Yemen’s consent for U.S. counterterrorism operations: Questions for the Trump Administration

On Thursday, the New York Times reported that Yemen had withdrawn its consent from US Special Operations ground missions in the country, following a commando raid Jan. 29, which resulted in the death of a number of civilians, including an 8-year-old girl, and a Navy SEAL. After two days of speculation, during which reports surfaced that Yemeni officials merely expressed their “reservations” and the White House only perpetuated the uncertainty (see White House Press Briefing of Feb. 8, at 32:10), the Yemeni Embassy in Washington DC issued an unusual statement that the Government of Yemen “has not suspended any programs with regard to counterterrorism operations in Yemen with the United States” and “reiterates its firm position that any counterterrorism operations carried out in Yemen should continue to be in consultation with Yemeni Authorities and have precautionary measures to prevent civilian casualties.” Despite this statement, many questions remain.

The uncertainty that followed the New York Times report brought again into the spotlight the issue of host-country consent for US counterterrorism operations. The lack of transparency surrounding both the fact and details of any consent given, and who within a government actually gives consent, has been one of a number of concerns that legal experts and civil society organizations have raised when assessing the legality of U.S. drone strikes.

Most of the coverage on these issues relies—because of government secrecy—almost exclusively on anonymous sources, who may have ulterior motives in what they say and disclose. The uncertainty that results, as in this case, underscores exactly why greater transparency is needed. The Yemeni government’s official response—a direct result of the scrutiny resulting from the New York Times report—was a rare official acknowledgement, but the scope and extent of Yemen’s consent for US counterterrorism operations remains unclear.

Here, I briefly set out the importance of consent under international law, and the lack of transparency surrounding consent for U.S. operations in Yemen and elsewhere. I’ve also included suggested questions for journalists to ask the Trump Administration on these issues. I do not address the numerous other questions and concerns that remain about the raid itself, which have been addressed at length here, here, here, here, here, and here.

Consent under international law
For its actions to be lawful under the UN Charter, the US must have the valid consent of that country’s government before carrying out a counterterrorism operation in another country, unless it is acting in self-defense or pursuant to a UN Security Council Resolution. Where a host state withdraws consent for operations on its territory, the state seeking to carry out operations there must respect this.

A related issue is whether a state can carry out operations in the territory of another state where the territorial state is “unable or unwilling” to address the threat. The U.S. government’s reliance on this theory remains highly controversial as a matter of international law, and, in my view, lacks legal foundation. The very concept of “unable or unwilling” calls into question the legal framework surrounding the law of self-defense and consent. For example, if Yemen were to withdraw its consent, would the US then consider it “unwilling” to address the perceived threat, and thus view its actions as legally justified, essentially rendering Yemen’s consent immaterial?

Consent is also an important part of determining the host state’s responsibility. Host states cannot consent to unlawful acts on its territory. Additionally, where an alleged unlawful act is committed by the intervening state with the host state’s consent, the host state will usually have at least an obligation to investigate.

Consent, transparency and uncertainty
Both the fact and details of consent should not ordinarily be kept secret. While consent for a specific pre-planned operation that has not yet occurred may in some circumstances justifiably be kept secret prior to the operation on grounds of national security, the same is not true for consent that is more general in nature (e.g. for all drone strikes against al-Qaida in the Arabian Peninsula in Yemen), or for past operations. It is not just the fact of consent, but the details, which are important—consent does not have to be all-or-nothing, as states can make their consent conditional on certain criteria. The details may also reveal if the host state has consented to an unlawful act contrary to its own legal obligations (for how this may raise questions about the validity of the consent itself, see here).

However, as has been evident in U.S. drone operations overseas, the fact and details of any consent given is often secret. For example, while it has been reported that officials in Pakistan have “consented” to U.S. drone strikes in the country, the fact and details of Pakistan’s consent have never officially been disclosed by either government, reportedly because of concerns about domestic political optics. Reports that consent was obtained merely by sending the Pakistani authorities faxes about drone attacks—and without getting any response from Pakistani officials—raise further questions about the scope and extent of the consent given.

In relation to Yemen, the UN Special Rapporteur on counter-terrorism and human rights, Ben Emmerson, stated in a September 2013 report that “The Government of Yemen has informed the Special Rapporteur that the United States routinely seeks prior consent, on a case-by-case basis, for lethal remotely piloted aircraft operations on its territory through recognized channels. Where consent is withheld, a strike will not go ahead.” However, it was not until 2016 that the U.S. government itself officially confirmed that it had the consent of the Yemeni government when carrying out operations there, but it did not provide any details on how consent was given, who within the Yemeni government gave consent, or whether the consent was subject to any limitations.

There has also been uncertainty surrounding whether consent has been validly given. In Yemen, this question has been especially complicated and controversial, given that President Hadi, upon whom Saudi Arabia relies for its own interventions in Yemen, overstayed his term in office, resigned and even fled the country to Saudi Arabia for six months in 2015.

The US has itself acknowledged these difficulties, stating that it “can be a complex matter to identify the appropriate person or entity from whom consent should be sought and the form such consent should take,” and that it carefully “considers these issues when examining the question of consent.” This statement only underscores the need for greater transparency on this issue.

Suggested questions for journalists to ask the Trump Administration
Below is a list of suggested questions aimed at keeping both governments (the US and Yemen) as honest as possible, which is challenging in a situation where both countries have an interest in obscuring the facts. Pressing on these issues and others may help to shed more light on the legality of both future and past U.S. operations there:

  • How is consent communicated to the U.S. government and by whom?
  • How is withdrawal of consent communicated to the U.S. government?
  • Would the US abide by a decision of the Yemeni government to withdraw consent for operations?
  • Is consent obtained for each drone strike or other counterterrorism operation?
  • What is the scope of consent given by Yemen for U.S. counterterrorism operations in its country? For example: Geography (all or just part of the country)? Time (how long? Does it need to be renewed)? Types of operations (e.g. drone strikes; ground operations)?
  • What does the consent allow and according to what law (domestic and international)? Killings? Detention?
  • How does the U.S. government assess that consent is validly given by a foreign government? What factors does it take into account when making such a determination? Does it do anything to ensure that its interpretation of the consent aligns with that of the host country?
  • Request the U.S. or Yemeni government to disclose the details of any existing consents for U.S. counterterrorism operations in Yemen. If disclosure is refused demand what reasons there are for non-disclosure.

 

Image: A mural depicting military images is shown November 20, 2005 in Sana’a Yemen – Brent Stirton/Getty

  

About the Author(s)

Alex Moorehead

Lecturer-in-Law at Columbia Law School, Director of the Counterterrorism, Armed Conflict and Human Rights Project at Columbia Law School's Human Rights Institute Follow him on Twitter (@apmoorehead).