Leahy Law, human rights and Bangladesh

The “Leahy law” refers to two statutory provisions prohibiting the US government from using funds for assistance to units of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights (GVHR). It is a human rights law named for its primary sponsor, Senator Patrick Leahy. First approved by Congress in 1997, it prohibits the United States from providing equipment and training to a foreign military unit or individual suspected of committing “gross human rights violations.” Such violations include extrajudicial killing, rape, torture, and forced disappearances. Finally, the law was the product of a complex field of alliances between Washington-based human rights advocates, grassroots activists, and supportive Congressional staff. The US government considers torture, extrajudicial killing, enforced disappearance, and rape under colour of law as GVHRs when implementing the Leahy law. Recently, US government has imposed sanctions on The Investigation Wing, Counter Terrorism of Bangladesh Police and Transnational Crime Unit (CTTCU), Dhaka Metropolitan Police, Bangladesh Police and Rapid Action Battalion under the Leahy law.

Along with other provisions in the US foreign assistance laws, of which the Leahy Law is a part, and the arms export control laws, an across-the-board policy is there to ensure that US assistance does not contribute to human rights abuses. The implications of the sanctions imposed on the officials also include the possibility of freezing their property under the US executive order 13818 of 2017.

The US State Department Leahy law was made permanent under section 620M of the Foreign Assistance Act of 1961. Foreign Security Forces Units Ineligible for Foreign Assistance Act of 1961 and Arms Export Control Act Assistance Pursuant to the State Leahy Law. Section 620M of the Foreign Assistance Act of 1961 (also referred to as the “State Leahy law”) states, in pertinent part: that, no assistance shall be furnished under this Act or the Arms Export Control Act 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. State department will make publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished pursuant to subsection.

Global civil societies and governments has reservation about alleged enforced disappearances by Bangladesh security forces, which have been well-documented by international organizations, the United Nations, civil society groups, journalists, the Bangladesh National Human Rights Commission, and victims and their families. Enforced disappearances are defined under the Rome Statute—to which Bangladesh is a party—as “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons.” 

The Department of State version of the act states that “the term ‘gross violations of internationally recognized human rights’ includes torture or cruel, inhumane, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person.” According to the US State Department, the definition also includes extrajudicial killings as well as any politically motivated rape.

The US Department of Defense defines it as both the “duly constituted military, paramilitary, police, and constabulary forces of a state,” as well as, “forces including but not limited to: military forces; police forces; border police, coast guard, and customs officials; paramilitary forces; forces peculiar to specific nations, state, tribes, or ethnic groups; prison correctional and penal services; infrastructure protection forces; and governmental ministries or departments responsible for the above forces.”

The Leahy law prohibits security assistance to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” The statute defines the phrase “gross violations of internationally recognized human rights” to include torture, arbitrary detention, disappearance, and other violations of the right to life, liberty, and security. To meet the Leahy standard, the foreign government must “carry out a credible investigation and . . . the individuals involved [must] face appropriate disciplinary action or impartial prosecution in accordance with local law.”

The lawmakers have serious reservation about impunity, the failure to punish perpetrators for their crimes, is a significant human rights problem. Impunity erodes the rule of law, leaving victims without any appropriate relief and diminishing the deterrent force of accountability.

According to the law, the US State Department must vet any foreign military unit to ensure it has a clean human rights record before it can receive US assistance. The vetting process covers official history of abuse and independent reporting by legitimate NGOs. If a unit, or individual member of a unit, is suspected of committing gross violations, assistance cannot be provided until the recipient government addresses the abuses. This could take a variety of forms, including a legitimate investigation of the violations, disciplinary action, or prosecution.

Upon allegation, made by a well-respected nongovernmental organization (NGO), consists of the vague statements of a handful of undisclosed sources. As a Leahy practitioner working in a US embassy or military headquarters are tasked with deciding whether a recent allegation of a gross violation of human rights is sufficient to Leahy bar the security force unit that supposedly committed it. In order to implement this law, U.S. embassies, the Bureau of Democracy, Human Rights, and Labour, and the appropriate regional bureau of the US Department of State vet potential recipients of security assistance. Based on the steps taken by the foreign government to bring the responsible members of the unit to justice, assistance to a unit may resume if the Secretary of State determines and reports to Congress that the government is taking effective steps to bring the responsible members of the unit to justice, in accordance with the State Leahy law.

US government may revoke the sanctions and revive assistance if the government of that “is taking effective steps to bring the responsible members of the security forces unit to justice,” according to the law, Section 620M of the Foreign Assistance Act of 1961. Meanwhile, the United States can continue to provide assistance to other security force units in that country that have not been implicated in gross human rights violations.

Moreover, the law has been amended and a new requirement for the delivery of foreign assistance, the Leahy Amendment involved intense negotiation with foreign governmental agencies to establish formal agreements with each foreign government stipulating how they would meet the requirements of the Leahy Law, called end use monitoring.

Last year, US has proposed to the Bangladesh government for signing an agreement on using the funds it is likely to receive for its security forces under the Leahy Law of that country. The Bangladesh government will require issuing guarantee, under the proposed agreement, if signed, that the funds received for its security forces will not be used by those security forces responsible for gross violation of human rights.

Leahy has achieved a surprising level of success toward its two key goals: Preventing disbursement of US military assistance to human rights abusers in foreign security forces and  encouraging investigations and prosecutions of human rights abusers in foreign security forces. Leahy’s combination of security assistance restrictions and accountability mechanisms has produced positive human rights results. Bangladesh government has taken the issue very seriously and already taken action to improve human rights situation and also is negotiating with the US government to withdraw the sanctions.

The writer is a legal economist. He can be contacted at mssiddiqui2035@gmail.com