Washington, DC – Elderly Palestinian American Omar Assad was handcuffed, blindfolded and gagged by Israeli soldiers and left to die in a cold car park.
His fatal detention in January 2022 sparked outrage and calls for accountability in the United States, with advocates urging the American government to apply the country’s own laws to restrict military aid to the Israeli unit that killed the 80-year-old United States citizen.
Israel’s notorious Netzah Yehuda battalion – who had detained Assad – had been accused of other abuses, as well.
But more than two years later, this week, the US announced that it will not apply the Leahy Law, which prohibits assistance to foreign military units that commit abuses, to restrict aid to any Israeli army divisions currently.
“It is outrageous that the secretary of state is breaching US law to continue a long streak of treating Israel as an exception to the law,” said Raed Jarrar, the advocacy director at Democracy for the Arab World Now (DAWN), a think tank in Washington, DC.
Last month, media reports indicated that the US was set to apply the Leahy Law to the Netzah Yehuda battalion, but after strong, public pushback from Israeli leaders, the US appears to have decided against the move.
Here, Al Jazeera looks at the Leahy Law, and how successive US administrations have failed to apply it to Israel.
What is the Leahy Law?
Named after retired US Senator Patrick Leahy, the rules under the Foreign Assistance Act prohibit military assistance to forces engaged in gross violations of human rights.
There are two similar yet specific sets of Leahy regulations for the State Department and the Pentagon, respectively. Hence, the rules are sometimes called the Leahy Laws in plural.
The law allows funding to resume after the foreign country receiving the US aid takes steps to correct the abuses and hold perpetrators accountable.
“Both laws aim to prevent US security assistance from going to foreign forces that we know – that the US knows – have committed gross violations of human rights,” said Sarah Harrison, senior US analyst at the International Crisis Group think tank.
“The idea is that Congress is trying to advance this value of human rights. And at the same time, they’re also trying to advance the value of accountability – getting rid of these cultures of impunity among foreign security forces, which would allow assistance to flow again.”
What are gross violations of human rights?
US law defines gross violations of human rights (GVHR) in broad terms.
“The term ‘gross violations of internationally recognized human rights’ includes torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person,” it reads.
But Jarrar, who has been working on Leahy Law issues for years, said the US Department of State mainly focuses on four types of abuses: extrajudicial killings, torture, rape as a weapon of war and enforced disappearances.
How does it work?
When Washington assesses that there is credible information that a unit in a country that receives US aid has committed gross violations of human rights, it should cut off the forces involved in the abuses.
The US should also inform the foreign government to allow it to bring the perpetrators to justice.
Harrison, a former associate general counsel at the Department of Defense, stressed the application of the law should be automatic. She said media reports that the US was set to impose “sanctions” on Israel’s Netzah Yehuda battalion were off the mark.
US sanctions – such as the penalties that targeted violent Israeli settlers earlier this year – are largely discretionary options at the executive branch’s disposal. Officials, usually in the State Department or Treasury, decide if, when, and on whom sanctions should be applied, within guidelines set by existing laws or executive orders.
However, that executive discretion does not exist with Leahy. The law – if applied properly – would legally compel the secretary of state to enforce it.
Leahy rules require cutting off units that commit gross violations of human rights from US funding. It is not a policy choice, Harrison explained.
“It’s not up for negotiation. It is a binding domestic law on the executive branch,” she told Al Jazeera.
How does the US deal with Leahy Law and Israel?
When it comes to Israel, there is a special Israel Leahy Vetting Forum that looks at allegations of abuse by Israeli forces. Anyone can submit a report for Leahy vetting to the State Department, as DAWN did after the killing of Assad.
But Jarrar said Israel is given special treatment when it comes to Leahy complaints.
The US gives Israel 90 days to respond to inquiries about abuses, according to Jarrar – a timeline not afforded to any other country.
Has the Leahy Law ever been applied to Israel?
No.
Why is Leahy Law in the news?
It all started on April 20, when Axios reported that the US is set to “sanction” the Netzah Yehuda battalion over abuses in the occupied West Bank by applying the Leahy Law to the unit.
How did Israel respond?
Israeli leaders forcefully rejected any measures against their forces. Israeli Defence Minister Yoav Gallant visited troops from the Netzah Yehuda battalion days after the news broke out.
“No one in the world can teach us about values and morals,” Gallant was quoted by Israeli media outlets as saying. “We are at the beginning of the war against seven armies and terrorist organisations. The security apparatus is behind you.”
For his part, war cabinet minister Benny Gantz – who appears to have close relations with the Biden administration – warned that any US move against Israeli forces “sets a dangerous precedent and conveys the wrong message to our shared enemies during war time”.
“I intend on acting to have this decision changed,” he wrote in a social media post.
The @StateDept should suspend U.S. foreign military assistance to the Netzah Yehuda Battalion immediately & investigate all units receiving U.S. military funding in light of extensive evidence of widespread & systematic rights violations, said DAWN today. https://t.co/fioHr8vqrj
— DAWN MENA (@DAWNmenaorg) April 30, 2024
What has the US said?
The State Department said on Monday that it found that five Israeli army units were responsible for gross violations of human rights, but that it had decided against applying the Leahy Law to them.
“Four of these units have effectively remediated these violations, which is what we expect partners to do,” US spokesperson Vedant Patel told reporters, adding that Washington is in discussions with Israel about the fifth unit, believed to be Netzah Yehuda.
All the abuses in question were committed before the outbreak of the war on Gaza last year, Patel said.
The US administration did not name the units or identify the measures taken to address their abuses, raising questions about its approach to Israel.
Al Jazeera has reached out to the State Department with a request for comment.
What are remedial measures?
Harrison said the law sets a high bar to resume funding for units involved in gross violations of human rights.
“You have to investigate, you have to prosecute and you have to sentence,” she said of bringing forces that commit abuses to justice.
Israel rarely prosecutes its own soldiers. For example, no one was charged in the killing of Palestinian American Omar Assad.
How does the decision violate the Leahy Law?
The Biden administration is engaging in the process backwards, said Harrison. The law requires suspending funding to units engaged in gross violations of human rights, then engaging with the foreign government on accountability.
But the State Department is allowing aid to flow to at least one Israeli unit that has not taken adequate remedial steps to address violations.
“If it’s in fact true that the department has known about these cases for years and assistance has continued to flow while they do the remediation process – and no exception has been sent to Congress – they are in violation of the Leahy Law,” Harrison told Al Jazeera.
For his part, Jarrar said the Biden administration is not only violating the law but its own lax 90-day system that it set up for Israel as it continues funding to a unit whose unremedied abuses it acknowledged.
“They have made the determination that the unit has been engaged in gross violations and that the host country has failed to remediate,” Jarrar told Al Jazeera.
“And they still have not cut off that unit. That is an admission that the secretary of state is violating US law. He is breaching our law for political considerations.”
Why does it matter?
Israel receives at least $3.8bn in US military aid annually. And Biden signed off on $14bn in additional aid to the US ally last month.
While withholding funding from a single battalion may appear inconsequential, Jarrar said the move would have had a major effect.
“It does send a message that Israel is not the most moral army in the world, that Israel does not have a legitimate system to hold itself accountable,” Jarrar said.
“It would send shockwaves through Washington and Tel Aviv because that means Israel has been added to the club of human rights abusers. It means that Israel would have to deal with a new reality that the blank cheque policy is over, and that there is a small hole in the dam, but the dam is breaking.”
On a practical level, Jarrar said isolating one army unit from US funding would also allow greater transparency, oversight and accountability on US aid to Israel.
What about Gaza?
Israel’s war on Gaza, which has killed 34,500 Palestinians, has unleashed a flood of allegations of human rights abuses and war crimes.
Both Harrison and Jarrar said the Leahy Law should apply to Israeli forces in Gaza.
While war conduct is largely examined through international humanitarian law, Harrison said gross human rights violations often overlap with violations of the laws of war.
She said abuses including executing civilians, sexual violence and torture, for example, are both gross violations of human rights and breaches of international humanitarian law
“If a crime occurs during war that’s also a gross violation of human rights, it will still trigger the Leahy Law,” Harrison said.
