From Policy to Law: Strengthening Arms Transfer Principles

In February 2023, the Biden administration released National Security Memorandum 18, otherwise known as the Conventional Arms Transfer (CAT) policy. The CAT policy outlines the administration’s priorities for weapons transfers: to work with allies and partners to better protect human rights, bolster international security, and strengthen partnerships.

More than a year later, however, the administration’s application of the principles outlined in the CAT has been inconsistent. While the administration should endeavor to improve adherence, Congress should also codify principles from the CAT into law to help address deficiencies by giving lawmakers strengthened oversight tools and capabilities.

The Conventional Arms Transfer policy

The Biden administration’s CAT policy applies to all types of arms sales or transfers, such as direct commercial sales, foreign military sales, and retransfers. It includes a broad evaluation framework for policymakers to review arms transfers on a “case-by-case basis”; these cases may include previously or newly authorized sales, and policymakers can review weapons’ transfers until the time of delivery. Review of cases should consider potential impacts of the sale or transfer, including but not limited to:

• How transfers advance U.S. foreign policy interests
• The risk a transfer will contribute to violations of rights or international law
• The stability of a recipient’s political system, including civilian oversight of security institutions
• The risk that a transfer may have adverse political, social, or economic effect in the recipient country, including by contributing to authoritarianism, transnational repression, or domestic rights abuses
• The risk that a transfer will contribute to regional instability
• How a transfer will contribute to interoperability with the U.S. forces and equipment
• How a transfer reduces reliance on U.S. competitors
• The risk of arms diversion or proliferation

The policy prohibits arms transfers where the United States assesses that it is “more likely than not” that arms will be used by the recipient to commit serious violations of international humanitarian or human rights law. This language marks a departure from a previous standard of “actual knowledge [of violations] at the time of authorization,” thus allowing policymakers under the Biden administration’s policy to suspend arms transfers to reduce the risk of U.S. complicity in abuse. Moreover, not only does the new policy apply to the use of U.S. weapons in abuses, but the scope encompasses situations where arms could potentially “facilitate” or “aggravate risk” of human rights violations or instability. Additionally, the CAT policy mandates that assessments consider a broad range of available information on current and past actions to allow for comprehensive evaluation.

Application of the CAT policy in countries with troubling human rights records

In 2023, the United States transferred $80.9 billion of weapons under the foreign military sales regime and another $157.5 billion worth of weapons through direct commercial sales. Many of these transfers aimed to strengthen the defense capabilities of democratic partners, such as Australia and Japan, or to support Ukraine in its defense against Russian aggression—transfers that carry strict, congressionally mandated reporting requirements. Yet the United States also transferred billions of dollars of weapons to countries with clear, documented, and ongoing evidence of human rights abuse, authoritarian behavior, transnational repression, or violations of international law, including Israel, Egypt, and India.

Israel

Israel is the largest recipient of U.S. military assistance in the world, having received more than $300 billion, adjusted for inflation, since its founding in 1948. The United States has approved more than 100 arms sales to Israel since Hamas’ attack on the country on October 7; in late March of this year, the administration authorized the transfer of weapons to Israel in apparent contravention of the CAT policy, which states “no arms transfer will be authorized” where arms will be used to aggravate risks of attacks against civilians.

Of particular concern is the Israeli military’s deployment of heavy weaponry—including U.S.-made weapons—in densely populated areas, which heightens the risk of indiscriminate civilian casualties and other violations of the laws of armed conflict. Airstrikes and demolitions have resulted in substantial civilian casualties and property destruction, including to residential buildings, refugee camps, food distribution centers, medical facilities, humanitarian compounds, educational institutions, and civilian infrastructure. Israel’s October 31 bombing of the Jabalya refugee camp, for instance, caused more than 100 casualties when Israel used two 2,000-pound bombs to strike the tightly packed camp, which Israel alleged housed Hamas commanders. The aforementioned March weapons transfer included 1,800 of these bombs.

Egypt

Congress has consistently allocated $1.3 billion annually in military aid to Egypt for 40 years. The CAT policy explicitly addresses risks of weapons transfers contributing to domestic rights abuses, but despite pervasive human rights abuses under President Abdel Fattah el-Sisi, the Biden administration has given no indication that it will reassess or suspend arms deliveries to Egypt. In fact, in January, the State Department greenlit the sale of patrol boats and equipment worth $200 million to upgrade Egypt’s light tactical vehicles. This approval came shortly after Abdel Fattah el-Sisi secured his third six-year presidential term in a controversial election marked by widespread repression.

The State Department’s 2023 Country Report on Human Rights Practices in Egypt documents numerous violations, including extrajudicial killings, torture, enforced disappearances, harsh prison conditions, transnational repression, and severe restrictions on political participation. The Egyptian government continues to arbitrarily detain two American legal permanent residents, Salah Soltan and Hossam Khalaf. The Egyptian military, particularly in the northern Sinai Peninsula, has also been implicated in human rights abuses. A 2019 Human Rights Watch report details indiscriminate artillery shelling in areas where no armed clashes were taking place, along with the use of U.S.-made cluster bomb munitions. (Although other nations have banned such weapons due to their impact on civilians and the proliferation of unexploded ordnance, both Egypt and the United States continue to deploy them.)

India

In February 2024, the State Department announced a staggering $3.99 billion foreign military sale to India. This sale reflects a broader strategy aimed at deepening security cooperation with India as part of strategic competition with China. However, the conduct of the Indian government and military raise questions about alignment with the principles of the CAT policy intended to limit adverse effects on rights abuse or transnational repression.

The 2023 State Department Country Report on Human Rights Practices in India documents widespread abuses with minimal accountability. Indian authorities have targeted civil society activists, independent journalists, and political opposition, using threats, legal charges, and violence to suppress dissent. Under Prime Minister Narendra Modi’s leadership, instances of transnational repression have surged and included extraterritorial killings, kidnappings, forced repatriations, and other violent acts targeting dissidents and journalists abroad. In November 2023, U.S. authorities charged an Indian national with plotting to assassinate Sikh activist and U.S. citizen Gurpatwant Singh Pannun. India’s Research and Analysis Wing (RAW), historically focused on regional conflicts, was reported to have been involved in planning the assassination and has targeted Indian activists abroad, particularly those affiliated with Sikh activism. RAW’s ambiguous work and structure notwithstanding, the agency has contributed to gathering aerial intelligence within India’s security and military apparatus, sparking concerns about the agency’s use of drones in rights abuses. The aforementioned $3.99 billion sale largely comprises surveillance drones, and it is critical that the State Department review these transfers to ensure they do not contribute to acts of repression.

Safeguarding principles in arms transfers

These examples raise concerns about the United States’ adherence to the principles the Biden administration laid out in its CAT policy. In issuing its CAT policy, the administration has offered a framework for achieving key strategic interests in a values-centric approach, recognizing that these interests are bolstered through security relationships that advance respect of rights, adherence to international law, and stable, democratic governance. Inconsistently applying the policy undermines this approach and poses risks not only to rights worldwide but also to long-term strategic interests.

To strengthen the CAT policy and help ensure more oversight into the application of its standards, both the executive and legislative branches of government should take action: The administration should more strictly and transparently follow the CAT policy guidance, and Congress should codify measures to embed robust human rights safeguards into law. Last year, Rep. Gregory Meeks (D-NY) reintroduced such legislation to the House of Representatives. The Safeguarding Human Rights in Arms Exports Act (SAFEGUARD Act) presents Congress with an opportunity to enhance oversight on arms transfers that could violate international law or may be used to commit rights abuses. This bill includes provisions that would:

1. Require foreign military and police units to undergo human rights assessments prior to U.S. arms sales approval
2. Restrict arms sales to nations with documented instances of war crimes or genocide committed by government authorities
3. Enhance end-use monitoring to track human rights abuses involving U.S. weaponry, mandating government oversight
4. Demand executive branch notification to Congress of all arms sales, irrespective of value, to countries experiencing military coups or whose security forces have been implicated in severe human rights violations

Congress should pass the SAFEGUARD Act to codify important policy principles within the CAT, ensuring that a future administration would be unable to reverse course by overturning the policy.

Conclusion

Failure to uphold CAT guidance in practice undermines U.S. values and reputation. It also compromises U.S. security by entangling the United States with partners lacking popular legitimacy, whose authority may rely, in part, on U.S. security assistance. Adherence to the CAT policy, of course, is not foolproof against such vulnerabilities, but rigor in due diligence can help mitigate against risks of complicity in rights abuse, in emboldening authoritarianism, and in aggravating instability worldwide. To bolster U.S. leadership in advancing global security and reinforcing trust in democracy, Congress must take action to prevent the improper use of American arms, safeguarding our nation’s core values of transparency, accountability, democracy, justice, and integrity.