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Congressional action on arms transfers to Saudis may lead to litigation

The security relationship between the U.S. and Saudi Arabia took an ominous turn for the worse last October when Congress began exercising new oversight powers for “the first time” to track U.S. arms shipments to the Kingdom. These new powers were granted by the Naval Vessel Transfer Act of 2014, which amended the Arms Export Control Act. Previously, the law only required the President notify Congress of pending arms sales to a foreign nation. With passage of this amendment, the president now must notify Congress in advance of pending arms shipmentsas well. For context, the White House notes Saudi Arabia has approximately $97 billion in “open and active” arms purchases from the U.S. From now on, Congress now has the right to delay, or block, the delivery of these procured items. The Senate Foreign Relations Committee recently exercised this new authority at the behest of several human rights organizations that have been lobbying Congress to suspend arms transfers to Riyadh. These groups charge that the Saudi-led military campaign in Yemen has led to “indiscriminate attacks” on civilians. However, according to the 1977 Additional Protocol 1 to the 1949 Geneva Conventions – the international treaty that governs the protection of civilians in armed conflict – incidental civilian loss of life in war in and of itself is not unlawful. Luis Moreno-Ocampo, the former Chief Prosecutor of the International Criminal Court, observed the following in a report on the U.S. invasion of Iraq:

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[1]even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).”

In Iraq, where at least 165,000 civilians are now known to have been killed since the U.S. invasion in 2003, Moreno-Ocampo refused to launch a formal investigation because: “The available information did not indicate intentional attacks on a civilian population.”

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The Hill By Ngana Andrew-Mziray and Benjamin Zogby, Esq.

Full article.