II 

116TH CONGRESS 

2D SESSION S. 4712 

To enhance the consideration of human rights in arms exports. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 24, 2020 

Mr. MENENDEZ (for himself, Mr. LEAHY, and Mr. KAINE) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations 

A BILL 

To enhance the consideration of human rights in arms 

exports. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Safeguarding Human 

5 Rights in Arms Exports Act of 2020’’ or the ‘‘SAFE6 GUARD Act’’. 


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1 SEC. 2. STATEMENT OF POLICY ON CONTROL OF DEFENSE 

2 EXPORTS AND PROTECTION OF HUMAN 

3 RIGHTS. 

4 It is the policy of the United States that one of the 

5 purposes for controlling the export of defense articles and 

6 defense services to foreign countries is to prevent such ex7 ports from being used in violation of international humani8 tarian law or internationally recognized human rights, to 

9 require accountability for any such violations, and to en10 sure that the sale, export, or transfer of such articles and 

11 services serves to encourage governments of foreign coun12 tries to fully comply with international humanitarian law 

13 and observe internationally recognized human rights. 

14 SEC. 3. PROHIBITION OF ARMS SALES TO COUNTRIES COM15 MITTING GENOCIDE OR WAR CRIMES. 

16 (a) IN GENERAL.—No sale, export, or transfer of de17 fense articles or defense services may occur to any country 

18 if the Secretary of State has credible information that the 

19 government of such country has committed or is commit20 ting genocide or violations of international humanitarian 

21 law after the date of the enactment of this Act. 

22 (b) EXCEPTION.—The restriction under subsection 

23 (a) shall not apply if the Secretary of State certifies to 

24 the appropriate congressional committees that— 

25 (1) the government has adequately punished the 

26 persons directly or indirectly responsible for such 


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1 acts through a credible, transparent, and effective 

2 judicial process; 

3 (2) appropriate measures have been instituted 

4 to ensure that such acts will not recur; and 

5 (3) other appropriate compensation or appro6 priate compensatory measures have been or are 

7 being provided to the persons harmed by such acts. 

8 SEC. 4. MISUSE OF ARMS SALES FOR HUMAN RIGHTS 

9 ABUSES. 

10 (a) IN GENERAL.—The President shall ensure that— 

11 (1) the sale, export, or transfer of any defense 

12 article or defense service to a foreign country or 

13 international organization shall be pursuant to an 

14 agreement that the government of such country or 

15 such international organization will not use such ar16 ticle or service in the commission, or to enable the 

17 commission, of a violation of international humani18 tarian law or internationally recognized human 

19 rights; 

20 (2) the United States Government has the legal 

21 right to require the return of any defense articles 

22 sold, exported, or transferred to a foreign country or 

23 international organization if the government of such 

24 country or such organization has used United 

25 States-origin defense articles in the commission, or 


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1 has enabled the commission, of a violation of inter2 national humanitarian law or internationally recog3 nized human rights; and 

4 (3) if defense articles are sold, exported, or 

5 transferred to a foreign country in a manner in 

6 which the intended end user has not been identified 

7 at the unit level for human rights vetting, the agree8 ment for such sale, export, or transfer includes a list 

9 of units ineligible to receive such articles, consistent 

10 with applicable provisions of United States law. 

11 (b) ELIGIBILITY FOR DEFENSE SERVICES OR ARTI12 CLES.—Section 3(a) of the Arms Export Control Act (22 

13 U.S.C. 2753(a)) is amended— 

14 (1) in paragraph (1), by striking ‘‘and promote 

15 world peace’’ and inserting ‘‘, promote world peace, 

16 and is unlikely to contribute to human rights 

17 abuses’’; 

18 (2) in paragraph (3), by striking ‘‘; and’’ and 

19 inserting a semicolon; 

20 (3) by redesignating paragraph (4) as para21 graph (5); and 

22 (4) by inserting after paragraph (3) the fol23 lowing new paragraph: 

24 ‘‘(4) the country or international organization 

25 has agreed not to use such article or service in the 


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1 commission, or to enable the commission, of a viola2 tion of international humanitarian law or inter3 nationally recognized human rights; and’’. 

4 (c) AUTHORIZED PURPOSE FOR MILITARY SALES.— 

5 Section 4 of the Arms Export Control Act (22 U.S.C. 

6 2754) is amended— 

7 (1) by inserting ‘‘legitimate’’ before ‘‘internal 

8 security’’; and 

9 (2) by inserting ‘‘, provided that such defense 

10 articles and defense services will not present a sig11 nificant risk of being used to violate international 

12 humanitarian law or internationally recognized 

13 human rights’’ after ‘‘such friendly countries’’. 

14 SEC. 5. CONSIDERATION OF HUMAN RIGHTS AND DEMOC15 RATIZATION IN ARMS EXPORTS. 

16 (a) IN GENERAL.—In considering the sale, export, or 

17 transfer of defense articles and defense services to foreign 

18 countries, the Secretary of State shall— 

19 (1) also consider the extent to which the gov20 ernment of the foreign country protects human 

21 rights and supports democratic institutions, includ22 ing an independent judiciary; and 

23 (2) ensure that the views and expertise of the 

24 Bureau of Democracy, Human Rights, and Labor of 


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1 the Department of State in connection with any sale, 

2 export, or transfer are fully taken into account. 

3 (b) INSPECTOR GENERAL OVERSIGHT.—Not later 

4 than one year after the date of the enactment of this Act, 

5 and annually thereafter for four years, the Inspector Gen6 eral of the Department of State shall submit to the appro7 priate congressional committees a report on the implemen8 tation of the requirement under subsection (a) during the 

9 preceding year. 

10 SEC. 6. ENHANCEMENT OF CONGRESSIONAL OVERSIGHT 

11 OF HUMAN RIGHTS IN ARMS EXPORTS. 

12 (a) IN GENERAL.—Any letter of offer to sell, or any 

13 application for a license to export or transfer, defense arti14 cles or defense services controlled for export shall be sub15 ject to the congressional review and disapproval require16 ments, regardless of monetary value, of section 36 of the 

17 Arms Export Control Act (22 U.S.C. 2776) if the Sec18 retary of State has credible information, with respect to 

19 a country to which the defense articles or defense services 

20 are proposed to be sold, exported, or transferred, that— 

21 (1) the government of such country on or after 

22 the date of enactment of this Act has been deposed 

23 by a coup d’etat or decree in which the military 

24 played a decisive role, and a democratically elected 


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1 government has not taken office subsequent to the 

2 coup or decree; or 

3 (2) a unit of the security forces of the govern4 ment of such country— 

5 (A) has violated international humani6 tarian law and has not been credibly inves7 tigated and subjected to a credible and trans8 parent judicial process addressing such allega9 tion; or 

10 (B) has committed a gross violation of 

11 human rights, and has not been credibly inves12 tigated and subjected to a credible and trans13 parent judicial process addressing such allega14 tion, including, inter alia— 

15 (i) torture or rape; 

16 (ii) ethnic cleansing of civilians; 

17 (iii) recruitment or use of child sol18 diers; 

19 (iv) unjust or wrongful detention; 

20 (v) the operation of, or effective con21 trol or direction over, secret detention fa22 cilities; or 

23 (vi) extrajudicial killings, whether by 

24 military, police, or other security forces. 


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1 (b) INCLUSION OF INFORMATION IN HUMAN RIGHTS

2 REPORT.—The Secretary of State shall also provide to the 

3 appropriate congressional committees the report described 

4 in section 502B(c) of the Foreign Assistance Act (22 

5 U.S.C. 2304(c)) biannually for the period of time specified 

6 in subsection (c) of this section regarding any country cov7 ered under subsection (a). 

8 (c) DURATION.— 

9 (1) IN GENERAL.—With respect to a letter of 

10 offer to sell or an application for a license to sell, 

11 export, or transfer described in subsection (a), the 

12 letter or application shall be subject to the require13 ments and procedures for congressional review and 

14 disapproval under section 36 of the Arms Export 

15 Control Act (22 U.S.C. 2776) for 2 years after the 

16 date on which the Secretary of State receives the in17 formation described in subsection (a). 

18 (2) TERMINATION.— 

19 (A) IN GENERAL.—With respect to such a 

20 letter or application, the enhanced congressional 

21 oversight under subsection (a) and paragraph 

22 (1) of this subsection shall terminate on the 

23 date on which the Secretary of State determines 

24 and so informs the appropriate congressional 

25 committees that— 


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1 (i) the credible information described 

2 in subsection (a)(2) is inaccurate; or 

3 (ii) the activity has ceased, and the 

4 government of the applicable country has 

5 taken appropriate steps to ensure that 

6 such activity does not recur, including ap7 propriate punishment for the person or 

8 persons involved in such activity. 

9 (B) INFORMATION SUPPORTING DETER10 MINATION.—The Secretary of State shall sub11 mit to the appropriate congressional committees 

12 all information forming the basis for a deter13 mination under subparagraph (A). The deter14 mination shall, to the fullest extent possible, be 

15 unclassified, but may include a classified annex. 

16 SEC. 7. LIMITATION ON SALES TO SECURITY FORCES IN17 VOLVED IN GROSS VIOLATION OF HUMAN 

18 RIGHTS. 

19 Section 620M(a) of the Foreign Assistance Act of 

20 1961 (23 U.S.C. 2378d(a)) is amended by striking ‘‘No 

21 assistance’’ and all that follows through ‘‘Arms Export 

22 Control Act’’ and inserting ‘‘No assistance, including the 

23 sale of defense articles or defense services, shall be fur24 nished under this Act, the Arms Export Control Act, or 


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1 any other provision of law controlling the export or trans2 fer of such articles and services’’. 

3 SEC. 8. END USE MONITORING OF MISUSE OF ARMS IN 

4 HUMAN RIGHTS ABUSES. 

5 (a) END USE MONITORING.—Section 40A(a)(2)(B) 

6 of the Arms Export Control Act (22 U.S.C. 2785) is 

7 amended— 

8 (1) in clause (i), by striking ‘‘; and’’ and insert9 ing a semicolon; 

10 (2) in clause (ii), by striking the period at the 

11 end and inserting ‘‘and;’’; and 

12 (3) by adding at the end the following new 

13 clause: 

14 ‘‘(iii) such articles and services are 

15 not being used to violate international hu16 manitarian law or internationally recog17 nized human rights.’’. 

18 (b) REPORT.—The Secretary shall report to the ap19 propriate congressional committees on the measures that 

20 will be taken, including any additional resources needed, 

21 to conduct an effective end-use monitoring program to ful22 fill the requirement of clause (iii) of section 40A(a)(2)(B) 

23 of the Arms Export Control Act, as added by subsection 

24 (a)(3). 


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1 SEC. 9. HUMAN RIGHTS ELEMENTS IN AUXILIARY RE2 PORTS. 

3 Section 36(b)(1) of the Arms Export Control Act (22 

4 U.S.C. 2776(b)(1)) is amended— 

5 (1) in subparagraph (O), by striking ‘‘; and’’ 

6 and inserting a semicolon; 

7 (2) in subparagraph (P), by striking the period 

8 at the end and inserting ‘‘; and’’; and 

9 (3) by adding at the end the following new sub10 paragraph: 

11 ‘‘(Q) an assessment of the risk that such 

12 defense articles or defense services will be used 

13 in the commission of violations of international 

14 humanitarian law or internationally recognized 

15 human rights, and a description of any meas16 ures to be taken by the recipient government or 

17 by the United States to prevent and monitor 

18 any such use.’’. 

19 SEC. 10. REQUIREMENT FOR CERTAIN WEAPONS TO BE 

20 SUBJECT TO CONDITIONS AND END USE 

21 MONITORING AS FOREIGN MILITARY SALES. 

22 Beginning on the date that is 180 days after the date 

23 of the enactment of this Act, the following defense articles 

24 may be sold, exported, or transferred only pursuant to sec25 tion 36(b) of the Arms Export Control Act (22 U.S.C. 

26 2776(b)): 


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1 (1) Rockets, space launch vehicles, missiles, 

2 bombs (including equipment to enable precision 

3 guidance), torpedoes, depth charges, mines, and gre4 nades. 

5 (2) Armored combat ground vehicles, including 

6 ground vehicles and trailers that are armed or are 

7 specially designed to be used as a firing or launch 

8 platform to deliver munitions or otherwise destroy or 

9 incapacitate targets, excluding any unarmed ground 

10 vehicles, regardless of origin or designation, manu11 factured prior to 1956 and unmodified since 1955. 

12 (3) Aircraft, whether manned, unmanned, re13 motely piloted, or optionally piloted, as follows: 

14 (A) Bombers. 

15 (B) Fighters, fighter/bombers, and fixed16 wing attack aircraft. 

17 (C) Turbofan- or turbojet-powered trainers 

18 used to train pilots for fighter, attack, or bomb19 er aircraft. 

20 (D) Attack helicopters. 

21 (E) Unmanned aerial vehicles (UAVs) spe22 cially designed to incorporate a defense article. 

23 (F) Aircraft specially designed to incor24 porate a defense article for the purpose of perVerDate Sep 11 2014 05:06 Oct 15, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4712.IS S4712

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1 forming an intelligence, surveillance, and recon2 naissance function. 

3 (G) Aircraft specially designed to incor4 porate a defense article for the purpose of per5 forming an electronic warfare function, airborne 

6 warning and control aircraft, or aircraft spe7 cially designed to incorporate a defense article 

8 for the purpose of performing a command, con9 trol, and communications function. 

10 SEC. 11. OVERSIGHT OF EXPORT OF SILENCERS TO FOR11 EIGN NON-GOVERNMENTAL PERSONS. 

12 (a) IN GENERAL.—Any proposed license to export 

13 firearms silencers, mufflers, or sound suppressors to any 

14 foreign nongovernmental person, group, or organization 

15 may not be issued until after the proposed license is sub16 mitted in accordance with section 36(c) of the Arms Ex17 port Control Act (22 U.S.C. 2776(c)), regardless of the 

18 dollar value of the proposed export or whether other de19 fense articles or services are included in such proposed li20 cense. 

21 (b) SECRETARY OF STATE DETERMINATION.— 

22 (1) IN GENERAL.—The license referred to in 

23 subsection (a) may not be issued unless the Sec24 retary of State— 


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1 (A) determines that the proposed export 

2 does not pose a risk for the retransfer of the 

3 items referred to in such subsection to foreign 

4 persons, including terrorists, terrorist groups, 

5 insurgent groups, criminals or criminal organi6 zations; and 

7 (B) submits a report to the Committee on 

8 Foreign Relations of the Senate and the Com9 mittee on Foreign Affairs of the House of Rep10 resentatives that sets forth the reasons for, and 

11 the information supporting, such determination. 

12 (2) FORM OF REPORT.—The report required 

13 under paragraph (1)(B) shall be unclassified and 

14 shall be made available to the public to the max15 imum extent possible, but may include a classified 

16 annex. 

17 SEC. 12. DEFINITIONS. 

18 In this Act: 

19 (1) The term ‘‘appropriate congressional com20 mittees’’ means— 

21 (A) the Committee on Foreign Relations 

22 and the Committee on Appropriations of the 

23 Senate; and 


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1 (B) the Committee on Foreign Affairs and 

2 the Committee on Appropriations of the House 

3 of Representatives. 

4 (2) The terms ‘‘defense article’’ and ‘‘defense 

5 service’’ have the same meanings given the terms in 

6 section 47 of the Arms Export Control Act (22 

7 U.S.C. 2794). 

Æ 


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