SAFEGUARD Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1473 To enhance the consideration of human rights in arms exports. IN THE SENATE OF THE UNITED STATES APRIL 29, 2021 Mr. MENENDEZ (for himself, Mr. LEAHY, Mr. KAINE, Mr. COONS, Mrs. FEIN- STEIN, Mrs. MURRAY, and Mr. SCHATZ) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations A BILL To enhance the consideration of human rights in arms exports. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Safeguarding Human 4 Rights in Arms Exports Act of 2021’’ or the ‘‘SAFE- 5 GUARD Act of 2021’’. 6 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1473 IS SEC. 2. STATEMENT OF POLICY ON CONTROL OF DEFENSE 1 EXPORTS AND PROTECTION OF HUMAN 2 RIGHTS. 3 It is the policy of the United States that one of the 4 purposes for controlling the export of defense articles and 5 defense services to foreign countries is to prevent such ex- 6 ports from being used in violation of international humani- 7 tarian law or internationally recognized human rights, to 8 require accountability for any such violations, and to en- 9 sure that the sale, export, or transfer of such articles and 10 services serves to encourage governments of foreign coun- 11 tries to fully comply with international humanitarian law 12 and observe internationally recognized human rights. 13 SEC. 3. PROHIBITION OF ARMS SALES TO COUNTRIES COM- 14 MITTING GENOCIDE OR WAR CRIMES. 15 (a) IN GENERAL.—No sale, export, or transfer of de- 16 fense articles or defense services may occur to any country 17 if the Secretary of State has credible information that the 18 government of such country has committed or is commit- 19 ting genocide or violations of international humanitarian 20 law after the date of the enactment of this Act. 21 (b) EXCEPTION.—The restriction under subsection 22 (a) shall not apply if the Secretary of State certifies to 23 the appropriate congressional committees that— 24 (1) the government has adequately punished the 25 persons directly or indirectly responsible for such 26 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1473 IS acts through a credible, transparent, and effective 1 judicial process; 2 (2) appropriate measures have been instituted 3 to ensure that such acts will not recur; and 4 (3) other appropriate compensation or appro- 5 priate compensatory measures have been or are 6 being provided to the persons harmed by such acts. 7 SEC. 4. MISUSE OF ARMS SALES FOR HUMAN RIGHTS 8 ABUSES. 9 (a) IN GENERAL.—The President shall ensure that— 10 (1) the sale, export, or transfer of any defense 11 article or defense service to a foreign country or 12 international organization shall be pursuant to an 13 agreement that the government of such country or 14 such international organization will not use such ar- 15 ticle or service in the commission, or to enable the 16 commission, of a violation of international humani- 17 tarian law or internationally recognized human 18 rights; 19 (2) the United States Government has the legal 20 right to require the return of any defense articles 21 sold, exported, or transferred to a foreign country or 22 international organization if the government of such 23 country or such organization has used United 24 States-origin defense articles in the commission, or 25 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1473 IS has enabled the commission, of a violation of inter- 1 national humanitarian law or internationally recog- 2 nized human rights; and 3 (3) if defense articles are sold, exported, or 4 transferred to a foreign country in a manner in 5 which the intended end user has not been identified 6 at the unit level for human rights vetting, the agree- 7 ment for such sale, export, or transfer includes a list 8 of units ineligible to receive such articles, consistent 9 with applicable provisions of United States law. 10 (b) ELIGIBILITY FOR DEFENSE SERVICES OR ARTI- 11 CLES.—Section 3(a) of the Arms Export Control Act (22 12 U.S.C. 2753(a)) is amended— 13 (1) in paragraph (1), by striking ‘‘and promote 14 world peace’’ and inserting ‘‘, promote world peace, 15 and is unlikely to contribute to human rights 16 abuses’’; 17 (2) in paragraph (3), by striking ‘‘; and’’ and 18 inserting a semicolon; 19 (3) by redesignating paragraph (4) as para- 20 graph (5); and 21 (4) by inserting after paragraph (3) the fol- 22 lowing new paragraph: 23 ‘‘(4) the country or international organization 24 has agreed not to use such article or service in the 25 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1473 IS commission, or to enable the commission, of a viola- 1 tion of international humanitarian law or inter- 2 nationally recognized human rights; and’’. 3 (c) AUTHORIZED PURPOSE FOR MILITARY SALES.— 4 Section 4 of the Arms Export Control Act (22 U.S.C. 5 2754) is amended— 6 (1) by inserting ‘‘legitimate’’ before ‘‘internal 7 security’’; and 8 (2) by inserting ‘‘, provided that such defense 9 articles and defense services will not present a sig- 10 nificant risk of being used to violate international 11 humanitarian law or internationally recognized 12 human rights’’ after ‘‘such friendly countries’’. 13 SEC. 5. CONSIDERATION OF HUMAN RIGHTS AND DEMOC- 14 RATIZATION IN ARMS EXPORTS. 15 (a) IN GENERAL.—In considering the sale, export, or 16 transfer of defense articles and defense services to foreign 17 countries, the Secretary of State shall— 18 (1) also consider the extent to which the gov- 19 ernment of the foreign country protects human 20 rights and supports democratic institutions, includ- 21 ing an independent judiciary; and 22 (2) ensure that the views and expertise of the 23 Bureau of Democracy, Human Rights, and Labor of 24 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1473 IS the Department of State in connection with any sale, 1 export, or transfer are fully taken into account. 2 (b) INSPECTOR GENERAL OVERSIGHT.—Not later 3 than one year after the date of the enactment of this Act, 4 and annually thereafter for four years, the Inspector Gen- 5 eral of the Department of State shall submit to the appro- 6 priate congressional committees a report on the implemen- 7 tation of the requirement under subsection (a) during the 8 preceding year. 9 SEC. 6. ENHANCEMENT OF CONGRESSIONAL OVERSIGHT 10 OF HUMAN RIGHTS IN ARMS EXPORTS. 11 (a) IN GENERAL.—Any letter of offer to sell, or any 12 application for a license to export or transfer, defense arti- 13 cles or defense services controlled for export shall be sub- 14 ject to the congressional review and disapproval require- 15 ments, regardless of monetary value, of section 36 of the 16 Arms Export Control Act (22 U.S.C. 2776) if the Sec- 17 retary of State has credible information, with respect to 18 a country to which the defense articles or defense services 19 are proposed to be sold, exported, or transferred, that— 20 (1) the government of such country on or after 21 the date of enactment of this Act has been deposed 22 by a coup d’etat or decree in which the military 23 played a decisive role, and a democratically elected 24 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1473 IS government has not taken office subsequent to the 1 coup or decree; or 2 (2) a unit of the security forces of the govern- 3 ment of such country— 4 (A) has violated international humani- 5 tarian law and has not been credibly inves- 6 tigated and subjected to a credible and trans- 7 parent judicial process addressing such allega- 8 tion; or 9 (B) has committed a gross violation of 10 human rights, and has not been credibly inves- 11 tigated and subjected to a credible and trans- 12 parent judicial process addressing such allega- 13 tion, including, inter alia— 14 (i) torture or rape; 15 (ii) ethnic cleansing of civilians; 16 (iii) recruitment or use of child sol- 17 diers; 18 (iv) unjust or wrongful detention; 19 (v) the operation of, or effective con- 20 trol or direction over, secret detention fa- 21 cilities; or 22 (vi) extrajudicial killings, whether by 23 military, police, or other security forces. 24 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1473 IS (b) INCLUSION OF INFORMATION IN HUMAN RIGHTS 1 REPORT.—The Secretary of State shall also provide to the 2 appropriate congressional committees the report described 3 in section 502B(c) of the Foreign Assistance Act (22 4 U.S.C. 2304(c)) biannually for the period of time specified 5 in subsection (c) of this section regarding any country cov- 6 ered under subsection (a). 7 (c) DURATION.— 8 (1) IN GENERAL.—With respect to a letter of 9 offer to sell or an application for a license to sell, 10 export, or transfer described in subsection (a), the 11 letter or application shall be subject to the require- 12 ments and procedures for congressional review and 13 disapproval under section 36 of the Arms Export 14 Control Act (22 U.S.C. 2776) for 2 years after the 15 date on which the Secretary of State receives the in- 16 formation described in subsection (a). 17 (2) TERMINATION.— 18 (A) IN GENERAL.—With respect to such a 19 letter or application, the enhanced congressional 20 oversight under subsections (a) and paragraph 21 (1) of this subsection shall terminate on the 22 date on which the Secretary of State determines 23 and so informs the appropriate congressional 24 committees that— 25 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 1473 IS (i) the credible information described 1 in subsection (a)(2) is inaccurate; or 2 (ii) the activity has ceased, and the 3 government of the applicable country has 4 taken appropriate steps to ensure that 5 such activity does not recur, including ap- 6 propriate punishment for the person or 7 persons involved in such activity. 8 (B) INFORMATION SUPPORTING DETER- 9 MINATION.—The Secretary of State shall sub- 10 mit to the appropriate congressional committees 11 all information forming the basis for a deter- 12 mination under subparagraph (A). The deter- 13 mination shall, to the fullest extent possible, be 14 unclassified, but may include a classified annex. 15 SEC. 7. LIMITATION ON SALES TO SECURITY FORCES IN- 16 VOLVED IN GROSS VIOLATION OF HUMAN 17 RIGHTS. 18 Section 620M(a) of the Foreign Assistance Act of 19 1961 (23 U.S.C. 2378d(a)) is amended by striking ‘‘No 20 assistance’’ and all that follows through ‘‘Arms Export 21 Control Act’’ and inserting ‘‘No assistance, including the 22 sale of defense articles or defense services, shall be fur- 23 nished under this Act, the Arms Export Control Act, or 24 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 1473 IS any other provision of law controlling the export or trans- 1 fer of such articles and services’’. 2 SEC. 8. END USE MONITORING OF MISUSE OF ARMS IN 3 HUMAN RIGHTS ABUSES. 4 (a) END USE MONITORING.—Section 40A(a)(2)(B) 5 of the Arms Export Control Act (22 U.S.C. 2785) is 6 amended— 7 (1) in clause (i), by striking ‘‘; and’’ and insert- 8 ing a semicolon; 9 (2) in clause (ii), by striking the period at the 10 end and inserting ‘‘and;’’; and 11 (3) by adding at the end the following new 12 clause: 13 ‘‘(iii) such articles and services are 14 not being used to violate international hu- 15 manitarian law or internationally recog- 16 nized human rights.’’. 17 (b) REPORT.—The Secretary shall report to the ap- 18 propriate congressional committees on the measures that 19 will be taken, including any additional resources needed, 20 to conduct an effective end-use monitoring program to ful- 21 fill the requirement of clause (iii) of section 40A(a)(2)(B) 22 of the Arms Export Control Act, as added by subsection 23 (a)(3). 24 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 1473 IS SEC. 9. HUMAN RIGHTS ELEMENTS IN AUXILIARY RE- 1 PORTS. 2 Section 36(b)(1) of the Arms Export Control Act (22 3 U.S.C. 2776(b)(1)) is amended— 4 (1) in subparagraph (O), by striking ‘‘; and’’ 5 and inserting a semicolon; 6 (2) in subparagraph (P), by striking the period 7 at the end and inserting ‘‘; and’’; and 8 (3) by adding at the end the following new sub- 9 paragraph: 10 ‘‘(Q) an assessment of the risk that such 11 defense articles or defense services will be used 12 in the commission of violations of international 13 humanitarian law or internationally recognized 14 human rights, and a description of any meas- 15 ures to be taken by the recipient government or 16 by the United States to prevent and monitor 17 any such use.’’. 18 SEC. 10. REQUIREMENT FOR CERTAIN WEAPONS TO BE 19 SUBJECT TO CONDITIONS AND END USE 20 MONITORING AS FOREIGN MILITARY SALES. 21 Beginning on the date that is 180 days after the date 22 of the enactment of this Act, the following defense articles 23 may be sold, exported, or transferred only pursuant to sec- 24 tion 36(b) of the Arms Export Control Act (22 U.S.C. 25 2776(b)): 26 VerDate Sep 11 2014 00:37 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1473.IS S1473 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 1473 IS (1) Rockets, space launch vehicles, missiles, 1 bombs (including equipment to enable precision 2 guidance), torpedoes, depth charges, mines, and gre- 3 nades. 4 (2) Armored combat ground vehicles, including 5 ground vehicles and trailers that are armed or are 6 specially designed to be used as a firing or launch 7 platform to deliver munitions or otherwise destroy or 8 incapacitate targets, excluding any unarmed ground 9 vehicles, regardless of origin or designation, manu- 10 factured prior to 1956 and unmodified since 1955. 11 (3) Aircraft, whether manned, unmanned, re- 12 motely piloted, or optionally piloted, as follows: 13 (A) Bombers. 14 (B) Fighters, fighter/bo [Text truncated for display. 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