The United States has provided billions of dollars in arms sales to countries participating in the Saudi-led coalition that is fighting a war in Yemen against the Houthi-Saleh alliance and contributing to one of the world’s worst humanitarian crises. As explained in a previous article in this series, efforts to halt U.S. assistance to the Saudi-led coalition, led by members of Congress concerned by civilian casualties of coalition airstrikes, failed. Most recently, sales were temporarily halted when Sen. Bob Corker (R-Tenn.), chairman of the Senate Foreign Relations Committee, placed a hold on sales of lethal military equipment to all members of the Gulf Cooperation Council (including Saudi Arabia), in an effort to encourage them to settle internal disputes unrelated to the conflict in Yemen. But Corker lifted that hold on February 8, opening the door to new sales once more.

In June 2017, the United States announced a $750 million dollar training program for the Saudi military forces, paid for by the Saudis, that would include such “subjects as civilian casualty avoidance, the law of armed conflict, human rights command and control.” The United States also announced that it had received assurances from the Saudi government that it would endeavor to reduce civilian casualties. Nonetheless, there is little evidence that the pace of civilian casualties slowed as a result. As noted in the first article in this series, the United Nations Panel of Experts on Yemen documented eight separate strikes on civilians in the second half of 2017.

In May 2017, in the midst of debates over congressional proposals to halt arms sales, the American Bar Association (ABA) Center for Human Rights sent a report by Vanderbilt Law Professor Michael A. Newton to the Senate arguing that “further sales under both the Arms Export Control Act [AECA] and the Foreign Assistance Act [FAA] 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.” The report recommended that Congress bring a joint resolution under both the AECA and the FAA to halt the proposed restart of arms. The report’s conclusions appear to be well founded.

The Arms Export Control Act

The AECA establishes presidential reporting requirements to Congress for major military sales and issuing of export licenses. The AECA also establishes restrictions on how military assistance may be used. It may only be used (1) “for internal security”; (2) “for legitimate self-defense”; (3) “for preventing or hindering the proliferation of weapons of mass destruction and of the means of delivering such weapons”; (4) “to permit the recipient country to participate in regional or collective arrangements,” including the United Nations; and (5) “for the purpose of enabling foreign military forces in less developed friendly countries to construct public works and to engage in other activities helpful to the economic and social development of such friendly countries.” Credits, guarantees, and sales must be terminated if the President or Congress determines that the recipient country is using the military assistance for any purpose other than those listed in the AECA. That assistance may only restart when the President determines that the country’s violation has ceased and the country has given satisfactory assurances to the President that the violation will not happen again.

Of the authorized purposes in the AECA, the most plausible for which the Saudis are using weapons purchased from the United States is “legitimate self-defense.” President Hadi of Yemen requested the Saudi-led coalition’s assistance for the purpose of collective self-defense under Article 51 of the UN Charter. The mere request, however, does not end the inquiry. The question is whether the Saudi-led coalition has, in fact, acted consistent with Article 51 in the collective self-defense of Yemen.

Yemen has suffered “armed attack” by organized non-state actor groups and therefore has a right of self-defense against them. But a response in self-defense to an armed attack must be both “necessary” and “proportional” to the threat posed. The principle of necessity is satisfied when the act undertaken seeks solely to halt or repel the armed attack, and when there are no peaceful alternatives available, such as diplomatic efforts. To determine whether an act of self-defense is proportional, lawyers “consider the scale of the defensive force in relation to the act against which it is directed.” The type of force used to in self-defense does not need to be the same type of force used in the attack, but it must be “judged according to the nature of the threat being addressed.”

The May 2017 ABA Center for Human Rights report concluded that the Saudi-led coalition’s use of force in Yemen was not legitimate self-defense because it violated both necessity and proportionality. On necessity, it concluded that the “widespread indiscriminate or intentional targeting of civilians serves no lawful military purpose” and therefore “cannot by definition satisfy the principle of necessity.” On proportionality, it explained that “systematic attacks on non-military targets do not deter legitimate threats and therefore do not meet the requirements of proportionality.”

There is, admittedly, some danger here of importing the jus in bello principle of proportionality—which requires that there not be excessive civilian collateral damage in relation to the concrete and direct military advantage anticipated—into the analysis of jus ad bellum proportionality—which requires that the scale of defensive force be proportional to the threat posed. Yet if, as reports suggest, there have been significant numbers of attacks on non-military targets, the ABA report was correct to conclude that these attacks are neither necessary to respond to the threat posed to the recognized government of Yemen by the Houthis or Houthi-Saleh alliance, nor proportional to it. As a consequence, it appears the ABA report was likely correct that the sales violate the AECA.

The Foreign Assistance Act

The ABA report likewise makes a strong case that the sale of arms to Saudi Arabia violates the FAA. The FAA prohibits security assistance “to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” “Security assistance” includes “sales of defense articles or services, extensions of credits (including participations in credits), and guaranties of loans under the Arms Export Control Act.” Even putting to one side the actions of Saudi Arabia in Yemen, Saudi Arabia itself has a poor human rights record.

The U.S. State Department’s Report on Human Rights in Saudi Arabia in 2016, prepared precisely to assist in determinations of eligibility for assistance under the FAA, found large numbers of human rights abuses. Most abuses found in the report were not connected to Saudi Arabia’s actions in Yemen, but the ABA report rightly notes that the FAA does not require a causal link between the violations of international human rights and provision of military assistance.

The challenge levied by the ABA report to the sale of weapons to the Saudi-led coalition under the FAA is substantial enough to require a considered response. Thus far, the U.S. government has provided none.

Presidential Policy Directive 27

The U.S. government’s continued sale of weapons to Saudi Arabia in the face of the ABA report and the UN Panel of Experts’ repeated findings of international humanitarian law violations is all the more striking given that the transfer of arms to the Saudi-led coalition appears to not only violate the AECA and FAA but also run counter to Presidential Policy Directive 27 on conventional arms transfers. That Directive was put in place in 2014 precisely to ensure that arms transfer decisions would meet the requirements of the AECA, FAA, and other applicable laws and regulations. It states that one goal of U.S. conventional arms transfer policy is “[e]nsuring that arms transfers do not contribute to human rights violations or violations of international humanitarian law.”

The Conventional Arms Transfer Policy requires, moreover, that proposed arms transfers take into account criteria including, “[t]he human rights, democratization, counterterrorism, counterproliferation, and nonproliferation record of the recipient, and the potential for misuse of the export in question,” as well as “[t]he likelihood that the recipient would use the arms to commit human rights abuses or serious violations of international humanitarian law, retransfer the arms to those who would commit human rights abuses or serious violations of international humanitarian law, or identify the United States with human rights abuses or serious violations of international humanitarian law.”

The United States’ continued transfer of billions of dollars of weapons to Saudi Arabia for use in its military operations in Yemen—operations which the United Nations Expert Panel of Experts has found have involved repeated violations of international humanitarian law—would appear to run directly counter to this policy guidance, as well as the AECA and FAA.

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