DOJ Must Investigate Possible War Crimes by American Mercenaries in Yemen

There is no legal “gray area”—Americans cannot assassinate civilians.

A still image from drone footage in Aden reported by Buzzfeed News as showing two former US Navy SEALs were said to be among the mercenaries hired to carry out the attack.
Drone footage in Aden, Yemen, reported by BuzzFeed News as showing two former U.S. Navy SEALs hired to assassinate a Yemeni leader of Al-Islah.

The Justice Department has clear authority to investigate a U.S. company and its band of American mercenaries for alleged killings carried out in Yemen, acts that may amount to murder and war crimes. The allegations of killings by the company and its ex-U.S. service members, in many instances by their own admission, are presented in an investigative report by BuzzFeed’s Aram Roston. Absent some exculpatory information, these activities appear to include attempted and completed murder of civilians in Yemen at the behest of the United Arab Emirates.

The BuzzFeed report mistakenly states that the mercenaries were “operating in a legal and political gray zone” and that “whether Spear’s mercenary operation violates US law is surprisingly unclear.” We are always keen to parse different interpretations of law and explore legal ambiguities. But the law here could not be clearer.

It is largely beside the point whether U.S. or international law prohibits “mercenaries” and what the legal definition of a mercenary is. The question of whether these men were contractors, mercenaries, members of the United Arab Emirates armed forces or anything else is irrelevant to their potential criminal liability under U.S. law for murder and war crimes.

Two U.S. federal criminal statutes apply in this case: the War Crimes Act (18 U.S.C. 2441) and conspiracy to kill, kidnap, maim, or injure in a foreign country (18 U.S.C. 956). Under the War Crimes Act, it is a crime for a U.S. citizen to commit certain violations of international humanitarian law, including murder. The definition of “murder” is extraordinarily clear in this context. The War Crimes Act defines “murder” to include:

“The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.”

The War Crimes Act includes one proviso that excludes from this definition of “murder” instances of “collateral damage” and “death … incident to a lawful attack.” The key facts in the American mercenaries’ case, however, involve the deliberate killing of civilians such as political leaders and clerics. Those targets are not “collateral damage,” and their deaths are not “incident to a lawful attack.”

The second statute, which makes it a crime to conspire to kill a person in a foreign country, is also clear. The most relevant limitation is that the conspiracy must take place “within the jurisdiction of the United States.” The mercenary company is incorporated in Delaware and founded by Abraham Golan, who lives outside of Pittsburgh. According to the BuzzFeed report, he and his colleague, a former U.S. Navy SEAL named Isaac Gilmore, set out to recruit among American special ops veterans. The article states that Golan and Gilmore successfully recruited a dozen men, who gathered at a hotel near Teterboro Airport in New Jersey dressed in an assortment of military fatigues for the occasion, before heading off to the UAE. In short, their conspiracy took place within the jurisdiction of the United States.

The mercenaries appear to have known in some cases that the target lists included political leaders and clerics. “Gilmore said some were members of Al-Islah, some were clerics, and some were out-and-out terrorists — but he conceded he couldn’t be sure,” BuzzFeed reports. He also “acknowledged that some of the targets may have been people who merely fell out of favor with the ruling family,” but said, “‘We’d try to make sure that didn’t happen.’”

One question for the criminal conspiracy statute is whether the men knew in advance of leaving the United States that the mission included these wrongful acts. Golan and Gilmore had by then already met with the UAE contacts to hash out the deal. As for the others in the United States, one indication of their knowledge is that after telling prospective recruits what the job entailed, “some of the best soldiers declined.” What’s more, Golan and Gilmore continued to recruit Americans after the two had already begun to carry out these operations in Yemen. They knew by then even more precisely what they were asking the recruits to do.

There appears to be no record of U.S. government authorization for any of these acts, which precludes one potential defense (acting pursuant to “public authority”). On the contrary, Roston reports, “Companies that provide military services to foreign nations are supposed to be regulated by the State Department, which says it has never granted any company the authority to supply combat troops or mercenaries to another country.”

The BuzzFeed article does not contain any facts alleging that those targeted or killed by the U.S. mercenaries were members of armed groups in armed conflict with the UAE. The report centers on the targeting of members of the Yemeni political party, Al-Islah. Al-Islah emerged following the unification of Yemen in 1990, and its members have held numerous seats in Parliament. One of its members even won the Nobel Peace Prize. And the party, connected to the Muslim Brotherhood (designated a terrorist group by Saudi Arabia and others) has been fighting the Houthis, who the Saudi and UAE-led coalition are also fighting in Yemen, with U.S. support. In December last year, members of Al-Islah met with officials from Saudi Arabia and the UAE in Riyadh. The U.S. ambassador to Yemen met with Al-Islah in July this year. One of the men that Golan says he tried to kill is Anssaf Ali Mayo, the leader of Al-Islah in the Yemeni city of Aden who was reportedly nominated to a post by the president of Yemen last May, according to Roston’s article.

The U.S. mercenaries case appears to be a good fit for the Human Rights and Special Prosecutions Section in the Criminal Division of the Justice Department, headed by Teresa McHenry and her principle deputy, Matthew Stiglitz. Golan and Gilmore’s conspiracy to commit murder appears to have taken place in different states (e.g., New Jersey, Pennsylvania), which may also have jurisdiction under state criminal law.

Imagine if we learned that Saudi Arabia hired Golan and Gilmore’s group to murder Jamal Khashoggi, and then did so several times over with other political dissidents. There would be a broad call for the Justice Department to open an investigation given the gravity of the alleged crimes and the clear responsibility and power of the U.S. government to take action.

More from Just Security:

Dispelling Some Myths About Consular Immunity and the Khashoggi Investigation

Trump Administration Missed Crucial Opportunity This Summer to Rein In Saudi Arabia