Senator Carper Joins Biden Administration, 18 Democratic Senators in Announcing National Security Memorandum to Ensure U.S. Security Assistance is Used in Line with International Law

The memorandum requires all countries that receive U.S. security assistance to facilitate U.S.-supported humanitarian aid and creates robust reporting requirements to Congress

Today, U.S. Senator Tom Carper (D-Del.) joined the Biden Administration, Senator Chris Van Hollen (D-Md.), and 17 Democratic Senators to announce a new National Security Memorandum (NSM) aimed at ensuring all U.S. security assistance is used in line with international law, including international humanitarian law. The NSM will, for the first time, require that, prior to the transfer of U.S. security assistance, recipient countries provide the U.S. with credible and reliable written assurances that they will comply with international humanitarian law and other applicable international law.

The NSM also requires that, prior to the transfer of U.S. security assistance, recipient countries must provide the U.S. with credible and reliable written assurances that they will facilitate and not arbitrarily deny or restrict U.S. humanitarian assistance and U.S-supported international efforts to provide humanitarian assistance in areas of conflict. And the NSM creates robust reporting requirements to Congress to maintain oversight and transparency of U.S. security assistance.

The National Security Memorandum:

1. Requires that prior to the transfer of U.S. security assistance, recipient countries must provide the U.S. with credible and reliable written assurances that:
   • they will comply with international humanitarian law and other applicable international law; and
   • that they will facilitate and not arbitrarily deny or restrict U.S. humanitarian assistance and U.S-supported international efforts to provide humanitarian assistance in areas of conflict where U.S. weapons are being used

2. Requires that the State Department and Defense Department send a report to Congress within 90 days on the use of U.S. weapons in areas of armed conflict since January 2023 and subsequent reports annually thereafter, including:
   • an assessment of whether weapons have been used in a manner inconsistent with international humanitarian law, and other applicable international law;
   • an assessment and analysis of any credible reports indicating that U.S.-funded weapons have been used in a manner inconsistent with established best practices for preventing civilian harm, including the Defense Department’s Civilian Harm Mitigation and Response Action Plan;
   • a description of any known occurrences of U.S. weapons not being received by the intended recipient or being misused for unintended purposes, and a description of any remedies taken; and
   • an assessment and analysis of each foreign government’s adherence toassurances they have provided regarding U.S.-supported humanitarian efforts and compliance with the Humanitarian Aid Corridor Act (Sec. 620I(c) of the Foreign Assistance Act of 1961)

3. Creates an enforcement mechanism to ensure that, if a country violates any of these assurances, there is a process to hold such country accountable, including by potentially suspending any further transfers of defense articles or defense services.

4. Clarifies that these requirements do not apply to air defense systems or other defense articles used for strictly defensive or non-lethal purposes.

Read the full memorandum here.

The NSM follows the amendment effort led by Senator Van Hollen and joined by Senator Carper, in addition to Senators Tammy Baldwin (D-Wis.), Laphonza Butler (D-Calif.), Dick Durbin (D-Ill.), Martin Heinrich (D-N.M.), Mazie Hirono (D-Hawaii), Tim Kaine (D-Va.), Ben Ray Luján (D-N.M.), Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), Chris Murphy (D-Conn.), Jon Ossoff (D-Ga.), Bernie Sanders (I-Vt.), Brian Schatz (D-Hawaii), Tina Smith (D-Minn.), Raphael Warnock (D-Ga.), Elizabeth Warren (D-Mass.), and Peter Welch (D-Vt.). The amendment would require that the weapons received by any country are used in accordance with U.S. law, international humanitarian law, and the law of armed conflict.

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