The destruction.

Photographer: Mohammed Huwais/AFP/Getty Images

U.S. Lawyers Fret as the Saudis Bomb

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A Saudi airstrike that destroyed a funeral hall and killed 140 people Saturday in Yemen is a scenario U.S. lawyers have been worried about under international law. Documents obtained by Reuters reveal that State Department lawyers were concerned that arms sales to the Saudis might make the U.S. liable for war crimes the Saudis might commit. The U.S. hasn’t been giving targets to the Saudis but, problematically, it has provided a no-strike list including critical infrastructure. In effect, that may make the U.S. complicit in targeting decisions like the one that tragically hit the funeral hall. Worse, the U.S. has been refueling Saudi warplanes for strikes in Yemen.

The documents suggest a welter of concerns and proposed remedies -- some of which may have made the legal situation worse. One document refers to a “paper on options for engaging the Saudis on minimizing civilian casualties in Yemen” that was ordered by the National Security Council. The paper hasn’t been released, but the available document says that it discusses “LOAC,” the laws of armed conflict. This suggests that the White House was aware of and concerned about Saudi targeting of civilians -- including the legal dimension. Another refers to “options to limit U.S. exposure to LOAC concerns.”

The government worry seems to have focused on U.S. munitions sales to the Saudis, which have totaled more than $22 billion since March 2015, including $1.3 billion in targeted munitions to be used in Yemen. In a 2013 decision involving Liberian warlord Charles Taylor, the International Criminal Court extended liability for war crimes to those who offer “practical assistance, encouragement or moral support” to the people who commit the crimes.

QuickTake Yemen's Fault Lines

That’s a pretty expansive definition. Taken literally, it could cover anyone who sells arms to an entity that uses the arms to commit crimes. That would be an almost unworkable interpretation.

But the government lawyers seem to have been concerned about it anyway. One document says that “end use monitoring (of weapons previously sold to foreign nations) is an issue under discussion and … problems in Yemen are leading people to think more about this.”

The primary U.S. response to these legal worries seems to have been to give the Saudis a “critical infrastructure list” in 2015. A set of talking points to accompany the list described it as “a list of critical infrastructure that is required to re-start critical commercial access and deliver humanitarian assistance in the country.” The talking points said the list complemented the United Nation’s no-strike list of hospitals and schools.

No doubt it was morally good for the U.S. to provide the list. And legally, it could be argued that providing the list distances the U.S. from culpability when the Saudis hit unlawful civilian targets.

But telling an ally where not to strike is in practice closely connected to telling the same ally where to drop bombs. Imagine that the Saudis avoided anything on the no-strike list provided by the U.S. but felt free to bomb elsewhere. That would arguably deepen U.S. complicity, not reduce it. The UN probably won’t be found responsible under international law for its list. The U.S., a sovereign state, is different.

Then there’s the refueling. Since the Saudi bombing began in early 2015, according to the Washington Post, U.S. planes “have flown more than 1,000 refueling sorties and offloaded tens of millions of pounds of fuel to Saudi aircraft.”

It isn’t a legal stretch to say that refueling a plane that then bombs civilians is aiding and abetting the bombing. No refueling, no bombing. That’s a concern raised by Representative Ted Lieu, a California Democrat who is an Air Force reserve lawyer and knows what he’s talking about.

In the revealed documents, one U.S. government official speculated that the Saudis aren’t hitting civilian targets on purpose, but through incompetence and bad intelligence. That could be true, and it would mitigate criminal liability.

But it’s also possible that the Saudis are either criminally negligent or have knowingly aimed at civilian targets. If so, the refueling alone might well expose the U.S. to liability.

It’s no surprise, then, that in response to the funeral hall bombing, NSC spokesman Ned Price said that the U.S. had “initiated an immediate review” of its support and insisted that “U.S. security cooperation with Saudi Arabia is not a blank check.” 

These formulations aren’t merely political efforts to distance the U.S. from association with atrocities. They are carefully scripted moves in a complex legal and bureaucratic game. Externally, they are meant to protect the U.S. from legal liability. Internally, they are meant to signal to the State Department lawyers that their concerns are being taken more seriously now than they were back when the lawyers expressed them.

The Saudis have created a board to investigate civilian casualties. That’s important, because international criminal investigations typically don’t start unless the wrongdoer has proved unable or unwilling to redress the wrong. But the Saudi investigation will have to be credible to satisfy international law. If not, Saudi Arabia could find itself charged with war crimes -- and the U.S. could be in the dock alongside its ally.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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