American Officials Could Be Prosecuted for War Crimes in Yemen

YemenExtra

SH.A.

By: Mohamad Bazzi

In October 2016, warplanes from a Saudi-led coalition bombed a community hall in Yemen’s capital, Sanaa, where mourners had gathered for a funeral, killing at least 140 people and wounding hundreds. International condemnation was swift after that attack—the deadliest since Saudi Arabia and several of its allies launched a war against Yemeni Houthis in Yemen in March 2015.

Within days, United Nations Secretary General Ban Ki-moon called for an international investigation into whether the attack constituted a war crime. “Aerial attacks by the Saudi-led coalition have already caused immense carnage and destroyed much of the country’s medical facilities and other vital civilian infrastructure,” Ban said, adding, “Parties cannot hide behind the fog of this war. A man-made catastrophe is unfolding before our eyes.”

The Saudi coalition, which includes the United Arab Emirates, was not the only party potentially implicated in war crimes. The attack on the funeral hall, which targeted services for the father of a prominent leader, renewed international attention on the United States and its deepening involvement in the Saudi-led war.

President Barack Obama’s administration pledged to conduct “an immediate review” of its logistical support for the Saudi coalition. (In addition to providing intelligence assistance and refueling support for warplanes, Washington had rushed billions of dollars in missiles, bombs, and spare parts to help the Saudi air force continue its bombing campaign.

The National Security Council’s then-spokesman, Ned Price, said the administration was “deeply disturbed” by the attack, and was prepared to adjust its level of support. He added, “US security cooperation with Saudi Arabia is not a blank check.” Human Rights Watch reviewed footage and photos after the attack and found that the Saudi coalition used at least one US-made 500-pound laser-guided bomb. The group deemed it “an apparent war crime.”

Even before the attack on the funeral hall, some US officials were worried that American support to the Saudis—especially weapons transfers, assistance in identifying targets, and midair refueling of Saudi and allied aircraft—would make Washington a co-belligerent in the war under international law. That means the United States could be implicated in war crimes and American personnel could, in theory, be exposed to international prosecution. By late 2015, Reuters reported, administration officials had debated internally for months about whether to go ahead with arms sales to Saudi Arabia, which was becoming America’s largest weapons customer, in light of the rising civilian death toll in Yemen.

Documents obtained by Reuters under the Freedom of Information Act showed that US officials were especially worried about a 2012 ruling from an international tribunal at The Hague that convicted Charles Taylor, Liberia’s former president. He was found guilty of aiding and abetting war crimes committed by rebels in neighboring Sierra Leone during its civil war in the 1990s, and sentenced to 50 years in prison. The ruling built on precedents set by the Yugoslavia war crimes tribunal, which found that the accused can be guilty of “aiding and abetting” if he provided “practical assistance, encouragement, or moral support which had a substantial effect on the perpetration of a crime.” The court found that prosecutors do not have to prove that a defendant had direct control over the perpetrators, or participated in a specific crime. US government lawyers worried that similar legal reasoning could be used to prosecute American officials who continue to provide weapons and military assistance to the Saudi-led coalition, despite mounting evidence that it was committing war crimes.

For a brief time, it seemed that the attack on the funeral hall could lead to real change in US policy. But the Obama administration’s review led only to minor steps: The Pentagon withdrew a handful of personnel from Saudi Arabia and suspended the sale of some munitions. And after Donald Trump was elected president in November 2016, concerns about US involvement in war crimes evaporated. Few Trump administration officials are publicly worried about US exposure to war crimes. But members of Congress are trying to rein in the Pentagon’s role in an undeclared war that has precipitated the world’s worst humanitarian crisis.

Soon after Trump took office, he escalated US military involvement in Yemen, with little public attention or debate. In March 2017, Trump reversed a decision by Obama to suspend the sale of about $400 million in laser-guided bombs and other munitions to the Saudi military. (Obama and his advisers tried to use the weapons deal as leverage to force the Saudis and their allies to take concerns about civilian deaths more seriously, to little effect.) As more members of Congress raised questions about US support for Saudi actions in Yemen, the Senate narrowly approved that sale, now topping $500 million, in a vote of 53 to 47.

In late 2017, after the Houthis fired missiles at several Saudi cities, the Trump administration again intensified US participation in the war, without informing Congress. The Pentagon secretly sent a small group of US special forces to the Saudi-Yemen border. US troops did not cross into Yemen to directly fight the Houthis, but they trained Saudi forces and helped them gather intelligence to locate and destroy Houthi missile sites.

At the same time, the Pentagon also dramatically stepped up its own air strikes in Yemen, targeting Al Qaeda in the Arabian Peninsula (AQAP), which is one of the terror group’s most active offshoots, and other jihadists linked to the Islamic State (ISIS). In 2017, the US military carried out more than 130 air strikes, compared to 21 strikes in 2016, the Obama administration’s final year in office—a sixfold increase under Trump. The Pentagon has been carrying out air strikes, using drones and fighter planes, in Yemen since the early 2000s, when it accelerated a campaign against Al Qaeda. That battle against jihadists is another factor that complicates American involvement in Yemen: The Pentagon has supported Yemeni fighters, mostly trained and funded by the UAE, in a war to dislodge Al Qaeda from Yemen’s central and southern regions. Ironically, after the Saudi-led intervention in 2015, militants affiliated with Al Qaeda and ISIS were able to take control of more territory and establish new safe havens in parts of Yemen.

The Yemen war is a complex conflict with a shifting set of alliances. The latest phase began in September 2014, when the Houthis, whose base of support is in Yemen’s northwest, marched into the capital, Sanaa, and threatened to take over most other major cities. The Houthis, who belong to a sect of Shiite Islam called Zaydis, were allied with former President Ali Abdullah Saleh, a longtime dictator who was ousted after the Arab Spring uprisings spread to Yemen in early 2011. Saleh had fought multiple wars against the Houthis, with Saudi and US support. But Riyadh brokered a deal in 2012 to ease Saleh out of power and replace him with the vice president, Abdu Rabbu Mansour Hadi. In early 2015, the Houthi-Saleh offensive continued toward the southern city of Aden, and forced most of Hadi’s government to flee to Saudi Arabia.

Saudi leaders panicked over the possibility that their regional rival Iran, through the Houthis, was on the verge of taking over neighboring Yemen, which successive Saudi rulers had treated as an extension of the kingdom’s domestic policy. In March 2015, the newly installed Saudi King Salman declared that the kingdom and a coalition of Sunni Arab partners would go to war in Yemen to restore Hadi into power and roll back the Houthis. (The same day, the White House announced that Obama had “authorized the provision of logistical and intelligence support” to the Saudi-led coalition, meaning that the United States had signed on as co-combatant in an open-ended war.)

The king appointed his then-29-year-old son, Mohammed bin Salman, as defense minister to oversee the Yemen campaign. Salman was later elevated to crown prince, unsettling succession in the kingdom. The younger Salman and his mentor, UAE Crown Prince Mohammed bin Zayed, have been the chief proponents of the Yemen war. After three and a half years, Saudi Arabia is in a quagmire, which by some estimates costs $5-6 billion a month. Despite thousands of air strikes and a naval and air blockade, the Saudi-led alliance has failed to dislodge the Houthis from Yemen’s capital.

While the Saudis are quick to label the Houthis as Iranian proxies, the Houthis did not receive significant assistance from Iran before the Saudi war in 2015. (Tehran, by contrast, is far more heavily invested in Syria, where it has sent billions of dollars in aid and thousands of troops and Shiite militia volunteers to help preserve Bashar al-Assad’s regime.) Iran has increased military support to the Houthis since the war, but it’s far short of the costs incurred by Saudi Arabia and its allies. For Tehran, which has been fighting a series of proxy battles with Riyadh across the Middle East, the Yemen conflict became a cheap way to bleed Saudi resources.

The Saudi and Emirati focus on the Houthis as instruments of Iran resonates with Trump and many of his top officials—including National Security Adviser John Bolton, Secretary of State Mike Pompeo, and Defense Secretary Jim Mattis—who blame Iran as the source of all the Middle East’s turmoil. Trump and his advisers rarely single out Saudi Arabia and the UAE for their destabilizing actions, especially in Yemen. And the Trump administration’s obsession with Iran is making the prospect of a settlement in Yemen even more remote because it portrays the Houthis as posing the same kind of threat as other Iranian-backed groups in the region, such as Hezbollah. The Lebanese Shiite party, which receives most of its weapons and funding from Iran, has sent thousands of fighters to support Assad, Tehran’s ally, in Syria. But the Houthis have not played a similar role outside of Yemen.

Away from the regional power struggle, the war has triggered a humanitarian catastrophe. The UN stopped counting civilian deaths two years ago, when the toll reached 10,000. As a result, many news reports continue to rely on that outdated death toll, obscuring the war’s full impact. One independent estimate, by a group called the Armed Conflict Location & Event Data Project, or ACLED, which tracks conflicts worldwide, found that nearly 50,000 people, including combatants, died between January 2016 and July 2018. (That estimate does not include data from the first nine months of the Yemen conflict, when fighting was most intense, meaning that the figure is likely higher.) The war has also left three-quarters of Yemen’s population, more than 22 million people, in need of humanitarian aid. More than 8 million Yemenis are on the brink of famine, and 1.1 million are infected with cholera.

UN and other independent investigations have found both the Houthis and the Saudi-led coalition responsible for potential war crimes, but the Saudis and their allies have caused far more civilian deaths. “Coalition air strikes have caused most of the documented civilian casualties,” a group of UN experts concluded in a report issued in August. “In the past three years, such air strikes have hit residential areas, markets, funerals, weddings, detention facilities, civilian boats, and even medical facilities.” Another report released in August, by Human Rights Watch, found that the Saudi coalition’s own investigations of air strikes and other attacks that caused civilian deaths were “woefully inadequate” and rarely found wrongdoing.

On August 9, the Saudi coalition bombed a school bus near a market in the northern town of Dahyan, killing 54 people, 44 of them children, and wounding dozens. After interviewing more than a dozen witnesses and survivors, Human Rights Watch called the bombing an “apparent war crime” because “there was no evident military target in the market at the time.” The group urged the United States and European countries, including Britain and France, to halt weapons sales to Saudi Arabia, noting that weapons suppliers are “at risk of complicity in war crimes.”

After the bus bombing, several members of Congress sent letters to the Trump administration demanding that it put more pressure on Saudi Arabia and the UAE to prevent civilian casualties, or risk losing US military support. Rep. Ted Lieu, a former military lawyer, asked the Pentagon’s inspector general to investigate US assistance to the Saudi coalition. He warned that “continued U.S. refueling, operational support functions, and weapons transfers could qualify as aiding and abetting these potential war crimes, placing our own troops and officials in serious legal jeopardy.” Lieu, who has been one of the most vocal critics in Congress of the US role in Yemen, noted that, under international law, aiding and abetting war crimes “requires only knowledge that support could assist a potential crime—not direct intent on the part of the abettor to achieve the criminal result.”

Ryan Goodman, a law professor at New York University and a former special counsel at the Defense Department, has noted that there is a flaw in the Pentagon’s Law of War manual that could leave US officials with the false impression that “they are not at risk of aiding and abetting war crimes if they do not desire the Saudis to engage in bad acts.” But, Goodman argued, that’s a misreading of international law and rulings by past war-crimes tribunals. “It would be wholly sufficient for the officials simply to have knowledge of the Saudis’ actions to trigger liability,” he wrote, adding, “the executive branch has surely built up knowledge of Saudi actions over time.”

So far, the Trump administration has shrugged at suggestions that the United States could be exposed to charges of aiding war crimes. When asked by journalists about whether the Pentagon refueled the warplane that attacked the school bus, or if a US-made bomb was used, US officials demurred, saying they don’t keep track of such information and would need to ask the Saudi military to provide it. “Well, what difference does that make?” one senior US official said when questioned by reporters at a briefing in Cairo. (CNN reported that, based on debris at the site, the Saudi coalition dropped a 500-pound laser-guided bomb made by Lockheed Martin. That bomb is similar to the one used to attack the funeral hall in October 2016.)

The bus bombing renewed criticism in Congress of the US role in Yemen, but the Trump administration shows little interest in holding its Saudi and Emirati allies to account. In August, a bipartisan group of legislators included a provision in the latest $675 billion military spending bill requiring the Trump administration to certify that Saudi Arabia and the UAE are taking “demonstrable actions” to reduce civilian casualties in Yemen and making a “good faith” effort to reach an agreement to end the war. Without this assurance, the Pentagon could not continue providing military assistance to the coalition, including the critical midair refueling of warplanes. On September 12, Pompeo certified to Congress that the two US allies were trying to minimize civilian casualties and to enable deliveries of humanitarian aid. (The spending bill included a provision that allowed the Trump administration to keep providing military support on national security grounds, so Pompeo could have declined to certify Saudi and Emirati efforts without immediately disrupting US assistance.)

At the Pentagon, Mattis issued a statement endorsing Pompeo’s decision and noting that Saudi Arabia and the UAE “are making every effort to reduce the risk of civilian casualties and collateral damage to civilian infrastructure.” But the administration’s assurances contradicted virtually every other independent review of the war, including the recent report by a group of UN experts and several Human Rights Watch investigations that found the Saudi coalition culpable of war crimes. The professed concern for reducing civilian harm is an empty gesture from the Trump administration, which has the power to severely limit the Saudi and Emirati air campaign. Without US aerial refueling and other technical assistance, the war would grind to a halt.

On September 20, The Wall Street Journal reported that Pompeo decided to certify Saudi and Emirati compliance over the objections of many State Department officials. The Journal quoted a classified memo in which most of the agency’s regional and military experts urged Pompeo to reject certification “due to a lack of progress on mitigating civilian casualties.” But Pompeo was worried that a negative statement from the administration and potential disruption in US military assistance could jeopardize $2 billion in upcoming weapons sales to Saudi Arabia and the UAE.

Pompeo also sent Congress a memo justifying the administration’s decision, in which he argued that continued US support for the Saudis and Emiratis would help roll back Iran and its influence on the Houthis. The administration has allowed itself to be led by Saudi and UAE goals in Yemen—defeating Tehran in a place where it has invested little effort—even if they undermine a political settlement to end the war.

The Obama administration also shaped its Yemen policy through the prism of Iran—and concern for preserving US weapons sales. Obama initially supported the Saudi-led war as a tradeoff, hoping that the kingdom and its Sunni Arab allies would warm up to the Iran nuclear deal signed in July 2015. Yet Saudi Arabia and the UAE never accepted the deal, and accused Obama of abandoning America’s traditional allies in the Middle East. But the public bickering and hurt feelings did not prevent a dramatic increase under the Obama administration in arms sales to the kingdom. From 2009 to 2016, Obama authorized a record $115 billion in military sales to Saudi Arabia, far more than any previous administration. Of that total, US and Saudi officials signed formal deals worth about $57 billion, and Washington delivered $14 billion worth of weaponry.

In May 2017, Trump chose Saudi Arabia as the first destination on his maiden foreign trip as president. In Riyadh, he announced with great fanfare a series of weapons sales to the kingdom that would total nearly $110 billion over 10 years. Jared Kushner, Trump’s son-in-law and senior adviser, played a major role in negotiating parts of the agreement, and both were quick to claim credit for a massive arms deal that would boost the American economy. But many of the weapons that the Saudis plan to buy—including dozens of F-15 fighter jets, Patriot missile-defense systems, Apache attack helicopters, hundreds of armored vehicles, and tens of thousands of bombs and missiles—were already approved by Obama.

That continuity in US foreign policy across Democratic and Republican administrations—a policy that favors weapons sales and alliances with autocratic regimes—has made it difficult for early critics of the Yemen war to gain traction in Congress. But as the Saudi-Emirati alliance causes more civilian casualties and as concerns grow over US complicity in war crimes, the Trump administration’s blind support for its allies could backfire in Congress. Already, Senator Bob Menendez, the top Democrat on the Senate Foreign Relations Committee, is blocking the administration from a multibillion-dollar sale of missiles and other munitions to Saudi Arabia and the UAE. In late September, two dozen members of the House, led by Representative Ro Khanna, introduced a resolution that invokes the 1973 War Powers Resolution. The measure argues that Congress never authorized military involvement in Yemen or support for the Saudi coalition, and demands that Trump remove US forces unless Congress votes to authorize a US mission.

Few Americans realize how deeply the United States is implicated in potential war crimes in Yemen—and both the Trump and Obama administrations have been unwilling to stop the bloodshed. It’s now up to Congress to constrain this war.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of YemenExtra.