The distinction in international law between “bearing responsibility” and “being responsible”

Published: 21 October 2019  Author: Stefan Talmon  DOI: 10.17176/20220113-164144-0 

On 14 September 2019, a combined drone and cruise missile attack was carried out on Saudi Arabia’s Khurais oil field and Abquiq oil-processing plant. The attack briefly interrupted the supply of an estimated 5.7 million barrels of crude oil per day – around five per cent of global supply. The Iranian-backed Houthi rebels in Yemen which are engaged in an armed conflict with Saudi Arabia claimed responsibility for the attack on the facilities, but Saudi Arabia and the United States blamed the attack on Iraq which denied any involvement. In a letter to the United Nations, Saudi Arabia stated: “All preliminary signs and indicators reveal that this attack did not emanate from Yemeni lands as claimed by the terrorist Houthi militia, and that the weapons used were Iranian-made.” Saudi Arabia launched an investigation into who was responsible for the attack and invited United Nations and international experts to view the situation on the ground and to participate in the investigations. On 19 September 2019, a team of experts from the United Nations Sanctions Committees on Yemen arrived in Saudi Arabia to join the investigation.

On 16 September 2019, Federal Foreign Minister Maas stated with regard to the attacks on the Saudi oil facilities:

“We are currently working with our partners to determine who is responsible for this attack […]. We have to do that with the necessary prudence.”

While on 22 September 2019, the U.S. Secretary of State claimed that the attack came from Iran and described the attack as “an act of war by this Iranian regime”, Germany and other European States were more cautious in attributing responsibility for the attack. It thus came as a surprise that on 23 September 2019, the heads of State and government of Germany, France and the United Kingdom issued the following joint statement at the United Nations in New York:

“We condemn in the strongest terms the attacks on oil facilities on Saudi territory, on September 14th, 2019 in Abqaiq and Khurais, and reaffirm in this context our full solidarity with the Kingdom of Saudi Arabia and its population. 

It is clear to us that Iran bears responsibility for this attack. There is no other plausible explanation. We support ongoing investigations to establish further details.”

This statement was immediately welcomed by the United States Government. U.S. Secretary of State Mike Pompeo tweeted:

“The U.S. thanks our close friends, UK, France, and Germany, for their clear articulation of Iran’s sole responsibility for the act of war against Saudi Arabia and its impact on the region and the world.”

This was followed by a tweet of the spokesperson for the U.S. State Department which read:

“An important statement from UK, France, and Germany: 1) Iran is responsible for the attack on Saudi Arabia; and 2) It’s time for a new and better deal. We agree.”

At the same time the joint statement was condemned by Iran. The Iranian Foreign Ministry declared:

“The Ministry of Foreign Affairs of the Islamic Republic of Iran condemns in strongest terms and dismisses the irresponsible allegation of the leaders of Britain, France, and Germany regarding the attack of the armed forces of the Yemeni government against Saudi facilities.

The Islamic Republic of Iran condemns in strongest terms and rejects the irresponsible allegation of the British, French and German heads of state about the attack of the Yemeni government’s armed forces against Saudi facilities. Iran stresses that attributing the responsibility to the third government for an attack carried out in the course of a full-scale war between the Saudi and Yemeni sides is per se a provocative and extremely destructive move at a time when the Yemenis have officially claimed responsibility for the attack, let alone that the accusation is levelled before any investigation, without any evidence, and merely based on the ridiculous argument that ‘there is no other plausible possible explanation.’ [….].”

While both the United States and Iran interpreted the joint statement as the three European countries holding Iran responsible for the attacks, this is not what it said. This becomes clear from a remark made by Chancellor Merkel during a press conference at the United Nations on 24 September 2019. Without being triggered by a question from journalists, she declared:

“As the three European nations, Britain, France and Germany, we said yesterday that we are convinced that Iran bears responsibility. We have chosen the words carefully –  ‘bears responsibility’ – and in this context we have, of course, also talked about the war in Yemen, the Houthis and many other issues […].”

It is interesting to note that the Chancellor felt it necessary to clarify the content of the joint statement and to emphasize the words “bears responsibility”. Contrary to the interpretation given to the joint statement by the United States, Germany did neither attribute “sole responsibility” for the attack to Iran, nor did it find that Iran “is responsible” for the attack.

The phrase “Iran bears responsibility” is not the same as holding that “Iran is responsible”. It does not imply either sole or full responsibility for the attack. At the time of the statement, the three European States had not come to a final conclusion on the question of responsibility for the attack. This is demonstrated by the fact that they expressly supported the “ongoing investigations to establish further details.” The phrase “bearing responsibility” is much wider than “being responsible” for an internationally wrongful act in terms of international law. Bearing responsibility for an attack may mean that a State “was behind the attack”, that it was “sponsoring” the attack, or that it was in some way involved in the attack. Such involvement may take various forms, from the mere provision of political guidance to the provision of financial resources, intelligence, training, logistic support or weapons, to the actual commission of the attack.

At the time the joint statement was made, there was only a claim by Saudi Arabia that Iranian-made weapons were used in the attack – a claim the United Nations was later unable “to independently corroborate”. A mere claim by Saudi Arabia, however, was not sufficient in order to establish Iran’s responsibility for the attack in terms of international law.

Category: State responsibility

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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