The US Must End its Complicity in Civilian Casualties in Yemen

Tommy Johnson

On April 17, President Donald Trump vetoed a resolution from Congress calling for an end to United States military assistance to Saudi Arabia for its war in Yemen. This veto illustrates the challenge in reinstating democratic accountability over foreign policy, as well as the degree to which western powers are complicit in Saudi Arabia’s rampant violations of international law.

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By Tommy Johnson

On April 17, President Donald Trump vetoed a resolution from Congress calling for an end to United States military assistance to Saudi Arabia for its war in Yemen. This veto illustrates the challenge in reinstating democratic accountability over foreign policy, as well as the degree to which western powers are complicit in Saudi Arabia’s rampant violations of international law.

The message to take away from the United States’ role in the humanitarian disaster in Yemen is twofold. First, the central decision makers in Washington  — specifically the State Department — must implement a more robust due diligence policy when approving arms sales in the Gulf and worldwide. Second, insofar as the general public can be convinced to care about the plight of the Yemeni people, the electorate must provide pressure for ending the war in Yemen, by holding politicians accountable at the ballot and by pushing for a Congress that seeks to reestablish its authorizational powers over foreign policy decisions.

The war in Yemen broke out in 2014 between Houthi rebels, backed by Iran, and the UN-recognized government supported by the Saudis.

In addition to selling arms 2015, the United States has been providing the Saudi-led coalition with military intelligence, advice, and logistical support, according to the Center for Strategic and International Studies. Government officials have argued that military support has not been directly connected to combat in Yemen — except in instances of self-defense — and instead has focused on advising the Saudi-led coalition on how to optimize targeting procedures so to reduce civilian casualties.

While it is difficult to trace the way that American advice and intelligence materializes in human rights abuses, the lines connecting the point of sale to the battlefield are much clearer. A March 2019 report by Mwatana for Human Rights and The University Network for Human Rights revealed that US-made weapons were found in twenty-five of twenty-seven documented cases of unlawful strikes by Saudi and Emirati forces. One more notable instance was when the coalition struck a school bus with a bomb manufactured by Lockheed Martin, killing 40 children. American-made bombs have been used in indiscriminate bombings in Yemen.

The Saudi-led coalition has carried out indiscriminate attacks that have killed civilians in the market, in school, and in hospitals. Many of these indiscriminate bombings violate both the Geneva Convention and customary international law, meaning individuals credibly implicated in these attacks could be charged with war crimes.

In addition, by aiding or assisting the Saudi attacks through military support and arms sales, the United States could be violating Article 16 of the International Law Commission’s Articles on State Responsibility. Article 16 reflects the case of Bosnia and Herzegovina v. Serbia and Montenegro, in which the International Court of Justice (ICJ) ruled that a state cannot significantly contribute assistance to another in committing an intentionally wrongful act. Human rights groups like the Sana’a-based Mwatana for Human Rights argue that authorizing the sale of the arms used in indiscriminate bombings is a significant contribution. I agree.

Despite the fact that instances like the school bus bombing were covered in the international press, the United States only faced short-lived backlash and its sale of arms has continued. Between October 2016 and October 2018, government-to government sale of arms was $55.66 billion, and direct commercial sales (sales from private contractors) numbered $136.6 billion, according to the Financial Times. While the State Department does not breakdown arms sales by region, Financial Times estimates that a third of authorized sales were directed to Gulf states.

Understanding the nature of this immense operation requires understanding the process by which the United States sells arms to foreign entities.

According to a Cato Institute report documenting the prolific growth of US arms sales, current process for US arms sales can be traced back to the American Exports Control Act (AECA) of 1976. The bill, intended to curb the president’s ability to sell arms without any oversight, formalized the executive branch’s control over the arms sale process. It said that Congress must be made aware by the executive branch of any sale over a certain dollar. As far as legitimate oversight goes, the bill specified that Congress could block an arms deal by passing a resolution within 30 days of official notification. Perhaps unsurprisingly, as opposed to requiring Congressional approval of every major arms deal, this opt-in mechanism has proved ineffective in slowing down the sale of arms to other states. Moreover, per the Cato Institute, without a need to worry about Congressional oversight, the executive branch has been systematically  inadequate in assessing the risk associated with arms deals.

The United States government has long justified arms sales by suggesting that by providing the weapons, they gain leverage in shaping other states behavior. Yet this ‘arms-for-influence’ strategy simply does not pay off.

Firstly, the United States is already fundamentally in support of the war effort. The United States’ articulated position is only that the Saudi-led coalition should strike smarter. There is very little bargaining space between two parties, which both agree that the Saudi-led coalition should be carrying out airstrikes in Yemen in the first place.

Second, if leverage refers more to having a say in the way the war proceeds, it’s not like Saudi Arabia, a close US ally, will suddenly ignore US demands if the US stopped or even reduced its sale of arms to the country.

Finally, the stark reality is that international legal mechanisms are not robust enough for Saudi Arabia, much less the United States, to be charged for war crimes or substantial assistance to war crimes in the near future. Customary international law matters not just because the United States should fear getting in trouble, and Congressional oversight should not matter simply because we care about republican government. The United States should follow the path of the European Union, which declared in 2008 that states should not export weapons that could be used in violations of international law. The extent of the humanitarian disaster in Yemen should preclude any wonky argument on how much leverage the United States has over Saudi Arabia. The United States is helping to deny the universal right to life, liberty, and the pursuit of happiness to the Yemeni people.

These things matter because they speak to the moral imperative on the ground in Yemen. Thousands of civilians in Yemen have been denied their fundamental right to live because of Saudi Arabia’s reckless bombing. Even if US government officials believe the support they are providing is making things better rather than worse, America is still complicit in these bombings. President Trump’s veto is just one more instance whereby the United States has explicitly taken the stance that it will allow the humanitarian crisis in Yemen to continue.

The President has vetoed Congress’s first war powers resolution. Congress should continue passing resolutions rooted in existing legislation that allows it to opt-in to oversight. Since a call for ending military assistance failed, Congress should turn to the AECA and begin targeting specific arms deals that the President is bragging about making with Saudi Arabia. While much of the damage has already been done, it is not too late for Congress to take a stand on Yemen, a move that would help to prevent a largely unregulated and unsupervised flow of arms from the United States to aid interventions like the war in Yemen in the future.

Congress cannot go it alone, though. Right now, the American public simply does not know what’s going on in Yemen. A November 2018 YouGov survey revealed that while 89% of liberals and 54% of conservatives opposed continued arms sales to the coalition, 55% of respondents did not know that the US government sold weapons to the coalition and 64% did not realize that the coalition was striking civilians.

Those who do know what’s happening in Yemen should make it clear to their congressperson that they want change. As the presidential primaries get underway in the next few months, voters should pay mind to the fact that as it stands now, the president and the executive branch has almost unilateral control over authorizing weapons sales to Saudi Arabia. At least until Congress can begin to chip away at this power, the policies of the president go a very long way. A president that articulates a clear understanding of humanitarian law and a clear commitment to standing up for human rights could very quickly reverse the massive uptick in arms sales that we have witnessed not just under Trump, but under George W. Bush and Barack Obama as well.

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