I. Introduction
Locating the arms trade’s role in human rights violations has become an ever-increasing priority for various international and domestic actors. As the United Nations (UN) human rights system expresses serious ongoing concern over the sale of weapons used in Yemen, Israel, Myanmar, Sudan and other armed conflicts, almost ten years of the Arms Trade Treaty’s (ATT) implementation has largely failed to prevent weapons from reaching the hands of end-user perpetrators. Recognising that the pathways to corporate accountability in the arms sector are at once pluralistic and intersecting, this special Developments in the Field issue presents a timely discussion about the current state-of-play, centring on the possibilities and limitations of justice and accountability for the arms sector. It draws on contributions from various scholars and practitioners with diverse regional expertise, taking stock of the normative and legal evolution of what constitutes a ‘responsible’ arms transfer, while highlighting contemporary challenges and opportunities in improving accountability for wrongful weapons transfers.
Businesses contributing to the arms trade supply chain have distinct responsibilities. The recent UN independent experts’ call to end arms transfers to Israel, for instance, emphasises that companies ‘should also end transfers, even if they are executed under existing export licenses’—that is, irrespective of whether the licensing state has undertaken to review and suspend the license.Footnote 1 This is based on the responsibility of business to respect human rights that ‘exists independently of states’ abilities and/or willingness to fulfil their own human rights obligations’, per the UN Guiding Principles on Business and Human Rights (UNGPs).Footnote 2 Similar dilemmas around the regulation of the arms trade have surfaced in the case of Yemen, where despite repeated calls from the UN Group of Eminent International and Regional Experts on Yemen highlighting the role of arms transfers in ‘perpetuating the conflict and potentially contributing to violations’ and evidence that several EU- and US-made arms had been used in potential violations of international humanitarian law, arms trade with the warring parties in Yemen continued nearly unabated.
Most international authorities, however, have shied away from providing industry-specific guidance on state and company obligations concerning the arms trade. The latest Advisory Opinion of the International Court of Justice on the consequences of Israel’s continued presence in Palestinian territory, for instance, upholds third states’ and international actors’ obligations to abstain from aiding and assisting Israel’s acquisition of territory by force and apartheid, yet does not explicitly address private actors.Footnote 3 By contrast, the UN Working Group on Business and Human Rights issued an information note on ‘Responsible business conduct in the arms sector’ in August 2022, which acknowledged for the first time the ‘symbiotic relationship’ between arms companies and their home state; both given their role in building and maintaining the state’s military capacity and their major economic importance. To the Working Group, this relationship leads to a perpetual ‘blurring of the lines separating the state and the arms sector, which can cause states to approve arms exports despite genuine human rights risks that should prevent them’ and ‘create[s] incentives to approve lucrative international arms transfers even where those transfers may facilitate severe human rights violations’.Footnote 4
II. (De)regulating the convergence of state-corporate interests
The aforementioned convergence of state and corporate interests in a permissive regulatory framework and a ‘culture of secrecy’, ‘corruption’ and ‘non-transparency’ has pre-empted accountability for victims even for unequivocally unlawful arms sales. The recourse to national security and commercial interests has decisively enabled and maintained a permissive environment around the arms industry’s business operations.Footnote 5
As several pieces in this Special Issue show, in many countries the arms trade is co-constitutive of state-corporate interests. By this we mean that policy and legal interpretative techniques maintain the legal fiction that state and corporate interests and actions are separate, while at the same time reinforcing the view that multinational arms producers and dealers do not have the agency and internal regulatory capacities to assess the human rights impacts linked to their products. As a consequence, defence companies’ agency around their obligations not to contribute to international law violations has, in practice, been displaced through the externalisation to the state of both present and future risks of downstream damage and human rights violations. In sum, companies rely on export licensing procedures and state-endorsed decisions to claim that they fulfil their due diligence obligations and thereby seek to insulate themselves from litigation around harms resulting from their operations.
Calls for a stronger application of human rights due diligence and the UNGPs in the arms sector have been undermined by political and economic interests.Footnote 6 The explicit exclusion of the arms sector from due diligence in domestic laws has reinforced the lack of accountability in this sector in terms of international human rights law and business and human rights frameworks. Tellingly, no state has issued industry-specific guidance to the corporate sector on the need to monitor end-use of weapons or suspend supplies when corporate officers have access to information that their arms may be used in the commission of serious violations of human rights and other international laws. Absent regular monitoring and review of state licensing systems, and given the limited pathways for review and accountability around licensing decisions, many licences to sell weapons enable supplies that have contributed to mass and structural violence.Footnote 7
III. Legal impunity: Structural limitations of arms trade litigation and accountability
Attempts to hold defence companies accountable for human rights violations have exposed the way that normative frameworks and judicial procedures—legal accountability mechanisms, but also globalised economic structures—have allowed corporate actors to evade responsibility for the unlawful supply of arms even when they were clearly being used in serious violations of international law.Footnote 8 In situations of structural violence in Yemen, Palestine and elsewhere, the arms trade is emblematic of the role that corporate actors can play in enabling and fuelling the commission of international crimes. Yet, focusing on the corporate perspective also evinces the limitations of existing forms of corporate legal accountability for the arms trade.
Compared to most other industries, the arms trade is deeply connected to the national security and foreign relations apparatus of the state, and is often insulated from litigation as a result of this. The unique nexus between states and corporations in this area also means that in the few cases that have been filed in the United Kingdom, Italy, France, Germany, Belgium, the Netherlands and other countries,Footnote 9 the legal arguments, nature of proceedings and the reasoning of judicial decisions are very different from most corporate accountability litigation.
As discussed by several of this Special Issue’s contributions, the remedial scope of legal interventions against wrongful arms trade has been concerningly limited, and their transformative potential almost entirely unrealised. The Nuremberg International Military Tribunal had led to the prosecution of several corporate executives for their involvement in crimes of the Nazi regime and the supply of chemicals used in concentration camps. Some seventy years on, litigation efforts have focused on European arms companies and their home states for complicity in international crimes committed during the Yemen conflict.Footnote 10 These include criminal complaints in Italy and France and a Communication to the Prosecutor of the International Criminal Court.Footnote 11 However, none of these complaints have resulted in an employee of a defence company, the company itself or a state official being held criminally responsible. While there have been some positive developments in relation to corporate criminal liability, such as the Lafarge caseFootnote 12 in France discussed in this issue by Julie Février and Sarra Dajean, this has yet to materialise into concrete implications for the arms industry.
The current limitations on arms trade litigation mean that such challenges have seldom been able to disrupt the flow of weapons that fuel mass and structural violence. Indeed, the many limits of legal pathways often obstruct access to justice for communities subject to such realities of violence, including survivors of armed conflicts. How can such legal interventions counter the political (and legal) economy of the arms trade? Can they challenge the policy preferences of neoliberal militarism that often animate licensing systems? What is their contribution to the broader efforts to address the root causes of the mass and structural violence enabled by arms supply relationships?
Survivors and solidarity groups that pursue accountability and justice for the arms trade through existing legal accountability mechanisms should self-reflexively interrogate the risks and impact of their efforts to challenge this industry through legal systems that often serve to safeguard its economic interests. Given these limitations, could the continued focus on legal interventions potentially legitimise certain arms transfers and undermine possibilities to pursue truly transformative anti-militarist social justice, that accounts for the role of arms supplies in enabling mass and structural violence and thus also in the struggles for justice and accountability around such violence?Footnote 13
IV. Purpose and content of the special issue
In guest-editing this Special Issue, we have sought to bring together insights from our respective and collective experiences of pursuing accountability for the arms trade as practitioners, researchers, and academics. Having been involved in research, advocacy and legal work on the roles and responsibilities of corporate actors in the arms industry for some time, we are aware of the limitations of legal accountability pathways for transfers that support violations of international law, both for civil society and for survivors of such violence. We have thus approached our analysis with a systemic and intersectional lens that appreciates the impasses created by state-corporate tie-ups in, and corporate capture of, the defence sector. The purpose of this Special Issue, therefore, is to illustrate and critically examine the political, legal, and economic interests and double-standards underpinning the arms trade. The different contributions shed light on current trends, challenges and future prospects for corporate accountability related to the arms industry.
We have sought to spotlight the cases, normative frameworks and strategies that underpin current accountability efforts, within the wide variety of spaces, pursued to enforce the regulation of the arms trade. Shahd Hammouri discusses the ongoing struggles to challenge arms transfers to Israel in the context of the structural violence in Palestine, and the role of the military-industrial complex in sustaining the conflict. Lana Baydas and Hiruni Alishewa’s contributions consider how the UNGPs are being applied in the arms industry, in the context of national human rights due diligence frameworks and the provision of finance to defence companies, respectively. Several contributions focus on corporate criminal accountability: Marina Aksenova’s piece analyses international criminal law and its application to the case of complicity for unlawful arms transfers, while Emma Baldi critically analyses the outcome of a criminal complaint filed against Italian arms export authorities and RWM Italia from the viewpoint of state and corporate accountability and victims’ access to justice. Julie Février and Sarra Dajeans’ contribution discusses the potential implications of the French Supreme Court decision in Lafarge on complicity in crimes against humanity for the arms industry. Reflecting on ten years of implementation, Cindy Ebbs discusses the ATT framework’s promises, potential and limits in regulating the defence industry. Turning to South Africa, Michael Marchant and Zen Mathe address the (im)possibilities of securing accountability for European arms companies that use subsidiaries as a way to ‘offshore’ their legal responsibilities and avoid export controls. Finally, Antonio Guzmán Mutis sheds light on how the interpretation of the UNGPs by the Inter-American Court of Human Rights may influence its considerations on the human rights obligations of the U.S. firearms industry in Mexico.
Overall, the contributors offer their perspectives on contexts from Yemen to Palestine and elsewhere in the Americas, Africa, South West Asia and North Africa (SWANA) and Europe. We have sought out pieces from different positionalities and perspectives, e.g., those working to support survivors to access justice through the courts, to those engaging in policy advocacy on arms control regulation. Ultimately, we hope that this Special Issue enables others to engage with and reflect on legal pathways and arguments as part of a broader struggle for justice for the arms trade in an informed, open and critical manner.
Competing Interests
Valentina Azerova declares that some of their research and practice as a cofounding member of the emergent justice collective and of the Arms Trade Litigation Monitor may be perceived as a competing interest to the content included. Canelle Lavite declares that as an employee of ECCHR she is involved in the filing of legal challenges against arms traders in the context of Yemen before French and Italian courts as well as the ICC as well as legal advocacy on the human rights impacts of arms transfers. Chloé Bailey declares that as an employee of ECCHR she is involved in the filing of legal challenges against arms traders in the context of Yemen before French courts, as well as legal advocacy on the human rights impacts of arms transfers.
