Language as Door-Opener for Violence? How a New “Attribution-Narrative” May Lead to Armed Confrontation between Iran, and the US and Saudi-Arabia

[Benjamin K. Nussberger is the Head Coach of the Philip C Jessup International Law Moot Court Competition at the Faculty of Law, University of Oxford and a research fellow at the Institute for International Peace and Security Law in Cologne. You can find him on Twitter @bknussberger]

In times of growing tension between Iran, and the US and Saudi-Arabia, it is as interesting as it is worrying to observe how the increasingly aggressive political rhetoric is accompanied by an escalation in the use of legal terms, as this subtly opens the legal ius contra bellum door to direct military confrontation.

The involved States do not miss any opportunity to emphasis that neither of them wants war. Still, they add that they will not hesitate to defend themselves. Words, that have already been followed by deeds such as the US accelerating the movement of troops in the Persian Golf. At the same time, the US and Saudi-Arabia increasingly employ an “attribution-narrative” rather than “support-language” to describe Iranian involvement in armed activities of non-state actors, in particular the Houthis. This shift in legal language may constitute a key stone in constructing (future) claims of self-defense.

The construction of possible self-defense claims and its hurdles

The conditions for a State to exercise self-defense have generated much debate – especially as States typically refrain from direct attacks against each other (as was the scenario envisioned by the Charter’s drafters), but use force rather indirectly through support of “proxy forces”, typically non-state actors. It is in this spirit, that the US and Saudi-Arabia do not build their allegations against Iran to destabilize the region, and their potential claims to (future) self-defense referring to direct attacks by Iranian armed forces (but see Israel). Instead, their attention focuses on Iran’s involvement in armed activities of – allegedly closely connected – non-State actors:

First and foremost, emphasis is placed on armed activities of the Houthis in Yemen and against Saudi-Arabia. The fighting in Yemen, which had started in the Arab Spring movement as a civil war in fight for a new constitution, intensified into a full-grown protracted conflict that repeatedly spills over the Saudi border. The recent drone strikes against an airport in Najran and against a key oil pipeline constitute only the most recent developments in a long line of Houthi attacks on targets in Saudi-Arabia. So far, Saudi-Arabia responded with air strikes against Houthi targets in Yemen. Yet, there have already been calls for surgical airstrikes against Iran, too.

Second, another site of confrontation has (re-)opened: non-State actors’ attacks targeting the Green Zone in Baghdad, where inter alia the US embassy is located, have prompted the US to state that it “will hold Iran responsible if any such attacks are conducted by its proxy militia forces or elements of such forces, and will respond to Iran accordingly.”

In consequence, potential claims to self-defense are subject to the many difficulties arising with self-defense in the context of non-state actor violence. In the present scenario, what is problematic is not the widely discussed question whether a State may defend itself against non-state actors which necessarily sit within the territory of an “assisting” State, and what form of connection to the hosting State imposes a duty for the assisting State to tolerate those military actions. Here, the (related) problem at heart is to what extent defense may be specifically targeted against an assisting State itself.

Pursuant to the ICJ’s Nicaragua and DRC jurisprudence, there are two avenues to establish a right of self-defense against assisting States: First, attribution based on effective control of the specific conduct of the other actor, herethe armed attack (Nicaragua, para 115). “Heavy subsidies and other support (Nicaragua, para 109)” is not deemed sufficient for attribution. Rather the ICJ requires that “[f]or […] conduct to give rise to legal responsibility […], it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed (Nicaragua, para 115, emphasis added).” Assistance to such an extent justifies treating the assisted actors as acting on the assisting State’s behalf. The attack is treated as the assisting State’s own conduct; the assisted actor’s attack is treated as the assisting State’s direct attack. Second, based on the controversial compromise contained in Article 3(g) Aggression Definition, the ICJ held that “sending of armed bands” may be viewed as “armed attack” if the bands’ armed activities then meet the necessary threshold of an armed attack (Nicaragua, para 195). “The provision of weapons or logistical or other support” to armed activities, while amounting to a use of force, would however not suffice.

Both avenues have been subject to powerful challenges. The effective control criterion is under scrutiny. Similarly, the understanding of armed attack has been disputed by States and scholars alike. For example, it is the US position that any use of force triggers a right of self-defense; and as support to force by non-state actors is widely considered to constitute a use of force by the supporting State, this could suffice for justifying self-defense. These controversies should not however disguise that the ICJ’s two avenues themselves constitute a well-accepted core, which in any case allows for self-defense. The heated debate is primarily concerned with the question whether those avenues are too narrowly tailored.

Avoiding legal pitfalls: From a support- to an attribution-narrative

It is in this light, that it is interesting to observe how careful the USA and Saudi-Arabia seem to be in avoiding this legal minefield of pitfalls and inevitable and fundamental legal opposition. Their strategy seems to be shifting the focus of discussions on the factual level and preferring to argue on the settled grounds of the ICJ’s avenues. Tracing the official description of the relationship between the Houthis and Iran illustrates this:

With respect to the most recent drone attacks, Saudi-Arabia’s Deputy Defensive Minister Prince Khalid stated: “The Houthis are an integral part of the Revolutionary Guard forces of Iran and follow their orders, as proven by them targeting installations in the kingdom. These militias are merely a tool that Iran’s regime uses to implement its expansionist agenda in the region (emphasis added).” Foreign Minister Al Jabir tweeted: “The terrorist acts, ordered by the regime in Tehran, and carried out by the Houthis, are tightening the noose around the ongoing political efforts (emphasis added).”

Already earlier, describing the destabilizing role of Iran in the region, the US advanced the claim that Iran “is responsible for a bloody proxy war against Saudi Arabia in Yemen”.

This description of the relationship between the Houthis and Iran is tailored towards high, but accepted standards of the ICJ’s Nicaragua jurisprudence which found affirmation in the attribution standards fleshed out by the ILC. If not the Houthis in their entirety, in any case specific attacks in question are alleged to be controlled by Iran.

In times of more aggressive political rhetoric, Saudi-Arabia thereby seems to depart from its former legal narrative on Iran’s role with the Houthis.

In 2015, the Saudi-led coalition depicted the Houthis as “spoilers” of an “established transitional process” who jeopardized Yemen’s sovereignty and whose action opposed the Yemeni people’s will (e.g. S/2015/217, S/2015/954). It was remotely alleged that the Houthis were supported by a foreign party – notably however without specifying by whom and naming Iran, and without providing any substantiation. Accordingly, on the legal level, justifying its military strikes in Yemen, a Saudi-led coalition invoked the transitional Yemeni president’s invitation to safeguard an “established transitional process”. Support by the Iran as external actor did not play a prominent role in the coalition’s legal considerations; their justification contained no more than allusions to the doctrine of counter-intervention and a right to self-defense. These established legal red lines to the Houthis to refrain from cross-border attacks, and a warning to regional powers that further interference would not be tolerated. Ultimately, they preserved and prepared the legal grounds for further military options (see for more details the explanations here).

It was only in 2016 that the narrative of Iranian support to the Houthis gained traction. The conflict became more protracted, and increasingly spilled over the Saudi-Arabia border, as Houthi rebels started attacking targets in Saudi-Arabia. At the same time, arguably, Iranian involvement increased. This development soon became reflected in the legal terms. The Houthis were now described as the Iran-funded and Iran-backed Houthis (see e.g. S/2016/786, S/2016/863, S/2016/1020, S/2018/888, S/2019/99). Moreover, what was before unsubstantiated and vague allegations became detailed accusations of unlawful support. Most memorable is Nikki Haley’s presentation of recovered missile debris as “concrete evidence” of Iranian provision of weapons. In legal terms, accusations against Iran focused on the violation of a Security Council’s arms embargo (e.g. S/2018/847, S/2018/878). States refrained however from classifying Iran as more than a “direct and tangible threat to the security of […] Saudi-Arabia, Yemen and the region” (see e.g. S/2016/786). Still, a “right to take all appropriate measures to counter the threats by the Iran-funded and backed Houthi-Saleh rebel militias […] in accordance with the Charter of the United Nations and international law” was reserved (see e.g. S/2016/786, S/2016/863).

Despite constant Iranian rejections of the allegations (see e.g. A/71/617), the emphasis on Iranian involvement may also be seen as legal reaction to accumulating question marks which the coalition’s intervention faced and their reliance on the Yemeni government’s consent (e.g. here). With the protracted conflict, the transition process slowed down – allowing for doubts with respect to transitional president Hadi’s legitimacy and his ability to speak freely for Yemen. Externalizing the reasons for the protracted conflict in Yemen by emphasizing outside intervention came useful in counteracting those concerns. At the same time, a second leg of justification, collective self-defense against “Iranian (indirect) aggression” for the benefit of Yemen, took shape. In addition, while still facing the legal controversies sketched above, it could be read as a step towards defensive action against Iran as well.

Implications of a new attribution narrative

The shift towards an attribution-narrative may have substantial legal implications:

Not only does it take further pressure from the intervention by invitation doctrine advanced to justify the military operations in Yemen. The continuing lack of effectiveness of the inviting government may be more easily explained when the ineffectiveness is linked back to a highly influential external actor capable of directing if not all Houthi action, at least specific attacks. At the same time, it allows reliance on (collective) self-defense. This is in particular true for general statements framing Iran fully responsible for all Houthi conduct, like US’ statement suggests.

More decisively, and irrespective of the war in Yemen, when the attribution-narrative refers to specific military operations targeting Saudi-Arabia, the accusations against Iran amount to another level: they no longer refer to “only” a violation of the Security Council’s arms embargo to provide weapons to the Houthi rebels. Instead, now, they pave a concealed diplomatic way of accusing Iran at least of a violation of the prohibition to use force – notably not an indirect use of force against Yemen, but a direct use of force against Saudi-Arabia. In light of the recent rattling of sabers, this framing thus opens the door to a legitimate exercise of self-defense against Iran.

This must not be understood that force against Iran is yet justified. There are still many caveats.

First and foremost, it is questionable whether the situation at hand actually lives up to the attribution-standard. It is beyond the scope of the post to validate the factual allegations. Suffice it to notice that the description of Iran’s relationship with the Houthis is by no means uncontroversial (see e.g. here or here).

Second, if the facts do not meet the ICJ’s high attribution standard, there is no indication of opinio iuris that in the present context the US or Saudi-Arabia aim to lower the attribution standards to mere support.

Third, even assuming the accuracy of the factual allegations, exercising self-defense needs to overcome more legal hurdles. For example, to what extent direct military action against Iran itself or Iranian territory would be justified needs further analysis – and accordingly so far, defensive strikes have been limited against the attacking Houthis in Yemen. Moreover, it requires more careful analysis whether the scale and effect of the attacks against Saudi oil infrastructure and US embassies meet the high threshold of an armed attack.

Fourth, it remains to be seen whether these Saudi statements in fact reflect a shift in policy, or if is only part of the confrontational crescendo in recent weeks. In that very incident, Saudi-Arabia was speaking with multiple tongues: in its letter to the Security Council, it did not repeat the attribution-narrative, but referred to “Iran-backed Houthis”.

Still, the attribution-narrative should be taken seriously. It opens legal doors to direct military confrontation. And while it is a welcome fact that even this politicized and heated conflict seems to take place within the accepted boundaries of international law, it is worrying to see States using factual uncertainty and difficulties of proof to construe such potentially far-reaching claims.