This is the fifth blog post in a series looking at an array of issues in 2023 related to weapons use, the arms trade and security assistance, often offering recommendations.
An Opportunity and Its Risks
In 2022, Russia’s invasion of Ukraine drew global attention, sparking efforts in the United States and Europe to provide military assistance to Ukraine’s armed forces. Scenes of attacks on civilians and accounts of war crimes drew sympathy from western publics, and diplomats protested President Putin’s blatant violation of international law prohibiting aggressive war. Last year, the United States provided tens of billions of dollars in assistance to Ukraine, with about half of it taking the form of weapons, security assistance, and Foreign Military Financing. But as economic woes continue and the war drags on, public support for continued military assistance to Ukraine has eroded, especially among Republican voters.
The Republican Party’s victory in the 2022 midterms – albeit a narrow one – will change congressional dynamics regarding U.S. arms sales to Ukraine. As became apparent with the election of Rep. Kevin McCarthy (R-CA) as Speaker, the GOP caucus is fractured, and the Republican Party’s slim majority makes every vote count, empowering the party’s right flank. Passing legislation through the House during the 118th Congress will be difficult, and securing Senate passage, and presidential signature for many House-originated bills seems unlikely. But with Republicans holding the Speaker’s gavel and committee chairs, they will nonetheless have a great deal of influence to conduct oversight and engage in “overspeech.” House Republicans plan to investigate the business dealings of members of President Biden’s family, scrutinize the U.S. withdrawal from Afghanistan, and probe abuses of power in the federal government.
Fights over arms sales to Ukraine may emerge more often with GOP control of the House. Debate about oversight for major arms sales could be productive. Congressional attention to U.S. end-use monitoring procedures would be welcome, especially since current end-use monitoring processes do not monitor how U.S.-origin defense articles are used.
However, should Ukraine aid become a matter uttered in the same breath as Hunter Biden’s laptop, Democrats will be unlikely to take oversight proposals seriously. Much-needed security assistance reform efforts will suffer if arms sales oversight becomes overly associated with far-right posturing.
Republican Positions on Ukraine Aid
The Republican Party is far from unified on the question of military aid to Ukraine. But enough high-profile legislators have raised concerns, whether about the scale of aid or oversight for military assistance, to put the issue on the agenda for 2023. Such concerns may result in the inclusion of additional oversight measures in future appropriations for assistance to Ukraine.
A number of Republican legislators have spoken out against continued U.S.military assistance to Ukraine without greater oversight. In December, Rep. Marjorie Taylor-Greene (R-GA) introduced a resolution to audit U.S. aid to Ukraine, drawing support from both restraint-minded and more hawkish conservatives. Taylor-Greene intends to reintroduce the measure in the 118th Congress. Rep. Matt Gaetz (R-FL) has also been a vocal critic of U.S. aid to Ukraine.
Key Republican committee chairs are stalwart supporters of U.S. military support to Ukraine. In December 2022, Rep. Michael McCaul (R-TX), who chairs the House Foreign Affairs Committee, said he “100%” supports arming Ukraine against Russia. He also sponsored a bipartisan bill authorizing U.S. support to international criminal fora, including the International Criminal Court, for investigations of Russian war crimes in Ukraine. Nevertheless, McCaul backed Taylor-Greene’s audit resolution in the House Foreign Affairs Committee as ranking member, and he has voiced support for “oversight and accountability” for security assistance to Ukraine.
Rep. Kevin McCarthy (R-CA), who won the Speaker’s gavel on January 7, 2023 after fifteen rounds of voting, has expressed that Ukraine will not get a “blank check” from Congress with the House under Republican leadership.
In the Senate, Minority Leader Mitch McConnell (R-KY) has spearheaded Republican support for assistance to Ukraine. But Senator Rand Paul (R-KY) would be a likely Senate ally of Ukraine aid skeptics in the House. A perennial critic of U.S. arms sales, Paul delayed a vote on a $40 billion aid package to Ukraine in May 2022 with a provision requiring that an inspector general monitor the spending. Besides Senator Paul, a significant contingent of GOP Senators has voted against appropriations for aid to Ukraine.
With notable legislators calling for greater accountability and oversight for U.S. arms sales to Ukraine, 2023 will bring opportunities to consider how U.S. law and policy address U.S. arms sales.
Possible Areas of Focus in the Ukraine Aid Debate
In light of the sheer quantity of U.S. arms sales and other forms of assistance to Ukraine, three policy areas that congressional conversations may touch on include end-use monitoring, the Leahy Laws, and oversight by inspectors general.
At this stage of the conflict, U.S. arms appear to have remained in the hands of Ukrainian forces, but the risk of unauthorized diversion may rise when the war eventually winds down. The Biden administration has taken action to prevent the diversion of U.S. arms provided to Ukraine. In October 2022, the State Department released a plan to “[s]afeguard and account for arms and munitions in Ukraine and neighboring countries.” The plan focuses on cross-border smuggling of particular powerful and mobile types of arms. But conducting end-use monitoring for U.S.-origin equipment is difficult amid ongoing armed conflict. As a September 2022 State Department cable stated, “standard verification measures are sometimes impracticable or impossible.”
Serious legislative attention to end-use monitoring (EUM) would be a productive outcome of conversations about U.S. military assistance to Ukraine. Mandated in the Arms Export Control Act of 1976 and implemented by the Blue Lantern and Golden Sentry Programs, significant gaps in end-use monitoring deserve attention. As a 2021 brief from the Center for Civilians in Conflict, Center for International Policy, and Stimson Center put it, “current EUM programs are designed to protect U.S. technology, not people. The word ‘use’ in end-use monitoring is an unfortunate misnomer.”
Beyond concerns about smuggling weapons outside of Ukraine, U.S. assistance could contribute to human rights abuses or violations of international humanitarian law. Congress has previously prohibited the provision of security assistance to the Azov Battalion, a far-right armed group that is part of Ukraine’s National Guard. While Russian war crimes thus far dwarf Ukrainian violations in both gravity and quantity, some possible violations of human rights and international humanitarian law by Ukrainian personnel have emerged. Such accounts could trigger the Leahy Laws, which prohibit the provision of assistance to units of armed forces when credible information exists that the unit committed a “gross violation of human rights.” However, given the relative scale of Russian war crimes, significant congressional discussion of gaps in the Leahy Laws as applied in Ukraine seems unlikely, barring a significant change in how the Ukrainian military conducts hostilities.
Ukraine’s difficulties with corruption raise concerns as well, especially since military aid could exacerbate existing problems and undermine the country’s democratic institutions. In light of corruption issues, some analysts recommend the creation of an oversight body on the model of the Special Inspector General for Afghanistan Reconstruction (SIGAR). In June 2022, the former Afghanistan Special Inspector General commented, “It is really shocking that people are not applying what we learned about the mistakes in Afghanistan to Ukraine.” Others prefer relying on existing inspectors general for U.S. government departments and agencies, such as the finally confirmed DoD Inspector General Robert Storch. In both cases, an inspector general would conduct audits and investigations to prevent misuse of U.S. aid. While tasking inspectors general to focus on U.S. arms sales to Ukraine could contribute to greater transparency, it will be important that the U.S. government absorbs their findings and incorporates reforms into policy, law, and practice.
John Chappell is a Legal Fellow at Center for Civilians in Conflict and a joint J.D. and M.S. in Foreign Service candidate at Georgetown University. He is also a member of the Forum’s Emerging Expert program.
Inclusion on the Forum on the Arms Trade expert list and the publication of these posts does not indicate agreement with or endorsement of the opinions of others. The opinions expressed are the views of each post's author(s).