Introduction to the Leahy Law
The Leahy Law, named after Senator Patrick Leahy, was enacted in 1996 to regulate U.S. military aid following documented human rights violations by the Colombian military and police. These violations were extensively documented by international non-governmental organizations (INGOs), such as Amnesty International, which played a crucial role in bringing them to light and applying international pressure. One key difference between the Leahy law and other forms of human rights legislation at the time was that the Leahy law could be used without restricting aid to an entire country, which the U.S. wanted to avoid. Instead, the Leahy law specifically targets the offending military and/or police units, cutting off strictly their aid. While there are perceived benefits to this approach, there are also significant drawbacks. Individuals may interpret these differently based on their perspectives.
“The term “Leahy law” refers to two statutory provisions prohibiting the U.S. Government from using funds for assistance to units of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights (GVHR). One statutory provision applies to the State Department and the other applies to the Department of Defense (“Leahy Law Fact Sheet - United States Department of State” 2022).”
Both military and police units typically follow the command of individuals far above themselves, and historically, sometimes those commands demand others to commit GVHRs. However, on occasion, there are certainly rogue groups or individuals who operate outside of the parameters put forth, but how can one differentiate between someone following orders and someone acting against them? Of course, investigations can provide these details, however, the foreign government receiving the U.S. military aid can conduct its investigation into the units that committed a GVHR, without U.S. oversight, and can effectively form a conclusion that protects the person giving orders, if that is the case. That is not to say this is what happens, but it certainly can happen, and that indicates flaws in the legislation’s oversight. If you are curious about which of these examples represent the benefits and which represent the drawbacks, that comes down to how you perceive it.
Introduction to the Arms Trade Treaty
The Arms Trade Treaty (ATT) was the first legally binding instrument negotiated by the United Nations to establish common standards for the international transfer of conventional weapons. On April 2, 2013, the ATT was adopted by the UN General Assembly with 156 votes in favor, 3 against, and 22 abstentions. Since the treaty became open for signatures on June 3, 2013, it has amassed 113 state parties[1], 28 signatures that are not yet state parties[2], and 54 states that are yet to join the treaty. Below is an image of a colorized map indicating the status of ATT participation broken down into three categories: State party (navy), signatory (light blue), and signed but no longer intends to become a State party (grey).
It is crucial to mention the connection between the ATT and Leahy law, as ATT was argued to fill certain gaps that the Leahy law failed on, the most prominent being a requirement that “…arms exporters conduct an assessment of the risk that the arms could be used in committing human rights violations, and to take measures to mitigate that risk or halt the transfer if the risk reaches a certain level (Webteam 2013).” Despite the United States originally signing the treaty, they are no longer interested in becoming a member, and therefore technically are not required to abide by the treaty. This is critical to what will be covered later on, which is the Leahy law loophole, and how the Arms Trade Treaty ideally is meant to close that loophole, but will ultimately fail.
The Leahy Law & Foreign Military Financing Loophole
In 2024, the potential effect of Leahy law has little to do with Colombia, instead, its ineffectiveness is being magnified by the Israel-Palestine conflict. The most recent IDF strike which took place on April 2 resulted in the deaths of seven aid workers and only two Israeli officers who played a role in the extrajudicial killing of seven people were dismissed from their positions. According to Reuters, the others (the official number has not been disclosed) were “formally reprimanded”, which is certainly a questionable way for the Israeli military to hold their soldiers accountable for the deliberate killing of seven innocent people without the lawful authority to do so. The Department of Defense’s provision of the Leahy Law includes two exceptions in cases where a unit is accused of committing GVHRs. The first exception, known as ‘remediation,’ allows for remedial action to be taken by the implicated unit to address the human rights violations. This one is technically applicable, as the Israeli military dismissed or formally reprimanded those responsible, and the second exception can also be argued to be applicable. The second exception is in place to provide U.S. equipment if necessary to assist with national security emergencies, which Israel certainly has used to their benefit. Therefore, according to Leahy law, the U.S. can continue to provide weapons to Israel, even if they are in turn supplying the unit responsible for the recent extrajudicial killing of aid workers, all without violating the Leahy law.
The ineffectiveness of Leahy law is also a result of it being effectively ignored, and this is largely in part due to what is referred to as non-traceable assistance, which is the most common case for large military aid packages sent to central government entities (e.g., Israel, Egypt, and Ukraine). In other words, countries like Israel skip the vetting process altogether, as the Israeli government is directly receiving the military aid and then distributing it accordingly, leaving the U.S. blind concerning which units have received the aid.
Non-Traceable Assistance: “The United States often provides security assistance in a manner whereby it is unable to easily identify the specific recipient unit before the assistance is transferred to the foreign government, making it “non-traceable” or “untraceable” (POMED 2023).”
Another layer of this loophole involves Foreign Military Financing (FMF), which is a program directed by the U.S. Department of State that provides grants and loans to foreign governments to purchase U.S. military aid packages. Due to the form of aid provided through FMF, the Leahy law should be applicable and the units receiving the expected aid should be properly vetted, however, the U.S. often considers FMF-financed equipment to be considered non-traceable. This is particularly concerning when we consider that as of February 2023, FMF to Egypt and Israel accounted for $4.6 billion in non-traceable assistance, which was not subjected to vetting (POMED 2023).
The United States & The Arms Trade Treaty
The recent Israel-Palestine conflict has underscored the limitations of both the Leahy Law and the Arms Trade Treaty (ATT). Despite clear evidence of GVHRs by Israeli forces, the United States persists in supporting Israel through the transfer of conventional weapons. The Leahy law is ineffective mainly due to the previously mentioned structure of FMF that practically ignores Leahy law in its entirety, but also because the central government of Israel is the one responsible for the GVHRs, and the units committing these atrocities are largely in part just following orders from the Israeli military and government officials. In terms of ATT, which was seen as a means of closing a loophole that facilitates GVHRs, is now entirely ineffective as long as the U.S. continues to not formally recognize the treaty. If the U.S. had ratified, accepted, approved, or acceded to the treaty, they would be currently in violation of the ATT, and ideally, there would be pressure placed on the U.S. following said violation. Instead, there must be international pressure placed on the U.S. to become a state party under the ATT, but it is rather difficult to attempt to bully or convince the U.S. to do anything it deems unsatisfactory to its perception of national security.
Why Should Anyone Care
While you may not be directly impacted by the results of strategic loopholes created by the United States, many Americans are. If you consider yourself an empathetic person, you should care for the sake of others. This is merely one example of how individuals can create change if they place larger issues that many suffer from above their minor ones. Everyone struggles with the reality of life, whether that is fighting to get out of bed every day to continue a rigorous work routine that you hate, or watching a loved one slowly lose the joy of life as they battle with disease or pain. However, almost everyone on this planet is not only forced to grapple with these realities but are forced to suffer through things those from a first world could hardly imagine. What we take for granted, is our ability as Americans to voice our discontent with certain policies, and the power we have if we can band together to make the world a better place, such as pushing the U.S. as Americans to make the right decision for humanity, which is joining the state party under the ATT and restricting the continuation of conventional weapons to Israel. The Israel-Palestine conflict is often viewed as intractable, with interventions from external parties sometimes exacerbating tensions. However, when Israel’s security is almost entirely dependent on the U.S. and its allies, there is a real solution that can harbor peace between both countries, even if it must be forced, and that requires the U.S. to give Israel an ultimatum.
Israel-Palestine Ultimatum
Israel’s dependence on the U.S. gives the U.S. extensive leverage in the current conflict between Israel and Palestine, and this leverage may be the key to restoring peace in that region. While this proposition likely entails a short-term loss of trust between Israel and the U.S., its larger purpose is worth any interim consequences. The U.S. must first formally agree to the ATT, which puts itself in a position to refuse Israel any further conventional weapons until certain provisions have been agreed to. These provisions would include at the most basic level: Reparations in the form of investment and manpower provided by Israel to help rebuild Gaza, and notably to assist Palestinians with accessing and industrializing the natural gas reserves off the coast of Gaza; Providing an extended economic opportunity to Palestinians through trade and joint Israeli-Palestinian projects; Removing illegal Israeli settlers and Israeli police from the West Bank; Restoring Palestine’s right to import essential goods such as food, water, and fuel without Israeli control. These provisions would ideally be monitored by an international governmental organization (IGO) such as the United Nations, and if the provisions are deemed to be respected by both parties certain restrictions can be alleviated. This potential solution not only serves to strengthen the relationship between Israel and Palestine but also creates the foundation for a more successful future for both countries.
Devil’s Advocate
To offer a contrasting viewpoint, let’s delve into potential flaws within the proposed ultimatum, though I may not necessarily align with these perspectives.
The ultimatum is composed of several assumptions regarding the dynamics between Israel, Palestine, and the United States, raising questions about its feasibility. Israel would likely perceive this ultimatum as a challenge to its sovereignty and national interests, potentially undermining its trust in the United States. History suggests that Israel, historically aligned with U.S. interests in the Middle East, may resist external pressure that compromises its strategic autonomy. The ultimatum also overlooks the potential reactions of Palestinians, assuming compliance without considering Palestine’s historical resistance to external mandates. Rather than encouraging cooperation, these demands may aggravate tensions and prompt retaliatory actions from both sides. The proposed ultimatum also lacks clarity on how the United Nations would enforce compliance, given its limited success in resolving conflicts in the region, such as the ongoing Israel-Lebanon dispute. The feasibility of these proposed provisions is also questionable, as there are concerns about their potential impact on Israel’s security landscape. These concerns are largely rooted in rebuilding Gaza and relinquishing control over parts of the West Bank, which could be perceived as compromising Israel’s defense against extremist organizations like Hamas. Moreover, granting Palestinians unrestricted access to essential goods may inadvertently facilitate the smuggling of dual-use materials, potentially endangering Israeli security.
References:
“Arms Trade Treaty.” n.d. https://legal.un.org/avl/ha/att/att.html.
“Leahy Law Fact Sheet - United States Department of State.” 2022. United States Department of State. December 2, 2022. https://www.state.gov/key-topics-bureau-of-democracy-human-rights-and-labor/human-rights/leahy-law-fact-sheet/.
POMED. 2023. “Fact Sheet – Closing a Leahy Law Loophole: The ‘Duty to Inform’ and Human Rights Vetting for Non-Traceable Assistance - POMED.” March 31, 2023. https://pomed.org/publication/fact-sheet-closing-a-leahy-law-loophole-the-duty-to-inform-and-human-rights-vetting-for-non-traceable-assistance/.
“Treaty Status.” n.d. Treaty Status. https://thearmstradetreaty.org/treaty-status.html?templateId=209883.
Webteam, Web. 2013. “Deconstructing the Leahy Law: Fact Vs Fiction.” Amnesty International USA. July 9, 2013. https://www.amnestyusa.org/updates/deconstructing-the-leahy-law-fact-vs-fiction/.
State parties are defined as: “States that have ratified, accepted, approved or acceded to the treaty”
Not yet state parties are defined as: “States that have signed the treaty but not yet ratified, approved, or accepted it”