The High Hurdle for Aiding and Abetting Unlawful Attacks in Yemen

This is piece is the the latest article in our forum on the Yemen crisis and the law.

The Alien Torts Statute (ATS), a jurisdictional statute that allows non-U.S. citizens to sue in federal district court for violations of international law, might provide a basis for victims of the Saudi-led coalition’s unlawful attacks in Yemen to sue for restitution in U.S. courts. Although sovereign immunity protects officials and States involved in the Saudi-led coalition from suit under the ATS, U.S. corporations that manufacture and supply weapons to the coalition could potentially be liable for aiding and abetting violations committed using those weapons. While this theory of liability has yet to be tested, there are substantial hurdles to a successful suit.

Aiding and Abetting Liability under the ATS

The ATS states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The reach of the ATS has been the subject of a number of cases in front of the U.S. Supreme Court. Most recently, in Jesner v. Arab Bank, argued last year but not yet decided, the Court considered the question of whether corporations can be held liable for direct violations of international law under the ATS. Even if the Court were to rule against the Jesner plaintiffs, a lawsuit against a U.S. corporation for aiding and abetting members of the Saudi-led coalition by providing them weapons might still be viable because such a suit would not involve direct corporate violations—though whether that is the case would likely turn on the precise reasoning for the decision.

If some form of corporate liability under the ATS survives Jesner, the next question will be whether corporations can be held liable for aiding and abetting violations of the law of nations. There currently is a split in the circuits on the scope of aiding and abetting liability under the ATS. The Second, Fifth, Ninth, Eleventh, and D.C. Circuits have all recognized ATS liability for aiding and abetting violations of the “law of nations.” The majority of the courts have adopted the approach similar to that of the Ninth Circuit in John Doe I v. Unocal Corp.  There, the court assessed opinions from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda and found that the ATS standard for aiding and abetting is “knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime.” The Second Circuit, however, took a different approach in Khulumani v. Barclay National Bank, instead embracing the threshold enunciated in the Rome Statute that created the International Criminal Court, whereby an individual is liable for aiding and abetting a violation of the “law of nations” under the ATS if the defendant engages in conduct “for the purpose of facilitating the commission of such a crime.” As we have written in a yet-unpublished article, the Second Circuit erred in looking to the Rome Statute as evidence of customary international law, because the Statute has a distinctive standard relevant to its unique context.  Instead, the proper standard—and the standard adopted by most international courts—is knowledge that the acts assist the commission of the principal crime.

The Sale of Cluster Munitions Used in Yemen

The Saudi-led coalition has allegedly violated international humanitarian law in Yemen. And although the officials and States involved may be able to claim sovereign immunity, the U.S. corporations that manufacture weapons used by the coalition may be liable under the ATS for aiding and abetting these violations. In particular, the manufacture and export of a weapon known as a “cluster munition” may create legal risk.

A cluster munition is a type of explosive weapon that disperses multiple “bomblets” over a wide area. The weapon is thought to be inherently indiscriminate for two reasons: first, cluster munition bomblets frequently fail to detonate and “leave behind large numbers of dangerous unexploded ordnance” which essentially become de facto landmines that can “kill and injure civilians.” Second, cluster munitions have wide-area affects, making them difficult to use in civilian-controlled areas without violating international humanitarian law obligations. Use of these weapons are at present widely considered to violate the international humanitarian law principle of discrimination—and more than 100 nations have signed onto the Convention on Cluster Munitions banning their manufacture, export, and use.

Nonetheless, the Saudi-led coalition has regularly used cluster munitions in Yemen, and U.S. corporations have, until fairly recently, manufactured and exported four out of the six documented types employed during the hostilities in Yemen. Human Rights Watch documented the Saudi-led coalition’s use of the U.S.-manufactured CBU-105 Sensor Fuzed Weapon in five different cluster munition attacks between March 2015 and December 2015.

In 2014, Lockheed Martin, which manufactured three of the types of cluster munitions used in Yemen, announced it would cease manufacturing any weapons prohibited under the Convention on Cluster Munitions. The year before, Textron Systems Corporation, a U.S. corporation headquartered in Providence, Rhode Island, secured a $641 million contract to produce 1,300 CBU-105 Sensor Fuzed Weapon cluster munitions for Saudi Arabia—a weapon prohibited under the Convention. In 2016, however, Textron announced it would no longer produce “sensor-fuzed weapon[s]” because of “reduced orders.

Establishing Aiding and Abetting Liability Based on the Sale of Weapons

Despite the Saudi-led coalition’s probable use of U.S.-origin cluster munitions in Yemen, there are a number of hurdles to holding Lockheed Martin or Textron liable under the ATS for aiding and abetting the underlying offenses. This is true even if some form of corporate liability survives the Court’s decision in Jesner. 

First, a plaintiff would have to establish a connection between violations of the law of nations and U.S.-sold cluster munitions. It does appear such evidence may be available. Human Rights Watch has documented the use of U.S.-manufactured cluster munitions in Yemen, including evidence of at least six airstrikes using U.S. manufactured cluster munitions in at least four Yemeni governorates between 2015-2016.  News organizations, including the New York Times and the Washington Post, have also reported on the use of U.S.-manufactured cluster munitions in unlawful attacks in Yemen. If a case were to move forward, plaintiffs would have to present evidence linking indiscriminate or disproportionate attacks and U.S.-manufactured weapons.

Second, under the majority approach to aiding and abetting liability under the ATS, a plaintiff must establish not only that the munitions were used in unlawful attacks but that U.S. manufacturers of cluster munitions knew the sale of the munitions would assist violations of international humanitarian law. This factor presents the most substantial hurdle. As noted earlier, Lockheed Martin ceased production of cluster munitions before the current war in Yemen erupted.  On May 27, 2016, the United States suspended any transfers of cluster munitions to members of the Saudi-led coalition. Today many of the cluster munition attacks taking place in Yemen are committed with Brazilian-manufactured cluster munitions.

One U.S. Company—Textron Systems—stands out as more vulnerable to suit under the ATS than others. In contrast to Lockheed Martin, which voluntarily ceased the production of cluster munitions in 2013, Textron continued to produce its variant of the weapon (the CBU-105) until early 2017. In fact, the same year Lockheed Martin ceased production of cluster munitions altogether, Textron contracted with the United States for the manufacture and delivery of cluster munitions to Saudi Arabia until December 31, 2015. By that point, the indiscriminate effects of cluster munitions were well documented. The Convention on Cluster Munitions, which bans such weapons precisely because of their indiscriminate effects, opened for signature in 2008 and entered into force in 2010. While none of the members of the Saudi-led coalition are parties to the Convention (nor is the United States), much of the international community recognized the indiscriminate nature of the cluster munitions.

Even so, there are factors that might militate against liability. For instance, Textron might avoid liability because the CBU-105 allegedly complied with export conditions imposed by the United States. (Though some reports suggest the failure rate of the CBU-105 exceeds the threshold allowed by the United States because, when a cluster munition fails, its bomblets can become de facto landmines.)  It is also possible that at the time of the last transfer of cluster munitions by a U.S. company (according to Defense Department contracts: Textron in 2015), the extent of civilian deaths in the bombing by the Saudi-led coalition may not have been well documented.  Finally, the United States only prohibited the sale of cluster munitions to the Saudi-led coalition in 2016, suggesting that the U.S. government did not regard their sale or use as inherently indiscriminate before that point.

For these reasons, Textron may be vulnerable to suit under the ATS for aiding and abetting the Saudi-led coalition’s violations of international humanitarian law, but the hurdles to a successful suit are significant. It appears less likely that similar suits against other U.S. weapons manufacturers would succeed.

Image: Ibrahem Qasim via Wikimedia Commons 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School Follow her on Twitter (@oonahathaway).

Alyssa Yamamoto

J.D. student at Yale Law School, Herbert J. Hansell Student Fellow at the Center for Global Legal Challenges

Alexandra Francis

J.D. student at Yale Law School, Herbert J. Hansell Student Fellow at the Center for Global Legal Challenges

Aaron Haviland

J.D. student at Yale Law School, Herbert J. Hansell Student Fellow at the Center for Global Legal Challenges

Srinath Reddy Kethireddy

J.D. student at Yale Law School, Student Director of the Center for Global Legal Challenges