Countermeasures and Reprisals in Naval and Land Engagements

26 February, 2021

RAUSI takes note of the recent 25 February 2021 article in the New York Times by Helene Cooper and Eric Schmitt, headlined U.S. Airstrikes in Syria Target Iran-Backed Militias That Rocketed American Troops in Iraq. The introductory paragraph cites “President Biden ordered retaliatory strikes against the militias whose attacks in Erbil this month killed one civilian contractor and wounded a U.S. service member. ‘The airstrikes authorized by President Biden were meant to punish the perpetrators of the rocket attack but not to escalate hostilities with Iran,’ the Pentagon said.” The article raises the interesting issue of distinguishing reprisals from countermeasures.

Use of force to retaliate, to punish or to serve as revenge, also known as reprisals, is an unlawful use of force under international treaty and customary law. UN Charter Articles 2(4) and 51 prohibit use of force except in self-defense. Further, the Charter is declaratory of customary international law in this regard.

Less clear are legal issues concerning countermeasures, which are measures taken by a victim state to restore the status quo following a previously unlawful act by an aggressor state against the victim state. Countermeasures must be taken out of necessity and be proportionate and intended to restore lawfulness to the international order. Further, countermeasures “would be essentially illegal if not for the fundamental prerequisite of the “objective” existence of a prior wrongful act committed by the state against which the countermeasures are adopted.”¹

Determining the content and effect of countermeasures raises contentious issues.

1. Countermeasures must remain proportionate to the aggressor state’s initiating act. However, proportionality of countermeasures undertaken does not assure the status quo will be restored. Countermeasure is input whereas its effect is output, and each is gauged with a different index.
2. Further, the victim state may be less resourced than the aggressor, precluding meaningful countermeasure.
3. Moreover, in trade disputes, the character of initial and the restored status quos and countermeasures may lend themselves to quantitative measurement. However, in matters of armed conflict, the determination of status quo and countermeasure may be more a matter of subjective judgment and hence arbitrary.
4. Lastly, the form that countermeasures take is not settled among all states. Some states may practice a pragmatic interpretation of international law that enables those states to employ forceful countermeasures, in which situations the state does not interpret the force it deploys as sufficient in gravity or effect to amount to a breach of Article 2(4). These invoke the principle of the non-use of force.

A series of events during the Iran-Iraq War (1980-1987) may inform this issue.

1. At the request of Kuwait, the US undertook OPERATION EARNEST WILL from 24 July 1987 to 26 September 1988. The US deployed naval forces to escort convoys of Kuwaiti tankers in international waters of the Persian Gulf and thereby sustain security of supply of Kuwait’s product to Kuwaiti export markets. An initial phase of this operation included the reflagging of 11 tankers from Kuwait-flagged to US flagged vessels, including the MV Sea Isle City.²
2. On 17 October 1987, Iran deployed a Silkworm Missile, perhaps an HY-1 variant, against the MV Sea Isle City. The surface-skimming missile, with a 50-nautical mile range and a 1,100-pound warhead, was fired from the Al-Faw Peninsula, i.e., Iraqi territory that Iran had captured 09 February 1986. The missile’s target was anchored five miles (4.3 nautical miles (NM)) from the Kuwaiti port of Ash Shu-aybah,³ alternatively ten miles (8.6 NM) south of the Kuwaiti port of Mina al-Ahmahdi,⁴ and hence within 12 NM of Kuwaiti’s baseline.
3.  On 19 October 1987, under Operation NIMBLE ARCHER, three US destroyers, USS Leftwich, Kidd and John Young and a guided missile destroyer, USS Hoel, supported by two US cruisers and F-14 aircraft, attacked two oil platforms in Iran’s Reshadat Reshadat is located 110 km south-south west of the refinery and terminal complex on Lavan Island, and east of Qatar. The platforms had been damaged a year earlier by Iraq and were not producing oil but were alleged employed by Iranian armed forces for command-and-control purposes.
4. On 04 April 1988, the guided missile frigate USS Samuel B Roberts struck an Iranian mine while sailing in the Persian Gulf, whose log cited the mine strike at “…26 degrees, 22.5 minutes North; 52 degrees, 18.4 minutes East—midway between Qatar and Iran.”
5. The US responded under OPERATION PREYING MANTIS,⁵ whose assets, including inter alia an aircraft carrier, 4 frigates and a guided missile cruiser. On 18 April 1988, the US damaged an oil platform in the Sassan oil field that allegedly was also employed by Iranian armed forces for command-and-control purposes. Sassan is located on the edge of Iran's southern border in the Persian Gulf and neighbours the Sirri oil field. In the subsequent fire fight, an Iranian F-4 fighter, the frigate Sabalan and smaller naval craft were damaged.

On 02 November 1992, Iran filed an Application with the International Court of justice instituting proceedings against the United States of America with respect to the destruction of Iranian oil platforms. Iran did so on the grounds that the US breached the Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States (1955), not on grounds that the US had deployed an unlawful use of force or had employed countermeasures that were disproportionate.⁷ The US did not initiate legal proceedings against Iran despite Iran’s being the first to deploy armed force. Proceedings are cited as the Oil Platforms case.⁸

Irrespective, the US’ “… limited armed action …were officially conducted in riposte to what the US considered to be Iranian attacks against certain neutral vessels [viz, MV Sea Isle City] moored in the Gulf. It might have been expected, in such a situation, that the US would invoke the doctrine of countermeasures.”⁹ However, the US interpreted Iran’s use of force as an armed attack per Art 51 and hence sufficient to justify US’ subsequent use of force as a lawful measure in self-defense. This suggests that the US may invoke a low threshold as to what constitutes an armed attack under Art 51, and thereby lawfully enable it to employ a wider range of responses thereto. On the other hand, the US may adopt this modality of treaty interpretation but at the risk of breaching two of the four principles in the law of international armed conflict, viz., necessity and proportionality, also subject to US’ interpretation. On the other hand, Iran interpreted the US’ use of force in its attacks as not being sufficient in scale and gravity to constitute an armed attack against Iran as construed by Art 51. Rather, Iran initiated its proceedings as a breach of a 1955 treaty.

In sum, uncertainty and ambiguity surrounding the legal doctrine of countermeasure and the supremacy of sovereigns in state practice make it difficult to assess the lawfulness of a particular use of force. While journalism understandably faces limitation in space and the need for efficient writing, greater attention to precision and legal terminology will more effectively inform the public on issues in international law.

LJ Howard

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[1] Joaquín Alcaide Fernández, Countermeasures (Oxford Bibliographies 2017) https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0072.xml

[2] Richard Pyle, U.S. Flags Go Up On Reflagged Kuwaiti Tankers, Associated Press News 24 July 1987, https://www.apnews.com/a71990e65bdbbf6af81f2a7f89b959e2; the Baltic Shipping Database does not cite a date of reflagging MV Sea Isle City, https://www.balticshipping.com/vessel/imo/9568495 whereas Shipspotting cites the year of reflagging as 1988 (likely incorrectly),  http://www.shipspotting.com/gallery/photo.php?lid=999144 accessed 06 October 2019.

[3] John Kifner, U.S. Flag Tanker Struck by Missile in Kuwaiti  Water; First Direct Raid (New York Times 17 October 1987), https://www.nytimes.com/1987/10/17/world/us-flag-tanker-struck-by-missile-in-kuwaiti-waters-first-direct-raid.html accessed 02 October 2019.

[4] Supra n 13 O’Rourke.

[5] J B Perkins, The Surface View: Operation Praying Mantis, 115(5) US Naval Institute Proceedings 1035 (May 1989), https://www.usni.org/magazines/proceedings/1989/may/surface-view-operation-praying-mantis accessed 02 October 2019.

[6] Map courtesy of Bud Langston and Don Bringle, The Air View: Operation Praying Mantis, 115(5) US Naval Institute Proceedings 1035 (May 1989), https://www.usni.org/magazines/proceedings/1989/may/air-view-operation-praying-mantis accessed 13 October 2019.

[7] Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran (294 UNTS 93 concluded 15 August 1955 in force 16 June 1957) (emphasis added), http://www.iilj.org/wp-content/uploads/2016/08/Provisions-of-the-1955-Treaty-of-Amity-Economic-Relations-and-Consular-Rights.pdf accessed 05 October 2019.

[8] Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Rep 2003, p. 161 (hereinafter Oil Platforms) https://www.icj-cij.org/files/case-related/90/090-20031106-JUD-01-00-EN.pdf retrieved 03 October 2019.

[9] Oliver Corten, The Law Against War; The prohibition on the Use of Force in Contemporary International Law 229 (Hart Publishing 2010).