By - Cassady Rosenblum
A boat carrying 140 Somali refugees was traveling from Yemen to Sudan in the dark, early hours of March 17 when suddenly an Apache helicopter appeared overhead. Hovering over the bodies huddled on the deck below, it opened fire, killing 42 people on board.
“I knew too well that my daughter was between life and death when she went on this journey,” Sahara Osman, the mother of one of the victims told Al Jazeera. “But I have never heard of missiles raining on civilians on a boat.”
Last week, a United Nations investigation accused the Saudi-led coalition that has been fighting Houthi rebels in Yemen of firing those missiles. But are the coalition countries alone to blame? After all, the United States supplies billions of dollars’ worth of military equipment used in the fighting. In 2016, for example, the United States sold $3.5 billion worth of Apache helicopters to the United Arab Emirates, a coalition member that has naval forces in the area where the missiles were fired in March. The U.S. regularly makes similar weapons sales to Saudi Arabia, Kuwait and Jordan, all of whom are coalition members.
Since 2015, Human Rights Watch has documented 81 apparently unlawful coalition strikes in Yemen and found U.S.-supplied weaponry at 23 of those sites, including the March 2016 Mastaba market attack which killed at least 97 civilians, and the October 2016 attack on a funeral service in Sana, which killed at least 100 people and wounded more than 500. Other unlawful coalition strikes have destroyed farms, factories and warehouses that produced or distributed goods such as food and medicine. As a result, cholera and food shortages have consumed the country; according to the World Health Organization, 400,000 suspected cases of cholera have been reported in the last three months alone, and 2 million children are acutely malnourished.
Nevertheless, Congress approved an additional $500-million sale of weapons to the Saudis in June.
If moral concerns don’t give Congress pause, perhaps legal concerns should. According to Ryan Goodman, a New York University law professor and former special counsel at the Department of Defense, the provision of weapons — and the knowledge that they are being misused — creates “substantial legal risk” for the United States. Even if the U.S. did not intend to promote war crimes, it could be guilty of aiding and abetting them, Goodman said. In other words, if the U.N. discovered that U.S. helicopters were used in the attack, U.S. officials could conceivably be in violation of international law.
It would not be the first time a country or its leaders were accused of facilitating war crimes carried out in a foreign land by someone else. In 2015, Charles Taylor, the former Liberian president, was convicted of aiding and abetting some 11 war crimes that occurred in Sierra Leone, making him the first former head of state to be convicted by an international tribunal since Karl Donitz at the Nuremberg trials.
Although it may feel like a stretch to compare an American bureaucrat in Washington to a notorious African warlord like Taylor, State Department lawyers, advising the Obama administration before it went through with a $1.3-billion weapons sale to the Saudis in 2015, did just that in considering the legal ramifications of selling arms to Saudi Arabia.
Whether the Saudis were intentionally targeting civilians or not may not matter when it comes to the U.S.’ legal responsibility. According to Brian Finucane, an attorney-advisor for political-military affairs at the U.S. State Department, if a state knows that a country shopping for weapons doesn’t have the technical training or discipline to avoid inflicting civilian casualties, but it makes the sale anyway, such a transfer could be characterized as reckless, and officials in the selling country could be held criminally liable. In the case of the Saudis, the State Department knew they were unprepared. "The strikes are not intentionally indiscriminate but rather result from a lack of Saudi experience with dropping munitions and firing missiles," a State Department official told a private human rights group in 2015.
Ultimately, the Senate decided to ignore the legal arguments and approved the weapons sale to the Saudis (by a vote of 71 to 27) last September. It did so again narrowly (53 to 47) this June. Whatever reticence some senators expressed may have been alleviated in part by the knowledge that it would be difficult for the international community to bring a war crimes charge. The U.S. would probably ignore any investigation by the International Court of Justice and International Criminal Court, which normally oversee such cases. In 1986, the ICJ ruled that the U.S. had violated Nicaragua’s sovereignty when it supported the Contra rebels there and planted mines in its harbors. After the Court decided it had jurisdiction over the case, the U.S. backed out. The U.N. attempted to enforce the decision, but the U.S. used its seat on the Security Council to block the effort.
Similarly, the ICC is out of the question because Yemen — where the offenses are occurring — has not ratified the Rome Statute, which created it. According to Beth Van Schaack, who is a visiting professor of human rights at Stanford Law School, the Security Council could refer the situation in Yemen to the ICC, but again, the U.S. would probably block the referral vote, as Russia has done with respect to Syria.
Whether it be liability concerns or just humanitarian ones, some members of Congress are working to distance the United States from the devastation the coalition is causing in Yemen.
This month, the House added three amendments to the proposed National Defense Authorization Act for Fiscal Year 2018 that, if approved by the Senate, would rein in U.S. participation in Yemen. Two of the amendments would in effect block U.S. refueling of Saudi and UAE warplanes bombing in Yemen. A third, by Rep. Ted Lieu (D-Torrance), would require the State and Defense departments to report to Congress on whether the Saudis are following their commitment to bomb fewer civilians in Yemen. In return for the $500-million weapons sale in June, the Saudis promised to launch a $750-million multiyear training program to teach their air force how to avoid civilian casualties.
The Senate should embrace these amendments, but lawmakers also need to start asking themselves harder questions about whom the U.S. chooses to befriend in the Middle East and why. Any country that intentionally or recklessly attacks a boat carrying unarmed refugees to safer shores is not an ally that shares our values. We can’t afford to let our relationship with the Saudi kingdom and its satellites become more of a liability than an asset.