U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions

Updated February 29, 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, “defense articles”) on a government-
articles in substantial violation of an agreement with the
to-government basis. DCS refers to the sale of U.S.-
United States “for a purpose not authorized” by AECA
government licensed defense articles and services directly
Section 4 or FAA Section 502. (See also Section 505(d)
from U.S. firms to eligible foreign governments and
of the FAA (22 U.S.C. 2314(d)).) If found to be in
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
Human Rights-Related Prohibitions
unauthorized purposes. The FAA and executive branch
Section 502B(a)(1) of the FAA (22 U.S.C. 2304(a)(1))
policy restrict certain sales of defense articles to foreign
states that a “principal goal” of U.S. foreign policy “shall be
recipients found to have committed human rights violations.
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)) prohibits security
rights, the act includes general provisions and conditions
assistance to “any country the government of which
for the export of U.S.-origin defense articles that may
engages in a consistent pattern of gross violations of
indirectly address human rights concerns. For example,
internationally recognized human rights.” Section
•
502B(a)(2) also restricts licenses for the export of “crime
Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
control and detection instruments and equipment” to such
authorizes the President to control the import and export
countries. Certain exceptions can apply if the President
of defense articles for broad policy goals, including
certifies to Congress that “extraordinary circumstances”
world peace and U.S. security and foreign policy.
warrant the provision of assistance or licenses.
• Section 42(a) of AECA (22 U.S.C. 2791(a)) requires the
Section 502B(d)(2) of the FAA (22 U.S.C. 2304(d)(2))
executive branch, to consider, among other factors,
defines “security assistance” to include, for the purposes of
whether a given defense article sale might “increase the
possibility of outbreak or escalation of conflict.”
the section, “sales of defense articles or services, extensions
See
of credits (including participations in credits), and
also Section 511 of the FAA (22 U.S.C. 2321d).
guaranties of loans” under the AECA. This section also
• Section 3(a) of AECA (22 U.S.C. 2753(a)) requires
defines security assistance to include
prospective recipients of defense articles to meet certain
prerequisites for eligibility. These include purchaser
• assistance provided pursuant to part II of the FAA for
commitments to refrain from transferring title to or
military assistance (chapter 2), the economic support
possession of any defense article to unauthorized
fund (chapter 4), military education and training
persons, as well as from diverting articles for
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
(chapter 5), peacekeeping operations (chapter 6), or anti-
provisions, the SAMM requires senior U.S. Embassy
terrorism assistance (chapter 8); and
leadership to prepare a Country Team Assessment (CTA)
•
that describes and justifies support for a proposed arms sale.
any license in effect with respect to the export to or for
Such CTAs accompany letters of request for certain
the armed forces, police, intelligence, or other internal
significant arms sales, including those requiring
security forces of a foreign country of (i) defense
congressional notification pursuant to Section 36 of the
articles or defense services under Section 38 of the
AECA. According to Table C5.T1 of the SAMM, all CTAs
AECA (22 U.S.C. 2778); or (ii) items listed under the
must include a description of the “human rights … record
600 series of the Commerce Control List, which
of the proposed recipient and the potential misuse of the
contains dual-use items controlled for export.
defense articles in question.” Neither the AECA nor FAA
Section 502B(d)(1) of the FAA (22 U.S.C. 2304(d)(1))
explicitly requires that recipients of U.S.-origin defense
defines “Gross violations of internationally recognized
articles follow International Humanitarian Law (IHL). FMS
human rights.” In determining whether a government has
customers must note their “obligations under” IHL, Figure
engaged in such violations, Section 502B(a)(4) of the FAA
C5.F4. of the SAMM states.
(22 U.S.C. 2304(a)(4)) requires the President to give
particular consideration to violations of religious freedom.
How does the U.S. government verify that
Section 502B(b) of the FAA (22 U.S.C. 2304(b))
recipients use defense articles as authorized?
additionally tasks the Secretary of State to prepare a report
Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22
to Congress with information on prospective foreign
U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) of
recipients of U.S. security assistance.
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(c)(1) of the FAA (22 U.S.C. 2304(c)(1))
monitoring (EUM) to ensure that recipients use such items
provides mechanisms for Congress to request a report, due
solely for their intended purposes. DOD’s Defense Security
within 30 days, from the Secretary of State concerning
Cooperation Agency manages the department’s Golden
human rights in a particular country. Pursuant to Section
Sentry EUM program for defense articles sold via FMS.
502B(c)(4)(A) of the FAA (22 U.S.C. 2304(c)(4)(A),
The State Department’s Directorate of Defense Trade
Congress may, at any time after receiving such a report,
Controls coordinates the Blue Lantern program, which
“adopt a joint resolution terminating, restricting, or
performs an analogous function for items sold via DCS.
continuing security assistance for such country.” If the State
Department does not produce the report within 30 days, this
Can arms embargoes be applied on the basis of
section prohibits delivery of security assistance to the
human rights concerns?
country pending the report’s delivery. The executive branch
The United States can impose an arms embargo on a
has objected to the provision on constitutional grounds;
foreign government based on human rights considerations.
George H.W. Bush did so in a 1989 signing statement.
The International Traffic in Arms Regulations reflect the
Executive branch determinations pursuant to some other
executive branch’s implementation of statutory provisions
human rights-related laws, such as the Trafficking Victims
related to the export of defense articles, including those
Protection Act (Division A of P.L. 106-386, as amended),
related to arms embargoes. In addition, the U.N. Security
can also result in restrictions on arms sales to certain
Council may apply an arms embargo against a country for
foreign governments.
human rights reasons; Section 5 of the United Nations
Participation Act of 1945 (22 U.S.C. 287c) authorizes the
Frequently Asked Questions
President to implement such sanctions.
How does the Administration’s conventional arms
Do the Leahy Laws apply to arms sales?
transfer policy address human rights concerns?
The U.S. “Leahy Laws”—Section 620M of the FAA (22
Pursuant to a February 23, 2023, National Security
U.S.C. 2378d) and 10 U.S.C. 362—prohibit certain U.S.
Memorandum (NSM), the United States will not authorize
“assistance” to a foreign security force unit when there is
arms transfers if “it is more likely than not that” such arms
credible information that such unit has committed a “gross
“will be used by the recipient to commit, facilitate the
violation of human rights” (GVHR). The State Department
recipients’ commission of, or to aggravate risks that the
interprets this term to encompass (1) torture, (2)
recipient will commit: genocide; crimes against humanity;
extrajudicial killing, (3) enforced disappearance, or (4) rape
grave breaches of the Geneva Conventions of 1949 ... or
under color of law (in which a perpetrator abuses their
other serious violations of international humanitarian or
official position to commit rape), although other acts can
human rights law.” A February 8, 2024, NSM requires
also constitute GVHRs. The State Department leads a
“credible and reliable written assurances” that recipients of
process of unit-level GVHR vetting before providing
U.S. arms funded with congressional appropriations or
security assistance. The Leahy Laws do not define
provided pursuant to Presidential drawdown authority will
“assistance”; in practice, the executive branch considers the
use such arms in accordance with applicable international
term to mean support provided with U.S.-appropriated
law.
funds. The restrictions are thus not applicable to FMS or
DCS. (See also CRS In Focus IF10575, Global Human
How does Department of Defense policy guidance
Rights: Security Forces Vetting (“Leahy Laws”).)
on arms sales 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
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions

IF11197


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https://crsreports.congress.gov | IF11197 · VERSION 11 · UPDATED

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