In times of war, parties to a conflict must demonstrate their best efforts in minimizing casualties and the damage war brings. State parties to a conflict must adhere to the fundamental principles of international humanitarian law (IHL) as they are part of customary international law that binds all States. However, an issue arises when you have non-state actors who are party to a conflict that involves States as well. The Yemen conflict is one such conflict that involves States and non-state actors. The conflict in Yemen has been described as a proxy war in which non-state actors in the conflict are being assisted, whether financially or otherwise, by States.[1]
To simplify a complex history of the region and what led to the conflict in Yemen, the key players include the Saudi-led coalition. They intervened to help President Abdu Rabbu Mansour Hadi gain back his power after the dictator Ali Abdullah Saleh was forced out of Yemen during the Arab Spring.[2] Then, there is the Shia militia group known as Ansar Allah, or Houthis, who are backed by Iran,[3] a nation-state that is predominantly Shia. It should be noted that Saudi Arabia on the other hand, is predominantly Sunni and the tension between these two Muslim groups, as well as the two nation-states, goes a long way back.
Recently, there has been a drone strike against the Saudi Arabian oil giant, Saudi Aramco, and their oil refinery facilities in Ras Tanura as well as Dhahran. This drone strike is reported to have been carried out by the Houthis.[4] Under IHL, the attack on Saudi Aramco facilities may be considered a violation of the principle of distinction. The principle of distinction provides that parties to a conflict must, at all times, differentiate between lawful military targets and civilians, including civilian structures.[5] Furthermore, it is an absolute prohibition to deliberately attack civilians and civilian structures.[6] While there may be more nuanced issues when determining whether the drone attack on the Saudi Aramco oil facilities would be a violation of the principle of distinction, this article will focus on the main questions and issues to consider.
(Photo acquired via https://en.wikipedia.org/wiki/Saudi_Aramco)
For IHL to apply to a situation, the first question to ask is whether the alleged violation occurred within the context of an armed conflict. Here, it is safe to conclude that the drone strike against Saudi Aramco oil facilities did occur in the context of an armed conflict as this attacked was carried out by the Houthi militia group who is a non-state party to the ongoing conflict in Yemen.
This leads to the second question which is: is this an international armed conflict? Considering that the collation is comprised of State actors, Saudi Arabia and the United Arab Emirates, it would be considered an international armed conflict. Iran is also involved by backing the Houthis. However, this is an aspect of the conflict where more nuanced considerations are needed. Determining whether a conflict is an international armed conflict is not always clear when a State actor is involved through a proxy group. Nevertheless, the direct involvement of Saudi Arabia and the United Arab Emirates does allow one to conclude that the conflict in Yemen is an international armed conflict.
The third question is whether the Saudi Aramco oil facilities, the target of the drone attacks, are lawful military objectives. Saudi Aramco is one of, if not, the largest oil company owned by the Saudi Arabian government.[7] Reports of the strike include word that ‘shrapnel from a ballistic missile fell near Aramco’s residential area in Dhahran’.[8] Since there are residential compounds near Saudi Aramco oil refineries such as the one in Ras Tanura and Dhahran,[9] one could argue that this makes the location of Saudi Aramco facilities an area largely populated by civilians. Furthermore, those who work in Saudi Aramco are mainly civilian locals and expats. Therefore, one can conclude that Saudi Aramco facilities surrounded by civilians are not appropriate military targets.
There is also the possibility of arguing that if Saudi Aramco supplies oil and gas to the Saudi armed forces, this makes Saudi Aramco an appropriate military target because of its connection to the armed forces. It is allowed under IHL to target objectives that could weaken the military forces of another party to the conflict. But the use of force against a target should only be sufficient to weaken the forces of the opposition. Any use of force that causes excessive damage compared to the anticipated military advantage would be a violation of IHL. This is the basis of the principle of military necessity.[10] In the context of the drone strike attack against Saudi Aramco oil facilities, attacking an oil company’s facility predominantly populated by civilians is considered an excessive use of force compared to the military advantage anticipated by the Houthis. In addition, Saudi Aramco is a key supplier of oil and gas to many parts of the world. Thus, it is not only Saudi Arabia that is dependent on the oil and gas produced by Saudi Aramco. Nevertheless, this legal position is arguable.
Despite the complexity of the conflict and the nuanced considerations when determining whether there has been a violation of IHL, the main point to take away is that attacking an area predominantly populated by civilians is a violation of IHL. This is the direction that the Saudi Arabian Ministry for Energy is taking according to their statement and spokesperson.[11] The Saudi government has called upon other countries and organisations to condemn these acts because they were directed at civilian objects and essential civilian installations that could harm the stable supply of energy to the world.[12] However, whether any action will be taken to bring the Houthis, and perhaps even Iran, to justice is a different story that is yet to unfold.
References: [1] Peter Krause and Tyler B Parker, ‘Yemen's proxy wars explained’, MIT Center for International Studies (Analysis and Opinion, 26 March 2020) <https://cis.mit.edu/publications/analysis-opinion/2020/yemens-proxy-wars-explained>; BBC, ‘Yemen crisis: Why is there a war?’, BBC News (online, 19 June 2020) <https://www.bbc.com/news/world-middle-east-29319423>. [2] Peter Krause and Tyler B Parker, ‘Yemen's proxy wars explained’, MIT Center for International Studies (Analysis and Opinion, 26 March 2020) <https://cis.mit.edu/publications/analysis-opinion/2020/yemens-proxy-wars-explained>. [3] Ibid. [4] See Al Jazeera, ‘Houthis fire missiles, drones at Saudi oil facilities’ (online, 7 March 2021) <https://www.aljazeera.com/news/2021/3/7/blast-heard-in-saudi-arabias-dhahran-reports>; Sarah Dadouch, ‘Houthis strike Saudi oil giant’s facilities in the kingdom’s east’, The Washington Post (online, 8 March 2021) <https://www.washingtonpost.com/world/the_americas/saudi-houthi-attack-ras-tanura-aramco/2021/03/07/77f29148-7f72-11eb-9ca6-54e187ee4939_story.html>; Ismaeel Naar, ‘Saudi Arabia confirms drone, missile attacks on Aramco oil port, facilities’, Al Arabiya (online, 8 March 2021) <https://english.alarabiya.net/News/gulf/2021/03/08/Terrorism-Saudi-Arabia-confirms-attempts-to-target-Aramco-s-Ras-Tanura-port>. [5] Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) art 48. [6] Prosecutor v Blaškić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-95-14-A, 29 July 2004) 38, [109]. [7] See the Saudi Aramco website <https://www.aramco.com/>. [8] Sarah Dadouch, ‘Houthis strike Saudi oil giant’s facilities in the kingdom’s east’, The Washington Post (online, 8 March 2021) <https://www.washingtonpost.com/world/the_americas/saudi-houthi-attack-ras-tanura-aramco/2021/03/07/77f29148-7f72-11eb-9ca6-54e187ee4939_story.html>. [9] See Arab News, ‘Saudi oil port and Aramco residential area targeted by drone, missile’, Arab News (online, 8 March 2021) <https://www.arabnews.com/node/1821511/saudi-arabia> [10] See Nicholas Tsagourias and Alasdair Morrison, International Humanitarian Law: Cases, Materials and Commentary (Cambridge University Press, 2018) 41-45; Laurie R. Blank and Gregory P. Noone, International Law and Armed Conflicts: Fundamental Principles and Contemporary Challenges in the Law of War (Wolters Kluwer, 2016) 26. [11] Ismaeel Naar, ‘Saudi Arabia confirms drone, missile attacks on Aramco oil port, facilities’, Al Arabiya (online, 8 March 2021) <https://english.alarabiya.net/News/gulf/2021/03/08/Terrorism-Saudi-Arabia-confirms-attempts-to-target-Aramco-s-Ras-Tanura-port>. [12] Ibid.