Text: S.2060 — 115th Congress (2017-2018)All Information (Except Text)

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Reported to Senate (02/12/2018)

Calendar No. 307

115th CONGRESS
2d Session
S. 2060


To promote democracy and human rights in Burma, and for other purposes.


IN THE SENATE OF THE UNITED STATES

November 2, 2017

Mr. McCain (for himself, Mr. Cardin, Mr. Durbin, Mr. Young, Mr. Markey, Mr. Rubio, Mr. Merkley, Mrs. Feinstein, Mr. Schatz, Mr. Kaine, Mr. Van Hollen, Ms. Baldwin, Mr. Booker, Mrs. Shaheen, Mr. Coons, Ms. Collins, and Mr. Casey) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations

February 12, 2018

Reported by Mr. Corker, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]


A BILL

To promote democracy and human rights in Burma, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Burma Human Rights and Freedom Act of 2017”.

SEC. 2. Findings.

Congress makes the following findings:

(1) The United States policy of principled engagement since 1988 has fostered positive democratic reforms in Burma, which have led to significant milestones on the path to full democracy.

(2) On November 8, 2015, Burma held historic elections in which the National League for Democracy won a supermajority of seats in the combined national parliament. On March 30, 2016, Htin Kyaw was inaugurated as the President of Burma, the country’s first civilian President in more than 50 years. Aung San Suu Kyi, President of the National League for Democracy, was barred from becoming President due to the provisions of section 59(f) of the 2008 Constitution, and therefore assumed the office of State Counsellor, a position created for her that made her the country’s de facto leader.

(3) Aung San Suu Kyi’s first acts as State Counsellor after her National League for Democracy party took office included releasing more than 100 political prisoners, including well-known journalists and student activists held on politically motivated charges. However, as of September 2017, there are 220 political prisoners in Burma, 42 of which are currently serving prison sentences, 51 of which are awaiting trial inside prison, and 127 of which are awaiting trial outside prison, according to the Assistance Association for Political Prisoners.

(4) The Government of Burma also continues to systematically discriminate against the Rohingya people. Burma’s 1982 citizenship law stripped Rohingya Burmese of their Burmese citizenship, rendering them stateless, and the Government continues to restrict Rohingya births, deny them freedom of movement, access to healthcare, land, education, voting, political participation, and marriage.

(5) Despite the meaningful steps taken toward democracy in Burma, there still remain important structural and systemic impediments to the realization of a fully democratic civilian government, including—

(A) reform of the 2008 Constitution;

(B) the disfranchisement of groups of people who voted in previous elections;

(C) social, political, and economic conditions in Rakhine State, particularly those faced by the Rohingya population; and

(D) addressing and ending the current humanitarian and human rights crisis affecting Burma’s Rohingya population and residents of the Rakhine, Kachin, and Shan states, including ethnic cleansing, extrajudicial killings, sexual and gender-based violence, and forced displacement.

(6) Actions of the military of Burma, known as the Tatmadaw, including continuing assaults on personnel and territory controlled by armed ethnic organizations, military offenses immediately preceding the peace conference in Naypyitaw, and human rights abuses against noncombatant civilians in conflict areas, undermine confidence in establishing a credible nationwide cease-fire agreement to end Burma’s civil war.

(7) The people of Burma continue to suffer from an ongoing civil war between the Tatmadaw and nearly 20 armed ethnic organizations. Any prospects for a full democracy in Burma are contingent on ending the civil war and finding a path toward national reconciliation between Burma’s Bamar majority and its various ethnic minorities.

(8) Since 2011, over 98,000 people have been displaced in Kachin and northern Shan State over the escalating violence and instability, resulting in continued massive internal displacement, causing a massive humanitarian crisis, and continuing to undermine the trust necessary to achieve a durable, lasting peace, and disproportionately affecting the lives of innocent civilians and the thousands of internally displaced persons forced from their homes. According to the United Nations Office for the Coordination of Humanitarian Affairs, some 50 percent of these displaced persons are staying in areas beyond Government control where humanitarian access is limited.

(9) In 2015, the nongovernmental campaign Global Witness found that, in 2014, the estimated value of official production of jade equated up to 48 percent of the official gross domestic product of Burma. However, because of corruption and a lack of transparency the economic gains of Burma are being pocketed by notorious leaders from the military junta, including former dictator Than Shwe and United States-sanctioned drug lord Wei Hsueh Kang, and vested interests in jade are undermining prospects for resolving the most intractable armed conflict in Burma.

(10) On August 31, 2016, State Counsellor Aung San Suu Kyi and the Government of Burma initiated the Union Peace Conference 21st Century Panglong, where more than 1,400 representatives of various concerned parties attended a peace conference in Naypyitaw in an effort to begin the process of ending Burma’s civil war and discuss options in forming a democratic state of Burma. On May 24, 2017, the Government of Burma held a second Panglong Peace Conference, with mixed results.

(11) On October 31, 2016, the Department of State determined that Burma remains designated as a country of particular concern for religious freedom under section 402(b) of the International Religious Freedom Act (22 U.S.C. 6442(b)), and that “members of the Rohingya community in particular face abuses by the Government of Burma, including those involving torture, unlawful arrest and detention, restricted movement, restrictions on religious practices, discrimination in employment, and access to social services”.

(12) The February 2017 panels set up by the Burmese army and the Home Affairs Ministry are widely perceived to lack independence and impartiality. The December 2016 commission established by Burma’s President Htin Kyaw to investigate the October 2016 attacks dismissed claims of misconduct by security forces due to “insufficient evidence”. The 2012 commission government established to investigate violence in Rakhine State that year never held anyone accountable.

(13) In a public address on October 12, 2017, State Counsellor Aung San Suu Kyi laid out 3 goals for Rakhine State:

(A) Repatriation of those who have crossed over to Bangladesh and the effective provision of humanitarian assistance.

(B) Resettlement of displaced populations.

(C) Economic development and durable peace.

(14) According to the Bangladesh Foreign Ministry, at least 3,000 Rohingya have been killed and over an estimated 600,000 Rohingya have fled to Bangladesh since August 2017 for fear of loss of livelihoods, shelter, and disproportionate use of force by the military of Burma. Congress recognizes the longstanding support and hospitality of the Government and the people of Bangladesh; however, it is important that people fleeing violence in Burma are not deported or turned back.

(15) On October 23, 2017, the Department of State said, “We express our gravest concern with recent events in Rakhine State and the violent, traumatic abuses Rohingya and other communities have endured. It is imperative that any individuals or entities responsible for atrocities, including non-state actors and vigilantes, be held accountable.”.

(16) At a Senate Foreign Relations Committee hearing on October 24, 2017, the Department of State indicated that “refugees continue to cross into Bangladesh, and we continue to receive credible reports of sporadic violence in northern Rakhine State”.

(17) Amnesty International and Human Rights Watch have reported and documented a campaign of violence perpetuated by the security forces of Burma, which have indiscriminately fired on and killed civilians, raped women and girls, and arbitrarily arrested Rohingya men without any information about their whereabouts or charges which “may amount to crimes against humanity” and “ethnic cleansing”. Satellite images reveal that, out of the approximately 470 villages in northern Rakhine State, nearly 300 were partially or completely destroyed by fire since August 25, 2017, most of them completely or partially populated with Rohingya Muslims.

(18) The Government of Burma has continued to block access to northern Rakhine State by United Nations and other humanitarian groups. For much of the last three months, hundreds of thousands of vulnerable people in Rakhine State who needed humanitarian aid, both Rohingya, Rakhine, and other groups and including children with acute malnutrition, were being blocked from receiving such aid, and aid groups now expect that levels of malnutrition and even starvation have dramatically increased.

(19) In response to previous violence between the Burmese military and the ethnic Rohingya people in 2016, Aung San Suu Kyi established the Advisory Commission on Rakhine State headed by former United Nations Secretary-General Kofi Annan to address tensions in Northern Rakhine. She has since also endorsed the Commission's recommendations and established a group to move forward with implementation.

SEC. 3. Definitions.

In this Act:

(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term “appropriate congressional committees” means—

(A) the Committee on Foreign Relations and the Committee on Armed Services of the Senate; and

(B) the Committee on Foreign Affairs and the Committee on Armed Services of the House of Representatives.

(2) CRIMES AGAINST HUMANITY.—The term “crimes against humanity” includes, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack—

(A) murder;

(B) deportation or forcible transfer of population;

(C) torture;

(D) rape, sexual slavery, or any other form of sexual violence of comparable gravity;

(E) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law;

(F) enforced disappearance of persons;

(G) the crime of apartheid; and

(H) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

(3) ETHNIC CLEANSING.—The term “ethnic cleansing” means a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.

(4) GENOCIDE.—The term “genocide” means any offense described in section 1091(a) of title 18, United States Code.

(5) HYBRID TRIBUNAL.—The term “hybrid tribunal” means a temporary criminal tribunal that involves a combination of domestic and international lawyers, judges, and other professionals to prosecute individuals suspected of committing war crimes, crimes against humanity, or genocide.

(6) TRANSITIONAL JUSTICE.—The term “transitional justice” means the range of judicial, nonjudicial, formal, informal, retributive, and restorative measures employed by countries transitioning out of armed conflict or repressive regimes—

(A) to redress legacies of atrocities; and

(B) to promote long-term, sustainable peace.

(7) WAR CRIME.—The term “war crime” has the meaning given the term in section 2441(c) of title 18, United States Code.

SEC. 4. Statement of policy.

It is the policy of the United States that—

(1) the pursuit of a calibrated engagement strategy is essential to support the establishment of a peaceful, prosperous, and democratic Burma that includes respect for the human rights of all its people regardless of ethnicity and religion; and

(2) the guiding principles of such a strategy to support and complete the transition to democracy and genuine national reconciliation include—

(A) support for meaningful legal and constitutional reforms that remove remaining restrictions on civil and political rights and institute civilian control of the military, civilian control of the government, and the constitutional provision reserving 25 percent of parliamentary seats for the military, which provides the military with veto power over constitutional amendments;

(B) the establishment of a fully democratic, pluralistic, civilian controlled, and representative political system that includes regularized free and fair elections in which all people of Burma can vote;

(C) the promotion of genuine national reconciliation and conclusion of a credible and sustainable nationwide cease-fire agreement, political accommodation of the needs of ethnic Shan, Kachin, Chin, Karen, and other ethnic groups, and constitutional change allowing inclusive permanent peace;

(D) accountability for ethnic cleansing, crimes against humanity, and genocide perpetrated against ethnic minorities like the Rohingya by the Government, military, and security forces of Burma, violent extremist groups, and other combatants involved in the conflict;

(E) strengthening the government’s civilian institutions, including support for greater transparency and accountability;

(F) the establishment of professional and nonpartisan military, security, and police forces that operate under civilian control;

(G) empowering local communities, civil society, and independent media;

(H) promoting responsible international and regional engagement;

(I) strengthening respect for and protection of human rights and religious freedom; and

(J) addressing and ending the humanitarian and human rights crisis, including by supporting the return of the displaced Rohingya to their homes and providing equal access to full restoration of full citizenship for the Rohingya population.

SEC. 5. Humanitarian assistance.

(a) In general.—There is authorized to be appropriated $104,000,000 for assistance to the victims of the Burmese military's ethnic cleansing campaign targeting Rohingya in Rakhine State, including those displaced in Bangladesh, Burma, and the region, support for voluntary resettlement or repatriation efforts regionally, and for reconciliation programs in Rakhine State, including support for credible, independent humanitarian organizations, United Nations agencies, and nongovernmental organizations supporting the implementation of the recommendations of the Advisory Commission on Rakhine State or otherwise seeking to provide humanitarian assistance to victims of violence and destruction in Rakhine State, including victims of gender-based violence and unaccompanied minors. Additional significant and sustained funding will be necessary to address the medium and long-term impacts of this crisis.

(b) Freedom of movement of refugees and internally displaced persons.—Congress calls on the Government of Bangladesh to ensure all refugees have freedom of movement and under no circumstances are subject to unsafe, involuntary, or uninformed repatriation. Congress also calls on the Government of Burma to ensure the dignified, safe, and voluntary return of those displaced from their homes, and offer to those who do not want to return meaningful means to obtain compensation or restitution.

SEC. 6. Multilateral assistance.

(a) Restrictions.—Except as provided under subsection (b), the Secretary of the Treasury should instruct the United States executive director of each international financial institution to use the voice and vote of the United States to support a project in Burma only if the project does not partner with, contract or subcontract with, or otherwise involve or benefit enterprises owned or directly or indirectly controlled by the military of Burma, the Ministry of Defense, members of the Burmese military or security forces, or related entities.

(b) Exception.—The Secretary of the Treasury may approve projects otherwise restricted under this section if—

(1) senior Burmese military officials have—

(A) publicly acknowledged their role in committing past human rights abuses;

(B) cooperated with independent efforts to investigate such abuses;

(C) been held accountable for such abuses;

(D) demonstrated substantial progress in reforming their behavior with respect to the protection of human rights in the conduct of civil-military relations;

(E) demonstrably and verifiably indicated their support for extending civil and political rights, including citizenship and access to the rule of law, to all the people of Burma consistent with international standard including the Rohingya; and

(F) are cooperating with efforts to secure a credible cease-fire agreement, political accommodation, and constitutional change allowing inclusive permanent peace; and

(2) doing so is in the vital interest of the United States.

SEC. 7. Sense of Congress on right of returnees.

It is the sense of Congress that the Government of Burma, in collaboration with the regional and international community, including the United Nations High Commissioner for Refugees—

(1) should ensure the dignified, safe, and voluntary return of all those displaced from their homes, especially from Rakhine State, without an unduly high burden of proof; and

(2) should fully implement all of the recommendations of the Advisory Commission on Rakhine State.

SEC. 8. Military cooperation.

(a) Prohibition.—Except as provided under subsection (b), the United States Government may not supply any security assistance or engage in any military-to-military programs with the armed forces of Burma, including training or observation or participation in regional exercises, until the Secretary of Defense, in consultation with the Secretary of State, can certify to the appropriate congressional committees that the Burmese military has demonstrated significant progress in abiding by international human rights standards and is undertaking meaningful and significant security sector reform, including transparency and accountability to prevent future abuses, as determined by applying the following criteria:

(1) The military adheres to international human rights standards and pledges to stop future human rights abuses.

(2) The military supports efforts to carry out meaningful and comprehensive investigations of recent abuses and is taking steps to hold accountable those in the Burmese military responsible for human rights violations.

(3) The Government of Burma, including the military, allows immediate and unfettered humanitarian access to communities in areas affected by conflict, including Rohingya communities in Rakhine State.

(4) The Government of Burma, including the military, cooperates with the United Nations High Commissioner for Refugees and other relevant United Nations agencies to ensure the protection of displaced persons and the safe and voluntary return of refugees and internally displaced persons.

(5) The Government of Burma, including the military, takes steps toward the implementation of the recommendations of the Advisory Commission on Rakhine State.

(b) Exceptions.—

(1) CERTAIN EXISTING AUTHORITIES.—The Department of Defense may continue to conduct consultations based on the authorities under section 1253 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 22 U.S.C. 2151 note).

(2) HOSPITALITY.—The Department of State and the United States Agency for International Development may meet related-hospitality requirements with respect to the 21st Century Panglong Union Peace Conference.

(c) Military reform.—The certification required under subsection (a) shall include a written justification in classified and unclassified form describing the Burmese military's efforts to implement reforms, end impunity for human rights abuses, and increase transparency and accountability.

(d) Rule of Construction.—Nothing in this Act shall be construed to authorize Department of Defense assistance to the Government of Burma except as provided in this section.

(e) Report.—

(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, and every 180 days thereafter, the Secretary of Defense, in concurrence with the Secretary of State, shall submit to the appropriate congressional committees a report, in both classified and unclassified form, on the strategy and plans for military-to-military engagement between the United States Armed Forces and the military of Burma.

(2) ELEMENTS.—The report required under paragraph (1) shall include the following elements:

(A) A description and assessment of the Government of Burma’s strategy for security sector reform, including as it relates to an end to involvement in the illicit trade in jade and other natural resources, reforms to end corruption and illicit drug trafficking, and constitutional reforms to ensure civilian control.

(B) A list of ongoing military activities conducted by the United States Government with the Government of Burma, and a description of the United States strategy for future military-military engagements between the United States and Burma’s military forces, including the military of Burma, the Burma Police Force, and armed ethnic groups.

(C) An assessment of the progress of the military of Burma towards developing a framework to implement human right reforms, including—

(i) cooperation with civilian authorities to investigate and prosecute cases of gross human rights violations;

(ii) steps taken to demonstrate respect for and implementation of the laws of war and international human rights law; and

(iii) a description of the elements of the military-to-military engagement between the United States and Burma that promote such implementation.

(D) An assessment of progress on the peaceful settlement of armed conflicts between the Government of Burma and ethnic minority groups, including actions taken by the military of Burma to adhere to cease-fire agreements and withdraw forces from conflict zones.

(E) An assessment of the Burmese’s military recruitment and use of children as soldiers.

(F) An assessment of the Burmese’s military’s use of violence against women, sexual violence, or other gender-based violence as a tool of terror, war, or ethnic cleansing.

(f) Civilian channels.—Any program initiated under this section shall use appropriate civilian government channels with the democratically elected Government of Burma.

(g) Regular consultations.—Any new program or activity in Burma initiated under this section shall be subject to prior consultation with the appropriate congressional committees.

SEC. 9. Trade restrictions.

(a) Reinstatement of import restrictions on jadeite and rubies from Burma.—

(1) IN GENERAL.—Section 3A of the Burmese Freedom and Democracy Act of 2003 (Public Law 108–61; 50 U.S.C. 1701 note) is amended by adding at the end the following:

“(i) Termination.—Notwithstanding section 9, this section shall remain in effect until the President determines and certifies to the appropriate congressional committees that the Government of Burma has taken measures to reform the gemstone industry in Burma, including measures to require—

“(1) the disclosure of the ultimate beneficial ownership of entities in that industry; and

“(2) the publication of project revenues, payments, and contract terms relating to that industry.”.

(2) CONFORMING AMENDMENTS.—Section 3A of the Burmese Freedom and Democracy Act of 2003 is further amended—

(A) in subsection (b)—

(i) in paragraph (1), by striking “until such time” and all that follows through “2008” and inserting “beginning on the date that is 15 days after the date of the enactment of the Burma Human Rights and Freedom Act of 2017”; and

(ii) in paragraph (3), by striking “the date of the enactment of this Act” and inserting “the date of the enactment of the Burma Human Rights and Freedom Act of 2017”; and

(B) in subsection (c)(1), by striking “until such time” and all that follows through “2008” and inserting “beginning on the date that is 15 days after the date of the enactment of the Burma Human Rights and Freedom Act of 2017”.

(3) EFFECTIVE DATE.—The amendments made by this subsection shall apply with respect to articles entered, or withdrawn from warehouse for consumption, on or after the 15th day after the date of the enactment of this Act.

(b) Review of eligibility for Generalized System of Preferences.—

(1) IN GENERAL.—Not later than one year after the date of enactment of this Act, the President shall submit to the committees specified in paragraph (2) a report that includes a detailed review of the eligibility of Burma for preferential duty treatment under the Generalized System of Preferences under title V of the Trade Act of 1974 (19 U.S.C. 2461 et seq.).

(2) COMMITTEES SPECIFIED.—The committees specified in this paragraph are—

(A) the Committee on Appropriations, the Committee on Finance, and the Committee on Foreign Relations of the Senate; and

(B) the Committee on Appropriations, the Committee on Foreign Affairs, and the Committee on Ways and Means of the House of Representatives.

SEC. 10. Visa ban and economic sanctions with respect to military officials responsible for human rights abuses.

(a) List required.—

(1) IN GENERAL.—Not later than 30 days after the date of the enactment of this Act, the President shall submit to the appropriate congressional committees a list of senior officials of the military and security forces of Burma that the President determines have played a direct and substantial role in the commission of human rights abuses in Burma, including against the Rohingya minority population.

(2) INCLUSIONS.—The list required by paragraph (1) shall include all of the senior officials of the military and security forces of Burma in charge of each unit that was operational during the so-called “clearance operations” that began in October 2016 and are ongoing as of the date of the enactment of this Act.

(3) UPDATES.—Not less frequently than every 180 days, the President shall submit to the appropriate congressional committees an updated version of the list required by paragraph (1).

(b) Sanctions.—

(1) VISA BAN.—The Secretary of State shall deny a visa to, and the Secretary of Homeland Security to exclude from the United States, any individual on the list required by subsection (a)(1).

(2) LIST OF SPECIALLY DESIGNATED NATIONALS AND BLOCKED PERSONS.—

(A) IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the President shall—

(i) determine whether the individuals specified in subparagraph (B) should be included on the SDN list; and

(ii) submit to the appropriate congressional committees a report on that determination that includes, with respect to any such individual not included on the SDN list, the reason for not including that individual on that list.

(B) INDIVIDUALS SPECIFIED.—The individuals specified in this subparagraph are—

(i) the head of each unit of the military or security forces of Burma that was operational during the so-called “clearance operations” that began in October 2016 and are ongoing as of the date of the enactment of this Act, including—

(I) Senior General Min Aung Hlaing;

(II) Major General Maung Maung Soe; and

(III) Major General Khin Maung Soe; and

(ii) any senior official of the military or security forces of Burma for which there are credible allegations that the official has aided, participated, or is otherwise implicated in gross human rights abuses in Burma, including sexual and ethnic- or gender-based violence.

(C) SDN LIST DEFINED.—In this paragraph, the term “SDN list” means the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury.

(3) AUTHORITY FOR ADDITIONAL FINANCIAL SANCTIONS.—The Secretary of the Treasury may prohibit or impose conditions on the opening or maintaining in the United States of a correspondent account or payable-through account by any financial institution or financial agency that is a United States person, for or on behalf of a foreign financial institution, if the Secretary determines that the account is used—

(A) by a foreign financial institution that holds property or an interest in property of an individual on the list required by subsection (a)(1); or

(B) to conduct a transaction on behalf of an individual on that list.

(4) RULE OF CONSTRUCTION.—Nothing in this subsection may be construed to prohibit any contract or other financial transaction with a credible nongovernmental humanitarian organization in Burma.

(c) Removal from lists.—The President may remove an individual from the list required by subsection (a)(1), or remove an individual included on the SDN list pursuant to subsection (b)(2) from that list, if the President determines and reports to the appropriate congressional committees that—

(1) the individual has—

(A) publicly acknowledged the role of the individual in committing past human rights abuses;

(B) cooperated with independent efforts to investigate such abuses;

(C) been held accountable for such abuses; or

(D) demonstrated substantial progress in reforming the individual's behavior with respect to the protection of human rights in the conduct of civil-military relations; and

(2) removing the individual from the list is in the vital national interest of the United States.

(d) Penalties.—

(1) IN GENERAL.—A person that violates, attempts to violate, conspires to violate, or causes a violation of this section or any regulation, license, or order issued to carry out paragraph (2) or (3) of subsection (b) shall be subject to the penalties set forth in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent as a person that commits an unlawful act described in subsection (a) of that section.

(2) RULE OF CONSTRUCTION.—This subsection shall not be construed to require the President to declare a national emergency under section 202 of the International Emergency Economic Powers Act (50 U.S.C. 1701).

(e) Exceptions.—

(1) HUMANITARIAN ASSISTANCE.—A requirement to impose sanctions under this section shall not apply with respect to the provision of medicine, medical equipment or supplies, food, or any other form of humanitarian or human rights-related assistance provided to Burma in response to a humanitarian crisis.

(2) UNITED NATIONS HEADQUARTERS AGREEMENT.—Subsection (b)(1) shall not apply to the admission of an individual to the United States if such admission is necessary to comply with United States obligations under the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, signed at Lake Success June 26, 1947, and entered into force November 21, 1947, or under the Convention on Consular Relations, done at Vienna April 24, 1963, and entered into force March 19, 1967, or other international obligations of the United States.

(f) Definitions.—In this section:

(1) ACCOUNT; CORRESPONDENT ACCOUNT; PAYABLE-THROUGH ACCOUNT.—The terms “account”, “correspondent account”, and “payable-through account” have the meanings given those terms in section 5318A of title 31, United States Code.

(2) FINANCIAL AGENCY; FINANCIAL INSTITUTION.—The terms “financial agency” and “financial institution” have the meanings given those terms in section 5312 of title 31, United States Code.

(3) UNITED STATES PERSON.—The term “United States person” means—

(A) a United States citizen or an alien lawfully admitted for permanent residence to the United States; or

(B) an entity organized under the laws of the United States or of any jurisdiction within the United States, including a foreign branch of such an entity.

SEC. 11. Strategy for promoting economic development.

(a) In general.—Not later than 180 days after the date of the enactment of this Act, the Secretary of State, the Secretary of the Treasury, and the Administrator of the United States Agency for International Development shall submit to the appropriate congressional committees a strategy to support sustainable and broad-based economic development, in accordance with the priorities of the Government of Burma to improve economic conditions.

(b) Elements.—In order to support the efforts of the Government of Burma, the strategy required by subsection (a) shall include a plan to promote inclusive and responsible economic growth, including through the following initiatives:

(1) Develop an economic reform road-map to diversify control over and access to participation in key industries and sectors. The United States Government should support the Government of Burma to develop a roadmap to assess and recommend measures to remove barriers to a level playing field that increases competition, access and opportunity in sectors dominated by the military, former military officials, and their families, and businesspeople connected to the military. The roadmap should include areas related to government transparency, accountability, and governance.

(2) Increase transparency disclosure requirements in key sectors to promote responsible investment. Provide technical support to develop and implement policies, and revise existing policies on public disclosure of beneficial owners of companies in key sectors identified by the Government of Burma, including the identities of those seeking or securing access to Burma’s most valuable resources. Such new requirements should complement disclosures due to be put in place in Burma as a result of its participation in the Extractives Industry Transparency Initiative (EITI).

SEC. 12. Report on accountability for ethnic cleansing, crimes against humanity, and genocide in Burma.

(a) In general.—Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall submit to the appropriate congressional committees a report on allegations of ethnic cleansing, crimes against humanity, and genocide, and on potential transnational justice mechanisms in Burma.

(b) Elements.—The reports required under subsection (a) shall include—

(1) a description of alleged ethnic cleaning, crimes against humanity, including the crime of apartheid, and genocide perpetrated against the Rohingya ethnic minority in Burma, including—

(A) incidents that may constitute ethnic cleansing, crimes against humanity, and genocide committed by the Burmese military, and other actors involved in the violence;

(B) the role of the civilian government in the commission of such activities;

(C) incidents that may constitute ethnic cleansing, crimes against humanity, or genocide committed by violent extremist groups or antigovernment forces;

(D) any incidents that may violate the principle of medical neutrality and, if possible, identification of the individual or individuals who engaged in or organized such incidents; and

(E) to the extent possible, a description of the conventional and unconventional weapons used for such crimes and the origins of such weapons;

(2) a description and assessment by the Department of State, the United States Agency for International Development, the Department of Justice, and other appropriate Federal departments and agencies of programs that the United States Government has already or is planning to undertake to ensure accountability for ethnic cleansing, crimes against humanity, and genocide perpetrated against the Rohingya and other ethnic minority groups by the Government, security forces, and military of Burma, violent extremist groups, and other combatants involved in the conflict, including programs—

(A) to train investigators within and outside of Burma and Bangladesh on how to document, investigate, develop findings of, and identify and locate alleged perpetrators of ethnic cleansing, crimes against humanity, or genocide in Burma;

(B) to promote and prepare for a transitional justice process or processes for the perpetrators of ethnic cleansing, crimes against humanity, and genocide in Burma; and

(C) to document, collect, preserve, and protect evidence of ethnic cleansing, crimes against humanity, and genocide in Burma, including support for Burmese and Bangladeshi, foreign, and international nongovernmental organizations, United Nations Human Rights Council's investigative team, and other entities; and

(3) a detailed study of the feasibility and desirability of potential transitional justice mechanisms for Burma, including a hybrid tribunal, to address ethnic cleansing, crimes against humanity, and genocide perpetrated in Burma, including recommendations on which transitional justice mechanisms the United States Government should support, why such mechanisms should be supported, and what type of support should be offered.

(c) Protection of witnesses and evidence.—The Secretary shall take due care to ensure that the identification of witnesses and physical evidence are not publicly disclosed in a manner that might place such persons at risk of harm or encourage the destruction of evidence by the Government of Burma.

SEC. 13. Technical assistance authorized.

(a) In general.—The Secretary of State, in consultation with the Department of Justice and other appropriate Federal departments and agencies, is authorized to provide appropriate assistance to support entities that, with respect to ethnic cleansing, crimes against humanity, and genocide perpetrated by the military, security forces, and Government of Burma, Buddhist militias, and all other armed groups fighting in Rakhine State—

(1) identify suspected perpetrators of ethnic cleansing, crimes against humanity, and genocide;

(2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence;

(3) conduct criminal investigations; and

(4) support investigations by third-party states, as appropriate.

(b) Additional assistance.—The Secretary of State, after consultation with appropriate Federal departments and agencies and the appropriate congressional committees, and taking into account the findings of the transitional justice study required under section 12(b)(3), is authorized to provide assistance to support the creation and operation of transitional justice mechanisms, including a potential hybrid tribunal, to prosecute individuals suspected of committing ethnic cleansing, crimes against humanity, or genocide in Burma.

SECTION 1. Short title.

This Act may be cited as the “Burma Human Rights and Freedom Act of 2018”.

SEC. 2. Findings.

Congress makes the following findings:

(1) The United States policy of principled engagement since 1988 has fostered positive democratic reforms in Burma, which have led to significant milestones on the path to full democracy.

(2) On November 8, 2015, Burma held historic elections in which the National League for Democracy won a supermajority of seats in the combined national parliament. On March 30, 2016, Htin Kyaw was inaugurated as the President of Burma, the country’s first civilian President in more than 50 years. Aung San Suu Kyi, President of the National League for Democracy, was barred from becoming President due to the provisions of section 59(f) of the 2008 Constitution, and therefore assumed the office of State Counsellor, a position created for her that made her the country’s de facto leader.

(3) Aung San Suu Kyi’s first acts as State Counsellor after her National League for Democracy party took office included releasing more than 100 political prisoners, including well-known journalists and student activists held on politically motivated charges. However, as of November 2017, there were 228 political prisoners in Burma, 46 of which were serving prison sentences, 49 of which were awaiting trial inside prison, and 133 of which were awaiting trial outside prison, according to the Assistance Association for Political Prisoners.

(4) The Government of Burma also continues to systematically discriminate against the Rohingya people. Burma’s 1982 citizenship law stripped Rohingya Burmese of their Burmese citizenship, rendering them stateless, and the Government continues to restrict Rohingya births and to deny the Rohingya freedom of movement and access to healthcare, land, education, voting, political participation, and marriage.

(5) Despite the meaningful steps taken toward democracy in Burma, there remain important structural and systemic impediments to the realization of a fully democratic civilian government, including—

(A) the 2008 Constitution, which is in need of reform;

(B) the disfranchisement of certain groups who voted in previous elections;

(C) the social, political, and economic conditions in Rakhine State, particularly with respect to the Rohingya population; and

(D) the current humanitarian and human rights crisis affecting Burma’s Rohingya population and residents of the Rakhine, Kachin, and Shan states, including credible reports of ethnic cleansing, crimes against humanity, extrajudicial killings, sexual and gender-based violence, and forced displacement.

(6) Actions of the military of Burma, known as the Tatmadaw, including continuing assaults on personnel and territory controlled by armed ethnic organizations, military offensives immediately preceding the peace conference in Naypyitaw, and human rights violations against noncombatant civilians in conflict areas, undermine confidence in establishing a credible nationwide ceasefire agreement to end Burma’s civil war.

(7) The people of Burma continue to suffer from an ongoing civil war between the Tatmadaw and nearly 20 armed ethnic organizations. Any prospects for a full democracy in Burma are contingent on ending the civil war and finding a path toward national reconciliation between Burma’s Bamar majority and its various ethnic minorities.

(8) Since 2011, over 98,000 people have been displaced in Kachin and northern Shan State over the escalating violence and instability, resulting in continued massive internal displacement, including in internally displaced person (IDP) camps, which continues to undermine the trust necessary to achieve a durable, lasting peace, and has caused a massive humanitarian crisis which disproportionately affects the lives of innocent civilians and internally displaced persons forced from their homes. According to the United Nations Office for the Coordination of Humanitarian Affairs, some 50 percent of these displaced persons are staying in areas beyond Government control where humanitarian access is limited. Even in areas controlled by the Government, delivery of humanitarian assistance has been increasingly restricted through onerous bureaucratic requirements resulting in limited access by international and local humanitarian organizations.

(9) In 2015, the nongovernmental campaign Global Witness found that, in 2014, the estimated value of official production of jade equated to up to 48 percent of the official gross domestic product of Burma. Because of corruption and a lack of transparency, much of the proceeds of the Burmese jade trade enrich notorious leaders from the military junta, including former dictator Than Shwe and United States-sanctioned drug lord Hsueh Kang Wei, and vested interests in jade are undermining prospects for resolving the most intractable armed conflict in Burma.

(10) On August 31, 2016, State Counsellor Aung San Suu Kyi and the Government of Burma initiated the Union Peace Conference 21st Century Panglong in Naypyitaw, which more than 1,400 representatives of various concerned parties attended in an effort to begin the process of ending Burma’s civil war and to discuss options in forming a democratic state of Burma. On May 24, 2017, the Government of Burma held a second Panglong Peace Conference, with mixed results.

(11) On January 4, 2018, the Department of State determined that Burma remains designated as a country of particular concern for religious freedom under section 402(b) of the International Religious Freedom Act (22 U.S.C. 6442(b)), and that “members of the Rohingya community in particular face abuses by the Government of Burma, including those involving torture, unlawful arrest and detention, restricted movement, restrictions on religious practices, discrimination in employment, and access to social services”.

(12) The February 2017 panels set up by the Burmese army and the Home Affairs Ministry are widely perceived by the international community to lack independence and impartiality. The December 2016 commission established by Burma’s President Htin Kyaw to investigate the October 2016 attacks dismissed claims of misconduct by security forces due to “insufficient evidence.” A Burmese army internal inquiry completed in November 2017 claimed there had been no abuses committed by the military. The 2012 commission government established to investigate violence in Rakhine State that year never held anyone accountable.

(13) In a public address on October 12, 2017, State Counsellor Aung San Suu Kyi laid out 3 goals for the Rakhine State:

(A) Repatriation of those who have crossed over to Bangladesh and effective provision of humanitarian assistance.

(B) Resettlement of displaced populations.

(C) Economic development and durable peace.

(14) According to the Médecins Sans Frontières estimates, at least 6,700 Rohingya have been killed, including 730 children, and that at least 2,700 others died from disease and malnutrition and over an estimated 680,000 Rohingya have fled to Bangladesh since August 2017, fearing loss of livelihood and shelter and disproportionate use of force by the military of Burma.

(15) On October 23, 2017, the Department of State said, “We express our gravest concern with recent events in Rakhine State and the violent, traumatic abuses Rohingya and other communities have endured. It is imperative that any individuals or entities responsible for atrocities, including non-state actors and vigilantes, be held accountable.”.

(16) At a Senate Foreign Relations Committee hearing on October 24, 2017, the Department of State indicated that “refugees continue to cross into Bangladesh, and we continue to receive credible reports of sporadic violence in northern Rakhine State”.

(17) Amnesty International and Human Rights Watch have reported and documented a campaign of violence perpetuated by the security forces of Burma that “may amount to crimes against humanity” and “ethnic cleansing” and includes—

(A) indiscriminate attacks on civilians;

(B) rape of women and girls; and

(C) arbitrary arrest and detention of Rohingya men without charge.

(18) According to Human Rights Watch, Burmese security forces have committed widespread rape against women and girls as part of a campaign of ethnic cleansing against Rohingya Muslims in Burma’s Rakhine State. Survivors said that soldiers gathered them together in groups and then raped or gang raped them.

(19) Because survivors of conflict-related sexual or gender-based violence know very little about the abusers, aside from identifying the abuser as a member of a military unit, existing laws and accountability mechanisms often fail to protect victims of such violence.

(20) Satellite images captured by Human Rights Watch reveal that, out of the approximately 470 villages in northern Rakhine State, most of which were completely or partially populated with Rohingya Muslims, nearly 300 were partially or completely destroyed by fire after August 25, 2017.

(21) The Government of Burma has continued to block access to northern Rakhine State by United Nations and other humanitarian organizations, preventing hundreds of thousands of vulnerable Rohingya, Rahkine, and other ethnic groups, including children with acute malnutrition, from receiving humanitarian aid. According to a report by the United Nations Children’s Fund, a diphtheria outbreak has led to 424 cases and 6 deaths since December 6, 2017. In addition, the levels of global acute malnutrition in refugees from Burma exceeds the World Health Organization’s threshold by 15 percent in children aged 6–59 months. Over 50 percent of the Rohingya children are reported to be suffering from anemia.

(22) In response to previous violence between the Burmese military and the ethnic Rohingya people in 2016, Aung San Suu Kyi established the Advisory Commission on Rakhine State headed by former United Nations Secretary-General Kofi Annan to address tensions in Northern Rakhine. She has since also endorsed the Commission’s recommendations and established an “Advisory Team for the Committee for the Implementation of Recommendations on Rakhine State” to move forward with implementation.

(23) On December 21, 2017, using the authority granted by the Global Magnitsky Human Rights Accountability Act (subtitle F of title XII of Public Law 114–328), the President imposed sanctions on Maung Maung Soe, a Major General who was the chief of the Burmese Army’s Western command during the August 2017 attack in Rakhine state.

(24) On November 22, 2017, Secretary of State Rex Tillerson stated, “After careful and through analysis of available facts, it is clear that the situation in northern Rakhine state constitutes ethnic cleansing against the Rohingya. Those responsible for these atrocities must be held accountable.”.

(25) Ethnic cleansing is a despicable evil, and while it is not an independent crime under domestic or international law, it is often accomplished through acts that constitute war crimes, crimes against humanity, or genocide, and the perpetrators of such crimes in Burma must be held accountable.

SEC. 3. Definitions.

In this Act:

(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term “appropriate congressional committees” means—

(A) the Committee on Foreign Relations and the Committee on Armed Services of the Senate; and

(B) the Committee on Foreign Affairs and the Committee on Armed Services of the House of Representatives.

(2) GENOCIDE.—The term “genocide” means any offense described in section 1091(a) of title 18, United States Code.

(3) HYBRID TRIBUNAL.—The term “hybrid tribunal” means a temporary criminal tribunal that involves a combination of domestic and international lawyers, judges, and other professionals to prosecute individuals suspected of committing war crimes, crimes against humanity, or genocide.

(4) TRANSITIONAL JUSTICE.—The term “transitional justice” means the range of judicial, nonjudicial, formal, informal, retributive, and restorative measures employed by countries transitioning out of armed conflict or repressive regimes—

(A) to redress legacies of atrocities; and

(B) to promote long-term, sustainable peace.

(5) WAR CRIME.—The term “war crime” has the meaning given the term in section 2441(c) of title 18, United States Code.

SEC. 4. Statement of policy.

It is the policy of the United States that—

(1) the pursuit of a calibrated engagement strategy is essential to support the establishment of a peaceful, prosperous, and democratic Burma that includes respect for the human rights of all its people regardless of ethnicity and religion; and

(2) the guiding principles of such a strategy include—

(A) support for meaningful legal and constitutional reforms that remove remaining restrictions on civil and political rights and institute civilian control of the military, civilian control of the government, and the constitutional provision reserving 25 percent of parliamentary seats for the military, which provides the military with veto power over constitutional amendments;

(B) the establishment of a fully democratic, pluralistic, civilian controlled, and representative political system that includes regularized free and fair elections in which all people of Burma, including the Rohingya, can vote;

(C) the promotion of genuine national reconciliation and conclusion of a credible and sustainable nationwide ceasefire agreement, political accommodation of the needs of ethnic Shan, Kachin, Chin, Karen, and other ethnic groups, safe and voluntary return of displaced persons to villages of origins, and constitutional change allowing inclusive permanent peace;

(D) investigations into credible reports of ethnic cleansing, crimes against humanity, sexual and gender-based violence, and genocide perpetrated against ethnic minorities like the Rohingya by the government, military, and security forces of Burma, violent extremist groups, and other combatants involved in the conflict;

(E) accountability for determinations of ethnic cleansing, crimes against humanity, sexual and gender-based violence, and genocide perpetrated against ethnic minorities like the Rohingya by the Government, military, and security forces of Burma, violent extremist groups, and other combatants involved in the conflict;

(F) strengthening the government’s civilian institutions, including support for greater transparency and accountability;

(G) the establishment of professional and nonpartisan military, security, and police forces that operate under civilian control;

(H) empowering local communities, civil society, and independent media;

(I) promoting responsible international and regional engagement;

(J) strengthening respect for and protection of human rights and religious freedom;

(K) addressing and ending the humanitarian and human rights crisis, including by supporting the return of the displaced Rohingya to their homes and providing equal access to restoration of full citizenship for the Rohingya population; and

(L) promoting broad-based, inclusive economic development and fostering healthy and resilient communities.

SEC. 5. Authorization of humanitarian assistance and reconciliation.

(a) Humanitarian assistance.—

(1) IN GENERAL.—There is authorized to be appropriated $103,695,069 for fiscal year 2018 for humanitarian assistance for Burma, Bangladesh, and the region. The assistance may include—

(A) assistance for the victims of the Burmese military's ethnic cleansing campaign targeting Rohingya in Rakhine State, including those displaced in Bangladesh, Burma, and the region;

(B) support for voluntary resettlement or repatriation efforts regionally; and

(C) humanitarian assistance to victims of violence and destruction in Rakhine State, including victims of gender-based violence and unaccompanied minors.

(2) SENSE OF CONGRESS ON ADDITIONAL FUNDING.—It is the sense of Congress that additional significant and sustained funding will be necessary to address the medium and long-term impacts of this crisis.

(b) Reconciliation programs.—There is authorized to be appropriated $27,400,000 for fiscal year 2018 for reconciliation programs in Burma. The assistance may include—

(1) reducing the influence of the drivers of intercommunal conflict;

(2) strengthening engagement on areas affecting fundamental freedoms;

(3) enhancing the ability of key stakeholders to engage in the peace process; and

(4) assisting the implementation of the Kofi Annan Commission report.

SEC. 6. Multilateral assistance.

The Secretary of the Treasury should instruct the United States executive director of each international financial institution to use the voice and vote of the United States to support projects in Burma that—

(1) provide for accountability and transparency, including the collection, verification and publication of beneficial ownership information related to extractive industries and on-site monitoring during the life of the project;

(2) will be developed and carried out in accordance with best practices regarding environmental conservation, cultural protection, and empowerment of local populations, including free, prior, and informed consent of affected indigenous communities;

(3) do not provide incentives for, or facilitate, forced displacement; and

(4) do not partner with or otherwise involve enterprises owned or controlled by the armed forces.

SEC. 7. Sense of Congress on right of returnees and freedom of movement.

(a) Right of return.—It is the sense of Congress that the Government of Burma, in collaboration with the regional and international community, including the United Nations High Commissioner for Refugees, should—

(1) ensure the dignified, safe, and voluntary return of all those displaced from their homes, especially from Rakhine State, without an unduly high burden of proof;

(2) offer to those who do not want to return meaningful opportunity to obtain appropriate compensation or restitution;

(3) not place returning Rohingya in DP camps or “model villages”, but instead make efforts to reconstruct Rohingya villages as and where they were;

(4) keep any funds collected by the Government by harvesting the land previously owned and tended by Rohingya farmers for them upon their return; and

(5) fully implement all of the recommendations of the Advisory Commission on Rakhine State.

(b) Freedom of movement of refugees and internally displaced persons.—Congress recognizes that the Government of Bangladesh has provided long-standing support and hospitality to people fleeing violence in Burma, and calls on the Government of Bangladesh—

(1) to ensure all refugees have freedom of movement and under no circumstance are subject to unsafe, involuntary, or uninformed repatriation; and

(2) to ensure the dignified, safe, and voluntary return of those displaced from their homes, and offer to those who do not want to return meaningful means to obtain compensation or restitution.

SEC. 8. Military cooperation.

(a) Prohibition.—Except as provided under subsection (b), the President may not furnish any security assistance or to engage in any military-to-military programs with the armed forces of Burma, including training or observation or participation in regional exercises, until the Secretary of State, in consultation with the Secretary of Defense, certifies to the appropriate congressional committees that the Burmese military has demonstrated significant progress in abiding by international human rights standards and is undertaking meaningful and significant security sector reform, including transparency and accountability to prevent future abuses, as determined by applying the following criteria:

(1) The military adheres to international human rights standards and pledges to stop future human rights violations.

(2) The military supports efforts to carry out meaningful and comprehensive investigations of credible reports of abuses and is taking steps to hold accountable those in the Burmese military responsible for human rights violations.

(3) The military supports efforts to carry out meaningful and comprehensive investigations of reports of conflict-related sexual and gender-based violence and is taking steps to hold accountable those in the Burmese military who failed to prevent, respond to, investigate, and prosecute violence against women, sexual violence, or other gender-based violence.

(4) The Government of Burma, including the military, allows immediate and unfettered humanitarian access to communities in areas affected by conflict, including Rohingya communities in Rakhine State.

(5) The Government of Burma, including the military, cooperates with the United Nations High Commissioner for Refugees and other relevant United Nations agencies to ensure the protection of displaced persons and the safe and voluntary return of Rohingya refugees and internally displaced persons.

(6) The Government of Burma, including the military, takes steps toward the implementation of the recommendations of the Advisory Commission on Rakhine State.

(b) Exceptions.—

(1) CERTAIN EXISTING AUTHORITIES.—The Department of Defense may continue to conduct consultations based on the authorities under section 1253 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 22 U.S.C. 2151 note).

(2) HOSPITALITY.—The United States Agency for International Development and the Department of State may provide assistance authorized by part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) to support ethnic armed groups and the Burmese military for the purpose of supporting research, dialogues, meetings, and other activities related to the Union Peace Conference, Political Dialogues, and related processes, in furtherance of inclusive, sustainable reconciliation.

(c) Military reform.—The certification required under subsection (a) shall include a written justification in classified and unclassified form describing the Burmese military’s efforts to implement reforms, end impunity for human rights violations, and increase transparency and accountability.

(d) Rule of construction.—Nothing in this Act shall be construed to authorize Department of Defense assistance to the Government of Burma except as provided in this section.

(e) Report.—

(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, and every 180 days thereafter, the Secretary of State and the Secretary of Defense shall submit to the appropriate congressional committees a report, in both classified and unclassified form, on the strategy and plans for military-to-military engagement between the United States Armed Forces and the military of Burma.

(2) ELEMENTS.—The report required under paragraph (1) shall include the following elements:

(A) A description and assessment of the Government of Burma’s strategy for security sector reform, including as it relates to an end to involvement in the illicit trade in jade and other natural resources, reforms to end corruption and illicit drug trafficking, and constitutional reforms to ensure civilian control of the Government.

(B) A list of ongoing military activities conducted by the United States Government with the Government of Burma, and a description of the United States strategy for future military-to-military engagements between the United States and Burma’s military forces, including the military of Burma, the Burma Police Force, and armed ethnic groups.

(C) An assessment of the progress of the military of Burma towards developing a framework to implement human rights reforms, including—

(i) cooperation with civilian authorities to investigate and prosecute cases of human rights violations;

(ii) steps taken to demonstrate respect for internationally-recognized human rights standards and implementation of and adherence to the laws of war; and

(iii) a description of the elements of the military-to-military engagement between the United States and Burma that promote such implementation.

(D) An assessment of progress on the peaceful settlement of armed conflicts between the Government of Burma and ethnic minority groups, including actions taken by the military of Burma to adhere to ceasefire agreements, allow for safe and voluntary returns of displaced persons to their villages of origin, and withdraw forces from conflict zones.

(E) An assessment of the Burmese’s military recruitment and use of children as soldiers.

(F) An assessment of the Burmese’s military’s use of violence against women, sexual violence, or other gender-based violence as a tool of terror, war, or ethnic cleansing.

(f) Civilian channels.—Any program initiated under this section shall use appropriate civilian government channels with the democratically elected Government of Burma.

(g) Regular consultations.—Any new program or activity in Burma initiated under this section shall be subject to prior consultation with the appropriate congressional committees.

SEC. 9. Reinstatement of import restrictions on jadeite from Burma.

(a) Definitions.—Section 3A(a) of the Burmese Freedom and Democracy Act of 2003 (Public Law 108–61; 50 U.S.C. 1701 note) is amended—

(1) by striking paragraph (2) and inserting the following:

“(2) BURMESE COVERED ARTICLE.—The term ‘Burmese covered article’ means—

“(A) jadeite mined or extracted from Burma; or

“(B) articles of jewelry containing jadeite described in subparagraph (A).”;

(2) by striking paragraph (3) and inserting the following:

“(3) NON-BURMESE COVERED ARTICLE.—The term ‘non-Burmese covered article’ means—

“(A) jadeite mined or extracted from a country other than Burma; or

“(B) articles of jewelry containing jadeite described in subparagraph (A).”; and

(3) by striking paragraph (4) and inserting the following:

“(4) JADEITE; ARTICLES OF JEWELRY CONTAINING JADEITE.—

“(A) JADEITE.—The term ‘jadeite’ means any jadeite classifiable under heading 7103 of the Harmonized Tariff Schedule of the United States (in this paragraph referred to as the ‘HTS’).

“(B) ARTICLES OF JEWELRY CONTAINING JADEITE.—The term ‘articles of jewelry containing jadeite’ means—

“(i) any article of jewelry classifiable under heading 7113 of the HTS that contains jadeite; or

“(ii) any article of jadeite classifiable under heading 7116 of the HTS.”.

(b) Termination.—Section 3A of the Burmese Freedom and Democracy Act of 2003 (Public Law 108–61; 50 U.S.C. 1701 note) is amended by striking subsections (g) and (h) and inserting the following:

“(g) Termination.—Notwithstanding section 9, this section shall remain in effect until the President determines and certifies to the appropriate congressional committees that the Government of Burma has taken measures to reform the jadeite industry in Burma, including measures to require—

“(1) the disclosure of the ultimate beneficial ownership of entities in that industry; and

“(2) the publication of project revenues, payments, and contract terms relating to that industry.”.

(c) Conforming amendments.—Section 3A of the Burmese Freedom and Democracy Act of 2003 (Public Law 108–61; 50 U.S.C. 1701 note) is amended—

(1) in the section heading—

(A) by striking “and rubies”; and

(B) by striking “or rubies”;

(2) in subsection (b)—

(A) in paragraph (1), by striking “until such time” and all that follows through “2008” and inserting “beginning on the date that is 180 days after the date of the enactment of the Burma Human Rights and Freedom Act of 2018”; and

(B) in paragraph (3), by striking “the date of the enactment of this Act” and inserting “the date of the enactment of the Burma Human Rights and Freedom Act of 2018”; and

(3) in subsection (c)—

(A) in paragraph (1), by striking “until such time” and all that follows through “2008” and inserting “beginning on the date that is 180 days after the date of the enactment of the Burma Human Rights and Freedom Act of 2018”; and

(B) in paragraph (2)(B)—

(i) in clause (ii), by striking “or polished rubies”

(ii) by striking “or rubies” each place it appears.

SEC. 10. Visa ban and economic sanctions with respect to military officials responsible for human rights violations.

(a) List required.—

(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the President shall submit to the appropriate congressional committees a list of senior officials of the military and security forces of Burma that the President determines have knowingly played a direct and significant role in the commission of human rights violations in Burma, including against the Rohingya minority population.

(2) INCLUSIONS.—The list required by paragraph (1) shall include all of the senior officials of the military and security forces of Burma—

(A) in charge of each unit that was operational during the so-called “clearance operations” that began during or after October 2016; and

(B) who knew, or should have known, that the official's subordinates were committing sexual or gender-based violence and failed to take adequate steps to prevent such violence or punish the individuals responsible for such violence.

(3) UPDATES.—Not less frequently than every 180 days, the President shall submit to the appropriate congressional committees an updated version of the list required by paragraph (1).

(b) Sanctions.—

(1) VISA BAN.—The Secretary of State shall deny a visa to, and the Secretary of Homeland Security shall exclude from the United States, any individual included in the most recent list required subsection (a).

(2) LIST OF SPECIALLY DESIGNATED NATIONALS AND BLOCKED PERSONS.—

(A) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the President shall—

(i) determine whether the individuals specified in subparagraph (B) should be included on the SDN list; and

(ii) submit to the appropriate congressional committees a report, in classified form if necessary, on the procedures for including those individuals on the SDN list under existing authorities of the Department of the Treasury.

(B) INDIVIDUALS SPECIFIED.—The individuals specified in this subparagraph are—

(i) the head of each unit of the military or security forces of Burma that was operational during the so-called “clearance operations” that began during or after October 2016, including—

(I) Senior General Min Aung Hlaing; and

(II) Major General Khin Maung Soe;

(ii) any senior official of the military or security forces of Burma for which the President determines there are credible reports that the official has aided, participated, or is otherwise implicated in gross human rights violations in Burma, including sexual and ethnic- or gender-based violence; and

(iii) any senior official of the military or security forces of Burma for which the President determines there are credible reports that the official knew, or should have known, that the official's subordinates were committing sexual or gender-based violence and failed to take adequate steps to prevent such violence or punish the individuals responsible for such violence.

(3) AUTHORITY FOR ADDITIONAL FINANCIAL SANCTIONS.—The Secretary of the Treasury may, in consultation with the Secretary of State, prohibit or impose strict conditions on the opening or maintaining in the United States of a correspondent account or payable-through account by any financial institution that is a United States person, for or on behalf of a foreign financial institution, if the Secretary determines that the account is knowingly used—

(A) by a foreign financial institution that knowingly holds property or an interest in property of an individual included on the SDN list pursuant to paragraph (2); or

(B) to conduct a significant transaction on behalf of such an individual.

(4) RULE OF CONSTRUCTION.—Nothing in this subsection may be construed to prohibit any contract or other financial transaction by a United States person with a credible nongovernmental humanitarian organization in Burma.

(c) Removal from list.—The President may remove an individual from the list required by subsection (a) if the President determines and reports to the appropriate congressional committees that—

(1) the individual has—

(A) publicly acknowledged the role of the individual in committing past human rights violations;

(B) cooperated with independent efforts to investigate such violations;

(C) been held accountable for such violations; and

(D) demonstrated substantial progress in reforming the individual's behavior with respect to the protection of human rights in the conduct of civil-military relations; and

(2) removing the individual from the list is in the national interest of the United States.

(d) Exceptions.—

(1) HUMANITARIAN ASSISTANCE.—A requirement to impose sanctions under this section shall not apply with respect to the provision of medicine, medical equipment or supplies, food, or any other form of humanitarian or human rights-related assistance provided to Burma in response to a humanitarian crisis.

(2) UNITED NATIONS HEADQUARTERS AGREEMENT.—Subsection (b)(1) shall not apply to the admission of an individual to the United States if such admission is necessary to comply with United States obligations under the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, signed at Lake Success June 26, 1947, and entered into force November 21, 1947, or under the Convention on Consular Relations, done at Vienna April 24, 1963, and entered into force March 19, 1967, or other international obligations of the United States.

(e) Waiver.—The President may waive a requirement of this section if the Secretary of State, in consultation with the Secretary of the Treasury, determines and reports to the appropriate congressional committees that the waiver is important to the national security interests of the United States.

(f) Implementation; penalties.—

(1) IMPLEMENTATION.—The President may exercise all authorities provided under sections 203 and 205 of the International Emergency Economic Powers Act (50 U.S.C. 1702 and 1704) to carry out this section.

(2) PENALTIES.—A person that violates, attempts to violate, conspires to violate, or causes a violation of paragraph (2) or (3) of subsection (b) or any regulation, license, or order issued to carry out either such paragraph shall be subject to the penalties set forth in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent as a person that commits an unlawful act described in subsection (a) of that section.

(3) RULE OF CONSTRUCTION.—This subsection shall not be construed to require the President to declare a national emergency under section 202 of the International Emergency Economic Powers Act (50 U.S.C. 1701).

(g) Definitions.—In this section:

(1) ACCOUNT; CORRESPONDENT ACCOUNT; PAYABLE-THROUGH ACCOUNT.—The terms “account”, “correspondent account”, and “payable-through account” have the meanings given those terms in section 5318A of title 31, United States Code.

(2) FINANCIAL INSTITUTION.—The term “financial institution” has the meaning given that term in section 5312 of title 31, United States Code.

(3) KNOWINGLY.—The term “knowingly”, with respect to conduct, a circumstance, or a result, means that a person has actual knowledge, or should have known, of the conduct, the circumstance, or the result.

(4) SDN LIST.—The term “SDN list” means the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury.

(5) UNITED STATES PERSON.—The term “United States person” means—

(A) a United States citizen or an alien lawfully admitted for permanent residence to the United States;

(B) an entity organized under the laws of the United States or of any jurisdiction within the United States, including a foreign branch of such an entity; or

(C) any person in the United States.

SEC. 11. Strategy for promoting economic development.

(a) In general.—Not later than 180 days after the date of the enactment of this Act, the Secretary of State, the Secretary of the Treasury, and the Administrator of the United States Agency for International Development shall submit to the appropriate congressional committees a strategy to support sustainable and broad-based economic development, in accordance with the priorities of the Government of Burma to improve economic conditions.

(b) Elements.—In order to support the efforts of the Government of Burma, the strategy required by subsection (a) shall include a plan to promote inclusive and responsible economic growth, including through the following initiatives:

(1) Develop an economic reform road-map to diversify control over and access to participation in key industries and sectors. The United States Government should support the Government of Burma to develop a roadmap to assess and recommend measures to remove barriers and increase competition, access and opportunity in sectors dominated by the military, former military officials, and their families, and businesspeople connected to the military. The roadmap should include areas related to government transparency, accountability, and governance.

(2) Increase transparency disclosure requirements in key sectors to promote responsible investment. Provide technical support to develop and implement policies, and revise existing policies on public disclosure of beneficial owners of companies in key sectors identified by the Government of Burma, including the identities of those seeking or securing access to Burma’s most valuable resources. In the ruby industry, this specifically includes working with the Government of Burma to require the disclosure of the ultimate beneficial ownership of entities in the industry and the publication of project revenues, payments, and contract terms relating to the industry. Such new requirements should complement disclosures due to be put in place in Burma as a result of its participation in the Extractives Industry Transparency Initiative (EITI).

(3) Promote universal access to reliable, affordable, energy efficient, and sustainable power, including leveraging United States assistance to support reforms in the power sector and electrification projects that increase energy access, in partnership with multilateral organizations and the private sector.

SEC. 12. Report on ethnic cleansing and serious human rights abuses in Burma.

(a) In general.—Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall submit to the appropriate congressional committees a report detailing the credible reports of ethnic cleansing and serious human rights abuses committed against the Rohingya in Burma, including credible reports of war crimes, crimes against humanity, and genocide, and on potential transnational justice mechanisms in Burma.

(b) Elements.—The reports required under subsection (a) shall include—

(1) a description of credible reports of ethnic cleaning and serious human rights abuses perpetrated against the Rohingya ethnic minority in Burma, including—

(A) incidents that may constitute ethnic cleansing, crimes against humanity, sexual and gender-based violence, and genocide committed by the Burmese military, and other actors involved in the violence;

(B) the role of the civilian government in the commission of such activities;

(C) incidents that may constitute ethnic cleansing, crimes against humanity, sexual and gender-based violence, or genocide committed by violent extremist groups or antigovernment forces;

(D) any incidents that may violate the principle of medical neutrality and, if possible, identification of the individual or individuals who engaged in or organized such incidents; and

(E) to the extent possible, a description of the conventional and unconventional weapons used for such crimes and the origins of such weapons;

(2) a description and assessment by the Department of State, the United States Agency for International Development, the Department of Justice, and other appropriate Federal departments and agencies of programs that the United States Government has already or is planning to undertake to ensure accountability for credible reports of ethnic cleansing and reports of war crimes, crimes against humanity, sexual and gender-based violence, and genocide perpetrated against the Rohingya and other ethnic minority groups by the Government, security forces, and military of Burma, violent extremist groups, and other combatants involved in the conflict, including programs—

(A) to train investigators within and outside of Burma and Bangladesh on how to document, investigate, develop findings of, and identify and locate alleged perpetrators of ethnic cleansing, crimes against humanity, or genocide in Burma;

(B) to promote and prepare for a transitional justice process or processes for the perpetrators of ethnic cleansing, crimes against humanity, and genocide in Burma; and

(C) to document, collect, preserve, and protect evidence of reports of ethnic cleansing, crimes against humanity, and genocide in Burma, including support for Burmese and Bangladeshi, foreign, and international nongovernmental organizations, the United Nations Human Rights Council’s investigative team, and other entities; and

(3) A detailed study of the feasibility and desirability of potential transitional justice mechanisms for Burma, including a hybrid tribunal, and recommendations on which transitional justice mechanisms the United States Government should support, why such mechanisms should be supported, and what type of support should be offered.

(c) Protection of witnesses and evidence.—The Secretary shall take due care to ensure that the identification of witnesses and physical evidence are not publicly disclosed in a manner that might place such persons at risk of harm or encourage the destruction of evidence by the Government of Burma.

SEC. 13. Technical assistance authorized.

(a) In general.—The Secretary of State, in consultation with the Department of Justice and other appropriate Federal departments and agencies, is authorized to provide appropriate assistance to support entities that, with respect to credible reports of ethnic cleansing, crimes against humanity, and genocide perpetrated by the military, security forces, and Government of Burma, Buddhist militias, and all other armed groups fighting in Rakhine State—

(1) identify suspected perpetrators of ethnic cleansing, war crimes, crimes against humanity, and genocide;

(2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence;

(3) conduct criminal investigations; and

(4) support investigations by third-party states, as appropriate.

(b) Additional assistance.—The Secretary of State, after consultation with appropriate Federal departments and agencies and the appropriate congressional committees, and taking into account the findings of the transitional justice study required under section 12(b)(3), is authorized to provide assistance to support the creation and operation of transitional justice mechanisms for Burma.

SEC. 14. Sense of Congress on press freedom.

In order to promote freedom of the press in Burma, it is the sense of Congress that—

(1) Wa Lone and Kyaw Soe Oo should be immediately released and should have access to lawyers and their families; and

(2) the decision to use a colonial-era law to arrest these Reuters reporters undermines press freedom around the world and further underscores the need for serious legal reform.

SEC. 15. Measures relating to military cooperation between Burma and North Korea.

(a) Imposition of sanctions.—

(1) IN GENERAL.—The President may, with respect to any person described in paragraph (2)—

(A) impose the sanctions described in paragraph (1) or (3) of section 10(b); or

(B) include that person on the SDN list (as defined in section 10(g)).

(2) PERSONS DESCRIBED.—A person described in this paragraph is an official of the Government of Burma or an individual or entity acting on behalf of that Government that the President determines purchases or otherwise acquires defense articles from the Government of North Korea or an individual or entity acting on behalf of that Government.

(b) Restriction on foreign assistance.—The President may terminate or reduce the provision of United States foreign assistance to Burma if the President determines that the Government of Burma does not verifiably and irreversibly eliminate all purchases or other acquisitions of defense articles by persons described in subsection (a)(2) from the Government of North Korea or individuals or entities acting on behalf of that Government.

(c) Defense article defined.—In this section, the term “defense article” has the meaning given that term in section 47 of the Arms Export Control Act (22 U.S.C. 2794).

SEC. 16. No authorization for the use of military force.

Nothing in this Act shall be construed as an authorization for the use of force.


Calendar No. 307

115th CONGRESS
     2d Session
S. 2060

A BILL
To promote democracy and human rights in Burma, and for other purposes.

February 12, 2018
Reported with an amendment