What ripples will the Leahy Laws cause in Bangladesh?

The Leahy amendments, named after their principal sponsor, Senator Patrick Leahy, refer to two statutory provisions—namely Section 620M of the Foreign Assistance Act of 1961 and Section 362 of Title 10 of the US Code—prohibiting the United States government from using its public funds for assistance to units of foreign security forces where there is "credible information" implicating said unit in the commission of gross violations of human rights (GVHR). These US provisions (or the Leahy amendments) have created ripple effects in Bangladesh, after Rab and some of its present and past high officials were put under US sanctions at the end of last year.

Currently, the foreign affairs ministry is pondering whether to consent to these Laws or not. Even though it is a public issue, the foreign ministry or other ministries or bodies are not discussing these laws publicly. As such, this article will discuss some issues for the ministry to consider before saying "yes" or "no" regarding this very important public matter.

Any military or law enforcing unit of any country that will receive US military assistance, in the nature of firearms, military instruments and military training, is to be vetted by the US State Department. According to the department's fact sheet of June 4, 2021, Bangladesh has received an array of military assistance from the US. Starting in 2005, the US contributed nearly USD 44 million to support training, equipment, and facilities upgrades to enhance Bangladesh's peacekeeping capabilities. It has also supplied patrol boats, vessels, cutters and mine-resistant ambush protected (MRAP) vehicles to the Bangladesh Army, Navy and Coast Guard for both internal use and international peacekeeping missions. Since 2008, Bangladesh has been in partnership with the State of Oregon via the National Guard's State Partnership Program to establish a relationship that fosters cooperation and understanding.

Since 2010, the United States has conducted the annual multinational military exercise Cooperation Afloat Readiness and Training (CARAT) with Bangladesh to expand relationships and enhance maritime domain awareness. In 2012, Bangladesh acquired four C-130E transport aircraft worth USD 180 million. Since 2015, the United States has provided USD 66.9 million in Foreign Military Financing (FMF) and USD 7.29 million in International Military Education and Training (IMET) assistance. Bangladesh has also received 20 aircraft engines, provided with Title 10 security assistance funding, alongside two former US Coast Guard Hamilton Class cutters in 2013 and 2015, all under the Excess Defense Articles (EDA) programme. The US also provided technical and professional training to Bangladesh military and Coast Guard personnel, while joint military and coast guard training and exchanges took place to build coordination capacity for disaster response and maritime security operations.

In FY 2019, the United States also authorised the permanent export of over USD 6 million in defence articles to Bangladesh via the Direct Commercial Sales (DCS) process. Currently, the two countries share USD 130.59 million in active government-to-government sales cases under the Foreign Military Sales (FMS) system.

If the foreign ministry consents to the adherence of Leahy Laws, then, from now on, before releasing funds for any sort of military assistance mentioned above, the State Department will ensure that the Bangladeshi unit or any of its personnel receiving such assistance or training has not conducted any GVHR. I am using the words "now on" because the laws do not have retrospective effect and, since no objection has been made against the assistance provided already, I am presuming that they were cleared after vetting. The local US embassy conducts consular, political and other security and human rights checks for the State Department on the basis of credible information.

Now, what does consenting to these laws mean for Bangladesh? Bangladesh will have to employ extra mechanisms to review the human rights performance of its units and each and every member of those units who are to receive assistance from the US. The standard of such a review will be one prescribed by the State Department. Adhering to such a standard all of a sudden may be cumbersome, considering the allegations of human rights violations currently considered by the US State Department against Rab and some of its high officials. Therefore, the ministry seeking time before making its decision on Leahy Laws is quite justified. Bangladesh may have to pass new enactments in parliament if it consents to these laws, since introducing new supervisory and reporting mechanisms will need public funds. For the time being, concerned ministries may pass an official gazette notification and internal rules and regulations to address short-term requirements under those laws.

In the case of Bangladesh consenting to the Leahy Laws, there might not be any direct implications for the general people. However, public money will be used to introduce new supervisory and reporting mechanisms to monitor and report whether any of the units receiving US military assistance are violating human rights. Hence, we might see the imposition of taxes upon citizens. On a different level, it may also have a positive effect on us if, due to constant supervision (read: more supervision than before), incidents of human rights violations (HRVs) see reduction in numbers. Of course, adhering to these laws will not affect the resolution of a visa application if a citizen does not have anything to do with any incidents of GVHR.

Now the question is: What would be the impact if Bangladesh says "no" to these laws? First of all, let us have a look at why Bangladesh may not consent to the Leahy Laws. The first reason would be due to a possibly biased use of the Act. The US has no history of using these laws against its closest allies, such as Israel, Saudi Arabia, Cambodia, Pakistan, Philippines, Egypt, etc. The State Department has disregarded human rights activists' call for targeting military units and personnel of these countries for gross violations of human rights. It remained completely silent. In 2016, it did not take any action, even after calls from Senator Leahy himself, to impose the Acts upon Israel. It can be easily understood that the US authorities keep their eyes closed if GVHR is committed by any of the units belonging to the "big buyers" of their military equipment.

Secondly, the Amnesty International USA, in a 2013 blog, claimed that the law and associated vetting process are not perfect and it is not a "silver bullet" that can be used to solve the human rights problems of foreign security units. The blog also claimed that, up until 2013, the US State Department used the Google search engine to perform their online vetting, which means they may rely on any uncorroborated and false story if it surfaces against a person or a unit on the internet.

In addition, the local US embassy plays a crucial role in vetting, and who can guarantee that they will not be biased by any socio-political doctrines? Who decides that the information received from any source is corroborated and free from falsehood?

Next comes the issue of compliance with the norms of international law. The steps suggested by the Leahy Laws may be useful to control the violators of human rights, but unnecessary and excessive use of the Laws may violate the principles enumerated in the Declaration on Principles of International Law Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations.

Bangladesh may consider the following principles written in this declaration: "the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter", "the principle of sovereign equality of States," and "every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State."

The Leahy Laws are definitely intervening with the domestic matters of Bangladesh, which is a sovereign country with equal status to that of the US, and Bangladesh has the inalienable right to say no to these Laws, if they go against its political, economic, social and cultural systems. Finally, Bangladesh can find help from the equitable principle of "he who seeks equity must come with a clean hand." If one searches the websites of Black Lives Matter or of Asian and Latin social groups in the US, they will find human rights violations being committed by US law enforcing agencies inside the US, against its own citizens. The way they have responded to the Afghanistan situation or towards their Guantanamo Bay prisoners or the citizens of Iraq will clearly show that their hands were far from clean.

Despite all this, Bangladesh may consent to the Leahy Laws, considering the assistance they receive from the US as mentioned in the beginning.

But what will happen if Bangladesh says "no"? Well, the US will cease its military assistance towards us. It may not leave a scratch on their big "arms" market, but it will increase Bangladesh's dependency for military assistance on China and Russia. Will the US take that risk? Will it risk a partisan global South? Such answers, and many more, lie in the near future.

Tapas Kanti Baul is an advocate of the Supreme Court of Bangladesh and a legal researcher.