Civil complaint by Yemeni nationals to seek injunctive relief and damages

The submitted arguments proceeded on eight counts, with the plaintiffs claiming:  

First, injunctive relief and monetary damages under the ATS against the named leaders of the Saudi Arabian and UAE military forces, on the basis that they knowingly committed war crimes and extrajudicial killings, including against the plaintiffs.  

Second, the Saudi Arabian and UAE officials violated the Torture Victim Protection Act (TVPA) by conducting extrajudicial killings without any judicial proceedings or legal processes.  

Third, injunctive relief and monetary damages under the ATS against the named US defence contractors. The complaint states that the Saudi and UAE officials violated international law by committing war crimes, extrajudicial killings, and torture against the plaintiffs, and that the defence contractors’ supply of weapons to the former significantly allowed for the aiding and abetting of the stated crimes.   

Fourth, the named defence contractors violated the TVPA by intentionally aiding and abetting the Saudi and UAE officials in committing extrajudicial killings and violating international law.  

Fifth, injunctive relief based on the APA against the US Departments of State and Defence on the basis that the decisions to approve arms sales were arbitrary and capricious because there is no evidence to show that the Houthis are an “existing threat to US national security, or that they are premeditating attacks in the US territory”. As such, these decisions are in violation of various US statutes inter alia the Foreign Assistance Act and the Arms Export Control Act.  

Sixth, the defence contractors have been “unjustly enriched” because of the large profits obtained from the sale of weapons to Saudi Arabia and the UAE that were misused.  

Seventh, all defendants failed to exercise due care by failing to supervise, prohibit, control, or regulate their employees and/or agents, and are therefore liable for the injuries caused to the plaintiffs.  

Eighth, the defence contractors as well as the Saudi and UAE military officials intentionally and continually inflicted emotional distress and physical damage, by participating in the venture of the sale of weapons used to commit the aforementioned crimes.  

On 5 October 2023, the US government defendants filed a motion to dismiss.  

The government defendants’ motion to dismiss was filed on the following grounds: 

1. The plaintiffs lack the standing to challenge the authorisation of sales of defence articles and services to Saudi Arabia and the UAE as well as the State’s and Department of Defence’s end-use monitoring programmes. Moreover, the plaintiffs’ complaint cites injuries resulting from the direct actions of Saudi Arabia, UAE, and other members of the Coalition who are not party to the current lawsuit.  
2. The Court does not have the right to pass judgement on the Executive Branch’s decision to authorise arms sales to Saudi Arabia and the UAE, who are two of the US’s strategic partners in the Middle East, and whether to conduct end-use monitoring in these countries. The decision to approve arms sales is “committed to agency discretion by law” and therefore cannot be challenged under the US APA. 
3. Plaintiffs cannot raise nonjusticiable political questions in Court. The defendants argue that the Court cannot substitute its judgement for that of the Executive and Legislative Branches regarding “delicate decisions” pertaining to the sale of defence articles and services as these decisions rest on “complex foreign policy and national security judgements” that are committed to political branches and are not justiciable.  

The plaintiffs responded to the motion on 28 February 2024. They made the following arguments: 

• In response to the argument that the Court is prohibited from reviewing the defendants’ actions, under restrictions granted by the US AECA and the US Foreign Assistance Act (FAA) for Foreign Military Sales (FMS), the Plaintiffs state that the authorisation of FMS to the Coalition are not covered by these restrictions.  

• • Given the overwhelming evidence of civilian casualties and a pattern of gross human rights violations, and the fact that the weapons were not used “solely for internal security [or for legitimate self-defence” or for “world peace and security”, the AECA and FAA include restrictions on FMS to the Coalition.  
  • The AECA requires an end-use monitoring programme, which the defendants have clearly failed to implement, according to a report to the US Government Accountability Office (GAO).  

• The defendants do not have legitimate rationales for precluding a judicial review of their statutory violations from taking place. 

• • Plaintiffs have standing to sue because the plaintiffs have suffered injuries as a result of the Coalition governments’ actions. The alleged injuries are “fairly traceable” to the US government defendants who supplied weapons to the Coalition. A Court order requiring that the government defendants comply with the AECA and FAA would result in the prevention of further injuries to the plaintiffs and others in a similar situation. The Court does have the authority to order the government to comply with these laws and thereby not allow FMS to the Coalition.  
  • Because the government has failed to comply with the statutory requirements of the AECA and FAA, the plaintiffs’ claim under the APA is viable. The government defendants’ decision to approve FMS to the Coalition, in violation of the AECA and FAA, is subject to a judicial review. The government defendants have admitted a failure to conduct end-use monitoring, which is required by the AECA, and is therefore subject to judicial review.  
  • The plaintiffs’ claims do not raise a non-justiciable political question, as they are only seeking an injunction that requires the government defendants to comply with the restrictions of the AECA and FAA on FMS to the Coalition. 

On 4 April 2024, the US government defendants replied to the plaintiffs: 

1. The defendants reiterate that the plaintiffs have not demonstrated standing to challenge the authorisation of FMS or to challenge the end-use monitoring program. Moreover, the plaintiffs lack standing against the US where the injuries were caused by a foreign sovereign. 
2. The plaintiffs’ claims are independently barred under the APA because they implicate foreign policy decisions. The US views FMS as “a fundamental tool of US foreign policy and national security” and thus is unreviewable under the APA. 
3. The plaintiffs’ claims raise non-justiciable political questions which “forecloses judicial second-guessing of the sensitive foreign affairs, national security, and military policy judgements” that the plaintiffs have challenged in their claims.  

On 19 October 2023, the defence contractors also filed motions to dismiss.  

General Dynamics filed the motion on the following grounds: 

1. Government contractors are immune from liability for damages caused as a result of carrying out a valid government directive, under derivative sovereign immunity.  
2. Plaintiffs lack standing as the defence contractors are “doubly removed” from the plaintiffs’ alleged injuries, which result from the Coalition members’ direct actions. The plaintiffs are further unable to prove that their alleged injuries were caused by the defence contractor’s products. 
3. Plaintiffs have not asserted a claim against the defence contractor officials under the ATS. The DC Circuit has held that the ATS cannot be used to bring claims for torts such as war crimes against non-state actors, and does not apply extraterritorially to fundamentally foreign conduct such as the Yemen bombings alleged in the complaint. Lastly, even if ATS were applicable, the Plaintiffs’ complaint lacks the allegation that the defence contractor intended its weapons to be used to facilitate unlawful killings, which is required for a claim of ‘aiding and abetting’.  
4. The plaintiffs’ other common law claims also fail. The complaint does not and cannot allege that the defence contractor “inequitably retained” a benefit under the plaintiffs’ unjust enrichment claim. The claim of negligent supervision fails as it lumps all the defendants together under one allegation. The claim of emotional distress fails as the Plaintiffs do not and cannot allege that the defence contractor intentionally sought to inflict emotional distress. 

Raytheon and Lockheed Martin filed the motion to dismiss on the following grounds: 

1. The plaintiffs’ claims are barred by the political question doctrine, as emphasised in the US government defendants’ motion to dismiss.  
2. The plaintiffs lack standing, based on reasons set forth in the US government defendants’ motion to dismiss.  
3. The plaintiffs’ claims are barred by the ‘act of state doctrine’. The doctrine states that a nation’s courts cannot question the validity of another sovereign state’s decisions. Because the plaintiffs’ alleged injuries are premised on the actions of military leaders from Saudi Arabia and the UAE, and the orders given by a military officer is considered as an official sovereign act, the US Court does not have the right to adjudicate on the matter.  
4. The plaintiffs’ allegations, in particular under the ATS, against the defence contractors fail to state a viable claim. 

The plaintiffs responded to the motion on 28 February 2024. They made the following arguments: 

• The political question doctrine is not applicable to the plaintiffs’ claims, as outlined in the response to the US government defendants’ motion to dismiss.  
• The ‘act of state doctrine’ also has np application to this case as it is only applicable in cases where the central issue of the case involves determining whether an official act by a foreign government was valid or invalid. The defendants have failed to meet the threshold of an ‘official act’. The fact that this doctrine was not raised by the US government defendants themselves weighs into this argument. As this doctrine was invoked by the defendants, the burden of proof lies on them. Other factors that also indicate that the doctrine is inapplicable in this case include: the high level of international consensus against the alleged claims of war crimes, torture, and extrajudicial killings; the Coalition’s actions are in direct violation of US law and policy; and none of the government involved have attempted to defend their actions and claim that they are legal under international law.  
• The plaintiffs have standing, as argued in the response to the US government defendants’ motion to dismiss. In response to General Dynamics’s argument that there are no allegations linking its bombs to the plaintiffs’ injuries, the plaintiffs allege that contractor’s actions aided and abetted the war crimes and extrajudicial killings of the Coalition. Moreover, statistical evidence or probability can be accepted as circumstantial evidence of causation. Each contractor has provided a substantial portion of the 54.2 billion USD in weapons sold to the coalition, sufficient to have aided and abetted war crimes committed by the Coalition.  
• Derivative sovereign immunity is not applicable in this case because the defence contractors are obliged to operate within the scope of their government contracts, which are also subject to the restrictions under AECA and FAA. 
• The plaintiffs’ allegations do state a claim for liability against the defence contractors: 

• • The plaintiffs argue that the claim made under the ATS is not extraterritorial because the conduct relevant to the statute’s focus occurred in the US, i.e. aiding and abetting war crimes, torture, and extrajudicial killings.  
  • The plaintiffs make a claim under the TVPA against the defence contractor defendants for aiding and abetting extrajudicial killings and torture, when they provided the Coalition with weapons with which Yemeni civilians were bombed.  
  • The plaintiffs also argue that they have stated viable common law claims. With regard to the claim of negligent supervision, the plaintiffs at minimum raise factual issues that cannot be resolved in a motion to dismiss. Under the claim of unjust enrichment, while the plaintiffs’ argument is not traditional, they nonetheless were victims of the defendants’ “unlawful acts that were performed for profit”. Lastly, the defendants’ decision to provide weapons to the Coalition, with the knowledge that they would be used to bomb civilians in Yemen and resulted in injury to the plaintiffs caused severe emotional distress 

On 18 April 2024, the defence contractor defendants replied to the plaintiffs: 

• In the reply by Raytheon and Lockheed Martin, they argue that the plaintiffs do not have any claims against the Contractor or CEO defendants, as they are only focusing on forward-looking statutory compliance by the US government rather than on past FMS transactions.  
• Both replies reiterate the political question doctrine because FMS transactions are “a fundamental tool of US foreign policy and national security”. Raytheon and Lockheed Martin further reiterate the act of state doctrine.  
• Both replies state that the plaintiffs cannot establish standing. They argue that the alleged injuries result from independent government actions and do not adequately allege harm from defence articles produced by the defence contractors.  
• Both replies reiterate the claim to sovereign immunity. 
• Both replies state that the plaintiffs do not have claims viable under the ATS. The ATS cannot be applied extraterritorially, and the plaintiffs do not allege domestic conduct that violated the ATS. Plaintiffs have also not adequately alleged “aiding and abetting liability”.  
• In the reply by General Dynamics, they further state that the complaint has failed to state a claim under TVPA, as the alleged injuries were the results of action by a “foreign nation”. 
• Both replies reiterate that the plaintiffs’ “common law claims should be dismissed”.