On January 15, 2014, the United States released a document describing its new policy governing transfers of conventional weapons. The policy revision was long overdue, as the new publicly released document, Presidential Policy Directive 27 (PPD-27), replaced a classified directive that came out in 1995.
The world has changed dramatically since the end of the Cold War. Until the release of the new policy document, however, the United States had been using policy guidance rooted in the geopolitical challenges created by the fall of the Soviet Union in making its arms transfer decisions and in outlining policy priorities and approaches to the global arms trade. According to a White House summary, a multi-year interval review of U.S. arms export policy “concluded that the 1995 conventional arms transfer policy was effective but needed to be updated to address 21st century national security and foreign policy objectives.”
Thus, the new U.S. policy more accurately reflects the reality of U.S. arms transfers today. The Obama administration began its review when it came into office, but U.S. officials have said the impetus to finish the review came from events during the Arab Spring, when canisters of tear gas emblazoned with “Made in the USA” dominated pictures of the uprisings in Cairo’s Tahrir Square. Questions surrounding U.S. arms sales to Egypt and other Arab countries led to increased scrutiny over the process of determining whether to transfer conventional arms and whether arms sales in fact led to U.S. influence over the recipient.
Some critics maintain that the new policy was released in order to justify recent U.S. arms sales that have come under fire and the overall surge in U.S. arms sales during the Obama presidency, reaching a high of nearly $63 billion in new foreign military sales agreements alone in 2012. The White House dismissed that criticism, stating that U.S. arms transfer policy “continues to be guided by two fundamental tenets: to support transfers that meet the legitimate security requirements of our allies and partners in support of our national security and foreign policy interests; and to promote restraint, both by the United States and other suppliers, in transfers of weapon systems that may be destabilizing or dangerous to international peace and security.” Regardless of the rationale, the new policy better represents the current realities of the global arms trade.
The new arms transfer policy states the goals of U.S. conventional arms transfer policy, outlines the process and criteria that guide U.S. arms transfer decisions, clarifies the ways in which U.S. policy on conventional arms transfer supports arms control and arms transfer restraint, and explains how the United States supports responsible arms transfers around the globe.
Of particular note is that the policy “highlights the importance the United States places on key factors such as respect for human rights, international stability, homeland security, counter-terrorism, combatting transnational organized crime, and supporting non-proliferation.” This framework sets the tone for the new policy and differentiates it from the 1995 policy, which was more focused on “transfers of weapons systems that may be destabilizing or dangerous to international peace.”
PPD-27 reflects the “decisive role” that conventional weapons have had on armed conflict and the legitimate role of such weapons in carrying out defense and security policy. Yet, the policy recognizes the ways in which conventional arms transfers can have negative impacts, often unintended. The acknowledgment of the detailed ways in which conventional arms can be used to undermine U.S. security represents a new policy paradigm for U.S. arms transfers. The directive specifies how these transfers may “exacerbate international tensions, foster instability, inflict substantial damage, enable transnational organized crime, and be used to violate human rights.”
PPD-27 has three distinct features. First, it reflects the contemporary context and transnational threats that guide U.S. arms transfers. Second, it reflects the way that the United States works with its allies as well as the U.S. interest in burden sharing. Third, the policy reflects long-standing U.S. law (the Arms Export Control Act, for example) and practices (such as interagency reviews) and is consistent with existing U.S. legal authorities.
The U.S. approach is enunciated in the second paragraph of PPD-27, which says that U.S. policy “supports transfers that meet legitimate security requirements of our allies and partners in support of our national security and foreign policy interests. At the same time, the policy promotes restraint, both by the United States and other suppliers, in transfers of weapons systems that may be destabilizing or dangerous to international peace and security.” This dual purpose—to facilitate transfers and to promote restraint—is reiterated within the sections on U.S. goals and on the process and criteria for determining arms transfers.
According to the White House summary, the policy “highlights the President’s commitment to continued U.S. leadership in responsible and transparent conventional arms transfers.” The approach to transparency is significant. The policy reflects a desire by the United States, the world’s largest arms exporter, to find a balance between arms control and capacity building for U.S. partners and allies to support U.S. national security and foreign policy interests. While the 1995 policy focused on transfers of new weapons and upgrades of old weapons systems, reflecting the needs of new allies after the fall of the Soviet Union, PPD-27 covers arms and the “provision of related services and the transfer of technical data related to arms.” The 1995 policy referred to such services and data only generally, but PPD-27 cites them explicitly. Technology transfers and the development of new technologies are an integral part of the arms trade of the 21st century. Including these kinds of transfers in PPD-27 accurately reflects the current state of the arms trade and ensures the relevance of the policy in the future.
PPD-27 has 10 clear goals that enunciate the ways in which arms transfers serve U.S. national security and foreign policy goals. Eight of the 10 goals are represented in some form in the 1995 policy. These range from “supporting democratic governance” to “preventing proliferation.” The 2014 policy elaborates on these concepts and provides more explanation and context, but also adds two new goals to the foreign policy and security aims: “[p]romoting cooperative counterterrorism, critical infrastructure protection, and other homeland security priorities” and “[c]ombating transnational organized crime and related threats to national security.”
The addition of these two goals highlights the ways in which the world has changed since 1995 and the new U.S. policy priorities that have arisen in response to the September 11 attacks. Instead of focusing on the Cold War paradigm of “us versus them,” the new policy better addresses the threats faced by the United States today, particularly transnational challenges and complex relationships with allies and partners. It provides a more flexible framework for the use of arms transfers to bolster the U.S. defense industrial base or to promote global governance, depending on the particular sale or situation. In addition, the policy endorses the pursuit of weapons technology superiority not only for the United States, but also for its allies and partners. The policy reflects the reality of U.S. use of arms sales in the global context, such as to support particular regimes and reward governments that have supported U.S. interests.
The policy explains that, in the United States, those making arms transfer decisions take a variety of factors into consideration and weigh those factors in deciding whether a transfer should go forward. The explanation for this balancing act in the 2014 policy closely mirrors the 1995 policy with one exception: it also includes the issue of whether the transfer will “serve to facilitate human rights abuses or violations of international humanitarian law.”
The policy then lists 13 specific criteria that the United States will take into account when making arms transfer decisions. These criteria lay out how potential arms transfers are evaluated. One criterion does not outweigh another, and each transfer is reviewed on a case-by-case basis.
These criteria apply to the “transfer of defense articles, related technical data and defense services through direct commercial sales, government-to-government transfers, transfers of arms pursuant to U.S. assistance programs, approvals for the retransfer of arms, changes of end-use, and upgrades.” In other words, the process and the criteria apply to all transfers of U.S. arms under the jurisdiction of any government agency.
As with the goals of PPD-27, the content of the criteria is largely the same as in the 1995 version, with some cosmetic changes and expanded explanation of the criteria themselves, but there are two new criteria in PPD-27. The first is “the risk that significant change in the political or security situation of the recipient country could lead to inappropriate end-use or transfer of defense articles.”
The second new criterion is “the likelihood that the recipient would use the arms to commit human rights abuses or serious violations of international humanitarian law, retransfer the arms to those who would commit human rights abuses or serious violations of international humanitarian law, or identify the United States with human rights abuses or serious violations of international humanitarian law.” These new criteria reflect the challenges faced by the United States during the Arab Spring when U.S.-origin weapons were suddenly being used in ways they were not intended. More notably, the criteria elevate human rights and humanitarian law concerns to a position of prominence not seen in U.S. policy before. Although existing U.S. law prevents the sale of arms that would perpetuate gross and consistent violations of human rights, PPD-27 puts the protection of human rights and the lives of innocent people alongside criteria such as shared defense interests, the availability of comparable systems from foreign suppliers, and the impact of the transfer on the defense industrial base.
One of the most striking things about the new policy is the emphasis on restraint for U.S. arms transfers and the promotion of restraint globally. Several new aspects have been added to the approach to U.S. restraint. When the 1995 policy was released, no one knew what the post-Cold War framework for export controls would look like. Although the 1995 policy encouraged the creation of a framework to succeed the Coordinating Committee for Multilateral Export Controls (COCOM), a group of Western governments that managed lists of weapons embargoed for Soviet-bloc countries, the policy focused predominantly on support for initiatives of regional organizations such as the Organization of American States and the Association of Southeast Asian Nations. PPD-27 has a brief reference to regional initiatives for transparency and includes significant reference to the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies—COCOM’s successor—which promotes transparency, consultation, and restraint.
In the most notable departure from the 1995 policy in this area, PPD-27 announces an absolute prohibition of certain U.S. arms transfers. Under the new policy, “the United States will not authorize any transfer if it has actual knowledge at the time of authorization that the transferred arms will be used to commit: genocide; crimes against humanity; grave breaches of the Geneva Conventions of 1949; serious violations of Common Article 3 of the Geneva Conventions of 1949; attacks directed against civilian objects or civilians who are legally protected from attack or other war crimes as defined in 18 U.S.C. 2441,” the section of U.S. law that defines war crimes. This prohibition reflects a commitment to ensuring that U.S. arms are not knowingly provided to the world’s worst despots and human rights abusers.
The policy goes even further and specifically lists ways in which the United States can “exercise unilateral restraint” with regard to certain arms exports. Although such a statement existed in the past, PPD-27 provides the most comprehensive listing of these conditions and for the first time includes restraint “where the transfer of weapons raises concerns about undermining international peace and security, serious violations of human rights law, including serious acts of gender-based violence and serious acts of violence against women and children, serious violations of international humanitarian law, terrorism, transnational organized crime, or indiscriminate use.”
The final section of PPD-27 explains how the U.S. government will provide support for the export of U.S. arms. In addition to explaining the nuts and bolts of U.S. government support for potential weapons transfers, including overseas marketing efforts, participation in international air and trade exhibitions, and promotion of “important” U.S. transfers, the policy stresses the importance of security cooperation with allies and partners.
A focus on streamlined security cooperation is a new aspect of U.S. conventional arms transfer policy. PPD-27 says that the U.S. government “will take all available steps to hasten the ultimate provision of conventional arms and security assistance.” Such an approach is likely a response to criticism by the defense industry that license applications to close allies and partners often take too long to approve. Also, it reflects the U.S. emphasis on interoperability and burden sharing that has become more prevalent in the aftermath of the conflicts in Afghanistan and Iraq.
The new policy provides the opportunity for increased scrutiny over U.S. arms transfer decisions. Yet, within two weeks of the policy announcement, news reports revealed that the United States had begun arming “moderate” Syrian rebels in the south of the war-ravaged country. One can legitimately ask what human rights safeguards can be guaranteed when dealing with an insurgent force in a civil war in which both sides are known to have committed atrocities. Critics of the new policy maintain that the prohibitions allow too much ambiguity and allow national security interests to trump human rights.
Similarly, at the end of January, Congress approved the lease and sale of Apache helicopters to Iraq, a deal worth $4.8 billion, after the Obama administration provided assurances to Senate Foreign Relations Committee Chairman Robert Menendez (D-N.J.), who had opposed the sale due to human rights and national security concerns. As in the Syria case, critics wonder if the new policy will do anything to mitigate the risks of U.S. sales to parties in a civil war.
Over the last decade, U.S. national security concerns often have carried greater weight in arms sales decisions than comprehensive human rights considerations, and arms sales go forward with the knowledge that innocent civilians will likely pay the price. Although the policy was released in response to events surrounding the Arab Spring, it is unclear if the new policy will have a real-world impact on arms flowing to parties engaged in ongoing crises today and in the future. The United States has an opportunity to demonstrate its commitment to restraint when it considers arms sales to countries that are emerging from or in the midst of civil war or political uncertainty.
Future decisions on arms sales to Egypt will provide such a test case. In October 2013, the United States halted further sales of Apache helicopters to Egypt pending democratic reforms. In deciding whether to make future arms sales to Egypt or resume previously suspended sales, U.S. policymakers can weigh the Egyptian government’s fulfillment of democratic governance principles, such as the adoption of a constitution, the holding of a presidential election, and protection of human rights.
Global Norm Building
PPD-27 reaches beyond what the United States does domestically and tries to set an example for the rest of the world. In essence, the policy sets global norms—standards of behavior that other states accept and follow. The Obama administration came to office with a view that global partnerships were important and needed to be pursued, a very different approach from the Bush administration. Establishing global standards that fit U.S. priorities is a win-win situation for the United States, as the United States can fulfill its national priorities at the same time it strengthens the rules for other governments. That perspective is evident in PPD-27, which has, as its basic premise, support for legitimate security needs of U.S. allies in ways that promote U.S. national security and foreign policy priorities and encouragement of global arms transfer restraint.
The policy singles out certain multilateral forums, such as the Wassenaar Arrangement and the UN Register of Conventional Arms, and encourages other states to participate in regional and multilateral export control and transparency efforts. One global agreement, however, is conspicuously absent from the text of the policy document: the new Arms Trade Treaty (ATT). In its section on restraint in arms transfers, PPD-27 borrows heavily from the ATT and uses some text from the treaty almost verbatim, but never refers by name to the ATT, which Secretary of State John Kerry signed in September 2013.
PPD-27 overtly includes the concepts and obligations from that treaty. Domestic political sensitivities, manifested in the widespread opposition to the ATT in the U.S. Senate, are likely behind the omission of any explicit reference to the treaty.
Although the inclusion of these concepts is most important, the exclusion of a reference to the ATT is a missed opportunity to demonstrate global leadership on promoting implementation of the ATT globally. It also potentially confuses international partners that are major treaty supporters about the U.S. commitment to the ATT because governments would assume that the United States, as a treaty signatory, would promote the ATT around the world, demonstrate treaty implementation, and move toward ratification. The United States will have to reassure allies that it remains committed to the treaty’s full implementation and universalization, even if it is domestically impossible to ratify the ATT. Still, PPD-27 should help the development of the growing international consensus that arms transfers should not put innocent civilians at risk. The adoption of these concepts—namely, that restraint is an important starting point for arms transfer decisions—demonstrates global norm building within the policy.
What Is Next?
PPD-27 is intended to take the guesswork out of the arms transfer decision process. The White House said that “[t]he new policy provides greater clarity and transparency with respect to U.S. goals for arms transfers and the criteria used to make arms transfer decisions. More specifically, it highlights the importance the United State places on key factors such as respect for human rights, international stability, homeland security, counter-terrorism, combatting transitional organized crime, and supporting nonproliferation.” Yet, that does not rule out the possibility of ill-advised transfers made in the name of national security, nor does it mean that arms sales will be guaranteed if they meet all the criteria outlined in the policy.
Moreover, questions about how the new policy intersects with the current export control reform process have been raised. Although the administration has stated that PPD-27 is consistent with the export control reform process, that process is still in the early stages of its implementation. Therefore, the true impact of the process on arms transfer decisions will not be evident in the short term. Only time will tell if the U.S. government will be willing to refuse to export newly license-free items that have potential human rights concerns.
It took 19 years, three presidents, a major shift in world powers, and a new paradigm for U.S. national security and foreign policy to update U.S. conventional arms transfer policy. PPD-27 is written in a way that allows it to maintain its relevance for many years to come. Although critics are skeptical that PPD-27 will change anything about the way the United States participates in the global arms trade, the commitment to adhere to the principles and values as laid out in PPD-27 may go a long way to establishing new global arms trade norms.
Rachel Stohl is a senior associate with the Managing Across Boundaries Initiative at the Stimson Center. She was the expert adviser to the United Nations on the negotiation of the Arms Trade Treaty and is co-author of The International Arms Trade (2009). She is a member of the Arms Control Association Board of Directors.
1. Office of the Press Secretary, The White House, “Presidential Policy Directive—United States Conventional Arms Transfer Policy,” January 15, 2014, http://www.whitehouse.gov/the-press-office/2014/01/15/presidential-policy-directive-united-states-conventional-arms-transfer-p (hereinafter PPD-27).
2. For a description of the 1995 directive, see Office of the Press Secretary, The White House, “Statement by the White House Press Secretary on Conventional Arms Transfer Policy,” February 17, 1995, http://clinton6.nara.gov/1995/02/1995-02-17-press-secretary-on-conventional-arms-transfer-policy.html (hereinafter 1995 statement on conventional arms transfer policy).
3. Office of the Press Secretary, The White House, “Fact Sheet: U.S. Conventional Arms Transfer Policy,” January 15, 2014, http://www.whitehouse.gov/the-press-office/2014/01/15/factsheet-us-conventional-arms-transfer-policy (hereinafter 2014 conventional arms transfer policy fact sheet).
4. U.S. Defense Security Cooperation Agency (DSCA), “Foreign Military Sales, Foreign Military Construction Sales and Other Security Cooperation Historical Facts as of September 30, 2012,” n.d., p. 2, http://www.dsca.mil/sites/default/files/historical_facts_book_-_30_sep_2012.pdf.
5. 2014 conventional arms transfer policy fact sheet.
6. 1995 statement on conventional arms transfer policy.
9. 2014 conventional arms transfer policy fact sheet.
10. Paul Holtom et al., “International Arms Transfers,” in SIPRI Yearbook 2013: Armaments, Disarmament and International Security (New York: Oxford University Press, 2013), pp. 241-247.
11. DSCA, “Iraq-AH-64E Apache Longbow Attack Helicopters,” January 27, 2014, http://www.dsca.mil/sites/default/files/mas/iraq_13-18.pdf.