Two months into the war, Ukraine is relying heavily on international support in its efforts to resist Russian aggression. The United States, and a number of its European allies, have provided significant amounts of assistance to Ukraine. Since President Biden entered office, the United States has committed more than $4 billion in security assistance, $3.8 billion of which was committed in the last two months alone. The administration has asked for an additional $33 billion from Congress to keep this security assistance going. Out of that $33 billion, $20.4 billion would be for security and military assistance and security cooperation efforts.
U.S. assistance has been critical to Ukraine’s defense and will be going forward. Most of this assistance comes from the Department of State and the Department of Defense. It takes the form of Javelin anti-armor weapons and systems, which can be used by individual Ukrainian soldiers to destroy Russian tanks. It includes Stinger anti-aircraft systems that can target Russian aircraft. New assistance announced by the White House on April 13 includes artillery systems and rounds as well as armored personnel carriers and one of the latest rounds of assistance “includes enough artillery systems to equip five battalions.” Under programs in place for many years, U.S. security assistance also incorporates training of Ukrainian forces. Some of those forces have recently returned to Ukraine after months of training with U.S. Special Operations Command on patrol craft operations, communications, and maintenance.
While provision of U.S. security assistance to other countries is of course guided by the Executive branch’s foreign policy and national security objectives, Congress also enacts laws that direct assistance in certain ways and aim to ensure such assistance is not used for purposes that Congress deems unfit. With respect to Ukraine in particular, Congress has tried to create safeguards to prevent U.S. security assistance from going to recipients that have concerning reputations. For example, in the recently passed Department of Defense Appropriations Act, 2022, Congress prohibited the use of funds appropriated under the act from being used to provide arms, training or other assistance to Ukraine’s Azov Battalion, a National Guard unit with a history of far right-wing ties.
In addition to unit- or country-specific restrictions, there are more broadly applicable laws that apply everywhere the United States may wish to furnish assistance. Most notably, key U.S. domestic laws that restrict U.S. assistance to foreign security forces—including Ukrainian forces— if they have committed gross violations of human rights, are known colloquially as the Leahy laws. While the vast preponderance of criminal allegations in the conflict are leveled at Russian forces, Ukraine’s actions have and will continue to come under scrutiny as well, and questions about whether U.S. assistance is being properly used will invariably arise. This moment provides a useful opportunity to review how the Leahy laws operate and the ways in which they provide a measure of assurance about where U.S. security assistance ends up.
What are the Leahy Laws?
The Leahy laws are two distinct but similar statutes under Title 10 (Section 362) and Title 22 (Section 2378d) that respectively prohibit Defense Department and State Department assistance to a unit of a foreign security force when there is “credible” information that the unit committed a “gross violation of human rights” (their commonly-known name is a reference to the senator who championed the laws, Senator Patrick Leahy (D-VT)). Sen. Leahy was motivated to place conditions on U.S. security assistance due to widely-reported atrocities by U.S. security partners in Latin America. As the United States continues to send substantial amounts of military assistance to Ukrainian forces, both departments will have to assess unit eligibility under these laws.
The State Department’s Leahy law applies to assistance furnished under the Foreign Assistance Act and the Arms Export Control Act. For example, the State Department has authority under the Foreign Assistance Act to “drawdown” arms, equipment, and supplies from Defense Department inventories. The State Department Leahy law applies to this drawdown authority, which the Biden administration is using to provide assistance to Ukraine. Under the drawdown authority, the President can authorize the transfer of articles and services already in the federal government’s possession in cases of unforeseen emergencies. The administration has authorized nine drawdowns of Defense Department inventories to send equipment to Ukraine since August 2021. As for the Defense Department Leahy law, it applies to “amounts made available to the Department of Defense” if used for “training, equipment, or other assistance.” The term “other assistance” is a catch-all category. Notably, neither of the Leahy laws apply to direct sales of weapons or equipment where the recipient covers the cost – even where a U.S. government license is required – as those transactions are not considered by the departments to be “assistance.”
The question of what constitutes “gross violations of human rights” is central to the question of whether the Leahy laws restrict assistance in any particular case. Successive administrations have interpreted the term to include, most commonly, extrajudicial killings, rape under the color of law, torture or cruel, inhuman, or degrading treatment or punishment, and the flagrant denial of the right to life, liberty, or the security of person. If the conduct in question occurred during war time and was lawful under international humanitarian law – as would be the case with, for example, the intentional battlefield killing of uniformed enemy combatants – then it is not considered a gross violation of human rights. The departments’ interpretative approach draws from the definition of “gross violations of internationally recognized human rights” in Section 502B(d)(1) of the Foreign Assistance Act.
The other major question in determining the application of the Leahy laws is whether there is “credible information” of a gross violation of human rights. The world “credible” implies, and the departments apply, a lower evidentiary bar than, for example, the “beyond a reasonable doubt” standard required for a criminal conviction in a U.S. court of law. In summarizing the considerations that it weighs in determining the “credibility” of both the source of an allegation and the allegation itself, the departments take into account whether the source has a known political agenda, whether there is corroborating information, any available contradictory information, any record that suggests a pattern of abuse in the past, and the level of detail in the allegation. A description of factors the departments look to in order to assess credibility can be found here. There are justified criticisms for the irregular application of this standard, including inconsistency in application depending on the country or priority of leadership.
The Pentagon and State Department apply the Leahy laws by assessing the eligibility of each unit to receive new assistance – a process colloquially described as “Leahy vetting.” The State Department conducts all vetting for both departments. The unit to receive assistance is usually vetted first in the unit’s home country by the U.S. Embassy and then again at the State Department’s Bureau of Democracy, Human Rights, and Labor (DRL). Units are vetted by running the name of the unit and name of the commander against a database of credible allegations of gross violation of human rights maintained and populated by the State Department. This database is referred to as “INVESTc.” Adequate access to this database is still an issue for DOD officials. State officials also review open source and classified information to determine if a credible allegation exists that is not in the database. If a unit is determined to be tainted by credible information of a gross violation of human rights, the relevant department must withhold assistance from it unless an exception applies.
A recent amendment to the Department of State Leahy law adds additional layers of requirements for the department. When State Department assistance is provided to a foreign security force and the recipient units cannot be identified prior to the transfer of the assistance (this is typically seen with U.S. partner countries like Egypt or Israel), the Secretary of State must regularly provide a list of units prohibited from receiving assistance to the recipient government and to Congress. By December 2022, the State Department must have in place written agreements with such recipient governments committing to compliance with potential prohibitions on specific units. If no agreement is in place by the statutory deadline, the law prohibits such assistance, unless of course the recipient unit is identified. If the recipient country implements the agreement and restricts assistance from going to a prohibited unit on the State Department list, the State Department is required, to the maximum extent practicable, to assist the foreign government in bringing the responsible members of the unit to justice.
Finally, Leahy vetters must also determine what constitutes a “unit” for the purposes of the restrictions. While this seems straightforward, implementation can be challenging: when a military’s leadership is credibly alleged to have been involved in a gross violation of human rights, limiting the restriction to implicated units creates significant ambiguities about which will be deemed tainted. Government officials sometimes also struggle to define the units to which perpetrators belong and the departments can find it difficult to track when members of tainted units move to units that are not tainted. (The right outcome in that circumstance is that both units are considered tainted until appropriate remediation measures occur.)
Even if the prohibition applies, the Leahy laws have some flexibility. If there is credible information that a unit committed gross violations of human rights, the Leahy laws nonetheless will permit assistance to that unit if it has been remediated, meaning the government with jurisdiction has taken “appropriate remediation measures” with respect to the unit. This generally means that the specific perpetrators of the alleged gross violation of human rights that has tainted the unit are held accountable in a court of law or equivalent administrative tribunal. In addition, a unit that the departments consider to be “new” or “fundamentally different” from the unit that committed the gross violation of human rights are not restricted from receiving assistance. The Defense Security Cooperation University has published the departments’ joint policy on remediation here, which explains those assessments and standards in more detail.
The remediation exception is, in practice, sometimes a difficult standard to meet. The departments must determine that a foreign state conducted a credible process that will hold or has held perpetrators to account. Gathering the relevant information and analyzing legal documents to understand charges and sentencing can take time. Sometimes foreign governments want to hold perpetrators to account, but do not have the evidence to bring them to court (this is especially common in cases of credible allegations of rape in which the victim cannot or will not testify).
The Pentagon’s Leahy law offers more flexibility than the State Department’s. State’s law contains only the remediation exception, while the DOD version also has humanitarian and national emergencies exceptions. The DOD law also provides a waiver, exercisable by the Secretary of Defense “after consultation with the Secretary of State” if “extraordinary circumstances” (as interpreted by the Defense Department) require such a waiver. This might appear to be a free pass for tainted units to receive DOD assistance, but use of the waiver would almost certainly attract intense congressional scrutiny of which the Defense Department tends to steer clear.
Just like the State Department’s “coup restriction,” which I recently wrote about, the State Leahy law can also restrict some Defense Department Title 10 authorities. The authorities in question are Sections 331 and 333 of Chapter 16, which govern DOD support for conduct of operations and building partner capacity. If the Department of Defense wanted to provide assistance to a unit of a foreign security force under Section 331 or 333 while that unit is restricted under the State Leahy law, a non-remediation exception under the DOD Leahy law (e.g., the humanitarian exception) would be ineffective.
The laws are certainly not beyond criticism. U.S. officials sometimes grumble that the Leahy laws are blunt tools that do not allow sufficient room to weigh competing priorities when determining a unit’s eligibility for assistance. On the flip side, human rights advocates sometimes complain that the law’s application to assistance only – and not arms sales – makes it too narrow.
Reporting requirements to Congress on application of the exceptions helps to ensure some transparency, though the Executive branch and Congress do not often make these reports public. While the State Department’s DRL Bureau does publish an annual list of security force units denied assistance under the Leahy law in the relevant calendar year, this is not a complete list of units considered “off-limits.” Not all would-be tainted units are considered for assistance each year and some notoriously bad units are simply never considered.
Alleged Incidents in Ukraine
Credible reports of violations by Ukrainian forces have been sparse in this war against Russian aggression, but there have been a handful of alleged incidents that could implicate U.S. assistance to the units concerned:
- On 31 March, Human Rights Watch detailed potential violations by Ukrainian forces against Russian prisoners of war. Videos had surfaced online just days before that seemed to show Ukrainian forces shooting captured Russian forces in the leg. As Human Rights Watch notes, Olexiy Arestovych, an advisor to President Zelensky, posted on Telegram the same evening to remind Ukrainian forces that abuse of prisoners of war constitutes a war crime and that they must treat prisoners “in accordance with the Geneva Conventions, no matter what personal emotional motives you have.” Arestovych also gave notice in a video that there would be an investigation into the incident and individuals would be punished if abuse indeed occurred. If Ukrainian officials are conducting an investigation for potential prosecution, the unit may possibly receive U.S. assistance if the Departments of State and Defense deem the process is sufficiently credible under the joint remediation policy.
- In another video, as reported by the New York Times, Ukrainian forces appear to execute detained Russian forces in a village west of Kyiv. Executing prisoners is a war crime and a gross violation of human rights. The footage shows an area seven miles outside of Bucha, where Ukrainian forces and journalists had recently discovered hundreds of bodies, many of them with their hands bound, likely killed by retreating Russian forces.
- Reports on Twitter in early March by the Kyiv Independent appeared to summarize statements by the command of Ukraine’s Special Operations Forces that indicated an intention to refuse quarter to Russian soldiers due to Russia’s alleged violations. What was described in the initial tweet (which was deleted) and a subsequent correction tweet are legally prohibited actions. Here is the text of the tweets, posted on March 2, 2022 by the Kyiv Independent:
- First Tweet: Ukrainian special forces will no longer capture Russian artillerymen. The command of Ukraine’s Special Operations Forces has warned that it will kill captured Russian artillerymen in response to their “brutal shelling” of civilians and cities.
- Second Tweet: Correction: Ukrainian special forces will no longer capture Russian artillerymen. The command of Ukraine’s Special Operations Forces has warned that it will not spare Russian artillerymen in response to their “brutal shelling” of civilians and cities.
There are also reports of abuses by volunteer militias that predate the February 24 invasion. Because the Leahy laws only apply to state security forces, they would not capture those actions. Although, as noted above, Congress has passed a specific prohibition targeting one of these groups – the Azov battalion (now formally integrated into the Ukrainian security forces).
Given that even the most professionalized forces, including the U.S. military, commit violations of international humanitarian law, the sparse record of alleged violations tells a relatively positive story about Ukrainian discipline in the face of Russian aggression and alleged violations. Similarly, the swift announcements by Ukrainian officials of remedial action at the first sign of potential violations suggests a healthy respect for the rule of law, even during times of war, which is one of the objectives that the Leahy laws promote. As the war drags on and coverage deepens, it is of course possible that new accounts could emerge.
There are at least three strong incentives for Ukraine’s compliance with international humanitarian and human rights law: (1) to distinguish itself from Moscow, given widespread allegations of Russian atrocities; (2) to be seen upholding a commitment to the rule of law as a democratic state fighting for principles that include respect for human rights; and (3) from a more utilitarian perspective, to keep western aid flowing (a cut-off of U.S. assistance to Ukraine would be disastrous). This combination of practical and principled reasons for human rights compliance will continue to be paramount.
The U.S. Congress determined decades ago that it should be the foreign policy of the United States to not give security assistance to units of foreign security forces around the world that commit certain terrible crimes. For all their imperfections, the Leahy laws advance that objective, both by the restrictions they impose and the normative signal they send to security partners, including Ukraine.