Brian Cox on “GAO Yemen Report Deficient in Applying International Law and U.S. Conventional Arms Transfer Policy”

Today’s guest post is a very timely one by Lawfire® contributor Brian Lee Cox.  In this essay he unpacks a Government Accountability Office (GAO) report released yesterday (“State and DOD Need Better Information on Civilian Impacts of U.S. Military Support to Saudi Arabia and the United Arab Emirates“) that he finds defective in significant ways. 

Specifically, Brian cites as flaws the “failure to independently comprehend or correctly define an ‘unauthorized purpose’ (or ‘use’)” of U.S. military aid, as well as “suggesting a foreign policy centered on ‘civilian harm mitigation’.”

Among his critiques, Brian points out that:

The apparent belief that an investigation by DoD or State involving attacks that cause or contribute to civilian harm, in the absence of a determination related to the knowledge and intent of personnel involved in or otherwise responsible for an attack, could identify an “unauthorized use” of defense support provided by the United States is misguided and ill-informed. In determining whether an incident constitutes an “unauthorized use,” it is the process that led to an attack, not the outcome, that is relevant.

This is in line with a recent post by Geoff Corn and Sean Watts (Effects-Based Enforcement of Targeting Law“) wherein they observe that “[t]argeting law tolerates even extensive civilian harm so long as it is incidental to sufficiently compelling anticipated direct and concrete military advantage.”  Consequently, they caution:

Condemnation and accountability, however, require evidence that meets the law’s standards of proof and persuasion. While it is often instinctive to assume an immediate correlation between civilian casualties and illegality, it is essential to rigorously consider how compliance and violation are credibly and objectively sorted from one another. To that end, the focal point of inquiry related to targeting operations must be the attack judgment, not the attack outcome(Emphasis in original)

I might also add that the report does not define what it means by “civilian” and evinces virtually no appreciation for the fact that civilians who “directly participate in hostilities” are lawfully targetable.  What makes this especially relevant is that the U.S. Department of Defense interpretation of the law in the regard is not necessarily conterminous with nongovernmental organizations or other entities external to DoD.

Moreover, Brian contends that: 

By failing to engage in an independent, critical analysis of representations made by such organizations that are external to the U.S. government, the GAO report is essentially outsourcing governmental policy recommendations to entities whose interests may be (and, by my calculation, indeed are) inconsistent with the diplomatic and national security interests of the United States.

Brian’s adds this key point:

While civilian harm mitigation may well be a point of emphasis for the Saudi-led coalition (when the armed conflict is active) and, by extension, the U.S. government that provides support to the coalition, this is not a strategic endstate for Saudi Arabia, the UAE, or the U.S. government. Rather, prevailing in the armed conflict against the Houthi rebels in Yemen is the primary strategic goal, and complying with relevant use of force law and policy – rather than promoting civilian harm mitigation – is a requirement in achieving that objective. (Emphasis added).

I urge you to read Brian’s full essay:

GAO Yemen Report Deficient in Applying International Law and U.S. Conventional Arms Transfer Policy

by Brian Lee Cox

The U.S. Government Accountability Office released yesterday a seemingly damning report involving the Biden administration’s efforts to track, investigate, and assess the effects of U.S. defense support to the Saudi-led coalition fighting against Houthi rebels in Yemen. As one might expect, the report inspired a flurry of international media coverage, with headlines such asGAO: US didn’t track if its aid was used in Yemen attacks andUS has not fully investigated own role in Yemen rights abuses, watchdog finds.”

Although the participants of the armed conflict in Yemen recently agreed to extend an initial two-month ceasefire by an additional two months, fighting may erupt again at any time now or in the foreseeable future. Likewise, lessons learned and precedents set from U.S. support to the coalition will inform the potential provision of similar support to warring parties in other conflicts even if the ceasefire in Yemen proves to be optimistically durable.

As such, informed and balanced appraisals of the benefits, costs, and implications on broader diplomatic engagement of the provision of U.S. support related to the conflict in Yemen are vitally important not only for potential renewed assistance if the ceasefire breaks down but also for continuing conflicts such as the war in Ukraine and for armed conflicts of the future.

Unfortunately, both the GAO report and the recommendations provided therein represent a defective appraisal of the current administration’s efforts to track, analyze, and evaluate U.S. defense support to the Saudi-led coalition.

I will endeavor to incorporate a more detailed assessment of the recent GAO report on Yemen in ongoing projects that are intended, for example, to suggest a balanced approach to U.S. conventional arms transfer policy in practice and to describe the reasons why strategic objectives of NGOs and the DoD do not align. Indeed, the importance of the GAO report on future DoD and State foreign military defense support may well warrant a standalone, detailed critical analysis of the recommendations and underlying report.

The intent of the current post, however, is to present a number of significant initial impressions of the report. As the title to this post suggests, those initial impressions are thus far, without exception, unfavorable. To explain why, I will begin by engaging first with the four overall recommendations presented in the GAO report and then continue the analysis by highlighting a few of the major deficiencies that render the recommendations unsatisfactory.

As the assessment of these major limitations demonstrates below, the explanations for – and therefore the suitability of – the overall recommendations exhibit deficiencies related to fundamental aspects of international law and U.S. arms transfer policy relevant to the subject matter addressed by the report.

While the media can be expected to seize on any aspect of the GAO report that can be readily sensationalized and thereby marketed to the masses, foundational deficiencies in the report should give serious practitioners, both within and outside of the government, pause before embracing – and certainly before implementing – recommendations presented therein.

Overview and Brief Assessment of GAO Yemen Report Recommendations

The four overall recommendations are available on the GAO webpage that presents fast facts, highlights, recommendations, the full report, and relevant GAO contacts. Likewise, the four recommendations begin here in the full report. Two of the recommendations are directed to the Department of Defense, and two to State.

Recommendation 4 simply suggests that DoS comply with existing obligations established in legislation involving informing Congress on “certification elements” related to defense cooperation and support provided to Saudi Arabia and the UAE. The advisability, and indeed the constitutionality, of these congressional certification requirements are matters best left for another day. In the end, these reporting requirements are fairly innocuous since they have very little effect in practice.

For Recommendations 1 and 2, however, the GAO report misconstrues fundamental aspects of international law and U.S. foreign policy by suggesting DoD and State should develop determinations related to continued defense support based on a flawed articulation of what may constitute “unauthorized purposes” by end users in the Saudi and Emirati governments.

Similarly, Recommendation 3 is centered on the vague and ambiguous concept of civilian harm mitigation that is more closely aligned with the limited strategic interests of NGOs rather than those of the U.S. government.

The deficiencies in the underlying commentary presented throughout the report in support of the four main recommendations render Recommendations 1, 2, and 3 ill-advised. To explain why, each main deficiency – failure to independently comprehend or correctly define an “unauthorized purpose” (or “use”) and suggesting a foreign policy centered on “civilian harm mitigation” – are addressed below in turn.

Plenary Deficiency #1: Failure to Comprehend or Define “Unauthorized Use”

Concern related to the potential “unauthorized use” of U.S. defense support – including arms transfers, training, providing maintenance and logistical services, and so on – by Saudi Arabia and the UAE in the armed conflict in Yemen is a central theme that is emphasized throughout the GAO report. However, the report never does present or describe a recognizable basis for determining that a use of defense support constitutes an “unauthorized purpose.”

For example, one central finding of the report claims, “DOD and State have not fully determined the extent to which U.S. military support provided to Saudi Arabia and UAE has contributed to or reduced civilian harm in Yemen, even though the U.S. government has had indications that U.S.-origin defense articles may have been used in strikes that caused civilian harm.” (emphasis added) The report expands upon this finding in the next sentence by asserting, “Investigations into unauthorized use could provide agencies with information on the extent to which U.S.-origin equipment contributed to civilian harm in Yemen.” (emphasis added)

The emphasis of the report on the principle of civilian harm mitigation is examined in further detail in the next section. For now, the assertion that causing or contributing to civilian harm constitutes a potential “unauthorized use” that can be identified by investigations DoD and State apparently currently do not perform is itself an issue worthy of critical analysis.

In short, there is no binding provision of international law or domestic policy pursuant to which an “unauthorized use” of defense support can be attributed to causing civilian harm alone.

Pursuant to the U.S. understanding and application of relevant law of armed conflict rules such as distinction and proportionality, compliance with international law requires that any person “responsible for planning, authorizing, or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”

Doing so requires an assessment of the intent and knowledge of personnel responsible for an attack, even if the incident causes or contributes to civilian harm.

The same is true regarding compliance with relevant requirements established in current executive policy related to the transfer of conventional arms, which prohibits a transfer if the United States has “actual knowledge” that the armaments would be used to commit “genocide, crimes against humanity…attacks intentionally directed against civilian objects or civilians who are legally protected from attack” or other violations of the War Crimes Act. (emphasis added)

The apparent belief that an investigation by DoD or State involving attacks that cause or contribute to civilian harm, in the absence of a determination related to the knowledge and intent of personnel involved in or otherwise responsible for an attack, could identify an “unauthorized use” of defense support provided by the United States is misguided and ill-informed. In determining whether an incident constitutes an “unauthorized use,” it is the process that led to an attack, not the outcome, that is relevant.

As such, the analysis and resulting recommendations related to investigating and identifying “unauthorized purposes” of U.S. defense support are inconsistent with actual existing international law and relevant U.S. policy.

Plenary Deficiency #2: Emphasis on “Civilian Harm Mitigation” to Establish Foreign Policy

A second, related fundamental flaw of the GAO report is the recommendation (#3) and supporting analysis that would place the vague notion of civilian harm mitigation (CHM) at the center of DoD – and by extension in this context, U.S. – foreign policy.

This deficiency is part of a broader issue that is in urgent need of emphasis and clarity both within and outside of the Department of Defense. To that end, the issue of divergent interests associated with the emerging doctrine of CHM is one focal point of my ongoing research.

In the current context, it is sufficient to point out that the interests of NGOs that actively engage with U.S. defense activities abroad and the interests of the DoD (and, more broadly, the U.S. government) do not align on the topic of civilian harm mitigation.

That is, strategic objectives of relevant NGOs in general involve pursing accountability for harm caused in armed conflict, making amends for reportedly “thousands of instances of civilian harm [that] have likely gone unacknowledged” regardless of whether the harm was caused by an attack that complied with LOAC obligations, and otherwise restricting the use of force in armed conflict in general.

Although Defense Secretary Lloyd Austin has directed the development of a new policy related to civilian harm mitigation (my sources indicate that the policy is currently expected to be published before the end of the month), the strategic interests of the DoD related to CHM are not the same as those that NGO activists generally have in mind on the topic. While NGOs tend to advocate for “reparations to families of civilians the U.S. has acknowledged killing or injuring” in armed conflict without regard to LOAC compliance, for example, the DoD perspective correctly notes that “indemnification is not required for injuries or damage incidental to the lawful use of armed force.”

While NGO advocates tend to call for a “commitment to reviewing [purportedly] erroneously dismissed cases” of civilian harm, accountability from the DoD perspective – which is centered on the process that led to an attack rather than on the outcome – is that there is no need “to re-litigate every single incident of civilian casualties” unless there is an indication “that an individual deliberately caused causalities and violated the laws of war.”

This divergence in priorities and perspectives is to be expected since the strategic vision of NGOs active in the field of CHM typically involves some formulation of limiting the effects of armed conflict.

The general mission of the DoD, in contrast, is to “provide the military forces needed to deter war and ensure our nation’s security.” For subordinate commands, this mission typically translates into some version of conducting “a full range of multi-domain operations in coordination with Allies and partners” while being prepared “to fight alongside Allies and partners to prevail in any conflict.”

This strategic vision, of course, is not shared by NGOs focused on limiting the effects of armed conflict.

It remains to be seen whether the forthcoming DoD policy on civilian harm mitigation fully acknowledges and accounts for this divergence in perspective. What is clear for now, however, is that the GAO Yemen report most certainly does not.

Instead, the commentary presented in the report repeatedly criticizes current administration practice involved in assessing whether U.S. defense support to Saudi Arabia and the UAE adequately contributes to or supports a reduction in civilian harm.

Along the way, the GAO report makes note that officials in both DoD and State indicated a “use that causes civilian harm would not necessarily constitute “‘misuse.’” (emphasis added) This is an accurate observation, based on the first plenary deficiency noted above related to an “unauthorized purpose” (or “use”) pursuant to international law or U.S. policy.

It is not the case, however, that existing DoD and State policies and practices are defective because they currently do not provide for a finding that causing civilian harm may constitute a misuse of U.S. defense assistance.

Rather than developing a balanced articulation related to the various strategic interests involved in the nebulous concept of civilian harm mitigation, the report instead adopts perspectives advanced by external elements such as the Center for Naval Analyses and the Center for Civilians in Conflict (CIVIC) with no critical analysis regarding whether these perspectives align with the interests of the U.S. government.

Likewise, the GAO report extends broad analytical deference to various findings of the Group of Eminent International and Regional Experts on Yemen commissioned by the UN Human Rights Council – with no independent assessment related to the reliability and validity of the claims presented by the group.

By failing to engage in an independent, critical analysis of representations made by such organizations that are external to the U.S. government, the GAO report is essentially outsourcing governmental policy recommendations to entities whose interests may be (and, by my calculation, indeed are) inconsistent with the diplomatic and national security interests of the United States.

While civilian harm mitigation may well be a point of emphasis for the Saudi-led coalition (when the armed conflict is active) and, by extension, the U.S. government that provides support to the coalition, this is not a strategic endstate for Saudi Arabia, the UAE, or the U.S. government. Rather, prevailing in the armed conflict against the Houthi rebels in Yemen is the primary strategic goal, and complying with relevant use of force law and policy – rather than promoting civilian harm mitigation – is a requirement in achieving that objective.

The GAO report and the ensuing recommendation are apparently oblivious to the distinction. By adopting the ambiguous concept of civilian harm mitigation as a strategic endstate rather than a measure of performance related to effective targeting operations, the GAO implements a CHM perspective that aligns more closely with strategic objectives of NGO activists rather than those of the U.S. government.

This constitutes a fundamental flaw given that the recommendations are purportedly directed at U.S. government – rather than NGO – activities and interests abroad.

Conclusion

Overall, this recent GAO report assessing current practice within DoD and DoS related to the provision of security assistance to Saudi Arabia and the UAE in the context of the armed conflict in Yemen leaves much to be desired.

Among the most significant deficiencies that emerge from an initial review of the report are assertions throughout the commentary that “unauthorized use” of defense support can be established by acts that cause civilian harm as well as the related emphasis on centering executive policy on an assessment of whether defense support adequately contributes to the ill-defined notion of civilian harm mitigation.

The recommendations that are derived from this commentary are equally deficient. Other limitations inherent in the report and overall recommendations can be addressed in a future analysis, either specifically involving the GAO report or other related topics in general. For now, the initial impressions presented herein suggest that the report should be approached with caution and a considerable degree of skepticism.

Although the final page of the report notes that the mission of the GAO is to “help improve the performance and accountability of the federal government for the American people,” the plenary deficiencies addressed in the above analysis suggest that this Yemen report does little to contribute to that mission.

About the author: 

Brian L. Cox is is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School and a visiting scholar at Queen’s Law in Ontario. Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.

Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, Joint Firepower Certification, and Special Victim Unit Investigator Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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