The memorandum, modeled off of Senators’ amendment, also requires all countries that receive U.S. security assistance to facilitate U.S.-supported humanitarian aid and creates robust reporting requirements to Congress

Washington (February 10, 2024) – Friday, U.S. Senators Edward J. Markey (D-Mass.), Chris Van Hollen (D-Md.), Dick Durbin (D-Ill.), Tim Kaine (D-Va.), Brian Schatz (D-Hawaii), and their colleagues welcomed a new National Security Memorandum (NSM) released by the Biden Administration Thursday aimed at ensuring all U.S. security assistance is used in line with international law, including international humanitarian law. The NSM is modeled off of the Senators’ amendment to ensure U.S. security assistance is used in line with international law. Additional cosponsors of the amendment were Senators Elizabeth Warren (D-Mass.), Jeff Merkley (D-Ore.), Peter Welch (D-Vt.), Martin Heinrich (D-N.M.), Tom Carper (D-Del.), Ben Ray Luján (D-N.M.), Bernie Sanders (I-Vt.), Mazie Hirono (D-Hawaii), Tina Smith (D-Minn.), Raphael Warnock (D-Ga.), Laphonza Butler (D-Calif.), Tammy Baldwin (D-Wis.), Jon Ossoff (D-Ga.), and Chris Murphy (D-Conn.).

Following the intent of the amendment, 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, also in line with the Senator’s amendment, the NSM creates robust reporting requirements to Congress on these provisions and additional assessments of compliance with U.S. laws and policies.

“This National Security Memorandum is an important reflection of Senator Chris Van Hollen’s amendment by ensuring that any weapons received by any country are used in accordance with international and humanitarian laws; and that the recipient country must cooperate with U.S. efforts to provide humanitarian assistance. It also expands on the amendment by focusing on all countries that receive U.S. security assistance going forward. I welcome the Biden administration’s introduction and implementation of this Memorandum, and I thank Senator Van Hollen and my colleagues for working together on this measure to reaffirm human rights in U.S. security assistance,” said Senator Markey.

“U.S. security assistance should always be used in line with our nation’s interests and our values, including upholding international humanitarian law. But up until now, that has been based more on sentiment than substance. This National Security Memorandum is a huge step forward in securing critical safeguards on the use of such assistance – and delivering more transparency and accountability to the American people. I’m grateful to my colleagues for joining me in the push for these important accountability measures, and I was proud to work alongside the Biden Administration in developing this final policy that will have a critical and lasting impact on U.S. assistance moving forward,” said Senator Van Hollen.

“The U.S. is an indispensable country in helping allied nations in times of conflict,” said Senator Durbin. “With any such assistance, including supplemental packages, we have a responsibility to ensure the aid follows U.S. and international law. I applaud the Administration’s decision to implement this National Security Memorandum, which like our amendment, is reinforcing our American values.”

“This is a big step forward in American diplomacy. We are stronger and safer as a country, a better friend to our allies, and a greater challenge to our enemies when our national security posture reflects our values,” said Senator Kaine.

“In this memorandum, we have enforcement tools to hold countries accountable that the use of U.S. military weapons must be in accordance with international law, and that no nation can restrict U.S. humanitarian aid and still receive other aid from the United States. This is an incredibly important moment as the circumstances in Gaza are the worst of any conflict zone in the world. President Biden and his team have stepped up to say that we will have force behind our American values and principles. This is an enormous step forward,” said Senator Merkley.

“This is the first formal action initiated by Congress and adopted by the administration as official policy to guarantee that our weapons will be used in compliance with international law. Even more importantly, there will be no interference with the delivery of humanitarian aid that is so vital,” said Senator Welch. “This is carrying on in the tradition of my predecessor Patrick Leahy. The Leahy Law prohibited the use of weapons where there’s credible information that a unit of a foreign security force has committed a gross violation of human rights. This principle applies to all countries that are the recipients of military aid from this country. What President Biden is doing with this official policy—as a result of the unyielding efforts of Senator Van Hollen—is making a formal statement that is going to give us the opportunity to do constant oversight.”

“I applaud President Biden for taking this necessary step to hold all recipients of U.S. weapons accountable to international law,” said Senator Heinrich. “As the Senate works to advance vital support for our allies in Ukraine, Israel, and deliver aid to innocent civilians in Gaza, this policy will ensure the American people have the transparency they deserve in understanding how U.S. aid is being deployed.”

“When the U.S. gives aid to other countries, the hope and expectation has been that that aid will be used in ways that comport with American values and international law,” said Senator Hirono. “With strong reporting and enforcement mechanisms, the President’s National Security Memorandum enshrines that expectation as official U.S. policy. I thank Senator Van Hollen for his leadership and President Biden for his responsiveness in this effort.”

“When the United States provides security assistance, we need more in return than a mere promise to use that assistance responsibly, and that’s exactly what this action from the Biden Administration recognizes. America is stronger and safer when we act according to the rule of law, and holding our friends and allies to the same standard both upholds our nation’s values and protects our national and global security interests,” said Senator Smith.

“I applaud the Biden Administration for heeding the calls of Senator Van Hollen, and of my colleagues, in affirming our values and reinforcing America’s commitment to human rights and humanitarian aid in times of conflict,” said Senator Butler. “We have a responsibility to make sure civilians and children are never the targets of war and humanitarian assistance is never blocked. Our partners and allies deserve America’s unwavering support, and it is also true that we must hold those nations accountable for what they choose to do with that support.”

“This is about the moral credibility of the United States. U.S. security assistance has never been, is not, never will be, and never should be a blank check to use American weapons without regard for international law, for civilians caught in the crossfire, or for the interests of the United States,” said Senator Ossoff.

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
  1. 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 to assurances 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)
  1. 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.
  1. Clarifies that these requirements do not apply to air defense systems or other defense articles used for strictly defensive or non-lethal purposes.

A one-pager on the NSM is available here.