The intentional use of lethal force with explosive weaponry by Saudi border guards has resulted in the killing of “at least hundreds of Ethiopian migrants and asylum seekers who tried to cross the Yemen-Saudi border between March 2022 and June 2023.” This is the finding of a recent report published by Human Rights Watch, outlining actions which may amount to a crime against humanity.[i]

Despite the fact that crimes against humanity have yet to be codified in an international law instrument, the prohibition of crimes against humanity “has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States.”[ii] The 1998 Rome Statute, which established the International Criminal Court, documents the international community’s most updated consensus on the matter of crimes against humanity.[iii] Under the Rome Statute, if the Saudi border guard’s widespread and systematic pattern of shooting people with explosive weaponry and at close ranges has been committed to further a Saudi government policy of killing migrants, such killings would constitute a crime against humanity.[iv]

The detailed accusations outlined in the Human Rights Watch report indicate that a Saudi government policy of executing migrants is certainly plausible, if not probable. The report found, for example, 28 instances in which explosive weaponry such as mortar projectiles had been used by Saudi border guards to attack migrants who had crossed the border from Yemen into Saudi Arabia.[v] Some attacks on migrant camps lasted days.[vi] Interviews with 23 people who attempted to cross the Saudi border as part of larger groups, indicate that 20 of these larger group crossings, involving over 2,900 migrants in total, resulted in 2,000 deaths.[vii] Other interviewees recounted “being apprehended by armed border guards and asked in which limb of their body they would prefer to be shot and then the border guard would shoot this limb.”[viii]

War crimes have most recently been codified under Article 8 of the 1998 Rome Statute. Unlike crimes against humanity, war crimes are derived from dedicated treaties of international law such as the Geneva and Hague Conventions.[ix] Under the Rome Statute, if the Saudi-led coalition’s campaign in Yemen committed prohibited acts on protected persons defined in the Geneva Convention, such as intentional attacks on civilian populations, such actions would constitute war crimes.[x]

The systematic and indiscriminate use of military force against civilians, many of whom are women and children, by Saudi armed forces since Saudi Arabia took a leading role in an international coalition seeking to intervene in the Yemeni Civil War in March of 2015 appear to constitute likely war crimes under the Rome Statute.[xi] Conservative estimates put the civilian death toll at roughly 9,000 as a direct result of the Saudi-led coalition’s air campaign in Yemen since the beginning of the intervention.[xii] More than 2,300 children have been killed or maimed by coalition air strikes.[xiii] In 2022 alone, over 150 airstrikes on civilian targets were carried out by the coalition.[xiv] Air strike targets have included “marketplaces, water treatment facilities, hospitals, a school bus, a wedding and even a funeral.”[xv]

Assistance by the United States military has played a role in both the Saudi border guard’s use of lethal force on Ethiopian migrants as well as lethal airstrikes by the Saudi-led coalition on civilian targets in Yemen. The US Army Security Assistance Command provided Saudi border guards with training between 2015-2023.[xvi] Despite the US training agreement requiring the US military to monitor that Saudi guards receiving training were only allowed to operate defensively, deadly attacks on migrants still routinely occurred.[xvii] Border guards may have even used American weapons in the killings.[xviii] After initially stating that the US government was not aware of allegations of abuses by Saudi border guards until the United Nations made public disclosures in December of 2022, the State Department has since contradicted itself and acknowledged its awareness of a surge in migrant killings by Saudi forces since last summer.[xix] A joint investigation by the Washington Post and the Security Force Monitor at Columbia Law School analyzing the Saudi-led air campaign in Yemen found “a substantial number of the raids were carried out by jets developed, maintained, and sold by U.S. companies, and by pilots that were trained by the U.S. military.”[xx] As Bruce Riedel, A former senior advisor on the Middle East to four former presidents, has noted “If the United States decided today that it was going to cut off supplies, spare parts, munitions, intelligence and everything else to the Royal Saudi Air Force, it would be grounded tomorrow.”[xxi]

Though Saudi Arabia has neither signed nor ratified the Rome Statute, and therefore is not under the jurisdiction of the International Criminal Court, other means may be available to ensure accountability for potential violations of international law.[xxii] An independent oversight body, with the ability to monitor violations of international law, would disincentivize Saudi armed forces to operate with impunity in violating the human rights of migrants and Yemeni civilians. For example, from 2017-2021 the United Nations Human Rights Council-mandated Group of Eminent Experts documented widespread human rights violations by the Saudi-led coalition in the Yemeni Civil War.[xxiii] After the United Nations Security Council let the group’s mandate expire in 2021[xxiv] following a pressure campaign[xxv] from Council member states Saudi Arabia and the United Arab Emirates, civilian deaths in Yemen spiked shortly thereafter, reaching levels not seen since 2018.[xxvi] The United States government, having been complicit in violations of human rights and international humanitarian law against Yemeni civilians and Ethiopian migrants, has a responsibility to curb similar violations in the future, and therefore should seek to reestablish an independent oversight mechanism.