Editor’s Note: This is the third piece in our forum on the Yemen crisis and the law.

The United States has conducted extensive airstrikes in Yemen since 2011, against both al-Qaeda in the Arabian Peninsula (AQAP) and, more recently, the Islamic State. These strikes have led to  allegations of violations of international humanitarian law (IHL). Here we explore whether any U.S. nationals could be subject to direct liability under the U.S. War Crimes Act as a result. We conclude that a direct charge against a U.S. person for violating the War Crimes Act appears unlikely to succeed.

The number of U.S. strikes in Yemen increased from at least 21 strikes in 2016 to 131 in 2017. The escalation in airstrikes has sent “claims of civilian casualties skyrocketing.” A group of NGOs released a statement in March 2018, expressing deep concern over reported changes to the United States’ policy on the use of drone strikes. The United States has also recently increased the number of special operations ground raids in Yemen. Both the air strikes and ground operations have resulted in civilian deaths.  For instance, in January 2017, a U.S. ground raid in Al-Bayda, in coordination with the United Arab Emirates, killed at least fourteen civilians, including nine children. In May of that year, a similar ground raid also led to the deaths of a number of civilians, again including children.

The War Crimes Act of 1996 (18 U.S.C. § 2441) makes it a criminal offense for U.S. nationals and members of the U.S. armed forces to commit certain violations of international humanitarian law. The Act defines a war crime to include, among other conduct, “grave breach[es] of Common Article 3” of the Geneva Conventions. It further defines such grave breaches to include torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages.

Importantly, the War Crimes Act also defines “grave breach” of Common Article 3 to include “murder,” which in it in turn defines as:

“The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.”

Despite this guidance, the scope of Common Article 3’s prohibition on murder remains unsettled. Some scholars (including, notably, Sarah Knuckey in a commentary) have argued that Common Article 3’s prohibition on killing civilians does not apply to conduct in hostilities, and rather pertains narrowly to situations where a party exerts control over civilian populations—for example, those who are hors de combat and detainees. Under this interpretation, Common Article 3 protections would not extend to civilians in areas of active hostilities. Consequently, civilian deaths resulting from indiscriminate or disproportionate attacks would not amount to the “murder” under Common Article 3 and thus, would not be considered a war crime pursuant to the War Crimes Act.

Nonetheless, there is a strong argument that “grave breaches” of Common Article 3, as defined by the War Crimes Act, do apply to the conduct of hostilities.  First, many sources of international legal jurisprudence, authoritative commentaries, and UN expert bodies have recognized that the prohibition on murder in Common Article 3 extends to protection from indiscriminate and disproportionate targeting during the conduct of hostilities. Second, the language in the War Crimes Act itself appears to contemplate the commission of ‘murder’ during the conduct of hostilities. Subparagraph (d), which defines “murder,” does not include a clause indicating that murder applies specifically to situations where a person in “within [an individual’s] custody or physical control.” By contrast, such a limitation is present in both subparagraph (a) and (b) (relating to torture and cruel or inhumane treatment, respectively). Moreover, Section (3) of the War Crimes Act explicitly precludes the application of ‘murder’ to instances of “collateral damage” or “death, damage, or injury incident to a lawful attack.” These carve-outs suggest that the “murder” would in fact apply to unlawful targeting operations.

The mere fact of civilian deaths is not alone sufficient, however, to establish liability under the WCA.  Because prosecutable grave breaches of Common Article 3 do not include acts related to lawful “collateral damage” or “death, damage, or injury incident to lawful attack,” it would be necessary to establish that civilians were intentionally targeted or that the attack was knowingly disproportionate. At present, there have been no public reports of such intentional or knowingly disproportionate strikes on civilians or civilian targets by U.S. forces during their operations against Al-Qaeda in the Arabian Peninsula (AQAP) and ISIS. (For a detailed legal analysis of the Trump administration’s approach to targeted killing, see this post by Adil Ahmad Haque).

There has never been a prosecution under the War Crimes Act, so the precise bounds of liability under the Act remain untested. Regardless, it appears unlikely that U.S. persons will face direct liability under the Act because there is no public evidence that the United States is directly engaged in ‘grave breaches’ of Common Article 3 in Yemen as defined by the War Crimes Act.

As we will show in the next Article in this series, however, there is a separate question of whether U.S. persons could be found liable for aiding and abetting violations of the War Crimes Act for actions taken in support of the Saudi-led coalition in Yemen including support for coalition airstrikes and the alleged torture committed by United Arab Emirates officials in Yemen prisons.

Image: Ibrahem Qasim/Wikimedia Commons