Saudi Coalition “Admission” of Error in Bombing Cholera Treatment Center Implicates the United States

In June 2018, the U.S.-supported Saudi led coalition struck a cholera treatment center run by Médecins Sans Frontières/Doctors Without Borders (MSF) in Yemen. A recent internal investigation released by the coalition tries to lay the blame for the strike on MSF. But tucked into the report is a cryptic admission that the coalition did not “complete the necessary procedures used by the Coalition Forces” before undertaking the strike. This suggests that the coalition has not stuck to a deal it made with the United States to maintain U.S. support by properly vetting strikes, leaving the United States and its personnel legally exposed for continuing to support operations that violate international humanitarian law.

The June air strike reportedly did not kill anyone, but it destroyed a medical facility that was about to open its doors to cholera patients. With the war waging for nearly four years, people have had an increasingly difficult time getting access to clean running water, a situation that has led to the worst cholera outbreak in modern history. Meanwhile, the war has led to the destruction of much of the country’s public infrastructure, including heath facilities, needed to combat the dire situation. In short, the June bombing destroyed a medical facility and medical equipment that could have saved lives.

As Ryan Goodman explained, in the days after the strike, Saudi Arabia provided members of the U.S. Congress an account of the strike that was misleading at best. In an email obtained by Just Security, the Saudi embassy failed to accept responsibility for the strike, and claimed that MSF had made an “error” in “not officially informing the Coalition of the new treatment facility’s location.” In fact, MSF asserted that it had notified the Saudi Coalition of the coordinates of the cholera treatment center twelve times.

The Saudi-led coalition recently reported its internal assessment of the incident, an investigation required by international humanitarian law. The Legal Counsellor for the Joint Incident Assessment Team (JIAT) in Yemen held a press conference last week where he announced the findings. The JIAT concluded that “based on intelligence from inside of Yemen, a warehouse was used by the armed Houthi militia as a storehouse for weapons and ammunition (rockets, medium arms and ammunition).” At 5:45 am on Monday June 11th, the coalition carried out an air mission on the warehouse “using one guided bomb that directly hit its target.” The internal investigation further found that the warehouse was in “an isolated area under the Armed Houthi Militias[sic] control.” JIAT claimed that it “did not find any request to include the site in the list of [MSF’s] sites to be placed in the (no strike list),” nor did it find “any request to secure movements of the organization in that area.”

The report repeatedly attempts to shift the blame for the strike to MSF. The JIAT asserts that, after reviewing the satellite imagery, it did not find any signs of distinction on the warehouse before the strike. (A claim contradicted, as Ryan Goodman earlier noted, by a researcher with the well-respected investigative group Bellingcat, who found that, “Geolocation — and therefore satellite imagery — of the cholera treatment center shows that the red crescent logos were even visible from space.”) The JIAT also concludes that “MSF did not inform the Coalition Forces that the alleged warehouse was a facility of the organization to be included in the (no-strike list), which violates Article 12 (3) of Additional Protocol I to the Geneva Conventions.” At the close of the report, it again returns to MSF’s alleged failure to notify the coalition, recommending (in somewhat convoluted language) that: “emphasize the International organizations to notifying Coalition Forces of their locations in a clear and accurate manner as well as notification of their movements.”

Nonetheless, the JIAT at points cryptically appears to admit mistakes. It states that “it became clear that the mission was based on information from a source inside Yemen, and that it did not complete the necessary procedures used by the Coalition Forces.” It also states, “Due to the urgency in carrying out the task and not completing the procedures by the Coalition Forces intelligence, the targeting of the building was an unintended error.” Both statements appear to contradict much of the rest of the report, but hint that the strike did not follow procedures agreed to between the United States and the coalition as part of the decision to continue to provide essential support.

If that is true—if the coalition forces rushed to carry out the strike and therefore failed to “complete the necessary procedures used by the Coalition Forces”—then this may be a clear incidence of an international humanitarian law violation. The JIAT, however, does not accept that responsibility. In closing, it recommends that “Coalition States provide voluntary assistance for physical damages to the warehouse” (emphasis added). But if the strike was taken with insufficient precautions, as the JIAT seems to admit, then the assistance would be mandatory, not voluntary. The report also recommends “[t]aking legal procedures against those responsible for the urgency in carrying out the mission, which resulted from a procedural error and not to complete the necessary procedures by the Coalition Forces intelligence.” What “legal procedures” the JIAT has in mind is not clear, but it appears that there will not be any criminal investigation, and, if history is any guide, we can expect little in the way of real consequences.

Shortly after the coalition attack on the MSF cholera treatment center, the U.S. Congress attempted to assert some measure of control over U.S. support for the Saudi-led coalition by inserting Section 1290 into the 2019 National Defense Authorization Act (NDAA). Section 1290, titled “Certifications Regarding Actions by Saudi Arabia and the United Arab Emirates in Yemen,” required the Secretary of State to certify within 30 days of the President’s signature of the NDAA that the Saudi-led coalition was pursuing an end to the conflict in Yemen, making an effort to reduce civilian casualties, and facilitating humanitarian assistance. On September 12, 2018, Secretary of State Mike Pompeo certified that Saudi Arabia and the UAE were “undertaking demonstrable actions to reduce the risk of harm to civilians and civilian infrastructure,” in compliance with Section 1290. The accompanying “Memorandum of Justification” stated that “[t]he United States has called on Saudi Arabia and 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.”

The recent JIAT report on the June attack raises real questions, however, about the willingness of the coalition to ensure that its air strikes are in compliance with international humanitarian law—and about the willingness of the coalition to carry out effective investigations of incidents when they do occur. Though the attack predates the enactment of Section 1290, the apparent unwillingness of the coalition to admit to the error, provide full and complete accountability, and clearly indicate what steps have been taken to ensure such mistakes do not recur, suggests the coalition has, at best, a weak capacity or will to abide by its commitments to the United States and to comply with international law.

The failure of the coalition to properly vet a targeting location not only implicates the coalition forces in a possible violation of international humanitarian law. It also implicates the U.S. in a possible violation as well. Common Article 1 of the Geneva Conventions, after all, provides that states have an obligation not only to respect, but to “ensure respect” of the Conventions. If the United States is supporting the coalition which it knows to be carrying out strikes that violate international humanitarian law, the United States could be violating its own Common Article 1 obligation to “ensure respect” of international humanitarian law.  By continuing support in the face of evidence that the coalition’s assurances that it would take greater precautions to adhere to international humanitarian law are not credible, the United States may also be responsible for aiding and assisting an internationally wrongful act, as reflected in Article 16 of International Law Commission’s (ILC) Draft Articles on State Responsibility. It might be placing its personnel in a position of legal exposure for aiding and abetting war crimes, as well. Indeed, nearly all of the legal issues my coauthors and I raised in the Yemen Crisis Forum and in our recent Harvard National Security Journal article, “Yemen: Is the U.S. Breaking the Law?,” are raised by the failure of the JIAT to accept responsibility, and provide accountability, for what appears to be a clear incident of improper targeting of a civilian object, in violation of international humanitarian law.

Congress should step forward and hold hearings to inquire into whether U.S. intelligence, arms, and other assistance are going to support coalition strikes that continue to violate international humanitarian law. The track record of the coalition is poor, and this latest report suggests the coalition is unwilling to take the steps necessary to effectively change its practices, despite repeated promises to the contrary. It’s time for Congress to ensure that the United States is no longer a party to the illegal immiseration of the lives of the Yemeni people. 

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. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).