May 2, 2019
U.S. Arms Sales and Human Rights: Legislative Basis and
Frequently Asked Questions
U.S. law establishes the conditions under which the U.S.
possession of any defense article to unauthorized
government and U.S. commercial entities may sell defense
persons, as well as from diverting articles for
articles to foreign countries. This In Focus provides an
unauthorized purposes or uses. See also Section 505(a)
overview of the main laws and policies that may limit such
of the FAA (22 U.S.C. 2314(a)).
sales on the basis of human rights concerns.
ï‚· Section 4 of the AECA (22 U.S.C. 2754) states that
Background
defense articles may be sold or leased for specific
The Arms Export Control Act (AECA; P.L. 90-629; 22
purposes only, including internal security, legitimate
U.S.C. 2751 et seq.) and the Foreign Assistance Act of
self-defense, and participation in collective measures
1961 (FAA; P.L. 87-195; 22 U.S.C. 2151 et seq.) establish
requested by the United Nations or comparable
provisions governing Foreign Military Sales (FMS) and
organizations. See also Section 502 of the FAA (22
Direct Commercial Sales (DCS) to foreign consumers,
U.S.C. 2302).
including foreign governments. FMS refers to the sale of
U.S.-origin defense articles, equipment, services, and
ï‚· Section 3(c)(1)(B) of the AECA (22 U.S.C.
training (hereafter referred to as “defense articles”) on a
2753(c)(1)(B)) prohibits the sale or delivery of U.S.-
government-to-government basis. DCS refers to the sale of
origin defense articles when either the President or
U.S.-government licensed defense articles and services
Congress find that a recipient country has used such
directly from U.S. firms to eligible foreign governments
articles in substantial violation of an agreement with the
and international organizations.
United States governing their provision or “for a
purpose not authorized” by Section 4 of the AECA or
The AECA and FAA establish eligibility prerequisites for
Section 502 of the FAA. (See also Section 505(d) of the
the sale of defense articles to foreign purchasers. The acts
FAA (22 U.S.C. 2314(d)).) If found to be in violation by
also require that such sales be for specific authorized
presidential determination or joint resolution of
military purposes and subject to end-use monitoring
Congress, Section 3(c)(3) of the AECA (22 U.S.C.
(EUM). The acts authorize the termination of future sales
2753(c)(3)) stipulates that, absent a presidential waiver,
and deliveries if a recipient is found to be in substantial
such countries would be ineligible for future U.S. arms
violation of a sale-related agreement with the United States
sales until the President determines the violation has
or to be otherwise using such defense articles for
ceased and recipients assure violations will not recur.
unauthorized purposes. The FAA and executive branch
policy restrict certain sales of defense articles to foreign
Human Rights-Related Prohibitions on
recipients found to have committed human rights violations.
Security Assistance
General Limitations on FMS and DCS
Section 502B of the FAA
Although the AECA does not refer specifically to human
Section 502B(a)(1) of the FAA (22 U.S.C. 2304(a)(1))
rights, the act includes general provisions and conditions
states that a “principal goal” of U.S. foreign policy “shall be
for the export of U.S.-origin defense articles that may
to promote the increased observance of internationally
indirectly address human rights concerns. For example,
recognized human rights by all countries.” To this end,
Section 502B(a)(2) of the FAA (22 U.S.C. 2304(a)(2))
ï‚· Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
stipulates that, absent the exercise of a presidential waiver,
authorizes the President to control the import and export
of defense articles for broad policy goals, including
no security assistance may be provided to any
world peace and U.S. security and foreign policy.
country the government of which engages in a
consistent
pattern
of
gross
violations
of
ï‚· Section 42(a) of AECA (22 U.S.C. 2791(a)) requires the
internationally recognized human rights.
executive branch, to consider, among other factors,
whether a given defense article sale might “increase the
Section 502B of the FAA defines several terms, including
possibility of outbreak or escalation of conflict.” See
“security assistance” and “gross violations of
also Section 511 of the FAA (22 U.S.C. 2321d).
internationally recognized human rights.”
ï‚· Section 3(a) of AECA (22 U.S.C. 2753(a)) requires
“Security assistance” is defined in Section 502B(d)(2) of
prospective recipients of defense articles to meet certain
the FAA (22 U.S.C. 2304(d)(2)) for the purposes of the
prerequisites for eligibility. These include purchaser
section to include “sales of defense articles or services,
commitments to refrain from transferring title to or
extensions of credits (including participations in credits),
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
and guaranties of loans” under the AECA. This section also
policy guidance for executing arms sales. Among its
defines security assistance to include
provisions, the SAMM requires senior U.S. Embassy
leadership to prepare a Country Team Assessment (CTA)
ï‚· assistance provided pursuant to part II of the FAA for
that describes and justifies support for a proposed arms sale.
military assistance (chapter 2), the economic support
Such CTAs accompany letters of request for certain
fund (chapter 4), military education and training
significant arms sales, including those requiring
(chapter 5), peacekeeping operations (chapter 6), or anti-
congressional notification pursuant to Section 36 of the
terrorism assistance (chapter 8); and
AECA. According to Table C5.T1 of the SAMM, all CTAs
must include a description of the “human rights … record
ï‚· any license in effect with respect to the export to or for
of the proposed recipient and the potential misuse of the
the armed forces, police, intelligence, or other internal
defense articles in question.”
security forces of a foreign country of (i) defense
articles or defense services under section 38 of the
How does the U.S. government verify that
AECA (22 U.S.C. 2778); or (ii) items listed under the
recipients use defense articles as authorized?
600 series of the Commerce Control List [a list that
Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22
contains specific dual-use commodities, technologies,
U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) of
and software that are controlled for export].
the FAA (22 U.S.C. 2314(a)(3)), U.S. origin defense
articles sold via FMS and DCS are subject to end-use
Section 502B(d)(1) of the FAA (22 U.S.C. 2304(d)(1))
monitoring (EUM) to ensure that recipients use such items
defines “gross violations of internationally recognized
solely for their intended purposes. DOD’s Defense Security
human rights” for the purposes of the section to include
Cooperation Agency manages the department’s Golden
Sentry EUM program for defense articles sold via FMS.
torture or cruel, inhuman, or degrading treatment or
The State Department’s Directorate of Defense Trade
punishment, prolonged detention without charges
Controls coordinates the Blue Lantern program, which
and trial, causing the disappearance of persons by
performs an analogous function for items sold via DCS.
the abduction and clandestine detention of those
persons, and other flagrant denial of the right to life,
Can arms embargoes be applied on the basis of
liberty, or the security of person.
human rights concerns?
Human rights considerations are among the reasons the
Child Soldiers Prevention Act of 2008 (CSPA)
United States may invoke to impose an arms embargo on a
Foreign governments with security forces (including police)
foreign government and prohibit U.S. persons from selling
or government-supported armed groups that recruit or use
or transferring defense articles to such governments. The
child soldiers are prohibited from receiving certain types of
International Traffic in Arms Regulations reflect the
security assistance, absent a presidential waiver. Pursuant to
executive branch’s implementation of statutory provisions
Section 404(a) of the CSPA (P.L. 110-457; 22 U.S.C.
related to the export of defense articles, including those
2370c-1), the prohibition applies to the extension of FMS
related to arms embargoes. In addition, the U.N. Security
credits and the issuance of DCS licenses, among other
Council may apply an arms embargo against a country for
identified authorities in the FAA and AECA. Each year, the
human rights purposes; Section 5 of the United Nations
State Department publishes a list of CSPA countries in its
Participation Act of 1945 (22 U.S.C. 287c) authorizes the
annual Trafficking in Persons Report.
President to implement such sanctions.
Frequently Asked Questions
Do the Leahy Laws apply to arms sales?
The U.S. “Leahy Laws”—Section 620M of the FAA (22
How does the current Administration’s
U.S.C. 2378d) and 10 U.S.C. 362—prohibit U.S. security
conventional arms transfer policy address human
assistance to a foreign security force unit when there is
rights considerations?
credible information that such unit has committed a “gross
Pursuant to a national security presidential memorandum of
violation of human rights” (GVHR)—described by the
April 19, 2018, U.S. arms transfer decisions must take into
State Department to mean (1) torture, (2) extrajudicial
consideration several factors, including “human rights and
killing, (3) enforced disappearance, or (4) rape under color
international humanitarian law.” Specified considerations
of law (in which a perpetrator abuses their official position
include the risk that an arms transfer would contribute to
to commit rape). In order to comply with the laws, the State
abuses of human rights, including acts of gender-based
Department leads a process of unit-level GVHR vetting
violence and acts of violence against children. The
before providing security assistance, including training and
memorandum prohibits transfers of conventional arms if the
equipping. The Leahy Laws, however, do not define
U.S. government has “actual knowledge at the time of
security assistance; in practice, the executive branch
authorization” that such a transfer “will be used” to commit
considers the term to mean support provided with U.S.-
genocide, crimes against humanity, or certain human rights
appropriated funds and, in its view, the restrictions are thus
violations in breach of the Geneva Conventions.
not applicable to FMS or DCS.
How does U.S. policy guidance on arms sales
Paul K. Kerr, Specialist in Nonproliferation
address human rights consideration?
Liana W. Rosen, Specialist in International Crime and
The Security Assistance Management Manual (SAMM)
Narcotics
provides the U.S. Department of Defense (DOD) with
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions

IF11197


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