IN THE SENATE OF THE UNITED STATES
March 25, 2019
Mr. Cardin (for himself, Mr. Durbin, Mr. Wyden, and Mr. Markey) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations
To require human rights certifications for arms sales, and for other purposes.
This Act may be cited as the
Enhancing Human Rights Protections in Arms Sales Act of 2019.
Sense of Congress
It is the sense of Congress that—
the advancement of human rights is critically important to the security, stability, peace, and prosperity of United States allies and partners, and the United States Government should promote the increased observance of internationally recognized human rights globally;
as the world’s oldest democracy and the largest arms exporter, the human rights standards that the United States sets on arms transfers has global ramifications, influencing standards set by other nations around the world;
global arms transfers continue to flow into conflict zones and countries rife with internal repression at an alarming rate;
the United States Government has the ability to determine whether United States arms transfers are used to commit gross violations of human rights and other violations of United States law;
Congress took strong action to prohibit, in the Foreign Assistance Act of 1961 (U.S.C. 2151 et seq.), sales of defense articles or services to any country whose government engages in a consistent pattern of gross violations of internationally recognized human rights; and
Congress should take further action to ensure that arms transfers—
are not used to commit or facilitate violations of internationally recognized human rights or violations of international humanitarian law in conflict zones; and
are provided only to countries that are demonstrably improving their efforts to protect the human rights and freedoms of their citizens and to promote participation and accountability in governance.
Human rights certification requirements for arms sales
Section 36 of the Arms Export Control Act (22 U.S.C. 2776) is amended by adding at the end the following new subsection:
Any certification relating to a proposed sale or export under this section of defense articles or defense services designated under Category III, IV, VII, or VIII on the United States Munitions List pursuant to section 38(a)(1) to a foreign country shall include a certification by the Secretary of State that—
during the fiscal year in which assistance is to be furnished or military equipment or technology is to be sold or transferred, the defense articles or defense services will not be used in hostilities in which the United States has credible information, including from credible nongovernmental investigations, that war crimes, crimes against humanity, gross violations of internationally recognized human rights, or atrocities have been committed by the government of the recipient country;
during the current fiscal year in which assistance is to be furnished or military equipment or technology is to be sold or transferred, and during the preceding three fiscal years, the government of the foreign country—
has not ordered or directed ethnic cleansing of civilians;
has not recruited and used child soldiers;
has not tortured, falsely imprisoned, or engaged in the targeted killing of political opponents, human rights defenders, or journalists;
has not operated or had effective control or direction over secret detention facilities;
has not engaged, through military, paramilitary, security, or police forces over which the government exercises effective control, in extrajudicial killings;
has not diverted, transferred, lost, or given United States weapons to third parties; and
has made significant and demonstrable efforts domestically to—
ensure the protection of internationally recognized human rights and freedoms, including the rights of women, religious, ethnic, and other minorities, and freedoms of press, expression, and assembly in the foreign country;
denounce extremist ideologies and doctrines;
prevent and ensure accountability for significant acts of corruption; and
promote transparent and inclusive governance; and
in any conflict in which the recipient government of the foreign country engages, that government will—
facilitate unfettered civilian access to humanitarian relief and commercial goods;
support, in statements and actions, diplomatic and political resolution of the conflict; and
make significant and demonstrable efforts to—
ensure command and control of such weapons to prevent proliferation to non-state actors and proxies; and
track, prevent, and publicly investigate civilian causalities.
For three years following the provision of the assistance, or sale or transfer of the military equipment or technology as described in paragraph (1), the Secretary of State shall provide to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives notice of any violation described in subparagraphs (A) though (C) of paragraph (1) within 60 days of receiving credible information about the violation.
The certification requirement under paragraph (1) does not apply to ground-based missile defense systems.
The President may waive the certification requirement under paragraph (1) not earlier than 30 legislative days after the Secretary of State, in coordination with the Secretary of Defense, submits to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives an unclassified certification, which may include a classified annex, stating that the waiver is in the national security interest of the United States, including a report detailing—
the status of recipient government efforts relating to each required certification described in subparagraphs (A) through (C) of such paragraph for which a waiver is necessary; and
relevant information received by the Department of State and the Department of Defense from credible human rights organizations and intergovernmental human rights monitoring bodies relating to each such waived certification.
The President may not waive the certification requirement under paragraph (1) if Congress, within the 30-legislative-day period referred to in subparagraph (A), enacts a joint resolution prohibiting the proposed sale or export. Any such joint resolution shall be considered in accordance with the procedures set forth in section 36(b)(2).
Strategy on enhancing human rights considerations in United States military assistance and arms transfers
Not later than 180 days after the date of the enactment of this Act, the Secretary of State, with the concurrence of the Secretary of Defense, shall submit to the appropriate congressional committees a strategy to enhance United States efforts to ensure human rights protections for United States military assistance and arms transfers. The strategy shall include processes and procedures to—
determine when United States military assistance and arms transfers are used to commit gross violations of internationally recognized human rights;
determine when United States military assistance and arms transfers are used to undermine international peace and security or contribute to gross violations of internationally recognized human rights, including acts of gender-based violence and acts of violence against children, violations of international humanitarian law, terrorism, mass atrocities, or transnational organized crime;
detect other violations of United States law concerning United States military or security assistance, cooperation, and arms transfers, including the diversion of such assistance or the use of such assistance by security force or police units credibly implicated in gross violations of internationally recognized human rights;
train partner militaries, security, and police forces on methods for preventing civilian causalities; and
determine whether individuals or units that have received United States military, security, or police training or have participated or are scheduled to participate in joint exercises with United States forces have later been credibly implicated in gross violations of internationally recognized human rights.
Appropriate congressional committees defined
In this section, the term appropriate congressional committees means the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.
End use monitoring of misuse of arms in human rights abuses
Section 40A(a)(2)(B) of the Arms Export Control Act (22 U.S.C. 2785(a)(2)(B)) is amended—
in clause (i), by striking
and at the end;
in clause (ii), by striking the period at the end and inserting
by adding at the end the following new clause:
such articles and services are not being used by non-state actors and proxies for the commission of war crimes and other gross human rights abuses.