A Saudi airstrike explodes near civilian homes in Yemen. (photo: Mohamed
al-Sayaghi/Reuters)
US and UK Acting Above the Law to Support the Saudi War in Yemen
By Nafeez Ahmed, Middle East Eye
15 July 17
A former State Department war crimes expert warns that arms sales to Saudi
Arabia is 'prohibited' under US law - but the lethal exports still go ahead
Britain and America are above the law. Our complicity in Saudi Arabia's war
in Yemen proves it.
This week, the High Court in London ruled that British arms sales to Saudi
Arabia are lawful, dismissing a judicial review filed by Campaign Against
Arms Trade (CAAT), which had demanded that weapons exports be halted over
humanitarian concerns.
CAAT are appealing the ruling, and no wonder - it was ultimately decided on
the basis of largely secret evidence supplied by the UK government, heard in
closed court. This is not open justice: it is evidence of how the Whitehall
foreign policy establishment abuse "national security" as a carte blanche to
protect themselves from legal accountability.
The same thing is happening across the pond. According to a former senior
war crimes advisor to the US State Department, US arms sales to Saudi Arabia
are "prohibited" under US laws due to "credible allegations" of illegal
actions during the kingdom's bombing campaign in Yemen.
The analysis is set out in a compelling white paper published in May by
Professor Michael Newton, who teaches the International Law Practice Lab at
Vanderbilt University Law School. The American Bar Association sent Newton's
paper to the US Senate saying that "questions had arisen" concerning whether
the sales were "consistent with US statuatory obligations".
Unfortunately, despite the robustness of the legal argument, it did not
prevent the US Senate from narrowly backing the sale of $500m worth in
precision-guided munitions to Saudi Arabia in mid-June.
If our domestic laws have no power to prevent our governments from becoming
complicit in Saudi state terror in Yemen, this does not make those arms
sales legitimate. It means, simply, that our laws are not fit for purpose -
that the rule of law has become a farce, a figleaf to enable the US and
Britain to outsource illegal wars to their Gulf proxies.
Precipitating 'humanitarian catastrophe'
According to the UN's Office of the High Commissioner for Human Rights,
there have been over 13,000 civilian casualties in Yemen, with 21 million
Yemenis in urgent need of humanitarian assistance. Saudi Arabia's
indiscriminate bombing campaign in Yemen, which has contributed directly to
this crisis, has been condemned as unlawful by a UN panel of experts, the
European Parliament and humanitarian NGOs.
Lynn Maalouf, deputy director for research at Amnesty International's Beirut
regional office, said that British and American weapons "have been used to
commit gross violations and helped to precipitate a humanitarian
catastrophe" in Yemen.
Like Britain, the US has played a lead role in supporting Saudi Arabia's war
in Yemen through exports of military equipment, including for in-flight
refuelling to support the bombing campaign. Over the last eight years, the
US has provided more than $115bn in arms sales to Saudi Arabia.
Last year, the Obama administration authorised $1.3bn in arms sale, despite
internal warnings from some State Department officials that the US could be
implicated in war crimes for supporting the Saudi-led air campaign in Yemen.
In May, President Donald Trump announced a $110bn arms deal with Saudi
Arabia over the next 10 years although, like all things Trumpian, the scale
of the deal may well have been deliberately overblown.
Profiting off civilian deaths
But it's the thought that counts, of course: the earnest joint American and
Saudi desire for a lucrative, long-term arrangement in which the US
military-industrial complex profits from the massacre of Yemeni civilians.
But according to Professor Michael Newton, ongoing US arms sales are
"prohibited" under the Arms Export Control and the Foreign Assistance Act.
Following a distinguished US military career, Newton served as the senior
advisor to the ambassador-at-large for war crimes Issues in the US State
Department. He also taught international law at the US Military Academy at
West Point.
Newton told me that despite these strong findings, he was not trying to say
"that Saudi Arabia committed war crimes, but merely that they have done an
insufficient job of addressing the serious allegations". The remedy, he
said, is for the US and Saudi Arabia "to coordinate closely on transparency
and improved targeting".
Yet this is not happening. There is no transparency, and no evidence of
improved targeting. And as long as this doesn't happen, US arms sales to
Saudi Arabia "should not be presumed to be permissible," writes Newton.
"In the face of persistent reports of wrongdoing, Saudi Arabia has failed to
rebut allegations or provide detailed evidence of compliance with binding
obligations arising from international humanitarian law," wrote Newton in
his working paper for Vanderbilt Law School's Legal Studies Research Paper
Series.
Even after Saudi military units received training and equipment to reduce
civilian casualties, "multiple credible reports of recurring and highly
questionable strikes" continued to emerge. Newton thus argued that the US
government "cannot continue to rely on Saudi assurances that it will comply
with international law and agreements concerning the use of US-origin
equipment".
He therefore concluded that under federal law, further arms sales "are
prohibited. until the Kingdom of Saudi Arabia takes effective measures to
ensure compliance with international law and the president submits relevant
certifications to the Congress".
Growing opposition
Of course, neither is happening, but at least US "defence" companies are
making a killing. Literally.
I asked Andrew Smith, a spokesperson for CAAT, about these findings. "We
welcome all scrutiny of governments that are complicit in arming and
supporting the brutal bombardment that has been unleashed on Yemen," he
said.
"The growing opposition to the US government's uncritical support of the
Saudi regime is very important and it is only right that it is questioned
not just in Congress and on the streets, but also by legal experts."
I also asked the State Department what they thought of Professor Newton's
damning conclusions. A spokesperson replied over email, but did not address
the main allegation that the arms sales are simply prohibited under federal
law.
"All potential US defense sales are carefully assessed under the US
government's Conventional Arms Transfer (CAT) Policy to examine issues
including regional security, nonproliferation, and human rights concerns,"
the spokesperson wrote.
All this is done "as part of a broader determination [emphasis added] as to
whether or not a sale is in the best foreign policy and national security
interests of the United States".
The spokesperson went on to assure me that a review and monitoring process
is always undertaken to ensure that US arms "are used in the manner intended
and consistent with our legal obligations, foreign policy goals, and
values".
But in the context of Newton's argument, this suggests that the US
government is in fact intimately aware of the Saudi state's systematic
violations of international law in Yemen - and is happy to continue
supporting the war all the same.
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