[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4712 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 4712

     To enhance the consideration of human rights in arms exports.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 24, 2020

  Mr. Menendez (for himself, Mr. Leahy, and Mr. Kaine) 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Safeguarding Human Rights in Arms 
Exports Act of 2020'' or the ``SAFEGUARD Act''.

SEC. 2. STATEMENT OF POLICY ON CONTROL OF DEFENSE EXPORTS AND 
              PROTECTION OF HUMAN RIGHTS.

    It is the policy of the United States that one of the purposes for 
controlling the export of defense articles and defense services to 
foreign countries is to prevent such exports from being used in 
violation of international humanitarian law or internationally 
recognized human rights, to require accountability for any such 
violations, and to ensure that the sale, export, or transfer of such 
articles and services serves to encourage governments of foreign 
countries to fully comply with international humanitarian law and 
observe internationally recognized human rights.

SEC. 3. PROHIBITION OF ARMS SALES TO COUNTRIES COMMITTING GENOCIDE OR 
              WAR CRIMES.

    (a) In General.--No sale, export, or transfer of defense articles 
or defense services may occur to any country if the Secretary of State 
has credible information that the government of such country has 
committed or is committing genocide or violations of international 
humanitarian law after the date of the enactment of this Act.
    (b) Exception.--The restriction under subsection (a) shall not 
apply if the Secretary of State certifies to the appropriate 
congressional committees that--
            (1) the government has adequately punished the persons 
        directly or indirectly responsible for such acts through a 
        credible, transparent, and effective judicial process;
            (2) appropriate measures have been instituted to ensure 
        that such acts will not recur; and
            (3) other appropriate compensation or appropriate 
        compensatory measures have been or are being provided to the 
        persons harmed by such acts.

SEC. 4. MISUSE OF ARMS SALES FOR HUMAN RIGHTS ABUSES.

    (a) In General.--The President shall ensure that--
            (1) the sale, export, or transfer of any defense article or 
        defense service to a foreign country or international 
        organization shall be pursuant to an agreement that the 
        government of such country or such international organization 
        will not use such article or service in the commission, or to 
        enable the commission, of a violation of international 
        humanitarian law or internationally recognized human rights;
            (2) the United States Government has the legal right to 
        require the return of any defense articles sold, exported, or 
        transferred to a foreign country or international organization 
        if the government of such country or such organization has used 
        United States-origin defense articles in the commission, or has 
        enabled the commission, of a violation of international 
        humanitarian law or internationally recognized human rights; 
        and
            (3) if defense articles are sold, exported, or transferred 
        to a foreign country in a manner in which the intended end user 
        has not been identified at the unit level for human rights 
        vetting, the agreement for such sale, export, or transfer 
        includes a list of units ineligible to receive such articles, 
        consistent with applicable provisions of United States law.
    (b) Eligibility for Defense Services or Articles.--Section 3(a) of 
the Arms Export Control Act (22 U.S.C. 2753(a)) is amended--
            (1) in paragraph (1), by striking ``and promote world 
        peace'' and inserting ``, promote world peace, and is unlikely 
        to contribute to human rights abuses'';
            (2) in paragraph (3), by striking ``; and'' and inserting a 
        semicolon;
            (3) by redesignating paragraph (4) as paragraph (5); and
            (4) by inserting after paragraph (3) the following new 
        paragraph:
            ``(4) the country or international organization has agreed 
        not to use such article or service in the commission, or to 
        enable the commission, of a violation of international 
        humanitarian law or internationally recognized human rights; 
        and''.
    (c) Authorized Purpose for Military Sales.--Section 4 of the Arms 
Export Control Act (22 U.S.C. 2754) is amended--
            (1) by inserting ``legitimate'' before ``internal 
        security''; and
            (2) by inserting ``, provided that such defense articles 
        and defense services will not present a significant risk of 
        being used to violate international humanitarian law or 
        internationally recognized human rights'' after ``such friendly 
        countries''.

SEC. 5. CONSIDERATION OF HUMAN RIGHTS AND DEMOCRATIZATION IN ARMS 
              EXPORTS.

    (a) In General.--In considering the sale, export, or transfer of 
defense articles and defense services to foreign countries, the 
Secretary of State shall--
            (1) also consider the extent to which the government of the 
        foreign country protects human rights and supports democratic 
        institutions, including an independent judiciary; and
            (2) ensure that the views and expertise of the Bureau of 
        Democracy, Human Rights, and Labor of the Department of State 
        in connection with any sale, export, or transfer are fully 
        taken into account.
    (b) Inspector General Oversight.--Not later than one year after the 
date of the enactment of this Act, and annually thereafter for four 
years, the Inspector General of the Department of State shall submit to 
the appropriate congressional committees a report on the implementation 
of the requirement under subsection (a) during the preceding year.

SEC. 6. ENHANCEMENT OF CONGRESSIONAL OVERSIGHT OF HUMAN RIGHTS IN ARMS 
              EXPORTS.

    (a) In General.--Any letter of offer to sell, or any application 
for a license to export or transfer, defense articles or defense 
services controlled for export shall be subject to the congressional 
review and disapproval requirements, regardless of monetary value, of 
section 36 of the Arms Export Control Act (22 U.S.C. 2776) if the 
Secretary of State has credible information, with respect to a country 
to which the defense articles or defense services are proposed to be 
sold, exported, or transferred, that--
            (1) the government of such country on or after the date of 
        enactment of this Act has been deposed by a coup d'etat or 
        decree in which the military played a decisive role, and a 
        democratically elected government has not taken office 
        subsequent to the coup or decree; or
            (2) a unit of the security forces of the government of such 
        country--
                    (A) has violated international humanitarian law and 
                has not been credibly investigated and subjected to a 
                credible and transparent judicial process addressing 
                such allegation; or
                    (B) has committed a gross violation of human 
                rights, and has not been credibly investigated and 
                subjected to a credible and transparent judicial 
                process addressing such allegation, including, inter 
                alia--
                            (i) torture or rape;
                            (ii) ethnic cleansing of civilians;
                            (iii) recruitment or use of child soldiers;
                            (iv) unjust or wrongful detention;
                            (v) the operation of, or effective control 
                        or direction over, secret detention facilities; 
                        or
                            (vi) extrajudicial killings, whether by 
                        military, police, or other security forces.
    (b) Inclusion of Information in Human Rights Report.--The Secretary 
of State shall also provide to the appropriate congressional committees 
the report described in section 502B(c) of the Foreign Assistance Act 
(22 U.S.C. 2304(c)) biannually for the period of time specified in 
subsection (c) of this section regarding any country covered under 
subsection (a).
    (c) Duration.--
            (1) In general.--With respect to a letter of offer to sell 
        or an application for a license to sell, export, or transfer 
        described in subsection (a), the letter or application shall be 
        subject to the requirements and procedures for congressional 
        review and disapproval under section 36 of the Arms Export 
        Control Act (22 U.S.C. 2776) for 2 years after the date on 
        which the Secretary of State receives the information described 
        in subsection (a).
            (2) Termination.--
                    (A) In general.--With respect to such a letter or 
                application, the enhanced congressional oversight under 
                subsection (a) and paragraph (1) of this subsection 
                shall terminate on the date on which the Secretary of 
                State determines and so informs the appropriate 
                congressional committees that--
                            (i) the credible information described in 
                        subsection (a)(2) is inaccurate; or
                            (ii) the activity has ceased, and the 
                        government of the applicable country has taken 
                        appropriate steps to ensure that such activity 
                        does not recur, including appropriate 
                        punishment for the person or persons involved 
                        in such activity.
                    (B) Information supporting determination.--The 
                Secretary of State shall submit to the appropriate 
                congressional committees all information forming the 
                basis for a determination under subparagraph (A). The 
                determination shall, to the fullest extent possible, be 
                unclassified, but may include a classified annex.

SEC. 7. LIMITATION ON SALES TO SECURITY FORCES INVOLVED IN GROSS 
              VIOLATION OF HUMAN RIGHTS.

    Section 620M(a) of the Foreign Assistance Act of 1961 (23 U.S.C. 
2378d(a)) is amended by striking ``No assistance'' and all that follows 
through ``Arms Export Control Act'' and inserting ``No assistance, 
including the sale of defense articles or defense services, shall be 
furnished under this Act, the Arms Export Control Act, or any other 
provision of law controlling the export or transfer of such articles 
and services''.

SEC. 8. END USE MONITORING OF MISUSE OF ARMS IN HUMAN RIGHTS ABUSES.

    (a) End Use Monitoring.--Section 40A(a)(2)(B) of the Arms Export 
Control Act (22 U.S.C. 2785) is amended--
            (1) in clause (i), by striking ``; and'' and inserting a 
        semicolon;
            (2) in clause (ii), by striking the period at the end and 
        inserting ``and;''; and
            (3) by adding at the end the following new clause:
                            ``(iii) such articles and services are not 
                        being used to violate international 
                        humanitarian law or internationally recognized 
                        human rights.''.
    (b) Report.--The Secretary shall report to the appropriate 
congressional committees on the measures that will be taken, including 
any additional resources needed, to conduct an effective end-use 
monitoring program to fulfill the requirement of clause (iii) of 
section 40A(a)(2)(B) of the Arms Export Control Act, as added by 
subsection (a)(3).

SEC. 9. HUMAN RIGHTS ELEMENTS IN AUXILIARY REPORTS.

    Section 36(b)(1) of the Arms Export Control Act (22 U.S.C. 
2776(b)(1)) is amended--
            (1) in subparagraph (O), by striking ``; and'' and 
        inserting a semicolon;
            (2) in subparagraph (P), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following new subparagraph:
                    ``(Q) an assessment of the risk that such defense 
                articles or defense services will be used in the 
                commission of violations of international humanitarian 
                law or internationally recognized human rights, and a 
                description of any measures to be taken by the 
                recipient government or by the United States to prevent 
                and monitor any such use.''.

SEC. 10. REQUIREMENT FOR CERTAIN WEAPONS TO BE SUBJECT TO CONDITIONS 
              AND END USE MONITORING AS FOREIGN MILITARY SALES.

    Beginning on the date that is 180 days after the date of the 
enactment of this Act, the following defense articles may be sold, 
exported, or transferred only pursuant to section 36(b) of the Arms 
Export Control Act (22 U.S.C. 2776(b)):
            (1) Rockets, space launch vehicles, missiles, bombs 
        (including equipment to enable precision guidance), torpedoes, 
        depth charges, mines, and grenades.
            (2) Armored combat ground vehicles, including ground 
        vehicles and trailers that are armed or are specially designed 
        to be used as a firing or launch platform to deliver munitions 
        or otherwise destroy or incapacitate targets, excluding any 
        unarmed ground vehicles, regardless of origin or designation, 
        manufactured prior to 1956 and unmodified since 1955.
            (3) Aircraft, whether manned, unmanned, remotely piloted, 
        or optionally piloted, as follows:
                    (A) Bombers.
                    (B) Fighters, fighter/bombers, and fixed-wing 
                attack aircraft.
                    (C) Turbofan- or turbojet-powered trainers used to 
                train pilots for fighter, attack, or bomber aircraft.
                    (D) Attack helicopters.
                    (E) Unmanned aerial vehicles (UAVs) specially 
                designed to incorporate a defense article.
                    (F) Aircraft specially designed to incorporate a 
                defense article for the purpose of performing an 
                intelligence, surveillance, and reconnaissance 
                function.
                    (G) Aircraft specially designed to incorporate a 
                defense article for the purpose of performing an 
                electronic warfare function, airborne warning and 
                control aircraft, or aircraft specially designed to 
                incorporate a defense article for the purpose of 
                performing a command, control, and communications 
                function.

SEC. 11. OVERSIGHT OF EXPORT OF SILENCERS TO FOREIGN NON-GOVERNMENTAL 
              PERSONS.

    (a) In General.--Any proposed license to export firearms silencers, 
mufflers, or sound suppressors to any foreign nongovernmental person, 
group, or organization may not be issued until after the proposed 
license is submitted in accordance with section 36(c) of the Arms 
Export Control Act (22 U.S.C. 2776(c)), regardless of the dollar value 
of the proposed export or whether other defense articles or services 
are included in such proposed license.
    (b) Secretary of State Determination.--
            (1) In general.--The license referred to in subsection (a) 
        may not be issued unless the Secretary of State--
                    (A) determines that the proposed export does not 
                pose a risk for the retransfer of the items referred to 
                in such subsection to foreign persons, including 
                terrorists, terrorist groups, insurgent groups, 
                criminals or criminal organizations; and
                    (B) submits a report to the Committee on Foreign 
                Relations of the Senate and the Committee on Foreign 
                Affairs of the House of Representatives that sets forth 
                the reasons for, and the information supporting, such 
                determination.
            (2) Form of report.--The report required under paragraph 
        (1)(B) shall be unclassified and shall be made available to the 
        public to the maximum extent possible, but may include a 
        classified annex.

SEC. 12. DEFINITIONS.

    In this Act:
            (1) The term ``appropriate congressional committees'' 
        means--
                    (A) the Committee on Foreign Relations and the 
                Committee on Appropriations of the Senate; and
                    (B) the Committee on Foreign Affairs and the 
                Committee on Appropriations of the House of 
                Representatives.
            (2) The terms ``defense article'' and ``defense service'' 
        have the same meanings given the terms in section 47 of the 
        Arms Export Control Act (22 U.S.C. 2794).
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