Toward A More Responsible US Arms Trade Policy: Recommendations for the Biden-Harris Administration

In recent years, U.S. arms sold and transferred abroad have been used to commit gross violations of human rights and international humanitarian law (IHL) and fueled widespread civilian harm, corruption, and humanitarian crises in countries from Yemen and Egypt to Nigeria and the Philippines. The Trump administration has made U.S. complicity in such harm the norm, regularly promoting arms transfers to corrupt, rights-abusing, authoritarian governments in a militarized approach to foreign policy that has undermined human rights and that few Americans believe makes the country any safer.

The Biden-Harris administration has an opportunity to reject this approach and strengthen respect for human rights in U.S. arms transfer policy. While we may have differing priorities and views on the efficacy of weapons sales as a tool of U.S. foreign policy, we all agree that the Biden-Harris administration should enact the following urgent reforms to ensure that U.S. arms do not continue to fuel human rights violations, civilian harm, corruption, and criminal violence.

Immediately pause and review all notified arms transfers ahead of delivery. The Biden-Harris administration should halt all pending arms sale contracts and deliveries in order to conduct a thorough review of the risks of these transfers. The review should be designed to ensure compliance with existing law prohibiting the export of defense articles and services to countries that have engaged in a consistent pattern of gross violations of human rights or violations of end-use agreements, unless exceptional circumstances exist and Congress has been notified, as well as to comprehensively consider risks of human rights abuses, civilian harm, corruption, and misalignment with U.S. foreign policy objectives.

In particular, the State Department will need to act on Day 1 to stop the pending sales of precision-guided munitions and bombs to Saudi Arabia, notified in late December 2020, and the controversial sales of F-35s, armed drones, and bombs totaling $23 billion to the United Arab Emirates, in which contracts may not yet have been signed. The administration should also suspend deliveries even where contracts or licenses have been issued, such as the $8.1 billion in “emergency” arms sales to Saudi Arabia and the United Arab Emirates announced in May 2019. Any military support to these governments, including arms transfers, must be conditional upon an end to their military activities in Yemen, accountability for their violations of U.S. and international laws, and their support for a durable peace agreement there. 

Recommit to the Arms Trade Treaty. In April 2019, President Donald Trump effectively “unsigned” the Arms Trade Treaty (ATT), walking away from the first legally binding global treaty to regulate the international trade in conventional arms. President Joe Biden should recommit to the ATT by immediately rescinding the Trump administration’s letter to the United Nations stating that the United States did not intend to ratify nor fulfill the obligations of the Treaty, and should pursue swift ratification of the treaty, as indicated in the Democratic Party platform.

Develop and release a new Conventional Arms Transfer Policy. In 2018, the Trump administration introduced a revised Conventional Arms Transfer (CAT) policy that emphasized economic justifications for arms sales to the detriment of human rights and other legitimate policy considerations. Within the first six months of the Biden administration, the State Department should develop and release a new CAT Policy directive that prioritizes human rights and IHL in decisions over U.S. arms sales. The new policy directive should establish a threshold for withholding arms when it is likely and foreseeable—whether intentional or unintentional—that defense articles, services, or crime control equipment would facilitate human rights violations, atrocity crimes, or indiscriminate or disproportionate civilian harm; bolster authoritarian governance; or run a high risk of fueling corruption. 

Apply the Leahy laws to arms sales and include human rights in terms of sale. Although the Leahy laws specifically prohibit assistance to security force units that have violated human rights, the executive branch does not currently vet most arms transfers under the Leahy laws due to its narrow interpretation of “assistance,” limiting its application to cases where weapons systems and services have been provided via military aid programs. The Biden administration can strengthen consideration of human rights and civilian harm in the pre-sale decision-making process by applying the Leahy laws to arms sales as well as through the inclusion of human rights, IHL, and anti-corruption and transparency measures in standard terms of sale. Biden should issue a new presidential decision directive making clear that the Leahy laws apply to the sale and transfer of defense articles and services, and should certify in any notification of arms sales to Congress that the proposed recipient has not engaged in a consistent pattern of gross human rights abuses. 

Require a risk assessment of all planned transfers. Prior to issuing letters of offer and acceptance or licenses, the State Department should conduct an assessment of the risks that the equipment could contribute to human rights abuses and violations of IHL, erode democratic and civilian control over the military, fuel corruption, incite aggression, exacerbate arms races, or be subject to unauthorized transfer to third parties. At a time of increased social protest against illiberal, populist, and authoritarian regimes, the State Department should apply this assessment with particular rigor over any proposed transfers of crowd control equipment. These conditions should be reviewed at all stages of the transfer and delivery process. Risk assessments should be included in formal notifications to Congress, and Congress should be notified of any updates or changes to assessments pre-delivery.

Strengthen end-use monitoring to include human rights, corruption, and civilian harm. End-use monitoring programs do not currently monitor whether U.S.-origin weapons are being used in the commission of human rights abuses, violations of IHL, or other acts of civilian harm. Biden should make clear in the new presidential decision directive that use of U.S.-origin defense articles or services in the commission of gross violations of human rights or IHL constitute end-use violations under the Arms Export Control Act. The State Department should develop new end-use monitoring programs that track the actual use of U.S.-origin items, including human rights violations, IHL violations, and civilian casualties, and require the suspension of additional support in the case of violations for both Direct Commercial Sales (through the Blue Lantern program) and Foreign Military Sales (through the Golden Sentry program). The Export Administration Regulations should be revised to require end-use monitoring of munitions exports under the jurisdiction of the Commerce department (i.e., items formerly on the U.S. Munitions List) as well as the suspension of transfers if there are credible reports that such articles or services have been used in violation of end-use agreements, including in the commission of gross violations of human rights or IHL. These end-use requirements should be included in all standard terms of sale, letters of offer and acceptance, and export licenses.

Restore State Department authority and human rights safeguards over firearms licensing. As President-elect Biden promised during his campaign, the Biden administration should immediately restore State Department regulatory authority over firearms and other munitions, which was transferred to the jurisdiction of the Department of Commerce under the Trump administration. The Biden administration should also restore congressional notifications of firearms exports worth $1 million or more. Until this occurs, the Biden administration should improve how the Commerce Department regulates the sale of firearms that have moved to their purview, including through the use of so-called “crime control” considerations which most directly apply human rights considerations. The Biden administration should also task the State Department Inspector General with conducting an investigation into whether firearms exported to foreign security forces have been used in the commission of human rights abuses and criminal activity.

Revise drone export policies. In July 2020, the Trump administration reinterpreted the Missile Technology Control Regime (MTCR) in a move designed to allow defense contractors to sell more armed drones abroad. The final rule, announced on Jan. 12, amends the Export Administration Regulations (EAR) licensing review policy to eliminate the “presumption of denial” for many of these exports. Expanded drone exports are likely to fuel conflict and civilian harm and facilitate surveillance by rights-abusing governments. The Biden administration should take steps to reverse this rule and revise U.S. policies on the export of unmanned aerial systems (UAS) to limit the further proliferation of such items as well as to strengthen pre-sale conditions and post-sale monitoring of UAS on the basis of human rights and civilian harm risks.

Ban the use, production, and transfer of antipersonnel landmines and cluster munitions. The Trump administration abandoned longstanding U.S. commitments to stop the production and use of antipersonnel landmines and cluster munitions, which cause unacceptable harm to civilians both at their time of deployment and for decades afterwards. The Biden administration must immediately reverse the Trump administration’s 2020 policy permitting landmine production, transfer and use, as well as the 2017 policy allowing the use of cluster munitions.  The Biden administration should also swiftly accede to the Mine Ban Treaty and the Convention on Cluster Munitions.

Work with Congress to reform the Arms Export Control Act. The Biden administration should work with Congress to reform the Arms Export Control Act to enhance congressional oversight and increase transparency over arms transfers. In particular, such reforms should provide for affirmative congressional approval for a subset of risky sales — a concept originally proposed by then-Senator Biden in 1986. Biden should also support efforts to introduce stronger human rights conditions into the arms transfer process, such as Democratic Rep. Ilhan Omar’s Stop Arming Human Rights Abusers Act, Senators Bob Menendez, Patrick Leahy, and Tim Kaine’s SAFEGUARD Act, Senator Patty Murray’s Values in Arms Export Act, and Senator Ben Cardin’s Enhancing Human Rights Protections in Arms Sales Act.

Biden pledged a foreign policy that would restore U.S. moral leadership. Ending U.S. complicity in human rights abuses, civilian harm, and humanitarian crises through the structural reform of the arms transfer process is an essential first step.

Image: Missiles manufactured by Lockheed Martin are displayed during the Association of the United States Army (AUSA)Annual Meeting and Exposition in Washington, DC, October 13, 2014. Photo by JIM WATSON/AFP via Getty Images

 

About the Author(s)

Annie Shiel

Senior Advisor for U.S. Policy & Advocacy, Center for Civilians in Conflict (CIVIC). Research Program Manager, Stanford University. Follow her on Twitter (@annieshiel).

Seth Binder

Advocacy Officer at POMED; former Program Manager and Research Associate at the Center for International Policy’s (CIP) Security Assistance Monitor program; Co-author of “The Moroccan Spring and King Mohammed VI’s Economic Policy Agenda: Evaluating the First Dozen Years,” a chapter in The Birth of the Arab Citizen and the Changing of the Middle East - Follow him on Twitter (@seth_binder).

Jeff Abramson

Jeff Abramson (@jeffabramson) is a senior fellow for arms control and conventional arms transfers at the Arms Control Association and also directs the Forum on the Arms Trade.

William Hartung

William D. Hartung (@WilliamHartung) is the director of the Arms and Security Program at CIP and a senior adviser to the center's Security Assistance Monitor.

Rachel Stohl

Managing Director at the Stimson Center and directs the Center's Conventional Defense Program Follow her on Twitter (@rachelstohl).

Diana Ohlbaum

Senior Strategist and Legislative Director for Foreign Policy at the Friends Committee on National Legislation, Chair of the Board of the Center for International Policy - Follow her on Twitter (@dohlbaum).

Adam Isacson

Adam Isacson (@adam_wola) has worked on defense, security, and peacebuilding in Latin America since 1994. He now directs the Washington Office On Latin America (WOLA)’s Defense Oversight program, which monitors U.S. cooperation with Latin America’s security forces, as well as other security trends.

Brittany Benowitz

Chief Counsel of the American Bar Association's Center for Human Rights. The opinions expressed are those of the author. The statements have not been approved by the ABA House of Delegates or Board of Directors and should not be construed as representing ABA policy.

Daniel R. Mahanty

Director of the U.S. program at the Center for Civilians in Conflict (CIVIC). He previously served 16 years at the U.S. Department of State. Follow him on Twitter (@danmahanty).