A recent report from Human Rights Watch and subsequent investigations by journalists tell an all-too-familiar story: the U.S. military trained Saudi border guards accused of killing hundreds of Ethiopian migrants and asylum seekers crossing the border between Saudi Arabia and Yemen. Munira, a 20-year-old woman from Oromia, told Human Rights Watch how Saudi guards picked her up from a detention center in Daer and sent her toward the Yemen border in a minibus. The guards ordered the group of about 20 to “get out of the car and get away.” Munira and the others ran and stopped to rest a kilometer away. Then, she recounted, the guards used a weapon “like a rocket launcher” and “fired on us like rain.”
The abuses may amount to crimes against humanity.
Sadly, the report, and Munira’s experience, is the latest example of a common trend. For too long, the United States has turned a blind eye to the human costs of its security assistance and arms sales to foreign governments. But Congress has the opportunity to protect human rights, prevent civilian harm, and promote accountability through the SAFEGUARD Act.
On March 29, Senator Robert Menendez (D-NJ) and Representative Gregory Meeks (D-NY) – the highest-ranking Democrats on the congressional foreign affairs committees – reintroduced a bill to elevate human rights in U.S. arms exports. The Safeguarding Human Rights in Arms Exports Act (“SAFEGUARD Act”) was first introduced in 2020..
U.S. weapons have long facilitated human rights abuses and civilian harm around the world and recently drawn congressional attention, but the SAFEGUARD Act is notable for its breadth and the positions of its authors on key foreign policy committees. The bill offers a to-do list for arms sales reform, and its lead proponents may have the influence to enact the bill into law, whether as a standalone measure or in a piecemeal fashion.
Specifically, the SAFEGUARD Act would enhance human rights in the framework laws governing U.S. arms sales by: establishing human rights as a permanent priority in arms transfer decisions; restricting arms sales to governments that commit certain atrocity crimes; expanding the scope of the Leahy Laws; reforming the U.S. end-use monitoring law to require tracking of violations of international human rights or humanitarian law; and increasing congressional oversight for arms sales to particularly high-risk buyers.
The Problem: U.S. Arms Transfers and Human Rights Abuses
The United States is the world’s leading supplier of weapons, exporting more than the next four countries (Russia, France, the U.K., and China) combined. These arms sales often make the U.S. contribute to, and complicit in, human rights violations and civilian harm.
In many instances, U.S. arms exports enabled likely atrocities by the Saudi-led coalition in Yemen. Press reports show a bomb manufactured in Texas killed dozens of children in a school bus in Dhahyan, Yemen. Egyptian security forces used a U.S. Apache helicopter to severely wound an American visiting a popular tourist site. Saudi Arabia and the United Arab Emirates gave militias linked to al-Qaeda U.S. weapons to curry favor. Along with these abuses, equipment that originated in the United States has fueled violence, corruption, and crime, and even been used to intimidate the State Department’s own staff.
Examples abound, and the scale of the problem – both for global security and U.S. foreign policy – is clear.
On paper, the Biden administration has made stronger commitments to elevating human rights in arms transfers and security assistance than any previous administration. The Conventional Arms Transfer (CAT) policy and Civilian Harm Mitigation and Response Action Plan (CHMR-AP) aspire to incorporate human rights and civilian harm concerns into arms transfers and security cooperation decisions. But legislation remains crucial to enshrine strong human rights safeguards in law, especially since each of the last three presidents has revoked and replaced their predecessor’s policy.
The SAFEGUARD Act contains several proposals that could make significant progress toward that end.
Codifying Human Rights Considerations for Arms Transfers
The Arms Export Control Act of 1976 structures how U.S. arms transfers take place, delegating to the president the authority to conduct and regulate arms exports while providing guiding principles and restrictions. However, U.S. human rights and international humanitarian law obligations do not appear in the Arms Export Control Act. Instead, the law’s guiding principles leave significant gaps, which means that presidents can shape arms transfer decisions to their policy preferences, even when those preferences make it easier for U.S. arms transfers to implicate the United States in potential civilian harm or international law violations.
Six presidents, beginning with Jimmy Carter, have released Conventional Arms Transfer (CAT) policies that defined how their administrations made arms transfer decisions. Human rights considerations have appeared in every CAT policy except that of Ronald Reagan, although some policies, such as Donald Trump’s, deemphasized human rights while elevating industry concerns.
In February 2023, President Biden released his CAT policy, which emphasizes human rights and civilian harm to a greater extent than any of its predecessors. However, the success or failure of the policy will lie in its implementation, and a future president could revoke the Biden policy.
When they reintroduced the SAFEGUARD Act in May 2023, Menendez and Meeks framed the bill as an effort “to build on [Biden’s CAT] policy and codify it into law so that it cannot be easily undone by future Administrations.”
Although many provisions of the SAFEGUARD Act would reinforce and intersect with the Biden CAT policy, the provisions that most clearly codify Biden’s approach define U.S. foreign policy objectives and require the consideration of certain factors in arms transfer decisions. Such objectives and considerations have long been a feature of CAT policies, but the policies do not clearly prioritize or weighting considerations. Each president can revoke their predecessor’s policy and reformulate those considerations and objectives at will. While lists of considerations from the president can help shape the arms transfer decision making process and send a signal to U.S. government decisionmakers, lists of factors do not necessarily change outcomes, and the format has received criticism.
The Biden CAT policy establishes that “[p]revent[ing] arms transfers that risk facilitating or otherwise contributing to violations of human rights or international humanitarian law” and “reinforcing respect for human rights, international humanitarian law, democratic governance, and rule of law” are U.S. foreign policy objectives. Similarly, the SAFEGUARD Act stipulates that a purpose of U.S. export controls for defense articles and defense services (a technical term defined in the International Traffic in Arms Regulations) is preventing such articles and services from being used to violate international humanitarian or human rights law. The bill further states that “[i]t is the policy of the United States … to ensure that the sale, export, or transfer of [defense] articles and services serves to encourage governments of foreign countries to fully comply with international humanitarian law and observe human rights.”
Although defining objectives may not have immediate consequences for U.S. arms sales, it would prevent the erasure of human rights objectives under the CAT policy of a future president and could influence executive branch arms transfer decisions by providing requirements that government officials would need to factor into decision making processes. No policy statement concerning human rights exists in the Arms Export Control Act, meaning that human rights considerations for arms transfers currently only exist in the form of revocable CAT policies.
Just like the Biden CAT policy, the SAFEGUARD Act also requires the U.S. government to consider certain factors when making arms transfer decisions. Section 5 of the Act codifies consideration of human rights protections, support for democracy, and judicial independence, and requires consultation with the State Department’s Bureau of Democracy, Human Rights, and Labor. Similar considerations feature in President Biden’s CAT policy.
However, unlike the CAT policy, the SAFEGUARD Act would ensure implementation oversight by instituting an Inspector General report every four years on implementation of the required considerations. Oversight from the Inspector General would help Congress remain apprised of how presidents incorporate human rights considerations into arms transfer decisions and whether policy considerations change outcomes, which has often been unclear for CAT policies. The reports would also provide periodic opportunities for further congressional engagement, just as recent Government Accountability Office reports about the misuse of U.S. weapons and equipment have triggered scrutiny from key legislators.
Restricting Arms Sales to Countries with Atrocities
Section 502B(a) of the Foreign Assistance Act (22 U.S.C. § 2304(a)) bans security assistance, including arms sales, to countries where the government engages in a consistent pattern of gross violations of human rights, which the State Department interprets to include “torture, extrajudicial killing, enforced disappearance, and rape under color of law.”
Section 3 of the SAFEGUARD Act would expand upon the restriction in Section 502B by banning the sale, export, or transfer of defense articles or defense services to “any country the government of which the Secretary of State determines has committed, or is committing, genocide or war crimes.” Drawing from the Leahy Law – which generally prohibits the U.S. government from providing assistance to units of foreign security forces credibly accused of gross violations of human rights – the restriction incorporates a remediation mechanism that allows arms sales only after measures to ensure accountability, nonrecurrence, and compensation to the people harmed.
Existing challenges with enforcing Section 502B could also apply to the SAFEGUARD Act’s similar restriction. My research shows that the executive branch has rarely found that the Section 502B(a) restriction on security assistance applies to a particular recipient country due to the State Department’s high standard for determining whether a government engages in a consistent pattern of gross violation of human rights. The executive branch’s failure to consistently enforce Section 502B(a) contributed to the passage of the Leahy Law. Formal genocide determinations are extremely rare given the high legal thresholds involved, and can also be prone to politicization. A determination implicating a partner that triggers a legally binding restriction would be especially difficult due to the consequences for a bilateral diplomatic and security relationship.
Notwithstanding potential difficulties with implementation, the restriction in the SAFEGUARD Act would be valuable. War crimes and genocide are not included in human rights restrictions in Section 502B and the Leahy Law. While the Obama, Trump, and Biden CAT policies all contain restrictions on arms transfers likely to contribute (each administration used a different standard of certainty) to genocide and war crimes, they do not include a restriction on arms transfers to countries where the government has committed or is committing genocide or war crimes, regardless of the likelihood of U.S. weapons contributing to those crimes. The SAFEGUARD Act would offer a legally binding restriction to drive monitoring of partners’ possible genocide or war crimes, and it would give the U.S. government leverage for both prevention and accountability by witholding arms sales. Allowing for remediation would build some flexibility into the law and incentivize accountability.
Clarifying that the Leahy Law Applies to All US Arms Sales
The executive branch interprets the Leahy Law to apply only to assistance provided through appropriated funds. Under this interpretation, if U.S. taxpayer dollars pay for assistance (such as when the U.S. military offers to train foreign partner forces), the Leahy Law applies. But if a recipient instead pays for arms or training – as the government of Saudi Arabia paid the Department of Defense to train border guards – then the Leahy Law does not apply and Leahy vetting does not occur.
Therefore, when a buyer pays for U.S. weapons – whether they pay the U.S. government or a private company – there is no vetting for whether the recipient has committed a gross violation of human rights. The gap has consequences – arms sales are critical foreign policy decisions regardless of who foots the bill, and the U.S. government has the authority to regulate arms exports by any party.
Section 7 of the SAFEGUARD Act would ensure that Leahy vetting applies to all U.S. arms sales regardless of who pays. It would amend the State Department Leahy Law (another version of the law applies to the Department of Defense) to clarify that, “No assistance, including the sale of defense articles or defense services” (emphasis added) shall be provided to a foreign security force unit that has committed a gross violation of human rights. The prohibition would extend to assistance authorized under any U.S. law controlling exports of defense articles or defense services.
The SAFEGUARD Act’s amendment to the Leahy Law would significantly increase the volume of U.S. assistance subject to Leahy vetting. While an expansion of Leahy vetting would require greater resources for the State Department’s Bureau of Democracy, Human Rights, and Labor, which oversees Leahy vetting, Congress could resource the increased responsibility through the routine annual appropriations process.
Strengthening Accountability for Misuse of U.S. Arms
Current U.S. oversight of how its weapons are used after a sale, known as end-use monitoring (EUM), does not monitor the actual use of weapons at all – much less whether U.S. weapons are used to violate international human rights or humanitarian law. Developed during the Cold War, these EUM procedures instead focus on protecting U.S. defense technology from unauthorized transfer to adversaries.
In an apparent recognition of that gap, the Biden CAT policy states, “The United States will engage in appropriate monitoring as part of its effort aimed at ensuring transferred arms are used responsibly and in accordance with [human rights] conditions and obligations.” Despite this language, EUM programs as they exist today offer no such assurances.
Congress has recently shown increased interest in reforming EUM. Following a June 2022 Government Accountability Office report on tracking of U.S. weapons used by Saudi and Emirati forces in Yemen, Senators Elizabeth Warren (D-MA.), Bernie Sanders (D-VT), and Mike Lee (R-UT) exchanged letters with the Departments of State and Defense expressing “serious concerns about how DoD and the State Department track and monitor U.S.-origin weapons.” In this year’s report language accompanying the House-passed National Defense Authorization Act, an amendment led by Representative Sara Jacobs (D-CA) would require a report into how EUM practices address human rights violations. Other provisions in the House bill would require reports on EUM practices.
On Sept. 13, the Washington Post reported that the State Department has “established a new system for responding to incidents in which foreign forces are suspected of using American-made weapons to injure or kill civilians.” Senator Menendez described the initiative as “adopting an element of … [the] SAFEGUARD Act.” The reporting also noted that enacting the SAFEGUARD Act “would ensure that the new procedures can’t be abolished by a future administration.”
The SAFEGUARD Act would expand the legal mandate for EUM ensure that the U.S. government tracks whether U.S. weapons are used to violate international human rights or humanitarian law and responds appropriately when violations are found.
Sections 4 and 8 of SAFEGUARD Act would make three key changes to the Arms Export Control Act relevant to EUM. First, and most directly, the Act would require EUM programs to ensure that “[defense] articles and services are not being used to violate international humanitarian law or international human rights law.” Second, it would limit eligibility for arms sales to countries that agree “not to use such article or service in the commission, or to enable the commission, of a violation of international humanitarian law or international human rights law.” Third, the Act would clarify that it is a purpose of U.S. arms transfers to ensure that “defense articles and defense services will not present a significant risk of being used to violate international humanitarian law or international human rights law.” The latter two amendments would change the purposes and requirements for U.S. arms transfers referenced in the EUM statute. Taken together, these three changes would make clear that EUM must track violations of international human rights and humanitarian law and embed those requirements in formal export agreements.
In theory, EUM violations bring legal consequences. Substantial violations of transfer agreements or use of weapons for any purpose other than those established in the Arms Export Control Act should trigger a presidential notification to Congress and make a recipient ineligible for further transfers. But in practice notifications do not occur, and many governments that appear to have used weapons for improper purposes still continue to receive arms transfers.
The SAFEGUARD Act gives the United States another EUM accountability tool specific to human rights. It would establish that the U.S. government has a right to “require the return of any defense articles … 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 international human rights law.” If used effectively, this tool could help ensure that the U.S. government can prevent already-transferred weapons from facilitating abuses.
When it comes to EUM, amending the law would be just the beginning of changes needed to track whether U.S. weapons are used to violate human rights or harm civilians. Existing EUM programs are designed to safeguard U.S. technology, not track violations of international human rights or humanitarian law. Doing so would require different methods. Amending the law is an important step, but the State Department and Department of Defense would need time, and resources from Congress, to develop and execute a program focused on international human rights and humanitarian law. The Intelligence Community, too, may need to play a greater role in tracking the use of U.S.-origin arms and equipment. Although intelligence agencies do not participate in current end-use monitoring programs, more proactive information collection would help determine when U.S. weapons are used to harm civilians or violate international humanitarian or human rights law.
Enhancing Congressional Oversight
The SAFEGUARD Act would ensure that Congress has an opportunity to review all arms sales to certain countries based on specified risk factors. Today, under the Arms Export Control Act, the president is required to notify Congress of arms sales when the sale exceeds a specified dollar-value threshold, generally $50 million for sales of defense articles or defense services to most countries. After a notification, Congress has a statutorily designated number of days, generally thirty, to pass a joint resolution of disapproval blocking the arms sale.
Section 6 of the SAFEGUARD Act would expand congressional oversight to require that every U.S. arms sale, whether by the U.S. government or a company in the United States, is subject to notification and disapproval procedures when the recipient country has experienced a coup d’etat or when a unit of the security forces of the recipient government has committed any of a number of abuses. The covered abuses include violations of international humanitarian law and gross violations of human rights that have not been investigated or subjected to “a credible and transparent judicial process.” The expanded congressional notification requirement would remain in place for two years after the Secretary of State receives information about the violation, but could terminate earlier if violations have stopped and the government of the recipient country has taken accountability measures, including punishment and measures to ensure nonrecurrence.
Determining whether Section 6’s conditions occur leaves room for executive branch discretion. Coup determinations in other contexts have been especially fraught. Nevertheless, the SAFEGUARD Act would create a new hook for congressional oversight to ensure that the State Department follows its reporting structure.
For countries meeting Section 6’s conditions, the SAFEGUARD Act would also require biannual State Department human rights reports under Section 502B(c) of the Foreign Assistance Act (22 U.S.C. § 2304(c)), a rarely used human rights oversight mechanism. After receiving the report, any member of Congress may introduce a joint resolution of disapproval to restrict, terminate, or continue security assistance – including arms sales – to the country in question. The joint resolution is privileged, meaning that any Senator can send the resolution directly to the floor ten days after introduction, thereby preventing it from dying in committee.
Just as expanded Arms Export Control Act notifications would provide opportunities for congressional pushback on individual sales, Section 502B(c) reports open the door to joint resolutions of disapproval, which could allow Congress to prospectively restrict U.S. security partnerships with abusive governments. If the SAFEGUARD Act became law, its invocation of Section 502B(c) would institutionalize enhanced human rights reporting to inform congressional decision-making around arms sales to unreliable partners. It would also mark a significant step towards regularizing the use of Section 502B more broadly to conduct human rights oversight of U.S. arms sales and security assistance, complementing existing mechanisms such as the Leahy Law and AECA joint resolutions of disapproval.
Enacting a joint resolution of disapproval – whether regarding an individual sale under the Arms Export Control Act or a broader security relationship under Section 502B – is exceedingly difficult, requiring supermajorities in both chambers of Congress to overcome an expected presidential veto. However, the public attention that a joint resolution draws, facilitated by procedures to fast track a floor debate, could provide momentum to restrict arms transfers or security assistance through amendments to must-pass legislation like the National Defense Authorization Act or annual appropriations acts.
The SAFEGUARD Act would not fix everything about U.S. arms sales and security assistance. But it does offer Congress the beginning of a robust reform agenda. Enacting the SAFEGUARD Act, whether in full or in a piecemeal fashion through must-pass legislation, would mark an important step toward remedying some of the most significant human rights issues related to U.S. arms transfers.
The abuse and violence that Munira and other migrants experienced from U.S.-trained border guards cannot be undone. Nor can other acts of violence around the world that U.S. bullets and bombs enable. But the SAFEGUARD Act provides a pathway to push for accountability and prevent further harm.