The 1979 United States-Iran hostage crisis reviewed from an Islamic international law perspective.

• Author: Ismail, Muhammad-Basheer A.

1. INTRODUCTION

   Almost all Muslim states (1) signed and ratified the two international diplomatic and consular legal frameworks: the 1961 Vienna Convention on Diplomatic Relations ("VCDR") (2) and the 1963 Vienna Convention on Consular Relations ("VCCR"). (3) The Islamic Republic of Iran, a party to the VCDR and the VCCR, is expected to uphold these conventional principles of diplomatic immunities and international law in all its diplomatic interactions with other states. Three decades ago, the Islamic Republic of Iran seized the United States of America's embassy and its staff. The United States brought a case against Iran in the International Court of Justice ("I.C.J") for violating diplomatic immunity and international obligations. Although the Iranian government was not represented throughout the proceedings before the I.C.J., it sent, through the Iranian Ministry of Foreign Affairs, two letters dated December 9, 1979, and March 16, 1980, to the I.C.J. (4) These letters summarized the reasons why the Iranian government felt that the case brought by the United States should not be recognized and considered by the I.C.J. (5) After considering the facts of the case and all the evidence adduced, the I.C.J. found the Iranian government guilty. (6) The judgment of the I.C.J. would have been more convincing to the Islamic Republic of Iran had the United States further predicated its arguments on Islamic law.

   Considering this background, it may be necessary to reappraise the 1979 seizure of the American embassy in Tehran by examining Islamic law's implication on the entire incidence. The purpose is to ascertain whether the Iranian authorities made adequate provisions for the protection of the American diplomatic personnel within the territory of Iran in accordance with Islamic siyar, otherwise known as Islamic international law. (7) It is crucial to mention here, that not much has been mentioned concerning the position of Islamic siyar on the 1979 Iranian invasion of the United States embassy. The only major work that was written in respect of the position of Islamic law concerning the Iranian invasion of the United States embassy in 1979 was by Professor M. Cherif Bassiouni in 1980 while the invasion of the embassy was still ongoing. (8) This article will, therefore, be evaluating facts surrounding i) the seizure of the embassy and the hostage taking crisis; ii) the applicable international conventions between Iran and the United States and their legal implications under Islamic siyar, iii) the justification for detaining the United States diplomats, if any, under Islamic siyar; iv) the violation of diplomatic immunity under Islamic siyar; and, v) the implication of Iran's violation of the United States diplomatic immunity under Islamic international law. This article then concludes that the general finding of Islamic siyar with regards to the Iranian hostage case may not be different from that of the findings of the I.C.J.

2. SEIZURE OF THE UNITED STATES EMBASSY

   On November 4, 1979, a group of Iranian Muslim students, known as the Muslim Student Followers of the Imam's Policy, (9) invaded the American embassy in Tehran and held fifty-two of its personnel hostage for 444 days. The action of the students was said to be in protest against the decision of the United States in October 1979 to admit the former Shah of Iran, Mohammed Reza Pahlavi, into the United States under the pretext of a life-saving medical treatment. (10) The hostage takers threatened that unless the Shah was extradited along with his wealth, they would not hesitate to put the hostages on trial for the offense of espionage." But the fact remained that under Section 3181(a) of the United States Code, the United States would not have extradited the Shah due to the absence of any extradition treaty with the Islamic Republic of Iran. (12) That being the case, the United States was legally incapable of extraditing the Shah of Iran. Aside from the thirteen female and African-American hostages that were released within the first month, (13) and later another hostage that was released due to illness, (14) the rest of the members of the diplomatic and consular staff of the United States were not released until January 20, 1981. (15)

   The United States made "innumerable pleas, resolutions, declarations, special missions, and even sanctions" towards securing the release of the hostages without success. (16) The United States then instituted a legal action against the Islamic Republic of Iran at the I.C.J., the judicial arm of the United Nations, on November 29, 1979. (17) The I.C.J., in its unanimous decision on December 15, 1979, gave an interim order directing Iran to restore the diplomatic mission to the United States government and to release the hostages by giving them full diplomatic protection with freedom to leave Iran. (18) On May 24, 1980, the I.C.J. issued its final judgment on the merits and found Iran to be in contravention to its obligations under international conventions and long-established rules of general international law. (19) The Islamic Republic of Iran was also ordered to make reparation to the United States. (20) Both the interim order and the final judgment of the I.C.J. were defied by Iran. (21)

   It is important to mention that throughout the entire proceedings at the I.C.J., the United States hinged their legal arguments mainly on well-acknowledged principles of diplomatic immunity, (22) which are viewed and understood from the Western legal perspective. The United States could have further argued from the viewpoint of Islamic law by relying on the Qur'anic, prophetic, and various Muslim juristic pronouncements on the principles of diplomatic immunity. Such arguments would have strengthened the United States case against the Islamic Republic of Iran. Judge Weeramantry rightly argues that Islamic international law, which is equally "rich in principles relating to the treatment of foreign embassies and personnel," would possibly have had a three-fold effect on Iran if the United States had availed itself the opportunity of canvassing it before the Justices of the I.C.J. (23) The three-fold effect, according to Weeramantry, is that "[1] its persuasive value would have been immensely greater; [2] it would have shown an appreciation and an understanding of Islamic culture; and [3] it would have induced a greater readiness on the Iranian side to negotiate from a base of common understanding." (24)

   We must also not forget the general references made by two of the Judges of the I.C.J. (Judge Waldock and Judge Tarazi) to the contribution of Islamic jurisprudence to the body of diplomatic immunity and inviolability. In his view, Judge Waldock, in the lead judgment, maintains "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 regime, to the evolution of which the traditions of Islam made a substantial contribution." (25) Similarly, Judge Tarazi, while delivering a dissenting opinion, cited with approval a 1937 lecture delivered by Professor Ahmed Rechid of the Istanbul law faculty, confirming the respect conferred on diplomatic personnel under Islamic law, when Professor Rechid says that "[i]n Arabia, the person of the Ambassador has always been regarded as sacred. Muhammad consecrated this inviolability. Never were ambassadors to Muhammad or to his successors molested." (26)

   The Iranian authority, particularly, Imam Ayatollah Khomeini (27) has been generally accused of backing and directly endorsing the entire actions of the students regarding the seizure of the United States embassy. (28) Not only did the Iranian government cooperate with the student demonstrators by not preventing them from invading the United States embassy, it also gave a mark of approval to and showered an unconditional encomium on the hostage takers. (29) A representative of the Iranian Foreign Ministry, for example, was recalled as saying that "[t]oday's move by a group of our compatriots is a natural reaction to the United States government's indifference to the hurt feelings of the Iranian people about the presence of the deposed Shah, who is in the United States under the pretext of illness." (30) He further said that "[i]f the U.S. authorities respected the feelings of the Iranian people and understood the depth of the Iranian revolution, they should have at least not allowed the deposed Shah into the country and should have returned his property." (31) A pronouncement attributed to the then Iranian Foreign Minister, Mr. Ibrahim Yazdi, that the students' action "enjoys the endorsement and support of the government, because America herself is responsible for this incident," was also regarded as a general ratification of the entire hostage crisis. (32)

   The then-President of the United States, Jimmy Carter, decided to explore the possibility of resolving the imbroglio through diplomatic process by instructing his Attorney-General, Ramsey Clark, accompanied by the chief counsel for the Senate Select Committee on Intelligence, William Miller, to go and deliver a message to Imam Ayatollah Khomeini requesting the release of the hostages. (33) Imam Khomeini and members of the Revolutionary Council refused to meet with the envoys sent by the United States. While Clark was en route, Tehran Radio broadcasted the speech made by Ayatollah Khomeini on November 7, 1979, forbidding any member of the Revolutionary Council from holding any discussion with the two emissaries from the United States, while also maintaining that:

   the U.S. embassy in Iran is our enemies' centre of espionage against our sacred Islamic movement ... 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. (34) The major...