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Congress Signals Concern Over U.S. Role in Aiding Saudi Arabia's Activities in Yemen

Published online by Cambridge University Press:  14 January 2019

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Extract

As the conflict in Yemen continues, congressional concern over U.S. support for the Saudi-led coalition fighting in the region has grown. The objects of these concerns include thousands of civilian casualties, a cholera epidemic, and a country on the brink of famine. In October 2018, relations between the United States and Saudi Arabia became further complicated by the brutal death of Jamal Khashoggi, a prominent journalist and outspoken critic of the Saudi government.

Type
International Human Rights and Humanitarian Law
Information
American Journal of International Law , Volume 113 , Issue 1 , January 2019 , pp. 159 - 169
Copyright
Copyright © 2019 by The American Society of International Law 

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References

1 See Christopher M. Blanchard & Jeremy M. Sharp, Cong. Research Serv., R45046, The War in Yemen: A Compilation of Legislation in the 115th Congress 5–7 (2018), available at https://fas.org/sgp/crs/mideast/R45046.pdf [https://perma.cc/9BFH-Y2QD].

2 See generally Situation of Human Rights in Yemen, Including Violations and Abuses Since September 2014, Rep. of the H.R.C., UN Doc. A/HRC/39/43 (2018) [hereinafter Situation of Human Rights in Yemen].

3 See Mark Landler & Edward Wong, Trump Says Saudi Account of Khashoggi Killing Is “Worst Cover-Up” in History, N.Y. Times (Oct. 23, 2018), at https://www.nytimes.com/2018/10/23/us/politics/khashoggi-cover-up-trump.html (discussing how the killing of Khashoggi is causing tension between Saudi Arabia and the United States, including with respect to arms sales).

4 Oona Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy & Alyssa Yamamoto, The Yemen Crisis and the Law: The Saudi-Led Campaign and U.S. Involvement, Just Security (Feb. 20, 2018), at https://www.justsecurity.org/52718/js-yemen-crisis-forum-saudi-campaign-us-involvement.

5 Id.; see also Letter from Charles Faulkner, U.S. Dep't of State Bureau of Legis. Aff. to Senator Bob Corker, Chairman, Senate Committee on Foreign Rel. (Aug. 2, 2017), available at https://www.politico.com/f/?id=0000015d-a3bf-d43a-a3dd-b3bf14170000 [https://perma.cc/UB3A-ZSCH].

6 Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 111 AJIL 523, 526 & n. 30 (2017)Google Scholar (discussing the “complicated” nature of this consent in light of the fact that Yemen's internationally recognized government is effectively in exile); see also Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations 6 (Mar. 2018), available at https://assets.documentcloud.org/documents/4411804/3-18-War-Powers-Transparency-Report.pdf (stating that “[a]s a matter of international law, we note that the airstrikes against ISI[L] have been conducted with the consent of the Government of Yemen in the context of its armed conflict against ISI[L] and also in furtherance of U.S. national self-defense”); Cf. David E. Sanger & Eric Schmitt, Yemen Withdraws Permission for U.S. Antiterror Ground Missions, N.Y. Times (Feb. 7, 2017), at https://www.nytimes.com/2017/02/07/world/middleeast/yemen-special-operations-missions.html (reporting that, following a raid that led to the death of Yemeni children and a U.S. servicemember, Yemen withdrew its permission for the United States to conduct ground attacks but left in place its acceptance of U.S. drone strikes).

7 U.S. Cent. Comm. Press Release, Update on Recent Counterterrorism Strikes in Yemen (Dec. 20, 2017), at http://www.centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/1401383/update-on-recent-counterterrorism-strikes-in-yemen [https://perma.cc/2JQW-9ALE].

8 U.S. Cent. Comm. Press Release, CENTCOM Updates Counterterrorism Strikes in Yemen (Nov. 6, 2018), at http://www.centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/1683907/centcom-updates-counterterrorism-strikes-in-yemen [https://perma.cc/BL4A-5PEQ].

9 See Hathaway, Francis, Haviland, Kethireddy & Yamamoto, supra note 4 (elaborating on these issues and also noting that the Houthis are deemed to be supported by Iran).

10 White House Press Release, Statement by NSC Spokesperson Bernadette Meehan on the Situation in Yemen (Mar. 25, 2015), at https://obamawhitehouse.archives.gov/the-press-office/2015/03/25/statement-nsc-spokesperson-bernadette-meehan-situation-yemen; cf. Daugirdas & Mortenson, supra note 6, at 531–33 (discussing circumstances under which U.S. aid to the Saudi military campaign might violate international law); Oona Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy & Alyssa Yamamoto, Yemen: Is the U.S. Breaking the Law?, __ Harv. Nat'l Sec. L.J. __ (forthcoming 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3272263 (analyzing the legality of U.S. involvement in Yemen under both international and domestic law).

11 Daugirdas & Mortenson, supra note 6, at 523.

12 Id. at 529.

13 Id.

14 Id. at 529–30.

15 Id.

16 Donald J. Trump, Remarks at the Arab Islamic American Summit in Riyadh, Saudi Arabia, 2017 Daily Comp. Pres. Doc. No. 350 at 4 (May 21).

17 Id. at 2. For other aspects of the Trump administration's support for the Saudi-led coalition, see Blanchard & Sharp, supra note 1, at 2–4.

18 Mark Landler, Eric Schmitt & Matt Apuzzo, $110 Billion Weapons Sale to Saudis Has Jared Kushner's Personal Touch, N.Y. Times (May 18, 2017), at https://www.nytimes.com/2017/05/18/world/middleeast/jared-kushner-saudi-arabia-arms-deal-lockheed.html?module=inline.

19 S. Res. 42, 115th Cong. (2017); 163 Cong. Rec. S100, 3427–28 (daily ed. June 13, 2017); see also Anne Gearan, Symbolic Effort to Block Part of Saudi Arms Sale Falls Short in the Senate, Wash. Post (June 13, 2017), at https://www.washingtonpost.com/world/national-security/symbolic-effort-to-block-part-of-saudi-arms-sale-falls-short-in-the-senate/2017/06/13/d68944f8-506a-11e7-b064-828ba60fbb98_story.html?utm_term=.22fe01b8f3b0.

20 Gearan, supra note 19.

21 Chris Murphy (@ChrisMurphyCT), Twitter (June 13, 2017, 12:09 PM), at https://twitter.com/ChrisMurphyCT/status/874705391371911168.

22 Eric Schmitt, Saudi Arabia Tries to Ease Concerns Over Civilian Deaths in Yemen, N.Y. Times (June 14, 2017), at https://www.nytimes.com/2017/06/14/world/middleeast/saudi-arabia-arms-training-yemen.html. A year later, the Trump administration submitted the sale of more than 120,000 precision-guided munitions to the coalition for congressional review, again arguing that precision-guided munitions reduce the risk of civilian casualties. Patricia Zengerle, Pompeo Says Precision-Guided Missiles, as in Yemen, Cut Risks to Civilians, Reuters (May 23, 2018), at https://www.reuters.com/article/us-usa-pompeo-arms-saudi/pompeo-says-precision-guided-missiles-as-in-yemen-cut-risks-to-civilians-idUSKCN1IO2LD.

23 John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232 (2018).

24 Blanchard & Sharp, supra note 1, at 5; see also Letter from Senators Todd Young, Jeanne Shaheen, Susan M. Collins, Christopher S. Murphy, Benjamin L. Cardin, Jack Reed, Christopher A. Coons, Tim Kaine & Cory A. Booker to Mike Pompeo, Secretary of State, U.S. Dep't of State & James Mattis, Secretary of Defense, U.S. Dep't of Defense (Aug. 29, 2018), available at https://www.young.senate.gov/imo/media/doc/2018.08.29%20Letter%20to%20SecState%20Pompeo_YoungShaheen_Yemen%20Statute.pdf [https://perma.cc/3TMP-V82F] (stating that this provision “enjoys … broad, bipartisan, and bicameral support”).

25 U.S. Senate, Senator Todd Young Press Release, Young, Shaheen Successfully Include Yemen Provision in NDAA Conference Report (July 24, 2018), at https://www.young.senate.gov/newsroom/press-releases/young-shaheen-successfully-include-yemen-provision-in-ndaa-conference-report [https://perma.cc/PQF7-PC3L].

26 Pub. L. No. 115-232 § 1290(c)(1) (2018). The potential restrictions, however, do not apply to appropriations for in-flight refueling of coalition aircrafts used in certain operations, including counterterrorism missions against AQAP and ISIL and actions to prevent “the transport, assembly, or employment of ballistic missiles or components in Yemen.” § 1290(a)(1)(A)–(B).

27 § 1290(a)(2).

28 § 1290(b).

29 Donald J. Trump, Statement on Signing the John S. McCain National Defense Authorization Act for Fiscal Year 2019, 2018 Daily Comp. Pres. Doc. No. 533 at 1 (Aug. 13) [hereinafter Trump Signing Statement].

30 Id.; see also Scott R. Anderson, What to Make of Trump's NDAA Signing Statement, Lawfare (Aug. 23, 2018), at https://www.lawfareblog.com/what-make-trumps-ndaa-signing-statement (considering that this standard of “‘feasible and consistent’ … actually implies that the Trump administration accepts the validity of the [relevant] NDAA provisions … in at least some scenarios”).

31 For a longer discussion of these provisions, see Rita Siemion, Two Important New Civilian Casualties Provisions in the Defense Authorization Bill, Just Security (July 24, 2018), at https://www.justsecurity.org/59695/important-civilian-casualties-provisions-congressional-bill-national-defense-authorization-act.

32 Pub. L. No. 115-232 § 936(a).

33 § 936(b) (also imposing a reporting obligation on this official).

34 § 1062(a).

35 Id.

36 Trump Signing Statement, supra note 29, at 1 (stating with respect to Section 936 that “my Administration will implement [this provision] consistent with the President's authority as Commander in Chief”); id. at 2 (stating with respect to Section 1062 that the information sought might be subject to “executive privilege” and further that the administration considers this provision “as not requiring changes in underlying DOD processes for battle damage assessment and investigation”).

37 Department of Defense, Memorandum of the Under Secretary of Defense for Policy Designating a Senior Civilian Official for Civilian Casualty Policy (Oct. 23, 2018), available at https://www.humanrightsfirst.org/sites/default/files/CIVCAS_Coord%20_Memo_Final.pdf (designating the deputy under secretary of defense for policy as this official).

38 See generally Certification Under Section 1290 of the John S. McCain Nation Defense Authorization Act for Fiscal Year 2019 Related to Military Assistance for Saudi Arabia and the United Arab Emirates by Secretary of State Mike Pompeo, available at https://www.young.senate.gov/imo/media/doc/Yemen%20Certification%20Unclassified.pdf [https://perma.cc/VS8P-83A6].

39 U.S. Dep't of State Press Release, Certification to Congress on Actions of Saudi Arabia and UAE in Yemen Under the NDAA (Sept. 12, 2018), at https://www.state.gov/secretary/remarks/2018/09/285861.htm [https://perma.cc/X3Y7-U77Z]. Defense Secretary Mattis endorsed Pompeo's certification stating, “[T]he governments of Saudi Arabia and United Arab Emirates are making every effort to reduce the risk of civilian casualties and collateral damage to civilian infrastructure resulting from their military operations to end the civil war in Yemen.” U.S. Dep't of Defense Press Release, Statement by Secretary of Defense James N. Mattis on Actions of Saudi Arabia and UAE in Yemen (Sept. 12, 2018), at https://dod.defense.gov/News/News-Releases/News-Release-View/Article/1628689/statement-by-secretary-of-defense-james-n-mattis-on-actions-of-saudi-arabia-and [https://perma.cc/C3GT-A23Z].

40 Dion Nissenbaum, Top U.S. Diplomat Backed Continuing Support for Saudi War in Yemen Over Objections of Staff, Wall St. J. (Sept. 20, 2018), at https://www.wsj.com/articles/top-u-s-diplomat-backed-continuing-support-for-saudi-war-in-yemen-over-objections-of-staff-1537441200.

41 Ali Al-Mujahed & Sudarsan Raghavan, Airstrike by U.S.-Backed Saudi coalition on Bus Kills Dozens of Yemeni Children, Wash. Post (Aug. 9, 2018), at https://www.washingtonpost.com/world/middle_east/airstrike-by-us-ally-on-bus-carrying-yemeni-children-kills-and-wounds-scores/2018/08/09/c047e55e-bbc6-42ff-a5db-4bd2e629f0b6_story.html?utm_term=.182f4c078f35.

42 Id.

43 The Embassy of the Kingdom of Saudi Arabia Press Release, Statement from the Coalition to Restore Legitimacy in Yemen on August 9th JIAT Investigation Findings (Sept. 4, 2018) at https://www.saudiembassy.net/news/statement-coalition-restore-legitimacy-yemen-august-9th-jiat-investigation-findings [https://perma.cc/2DWJ-PGHH].

44 Situation of Human Rights in Yemen, supra note 2, at 5 (noting that “the real figure is likely to be significantly higher”); see also Yemen: United Nations Experts Point to Possible War Crimes by Parties to the Conflict (Aug. 28, 2018), at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23479 [https://perma.cc/UWC4-8BJB].

45 Situation of Human Rights in Yemen, supra note 2, at 14 (also finding that that coalition members “have committed acts that may amount to war crimes, including cruel treatment and torture, outrages upon personal dignity, rape and conscripting or enlisting children under the age of 15 or using them to participate actively in hostilities”).

46 Id. at 30–31. This number increased dramatically in subsequent months. See Humanitarian Aid, Half the Population of Yemen at Risk of Famine: UN Emergency Relief Chief, UN News (Oct. 23, 2018), at https://news.un.org/en/story/2018/10/1023962 [https://perma.cc/LMN8-FK8M] (estimating that as of October 2018, 14 million people were at risk of famine).

47 Letter from Senators Todd Young, Jeanne Shaheen, Susan M. Collins, Christopher A. Coons, Jerry Moran, Christopher S. Murphy & Jeffrey A. Merkley to Mike Pompeo, Secretary of State, U.S. Dep't of State (Oct. 10, 2018), available at https://www.young.senate.gov/imo/media/doc/2018.10.10%20Letter%20to%20Secretary%20Pompeo%20(Yemen%20Certification).pdf [https://perma.cc/EL9W-PHPE].

48 Id.

49 U.S. Senate, Senator Chris Murphy Press Release, Murphy Statement on Administration Claim That Saudi-Led War in Yemen Complies With The Law (Sept. 12, 2018), at https://www.murphy.senate.gov/newsroom/press-releases/_murphy-statement-on-administration-claim-that-saudi-led-war-in-yemen-complies-with-the-law [https://perma.cc/FN39-VNNJ].

50 Letter from Representative Ted Lieu to Glenn A. Fine, Acting Inspector General, U.S. Dep't of Defense (Aug. 13, 2018), available at https://lieu.house.gov/sites/lieu.house.gov/files/2018-08-13%20TWL%20Letter%20to%20DoD%20IG%20Fine%20-%20Yemen.pdf [https://perma.cc/F4T7-CK2X].

51 E.g., H.R. Con. Res. 138, 115th Cong. (2018); S. Res. 54, 115th Cong. (2018); see also U.S. Senate, Senator Bernie Sanders Press Release, Sanders to Bring Back War Powers Resolution to End Unauthorized U.S. Military Involvement in Yemen (Oct. 15, 2018), at https://www.sanders.senate.gov/newsroom/press-releases/sanders-to-bring-back-war-powers-resolution-to-end-unauthorized-us-military-involvement-in-yemen [https://perma.cc/9ULJ-22GA].

52 Carlotta Gall, What Happened to Jamal Khashoggi? Conflicting Reports Deepen a Mystery, N.Y. Times (Oct. 3, 2018), at https://www.nytimes.com/2018/10/03/world/middleeast/khashoggi-saudi-journalist-istanbul.html.

53 E.g., Jamal Khashoggi, Saudi Arabia's Crown Prince Must Restore Dignity to His Country — by Ending Yemen's Cruel War, Wash. Post (Sept. 11, 2018), at https://www.washingtonpost.com/news/global-opinions/wp/2018/09/11/saudi-arabias-crown-prince-must-restore-dignity-to-his-country-by-ending-yemens-cruel-war/?utm_term=.94e4d30f26a7; Jamal Khashoggi, Saudi Arabia's Crown Prince Already Controlled the Nation's Media. Now He's Squeezing It Even Further, Wash. Post (Feb. 7, 2018), at https://www.washingtonpost.com/news/global-opinions/wp/2018/02/07/saudi-arabias-crown-prince-already-controlled-the-nations-media-now-hes-squeezing-it-even-further/?utm_term=.d3b5193abef1.

54 Gall, supra note 52.

55 David D. Kirkpatrick & Carlotta Gall, Audio Offers Gruesome Details of Jamal Khashoggi Killing, Turkish Official Says, N.Y. Times (Oct. 17, 2018), at https://www.nytimes.com/2018/10/17/world/europe/turkey-saudi-khashoggi-dismember.html (further noting that Turkey apparently possessed audio tapes of what transpired within the Saudi consulate).

56 Aaron C. Davis & Erin Cunningham, Saudi Forensic Expert is Among 15 Named by Turkey in Disappearance of Journalist Jamal Khashoggi, Wash. Post (Oct. 11, 2018), at https://www.washingtonpost.com/world/saudi-forensic-expert-is-among-15-named-by-turkey-in-disappearance-of-journalist-jamal-khashoggi/2018/10/11/e62d6dd4-cd6a-11e8-ad0a-0e01efba3cc1_story.html?utm_term=.d66ebe4e14b2 (noting that the forensic expert's flight left Riyadh “just nine minutes after Khashoggi entered the country's diplomatic compound in Turkey” and that he returned to Riyadh on an 11p.m. flight).

57 See id.

58 Ben Hubbard & David D. Kirkpatrick, Saudis Shift Account of Khashoggi Killing Again, as 5 Agents Face Death Penalty, N.Y. Times (Nov. 15, 2018), at https://www.nytimes.com/2018/11/15/world/middleeast/saudi-arabia-khashoggi-death-penalty.html.

59 Id. (noting that the agent, Maher Abdulaziz Mutreb, was an “intelligence agent who has often traveled abroad as part of the crown prince's security detail”).

60 U.S. Dep't of State Press Release, Remarks to Press by Secretary of State Mike Pompeo (Oct. 23, 2018), at https://www.state.gov/secretary/remarks/2018/10/286854.htm [https://perma.cc/CPC9-KD67].

61 Id.

62 U.S. Dep't of State Press Release, Global Magnitsky Sanctions on Individuals Involved in the Killing of Jamal Khashoggi (Nov. 15, 2018), at https://www.state.gov/secretary/remarks/2018/11/287376.htm [https://perma.cc/WZW2-Y3XM] (noting that “all of these individuals’ assets within U.S. jurisdiction are blocked, and U.S. persons are generally prohibited from engaging in transactions with them”).

63 Hubbard & Kirkpatrick, supra note 58.

64 Shane Harris, Greg Miller & Josh Dawsey, CIA Concludes Saudi Crown Prince Ordered Jamal Khashoggi's Assassination, Wash. Post (Nov. 16, 2018), at https://www.washingtonpost.com/world/national-security/cia-concludes-saudi-crown-prince-ordered-jamal-khashoggis-assassination/2018/11/16/98c89fe6-e9b2-11e8-a939-9469f1166f9d_story.html?utm_term=.4a3a922edb5e.

65 White House Press Release, Statement from President Donald J. Trump on Standing with Saudi Arabia (Nov. 20, 2018), at https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-standing-saudi-arabia.

66 Id.

67 Chuck Schumer (@SenSchumer), Twitter (Nov. 20, 2018, 12:22pm), at https://twitter.com/senschumer/status/1064977318865788928?lang=en.

68 Bob Corker (@SenBobCorker), Twitter (Nov. 20, 2018, 2:18pm), at https://twitter.com/senbobcorker/status/1065006401272143873?lang=en. For some other responses, see Adam Edelman & F. Brinley Bruton, In Unusual Statement Disputing the CIA and Filled with Exclamation Points, Trump Backs Saudi Ruler After Khashoggi Killing, NBC News (Nov. 20, 2018), at https://www.nbcnews.com/politics/donald-trump/unusual-statement-disputing-cia-filled-exclamation-points-trump-backs-saudi-n938526.

69 Jordain Carney, Rand Paul Vows to Force Vote on Saudi Arms Sales Over Missing Journalist, The Hill (Oct. 9, 2018), at https://thehill.com/homenews/senate/410585-rand-paul-vows-to-force-vote-on-saudi-arms-sales-over-missing-journalist.

70 U.S. Senate, Senator Bob Menendez Press Release, Menendez, Young, Reed, Graham, Shaheen, Collins Introduce Comprehensive Saudi Arabia Accountability and Yemen Act (Nov. 15, 2018), at https://www.menendez.senate.gov/news-and-events/press/menendez-young-reed-graham-shaheen-collins-introduce-comprehensive-saudi-arabia-accountability-and-yemen-act [https://perma.cc/R382-HWD8].

71 Karoun Demirjian, Carol Morello & John Hudson, Rebuking Trump, Senators Back Effort to Suspend U.S. Support for the Saudi-led War in Yemen, Wash. Post (Nov. 28, 2018), at https://www.washingtonpost.com/powerpost/pompeo-mattis-to-brief-senate-on-saudi-arabia-khashoggi-and-yemen/2018/11/27/ee4e36c0-f28a-11e8-bc79-68604ed88993_story.html?utm_term=.5a90efbfd910. This resolution was brought forward through a procedural mechanism set out under the War Powers Resolution. See id.

72 “Julie Hirschfeld Davis & Eric Schmitt, Senate Votes to End Aid for Yemen Fight Over Khashoggi Killing and Saudis' War Aims, N.Y. Times (Dec. 13, 2018), at https://www.nytimes.com/2018/12/13/us/politics/yemen-saudi-war-pompeo-mattis.html. In the absence of similar action by the House of Representatives, the effect of these resolutions is symbolic. See id.”

73 Wesley Morgan, Pentagon: No More Refueling of Saudi Aircraft Bombing Yemen, Politico (Nov. 9, 2018).

74 U.S. Dep't of State Press Release, Ending the Conflict in Yemen (Oct. 30, 2018), at https://www.state.gov/secretary/remarks/2018/10/287018.htm [https://perma.cc/CSA4-GBW6].