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Aiding and Abetting for Saudi War Crimes: Lessons from Holder v. Humanitarian Law Project

In 2010, human rights organizations argued in Holder v. Humanitarian Law Project that if we want to promote compliance with the law of armed conflict, we cannot punish advocacy groups who help human rights violators comply with the law. If we accept that argument, then why should human rights advocates suggest that the United States is automatically liable “as a matter of law” for unlawful Saudi-led coalition military strikes in Yemen on which the US Defense Department provides targeting assistance?

In Holder, organizations including Human Rights Watch and the ACLU, maintained that the Patriot Act’s material support prohibition wrongfully exposed human rights advocates to criminal liability for providing human rights-oriented assistance to designated terrorist groups. They understood that, for the law or armed conflict to function, parties must understand how to apply it and that third party advisors can play an important role in this process. “Effective human rights advocacy often requires…explaining to the perpetrators their obligations under human rights and humanitarian law, and advising the perpetrators how to comply with those obligations,” reads the amicus brief in support of Humanitarian Law Project (emphasis added).

Recently, when Ryan Goodman argued against automatically extending liability to States who advise on unlawful military strikes, he used the same logic of the human rights community in Holder: that such a policy would harmfully discourage providing counsel on International Humanitarian Law (IHL). Is there a way to reconcile the human rights community’s position in Holder with a policy of automatic liability for States who provide IHL assistance on unlawful military strikes? 

There are several potential responses to this challenge:

First off, maybe those arguing that the US is necessarily liable for providing targeting assistance on unlawful strikes did not intend to extend that argument to cases where the DOD merely provided assistance directed towards ensuring compliance with IHL.

Second, human rights advocates who do maintain that the US is still liable, even in the case of IHL-focused assistance, can argue that different approaches are demanded by the major distinctions between DOD targeting assistance and the work of groups like the Humanitarian Law Project. I want to address two of these potentially relevant distinctions:

  • That the plaintiff organizations in Holder were, first and foremost, advocating for non-violence for impartial humanitarian good; whereas DOD targeting assistance is oriented around the use of violent force aimed towards advancing US interests; and:
  • That the plaintiffs’ IHL assistance primarily took the form of general advice; whereas the DOD is advising on particular targeting decisions

These are both significant distinctions between the general character of DOD assistance and the counsel provided by human rights groups. But, on the first point, it’s clear from the amicus brief in Holder that the human rights community did seek to provide counsel on the use of violent force, in addition to their non-violence advocacy. “HRW may also educate [perpetrators] on their specific obligations under international human rights and humanitarian law and advise them on the particular steps the groups must take to bring their actions into compliance with the law,” it states.

Providing advice on IHL doesn’t just mean advising on when use of violent force is unlawful, it implicitly entails advising on when violent force is lawful. If we think that’s a good thing to do (and we presumably do, if we think IHL works), then we shouldn’t penalize the US government for doing the same thing, even if it’s motivations are selfish, as opposed to humanitarian.

The second point, regarding specific vs. general advice, doesn’t justify the disparate treatment either. Firstly, the Holder brief defends the provision of “specific advice” as to how perpetrators should implement recommendations “in practice.” And even if these human rights groups didn’t envision going as far as actually giving the legal green light on particular strikes, it’s not clear why they would want to discourage that. On the contrary, if our goal is to actually ensure compliance with IHL, we want the legal counsel to be as specific as possible. Ensuring that particular strikes are vetted by IHL experts before they occur is likely the ideal form of IHL legal assistance. Providing general guidance might make us feel less complicit, but if we want to ensure the law is operationalized appropriately, involvement in particular targeting decisions is fundamentally superior.

One final response to the apparent contradiction is to argue that we should hold human rights advocates liable when they provide IHL assistance on strikes that are ultimately determined to be unlawful. It’s not inconceivable that the human rights community would want to punish organizations who give the green light on unlawful strikes, if they should’ve known better. Nevertheless, it seems to me that the answer should remain the same: don’t punish the mere provision of  IHL assistance, even when it’s incorrect.

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About the Author

Former Associate Editor and Masiyiwa-Bernstein Fellow at Just Security Follow him on Twitter (@JayShooster).