Israel and the Leahy Law

The Hamas October 7 terrorist attack on Israel, and Israel’s response to it, have focused attention on the role of U.S. security assistance in Gaza. United States law requires foreign nations, including Israel, to comply with international human rights standards and international humanitarian law to receive U.S. security assistance. The best known of these laws, the “Leahy law,” mandates that U.S. security assistance may not be provided to units of foreign security forces that are alleged to have committed gross violations of human rights.

For seven and a half years, I served as director of the State Department office that leads Leahy vetting of foreign security units. I have seen how even and fair application of the Leahy law is key to U.S. foreign policy and credibility abroad. But when it comes to Israel — the story so far is about a lack of application.

U.S. State Department spokespersons assert that the department complies with the Leahy law via “ongoing processes,” and that treatment of Israel under the Leahy law is the same as for any other country.

Both assertions are incorrect.

For Israel, Noncompliance with the Leahy Law

The decades-old Leahy law is one of the most important tools regarding security assistance and human rights. It bars the United States from providing assistance to foreign security units that have committed gross violations of human rights such as torture, enforced disappearances, extrajudicial killing, or rape.

Due to the difficulty of tracing unit-level recipients of large amounts of U.S. security assistance to some countries, including Israel, in 2019 Congress added the following measure to the Leahy law, Section 620M of the Foreign Assistance Act:

If assistance to a foreign security force is provided in a manner in which the recipient unit or units cannot be identified prior to the transfer of assistance, the Secretary of State shall regularly provide a list of units prohibited from receiving assistance pursuant to this section to the recipient government and . . . such assistance shall only be made available subject to a written agreement that the recipient government will comply with such prohibition.

The State Department has never delivered a list of ineligible Israeli units to the government of Israel. Not once.

A Complex Process That Doesn’t Work

Israel receives large quantities of untraceable assistance. In an attempt to develop the required list of ineligible Israeli security force units, the State Department established the so-called “Israel Leahy Vetting Forum” (ILVF), which first met in 2020. Department bureaus and Embassy Jerusalem spent months before that negotiating standard operating procedures (SOPs), the text of which has not been published, for the ILVF. The SOPs created a unique, complex, time-consuming, high-level Leahy process. In over four years, the ILVF process has failed to approve the identification of a single ineligible Israeli unit.

There are similar processes for other countries where assistance cannot be traced. But unlike the ILVF, those processes are informal, performed virtually at the expert/working level, and most importantly — they work. Unlike the ILVF, they have resulted in agreed-upon lists of ineligible units.

The ILVF is an entirely different beast. While preliminary work happens virtually at the expert/working level, the ILVF requires periodic in-person meetings at a higher level, slowing the process. Each succeeding step of the process often involves even higher, senior-level department and Embassy Jerusalem approvals, which further slow the process.

The IVLF SOPs require that a determination that any Israeli unit is Leahy-ineligible rests with the Deputy Secretary of State. This is true for no other country in the world. Such determinations are routinely made at the working level, by experts versed in the Leahy law and knowledgeable about the foreign security units in question. Disputes are resolved at those same levels; few even rise to the office director level. During my tenure as an office director, not a single Leahy ineligibility determination in the approximately 200,000 cases my office vetted annually worldwide went above my level for decision.

But even before all this, before a case even goes to the Deputy Secretary for a decision, ILVF SOPs require that formal requests be made to the government of Israel for information about allegations against any unit. Again, this is true for no other country in the world. This requires drafting, clearing, and delivering a written demarche to Israel’s Foreign Ministry, a process that takes weeks at best, often months. After that, it often takes as long as three months for the government of Israel to answer the request. And after receiving Israel’s answer, the case returns to the ILVF for yet another in-person meeting.

Israel Leahy Vetting — In Actual Practice

Department officials insist that Israeli units are subject to the same vetting standards as units from any other country. Maybe in theory. But in practice, that’s simply not true.

According to the Leahy law, a unit is ineligible for U.S. security assistance if there is “credible information” that it has committed a gross violation of human rights. The credible information standard is intentionally low, due to the difficulty of getting information from victims and witnesses, foreign government efforts to cover up misconduct, and the importance of making sure assistance does not go to human rights violators. As the State Department’s own training guidance makes clear, the credible information standard does not require proof beyond a reasonable doubt, nor clear and convincing evidence, nor evidence that would be admissible in court. The key is that the information “should be deserving of confidence as a basis for decision-making.”

However, in actual ILVF practice, the standard for ineligibility is almost impossibly high. Information that for any other country would without question result in ineligibility is insufficient for Israeli security force units.

Political considerations, including the possibility of criticism from a foreign government, are not relevant to Leahy law eligibility decisions. But in actual practice, some ILVF members include concern about criticism from the government of Israel as a factor in determining whether a unit is ineligible and deciding which cases to send to higher levels for action.

Ratifying Israeli Decisions in Old Cases Instead of Complying with the Law

Instead of complying with the Leahy law by providing Israel with a list of ineligible units, Secretary of State Antony Blinken recently determined that four Israeli units had committed gross violations of human rights but that Israel had taken corrective action sufficient to remediate the violations, rendering those units eligible for assistance. However, all four supposed “determinations” merely ratified previous Israeli government decisions that units had engaged in misconduct, but that the perpetrators had been held accountable. All four cases involved years-old incidents, none of them in Gaza.

Moreover, the supposed corrective action in two of those cases was insufficient to meet the Leahy Law remediation standard as it is applied in other countries. Both cases involved extrajudicial killings of Palestinians by Israeli security forces, and in each case, the perpetrators were subject to little or no incarceration. In one case, the perpetrator received only three months of community service. For any other country, a claim of remediation involving no incarceration for an extrajudicial killing would have been rejected out of hand at the working level, and would never have advanced beyond that.

In a fifth case, Secretary Blinken in effect conceded that the unit had committed a gross violation of human rights, but determined that the unit nevertheless remains indefinitely eligible for assistance while the department engages with the government of Israel “on identifying a path to effective remediation for this unit.” This language appears nowhere in the Leahy law; it appears invented to avoid finding this Israeli unit ineligible. For any other country, a unit found to have committed a violation is immediately ineligible until remediation is complete. Remediation most frequently does not occur, and when it does occur it generally takes a long time. Immediate ineligibility provides an incentive for foreign governments to take remedial action and prevents assistance from flowing to units that have committed gross violations of human rights when governments delay or refuse to engage in remediation.

That fifth unit is the IDF’s notorious Netzah Yehuda Battalion. In January 2022, Netzah Yehuda members detained without any apparent legal basis a 78 year-old American citizen of Palestinian origin, Omar Asad, bound him, gagged him, and left him on the ground at a construction site. When soldiers came back to check on Asad an hour later, he was dead of a stress-induced heart attack.

In the two and a half years since Asad’s death, no member of Netzah Yehuda has been criminally charged, though the Israeli military did impose disciplinary measures, dismissing two officers and reprimanding a battalion commander. In any other country, such administrative measures would be deemed inadequate for remediation, especially for the death of a U.S. citizen. When news broke that Netzah Yehuda was being considered for ineligibility, Israeli Prime Minister Benjamin Netanyahu expressed outrage and vowed to oppose application of the law. There is almost no chance that Israel will “identify a path to effective remediation” after inaction for two and a half years, and after Prime Minister Netanyahu’s public stance.

The bottom line on Secretary Blinken’s actions is this: there are no ineligible Israeli units, and therefore no list to Israel. Even a unit responsible for the death of an American is eligible for assistance. As long as this remains the status quo, the department remains in non-compliance with the law.

A Time for Leadership

The complex, delay-ridden ILVF process is much to blame for the State Department’s failure to comply with the Leahy law in the case of Israel. The underlying culprit is lack of political will.

The department’s non-compliance is likely due to fear of criticism from Israel, and the far-fetched notion that finding Israeli security force units ineligible will somehow affect unrelated multiparty negotiations for a ceasefire and release of hostages.

The Constitution requires the President to “take Care that the Laws be faithfully executed.” This is a time for leadership at the department’s highest levels. Department leaders should direct that the ILVF quickly produce a list of ineligible Israeli security force units, including Netzah Yehuda and units for which there is credible information that they have committed violations in Gaza and elsewhere. Embassy Jerusalem should then immediately present the list to Israel, and, in light of Prime Minister Netanyahu’s comments, seek renewed assurances that Israel will respect U.S. law.

IMAGE: U.S. Secretary of State Antony Blinken appears during a House Foreign Affairs Committee hearing on Capitol Hill on May 22, 2024, in Washington, D.C. (Photo by Andrew Harnik via Getty Images)