The aftermath of a bombing by the Saudi-led coalition in Yemen. Photo: Almigdad Mojalli/IRIN
The Saudi-led coalition has acknowledged that it carried out the funeral bombing in Sana, Yemen earlier this month, resulting in more than 140 dead and 525 wounded. The attack was particularly egregious because it was a “double tap,” meaning that there were two strikes roughly ten minutes apart, heightening the chance that first responders and medical personnel would be hit in the second strike as they rushed to the scene following the first hit. A UN panel of experts concluded that the strikes “violated [the coalition’s] obligations” under international law and that it “did not take effective precautionary measures to minimize harm to civilians.” The US condemned the attack in the strongest terms and announced that it was reviewing the assistance being provided to the coalition.
According to Britain’s minister for the Middle East, the coalition has announced, cryptically, that the disastrous airstrikes were the result of a “deliberate error” made by an “individual” who “breached” procedure and will now be disciplined. Let’s assume that indeed one individual committed those acts. What are the possibilities for how someone within the coalition chain of command might be individually responsible for the attack, and in what way might that person(s) be responsible? We will refer to the underlying offense as targeting civilians, which is shorthand here for either an attack on civilians per se or an attack involving an excessive loss of civilian life compared to the expected military advantage.
If the targeting of civilians at the funeral were done intentionally or recklessly, then it would constitute a war crime under international law. Recklessness has been defined by a decision of the International Criminal Tribunal for the former Yugoslavia as acting “with the awareness of the substantial likelihood that a crime will be committed in the execution” of an order.
Targeting decisions and airstrikes require the participation of numerous actors, including those who collect targeting information, pass it on, evaluate it, make the decision, and execute it. The Saudi-led coalition’s Joint Incidents Assessment Team (JIAT) has said that “a party affiliated to the Yemeni Presidency of the General Chief of Staff wrongly passed information that there was a gathering of armed Houthi leaders,” and to compound that problem, “[t]he Air Operations Center in Yemen directed a close air support mission to target the location without obtaining approval from the Coalition command to support legitimacy and without following the Coalition command’s precautionary measures to ensure that the location is not a civilian one that may not be targeted.” It sounds, from this, that other individuals committed errors in addition to the “deliberate error.” Assuming these findings were accurate, how would the law apply to these actors and their actions?
Assessing individual responsibility requires examining precisely what each individual who participated in the targeting process did to contribute to the resulting attack on civilians, and particularly what each individual knew and intended at the time. To the extent an individual “breached” procedure or committed a “deliberate error,” the question will be to what extent was that individual aware that as a result of the breach, a substantial likelihood existed of civilians being targeted in the attack. The nature of the breach in procedure will be highly relevant to this inquiry. If the individual violated a core procedural step, as seems to be the case, then it is significantly more likely that the individual acted recklessly, and therefore criminally.
The nature of the individual’s responsibility will also dictate the appropriate consequences. If the individual acted negligently, that is he should have known that his actions could result in the targeting of civilians but was not aware of a substantial risk that this would happen, then administrative discipline would be appropriate. However, if the individual breached procedure intentionally or recklessly, then criminal prosecution and sanction would ordinarily be required as a matter of international law.
Without more information, it is difficult to assess the liability of the individual who, according to the coalition, breached procedure, but some clues suggest that he was at least reckless in his actions. The failure to obtain approval from the Coalition command and to follow prescribed precautionary measures are fundamental violations in procedure, and it is hard to imagine that they could have been done without an awareness of a substantial risk that the airstrikes would go very wrong, resulting in the targeting of civilians. The coalition’s announcement that an individual committed a “deliberate error” is far from clear, but suggests at a minimum a reckless act.
Without knowing the details, however, it is impossible to know for certain what the coalition concluded about the liability of the individual who violated procedure, and what it should have concluded about his liability. This in itself is a fundamental failing: the coalition has an obligation at this point to be more transparent and forthcoming about what it concluded with respect to individuals who violated core procedures or engaged in a “deliberate error” and should also be more forthcoming about the facts underlying their investigation. A failure by commanders within the Saudi-led coalition to take adequate measures to punish subordinates who have committed war crimes could result in criminal liability for the commanders themselves under the principle of command responsibility. Considering the US’s review of its relationship with the coalition, these commanders have both legal and pragmatic reasons to be more forthcoming.
Finally is the matter of the legal obligation of states. Each government is legally responsible for the acts of its officials—including ultra virus acts (outside the scope of an individual’s assigned authority) and acts committed through negligence. For example, if an intelligence official in Yemen’s government committed a war crime in deliberately passing wrong information about the target, and a Saudi military officer acted negligently in carrying out the strike without following precautions, Saudi Arabia would still be legally on the hook for the latter. It would be required of both governments to remedy the violation of law, for example, by paying adequate compensation to the victims and their families.
It is welcome news that the JIAT concluded that “compensation must be offered to the families of the victims,” and that Saudi Arabia told the UK that compensation is now coming to the victims. It is also a state obligation to punish criminal wrongdoing of this character. We await to see what the coalition says about criminal investigations, given their disclosure of an apparent war crime by at least one individual.
[Editor’s Note: Be sure to check out Just Security‘s complete coverage of the US and UK supported, Saudi-led coalition operations in Yemen.]