Alongside Biden Administration, Durbin, Van Hollen Announce National Security Memorandum to Ensure U.S. Security Assistance is Used in Line with International Law

WASHINGTON – Today, U.S. Senate Majority Whip Dick Durbin (D-IL) and U.S. Senator Chris Van Hollen (D-MD) announced alongside the Biden Administration 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—which Durbin and Van Hollen worked closely with the Administration to develop following the release of his amendment—will for the first time require 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.

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 Senators’ amendment, the NSM creates robust reporting requirements to Congress on these provisions and additional assessments of compliance with U.S. laws and policies.

“The U.S. is an indispensable country in helping allied nations in times of conflict,” said 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.”

“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 was based on sentiment not 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 was proud to work alongside the Biden Administration in developing this policy that will have a critical and lasting impact on U.S. assistance moving forward,” said Van Hollen.

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:

1. • 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:

1. • 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 forunintended 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.
2. Clarifies that these requirements do not apply to air defense systems or other defense articles used forstrictly defensive or non-lethal purposes.

The NSM follows the amendment effort Durbin and Van Hollen led with Senators Tim Kaine (D-VA), and Brian Schatz (D-HI) and joined by Senators Elizabeth Warren (D-MA), Jeff Merkley (D-OR), Peter Welch (D-VT), Martin Heinrich (D-NM), Tom Carper (D-DE), Ben Ray Luján (D-NM), Bernie Sanders (I-VT), Mazie Hirono (D-HI), Ed Markey (D-MA), Tina Smith (D-MN), Raphael Warnock (D-GA), Laphonza Butler (D-CA), Tammy Baldwin (D-WI), Jon Ossoff (D-GA), and Chris Murphy (D-CT).