Last month, Secretary of State Mike Pompeo certified that the Saudi-led Coalition fighting a war in Yemen is taking sufficient steps to reduce civilian casualties in its military operations. The Secretary’s decision whether to issue a certification is required by a recent statute: section 1290 of the McCain National Defense Authorization Act. Under that provision, a failure to certify (or issue a waiver in its stead) would have automatically triggered suspension of congressional appropriations for the refueling of Coalition aircraft conducting missions in Yemen.

On Wednesday, a bipartisan group of Senators sent a brief letter to Secretary Pompeo challenging his certification and calling on him to return to Congress with more specific information by the end of this month. “We find it difficult to reconcile known facts with at least two of your certifications,” the Senators wrote, referring to the Secretary’s claim that the Coalition has taken demonstrable actions to reduce civilian casualties.

I share the general concerns raised in the Senators’ letter. Below I provide my annotation of the Secretary of State’s unclassified Memorandum of Justification.  I assess the memorandum in detail and spell out specific concerns as well as some areas of praise.

The relevant part of the congressional statute contains the following language:

the Secretary of State shall submit to the appropriate committees of Congress a certification indicating whether the Government of Saudi Arabia and the Government of the United Arab Emirates are undertaking:

demonstrable actions to reduce the risk of harm to civilians and civilian infrastructure resulting from military operations of the Government of Saudi Arabia and the Government of the United Arab Emirates in Yemen, including by—

(i) complying with applicable agreements and laws regulating defense articles purchased or transferred from the United States [under the Arms Export Control Act]; and
(ii) taking appropriate steps to avoid disproportionate harm to civilians and civilian infrastructure

Let’s now turn to the section of the Secretary’s memorandum that addresses these issues of civilian casualties.


Reducing the Risk of Harm to Civilians and Civilian Infrastructure
The Administration assess[sic] that the KSA [Kingdom of Saudi Arabia] and UAE [United Arab Emirates] are undertaking[1] demonstrable actions to reduce[2] the risk of harm to civilians and civilian infrastructure resulting from military operations of the Government of Saudi Arabia and the Government of the UAE, including by complying with the applicable agreements and laws regulating defense articles purchased or transferred from the United States, and that they are taking appropriate steps[3] to avoid disproportionate harm to  civilians and civilian infrastructure.

[1] “Are undertaking” might be positive in the sense that the KSA and UAE are still pursuing these efforts and have not abandoned them. It might also be somewhat positive if this statement refers to actions of recent vintage that may yet yield a reduction in civilian harm. On the other hand, “are undertaking” might also mean that some actions are still in the stages of being pursued and have not been implemented despite three and a half years of war and U.S. and U.K. efforts to have the Coalition fully adopt particular reforms.

[2] How the phrase “demonstrable actions to reduce” functions in the memorandum is key to understanding the State Department’s posture and position. The memorandum relies throughout on purported positive activity that relate almost entirely to actions on paper or in process, but not the actual execution of military strikes. The memorandum, in fact, admits that Coalition airstrikes continue to produce civilian casualties at far too high a rate. A fundamental problem with this line of justification is that, if anything, it means that the “demonstrable actions” have actually proven ineffective to date. This unusual product from the State Department may be due to Secretary Pompeo’s issuing the certification over the objections of his legal advisers and most of the State Department’s military and area specialists (see the Wall Street Journal reporting for that background).

At best, the Secretary of State is asking Congress to accept a certification that claims the KSA and UAE have adopted process-inputs (formally accepting a no-strike list, changing rules of engagement, and committing to training programs in humanitarian law) while the Coalition  nevertheless reportedly frequently kills civilians and targets civilian infrastructure such as a shrine, a funeral home, a school bus, a wedding party, a bridge vital to humanitarian relief, a refugee boat, and medical clinics and hospitals.

As a matter of international law, targeting operations that either purposefully or recklessly kill civilians can amount to war crimes. Recklessness includes situations in which a party to a conflict employs a targeting system that is known over time cannot effectively distinguish between legitimate military objects from civilians and civilian objects. Targeting operations that harm civilians and civilian infrastructure as a result of negligence also violate the laws of war but do not incur criminal liability.  

[3] “Taking appropriate steps” and “demonstrable actions to reduce” civilian casualties is an accurate description of the standard set by Congress, and the Secretary of State is charged with making the certification according to that standard. It is important, however, to contrast this with the extraordinary language that the Secretary of Defense Jim Mattis and National Security Adviser John Bolton each used in statements endorsing the certification: they both asserted an empirically unfounded claim that the Saudis and UAE are “making every effort” to reduce civilian casualties. That claim is even contradicted by the Secretary of State’s memorandum (see [7], [21] and [22]).

The Administration recognizes that civilian casualties have occurred at rates[4] that are far too high[5] in the Saudi-led Coalition’s campaign in Yemen.

[4] It would be important to know what the Department means by “rates.” It could mean the administration has some data on the number of civilian casualties per strike, or it could simply mean the number of civilian casualties per a given time period.

[5] In one sense, this reference to rates of civilian casualties being “far too high” is a significant and welcome development. We have not seen such clear-eyed, U.S. government statements about the Coalition’s record recently. The critical nature of the statement is similar to some of the strong statements made by the Obama administration prior to the suspension of arm sales to Saudi Arabia in 2016.

That said, “far too high” lacks precision, and more importantly it may obscure the well reported fact that the rate of civilian casualties has increased over time. In March 2018, for example, the UN Deputy High Commissioner for Human Rights reported, “The number of civilian casualties dramatically increased during the past six months.” To compound the problem, since March 2018, Coalition strikes have resulted in some of the worst incidents involving the largest numbers of civilians, and “Coalition air strikes have caused most of the documented civilian casualties” in the war, a U.N. report by the Group of Eminent Experts concluded in August 2018. The rise in civilian casualties has occurred despite the purported efforts by the Coalition to avoid harm to civilians and civilian infrastructure.

Finally, the memorandum should not simply address the number or rates of civilian casualties. It should also address whether there was any justification for civilian casualties in many instances. In any war, strikes on legitimate military targets will often involve civilian casualties. The Coalition, however, appears to have directly struck objects such as a shrine, a funeral home, and others on no-strike lists. In 2015, the Coalition apparently declared entire cities military targets. The U.N. Panel of Experts studied ten strikes between January and December 2017 and concluded that “independent investigations could not find any evidence of the presence of high value targets that would justify the collateral damage at these target sites.” These findings are consistent with investigations by a leading local human rights organization Mwatana Organization for Human Rights.

We believe civilian casualties must be mitigated and reduced as much as possible for both strategic and moral[6] reasons. As a result, we are engaging the Saudi-led Coalition to urge them to strengthen measures that reduce the risk of harm to civilians and civilian infrastructure.

[6] This sentence does not include “legal” reasons. It is likely that including the term “legal” would be understood to mean (or an admission) that the current level of civilian casualties is not lawfully permitted.

The Department of State and the Department of Defense (DoD) will continue to press Saudi Arabia and the UAE on this issue at the highest levels. The Administration assesses that Saudi Arabia and the UAE are undertaking some[7] actions to reduce[8] the risk of harm to civilians and civilian infrastructure resulting from Saudi-led Coalition military operations.

[7] “Some” is a major qualification. It is also a measured assessment that is conspicuously different than Defense Secretary Mattis’ and National Security Adviser Bolton’s hyperbolic claims. With respect to 2017, even this qualified assertion is contradicted by the U.N. Panel of Experts, a body mandated by the Security Council, which reported, “The air strikes carried out by the Saudi Arabia-led coalition and the indiscriminate use of explosive ordnance by Houthi-Saleh forces throughout much of 2017 continued to affect civilians and the civilian infrastructure disproportionally. The Panel has seen no evidence to suggest that appropriate measures were taken by any side to mitigate the devastating impact of these attacks on the civilian population.

[8] “Actions to reduce” is where almost all the analytic work is being performed in the memorandum. See earlier discussion of the memorandum’s phrase “are undertaking demonstrable actions to reduce” in note [2].

The Saudi-led Coalition incorporated a no-strike list (NSL) into its target development procedures[9] and changed its rules of engagement to incorporate some[10] U.S. recommendations.

[9] Take note that this very basic precaution (incorporating a no-strike list into targeting procedures) is included as a remarkable accomplishment for the Coalition. Most importantly here, the memorandum does not discuss whether the Coalition sufficiently abides by the no-strike list when carrying out military strikes. It is misleading, at best, to omit such information. “Two senior American officials said that in many Saudi strikes supporting troops under fire and targeting so-called pop-up targets, or militants on the move, Saudi military planners were not regularly consulting the no-strike list, which includes sites like mosques and marketplaces,” according to the New York Times. One case study is the Coalition’s repeated bombing of the main bridge into Yemen’s capital–a civilian structure that the United States reportedly placed on the no-strike list because it was a vital route for humanitarian supplies including “90% of World Food Program food coming from Hodeidah to the capital,” according to Oxfam. “Of course we condemn the attack,” a spokeswoman for the State Department said at the time.

[10] “Some” is a significant qualification. The United States would not lightly suggest changes to target procedures and rules of engagement. So a failure to incorporate U.S. recommendations raises a bright red flag.

The Saudi Ministry of Defense committed[11] to fund U.S.-provided training for the Royal Saudi Air Force (RSAF) on minimizing civilian casualties as one component of a $750 million, multi-year[12] Foreign Military Sales training case.

[11] Many (myself included) have wondered what happened with this “commitment,” which was made well over a year ago. It is astonishing that the State Department does not (cannot?) provide information whether the program has undergone significant implementation or yielded effects. What’s more, the $750 million was attached to the purported $110 billion arms sale in 2017. Experts have written that the $110 billion deal is largely a chimera because it lacks actual contracts. The degree to which the $110 billion deal is unsubstantial and has not materialized raises additional questions about the materialization of the $750 million “commitment” attached to that deal.

[12] The total of $750 million is sizeable. It would be important to know over how many years that total is meant to be spread.   

This training seeks to improve[13] RSAF targeting capabilities and reduce the risk of civilian casualties. As of[14] May 2017[15], the U.S. government delivered a course for the RSAF that included training on the law of armed conflict (LOAC) and air-to-ground targeting processes.

[13] The memorandum’s claim is only that the training “seeks to improve.” Conspicuously absent is any claim that training has resulted in meaningful improvements. Indeed, during the relevant time period, the harms to civilians and civilian infrastructure have gotten worse.

[14] “As of” may mean long before.

[15] May 2017 precedes the date that KSA committed to a $750 million training program. So it is no evidence of that program’s implementation, and it is conspicuous that the memorandum does not refer to training in more recent times.

In 2016, the Coalition established the Joint Incident Assessment Team (JIAT) to investigate strikes that result in collateral damage.[16]

[16] The memorandum refers to the standing up of the JIAT as though it is an unvarnished accomplishment. Note, however, that the memorandum does not explicitly assess the effectiveness of the JIAT even though this official body now has a long record to evaluate. In truth, the JIAT is highly controversial and to many close observers it has been used more to cover up incidents of civilian casualties rather than genuinely investigate and address them. (See note [23] for critical analyses of the JIAT.)

The United States has called on Saudi Arabia and the UAE to conduct thorough, transparent, and expedient investigations in cases where airstrikes have caused harm to civilians and civilian objects, and to make the results of those investigations public. These cases including coalition operations that reportedly resulted in civilian casualties on August 9, 2018, in Sa’ada, and on August 23, 2018, in al-Durayhimi, and the targeting[17] of civilian infrastructure such as water and sanitation facilities which could exacerbate cholera outbreaks in Yemen.[18]

[17] The use of the term “targeting” is potentially enormously significant. It may mean that the U.S. government assesses  that the Coalition purposefully struck certain civilian infrastructure such as water and sanitation facilities, which could amount to war crimes even under the most stringent standards for a criminal state of mind.

[18] This is an important statement because any aspect of Coalition operations that exacerbate health issues in the county, most especially the spread of cholera, must be taken very seriously. The statement here should also be read in conjunction with another concern raised in a separate section of the memorandum, namely, that the Coalition’s closure of commercial flights into and out of the capital city’s airport has “cut off access for Yemeni civilians to outside medical treatment,” according to the State Department. (Other authorities are even more critical of the Coalition’s cutoff of access to medical treatment.)

The Saudi-led Coalition announced on September 1, 2018, that it would undertake such an investigation and hold those responsible to account. It is important to note that cholera is endemic in some parts of Yemen, even in the absence of armed conflict, and that Houthi entrenchments in Hudaydah have damaged water lines there. That resultant damage is a more direct cause of the spread of cholera in that area. As part of its engagement with UN leadership to refine and implement its humanitarian plan for Hudaydah, the UAE has allowed the UN to embed a civil-military advisor in Abu Dhabi and has been receiving the NSL from Evacuation and Humanitarian Operations Cell (EHOC) officials in Riyadh, Saudi Arabia. We continue to press the need for additional actions[19] to reduce civilian casualty incidents.

[19] Continuing to press the need for additional actions is another way of acknowledging that current Coalition actions to reduce civilian casualties are inadequate. It also suggests that the KSA/UAE still do not understand the need for such actions.

Recent[20] civilian casualty incidents indicate insufficient[21] implementation of reforms and targeting practices. Investigations have not yet yielded accountability measures.[22] Additional information can be found in the classified annex.

[20] “Recent” does not exclude that prior incidents failed in this regard as well. And it would be better if the memorandum had also explained the long pattern of such deficiencies. That said, the reference to recent incidents is quite damning. It means that the most up-to-date evidence is that the Coalition has still not sufficiently observed implementation of reforms or effectiveness in changing targeting practices or reducing civilian casualties. Yet the Secretary of State issued a certification nonetheless. This part of the memorandum may be a result of a Secretary of State’s having to accept some of the findings of the branches of the State Department and its experts who know these facts, yet still exercising the decision to certify over their objections.

[21] “Insufficient” is an ambiguous term. In this case, it hides the fact of how grossly inadequate implementation has been. Larry Lewis, a former State Department official–who stepped down in May 2017 and was the lead person in the department’s efforts to try to get the Coalition to comply with civilian casualty reductions–wrote a critique of the memorandum that is most relevant to this issue of reform implementation and expected results. Lewis writes, for example, that “general training in [the law of armed conflict] and targeting is also unlikely to have significant benefits to the Coalition’s ability to reduce civilian harm. Such training has been provided since 2015, so this course is simply not new.” Also, a former Deputy Assistant Secretary of Defense Andrew Exum revealed that Pentagon officials had long told colleagues outside the Defense Department that it was essentially hopeless to expect the KSA to substantially improve its targeting practices with regard to civilian casualties amidst the ongoing war. In the eyes of the sponsors of this Congressional legislation, such an assessment would likely provide an additional reason to back away from support for the Coalition knowing that there are deep structural reasons that prevent the KSA from improving its egregious targeting practices on any reasonable timetable.

[22] This a stunning admission and statement by the State Department, and should be lauded for its candor and transparency. This sharp criticism should be understood as a indictment of the Joint Incident Assessment Team (JIAT), mentioned earlier in the memorandum. That official body, which was created upon advice from the State Department, is supposed to examine suspected civilian casualty incidents and identify improvement for future operations. The JIAT has been roundly criticized by close observers including most recently in a mission report by the UN special expert on Human Rights While Countering Terrorism (June 2018), a 90-page report by Human Rights Watch (August 24, 2018), and a report by the U.N. Group of Eminent Experts (August 17, 2018).

What the memorandum does not do, however, is inform Congress of the times that the Coalition has not simply failed to adopt accountability measures, but instead has purposefully and repeatedly tried to cover up incidents of wrongdoing–including several involving the JIAT itself in obfuscating responsibility for civilian casualty incidents. Consider three examples out of many from which to choose:

  1. In June 2018, the Coalition bombed a cholera treatment facility run by Doctors Without Borders/Médecins Sans Frontières (MSF). The Saudi embassy emailed members of the US Congress falsely claiming that the international medical group had failed to tell Riyadh about their own facility’s location. (MSF had notified the Coalition 12 times of the cholera hospital’s location.)
  2. The Coalition engaged in a several months-long, consistent pattern of denying ever using cluster bombs during the war (e.g., “We do not use cluster bombs in Yemen, period.”). The Coalition later admitted it had used cluster bombs when finally confronted by the British government relying on documentation by Amnesty International.
  3. In October 2016, the Coalition deliberately targeted a funeral home, killing more than 140 and wounding at least 525 including the mayor of the capital city and several other local leaders who, like him, had been playing a significant role in trying to bring the conflict to a peaceful resolution. The Coalition spokesperson Brigadier General Ahmed al-Asiri told reporters that the Coalition had not carried out any strikes near the funeral hall. The Coalition later admitted it had conducted the attack following undeniable public reporting.

The Administration also assesses that Saudi Arabia and the UAE are complying with applicable U.S. laws governing the sale and transfer of arms, including[23] the Arms Export Control Act, with rare exception[24]. Defense article sales to both countries are subject to U.S. end-use monitoring requirements, allowing the Administration to verify that items have not been modified, tampered with, or transferred to a third party without prior authorization. The Department of State adjudicates all potential arms transfers through a review process on a case-by-case basis and through a consultative process with Congress, as required by law. US. support to the Coalition allows it to pursue its mission of assisting the legitimate government of Yemen.

[23] The word “including” is potentially significant for close observers of this area of law. (For experts: one question is whether it should include Section 620M of the Foreign Assistance Act as applied to direct commercial sales under the Arms Export Control Act (see note 63 of this expert opinion paper).)

[24] Obvious questions include: what is meant by “rare”? Over what period of time? How significant are each of these instances of noncompliance even if rare? Some of the worst airstrikes are presumably conducted by Coalition aircraft that have been refueled by the U.S. military. The most relevant question for the Arms Export Control Act, however, is whether U.S. munitions were used in such strikes. A Defense Department manual explains that U.S. officials must be vigilant in monitoring and reporting “any indication that U.S.-origin defense articles are being used against anything other than a legitimate military target.” An American Bar Association expert paper prepared for Congress in 2017 by Lt. Colonel (ret.) Professor Michael Newton explains, “As indiscriminate and disproportionate attacks on civilians in violation of international humanitarian law serve no lawful self-defense purpose, the use of U.S.-origin equipment in such attacks is a violation of Saudi Arabia’s end-use agreements. Saudi Arabia is therefore ineligible for a resumption in sales until the violations cease.”

In December 2016, Human Rights Watch reported that it “found remnants of US-supplied weapons at the site of 23 apparently unlawful coalition airstrikes, including more than a dozen attacks involving US-made cluster munitions.” That number is likely an underestimate. It includes only incidents in which the organization itself investigated an attack, found a likely violation of the laws of war, and identified the available remnants as U.S. origin. Since December 2016, several of the most egregious Coalition strikes have reportedly involved U.S. munitions, including:

  1. On September 2, 2017, a Coalition airstrike on a family residential compound in a remote location killed three and injured sixteen, including fourteen women and children. The U.N. Panel of Experts “found no explanation in the public domain as to why this residential area, which is prima facie a civilian object immune from direct attack, was considered by the Saudi Arabia-led coalition to be a legitimate military objective.” The UN investigators found a tail fin from a U.S.-made Paveway guided bomb at the site.
  2. On April 22, 2018, the Coalition reportedly struck a wedding party in an isolated village, killing at least 22 people, including 8 children, and injuring over 50 others, including as many as 30 children. Debris from the bomb used in that strike indicated that it was a GBU-12 Paveway II precision-guided bomb manufactured by Raytheon.
  3. On August 9, 2018, the Coalition reportedly struck a school bus, killing at least 40 children and wounding at least 56 children. The munition used was reportedly a 500-pound laser-guided MK 82 bomb made by Lockheed Martin.

Photo credit: Secretary of State Mike Pompeo testifies during a hearing before Senate Foreign Relations Committee (Alex Wong/Getty Images)