Overview of the Conflict
Since the war began in 2015 coalition forces have regularly violated international humanitarian law through unlawful airstrikes which targeted civilians and civilian infrastructure including mosques, hospitals, schools, homes, and markets, the use of banned cluster munitions, engaging in a pattern of enforced disappearances, arbitrary detention and torture of perceived political opponents and security threats, and the regular blocking of food, fuel, and medical supplies from reaching Houthi controlled areas.
The United States and United Kingdom both offered logistical and intelligence support for the coalition throughout the war. Both countries have been supplying weapons and providing military and diplomatic support to the Saudi-led coalitions. Additionally, both countries have long standing economic ties with Saudi Arabia which might explain the cooperation. The US began its involvement in the conflict in 2015 with the view that the American weapons, training and intelligence would simply assist the Saudis in avoiding more civilian casualties. The UK has been intimately involved in supplying arm to Saudi Arabia despite a court ruling deeming it illegal in the face of continuous human rights violations.
As a result of the conflict at 12,000 civilians have been killed, primarily due to coalition bombings, although the actual death toll is believed to be much higher. The Office of the UN High Commissioner for Human Rights has documented that roughly 20,000 civilians have been killed in fighting and Amnesty International states that it is estimated that over 233,000 civilians have died due to the humanitarian conditions created by the conflict by the end of 2019. In addition, over 3.6 million people have been displaced by the conflict while another 24 million Yemenis are in need of humanitarian assistance and over 2 million are facing critical food insecurity due in part to the Coalition’s deliberate policy of blocking food, medicine, and fuel from reaching Houthi controlled areas.
US and UK involvement in war crimes in Yemen
The US has been closely involved with coalition forces since the beginning of the conflict in 2015, supplying weapons, providing mid-air refueling of coalition warplanes, and providing intelligence support to coalition forces. This support has not ebbed even though the US government is aware of war crimes committed by coalition forces and even has knowledge of when US or UK munitions have been used to commit war crimes. While top US military and government officials have denied knowledge of US munitions being used by the coalition to commit war crimes Larry Lewis, a State Department advisor on civilian harm, has stated that American liaison officers have access to a database with detailed information on every airstrike carried out by coalition forces.
As a result of this information, there have been long-standing worries of potential legal liability for the US’ role in the war within the State Department. In September 2016 Ryan Goodman, a former Defense Department lawyer, laid out the case for legal liability for US personnel involved in assisting the coalition. Goodman concluded that a state assisting another state faced “substantial legal risk that aiding and abetting liability for war crimes would be found under international law even absent any intent or purpose to promote the crimes.” In the same year, the media reported that a State Department lawyer concluded that Americans could potentially be charged with war crimes for conduct in Yemen. This prompted Congressman Ted Lieu to write to the State Department requesting the State Department lawyer’s analysis, in response the State Department refused to comment on any specific legal advice it had been given.
While Saudi Arabia promised the US that it would take steps to comply with international humanitarian law (IHL) in the face of mounting accusations and evidence of war crimes committed by coalition forces, this promise is clearly not credible as the coalition has made no systemic changes to respect IHL and war crimes by coalition forces have continued unabated. In addition, Larry Lewis has stated that US and Saudi officials have blocked efforts to improve civilian protection programs and promote accountability for civilian casualties. Due to this information, it is clear that the US is not making a reasonable effort to prevent violations of IHL as it has full knowledge of war crimes committed by coalition forces and has taken no steps to withdraw support from the coalition’s war in Yemen.
While the UK does not play as prominent a role in supporting the coalition as the US, it still plays a vital role in arming coalition forces, and maintaining coalition equipment and has also failed to withdraw support in the face of repeated blatant violations of IHL. The UK, the US, and France have all been identified by the UN Group of Eminent International and Regional Experts on Yemen as being potentially liable for war crimes in Yemen due to their continued support for coalition forces.
Despite damning evidence of complicity in war crimes in Yemen and potential legal liability for US and UK forces, neither country has taken steps to adequately pressure coalition forces nor have they withdrawn support. As such both states are deliberately ignoring their obligations under international law and putting strategic concerns above respect for IHL.
Legal Analysis of war crimes committed in Yemen
What constitutes a war crime can be found in both international humanitarian law and international law treaties, as well as in international customary law. The Rome Statute of the International Criminal Court (ICC) provides an extensive list of which acts constitute a war crime. Unfortunately, Yemen as well as many of the other States involved in the conflict, are not a party to the Rome Statute. However, The UK is a State party to the Rome Statute whereas the US has signed the treaty but is yet to ratify it. Additionally, many of the provisions prescribed in the Rome Statute reflect customary international law. Important to note is, the fact that the situation in Yemen is classified as a non-international armed conflict (NIAC) as the conflict does not transpire past the borders of Yemen.
Certain serious LOAC violations, such as intentionally or recklessly attacking civilians or civilian objects, including specifically protected objects, constitute war crimes entailing individual responsibility. Coalition airstrikes have been the cause of the vast majority of documented civilian casualties. Among the targets have been residential areas, markets, funerals, weddings, detention facilities, and even medical facilities. Consequently, officials from both governments could be held accountable for war crimes. As Common Article 3 of the Geneva Conventions governs NIACs, it prescribes that persons taking no active part in the hostilities shall not be subjected to violence to life and person. The citizens of Yemen have experienced a devastating impact on their ordinary lives. Through the disregard shown for the right to life by the US and the UK in their support of the coalition forces, they have breached their obligation under Common Article 1 of the Geneva Conventions to “undertake to respect and to ensure respect for the present Convention in all circumstances”.
In regards to State Responsibility, the question arises whether the US and the UK can be held liable by virtue of aiding or assisting the coalition in their violations of the law of armed conflict (LOAC). Article 16 of the Draft Articles states that “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
- That State does so with knowledge of the circumstances of the internationally wrongful act; and
- The act would be internationally wrongful if committed by that State”
This means that the US and UK could be held liable for the actions of the coalition, if they knew of the circumstances of the LOAC violation and if the LOAC violation would be internationally wrongful when committed by the assisting State. This is certainly the case regarding the war in Yemen. As is shown above, the US and UK have knowledge of the circumstances surrounding coalition attacks. The US and UK have been assisting the Saudi-led coalition for years despite knowledge of systematic deficiencies in their targeting practices which could constitute a form of intent. In the hypothetical situation that the actions perpetrated by the coalition were executed by either the UK or the US, these would be in violation of numerous international obligations.
It is known that the Saudi-led coalition has widely used airstrikes as a means of defeating the Houthis. Reports have indicated that the materials used in these airstrikes are largely supplied by the governments of the US and the UK. US and UK officials have full knowledge of the circumstances of the violations committed by the Saudi-led coalition but continue to turn their heads away from their complicity in these internationally wrongful acts.
Sadly the Trump administration announced in 2019 that it would “unsign” the Arms Trade Treaty (ATT) which regulates international trade in conventional arms. This decision undermines US credibility, leadership, and leverage. It shows a complete disregard for the unlawful and disproportionate loss of life which has occurred in this conflict. The UK has expressed its commitment to the ATT. Article 6.3 of the Convention states that a Party shall not trade arms if it has knowledge that the arms would be used in the commission of grave breaches of the Geneva Convention of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes. As explained above, the UK has known for several years that their arms are being used in attacks on civilians or civilian objects. The UK’s actions are in direct contravention of the ATT.
The US and the UK both signed the Universal Declaration of Human Rights (UNDR) which prescribes in Article 3 the right to life, liberty, and security of person. Through the continued support that both countries have provided to the coalition, they are indirectly violating this fundamental protection offered to every person in this world.
The Group of Eminent International and Regional Experts on Yemen has expressed their concerns over the lack of accountability regarding the serious human rights violations classifying it as an “acute accountability gap”. In like manner, the Group of Experts have voiced their unease with third states transferring arms to actors in the conflict. The Group has said how these arms transfers show a blatant disregard for the continuous patterns of violations of international humanitarian law and human rights law. It has also stated that such actions might amount to aiding and assisting internationally wrongful acts in contravention of international law. This is precisely the case as the US and the UK have violated customary international law as well as their treaty obligations under several international legal instruments by aiding and assisting the coalition forces in Yemen.
The US and the UK should be held legally accountable for actions that occurred in Yemen. These actions have met the legal threshold to constitute war crimes. The governments of these two countries have continuously and blatantly ignored fundamental rules in LOAC and indirectly violated various human rights of the people in Yemen. The international community should ensure that the US and UK stop sending weapons that are causing immense civilian suffering. An international investigation should be launched into the accountability of the US and the UK for violations of international law in Yemen.