Democratic lawmakers are planning to introduce legislation to put more stringent human rights constraints on the United States’ foreign arms sales, arguing that countries with a history of unresolved human rights violations should be subject to greater scrutiny and possibly prohibited from buying US-made weaponry, according to a draft version of the legislation reviewed by CNN.
The legislation, which is being proposed by Sens. Robert Menendez, Patrick Leahy and Tim Kaine, would give Congress the ability to point to specific human rights abuses as a reason to disapprove of arms sales to certain countries.
“Safeguarding and prioritizing basic human rights in the sale or transfer of lethal arms and in training, advising and support services is not just a moral imperative; it is a fundamental responsibility for any country that wishes to provide such weapons or services to others,” Menendez, the ranking member on the Senate Foreign Relations Committee, said. “The United States has for too long devoted inadequate care to this responsibility, and innocent people have suffered for it.”
The Trump administration attracted a fierce backlash for declaring an emergency to circumvent congressional opposition and sell billions in weapons to partners including Saudi Arabia and the United Arab Emirates. Lawmakers opposed the sale due to the two countries involvement in the bloody conflict in Yemen, which has killed thousands of civilians, as well as the killing of journalist Jamal Khashoggi at the hands of Saudi officials. The emergency declaration was investigated by the State Department inspector general.
In a report released last month, the watchdog found the agency complied with legal requirements in declaring an emergency to sell the arms but did not fully assess the risks to civilians associated with that sale.
While the effort to draft the proposed law has been in the works for over a year, according to congressional sources familiar with the process, this investigation revealed why the senators see this legislation as necessary.
The legislation is being also introduced as the Trump administration is in discussions, led by President Donald Trump’s son-in-law Jared Kushner, about the possible sale of F-35s to the UAE.
Members of Congress have already voiced concerns about the potential sale for a number of reasons, and this new legislation, if it becomes law, could add an additional layer of scrutiny based on findings by the United Nations that UAE and UAE-backed forces practiced arbitrary detention and torture in detention facilities in Yemen.
The US Conventional Arms Transfer policy, which was updated during the Trump administration in 2018, does reference human rights concerns.
It says the executive branch shall consider “the risk that the transfer may be used to undermine international peace and security or contribute to abuses of human rights, including acts of gender-based violence and acts of violence against children, violations of international humanitarian law, terrorism, mass atrocities, or transnational organized crime.”
But Trump has publicly said that the driving factor in determining if a country should be able to secure US weaponry, in his eyes, is its capability to pay, rather than human rights concerns.
Wide definition of human rights violations
According to the newly proposed legislation, called the SAFEGUARD Act, human rights violations would include if the government of a country has been involved in a military coup and no democratically elected government has taken office, if the security forces of a country violated humanitarian law or committed gross violations of human rights including rape, ethnic cleansing, the recruitment of child soldiers, wrongful detentions or extrajudicial killings and have not been investigated credibly and subject to a judicial process.
With a practice known as the Leahy vetting requirement, some of these constraints already apply in the cases of foreign military financing – specifically in that it requires the State Department to vet the unit designated to receive assistance from the US as well as that unit’s commander – and this legislation would expand their application to direct commercial sales.
“Today, U.S. law provides a lower standard for protecting human rights when foreign partners purchase U.S. weapons, as opposed to when we provide them weapons free of charge. That makes no sense and it is bad policy,” Leahy said.
The legislation would also give the US 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 inter-national humanitarian law or internationally recognized human rights,” the proposed legislation reads.
If former vice president Joe Biden wins presidential election in November the chance of getting executive branch support for this effort would increase, but if Trump remains in office for another term it is virtually assured that the legislation would be vetoed by the White House.
If this new legislation does become law – a process that would not happen before the end of this year – it is expected to increase scrutiny on further arms sales to Saudi Arabia. There are concerns that the Trump administration have given Saudi Arabia favorable treatment, despite the Khashoggi murder, on a number of issues including arms sales and Democrats in Congress want to apply additional layers of scrutiny to the process of arms sales to that country in particular.
Trump boasted to Bob Woodward in his new book, “Rage,” that he ‘saved his a–” referring to the Saudi Crown Prince Mohammed bin Salman after the Khashoggi murder. When asked what he meant by that Trump told a reporter “You’ll have to figure that out yourself.”