Updated January 22, 2024
U.S. Arms Sales and Human Rights: Legislative Basis and
Frequently Asked Questions
U.S. law establishes the conditions under which the U.S.
unauthorized purposes or uses. See also Section 505(a)
government and U.S. commercial entities may sell defense
of the FAA (22 U.S.C. 2314(a)).
articles to foreign countries. This In Focus provides an
• Section 4 of the AECA (22 U.S.C. 2754) states that
overview of the main laws and policies that may limit such
defense articles may be sold or leased for specific
sales on the basis of human rights concerns.
purposes only, including internal security, legitimate
Background
self-defense, and participation in collective measures
The Arms Export Control Act (AECA; P.L. 90-629; 22
requested by the United Nations or comparable
U.S.C. 2751 et seq.) and the Foreign Assistance Act of
organizations. See also Section 502 of the FAA (22
1961 (FAA; P.L. 87-195; 22 U.S.C. 2151 et seq.) establish
U.S.C. 2302).
provisions governing Foreign Military Sales (FMS) and
• Section 3(c)(1)(B) of the AECA (22 U.S.C.
Direct Commercial Sales (DCS) to foreign consumers,
2753(c)(1)(B)) prohibits the sale or delivery of U.S.-
including foreign governments. FMS refers to the sale of
origin defense articles when either the President or
U.S.-origin defense articles, equipment, services, and
Congress find that a recipient country has used such
training (hereinafter referred to as “defense articles”) on a
articles in substantial violation of an agreement with the
government-to-government basis. DCS refers to the sale of
United States “for a purpose not authorized” by AECA
U.S.-government licensed defense articles and services
Section 4 or FAA Section 502. (See also Section 505(d)
directly from U.S. firms to eligible foreign governments
of the FAA (22 U.S.C. 2314(d)).) If found to be in
and international organizations.
violation by presidential determination or joint
The AECA and FAA establish eligibility prerequisites for
resolution of Congress, Section 3(c)(3) of the AECA (22
the sale of defense articles to foreign purchasers. The acts
U.S.C. 2753(c)(3)) stipulates that, absent a presidential
also require that such sales be for specific authorized
waiver, such countries would be ineligible for future
military purposes and subject to end-use monitoring
U.S. arms sales until the President determines the
(EUM). The acts authorize the termination of future sales
violation has ceased and recipients assure violations will
and deliveries if a recipient is found to be in substantial
not recur. Such a waiver is not available if Congress has
violation of a sale-related agreement with the United States
adopted a joint resolution described above.
or to be otherwise using such defense articles for
unauthorized purposes. The FAA and executive branch
Human Rights-Related Prohibitions
policy restrict certain sales of defense articles to foreign
Section 502B(a)(1) of the FAA (22 U.S.C. 2304(a)(1))
recipients found to have committed human rights violations.
states that a “principal goal” of U.S. foreign policy “shall be
to promote the increased observance of internationally
General Limitations on FMS and DCS
recognized human rights by all countries.” Section
Although the AECA does not refer specifically to human
502B(a)(2) (22 U.S.C. 2304(a)(2)) stipulates that
rights, the act includes general provisions and conditions
no security assistance may be provided to any
for the export of U.S.-origin defense articles that may
country the government of which engages in a
indirectly address human rights concerns. For example,
consistent
pattern
of
gross
violations
of
• Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
internationally recognized human rights.
authorizes the President to control the import and export
of defense articles for broad policy goals, including
Section 502B(a)(2) also restricts licenses for the export of
world peace and U.S. security and foreign policy.
“crime control and detection instruments and equipment” to
•
such countries. Certain exceptions can apply if the
Section 42(a) of AECA (22 U.S.C. 2791(a)) requires the
President certifies to Congress that “extraordinary
executive branch, to consider, among other factors,
circumstances” warrant the provision of assistance or
whether a given defense article sale might “increase the
possibility of outbreak or escalation of conflict.”
licenses. Section 502B(d)(2) of the FAA (22 U.S.C.
See
2304(d)(2)) defines “security assistance” to include, for the
also Section 511 of the FAA (22 U.S.C. 2321d).
purposes of the section, “sales of defense articles or
• Section 3(a) of AECA (22 U.S.C. 2753(a)) requires
services, extensions of credits (including participations in
prospective recipients of defense articles to meet certain
credits), and guaranties of loans” under the AECA. This
prerequisites for eligibility. These include purchaser
section also defines security assistance to include
commitments to refrain from transferring title to or
possession of any defense article to unauthorized
• assistance provided pursuant to part II of the FAA for
persons, as well as from diverting articles for
military assistance (chapter 2), the economic support
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
fund (chapter 4), military education and training
leadership to prepare a Country Team Assessment (CTA)
(chapter 5), peacekeeping operations (chapter 6), or anti-
that describes and justifies support for a proposed arms sale.
terrorism assistance (chapter 8); and
Such CTAs accompany letters of request for certain
•
significant arms sales, including those requiring
any license in effect with respect to the export to or for
congressional notification pursuant to Section 36 of the
the armed forces, police, intelligence, or other internal
AECA. According to Table C5.T1 of the SAMM, all CTAs
security forces of a foreign country of (i) defense
must include a description of the “human rights … record
articles or defense services under Section 38 of the
of the proposed recipient and the potential misuse of the
AECA (22 U.S.C. 2778); or (ii) items listed under the
defense articles in question.” Neither the AECA nor FAA
600 series of the Commerce Control List, which
explicitly requires that recipients of U.S.-origin defense
contains dual-use items controlled for export.
articles follow International Humanitarian Law (IHL). FMS
Section 502B(d)(1) of the FAA (22 U.S.C. 2304(d)(1))
customers must note their “obligations under” IHL, Figure
defines “Gross violations of internationally recognized
C5.F4. of the SAMM states.
human rights.” In determining whether a government has
engaged in such violations, Section 502B(a)(4) of the FAA
How does the U.S. government verify that
(22 U.S.C. 2304(a)(4)) requires the President to give
recipients use defense articles as authorized?
particular consideration to violations of religious freedom.
Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22
Section 502B(b) of the FAA (22 U.S.C. 2304(b))
U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) of
additionally tasks the Secretary of State to prepare a report
the FAA (22 U.S.C. 2314(a)(3)), U.S. origin defense
to Congress with information on prospective foreign
articles sold via FMS and DCS are subject to end-use
recipients of U.S. security assistance. (See also CRS In
monitoring (EUM) to ensure that recipients use such items
Focus IF10795, Global Human Rights: The Department of
solely for their intended purposes. DOD’s Defense Security
State’s Country Reports on Human Rights Practices.)
Cooperation Agency manages the department’s Golden
Sentry EUM program for defense articles sold via FMS.
Section 502B(c)(1) of the FAA (22 U.S.C. 2304(c)(1))
The State Department’s Directorate of Defense Trade
provides mechanisms for Congress to request a report, due
Controls coordinates the Blue Lantern program, which
within 30 days, from the Secretary of State concerning
performs an analogous function for items sold via DCS.
human rights in a particular country. Pursuant to Section
502B(c)(4)(A) of the FAA (22 U.S.C. 2304(c)(4)(A),
Can arms embargoes be applied on the basis of
Congress may, at any time after receiving such a report,
human rights concerns?
“adopt a joint resolution terminating, restricting, or
The United States can impose an arms embargo on a
continuing security assistance for such country.” If the State
foreign government based on human rights considerations.
Department does not produce the report within 30 days, this
The International Traffic in Arms Regulations reflect the
section prohibits delivery of security assistance to the
executive branch’s implementation of statutory provisions
country in question pending the report’s delivery. The
related to the export of defense articles, including those
executive branch has objected to the provision on
related to arms embargoes. In addition, the U.N. Security
constitutional grounds; George H.W. Bush did so in a 1989
Council may apply an arms embargo against a country for
signing statement.
human rights reasons; Section 5 of the United Nations
Executive branch determinations pursuant to some other
Participation Act of 1945 (22 U.S.C. 287c) authorizes the
human rights-related laws, such as the Trafficking Victims
President to implement such sanctions.
Protection Act (Division A of P.L. 106-386, as amended),
can also result in restrictions on arms sales to certain
Do the Leahy Laws apply to arms sales?
foreign governments.
The U.S. “Leahy Laws”—Section 620M of the FAA (22
U.S.C. 2378d) and 10 U.S.C. 362—prohibit certain U.S.
Frequently Asked Questions
“assistance” to a foreign security force unit when there is
credible information that such unit has committed a “gross
How does the Administration’s conventional arms
violation of human rights” (GVHR). The State Department
transfer policy address human rights concerns?
interprets this term to encompass (1) torture, (2)
Pursuant to a national security presidential memorandum of
extrajudicial killing, (3) enforced disappearance, or (4) rape
February 23, 2023, the United States will not authorize
under color of law (in which a perpetrator abuses their
arms transfers if “it is more likely than not that” such arms
official position to commit rape), although other acts can
“will be used by the recipient to commit, facilitate the
also constitute GVHRs. The State Department leads a
recipients’ commission of, or to aggravate risks that the
process of unit-level GVHR vetting before providing
recipient will commit: genocide; crimes against humanity;
security assistance. The Leahy Laws do not define
grave breaches of the Geneva Conventions of 1949 ... or
“assistance”; in practice, the executive branch considers the
other serious violations of international humanitarian or
term to mean support provided with U.S.-appropriated
human rights law.”
funds. The restrictions are thus not applicable to FMS or
DCS. (See also CRS In Focus IF10575, Global Human
How does U.S. policy guidance on arms sales
Rights: Security Forces Vetting (“Leahy Laws”).)
address human rights considerations?
The Security Assistance Management Manual (SAMM)
Paul K. Kerr, Specialist in Nonproliferation
provides the U.S. Department of Defense (DOD) with
Michael A. Weber, Analyst in Foreign Affairs
policy guidance for executing arms sales. Among its
provisions, the SAMM requires senior U.S. Embassy
IF11197
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions


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https://crsreports.congress.gov | IF11197 · VERSION 10 · UPDATED

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