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S. 3233: Nicaragua Human Rights and Anticorruption Act of 2018

The text of the bill below is as of Oct 3, 2018 (Reported by Senate Committee).


II

Calendar No. 617

115th CONGRESS

2d Session

S. 3233

IN THE SENATE OF THE UNITED STATES

July 18, 2018

(for himself, Mr. Cruz, Mr. Nelson, Mr. Rubio, Mr. Durbin, Mr. Perdue, Mr. Leahy, Mr. Kaine, Mr. Cardin, Mr. Cotton, Mr. Cornyn, Mr. Cassidy, Mr. Coons, and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations

October 3 (legislative day, September 28), 2018

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To impose sanctions with respect to persons responsible for violence and human rights abuses in Nicaragua, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Nicaragua Human Rights and Anticorruption Act of 2018.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Sense of Congress on advancing a negotiated solution to Nicaragua's crisis.

Sec. 4. Imposition of sanctions with respect to persons responsible for human rights violations and corruption in Nicaragua.

Sec. 5. Certification and waiver.

Sec. 6. Report on human rights violations and corruption in Nicaragua.

Sec. 7. Definitions.

2.

Findings

Congress makes the following findings:

(1)

On April 19, 2018, protests began in Managua, Nicaragua, as a result of changes made to the social security system by the Government of Nicaragua that would have raised workers’ contributions and cut retirees’ pensions.

(2)

The Government of Nicaragua has responded to antigovernment protests with excessive force and killings perpetrated by its public security forces and, as of July 17, 2018, more than 273 people have been killed in the context of those protests, according to the Inter-American Commission on Human Rights of the Organization of American States.

(3)

On May 21, 2018, the Inter-American Commission on Human Rights issued a statement that described the excessive use of force by Nicaraguan security forces and armed irregular groups that resulted in dozens of persons killed and hundreds wounded; illegal and arbitrary detentions; practices of torture, cruel, inhuman and degrading treatment; censorship and attacks on the press; and other forms of intimidation.

(4)

On May 29, 2018, Amnesty International released a report entitled Shoot to Kill: Nicaragua’s Strategy to Repress Protest, which documented the lethal use of weapons, specifically noting that gunshots fired by pro-government groups targeted specific individuals.

(5)

Transparency International's 2017 Corruption Perceptions Index ranks Nicaragua as tied for 151 of 180, the third worst ranking for a country in the Western Hemisphere, after Venezuela and Haiti.

(6)

The Country Reports on Human Rights Practices for 2017 of the Department of State notes, with respect to Nicaragua, that actions by the ruling Sandinista National Liberation Front party have resulted in the de facto concentration of power in a single party, with an authoritarian executive branch exercising significant control over the legislative, judicial, and electoral functions of the Government of Nicaragua.

(7)

The 2017 report of the Department of State also stated with respect to Nicaragua that the most significant human rights abuses included reports of arbitrary or unlawful killings; almost complete lack of judicial independence; unlawful interference with privacy; multiple obstacles to freedom of speech and the press, including government intimidation, and harassment of and threats against journalists and independent media; and partisan restrictions on freedom of peaceful assembly.

(8)

On July 5, 2018, pursuant to the Global Magnitsky Human Rights Accountability Act (subtitle F of title XII of Public Law 114–328; 22 U.S.C. 2656 note), the United States Government sanctioned 3 individuals from Nicaragua who have been involved in serious human rights abuses or engaged in corruption, including—

(A)

Francisco Javier Diaz, Commissioner of the National Police of Nicaragua;

(B)

Jose Francisco Lopez, Vice President of ALBANISA; and

(C)

Fidel Antonio Moreno, a member of the Sandinista National Liberation Front party.

3.

Sense of Congress on advancing a negotiated solution to Nicaragua's crisis

It is the sense of Congress that—

(1)

credible negotiations between the Government of Nicaragua and representatives of the Catholic Church, civil society, student movement, private sector, and political opposition in Nicaragua represent the best opportunity to reach a peaceful solution to the crisis in Nicaragua that includes—

(A)

a commitment to hold early elections that meet democratic standards and permit credible international electoral observation;

(B)

the cessation of the violence perpetrated against civilians by the National Police of Nicaragua and by armed groups supported by the Government of Nicaragua; and

(C)

independent investigations into the killings of more than 273 protesters; and

(2)

negotiations between the Government of Nicaragua and representatives of the Catholic Church, civil society, student movement, private sector, and political opposition in Nicaragua have not resulted in an agreement as of the date of the enactment of this Act because the Government of Nicaragua failed to credibly participate in the process.

4.

Imposition of sanctions with respect to persons responsible for human rights violations and corruption in Nicaragua

(a)

In general

The President shall impose the sanctions described in subsection (b) with respect to any foreign person, including any current or former official of the Government of Nicaragua or any person acting on behalf of that Government, that the President determines—

(1)

has perpetrated, or is responsible for ordering or otherwise directing, significant acts of violence or human rights violations in Nicaragua against persons associated with the protests in Nicaragua that began on April 18, 2018;

(2)

is responsible for or complicit in ordering, controlling, or otherwise directing significant actions or policies that undermine democratic processes or institutions in Nicaragua; or

(3)

is an official of the Government of Nicaragua, or a senior associate of such an official, that is responsible for or complicit in ordering, controlling, or otherwise directing acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts, bribery, or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions.

(b)

Sanctions described

(1)

In general

The sanctions described in this subsection are the following:

(A)

Asset blocking

The exercise of all powers granted to the President by the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) to the extent necessary to block and prohibit all transactions in all property and interests in property of a person determined by the President to be subject to subsection (a) if such property and interests in property are in the United States, come within the United States, or are or come within the possession or control of a United States person.

(B)

Exclusion from the United States and revocation of visa or other documentation

In the case of an alien determined by the President to be subject to subsection (a), denial of a visa to, and exclusion from the United States of, the alien, and revocation in accordance with section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)), of any visa or other documentation of the alien.

(2)

Penalties

A person that violates, attempts to violate, conspires to violate, or causes a violation of paragraph (1)(A) or any regulation, license, or order issued to carry out paragraph (1)(A) shall be subject to the penalties set forth in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent as a person that commits an unlawful act described in subsection (a) of that section.

(3)

Exception relating to importation of goods

The requirement to block and prohibit all transactions in all property and interests in property under paragraph (1)(A) shall not include the authority to impose sanctions on the importation of goods (as that term is defined in section 16 of the Export Administration Act of 1979 (50 U.S.C. 4618) (as continued in effect pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.))).

(4)

Exception to comply with United Nations Headquarters Agreement

Sanctions under paragraph (1)(B) shall not apply to an alien if admitting the alien into the United States is necessary to permit the United States to comply with the Agreement regarding the Headquarters of the United Nations, signed at Lake Success June 26, 1947, and entered into force November 21, 1947, between the United Nations and the United States, or other applicable international obligations.

(c)

Regulatory authority

The President shall issue such regulations, licenses, and orders as are necessary to carry out this section.

(d)

Termination

This section shall terminate on December 31, 2021.

5.

Certification and waiver

(a)

Certification

Not later than 180 days after the date of the enactment of this Act, and annually thereafter until December 31, 2021, the Secretary of State shall submit to the appropriate congressional committees a report certifying whether the Government of Nicaragua is taking effective steps—

(1)

to strengthen the rule of law and democratic governance, including the independence of the judicial system and electoral council;

(2)

to combat corruption, including by investigating and prosecuting officials of that Government who are credibly alleged to be corrupt; and

(3)

to protect the right of political opposition parties, journalists, trade unionists, human rights defenders, and other civil society activists to operate without interference.

(b)

Waiver

(1)

Temporary general waiver

If the Secretary of State certifies to the appropriate congressional committees under subsection (a) that the Government of Nicaragua is taking effective steps as described in that subsection, the President may waive the imposition of additional sanctions under section 4 for a period of not more than one year beginning on the date of the certification.

(2)

Case-by-case waiver

The President may waive the application of sanctions under section 4 with respect to a person if the President—

(A)

determines that such a waiver is in the national interest of the United States; and

(B)

not later than the date on which the waiver takes effect, submits to the appropriate congressional committees a notice of and justification for the waiver.

(c)

Sense of Congress

It is the sense of Congress that the President should exercise the waiver authority provided under subsection (b)(1) if the Secretary of State certifies under subsection (a) that the Government of Nicaragua is taking effective steps as described in that subsection.

6.

Report on human rights violations and corruption in Nicaragua

(a)

In general

Not later than 180 days after the date of the enactment of this Act, and annually thereafter until December 31, 2021, the Secretary of State, acting through the Assistant Secretary of State for Intelligence and Research, and in coordination with the Director of National Intelligence, shall submit to the appropriate congressional committees a report on the involvement of senior officials of the Government of Nicaragua, including members of the Supreme Electoral Council, the National Assembly, and the judicial system, in human rights violations and acts of significant corruption.

(b)

Elements

The report required by subsection (a) shall include, to the extent feasible, the following:

(1)

For each senior official described in that subsection—

(A)

the estimated total amount of funds or other assets held in accounts at United States financial institutions or foreign financial institutions that are under the direct or indirect control of the senior official;

(B)

a description of such funds or assets;

(C)

an identification of any equity interest held by the senior official—

(i)

in an entity on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury; or

(ii)

in any other entity subject to sanctions imposed by the United States;

(D)

a description of how the senior official acquired such funds, assets, or equity interests; and

(E)

a description of how such funds, assets, or equity interests have been used.

(2)

A description of any new methods used by senior officials described in subsection (a) to evade anti-money laundering and related laws, including recommendations to improve techniques to combat the illicit use of the United States financial system by such senior officials.

(c)

Form

The report required by subsection (a) shall be submitted in unclassified form but may include a classified annex.

(d)

Public availability

The unclassified portion of the report required by subsection (a) shall be posted on a publicly available website of the Department of State.

7.

Definitions

In this Act:

(1)

Appropriate congressional committees

The term appropriate congressional committees means—

(A)

the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Appropriations of the Senate; and

(B)

the Committee on Foreign Affairs, the Committee on Financial Services, and the Committee on Appropriations of the House of Representatives.

(2)

United States person

The term United States person means—

(A)

a United States citizen or an alien lawfully admitted for permanent residence to the United States; or

(B)

an entity organized under the laws of the United States or of any jurisdiction within the United States, including a foreign branch of such an entity.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Nicaragua Human Rights and Anticorruption Act of 2018.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Sense of Congress on advancing a negotiated solution to Nicaragua's crisis.

Sec. 3. Statement of policy.

Sec. 4. Restrictions on international financial institutions relating to Nicaragua.

Sec. 5. Imposition of targeted sanctions with respect to Nicaragua.

Sec. 6. Annual certification and waiver.

Sec. 7. Report on human rights violations and corruption in Nicaragua.

Sec. 8. Civil society engagement strategy.

Sec. 9. Reform of Western Hemisphere Drug Policy Commission.

Sec. 10. Termination.

Sec. 11. Definitions.

2.

Sense of Congress on advancing a negotiated solution to Nicaragua's crisis

It is the sense of Congress that—

(1)

credible negotiations between the Government of Nicaragua and representatives of Nicaragua’s civil society, student movement, private sector, and political opposition, mediated by the Catholic Church in Nicaragua, represent the best opportunity to reach a peaceful solution to the current political crisis that includes—

(A)

a commitment to hold early elections that meet democratic standards and permit credible international electoral observation;

(B)

the cessation of the violence perpetrated against civilians by the National Police of Nicaragua and by armed groups supported by the Government of Nicaragua; and

(C)

independent investigations into the killings of more than 277 protesters; and

(2)

negotiations between the Government of Nicaragua and representatives of Nicaragua’s civil society, student movement, private sector, and political opposition, mediated by the Catholic Church in Nicaragua, have not resulted in an agreement as of the date of the enactment of this Act because the Government of Nicaragua has failed to credibly participate in the process.

3.

Statement of policy

It is the policy of the United States to support—

(1)

the rule of law and an independent judiciary and electoral council in Nicaragua;

(2)

democratic governance in Nicaragua;

(3)

free and fair elections overseen by credible domestic and international observers in Nicaragua; and

(4)

anti-corruption and transparency efforts in Nicaragua.

4.

Restrictions on international financial institutions relating to Nicaragua

(a)

Restrictions

The Secretary of the Treasury shall—

(1)

instruct the United States Executive Director at each international financial institution of the World Bank Group to use the voice, vote, and influence of the United States to oppose the extension by the International Finance Corporation of any loan or financial or technical assistance to the Government of Nicaragua or to any entity for a project in Nicaragua;

(2)

instruct the United States Executive Director of the Inter-American Development Bank to use the voice, vote, and influence of the United States to oppose the extension by the Bank of any loan or financial or technical assistance to the Government of Nicaragua or to any entity for a project in Nicaragua; and

(3)

instruct the United States Executive Director of each other international financial institution, including the International Monetary Fund, to work with other key donor countries to develop a coherent policy approach to future engagements with and lending to the Government of Nicaragua, in a manner that will advance human rights, including the full restoration of the rights guaranteed to the people of Nicaragua through the commitments made by the Government of Nicaragua as a signatory of the International Covenant on Civil and Political Rights.

(b)

Exceptions for basic human needs and democracy promotion

The restrictions under paragraphs (1) and (2) of subsection (a) shall not apply with respect to any loan or financial or technical assistance provided to address basic human needs or to promote democracy in Nicaragua.

(c)

Briefing by the secretary of the treasury

Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Secretary of the Treasury shall brief the appropriate congressional committees on the effectiveness of international financial institutions in enforcing applicable program safeguards in Nicaragua.

5.

Imposition of targeted sanctions with respect to Nicaragua

(a)

In general

The President shall impose the sanctions described in subsection (c) with respect to any foreign person, including any current or former official of the Government of Nicaragua or any person acting on behalf of that Government, that the President determines—

(1)

to be responsible for or complicit in, or responsible for ordering, controlling, or otherwise directing, or to have knowingly participated in, directly or indirectly, any activity described in subsection (b);

(2)

to be a leader of—

(A)

an entity that has, or whose members have, engaged in any activity described in subsection (b); or

(B)

an entity whose property and interests in property are blocked under subsection (c)(1)(A) as a result of activities related to the tenure of the leader;

(3)

to have knowingly materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of—

(A)

an activity described in subsection (b); or

(B)

a person whose property and interests in property are blocked under subsection (c)(1)(A); or

(4)

to be owned or controlled by, or to have knowingly acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked under subsection (c)(1)(A).

(b)

Activities described

An activity described in this subsection is any of the following in or in relation to Nicaragua on or after April 18, 2018:

(1)

Significant acts of violence or conduct that constitutes an abuse or violation of human rights against persons associated with the protests in Nicaragua that began on April 18, 2018.

(2)

Significant actions or policies that undermine democratic processes or institutions.

(3)

Acts of significant corruption by or on behalf of the Government of Nicaragua or a current or former official of the Government of Nicaragua, including—

(A)

the expropriation of private or public assets for personal gain or political purposes;

(B)

corruption related to government contracts;

(C)

bribery; or

(D)

the facilitation or transfer of the proceeds of corruption.

(4)

The arrest or prosecution of a person, including an individual or media outlet disseminating information to the public, primarily because of the legitimate exercise by such person of the freedom of speech, assembly, or the press.

(c)

Sanctions described

(1)

In general

The sanctions described in this subsection are the following:

(A)

Asset blocking

The exercise of all powers granted to the President by the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) to the extent necessary to block and prohibit all transactions in all property and interests in property of a person determined by the President to be subject to subsection (a) if such property and interests in property are in the United States, come within the United States, or are or come within the possession or control of a United States person.

(B)

Exclusion from the United States and revocation of visa or other documentation

In the case of an alien determined by the President to be subject to subsection (a), denial of a visa to, and exclusion from the United States of, the alien, and revocation in accordance with section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)), of any visa or other documentation of the alien.

(2)

Penalties

A person that violates, attempts to violate, conspires to violate, or causes a violation of a measure imposed pursuant to paragraph (1)(A) or any regulation, license, or order issued to carry out paragraph (1)(A) shall be subject to the penalties set forth in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent as a person that commits an unlawful act described in subsection (a) of that section.

(3)

Exception relating to importation of goods

The requirement to block and prohibit all transactions in all property and interests in property under paragraph (1)(A) shall not include the authority to impose sanctions on the importation of goods.

(4)

Exception to comply with United Nations Headquarters Agreement

Sanctions under paragraph (1)(B) shall not apply to an alien if admitting the alien into the United States is necessary to permit the United States to comply with the Agreement regarding the Headquarters of the United Nations, signed at Lake Success June 26, 1947, and entered into force November 21, 1947, between the United Nations and the United States, or other applicable international obligations.

(d)

Implementation; regulatory authority

(1)

Implementation

The President may exercise all authorities provided under sections 203 and 205 of the International Emergency Economic Powers Act (50 U.S.C. 1702 and 1704) to carry out this section.

(2)

Regulatory authority

The President shall issue such regulations, licenses, and orders as are necessary to carry out this section.

6.

Annual certification and waiver

(a)

Certification

Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Secretary of State shall submit to the appropriate congressional committees a report certifying whether the Government of Nicaragua is taking effective steps—

(1)

to strengthen the rule of law and democratic governance, including the independence of the judicial system and electoral council;

(2)

to combat corruption, including by investigating and prosecuting cases of public corruption;

(3)

to protect civil and political rights, including the rights of freedom of the press, speech, and association, for all people of Nicaragua, including political opposition parties, journalists, trade unionists, human rights defenders, indigenous peoples, and other civil society activists;

(4)

to investigate and hold accountable officials of the Government of Nicaragua and other persons responsible for the killings of more than 277 individuals associated with the protests in Nicaragua that began on April 18, 2018; and

(5)

to hold free and fair elections overseen by credible domestic and international observers

(b)

Waiver

(1)

Temporary general waiver

If the Secretary certifies to the appropriate congressional committees under subsection (a) that the Government of Nicaragua is taking effective steps as described in that subsection, the President may waive the application of the restrictions under section 4 and sanctions under section 5 for a period of not more than one year beginning on the date of the certification.

(2)

National interest waiver

The President may waive the application of the restrictions under section 4 and sanctions under section 5 if the President—

(A)

determines that such a waiver is in the national interest of the United States; and

(B)

submits to the appropriate congressional committees a notice of and justification for the waiver.

(3)

Sense of congress

It is the sense of Congress that the President should exercise the waiver authority provided under paragraph (1) if the Secretary of State certifies under subsection (a) that the Government of Nicaragua is taking effective steps as described in that subsection.

(c)

Consultation

In preparing a certification required by subsection (a), the Secretary shall consult with the appropriate congressional committees.

(d)

Annual briefing

The Secretary shall annually brief the appropriate congressional committees on whether the Government of Nicaragua is taking effective steps as described in subsection (a).

7.

Report on human rights violations and corruption in Nicaragua

(a)

In general

Not later than 180 days after the date of the enactment of this Act, the Secretary of State, acting through the Assistant Secretary of State for Intelligence and Research, and in coordination with the Secretary of the Treasury and the Director of National Intelligence, shall submit to the appropriate congressional committees a report on—

(1)

the involvement of senior officials of the Government of Nicaragua, including members of the Supreme Electoral Council, the National Assembly, and the judicial system, in human rights violations, acts of significant corruption, and money laundering; and

(2)

persons that transfer, or facilitate the transfer of, goods or technologies for use in or with respect to Nicaragua, that are used by the Government of Nicaragua to commit serious human rights violations against the people of Nicaragua.

(b)

Form

The report required by subsection (a) may be classified.

8.

Civil society engagement strategy

Not later than 90 days after the date of the enactment of this Act, the President shall brief the appropriate congressional committees on a strategy—

(1)

for engaging relevant elements of civil society in Nicaragua, including independent media, human rights, and anti-corruption organizations, to strengthen rule of law and increase accountability for human rights abuses and corruption in Nicaragua; and

(2)

setting forth measures to support the protection of human rights and anti-corruption advocates in Nicaragua.

9.

Reform of Western Hemisphere Drug Policy Commission

Section 603(f)(1) of the Department of State Authorities Act, Fiscal Year 2017 (Public Law 114–323; 130 Stat. 1938) is amended by striking Not later than 60 days after the date of the enactment of this Act, the Commission shall hold an initial meeting to develop and implement and inserting At the initial meeting of the Commission, the Commission shall develop and implement.

10.

Termination

The provisions of this Act (other than section 9) shall terminate on December 31, 2023.

11.

Definitions

In this Act:

(1)

Appropriate congressional committees

The term appropriate congressional committees means—

(A)

the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Appropriations of the Senate; and

(B)

the Committee on Foreign Affairs, the Committee on Financial Services, and the Committee on Appropriations of the House of Representatives.

(2)

Good

The term good means any article, natural or manmade substance, material, supply or manufactured product, including inspection and test equipment, and excluding technical data.

(3)

Person

The term person means an individual or entity.

(4)

United States person

The term United States person means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including a foreign branch of such an entity), or any person in the United States.

October 3 (legislative day, September 28), 2018

Reported with an amendment