In December, the Obama administration suspended a large weapon sale to Saudi Arabia due to concerns about widespread civilian casualties from Saudi airstrikes in Yemen. The Trump administration is now looking to reverse that decision.
If the White House approves the sale and overcomes expected congressional opposition, it could leave bureaucrats in the State Department holding the bag—under pressure to approve sales that put them personally at legal risk.
Policymakers may believe there are overriding U.S. interests favoring U.S. support for Saudi Arabia in its proxy war with Iran in Yemen, but that kind of policy calculation does not resolve the legal risks involved.
Under international criminal law, and perhaps U.S. federal law, individual officials may be personally liable for “aiding and abetting,” or helping to commit, serious breaches of the laws of war.
The Department of Defense’s Law of War Manual may not serve policymakers well in this important respect. The DoD Law of War Manual states that aiding and abetting a war crime requires that an accomplice has “a desire to help the activity succeed.”
If that were the legal rule, U.S. government officials could rest easy knowing that they obviously don’t desire the Saudis to use U.S.-manufactured weapons to target or kill civilians. That’s not, however, what the law actually says.
The key source of authority that the Law of War Manual cites is an Opinion by the Justice Department’s Office of Legal Counsel—but that Opinion, authored by one of the most highly respected attorneys to ever lead the office, clearly reached the opposite conclusion.
Walter Dellinger wrote the Opinion warning administration officials that they could be found guilty for aiding and abetting by sharing official intelligence with foreign governments that used that information to shoot down civil aircraft. That scenario now sounds hauntingly familiar.
Dellinger explained that having a desire to facilitate an offense is part of the standard elements required for an accomplice to be culpable, but not when the act of the recipient government involves a “particularly grave” or serious criminal act. When it comes to those more serious offenses, the Opinion stated, knowledge that one’s assistance would support the act could alone suffice.
It is difficult to imagine that war crimes would not fit that category. Indeed, under international criminal law, including across different war crimes tribunals that have adjudicated the question, defendants can be found guilty of aiding and abetting even if they had no desire to facilitate the crime.
And down at Guantánamo, the chief prosecutor in the central case against Khalid Shaikh Mohammad has relied on the well-founded theory that for aiding and abetting charges to stick, “the knowledge required is simply a knowing participation that the acts would assist the commission of a crime,” as his legal brief states. “A conscious desire or willingness to achieve the criminal result is not required.”
It is fair to ask what could have changed since December to convince the administration that the concerns about civilian casualties have lessened. The straw that appeared to break the camel’s back during the Obama administration was a Saudi coalition strike on a funeral home that left well over a hundred people dead and nearly 700 injured. The strike, like some others that resulted in mass civilian casualties, reportedly involved U.S.-manufactured laser-guided munitions.
Senior U.S. officials formally briefed reporters, saying that there was “absolutely no justification for the strike.” In October, the White House announced the launch of a review of the Saudi coalition’s activities, which led to the arms sales suspension in December.
Since then, even more information has come to light indicating wrongdoing and reasons not to rely on assurances by the Saudi-led coalition.
First, in December following revelations by Amnesty International, the Saudi coalition finally admitted to using cluster bombs in Yemen, contradicting a long, long, long pattern of outright denials.
Second, in January a panel of independent experts, acting under a U.N. Security Council mandate, issued a detailed report that was nothing short of a damning indictment of “widespread violations” of the laws of war by all parties to the conflict.
The experts closely examined 10 strikes by the Saudi coalition and concluded that it is “almost certain that the coalition did not meet international humanitarian law requirements of proportionality and precautions in attack,” according to the report. “The Panel considers that some of the attacks may amount to war crimes.”
Third, former senior U.S. officials have now gone on the record about their conclusions concerning the misuse of American arms. One of the most important statements came in testimony before the Senate Foreign Relations Committee earlier this week by Dafna Rand, who served as deputy assistant secretary at the Department of State until earlier this year and is now at the National Defense University.
Rand says that the only observable improvements in Saudi targeting practices came after the administration publicly raised concerns about U.S. assistance in October. Among other things, that trend would indicate the Saudi coalition could, in fact, control the effects of its targeting on civilians. Rand testified in the following terms:
In looking over the two years and charting improvements, because that’s what you’re asking about—is trends over time and where we’ve seen them go up and down. Really, the only two- or three-month period that I saw some progress was after the White House in October of 2016 had to raise publicly their concerns about security assistance.
That deterred them, they were concerned. They heard that message. Although it was critical of an ally and a friend, it deterred, and in a sense some people really watching the practice.
So where does all this leave current administration officials—inside the State Department’s Bureau of Political-Military Affairs and its Office of Regional Security and Arms Transfers—who have to make the grueling decision to approve specific arms sales?
An added problem for them is that they now inhabit an administration with a significant legitimacy deficit. As I wrote before the inauguration, “the lack of public trust in Trump and the President-elect’s disinclination to respect the standard laws of war increase the likelihood of scrutiny by prosecutors, courts, foreign allies, and others.” That likelihood has since increased.
Another risk lies over the long horizon. As a candidate, Trump threatened to prosecute the former secretary of state and perhaps members of her staff, which a large body of Americans supported. In a similar step, Attorney General Jeff Sessions recently suggested he might ask for a special prosecutor to review actions of the Justice Department under the Obama administration.
At some point, those kinds of statements begin to erode the idea that successor administrations will be unlikely to take such actions against their predecessors. While senior Trump officials may toy with such ideas even out in the open, they imperil lower-level staff by doing so. That might, according to some viewpoints, be a step forward for accountability.
It is not very comfortable for lower-level officials who could be left holding the bag.
Ryan Goodman is co-editor-in-chief of Just Security. He is the Anne and Joel Ehrenkranz professor of law at the New York University School of Law. He served as special counsel to the general counsel of the Department of Defense (2015-16).