Greetings from the Directors 3. Introduction to the International Court of Justice 5. Topic: Iran v USA (Shootdown of Iran Air Flight 655) 8

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2 Table of Contents Greetings from the Directors 3 Introduction to the International Court of Justice 5 Topic: Iran v USA (Shootdown of Iran Air Flight 655) 8 Historical Background 8 Facts of the Case 10 Procedural History 12 Merits of the Case 12 Further Reading and Cases 19

3 Greetings from the Directors Honourable Judges & Distinguished Advocates, Welcome to the 20th edition of LIMUN! It is with great honour and pleasure to welcome you to one of the most interesting and rewarding committees of this year s conference, the International Court of Justice. Christine Deng is going to be the Director of this year s ICJ simulation. She recently graduated from LSE and is currently studying the GDL. She has been actively involved in MUN for 5 years, serving as President of the LSE United Nations Society and delegating and chairing at over 20 conferences from Montreal to Astana. She is fascinated by international criminal law and is excited to work with her fellow chairs to create the best experience for you in the ICJ committee at LIMUN Federica Vitale is going to be the Assistant Director of this year s ICJ simulation. She is a third year Law student currently studying in Scotland with a strong passion for her study sector. She is an active participant of MUNs, where she has been attending as delegate, chair and member of the Secretariat. She considers the ICJ one of her specialising committees since she chaired it three times as President, Vice President and Registrar. She is also founder and president of a MUN-related

4 student society at her University, where she prepares interested students to participate in MUNs. She is also the Student Director at her university s Law Clinic, where she provides free legal advice to members of the public who might not be able to afford a solicitor in Scotland together with a team of law students, volunteers, and professional solicitors. Hew Hoong Liang will be the second Assistant Director of this year s ICJ simulation. He is a third year Law student reading his Final Year of Law at Queen s University Belfast. His point of entry into the ICJ stems from local conferences back home in Malaysia. Emphasizing practicability and transferability of skills as a law student, he has continuously used ICJ councils to gain various soft and hard skills that would help him in other aspects of law. He is also a member of the Law Society at Queen s University. We really hope that you will enjoy these days in London as much as you can, meet new friends and find this year s case really interesting and engaging.

5 Introduction to the International Court of Justice The International Court of Justice (ICJ) is the main judicial organ of the United Nations (UN), seated at the Peace Palace in the Hague (Netherlands). It was established in 1945 and began its activities in April Its role is to settle legal disputes between Member States and give advisory opinions on the legal questions submitted by UN specialised agencies and organs in accordance with International Law. The Court is regulated by the Statute of the International Court of Justice, which forms an integral part of the UN Charter. The main purpose of the ICJ is to settle legal disputes between Member States submitted to court by them. However, Article 36 of the Statute makes the court jurisdiction non-compulsory for Member States. It is only when the Applicant and the Respondent accept the jurisdiction of the court as compulsory ipso facto upon them, that the Court produces legally binding rulings.

6 It is only States that can bring a case before the court (Article 34). In order to do so, States shall notify the Registrar of the ICJ of the special agreement between the parties or by submitting a written application containing the subject of the dispute and the parties (Article 40). The International Court of Justice is composed of fifteen judges elected for a nine-year term by the UN General Assembly and the UN Security Council. These two organs vote simultaneously but separately 1 to obtain an absolute majority of the votes required to elect a judge. For this reason, the voting process can take different rounds in order to be established. The election of the judges takes place in New York City during the annual autumn session of the UN General Assembly. A third of the court s composition is elected for a period of three years in order to ensure its continuity. Triennal elected judges begin their term on February 6th of the following year, 2 after which the courts proceeds to elect its President and Vice President by secret ballot. Articles 16 and 17 of the Statute of the ICJ provide that Judges are elected among persons of high moral character, who possess the qualifications required in their respective countries to hold the highest judicial offices. They are independent as they cannot exercise any political or administrative function or act as agent, counsel or advocate in any case during their term of office. Once the court is formed, it appoints the Registrar who is the head of the Registry, 1 International Court of Justice, Members of the Court accessed at 18 November Ibid.

7 the permanent administrative secretariat of the court. 3 When judges are in the process of being elected, the electors should bear in mind that the representation of the main forms of civilisation and the principal legal systems of the world should be assured (Article 9). It is for these reasons that there cannot be two judges originally from the same country. The Court is presided by the President who attends all the meetings of the court in order to supervise its work. In case of a deadlock during the voting process for the deliberations, the President has a casting vote. When the President is unable to perform his or her duties while holding the office, he or she is replaced by the Vice President. The official languages of the Court are English and French. Should the parties decide to use a different language, the Court delivers its judgement in that chosen language. When the parties do not agree on which of the two official languages to use, the Court delivers its judgement in both languages. 3 International Court of Justice, Registry accessed at 18 November 2018.

8 Figure 1: Shelby Courtland, Shelby Courtland, The US Navy Shot Down A Passenger Plane Killing All 290 On Board, Including 66 children and 16 crew! 2014 Topic: Iran v USA (Shootdown of Iran Air Flight 655) Iran Air Flight 655 was a scheduled passenger flight from Tehran to Dubai with a stopover in Bandar Abbas. On 3 July 1988, the aircraft was flying along its usual route when it was shot down by a surface-to-air missile fired from USS Vincennes, a guided missile cruiser of the US Navy. The aircraft was destroyed and all 290 people 4 on board were killed, including 66 children. Historical Background The shoot down of Iran Air Flight 655 occurred in the context of the Iran-Iraq War. By 1981, both nations began to attack oil tankers and merchant 4 Iran Air Flight 655, Encyclopaedia Britannica, accesed 16 November 2018.

9 shipping, including those of neutral nations, in an effort to deprive the opponent of trade. To maintain access to the region s oil supply and protect interests of friendly states, the US was brought into the war. The US stationed naval forces in the region to protect oil tankers, particularly Kuwaiti oil-tankers that were supplying oil to Iraq, from Iranian attack. Under international law, an attack on such ships were treated as 5 an attack on the US, effectively allowing the US to actively participate in the war. A few months prior to the Flight 655 shootdown, US naval forces exchanged gunfire with Iranian gunboats. Three months prior, US Navy guided-missile frigate USS Samuel B. Robert struck an Iranian sea mine. Two months prior, the US sunk Iranian frigate Sahand. Tensions were very high in the Strait of Hormuz at the time 6 of Flight 655 incident. Early 1984, US gave notice that US naval forces operating in the Persian Gulf would take measures against perceived threats. Aircrafts that flew below 2,000 feet and within 5 nautical miles to US warships had to establish and maintain radio contact with US warships on 121.5MHz (international air distress or IAD) or 243MHz (military air distress or MAD). If their intentions were unclear, aircrafts were at risk 7 of being fired upon. Following the USS Stark incident, the US publicised an International Notice to Airmen (NOTAM) warning on 8 September 1987 to all Persian Gulf countries, that 5 Stephen Andrew Kelly, 2007, Better Lucky than Good: Operation Earnest Will as Gunboat Diplomacy, Web Archive, p 8 6 The Tanker War, US Naval Institute, accessed 16 Nov Report of ICAO Fact-Finding Investigation: Destruction of Iran Air Airbus A300 in the Vicinity of Qeshm Island, Islamic Republic of Iran on 3 July 1988 (Nov. 1988)

10 all aircrafts operating in the Persian Gulf area were advised to monitor the IAD and MAD frequencies and be prepared to identify themselves to US Navy ships and state their intentions. The US NOTAM was widely disseminated through the Federal Aviation Administration as well as through military and civilian channels. However, it was not promoted by the responsible treaty-based international civil aviation 8 authorities. At the end of April 1988, USS Vincennes was rushed to the Persian Gulf on short-notice deployment to compensate for the lack of Airborne Early Warning and Control (AWACS) coverage, which was hampering US monitoring of the southern part of the Persian Gulf. Vincennes was equipped with new Aegis Combat System and was under the command of Captain Rogers. Facts of the Case En route to Dubai, the Airbus A300 had a stopover in Bandar Abbas which served as a base for both Iranian F-14 operations and commercial civilian flights. The aircraft left Bandar Abbas on 3 July at 10:17 Iran Time (UTC+03:30), 27 minutes after its scheduled departure time. The flight was taking a standard route along a commercial air corridor. The airliner was transmitting the correct transponder squawk code typical of a civilian aircraft and maintained radio contact in English with appropriate 9 air traffic control facilities. 8 Ibid. 9 Ibid. p 1-20

11 In the same morning, USS Vincennes was passing through the Strait of Hormuz, when one of its deployed helicopters was reportedly fired upon from Iranian patrol vessels. Vincennes pursued the Iranian vessels into Iranian territorial waters and opened fire. At the same time, Vincennes tried to contact the approaching aircraft, Airbus A300 on the military emergency frequency seven times and on the civilian 10 emergency frequency three times, but never on the air traffic control frequencies. With no response, the crew of the cruiser believed the airliner was an Iranian F-14 Tomcat, which is capable of carrying unguided bombs and flying in an attacking profile. Vincennes then fired two SM-2MR surface-to-air missiles, one of which hit the airliner. The plane immediately disintegrated and crashed into the water. All 290 passengers and crew on board died. Vincennes was in Iranian territorial waters at the 11 time of the incident. The crew of Vincennes only realised it was a civilian airliner after the attack. According to the US government, USS Vincennes mistakenly identified the airliner as an attacking military fighter and misidentified its flight profile as being similar to that of an F-14A Tomcat performing an offensive dive. It was later revealed that the airbus was not equipped to pick up military frequencies and the messages on the civilian emergency channel could have been directed at any aircraft. Also, contrary to the accounts of various Vincennes members, the cruiser s Aegis Combat System recorded that the airliner was climbing at the time and its 10 Ibid. 11 Investigation Report: Formal Investigation into the Circumstances Surrounding the Downing of Iran Air Flight 655 on 3 July 1988, accessed 18 November 2018, 1-5.

12 radio transmitter was squawking on only the Mode III civilian frequency, and not 12 on the military Mode II. Procedural History After the aerial incident, Iran refused a US offer of ex gratia compensation and took the case to the ICJ. Iran submitted its application to institute proceedings against the US on 17 May The US raised preliminary jurisdictional objections on 4 March Subsequently, the US and Iran wrote a letter dated 8 August 1994 informing ICJ that their governments had entered into negotiations that may lead to a full and final settlement of the case and requested the court to postpone the proceedings. A letter dated 22 February 1996 wrote that the US and Iran had agreed to discontinue the case because they had entered into an agreement in full and final 14 settlement. The case was discontinued. Merits of the Case The main questions before the court regard whether the International Civil Aviation Organisation (ICAO) Council erred in its decision of 17 March 1989 on whether there has been a breach of the Chicago and Montreal Conventions from the US and whether compensation for the injuries suffered and financial loss should be granted. 12 Ibid. 13 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), ICJ online, 14 Ibid.

13 In particular, judges should determine whether ICAO was wrong in submitting that the US did not breach the Preamble, Articles l, 2, 3 and 44 (a) and (h) of the 1944 Chicago Convention; Annex 15 of the same Convention and recommendation 2.6/1 of the Third Middle East Regional Air Navigation Meeting of ICAO. The Court should establish whether Articles 1, 3 and 10(1) of the Montreal Convention of 1971 have been breached by the United States of America. Following the destruction of the Iran Air Flight 655 and the killing of 290 civilians on board of this flight for Dubai, the Court will need to consider whether the Islamic Republic of Iran should be compensated for not only its financial loss but also for the bereavement caused to the families of the passengers and crew members. If the Court so decides, it should determine the amount of compensation required from the US to Iran. The Applicant s Position The Islamic Republic of Iran wants the United States of America to be held accountable for the actions taken against a civilian aircraft. Such action should not be regarded as a mere incident but rather as an actual international crime. It was the US itself that, in previous incidents involving the shooting of a civilian aircraft, submitted that such actions do amount to an international crime. For this reason, the same principle should be applied against the respondent. Arguably, the action taken by the US against flight IR655 cannot be considered an incident as sustained by the US. The Report of the ICAO states that on board of the

14 US Vincennes there was a flight schedule of the flights that were scheduled to leave Bandar Abbas across the Persian Gulf early that morning. This means that the Vincennes knew the time of transit of the IR655. In addition, flight IR655 was in contact with other ground stations including the Bandar Abbas tower and in such communications IR655 was specifically mentioned and identified. Such communications were transmitted over open VHF radio frequencies and so the Vincennes could monitor and track the flight. The position of the US in the Persian Gulf was also a provocative one and breached the Iran s sovereignty, since the first did not obtain authorization from the latter to station itself in Iranian waters. The position of the Vincennes outside the applicant s territorial waters could be seen as a way for the US to show its force, since this guided missile cruiser was one of the most technologically advanced ships in the U.S. 15 Navy. The respondent claims that the radar transcripts showed a plane increasing its speed with an attack profile, 16 which cannot be considered true since the altitude of the 17 plane was increasing and its speed was approximately 350 knots. The IR655 was outside of those limits that would require intervention and the respondent did not make any attempt before opening fire to determine the status of the plane. No attempt was shown of firing a warning flare nor was an attempt of interception with the IR 655 taken. 15 Memorial of the Islamic Republic of Iran accessible at ibid., ibid., 62

15 The Respondent s Position The United States of America submits that they cannot be held responsible for the attack of the IR 655 since the reason for the fire was to protect itself against possible attack, 7 and therefore an act of self-defence. According to the respondent, the plane was proceeding at high speed and was recognised as flying outside the air corridor in a straight direction towards the Vincennes. It was for this particular reason that the US thought that the flight was a F-14 military plane. The IR 655 showed also that it changed its position from 9,000 to 7,000 feet and so the US had a reasonable suspicion to believe that Iran was attempting a secret attack over the Vincennes by using a commercial corridor. The same morning, some Iranian boats attacked the respondent s warships and, therefore, it believed that the presence of the plane at that time and on that position was part of the same Iranian mission to attack the US. According to the respondent, the Islamic Republic of Iran failed to comply with the requirement of Article 14 of the Montreal Convention, which requires the parties of a dispute to seek negotiation and arbitration before submitting the dispute before the International Court of Justice. Contrary to what Iran claims, it was the US that engaged with the government of the applicant in order to provide compensation. 18 Regarding the Montreal Convention, the respondent claims that this Convention cannot be applied in relation to the actions taken by a State against civil aircrafts and does not apply when the armed forces of a State are engaged in an armed conflict. The offences that this Convention covers apply to the conduct of individuals and not to the actions of States against a civil aircraft. 18 Ibid., 68

16 The respondent only entered the Iranian territory during the engagement with the small patrol boats. The Vincennes was outside the territorial waters of the applicant. The US claims that it could not have known that Flight 655 was a civilian flight and that it warned the aircraft several times on a VHF frequency before deciding to attack. However, the respondent was not able to listen and communicate with the IR655 flight and, as a result, it thought that an imminent attack was directed towards the Vincennes. Furthermore, the Iranian authorities should have initiated a red alert 19 procedure in order to inform the US of the air traffic control in the Persian Gulf. The respondent claims that the fact that Iran did not initiate such a procedure could only be seen as intentional. The Iranian authorities knew that hostilities were taking place in that area between the parties but failed to prevent the incident. Treaties The Treaties concerning this case are as such but not limited to: Article 1, 2 and 89 of the Convention on International Civil Aviation (Chicago Convention) 1944 Under international law, all States are sovereign. Physically speaking, States should have control over the land and sea within their territory. Article 1 and 2 denote Iran s territorial integrity and State sovereignty over their waters and 19 Preliminary Objections submitted by the United States of America accessible at 37

17 surrounding airspace. Air 655 occurred within Iranian waters. 20 As such, Iran alleges that the shooting down of Iran However, Article 89 nullifies provisions of the Chicago Convention in case of war or a state of national emergency. 21 Hence, the US alleges that the conditions aboard USS Vincennes and the flight data displayed on the Aegis Combat System 22 amounted to war. accompanied with the engagement with Iranian gunboats Annex 15 of the Montreal Convention deals with Aeronautical Information Services. This is crucial as the lack of response towards distress calls made to Iran Air 655 on both military and civilian channel contributed to the shootdown. Article 2(4) and 51 of the Charter of United Nations On the basis of Article 51 of the UN Charter, the US is enacting its right to individual and collective self defence in the case of an armed attack. Therefore, this Court needs to determine the existence of an armed attack: taking into account the reason why the USS Vincennes was deployed in the Persian Gulf and the engagement of battle with the Iranian gunboats. 20 Convention on International Civil Aviation (Chicago Convention) 1944, Article 1 and Ibid, Stephen Engelberg, Michael R. Gordon and Bernard E, Downing of Flight 655: Questions Keep Coming ( New York Times, July accessed 14th November 2018

18 However, Article 2(4) of the Charter prohibits Member States to use force that threaten the territorial integrity of another nation - something that the US has done against Iran. More so, Article 2(4) is accompanied with customary international law that has State Practice (i.e. States practicing a common behaviour) and opinio juris (a legal obligation to carry out said Practice). This is in line with Article 3 Bis of the Montreal Convention. Article 1(1)(b), 3 and 10(1) of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) 1971 Article 1 provides that it is an offense to unlawfully and intentionally destroy an aircraft in service (Iran Air 655) which renders it incapable of flight. 25 The issue here is whether such intention was present in our case, in light of the sequence of events that took place prior to the shootdown. Should a Member State be found to have committed an offense under Article 1, Article 3 will impose a severe penalty on the US, as it is a Contracting State to the Montreal Convention. Article 10(1) requires all Contracting States to take the necessary precaution to prevent the offences stated in Article 1 - something which remains unclear in our situation. 23 Jan Klabbers, International Law (CUP 2017), Memorial of the Islamic Republic of Iran accessible at Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) 1971, Article 1(1).

19 Issues to Discuss The main questions before the Court that will determine its judgement based on the evidence provided by the parties are: Were the crew of USS Vincennes negligent in identifying Iran Air 655 as a potential threat? If so, how were they negligent? Were the crew justified in shooting down Iran Air 655 in an act of self defense? Does the Chicago and Montreal Convention bind the US and the Islamic Republic of Iran? Is the US a party to the Iran-Iraq War? (the war that escalated prior to this conflict) Since the court will rely on evidence presented by both parties, advocates are highly encouraged to submit the relevant pieces of evidence in order to allow the court to decide on the merits of this case. Further Reading and Cases Literature, Academic Articles David, K. Linnan Iran Air Flight 655 and Beyond : Free Passage. Mistaken Self-Defense and State Responsibility, Yale Journal of International Law (Vol.6, No.2) Ghasemi, Shapour Shooting Down Iran Air Air Flight 655, Iran Chamber Society 2004

20 Fogarty, William (Admiral) Formal Investigations into the Circumstances Surrounding the Downing of Iran Air Flight 655 on 3 July 1988 Secretary of Defense August 1988 Recommendation 2.6/1 of the Third Middle East Regional Air Navigation (MID RAN) Meeting ICAO Cases Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of America) accessed 11 Jamuary 2019 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) [1984] ICJ Rep 392 Garcia v United States (1955 Aerial Incident case) 469 US 70 (1984)