America. All the problems of the Muslims stem from America. . . ."62 This and similar speeches galvanized the militant factions into action. As one participant in the Embassy takeover rationalized his deeds: The need to do something was felt more than ever, which is quite evident in the speeches of the Imam [Ayatollah Khomeini] in the past week or couple of weeks. The Imam during this period has talked to all those received by him about the problem of America. In his last message on the occasion of 4 November he addressed a message to students and all the strata of people, especially pupils, students and theological students, and asked them to extend and strengthen their attacks against the United States. That was why the Muslim student believers in the way of the Imam decided, with regard to all of the above, to take a revolutionary step in the right channel, that is to say against America and its interests. . . . Thus, the need to do something was felt simultaneously in two universities, and students from several faculties agreed on the plan to occupy the Embassy and take the staff of the Embassy hostage." In May 1980, the International Court of Justice determined that the initial attacks both on the Embassy and on the Consulates at Tabriz and Shiraz could not legally be imputed to the Iranian state,64 even though Khomeini's inflammatory statements created an atmosphere which invited the abuse. The Court did determine, however, that subsequent govern 62. Memorial of the United States on the merits in Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), I.C.J. General List No. 64, at 15 (Memorial presented January 1980) [hereinafter cited as U.S. MEMORIAL]. 63. U.S. MEMORIAL, supra note 62, Appendix C(6) at 196-97. 64. United States v. Iran, supra note 24, para. 61, at 28, wherein the court stated: 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 Consuluates, their staffs, their archives, their means of communication and the freedom of movement of the members of their staffs. ment approval of the militants' acts shifted responsibility to the state itself. 65 One day after the seizure, the Iranian Foreign Minister declared that the "action of the students enjoys the endorsement and support of the government, because America itself is responsible for this incident."66 The Ayatollah Khomeini, in a decree issued two weeks later, claimed that the American Embassy was "a center of espionage and conspiracy," and that "those people who hatched plots against our Islamic movement in that place do not enjoy international diplomatic respect."67 He stressed that the Embassy and the hostages would remain as they were until the United States handed over the Shah for trial and returned his property to Iran. The Ayatollah qualified his statement only so far as to request that the militants "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 immediately be expelled from Iran."68 As to the rest of the hostages, Khomeini made his Government's position all 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."69 Khomeini wielded nearly unfettered power in Iran and refused to admit that international law applied to the American hostage situation. Efforts to secure the early release of the hostages through diplomacy and 65. Id. para. 74, at 32-33, wherein the court stated: The policy thus announced by the Ayatollah Khomeini of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States Government was complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetrate 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. 66. See United States v. Iran, supra note 24, para. 70, at 31. 67. Id. para. 73, at 32. 68. Id. 69. Id. recognized principles of international relations proved to be futile. Many parallels exist between the Shah's leadership in his final year in power and the leadership of the Bani-Sadr /Rajai regime. In both cases, the Government's insecurity vis-a-vis opposing factions led their respective leaders to follow a policy of appeasement rather than risk the opposition of the religious right. The inability of Bani-Sadr to generate support for his presidency among opposition leaders precluded him from challenging the militants and assuming control over the hostages. When in October, 1980, the new Parliament designated Prime Minister Rajai as the individual primarily responsible for the hostage matter, Rajai and his chief negotiator proved no more adept than Bani-Sadr at ending the crisis. D. The Seizure of the American Embassy. The attacks on the United States Embassy in Tehran and the Consulates at Tabriz and Shiraz followed by one week the entrance of the Shah into the United States for medical treatment. On 4 November 1979 approximately 300 demonstrators overran the United States Embassy compound in Tehran.70 The Islamic Government of Iran normally maintained ten to fifteen uniformed policemen outside the Embassy compound as well as a nearby contingent of "Pasdaran" Revolutionary Guards." On the day of the Embassy attack, however, these security personnel made no effort to deter or discourage the demonstrators from seizing the Embassy premises. According to the Washington Star, the security forces simply disappeared from the scene. 72 The invading militants initially seized not only the lower floor of the chancery but also the security officials who had gone out to attempt to negotiate with them. After more than two hours, these invaders succeeded in gaining entry to the upper floor of the chancery and seized the remaining personnel, with the exception of eleven American staff members who held out in the main vault for one further hour.73 Despite repeated calls for help from the Embassy to the Iranian Foreign Ministry, no Iranian security forces were sent to protect the Americans during this three-hour assault.74 No attempt was made by the Iranian Government to clear the Embassy premises, to rescue the personnel held hostages, or to persuade the invaders and demonstrators to terminate their 70. Washington Star, Nov. 10, 1979, at A-7, col. 1. action against the Embassy.75 In fact, one Iranian spokesman, in an interview the following day, stated that Revolutionary Guards had been sent to the Embassy following the appeal for help, but not to secure the release of the hostages and premises from the invaders. According to a Government statement of 5 November 1979: [Y]esterday the American Embassy Chargé d'Affaires immediately contacted the Foreign Ministry and stated he lacked security and that he would need protection. So, on orders of the government, the Revolutionary Guards entered to prevent clashes there. Last night the brothers who are occupying the Embassy thanked the guards for their presence and for maintaining security there.7 On the same morning that this official statement was made, militant students seized the American Consulates in Tabriz and Shiraz; once again the Iranian Government took no protective action.77 The failure of the Government of Iran on 4 and 5 November to protect the American diplomatic premises and its complicity in the attack-from the moment Revolutionary Guards were sent to assist the militants directly violated the earlier assurances of that Government to the United States.78 During an earlier attack on the Embassy in February, 1979, the Govern 75. Id. at 14. 76. Telephone interview with Sadeq Tabatabai, Nov. 5, 1979 as reported in Foreign Broadcast Information Service (FBIS), Daily Report, Nov. 6, 1979, at R14, R16. In an interview published Dec. 1, 1979, in Beirut, Lebanon, the Revolutionary Guards operations commander, asked about the role of the Guards in the occupation of the United States Embassy, replied: As a matter of fact, we played no role in the occupation of the Embassy, which was Interview with Abu Shasrif, undated, AS-SAFIR (Beirut), Dec. 1, 1979, as reported in 77. Operations at these consular posts had been suspended as a result of the attacks in February, 1979, and no United States personnel were at these posts when the November 5, 1979 attacks occurred. See Response by the United States, Dec. 11, 1979, to a question presented by the International Court of Justice on Dec. 10, 1979, reprinted in U.S. MEMORIAL, supra note 62, at Selected Documents, No. 2. 78. In its Memorial, the United States detailed the assurances given on Nov. 1, 1979, three days prior to the seizure: In the early morning of 1 November, in anticipation of a demonstration in the vicinity of the United States Embassy, the Embassy reported to the State Department that the normal complement of police was outside the compound and that the Embassy felt confident that it could get more protection if needed. Thirty minutes later Chargé Laingen reported that several hundred demonstrators were marching back and forth in front of the Embassy, but that the police detachment had been ment of Iran had acted quickly and efficiently to remove the insurgents. 79 Later, Prime Minister Bazargan sent a letter to the Embassy expressing deep regret for the February incident, indicating Iran's readiness to indemnify the United States for the damage caused to its premises "by anti-revolutionary elements" and conveying assurances that the Government had “made arrangements to prevent the repetition of such incidents." "80 On at least two other occasions prior to the November seizure, Chargé d'Affaires Laingen discussed the security situation with Iranian Foreign Minister Yazdi, who repeated a pledge that Iran would fulfill its international obligation to protect the United States Embassy.81 Following the November takeover, 66 captured Americans were subjected to a harrowing ordeal in their various "prisons." At the outset, some were paraded blindfolded with hands bound before hostile and jeering crowds.82 For much of their captivity the hostages were bound and frequently blindfolded; forced to remain silent for extended periods of time; denied mail; denied the right to communicate with each other; subjected to interrogation; threatened with criminal trials; and threatened with death in the event of an American rescue attempt. Some were also physically abused and threatened directly with weapons.83 All contact between the hostages and the United States Government, even by telephone, was strengthened, providing ‘more than enough for now.' The Chief of Police came to the Embassy personally and met with Mr. Laingen, who informed Washington that the Chief was 'taking his job of protecting the Embassy very seriously.' Mr. Laingen reported that the prayer leader at the main demonstration in another location in the city, the Ayatollah Montazeri, had repeated an announcement on the radio that the people should not go to the Embassy. The number of demonstrators at the Embassy varied during the day, up to 5,000 or more, but protection was maintained by Iranian security forces. That evening, as the crowd dispersed, both the Chief and Protocol and the Chief of Police expressed relief to Chargé Laingen that everything had gone well. U.S. MEMORIAL, supra note 62, at 15. 79. President Waldock addressed this and later attacks in para. 14-16, and 64. United States v. Iran, supra note 24, at 9-10, 29. 80. See response of the United States, Dec. 12, 1979, to a question asked by Judge Gros on Dec. 11, 1979, during oral argument of U.S. request for interim measure. U.S. MEMORIAL, supra note 62, at 246. 81. Id. at 15 n. 3. 82. McHenry, statement to U.N. on Iran, U.S. DEP'T OF STATE, CUR. POL. No. 116 (Dec. 1, 1979), at 1. 83. Id. See also Washington Post, Jan. 25, 1981, at A21 (former hostage Malcolm Kolp reported being held in solitary confinement for 374 of the 444 days and other physical abuses). |