Congressman Ted Lieu, a former air force lawyer, says members of US armed services could be prosecuted for providing support for Saudi-led coalition

Members of the US armed services could be prosecuted for war crimes for providing midair refueling and other military support for the Saudi-led coalition in Yemen, the Obama administration has been warned.



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Nearly 4,000 Yemeni civilians have been killed since the conflict began in earnest in March 2015, after Houthi rebels seized Sana’a. The war has pitted Saudi Arabia, which supports the government of President Abd-Rabbu Mansour, against Iran, which backs the Houthis.

In a letter to secretary of state John Kerry and defence secretary Ash Carter, US congressman Ted Lieu, a former air force lawyer, said the administration’s insistence that it is not taking part in target selection for coalition sorties – many of which have hit hospitals and schools – does not excuse the US from legal responsibility.

“I find it deeply troubling that the US apparently has no advanced knowledge of what targets will be struck by jets that are refueled by US personnel with US tankers,” Lieu said in his letter. “The US would appear to be violating LOAC [laws of armed conflict] and international standards by engaging in such direct military operations if US personnel are not aware if targets are civilian or military, if the loss of life and property are disproportional, or if the operation is even militarily necessary.”

Lieu, who lectured in the laws of war during his service as an air force judge advocate general (Jag), said: “US personnel are now at legal risk of being investigated and potentially prosecuted for committing war crimes. Under international law, a person can be found guilty of aiding and abetting war crimes.”

And he said the absence of a tribunal should not mean the laws of armed conflict should be ignored.

“That’s an awful dangerous game to play,” Lieu told the Guardian. “That we’re going to violate the laws of war because no one is going to prosecute us.” He said a future administration might take a different view of the US involvement in Yemen.

A legal adviser for the International Committee of the Red Cross, Tristan Ferraro, has argued that refueling represents one of the elements of support that would make the supporting nation a party to a conflict.

On Monday, the US ambassador to the UN, Samantha Power, called for an end to Saudi-led airstrikes after a string of incidents with high civilian casualties. The US has announced it is reviewing its military support for the coalition, it had stopped supplying cluster munitions, and it has urged the Saudi armed forces to take greater precautions to avoid civilian casualties.

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“US security cooperation with Saudi Arabia is not a blank check. Even as we assist Saudi Arabia regarding the defence of their territorial integrity, we have and will continue to express our serious concerns about the conflict in Yemen and how it has been waged,” a senior administration official said in an emailed statement.

“We are aware of congressional concerns regarding the conflict in Yemen and we too remain gravely concerned by its high toll, including civilian casualties and damage to infrastructure caused by all sides of the conflict,” a state department official said.

“We continue to have internal policy discussions to ensure our limited support for the Saudi-led coalition is consistent with our foreign policy goals and values.”

According to documents obtained by the Reuters news agency, the US provided the Saudis with a “no-strike” list of critical civilian infrastructure, and urged the coalition to avoid it in its air campaign. But it has continued to provide refueling and other logical support and argued that Saudi Arabia has a right to defend itself against missile attacks from Houthi rebels inside Yemen.

Reuters revealed that since the Saudi intervention in Yemen there has been concern among state department lawyers about the legal implications for the US.

“It is important to the administration to keep the Saudis onside to ensure they did not screw up even more badly in Yemen as there was concern that if it went really badly it could rebound back on the Saudis,” Jeremy Shapiro, a former state department official and research director at the European Council for Foreign Relations, said. The broader relationship with the Saudis is very important, and compared to the other things the Saudis ask for this is one of the easier ones.”

Shapiro said the argument over Washington’s legal liability is largely an academic one as there is unlikely to be a court with jurisdiction over US actions in the conflict. The recognised Yemeni government supports the Saudi intervention on its behalf, and the US is not a member of the International Criminal Court.