On August 12th U.S. State Department Spokesman Mathew Miller explained that the U.S. will not restrict assistance to certain units of the Israeli military that had been accused of violating human rights. While aid to such units is prohibited under what is known as the Leahy Law, the State Department determined that law did not apply (see CNN coverage here, Miller’s remarks are about halfway through here).
The Leahy Law, which has been in effect for approximately the last 25 years and is named after former senator Patrick Leahy of Vermont, prohibits assistance to units of foreign security forces if the Secretary of State has credible information the unit has committed a gross violation of human rights (see a guide to the law here). To be clear, this law applies to specific units of a foreign military, not to a military as a whole. So no matter what violations are alleged, it would be incorrect to say that the Leahy Law forbids military assistance to Israel or any country. This law applies only to individual military units, which are defined as the smallest group in the field that is implicated in any violation.
Second, this law only covers gross violations of human rights. The State Department defines these as torture, extra-judicial killing, forced disappearance, and rape under color of law. More general war crimes allegations, such as launching attacks that insufficiently discriminate between combatants and civilians, would not trigger the Leahy Law.
In this instance, several units of the Israeli military were accused of gross violations of human rights in the West Bank, most prominently among them a battalion called Netzach Yehudah. It’s important to note that all of the accusations that were covered by this recent State Department determination predate the current war in Gaza.
Unfortunately, the allegations of gross violations of human rights are numerous, and they include rapes and shootings. But perhaps most widely reported was the death of an 80 year old dual Palestinian American citizen named Omar Asad in January of 2022 (read news coverage here). Asad’s car was stopped at a checkpoint outside Ramallah, where he was taken into custody by Israeli soldiers. He was bound, gagged, and taken to a building housing other detainees, where he was dead by morning. According to an autopsy, he suffered a heart attack. At no point did he receive medical assistance, as the soldiers claimed they thought he was simply asleep.
The State Department seems to have concluded that at least some of the allegations are credible and do represent gross violations of human rights by units of the Israeli armed forces. The main controversy stems from the rationale the Department used to set aside the Leahy Law, which was to invoke a clause which says that assistance can continue if the human rights violations have been effectively remedied (see CNN coverage and State Department transcript above).
In the context of Omar Asad’s death, the evidence most commonly cited for remediation is Israel’s investigation into the incident. It found that, “There was a clear lapse of moral judgment. Leaving Mr. Assad alone and without checking his condition was a careless act that runs contrary to the values of the IDF.” In response, the battalion commander received a reprimand and other officers lost their positions for two years.
The most prominent critic of the State Department’s decision is Charles Blaha, a former State Department official who was responsible for Leahy vetting (you can read his view in an article he wrote for Just Security.) He says when dealing with gross violations of human rights there is no way that a reprimand or temporary loss of command should be a sufficient remedy. Those responsible must receive prison sentences to represent the seriousness of these wrongs. He says that there is no way violations committed in any other country would have been considered remedied this easily and that this decision must be the product of political pressure from Israel.
Another question raised by Blaha and others is whether placing the blame on a few officers is really enough. Many claim there is a culture of disregard for Palestinian rights that permeates some of these units that won’t change just by moving a few people around. It’s also not clear to what extent the implicated officers have even really been reprimanded, as a CNN investigative report claims that they are currently commanding other units (read it here.)
So to sum up, sadly there are multiple allegations of gross human rights violations committed by several Israeli army units that the State Department deems to be credible. While the Department says Israel has remedied the violations, there are good reasons to be skeptical as to whether Israel has truly done what is needed to address the problems. In any case Israel will face no legal consequences from the U.S. at this time.
Is The Leahy Law a Good Tool for Enforcing Human Rights?
While I don’t doubt the good intentions behind the Leahy law, the current questions about its application actually point out broader difficulties in using Congressional legislation to enforce human rights.
Remember, the law only forbids support for specific army units, not a foreign country’s military in general. Israel, or any other country, could easily move people and resources around to make sure that restrictions on a few units don’t significantly interfere with it getting the assistance it desires.
Also, the Department of Defense version of the law allows a waiver for ‘extraordinary circumstances’ along with ‘humanitarian or national security emergencies.’ While declining to invoke the Leahy Law due to remediation was certainly preferable politically, one could also easily picture the Secretary of State deciding to wave the law because the Gaza war is an emergency or special circumstance. So the Leahy law hardly has enough muscle to force the executive branch to change policies against its will, and it’s hard to imagine a law that’s much stronger actually passing Congress and being signed by the president.
More broadly, a military’s respect for human rights comes from values and procedures that are baked into everything it does. While threats about losing support may cause foreign governments to take public actions designed to impress U.S. officials, it’s hard to believe this will impact the behavior of rank and file soldiers in ways their own personal values and training haven’t.
The reality is that in spite of the noble work of Senator Leahy, the provision of military assistance will always remain a primarily political decision. Laws like this may have some benefit, but are not likely to be effective on their own. Of course, that begs the question of what would be better. I’m having a hard time coming up with a good suggestion. Can you?
Photo by Taylor Brandon on Unsplash