National Security Memorandum 20 and the Challenge of Operational End-Use Monitoring – Lieber Institute West Point – Lieber Institute West Point

Today, May 8, was the deadline for the Departments of Defense (DoD) and State to answer tough questions about how U.S. supplied weapons are being used in today’s conflicts, including those in Gaza and Ukraine. It appears that the delivery of their reports to Congress will be late and so questions remain both in terms of U.S. policy regarding supplying arms to Israel, as well as how both Departments have undertaken their assessments.

National Security Memorandum 20

The “National Security Memorandum on Safeguards and Accountability With Respect to Transferred Defense Articles and Defense Services” or National Security Memorandum 20 (NSM-20) requires that recipients of U.S defense articles provide “credible and reliable written assurances” that they will use the weapons in accordance with international humanitarian law and international law as well as promise not to impede the delivery of humanitarian assistance when such weapons are being used in armed conflict. The memorandum gave the Departments of State and Defense 90 days from its issuance to report to Congress on how they are assessing “credibility” and to demonstrate how civilian harm mitigation best practices are being incorporated into security assistance programs.

NSM-20 responds to a trend of steadily increasing pressure from Congress to address an absence of meaningful U.S. oversight over the operational use of U.S. arms by their purchasers. The push gained significant momentum in 2022 as civilian deaths caused by Saudi airstrikes in Yemen mounted. Congressional dissatisfaction with the narrow scope of end-use monitoring was signaled again in 2023 when Senators Warren, Sanders, and Lee wrote to the Secretary of Defense in May 2023 stating, “The lack of focus on the operational use of this equipment, both in end-user agreements and in EUM (end-use monitoring) programs, leaves an enormous void in monitoring how U.S.-origin weapons are used, including if they are contributing to civilian harm.” Congressional support for the exercise of more scrutiny has broadened dramatically during Israel’s invasion of Gaza.

While NSM-20 doesn’t technically introduce any new legal requirements, it places a significant new emphasis on existing provisions in the Arms Export Control Act and section 620I of the Foreign Assistance Act of 1961 and it compels both departments to exercise a new type of oversight over the use of U.S. arms transfers.

Implementation

Neither department has ever trained or assigned personnel to the task of monitoring the operational use of U.S. weapons transferred as part of its $80.9 billion U.S. arms transfer business. DoD has long maintained an EUM program. However, despite popular misconceptions (likely fostered by the program’s name) this program has nothing to do with monitoring how weapons are used in operational settings. The DoD program is more modest in its ambitions and addresses an entirely different policy concern, namely, the need to protect U.S. technology security and manage the risk of diversion to third parties through enforcing compliance with established technology control requirements. The FY2021 End-Use Monitoring Report prepared for Congress, made this explicit: “Post-delivery monitoring activities are conducted to verify the partner’s continued ownership of U.S. government provided equipment and also the partner’s compliance with any applicable technology control or physical security requirements. They are not intended to address a partner nation’s operational use of transferred equipment.”

Currently, the DoD EUM program is conducted by Security Cooperation Organizations based at U.S. embassies abroad that make scheduled visits to partner storage facilities and conduct inventories and ascertain whether partners “maintain the security of any article with substantially the same degree of protection afforded to it” by the U.S. government.” This overwhelmingly takes place in peace-time environments, although the pace and scale of U.S. military assistance to Ukraine necessitated a new policy to guide EUM in hostile environments, because there was no U.S. presence on the ground to carry out traditional EUM. It should be noted that EUM in hostile environments relies heavily on partner self-reporting, so it doesn’t provide a useful model for assessment required by NSM-20.

In the absence of a radically expanded mandate and significant infusion of resources, today’s EUM cannot reasonably be expected to address the complex policy challenge of assessing partner compliance with and enforcement of standards regarding the operational use of U.S.-supplied weapons.

The Way Forward

It’s clear that efforts to elevate human rights and civilian harm considerations—including language in the 2023 U.S. Conventional Arms Transfer Policy and DoD’s 2033 Civilian Harm Mitigation Response Action Plan (CHMR-AP)—are incompatible with the absence of U.S. government mechanisms to hold partners accountable. The State Department introduced the Civilian Harm Incident Response Guidelines last fall to begin addressing this gap and to promote responsible use by partners, but so far the effort has not received any significant resources.

What is the way forward then? One approach is for DoD to leverage resources put in place by the CHMR-AP. According to DoD Instruction 3000.17 Civilian Harm Mitigation and Response, each combatant command will eventually have a Civilian Harm Assessment Cell that will be responsible for reviewing reports of civilian harm involving U.S. military operations. While U.S. military operations remain the focus of these assessments, the principles and processes being institutionalized to complete them could be relevant to the requirements in NSM-20.

Another important step will be to harness the knowledge of NGOs. The reports of human rights abuses and civilian harm which implicate U.S. supplied weapons in the Israel-Gaza conflict are largely compiled by NGOs, many of whom have extensive in-country presence, have developed human intelligence networks throughout the local population, and cultivated significant expertise in the collection and analysis of forensic evidence. These are approaches that will likely be necessary if monitoring the operational use of U.S.-provided weapons is to be conducted on a meaningful level. The U.S. government should leverage this body of knowledge to develop its own internal capacity to conduct this type of oversight.

At times, the NGO community has been frustrated by the Pentagon’s slow pace in implementing civilian harm initiatives and highlighted its perceived lack of accountability and transparency. DoD’s dismissal of large numbers of NGO reports of civilian casualties as “not credible” strained the relationship. But DoD’s work with NGOs in the development of the CHMR-AP and the new DoD Instruction on Civilian Harm Mitigation was collaborative. Both sides stand to benefit from continued strengthening of these connections and the mutual exchange of expertise. Further cultivating the connections between DoD and the NGO community on issues related to civilian harm and accountability in arms transfers may prove to be an important role for the recently established Civilian Protection Center of Excellence.

Concluding Thoughts

While there exists significant skepticism regarding whether NSM-20 will ultimately impact arms transfer policy decisions in a meaningful way, it creates a new avenue to further integrate the civilian harm expertise that resides outside of DoD into new approaches inside the department. DoD’s internal efforts to address civilian harm associated with U.S. military operations should be closely integrated with the objective of increasing accountability in arms transfer decisions. Making the conditions associated with the transfer of U.S. arms more explicit is an important first step in developing the practical mechanisms to enforce them.

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Aidan Winn, Ph.D., is policy researcher at RAND, a nonprofit, nonpartisan research institution. She previously worked in the Global Partnerships office in the Office of the Under Secretary of Defense for Policy, providing strategic guidance and policy oversight for defense security cooperation programs.

Photo credit: Mauricio Campino