Crisis and Complicity: an Analysis of U.s. Support For Saudi Coalition Airstrikes Under the Law of Aiding and Abetting (alleged) War Crimes

NOTES
CRISIS AND COMPLICITY: AN ANALYSIS OF U.S.
SUPPORT FOR SAUDI COALITION AIRSTRIKES
UNDER THE LAW OF AIDING AND ABETTING
(ALLEGED) WAR CRIMES
ALEXANDER W. PREVE*
ABSTRACT
The humanitarian toll produced by the conf‌lict in Yemen is well-documented.
So, too, is the steadfast U.S. support for Saudi Arabia, the leader of a coalition
whose airstrikes have caused enough civilian casualties to be scrutinized by the
U.N. for potential war crimes. As the parties negotiate a political resolution,
attention may—and should—quickly turn toward ensuring accountability for
internationally unlawful crimes. This Note examines the mode of liability under
international criminal law known as aiding and abetting. After a discussion of
its elements, it turns to an analysis of whether U.S. government personnel could
be held liable for aiding and abetting the principal war crimes committed by the
Saudi coalition—assuming that such crimes have been committed. It then scruti-
nizes how the U.S. has previously dealt with the problem of its assistance being
used for internationally unlawful purposes and suggests mitigation measures to
eliminate its complicity in future crises.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
II. THE DEVELOPMENT OF AIDING AND ABETTING LIABILITY IN
INTERNATIONAL CRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . 454
A. The Actus Reus: “Substantial Effect” . . . . . . . . . . . . . . . . 456
B. The Rise and Fall of the “Specif‌ic Direction” Requirement . . . 458
C. The Mens Rea: Knowledge . . . . . . . . . . . . . . . . . . . . . . . . 464
III. APPLICATION OF AIDING AND ABETTING LIABILITY TO THE ARMED
CONFLICT IN YEMEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
A. Examining Current Complicity . . . . . . . . . . . . . . . . . . . . . 469
* J.D. Candidate, Vanderbilt Law School, 2020; B.A., University of Virginia, 2014. The author
would like to thank Professor Michael Newton for inspiring his passion for atrocity law and for his
instruction on critical concepts in this f‌ield, and Professor Ingrid Wuerth for her excellence in
teaching on all matters of public international law. He is indebted to fellow members of the
Vanderbilt Journal of Transnational Law for their insightful commentary. This Note is dedicated
to his late sister, Erika Judith Preve. V
C 2020, Alexander W. Preve.
449
1. Applying the Actus Reus: U.S. Support for Saudi
Coalition Airstrikes . . . . . . . . . . . . . . . . . . . . . . . . 469
2. Applying the Mens Rea: U.S. Knowledge of Saudi
Coalition War Crimes. . . . . . . . . . . . . . . . . . . . . . . 472
3. Taking Stock: the United States Has Probably
Aided and Abetted Saudi War Crimes . . . . . . . . . . 476
B. Averting Future Complicity . . . . . . . . . . . . . . . . . . . . . . . . 478
1. The 1994 OLC Opinion as a Framework for
Addressing Future Crises . . . . . . . . . . . . . . . . . . . . 478
2. When to Re-Examine the Presumption of Foreign
Lawful Activity: Known Practices and Reliable
Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
IV. A PROPOSED MITIGATION MEASURE TO AVERT FUTURE U.S.
COMPLICITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
I. INTRODUCTION
The conf‌lict in Yemen has produced a humanitarian catastrophe of
the highest magnitude. More than 91,000 fatalities have been reported
since international intervention began in March 2015
1
and more than
1.2 million cases of suspected or conf‌irmed cholera have been reported
since April 2017.
2
Amidst a widespread famine, more than twenty mil-
lion Yemenis are in need of basic humanitarian assistance, such as food
and water, out of a prewar population of twenty-eight million.
3
In late
2018, the United Nations brokered peace talks between the Saudi-
backed Yemeni government and the Houthi rebels,
4
and the parties
agreed to a cease-f‌ire for the port city of Hodeidah and made plans to
discuss a long-term political framework.
5
1. Press Release, Armed Conf‌lict Location & Event Data Project, Yemen War Death Toll
Exceeds 90,000 According to New ACLED Data for 2015 (June 18, 2019), https://www.acleddata.
com/2019/06/18/press-release-yemen-war-death-toll-exceeds-90000-according-to-new-acled-
data-for-2015/ [hereinafter ACLED Press Release].
2. Sadeq Al-Wesabi, Yemen: As Cholera Surges Again, UN and Partners Double Down on Vaccination
Efforts, U.N. NEWS (Oct. 2, 2018), https://news.un.org/en/story/2018/10/1022062.
3. Alex Ward, The Pentagon Doesn’t Know if US-Made Bombs Killed Kids in Yemen, VOX (Aug. 9, 2018),
https://www.vox.com/2018/8/9/17671386/yemen-airstrikes-saudi-arabia-coalition-pentagon.
4. Faisal Edroos, All You Need to Know About the Yemen Peace Talks, AL-JAZEERA (Dec. 3, 2018),
https://www.aljazeera.com/indepth/features/yemen-peace-talks-181202101535422.html.
5. Patrick Wintour & Bethan McKernan, Yemen: Ceasef‌ire Agreed for Port City of Hodeidah, GUARDIAN
(Dec. 13, 2018), https://www.theguardian.com/world/2018/dec/13/yemen-ceasef‌ire-agreed-for-
vital-port-city-of-hodeidah.
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
450 [Vol. 51
But even if a political breakthrough is achieved, the Saudi coalition’s
actions throughout the conf‌lict will undoubtedly be the focus of
intense international scrutiny. Over 8,000 civilians have been directly
targeted and killed by Saudi coalition airstrikes since 2015, according
to the Armed Conf‌lict Location & Event Data Project, and this f‌igure
accounts for roughly sixty-seven percent of all reported civilian fatalities
in Yemen over the last four and a half years.
6
In August 2018, the coali-
tion struck a school bus in northern Yemen carrying students on a rec-
reational trip, which killed f‌ifty-one people—including forty children.
7
Reports following the strike strongly suggested that the bomb dropped
on this bus was manufactured by Lockheed Martin and approved for
export by the U.S. State Department in 2015, during the Obama
Administration.
8
Later that month, a U.N. panel of experts announced
that it had reasonable grounds to believe that the Saudi coalition had
committed war crimes and other violations of international humanitar-
ian law (IHL) in Yemen.
9
Spurred by the murder of Saudi dissident journalist Jamal
Khashoggi, the U.S. Senate voted to end U.S. military assistance to
Saudi Arabia’s war in Yemen in December 2018.
10
However, the U.S.
House of Representatives blocked passage of a bill ending support.
11
While the United States did announce that it would halt aerial refueling
of coalition aircraft,
12
President Trump stated that he had no intention
of cancelling an agreement with Saudi Arabia for the purchase of U.S.-
6. ACLED Press Release, supra note 1.
7. Salma Abdelaziz, Alla Eshchenko & Joe Sterling, Saudi-Led Coalition Admits ‘Mistakes’ Made in
Deadly Bus Attack in Yemen, CNN (Sept. 2, 2018), https://www.cnn.com/2018/09/01/middleeast/
saudi-coalition-yemen-attack/index.html.
8. Julian Borger, US Supplied Bomb that Killed 40 Children on Yemen School Bus, GUARDIAN (Aug.
19, 2018), https://www.theguardian.com/world/2018/aug/19/us-supplied-bomb-that-killed-40-
children-school-bus-yemen.
9. See United Nations High Commissioner for Human Rights, Situation of Human Rights in
Yemen, Including Violations and Abuses Since September 2014, 108, U.N. Doc. A/HRC/39/43 (Aug.
17, 2018) [hereinafter UNHRC Yemen Report].
10. Julie Hirschf‌ield Davis & Eric Schmitt, Senate Votes to End Aid for Yemen over Khashoggi Killing
and Saudis’ War Aims, N.Y. TIMES (Dec. 13, 2018), https://www.nytimes.com/2018/12/13/us/
politics/yemen-saudi-war-pompeo-mattis.html.
11. Conor Finnegan, House Blocks Bill to End Support for Saudi Coalition in Yemen as UK Yields
Diplomatic Progress, ABC NEWS (Nov. 15, 2018), https://abcnews.go.com/Politics/house-blocks-
bill-end-support-saudi-coalition-yemen/story?id=59208707.
12. Phil Stewart, U.S. Halting Refueling of Saudi-Led Coalition Aircraft in Yemen’s War, REUTERS
(Nov. 9, 2018), https://www.reuters.com/article/us-usa-yemen-refueling/u-s-halting-refueling-
of-saudi-led-coalition-aircraft-in-yemens-war-idUSKCN1NE2LJ.
CRISIS AND COMPLICITY
2020] 451

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