Jared Kushner played a leading role in orchestrating a $100 billion arms deal with the Saudi government, according to the New York Times. At the same time the Saudi air force has allegedly engaged in repeated war crimes in Yemen, including attacks on schools, hospitals, and a funeral home, on many of these occasions reportedly with the use of US weaponry. Discussing the Saudi-led campaign in Yemen, Human Rights Watch’s Kristine Beckerle wrote earlier this month of “the twenty-third time Human Rights Watch had identified remnants of U.S.-supplied weapons at the site of an apparently unlawful coalition attack.” As uncomfortable as it is for me to write this, Kushner may be stepping directly into the zone where US officials can become liable for aiding and abetting Saudi war crimes. One question this raises is what mitigation measures, including assurances from the Saudis, might the Trump administration pursue to avoid such risks.
This would not be the first time for US officials to consider such questions, according to news reports. Based on internal government documents received through the Freedom of Information Act, Reuters’ Warren Strobel and Jonathan Landay wrote in October of last year:
“The Obama administration went ahead with a $1.3 billion arms sale to Saudi Arabia last year despite warnings from some officials that the United States could be implicated in war crimes for supporting a Saudi-led air campaign in Yemen that has killed thousands of civilians.”
In a piece entitled, “U.S. Arms Sale to Saudis Spells Legal Trouble for State Department Officials,” I drew a similar conclusion about the legal risks, and I explained a flaw in the Defense Department’s Military Manual that could unintentionally lead to poor advice to senior officials. The Manual would tell them they are not at risk of aiding and abetting war crimes if they do not desire the Saudis to engage in bad acts. But that conclusion is based on an interpretation of a legal opinion from the Justice Department’s Office of Legal Counsel which reached an opposite conclusion. What’s more, as I explained, other legal positions adopted by the Defense Department support the standard and correct legal view of aiding and abetting war crimes, which does not require US officials to have any desire for the Saudis to violate the laws of war. It would be wholly sufficient for the officials simply to have knowledge of the Saudi’s actions to trigger liability.
And indeed the executive branch has surely built up knowledge of Saudi actions over time, as explained in congressional testimony by Dafna Rand, who served as Deputy Assistant Secretary at the Department of State. Accordingly, earlier support for the Saudi-led operations in Yemen may not have incurred criminal liability, but today’s support might. In addition, according to Andrew Exum, former Deputy Assistant Secretary of Defense for Middle East Policy, the US has appeared to learn over time that the Saudis do not have the capacity to avoid civilian casualties in their air campaign. And indeed the Obama administration suspended a major arms sale to Saudi Arabia in December out of concern for repeated civilian casualties from Saudi airstrikes in Yemen.
I am not alone in my legal assessment that US officials who play a leading role in providing support to the Saudi operations, especially through arms sales, can run into legal problems due to aiding and abetting liability.
Consider a letter written in October by Congressman Ted Lieu to then-Defense Secretary Ash Carter and then-Secretary of State John Kerry. Rep. Ted Lieu, was also a military lawyer who taught the laws of war and is currently a Colonel in the US Air Force Reserve. He wrote:
“U.S. personnel are now at legal risk of being investigated and potentially prosecuted for committing war crimes. Under international law, a person can be found guilty of aiding and abetting war crimes. Under U.S. law, a person can be found guilty for conspiring to commit war crimes.”
My former colleague at Harvard Law School, Professor Noah Feldman also wrote: “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.”
Tom Malinowski, the top human rights official at the State Department until January 2017 told Just Security, “There is a strong policy argument for suspending some sales, as President Obama did, until concerns about these kinds of incidents are resolved, and a possibility of legal jeopardy for U.S. officials if sales continue despite continuing evidence of violations of the laws of war.”
“Continued arms sales,” Beckerle said, “increasingly put U.S. officials at legal risk for aiding those crimes.”
What could the Trump administration do to avoid these legal risks? First, the type of weapons systems might matter. These assessments of legal exposure may not apply to the sale of defensive weapons and radar systems which are part of Kushner’s negotiated package. Second, perhaps in recognition of the legal risks involved, the Trump administration has reportedly sought new assurances from the Saudis to minimize civilian casualties. That is, in principle, the right approach—if pursued in a genuine and effective fashion. As I initially wrote back in September, the Office of Legal Counsel opinion describes mitigation measures that US officials could include to assure that US support will not contribute to international law violations. However, as I also wrote last month, Exum’s descriptions of flaws in the Saudi military systems may suggest they are incapable of reforming their targeting practices anytime soon. Finally, the same New York Times story that described Kushner’s role and “personal touch” in the arms deal, also noted that President Trump’s visit to Saudi Arabia will studiously avoid discussion of human rights concerns:
“Mr. Trump is not expected to raise human rights concerns with the Saudis, in keeping with his approach to strongmen in Turkey, Egypt, China and the Philippines. The president, his aides said, does not believe the United States gets results by lecturing other countries.”
It would be good to know how the president’s aides could explain then how he does expect to get results. Also we can’t tell whether the Times’ reference to human rights includes humanitarian concerns raised by US-supported Saudi operations in Yemen. The president’s failure to raise specific concerns in that respect could put his own officials at legal risk, his son-in-law included.
Image: White House/Shealah Craighead