The United States “cannot be both the world’s leading champion of peace and the world’s leading supplier of weapons of war”[1]. The United States Conventional Arms Transfer (“CAT”) Policy establishes the executive branch’s priorities and reasoning for the export of conventional arms[2] to other nations.[3] At its inception in 1979, CAT Policy was a “policy of self-imposed restraint”[4] with regards to arm sales and transfers to any nation.[5] It has since evolved, with each subsequent administration having its own view of the role the United States should play in championing peace.[6] The Biden Administration has made significant progress in advancing the Policy’s original intent of withholding military equipment sales to protect against atrocities, especially considering the Trump Administration’s CAT Policy,[7] which diverged significantly from this intent.[8]
Former President Trump’s CAT Policy did not prioritize self-restraint or the protection of human rights, including only one goal to “reduc[e] the risk of national or coalition operations causing civilian harm.”[9] Rather, the main objectives of Trump’s CAT Policy were to: (1) reduce the United States’ reliance on the presence of military troops abroad by making it easier for allied nations to receive weapons from the United States for their own military operations; and (2) simplify the process for American companies and the government to sell military equipment to bolster the U.S. economy through arms sales.[10] The Trump Administration also reduced the transparency of firearms exports by transferring regulatory authority from the State Department to the Commerce Department, which is not required to report any export transaction.[11]
Finally, the Trump Administration eased restrictions on the types of equipment each country could receive, for example, by signing a $110 billon defense deal with Saudi Arabia and reauthorizing the sale of laser guided bombs.[12] This reversed a 2016 Obama Administration ban on the sale of these munitions, which had been imposed due to concerns over Saudi Arabia’s use against civilians after prior incidents.[13] As a result, revenue received by the United States on each sale of military equipment jumped from $9 billion to 15.7 billion in less than 1.5 years after its implementation in 2020.[14]
In contrast, the Biden Administration’s CAT Policy focuses heavily on the protection of human rights, stating that it will work to “promote respect for international humanitarian law and human rights” and “recogninz[ing] that, when not employed responsible, defense material can be used to violate human rights and international humanitarian law, increase the risk of civilian harm, and otherwise damage United States interests.”[15] In carrying out this emphasis on protecting human rights, the Biden Administration changed the criteria for halting arms transfers to foreign countries under its Policy, lowering the standard from “actual knowledge” of inhumane acts—such as war crimes and Genova Convention violations—to “more likely than not.”[16]
However, the Biden Administration has not acted in accordance with its own lower standard, as the United States continues to supply arms to Saudi Arabia[17] and Israel,[18] which have been used to commit human rights violations.[19] First, Saudi Arabian border guards utilized United States-provided mortar rounds to kill hundreds of fleeing Ethiopians and asylum seekers attempting to enter Saudi Arabia.[20] Additionally, Israel used United States-provided munitions to bomb a United Nations refugee camp, killing at least 50 people.[21] Many of Israel’s acts have been considered by the United Nations to be “war crimes,”[22] crimes against humanity,[23] and violations of international humanitarian and human rights law.[24] Accordingly, the Biden Administration has failed to carry out its goal of emphasizing human rights.
Furthermore, President Biden’s pledge to reverse the Trump Administration’s regulation of removing the State Department’s regulatory authority over firearm exports has yet to occur.[25] Thus, the Biden Administration continues to implement a regulation that reduces the transparency of arms sales and transfers.[26] In addition, Biden promised to “engage in appropriate monitoring as part of its efforts aimed at ensuring transferred arms are used responsibly and in accordance with these conditions and obligations.”[27] However, the United States’ end-use monitoring regime mandated in the Arms Export Control Act[28] does not currently monitor how United States defense equipment or services are used in incidents involving civilian harm, human rights abuses, or violations of international humanitarian law.[29]
While human rights are more clearly recognized as an objective of the Biden Administration’s CAT Policy compared to that of the Trump Administration, there continues to be a need for NGOs and citizens to advocate for greater self-restraint of military equipment. The United States’ continued arms sales to both Israel[30] and Saudi Arabia[31]—two countries which have utilized these weapons to commit international and human rights law violations—proves that there is still room for the evolution of the current administration’s CAT Policy.
[1] Michael Klare, Carter’s Arms Policy, NACLA (Sept. 25, 2007), https://nacla.org/article/carter%27s-arms-policy [https://perma.cc/HK3M-KH6N].
[2] See Conventional Arms, U.N., https://disarmament.unoda.org/conventional-arms/ [https://perma.cc/ZN5X-4MAD] (last visited Sep. 18, 2024) (“Conventional arms are weapons other than weapons of mass destruction… They are the most commonly known and widely used weapons in conflict… and encompass a wide range of equipment, including battle tanks, armoured combat vehicles, large-caliber artillery systems, combat aircraft…, cluster munitions, small arms, and lights weapons and ammunition.”).
[3] Memorandum from Joseph R. Biden Jr. on U.S. Conventional Arms Transfer Policy to Sec’y of State, Sec’y of Treasury, Sec’y of Def., Sec’y of Com., Sec’y of Energy, Dir. Of Nat’l Intel., & Assistant to the Pres. for Nat’l Sec. Affairs (Feb. 23, 2023).
[4] Shimon Arad, Trump’s Arms Exports Policy: Debunking Key Assumptions, Wᴀʀ Oɴ Tʜᴇ Rᴏᴄᴋs (Sept. 28, 2018), https://warontherocks.com/2018/09/trumps-arms-exports-policy-debunking-key-assumptions/ [https://perma.cc/G885-JWQ7].
[5] John Chappell & Ari Tolany, Unpacking Biden’s Conventional Arms Transfer Policy, Lᴀᴡғᴀʀᴇ (Mar. 1, 2023), https://www.lawfaremedia.org/article/unpacking-bidens-conventional-arms-transfer-policy [https://perma.cc/FXP2-R873].
[6] See generally, International Law: Understanding justice in times of war, U.N. (Mar. 27, 2024), https://unric.org/en/international-law-understanding-justice-in-times-of-war/, [https://perma.cc/BQW5-4KZ5]
[7] Arad, supra, note 4.
[8] U.N, supra, note 6.
[9]Id.
[10] Arad, supra note 4.
[11] Chappell & Tolany, supra note 5.
[12] Zachary Cohen, Trump administration considering new weapons sale to Saudi Arabia, top Democrat says., CNN (May 27, 2020), https://www.cnn.com/2020/05/27/politics/trump-pompeo-saudi-arms-sale-menendez/index.html [https://perma.cc/3DYC-968K].
[12] Memorandum from Joseph R. Biden Jr., supra note 3.
[13] Dan De Luce & Robert Windrem, Trump faces bipartisan pushback over arms sales to Saudi Arabia, UAE, NBC (June 5, 2019), https://www.nbcnews.com/politics/congress/trump-faces-bipartisan-pushback-over-arms-sales-saudi-arabia-uae-n1014191[https://perma.cc/95YH-XWPX].
[14] Id.
[15] Memorandum from Joseph R. Biden Jr., supra note 3.
[16] Chappell & Tolany, supra note 5.
[17] Stephen Semiler, Gaza breakdown: 20 times Israel used US arms in likely war crimes, Rᴇsᴘᴏɴsɪʙʟᴇ Sᴛᴀᴛᴇᴄʀᴀғᴛ (Aug. 26, 2024), https://responsiblestatecraft.org/us-weapons-gaza/ [https://perma.cc/EMN4-NSTB].
[18] Joyce Lee, Meg Kelly, & Atthar Mirza, Saudi-led airstrikes in Yemen Have been called war crimes. Many relied on U.S. support., Wᴀsʜ. Pᴏsᴛ (June 4, 2022), https://www.washingtonpost.com/investigations/interactive/2022/saudi-war-crimes-yemen/ [https://perma.cc/UUZ7-E5RQ].
[19] Carol Giacomo, U.S Under New Pressure To Halt Arms Transfers To Israel, Aʀᴍs Cᴏɴᴛʀᴏʟ (June 2024), https://www.armscontrol.org/act/2024-06/news/us-under-new-pressure-halt-arms-transfers-israel [https://perma.cc/QB8G-REJ2]; Karen DeYoung, U.S restarts offensive weapons sales to Saudi Arabia after lengthy ban, Wᴀsʜ. Pᴏsᴛ (Aug. 9, 2024), https://www.washingtonpost.com/national-security/2024/08/09/us-saudi-weapons-sales/ [https://perma.cc/PS33-X3KC].
[20] “They Fired on Us Like Rain” Saudi Arabian Mass Killings of Ethiopian Migrants at the Yemen-Saudi Border, Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ (Aug. 21, 2023), https://www.hrw.org/report/2023/08/21/they-fired-us-rain/saudi-arabian-mass-killings-ethiopian-migrants-yemen-saudi [https://perma.cc/YNV9-EBXW].
[21] Israel ramps up attacks in Gaza, striking schools, hospitals and mosques, Aʟ Jᴀᴢᴇᴇʀᴀ (Nov. 4, 2023), https://www.aljazeera.com/news/2023/11/4/israeli-strikes-target-schools-hospitals-mosques-on-gaza [https://perma.cc/R4E3-7VSY].
[22] Legal concepts and questions, U.N., https://iimm.un.org/legal-concepts/ [https://perma.cc/KP8T-3SPP] (“War crimes are serious violations of the international rules of war, such as seriously mistreating captured enemy soldiers or killing, raping, torturing or deporting civilians during an armed conflict.”); Elise Baker, unpacking the UN findings of war crimes by Hamas and Isael since October 7th, Aᴛʟᴀɴᴛɪᴄ Cᴏᴜɴᴄɪʟ (July 26, 2024), https://www.atlanticcouncil.org/blogs/menasource/coi-war-crimes-hamas-israel-october-7-gaza-hostages/ [https://perma.cc/PDS4-KZ7F] (“Israeli forces targeted civilians who were clearly unarmed, including civilians sheltering at a church, a child holding a white flag, and three unarmed Israeli hostages”).
[23] Id. (“Crimes against humanity include murder, torture, persecution, rape and other sexual and gender-based crimes, deportation and forcible transfer, or other crimes committed as part of a widespread or systematic attack against any civilian population. The geographical scale, time frame and number of people targeted help determine if an attack is widespread.”); Israeli Authorities, Palestinian armed groups are responsible for war crimes, other grave violations of international law, UN Inquiry find, U.N. (June 12, 2024), https://www.ohchr.org/en/press-releases/2024/06/israeli-authorities-palestinian-armed-groups-are-responsible-war-crimes [https://perma.cc/8T7X-NJUF] (“ The [UN] Commission found that the crimes against humanity of extermination, gender persecution targeting Palestinian men and boys, murder, forcible transfer, and torture and inhuman and cruel treatment were also committed.”).
[24] Semiler, supra note 14.
[25] Chappell & Tolany, supra note 5.
[26] Id.
[27] Memorandum from Joseph R. Biden Jr, supra note 3.
[28] 22 U.S.C. § 2385.
[29] Chappell & Tolany, supra note 5.
[30] Giacomo, supra note 16.
[31] DeYoung, supra note 16.
Comments