The Iranian Hostages Crisis: International Law & United Major James P. Terry, USMC** The 1979 seizure of American diplomatic and military personnel in Iran focused world attention on the unique status and vulnerability of embassy personnel. In this article, Major Terry examines the development of the hostage crisis and the many attempts undertaken to resolve it through existing mechanisms of international law. His examination includes a discussion of historical and political roots underlying the crisis, a critique of the various American responses, an analysis of the central legal and policy issues, and finally a number of observations about American crisis diplomacy in the future. I. HISTORICAL AND POLITICAL BACKGROUND. The November 1979 seizure of 66 American diplomats and Embassy personnel in Tehran1 by militant Iranian students was not without precedent. The rapid support given this takeover by the Islamic Republic of Iran and its leaders, however, added a new and sinister dimension to the scope of state terrorism. The United States responded to Iran's hostage-related claims in a number of ways, including diplomatic and political initiatives, *This article has been adapted from a paper submitted as part of an LL.M. program in International and Comparative Law. The original paper contained a number of useful documentary annexes which, due to space limitations, could not be included with the present article. These documents include the Declaration of the Government of the Democratic and Popular Republic of Algeria; the Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran; Executive Order 12276 through 12285; Executive Order 12294; and the complete series of Treasury regulations regarding Iranian assets restrictions on the property of the former Shah (31 C.F.R. 535 (1981). **Major James P. Terry, USMC, currently is assigned to the Third Marine Division as Judge Advocate. B.A., University of Virginia, 1968; J.D., Mercer University, 1973; M.Ed. in Counselor Education, University of Virginia, 1976; LL.M. and S.J.D. in International Law, George Washington University, 1980 and 1982 respectively. He is admitted to practice before the bar in Georgia and the United States Court of Military Appeals. 1. Thirteen of the original American hostages were released on 20 November 1979-eight Black Americans and five women. Three United States diplomats present at the Iranian Foreign Ministry on 4 November 1979 were subsequently informed that their protection application to international public bodies, economic measures, an aborted attempt at humanitarian intervention, and finally an economic settlement driven by the prospect of a more conservative Reagan administration. Throughout the dispute, both countries attempted to invoke norms of international law as justification for their respective claims and actions. This article examines the juridical aspects of this incident and its impact on customary international law. 3 A. The Pahlavi Regime. Active United States involvement in Iran can be traced to June 1941. After the German invasion of Russia, the Allies saw a need for an overland supply line to the Russian front through Iran.2 Reza Shah, the Shah of Iran who had ascended to power in 1925 by vote of the Majlis (Assembly) and a constitutional amendment, openly opposed the plan. Anglo-Soviet forces, with American support, then occupied Iran. Three months later, in September 1941, Reza Shah abdicated and went into exile on the island of Mauritius. His 21-year-old son, Mohammed Reza Pahlavi, supported by the British forces, then ascended to the throne.1 During the course of the war, British and Soviet occupation forces split the kingdom, with the Soviets controlling the north and the British the south. The British and Soviet occupation nearly destroyed the Pahlavi State. The regime was politically discredited for its failure to resist the two foreign armies of occupation and was also undermined when occupying British forces restored political freedom to opposition parties.5 The Shah reestablished control over the country after the war primarily due to President Truman's determination to prevent a communist takeover in Iran. In his memoirs, Truman wrote that "Russian activities in Iran threatened the peace of the world." He stressed, moreover, that “if the Russians were to control Iran's oil, either directly or indirectly, the raw material balance of the world would undergo serious damage and it would could not be assured should they leave the Foreign Ministry, and they came to be considered hostages as well. 2. F. HALLIDAY, IRAN DICTATORSHIP AND DEVELOPMENT 24 (1979). 3. A. SAIKAL, THE RISE AND FALL OF THE SHAH 25 (1980). Saikal explains that Reza Shah desired to maintain Iranian neutrality and also preserve his friendship with Germany. Prior to World War II, Reza was able to maintain this desired neutrality by playing the traditional rivals, Britain and Russia, against one another. When the need for a common defense against Germany forced the two into an alliance, this was no longer possible. Id. at 25-26. 4. W. FORBIS, FALL OF THE PEACOCK THRONE 50 (1980). Forbis relates that the young monarch had almost no power "and what power he had mattered little either to Iran or to the World." Id. 5. F. HALLIDAY, supra note 2, at 24. Halliday details the restoration of trade unions, free press, and rival political parties which had not been in evidence since the days of the Constitutional Revolution of 1905-1911. While the nation was divided by British and Soviet forces, Tehran was jointly controlled with British officials responsible for administration. Id. at 22-23. be a serious loss for the economy of the Western world."6 Following the withdrawal of Soviet troops, the Roosevelt and Truman administrations provided the assistance necessary for the Shah to crush the communist Tudeh opposition in the Azerbaijan and Kurdistan provinces. The leadership of the newly appointed Premier Ahmad Qavam was equally significant in securing the repudiation of an Irano-Soviet Oil Agreement in October 1947.8 From 1947 to 1951, the leader of the Majlis was Dr. Mohammed Mossadegh. At nearly seventy years of age, Dr. Mossadegh enjoyed support inside and outside the Majlis through a coalition called the National Front.9 The National Front, a loose aggregation of diverse factions, advocated not only Iranian ownership and control over the indigenous oil industry but also an end to British economic control. 10 As leader of the oil protest movement, which sought an end to British ownership of the Anglo-Iranian Oil Company, Mossadegh was elected Prime Minister by the Majlis in 1951 and approved by the Shah in a move to placate the growing mood of nationalism.11 In an attempt to diminish British influence in Iran, Mossadegh immediately sought improved Soviet relations and then took steps to nationalize British petroleum interests. These moves frightened the Shah, who feared the Soviet influence more than the British; they also infuriated then newly-elected President Eisenhower, who was well aware of the recent American financial investment in Iran and who had campaigned on a platform advocating global opposition to communism. 12 Mossadegh appealed directly to President Eisenhower in May 1953 for economic assistance against Iran's "great economic and political difficulties" caused "by the former British company and the British government." Eisenhower refused. Later, he wrote that in the wake of the failure of Iran and of the United Kingdom to reach an agreement with regard to compensation. . . it would not be fair to American taxpayers for the United States Government to extend any considerable amount of economic aid to Iran as long as Iran had access to funds derived 6. 2 H. TRUMAN, MEMOIRS: YEARS OF TRIAL AND HOPE, 1946-1952, at 94-95 (1956). 7. A. SAIKAL, supra note 3, at 35. 8. As a result, Iran became further dependent upon the United States for its protection against any further Soviet reaction. The Majlis, which led the fight against Soviet influence in October 1947, were led by Dr. Mohammed Mossadegh. Dr. Mossadegh later headed up the 1951-1953 reformist government which was considered by the United States as dangerously sympathetic to the Soviets. Id. at 36-38. 9. W. FORBIS, supra note 4, at 56. 10. Id. 11. Id. at 57. 12. A. SAIKAL, supra note 3, at 44. from its own resources. Although Mossadegh was not himself a communist, he was seen as opening the door to communist influence.14 Mossadegh incorrectly believed that the nationalization of the Anglo-Iranian Oil Company would have Western nations begging for Iranian oil. To the contrary, other sources were found and the Iranian economy floundered. 15 In the spring of 1953, Mossadegh sensed that he was losing control and he responded with a crackdown. First he dissolved Parliament, then muzzled the press and finally allied himself with the communist Tudeh Party. 16 Claiming emergency powers, Mossadegh next attempted to usurp the Shah's constitutional position as commander of all Iranian military forces. 17 As a result, the National Front which Mossadegh had so carefully forged from disparate groups began to unravel. Most significantly, the Ayatollah Kashani withdrew his religious contingent to protest Prime Minister Mossadegh's link with the communists.18 It was at this point that the initial American intervention, so strongly decried by the present Iranian leadership, is alleged to have occurred. In August 1953, the Shah unsuccessfully attempted to replace Mossadegh with General Fazlollah Zahedi, an Iranian hero who had been severely wounded while fighting the Russians in Azerbaijan in 1921. When Mossadegh arrested both the emissary who carried the decree which ordered Mossadegh out of office and the senior military officers loyal to the throne, the Shah fled the country.19 Central Intelligence Agency Middle East operations chief Kermit Roosevelt took advantage of the communist Tudeh Party's celebration following the Shah's departure. 20 The swelling Moslem fear that Mossadegh represented communist elements allowed Roosevelt and his agents to organize a massive pro-Pahlavi demonstration on August 19, 1953-a mere four days after Mossadegh's counter-coup.21 This demonstration grew quickly into a massive anti-Mossadegh movement. Gen 13. D. EISENHOWER, MANDATE FOR CHANGE, 1953-1956, at 161-162 (1963). 14. F. HALLIDAY, supra note 2, at 25. 15. A. SAIKAL, supra note 3, at 41. 16. P. AVERY, MODERN IRAN 416 (1965). 17. B. NIRUMAND, IRAN: THE NEW IMPERIALISM IN ACTION 73-86 (1969). See also AVERY, supra note 16, at 420-439 for a discussion of these events. 18. Id. 19. W. FORBIS, supra note 4, at 59. 20. Id. 21. In order to secure a large crowd in the pro-Pahlavi demonstrations, American CIA operative Kermit Roosevelt provided trusted pro-Shah activists with stacks of ten-rial bills (then equivalent to 15 cents). These American bribes were given to anyone who would join the demonstration for the Shah and against Mossadegh. The initial surge provided by these paid demonstrators encouraged the Shah's real partisans, Moslems eral Zahedi's troops easily established order in the Shah's name and Mossadegh was arrested, tried, and imprisoned.2 Although the United States, specifically the Central Intelligence Agency, played an active role in organizing the August 1953 coup that ousted Mossadegh, it is misleading to hold the United States primarily responsible. Reality and present Iranian claims do not exactly correspond. In 1953 Mossadegh was the third largest Iranian landowner with holdings valued at over one hundred million dollars.23 Although he desired economic independence from Great Britain, at the same time he opposed the Shah's proposed land reform program which enjoyed popular support among the lower classes. These factors, together with Iran's sinking economy, figured far more significantly in the coup than did the efforts of the United States. B. Tracing American Involvement. Notwithstanding the allegation of complicity in the overthrow of the Mossadegh regime, the most prominent feature of the Iranian claim is the charge that the United States involved itself in "more than 25 years of continual interference. . . in the internal affairs of Iran, the shameless exploitation of [the] country and numerous crimes perpetrated against the Iranian people, contrary to and in conflict with all international and humanitarian norms."24 The United States' role in Iran after 1953 has a critical bearing on the legal claims asserted by the Iranian Government during the hostage crisis.25 Following the counter-coup in 1953, Mohammed Pahlavi consolidated his power and established a martial law government under General Zahedi. 26 Ongoing opposition from the National Front, the communist Tudeh Party, the clergy, and anti-monarchist tribes in southern Iran left the Shah with little choice but to seek additional American assistance to buffer the disturbed Iranian economy and the weakness of the armed forces.27 The United States responded with a full commitment to the Shah's regime.28 The American purpose was to strengthen its influence in and merchants disillusioned by Mossadegh and traditionalists who had always favored the monarchy. See D. WISE & T. ROSS, THE INVISIBLE GOVERNMENT 110-112 (1964) for a full discussion of these events. 22. W. FORBIS, supra note 4, at 60. 23. Id. 24. Letter from Islamic Republic of Iran (December 9, 1979) to International Court of Justice, quoted in Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 I.C.J. General List No. 64, at 18 [hereinafter cited as United States v. Iran]. 25. United States v. Iran, supra note 24, paras. 80-82, at 35-36. 26. A. SAIKAL, supra note 3, at 47. 27. Id. 28. Id. at 48. |