Revealed:
review of internal state department documents shows special mechanisms
have been used to shield Israel from US human rights laws
Thu 18 Jan 2024Last modified on Thu 18 Jan 2024 14.48 EST
Top US officials quietly
reviewed more than a dozen incidents of alleged gross violations of
human rights by Israeli security forces since 2020, but have gone to
great lengths to preserve continued access to US weapons for the units
responsible for the alleged violations, contributing – former US
officials say – to the sense of impunity with which Israel has approached its war in Gaza.
An
estimated 24,000 Palestinians, mostly women and children, have been
killed by Israeli forces since Hamas’s 7 October attack on Israel, a
death toll that has spurred condemnation of the Israeli prime minister,
Benjamin Netanyahu, and the US president, Joe Biden, who has been
criticized for failing to rein in Israel’s “indiscriminate” bombing of
Gaza.
An
investigation by the Guardian, which was based on a review of internal
state department documents and interviews with people familiar with
sensitive internal deliberations, reveals how special mechanisms have
been used over the last few years to shield Israel from US human rights
laws, even as other allies’ military units who receive US support –
including, sources say, Ukraine – have privately been sanctioned and
faced consequences for committing human rights violations.
Photograph: Ismael Mohamad/UPI/Rex/Shutterstock
State department officials have in effect been able to circumvent the US law that is meant to prevent US complicity in human rights violations by foreign military units – the 1990s-era Leahy law,
named after the now retired Vermont senator Patrick Leahy – because,
former officials say, extraordinary internal state department policies
have been put in place that show extreme deference to the Israeli
government. No such special arrangements exist for any other US ally.
The
lack of enforcement of the Leahy law in Israel appears especially
troubling to its namesake. In a statement to the Guardian, the former
Vermont senator said the purpose of the Leahy law was to shield the US
from culpability for gross violations of human rights by foreign
security forces that receive US aid and deter future violations.
“But
the law has not been applied consistently, and what we have seen in the
West Bank and Gaza is a stark example of that. Over many years I urged
successive US administrations to apply the law there, but it has not
happened,” Leahy said.
Among the incidents that have been reviewed since 2020 were the killing of Shireen Abu Akleh, the Palestinian-American journalist who was shot by Israeli forces in May 2022; the death of Omar Assad,
a 78-year-old Palestinian-American, who died in January 2022 after
being held in Israeli custody; and the alleged extrajudicial killing of Ahmad Abdu, a 25-year-old who was shot at dawn by Israeli forces in May 2021 while sitting in his car.
A
mural of slain of Al Jazeera journalist Shireen Abu Akleh, who was shot
dead during an Israeli military raid in the West Bank town of Jenin,
adorns a wall in Gaza City on 15 May 2022. Photograph: Adel Hana/AP
A report in Haaretz
describes how, after opening fire on the car, Israeli troops pulled
Abdu out, dragged him a few meters down the road, then left his bloody
body in the road and departed.
In the review into Abdu’s death, which reports suggest may
have been a case of mistaken identity, internal state department
documents note that Israel declined to respond to questions by state
department officials about the shooting.
In
Omar Assad’s case, the Israeli military said last June it was not
bringing criminal charges against soldiers who were involved in his
death, even after he was alleged to have been dragged from a car, bound
and blindfolded after being stopped at a checkpoint. The army said the
soldiers would not face prosecution because their actions could not
directly be linked to Assad’s death from cardiac arrest, the Associated Press reported. Assad, a US citizen, had spent about 40 years in the midwest before retiring home to the West Bank in 2009.
People mourn during the funeral of Omar Assad, in the occupied West Bank on 13 January 2022. Photograph: Jaafar Ashtiyeh/AFP via Getty Images
Internal
state department documents show that the incidents were reviewed under a
little-known process established by the state department in 2020 known
as the Israel Leahy Vetting Forum (ILVF),
in which representatives from relevant state department bureaus examine
reports of alleged human rights violations by Israeli forces.
Under the Leahy law, for most countries and in most cases, a foreign military unit is granted US military
assistance or training after it is vetted by the state department for
any reported human rights violations. The law prohibits the Department
of State and the Department of Defense from providing funds, assistance
or training to foreign security force units where there is “credible
information” that the forces have committed a gross violation of human
rights.
In the case of at least three countries – Israel, Ukraine and Egypt – the scale of foreign assistance is so great that US
military assistance can be difficult to track, and the US often has no
knowledge of where specific weapons end up or how they are used.
Senator Patrick Leahy during a hearing on Capitol hill in Washington in March 2022. Photograph: Kent Nishimura/LA Times via Getty Images
To
close what was seen as a loophole in the law, Congress updated the
process in 2019, by putting a system in place that prohibits the foreign
government from providing US assistance to any unit of its security
forces that the US identifies as being ineligible under the Leahy law
due to a gross violation of human rights. The state department set up
working groups to examine those countries where military assistance is
considered “untraceable”.
But
people familiar with the process who spoke on the condition of
anonymity, said Israel had benefited from extraordinary policies inside
the ILVF, details of which have not previously been reported.
“Nobody
said it but everyone knew the rules were different for Israel. No one
will ever admit that, but it’s the truth,” said one former state
department official.
First, under the Israel
process, all of the parties involved in an ILVF review must reach a
consensus that a potential violation has occurred, and must then be
approved by the deputy secretary of state, according to three people
familiar with internal deliberations. In theory, a single bureau could
raise a potential violation to the deputy secretary of state level as
part of a “split memo”, in which other bureaus would air their
disagreement, but no such thing has occurred. Among the groups that are
involved in the process are the bureau of near eastern affairs, the
bureau of democracy, human rights and labor, the bureau of
political-military affairs and the US embassy in Jerusalem.
A dog walks near Israeli battle tanks deployed at a position along the border with the Gaza Strip. Photograph: Jack Guez/AFP/Getty Images
For
other countries, former officials said, such a Leahy law determination
is made by state department staff, does not require the consensus of all
parties, and would not require notification of and approval by the secretary of state or deputy.
Second,
Israel must be consulted about alleged human rights violations that are
under review and has 90 days to respond to claims, creating what some
former officials said were significant delays. No other country’s
government must be consulted under state department procedures, former
officials said.
“Part of the reason why the
ILVF has never worked is that the process is so gummed up with delay
mechanisms that exist for no other country,” the former state department
official said.
A state department
spokesperson said details of internal department deliberations could not
be discussed, but that there was “no requirement that consensus among
ILVF participants be reached in order to move forward with an assessment
under the Leahy law”.
“The department
conducts Leahy vetting consistent with the law in the case of all
countries receiving applicable assistance, including Israel,” the
spokesperson added.
In response to questions
about why consultation with Israel was considered part of the state
department’s standard practice in all Israel Leahy vetting cases, the
spokesperson said the department “routinely consults foreign governments
on Leahy vetting matters, not just Israel”.
‘A broad impunity’
Some
experts see a connection between the US’s hands-off approach to Israel
on human rights violations and Israel’s conduct in the war in Gaza.
Israel receives $3.8bn in military assistance annually and the Biden
administration twice bypassed Congress last month to deliver an
additional $250m in weapons. Progressive Democrats led by Bernie
Sanders, the independent Vermont senator, have called on aid to Israel
being conditioned on the US investigating potential human rights
violations by Israel in its war in Gaza.
“I
think Israel feels a broad impunity when it comes to consequences within
the US for its actions,” said Josh Paul, a former state department
official who has emerged as a vocal critic of the Biden
administration policies on Israel. “We may say that Israel should abide
by international humanitarian law. We may say that it should not expand
settlements. But when it comes to actual consequences, there aren’t any
and I think that has given Israel at senior government levels the sense
that it is immune.”
Former state department official Josh Paul speaks at a rally calling for a ceasefire outside the White House in December. Photograph: Brendan Smialowski/AFP/Getty Images
Paul
also sees the lack of Leahy law enforcement having an effect on how
Israeli units are conducting themselves. By not pressing Israel on Leahy
violations and not designating individual Israeli units as gross
violators of human rights, Paul said the US has enabled a culture of
impunity at the unit level, which he said “we see on the ground in Gaza
today” in the actions of some Israeli soldiers, including videos that have circulated showing Israeli soldiers ransacking private homes in Gaza, destroying civilian property and using racist language.
Nowhere is the US’s double standard on Israel more apparent than in a 2021 agreement
that was signed by a senior state department official, Jessica Lewis,
who serves as assistant secretary for political affairs, and the Israel
ambassador to the US, Michael Herzog.
The two-page 2021 agreement,
which has received little media attention, formalized changes in the
Leahy law and included a statement about how Israel has a “robust,
independent and effective legal system, including its military justice
system”. The US signed more than two dozen similar agreements with other
countries at that time – including Greece, Jordan, Georgia, Ukraine and Latvia – but none contain language endorsing the other countries’ military justice systems.
Jessica Lewis appears before the Senate foreign relations committee in Washington in September. Photograph: Rod Lamkey/CNP/Abaca Press via Alamy
Former
officials who spoke to the Guardian said they did not know how the
language came to be included in the US-Israel agreement, but speculated
it was probably added by Israel.
The
Guardian requested a comment on the matter from the Israeli embassy in
Washington, including on the provenance of the statement contained in
the agreement, but did not receive a response.
Tim Rieser,
a longtime senior adviser to Leahy, who helped write the Leahy law in
the 1990s, said the inclusion of the language was probably intended to
help Israel avoid scrutiny under the Leahy law, because
it suggests as a matter of fact that Israel’s military justice system
is independent enough to address any alleged human rights violations.
“The
language added to the US-Israel agreement, without any consultation
with Congress, is factually inaccurate and wrongly suggests that the
[Leahy] Law doesn’t need to be applied,” Rieser said.
Few organizations have been as critical of Israel’s military justice system than B’Tselem, an Israeli human rights group.
“The
military law enforcement system is used by Israel as a whitewash
mechanism whose purpose is to block any criticism of Israel’s and the
army’s policies in the territories. The percentage of convictions of
soldiers is close to zero, even for the most serious violations,” said
Dror Sadot, B’Tselem spokesperson.
B’Tselem
billboards in the West Bank saying ‘Mr President, this is apartheid’
ahead of Joe Biden’s arrival in the region in 2022. Photograph: Mahmoud Illean/AP
Paul,
the former state department official who resigned from his post in
protest against the Biden administration’s “blind support for one side”,
said he had long argued internally that the US ought not to consider
Israel’s military justice system as a “responsible functional justice
system” when it comes to abuses.
“I think the
track record is really one of slaps on the wrist, temporary demotions,
and short-term suspensions even for really serious violations,” said
Paul.
Paul told the Guardian “numerous
people”, including himself, raised concerns over the years inside the
state department that the Leahy process “is not working” and that gross
violations of human rights were occurring “without accountability”.
Indeed, no Israeli unit has ever gotten to the point of being sanctioned
under the Leahy law even though credible allegations of gross human
rights violations exist.
Paul declined to name
former colleagues and did not want to discuss specific cases that were
reviewed by the forum, but said that typically, staff concerns about
Israeli human rights violations were ultimately “killed” at what he
described as the front office level or bureau leadership-level within
several of the bureaus involved in the forum, including the Bureau of
Human Rights (DRL).
Other cases that were
reviewed by the ILVF, but where US officials ultimately declined to
reach consensus and take action include: the killing of Sanad Salem al-Harbad, a Bedouin man who was allegedly shot twice in the back by Israeli police in March 2022; the killing of Ahmad Jamil Fahd,
who was allegedly shot by police and left to bleed to death by a unit
of undercover Israeli agents; the alleged assault in Israeli police
custody of journalist Givara Budeiri; the 2020 killing of a 32-year-old unarmed autistic man Eyad al-Hallaq by Israeli police in East Jerusalem; the killing of a 15-year-old boy named Mohammed Hamayel; and the shooting of 16-year-old Palestinian Jana Kiswani.
People
hold photographs of Eyad al-Hallaq outside the district court of
Jerusalem in July after the court verdict acquitting the policeman who
killed al-Hallaq. Photograph: Mostafa Alkharouf/Anadolu Agency via Getty Images
For advocates of the Leahy law, like Rieser, the lack of accountability for the killing of Abu Akleh,
the prominent Al Jazeera journalist, is particularly galling, and has
been the subject of criticism by senior Democrats on Capitol Hill.
“If
the US had been willing to apply the Leahy law in Israel the IDF would
presumably have been more inclined to hold their soldiers accountable,
which would have helped deter killings of civilians like Shireen Abu
Akleh and many others, and what we are seeing today,” Rieser said. “Or
else they would have faced a cut-off of US aid, which would have been a
real black mark and a thorn in US-Israel relations.”
Abu
Akleh was killed by a bullet that hit the back of her head while
covering an Israeli operation in the West Bank city of Jenin. A CNN investigation
found that there was no active combat or Palestinian militants near Abu
Akleh in the moments before she was killed, and footage obtained by the
network corroborated witness testimony that suggested Israeli forces
had taken aim at the journalist.
The Israel
Defence Forces (IDF) apologized for the killing last year but the
military advocate general’s office in Israel said in a statement that it
did not intend to pursue criminal charges or prosecutions of any of the
soldiers involved.
Mourners carry the coffin of the Al Jazeera journalist Shireen Abu Akleh during the funeral procession in Jerusalem. Photograph: Eyal Warshavsky/Sopa Images/LightRocket via Getty Images
In
a July 2023 letter to the secretary of state, Antony Blinken, four
Democratic senators – Chris Van Hollen, Leahy (now retired), Chris
Murphy and Dick Durbin – criticized the Biden administration for not
following through on earlier calls for an “independent, credible
investigation”. In questions to the administration, the senators asked
what, if any, steps the United States Security Coordinator (USSC), who
conducted an independent forensic analysis of the bullet that killed Abu
Akleh, took to try to establish who specifically shot her and why.
Echoing
statements by the IDF, the USCC released a short statement that there
was “no reason to believe that this was intentional but rather the
result of tragic circumstances”. The state department has declined to
publicly release a report into Abu Akleh’s death by the USSC
coordinator, Lt Gen Michael Fenzel. Citing a senior US official, Axios reported last year that Fenzel’s report did not include any new findings or conclusions.
When the Leahy law was first passed in 1997, it was designed with Central America and Colombia in mind.
The US was providing hundreds of millions of dollars in military aid to
combat narco-traffickers and insurgents, but human rights groups were
documenting serious human rights abuses by Colombian military and police
units. While the state department does not publicly announce when it
targets specific foreign units, experts say they believe it has been
effective in Central America, Colombia, Nepal and other countries.
Israel, they say, is the outlier.
‘A disturbing number of reports’
Rieser
said there was a long history of correspondence – from the George W
Bush administration through to the Biden administration – between Leahy
and successive secretaries of state seeking answers to why the Leahy law
was not being implemented in cases involving killings of Palestinians.
In
a May 2002 letter to then secretary Colin Powell, who served in the
Bush administration, Leahy raised concerns that the Leahy law was not
being applied to the Middle East.
In a January
2009 letter to then secretary Condoleezza Rice, Leahy expressed
incredulity that the state department was “unaware” of a single incident
involving the IDF that would trigger the Leahy law.
A
month later, Leahy sent a new letter to then secretary Hillary Clinton,
who was serving under the Obama administration. He attached copies of
correspondence he had sent her predecessor.
A
February 2016 letter from Leahy to the then secretary of state, John
Kerry, cited a “disturbing number of reports of possible gross
violations of human rights by security forces in Israel and Egypt”,
including “extrajudicial killings by Israeli military and police”.
Patrick
Leahy’s letters to six secretaries of state – Colin Powell, Condoleezza
Rice, Hillary Clinton, John Kerry, Rex Tillerson and Mike Pompeo –
about the application of the Leahy law to the IDF yielded no results. Composite: AP, Reuters, Getty Images
An
October 2017 letter to Rex Tillerson, who served as secretary of state
under Donald Trump, queried what steps the US embassy in Israel was
taking to ensure the Leahy law was being applied to the IDF.
Later,
in a May 2018 letter from Leahy to the then secretary of state, Mike
Pompeo, who served in the Trump administration, Leahy sought a Leahy law
review of the shooting deaths of about 100 Palestinian protesters from
Gaza who had been killed since March of that year. “If
credible information exists to trigger the Leahy law regarding any
Israeli unit and the Government of Israel is not taking effective steps
to bring the individuals responsible to justice, such a unit is no
longer eligible for US assistance,” Leahy wrote.
In
a follow-up letter in September, Leahy pushed for a “clear answer”,
including whether the administration had ever sought the identity of the
IDF units who shot the Palestinians. In another letter, sent by Leahy
in December, he questioned how many times the US embassy had presented
Israel with evidence of gross violations of human rights, and how many
times those individuals were barred from receiving US assistance.
Several
other letters from Leahy refer to gross violations of human rights by
the IDF. None of the cases ever led to a unit being punished.