http://www.newsweek.com/could-jared-kushner-be-tried-war-crimes-613472
Discussing the Saudi-led campaign in Yemen, Human Rights Watch’s Kristine Beckerle wroteearlier this month of “the twenty-third time Human Rights Watch had identified remnants of U.S.-supplied weapons at the site of an apparently unlawful coalition attack.”
As uncomfortable as it is for me to write this, Kushner may be stepping directly into the zone where US officials can become liable for aiding and abetting Saudi war crimes.
One question this raises is what mitigation measures, including assurances from the Saudis, might the Trump administration pursue to avoid such risks.
This would not be the first time for US officials to consider such questions, according to news reports. Based on internal government documents received through the Freedom of Information Act, Reuters ’ Warren Strobel and Jonathan Landay wrote in October of last year:
The Obama administration went ahead with a $1.3 billion arms sale to Saudi Arabia last year despite warnings from some officials that the United States could be implicated in war crimes for supporting a Saudi-led air campaign in Yemen that has killed thousands of civilians.
In a piece entitled, “ Will Arms Sales to the Saudis Invite War Crimes Charges? ” I drew a similar conclusion about the legal risks, and I explained a flaw in the Defense Department’s Military Manual that could unintentionally lead to poor advice to senior officials.
Related: Jared Kushner Intervened to Get the Saudis a Cheaper Missile
The Manual would tell them they are not at risk of aiding and abetting war crimes if they do not desire the Saudis to engage in bad acts. But that conclusion is based on an interpretation of a legal opinion from the Justice Department’s Office of Legal Counsel which reached an opposite conclusion.
What’s more, as I explained, other legal positions adopted by the Defense Department support the standard and correct legal view of aiding and abetting war crimes, which does not require US officials to have any desire for the Saudis to violate the laws of war. It would be wholly sufficient for the officials simply to have knowledge of the Saudi’s actions to trigger liability.
And indeed the executive branch has surely built up knowledge of Saudi actions over time, as explained in congressional testimony by Dafna Rand, who served as Deputy Assistant Secretary at the Department of State. Accordingly, earlier support for the Saudi-led operations in Yemen may not have incurred criminal liability, but today’s support might.
In addition, according to Andrew Exum, former Deputy Assistant Secretary of Defense for Middle East policy, the US has appeared to learn over time that the Saudis do not have the capacity to avoid civilian casualties in their air campaign. And indeed the Obama administration suspended a major arms sale to Saudi Arabia in December out of concern for repeated civilian casualties from Saudi airstrikes in Yemen.
I am not alone in my legal assessment that US officials who play a leading role in providing support to the Saudi operations, especially through arms sales, can run into legal problems due to aiding and abetting liability.
Consider a letter written in October by Congressman Ted Lieu to then-Defense Secretary Ash Carter and then-Secretary of State John Kerry. Rep. Ted Lieu, was also a military lawyer who taught the laws of war and is currently a colonel in the US Air Force Reserve. He wrote :
U.S. 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. Under U.S. law, a person can be found guilty for conspiring to commit war crimes.
My former colleague at Harvard Law School, Professor Noah Feldman also wrote:
It isn’t a legal stretch to say that refueling a plane that then bombs civilians is aiding and abetting the bombing. No refueling, no bombing. That’s a concern raised by Representative Ted Lieu, a California Democrat who is an Air Force reserve lawyer and knows what he’s talking about.
Tom Malinowski, the top human rights official at the State Department until January 2017 toldJust Security,
There is a strong policy argument for suspending some sales, as President Obama did, until concerns about these kinds of incidents are resolved, and a possibility of legal jeopardy for U.S. officials if sales continue despite continuing evidence of violations of the laws of war.
“Continued arms sales,” Beckerle said, “increasingly put U.S. officials at legal risk for aiding those crimes.” - RYAN GOODMAN
COULD JARED KUSHNER BE TRIED FOR WAR CRIMES?
Jared Kushner played a leading role in orchestrating a $100 billion arms deal with the Saudi government, according to the New York Times.
At the same time the Saudi air force has allegedly engaged in repeated war crimes in Yemen, including attacks on schools, hospitals and a funeral home, on many of these occasions reportedly with the use of US weaponry.
Discussing the Saudi-led campaign in Yemen, Human Rights Watch’s Kristine Beckerle wroteearlier this month of “the twenty-third time Human Rights Watch had identified remnants of U.S.-supplied weapons at the site of an apparently unlawful coalition attack.”
As uncomfortable as it is for me to write this, Kushner may be stepping directly into the zone where US officials can become liable for aiding and abetting Saudi war crimes.
One question this raises is what mitigation measures, including assurances from the Saudis, might the Trump administration pursue to avoid such risks.
This would not be the first time for US officials to consider such questions, according to news reports. Based on internal government documents received through the Freedom of Information Act, Reuters ’ Warren Strobel and Jonathan Landay wrote in October of last year:
The Obama administration went ahead with a $1.3 billion arms sale to Saudi Arabia last year despite warnings from some officials that the United States could be implicated in war crimes for supporting a Saudi-led air campaign in Yemen that has killed thousands of civilians.
In a piece entitled, “ Will Arms Sales to the Saudis Invite War Crimes Charges? ” I drew a similar conclusion about the legal risks, and I explained a flaw in the Defense Department’s Military Manual that could unintentionally lead to poor advice to senior officials.
Related: Jared Kushner Intervened to Get the Saudis a Cheaper Missile
The Manual would tell them they are not at risk of aiding and abetting war crimes if they do not desire the Saudis to engage in bad acts. But that conclusion is based on an interpretation of a legal opinion from the Justice Department’s Office of Legal Counsel which reached an opposite conclusion.
What’s more, as I explained, other legal positions adopted by the Defense Department support the standard and correct legal view of aiding and abetting war crimes, which does not require US officials to have any desire for the Saudis to violate the laws of war. It would be wholly sufficient for the officials simply to have knowledge of the Saudi’s actions to trigger liability.
And indeed the executive branch has surely built up knowledge of Saudi actions over time, as explained in congressional testimony by Dafna Rand, who served as Deputy Assistant Secretary at the Department of State. Accordingly, earlier support for the Saudi-led operations in Yemen may not have incurred criminal liability, but today’s support might.
In addition, according to Andrew Exum, former Deputy Assistant Secretary of Defense for Middle East policy, the US has appeared to learn over time that the Saudis do not have the capacity to avoid civilian casualties in their air campaign. And indeed the Obama administration suspended a major arms sale to Saudi Arabia in December out of concern for repeated civilian casualties from Saudi airstrikes in Yemen.
I am not alone in my legal assessment that US officials who play a leading role in providing support to the Saudi operations, especially through arms sales, can run into legal problems due to aiding and abetting liability.
Consider a letter written in October by Congressman Ted Lieu to then-Defense Secretary Ash Carter and then-Secretary of State John Kerry. Rep. Ted Lieu, was also a military lawyer who taught the laws of war and is currently a colonel in the US Air Force Reserve. He wrote :
U.S. 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. Under U.S. law, a person can be found guilty for conspiring to commit war crimes.
My former colleague at Harvard Law School, Professor Noah Feldman also wrote:
It isn’t a legal stretch to say that refueling a plane that then bombs civilians is aiding and abetting the bombing. No refueling, no bombing. That’s a concern raised by Representative Ted Lieu, a California Democrat who is an Air Force reserve lawyer and knows what he’s talking about.
Tom Malinowski, the top human rights official at the State Department until January 2017 toldJust Security,
There is a strong policy argument for suspending some sales, as President Obama did, until concerns about these kinds of incidents are resolved, and a possibility of legal jeopardy for U.S. officials if sales continue despite continuing evidence of violations of the laws of war.
“Continued arms sales,” Beckerle said, “increasingly put U.S. officials at legal risk for aiding those crimes.”
What could the Trump administration do to avoid these legal risks? First, the type of weapons systems might matter. These assessments of legal exposure may not apply to the sale of defensive weapons and radar systems which are part of Kushner’s negotiated package.
Second, perhaps in recognition of the legal risks involved, the Trump administration has reportedly sought new assurances from the Saudis to minimize civilian casualties. That is, in principle, the right approach—if pursued in a genuine and effective fashion.
As I initially wrote back in September, the Office of Legal Counsel opinion describes mitigation measures that US officials could include to assure that US support will not contribute to international law violations.
However, as I also wrote last month, Exum’s descriptions of flaws in the Saudi military systems may suggest they are incapable of reforming their targeting practices anytime soon.
Finally, the same New York Times story that described Kushner’s role and “personal touch” in the arms deal, also noted that President Trump’s visit to Saudi Arabia will studiously avoid discussion of human rights concerns:
Mr. Trump is not expected to raise human rights concerns with the Saudis, in keeping with his approach to strongmen in Turkey, Egypt, China and the Philippines. The president, his aides said, does not believe the United States gets results by lecturing other countries.
Related: Trump Is Inadvertently Arming Al Qaeda in Yemen
It would be good to know how the president’s aides could explain then how he does expect to get results. Also we can’t tell whether the Times ’s reference to human rights includes humanitarian concerns raised by US-supported Saudi operations in Yemen.
The president’s failure to raise specific concerns in that respect could put his own officials at legal risk, his son-in-law included.
Ryan Goodman is co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16).
Search Results
Could Jared Kushner Be Tried for War Crimes?
Newsweek-May 22, 2017
Jared Kushner played a leading role in orchestrating a $100 billion arms deal with the Saudi government, according to the New York Times.
Jared Kushner, the Arms Deal, and Alleged Saudi War Crimes
Just Security-May 20, 2017
Jared Kushner played a leading role in orchestrating a $100 billion arms deal with the Saudi government, according to the New York Times.
The (Possibly Illegal) Art of a $100 Billion Saudi Arms Deal
Mother Jones-May 19, 2017
... Jared Kushner has personally intervened in the deal's development. ... As Mother Jones has regularly reported, the Saudi-led war against the Houthi .... "It appears that war crimes are being committed in Yemen, and if the ...
The FBI Turns Its Attention to Jared Kushner
The Atlantic-May 25, 2017
Last week marked a a new high in Jared Kushner's brief political career. President Trump's tour of Saudi Arabia, Israel, and the Vatican, which ... to the FBI probe, he is reportedly not currently the target of any criminal investigation. ... has ruled out the possibility of his new role posing an ethical conflict.
Family First: The Trials of Jared Kushner
TIME-Jun 1, 2017
Naiveté is no crime, but Washington's punishment of perceived ... Ivanka Trump and Jared Kushner attend a state dinner with ... deals, including a recent $110 billion weapons sale to Saudi Arabia; ... His father Charles Kushner was the son of Holocaust survivors, who arrived in America after World War II.
Congratulations To Federal Inmate 06290-177 Jared Kushner
HuffPost-May 19, 2017
The criminal investigation into Russia's links to the Trump campaign ... be illegal because of the Saudis' role in the ongoing conflict in Yemen.
Saudi Arabia, Theresa May, Elena Ferrante: Your Friday Briefing
New York Times-May 18, 2017
Mr. Trump's son-in-law, Jared Kushner, intervened with Lockheed Martin ... On the guest list is Sudan's president, who is accused of war crimes.
OPINION President Trump doesn't engender confidence on the ...
Observer-Reporter-Jun 3, 2017
While the Syrian civil war raged on, and clear evidence proved Russian ... Maybe it goes no further than Trump's son-in-law, Jared Kushner. ... Saudi jails are full of political prisoners whose only crime is advocating for ...
Human rights activists decry US sale of weapons to Saudi Arabia
Los Angeles Times-May 21, 2017
Visiting Riyadh, the Saudi capital, on his first overseas trip, President ... Human Rights Watch accused Trump of rewarding Saudi war crimes. ... political strategist Steve Bannon, jack-of-many-duties Jared Kushner — but for ...
Trump signs largest arms deal in American history with Saudi Arabia
The Week Magazine-May 20, 2017
The United States and Saudi Arabia have sealed an arms deal worth ... by Trump's son-in-law and senior White House adviser Jared Kushner, who ... civil war, where the Saudi-led coalition has been accused of w
