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H.R. 5819 - Burma Unified through Rigorous Military Accountability Act of 2018

Introduced: 2018-05-15
Bill Status: Committee Agreed to Seek Consideration Under Suspension of the Rules,.
 
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Full Text


115th CONGRESS
2d Session
H. R. 5819


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


IN THE HOUSE OF REPRESENTATIVES

May 15, 2018

    Mr. Engel (for himself, Mr. Chabot, Mr. Crowley, Mr. Royce of California, Mr. Sherman, Mr. Yoho, Mr. Castro of Texas, Mrs. Wagner, Mr. Cicilline, Mr. McCaul, Mr. Sires, Mr. Smith of New Jersey, Mr. Costa, Mr. Denham, Mr. Deutch, Mr. Poe of Texas, Ms. Bass, Mr. King of New York, Ms. Titus, Mr. Cook, Mr. Ted Lieu of California, Mr. Meadows, Mr. Connolly, Mr. Thomas J. Rooney of Florida, Ms. Speier, Ms. Ros-Lehtinen, Mr. Cohen, Mr. Soto, Ms. Jenkins of Kansas, Mr. McGovern, Mr. Garrett, Ms. Schakowsky, Mr. Donovan, Mr. Johnson of Georgia, Mrs. Comstock, Ms. Kuster of New Hampshire, Mr. Coffman, Ms. Lofgren, Mr. Lance, Mr. Lowenthal, Mr. Costello of Pennsylvania, Ms. Pingree, Mr. Bilirakis, Mr. Blumenauer, Mr. Rutherford, Mr. Pocan, Mr. Russell, Mr. Rush, Ms. Bonamici, Mr. Culberson, Ms. McCollum, Ms. Norton, Mr. Delaney, Mr. Pallone, Mr. Cartwright, Ms. Esty of Connecticut, Mr. Brady of Pennsylvania, Ms. Eshoo, Ms. Moore, Ms. Lee, Mr. Moulton, Mr. Danny K. Davis of Illinois, Mr. Khanna, Mr. Welch, Mrs. Carolyn B. Maloney of New York, Mr. Hastings, and Mr. Beyer) introduced the following bill; which was referred to the Committee on Foreign Affairs, and in addition to the Committees on the Judiciary, and Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


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; table of contents.

(a) Short title.—This Act may be cited as the “Burma Unified through Rigorous Military Accountability Act of 2018” or the “BURMA Act of 2018”.

(b) Table of contents.—The table of contents for this Act is as follows:


TITLE I—MATTERS RELATING TO THE CONFLICT IN BURMA


TITLE II—ASSISTANCE AND SANCTIONS WITH RESPECT TO BURMA


TITLE III—GOVERNANCE OF THE BURMESE MINING AND GEMSTONE SECTOR


TITLE IV—ACCOUNTABILITY FOR HUMAN RIGHTS ABUSES AND STRATEGY FOR ECONOMIC GROWTH

SEC. 2. Appropriate congressional committees defined.

In this Act, the term “appropriate congressional committees” means—

(1) the Committee on Foreign Affairs and the Committee on Armed Services of the House of Representatives; and

(2) the Committee on Foreign Relations and the Committee on Armed Services of the Senate.

TITLE IMATTERS RELATING TO THE CONFLICT IN BURMA

SEC. 101. Findings.

Congress finds the following:

(1) On August 25, 2017, Burmese military and security forces violently and disproportionately responded to an attack on security outposts, resulting in a mass exodus of Rohingya from the Rakhine State of Burma into Bangladesh, which the International Organization of Migration called “unprecedented in terms of volume and speed”.

(2) Between August 2017 and March 2018, in response to the violence perpetrated by the Burmese military and security forces, the United Nations estimates more than 693,000 Rohingya, approximately 78 percent of whom are women and children, have fled to Bangladesh, fearing loss of life, livelihoods, and shelter.

(3) Despite the steps taken toward democracy in Burma, there exists limited control by the civilian government over civilian agencies and no meaningful civilian control over the military or security forces that carried out the violence in Rakhine State and that continues to engage in grave human rights abuses against ethnic minorities throughout in the country.

(4) Both government- and military-initiated investigations into human rights abuses in Burma involving violence between ethnic minorities and Burmese security forces have failed to yield credible results or meaningfully hold perpetrators accountable.

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

(A) Repatriation of those who have crossed over to Bangladesh.

(B) Effective provision of humanitarian assistance.

(C) Resettlement of displaced populations.

(D) Economic development and durable peace.

(6) Due to restrictions enforced by the Rakhine State government and the military and security forces, there has been little progress made since that time and limited ability for the international community to meaningfully support, verify, or evaluate the Government of Burma’s efforts. There are also credible reports of Burmese military and security forces bulldozing villages where violence occurred, thus destroying physical evidence of what may have occurred there.

(7) Human rights organizations have reported and documented a campaign of violence perpetrated by the security forces of Burma, which indiscriminately fired on and killed civilians, raped women and girls, and arbitrarily arrested Rohingya men without any cause or charges. Satellite images obtained by Amnesty International 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 which were completely or partially populated by Rohingya Muslims.

(8) On October 10, 2017, at a hearing before the House Foreign Affairs Committee, the Deputy Assistant Secretary of State for Population, Refugees, and Migration Mark Storella testified that of the $434,000,000 required by the United Nations for emergency response in the first 6 months of this crisis, “[i]n fiscal year 2017, the United States contributed nearly $104 million in assistance to the displaced populations in Burma for refugees from Burma throughout the region”.

(9) The United Nations Joint Response Plan to fund assistance to Rohingya refugees and the host community in Bangladesh through the end of 2018 requires almost $1,000,000,000 in assistance.

(10) On November 22, 2017, Secretary of State Rex Tillerson stated that, “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”. He also said the violence “has a number of characteristics of certainly crimes against humanity”.

(11) Yanghee Lee, the United Nations Special Rapporteur on the situation of human rights in Myanmar said, “I am becoming more convinced that the crimes committed following 9 October 2016 and 25 August 2017 bear the hallmarks of genocide and call in the strongest possible terms for accountability.”

(12) On December 12, 2017, Wa Lone and Kyaw Soe Oo, two Reuters reporters covering the crisis in Rakhine State, were entrapped, arrested, and charged with violating the Official Secrets Act, continuing a trend of restricting media and free speech and attempting to thwart coverage of the events in Rakhine State.

SEC. 102. Statement of policy.

It shall be the policy of the United States to—

(1) support a complete transition to democracy and genuine national reconciliation in Burma which cannot be achieved without appropriate accountability for the atrocities committed by the Burmese military against the Rohingya population and other ethnic minorities throughout the country;

(2) pursue a strategy of calibrated engagement, which 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

(3) ensure that the guiding principles of such a strategy include—

(A) supporting meaningful legal and constitutional reforms that remove remaining restrictions on civil and political rights and ensure civilian governance, including reforms to the current constitutional provision reserving 25 percent of parliamentary seats for appointments by the military, which provides the military with veto power over constitutional amendments;

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

(C) promoting genuine national reconciliation, the conclusion of a credible and sustainable nationwide cease-fire agreement, including political accommodation of ethnic Shan, Kachin, Chin, Karen, and other ethnic groups, measures to address natural resource governance and revenue-sharing, and constitutional change enabling inclusive, permanent peace;

(D) ensuring accountability for human rights abuses, ethnic cleansing, crimes against humanity, or genocide perpetrated against the Rohingya, Kachin, Shan, Chin, and other ethnic minorities by the military of Burma and other combatants involved in the conflict;

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

(F) establishing professional and nonpartisan military, security, and police forces that operate under civilian control, subject to civilian oversight, and are held fully accountable for human rights abuses, corruption, or other abuses of power;

(G) combating rampant corruption and illegal economic activity, including that which involves the military and its close allies;

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

(I) ensuring that the Government of Burma provides full citizenship for the Rohingya population in Burma as well as for those displaced in Bangladesh;

(J) promoting responsible international and regional engagement;

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

(L) addressing and ending the humanitarian and human rights crises and supporting the ability of the displaced Rohingya to voluntarily return to their homes, under safe, dignified, and internationally approved conditions.

SEC. 103. Sense of Congress with respect to humanitarian assistance, freedom of movement, and rights of returnees.

(a) Sense of Congress.—It is the sense of Congress that—

(1) significant and sustained international support, from both public and private sources, will be necessary to address the medium- and long-term impacts of the crisis in Burma and the impact of the crisis on Bangladesh; and

(2) the United States should make resolving the Rohingya crisis one of its top priorities in its engagement with regional institutions such as the Association of Southeast Asian Nations.

(b) Restoration of humanitarian access and accountability in Rakhine State.—Congress calls on the Government of Burma and Burmese security forces to ensure complete and unfettered humanitarian access in the State of Rakhine and to support an independent international fact-finding mission to investigate allegations of ethnic cleansing, crimes against humanity, and genocide.

(c) Rights of refugees, internally displaced persons, and returnees.—Congress calls on the Government of Burma to—

(1) ensure that Rohingya have freedom of movement and under no circumstances are subject to unsafe, involuntary, or uninformed repatriation;

(2) create conditions for return of those displaced from their homes by fully implementing the recommendations of the Advisory Commission on Rakhine State and implementing full and equal citizenship;

(3) to work closely with the international community including the United Nations High Commissioner for Refugees to 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

(4) to offer to those refugees who do not want to return a meaningful alternative, including compensation or restitution.

SEC. 104. Sense of Congress on press freedom.

It is the sense of Congress that in order to promote the freedom of the press in Burma—

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

(2) the decision to use a colonial-era law to arrest these reporters underscores the need for serious legal reform, including reform of the Official Secrets Act, 1923 and the Unlawful Association Act, 1908.

SEC. 105. Sense of Congress with respect to imposition of sanctions under the Global Magnitsky Human Rights Accountability Act.

It is the sense of Congress that the President should impose appropriate sanctions under the Global Magnitsky Human Rights Accountablity Act (subtitle F of title XII of Public Law 114–328; 130 Stat. 2533; 22 U.S.C. 2656 note) against officials and other persons in Burma who are responsible for gross violations of internationally recognized human rights or acts of significant corruption.

TITLE IIASSISTANCE AND SANCTIONS WITH RESPECT TO BURMA

SEC. 201. Authorization for humanitarian assistance and reconciliation.

There is authorized to be appropriated $151,600,000 for fiscal year 2019 for humanitarian assistance for Burma, Bangladesh, and the surrounding region, including—

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

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

(3) humanitarian assistance to victims of violence and destruction in Rakhine State.

SEC. 202. Limitation on security assistance and military and security sector cooperation.

(a) Limitation on military and security sector cooperation.—Except as provided in subsection (b), the United States may not provide any security assistance or engage in any military-to-military programs with the military or security forces of Burma, including through training, observation, or participation in regional exercises, until the date on which the Secretary of State, in consultation with the Secretary of Defense, certifies to the appropriate congressional committees that the military and security forces of Burma have demonstrated significant progress in abiding by international human rights standards and are undertaking meaningful and significant security sector reform, including reforms that enhance transparency and accountability, to prevent future abuses and that each of the following criteria have been met:

(1) The Burmese military and security forces adhere to international humanitarian law, demonstrate significant progress in abiding by international standards for human rights, and pledge to stop future human rights abuses.

(2) The Burmese military and security forces support efforts to carry out meaningful and comprehensive investigations of alleged abuses and are taking steps to hold accountable those members of such military and security forces responsible for human rights abuses.

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

(4) The Government of Burma, including the military and security forces, cooperates with the United Nations High Commissioner for Refugees and organizations affiliated with the United Nations to ensure the protection of displaced persons and the safe, voluntary, and dignified return of refugees and internally displaced persons.

(5) The Burmese military and security forces cease their attacks against ethnic minority groups and constructively participate in the conclusion of a credible, nationwide ceasefire agreement, political accommodation, and constitutional change, including the restoration of the citizenship of the Rohingya.

(6) The Government of Burma, including the military and security forces, defines a transparent plan with a binding timeline for professionalizing the military and security forces and includes a process by which the military withdraws from private-sector business enterprises and ceases involvement in the illegal trade in natural resources and narcotics.

(7) The Government of Burma establishes effective civilian control over the finances of its military and security forces, including by ensuring that the military does not have access to off-budget income and that military expenditures are subject to adequate civilian oversight.

(b) Exceptions.—

(1) CERTAIN EXISTING AUTHORITIES.—The Secretary of Defense shall retain the authority to conduct consultations with Burma pursuant to the authorization under section 1253 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (22 U.S.C. 2151 note).

(2) HOSPITALITY.—The Secretary of State and the United States Agency for International Development may provide assistance authorized under part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) to provide hospitality during research, dialogues, meetings, or other activities by the parties attending the Union Peace Conference 21st Century Paneling or related processes seeking inclusive, sustainable reconciliation.

(c) Military reform.—The certification required under subsection (a) shall include a written justification in unclassified form that may contain a classified annex 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 may be construed to authorize the Secretary of Defense to provide 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 annually thereafter, the Secretary of Defense and the Secretary of State shall submit to the appropriate congressional committees a report, in unclassified form with a classified annex, on the strategy and plans for military-to-military engagement between the United States Armed Forces and the military and security forces 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 plans to withdraw the military from owning or controlling private-sector business entities and end 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-to-military engagements between the United States and Burma’s military and security forces, including the military of Burma, the Burma Police Force, and armed ethnic groups.

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

(i) cooperation with civilian authorities to investigate and prosecute cases of serious, credible, or gross human rights abuses;

(ii) steps taken to demonstrate respect for and implementation of 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 cease-fire agreements, allow for safe and voluntary returns of displaced persons to their homes, 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) Regular consultations.—Any new program or activity carried out under this section shall be subject to prior consultation with the appropriate congressional committees.

SEC. 203. Imposition of sanctions with respect to certain foreign persons.

(a) In general.—For the 8-year period beginning on the date that is 270 days after the date of the enactment of this Act, the President shall impose the sanctions described in subsection (b) with respect to each foreign person that the President determines—

(1) is a current or former senior official of the military or security forces of Burma who knowingly—

(A) perpetrated or is responsible for ordering or otherwise directing serious human rights abuses in Burma; or

(B) failed to investigate serious human rights abuses allegedly committed by one or more subordinates of such official, including against the Rohingya community in the state of Rakhine;

(2) is an entity owned or controlled by any person described in paragraph (1); and

(3) has knowingly provided or received significant financial, material, or technological support to or from a foreign person, including the immediate family members of such person, described in paragraph (1) for any of the acts described in subparagraph (A) or (B) of such paragraph.

(b) Sanctions.—The sanctions described in this section are the following:

(1) ASSET BLOCKING.—Notwithstanding the requirements of section 202 of the International Emergency Economic Powers Act (50 U.S.C. 1701), the exercise of all powers granted to the President by such Act to the extent necessary to block and prohibit all transactions in all property and interests in property of a person the President determines meets one or more of the criteria described in subsection (a) if such property and interests in property are in the United States, come within the United States, or are or come within the possession or control of a United States person.

(2) ALIENS INELIGIBLE FOR VISAS, ADMISSION, OR PAROLE.—

(A) VISAS, ADMISSION, OR PAROLE.—An alien who the Secretary of State or the Secretary of Homeland Security (or a designee of one of such Secretaries) knows, or has reason to believe, meets any of the criteria described in subsection (a) is—

(i) inadmissible to the United States;

(ii) ineligible to receive a visa or other documentation to enter the United States; and

(iii) otherwise ineligible to be admitted or paroled into the United States or to receive any other benefit under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(B) CURRENT VISAS REVOKED.—

(i) IN GENERAL.—The issuing consular officer, the Secretary of State, or the Secretary of Homeland Security (or a designee of one of such Secretaries) shall revoke any visa or other entry documentation issued to an alien who meets any of the criteria described in subsection (a) regardless of when issued.

(ii) EFFECT OF REVOCATION.—A revocation under clause (i)—

(I) shall take effect immediately; and

(II) shall automatically cancel any other valid visa or entry documentation that is in the alien’s possession.

(3) EXCEPTION TO COMPLY WITH UNITED NATIONS HEADQUARTERS AGREEMENT.—Sanctions under paragraph (2) shall not apply to an alien if admitting the alien into the United States is necessary to permit the United States to comply with the Agreement regarding the Headquarters of the United Nations, signed at Lake Success June 26, 1947, and entered into force November 21, 1947, between the United Nations and the United States, or other applicable international obligations.

(c) Penalties.—Any 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 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.

(d) Exceptions.—Subsection (b)(2) 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) Implementation.—The President may exercise the authorities provided under section 203 and 205 of the International Emergency Economic Powers Act (50 U.S.C. 1702 and 1704) to carry out this section.

(f) Waiver.—

(1) IN GENERAL.—The President may annually waive the application of sanctions required by subsection (a) with respect to a person if the President—

(A) determines that such waiver is in the national interest of the United States; and

(B) not later than the date on which such waiver will take effect, submits to the congressional committees listed in paragraph (2) a notice of and justification for such waiver.

(2) CONGRESSIONAL COMMITTEES LISTED.—The congressional committees listed in this paragraph are the following:

(A) The Committee on Foreign Affairs, the Committee on Appropriations, and the Committee on Financial Services of the House of Representatives.

(B) The Committee on Foreign Relations, the Committee on Appropriations, and the Committee on Banking, Housing, and Urban Affairs of the Senate.

(g) Definitions.—In this section:

(1) ADMITTED; ALIEN.—The terms “admitted” and “alien” have the meanings given those terms in section 101 of the Immigration and Nationality Act (8 U.S.C. 1001).

(2) FOREIGN PERSON.—The term “foreign person” means a person that is not a United States person.

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

(A) a United States citizen, an alien lawfully admitted for permanent residence to the United States, or any other individual subject to the jurisdiction of 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 entity.

SEC. 204. Forfeiture of property.

(a) Amendment to property subject to forfeiture.—Section 981(a)(1) of title 18, United States Code, is amended by adding at the end the following:

“(J) Any property, real or personal, that is involved in a violation or attempted violation of, or which constitutes or is derived from proceeds traceable to, a prohibition imposed pursuant to section 203 of the Burma Unified through Rigorous Military Accountability Act of 2018”..”.

(b) Amendment to definition of civil forfeiture.—Section 983(i)(2)(D) of title 18, United States Code, is amended—

(1) by striking “, or the” and inserting “, the”; and

(2) by adding at the end before the semicolon the following: “, or section 203 of the Burma United through Rigorous Military Accountability Act of 2018”.

TITLE IIIGOVERNANCE OF THE BURMESE MINING AND GEMSTONE SECTOR

SEC. 301. Sense of Congress on the Burmese mining sector and the importation of Burmese gemstones or minerals.

(a) Findings.—Congress finds the following:

(1) In 2015, the nongovernmental organization Global Witness estimated that the value of total production of jade in Burma in 2014 was $31,000,000,000, almost 48 percent of the official gross domestic product of Burma. As much as 80 percent of that jade sold is smuggled out of Burma.

(2) Burma’s military and associated entities, including companies owned or controlled by Myanmar Economic Corporation and Myanmar Economic Holding Limited, their affiliated companies and companies owned or controlled by current and former senior military officers or their family members, are deeply embedded in the mining sector, including the gemstone industry, and benefit financially from widespread illicit smuggling of jade and rubies from Burma.

(3) Illegal trafficking in precious and semiprecious stones from Burma, including the lucrative trade in high-value jade and rubies, deprives the people of Burma and the civilian government of critical revenue and instead benefits military-linked entities, non-state armed groups, and transnational organized criminal networks.

(4) The Government of Burma has begun to take steps to reform aspects of the mining sector, including governance in the gemstone industry by temporarily suspending the issuance or renewal of jade and gemstone mining permits; commissioning an environmental management plan for some mining areas; and establishing the multi-stakeholder Jade and Gemstone Support Committee under the Ministry of Natural Resources and Environmental Conservation to develop recommendations for a new industry-wide policy and limited gemstone payment disclosures under the Myanmar Extractives Industry transparency Initiative.

(5) The lifting in October 2016 of United States sanctions on the importation of jadeite and rubies from Burma allowed such gemstones to legally enter the United States market, but some retailers have refrained from sourcing gemstones of Burmese origin due to governance and reputational concerns.

(b) Sense of Congress.—It is the sense of Congress that—

(1) the United States should deepen engagement with the Government of Burma with respect to the mining sector and should make available technical, capacity-building and other assistance through the Department of State or the United States Agency for International Development to support the Government of Burma in efforts to reform the gemstone industry; and

(2) companies that seek to import into the United States gemstones or minerals that may be of Burmese origin or articles of jewelry containing such gemstones should—

(A) obtain such materials exclusively from entities that satisfy the transparency criteria described in section 302(b) or from third parties that can credibly demonstrate that they sourced the materials from entities that meet such criteria; and

(B) undertake robust due diligence procedures in line with the Due Diligence Guidance for Responsible Business Conduct and Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas of the Organization for Economic Cooperation and Development.

SEC. 302. Responsibility and transparency in the mining sector.

(a) List of participating entities.—

(1) IN GENERAL.—Not later than 120 days after the date of the enactment of this Act, and not less than annually thereafter until the date described in subsection (e), the Secretary of State shall submit to the appropriate congressional committees a list of the entities described in each of subparagraphs (A) and (B) of paragraph (2) that—

(A) participate in Burma’s mining sector;

(B) meet the criterion described in subsection (b)(1); and

(C) meet or have made significant progress towards meeting the criteria in subsections (b)(2) through (b)(5).

(2) ENTITIES DESCRIBED.—The entities described in this paragraph are the following:

(A) Entities that produce or process precious and semiprecious gemstones.

(B) Entities that sell or export precious and semiprecious gemstones from Burma or articles of jewelry containing such gemstones.

(b) Criteria described.—The criteria described in this subsection are the following with respect to an entity:

(1) The entity publicly discloses beneficial ownership, as such term is defined for purposes of the Myanmar Extractive Industry Transparency Initiative (Myanmar EITI), and the entity is not owned or controlled, either directly or indirectly, by the Burmese military or security forces, any current or former senior Burmese military officer, or any person sanctioned by the United States pursuant to any relevant sanctions authority.

(2) The entity publicly discloses any politically exposed persons as defined by the Extractive Industry Transparency Initiative who are beneficial owners as defined under the Myanmar EITI.

(3) The entity publicly discloses valid authorization, license, or permit to produce, process, sell, or export minerals or gemstones, as applicable.

(4) The entity publicly discloses payments to the Government of Burma, including tax and non-tax, license, or royalty payments, and other payments or contract terms as may be required under Myanmar Extractive Industry Transparency Initiative standards.

(5) The entity undertakes robust due diligence, in line with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, including public reporting.

(c) Publication of list.—The Secretary of State shall publish the list under subsection (a) and shall periodically update such list as appropriate.

(d) Guidance.—The Secretary of State shall issue guidance to relevant companies regarding supply-chain due diligence best practices applicable to importation of gemstones or minerals that may be of Burmese origin or articles of jewelry containing such gemstones to mitigate the potential risks associated with the importation of such items.

(e) Termination.—The requirement under subsection (a) shall terminate on the date on which the President certifies to the appropriate congressional committees that the Government of Burma has taken substantial measures to reform the mining sector in Burma, including the following:

(1) Requiring the mandatory disclosure of payments, permit and license allocations, project revenues, relevant contract terms, and beneficial ownership, including identifying any politically exposed persons who are beneficial owners, consistent with the approach agreed under the Myanmar EITI and with due regard for civil society participation.

(2) Separating the commercial, regulatory, and revenue collection responsibilities within the Myanmar Gems Enterprise and other key state-owned enterprises to remove existing conflicts of interest.

(3) Monitoring and undertaking enforcement actions, as warranted, to ensure that entities fully adhere to environmental and social impact assessment and management standards in accordance with international responsible mining practices, the country’s environmental conservation law and other applicable laws and regulations, and that they uphold occupational health and safety standards and codes of conduct that are aligned with the core labor standards of the International Labour Organisation and domestic law.

(4) Actively seeking a comprehensive peace agreement that addresses the transparent and fair distribution of benefits from natural resources, including local benefit-sharing, taking into consideration proposals on fiscal federalism for new governance arrangements in resource-rich regions.

(5) Implementing on a timely basis policy reforms aligned with the recommendations of the multi-stakeholder Jade and Gemstone Support Committee and reporting regularly on such reforms.

(6) Reforming the process for valuation of gemstones at the mine-site, including developing an independent valuation system to prevent undervaluation and tax evasion.

(7) Requiring companies bidding for jade and ruby permits to be independently audited upon the request of Myanmar Gems Enterprise or the Minister of Natural Resources and Environmental Conservation, and making the results of all such audits public.

(8) Establishing a credible and transparent permitting process that closely scrutinizes applicants, including based on past performance, and prevents unscrupulous entities from gaining authorized access to concessions or the right to trade in minerals or gemstones.

(9) Establishing effective oversight of state-owned enterprises operating in such sector, including through parliamentary oversight or requirements for independent financial auditing.

(f) Authorization.—The Secretary of State is authorized to consult with appropriate officials of the Government of Burma to obtain such private-sector information as may be necessary to carry out this section.

TITLE IVACCOUNTABILITY FOR HUMAN RIGHTS ABUSES AND STRATEGY FOR ECONOMIC GROWTH

SEC. 401. Determination and report on accountability for ethnic cleansing, crimes against humanity, and genocide in Burma.

(a) In general.—Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall submit to the appropriate congressional committees a report that—

(1) describes—

(A) allegations of ethnic cleansing, crimes against humanity, and genocide in Burma; and

(B) potential transitional justice mechanisms in Burma; and

(2) includes a determination whether the events that took place in the state of Rakhine in Burma, starting on August 25, 2017, constitute ethnic cleansing, crimes against humanity, or genocide.

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

(1) a description of—

(A) incidents that may constitute ethnic cleansing, crimes against humanity, or genocide committed by the Burmese military against the Rohingya minority and the identities of any other actors involved in such incidents;

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

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

(D) incidents that may violate the principle of medical neutrality and, to the extent possible, the identities of any 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 sources 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 has already undertaken or is planning to undertake to ensure accountability for ethnic cleansing, crimes against humanity, and genocide perpetrated against the Rohingya by the military and security forces of Burma, the state government of Rakhine, Buddhist militias, and all other armed groups fighting in Rakhine, including programs to—

(A) train civilian 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) promote and prepare for a transitional justice process or processes for the perpetrators of ethnic cleansing, crimes against humanity, and genocide occurring in the State of Rakhine in 2017; and

(C) document, collect, preserve, and protect evidence of ethnic cleansing, crimes against humanity, and genocide in Burma, including by providing support for Burmese, Bangladeshi, foreign, and international nongovernmental organizations, the United Nations Human Rights Council’s investigative team, and other entities engaged in such investigative activities; 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 should support, why such mechanisms should be supported, and what type of support should be offered.

(c) Protection of witnesses and evidence.—The Secretary of State 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.

(d) Authorization To provide technical assistance.—

(1) IN GENERAL.—The Secretary of State, in consultation with the Attorney General and the heads of other appropriate Federal departments and agencies, is authorized to provide assistance to support appropriate entities that are undertaking the efforts described in paragraph (2) with respect to ethnic cleansing, crimes against humanity, and genocide perpetrated by the military and security forces of Burma, the state government of Rakhine, Buddhist militias, and all other armed groups fighting in Rakhine State.

(2) EFFORTS AGAINST HUMAN RIGHTS ABUSES.—The efforts described in this paragraph are the following:

(A) Identifying suspected perpetrators of ethnic cleansing, crimes against humanity, and genocide.

(B) Collecting, documenting, and protecting evidence of such crimes and preserve the chain of custody for such evidence.

(C) Conducting criminal investigations.

(D) Supporting investigations conducted by other countries, as appropriate.

(3) ADDITIONAL SUPPORT.—The Secretary of State, in consultation with the heads of other appropriate Federal departments and agencies and the appropriate congressional committees, and taking into account any relevant findings in the report required by subsection (a), is authorized 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.

SEC. 402. Strategy for promoting economic growth and 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 jointly submit to the appropriate congressional committees a strategy to support inclusive and enduring economic growth and development, in accordance with the priorities of the Government of Burma to improve economic conditions.

(b) Elements.—The strategy required by subsection (a) shall include a plan to promote inclusive and enduring economic growth and development, including the following elements:

(1) A road map for economic reforms that will—

(A) create and enabling environment for economic growth and opportunity;

(B) enhance transparency, accountability and good governance;

(C) diversify control and create competition in key industries and sectors dominated by the current and former military officials, the family members of such officials, and businesspeople connected to the military;

(D) increase transparency disclosure requirements in key sectors to promote responsible investment;

(E) identify needs and opportunities to provide technical assistance to key ministries, institutions, and organizations to enact economic reforms, including revisions to existing policies on public disclosure of beneficial ownership of companies in key sectors that will allow for identification of those seeking or securing access to Burma’s most valuable natural resources; and

(F) promote responsible investment.

(2) A work-plan, developed in collaboration with the Government of Burma and the Myanmar Investment Commission to—

(A) establish a mechanism and enhance the capacity of the Myanmar Investment Commission to identify and exclude investors with a negative track record with respect to corruption or fiscal, social, or environmental harms;

(B) enhance transparency and disclosure through the development and enforcement of robust transparency and disclosure measures under domestic law, including through incorporation of necessary elements of the Organization for Economic Cooperation and Development’s due diligence frameworks into corporate disclosure requirements;

(C) build capacity within civilian government institutions, including to carry out effective oversight over public- and military-owned entities and to appropriately regulate private and public entities with regard to environmental, social, financial, and governance issues;

(D) support reform of the gemstone industry, including through technical, capacity-building, and other assistance, to address serious challenges and help ensure that business activity in this industry benefits the people of Burma;

(E) promote universal access to reliable, affordable, and efficient electricity, including by leveraging United States assistance to support reforms in the electricity sector and electrification projects that increase energy access through partnership with multilateral organizations and the private sector;

(F) improve the government of Burma’s ranking in the World Bank’s “Doing Business” report; and

(G) secure private property rights and land tenure.

(c) Consultation required.—In developing the strategy required by subsection (a), the Secretary of State shall consult with appropriate officials of the Government of Burma.

(d) Report on implementation.—

(1) IN GENERAL.—Not later than 180 days after the date of the submission of the strategy required by subsection (a), the Secretary of State, the Secretary of the Treasury, and the Administrator of the United States Agency for International Development shall jointly submit to the appropriate congressional committees a report in unclassified form, that may contain a classified annex, that describes the extent to which United States assistance and the efforts of the Government of Burma have promoted inclusive and enduring economic development in accordance with such strategy.

(2) ELEMENTS.—The report required by paragraph (1) shall also address the efforts undertaken, progress achieved, and any next steps planned by either the United States or the Government of Burma with respect to—

(A) the elements in section 301(b);

(B) the promotion of accountability and transparency, including through the collection, verification, and publication of beneficial ownership information related to extractive industries; and

(C) the promotion of best practices regarding—

(i) environmental conservation, management, and planning;

(ii) social impact assessments, including social and cultural protection and free, prior, and informed consent and meaningful participation of local populations, particularly minority ethnic nationalities;

(iii) avoidance of displacement of local populations without meaningful consultation and consent, harm mitigation, or compensation; and

(iv) due diligence procedures in accordance with the United Nations Guiding Principles on Business and Human Rights and the Due Diligence Guidance for Responsible Business Conduct and Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas of the Organization for Economic Cooperation and Development.


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