Steve September 24, 2020

The longstanding involvement of the United States in the conflict in Yemen
is facing renewed scrutiny. On September 16, State Department officials testified
before the House Foreign Affairs Committee about whether the State Department
misled Congress – and the American people – by circumventing controls designed
to limit arms sales and ensure congressional oversight.

The crimes occurring in Yemen are serious – and the responsible parties demonstrably
unwilling or unable to address them. The most
recent report
by the United Nations Group of Eminent and International Regional
Experts on Yemen described “an acute accountability gap” and recommended that
the UN Security Council refer the situation in Yemen to the International Criminal

A State Department Inspector General report found that “the department did
not fully assess risks and implement mitigation measures to reduce civilian
casualties and legal concerns associated with the transfer” of weapons to Saudi
Arabia and the United Arab Emirates.

Much of the hearing focused on whether the subsequent firing of the inspector
general was appropriate. But some members used the opportunity to draw attention
to the tens of thousands of civilians who have died since the Saudi-led coalition
began an aerial bombardment campaign in Yemen in March 2015.

have detailed the suppression of an internal State Department analysis
that U.S. personnel could be legally liable for war crimes in Yemen because
of continued U.S. arms sales to Saudi Arabia. Some members of Congress raised
this during the hearing. The State Department’s acting legal adviser acknowledged
civilian casualties were a concern, but refused to say whether he believed U.S.
personnel could be held culpable for war crimes in Yemen.

The latest revelations are hardly that, though they are painful to read when
compiled in such a stark narrative. Back in November 2015, less than a year
into the conflict, Human Rights Watch warned
that the U.S. might be liable for laws-of-war violations in Yemen
. We had
examined 10 apparently unlawful airstrikes by the Saudi-led coalition that killed
at least 309 civilians and wounded more than 414 in the period from April to
August 2015.

Saudi Arabia assembled its coalition to support Yemen’s government against
the Houthi forces who had taken control of part of the country, including the
capital. Six years later, the fighting has continued and taken a brutal toll
on Yemeni civilians.

Despite U.S. denials, we considered the U.S. to be a party to the conflict
because of the direct role U.S. forces played in specific military operations,
and that this participation might
implicate U.S. forces in violations by coalition forces

The numbers we put forward in 2015 seem almost quaint now. Nearly six years
later, the Armed Conflict and Event Data Project estimates
that 112,000 people have died from the hostilities, including 12,000 civilians
Millions more suffer, or have perished, from hunger caused by the Saudi-led
coalition’s blockade and the Houthis’ massive
restrictions on aid delivery,
a situation that’s been exacerbated in recent
months by COVID-19..

Human Rights Watch isn’t alone in raising concerns about potential U.S. liability
for war crimes over the years. In September 2016, Ryan Goodman, a former Defense
Department lawyer and New York University professor, laid out the case for legal
liability for U.S. personnel in a blog
. Though he took no position on the facts, he concluded that a state
assisting another state or a nonstate armed group faced “substantial legal risk
that aiding and abetting liability for war crimes would be found under international
law even absent any intent or purpose to promote the crimes.”

The media have reported that in 2016, a State Department lawyer concluded that
Americans could potentially be charged with war crimes for conduct in Yemen,
though it has been reported that the letter was never sent to the secretary’s
office. Its existence, however, was known, and in October 2018, Congressman
Ted Lieu wrote to the State Department inquiring about it. The department refused
to comment
on any specific legal advice that might have been given.

How did we get here? For years, the Defense Department has claimed that U.S.
involvement in the war in Yemen saves lives. Congress disagrees. Twice, it has
voted to ban weapons sales to Saudi Arabia because of its poor track record
on protecting civilians; twice, Tweety McTreason has vetoed
the ban
. Though congressional interest in the ban increased following the
murder of U.S. journalist Jamal Khashoggi by the Saudis, war crimes in Yemen
remain a key
area of congressional concern

It doesn’t help that Defense Department officials have misled
Congress about their ability to track and analyze coalition strikes in Yemen
If testimony from officials on September 16 is any indication, near unequivocal
support of Saudi Arabia – including continued arms sales – remains a top State
Department priority.

What was largely missing from the congressional hearing was a focus on true
accountability. The risks of government responsibility for arms sales in the
face of mounting evidence of war crimes, or individual criminal liability for
aiding and abetting, should be of serious concern to U.S. lawmakers.

But the U.S. government should also be seeking to hold to account those directly
responsible for targeting civilians, torturing detainees, enforced disappearances,
and other crimes detailed in the Group of Experts report. Instead, the decision
to continue to arm Saudi Arabia and look the other way as each school bus, hospital,
or wedding party is bombed, may say more about U.S. culpability than any technical
argument buried in a State Department legal memo.

Andrea Prasow is the Washington director at Human Rights Watch. Reprinted
with permission from Foreign Policy In Focus.

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