War Crimes Risk Grows for U.S. Over Saudi Strikes in Yemen

War Crimes Risk Grows for U.S. Over Saudi Strikes in Yemen

WASHINGTON — When President Trump hosts the signing of a diplomatic agreement between Israel and the United Arab Emirates on Tuesday, the White House ceremony will also serve as tacit recognition of Mr. Trump’s embrace of arms sales as a cornerstone of his foreign policy.

The president sweetened the Middle East deal with a secret commitment to sell advanced fighter jets and lethal drones to the Emirates. But White House officials are working to push through the weapons transfer in the face of broader concerns that the president’s arms-sale policies could lead to charges of war crimes against American officials, a New York Times examination has found.

Those concerns — stemming from U.S. support for Saudi Arabia and the Emirates as they have waged a disastrous war in Yemen, using American equipment in attacks that have killed thousands of civilians — will be the subject of congressional hearings on Wednesday. House lawmakers are expected to question top State Department officials over their role in keeping weapons flowing into the conflict and burying recent internal findings on civilian casualties and the legal peril for Americans.

Interviews with more than a dozen current and former U.S. government officials show that the legal fears related to the arms sales run far deeper than previously reported. Over the course of two presidential administrations, those concerns have prompted some officials to consider hiring their own lawyers and discuss the risk of being arrested while vacationing overseas.

Concerns intensified under Mr. Trump as senior officials pursuing his arms-sale agenda clashed with rank-and-file federal workers who review and approve lethal exports.

No episode in recent American history compares to Yemen, legal scholars say, where the United States has provided material support over five years for actions that have caused the continuous killing of civilians.

United Nations investigators last week issued a detailed report on atrocities in Yemen that asked the Security Council to refer actions by all parties to the International Criminal Court for potential war crimes prosecution. Regardless of whether that occurs, prosecutors in a foreign court could charge American officials based on them knowing of the pattern of indiscriminate killing, legal scholars say. Some countries, including Sweden and Germany, assert universal jurisdiction over war crimes.

Spanish judicial officials in 2009 pursued charges related to the torture of prisoners in Guantánamo Bay, Cuba, against six officials in the George W. Bush administration, citing universal jurisdiction, but a higher court dismissed the case. This March, the International Criminal Court ruled that its chief prosecutor could open an investigation into the actions of American forces in the Afghanistan war — the first time the court has authorized a case against the United States. The Trump administration this month imposed sanctions on that prosecutor and another of the court’s lawyers, a sign of how seriously the administration takes the possibility of prosecution.

Yet rather than taking meaningful steps to address the potential legal issues raised by the Yemen war, State Department leaders have gone to great lengths to conceal them, records and interviews show.

But other military aid continued. And by setting the legal opinion aside, the outgoing officials, regardless of whether they were aware of the potential consequences, ensured that it did not have sufficient weight when Mr. Trump took office.

Within months, Mr. Trump delivered the bombs Mr. Obama had halted. Then his administration sought to advance still more sales: $8.1 billion in weapons and equipment in 22 batches, including $3.8 billion in precision-guided bombs and bomb parts made by Raytheon Company, to Saudi Arabia and the United Arab Emirates.

Lawmakers blocked shipments for nearly two years, until Secretary of State Mike Pompeo instructed his subordinates to circumvent Congress. They did so by declaring an emergency over Iran, which prompted the inspector general review. That investigation not only documented the longstanding legal worries but also created a critical report that could itself increase the legal risks, scholars said.

“The findings could be used as evidence in the future against U.S. officials or the U.S. government,” said Ryan Goodman, a New York University law professor who was a Defense Department lawyer in the Obama administration.

With the civilian death toll rising in Yemen, the American role in the war has become a significant political issue.

Joseph R. Biden Jr., the Democratic presidential candidate who was vice president when the conflict began, says he would end U.S. support for the war. By contrast, Mr. Trump is doubling down on arms sales and boasting of revenue from the Saudis.

“I have a very good relationship with them,” Mr. Trump said during an interview in February. “They buy billions and billions and billions of dollars of product from us. They buy tens of billions of dollars of military equipment.”

Under Mr. Obama, top State Department officials could have confronted questions of American complicity in crimes carried out by the Saudi-led coalition in Yemen. Instead, they set the matter aside.

In March 2015, when the Saudi-led coalition first moved to dislodge Houthi rebels who had captured Sana, the Yemeni capital, Mr. Obama agreed to support the effort. His administration signed off on the sale of $1.3 billion in precision-guided bombs and bomb parts to replenish Saudi stockpiles depleted “due to the high operational tempo” in Yemen.

But it quickly became clear that the Saudis and their partners at the time, including the Emiratis, were either using the bombs negligently or deliberately aiming them at civilians. In the first 18 months of fighting, human rights groups linked American bombs to attacks on homes, apartment buildings, factories, warehouses, a cultural center, an agricultural complex, a primary school and other nonmilitary sites.

As concerns over such strikes were intensifying in Washington, a State Department lawyer examined whether American officials who approved arms sales to the Saudis and their partners faced legal risks.

Drawing on the international tribunal case against Charles Taylor, the Liberian warlord, that the United States has cited in Qaeda prosecutions, the lawyer reached an alarming conclusion in a 2016 memo: American officials, including the secretary of state, could be charged with war crimes for their role in arming the Saudi coalition, according to six current and former government officials with knowledge of the legal memo.

Over the spring of 2017, Mr. Trump’s aides and some State Department officials worked to unfreeze the bomb delivery that Mr. Obama had halted.

But officials in the department’s Political-Military Affairs Bureau, which shepherds arms exports, wanted assurances that they could do the president’s bidding without putting themselves in legal jeopardy.

By April 2019, senior State Department political appointees were discussing a rarely invoked tactic to force through $8.1 billion in weapons sales without congressional approval: declaring an emergency over Iran.

At the center of those discussions was Marik String, a young former Senate aide who had joined the State Department in 2017. By January 2019, he had become the acting head of the Political-Military Affairs Bureau and closely oversaw the emergency planning.

Mr. Pompeo announced the emergency on May 24, and the stalled weapons deals moved forward, including the sale of some 120,000 bombs and bomb parts to the Saudis and Emiratis.

But, critically, no updated civilian casualty mitigation strategy or legal analysis — as Mr. Sullivan had ordered — was carried out before the equipment was shipped, according to the inspector general’s report.

Released this August, the report said that although Mr. Pompeo did not violate the law in declaring an emergency, the State Department had failed to take proper measures to reduce civilian casualties and the associated legal risk.

The public section of the final report, however, did not include an unclassified recommendation from an earlier draft: that the department should “update its analysis of legal and policy risks” related to selling bombs to the Saudi coalition, according to text obtained by The Times. The language of that recommendation was edited and moved to the classified annex after pressure from department officials.

The day Mr. Pompeo declared the emergency, he also promoted Mr. String to be the State Department’s top lawyer. From that position, Mr. String tried to pressure Steve A. Linick, the inspector general, to drop his investigation, Mr. Linick, who was fired in May, said in congressional testimony in June. Mr. String’s office also handled the redacting of the report.

Since the emergency declaration, which applied only to the sales last year, the Saudis and their partners have sought to buy more American bombs. About $800 million in orders is now pending, held up in the same congressional review process that had frustrated Mr. Pompeo and the White House.

The Emirates announced last summer it was withdrawing most of its forces from the grinding war in Yemen, but it is fighting in the Libyan war.

From July to early August this year, at least three airstrikes by the Saudi-led coalition in northern Yemen killed civilians, including a total of nearly two dozen children, according to the United Nations, aid workers and Houthi rebels. One strike occurred during a celebration after the birth of a newborn baby, a human rights worker said. The boy, just 1 week old, did not survive.


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