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US Seeks New Assurances from Saudis on Civilian Casualties—but is that even possible?

The Trump administration is reportedly seeking a new set of assurances from Saudi Arabia that it will minimize civilian casualties in its air campaign in Yemen—but would those assurances be credible? The effort to get new safeguards in place is now part of the process of determining whether to renew a sale of precision guided missiles to Saudi Arabia, Reuters’ Warren Strobel and Arshad Mohammed report. In December, the Obama administration suspended the weapons sale out of a concern for massive loss of civilian life from Saudi airstrikes.

I have previously written about the risk of individual liability for US officials in potentially aiding and abetting war crimes through arms transfers. And I have written about the types of assurances—or “mitigation measures”—that a legal opinion by the Justice Department’s Office of Legal Counsel suggests could minimize or eliminate those types of legal risks.

In the case of the Saudis, however, a satisfactory reduction of the legal risk may be difficult, if not impossible, to achieve in the current environment. First, consider the systemic problems in Saudi targeting operations discussed by a former Deputy Assistant Secretary of Defense. He wrote:

“We at the Pentagon often explained to our exasperated colleagues at the White House each time an errant (or deliberate) Saudi bomb killed Yemeni civilians, the deficiencies in the Royal Saudi Air Force at the operational level were glaring, and it was hard to rebuild the proverbial airplane while it was in the air.
… decades of U.S. training missions had not produced a Saudi military capable of independently planning and executing an effective air campaign that minimized collateral damage.”

As I explained earlier this week, to some this statement is an “added reason to back away from support for the Saudis knowing that they will not be improving their highly deficient targeting practices anytime soon.” In other words, one might even go as far as to assume the Saudis have the best of intentions, but that may not readily cure the types of structural weaknesses the former DoD official describes, especially while the war is raging.

Second, consider the source of the assurances. The Saudis have proven, time and again, to play fast and loose with the truth.  As just one example, I recently cataloged the Saudis’ long pattern of denials on their use of cluster munitions until their mea culpa in the face of an Amnesty International report and British government inquiry late last year.

This leaves the U.S. administration in a difficult legal and political position. To its credit, it sounds like the administration is seeking new assurances. But the U.S. government will need to be very realistic about whether it can have any confidence in those assurances, even in a best case scenario of the Saudis having a genuine interest in fulfilling them.

 

 

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About the Author

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, Former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter (@rgoodlaw).