There has long been a lack of oversight into how U.S.-origin defense articles are used by foreign security forces. In particular there is a paucity of investigations into allegations of items being used in ways that result in civilian harm. A 2022 U.S. Government Accountability Office (GAO) report on Saudi Arabia’s use of U.S.-origin items in air to ground operations in Yemen brought the issue to the fore. Among other things, the GAO report found that the U.S. could not provide evidence that it had investigated allegations that U.S.-origin items had caused civilian harm in those operations. The report recommended that the State Department, in cooperation with the Defense Department (DoD), develop guidance for looking into reports of civilian harm caused by U.S. arms in the Saudi-Yemen conflict.
To its credit, the State Department went beyond the GAO recommendation. In August 2023, the Department launched the Civilian Harm Incident Response Guidance (CHIRG) process, a worldwide mechanism designed to assess reports of U.S.-origin items being used in ways that result in civilian harm.
Less than two months later, Israel’s response to Hamas’s October 7 terrorist attack resulted in a flood of allegations of civilian casualties caused by U.S.-origin arms — and the new CHIRG framework was thrust into the spotlight.
The CHIRG process is a welcome step that fills a crucial gap. However, there is a glaring absence of public information on the CHIRG, its processes, its standards, and its work. There appear to be few resources dedicated to its implementation in Washington or in the field. Congress should move to enshrine this process in law, provide funding for it, and require reports on its activities.
Filling a Crucial Gap in End-Use Monitoring
The CHIRG fills a crucial gap in oversight of U.S.-origin defense items by foreign security forces. The Arms Export Control Act sets forth what it calls “end-use monitoring (EUM)” of U.S.-origin defense items, implemented by the Golden Sentry program for arms sold via Foreign Military Sales (FMS) governed by the ITAR, and the Blue Lantern program for arms sold via Direct Commercial Sales (DCS) governed by the CCL. However, both programs amount chiefly to monitoring of warehouses, inventories, and records — but not the actual use of items by foreign security forces.
The CHIRG process assesses actual use. The process includes officials from multiple State Department bureaus (including Democracy, Human Rights and Labor (DRL), where I worked for 10 years, Political-Military Affairs (PM), the Office of the Legal Adviser (L), the Bureau of Intelligence and Research (INR), and regional bureaus). When officials review a report, the first task is to determine basic facts — whether there was an incident of civilian harm, and whether U.S.-origin items were used in it. If the answers to both questions are “yes,” then the CHIRG determines whether the use constituted a violation of international humanitarian law, or human rights standards. If the answer to any of those questions is “yes,” then the CHIRG makes a recommendation to Department leaders about what action to take. Recommended actions can include, among others, formal demarches to governments, additional training or education for partner security forces, or suspension or termination of weapons transfers.
Previous State Department consideration of, and decisions on, reports of misuse of U.S.-origin items occurred without structure and did not necessarily leave a formal record. The CHIRG process finally provides a formal structure and a systematic record.
The CHIRG also reinforces a valuable provision in the current Conventional Arms Transfer (CAT) Policy, which requires taking into account a foreign government’s past violations of international humanitarian law and human rights in decisions (including suspension or termination) on future transfers. By comparison, the previous administration’s CAT Policy made no mention of past violations as a basis for decisions on transfers.
No Formal Avenue for Reports
There is currently no formal avenue for submission of reports of U.S.-origin items being used in civilian harm incidents to the CHIRG. Instead, the current system appears to be ad hoc: reports can be submitted to the CHIRG from anyone in the State Department, and civil society organizations can pass reports to any contacts they have with the Department in Washington or at U.S. embassies. However, there is no established avenue for the public and for those without contacts in there State Department or embassies —notably, local, on-the-ground, NGOs — to submit reports.
The State Department should establish an avenue for the public – most notably including civil society organizations in conflict-affected areas – and publish it, as it has done for Leahy law-related reports with the Human Rights Reporting Gateway. This avenue should be published not just on the Department website, but also, crucially, on embassy websites. This would be especially important for local organizations and publics, since they are the first on the scene, talking to survivors and eyewitnesses, taking videos and photographs, and gathering weapons fragments. Locals in conflict zones face severe obstacles in traveling and gaining access to U.S. embassies; they need an easy-to-find remote reporting option.
A Glaring Absence of Public Information
For such an important, high-profile process, there is a glaring absence of public information. To date, the State Department has not published a single document about the CHIRG, although the State/DoD May 10 report to Congress on National Security Memorandum 20 (NSM-20) made general reference to it.
There is no CHIRG fact sheet, such as the State Department fact sheet for end-use monitoring, or its fact sheet for Leahy vetting. Congress, media, civil society organizations, and the public are completely in the dark about the CHIRG process and standards, and they deserve a transparent and accountable process.
Among other things, a fact sheet ought to include:
- The details that reports to the CHIRG from outside sources, including from civil society, should include;
- Whether personnel working on the CHIRG also proactively seek external reports;
- The process by which the CHIRG evaluates reports;
- The standard of proof the CHIRG uses to determine whether reports establish that there has been civilian harm caused by a U.S.-origin item;
- The factors the CHIRG considers, and the process used, to decide what action to take when reports establish harm caused by a U.S.-origin item;
- How the CHIRG follows up with those who have submitted reports;
- Key definitions, including “civilian harm” and a list of which U.S.-origin items are covered.
To date, there has also been no public information on CHIRG results. The lack of information leaves legitimate questions about whether there have been any results. Department spokespersons have given ad hoc information, such as the May 10 NSM-20 report’s information that there were 85 allegations of civilian harm by U.S.-origin items in Israeli operations, and that 40 percent of them were “closed.” The report did not elaborate on any details or provide information about whether the U.S. government took any responsive or remedial action.
There should be regular, public reports to Congress and the public on the number of pending cases, cases closed with and without action, and on actions taken in any cases. The reports should categorize cases by country, or in the alternative, by geographic region, and by the types of items reviewed, accompanied by a narrative summary providing an overall picture of patterns of misuse by country or region, and by items.
The Need for Dedicated Resources
The CHIRG needs dedicated resources. There is no public information on who carries out the work of the CHIRG, but it is likely a small team within DRL. Officials in other bureaus likely work on the CHIRG simply in addition to existing duties, without providing dedicated personnel. Nor is there any information that the intelligence community outside INR, which has the capability to provide crucial forensic or other relevant information, has dedicated any resources to the CHIRG process.
Abroad, U.S. embassies need to have dedicated personnel reporting on and evaluating allegations, and there is likewise no indication that such personnel are in place. By default, the task likely will fall to overworked (and very junior) human rights officers or to existing political-military officers. There is likewise no indication that DoD offices at embassies, which have the best access to partner militaries, have ramped up personnel to work on the issue. Again, the job will likely go by default to already-overworked DoD Security Cooperation Officers.
Personnel resources require funding. Pending a permanent funding mechanism, Congress should provide funding for the CHIRG similar to the funding it allocates for Leahy law implementation. Funding should cover not just salaries for dedicated personnel, but also training for them.
An Effort Worthy of Being Enshrined in Law
The CHIRG process is a welcome effort, but it presently exists only as an internal State-DoD process that could easily wither away or even be swept aside by a change in administrations. This effort deserves to be enshrined in law.
As a start, Congress should amend the relevant portion of the Arms Export Control Act, to include possible use of U.S.-origin arms in violations of human rights and international humanitarian law as factors to be taken into account when deciding upon a transfer.
Congress ought to follow this up with a law requiring the State Department, DoD, and the intelligence community to investigate incidents of misuse and report them to the Secretary of State with recommendations for action — essentially encapsulating the CHIRG’s function. The Secretary should be required to report to Congress and the public on incidents of misuse and any actions taken.
Finally, Congress should provide a permanent funding stream to support these efforts, which would allow the State Department and other agencies to engage in long-term planning for effective implementation.