[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3190 Referred in Senate (RFS)]
<DOC>
116th CONGRESS
1st Session
H. R. 3190
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 25, 2019
Received; read twice and referred to the Committee on Foreign Relations
_______________________________________________________________________
AN ACT
To authorize humanitarian assistance and impose sanctions with respect
to human rights abuses 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 2019'' or the ``BURMA
Act of 2019''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Findings.
TITLE I--MATTERS RELATING TO THE CONFLICT IN BURMA
Sec. 101. Statement of policy.
Sec. 102. Sense of Congress with respect to humanitarian assistance,
freedom of movement, and rights of
returnees.
Sec. 103. Sense of Congress on freedoms of press and association.
Sec. 104. Imposition of sanctions for the violation of human rights.
TITLE II--ASSISTANCE AND SANCTIONS WITH RESPECT TO BURMA
Sec. 201. Authorization to provide humanitarian assistance.
Sec. 202. Imposition of sanctions with respect to human rights abuses
in Burma.
TITLE III--GOVERNANCE OF THE BURMESE MINING AND GEMSTONE SECTORS
Sec. 301. Sense of Congress on the mining sector of Burma.
Sec. 302. Guidance relating to responsibility and transparency in the
mining sector of Burma.
TITLE IV--ACCOUNTABILITY FOR HUMAN RIGHTS ABUSES AND STRATEGY FOR
ECONOMIC GROWTH
Sec. 401. Report on accountability for war crimes, crimes against
humanity, and genocide in Burma.
Sec. 402. Authorization to provide technical assistance for efforts
against human rights abuses.
Sec. 403. Strategy for promoting economic development in Burma.
TITLE V--DETERMINATION OF BUDGETARY EFFECTS
Sec. 501. Determination of budgetary effects.
SEC. 2. DEFINITIONS.
In this Act:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Foreign Affairs, the Committee
on Financial Services, and the Committee on Armed
Services of the House of Representatives; and
(B) the Committee on Foreign Relations, the
Committee on Banking, and the Committee on Armed
Services of the Senate.
(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) extermination;
(E) enslavement;
(F) rape, sexual slavery, or any other form of
sexual violence of comparable severity;
(G) 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; and
(H) enforced disappearance of persons.
(3) Genocide.--The term ``genocide'' means any offense
described in section 1091(a) of title 18, United States Code.
(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 to redress legacies of atrocities and 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. 3. 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 2019, in response to the
violence perpetrated by the Burmese military and security
forces, the United Nations estimates more than 740,000
Rohingya, approximately 75 percent of whom are women and
children, have fled to Bangladesh, fearing loss of life,
livelihoods, and shelter. Rohingya have continued to flee Burma
in significant numbers, including in 2019. According to the
United Nations High Commissioner for Refugees, more than 1,400
Rohingya have arrived in Bangladesh since January 1, 2019.
(3) Even after the Burmese military scaled back attacks
against Rohingya in late 2017, security forces continued to
impose restrictions on the basic freedoms of Rohingya in
Rakhine State, including on freedom of movement. In November
2017, Amnesty International determined that Rohingya remaining
in Rakhine are ``trapped in a vicious system of state-
sponsored, institutionalized discrimination that amounts to
apartheid''.
(4) Despite the steps taken toward democracy in Burma,
there exists limited control by the civilian government over
civilian agencies as well as military and security forces that
carried out the violence in Rakhine State. The military and
security forces continue to engage in grave human rights abuses
against ethnic minorities throughout in the country.
(5) 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 hold perpetrators accountable.
(6) 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.
(7) Due to restrictions enforced by the Rakhine State
government and the national military and security forces, there
has been little progress made since that time and limited
ability for the international community to support, verify, or
evaluate the Government of Burma's efforts. There are also
credible reports of Burmese military and security forces
bulldozing numerous villages where violence occurred, thus
destroying physical evidence, and in some cases, constructing
new military installations on top of the bulldozed villages.
(8) On November 22, 2017, former Secretary of State Rex
Tillerson stated that ``After a careful and thorough 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''. Despite
repeated requests from Members of Congress, as well as the
result of its own investigation (the executive summary of which
was released on September 17, 2018), the Department has
declined to make a determination if the atrocities in Rakhine
State constitute genocide or crimes against humanity.
(9) 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.
(10) Another barrier to the voluntary, safe, dignified and
sustainable return of the Rohingya to Rakhine State is the
refusal of the Government of Burma to reinstate the full
citizenship of the Rohingya, as well as the Government's
unwillingness to consider the repeal of or amendments to the
Citizenship Act of 1982 that stripped the Rohingya of their
full citizenship.
(11) During 2018, the ongoing conflict in Burma escalated
in Kachin and Shan States, reignited in Karen (Kayin) State,
and spread into Chin and Rakhine States. Along with the
increase in fighting between Burma's security forces and
several ethnic armed organizations, there was a rise in
allegations of human rights abuses perpetrated by Burmese
security forces in these conflict areas.
(12) In April 2018, thousands of civilians fled fighting
between the military and ethnic armed groups in Kachin State,
prompting peaceful demonstrations. In December 2018, three
prominent activist in Kachin State, Lum Zawng, Nang Pu and Zau
Jet were convicted and sentenced to 6 months imprisonment for
defaming the military.
(13) On June 6, 2018, the United Nations Refugee Agency and
the United Nations Development Programme signed a tripartite
Memorandum of Understanding with Burma. The Office of the
United Nations High Commissioner for Refugees and various
international human rights and international relief agencies
agreed that conditions in Rakhine State are not sufficient for
the voluntary, safe, dignified, and sustainable return of the
Rohingya.
(14) The United Nations Independent International Fact-
Finding Mission on Myanmar, the Department of State, and more
than a dozen 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 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.
(15) In its report of September 17, 2018, the United
Nations Independent International Fact-Finding Mission on
Myanmar determined that there was sufficient evidence of
``genocidal intent'' in the attacks against the Rohingya in
Rakhine State, and probable ``crimes against humanity'' and
``war crimes'' in Burmese security forces assaults on ethnic
minorities in Kachin and Shan States. The Mission recommended
that the United Nations Security Council ``should ensure
accountability for crimes under international law committed in
Myanmar, preferably by referring the situation to the
International Criminal Court or alternatively by creating an ad
hoc international criminal tribunal''. The Mission also
recommended the imposition of targeted economic sanctions,
including an arms embargo on Burma.
(16) On September 3, 2018, Wa Lone and Kyaw Soe Oo were
convicted and sentenced to seven years in prison and released
as an act of Presidential amnesty on May 6, 2019, after over
500 days in jail. Time Magazine included pictures the two
reporters on the cover of its ``Person of the Year'' issue on
December 10, 2018, as two of the ``Guardians and the War on
Truth''.
(17) According to the free-speech organization Athan, 44
journalists and 142 activists have faced trial since 2016
charged with colonial-era laws used to stifle dissent, while
tightening restrictions on activist groups.
(18) On September 28, 2018, the United Nations Human Rights
Council passed a resolution that calls for an independent
mechanism to collect and analyze evidence in regard to the
serious international crimes committed in Burma against
Rohingya Muslims and other minorities since 2011. The
resolution requests that the independent mechanism ``prepare
files in order to facilitate and expedite fair and independent
criminal proceedings, in accordance with international law
standards, in national, regional or international courts or
tribunals that have or may in the future have jurisdiction over
these crimes''.
(19) On November 15, 2018, the Government of Bangladesh and
the Government of Burma abandoned plans to return more than
2,000 Rohingya to Rakhine State after it was determined that
none were willing to voluntarily return given the current
conditions in Rakhine State, as well as the Government of
Burma's failure to ensure the returnees' safety, dignity, or
sustainability of their livelihoods.
(20) A December 2018 report by the Public Law Interest &
Policy group noted that ``the destruction of their villages,
crops, and virtually all infrastructure clearly points to a
strategy of ensuring the Rohingya's permanent removal. The mass
killings and accompanying brutality, including against
children, women, pregnant women, the elderly, and those
crossing the border to Bangladesh further suggest, however,
that, at least in the minds of some perpetrators, the goal was
not only to expel, but also to exterminate the Rohingya * * *''
and that ``there are reasonable grounds to believe that crimes
against humanity, genocide, and war crimes have been committed
against the Rohingya in Myanmar's northern Rakhine State''.
(21) Despite substantial evidence of widespread and
systematic atrocities committed by Burmese security forces in
Rakhine State, State Counselor Aung San Suu Kyi and Burma's
Commander-in-Chief Senior General Min Aung Hlaing continue to
maintain that no such widespread and systematic atrocities
occurred.
(22) On December 13, 2018, the United States House of
Representatives passed House Resolution 1091 (115th Congress)
which expressed the sense of the House that ``the atrocities
committed against the Rohingya by the Burmese military and
security forces since August 2017 constitute crimes against
humanity and genocide'' and called upon the Secretary of State
to review the available evidence and make a similar
determination.
(23) On December 19, 2018, the United Nations Humanitarian
Coordinator requested $202,000,000 for the 2019 Humanitarian
Response Plan for Burma.
(24) The 2019 Joint Response Plan for the Rohingya
Humanitarian Crisis asks the international community to provide
$20,500,000 in assistance to meet needs in Bangladesh.
(25) On May 14, 2019, the United Nations Fact-Finding
Mission on Myanmar urged all countries to cut off economic ties
to Burma's military-owned businesses, stating ``* * * due to
the gravity of past and continuing violations, attention must
be given to the political, economic and financial ties of the
Myanmar military * * * so we can cut off the money supply as a
means of increasing pressure and reducing the violence.''.
TITLE I--MATTERS RELATING TO THE CONFLICT IN BURMA
SEC. 101. STATEMENT OF POLICY.
It is the policy of the United States as follows:
(1) To support a complete transition to democracy and
genuine national reconciliation in Burma, including
accountability for the atrocities committed by the Burmese
military against the Rohingya population and other ethnic
minorities throughout the country.
(2) To pursue a United States 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.
(3) To ensure that the guiding principles of such a
strategy include--
(A) supporting legal reforms, removing remaining
restrictions on civil and political rights, and
ensuring 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 free,
fair, and democratic elections in which all people of
Burma can vote;
(C) promoting national reconciliation and the
conclusion of a nationwide cease-fire agreement,
including the development of a political system that is
inclusive of ethnic Rohingya, Shan, Kachin, Chin,
Karen, and other ethnic groups, measures to address
natural resource governance, revenue-sharing, land
rights, and constitutional change enabling inclusive
peace;
(D) ensuring accountability through independent
international investigations of genocide, war crimes,
and crimes against humanity, including sexual and
gender-based violence, perpetrated against the Rohingya
and other ethnic minorities by the military and
security forces of Burma, violent extremist groups and
other combatants involved in the conflict;
(E) strengthening Burma's civilian governmental
institutions, including support for greater
transparency and accountability;
(F) encouraging the establishment of professional
military, security, and police forces that operate
under civilian control and are held accountable for
human rights abuses, corruption, or other abuses of
power;
(G) combating 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) encouraging the provision of full citizenship
for the Rohingya population in Burma, as well as
durable solutions 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) promoting broad-based, inclusive economic
development and fostering healthy and resilient
communities.
SEC. 102. 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 funding, from
both public and private sources, is 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, including
the Burmese military and security forces, to ensure full and secure
humanitarian access to the State of Rakhine and to cooperate with the
ongoing international mechanism set up by the United Nations Human
Rights Council in September 2018 and funded by the United Nations
General Assembly to gather evidence and other information pertaining to
allegations of crimes against humanity and genocide committed in Burma.
(c) Rights of Refugees, Internally Displaced Persons, and
Returnees.--
(1) Burma.--Congress calls on the Government of Burma to--
(A) ensure that Rohinyga in Burma have freedom of
movement;
(B) create conditions for return of those displaced
from their homes and implement the recommendations of
the Advisory Commission on Rakhine State, which
includes full and equal citizenship;
(C) work closely with the international community,
including the United Nations High Commissioner for
Refugees, to ensure the dignified, safe, sustainable
and voluntary return of all those displaced from their
homes, especially from Rakhine State, without an unduly
high burden of proof; and
(D) offer compensation or restitution to those
refugees who do not want to return to their homes.
(2) Bangladesh.--Congress calls on the Government of
Bangladesh to--
(A) ensure that the rights of refugees are
protected, including through allowing them to build
more permanent shelters, and ensuring equal access to
healthcare, basic services, education and work;
(B) work closely with the international community,
including the United Nations High Commissioner for
Refugees, to ensure that any repatriation or
resettlement of refugees be dignified, safe,
sustainable and voluntary; and
(C) ensure that any relocation or local integration
of refugees in Bangladesh be consistent with
international humanitarian principles, including
freedom of movement, and implemented only through
voluntary, fully informed consent.
SEC. 103. SENSE OF CONGRESS ON FREEDOMS OF PRESS AND ASSOCIATION.
It is the sense of Congress that, in order to promote the freedom
of the press and speech, the Government of Burma should undertake
serious legal reforms including reform of the Official Secrets Act,
1923, the Unlawful Association Act, 1908, and the Penal Code.
SEC. 104. IMPOSITION OF SANCTIONS FOR THE VIOLATION OF HUMAN RIGHTS.
The President shall impose sanctions--
(1) against officials in Burma, including Commander in
Chief of the Armed Forces of Myanmar Min Aung Hlaing, under the
Global Magnitsky Human Rights Accountability Act (22 U.S.C.
2656 note); and
(2) against military-owned enterprises, including the
Myanmar Economic Corporation and Union of Myanmar Economic
Holding, under the Burmese Freedom and Democracy Act (50 U.S.C.
1701 note), the Tom Lantos Block Burmese JADE (Junta's Anti-
Democratic Efforts) Act of 2008 (50 U.S.C. 1701 note), and
other relevant statutory authorities.
TITLE II--ASSISTANCE AND SANCTIONS WITH RESPECT TO BURMA
SEC. 201. AUTHORIZATION TO PROVIDE HUMANITARIAN ASSISTANCE.
There is authorized to be appropriated $220,500,000 for fiscal year
2020 to provide humanitarian assistance for Burma, Bangladesh, and the
surrounding region, including for the following purposes:
(1) Assisting the victims of the Burmese military's crimes
against humanity targeting Rohingya and other ethnic minorities
in Rakhine, Kachin, and Shan States, including those displaced
in Burma, Bangladesh, Thailand, and the surrounding region.
(2) Supporting voluntary resettlement or repatriation of
such displaced persons in Burma, upon the conclusion of genuine
agreements developed and negotiated with the involvement and
consultation of such displaced persons.
(3) Assistance to promote ethnic and religious tolerance,
combat gender-based violence, and support victims of violence
and destruction in Rakhine, Kachin, and Shan States.
(4) Supporting programs to investigate and document
allegations of war crimes, crimes against humanity, and
genocide committed in Burma, including gender-based violence.
(5) Supporting access to education for children currently
living in refugee camps in the surrounding region, and access
to higher education in Bangladesh.
(6) Assisting minority ethnic groups and civil society in
Burma to help sustain cease-fire agreements and further
prospects for reconciliation and sustainable peace.
(7) Promoting ethnic minority inclusion and participation
in Burma's political processes.
SEC. 202. IMPOSITION OF SANCTIONS WITH RESPECT TO HUMAN RIGHTS ABUSES
IN BURMA.
(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, based on credible
evidence--
(1) is a current or former senior official of the military
or security forces of Burma who--
(A) knowingly perpetrated, ordered, or otherwise
directed serious human rights abuses in Burma; or
(B) has taken significant steps to impede
investigations or prosecutions of alleged serious human
rights abuses, including against the Rohingya community
in Rakhine State;
(2) is an entity owned or controlled by any person
described in paragraph (1);
(3) is an entity, such as the Myanmar Economic Cooperation
or the Myanmar Economic Holding Corporation, that is owned or
controlled, directly or indirectly, by the military or security
forces of Burma, including through collective or cooperative
structures, from which one or more persons described in
paragraph (1) derive significant revenue or financial benefit;
or
(4) has knowingly--
(A) provided significant financial, material, or
technological support--
(i) to a foreign person described in
paragraph (1) in furtherance of any of the acts
described in subparagraph (A) or (B) of such
paragraph; or
(ii) to any entity owned or controlled by
such person or an immediate family member of
such person; or
(B) received significant financial, material, or
technological support from a foreign person described
in paragraph (1) or an entity owned or controlled by
such person or an immediate family member of such
person.
(b) Sanctions Described; Exceptions.--
(1) Sanctions.--The sanctions described in this subsection
are the following:
(A) 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 foreign 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.
(B) Aliens inadmissible for visas, admission, or
parole.--
(i) Visas, admission, or parole.--A foreign
person 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.).
(ii) Current visas revoked.--A foreign
person described in subsection (a) is subject
to the following:
(I) Revocation of any visa or other
entry documentation regardless of when
the visa or other entry documentation
is or was issued.
(II) A revocation under subclause
(I) shall--
(aa) take effect
immediately; and
(bb) automatically cancel
any other valid visa or entry
documentation that is in the
foreign person's possession.
(2) Exception to comply with united nations headquarters
agreement.--Sanctions under paragraph (1)(B) shall not apply
with respect to an alien if admitting or paroling 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) 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
and shall issue such regulations, licenses, and orders as are necessary
to carry out this section.
(e) Exception Relating to the Importation of Goods.--
(1) In general.--The authorities and requirements to impose
sanctions authorized under this Act shall not include the
authority or requirement to impose sanctions on the importation
of goods.
(2) Good defined.--In this subsection, the term ``good''
means any article, natural or man-made substance, material,
supply or manufactured product, including inspection and test
equipment, and excluding technical data.
(f) Waiver.--The President may annually waive the application of
sanctions imposed on a foreign person pursuant to subsection (a) if the
President--
(1) determines that a waiver with respect to such foreign
person is in the national interest of the United States; and
(2) not later than the date on which such waiver will take
effect, submits to the following committees notice of and
justification for such waiver:
(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.
TITLE III--GOVERNANCE OF THE BURMESE MINING AND GEMSTONE SECTORS
SEC. 301. SENSE OF CONGRESS ON THE MINING SECTOR OF BURMA.
(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
linked to the mining sector, including the gemstone industry,
and benefit financially from widespread illegal smuggling of
jade and rubies from Burma.
(3) Illegal trafficking in precious and semiprecious stones
from Burma, including the 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) In 2016, the Government of Burma began to take steps to
reform aspects of the mining sector, including--
(A) improving governance in the gemstone industry,
by temporarily suspending the issuance or renewal of
jade and gemstone mining permits;
(B) commissioning an environmental management plan
for some mining areas; and
(C) 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) In January 2019, the Government of Burma adopted a new
Gemstone Law that does not adequately address corruption and
tax avoidance, conflicts of interest, or the factors fueling
conflict in Kachin State and other gemstone mining areas.
(6) The lifting in October 2016 of United States sanctions
on the importation of jade and 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) notwithstanding Burma's ``Trafficking in Persons''
ranking, the President should continue to provide assistance to
Burma, pursuant to the waiver authority under section 110(d)(4)
of the Trafficking Victims Protection Act of 2000 (22 U.S.C.
7107(d)(4)), in order to re-engage 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 to 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 section 302(b)(2) or from third parties that
can 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'' promulgated by the
Organization for Economic Cooperation and Development.
SEC. 302. GUIDANCE RELATING TO RESPONSIBILITY AND TRANSPARENCY IN THE
MINING SECTOR OF BURMA.
(a) List of Participating White-List Entities.--Not later than 120
days after the date of the enactment of this Act, and annually
thereafter until the date described in subsection (e), the Secretary of
State shall submit to the appropriate congressional committees, and
publish on a publicly available website, a list of each entity
described in subsection (b)(1) that--
(1) participates in Burma's mining sector;
(2) publicly discloses beneficial ownership, as such term
is defined for purposes of the Myanmar Extractive Industry
Transparency Initiative (``Myanmar EITI'');
(3) 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; and
(4) is making significant progress toward meeting the
criteria described in subsection (b)(2).
(b) Entities and Criteria Described.--
(1) Entities described.--The entities described in this
subsection 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.
(2) Criteria described.--The criteria described in this
subsection are the following:
(A) The entity publicly discloses any politically
exposed persons, officers, directors or beneficial
owners, as defined under the Myanmar EITI.
(B) The entity publicly discloses valid
authorization, license, or permit to produce, process,
sell, or export minerals or gemstones, as applicable.
(C) 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 EITI
standards.
(D) The entity undertakes 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) Periodic Updating.--The Secretary shall periodically update the
publicly available version of the list described in subsection (a) as
appropriate.
(d) Guidance and White-List Entities.--The Secretary shall issue
guidance for entities in the United States private sector with respect
to the best practices for supply-chain due diligence that are
applicable to importation of gemstones or minerals that may be of
Burmese origin or articles of jewelry containing such gemstones,
including with respect to transactions with entities approved for
inclusion in the list published pursuant subsection (a), in order to
mitigate potential risks and legal liabilities associated with the
importation of such items.
(e) Termination.--The date described in this section is 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) Require the mandatory disclosure of payments, permit
and license allocations, project revenues, contracts, and
beneficial ownership, including the identification 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) Separate 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) Monitor and undertake enforcement actions, as
warranted, to ensure that entities--
(A) 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
(B) uphold occupational health and safety standards
and codes of conduct that are aligned with the core
labor standards of the International Labour
Organisation and with domestic law.
(4) Address the transparent and fair distribution of
benefits from natural resources, including through local
benefit-sharing.
(5) Reform the process for valuation of gemstones at the
mine-site, including developing an independent valuation system
to prevent undervaluation and tax evasion.
(6) Require companies bidding for jade and ruby mining,
finishing, or export permits to be independently audited upon
the request of the Government of Burma and making the results
of all such audits public.
(7) Establish credible and transparent procedures for
permit allocations that are independent from external
influence, including scrutiny of applicants that prevents
unscrupulous entities from gaining access to concessions or the
right to trade in minerals or gemstones.
(8) Establish effective oversight of state-owned
enterprises operating in such sector, including through
parliamentary oversight or requirements for independent
financial auditing.
TITLE IV--ACCOUNTABILITY FOR HUMAN RIGHTS ABUSES AND STRATEGY FOR
ECONOMIC GROWTH
SEC. 401. REPORT ON ACCOUNTABILITY FOR WAR CRIMES, 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 that--
(1) summarizes credible reports of serious human rights
violations, including war crimes, committed against the
Rohingya or other ethnic minorities in Burma between 2012 and
the date of the submission of the report;
(2) describes any potential transitional justice mechanisms
in Burma;
(3) provides an analysis of whether the serious human
rights violations summarized pursuant to paragraph (1) amount
to war crimes, crimes against humanity, or genocide; and
(4) includes a determination of the Secretary whether--
(A) the events that took place in the state of
Rakhine in Burma, starting on August 25, 2017,
constitute war crimes, crimes against humanity, or
genocide; or
(B) the situation faced by the Rohingya in Rakhine
State, between 2012 and the date of the submission of
the report, amounts to or has amounted to the crime of
apartheid.
(b) Elements.--The report required by subsection (a) shall also
include each of the following:
(1) A description of--
(A) each incident for which there is credible
evidence that the incident may constitute war crimes,
crimes against humanity, or genocide committed by the
Burmese military or security forces against the
Rohingya and other ethnic minorities, including the
identities of any other actors involved in such
incident;
(B) the role of the civilian government in the
commission of any such incidents;
(C) each incident for which there is credible
evidence that the incident may constitute war crime,
crimes against humanity, or genocide committed by
violent extremist groups in Burma;
(D) each attack on health workers, health
facilities, health transport, or patients and, to the
extent possible, the identities of any individuals who
engaged in or organized such incidents in Burma; and
(E) to the extent possible, a description of the
conventional and unconventional weapons used for any
such crimes and the sources of such weapons.
(2) A description and assessment, in consultation with the
Administrator of the United States Agency for International
Development, the Attorney General, and other heads of any other
appropriate Federal departments or agencies, of the
effectiveness of any programs that the United States has
already undertaken to ensure accountability for war crimes,
crimes against humanity, and genocide perpetrated against the
Rohingya by the military and security forces of Burma, the
Rakhine State government, pro-government militias, and all
other armed groups operating 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, identify, and locate
alleged perpetrators of war crimes, crimes against
humanity, or genocide in Burma;
(B) promote and prepare for a transitional justice
process or processes for the perpetrators of war
crimes, crimes against humanity, and genocide occurring
in the State of Rakhine in 2017; and
(C) document, collect, preserve, and protect
evidence of war crimes, 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.
(3) A detailed study of the feasibility and desirability of
potential transitional justice mechanisms for Burma, such as an
international tribunal, a hybrid tribunal, or other
international options, that includes--
(A) a discussion of the use of universal
jurisdiction or of legal cases brought against the
country of Burma by other sovereign countries at the
International Court of Justice to address war crimes,
crimes against humanity, and genocide perpetrated in
Burma;
(B) 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; and
(C) close consultation regarding transitional
justice mechanisms with Rohingya representatives and
those of other ethnic minorities who have suffered
grave human rights abuses.
(c) Protection of Witnesses and Evidence.--The Secretary of State
shall ensure that the identification of witnesses and physical evidence
for purposes of the report required by subsection (a) are not publicly
disclosed in a manner that might place such persons at risk of harm or
encourage the destruction of such evidence by the military or
Government of Burma.
(d) Crime of Apartheid.--In this section, the term ``crime of
apartheid'' means inhumane acts that--
(1) are of a character similar to the acts referred to in
subparagraphs (A) through (H) of section 2(2);
(2) are committed in the context of an institutionalized
regime of systematic oppression and domination by one racial
group over any other racial group; and
(3) are committed with the intention of maintaining such
regime.
SEC. 402. AUTHORIZATION TO PROVIDE TECHNICAL ASSISTANCE FOR EFFORTS
AGAINST HUMAN RIGHTS ABUSES.
(a) In General.--The Secretary of State is authorized to provide
assistance to support appropriate civilian or international entities
that are undertaking the efforts described in subsection (b) with
respect to war crimes, crimes against humanity, and genocide
perpetrated by the military and security forces of Burma, the Rakhine
State government, pro-government militias, or any other armed groups
fighting in Rakhine State.
(b) Efforts Against Human Rights Abuses.--The efforts described in
this subsection are the following:
(1) Identifying suspected perpetrators of war crimes,
crimes against humanity, and genocide.
(2) Collecting, documenting, and protecting evidence of
such crimes and preserve the chain of custody for such
evidence.
(3) Conducting criminal investigations.
(4) Supporting investigations conducted by other countries,
as appropriate.
(c) Authorization for Transitional Justice Mechanisms.--The
Secretary of State, taking into account any relevant findings in the
report required by section 401(a), is authorized to provide support for
the creation and operation of transitional justice mechanisms,
including a potential hybrid tribunal, to prosecute individuals
suspected of committing war crimes, crimes against humanity, or
genocide in Burma.
SEC. 403. STRATEGY FOR PROMOTING ECONOMIC DEVELOPMENT IN BURMA.
(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 sustainable, inclusive
and broad-based economic development in Burma, in accordance with the
priorities of disadvantaged communities in Burma and in consultation
with relevant civil society and local stakeholders, to improve economic
conditions and government transparency.
(b) Elements.--The strategy required by subsection (a) to promote
sustainable, inclusive and broad-based economic development shall
include a plan with each of the following elements:
(1) Measures to diversify control over and access to
participation in key industries and sectors, including efforts
to remove barriers and increase competition, access, and
opportunity in sectors dominated by officials of the Burmese
military, former military officials, and their families, and
businesspeople connected to the military of Burma, with the
goal of eliminating the role of the military in the economy of
Burma.
(2) Measures to increase transparency disclosure
requirements in key sectors of the economy of Burma, to promote
responsible investment, including through--
(A) efforts to provide technical support to develop
and implement policy reforms related to public
disclosure of the beneficial owners of entities in key
sectors identified by the Government of Burma,
specifically by--
(i) working with the Government of Burma to
require the disclosure of the ultimate
beneficial ownership of entities in the mining
industry and the publication of project
revenues, payments, and contract terms relating
to that industry; and
(ii) ensuring that reforms complement the
disclosures required to be put in place in
Burma as a result of its participation in the
Extractives Industry Transparency Initiative;
and
(B) efforts to 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.
(3) Measures to create an enabling environment for economic
growth and opportunity for all ethnic groups residing in Burma,
including through addressing issues related to land tenure.
(4) An identification of 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.
(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, ethnic groups and civil society
leaders in Burma.
(d) Report on Implementation.--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--
(1) 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;
and
(2) 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 401(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; and
(iii) avoidance of displacement of local
populations without meaningful consultation and
consent, harm mitigation, and compensation.
TITLE V--DETERMINATION OF BUDGETARY EFFECTS
SEC. 501. DETERMINATION OF BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of complying
with the Statutory Pay-As-You-Go Act of 2010, shall be determined by
reference to the latest statement titled ``Budgetary Effects of PAYGO
Legislation'' for this Act, submitted for printing in the Congressional
Record by the Chairman of the Committee on the Budget of the House of
Representatives, provided that such statement has been submitted prior
to the vote on passage.
Passed the House of Representatives September 24, 2019.
Attest:
CHERYL L. JOHNSON,
Clerk.
Burma Unified through Rigorous Military Accountability Act of 2019
#3190 | HR Congress #116
Policy Area: International Affairs
Subjects: AsiaAssault and harassment offensesBangladeshBurmaBusiness ethicsChild safety and welfareConflicts and warsCongressional oversightCrime victimsCrimes against womenCriminal investigation, prosecution, interrogationDiplomacy, foreign officials, Americans abroadEconomic developmentElectric power generation and transmissionEnergy efficiency and conservationEnergy storage, supplies, demandEvidence and witnessesForeign aid and international reliefForeign and international corporations
Last Action: Received in the Senate and Read twice and referred to the Committee on Foreign Relations. (9/25/2019)
Bill Text Source: Congress.gov
Summary and Impacts
Original Text