“Left of Splash” Legal Issues Related to the Use of Force to Counter Mining in the Strait of Hormuz

Abstract

Since late 2011, Iranian officials on more than one occasion have suggested that Iran would consider “closing” the Strait of Hormuz (SOH) in response to economic sanctions or an attack on its nuclear facilities. Moreover, many experts believe that in the event of an armed conflict, naval mining would likely be part of an Iranian anti-access, area denial (A2AD) strategy. As a result, policy makers and military commanders must consider options required to maintain freedom of navigation (FON) through this vital chokepoint. A thorough understanding of the legal issues related to mining is essential to formulating courses of action that will be perceived as legitimate. This article addresses the most significant legal issues and reaches three conclusions for consideration by decision makers during course of action development. Firstly, nations can lawfully conduct intelligence, surveillance, and reconnaissance (ISR); maintain a “fires” presence; and conduct mine warfare information-gathering activities in the SOH during peacetime. Secondly, nations may use proportionate force against assets about to mine, or in the act of mining, the SOH either in self-defense or to ensure the freedom of maritime commerce depending on the circumstances. Lastly, nations may use proportionate force in self-defense to protect assets engaged in mine hunting and sweeping, to possibly include attacking targets ashore that represent an imminent threat to the MCM forces.