of the hostages from the control of the
militants to that of the Government or of the Council of the Revolution. In any event, while
highly desirable from the humanitarian and safety points of view, such a transfer would not
have resulted in any material change in the legal situation, for its sponsors themselves
emphasized that it must not be understood as signifying the release of the hostages.
76. The Iranian authorities’ decision to continue the subjection of the premises of the
United States Embassy to occupation by militants and of the Embassy staff to detention as
hostages, clearly gave rise to repeated and multiple breaches of the applicable provisions of
the Vienna Conventions even more serious than those which arose from their failure to take
any steps to prevent the attacks on the inviolability of these premises and staff.
77. In the first place, these facts constituted breaches additional to those already
committed of paragraph 2 of Article 22 of the 1961 Vienna Convention on Diplomatic
Relations which requires Iran to protect the premises of the mission against any intrusion or
damage and to prevent any disturbance of its peace or impairment of its dignity. Paragraphs 1
and 3 of that Article have also been infringed, and continue to be infringed, since they forbid
agents of a receiving State to enter the premises of a mission without consent or to undertake
any search, requisition, attachment or like measure on the premises. Secondly, they constitute
continuing breaches of Article 29 of the same Convention which forbids any arrest or
detention of a diplomatic agent and any attack on his person, freedom or dignity. Thirdly, the
Iranian authorities are without doubt in continuing breach of the provisions of Articles 25,26
and 27 of the 196 1 Vienna Convention and of pertinent provisions of the 1963 Vienna
Convention concerning facilities for the performance of functions, freedom of movement and
communications for diplomatic and consular staff, as well as of Article 24 of the former
Convention and Article 33 of the latter, which provide for the absolute inviolability of the
archives and documents of diplomatic missions and consulates. This particular violation has
been made manifest to the world by repeated statements by the militants occupying the
Embassy, who claim to be in possession of documents from the archives, and by various
government authorities, purporting to specify the contents thereof. Finally, the continued
detention as hostages of the two private individuals of United States nationality entails a
renewed breach of the obligations of Iran under Article II, paragraph 4, of the 1955 Treaty of
Amity, Economic Relations, and Consular Rights.
78. Inevitably, in considering the compatibility or otherwise of the conduct of the Iranian
authorities with the requirements of the Vienna Conventions, the Court has focussed its
attention primarily on the occupation of the Embassy and the treatment of the United States
diplomatic and consular personnel within the Embassy. It is however evident that the question
of the compatibility of their conduct with the Vienna Conventions also arises in connection
with the treatment of the United States Chargé d’affaires and two members of his staff in the
Ministry of Foreign Affairs on 4 November 1979 and since that date. The facts of this case
establish to the satisfaction of the Court that on 4 November 1979 and thereafter the Iranian
authorities have withheld from the Chargé d’affaires and the two members of his staff the
necessary protection and facilities to permit them to leave the Ministry in safety. Accordingly
it appears to the Court that with respect to these three members of the United States’ mission
201
the Iranian authorities have committed a continuing breach of their obligations under Articles
26 and 29 of the 1961 Vienna Convention on Diplomatic Relations. It further appears to the
Court that the continuation of that situation over a long period has, in the circumstances,
amounted to detention in the Ministry 79.The judicial authorities of the Islamic Republic of
Iran and the Minister for Foreign Affairs have frequently voiced or associated themselves
with, a threat first announced by the militants, of having some of the hostages submitted to
trial before a court or some other body. These threats may at present merely be acts in
contemplation. But the Court considers it necessary here and now to stress that, if the
intention to submit the hostages to any form of criminal trial or investigation were to be put
into effect, that would constitute a grave breach by Iran of its obligations under Article 31,
paragraph 1, of the 196 1 Vienna Convention. This paragraph states in the most express terms
: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State.” Again, if there were an attempt to compel the hostages to bear witness, a suggestion
renewed at the time of the visit to Iran of the Secretary-General’s Commission, Iran would
without question be violating paragraph 2 of that same Article of the 1961 Vienna Convention
which provides that : “A diplomatic agent is not obliged to give evidence as a witness.”
80. The facts of the present case, viewed in the light of the applicable rules of law, thus
speak loudly and clearly of successive and still continuing breaches by Iran of its obligations
to the United States under the Vienna Conventions of 1961 and 1963, as well as under the
Treaty of 1955. Before drawing from this finding the conclusions which flow from it, in terms
of the international responsibility of the Iranian State vis-Ã -vis the United States of America,
the Court considers that it should examine one further point. The Court cannot overlook the
fact that on the Iranian side, in often imprecise terms, the idea has been put forward that the
conduct of the Iranian Government, at the time of the events of 4 November 1979 and
subsequently, might be justified by the existence of special circumstances.
81. In his letters of 9 December 1979 and 16 March 1980, as previously recalled, Iran’s
Minister for Foreign Affairs referred to the present case as only “a marginal and secondary
aspect of an overall problem”. This problem, he maintained, “involves, inter alia, more than
25 years of continual interference by the United States in the internal affairs of Iran, the
shameless exploitation of our country, and numerous crimes perpetrated against the Iranian
people, contrary to and in conflict with al1 international and humanitarian norms”. In the first
of the two letters he indeed singled out amongst the “crimes” which he attributed to the
United States an alleged complicity on the part of the Central Intelligence Agency in the coup
d’état of 1953 and in the restoration of the Shah to the throne of Iran. Invoking these alleged
crimes of the United States, the Iranian Foreign Minister took the position that the United
States’ Application could not be examined by the Court divorced from its proper context,
which he insisted was “the whole political dossier of the relations between Iran and the
United States over the last 25 years”.
82. The Court must however observe, first of all, that the matters alleged the Iranian
Foreign Minister’s letters of 9 December 1979 and 16 March 1980 are of a kind which, if
invoked in legal proceedings, must clearly be established to the satisfaction of the tribunal
with al1 the requisite proof. The Court, in its Order of 15 December 1979, pointed out that if
202
the Iranian Government considered the alleged activities of the United States in Iran legally to
have a close connection with the subject-matter of the Application it was open to Iran to
present its own case regarding those activities to the Court by way of defence to the United
States’ claims. The Iranian Government, however, did not appear before the Court. Moreover,
even in his letter of 16 March 1980, transmitted to the Court some three months after the issue
of that Order, the Iranian Foreign Minister did not furnish the Court with any further
information regarding the alleged criminal activities of the United States in Iran, or explain on
what legal basis he considered these allegations to constitute a relevant answer to the United
States’ claims. The large body of information submitted by the United States itself to the
Court includes, it is true, some statements emanating from Iranian authorities or from the
militants in which reference is made to alleged espionage and interference in Iran by the
United States centered upon its Embassy in Tehran. These statements are, however, of the
same general character as the assertions of alleged criminal activities of the United States
contained in the Foreign Minister’s letters, and are unsupported by evidence furnished by Iran
before the Court. Hence they do not provide a basis on which the Court could form a judicial
opinion on the truth or otherwise of the matters there alleged.
83. In any case, even if the alleged criminal activities of the United States in Iran could
be considered as having been established, the question would remain whether they could be
regarded by the Court as constituting a justification of Iran’s conduct and thus a defence to the
United States’ claims in the present case. The Court, however, is unable to accept that they
can be so regarded. This is because diplomatic law itself provides the necessary means of
defence against, and sanction for, illicit activities by members of diplomatic or consular
missions.
84. The Vienna Conventions of 1961 and 1963 contain express provisions to meet the
case when members of an embassy staff, under the cover of diplomatic privileges and
immunities, engage in such abuses of their functions as espionage or interference in the
internal affairs of the receiving State. It is precisely with the possibility of such abuses in
contemplation that Article 41, paragraph 1, of the Vienna Convention on Diplomatic
Relations, and Article 55, paragraph 1, of the Vienna Convention on Consular Relations,
provide “Without prejudice to their privileges and immunities, it is the duty of al1 persons
enjoying such privileges and immunities to respect the laws and regulations of the receiving
State. They also have a duty not to interfere in the internal affairs of that State.” Paragraph 3
of Article 41 of the 1961 Convention further States : “The premises of the mission must not
be used in any manner incompatible with the functions of the missions . . . “: an analogous
provision, with respect to consular premises is to be found in Article 55, paragraph 2, of the
1963 Convention.
85. Thus, it is for the very purpose of providing a remedy for such possible abuses of
diplomatic functions that Article 9 of the 1961 Convention on Diplomatic Relations stipulates
: “1. The receiving State rnay at any time and without having to explain its decision, notify
the sending State that the head of the mission or any member of the diplomatic staff of the
mission is persona non grata or that any other member of the staff of the mission is not
acceptable. In any such case, the sending State shall, as appropriate, either recall the person
203
concerned or terminate his functions with the mission. A person rnay be declared non grata or
not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its
obligations under paragraph 1 of this Article, the receiving State rnay refuse to recognize the
person concerned as a member of the mission.” The 1963 Convention contains, in Article 23,
paragraphs 1 and 4, analogous provisions in respect of consular officers and consular staff.
Paragraph 1 of Article 9 of the 1961 Convention, and paragraph 4 of Article 23 of the 1963
Convention, take account of the difficulty that may be experienced in practice of proving such
abuses in every case or, indeed, of determining exactly when exercise of the diplomatic
function, expressly recognized in Article 3 (1) (d) of the 196 1 Convention, of “ascertaining
by al1 lawful means conditions and developments in the receiving State” maybe considered as
involving such acts as “espionage” or “interference in internal affairs”. The way in which
Article 9, paragraph 1, takes account of any such difficulty is by providing expressly in its
opening sentence that the receiving State rnay “at any time and without having to explain its
decision” notify the sending State that any particular member of its diplomatic mission is
‘)persona non grata” or “not acceptable” (and similarly Article 23, paragraph 4, of the 1963
Convention provides that “the receiving State is not obliged to give to the sending State
reasons for its decision”). Beyond that remedy for dealing with abuses of the diplomatic
function by individual members of a mission, a receiving State has in its hands a more radical
remedy if abuses of their functions by members of a mission reach serious proportions. This
is the power which every receiving State has, at its own discretion, to break off diplomatic
relations with a sending State and to cal1 for the immediate closure of the offending mission.
86. The rules of diplomatic law, in short, constitute a self-contained régime which, on
the one hand, lays down the receiving State’s obligations regarding the facilities, privileges
and immunities to be accorded to diplomatic missions and, on the other, foresees their
possible abuse by members of the mission and specifies the means at the disposal of the
receiving State to counter any such abuse. These means are, by their nature, entirely
efficacious, for unless the sending State recalls the member of the mission objected to
forthwith, the prospect of the almost immediate loss of his privileges and immunities,
because of the withdrawal by the receiving State of his recognition as a member of the
mission, will in practice compel that
person, in his own interest, to depart at once. But the principle of the inviolability of the
persons of diplomatic agents and the premises of diplomatic missions is one of the very
foundations of this long-established régime, to the evolution of which the traditions of Islam
made a substantial contribution. The fundamental character of the principle of inviolability is,
moreover, strongly underlined by the provisions of Articles 44 and 45 of the Convention of
1961 (cf. also Articles 26 and 27 of the Convention of 1963). Even in the case of armed
conflict or in the case of a breach in diplomatic relations those provisions require that both the
inviolability of the members of a diplomatic mission and of the premises, property and
archives of the mission must be respected by the receiving State. Naturally, the observance of
this principle does not mean – and this the Applicant Government expressly acknowledges –
that a diplomatic agent caught in the act of committing an assault or other offence may not, on
204
occasion, be briefly arrested by the police of the receiving State in order to prevent the
commission of the particular crime. But such eventualities bear no relation at al1 to what
occurred in the present case.
87. In the present case, the Iranian Government did not break off diplomatic relations
with the United States ; and in response to a question put to him by a Member of the Court,
the United States Agent informed the Court that at no time before the events of 4 November
1979 had the Iranian Government declared, or indicated any intention to declare, any member
of the United States diplomatic or consular staff in Tehran persona non grata. The Iranian
Government did not, therefore, employ the remedies placed at its disposal by diplomatic law
specifically for dealing with activities of the kind of which it now complains. Instead, it
allowed a group of militants to attack and occupy the United States Embassy by force, and to
seize the diplomatic and consular staff as hostages ; instead, it has endorsed that action of
those militants and has deliberately maintained their occupation of the Embassy and detention
of its staff as a means of coercing the sending State. It has, at the same time, refused
altogether to discuss this situation with representatives of the United States. The Court,
therefore, can only conclude that Iran did not have recourse to the normal and efficacious
means at its disposal, but resorted to coercive action against the United States Embassy and
its staff.
88.Anything could hardly be considered as having provided a justification for the attack
on the United States Embassy and its diplomatic mission. Whatever extenuation of the
responsibility to be attached to the conduct of the Iranian authorities may be found in the
offense felt by them because of the admission of the Shah to the United States, that feeling of
offence could not affect the imperative character of the legal obligations incumbent upon the
Iranian Government which is not altered by a state of diplomatic tension between the two
countries. Still less could a mere refusal or failure on the part of the United States to extradite
the Shah to Iran be considered to modify the obligations of the Iranian authorities, quite apart
from any legal difficulties, in internal or international law, there might be in acceding to such
a request for extradition.
89. Accordingly the Court finds that no circumstances exist in the present case which
are capable of negativing the fundamentally unlawful character of the conduct pursued by the
Iranian State on 4 November 1979 and thereafter. This finding does not however exclude the
possibility that some of the circumstances alleged, if duly established, may later be found to
have some relevance in determining the consequences of the responsibility incurred by the
Iranian State with respect to that conduct, although they could not be considered to alter its
unlawful character.
90. On the basis of the foregoing detailed examination of the merits of the case, the
Court finds that Iran, by committing successive and continuing breaches of the obligations
laid upon it by the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular
Relations, the Treaty of Amity, Economic Relations, and Consular Rights of 1955, and the
applicable rules of general international law, has incurred responsibility towards the United
States. As to the consequences of this finding, it clearly entails an obligation on the part of the
Iranian State to make reparation for the injury thereby caused to the United States. Since
205
however Iran’s breaches of its obligations are still continuing, the form and amount of such
reparation cannot be determined at the present date.
91. At the same time the Court finds itself obliged to stress the cumulative effect of
Iran’s breaches of its obligations when taken together. A marked escalation of these breaches
can be seen to have occurred in the transition from the failure on the part of the Iranian
authorities to oppose the armed attack by the militants on 4 November 1979 and their seizure
of the Embassy premises and staff, to the almost immediate endorsement by those authorities
of the situation thus created, and then to their maintaining deliberately for many months the
occupation of the Embassy and detention of its staff by a group of armed militants acting on
behalf of the State for the purpose of forcing the United States to bow to certain demands.
Wrongfully to deprive human beings of their freedom and to subject them to physical
constraint in conditions of hardship is in itself manifestly incompatible with the principles of
the Charter of the United Nations, as well as with the fundamental principles enunciated in
the Universal Declaration of Human Rights. But what has above al1 to be emphasized is the
extent and seriousness of the conflict between the conduct of the Iranian State and its
obligations under the whole corpus of the international rules of which diplomatic and consular
law is comprised, rules the fundamental character of which the Court must here again strongly
affirm. In its Order of 15 December 1979, the Court made a point of stressing that the
obligations laid on States by the two Vienna Conventions are of cardinal importance for the
maintenance of good relations between States in the interdependent world of today. “There is
no more fundamental prerequisite for the conduct of relations between States”, the
Court there said, “than the inviolability of diplomatic envoys and embassies, so that
throughout history nations of al1 creeds and cultures have observed reciprocal obligations for
that purpose.” The institution of diplomacy, the Court continued, has proved to be “an
instrument essential for effective Co-operation in the international community, and for
enabling States, irrespective of their differing constitutional and social systems, to achieve
mutual understanding and to resolve their differences by peaceful means” (I. C.J. Reports
1979, p. 19).
92. It is a matter of deep regret that the situation which occasioned those observations
has not been rectified since they were made. Having regard to their importance the Court
considers it essential to reiterate them in the present Judgment. The frequency with which at
the present time the principles of international law governing diplomatic and consular
relations are set at naught by individuals or groups of individuals is already deplorable. But
this case is unique and of very particular gravity because here it is not only private individuals
or groups of individuals that have disregarded and set at naught the inviolability of a foreign
embassy, but the government of the receiving State itself. Therefore in recalling yet again
the extreme importance of the principles of law which it is called upon to apply in the present
case, the Court considers it to be its duty to draw the attention of the entire international
community, of which Iran itself has been a member since time immemorial, to the irreparable
harm that may be caused by events of the kind now before the Court. Such events cannot fail
to undermine the edifice of law carefully constructed by mankind over period of centuries, the
maintenance of which is vital for the security and well-being of the complex international
206
community of the present day, to which it is more essential than ever that the rules developed
to ensure the
ordered progress of relations between its members should be constantly and scrupulously
respected.
93. Before drawing the appropriate conclusions from its findings on the merits in this
case, the Court considers that it cannot let pass without comment the incursion into the
territory of Iran made by United States military units on 24-25 April 1980, an account of
which has been given earlier in ths Judgment (paragraph 32). No doubt the United States
Government may have had understandable preoccupations with respect to the well-being of
its nationals held hostage in its Embassy for over five months. No doubt also the United
States Government may have had understandable feelings of frustration at Iran’s longcontinued detention of the hostages, notwithstanding two resolutions of the Security Council
as well as the Court’s own Order of 15 December 1979 calling expressly for their immediate
release. Nevertheless, in the circumstances of the present proceedings, the Court cannot fail to
express its concern in regard to the United States’ incursion into Iran. When, as previously
recalled, this case had become ready for hearing on 19 February 1980, the United States
Agent requested the Court, owing to the delicate stage of certain negotiations, to defer setting
a date for the hearings. Subsequently, on 11 March, the Agent informed the Court of the
United States Government’s anxiety to obtain an early judgment on the merits of the case. The
hearings were accordingly held on 18, 19 and 20 March, and the Court was in course of
preparing the present judgment adjudicating upon the claims of the United States against Iran
when the operation of 24 April 1980 took place. The Court therefore feels bound to observe
that an operation undertaken in those circumstances, from whatever motive, is of a kind
calculated to undermine respect for the judicial process in international relations ; and to
recall that in paragraph 47, 1 B, of its Order of 15 December 1979 the Court had indicated
that no action was to be taken by either party which might aggravate the tension between the
two countries.
94. At the same time, however, the Court must point out that neither the question of the
legality of the operation of 24 April1980, under the Charter of the United Nations and under
general international law, nor any possible question of responsibility flowing from it, is before
the Court. It must also point out that this question can have no bearing on the evaluation of
the conduct of the Iranian Government over six months earlier, on 4 November 1979, which
is the subject-matter of the United States’ Application. It follows that the findings reached by
the Court in this Judgment are not affected by that operation.
95. For these reasons, THE COURT,
1. By thirteen votes to two, Decides that the Islamic Republic of Iran, by the conduct
which the Court has set out in this Judgment, has violated in several respects, and is still
violating, obligations owed by it to the United States of America under international
conventions in force between the two countries, as well as under long-established rules of
general international law ;
207
2. By thirteen votes to two, Decides that the violations of these obligations engage the
responsibility of the Islamic Republic of Iran towards the United States of America under
international law ;
3. Unanimously, Decides that the Government of the Islamic Republic of Iran must
immediately take al1 steps to redress the situation resulting from the events of 4 November
1979 and what followed from these events, and to that end :
(a) must immediately terminate the unlawful detention of the United States Chargé
d’affaires and other diplomatic and consular staff and other United States nationals now held
hostage in Iran, and must immediately release each and every one and entrust them to the
protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations) ;
(b) must ensure that al1 the said persons have the necessary means of leaving Iranian
territory, including means of transport ;
(c) must immediately place in the hands of the protecting Power the premises, property,
archives and documents of the United States Embassy in Tehran and of its Consulates in Iran
4. Unanimously, Decides that no member of the United States diplomatic or consular
staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate
in them as a witness ;
5. By twelve votes to three, Decides that the Government of the Islamic Republic of Iran
is under an obligation to make reparation to the Government of the United States of America
for the injury caused to the latter by the events of 4 November 1979 and what followed from
these events ;
6. By fourteen votes to one, Decides that the form and amount of such reparation, failing
agreement between the Parties, shall be settled by the Court, and reserves for this purpose the
subsequent procedure in the case.
(Signed) Humphrey WALDOCK, President.
