US officials are at growing risk of being prosecuted for war crimes over the sale of arms to Saudi Arabia and the UAE, a New York Times investigation has revealed as President Donald Trump clears the path for further sale of advanced weapons to the Gulf states following Abu Dhabi's normalisation of ties with Israel.
Interviews with more than a dozen current and former US government officials show that the legal fears related to the arms sales, over the course of two presidential administrations, run far deeper than previously reported. Those concerns are said to have prompted a number of officials to consider hiring their own lawyers to discuss the risk of being arrested while vacationing overseas.
The main concerns stem from the use of American weapons by Saudi Arabia and the UAE to target civilians in the war in Yemen. The five-year campaign against the Houthis has been one of the bloodiest in the region's history. United Nations investigators last week issued a detailed report on atrocities in Yemen and asked the Security Council to refer actions by all parties to the International Criminal Court (ICC) for potential war crimes prosecution.
American legal scholars have expressed the opinion that regardless of whether the UN is able to mount a legal investigation led by the ICC, a foreign court could charge American officials based on the pattern of indiscriminate killing caused by the Saudi and UAE led bombing campaign. Some countries, including Sweden and Germany, assert universal jurisdiction (UJ) over war crimes.
These fears were raised in 2016, when a State Department lawyer determined that American officials could plausibly be charged with war crimes. The department's top lawyers, however, decided not to send the analysis to the secretary of state's office, though it was shared with some agency officials.
"If I were in the State Department, I would be freaking out about my potential for liability," Oona Hathaway, a Yale Law School professor and a Defence Department lawyer in the Obama administration is reported saying in the Times. "I think anyone who's involved in this program should get themselves a lawyer. It's very dangerous territory the U.S. is in, continuing to provide support given the number of civilians who have been killed."
American arms sale to its Gulf allies has been a major bone of contention in Congress. Last year, lawmakers moved to challenge Trump over weapons sale to the Saudis. Trump, however, circumvented Congress by declaring a national emergency on the grounds of a security threat from Iran. A subsequent investigation not only documented the longstanding legal worries but is also said to have created a critical report that could itself increase the legal risks, according to scholars cited in the Times.
"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 Defence Department lawyer in the Obama administration.
Serious questions are now being asked over Trump's pledge to sell advanced weapons to the UAE under its normalisation agreement with Israel. With no assurance that the Gulf country will not use F-35 fighter jets against civilians, US officials risk being indicted for war crimes.