US leaders who provided military support to the Saudi-led coalition that bombed civilians in Yemen this August could be charged with aiding and abetting the commission of war crimes under customary international law, which is part of US law.
The 500-pound laser-guided MK 82 bomb, which the Saudi-led coalition dropped on August 9, martyred 51 people, including 40 children. The bombing constituted a war crime.
Marta Rivas Blanco, a nurse from the International Committee of the Red Cross who works at the Al Talh hospital, wrote in the Guardian, “They came to the hospital in cars and ambulances; dozens of children with an array of grisly wounds”. “Some were screaming, some were scared, many went straight to the morgue.”
Lockheed Martin, one of the leading US military contractors, manufactured the bomb, which was part of a US-Saudi arms deal last year.
According to customary international law, aiding and abetting a war crime requires three elements: 1) a person or entity committed a war crime; 2) another actor committed an act that had a substantial effect on the commission of the war crime; and 3) the other actor knew that the act would assist, or have a substantial likelihood of assisting, the commission of the war crime. All three of those elements were present in the August 9 bombing.
First, the so-called coalition committed a war crime. Willful killing and the targeting of civilians constitute grave breaches of the Fourth Geneva Convention. The US War Crimes Act defines grave breaches of Geneva as war crimes.
Targeting a busload of children in a busy marketplace is a war crime. The Saudi regime called it “a legitimate military action,” claiming to have targeted “Ansarullah leaders who were responsible for recruiting and training the youths, and then sending them to battlefields.”
Second, US leaders provided the means to commit the war crime. The purchase of the bomb was part of an arms deal with Saudi Arabia that the US State Department sanctioned. In May 2017, on his first stop abroad after taking office, Trump signed a $110 billion arms deal with the Saudi king in Riyadh.
Third, the US military knew that supplying the bomb to the Saudi-led criminals was likely to result in the commission of a war crime. A similar bomb killed 155 people in a funeral hall in Yemen in October 2016.
After the 2016 bombing, the Obama administration, citing “human rights concerns,” banned the sale to Saudi Arabia of precision-guided military technology. That ban was reversed the same month Trump made his deal in Riyadh, and the US government reauthorized the provision of Paveway laser-guided munitions to Saudi Arabia.
The August 9 school bus bombing was one of over 50 airstrikes on civilian vehicles by the coalition so far in 2018. Amnesty International has documented 36 coalition airstrikes, many of which may constitute war crimes.
On April 23, 2018, Saudi aircraft dropped cluster bombs made by Raytheon on a wedding in Yemen, martyring 22 people, including children. When they explode, cluster bombs scatter tiny bomblets. Some remain unexploded and detonate when people accidentally step on them or children pick them up off the ground. These weapons are banned by the Convention on Cluster Munitions, which prohibits all use, stockpiling, production and transfer of cluster munitions.
According to Bruce Riedel of the Brookings Institution, the Saudi war on Yemen could not continue without support from the United States and the United Kingdom.
US military assistance to the Saudi-led coalition includes in-air refueling of Saudi and United Arab Emirates aircraft, logistical support and intelligence sharing. But US involvement in the war escalated late last year when a team of Green Berets secretly arrived at the border between Yemen and Saudi Arabia.
At least 6,385 civilians have been killed and 10,000 injured since the Saudi assault began on the impoverished nation. Airstrikes by the Saudi-led coalition account for over 60 percent of the civilian casualties.
Yemen has one of the world’s largest humanitarian crises. At least 22.2 million people — and nearly all Yemeni children — need humanitarian aid, and it is suspected that more than 1 million people have cholera. Nevertheless, the coalition restricts aid and imports of food, medicine and fuel.
On March 15, 2018, the UN Security Council issued a Presidential Statement calling for full humanitarian and commercial access and insisting the attackers to comply with their international humanitarian law obligations.
The US House of Representatives unanimously passed a non-binding resolution in November 2017, calling on the US military forces to withdraw from “unauthorized hostilities” in Yemen. It stated that US military aid to the Saudi-led coalition in Yemen was not sanctioned by prior congressional authorizations. The resolution condemned the targeting of civilians and urged all parties to “increase efforts to adopt all necessary and appropriate measures to prevent civilian casualties and increase humanitarian access.”
On August 13, 2018, Trump signed the 2019 National Defense Authorization Act (NDAA), which contains an allocation of $717 billion for the US military. In that legislation, Congress included several provisions to achieve accountability for US support of the Saudi-led coalition in Yemen.
Section 1274 directs the US Defense Department to conduct a review of whether the US or Saudi coalition forces in Yemen are violating US or international law. But when Trump signed the bill, he attached a signing statement saying his administration would treat the provisions of section 1274 “consistent with the President’s constitutional authority to withhold information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President’s constitutional duties.”
Section 1290 requires the US secretary of state to certify that Saudi Arabia and United Arab Emirates are making good faith efforts to end the civil war in Yemen; taking appropriate measures to alleviate the humanitarian crisis; undertaking demonstrable actions to reduce the risk of harm to civilians; complying with laws regarding military purchases from the US; and taking appropriate steps to avoid disproportionate harm to civilians.
Trump also attached a signing statement to that provision, saying any certification which section 1290 purported to require would have to be “consistent with the President’s constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs.”
UN Secretary-General António Guterres condemned the August 9 bombing and called for an independent investigation. Saudi Arabia says it will mount its own investigation. And US Secretary of Defense James Mattis vowed to send a three-star general to Riyadh to help the Saudis in their investigation.
Shireen al-Adeimi, Yemeni activist-scholar and assistant professor at Michigan State University, told Amy Goodman on Democracy Now!, “What Yemenis need is really an independent investigation, which has been put forward in the UN twice already and has been rejected by the Saudi-led coalition and the US unfortunately has provided cover for the Saudi-led coalition at the UN.”
Following the August 9 bombing, three letters written by Congress members from the House and Senate requested investigations, explanations and briefings about US support for the Saudi-led coalition in Yemen.
Thirty House Democrats signed a letter to Defense Secretary James Mattis, Secretary of State Mike Pompeo and Director of National Intelligence Dan Coats, expressing “deepening concern regarding the humanitarian crisis in Yemen” and requesting a briefing for all House members during the first week of September “on the policy objectives of the United States with respect to Yemen.” In the letter, the Congress members cited sections 1274 and 1290 of the NDAA.
In addition, the House Democrat Representative from California, Ted Lieu wrote a letter asking the Defense Department’s inspector general to initiate an investigation to determine whether coalition operations in Yemen are violating US and/or international law. Lieu said he was “deeply concerned that continued U.S. refueling, operational support functions, and weapons transfers could qualify as aiding and abetting these potential war crimes.”
Representative Lieu made reference to the conclusion of the UN panel of experts on Yemen that the parties to the conflict, “including the U.S.-supported Coalition, were implicated in ‘widespread violations’ of international law and that measures to minimize civilian casualties remained ‘largely ineffective.’”
And Democrat Senator from Massachusetts Elizabeth Warren wrote to General Joseph Votel, head of US Central Command (Centcom), asking him to clarify his assertion that Centcom cannot determine whether the United States provided assistance for coalition strikes resulting in civilian deaths.
In her letter, Warren cited an article by The Intercept, quoting an intelligence report with “what appear to be comments from an American intelligence analyst” who oversaw a May 2018 strike from a coalition command center in Riyadh, which suggested that US military observers possess detailed information about how strikes are carried out.
The bottom line is that Congress must immediately end all US involvement in the war in Yemen and refuse to appropriate funding for arms sales to Saudi Arabia and the UAE while they continue bombing and blockading Yemen.
That was from an article by Marjorie Cohn, a professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of The Veterans for Peace.
