US President Joe Biden joins Israel’s Prime Minister for the start of the Israeli war cabinet meeting, in Tel Aviv on October 18, 2023, amid the ongoing battles between Israel and the Palestinian group Hamas. | Miriam Alster/Pool/AFP via Getty Images
US law limits aid to countries that violate human rights. Here’s why it isn’t applied to Israel.
The recent high-profile killings of three Israeli hostages, two women in a Gaza church, and 11 unarmed Palestinian men in front of their family members have raised new global alarm at Israel’s targeting of civilians amid its war in Gaza. The deaths came as part of its ground assault, and as it continues a bombing campaign that even staunch Israel ally President Joe Biden has called “indiscriminate.” Yet, he continues to push for additional, essentially unconditional aid to Israel — despite the fact that some foreign affairs experts say existing US laws meant to safeguard human rights should have long restricted the flow of such assistance.
“We always treat Israel with kid gloves when it comes to potential human rights violations of any kind,” said Josh Paul, who has become a prominent critic of the Biden administration’s Israel policy since resigning from his post as the director of congressional and public affairs at the State Department bureau overseeing American arms sales over concerns about the Israeli response to the October 7 attack by Hamas, a Palestinian militant group designated as a terrorist organization by many countries. “When it comes to suspending or curtailing lethal military assistance, there’s no sign of anyone willing to take any actual steps.”
The US provides more aid to Israel than to any other country, about $3.8 billion annually in recognition of the two states’ “special relationship” that dates back decades. Now, Biden wants Congress to approve an additional $14.3 billion in aid to Israel as part of a broader package that also includes aid for Ukraine and that has been held up over immigration policy negotiations. He also recently circumvented Congress to sell Israel $106 million worth of tank ammunition.
Biden administration officials told CNN that they are not currently considering placing conditions on aid beyond those that already exist in federal law, saying that the US expects Israel to abide by international humanitarian law and that the Israel Defense Forces conducts internal legal reviews of its strikes beforehand.
“We’re not going to do a damn thing other than protect Israel in the process. Not a single thing,” Biden recently told Democratic donors.
But some former administration officials and congressional staff say that those existing legal conditions aren’t being adequately enforced against Israel given the high civilian death toll in Gaza, which has exceeded 20,000 since October 7. That includes policies designed to prevent arms transfers that may enable violations of international humanitarian law or to foreign forces suspected of using American weapons to harm civilians. But one law in particular has recently gotten more attention from progressive Democrats: the “Leahy Law.” They argue that the US may be shirking its legal duty to ensure that assistance to Israel is not being used to violate human rights.
First approved by Congress in 1997, the Leahy Law’s purpose is to prevent the US from being implicated in serious crimes committed by foreign security forces that it supports by cutting off aid to a specific unit if the US has credible information that the unit committed a gross violation of human rights. No security forces, not even American ones, are entirely immune to committing such violations. The law has never had teeth against Israel, however, despite what human rights experts, both in the US government and outside of it, have identified as substantive evidence that Israel has committed human rights violations both before and during the current Gaza war. The Department of Defense referred Vox to the State Department for comment, and neither the State Department nor the White House responded to requests for comment.
“The Israelis too often seem to act as though international law does not apply to them. And our government has acted as though the Leahy Law doesn’t apply to [the Israelis],” said Tim Rieser, a longtime senior adviser to former Sen. Patrick Leahy (D-VT) who was a key architect of the law. “As a result, there is a kind of culture of impunity — they can do almost anything to the Palestinians without being accountable.”
How the Leahy Law works — and how Israel gets special treatment
The US vets every foreign military unit designated to receive American assistance under the Leahy Law for almost every country. The US embassy in that country leads an investigation, and the information it produces, along with other source material, is reviewed by analysts at the State Department.
Those analysts are looking for “credible” evidence that the unit has committed a gross human rights violation, which is typically defined as torture, extrajudicial killing, enforced disappearance, or rape, but can also be interpreted more broadly. That information can come from a variety of reliable sources, including media and NGO reports, and is ideally corroborated by multiple sources, but it does not need to meet the strict legal standard required to be admitted as evidence in a court of law.
If there is such evidence, then the US must cut off aid to that unit under the Leahy Law — but it can be later reinstated if the State Department determines that the country is taking effective steps to bring responsible members to justice. In that sense, the law is designed to “address the problem of impunity and to build more accountable security forces that we partner with,” Rieser said.
However, for Israel and a few other countries receiving levels of US military aid so high that it is impossible to track where the assistance is going — including Egypt and Ukraine, according to Paul — the process is different. “Rather than vetting and then providing assistance, we provide assistance and then we keep our ears out for potential violations,” he said, adding that both Egyptian and Ukrainian units have been found to have committed gross violations of human rights as part of that process.
In Israel’s case, any allegations of gross human rights violations against Israeli units come before a vetting forum comprised of representatives from various State Department bureaus handling human rights, security interests, and legal issues, as well as regional specialists at the agency’s Bureau of Near Eastern Affairs and the US embassy in Jerusalem, Paul said. The forum can only determine that a gross human rights violation has been committed if it reaches a consensus, he added. Without one, the process stalls. If it’s determined a violation took place, the US will send Israel a list of the offending units, and Israel will not support those units with American aid, per a 2021 agreement between the two countries obtained by Vox.
However, neither Paul, Rieser, nor Harrison were aware of any time that the US had found that an Israeli unit committed any such violation. Sen. Bernie Sanders recently introduced a resolution asking the State Department to certify as much or else report on any violations committed amid the current Gaza war. The State Department did not respond to a request for comment on the matter.
The lack of confirmed offenses is not because Israel has a uniquely pristine record. Rather, it’s because the implementation of the Leahy Law has been biased in Israel’s favor.
For one, the 2021 agreement relies on Israel to police its own, presuming that “Israel has a robust, independent and effective legal system, including its military justice system” under which gross violations of human rights would not go unpunished. That’s a sentiment that has been echoed by US officials over the years, including former President Donald Trump’s ambassador to Israel David Friedman, who went even further in giving Israel the benefit of the doubt: “Israel is a democracy whose army does not engage in gross violations of human rights,” he wrote in 2018.
But in reality, Rieser said, “they very rarely hold their own soldiers accountable.” Paul said that he has been “raising concerns for ages that the Israeli military court system is not an unbiased system when it comes to violations by Israeli officials.”
Nevertheless, neither Republican nor Democratic administrations have proven interested in dealing with the “inevitable criticism from the Israelis or their most ardent supporters in this country for accusing members of the Israeli Defense Force of a heinous crime,” Reiser said. And that kind of thinking has trickled down through the bureaucracy: Paul said that speaking up on issues related to Israel “can be a career killer.”
“I was shocked when I saw how differently, even at the lowest levels of the government, US officials treated Israel,” said Sarah Harrison, who coordinated with the State Department on Leahy issues related to Israel from 2018 to 2021 as a former Department of Defense attorney. “I’ve seen officers not even look at a case and say, ‘No, we’re not cutting off assistance to Israel.’”
Paul said that allegations often haven’t moved forward against Israeli units due to the objections of the Bureau of Near East Affairs and the US embassy in Jerusalem.
And Harrison said that she recalled incidents in which officials had testimony and video recordings that would in other cases constitute credible evidence, but still would not cut off aid. Instead, the department spent months trying to get information from Israel about its intelligence on the incidents, the perpetrator’s intent, and the kind of crimes they were charged with, if any. Though US officials consult with partner governments on Leahy matters, Harrison said the degree to which they do so with Israel is “extreme” and well beyond what is required by the law.
“The US is trying to make sure Israel has every opportunity to undermine the allegation because the US is loath to cut off assistance to Israel,” Harrison said. “It’s a completely different standard.”
Has Israel committed gross human rights violations?
Foreign policy experts say there is credible evidence that Israel has committed gross human rights violations that should have required the US to restrict assistance under the Leahy Law, both before and during the current Gaza War.
In one 2022 case, a UN investigation found that Israeli forces killed Shireen Abu Akleh, a Palestinian American journalist who worked for Al Jazeera, while she was covering a raid on the Jenin refugee camp in the West Bank and was wearing a blue vest that read “press.” Immediately following her killing, Israeli officials argued that she had been “filming and working for a media outlet amidst armed Palestinians” and may have been killed by stray Palestinian fire, something that those on the scene rebutted. Israel later admitted that she was likely killed by Israeli fire, but ruled her death accidental and never charged the soldiers involved.
“To me, that was a case in which the Leahy Law should probably have been applied,” Rieser said. “No credible or thorough investigation was ever done by either our government or the Israeli government, but there is other information compiled by nongovernmental organizations that directly contradicts the assertion that the shooter acted in self-defense.”
Paul described another 2021 case in which the NGO Defense for Children International Palestine brought to the State Department’s attention the alleged rape of a 13-year-old boy in an Israeli prison. He said it was “brought into the Leahy forum, was reviewed, was thought to be potentially credible, and was referred to the government of Israel.” The next day, he said the IDF went into the organization’s offices, took its computers, and declared it a terrorist entity.
As for Israel’s current war in Gaza, it might be difficult to argue the country’s bombing strategy runs afoul of the Leahy Law, which “wasn’t originally conceived as a vehicle for responding to large bombing campaigns,” Rieser said. “But that’s not to say that some of what’s occurring in Gaza would not trigger the Leahy Law.”
He cited the International Criminal Court complaint accusing Israel of committing war crimes against journalists covering the conflict in the Palestinian territories. One journalist killed by Israeli fire in Lebanon, Reuters reporter Issam Abdallah, was explicitly targeted, Reporters Without Borders argues in its forensic analysis of the attack. Israel has claimed that it was responding to an anti-tank missile fired by the Iranian-backed militant group Hezbollah, which is designated by many countries as a terrorist organization, suspecting a “terrorist infiltration into Israeli territory” from Lebanon, only to later find out journalists had been harmed.
But Reporters Without Borders says that Abdallah and his colleagues were out in the open, not embedded with combatants, with their equipment, clothing, and vehicle clearly marked as “press,” and that an Israeli helicopter had flown over them twice in the hour prior to the attack, meaning that Israeli forces had time to identify them as journalists.
Paul said that other examples of extrajudicial killings under the Leahy Law could be the two women killed in a Gaza church by an Israeli sniper earlier this week and the killing of the Israeli hostages who were shot by the IDF, shirtless and waving a white flag. Israel has denied involvement in the church killings, but has since acknowledged that the hostage killings were against its rules of engagement and announced that the responsible soldiers would face disciplinary procedures.
What it would mean if Israel were actually held accountable
The State Department did not respond to a request for comment as to whether it is evaluating some of these incidents as potential gross human rights violations or how many allegations the Leahy forum on Israel is currently considering. Harrison recalled “dozens” of open allegations against Israel detailed on a spreadsheet while she was in government, when it was unusual for any country, even others receiving large amounts of US aid, to have more than a few.
But if the State Department were to acknowledge gross human rights violations committed by Israel, Rieser said it would “demonstrate that the law applies to everyone and that no country is immune from the law when it comes to US assistance for their security forces.”
“I think it would be very significant if the administration finally were to make clear that our aid is not unconditional — that if you commit those types of crimes there’s a consequence,” he said. “Why shouldn’t we say that? We say that to other countries.”
Harrison said that doing so wouldn’t necessarily cause Israel to change its strategy in Gaza, since it can just ensure that any unit prohibited from receiving US assistance is being funded through its coffers instead.
“But it still sends a message politically that we’re not willing to tolerate this kind of egregious behavior,” she said.
That’s not only important for the protection of human rights on the ground, but also for US credibility globally. As the international community grows louder in its condemnations of Israel’s war, the Biden administration has tried to salvage some credibility by ramping up its critiques of Israel’s tactics. That’s included urging Israel to exercise more care for civilian life and pushing it to end the hostilities “as quickly as possible,” if not before the end of the year. But that has so far appeared to have little operational impact on Israel and on the humanitarian situation in Gaza, which is only deteriorating further in the absence of sufficient food, water, sanitation, electricity, communications, and medical services.
“I think there is an increasing urgency to the demands coming out of the Biden administration to Israel, not because we suddenly care about Palestinian lives, but because this is doing damage to US interests,” Paul said. “There’s no incentive for Israel to listen for as long as we are expediting as many weapons as we possibly can.”