Understanding the Abqaiq Attack from an International Legal Perspective

by Hussam Althiyabi

Under international law, acts or omissions by a state that results in injury or harm to another state entitles the injured party to compensation for the damages. The existence of shared responsibility when states and non-state actors cooperate and their joint action produces harmful results should be self-evident.[1] However, the question is, to what extent, shared responsibility is recognised under international law and how the International Court Justice (ICJ) interprets it. In this case, the 14 September 2019 attack on Saudi Arabia’s oil facilities, which not only affected the injured state (re: Saudi Arabia), but the world economy, begs the specific question of whether Iran can be held responsible for Houthi (re: a non-state actor in  Yemen) action under international law.  This work examines the Abqaiq attack and the ways Iran was involved. Structurally, this work is divided into two sections: first it covers the shared responsibility between states and non-state actors under international law focusing on the Abqaiq attack and relating it to ICJ rulings in relevant cases and how the court interpreted shared responsibility. Second, this work provides an overview of the United Nations’ investigation and its outcome.

The Abqaiq Attack and the Rule of Shared Responsibility: When can Non-State Actors be held Responsible?

 

The framework of responsibility was designed to assess the misconduct of states, which can only be partially applicable to non-state actors due to the fact that they do not have any obligations under international law. However, the International Law Commission (ILC) drafted the final text of Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA), that was adopted by the General Assembly,[2] which articulated the scope of state responsibility under wrongful conduct. Article 8 affirmed the framework of shared responsibility of wrongful conduct between states and non-state actors. It is complex to determine when shared responsibility exists, especially in cases of a lack of sufficient evidence or a denial of cooperation.

 

The 14 September 2019 coordinated attack on the Abqaiq and the Khurais hydrocarbon facilities  in Saudi Arabia caused wide-scale structural damage, interrupted more than 5% of global oil supplies and, as a result, drove a spike in oil prices. The attack produced a massive loss for Saudi Arabia and many other states and companies. Houthi rebels in Yemen initially assumed responsibility for the attack — which was a clear violation of international law — however the question is whether Iran can be held responsible for the attack since it directly supports the Houthis with finance, weapons and, to some extent, wields political leverage over the group in terms of its decision making.

 

In order to assess this issue, this work reflects on ICJ rulings in similar cases by which the court explained when states are responsible under Article 8 of ARSIWA. In the case of Bosnia v. Serbia, the ICJ did not hold Serbia responsible for the harmful conduct by the Bosnian Serb entity, in which the court applied Article 8 under two paradigms: 1. whether the non-state actor (re: the Bosnian Serb entity) was a de facto organ of Serbia and 2. whether the operations of the Bosnian Serb entity were conducted under the full control of Serbia. The court addressed the first issue by stating that the Bosnia Serb entity had a considerable amount of autonomy, which means it had never been an organ of Serbia. In addition, the ICJ determined that the Bosnia Serb entity acted in full capacity and Serbia did not have full or active control over it, which emphasises that a state is responsible for its actions unless it has overall control over an organ that receives or carries out its instructions. Hence, the ICJ did not find Serbia liable under Article 8.[3]

 

The ICJ judgment is relevant to our case. Iran may not be responsible for the Abqiaq attack under international law unless the claimant provides conclusive evidence that illustrates Iran’s complicity in the attack and thus fulfils the requirements of Article 8. In order to do so, the allegation must show prima facie evidence of Iranian involvement. Tehran however continues to  deny any connection whatsoever with the Houthis and so the only way to prove otherwise is by examining the Houthis supply routes and, specifically, its arms procurement. If the Houthis receive their arms from Iran — evidence of which is overwhelming — than Iran is culpable for how those arms are deployed including in the case of the Abqaiq attack. This argument would be moot is those arms were acquired in the black market. It is therefore important to flesh out the UN investigation to determine Iran’s level of complicity in the Abqaiq attack.

The UN Investigation

 

The Houthis declared responsibility for the attack. However, Saudi Arabia, the United States and many in the European Union have rejected the Houthi claim and rather accused Iran of both coordinating and conducting the operation. An independent, UN-sanctioned experts team to the Security Council Yemen Sanctions Committee travelled to Saudi Arabia to investigate. The conclusions were very interesting: there was no overt assignment of responsibility or vindication to Iran. The report stated that ‘despite their claims to the contrary, the Houthis  forces did not launch the attacks on Abqaiq and Khurais on 14 September 2019.’ The UN investigators doubted that the drones and cruise missiles used in the attack were launched from Yemeni territory.[4] The panel found that the attack originated from a north/northwestern and north/northeastern direction not from the south, as one would expect in the case of a launch from Yemen. In other words, the experts team determined that the origin of the attack was either from Iraq or Iran. Also, investigators do not believe that ‘Those comparatively sophisticated weapons were developed and manufactured in Yemen,’ implying that their origin was the Islamic Republic. Although UN Secretary General, Antonio Guterres, told the Security Council in a separate report on 10 December 2019, on the implementation of an arms embargo and other restrictions on Iran, that the United Nations was ‘unable to independently corroborate’ that the missiles and drones used in the attacks ‘are of Iranian origin.’ However, the report further stated that ‘the Houthi forces continue to receive military support in the form of assault rifles, rocket-propelled grenade launchers, anti-tank guided missiles, as well as more sophisticated cruise missile systems […] Some of those weapons have technical characteristics similar to arms manufactured in Iran.’

 

***

 

Iran is responsible for the attack on Abqaiq either directly, re: the attacks originated from its territory via its security forces, or indirectly, re: the attacks originated from Yemen via its Houthi allies which it equipped with sophisticated weapons systems. Indeed, the outcome of the report proved two main points: 1. the Houthis did not issue the attack due to the lack of technical capabilities and 2. the attack came from the north/west or north/east. Given this, it becomes an imperative to find a way to hold Tehran responsible under international law. There are two channels that may be explored: First, by passing UN Security Council resolutions which would be legally binding ands set an important precedence and/or second, a case could be filed by Saudi Arabia in the ICJ. While Iran could reject the court’s jurisdiction, the process of filing would illustrate the gravity that Saudi Arabia regards Iran’s attack and/or its support for the Houthis that may have acted on their behalf. No matter what route is pursued, it is important to remember that Iran bears responsibility for the Abqaiq attack and should compensate Saudi Arabia as a result.

26 March 2020

 

Notes:

[1] d’Aspremont, Jean, Andre Nollkaemper, Ilias Plakokefalos and Cedric Ryngaert (2015), ‘Sharing Responsibility Between Non-State Actors and States in International Law,’ Netherlands International Law Review, number 62, pp. 49-67.

[2] ‘Resolution 56/83,’ Responsibility of States for Internationally Wrongful Acts, January 2002.

[3] ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro,’ Judgment, ICJ Reports, 2007, p. 43.

[4] Michelle Nichols (2020), ‘UN Investigators Find Yemen’s Houthis Did Not Carry Out Saudi Oil Attack,’ Reuters, available at: https://www.reuters.com/article/us-saudi-aramco-attacks-un-exclusive/exclusive-u-n-investigators-find-yemens-houthis-did-not-carry-out-saudi-oil-attack-idUSKBN1Z72VX

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