While covering an Israel Defense Forces (IDF) raid in the West Bank town of Jenin and wearing a protective vest that read “press” on the front and back, Palestinian-American journalist Shireen Abu Akleh was killed by the IDF on May 11, 2022. Her killing—recently back in the news due to a purported DOJ investigation and Al-Jazeera’s referral of her case file to the International Criminal Court—raises questions about how the United States applies the Leahy laws to Israel.
The State Department and Department of Defense (DoD) Leahy laws—two distinct but similar statutes under Title 10 (Section 362) and Title 22 (Section 2378d)—prohibit U.S. security assistance to a unit of a foreign security force where there is “credible information that the unit has committed a gross violation of human rights” (GVHR). The question of what constitutes a GVHR is central to the question of whether the Leahy laws restrict assistance in any particular case. Successive administrations have interpreted the term to include 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.
The other major question in determining whether the Leahy laws apply is whether there is “credible information” that a GVHR has been committed. The State Department reviews a range of criteria to assess whether allegations are “credible”— a lower standard than what is required for civil or criminal liability—such as the reliability of the source, the level of detail in the allegation, whether publicly available and classified information confirms these details, and the extent to which the security unit in question has engaged in patterns of past abuse.
If the State Department finds there is credible information that a GVHR has been committed, the entire unit of the foreign security force is prohibited from receiving U.S. security assistance. However, per the Department of State and Department of Defense joint remediation policy, assistance can resume if the perpetrators are held accountable in a court of law or equivalent administrative tribunal, which must result in sentencing that is appropriate and proportional to the misconduct committed.
A change in the law in December 2020 now requires the Secretary of State to regularly provide to recipient governments a list of units prohibited from receiving U.S. assistance when units cannot be identified prior to the transfer of assistance. Because Israel receives nearly $4 billion in security assistance from the United States each year, it is difficult to determine precisely which Israeli security force units will receive U.S. assistance, although all IDF units are presumed to benefit from some form of assistance. Under the new law, the State Department will have to carefully assess the credibility of all allegations against IDF units and regularly provide Israel a list of units it determines are prohibited from receiving U.S. assistance. This is a welcome move, considering publicly available information indicates that units of Israeli security forces have never been prohibited from receiving U.S. security assistance, despite repeated allegations that Israeli units have committed GVHRs.
Application of the Leahy laws does not require multiple incidents; one GVHR would be sufficient to trigger the prohibition of assistance. In Abu Akleh’s case, the facts certainly appear to constitute credible information of a GVHR, either an extrajudicial killing or the flagrant denial of her right to life. The Israeli military itself concluded that it was likely an Israeli soldier who fired the bullet that killed her. An investigation by Forensic Architecture, a University of London-based research agency, found that: (1) Shireen and her colleagues were clearly identifiable as journalists, (2) the Israeli military shot at them with the intention to kill, (3) Shireen and those around her posed no threat to the IDF, and (4) Shireen was deliberately denied first aid after being shot. Credible news organizations like the New York Times and the Washington Post also conducted their own investigations.
Yet today, six months later, not a single person has been held accountable for her killing. Despite calls for an independent and credible investigation by her family, The Committee to Protect Journalists, and high-level U.S. officials, including in separate letters led by Senators Menendez and Van Hollen, Israel has declined to pursue a criminal investigation. The IDF concluded, after its own internal review, that no criminal investigation would be necessary because her killing was a mistake, calling it a “devastating incident.”
Dissatisfied, Senator Patrick Leahy himself issued a pointed statement in September questioning the IDF findings, the acquiescence of the State Department, and the absence of an independent, credible investigation. He asked critical questions that are still left unanswered, such as: “what steps has the State Department taken to determine whether the Leahy Law applies in this case?” As he stated, “whether her killing was intentional, reckless, or a tragic mistake, there must be accountability. And if it was intentional, and if no one is held accountable, then the Leahy Law must be applied.”
Abu Akleh’s killing is not the only incident that requires review under the Leahy laws. There are dozens of seemingly credible allegations that the IDF has committed GVHRs against Palestinians. For example, in Hebron in 2016 Israeli soldier Elor Azaria was caught on video extrajudicially killing Palestinian Abdel Fattah al-Sharif when he was already incapacitated, Azaria only served nine-months in prison, a punishment that is disproportionate to the misconduct committed. In 2018, IDF soldiers also shot unarmed Palestinian protestors, an action for which no one was publicly held accountable.
One prominent unit allegedly responsible for a pattern of violence against Palestinians is the “Netzach Yehuda” battalion, part of the Kfir brigade. This unit is responsible for the killing of another U.S. citizen, 78-year-old Omar Asad, who died from a heart attack after being mistreated and left out in the cold during a raid near Ramallah last January. Two IDF officers were removed from duty and a third was disciplined for this incident, and the soldiers responsible may stand trial. Under the joint remediation policy between the Department of State and Defense, removal from a unit is not sufficient to meet the joint remediation standard (outlined above), which, if met, would allow application of an exception to the prohibition of assistance. The State Department issued a statement at the time that they expect a criminal investigation to take place, and U.S. lawmakers called on the Biden administration to launch a probe. Democracy for the Arab World Now (DAWN) recently called for application of the Leahy laws to Netzach Yehuda.
As far as whether there is sufficient accountability for alleged violations by Israeli soldiers who harm Palestinian people, livelihood, and property, only 2 percent of all complaints made by Palestinians after being allegedly harmed by Israeli soldiers in 2019–2020 resulted in the prosecution of suspects, according to Israeli human rights group Yesh Din.
Publicly available information indicates that assistance to an Israeli military unit has never been cut off under the Leahy laws. But assistance has been cut off in other countries, including Burkina Faso, Iraq, Kenya, Libya and Mexico. For every GVHR allegation made against the IDF, the State Department appears to have declined to determine that any were credible and committed with impunity.
Several factors militate against applying the Leahy laws to Israel. As a general rule, U.S. officials historically have been reluctant to take steps that could be perceived as being critical of Israel – much less restricting assistance to it – due to the politically sensitive nature of the relationship. Generally, to implement the Leahy laws, the State Department also relies heavily on the U.S. partner to share information from their internal reviews on a matter involving a unit. The State Department seeks this information, and relies on it heavily, to contradict public reporting by news organizations or civil society. This is done even if there is reason to believe the information may not be impartial considering it tends to favor the security forces in question.
The Biden administration should ensure the Leahy laws are applied as intended to security assistance to Israel and address any biases in vetting processes. The State Department already has taken a significant step this year by establishing a portal on its website to accept allegations of GVHRs from civil society and the public, which helps to comply with a provision in the law that requires the Secretary of State to facilitate receipt of information from individuals and organizations outside the U.S. government. Officials are also working to establish practices under the new statutory requirements in the State Department’s Leahy law to regularly provide lists to countries when units cannot be identified prior to transfer of assistance.
Congress, for its part, will need to continue applying pressure on the executive branch to implement and strengthen the Leahy laws. With Senator Leahy retiring at the end of the year, other members of Congress will need to take the initiative on addressing specific weaknesses in the laws and ensuring they are applied consistently to all countries, including Israel.