Enhancing Human Rights Protections in Arms Sales Act of 2019

II 116TH CONGRESS 1ST SESSION S. 854 To require human rights certifications for arms sales, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 25, 2019 Mr. CARDIN (for himself, Mr. DURBIN, Mr. WYDEN, and Mr. MARKEY) intro- duced the following bill; which was read twice and referred to the Com- mittee on Foreign Relations A BILL To require human rights certifications for arms sales, and for other purposes. 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 ‘‘Enhancing Human 4 Rights Protections in Arms Sales Act of 2019’’. 5 SEC. 2. SENSE OF CONGRESS. 6 It is the sense of Congress that— 7 (1) the advancement of human rights is criti- 8 cally important to the security, stability, peace, and 9 prosperity of United States allies and partners, and 10 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 854 IS the United States Government should promote the 1 increased observance of internationally recognized 2 human rights globally; 3 (2) as the world’s oldest democracy and the 4 largest arms exporter, the human rights standards 5 that the United States sets on arms transfers has 6 global ramifications, influencing standards set by 7 other nations around the world; 8 (3) global arms transfers continue to flow into 9 conflict zones and countries rife with internal repres- 10 sion at an alarming rate; 11 (4) the United States Government has the abil- 12 ity to determine whether United States arms trans- 13 fers are used to commit gross violations of human 14 rights and other violations of United States law; 15 (5) Congress took strong action to prohibit, in 16 the Foreign Assistance Act of 1961 (U.S.C. 2151 et 17 seq.), sales of defense articles or services to any 18 country whose government engages in a consistent 19 pattern of gross violations of internationally recog- 20 nized human rights; and 21 (6) Congress should take further action to en- 22 sure that arms transfers— 23 (A) are not used to commit or facilitate 24 violations of internationally recognized human 25 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 854 IS rights or violations of international humani- 1 tarian law in conflict zones; and 2 (B) are provided only to countries that are 3 demonstrably improving their efforts to protect 4 the human rights and freedoms of their citizens 5 and to promote participation and accountability 6 in governance. 7 SEC. 3. HUMAN RIGHTS CERTIFICATION REQUIREMENTS 8 FOR ARMS SALES. 9 (a) CERTIFICATION REQUIREMENT.—Section 36 of 10 the Arms Export Control Act (22 U.S.C. 2776) is amend- 11 ed by adding at the end the following new subsection: 12 ‘‘(j)(1) Any certification relating to a proposed sale 13 or export under this section of defense articles or defense 14 services designated under Category III, IV, VII, or VIII 15 on the United States Munitions List pursuant to section 16 38(a)(1) to a foreign country shall include a certification 17 by the Secretary of State that— 18 ‘‘(A) during the fiscal year in which assistance 19 is to be furnished or military equipment or tech- 20 nology is to be sold or transferred, the defense arti- 21 cles or defense services will not be used in hostilities 22 in which the United States has credible information, 23 including from credible nongovernmental investiga- 24 tions, that war crimes, crimes against humanity, 25 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 854 IS gross violations of internationally recognized human 1 rights, or atrocities have been committed by the gov- 2 ernment of the recipient country; 3 ‘‘(B) during the current fiscal year in which as- 4 sistance is to be furnished or military equipment or 5 technology is to be sold or transferred, and during 6 the preceding three fiscal years, the government of 7 the foreign country— 8 ‘‘(i) has not ordered or directed ethnic 9 cleansing of civilians; 10 ‘‘(ii) has not recruited and used child sol- 11 diers; 12 ‘‘(iii) has not tortured, falsely imprisoned, 13 or engaged in the targeted killing of political 14 opponents, human rights defenders, or journal- 15 ists; 16 ‘‘(iv) has not operated or had effective con- 17 trol or direction over secret detention facilities; 18 ‘‘(v) has not engaged, through military, 19 paramilitary, security, or police forces over 20 which the government exercises effective con- 21 trol, in extrajudicial killings; 22 ‘‘(vi) has not diverted, transferred, lost, or 23 given United States weapons to third parties; 24 and 25 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 854 IS ‘‘(vii) has made significant and demon- 1 strable efforts domestically to— 2 ‘‘(I) ensure the protection of inter- 3 nationally recognized human rights and 4 freedoms, including the rights of women, 5 religious, ethnic, and other minorities, and 6 freedoms of press, expression, and assem- 7 bly in the foreign country; 8 ‘‘(II) denounce extremist ideologies 9 and doctrines; 10 ‘‘(III) prevent and ensure account- 11 ability for significant acts of corruption; 12 and 13 ‘‘(IV) promote transparent and inclu- 14 sive governance; and 15 ‘‘(C) in any conflict in which the recipient gov- 16 ernment of the foreign country engages, that govern- 17 ment will— 18 ‘‘(i) facilitate unfettered civilian access to 19 humanitarian relief and commercial goods; 20 ‘‘(ii) support, in statements and actions, 21 diplomatic and political resolution of the con- 22 flict; and 23 ‘‘(iii) make significant and demonstrable 24 efforts to— 25 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 854 IS ‘‘(I) ensure command and control of 1 such weapons to prevent proliferation to 2 non-state actors and proxies; and 3 ‘‘(II) track, prevent, and publicly in- 4 vestigate civilian causalities. 5 ‘‘(2) For three years following the provision of the 6 assistance, or sale or transfer of the military equipment 7 or technology as described in paragraph (1), the Secretary 8 of State shall provide to the Committee on Foreign Rela- 9 tions of the Senate and the Committee on Foreign Affairs 10 of the House of Representatives notice of any violation de- 11 scribed in subparagraphs (A) though (C) of paragraph (1) 12 within 60 days of receiving credible information about the 13 violation. 14 ‘‘(3) The certification requirement under paragraph 15 (1) does not apply to ground-based missile defense sys- 16 tems. 17 ‘‘(4)(A) The President may waive the certification re- 18 quirement under paragraph (1) not earlier than 30 legisla- 19 tive days after the Secretary of State, in coordination with 20 the Secretary of Defense, submits to the Committee on 21 Foreign Relations of the Senate and the Committee on 22 Foreign Affairs of the House of Representatives an un- 23 classified certification, which may include a classified 24 annex, stating that the waiver is in the national security 25 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 854 IS interest of the United States, including a report detail- 1 ing— 2 ‘‘(i) the status of recipient government efforts 3 relating to each required certification described in 4 subparagraphs (A) through (C) of such paragraph 5 for which a waiver is necessary; and 6 ‘‘(ii) relevant information received by the De- 7 partment of State and the Department of Defense 8 from credible human rights organizations and inter- 9 governmental human rights monitoring bodies relat- 10 ing to each such waived certification. 11 ‘‘(B) The President may not waive the certification 12 requirement under paragraph (1) if Congress, within the 13 30-legislative-day period referred to in subparagraph (A), 14 enacts a joint resolution prohibiting the proposed sale or 15 export. Any such joint resolution shall be considered in 16 accordance with the procedures set forth in section 17 36(b)(2).’’. 18 SEC. 4. STRATEGY ON ENHANCING HUMAN RIGHTS CONSID- 19 ERATIONS IN UNITED STATES MILITARY AS- 20 SISTANCE AND ARMS TRANSFERS. 21 (a) IN GENERAL.—Not later than 180 days after the 22 date of the enactment of this Act, the Secretary of State, 23 with the concurrence of the Secretary of Defense, shall 24 submit to the appropriate congressional committees a 25 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 854 IS strategy to enhance United States efforts to ensure human 1 rights protections for United States military assistance 2 and arms transfers. The strategy shall include processes 3 and procedures to— 4 (1) determine when United States military as- 5 sistance and arms transfers are used to commit 6 gross violations of internationally recognized human 7 rights; 8 (2) determine when United States military as- 9 sistance and arms transfers are used to undermine 10 international peace and security or contribute to 11 gross violations of internationally recognized human 12 rights, including acts of gender-based violence and 13 acts of violence against children, violations of inter- 14 national humanitarian law, terrorism, mass atroc- 15 ities, or transnational organized crime; 16 (3) detect other violations of United States law 17 concerning United States military or security assist- 18 ance, cooperation, and arms transfers, including the 19 diversion of such assistance or the use of such as- 20 sistance by security force or police units credibly im- 21 plicated in gross violations of internationally recog- 22 nized human rights; 23 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 854 IS (4) train partner militaries, security, and police 1 forces on methods for preventing civilian causalities; 2 and 3 (5) determine whether individuals or units that 4 have received United States military, security, or po- 5 lice training or have participated or are scheduled to 6 participate in joint exercises with United States 7 forces have later been credibly implicated in gross 8 violations of internationally recognized human 9 rights. 10 (b) APPROPRIATE CONGRESSIONAL COMMITTEES 11 DEFINED.—In this section, the term ‘‘appropriate con- 12 gressional committees’’ means the Committee on Foreign 13 Relations of the Senate and the Committee on Foreign 14 Affairs of the House of Representatives. 15 SEC. 5. END USE MONITORING OF MISUSE OF ARMS IN 16 HUMAN RIGHTS ABUSES. 17 Section 40A(a)(2)(B) of the Arms Export Control 18 Act (22 U.S.C. 2785(a)(2)(B)) is amended— 19 (1) in clause (i), by striking ‘‘and’’ at the end; 20 (2) in clause (ii), by striking the period at the 21 end and inserting ‘‘and;’’; and 22 (3) by adding at the end the following new 23 clause: 24 VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 854 IS ‘‘(iii) such articles and services are 1 not being used by non-state actors and 2 proxies for the commission of war crimes 3 and other gross human rights abuses.’’. 4 Æ VerDate Sep 11 2014 23:37 Apr 01, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S854.IS S854 pamtmann on DSKBFK8HB2PROD with BILLS