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Memorandum of Justification Consistent With the Trafficking Victims Protection Act of 2000, Regarding Determinations With Respect to "Tier 3" Countries


White House Release
Office To Monitor and Combat Trafficking in Persons
September 13, 2010

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Pursuant to section 110(d) of the Trafficking Victims Protection Act of 2000 (Div. A, P.L. 106-386), as amended (the “Act”), the President has made determinations regarding the 13 countries placed in Tier 3 in the Department of State’s 2010 Trafficking in Persons Report. The President has determined to restrict assistance for Burma, Cuba, the Democratic People’s Republic of Korea (DPRK), Eritrea, Iran, and Zimbabwe. The United States will not provide any non-humanitarian, nontrade-related assistance to the Governments of Cuba, the DPRK, Eritrea, and Iran, and will not provide certain non-humanitarian, non-trade-related assistance to the Governments of Burma and Zimbabwe, until such governments comply with the Act’s minimum standards to combat trafficking or make significant efforts to do so. The United States will not provide funding for participation by officials or employees of the Governments of the DPRK and Eritrea in educational and cultural exchange programs until those governments comply with the Act’s minimum standards to combat trafficking or make significant efforts to do so. The President has determined, consistent with the Act’s waiver authority, that provision of certain assistance to the Governments of Burma, Cuba, Iran, and Zimbabwe would promote the purposes of the Act or is otherwise in the national interest of the United States. The President also has determined, consistent with the Act’s waiver authority, that provision of all bilateral and multilateral assistance referred to in section 110(d) to the Democratic Republic of the Congo, the Dominican Republic, Kuwait, Mauritania, Papua New Guinea, Saudi Arabia, and Sudan would promote the purposes of the Act or is otherwise in the national interest of the United States.

The President has determined that the U.S. Executive Director of each multilateral development bank, as defined in the Act, and of the International Monetary Fund will vote against, and use the Executive Director’s best efforts to deny, any loan or other utilization of funds of the respective institution to the Governments of Burma, Cuba, the DPRK, Eritrea, Iran, and Zimbabwe (with specific exceptions for Zimbabwe) for Fiscal Year 2011, until such governments comply with the minimum standards or make significant efforts to come into compliance, as may be determined by the Secretary of State in a report to the Congress pursuant to section 110(b) of the Act.

Explanations of the President’s determinations regarding each of the 13 countries follow.

Burma
The Government of Burma does not fully comply with the Act’s minimum standards for the elimination of trafficking. Although in some areas, in particular international sex trafficking of women and girls, it is making significant efforts to bring itself into compliance, in other areas it is not making significant efforts, most notably in the area of forced labor. The President has determined to restrict assistance for Burma. The President has also determined that provision of funding for programs to support government labs and offices that work to combat infectious disease would promote the purposes of the Act, or is otherwise in the national interest of the United States.

Justification: Although the Burmese Government has taken some steps to combat sex trafficking, Burmese military and civilian officials remain directly involved in the use of citizens for forced labor and the unlawful conscription of child soldiers.

A partial waiver of restrictions is in the national interest because it will allow U.S. funding to continue for programs supporting Burmese Government labs and offices that work to combat infectious disease.

Impact of Restrictions: The United States does not provide assistance to the Burmese Government, other than to certain government entities working to combat infectious diseases. Existing restrictions on Burma include a ban on new investment, imports, exports of financial services, bilateral assistance, and arms sales. Additionally, travel restrictions and/or financial sanctions have been imposed against senior Burmese officials and their immediate relatives, a number of state-owned enterprises, and other individuals and entities affiliated with the regime.

Congo, Democratic Republic of
The Government of the Democratic Republic of the Congo (DRC) does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined, consistent with the provisions of the Act, that provision of all programs, projects and activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The Government of the DRC has not taken sufficient steps to address the problem of trafficking in persons. In fact, the government’s anti-trafficking law enforcement efforts decreased during the reporting period. The government did not show evidence of progress in prosecuting and punishing labor or sex trafficking offenders, including members of its own armed forces; in providing protective services for the vast majority of trafficking victims; or in raising public awareness of human trafficking. In 2009, the Congolese national army (FARDC) resumed recruitment, at times through force, of children for use as combatants, escorts, and porters, a practice that observers believed to have ended by 2008.

The President’s determination with respect to the DRC, consistent with the Act’s waiver authority, will allow for development assistance and advance United States Government goals of consolidating peace, democratic reform, and advancing human rights in the country. The focus for Peacekeeping Operations (PKO), Foreign Military Financing (FMF), Foreign Military Sales (FMS), and International Military Education and Training (IMET) funding includes developing capacity of the DRC military as a non-political, professional force respectful of human rights.

Impact of Restrictions: Restrictions on assistance under the Act would apply to $37.6 million in Economic Support Funds (ESF), $700,000 in Development Assistance (DA) funds, $2 million in Global Health and Child Survival funds, $500,000 in IMET, $1.45 million in FMF funding, $1.26 million in FMS, and $22 million in PKO funding. IMET programs are critical to providing professionalization training to influence and train current and future Congolese military leaders. The FMF and FMS programs for the DRC include funding programmed for technical training, uniforms, personnel equipment, and wheeled vehicles that are critical to the Security Sector Reform and Rapid Reaction Force efforts in the DRC. The ESF and DA assistance would help develop DRC political and social institutions through programs advancing the rule of law, good governance, strengthening of civil society, environmental management, and agricultural policy reforms.

Cuba
The Government of Cuba does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to restrict assistance for Cuba. The President has also determined that provision of funding for educational and cultural exchange programs would promote the purposes of the Act, or is otherwise in the national interest of the United States.

Justification: The Government of Cuba publishes little data on internationally or domestically-trafficked persons, although it shared some information on human trafficking and its efforts to address the issue during the last year. The Cuban Government does not appear to have developed a comprehensive strategy to address the problem, and has few discernable anti-trafficking law enforcement, victim protection, or trafficking prevention measures or policies in place.

A partial waiver of restrictions for educational and cultural exchange programs is in the national interest as the inception of such programs will promote greater understanding within Cuba of the United States and its people.

Impact of Restrictions: The United States Government does not offer economic assistance to the Government of Cuba and will not allow any significant new investment in Cuba by U.S. companies until democratic and economic reforms are instituted. The Government of Cuba is already subject to an extensive economic embargo tied to Cuba’s poor record on, among other things, democracy, human rights, and economic reform. Restricting assistance for Cuba for its failure to make efforts to combat trafficking in persons expresses clear U.S. concern and interest in improving the prevention and protection afforded to trafficked individuals by the Government of Cuba.

Dominican Republic
The Government of the Dominican Republic does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined, consistent with the provisions of the Act, that provision of all programs, projects, and activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The Government of the Dominican Republic has taken some, but not sufficient, steps to address the significant problems of trafficking of foreign nationals to its country for labor and sexual exploitation, and the complicity of Dominican law enforcement personnel in trafficking. The government has not markedly improved its anti-trafficking law enforcement record and has made only limited efforts to identify and protect victims of labor trafficking. The government’s implementation of its 2003 anti-trafficking law has been weak, and the government has not convicted any trafficking offenders since 2007.

The President’s determination with respect to the Dominican Republic, consistent with the Act’s waiver authority, will permit continued important military-to-military security cooperation and programs countering transnational threats, as well as programs that strengthen the rule of law, good governance, and civil society, and allow continued dialogue and engagement to combat human trafficking. This determination will also assist reconstruction efforts in neighboring Haiti, which will rely on continued cooperation with the Government of the Dominican Republic.

Impact of Restrictions: Restrictions on assistance under the Act would apply to approximately $6.96 million in Development Assistance, $900,000 in International Military Education and Training funds, possibly the provision of Excess Defense Articles, and approximately $250,000 in Peacekeeping Operations support.

Eritrea
The Government of the State of Eritrea does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to restrict assistance for Eritrea.

Justification: The Government of the State of Eritrea did not exhibit progress toward educating government officials or the general public about human trafficking, and does not appear to have made tangible efforts to conduct anti-trafficking law enforcement, victim protection, or prevention initiatives. Furthermore, Eritrea failed to demonstrate any effort to curb abuses of Eritrean citizens who are forced to participate in the government’s national service program for indefinite periods.

Impact of Restrictions: The United States Government does not provide foreign assistance to the Eritrean Government, which is already subject to sanctions that prohibit the sale or licensing for export of defense articles and defense services to countries certified by the United States as not cooperating fully with U.S. antiterrorism efforts. Eritrea is also designated a country of particular concern for its poor human rights record. As a result, Eritrea is subject to an ongoing arms embargo referenced in 22 CFR 126.1(a) pursuant to the Presidential Action under the International Religious Freedom Act of 1998. Restricting assistance for Eritrea for its failure to make efforts to combat activities related to trafficking in persons expresses clear U.S. disapproval of the Eritrean Government’s acceptance, if not endorsement, of such trafficking activities.

Iran
The Government of Iran does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to restrict assistance for Iran. The President has also determined that provision of funding for participation of certain Iranian individuals in educational and cultural exchange programs would promote the purposes of the Act, or is otherwise in the national interest of the United States.

Justification: The Government of Iran continues to dismiss criticism of its inadequate anti-trafficking efforts while continuing to punish – often severely, including by beatings, imprisonment, and execution – victims of trafficking. The government has neither developed a comprehensive strategy to address Iran’s human trafficking problem nor instituted victim protection procedures to systematically identify and protect victims of trafficking.

A partial waiver of restrictions for educational and cultural exchange programs for certain Iranian individuals is in the national interest as the continuation of such existing programs will promote greater understanding within Iran of the United States and its people.

Impact of Restrictions: The United States Government does not provide economic assistance to the Government of Iran. The Government of Iran is already subject to economic sanctions due to, among other things, its support for international terrorism.

Korea, Democratic People’s Republic of (DPRK)
The Government of the DPRK does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to restrict assistance for the DPRK.

Justification: The Government of the DPRK does not acknowledge the existence of human trafficking, and is making no effort to address trafficking in persons. The North Korean regime continues to use forced labor as part of an established system of political repression. The regime actively punishes trafficking victims for acts they commit that are the direct result of being trafficked. The government does not recognize trafficking as a problem, and imposes forced labor conditions on its prisoners, including North Koreans forcibly returned from China. Furthermore, conditions in the DPRK drive many North Koreans to seek a way out of the country, putting them at risk of becoming trafficking victims. Women who enter northern China from the DPRK may be sold as brides and trafficked for purposes of sexual exploitation. The United States strongly disapproves of the DPRK Government’s failure to address trafficking in persons.

Impact of Restrictions: The United States Government does not provide foreign assistance to the Government of the DPRK. Restricting assistance for the DPRK for its failure to make efforts to combat trafficking in persons expresses clear U.S. disapproval of the DPRK Government’s acceptance, if not endorsement, of trafficking.

Kuwait
The Government of Kuwait does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined, consistent with the provisions of the Act, that provision of all programs, projects and activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The Government of Kuwait has not taken sufficient steps to address the significant problem of involuntary domestic servitude, particularly by failing to establish a long-promised permanent shelter for domestic workers who have been victims of forced labor. Furthermore, it failed to enact anti-trafficking legislation that explicitly prohibits and punishes all trafficking offenses; did not provide training to law enforcement, prosecutors, and judges on investigating and prosecuting trafficking cases; did not provide evidence of increased prosecutions; and did not develop or implement procedures to proactively identify victims. The government did issue a resolution to make modest reforms to its flawed foreign worker sponsorship system that would affect some but not all foreign workers; however, a subsequent statement by authorities appears to limit the implementation of the resolution.

The President’s determination with respect to Kuwait, consistent with the Act’s waiver authority, will allow for the continuation of democracy programs in Kuwait through the Middle East Partnership Initiative (MEPI), and will permit continued security cooperation to effectively address global terrorism.

Impact of Restrictions: Restrictions on assistance under the Act would apply to approximately $2.4 billion in projected Foreign Military Sales to Kuwait, $10,000 in International Military Education and Training funding, and $4 million in MEPI assistance. The immediate impact of restrictions would be a reduction in access necessary to maintain Kuwait’s support for our efforts to combat terrorism and in our ability to encourage Kuwait’s efforts to confront the growing Iranian military threat. Restricting MEPI programs would remove a key United States Government tool in promoting democratic reform and human rights in Kuwait.

Mauritania
The Government of Mauritania does not fully comply with the Act’s minimum standards for the elimination of trafficking and is not making significant efforts to bring itself into compliance. The President has determined, consistent with the provisions of the Act, that provision of all programs, projects and activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The Government of Mauritania has not made appreciable progress in addressing trafficking, including hereditary slavery. The government did not increase efforts to investigate, prosecute, and punish trafficking offenders, including hereditary slave masters. The government is reluctant to acknowledge that de facto slavery exists in Mauritania, and it showed no evidence of efforts to prosecute trafficking offenses or protect victims of such crimes.

The President’s determination with respect to Mauritania, consistent with the Act’s waiver authority, will allow for the continuation of counterterrorism and democracy programs. Specifically, Mauritania is a partner in the Trans-Sahara Counter Terrorism Partnership (TSCTP) program, which is designed to improve the regional security situation, and strongly supports U.S. counterterrorism objectives. International Military Education and Training (IMET) funding, which is aimed at strengthening democratic institutions and the rule of law, assists in efforts to transform Mauritania’s military into a conventional professional force that respects democratic values and human rights.

Impact of Restrictions: Restrictions on assistance under the Act would apply to $150,000 in IMET funding as well as Peacekeeping Operations funding. Mauritania would likely receive a portion of $20 million allocated to Chad, Mauritania, and Niger from the Peacekeeping Operations component of TSCTP to improve military capacity to combat terrorism.

Papua New Guinea
The Government of Papua New Guinea does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined, consistent with the provisions of the Act, that provision of all programs, projects and activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The Government of Papua New Guinea has not taken sufficient steps to address the significant problem of trafficking of women and underage girls for commercial sexual exploitation within the country. Despite committing itself to some initial efforts to address its many trafficking problems, the government has not improved its poor anti-trafficking law enforcement record or shown an effort to identify and protect victims of trafficking for sexual exploitation and forced labor.

The President’s determination with respect to Papua New Guinea, consistent with the Act’s waiver authority, will allow for uninterrupted military-to-military programs that advance the goal of strengthening security in the Oceania region and will permit the continuation of International Military Education and Training (IMET) funding to improve the professionalism and capabilities of the Papua New Guinea Defense Force, making it a more effective partner for U.S. or coalition forces or for peacekeeping operations.

Impact of Restrictions: Restrictions on assistance under the Act would apply to $300,000 in IMET funding and possibly the provision of some Excess Defense Articles and Foreign Military Financing.

Saudi Arabia
The Government of Saudi Arabia does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined, consistent with the provisions of the Act, that provision of all programs, projects and activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The Government of Saudi Arabia has not taken adequate steps to address the significant problem of involuntary servitude, but has indicated its willingness to work on this issue through recent actions. The government enacted a new comprehensive anti-trafficking law that purports to define and punish all forms of trafficking; however, because it is not yet clear that the law will prohibit employers from holding passports and denying exit-visas, practices present in most trafficking cases, actual prosecutions under this law may be limited. There is no evidence that the government criminally prosecuted or punished any traffickers. The new law also requires the government to provide victims with access to medical assistance and security; however it is unclear whether the law requires the government to provide temporary housing to the many victims currently not granted access to government facilities or shelters. The government has ample resources to address Saudi Arabia’s trafficking problems, but has only recently begun to show an interest in tackling this serious human rights issue.

The President’s determination with respect to Saudi Arabia, consistent with the Act’s waiver authority, will allow the continuation of programs in Saudi Arabia that advance counterterrorism and regional security goals.

Impact of Restrictions: Restrictions on assistance under the Act would apply to over $10 billion in Foreign Military Sales, approximately $3 million in Middle East Partnership Initiative funds, $10,000 in International Military Education and Training funding, and $360,000 in Nonproliferation, Antiterrorism, Demining, and Related assistance.

Sudan
The Government of National Unity of Sudan (GNU) does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined, consistent with the provisions of the Act, that provision of all programs, projects and activities of assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The GNU has made no progress in combating human trafficking through law enforcement or significant prevention measures. It made no effort to rescue or reintegrate victims of internal trafficking into their communities of origin, resulting in thousands of people continuing to remain in prolonged situations of forced labor and commercial sexual exploitation. It also made no progress on demobilization of unlawful child soldiers or efforts to address the trafficking of women and girls for involuntary domestic servitude within and through the country.

The end of the 21-year civil war in Sudan, as marked by the signing of the Comprehensive Peace Agreement (CPA) by the Government of Sudan and the Sudan People’s Liberation Army in January 2005, signaled a new era for Sudan. The United States continues to work with the parties to implement the peace agreement and bring about democratic transformation in Sudan. While the signing of the Darfur Peace Agreement 3 years ago provided an opportunity to contribute towards the resolution of the crisis in Darfur, the conditions on the ground remain tenuous and the progress towards a bona fide peace process remains stalled. Under the CPA and other peace agreements, we continue to implement a wide variety of programs to restore effective governance and allow economic growth in the South and other conflict areas. In the South, these include, but are not limited to, programs aimed at professionalizing the military, restoring a functioning judicial system and other elements necessary for the return to the rule of law and security, a functioning legislature, elements of a market economy, mitigating conflict, and ensuring security.

Because both humanitarian and consensus-building efforts to support a peaceful transition in Darfur have been hampered by a delayed peace process, the United States Government remains cautious about exploring opportunities to begin to support recovery activities. However, the United States Government maintains diplomatic engagement to strengthen the peace process that will eventually allow opportunities for longer-term development activities.

The primary U.S. strategic objectives for Sudan are to ensure that all sides end the violence in Darfur; that both the North and the South continue working toward full implementation of the CPA, which includes transforming the defense institutions and military forces of the Sudan People’s Liberation Army (SPLA) to provide security for itself and its people adequately; and that Sudan not be a base for terrorist activity. U.S. assistance is being used to support the Government of Southern Sudan, including the SPLA, with security sector reform, including infrastructure, command headquarters, and transportation projects. Our objective is to convey values of democracy, civil-military relations, and human rights, and to transform the SPLA from a guerilla to a professional military force.

The President’s determination with respect to Sudan, consistent with the Act’s waiver authority, will allow these important efforts to continue as appropriate, thereby enhancing security within the country, supporting democratic development, and carrying out additional development and reconstruction projects in Southern Sudan and Darfur. This determination will also preserve the United States Government’s delivery of necessary security sector reform specifically cited for implementation in the United States’ Sudan Strategy.

Impact of Restrictions: Comprehensive sanctions against Sudan are already in place, including those imposed under the International Emergency Economic Powers Act, those related to its designation as a state sponsor of terrorism, and several other legislative restrictions on assistance. Restrictions on assistance under the Act would nonetheless apply to more than $300 million in assistance to bolster security within the country and further the reconstruction of Southern Sudan, including $800,000 in International Military Education and Training funding, $42 million in Peacekeeping Operations funding for the Security sector transformation of the SPLA and possibly as much as $270 million in Economic Support Funds (ESF). The ESF programs are aimed at encouraging broad economic development in Southern Sudan and supporting efforts towards peace in Darfur. These programs contribute to a better environment for good governance while increasing the availability of social services and strengthening nascent democratic policies and institutions.

Zimbabwe
The Government of Zimbabwe does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to restrict assistance for Zimbabwe. The President has also determined that provision of funding for programs for victims of trafficking in persons or to combat such trafficking, and for the promotion of health, good governance, education, agriculture and food security, poverty reduction, livelihoods, family planning, and macroeconomic growth including anti-corruption, and for programs that would have a significant adverse effect on vulnerable populations if suspended, would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: Although government officials have shown increased interest in human trafficking issues in the last year, the Government of Zimbabwe has made no apparent efforts to proactively identify victims of trafficking, and members of its security forces forced men and boys to perform hard labor in diamond mines. Since the release of the 2010 TIP Report, there has been no reported progress in investigating trafficking crimes, punishing trafficking offenders, or identifying and protecting trafficking victims.

A partial waiver of restrictions under the Act is in the national interest because it will allow certain types of bilateral assistance not already restricted to the Government of Zimbabwe to promote the country’s transformation from repression and poverty to a government that respects democratic freedoms and seeks to meet the needs of its people.

Impact of Restrictions: The United States Government does not currently provide assistance to the Government of Zimbabwe. The Government of Zimbabwe is already subject to foreign assistance restrictions due to, among other things, failure to repay debts owed to the United States pursuant to section 620(q) of the Foreign Assistance Act and section 7012 (the “Brooke amendment”) of the Department of State, Foreign Operations, and Related Programs Act, 2010 (Div. F, P.L. 111-117). Partial waivers, however, have been issued under section 620(q) and the Brooke amendment in the areas of education, agriculture and food security, family planning, and macro-economic growth including anti-corruption. Therefore, restrictions under the Act would apply to such assistance to the Government of Zimbabwe absent this partial waiver. Moreover, if the Government of Zimbabwe succeeds in repaying its debts owed to the United States, the partial waiver of restrictions under the Act will allow funding for programs for the promotion of health, good governance, poverty reduction, and livelihoods as well as funding for programs for victims of trafficking in persons or to combat such trafficking, and for programs that would have a significant adverse effect on vulnerable populations if suspended.



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