To provide a clear answer to the framing question of the panel: yes, international law can and should ensure that arms trade contributes to peace rather than fueling conflict. A nation’s right to defense and the ability to effectively provide for the common security of its people does often require the procurement of weapons. However, in practice, the global arms trade fuels conflict, instability, and the abuse of rights. So while states may justify arms trade in terms of peace and stability, without adherence to laws that govern the responsibilities of state and non-state actors to use these arms in ways that protect and benefit global populations, they undermine these outcomes. Practically speaking, adherence to the law requires a political recognition that it benefits a greater national and public good. This is even more so the case with international law, which depends partly on political will.

For the purposes of these remarks, I will focus on the role of law in U.S. arms trade: the United States is perhaps the most critical global actor in this respect, both because it is the largest supplier of arms worldwide and because it has served as (at least nominally) the architect of a liberal world order, of which international law is a pillar. In short, when it comes to the rule of law in arms trade, for better or worse, the United States sets the standard that other nations follow.

Unfortunately, the United States has a poor record on the application of the law in its own arms transfers, as has been particularly evident in the last five years. The administration of President Joseph Biden made notable rhetorical and policy commitments to respect for the law, but then only applied it asymmetrically. For instance, the Biden administration made efforts to improve National Security Memorandum-18, the Conventional Arms Transfer (CAT) policy, to include a standard that should prohibit the transfer of arms that are “more likely than not” to be used in violations of international law. After some pressure from Congress, the administration further drafted and implemented National Security Memorandum-20, a policy which provided specific guidance on adherence to international law and reporting on the CAT policy. In both instances, the policy guidance referred to existing U.S. law on arms transfers, including the Arms Export Control Act (22 U.S.C. 2751, et seq.), which outlines legal requirements to protect transfer of sensitive technology, establish end-use monitoring, set forth reporting requirements, etc., and the Foreign Assistance Act of 1961, which outlines requirements to ensure military assistance contributes to promote peace, including by prohibitions on military assistance to countries engaging “in a consistent pattern of gross violations of internationally recognized human rights.”

But, despite the additional guidance reporting requirements in the NSM-18 and NSM-20, ultimately the Biden administration failed to adhere to these policies. This was most glaringly the case with continued arms sales to Israel, despite the administration’s recognition that Israel used U.S. weapons “in instances inconsistent with its international humanitarian law (IHL) obligations or with established best practices for mitigating civilian harm” during its military offensive in Gaza. This asymmetric approach fundamentally weakened the efficacy of international law, not only in the context of the Gaza conflict, but because it set an inconsistent standard that other malign actors could seek to exploit.

Since President Donald Trump’s inauguration to a second term, he and his administration have demonstrated outright antipathy toward the rule of law (in arms transfers as well as in other arenas). The Trump administration has reverted the CAT policy to the lower standard in its form under the first Trump administration. By comparison, the Biden NSM-18 policy makes ten references to international law, while the current CAT policy makes none at all. (It is also worth a note that the Trump administration’s institutional attacks—the gutting of State Department functions, for instance—will impact the ability to monitor and implement even the inadequate policies in place.)

Further, in both its first and second terms, the Trump administration has taken a fundamentally different approach to arms exports from those of previous administrations, treating arms exports as an economic rather than a foreign policy tool. For example, the Trump administration moved to reclassify the export of small arms from regulation under the State Department’s Munitions List to the Commerce Department’s Commerce Control List. Of course, there is a clear tension between the Commerce Department’s raison d’être—promoting U.S. industry—and the need to regulate weapons of war, like semiautomatic weapons, as a national security imperative. The Biden administration Commerce Department issued a rule that formalized a working group to review export licensing and included criteria to assess cases, but the second Trump administration has sought to rescind this rule.

In terms of law and policy reforms that may strengthen accountability and prevent violence, as the previous examples indicate, several strong laws exist. That said, there are certainly areas of improvement. In the ideal, this would include:

1. 1. Congress and the administration should preserve existing law and policy as a baseline (including the preservation of the Biden administration’s rule on firearms exports and a return to the NSM-18);

2. 2. The United States should join the Arms Trade Treaty and the Senate should ratify it;

3. 3. The administration should return firearms export authority to the State Department (and Congress could legislate for this change, as was proposed in the Americas Regional Monitoring of Arms Sales Act of 2023); and

4. 4. Congress should codify the “more likely than not” principle in the NSM-18 into law.

But even with these laws and stronger policy frameworks, accountability and protections require first and foremost political will. Are any of these recommendations in the realm of possibility given the current U.S. administration and Congress? The Magic 8 Ball might respond “outlook not so good,” given the Trump administration’s posture on arms exports thus far and Congress’s apparent willingness to abdicate oversight authority. That said, there have been some opportunities for Congress to assert its authority, especially on specific cases of weapons transfers: recent Joint Resolutions on Arms Sales to Israel, Qatar, and the United Arab Emirates garnered some support but ultimately failed to pass. Each year, Congress must pass the National Defense Authorization Act, which may provide some opportunity for amendments but is similarly unlikely to provide a robust avenue for reform. Unfortunately, arms manufacturers and foreign governments already see the current environment as a ripe opportunity to roll back protections and will find willing partners—as has been the case with the Trump administration’s announcements of major arms sales to rights abusing countries like Saudi Arabia or countries promoting global conflict like the United Arab Emirates (given its role in Sudan).

Ultimately, while there remains potential—and even necessity—for the law to play a fundamental role in ensuring arms transfers contribute to peace and not conflict, its application will require a paradigm shift in the approach that the United States takes not only to arms exports, but to its investment in the rule of law as a national interest, rather than a constraint.

Castellanos-Jankiewicz then introduced Josh Paul, co-founder of A New Policy, a newly founded lobbying organization and political action committee dedicated to shifting American politics and policies as regards the U.S. relationship with Israel and Palestine. He resigned from the State Department in October, 2023 due to his disagreement with the Biden administration’s decision to rush lethal military assistance to Israel in the context of its war on Gaza. Castellanos-Jankiewicz prefaced his question by recalling that the United States has historically used its role as a major arms producer to leverage its interests abroad and influence geopolitics. At the same time, we see regional trends, particularly in Europe, where stakeholders are aiming toward self-sufficiency when it comes to the industrial base and the development of new technologies. Will this create an opportunity to regulate arms procurement and trade in a manner that prevents conflict? What more can be done—at the global level—to ensure that arms transfers contribute to stability rather than escalating violence?

Thank you, León. You ask whether trends toward self-sufficiency in arms production will create an opportunity to regulate arms procurement and trade in a manner that prevents conflict, and what more can be done—at the global level—to ensure that arms transfers contribute to stability rather than escalating violence.

There is a lot of complexity to that question, but before I answer it let me first just take a moment to emphasize a point you touched on in your framing—that the United States has historically used its role as a major arms producer to “leverage its interests abroad and influence geopolitics.” That is of course the theory, and is why authority over arms transfers in the United States is vested in the State Department’s Bureau of Political-Military Affairs, where I worked for over a decade. That is so that these important decisions can be made not just on the basis of commercial value or military contingency, but as part of the State Department’s diplomatic and foreign policy toolkit.

Of course how the United States uses—or misuses—its diplomatic toolkit under President Trump is a thing unto itself, but I would be remiss not to note that the major exception to the rule is not President Trump’s economic transactionalism, but rather President Biden’s infamous unwillingness to use any of the leverage or influence that is built into the basic purpose of U.S. arms transfers when it came to the U.S. relationship with Israel at a time when American weapons were being used to commit war crimes and their very transfer in such circumstances were, I am sure many in this room would join me in arguing, a clear violation of both U.S. and international law. His unique unwillingness to even consider arms transfers as a diplomatic tool when it came to Israel was one of the main reasons I left the State Department.Footnote ¹

But let us look forward. I suspect there are many in this hall who believe that even more than arms transfers might be a tool of diplomacy, American foreign policy often finds itself to be a tool of the Military-Industrial complex. From twenty-five years in D.C. working in State, the Department of Defense (DoD), the Hill, and for defense contractors, and even now as a lobbyist promoting human rights, I take a different view—I think the root problem here is not the influence of the defense industry, but that even more dangerous and inescapable threat to this planet’s well-being: human nature—and human politics.

In my experience, although certainly shifts in technology, geopolitics, and military balance create opportunities for profit, by and large the defense industry is not conniving to perpetuate conflict, but is responding to and anticipating demands driven by national and global politics.

So let us talk briefly about those drivers as they exist today. Most immediate are the regional issues that have created a vast demand signal for weapons that continues to outstrip the capacity of countries, including the United States, to build them. The first gear shift in the post-Global War on Terrorism environment was of course Russia’s invasion of Ukraine, which has not only emptied Western stockpiles, but also increased the need for expanded investment in deterrence capabilities in Europe.

Add in growing tensions in the Indopacific, particularly in the South China Sea and Taiwan contexts, plus instability in the Middle East, and there is a huge global demand for arms, much of which is focused on replenishment or replacement of what we might call legacy systems or their equivalents, into which production gaps countries like Bulgaria and Romania are stepping up for mass production of lower technology items such as ammunition and artillery rounds, while Japan, and Korea in particular, are making significant strides to become what we might call the second-tier suppliers of complex systems such as tanks and fighter jets, competing more with Europe in that space than with the United States, whose industry generally builds the Cadillac version of military systems for the vast DoD budget.

To that picture we then need to add a further factor that is driving the global arms market: the geostrategic overlay of U.S. great power competition with the People’s Republic of China (PRC). (I state that as a fact, not necessarily an endorsement.) This competition—between the United States and its most important non-contiguous trading partner—is full of contradictions. It is both driving an expansion of defense research partnerships, a loosening of export controls, and enhancing multinational military cooperation through programs such as AUKUS, while at the same time it is forcing a transition from a global sourcing and just-in-time logistics to one of trade barriers, protectionism, blocs, and stockpiling.

It is creating incentives for the United States to sell arms to more countries in order to compete with the PRC, while also holding the United States back from selling to some countries because of a PRC presence. It is informing the creation of the largest defense acquisition program the world has ever known—the F-47 Next Generation Air Dominance plane whose anticipated lifetime program cost is already pegged at $300B—while at the same time energizing the growth of disruptive new models in the defense industry such as that of Anduril who can leverage networked AI and organizational nimbleness to deliver tailored asymmetric capabilities in near-real time, and whose model may well make the F-47 the very last major defense program of such a scale in the terrestrial domain.

It is a complicated picture, but I do not think we should overstate how much actual change there is when it comes down to the balance of production. Yes, Russia’s market portion is shrinking, yes Europe is taking a number of steps—some, such as the recent proposal for pooled ownership of defense stocks, quite sensible—that suggest it is at least beginning to move toward a more cohesive munitions strategy that also includes a greater self-reliance.

But at the same time, despite growth of the overall market, the fundamentals do not yet show a sign of a significant shift. The United States continues to lead with a market share of 43 percent and growing, and even as self-sufficiency is becoming a priority for major military powers, we can still expect a lot of cooperation and technology integration within and across the Western blocs.

This may create some opportunity for certain regions and countries to take more policy leadership when it comes to the global regulatory architecture, but the major players in Europe and the Far East still generally lack the political-military strategy or the bureaucratic systems and cultures necessary to execute such a strategy and thereby convert industrial capacity into diplomatic power.

And, even if all of these can begin to coalesce, any desire to promote global standards will be moderated by inter-bloc competition, defined both by economic and political interests.

I said earlier that I do not think that by-and-large the military-industrial complex is a driver of foreign policy as much as a respondent to it, but before I wrap up I would like to note one significant exception to that. When we look at the changing face of warfare itself, and therefore of the defense industrial base, it is clear that the most important weapon of our time is not the bullet or the bomb, but the byte—it is data, information, and the ability to collect, process, manage, analyze, and act on that data. While the arms control community, and even more so the general public, remains focused on traditional weapons made by traditional defense companies, it is civilian household names—Google, Amazon, Microsoft—who are now perhaps the greatest purveyors of lethality on the planet, in terms of effects.Footnote ²

That is the part of the defense industrial base that I am the most concerned about in terms of both lack of accountability and oversight when it comes to their defense exports, and the implications for privacy, politics, and civil rights domestically. I do not think we as a society have really come to terms with just how powerful a weapon data and the ability to compute it really is. When it comes to reducing conflict risks generated by the defense industry, I do think that the question of the role of AI and data analytics in both the tactical and strategic levels is absolutely vital and urgent—as is the discussion about whether it is appropriate for our personal data to be held under the same private corporations.

But to wrap up, the short version of all this, to answer your question, is—no—I do not see the current trajectory of the arms trade and the global defense industrial bases leading to a strengthened regulatory regime, or a future in which arms sales are conducted in a more considered way—quite the opposite, I anticipate a growing scramble for market share, further weakening of the regulatory architecture, a weakening of oversight and transparency, an increasing militarization of the economic competition over critical defense materiel resources such as rare earth minerals, and all manner of unanticipated consequences that will cause more instability and conflict than they deter.

I fear this world has forgotten the lessons of the World Wars and the Cold War, and lacks both the incentives or the opportunities to build and strengthen arms control regimes—and I think, in closing, and sorry to be grim, that we are most likely going to have to re-learn the lessons of the twentieth century in the twenty-first century in much the same way we learned them last time around, before we are in a place to re-set the board and turn back to a consensus of non-proliferation.

The next speaker was Leila Sadat, the James Carr Professor of International Criminal Law at Washington University St. Louis and Director (2007–2021) of the Whitney R. Harris World Law Institute at Washington University Law School. Castellanos-Jankiewicz observed that if we move from the military domain to the civilian market, the sale and export of small arms has serious impacts across the international human rights spectrum. Sadat herself had noted the adverse impacts of this in an article published in the Harvard Law Review titled “Torture in Our Schools” (2022), which opened with the line “America’s kids are not okay.” Given her expertise, Castellanos-Jankiewicz asked Sadat whether she could talk about the human rights impacts that gun violence had within the United States and beyond. How can international and transnational law or litigation address negative outcomes?

Thank you so much, it is a real honor to be here. Thank you to the city of The Hague, the city of peace and justice, for sponsoring this closing plenary session. I will try to be more optimistic than Josh, but I appreciate his deep concern and engagement. The project I would like to talk about, unlike the majority of my other work, tries to build the human rights “peace muscle” from the ground up, using the tools of international law. Instead of going from the top down—from global interstate relations and the tendency to re-arm—this project focuses upon building domestic respect for human rights through national legal systems, combined with transnational legal processes.

This project started after yet another mass shooting in the United States, the Pulse Nightclub shooting, in which a gunman shot and killed forty-nine people and wounded fifty-three more. I wondered why the media was just talking about the Second Amendment and whether the state had any right to rein in this kind of mass violence. Yet, a whole additional set of human rights were being completely ignored: the right to life; the right to culture; the right to attend school (safely); the right to be free from violence; and the right to liberty and security. My thought was, as we are losing Second Amendment cases in courts, let us talk about human rights, let us talk about how that could change the conversation.

Zeid Al Hussein, then High Commissioner for Human Rights, asked: “how long will it take, how many more mass shootings, how much more political violence?” I was asked to keynote a talk at Boston University recently called “The Normalized Tragedy: Gun Violence in the United States.” If the only tool you have is a hammer, every problem looks like a nail. If your reflex is to go for arms, to violence, to guns, to the Second Amendment, it is really hard to get out of that cycle of thinking. My project on human rights and gun violence is really about breaking out of that cycle of thinking.

The violence that the United States exports is also afflicting Americans domestically. We have upwards of 43,000 gun deaths per year; we have the weakest gun laws and the most guns in the world; we average a mass shooting every day. Gun violence disproportionately affects women, it affects children, it affects racial minorities. Domestic abusers are five times more likely to kill their partners if they have gun access. The risk of suicide being successful is much higher if the person has a gun. Suicides represent the majority of gun deaths in the United States. It is unsurprising that Josh Paul is seeing these negative impacts flowing across our border, because inside our border we have terrible gun violence. Nearly 8,000 children are shot every year.

States have obligations under human rights treaties to protect the human rights that are guaranteed by those treaties, including the right to life, or, as Jonathan Lowy calls it, the “right to live.” All of these rights are the government’s responsibility to ensure and protect, to all within its jurisdiction. What Eleanor Hammarskjold said yesterday, about the difference between validity and compliance, is very important. These treaties are treaties signed by the United States of America. They are valid international legal instruments, binding on the United States, including all three branches of government, through Article VI of the Supremacy Clause.

Can you fix a gun violence problem? Or do we just have to live with it? My answer is that it is fixable, and that living with this level of violence is not normal. The United States has easily tackled other things. The World Health Organization said it is completely preventable. Unfortunately, the political climate in the United States has impeded progress to date, but that political climate has been changing. I want to give you a tiny bit of hope, not because the Trump administration is going to support new gun safety laws, but because I do think that we have seen a shift in the United States, and that is something that was the goal of the project that I started in 2017, particularly as we did not get the change that we hoped for from the Biden administration.

Let us look at the transnational legal process. Through a grant from the Joyce Foundation we looked at the possibility of litigation in U.S. courts. It is hard to use human rights law inside the United States, but there is the possibility of alien tort liability, State Constitutional provisions, filing amicus briefs, and the transnational tort litigation that León Castellanos-Jankiewicz just talked about. To create a litigation strategy inside the United States, you have to find a place or a federal court in which you can find a less restrictive view of the Second Amendment, a positive view of international human rights, and sympathetic factual or legal elements. Some litigators have picked up our work to look at what federal circuits might be receptive to these kinds of arguments. Many state constitutions include a right to life, unlike the federal Constitution. We found that there are states that balance the right to life against their Second Amendment equivalent and conclude that reasonable gun safety laws can be constitutionally enforced.

Can international law and institutions be helpful? Of course they can. I have already talked about some of the rights that are implicated—bodily integrity, security of person, health, freedom from torture and ill-treatment, special protection for children—all of these rights are protected by human rights treaties, and the United States has ratified a fair number of them. Among these are the Convention Against Torture, the World Health Organization Constitution—although the Trump administration is denouncing that—the ICCPR, CERD, the OAS and the Charter of the United Nations. Then, there are other treaties that the United States may have signed but not ratified, the provisions of which may be evidence of customary international law, important in U.S. courts because of the Alien Tort Statute. There is a robust global framework for the enforcement of human rights—including the UN Treaty Bodies and the Human Rights Council.

Changing the conversation is not easy. It is no accident that one of the first institutions the Trump administration endeavored to eliminate was the United States Institute of Peace. Yet, you have to build these muscles, you have to build these frameworks. The Organization of American States has asked the United States to take cognizance of gun violence. All administrations, Democratic and Republican alike, have been impervious, but the conversation has changed. We asked for, and received, a hearing at the Inter-American Court of Human Rights, on the Regulation of Gun Sales and a Thematic Hearing on “Gun Violence in the United States.” In a very exciting development, there is also the transnational litigation that León and I have written about, Mexico v. Smith & Wesson, where Mexico argued that U.S. gun manufacturers are responsible for negligently, and through market manipulation, directing their weapons into the Mexican gun cartels. The litigation is beautifully done, beautifully argued, and a very powerful way to use transnational legal process, even though it ultimately ran up against immunity provisions for gun manufacturers in federal legislation. One of the Parkland shooting victims took their case to the Inter-American Commission on Human Rights with Global Action on Gun Violence, an offshoot of Jonathan Lowy’s work.

To address gun violence in the United States we have made submissions during the Universal Periodic Review (UPR) process in the UN Human Rights Council and to the Human Rights Committee. The UN Programme of Action on Small Arms and its international tracing instrument is another entity that tries to prevent and combat the illicit trade in small arms. The Center for American Progress has been fantastic on those issues. We are not the only country facing these issues: Germany and Thailand are also engaging in the transnational export of firearms in ways that are being used by civilians to great harm. What I like about transnational legal process is that we look to our allies overseas, including Mexico, or the Asser Institute, to build some muscle into these transnational litigation opportunities.

In terms of take-aways, there are several. We need to continue pursuing individual actions in the United States, in the Inter-American system, focus on the UPR, explore possible interstate complaints under the ICCPR through Article 41, invoking U.S. violations of treaty obligations. We could have used the WHO Constitution, although we might not be able to do that in a year. I look at this as a problem to be taken on and solved, not as an invitation to inaction.

We are trying to change the way that people think. When I started this project, this was considered a crazy idea. Now there are conferences, Amnesty International has taken it on, Jonathan Lowy has started Global Action on Gun Violence, Mexico is bringing its litigation. You have to start by saying that it is not acceptable to live in a world with this kind of violence, whether it is on the global scale—where states are re-arming—or whether it is in your own country. I take encouragement from the possibility of social learning, that societies can evolve, supported by social science literature. We no longer use “gun control” in the United States, but “gun safety laws.” Parents bringing lawsuits for school shootings are being successful, we see transnational tort claims, and, since 2017, we are no longer just talking about the Second Amendment. The United States Supreme Court just took the side that that regulation was constitutional in the Rahimi case.

We also need additional research. We got a $50,000 grant today. Even in these times we can continue to do research. I have collaborated with the School of Public Health, with Emergency Medicine and with the School of Social Work at my University to create a new center on gun violence that will engage in additional research and propose solutions. It is also important to just keep doing the work and to have faith. Philip Alpers, who was instrumental in helping Australia address its gun violence crisis, came to our first conference and said that “the gun is to violence as the mosquito is to malaria. Break the chain of causation and the disease begins to retreat.” This resonated with me, for when I worked at the ICC, one of the assistants had this a sign on her bulletin board, an African proverb, “if you feel like you’re too small to make a difference, you’ve never spent the night with a mosquito.” Each action, no matter how small, matters. I will end there, and thank you so much for the opportunity to be here.

Castellanos-Jankiewicz then turned to the next speaker Lana Baydas, Program Director at the American Bar Association Center for Human Rights, where she led the Center’s Proxy Warfare Project. Castellanos-Jankiewicz recalled that Baydas had been working from the American Bar Association on defense industry human rights due diligence guidance, which had recently issued a landmark report on this topic. In her experience, what were the risks that defense exporters had to contend with in relation to the misuse of their products? And what were the elements that a comprehensive human rights due diligence policy should have in this risk environment?

Thank you, León, the Asser Institute for International and European Law, and the City of The Hague, for the kind invitation. It is a genuine honor to participate in this timely and important conversation. I am grateful for the opportunity to contribute to a discussion that engages critically with the responsibilities of the defense sector in the context of human rights due diligence.

The defense sector is intrinsically characterized by elevated risk profiles—both in terms of operational exposure and the ethical implications of its activities. This risk is not theoretical. The recent report issued by the Office of the United Nations High Commissioner for Human Rights (OHCHR) underscores the profound and well-documented adverse impacts that the arms trade can have on human rights, particularly in contexts of armed conflict and authoritarian governance.Footnote ¹

Despite the increasing visibility of these risks, stakeholders in the defense sector frequently assert that the United Nations Guiding Principles on Business and Human Rights (UNGPs) are ill-suited to the realities of their operations. The common refrain is that the sector’s “exceptionalism”—defined by its strategic role in national security and its deeply embedded relationship with state institutions—places it beyond the reach of standard corporate accountability frameworks. Rather than adopting the UNGPs as a normative baseline, industry actors often rely on national arms export control regimes to demonstrate compliance with ethical and legal standards.

However, this position is increasingly difficult to sustain. As emphasized in guidance issued by the American Bar Association, state regulatory oversight—while necessary—is not a substitute for corporate human rights due diligence.Footnote ² The fact that a state has authorized an arms transfer does not absolve a company of its independent responsibility to assess and address human rights risks, as articulated in the UNGPs. Regulatory licensing mechanisms tend to focus on narrow legal compliance and often lack the granularity, continuity, and scope of robust human rights due diligence (HRDD) processes. As such, they do not shield defense companies from the mounting legal, financial, and reputational liabilities they may face in a global environment increasingly attentive to corporate conduct in conflict-affected and high-risk areas.

To your question, León, I will now briefly outline the nature and implications of these risks: