If the Saudi-Led Coalition is Committing War Crimes, the US is Aiding and Abetting Them

A few days ago, Ryan Goodman announced on Twitter that we should expect "a challenge to (some) critics of Defense Department support to Saudi Arabia." Jay Shooster published that challenge on Just Security earlier this week, arguing that the US is not necessarily liable for aiding and abetting war crimes when the US offers targeting assistance for Saudi strikes in Yemen, and that human rights groups are hypocritical in arguing that the US is necessarily liable. Much of this argument relies on an erroneous conflation of targeting assistance and international humanitarian law (IHL) assistance. On that and other grounds, I disagree.

To start, an important disclaimer: I cannot confirm the existence or extent of Saudi war crimes, though this post, like Jay's, assumes they have taken place. Neither I nor my organization has investigated civilian casualty incidents in Yemen. Reports from Amnesty and Human Rights Watch - along with my own observations in Yemen - confirm a pattern of attacks that have consistently damaged schools, hospitals, critical civilian infrastructure, and major economic facilities that generally may not be targeted.

The argument against automatic liability is framed as a challenge to human rights and humanitarian organizations that have supposedly staked out a hypocritical position. It begins:

"In 2010, human rights organizations argued in Holder v. Humanitarian Law Project that if we want to promote compliance with the law of armed conflict, we cannot punish advocacy groups who help human rights violators comply with the law. If we accept that argument, then why should human rights advocates suggest that the United States is automatically liable "as a matter of law" for unlawful Saudi-led coalition military strikes in Yemen on which the US Defense Department provides targeting assistance?"

Setting aside the fact that the organizations arguing in Holder are not all the same organizations advocating against defense assistance to Saudi Arabia, this first paragraph gives the reader the impression that the human rights community has trained its sights on "targeting assistance" as the problematic aspect of US-Saudi defense cooperation. This is wrong. Like some other humanitarian organizations, Oxfam (where I work) opposes the transfer of arms and provision of operational support (such as aerial refueling) to any party to the conflict, on the grounds that this kind of support facilitates fighting, legitimizes the conflict, and relieves pressure on parties to make concessions toward a political settlement (these are policy arguments, not legal ones). Oxfam also believes, like human rights organizations, that arms should not be provided where there is an overriding risk that they will be used to commit gross violations of human rights or war crimes (the Arms Trade Treaty standard). For most organizations, US targeting assistance is an afterthought compared to US arms sales and refueling, which constitute critical support to the disastrous Saudi war in Yemen.

Rather than grapple with actual NGO arguments or properly contextualize the one with which he wants to engage, the earlier post pulls out one line from the sixth paragraph of an op-ed column by Human Rights Watch's Sarah Leah Whitson in the LA Times and proceeds against it as the argument of "the human rights community." It neglects to mention that Sarah Leah devotes the first five paragraphs of her op-ed to arms sales before turning to targeting assistance, and he chooses to ignore human rights organizations' other principal concerns.

Putting aside his representation of human rights organizations and their views, the core of Jay's argument appears to be: if Saudi Arabia conducts airstrikes that are war crimes with targeting assistance from the US, the US is not necessarily liable. First, let me say what I agree with Jay in part: under certain circumstances, it is possible that IHL education and compliance assistance would not aid and abet war crimes. Jay allows for this possible agreement when he writes:

"First off, maybe those arguing that the US is necessarily liable for providing targeting assistance on unlawful strikes did not intend to extend that argument to cases where the DOD merely provided assistance directed towards ensuring compliance with IHL."

The problem is, when it comes to US-Saudi cooperation in Yemen, the possibility that US targeting assistance might be so limited is precluded by the circumstances and available information.

It's unclear on what basis targeting assistance is assumed to be the same as IHL assistance, but they are not. For one thing, it's entirely counterintuitive: if targeting assistance were limited to IHL assistance, particularly in a war that is subject to Congressional and public scrutiny, the Department of Defense would surely call it something other than targeting assistance. They might call it "civilian protection advice" or "legal support," for example. In fact, it is called targeting assistance precisely because it is substantially broader than the narrow provision of legal advice. Jay dismisses the fact that US support is motivated more by self-interest than humanitarian concerns, but it's precisely these mixed motives that make it impossible to segregate IHL advice from other forms of targeting assistance that the US may be offering, such as assessments of targets' strategic and tactical value, input on the sequencing of targets, and advice on weapons use for particular targets. These kinds of support aren't inherently malicious or unlawful. They may reduce civilian harm, but they may also increase it - particularly when the recipient is engaged in a consistent pattern of violations. For example, advising a state to avoid bombing a bridge that's essential for humanitarian assistance and commercial trade could help minimize civilian harm - or, if the state aims to fight a war of attrition, could result in the bridge's destruction.

This is where the Holder v. Humanitarian Law Project analogy falls down. The engagement of the Humanitarian Law Project and its amici with designated terrorist groups was limited to trainings on and assistance with peaceful dispute resolution and IHL. Moreover, the exclusive aims of those groups were to reduce violence and enhance respect for international norms. Targeting assistance that co-mingles IHL advice and other forms of support would be akin to a HLP course on "winning over the public," including IHL compliance but also including the provision of public services and the conduct of propaganda and public relations - techniques that may tend to reduce reliance on nonviolence but still may also enable and legitimize use of violent terrorist tactics.

To make matters more complex, US targeting assistance takes place alongside US refueling of Saudi jets, arms sales, and intelligence support, and simultaneously with a US effort to shield Saudi Arabia from accountability for violations of IHL in international organizations. Therefore, even if IHL-related targeting advice were segregated from other forms of assistance, the nature of US assistance as a whole calls into question the purpose of the targeting advice. If HLP's IHL compliance training were sandwiched between courses like "How to Manufacture a Pipe Bomb in Five Easy Steps" and "Keeping Your Head After the School Blows Up," and accompanied by the sale of explosives, the human rights community would not be quite so sympathetic. Underlying the HLP arguments is a presumption of good faith by the trainers. I admit I'm not sure if this presumption should be legally relevant; after all, I wouldn't mind terribly if terrorist groups were training each other on IHL compliance. But it is certainly relevant as a matter of good, professional human rights practice. And it's one more reason that the charge of hypocrisy against human rights organizations is misguided.

The author writes here in his personal capacity; his views do not necessarily reflect those of his employer.