(Editor’s Note: This is the second of a three-part series addressing the challenges associated with proxy warfare, in particular as it plays out in the Middle East and North Africa, and ways to address these issues at the national and international levels. Catch up with part 1 on the risks of military aid. Part 3 explores the U.N.’s role. The series is based on a recent study by an expert working group convened by the American Bar Association Center for Human Rights).

The U.S. Secretary of Defense, in consultation with the Secretary of State and the Director of National Intelligence, was supposed to report to Congress by March 19 on civilian casualties in the armed conflict in Yemen by members of the Saudi-led coalition, which have received weapons and other assistance from the United States. As of May 19, no report has been issued. In fact, the Saudi-led coalition has killed thousands of civilians, in many instances using weapons and other support provided by the United States, in airstrikes that a U.N. Panel of Experts found were “almost certain[ly]” illegal.

U.S. law, including various provisions of the Arms Export Control Act and the Foreign Assistance Act, is designed to prevent American security assistance from contributing to such unlawful activities. But it too often has been ignored by successive administrations, thus the need for a specific reporting requirement on the situation in Yemen. These concerns are all the more pressing now that reports have emerged that the inspector general of the State Department was fired before finishing an investigation into whether the administration improperly relied upon an emergency exception to rush arms sales to Saudi Arabia.

The United States commonly holds up its arms-export control regime as the strongest in the world, and not without reason, as U.S. law does in fact contain a number of safeguards to ensure that defense articles and services are not misused or diverted to unauthorized users. Such measures include risk assessments, red lines to block military aid in certain circumstances, vetting and training of partner forces, requirements for assurances that assistance will not be used unlawfully, and end-use monitoring. Despite this plethora of export controls, the U.S. has continually provided aid to questionable partner and proxy forces, from the contra rebels in Nicaragua in the 1980s to the Saudi coalition today. The problem seems to lie instead in enforcement of these regulations.

A deeper look at this history of regulatory evasion holds a number of lessons for countries that are serious about keeping their weapons out of the hands of despots, terrorists, and criminals. These lessons are only growing in importance as global powers increasingly rely on local partners to help achieve their security objectives. Arms transfers are one component of such partnerships, which may also include logistical and intelligence support. Such foreign support can feed into regional proxy wars — as is the case in Yemen, where the United States has backed the Saudi-led coalition’s campaign on behalf of the internationally recognized government of Yemen, in part to contain the influence of Iran, which supports the opposing Houthi rebel group.

U.S. Arms-Export Controls: Strongest in the World?

Risk Assessment and Red Lines

One of the first safeguards enacted requires the State Department to look at the past record of proposed recipients before providing U.S.-funded security assistance or licenses for direct commercial sales of defense articles and services by contractors. Section 502B of the Foreign Assistance Act requires a risk assessment prior to the provision of security assistance and establishes red lines for when assistance is not allowed. Governments engaged in a consistent pattern of abuses generally are not eligible for assistance, except for a narrow class of law enforcement-related assistance and military training. Such assistance may only be provided if the president certifies to Congress that it is in the interest of national security. Section 502B also mandates an annual report by the State Department on the human rights practices of every country for the purpose of making these determinations.

While the law, enacted in 1976, was originally respected by the administration of President Jimmy Carter, it has been effectively ignored ever since. In 2014, the American Bar Association Center for Human Rights conducted a review of the State Department annual reports and found at least 11 countries that were listed by the State Department as engaging in gross human rights violations — including torture and extrajudicial killing — for the previous three years that nonetheless received more than $10 million in security assistance from the United States.

Vetting, Training, and Assurances

The second set of safeguards includes vetting and training of partners, as well as efforts to obtain assurances that assistance will not be misused. In practice, these safeguards have proven to have limited utility.

In the United States, so-called Leahy laws (named for Senator Patrick Leahy, the original sponsor of the legislation) require vetting of foreign military units before they receive U.S.-funded military training. While Leahy vetting has kept U.S. training from reaching many units that have engaged in gross human rights violations, it does not cover tens of millions of dollars annually of direct commercial sales nor certain assistance provided by U.S. special operations forces.

The United States provides training to foreign forces on the use of weapons and the laws of war, with the goal of preventing the misuse of U.S. defense articles and services. A U.S. government-sponsored 2018 review of such training by the RAND Corporation in sub-Saharan Africa generally found no correlation between U.S. training and improvement in human rights performance. In certain cases, U.S. assistance made state repression worse. Other research, sponsored by DOD’s Minerva Institute, found that U.S. partnerships with countries in a state of armed conflict are often characterized by a disconnect between the interests of the United States and local security forces. Such interest divergence — including the misuse of U.S. assistance to pursue sectarian or partisan agendas — is a problem not readily remedied by capacity building programs.

The U.S. also seeks assurances from foreign partners that they will not misuse assistance. Unfortunately, however, the United States has continued to provide assistance even when it has become clear that the recipient has no intention of honoring those assurances. In the same vein, the United States has cited promises of investigations and training as grounds to continue supporting the Saudi-led coalition, notwithstanding substantial grounds to question the credibility of these commitments.

End-Use Monitoring

The last and perhaps most important safeguard is the obligation pursuant to Section 3 of the Arms Export Control Act to suspend further transfers of defense articles and services sold by the United States where the foreign partner has used U.S.-origin equipment or training against anything other than a legitimate military target.

While the United States does inspect the inventories of foreign militaries to ensure that its munitions have not been diverted to unauthorized end users, in practice it rarely investigates the use of the weapons by the intended recipient to ensure that they have not been misused. More recently, the Pentagon has been granted new authorities—codified in Section 333 of Title 10—to provide security assistance outside the traditional State Department-administered programs. Unlike State Department programs, DOD security cooperation is not subject to a congressionally mandated end-use monitoring and suspension requirement.

In the case of Yemen, the State Department failed to get the requisite presidential certification required to provide assistance to Saudi Arabia, given its past record of abuses, and continued to provide defense articles despite clear evidence of improper use against civilians. The department’s record of non-compliance became so severe that the FY19 National Defense Authorization Act (NDAA) mandated the Secretary of State to prepare a report on the Saudi record in Yemen. In the certification and report submitted in September 2018, Secretary Mike Pompeo acknowledged that the Saudi-led coalition had caused civilian casualties in Yemen and violated end-use agreements, but asserted that such violations were rare.

Yet, the U.N. Panel of Experts on Yemen reported in January 2016 that it found evidence that Saudi proxy forces had carried out airstrikes — including with U.S. munitions — that “almost certain[ly]” did not meet international humanitarian law requirements and that such unlawful strikes were at times “widespread and systematic.” The panel also pointed out that the coalition’s provision of weapons to “resistance forces” without sufficient accountability measures was “contributing to a destabilizing accumulation of arms in Yemen.”

A bipartisan group of members of Congress questioned the veracity of Pompeo’s report and responded by including a provision in the FY20 NDAA that required the development of common standards for the implementation of human rights vetting and the integration of civilian protection into the assessment, monitoring, and evaluation of security cooperation by the DoD and State (Sec. 1206). The ABA House of Delegates adopted a resolution in 2019 calling on the United States to fully implement the human rights safeguards in the Foreign Assistance Act and the Arms Export Control Act. These are not calls for new legislation or policy; they are requests that the executive implement the law as written and intended.

Rather than fully enforcing the law, under successive administrations, the executive branch has adopted the untenable argument that arms sales are only prohibited when it has “actual knowledge at the time of authorization that the transferred arms will be used to commit” a limited set of atrocity crimes, excluding many violations of human rights and international humanitarian law. An expert working group convened by the ABA Center for Human Rights, of which co-author Brittany Benowitz was a member, concluded in its December 2019 report that this narrow interpretation of state responsibility has been rejected by the International Court of Justice in its seminal 1984 decision on the U.S. arming of the contras in Nicaragua. It also conflicts with settled principles of state responsibility and Common Article 1 of the Geneva Conventions prohibiting assistance where it is likely and foreseeable that it will contribute to internationally wrongful acts.

Emergency Exception to Congressional Oversight

A final component of the oversight regime is the requirement that Congress be notified 30 days in advance of certain arms sales. There is, however, a provision – Section 2776(c) of title 22 — that allows the State Department to forgo this requirement in emergencies. This provision has been the subject of controversy, and the State Department’s inspector general had been investigating whether the administration improperly relied on this emergency exception to rush arms sales to Saudi Arabia.

Some members of Congress have questioned whether it was appropriate to invoke the emergency exception when the sales had been pending for some time. Despite the lack of prior notice, Congress passed legislation in June with bipartisan support to prohibit the sales. President Donald Trump subsequently vetoed the resolutions and proceeded with the sale. The lack of consensus between the president and Congress illustrates how, over the long term, the failure to follow the letter of the law erodes support for U.S. security assistance.

How Can Other Governments Do Better?

In short, while the United States has a robust oversight system in place, it is clearly struggling to come to terms with inconvenient facts and find a way to incentivize security partners to comply with their legal obligations. Unfortunately, it is not alone in this struggle.

A recent study of efforts to implement the requirements of the Arms Trade Treaty — which requires risk assessments and prohibits the provision of weapons where they would be used in the commission of “genocide, crimes against humanity, breaches of the Geneva Conventions, attacks directed against civilians, or other war crimes” — found that most States Parties to the treaty have incorporated the requirements in a manner that confers considerable discretion on policymakers charged with determining whether to sell weapons to those with a record of committing abuses. To avoid the same problems we’ve seen in the United States, which signed but did not ratify the treaty, States Parties need to embrace a system of graduated responses when dealing with high-risk partners or credible reports of misuse of their weapons.

Building an Export Control Regime that Respects Human Rights and Promotes National Security

The first step in implementing an effective security assistance policy and arms export control regime is to acknowledge that risk assessments and end-use monitoring don’t just serve to protect human rights, they also advance national security goals. Risk assessments help identify partners that are prone to misuse weapons for their own goals. Countries with poor human rights records, especially those that consistently violate human rights, are more likely to face insurgencies and terrorist threats. They are, therefore, more likely to receive foreign military assistance.

However, without proper controls and incentives in place, providing assistance to such regimes often makes matters worse. Rather than using the assistance to address legitimate grievances and improve governance, these regimes too often redirect the support to partisan or sectarian interests, or simply coup-proofing. Training, vetting, and assurances are generally ineffective in countries that routinely violate human rights, as such abuses are essentially a matter of state policy, not accidents or aberrations.

To address this, states should assess the risk, prior to the provision of assistance, that the support will contribute to civilian casualties or other violations of international humanitarian law. Red lines should be established to ensure compliance with the sponsor’s legal obligations. Where there is a consistent pattern of credible allegations of illegal activity, support should be suspended until an impartial investigation is conducted and those responsible are held to account. States should condition future assistance on recipients’ compliance with investigations by independent third parties.

Such risk assessments can help identify potential recipients who pose dangers to both human rights and national security. For example, Germany has prohibited the export of firearms to Colombia and certain states in Mexico it deems to be high risk for human rights abuses. It has prosecuted two firearms manufacturers who have tried to skirt this ban. In one case, between 2006 and 2009, the manufacturer exported semi-automatic assault rifles that reportedly ended up in the hands of Mexican police who, at the behest of a heroin-trafficking organization, disappeared nearly two dozen college students. In another case, a German manufacturer was indicted in 2018 in Germany for allegedly shipping firearms to an affiliate in the United States to evade a ban on exports to Colombia. In contrast to the German export-control regime, the United States continues to export weapons to both countries, notwithstanding evidence that U.S.-origin defense articles also ended up in the hands of the Mexican police working for the narco-trafficking group.

Risk assessments should inform the formulation of mitigation measures and controls designed to address identified risks. If the assessment indicates the proposed recipient of support poses a significant risk to efforts to prevent civilian casualties or resolve the underlying conflict, the sponsor should assess whether there is a reasonable likelihood that mitigation measures, like training and vetting, will meaningfully address this risk.

Other incentive structures should also be considered. This could include, for example, breaking down assistance into smaller tranches and withholding further deliveries until the recipient demonstrates that it is willing and able to use the assistance in a manner that complies with the law. Attention should be paid to the risks associated with supporting different kinds of regimes. As mentioned previously, emerging democracies are more likely to use assistance for the intended purpose. Militarist regimes are more likely to misuse it.

While many states are loath to condition assistance on human rights compliance, past experience demonstrates that it works. When the Colombian military was accused of human rights abuses in the mid-2000s, the U.S. Congress conditioned aid on compliance with the law. Over time, these conditions contributed to efforts to reduce extrajudicial killings.

Where Regulators Fail, Courts and Legislators Intervene

Should states fail to adhere to arms-export policies that address the above concerns, the trend seems to be that they may be held accountable by their own domestic judiciaries. For example, ongoing litigation in the United Kingdom has addressed the question of whether consistent reporting of serious violations of international humanitarian law in Yemen was sufficient to establish knowledge on the part of the United Kingdom that there was a “clear risk” that weapons it provided would be used to commit serious violations of international humanitarian law and therefore conflict with the European Council’s Common Position on Arms Exports. The Appellate Court ruled that the United Kingdom had an obligation to determine whether there had been a “historic pattern” of violations of humanitarian law in order to determine whether there was a clear risk of future violations.

Back in the United States, a number of bills have been introduced in Congress to patch holes in the export-control regime. While much of this legislation has merit, given the past history of the executive branch simply ignoring the law, the question remains how to ensure enforcement.

One possibility would be an annual hearing in the foreign affairs committees of the House and Senate on global arms exports. By law, the State Department publishes an annual report on arms exports and another on end-use monitoring. While not all arms sales are covered in these reports, they could serve as a useful inflection point. An annual hearing in which the Secretary of State is asked to explain export authorizations in light of the findings in the annual human rights reports and the end-use report may help ensure compliance with the law.

Even in the absence of a hearing, both committees have the authority, pursuant to Section 502B, to request information about the human rights practices of proposed recipients. If the secretary fails to respond promptly to these inquiries, further sales are automatically suspended. Regular use of this authority would also contribute to adherence to the law.

(The opinions expressed here are those of the authors. These statements have not been approved by the ABA House of Delegates or Board of Directors and should not be construed as representing ABA policy.)

IMAGE: Members of several humanitarian associations including Amnesty International lay on the ground, on Feb. 6, 2020 at Cherbourg harbor in France, during an action to prevent the docking of the Bahri Yanbu, a ship flying the flag of Saudi Arabia accused of transporting weapons for the conflict in Yemen. (Photo by LOU BENOIST / AFP) (Photo by LOU BENOIST/AFP via Getty Images)