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Weapons Distribution and Human Rights
The absence of human rights due diligence in the defense industry
Credit: Edgar Serrano (Unsplash)
Sales and exports of defense articles have created egregious human rights abuses over the years. To urge the defense industry to strengthen its human rights protections, the UN Guiding Principles on Business and Human Rights (UNGP)—unanimously endorsed by the UN Human Rights Council in June 2011—recognizes that it is the responsibility of both states and defense companies to respect and protect human rights. Several international and governmental entities have called for the implementation of additional robust human rights due diligence (HRDD) standards to prevent arms sales where potential human rights abuses may arise.
Focusing primarily on the United States, this article argues that defense companies, governments, and courts have all failed to uphold the aspirations of the UNGP, and have not effectively protected human rights in the sales of defense articles. First, defense companies have not implemented any concrete and extensive HRDD processes. Second, the U.S. government has failed to effectively carry out its own laws and policies on foreign weapons sales. Thirdly, American courts have allowed both companies and the government to escape scrutiny of their sales decisions.
Defense Companies Fail to Conduct Proper HRDD
Corporate HRDD is a way for enterprises to proactively manage the potential and actual adverse human rights impacts of their activities. Prior to the transactions, HRDD asks corporations to assess the human rights impact of their arms sales. This involves assessing the human rights track record of the potential buyer and the geopolitical situation, as well as laydown covenants to restrict uses. After the sale, corporations must monitor the use of their articles and audit whether the actual usage complies with their restrictions.
In 2019, Amnesty International conducted a study of the 22 largest defense companies in the world. The study comprehensively reviewed corporate publications of these companies and invited them to comment on their HRDD policies. The results showed that “no companies demonstrated how they addressed the significant human rights risk in situations of conflict and internal unrest … or showed that they had ways of mitigating these risks” (page 30). Two companies, BAE Systems and Leonardo, referenced HRDD policies in their corporate publications. However, Amnesty International observed, “these policies appear to be designed in practice to meet government licensing laws and regulations rather than to prevent human rights abuses” (page 32).
A review of the corporate publications of Lockheed Martin, Airbus, and BAE shows that these companies have reasonably extensive policies for safeguarding human rights in their supply chains and internal operations. However, HRDD should not stop at the sourcing and manufacturing stage, but should also extend to sales and after-sale monitoring. In conducting arms exports, defense companies have a quasi-public role and must act conscientiously to avoid contributing to human rights abuses.
The U.S. Government Fails to Enforce Proper HRDD
On the policy front, attention to human rights is surprisingly absent in U.S. government policies on arms sales to foreign states. In the U.S., the export of domestically-manufactured weapons to foreign countries is governed by the Foreign Assistance Act (FAA) and the Arms Export Control Act (AECA). The AECA requires the U.S. government to conduct End-Use Monitoring (EUM), under which the government aims to ensure that such articles are used only for the purposes intended. EUM can include scheduled inspections, physical inventories, and reviews of accountability records. However, human rights audits are completely absent in government policies on EUM.
On the legislative front, the U.S. has not adopted legislation or proposals requiring defense companies to conduct HRDD. This situation is shared by other countries:
In Switzerland, the Responsible Business Initiative was filed in late 2016 but rejected in a late 2019 referendum. The initiative sought to allow victims of alleged human rights violations to sue Swiss companies in Swiss courts. It was rejected based on the fear that these claims would flood the Swiss court system.
France adopted the Duty of Vigilance Law in 2017. This legislation imposes HRDD obligations and extends to French defense multinationals. However, reports by these defense companies lack details such as specific risk factors, concrete plans to address risks, and implementation deadlines.
In Canada, the Canadian Network on Corporate Accountability (CNCA) released a draft model legislation to address human rights abuses by Canadian multinationals. There has been no formal legislative proposal to date.
The CNCA published a table summarizing the nature and stage of corporate due diligence laws and legislative proposals in Europe. Aside from France, no other European government has implemented corporate due diligence laws. Governments in North America fall even further behind.
The Judiciary Fails to Supervise Companies and Governments in Upholding HRDD
Victims of human rights abuses have repeatedly tried to sue defense companies and the U.S. government in federal courts to no avail. Disappointingly, courts refrained in all cases to subject the company or the government to scrutiny. In declining review, courts argued that political questions are not justiciable and granted the defendants’ motion to dismiss.
As an example, in Doe v Israel (DDC October 3, 2003), scores of unnamed plaintiffs living in Israel and the West Bank sought compensatory and punitive damages against American and Israeli governmental entities and corporations for alleged human rights abuses and tortious injuries related to the Israeli-Palestinian conflict. The plaintiffs also sought to enjoin the federal defendants from providing any further military or economic aid to Israel and to halt military sales and weapons contracts between Israel and the defense contractors. The District Court for the District of Columbia concluded that arms sales to Israel were intertwined with U.S. foreign policy decisions and were thus nonjusticiable political questions. As a result, the executive branch’s arms export decisions completely escape the scrutiny of the courts. By extension, private defense companies also escape any scrutiny on human rights grounds.
Assigning Responsibility
The present situation begs the question, whose responsibility is it to ensure that weapons sales conform to high human rights standards? If companies fail to voluntarily adopt robust HRDD processes, if legislative bodies fail to impose stringent HRDD standards, and if the judicial branch refuses to scrutinize arms export decisions, every entity involved in the arms export process is avoiding taking responsibility for the human rights impacts of these exported weapons. Considering the rising number and severity of geopolitical conflicts in the world and the increasing deadliness of modern weaponry, the need for effective HRDD is ever more pressing. Defense companies, legislative bodies, and the judiciary must act in concert to design, implement and enforce high HRDD standards in arms exports.