COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS AVIS CONSULTATIFS ET ORDONNANCES INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS ADVISORY OPINIONS AND ORDERS INTERNATIONAL COURT OF JUSTICE REPORTS O F JUDGMENTS ADVISORY OPINIONS AND ORDERS CASE CONOERNING UNITED STATES DIPLOMATE AND CONSULAR STAFF IN TEHRAN UNITED STATES OF AMERICA v IRAN JUDGMENT OF 24 MAY 1980 COUR INTERNATIONALE DE JUSTICE iRECUEIL DES ARRÊTS AVIS CONSULTATIFS ET ORDONNANCES AFFAIRE RELATIVE AU PERSONNEL DIPLOMATIQUE ET CONSULAIRE DES ÉTATS-UNIS À TÉHÉRAN ÉTATS-UNIS D'AMÉRIQUE c IRAN ARRÊTDU 24 MAI 1980 Official citation United States Diplomatic and Consular Staff in Tehran Judgment 1 C J Reports 1980 p 3 Mode officiel de citation Personnel diplomatique et consulaire des Etats-Unis à Téhéran arrêt C Z J Recueil 1980 p 3 e sn u No de vente 45 24 MAY 1980 JUDGMENT CASE C0NCE RNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN UNITED STATES OF AMERICA v IRAN AFFAIRE RELATIVE AU PERSONNEL DIPLOMATIQUE ET CONSULAIRE DES ÉTATS-UNISÀ TÉHÉRAN ÉTA'TS-UNISD'AMÉRIQUE C IRAN 24 MAI 1980 ARRET INTERNATIONAL COURT OF JUSTICE 1980 24 May General List No 64 YEAR 1980 24 May 1980 CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN UNITED STATES OF AMERICA v IRAN Article 53 of the Statute - Proof of Facts - Admissibility of Proceedings Existence of wider political dispute no bar to legal proceedings - Security Council proceedings no restriction on functioning of the Court - Fact finding commission established by Secretary -General Jurisdiction of the Court - Optional Protocols to Vienna Conventions of1961 and 1963 on Diplornatic and Consular Relations - 1955 Treav of Amity Economic Relations and Consular Rights U S A Iran - Provisionfor recourse to Court unless parties agree to settlement by some otherpacific means - Right to file unilateral Application - Whether counter-measures a bar to invoking Treaty of Amity State responsibility for violations of Vienna Conventions of 1961 and 1963 on Diplornaticand Consular Relations - Action bypersons not acting on behalf of State - Non-imputability thereofto State - Breach by State ofobligation ofprotection Subsequent decision to maintain situation so created on behalf of State - Use of situation as means of coercion Question of special circumstances as possible justification of conduct of State Remedies provided for by diplomatie law for abuses Cumulative effect of successive breaches of international obligations - Fundamental character of international diplomatic and consular law JUDGMENT Present President Sir Humphrey WALDOCK Vice-President ELIAS Judges FORSTER GROS LACHS MOROZOV NAGENDRASINGH RUDA MOSLER TARAZI ODA AGO EL-ERIAN SETTE-CAMARA BAXTER Registrar AQUARONE In the case concerning United States Diplornatic and Consular Staff in Tehran between the United States of America represented by The Honorable Roberts B Owen Legal Adviser Department of State as Agent H E Mrs Gen Joseph Arnbassador of the United States of Arnerica to the Netherlands as Deputy Agent Mr Stephen M Schwebel Deputy Legal Adviser Departrnent of State as Deputy Agent and Counsel Mr Thomas J Dunnigan Counsellor Embassy of the United States of Arnerica as Deputy Agent assisted by Mr David H Srnall Assistant Legal Adviser Department of State Mr Ted L Stein Attorney-Adviser Department of State Mr Hugh V Simon Jr Second Secretary Ernbassy of the United States of Arnerica as Advisers and the Islamic Republic of Iran composed as above delivers the following Judgment 1 On 29 Novernber 1979 the Legal Adviser of the Department of State of the United States of America handed to the Registrar an Application instituting 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 2 Pursuant to Article 40 paragraph 2 of the Statute and Article 38 paragraph 4 of the Rules of Court the Application was at once cornmunicated to the Govemrnent of Iran In accordance with Article 40 paragraph 3 of the Statute and Article 42 of the Rules of Court the Secretary-General of the United Nations the Mernbers of the United Nations and other States entitled to appear before the Court were notified of the Application 3 On 29 Novernber 1979 the sarne day as the Application was filed the Government of the United States filed in the Registry of the Court a request for the indication of provisional measures under Article 41 of the Statute and Article 73 of the Rules of Court By an Order dated 15 December 1979 and adopted unanimously the Court indicated provisional measures in the case 4 By an Order made by the President of the Court dated 24 December 1979 15 January 1980 was fixed as the time-limit for the filing of the Memorial of the United States and 18 February 1980 as the time-limit for the Counter-Memonal of Iran with liberty for Iran if it appointed an Agent for the purpose of appearing before the Court and presenting its observations on the case to apply for reconsideration of such time-lirnit The Memorial of the United States was filed on 15 January 1980 within the time-limit prescribed and was cornmunicated to the Government of Iran no Counter-Mernorial was filed by the Govemment of Iran nor was any agent appointed or any application made for reconsideration of the time-limit 5 The case thus became ready for hearing on 19 February 1980 the day following the expiration of the time-limit fixed for the Counter-Memonal of Iran In circumstances explained in paragraphs 41 and 42 below and 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 Questions were addressed to the Agent of the United States by Members of the Court both during the course of the hearings and subsequently and replies were given either orally at the hearings or in writing in accordance with Article 61 paragraph 4 of the Rules of Court 6 On 6 December 1979 the Registrar addressed the notifications provided for in Article 63 of the Statute of the Court to the States which according to information supplied by the Secretary-General of the United Nations as depositary 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 7 The Court after ascertaining the views of the Government of the United States on the matter and affording the Government of Iran the opportunity of making its views known decided pursuant to Article 53 paragraph 2 of the Rules of Court that copies of the pleadings and documents annexed should be made accessible to the public with effect from 25 March 1980 8 In the course of the wntten proceedings the following submissions were presented on behalf of the Government of the United States of America in the Application 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 intemational 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 - Articles 4 and 7 of the Convention on the Prevention and Punishment of Crimes against Intemationally 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 imrnediately 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 subrnit 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 endeavouring to exploit as well as in failing to prevent and punish the conduct descnbed 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 Eco- nomic Relations and Consular Rights between the United States of Arnerica and Iran and - Articles 2 4 and 7 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplornatic 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 ii the Governrnent of the Islamic Republic of Iran shall ensure the irnrnediate release without any exception of al1 persons of United States nationality who are or have been held in the Ernbassy of the United States of Arnerica 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 pnvileges and immunities to which they are entitled under the treaties in force between the two States and under general international law including imrnunity 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 diplornatic and consular personnel of the United States the protection privileges and irnmunities to which they are entitled including irnrnunity 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 forrnal or inforrnal initiated by or with the acauiescence of the Iranian Government whether such vroceedings be denominated a 'trial' 'grand jury' 'international commission' or othenvise v the Governrnent of the Islamic Republic of Iran shall submit to its cornpetent authorities for the purpose of prosecution or extradite to the United States those persons responsible for the crimes cornmitted against the personnel and premises of the United States Ernbassy and Consulates in Iran c that the United States of Arnerica is entitled to the payrnent to it in its own right and in the exercise of its right of diplornatic 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 9 At the close of the oral proceedings wntten submissions were filed in the Registry of the Court on behalf of the Govemment of the United States of America in accordance with Article 60 paragraph 2 of the Rules of Court a copy thereof was transrnitted to the Govemment of Iran Those submissions were identical with the submissions presented in the Memorial of the United States 10 No pleadings were filed by the Govemment of Iran which also was not represented at the oral proceedin s and no submissions were therefore presented on its behalf The position of tkat Govemment was however defined in two communications addressed to the Court by the Minister for Foreign Affairs of Iran the first of these was a letter dated 9 December 1979 and transmitted by telegram the same day the text of which was set out in full in the Court's Order of 15 December 1979 I C J Reports 1979 pp 10-11 the second was a letter transmitted by telex dated 16 March 1980 and received on 17 March 1980 the text of which followed closely that of the letter of 9 December 1979 and reads as follows Translation from French 1 have the honour to acknowledge receipt of the telegram conceming the meeting of the International Court of Justice to be held on 17 March 1980 at the request of the Government of the United States of Amenca and to set forth for you below once again the position of the Govemment of the Islamic Republic of Iran in that respect The Govemment of the Islamic Republic of Iran wishes to express its respect for the International Court of Justice and for its distinguished Members for what they have achieved in the quest for a just and equitable solution to legal conflicts between States and respectfully draws the attention of the Court to the deep-rootedness and the essential character of the Islamic Revolution of Iran a revolution of a whole oppressed nation against its oppressors and their masters the examination of whose numerous repercussions is essentially and directly a matter within the national sovereignty of Iran The Government of the Islamic Republic of Iran considers that the Court cannot and should not take cognizance of the case which the Govemment of the United States of America has submitted toit and in the most significant fashion a case confined to what is called the question of the 'hostages of the American Embassy in Tehran' For this question only represents a marginal and secondary aspect of an overall problem one such that it cannot be studied separately and which involves inter alia more than 25 years of continual interference by the United States in the intemal 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 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 Amencan 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 With regard to the request for provisional measures as formulated by the United States it in fact implies that the Court should have passed judgrnent on the actual substance of the case submitted to it which the Court cannot do without breach of the norms governing its jurisdiction Furthermore since provisional measures are by definition intended to protect the interest of the parties they cannot be unilateral as they are in the request submitted by the American Govemment The matters raised in those two communications are considered later in this Judgment paragraphs 33-38 and 81-82 11 The position taken up by the Iranian Government in regard to the present proceedings brings into operation Article 53 of the Statute under which the Court is required inter alia to satisfy itself that the claims of the Applicant are well founded in fact As to this article the Court pointed out in the Corfu Channel case that this requirement is to be understood as applying within certain limits While Article 53 thus obliges the Court to consider the submissions of the Party which appears it does not compel the Court to examine their accuracy in al1 their details for this might in certain unopposed cases prove impossible in practice It is sufficient for the Court to convince itself by such methods as it considers suitable that the submissions are well founded I C J Reports 1949 p 248 In the present case the United States has explained that owing to the events in Iran of which it cornplains it has been unable since then to have access to its diplomatic and consular representatives premises and archives in Iran and that in consequence it has been unable to furnish detailed factual evidence on some matters occumng after 4 November 1979 It mentioned in particular the lack of any factual evidence concerning the treatment and conditions of the persons held hostage in Tehran On this point however without giving the names of the persons concerned it has submitted copies of declarations sworn by six of the 13 hostages who had been released after two weeks of detention and returned to the United States in November 1979 12 The essential facts of the present case are for the most part matters of public knowledge which have received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries They have been presented to the Court by the United States in its Memorial in statements of its Agent and Counsel during the oral proceedings and in written replies to questions put by Members of the Court Annexed or appended to the Memorial are numerous extracts of statements made by Iranian and United States officials either at press conferences or on radio or television and submitted to the Court in support of the request for provisional measures and as a means of demonstrating the truth of the account of the facts stated in the Memorial Included also in the Memorial is a Statement of Venfication made by a high officia1 of the United States Department of State having overall responsibility within the Department for matters relating to the crisis in Iran While emphasizing that in the circumstances of the case the United States has had to rely on newspaper radio and television reports for a number of the facts stated in the Memorial the high officia1 concerned certifies that to the best of his knowledge and belief the facts there stated are true In addition after the filingof the Memorial and by leave of the Court a large quantity of further documents of a similar kind to those already presented were submitted by the United States for the purpose of bringing up to date the Court's information conceming the continuing situation in regard to the occupation of the Embassy and detention of the hostages 13 The result is that the Court has available to it a massive body of information from various sources concerning the facts and circumstances of the present case including numerous officia statements of both Iranian and United States authorities So far as newspaper radio and television reports emanating from Iran are concerned theCourt has necessarily in some cases relied on translations into English supplied by the Applicant The information available however is wholly consistent and concordant as to the main facts and circumstances of the case This information as well as the United States Memorial and the records of the oral proceedings has al1 been communicated bv the Court to the Iranian Government without having evoked from th Government any denial or questioning of the facts alleged before the Court by the United States Accordingly the Court is satisfied that within the meaning of Article 53 of the Statute the allegations of fact on which the United States bases its claims in the present case are well founded 14 Before examining the events of 4 November 1979 directly complained of by the Government of the United States it is appropriate to mention certain other incidents which occurred before that date At about 10 45 a m on 14 February 1979 during the unrest in Iran following the fa11 of the Government of Dr Bakhtiar the last Prime Minister appointed by the Shah an armed group attacked and seized the United States Embassy in Tehran taking prisoner the 70 persons they found there including the Ambassador Two persons associated with the Embassy staff were killed serious damage was caused to the Embassy and there were some acts of pillaging of the Ambassador's residence On this occasion while the Iranian authorities had not been able to prevent the incursion they acted promptly in response to the urgent appeal for assistance made by the Embassy during the attack At about 12 noon Mr Yazdi then a Deputy Prime Minister arrived at the Embassy accompanied by a member of the national police at least one officia1 and a contingent of Revolutionary Guards they quelled the disturbance and returned control of the compound to Amencan diplomatic officials On 11 March 1979 the United States Ambassador received a letter dated 1 March from the Prime Minister Dr Bazargan expressing regrets for the attack on the Embassy stating that arrangements had been made to prevent any repetition of such incidents and indicating readiness to make reparation for the damage Attacks were also made during the same period on the United States Consulates in Tabriz and Shiraz 15 In October 1979 the Govemment of the United States was contemplating perrnitting the former Shah of Iran who was then in Mexico to enter the United States for medical treatment Officiais of the United States Government feared that in the political climate prevailing in Iran the admission of the former Shah might increase the tension already existing between the two States and inter alia result in renewed violence against the United States Embassy in Tehran and it was decided for this reason to request assurances from the Govemment of Iran that adequate protection would be provided On 21 October 1979 at a meeting at whch were present the Iranian Prime M i s t e r Dr Bazargan the Iranian Minister for Foreign Affairs Dr Yazdi and the United States Chargé d'affaires in Tehran the Govemment of Iran was informed of the decision to admit the former Shah to the United States and of the concern felt by the United States Government about the possible public reaction in Tehran When the United States Chargé d'affaires requested assurances that the Embassy and its personnel would be adequately protected assurances were given by the Foreign Minister that the Government of Iran would fulfil its international obligation to protect the Embassy The request for such assurances was repeated at a further meeting the following day 22 October and the Foreign Minister renewed his assurances that protection would be provided The former Shah arrived in the United States on 22 October On 30 October the Govemment of Iran which had repeatedly expressed its serious opposition to the admission of the former Shah to the United States and had asked the United States to permit two Iranian physicians to verify the reality and the nature of his illness requested the United States to bring about his return to Iran Nevertheless on 31 October the Security Officer of the United States Embassy was told by the Commander of the Iranian National Police that the police had been instructed to provide full protection for the personnel of the Embassy 16 On 1 November 1979 while a very large demonstration was being held elsewhere in Tehran large numbers of demonstrators marched to and fro in front of the United States Embassy Under the then existing security arrangements the Iranian authorities normally maintained 10 to 15 uni- formed policemen outside the Embassy compound and a contingent of Revolutionary Guards nearby on this occasion the normal complement of police was stationed outside the compound and the Embassy reported to the State Department that it felt confident that it could get more protection if needed The Chief of Police came to the Embassy personally and met the Chargé d'affaires who informed Washington that the Chief was taking lus job of protecting the Embassy very seriously It was announced on the radio and by the prayer leader at the main demonstration in another location in the city that people should not go to the Embassy During the day the number of demonstrators at the Embassy was around 5 000 but protection was maintained by Iranian security forces That evening as the crowd dispersed both the Iranian Chief of Protocol and the Chief of Police expressed relief to the Chargé d'affaires that everything had gone well 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 prernises were seized as hostages and detained in the Embassy compound subsequently other United States personnel and one United States 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 secu- nty 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 20 The United States diplomatic mission and consular posts in Iran were not the only ones whose premises were subjected to demonstrations during the revolutionary penod in Iran On 5 November 1979 a group invaded the British Embassy in Tehran but was ejected after a brief occupation On 6 November 1979 a brief occupation of the Consulate of Iraq at Kermanshah occurred but was brought to an end on instructions of the Ayatollah Khomeini no damage was done to the Consulate or its contents On 1 January 1980 an attack was made on the Embassy in Tehran of the USSR by a large mob but as a result of the protection given by the Iranian authorities to the Embassy no serious damage was done 21 The premises of the United States Embassy in Tehran have remained in the hands of militants and the same appears to be the case with the Consulates at Tabnz and Shiraz Of the total number of United States citizens seized and held as hostages 13 were released on 18-20 November 1979 but the remainder have continued to be held up to the present time The release of the 13 hostages was effected pursuant to a decree by the Ayatollah Khomeini addressed to the militants dated 17 November 1979 in which he called upon the militants to hand over the blacks and the women if it is proven they did not spy to the Ministry of Foreign Affairs so that they may be immediately expelled from Iran 22 The persons still held hostage in Iran include according to the information furnished to the Court by the United States at least 28 persons having the status duly recognized by the Government of Iran of member of the diplomatic staff within the meaning of the Vienna Convention on Diplomatic Relations of 1961 at least 20 persons having the status similarly recognized of member of the administrative and technical staff within the meaning of that Convention and two other persons of United States nationality not possessing either diplomatic or consular status Of the persons with the status of member of the diplomatic staff four are members of the Consular Section of the Mission 14 DIPLOMATIC AND CONSULAR STAFF JUDGMENT 23 Allegations have been made by the Govemment of the United States of inhumane treatment of hostages the militants and Iranian authorities have asserted that the hostages have been well treated and have allowed special visits to the hostages by religious personalities and by representatives of the International Committee of the Red Cross The specific allegations of ill-treatment have not however been refuted Examples of such allegations whch are mentioned in some of the sworn declarations of hostages released in November 1979 are as follows at the outset of the occupation of the Embassy some were paraded bound and blindfolded before hostile and chanting crowds at least during the initial period of their captivity hostages were kept bound and frequently blindfolded denied mail or any communication with their government or with each other subjected to interrogation threatened with weapons 24 Those archives and documents of the United States Embassy which were not destroyed by the staff during the attack on 4 November have been ransacked by the militants Documents purporting to corne from this source have been disseminated by the militants and by the Govemmentcontrolled media 25 The United States Chargé d'affaires in Tehran and the two other members of the diplomatic staff of the Embassy who were in the premises of the Iranian Ministry of Foreign Affairs at the time of the attack have not left the Ministry since their exact situation there has been the subject of conflicting statements On 7 November 1979 it was stated in an announcement by the Iranian Foreign Ministry that as the protection of foreign nationals is the duty of the Iranian Government the Chargé d'affaires was staying in the Ministry On 1 December 1979 Mr Sadegh Ghotbzadeh who had become Foreign Minister stated that it has been announced that if the U S Embassy's chargé d'affaires and his two companions who have sought asylum in the Iranian Ministry of Foreign Affairs should leave this ministry the ministry would not accept any responsibility for them According to a press report of 4 December the Foreign Minister amplified this statement by saying that as long as they remained in the ministry he was personally responsible for ensuring that nothing happened to them but that as soon as they leave the ministry precincts they will fa11 back into the hands of justice and then 1 will be the first to demand that they be arrested and tried The militants made it clear that they regarded the Chargé and his two colleagues as hostages also When in March 1980 the Public Prosecutor of the Islamic Revolution of Iran called for one of the three diplomats to be handed over to him it was announced by the Foreign Minister that Regarding the fate of the three Americans in the Ministry of Foreign Affairs the decision rests first with the imam of the nation i e the Ayatollah Khomeini in case there is no clear decision by the imam of the nation the Revolution Council will make a decision on this matter 26 From the outset of the attack upon its Embassy in Tehran the United States protested to the Govemment of Iran both at the attack and at the seizure and detention of the hostages On 7 November a former Attorney-General of the United States Mr Ramsey Clark was instructed to go with an assistant to Iran to deiiver a message from the President of the United States to the Ayatollah Khomeini The text of that message has not been made available to the Court by the Applicant but the United States Govemment has informed the Court that it thereby protested at the conduct of the Government of Iran and called for release of the hostages and that Mr Clark was also authorized to discuss al1 avenues for resolution of the crisis While he was en route Tehran radio broadcast a message from the Ayatollah Khomeini dated 7 November solemnly forbidding members of the Revolutionary Council and al1 the responsible officials to meet the United States representatives In that message it was asserted that the U S Embassy in Iran is our enemies' centre of espionage against our sacred Islamic movement and the message continued Should the United States hand over to Iran the deposed shah and give up espionage against our movement the way to talks would be opened on the issue of certain relations which are in the interest of the nation Subsequently despite the efforts of the United Sates Govemment to open negotiations it became clear that the Iranian authorities would have no direct contact with representatives of the United States Govemment concerning the holding of the hostages 27 During the period which has elapsed since the seizure of the Embassy a number of statements have been made by various govemmental authorities in Iran which are relevant to the Court's examination of the responsibiiity attributed to the Government of Iran in the submissions of the United States These statements will be examined by the Court in considering these submissions paragraphs 59 and 70-74 below 28 On 9 November 1979 the Permanent Representative of the United States to the United Nations addressed a letter to the President of the Security Council requesting urgent consideration of what might be done to secure the release of the hostages and to restore the sanctity of diplomatic personnel and establishments The same day the President of the Security Council made a public statement urging the release of the hostages and the President of the General Assembly announced that he was sending a persona1 message to the Ayatollah Khomeini appealing for their 16 DIPLOMATIC AND CONSULAR STAFF JUDGMENT release On 25 November 1979 the Secretary-General of the United Nations addressed a letter to the President of the Security Council referring to the seizure of the United States Embassv in Tehran and the detention of its diplomatic personnel and requesting an urgent meeting of the Security Council in an effort to seek a peaceful solution to the problem The Security Council met on 27 November and 4 December 1979 on the latter occasion no representative of Iran was present but the Council took note of a letter of 13 November 1979 from the Supervisor of the Iranian Foreign Ministry to the Secretary-General The Security Council then adopted resolution 457 1979 caliing on Iran to release the personnel of the Embassy immediately to provide them with protection and to allow them to leave the country The resolution also called on the two Governments to take steps to resolve peacefully the remaining issues between them and requested the Secretary-General to lend his good offices for the immediate implementation of the resolution and to take al1 appropriate measures to that end It further stated that the Council would remain actively seized of the matter and requested the Secretary-General to report to it urgently on any developments with regard to his efforts 29 On 3 1 December 1979 the Security Council met again and adopted resolution 461 1979 in which it reiterated both its calls to the Iranian Government and its request to the Secretary-General to lend his good offices for achieving the object of the Council's resolution The SecretaryGeneral visited Tehran on 1-3 January 1980 and reported to the Security Council on 6 January On 20 February 1980 the Secretary-General announced the setting up of a commission to undertake a fact-finding mission to Iran The Court will revert to the terms of reference of this commission and the progress of its work in connection with a question of adrnissibility of the proceedings paragraphs 39-40 below 30 Prior to the institution of the present proceedings in addition to the approach made by the Government of the United States to the United Nations Security Council that Government also took certain unilateral action in response to the actions for wluch it holds the Government of Iran responsible On 10 November 1979 steps were taken to identify al1 Iranian students in the United States who were not in compliance with the terms of their entry visas and to commence deportation proceedings against those who were in violation of applicable immigration laws and regulations On 12 November 1979 the President of the United States ordered the discontinuation of al1 oil purchases from Iran for delivery to the United States Believing that the Govemment of Iran was about to withdraw al1 Iranian funds from United States banks and to refuse to accept payment in dollars for oil and to repudiate obligations owed to the United States and to United States nationals the President on 14 November 1979 acted to block the very large officia1 Iranian assets in the United States or in United 17 DIPLOMATIC AND CONSULAR STAFF JUDGMENT States control including deposits both in banks in the United States and in foreign branches and subsidiaries of United States banks On 12 December 1979 after the institution of the present proceedings the United States informed the Iranian Chargé d'affaires in Washington that the number of personnel assigned to the Iranian Embassy and consular posts in the United States was to be restricted 31 Subsequently to the indication by the Court of provisional measures and during the present proceedings the United States Government took other action A draft resolution was introduced into the United Nations Security Council calling for economic sanctions against Iran When it was put to the vote on 13 January 1980 the result was 10 votes in favour 2 against and 2 abstentions onemember not having participated in the voting as a permanent member of the Council cast a negative vote the draft resolution was not adopted On 7 April 1980 the United States Government broke off diplomatic relations with the Government of Iran At the same time the United States Government prohibited exports from the United States to Iran - one of the sanctions previously proposed by it to the Security Council Steps were taken to prepare an inventory of the assets of the Government of Iran frozen on 14 November 1979 and to make a census of outstanding claims of American nationals against the Government of Iran with a view to designing a program against Iran for the hostages the hostage families and other U S claimants involving the preparation of legislation to facilitate processing and paying of these claims and al1 visas issued to Iranian citizens for future entry into the United States were cancelled On 17 April 1980 the United States Government announced further economic measures directed against Iran prohibited travel there by United States citizens and made further plans for reparations to be paid to the hostages and their families out of frozen Iranian assets 32 During the night of 24-25 April 1980 the President of the United States set in motion and subsequently terminated for technical reasons an operation withn Iranian temtory designed to effect the rescue of the hostages by United States military units In an announcement made on 25 April President Carter explained that the operation had been planned over a long period as a humanitarian mission to rescue the hostages and had finally been set in motion by him in the belief that the situation in Iran posed mounting dangers to the safety of the hostages and that their early release was highly unlikely He stated that the operation had been under way in Iran when equipment failure compelled its termination and that in the course of the withdrawal of the rescue forces two United States aircraft had collided in a remote desert location in Iran He further stated that preparations for the rescue operations had been ordered for humanitarian reasons to protect the national interests of the United States and to alleviate international tensions At the same time he emphasized that the operation had not been motivated by hostility towards Iran or the Iranian people The texts of President Carter's announcement and of certain other officia1documents relating to the operation have been transmitted to the Court by the United States Agent in response to a request made by the President of the Court on 25 April Amongst these documents is the text of a report made by the United States to the Security Council on 25 April pursuant to Article 51 of the Charter of the United Nations In that report the United States maintained that the mission had been carried out by it in exercise of its inherent right of self-defence with the aim of extricating American nationals who have been and remain the victims of the Iranian armed attack on Our Embassy The Court will refer further to this operation later in the present Judgment paragraphs 93 and 94 below 33 It is to be regretted that the Iranian Government has not appeared before the Court in order to put forward its arguments on the questions of law and of fact which arise in the present case and that in consequence the Court has not had the assistance it might have derived from such arguments or from any evidence adduced in support of them Nevertheless in accordance with its settled jurisprudence the Court in applying Article 53 of its Statute must first take up proprio motu any preliminary question whether of admissibility or of jurisdiction that appears from the information before it to arise in the case and the decision of which might constitute a bar to any further examination of the merits of the Applicant's case The Court will therefore first address itself to the considerations put forward by the Iranian Government in its letters of 9 December 1979 and 16 March 1980 on the basis of which it maintains that the Court ought not to take cognizance of the present case 34 The Iranian Government in its letter of 9 December 1979 drew attention to what it referred to as the deep rootedness and the essential character of the Islarnic Revolution of Iran a revolution of a whole oppressed nation against its oppressors and their masters The examination of the numerous repercussions of the revolution it added is a matter essentially and directly within the national sovereignty of Iran However as the Court pointed out in its Order of 15 December 1979 a dispute whch concems diplomatic and consular premises and the detention of internationally protected persons and involves the interpretation or application of multilateral conventions codifying the international law governing diplomatic and consular relations is one which by its very nature falls within international jurisdiction I C J Reports 1979 p 16 para 25 In its later letter of 16 March 1980 the Govemment of Iran confined itself to repeating the observations on this point which it had made in its letter of 9 December 1979 without putting forward any additional arguments or explanations In these circumstances the Court finds it sufficient here to recall and confirm its previous statement on the matter in its Order of 15 December 1979 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 that the case submitted to the Court by the United States is confined to what is called the question of the 'hostages of the American Embassy in Tehran' It then went on to explain why it considered this to preclude the Court from taking cognizance of the case For this question only represents a marginal and secondary aspect of an overall problem one such that it cannot be studied separately and which 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 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 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 subject-matter of 20 DIPLOMATlC A N D CONSULAR STAFF JUDGMENT 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 defence in a Counter-Memorial or by way of a counter-claim 37 The Iranian Government notwithstanding the terms of the Court's Order did not file any pleadings and did not appear before the Court By its own choice therefore it has forgone the opportunities offered to it under the Statute and Rules of Court to submit evidence and arguments in support of its contention in regard to the overall problem Even in its later letter of 16 March 1980 the Government of Iran confined itself to repeating what it had said in its letter of 9 December 1979 without offering any explanations in regard to the points to which the Court had drawn attention in its Order of 15 December 1979 It has provided no explanation of the reasons why it considers that the violations of diplomatic and consular law alleged in the United States' Application cannot be examined by the Court separately from what it describes as the overall problem involving more than 25 years of continual interference by the United States in the interna1 affairs of Iran Nor has it made any attempt to explain still less define what connection legal or factual there may be between the overall problem of its general grievances against the United States and the particular events that gave rise to the United States' claims in the present case which in its view precludes the separate examination of those claims by the Court This was the more necessary because legal disputes between sovereign States by their very nature are likely to occur in political contexts and often form only one element in a wider and longstanding political dispute between the States concerned Yet never has the view been put forward before that because a legal dispute submitted to the Court is only one aspect of a political dispute the Court should decline to resolve for the parties the legal questions at issue between them Nor can any basis for such a view of the Court's functions or jurisdiction be found in the Charter or the Statute of the Court if the Court were contrary toits settled jurisprudence to adopt such a view it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes 38 It follows that the'considerations and arguments put forward in the Iranian Government's letters of 9 December 1979 and 16 March 1980 do not in the opinion of the Court disclose any ground on which it should conclude that it cannot or ought not to take cognizance of the present case 39 The Court however has also thought it right to examine ex officio whether its competence to decide the present case or the admissibility of the present proceedings rnight possibly have been affected by the setting up of the Commission announced by the Secretary-General of the United 21 DIPLOMATIC A N D CONSULAR STAFF JUDGMENT Nations on 20 February 1980 As already indicated the occupation of the Embassy and detention of its diplomatic and consular staff as hostages was referred to the United Nations Security Council by the United States on 9 November 1979 and by the Secretary-General on 25 November Four days later while the matter was still before the Security Council the United States submitted the present Application to the Court together with a request for the indication of provisional measures On 4 December the Security Council adopted resolution 457 1979 the terms of which have already been indicated in paragraph 28 above whereby the Council would remain actively seized of the matter and the Secretary-General was requested to report to it urgently on developments regarding the efforts he was to make pursuant to the resolution In announcing the setting up of the Commission on 20 February 1980 the Secretary-General stated its terms of reference to be to undertake a fact-finding mission to Iran to hear Iran's gnevances and to allow for an early solution of the crisis between Iran and the United States and he further stated that it was to complete its work as soon as possible and submit its report to him Subsequently in a message cabled to the President of the Court on 15 March 1980 the Secretary-General confirmed the mandate of the Commission to be as stated in his announcement of 20 February adding that the Governments of Iran and the United States had agreed to the establishment of the Commission on that basis In this message the Secretary-General also informed the Court of the decision of the Commission to suspend its activities in Tehran and to return to New York on 1 1 March 1980 to confer with the Secretary-General with a view to pursuing its tasks which it regards as indivisible The message stated that while in the circumstances the Commission was not in a position to submit its report it was prepared to return to Tehran in accordance with its mandate and the instructions of the Secretary-General when the situation required The message further stated that the Secretary-General would continue his efforts as requested by the Security Council to search for a peaceful solution of the crisis and would remain in contact with the parties and the Commission regarding the resumption of its work 40 Consequently there can be no doubt at al1 that the Security Council was actively seized of the matter and that the Secretary-General was under an express mandate from the Council to use his good offices in the matter when on 15 December the Court decided unanimously that it was competent to entertain the United States' request for an indication of provisional measures and proceeded to indicate such measures As already mentioned the Council met again on 31 December 1979 and adopted resolution 46 1 1979 In the preamble to this second resolution the Security Council expressly took into account the Court's Order of 15 December 1979 indicating provisional measures and it does not seem to have occurred to any member of the Council that there was or could be anything irregular in the simultaneous exercise of their respective functions by the Court and the Security Council Nor is there in this any cause for surprise 22 DIPLOMATIC AND CONSULAR STAFF JUDGMENT Whereas Article 12 of the Charter expressly forbids the General Assembly to make any recommendation with regard to a dispute or situation while the Security Coüncil is exercising its functions in respect of that dispute or situation no such restriction is placed on the functioning of the Court by any provision of either the Charter or the Statute of the Court The reasons are clear It is for the Court the principal judicial organ of the United Nations to resolve any legal questions that may be in issue between parties to a dispute and the resolution of such legal questions by the Court may be an important and sometimes decisive factor in promoting the peaceful settlement of the dispute This is indeed recognized by Article 36 of the Charter paragraph 3 of which specifically provides that In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court 41 In the present instance the proceedings before the Court continued in accordance with the Statute and Rules of Court and on 15 January 1980 the United States filed its Memorial The time-limit fixed for delivery of Iran's Counter-Memorial then expired on 18 February 1980 without Iran's having filed a Counter-Memorial or having made a request for the extension of the time-limit Consequently on the following day the case became ready for hearing and pursuant to Article 31 of the Rules the views of the Applicant State were requested regarding the date for the opening of the oral proceedings On 19 February 1980 the Court was informed by the United States Agent that owing to the delicate stage of negotiations bearing upon the release of the hostages in the United States Embassy he would be grateful if the Court for the time being would defer setting a date for the opening of the oral proceedings On the very next day 20 February the Secretary-General announced the establishment of the above-mentioned Commission which commenced its work in Tehran on 23 February Asked on 27 February to clarify the position of the United States in regard to the future procedure the Agent stated that the Commission would not address itself to the claims submitted by the United States to the Court The United States he said continued to be anxious to secure an early judgment on the merits and he suggested 17 March as a convenient date for the opening of the oral proceedings At the same time however he added that consideration of the well-being of the hostages might lead the United States to suggest a later date The Iranian Government was then asked in a telex message of 28 February for any views it might wish to express as to the date for the opening of the hearings mention being made of 17 March as one possible date No reply had been received from the Iranian Government when on 10 March the Cornmission unable to complete its mission decided to suspend its activities in Tehran and to return to New York 42 On 11 March that is immediately upon the departure of the Com- 23 DIPLOMATIC AND CONSULAR STAFF JUDGMENT mission from Tehran the United States notified the Court of its readiness to proceed with the hearings suggesting that they should begin on 17 March A further telex was accordingly sent to the Iranian Government on 12 March informing it of the United States' request and stating that the Court would meet on 17 March to determine the subsequent procedure The Iranian Government's reply was contained in the letter of 16 March to which the Court has already referred paragraph 10 above In that letter while making no mention of the proposed oral proceedings the Iranian Govemment reiterated the reasons advanced in its previous letter of 9 December 1979 for considering that the Court ought not to take cognizance of the case The letter contained no reference to the Commission and still less any suggestion that the continuance of the proceedings before the Court might be affected by the existence of the Commission or the mandategiven to the Secretary-General by the Security Council Having regard to the circumstances which the Court has described it can find no trace of any understanding on the part of either the United States or Iran that the establishment of the Commission might involve a postponement of al1 proceedings before the Court until the conclusion of the work of the Commission and of the Security Council's consideration of the matter 43 The Commission as previously observed was established to undertake a fact-finding mission to Iran to hear Iran's gnevances and to allow for an early solution of the crisis between Iran and the United States emphasis added It was not set up by the Secretary-General as a tribunal empowered to decide the matters of fact or of law in dispute between Iran and the United States nor was its setting up accepted by them on any such basis On the contrary he created the Commission rather as an organ or instrument for mediation conciliation or negotiation to provide a means of easing the situation of crisis existing between the two countries and this clearly was the basis on which Iran and the United States agreed toits being set up The establishment of the Commission by the SecretaryGenerai with the agreement of the two States cannot therefore be considered in itself as in any way incompatible with the continuance of parallel proceedings before the Court Negotiation enquiry mediation conciliation arbitration and judicial settlement are enumerated together in Article 33 of the Charter as means for the peaceful settlement of disputes As was pointed out in the Aegean Sea ContinentalShelfcase thejurisprudence of the Court provides various examples of cases in which negotiations and recourse to judicial settlement by the Court have been pursuedparipassu In that case in which also the dispute had been referred to the Security Council the Court held expressly that the fact that negotiations are being actively pursued during the present proceedings is not legally any obstacle to the exercise by the Court of its judicial function I C J Reports 1978 p 12 para 29 44 It follows that neither the mandate given by the Security Council to the Secretary-General in resolutions 457 and 461 of 1979 nor the setting up of the Commission by the Secretary-General can be considered as constituting any obstacle to the exercise of the Court's jurisdiction in the present case It further follows that the Court must now proceed in accordance with Article 53 paragraph 2 of the Statute to determine whether it has jurisdiction to decide the present case and whether the United States' claims are well founded in fact and in law 45 Article 53 of the Statute requires the Court before deciding in favour of an Applicant's claim to satisfy itself that it has jurisdiction in accordance with Articles 36 and 37 empowering it to do so 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 Diplornatic 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 Secretaty-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 whch 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 46 The terms of Article 1 which are the same in the two Protocols provide Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol The United States' claims here in question concern alleged violations by Iran of its obligations under several articles of the Vienna Conventions of 1961 and 1963 with respect to the privileges and immunities of the per- sonnel the inviolability of the premises and archives and the provision of facilities for the performance of the functions of the United States Embassy and Consulates in Iran In so far as its claims relate to two private individuals held hostage in the Embassy the situation of these individuals falls under the provisions of the Vienna Convention of 1961 guaranteeing the inviolability of the premises of embassies and of Article 5 of the 1963 Convention concerning the consular functions of assisting nationals and protecting and safeguarding their interests By their very nature al1 these claims concern the interpretation or application of one or other of the two Vienna Conventions 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 despatched 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 takingover 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 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 48 Articles II and III of the Protocols it is true provide that within a period of two months after one party has notified its opinion to the other that a dispute exists the parties may agree either a to resort not to the International Court of Justice but to an arbitral tribunal or b to adopt a conciliation procedure before resorting to the International Court of Justice The terms of Articles II and III however when read in conjunction with those of Article 1 and with the Preamble to the Protocols make it crystal clear that they are not to be understood as laying down a precondition of the applicability of the precise and categorical provision contained in Article 1 establishing the compulsory jurisdiction of the Court in respect of disputes arising out of the interpretation or application of the 26 DIPLOMATIC AND CONSULAR STAFF JUDGMENT Viema Convention in question Articles II and III provide only that as a substitute for recourse to the Court the parties may agree upon resort either to arbitration or to conciliation It follows first that Articles II and III have no application unless recourse to arbitration or conciliation has been proposed by one of the parties to the dispute and the other has expressed its readiness to consider the proposal Secondly it follows that only then may the provisions in those articles regarding a two months' period come into play and function as a time-limit upon the conclusion of the agreement as to the organization of the alternative procedure 49 In the present instance neither of the parties to the dispute proposed recourse to either of the two alternatives before the filing of the Application or at any time aftenvards On the contrary the Iranian authorities refused to enter into any discussion of the matter with the United States and this could only be understood by the United States as ruling out in limine any question of arriving at an agreement to resort to arbitration or conciliation under Article II or Article III of the Protocols instead of recourse to the Court Accordingly when the United States filed its Application on 29 November 1979 it was unquestionably free to have recourse to Article 1 of the Protocols and to invoke it as a basis for establishing the Court's jurisdiction with respect to its claims under the Vienna Conventions of 1961 and 1963 50 However 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 Arnity Economic Relations and Consular Rights of 1955 between the United States and Iran which entered into force on 16 June 1957 With regard to these claims the United States has invoked paragraph 2 of Article XXI of the Treaty as the basis for the Court's jurisdiction The claims of the United States under this Treaty overlap in considerable measure with its claims under the two Vienna Conventions and more especially the Convention of 1963 In t h s respect therefore the dispute between the United States and Iran regarding those claims is at the same time a dispute arising out of the interpretation or application of the Vienna Conventions which falls within Article 1 of their Protocols It was for this reason that in its Order of 15 December 1979 indicating provisional measures the Court did not find it necessary to enter into the question whether Article XXI paragraph 2 of the 1955 Treaty might also have provided a basis for the exercise of its jurisdiction in the present case But taking into account that Article II paragraph 4 of the 1955 Treaty provides that nationals of either High Contracting Party shall receive the most constant protection and security within the territories of the other High Contracting Party the Court considers that at the present stage of the proceedings that Treaty has importance in regard to the claims of the United States in respect of the two private individuals said to be held 27 DIPLOMATIC AND CONSULAR STAFF NDGMENT hostage in Iran Accordingly the Court will now consider whether a basis for the exercise of its jurisdiction with respect to the alleged violations of the 1955 Treaty may be found in Article XXI paragraph 2 of the Treaty 5 1 Paragraph 2 of that Article reads Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty not satisfactorily adjusted by diplomacy shall be submitted to the International Court of Justice unless the High Contracting Parties agree to settlement by some other pacific means As previously pointed out when the United States filed its Application on 29 November 1979 its attempts to negotiate with Iran in regard to the overrunning of its Embassy and detention of its nationals as hostages had reached a deadlock owing to the refusal of the Iranian Government to enter into any discussion of the matter ln consequence there existed at that date not only a dispute but beyond any doubt a dispute not satisfactorily adjusted by diplomacy within the meaning of Article XXI paragraph 2 of the 1955 Treaty and t h s dispute comprised inter alia the matters that are the subject of the United States' claims under that Treaty 52 The provision made in the 1955 Treaty for disputes as to its interpretation or application to be referred to the Court is similar to the system adopted in the Optional Protocols to the Vienna Conventions which the Court has already explained Article XXI paragraph 2 of the Treaty establishes the jurisdiction of the Court as compulsory for such disputes unless the parties agree to settlement by some other means In the present instance as in the case of the Optional Protocols the immediate and total refusa1 of the Iranian authorities to enter into any negotiations with the United States excluded in limine any question of an agreement to have recourse to some other pacific means for the settlement of the dispute Consequently under the terms of Article XXI paragraph 2 the United States was free on 29 November 1979 to invoke its provisions for the purpose of referring its claims against Iran under the 1955 Treaty to the Court While that Article does not provide in express terms that either party may bring a case to the Court by unilateral application it is evident as the United States contended in its Memorial that this is what the parties intended Provisions drawn in similar terms are very common in bilateral treaties of arnity or of establishment and the intention of the parties in accepting such clauses is clearly to provide for such a right of unilateral recourse to the Court in the absence of agreement to employ some other pacific means of settlement 53 The point has also been raised whether having regard to certain counter-measures taken by the United States vis-à-vis Iran it is open to the United States to rely on the Treaty of Arnity Economic Relations and Consular Rights in the present proceedings However al1 the measures in question were taken by the United States after the seizure of its Embassy by an armed group and subsequent detention of its diplomatic and consular staff as hostages They were measures taken in response to what the United States believed to be grave and manifest violations of international law by Iran including violations of the 1955 Treaty itself In any event any alleged violation of the Treaty by either party could not have the effect of precluding that party from invoiung the provisions of the Treaty concerning pacific settlement of disputes 54 No suggestion has been made by Iran that the 1955 Treaty was not in force on 4 November 1979when the United States Embassy was overrun and its nationals taken hostage or on 29 November when the United States subrnitted 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 countnes concerned and between their two peoples more especially by mutual undertakings to ensure the protection and secunty of their nationals in each other's terntory 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 55 The United States has further invoked Article 13 of the Convention of 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents as a basis for the exercise of the Court's jurisdiction with respect to its claims under that Convention The Court does not however find it necessary in the present Judgment to enter into the question whether in the particular circumstances of the case Article 13 of that Convention provides a basis for the exercise of the Court's jurisdiction with respect to those claims 56 The principal facts matenal for the Court's decision on the merits of thepresent case have been set out earlier in this Judgment Thosefacts have 29 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 overmnning 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 rnilitary 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 officia1 status as recognized agents or organs of the Iranian 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 inveighng 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 aftenvards 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 toreturn the deposed and criminal shah and to condemn this great plot'' that is a plot to stir up dissension 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 hghly 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 1961 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 62 Thus after solemnly proclaiming the inviolability of the premises of a diplornatic 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 diplornatic 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 h m 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 31 DIPLOMATIC AND CONSULAR STAFF JUDGMENT 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 ben 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 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 prernises 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 territones 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 a were fully aware of their obligations under the conventions in force to take appropriate steps to protect the prernises 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 33 DIPLOMATIC AND CONSULAR STAFF JUDGMENT 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 disposa1 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 disposa1 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 dutybound 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 Embassv and indeed also of the Consulates at Tabriz and Shiraz bv militants came immediately from numerous Iranian authorities includini 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 34 DlPLOMATlC AND CONSULAR STAFF JUDGMENT detention of the Embassy staff as hostages At a reception in Qom on 5 November the Ayatollah Khomeini left his audience in n o doubt as to his approval of the action of the militants in occupying the Embassy to which he said they had resorted because they saw that the shah was allowed in America Saying that he had been informed that the centre occupied by our young m e n has been a lair of espionage and plotting he asked how the young people could be expected simply to remain idle and witness al1 these things Furthermore he expressly stigmatized as rotten roots those in Iran who were hoping we would mediate and tell the young people to leave this place The Ayatollah's refusal to order the young people to put a n end to their occupation of the Embassy or the militants in Tabnz and Shiraz to evacuate the United States Consulates there must have appeared the more significant when on 6 November he instructed the young people who had occupied the Iraqi Consulate in Kermanshah that they should leave it as soon as possible The true significance of this was only reinforced when next day he expressly forbade members of the Revolutionary Council and al1 responsible officials to meet the special representatives sent by President Carter to try and obtain the release of the hostages and evacuation of the Embassy 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 centre of plots and espionage would remain under their occupation and that 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 centre of espionage and conspiracy and that those people who hatched plots against our Islamic movement in that place d o 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 35 DIPLOMATIC AND CONSULAR STAFF JUDGMENT 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 vanous 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 10 that policy also made it 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 Conven- tions 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 prernises 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 1961 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 primanly 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 the Iranian authorities have comrnitted 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 con- tinuation of that situation over a long period has in the circumstances amounted to detention in the Ministry 79 The Court moreover cannot conclude its observations on the series of acts which it has found to be imputable to the Iranian State and to be patently inconsistent with its international obligations under the Vienna Conventions of 1961 and 1963without mention also of another fact This is that 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 3 1 paragraph 1 of the 1961 Vienna Convention This paragraph states in the most express terms A diplomatic agent shall enjoy irnrnunity 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-à-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 fonvard 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 interna1 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 in the Iranian Foreign Minister's letters of 9 December 1979 and 16 March 1980 are of a kind whch 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 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 crirninal 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 whch reference is made to alleged espionage and interference in Iran by the United States centred 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 othenvise 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 interna1 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 prernises 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 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 rnay 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 rnay be 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 ' ersona 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 de- cision 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 disposa1 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 lus 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 tlus principle does not mean - and tlus the Applicant Government expressly acknowledges - that a diplomatic agent caught in the act of comrnitting an assault or other offence may not on 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 didomatic or consular staff in Tehran Dersona non grata The Iranian Government did not therefore employ the remedies placed at its disposa1 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 41 DIPLOMATlC AND CONSULAR STAFF NDGMENT 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 In an address given on 5 November 1979 the Ayatollah Khomeini traced the origin of the operation carried out by the Islamic militants on the previous day to the news of the arriva1 of the former Shah of Iran in the United States That fact may no doubt have been the ultimate catalyst of the resentment felt in certain circles in Iran and among the Iranian population against the former Shah for his alleged misdeeds and also against the United States Government which was being publicly accused of having restored him to the throne of having supported him for many years and of planning to go on doing so But whatever be the truth in regard to those matters they could hardly be considered as having provided ajustification 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 offence 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 refusa1 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 intemal or international law there rnight be in accedine to such a reauest for extradition u 89 c c o r d i n the i 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 cornrnitting 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 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 irnmediate endorsement by those authonties 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 hstory 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 diffenng 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 a period of centuries the maintenance of which is vital for the security and well-being of the complex international comrnunity 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 rnilitary units on 24-25 April 1980 an account of whch has been given earlier in t h s Judgment paragraph 32 No doubt the United States Govemment 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 long-continued 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 concem 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 Govemment'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 presentjudgment 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 beanng on the evaluation of the conduct of the Iranian Government over six months earlier on 4 November 1979 whch 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 THECOURT 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 Sir Hurnphrey Waldock Vice-President Elias Judges Forster Gros Lachs Nagendra Singh Ruda Mosler Oda Ago El-Enan Sette-Camara and Baxter AGAINST Judges Morozov and Tarazi IN FAVOUR President 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 IN FAVOUR President Sir Hurnphrey Waldock Vice-President Elias Judges Forster Gros Lachs Nagendra Singh Ruda Mosler Oda Ago El-Enan Sette-Carnara and Baxter AGAINST Judges Morozov and Tarazi 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 IN FAVOUR President Sir Humphrey Waldock Vice-President Elias Judges Forster Gros Nagendra Singh Ruda Mosler Oda Ago El-Erian SetteCamara and Baxter AGAINST Judges Lachs Morozov and Tarazi 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 I N FAVOUR President Sir Humphrey Waldock Vice-President Elias Judges Forster Gros Lachs Nagendra Singh Ruda Mosler Tarazi Oda Ago El-Erian Sette-Camara and Baxter AGAINST Judge Morozov Done in English and in French the English text being authoritative at the Peace Palace The Hague this twenty-fourth day of May one thousand nine hundred and eighty in three copies one of which will be placed in the archives of the Court and the others transmitted to the Government of the United States of America and the Government of the Islamic Republic of Iran respectively Signed Humphrey WALDOCK President Signed S AQUARONE Registrar Judge LACHS appends a separate opinion to the Judgment of the Court Judges M o o z o vand TARAZIappend dissenting opinions to the Judgment of the Court Initialied H W Initialied S A