ABA report: US Arms Sales and Military Assistance to Saudi Arabia Prohibited Under US law

The American Bar Association (ABA) recently delivered a white paper authored by Vanderbilt Law professor Michael Newton to the US Senate that assesses the ways in which US arms sales and military assistance to Saudi Arabia violate existing US laws. Because of Saudi Arabia’s gross and consistent violation of the human rights standards outlined in the Foreign Assistance Act and the Arms Export Control Act, the paper recommends that arms sales cease until Saudi Arabia complies with international humanitarian law.

“In light of credible allegations of widespread violations of international humanitarian law by all parties to the conflict resulting in significant civilian casualties over the last two years, concerns have been raised about the legality of further arms sales under U.S. law…In the context of multiple credible reports of recurring and highly questionable strikes…the United States cannot continue to rely on Saudi assurances that it will comply with international law and agreements concerning the use of U.S.-origin equipment.”

Newton enumerates the Saudi military operations in Yemen that have violated international law, as reported by the United Nations Panel of Experts and Human Rights Watch. These operations include several airstrikes, some of which allegedly targeted civilian areas with US-supplied munitions. Saudi Arabia also blockades Yemeni ports essential to delivering humanitarian assistance, consequently contributing to widespread hunger. Indiscriminate attacks on civilians and obstruction of humanitarian aid, neither of which can be excused as necessary for Saudi national security, constitute “‘flagrant denial[s] of the right to life, liberty, or the security of person,’” a violation that the Foreign Assistance Act names, and thus do not comply with US standards for foreign military assistance.

Newton then assesses the legality of US military assistance to Saudi Arabia within the context of the Foreign Assistance Act, the Arms Export Control Act, and the congressional mandates on cluster munitions.

The Foreign Assistance Act prohibits security assistance to countries that grossly and continually violate human rights law and that restrict the transport or delivery of humanitarian assistance. Newton writes that as Saudi Arabia targets civilians and blockades ports vital to disseminating humanitarian aid, the US should cease its arms sales, or else it may “give rise to individual criminal responsibility for US personnel or contractors.” The Arms Control Export Act expands on these prohibitions, only allowing sales that fall within the enumerated purposes of internal security, self-defense, preventing WMD proliferation, maintaining peace and security, and facilitating economic and social development. The Saudi Arabian strikes on civilians do not comply with these purposes, as civilians do not constitute a threat to security warranting such a disproportionate response in the name of self defense. Lastly, the US sale of cluster munitions to Saudi Arabia violates congressional mandates on such sales. Because cluster munitions are an exceptional threat to civilians, spreading over a wide area and leaving behind unexploded remnants, the US Department of Defense and Congress mandate that cluster munitions cannot be used in or near civilian areas and cannot generate more than one percent unexploded ordnance. However, human rights organizations have documented several occasions in which the Saudi government used cluster munitions near civilians or left behind unexploded remnants that killed individuals. Newton recommends that the US halt any sale of cluster munitions and military assistance as long as Saudi Arabia flouts these standards and international humanitarian law.

US military assistance to Saudi Arabia has contributed to an escalation of violence in which military clashes, airstrikes, and blockades have killed thousands of civilians and threatened millions more with famine. Professor Newton explains that not only does Saudi Arabia violate the standards outlined by multiple congressional acts, but also that its indiscriminate violence is counterproductive to the US policies of maintaining national security and countering terrorism. The conditions imposed by Saudi Arabian attacks and blockades are a contributing factor to extremism and instability. Newton encourages Congress to enforce US compliance with the Foreign Assistance Act and the Arms Export Control Act and block arms sales by passing a privileged joint resolution until the pattern of human rights abuses ends.