Reducing Complicity

Ensuring that U.S. personnel, funds, training and equipment are not used to violate human rights.

When To Do This

Measures that limit how and when U.S. funds and equipment are used, and how U.S. personnel are engaged, make sense when the U.S. is aligned with or provides significant support to countries that commit serious human rights violations. When populations perceive that such violations are occurring with U.S. knowledge and consent – even if the U.S. Government does not directly participate in these violations – the U.S. image is tarnished and American values and ideals are compromised.

How To Do This

Bar U.S. Government employees or contractors from engaging in abusive behavior; prohibit the use of funds for unauthorized purposes; prohibit the transfer of certain types of equipment; terminate contracts and grants to entities that engage in human rights abuses; condition aid on improved performance; require that the U.S. speak up in international fora.

What You Should Know Before Proceeding

  • The administration will seek a waiver from any type of conditions you propose, regardless of how mild. However, waivers can be a lose-lose proposition. If tough conditions, certifications, or consequences are waived, the U.S. sends the message that other issues are more important, creating an atmosphere of impunity for violators. If conditionality is weakened to the point where a country can be certified without taking remedial action, then unsatisfactory performance is given a seal of approval.
  • Blocking arms sales to repressive regimes is one way to limit complicity in abuses. But often information about intended sales becomes public very late in the process. Congressional appropriators, as well as professional staff of authorizing committees, receive important and detailed notifications of arms sales and program changes that are not shared with other offices or with the public, even though they are unclassified.
  • Even in countries where the U.S. provides large amounts of assistance, U.S. influence over the behavior of local security forces may be limited, especially in cases where counter-insurgency, counter-terror or other military collaboration is underway.

Good Practices

  • Ask outside organizations for evidence that shows whether and how U.S. assistance is being used to engage in rights violations or to justify abusive behavior.
  • Make use of reporting requirements to provide an official baseline for evaluation of progress.
  • Create conditions that are SMART: specific; measurable; achievable; reasonable; and time-bound. The more specific and quantifiable the conditions, the more likely they will be successful.
  • After imposing conditions, ask civil society groups and watchdogs to provide independent information on how well those conditions are being met so you can assess reports and certifications from the executive branch.
  • Linking conditions to internationally-recognized human rights standards, including treaties and international agreements to which the state is a party, helps to give the conditions greater political legitimacy and moral authority.
  • Make sure that what you are asking to be done is within the power of the person you are asking to do it.

Precedents

 

Prohibiting Abusive Behavior

  1. Prohibition on Torture. An annual provision in the SFOA (most recently Sec. 7066 in PL 114-113) states that “None of the funds made available in this Act may be used to support or justify the use of torture, cruel, or inhumane treatment by any official or contract employee of the United States Government.”
  2. Prohibition on Police Training. Section 660 of the Foreign Assistance Act of 1961 (PL 87-195) prohibits the use of funds to provide training, advice, or other support for foreign police, prisons, internal intelligence or surveillance activities. This provision was added in 1973 after USAID’s “public safety” programs in South Vietnam, Chile, Guatemala and other countries came under attack for supporting abusive police forces. The Senate Foreign Relations Committee report on the Foreign Assistance Act of 1973 read, in part: “United States participation in the highly sensitive area of public safety and police training unavoidably invites criticism from persons who seek to identify the United States with every act of local police brutality or oppression in any country in which this program operates. It matters little whether the charges can be substantiated, they inevitably stigmatize the total United States foreign aid effort…” However, there are numerous exceptions to this prohibition, both in subsections of section 660 itself and in subsequent legislation, and the U.S. now engages in high levels of police training.
  3. Prohibition on Participation in Foreign Police Actions.uSection 481(c) of the Foreign Assistance Act of 1961, PL 87-195), known as the “Mansfield amendment,” prohibits U.S. officers and employees from directly effecting, assisting with, or being present during an arrest in any foreign country as part of a foreign police action on narcotics control.
  4. Prohibition on the Importation of Conflict Diamonds. Section 4 of the Clean Diamond Trade Act (PL 108-19) prohibits the importation into the U.S. of rough diamonds that have not been controlled through the Kimberley Process Certification Scheme.
  5. Disclosing the Use of Conflict Minerals. Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (PL 111-203), which grew out of the Conflict Minerals Trade Act (R. 4128, 111th)), directs the Securities and Exchange Commission to promulgate regulations requiring companies to disclose their use of conflict minerals and their efforts to verify the source and chain of custody of such minerals.
  6. Prohibition on Discrimination. Section 666 of the Foreign Assistance Act of 1961 (PL 87-195) prohibits the President, in making overseas assignments of U.S. economic and development officers, from discriminating on the basis of race, religion, national origin, or sex.

 

Limiting Use of Funds and Equipment

  1. No Assistance to Abusive Units. Section 620M of the Foreign Assistance Act of 1961, known as the Leahy Law, prohibits assistance to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights. A similar provision applies to the Department of Defense, Section 2249e of title 10, United States Code. The Leahy Law resulted, among other things, in a 12-year ban on U.S. security assistance for Indonesia’s eliteKomando Pasukan Khusus (Kopassus), which was implicated in a series of kidnappings and murders of activists in the late 1990s.
  2. No Funds for Crowd Control Items. An annual SFOA provision (most recently Sec. 7034(b) in PL 114-113) states that “funds appropriated by this Act should not be used for tear gas, small arms, light weapons, ammunition, or other items for crowd control purposes for foreign security forces that use excessive force to repress peaceful expression, association, or assembly in countries undergoing democratic transition.”
  3. No Exports of Cluster Munitions. An annual SFOA provision (most recently Sec. 7054(b) in PL 114-113) prohibits assistance and export licenses for cluster munitions, except under tightly defined circumstances.
  4. No Use of Equipment on Cyprus. Section 620C(e) of the Foreign Assistance Act of 1961, PL 87-195) requires that arms sale agreements expressly state that the article is being provided by the United States only with the understanding that it will not be transferred to Cyprus or otherwise used to further the severance or division of Cyprus. However, the State Department has interpreted the word “transfer” to mean a legal transfer of ownership, rather than a physical movement of equipment. Careful wording is important.
  5. No Exports of Equipment for Human Rights Abuses. Section 202 of the Caesar Syria Civilian Protection Act of 2016 (R. 5732, 114th) would prohibit export licenses for goods or technologies that the President determines may be used by the Government of Syria to commit human rights abuses against the people of Syria.
  6. No Aid to Those Who Protect War Criminals. Section 573 of the FY 1998 SFOA (PL 105-118) prohibited assistance to countries, entities or cantons providing sanctuary to indicted war criminals. It was continued for several years in annual appropriations acts.

 

Restricting Grants and Contracts

  1. Requirement for a Code of Conduct on Sexual Exploitation. Section 2110 of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (PL 109-13) prohibits funding to any organization that fails to adopt a code of conduct to protect beneficiaries of humanitarian relief operations from sexual exploitation and abuse.
  2. Certification Regarding Business Activities in Sudan. Section 6 of the Sudan Accountability and Divestment Act of 2007 (PL 110-174) requires all U.S. Government contractors to certify that they do not conduct mining-, energy-, or military-related operations in Sudan, since such operations enabled the Government of Sudan to continue to oppress and commit genocide against people in the Darfur region and other regions of Sudan.
  3. Termination of Contractors Engaging in Trafficking Offenses. Section 3(b) of the Trafficking Victims Protection Reauthorization Act of 2003 (PL 108-193) requires that all new U.S. Government grants and contracts provide for termination without penalty if the grantee or contractor (or any subgrantee or subcontractor thereof) engages in severe forms of trafficking in persons, procures a commercial sex act, or uses forced labor.
  4. Prohibiting Export of Censorship and Surveillance Technology. The first version of the Global Online Freedom Act, (R. 4780 — 109th), would prohibit U.S. information technology companies from locating their servers in countries that restrict Internet access and from helping countries to filter Internet content. A later version of the act (H.R. 491 – 113th) prohibits the export of censorship and surveillance technology to the government of any Internet-restricting country.

 

Imposing Effective Conditionality and Certifications

  1. Conditions on Aid to El Salvador Lead to Prosecution. The continuing appropriations bill for FY 1984 (PL 98-151), enacted in November 1983, placed specific conditions on military assistance for El Salvador, relating to accountability for the deaths of four U.S. churchwomen. After years of inaction and delay, in May 1984 the Salvadoran Government placed five National Guardsmen on trial for the 1980 murders – an unprecedented prosecution of soldiers for human rights abuses in that country. The Guardsmen were found guilty, and U.S. aid was resumed the following day.
  2. Conditions Force Termination of Aid to Kenya. Section 593 of PL 101-513, the FY 1991 Foreign Operations Export Financing and Related Programs Appropriations Act, prohibited Economic Support Funds and Foreign Military Financing for Kenya unless the President certified that the Government of Kenya was taking steps to charge and try or release all prisoners, cease abuse of prisoners, restore the independence of the judiciary and restore freedoms of expression. The administration could not make these certifications, and aid was terminated. However, in February 1991 the administration provided $5 million in military assistance from prior year funds, which were not covered by the ban. Almost immediately after the aid was sent, Kenyan authorities arrested a human rights lawyer, which led the U.S. not only to deny further aid but to discourage other donors from providing assistance at an international pledging conference. Soon afterward, the Kenyan Government detained for questioning several senior officials formerly seen as “untouchable”.
  3. A Counterproductive Certification Procedure. Section 490 of the Foreign Assistance Act of 1961, as it stood from FY 1987-2001, required a cut-off of most security and economic assistance, as well as votes against loans from international financial institutions, unless the President certified that the country was cooperating fully with U.S. counternarcotics efforts, or that “vital national interests” required the provision of such assistance. Because “full cooperation” was a nearly impossible standard to meet, it encouraged the administration to make unjustifiably optimistic certifications, which rewarded weak performance by countries and prompted Congress to propose joint resolutions of disapproval, none of which were ever enacted. (However, in 1996 President Bill Clinton decided not to certify Colombia’s full cooperation once it became clear that Sen. Jesse Helms had the votes to disapprove such a certification.) It also laid bare the cases in which the U.S. considered other national interests more important than drug cooperation, which arguably removed the pressure for them to cooperate further on counternarcotics. In light of these problems and under intense lobbying, Congress modified the procedure by enacting Section 706 of the Foreign Relations Authorization Act for FY 2003 (PL 107-228), which bars funds only for countries that have “failed demonstrably” to make substantial efforts to comply with international counternarcotics obligations.
  4. Sustained and Consistent Conditionality Works. Each year since the initial approval of Plan Colombia in the FY 2001 Military Construction Appropriation Act, PL 106-246, foreign operations appropriators have imposed clear, specific, and enforceable human rights conditions on aid to Colombia (e.g. Sec. 7046 of PL 111-8). Although these conditions have never resulted in the suspension of assistance, the State Department has used the conditions as leverage for reform. Congressionally-mandated conditions on aid helped the State Department successfully press the Colombian Government to address military impunity for human rights offenses by moving prosecutions into civilian courts. Persistent congressional oversight also encouraged the State Department to rigorously apply the Leahy Law (22 U.S.C. 2378d and 10 U.S.C. 2249e) in Colombia, with robust vetting of partner units. As a result, Plan Colombia is now seen as one of the most successful examples of U.S. partner capacity building programs.
  5. A Powerful Certification Requirement. The American Servicemember’s Protection Act (Title II of PL 107-206) prohibited military assistance to countries (other than NATO) that are parties to the International Criminal Court (ICC). The prohibition could be waived if the President deemed it important to the national interest, or if the ICC member country signed a bilateral agreement with the United States, known as an “Article 98” agreement, promising not to transfer any U.S. citizens to ICC jurisdiction. Although the Bush administration issued several national interest waivers, more than 100 countries entered into Article 98 agreements with the U.S. because of the law. Strong opposition by the Pentagon led to repeal of the provision in the National Defense Authorization Act for FY 2008 (PL 110-181).

 

Voting Against International Loans

  1. Opposition to Certain Loans. 22 U.S.C. 262d, known as the “Harkin Amendment”, authorizes and instructs the U.S. Executive Directors to international financial institutions to oppose loans, financial assistance, and technical assistance to any country whose government engages in a pattern of gross violations of internationally recognized human rights, unless such assistance is directed for basic human needs.
  2. Using Voice and Vote Against FGM. Section 579 of the Omnibus Consolidated Appropriations Act, 1997 (PL 104-208) required U.S. Executive Directors to international financial institutions to “use the voice and vote of the United States” to oppose loans (other than for basic human needs) to countries that have not taken steps to implement educational programs designed to prevent the practice of female genital mutilation. However, the provision did not take effect until the following year, and the ban was not repeated in subsequent appropriations bills.

 

Using Voice and Vote

  1. Making U.S. Concerns Heard. 307 of the Department of State Authorities Act, FY 2017 (PL 114-323) requires the President to direct the U.S. Ambassador to the United Nations to use the voice, vote, and influence of the United States to protect whistleblowers at the United Nations.