NDAA Section 1290 conditions further United States refueling assistance to the Saudi-led coalition’s air raids in Yemen on whether the Secretary of State can certify to Congress that Saudi Arabia and the United Arab Emirates are undertaking specific steps to support a peace process and reduce civilian harm in Yemen. Drawing from the language of Section 1290, we briefly analyze the extent to which Saudi Arabia and the UAE have undertaken these measures and provide a recommendation for further congressional action.

Section 1290(c) INITIAL CERTIFICATION.--Not later than 30 days after the date of the enactment of this act, the Secretary of State shall submit to the appropriate committees of Congress a certification indicating whether-- (1) the Government of Saudi Arabia and the Government of the United Arab Emirates are undertaking--

(A) an urgent and good faith effort to support diplomatic efforts to end the civil war in Yemen;

Saudi Arabia and the UAE have supported some diplomatic efforts to end the civil war in Yemen, though the urgency and good faith of this support are questionable. Saudi Arabia and the UAE have met with UN Special Envoy for Yemen Martin Griffiths on multiple occasions, and the UAE de-escalated a potentially catastrophic assault on the port city of Hudaydah as Griffiths pursued a deal to avert the offensive. They have also made statements in support of Griffiths’s efforts to organize consultations among Yemeni parties in Geneva. However, the coalition launched the Hudaydah offensive in June despite public cautioning from Griffiths that an attack is one conflict development which “would, in a single stroke, take peace off the table.” Furthermore, both governments provide material support to anti-Houthi militias and political figures outside the control of the Yemeni government, undermining that government’s unity and authority in advance of peace negotiations.

(B) appropriate measures to alleviate the humanitarian crisis in Yemen by increasing access for Yemenis to food, fuel, medicine, and medical evacuation, including through the appropriate use of Yemen’s Red Sea ports, including the port of Hudaydah, the airport in Sana’a, and external border crossings with Saudi Arabia;

Saudi Arabia and the UAE are not undertaking appropriate measures to alleviate the humanitarian crisis. Saudi-led coalition naval vessels continue to restrict commercial vessel access to Yemen’s Red Sea ports, including the ports of Hudaydah and Saleef, via secondary inspections and arbitrary berthing delays (see section on UNVIM below). Both the coalition’s total blockade of these ports late last year, and the ongoing, UAE-led military campaign on Yemen’s west coast, have depressed traffic to these ports. As of August 2018, UN-cleared food imports stood at 281,462 metric tons (MT), nearly 70,000 MT below Yemen’s monthly national requirement; fuel imports stood at 146,612 MT, nearly 400,000 MT below the monthly requirement. The coalition continues to prohibit containerized cargo from entering Hudaydah and Saleef, allowing only smaller and less efficient break-bulk cargo to enter the ports. The Famine Early Warning Systems Network (FEWS Net) reports that cargo entry into coalition-controlled Mokha, the third-largest Red Sea port, remains “limited,” and Yemeni sources point to the UAE’s militarization of this port as responsible for severely restricting commercial access there. San’a airport remains closed to commercial flights and medical evacuations, although the coalition has allowed some humanitarian cargo to enter the airport, including a series of World Health Organization planes that offloaded 500 tons of medicines and medical supplies in August. Finally, the coalition has even imposed harsh import restrictions and arbitrary delays on shipping into coalition-controlled Aden port, rerouting containerized cargo through Jeddah for secondary inspection and maintaining an unpublished list of banned items that, per reporting from humanitarians, extends to commodities such as cars, solar panels, and batteries.

(C) demonstrable actions to reduce the risk of harm to civilians and civilian infrastructure resulting from military operations of the Government of Saudi Arabia and the Government of the United Arab Emirates in Yemen, including by -- (i) complying with applicable agreements and laws regulating defense articles purchased or transferred from the United States; and (ii) taking appropriate steps to avoid disproportionate harm to civilians and civilian infrastructure;

Saudi Arabia and the UAE are not taking demonstrable actions to reduce the risk of harm to civilians and civilian infrastructure resulting from military operations. On August 9, a coalition aircraft targeted and struck a bus carrying mostly children in Dahyan, a town in the Sa’dah governorate. The strike killed 51 individuals, over 40 of whom were children. The coalition’s investigation of the strike, conducted by its Joint Incidents Assessment Team (JIAT), did not seem to find the coalition at fault in selecting the target, but only in choosing to strike it as it traveled through a crowded market. On August 23, a coalition aircraft struck a group of civilians in Durayhmi, the district just south of Hudaydah city, killing 30 as they attempted to flee combat violence in the area. The Yemen Data Project reported that of the 277 air raids it tracked in July, 43 percent targeted non-military sites. As made clear by the high-profile strikes on civilians in Dahyan and Durayhmi, and by the extent to which the coalition continues to target non-military sites, the coalition is not taking appropriate steps to avoid disproportionate harm to civilians and civilian infrastructure. Additionally, CNN reported that the munition used in the August 9 strike was manufactured in the United States, again raising questions about US complicity in coalition IHL violations.

And (2) in the case of Saudi Arabia, the Government of Saudi Arabia is undertaking appropriate actions to reduce any unnecessary delays to shipments associated with secondary inspection and clearance processes other than UNVIM.

Saudi Arabia is undertaking limited and insufficient actions to reduce any unnecessary delays to shipments associated with secondary inspection and clearance processes other than the UN Verification and Inspection Mechanism (UNVIM). The coalition body overseeing secondary clearances and inspections that duplicate many of the UNVIM’s own processes, the Evacuation and Humanitarian Operations Cell (EHOC), has steadily reduced the average time it takes to clear a vessel already cleared by UNVIM, from 77 hours in April 2018 to 15 hours in July 2018. This extra inspection and clearance time, however, still unnecessarily delays commercial traffic into Yemen’s Red Sea ports, and duplicative EHOC measures persist despite UNVIM adopting inspection processes worked out directly with the Saudi government in April 2018. Additionally, as noted by UNVIM, the coalition ban on the entrance of containerized cargo into Yemen’s Red Sea ports also continues, needlessly restricting the volume of commercial goods entering these ports, and traffic to these ports has lessened significantly since the full blockade of November 2017.

Conclusion and recommendation

The Secretary of State cannot plausibly certify that Saudi Arabia and the UAE are taking appropriate measures to alleviate the humanitarian crisis, reduce harm to civilians, or respect UNVIM, and can only tenuously certify that the coalition is supporting some diplomatic efforts to end the civil war.

If Secretary Pompeo certifies Saudi and UAE compliance with these requirements, or if he otherwise waives the certification on national security grounds, the Yemen Peace Project urges members of Congress to introduce standalone legislation withholding funds for US refueling of coalition aircraft.