Missing targets: the legal and ethical blind spots of arms manufacturers

By Patrick Wilcken, Researcher, Arms Control, Security Trade and Human Rights

The Saudi Arabia-led coalition is currently deploying billions of dollars’ worth of arms to devastating effect in Yemen. While supplier states are often in the spotlight, what are the roles and responsibilities of the arms giants supplying equipment being used in possible war crimes?

Aftermath of an airstrike on Faj Attan, Yemen, in August 2017 which killed 16 civilians, including five siblings in a single family.

Sifting the rubble

In the early hours of the morning on Friday 25 August 2017, a laser-guided bomb launched by a Saudi Arabia-led coalition jet struck a cluster of houses in Faj Attan, a residential neighbourhood in Yemen’s largest city Sana’a. Inside one of the houses lived a large family of six children, aged between two and 10, and their parents. Only one survivor was pulled from the half-collapsed structures, the five-year-old girl Buthaina.

Captured on camera as she was recovering in hospital, Buthaina was a distressing sight, her face bruised and battered, her eyes swollen shut. When she instinctively prised one eye open with her thumb and forefinger to take a peek at her surroundings, the image went viral, her story becoming a potent symbol of the human suffering wrought by the three-year long Saudi Arabian-led bombing campaign in Yemen. “When you ask her ‘what do you want?’ she says ‘I want to go home’”, her uncle told Amnesty International. “She had five siblings to play with. Now she has none.”

Fragment of bomb retrieved from the Faj Attan strike

Lying in the rubble in the aftermath of the strike was a scrap of metal — a fragment of the bomb that had wiped out Buthaina’s family — which was retrieved by a local photojournalist who sent images on to Amnesty International researchers. The fragment included a clear, if cryptic, set of markings stencilled onto the grey sheet metal: MAU-169L/B EC42; ASSY2252788–1; and NSN 1325–01–524–9697. Amnesty International analysed these sequences of numbers and letters, and through a complex set of steps, cross checking half a dozen different production, military, and government databases, traced the fragment to Tucson, Arizona and a manufacturing plant of the US defence giant Raytheon’s bomb-kit production division.

Since the start of the Saudi-led coalition’s air campaign in March 2015, Amnesty International researchers have visited many sites of air strikes and ground attacks, interviewed witnesses, examined munition remnants and analysed bomb damage. They have documented 36 coalition airstrikes that appear to have violated international humanitarian law (IHL) and have resulted in 513 civilian deaths (including at least 157 children) and 379 civilian injuries — and this is surely just the tip of the iceberg. Other reputable organizations and bodies, such as Human Rights Watch and the UN Panel of Experts on Yemen, have documented many more.

While Huthi and allied forces have also killed and injured civilians in indiscriminate attacks — shelling civilian residential areas in Ta’iz city, firing mortars into populated civilian districts in Hodeidah Governorate and spraying artillery across the border into Saudi Arabia — the bulk of this war’s civilian causalities have come from the Saudi-led coalition’s technological superiority and exclusive domination of the air. In the process, coalition airstrikes have left a trail of material evidence in their wake, including the remains of many Raytheon-manufactured systems.

On 10 September 2016, coalition fighter jets bombed a water drilling rig near Beit Saadan village killing at least 31 civilians and wounding 42 more. The area was remote, with no military value; the strikes continued all morning, killing villagers who had returned to the bombsite to collect the bodies of their relatives. Human Rights Watch researchers subsequently recovered remnants of Raytheon Paveway-series guided missiles — one manufactured more than six months after the war had started — at the site of the attack. The organization’s researchers found further Raytheon remnants in the bombsites of Saudi-led coalition airstrikes which hit two storage hangars (Hodeidah, 6 January 2016); destroyed two homes, injuring a woman and her three-year-old son (26 October 2015, Sana’a); and wrecked a wing of the Sana’a Chamber of Commerce (Sana’a, 5 January, 2016).

In a particularly egregious attack on 15 August 2016, a missile guided by the Paveway system (currently manufactured by both Raytheon and US-headquartered multinational Lockheed Martin) hit a fully functioning Médecins Sans Frontières hospital, in the Abs district of Hajjah governorate, killing 11 people, including an MSF staff member, and injuring 19 others. The coalition later acknowledged that it had carried out the strike, which not only caused avoidable loss of life, but left a vulnerable population bereft of vital healthcare and led to the withdrawal of MSF staff from six other hospitals in northern Yemen.

Raytheon’s Paveway laser guided bomb. According to the manufacturer: “Paveway bombs have been put to the test in every major conflict and proved themselves, time and again, as the weapon of choice by the end-users.”

Raytheon is not alone in supplying air-delivered munitions to the Saudi-led coalition. In July 2015, AmnestyInternational found and photographed the warped casing of an MK 80 series bomb in a public building in Saada, northern Yemen. Dropped by coalition forces, the bomb was manufactured in Sardinia by the Italian firm RWM Italia S.p.A, a subsidiary of the German Arms Manufacturer Rheinmetall AG. A subsequent investigation by NGOs and the New York Times found the remains of RWM Italia munitions in five separate coalition strike locations, including one on 8 October 2016, which killed a husband, his pregnant wife and their four children in the small rural community of Deir al-Hajari in Hodeidah governorate.

Coalition air strikes have hit a variety of non-military targets, pock-marking Yemen’s infrastructure with bomb damage. On 23 September, a coalition jet levelled a ceramics factory in Sana’a; the munition part found in the rubble this time was the remains of a PGM-500 ‘Hakim’ air-launched missile, manufactured by the UK firm Marconi Dynamics. Amnesty International has also verified images of different types of coalition-launched, internationally-banned cluster munitions manufactured in the UK (by the now defunct Bedfordshire company Hunting Engineering Ltd), the USA (by Textron Systems Corporation and Lockheed) and Brazil (by Avibras).

In the most notorious case, in October 2016, at least two 500-pound Paveway laser-guided bombs — currently produced by Lockheed Martin and Raytheon — struck the funeral of a Huthi leader. In spite of, or more probably because of their sophisticated guidance systems, the bombs killed at least 140 civilians and wounded over 500.

Of course bomb fragments are not always recoverable; some are obliterated beyond recognition, others buried under the wreckage of structures they have destroyed. Most strikes in remote rural areas go undocumented.

What is clear is that the Saudi-led coalition has dropped a huge tonnage of Western-manufactured air delivered munitions across Yemen over the last three years. Some bombs have hit military targets, in strikes that might be considered to fall within the “laws of war”. But many others have destroyed infrastructure, hospitals, schools, markets, and houses to no apparent military end, killing and injuring thousands of civilians — and therefore potentially violating international humanitarian law (which applies in armed conflict) and the right to life under international human rights law.

The blame game

Activists, lawyers and some politicians have rightly focused on the responsibility of the US, UK and Italian authorities, along with other supplier state governments, who ultimately sign off on the deals which provide Saudi Arabia and coalition members with tens of thousands of air munitions and the fleet of advanced combat aircraft to deliver them. In the UK, the government has had to fight off a legal challenge to its decision to licence arms for Saudi Arabia in the High Court. The government won on the grounds that the government’s decision was “rational”, given the evidence it had assessed as to the risks of continued supply (much of it provided by the Saudis themselves) — the judgment is now the subject of an appeal. In June 2017, US Senators tried to block the sale by the US government of over half a billion dollars’ worth of precision-guided munitions and related services to Saudi Arabia, but lost an unexpectedly tight vote 47–53.

Elsewhere there has been more success. The newly-formed German coalition government has agreed to suspend future licences for arms for use in the Yemen conflict. Pressure on smaller supplier states — Austria, Finland, Belgium and Greece the Netherlands, Norway, Sweden, — has borne some fruit, succeeding in either halting or restricting arms sales to the Saudi Arabia-led coalition. And the EU Parliament has passed and reaffirmed a (largely symbolic) resolution calling for a suspension of EU member state sales to the Kingdom.

Yet one set of actors in this whole story is often overlooked: the companies — many of them corporate giants — whose factories keep the Saudi Arabia-led coalition armed and their aircraft airborne. These companies typically bid for government tenders and if successful are contracted to supply military materiel to other governments. Proposed military exports are submitted to national government control systems for authorisation (and in some jurisdictions, such as the USA, large deals also require Congressional sign off). Raytheon, for instance, was contracted by the US Department of Defense in December 2017 to provide just over US$300 million worth of precision guided air-to-ground missiles for the Saudi Arabian government. More recently, there have been reports of contracts for a further US$7 billion worth of precision guided munitions for Saudi Arabia in the pipeline, to be awarded to Raytheon and Boeing.

In the case of Saudi Arabia, the involvement of companies such as Raytheon is far deeper than simply supplying equipment. Arms companies provide spare parts, servicing, maintenance and technical support in multi million (and in some cases billion) dollar contracts that can stretch for years. They have thousands of Saudi Arabia-based staff, in many instances working in Saudi Arabian subsidiary companies which are deeply embedded in the country’s military infrastructure. The recently agreed US$300 million deal for precision guided missiles mentioned above, for instance, includes the provision of “component parts/support equipment (spares) and engineering technical assistance for the government of Saudi Arabia”. Most production for this deal will be carried out in the USA, with a third of the work in Raytheon’s Tuscon plant. But significant portions of the work will also be carried out by Raytheon UK in Wales and Scotland — work that will be subject to additional oversight from UK arms licencing authorities.

Arms companies like to hide behind the fact that their equipment and services have had this official sign off, but what are their roles and responsibilities as corporate entities, independent of the governments they serve?

The growing role of corporates in modern warfare

The bombs falling on Yemen provide an unbroken link from destroyed lives, homes, hospitals and factories back through shipping and air cargo routes to anonymous hangars housing manufacturing plant facilities in Europe and the USA. They also link the horrors of war to the trappings of corporations, with their steel and glass headquarters, logos, boards, shareholders, upbeat financial statements and annual reports. But munitions are really just the end-point of the vast, increasingly corporate-run operation which is modern warfare.

In the course of the twentieth century’s world wars and their aftermath, huge state-run military machines did battle across the world — a significant departure from previous practice which often involved states hiring private armies to do their bidding. But as the Cold War wound down, there was a great military unwinding and a fragmentation of the military complex. As the vast state-run armies began downsizing, military establishments came to rely more and more on private contractors to fill in the gaps. Smaller and more unpredictable conflicts in unstable developing countries, coupled with the growing technological sophistication of military systems, opened up space for private operators. In the West (despite some growth in arms production in Russia, China and in certain emerging players, such as South Korea, Brazil and Turkey, most of the biggest arms companies are still headquartered in the West), corporate consolidation in the 1990s left a handful of US and European-based giants — like Raytheon, Lockheed Martin, BAE Systems and Northrop Grumman — as providers of military products and services for governments around the world.

The services provided by these corporate giants have grown and grown, expanding into a range of civilian functions. According to William Hartung’s Prophets of War: Lockheed Martin and the Making of the Military-Industrial Complex, aside from manufacturing Trident nuclear missiles and controversy-plagued F-35 fighter jets, among many other military systems, Lockheed Martin has won billions of dollars’ worth of contracts for non-military services. These include providing everything from surveillance and information processing for the US tax authorities, Census and postal service, to running vast biometric and fingerprint databases for the FBI, police training in Haiti and even human rights monitoring in Darfur. At the same time primarily civilian-focused corporates, such as the management consultancy firm Booz Allen Hamilton, have developed military divisions, winning huge contracts in the Gulf for the provision of military advice and training, as well as setting up and running hi-tech surveillance systems.

As the contracts have grown, so too have the symbiotic relationships between defence giants, governments and their clients. Advisors and advocates for the industry move seamlessly between arms firms and government defence departments on secondments or through revolving door job placements. According to answers given by the UK Government to a freedom of information request, half of those seconded to the UK’s department of International Trade between July 2016 and October 2017 were from the defence industry. The UK’s relationship with BAE systems is particularly tight: aside from sharing staff with the company, the UK government invests in weapons research and development, uses its diplomatic muscle to actively promote the company’s business abroad, and grants many contracts with the company on a non-competitive basis.

Within the international trading system, arms companies are in a category of their own: they are not subject to World Trade Organization’s rules on the conduct of international trade and are partially exempt from the EU’s trade and procurement regulations, allowing governments to favour their own national suppliers. Given all these privileges, and the very large amounts of money involved — sometimes in highly complex and difficult to audit multi-billion dollar deals — it is hardly surprising that the industry has been rife with corruption, and in recent years has been forced to pay out huge settlements across multiple jurisdictions.

Corporate involvement in Saudi Arabia: companies and contractors

In many ways the privatisation of military conflict and all its attendant problems have come in concentrated form to Saudi Arabia — a cash-rich, kingdom with an insatiable appetite for foreign military goods and services, and little meaningful oversight on defence spending. In the 1970s excess petro-dollars poured into military spending. In the early 1980s a Pentagon official told the New York Times the Saudi Arabians “have gorgeous facilities, fully stocked. But let’s face it, they’ll be run by contractors forever.” Thirty five years later, the Kingdom spends only 2% of its military budget on local production, and most complex systems are still run and maintained largely by corporate contractors.

The Saudi Arabian authorities have recently announced the aspiration “to localize 50 percent of total government military spending in the Kingdom by the year 2030”. But this has, for now, just created a new contractor bonanza as foreign companies rush to offer training, technological transfer and joint production opportunities. To reap the benefits of the ‘Saudi Vision 2030’ initiative, in May 2017, Raytheon Saudi Arabia opened a Saudi-based company which is wholly owned by Raytheon, that will “create indigenous products and services” focusing on air defense systems, smart munitions, command, control, communications, computer and intelligence and cybersecurity. This is a worrying trend which might signal the end of (often weak) oversight offered by state-to-state arms control licensing systems; as goods will be locally manufactured, there will be no need for international transfers, thus circumventing legal provisions in the Arms Trade Treaty — the first treaty to set global standards to govern the international trade in conventional arms and munitions.

In the meantime, multinational corporations are playing a significant role in the unfolding conflict in Yemen.

BAE Systems, Boeing and Lockheed-manufactured fighter jets ply the skies over Yemen fuelled by Boeing and Airbus fuel tankers — the so called “gas stations in the sky”. Rolls Royce engines hum inside Eurofighter airframes. Advanced US/European-manufactured electronic systems feedback on every aspect of the aircraft’s trajectory, logging aircraft data management and tracking systems, strike coordinates and missile launches. Controversially, US military aircraft have been involved in mid-air refuelling operations, supplying coalition fighter jets with millions of tons of jet fuel for bombing raids on Yemen, while US military personnel provide targeting assistance to coalition air forces.

Back on the ground teams of private contractors employing both foreign and local staff, perform inspection and maintenance of aircraft engines and hydraulics; check and test avionics; and maintain and in some instances load weapons. For legal reasons, the one role that will always be filled by a Saudi national is the pilot — but they will have been trained to fly the aircraft and deploy weapons by contractors, sometimes on US air bases. Military contractor jobs currently advertised on sites like Linkedin and Glassdoor include everything from “weapons and tactics employment training” to delivering courses on “targeteering and weaponry” to the “design, prototyping, production, testing, training and logistics support in all phases of the weapon system life cycle.”

As a result of this massive military support structure, defence aerospace manufacturers and the staff and services they provide occupy a key role in a conflict which has largely been waged by the coalition from the skies. A single typical airstrike in Yemen carried out by the Royal Saudi Air Force (RSAF) may have resulted from the culmination of thousands of hours and millions of dollars of corporate effort, involving munitions and aircraft production facilities across Europe and the USA as well as support by extensive crews on the ground. That support includes the design and maintenance of jet engine technology, electronic systems, computer interfaces, and training on every aspect of piloting modern combat aircraft.

Within this sector, bomb manufacturers are crucial: without a steady supply of fresh, fully serviced munitions, the Saudi-led campaign would grind to a halt. Indeed by November 2015, after eight months of intense bombardment of Yemen by the Saudi-led coalition, stocks were apparently dwindling. The USA helpfully stepped into the breach, agreeing sales of more than 10,000 air to ground munitions worth up to US$1.29 billion for Saudi Arabia.

The deal included thousands of MK General Purpose bombs fitted with Paveway and Joint Direct Attack Munitions (JDAM) precision guidance kits, manufactured by Raytheon, Lockheed and Boeing. “The fact is that the large demand to provide these weapons rapidly to our partners exceeds US industry’s current capacity,” Heidi Grant, deputy undersecretary of the Air Force, International Affairs told Defense News. “US industry is responding, as it always does, to increase production to meet US defense needs and those of our valued partners. We are working closely with US industry weapons manufacturers to supply these munitions as quickly as possible via FMS [Foreign Military Sales] or commercially as appropriate.”

Arms companies and human rights

Given that Raytheon products are being widely used in a conflict that has resulted in the death and injury of thousands of civilians and destroyed hospitals, schools, markets and houses, one would imagine that the issue of compliance with international human rights and humanitarian law would weigh heavily on company staff, systems and protocols. Yet this aspect of the business is not often mentioned publicly in the context of the sale, transfer and end use of their products. On the rare occasions when the issue is raised, it is quickly dispatched. When Raytheon’s Vice-President of Business Development, John Harris, was asked in a media interview at the Dubai Airshow in November 2017 if he had “pause for concern” about sales of Raytheon products to Yemen, given the thousands of civilians who have died in Saudi air strikes, his answer was definitive: “No, I don’t. Because we do the hard work of making sure that the countries that employ our systems have the very best training and the ability to use the system in an appropriate manner.”

In December 2017, Amnesty International wrote to Raytheon regarding the missile strike on Buthaina’s home. The letter outlined the responsibilities of Raytheon as a company under the United Nations Guiding Principles on Business & Human Rights (UNGPs) — a globally-endorsed standard that sets out the responsibility of companies to respect human rights wherever they operate. At the core of the UNGPs, unanimously endorsed by the UN Human Rights Council in June 2011, is the responsibility of companies to ensure that they do not cause or contribute to “adverse human rights impacts”, independent of any measures taken by states. This includes impacts that the company may contribute to through business activities like the provision of products or services — such as the sale of munitions and supply of related support services to the Kingdom of Saudi Arabia or other coalition members involved in the Yemen conflict. The UNGPs also make clear that “in situations of armed conflict enterprises should respect the standards of international humanitarian law” (Guiding Principle 12).

To meet their responsibility to respect, companies must put in place a due diligence process to identify, prevent, mitigate and account for how they address both their potential and actual human rights impacts (i.e., human rights abuses that the company is at risk of — or actually is — causing or contributing to). The company must then act upon those findings. For example, if a company identifies that it is at risk of contributing to a serious human rights abuse through an activity, and that it cannot prevent or mitigate that abuse, it should not undertake that activity. And, where a company identifies that it has contributed to a human rights abuse, it must provide for or cooperate in their remediation through legitimate processes.

Of course under international human rights law, the State itself has a duty to protect against abuses by non-state actors, including companies. States should adopt legal frameworks which compel business enterprises to put in place due diligence processes to identify, prevent and address their impacts on human rights. Clearly, on the question of arms companies’ involvement in the conflict in Yemen, both the State and the companies involved are failing in their respective duties. The key point is that State failure in no way absolves the companies from their own responsibilities under the UNGPs.

Raytheon: roles and responsibilities

Raytheon is a large multinational that manufactures lethal equipment for use in conflicts. The very nature of its business activities gives rise to a substantial risk that the company could contribute to serious human rights abuses. This is not an abstract risk — Raytheon precision guided missiles are widely used by the Saudi Arabia-led coalition in Yemen, and according to the Office of the High Commissioner for Human Rights (OHCHR), Saudi Arabia-led coalition airstrikes continue to be the leading cause for civilian casualties in the conflict.

Raytheon should therefore have a strong and effective due diligence process in place to identify and address the risks that its products and support services are contributing to violations by Saudi Arabia of international human rights and humanitarian law in Yemen. Under the due diligence framework in the UNGPs, appropriate action would include a series of measures to reduce (or mitigate) this risk, such as monitoring the use of their products, engaging with the Saudi-led coalition to ensure it uses their products responsibly and in compliance with international law, and providing or facilitating remedy (e.g. compensation) in the event that one of their products does contribute to human rights abuses. (This responsibility continues even if the company suspends or discontinues its relationship with Saudi Arabia or other coalition members.)

Crucially, if it is impossible to mitigate the risks posed by the use of their products — as it may well be in Yemen, given the conduct of coalition air forces — then the company should consider ending its commercial relationship and refocusing their business on lower-risk clients, of which there are many.

Amnesty International put a number of questions along these lines to Raytheon: did they monitor the use of their products in Yemen? Were they aware of instances of misuse? What measures have they taken to ensure that their products were not involved in violations of international humanitarian and human rights law? Has Raytheon engaged with the Saudi Arabian authorities about the misuse of Raytheon munitions in indiscriminate attacks in Yemen and what steps has it taken to avoid future unlawful use of its products? And finally: had they considered stopping the supply of its products and support services to the Saudi Arabia-led coalition for use in the conflict in Yemen?

The response we received was short and unrevealing: due to “legal constraints, customer relations issues, and other policy considerations” Raytheon does not comment on “products, customers or operational issues”. The essence of the rest of the letter was that Raytheon’s military exports are subject to the full US Department of Defense licensing process and that “Raytheon’s sales of precision-guided munitions to Saudi Arabia have been and remain in compliance with U.S. law.” This is a standard response of arms companies when challenged about the human rights impact of their products sold to Saudi Arabia. In May 2016, the CEO of the UK arms giant, BAE systems, Sir Roger Carr, told activist shareholders: “We are not here to judge the way that other governments work, we are here to do a job under the rules and regulations we are given.” And on arms to Saudi Arabia: “We will stop doing it when they [the UK government] tell us to stop doing it”.

What is missing from this response is the recognition — now firmly embedded in human rights standards applied to businesses — that the corporation has its own human rights responsibilities over and above its legal obligations under state laws and regulations. These include transparency — a concept at the heart of the UNGPs. In its own literature, Raytheon claims that the company’s “core values” include “transparency” and an ethical approach to its business operations: “Across Raytheon, transparency means holding each other, and ourselves, accountable… that in turn makes ethics a routine practice throughout our organization”.

But Raytheon uses the words “ethics” and “transparency” in the narrowest possible sense, applicable only to internal business processes. Nothing is said about transparency related to the impact of Raytheon products on the wider world, on countries like Yemen, on families like Buthaina’s, or on villagers working on a water rig in the Yemeni desert. On these questions — surely the most urgent and important issues the company faces — Raytheon reverts to a minimalist legalistic response, ducking substantive engagement on the issue.

Despite Amnesty International detailing a specific case in which Raytheon munitions have been connected to a serious violation of international human rights and humanitarian law, at no point in its letter did Raytheon acknowledge this link or make clear that it intends to address this issue as well as other potential human rights risks posed by its links to the conflict in Yemen. In this, Raytheon is following industry norms. Arms companies have invested heavily in rolling out ethical standards over recent years in response to the series of corruption cases that have rocked the industry and led to expensive pay outs. But these policies — even when they explicitly reference human rights — studiously avoid mentioning the impact of products and services, focusing instead on internal business process, for instance, labour practices (eradicating forced or slave labour) and codes of conduct for dealing with clients.

The industry may not be able to hide behind this “business as usual” attitude forever. By failing to meet their responsibility to respect human rights and to do proper human rights due diligence when providing their products or services to abusive governments, Raytheon and other arms companies are exposing themselves to reputational risks, and potential legal liability.

Arms companies under fire

On 17 April 2018, a coalition of human rights organizations from Germany, Italy and Yemen filed a criminal complaint against the managers of RWM Italia S.p.A. and senior officials of Italy’s National Authority for the Export of Armament to the public prosecutor in Rome. The case relates to the Deir al-Hajari strike on 8 October 2016 (see above) which killed six civilians using an RWM manufactured MK 80 series bomb. The argument is that both the company managers and the Italian authorities sent (and continue to send) air launched munitions to coalition members in the full knowledge that they may be used to violate international human rights and humanitarian law. Whatever the outcome of the case, the principle is clear: given the track record of the Saudi-led coalition air forces in the conflict in Yemen, can arms companies really claim they have no responsibility or liability for violations being committed using their products?

This follows on from a similar case related to an Israeli strike in Gaza. On 17 July 2014, an Israeli missile — probably fired from a drone — hit the roof of the Shuheibar family’s house in Gaza City, killing their eight-year-old daughter and their two sons, aged nine and 10. Once more a munition part was recovered from the rubble, a component manufactured by the French company Eurofarad, now called Exxelia Technologies. The family, supported by The Association Contre la Torture (ACAT) and the Paris-based law firm Ancile-avocats, filed a criminal complaint against the company. Their argument ran that, as the company supplied the Israeli army in the full knowledge of the risks that this component might be used to commit a serious violation of human rights, the instant that the missile struck the house Exxelia Technologies became complicit in a war crime, or at a minimum manslaughter. While the criminal complaint has been dismissed, a civil case is now pending.

Yet another complaint, this time against Boeing and Lockheed Martin, was brought in June 2016 by the NGOs European Centre for Democracy and Human Rights (ECDHR), Defenders for Medical Impartiality, and the Arabian Rights Watch Association before the Organisation for Economic Co-operation and Development (OECD) — a 35 member intergovernmental economic organization. The argument in ECDHR et al vs Boeing & Lockheed Martin was that by supplying arms to Saudi Arabia for use in Yemen, the companies were in breach of The OECD Guidelines for Multinational Enterprises — a similar set of principles to the UNGPs. Both their complaint, and the reasons for its rejection by the US National Contact Point (NCP) for the OECD Guidelines — a body which oversees complaints made against US-based companies — cut to the very heart of this whole issue.

For ECDHR and others, Boeing and Lockheed Martin were in breach of the OECD Guidelines because they failed to carry out human rights due diligence regarding the sale of their products to Saudi Arabia, and failed to take appropriate steps to ensure that their products did not cause or contribute to human rights abuses in Yemen. The US NCP rejected the complaint on the grounds that the companies’ conduct was “inextricably intertwined” with the practices of Saudi Arabia and the USA through the licencing process. As the NCP is not designed to assess state practice, it could not consider the case. The conclusion is not just troubling but profoundly flawed. In the case of the Yemen conflict, it is the very links between state and corporation that are subverting the companies’ due diligence processes; and through this Faustian bargain, defence company CEOs are effectively outsourcing their responsibilities, washing their hands of the devastation caused by their products and services.

No logo

Corporate actors are usually keen to trumpet their successes, but there is a marked reticence by the companies central to the Yemen conflict to champion their not insignificant achievements: the building, servicing, maintaining, equipping and arming of a fleet of powerful modern fighter jets, which for more than a thousand days has criss-crossed Yemen, conducting over 15,000 air attacks on cities, major towns and remote areas. If all the companies involved in the current conflict were to fully promote their activities, the battlefield would resemble a Formula One circuit, with a mass of colourful corporate logos competing for attention. Instead there are anonymous military equipment and facilities, and minimal references to the precise nature of operations in company literature.

There are definitely no crimson Raytheon logos on the side of its precision guided bombs, only a string of letters and numbers unintelligible to all but arms specialists piecing together information spread across a number of opaque industry databases. No company would want to associate its brand with images of a little child with a face that is so badly bruised and swollen that she has to force her eye open with her fingers, a child whose entire family has just been killed by the explosives packed into the warhead of one of the company’s signature products. And in this instance the product, even if it was misdirected, in no way malfunctioned, but behaved in exactly that way it was designed to. “Brand and perception go together,” Raytheon Chairman and CEO Thomas A. Kennedy told the International Forum on Business Ethical Conduct for the Defence and Aerospace Industry in December 2015. Or in this case, must be kept well apart.

In an era of increasing corporate involvement in every facet of modern warfare, it is time for arms companies like Raytheon to stop hiding behind flawed government licensing processes and defence agreements and face up to their own responsibilities squarely, as key players in their own right. Those responsibilities hold across the company’s complete value chain, irrespective of national laws and regulations, regardless of decisions made by state bureaucrats.

One could argue that for a variety of reasons, including the sometimes murky geopolitical alliances that statecraft can demand, these bureaucrats are poorly placed to make objective decisions on the risks of supplying arms and military assistance to a country like Saudi Arabia. Indeed the decisions made by different Western states on this question vary so greatly — from complete embargo to full-scale support with every gradation in between — that faith in objective state decision-making seems misplaced.

Last year, business was brisk for Raytheon’s bomb division. Sales rose from just over US$7 billion in 2016 to around US$7.8 billion in 2017, driven in part by higher net sales of Paveway laser-guided bombs. This is good news for shareholders, but what guarantees can Raytheon really give that these profits have not come at the expense of avoidable human suffering? Can the company, hand on heart, really claim that they have taken all feasible measures to prevent and mitigate the risk of their products being used in further catastrophic air strikes? If not, how can Raytheon be sure that one of its guided bombs is not at this very moment heading towards another household in a densely populated residential neighbourhood, somewhere in Yemen?