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How do Leahy Laws apply to U.S. support for Israel.


As Palestinians in Gaza live with daily bombardments, mass displacement and widespread hunger, there are growing calls for the U.S. to stop or condition military aid and weapons supplies to Israel over its conduct in this war. Those calls include a number of Democrats in the House and Senate. Now, there are laws that are supposed to stop military aid and weapons flowing to units and foreign security forces accused of committing gross human rights abuses. One is laid out in what's known as the Leahy laws. To understand how these laws work, we turn to Charles Blaha. He's the former director of the State Department's Office of Security and Human Rights. It plays a key role in deciding if weapons should be provided to an ally. I began our conversation by asking Blaha to explain how the Leahy laws apply to U.S. support for Israel.

CHARLES BLAHA: We give Israel $3.3 billion of foreign military financing every year, and that is subject to the Leahy laws. Arms transfers that are sales are not because those are deemed to be commercial transactions, not assistance. The State Department in 2020 set up a special forum for Israel to try to identify units that have committed gross violations of human rights. And to date, there has not yet been a finding by the State Department that any Israeli unit has ever committed a gross violation of human rights.

FADEL: Why is there a special forum on Israel? I mean, for example, Egypt gets a lot of military aid.

BLAHA: There's a similar process for Egypt, but it's not as formal or as elaborate or as high level. The Israel Leahy Vetting Forum has its own special rules, and it has resulted, as I said, in no units being identified.

FADEL: So are you saying it doesn't work?

BLAHA: In my opinion, it hasn't worked to date.

FADEL: Now, Patrick Leahy, the Vermont senator who this law is named for, says the U.S. is breaking this law by continuing to provide Israel with military aid during this war in Gaza. Is the U.S. running afoul of this law?

BLAHA: We haven't managed to tell Israel any units to which assistance should not go. In my opinion, there are probably dozens of units that should not be the beneficiaries of U.S. assistance.

FADEL: And how did you arrive at this opinion?

BLAHA: Well, by examining the information that the Israel Leahy Vetting Forum received about the conduct of some Israeli units.

FADEL: So give me some examples, if you don't mind.

BLAHA: The most frequent things that we look at when implementing the Leahy law would be extrajudicial killings, torture, enforced disappearances, and rape as a weapon of war. Those are the most common things.

FADEL: And those are things that were examined, and you couldn't trace anything back to specific units.

BLAHA: In some cases, yes, we did trace those back to specific units.

FADEL: And then...

BLAHA: The Leahy law does not apply where there has been accountability for those things. And some of them, there has been - in most of them, no.

FADEL: Most of the U.S.-made weapons that go to Israel aren't foreign aid. They're commercial transactions. How are the rules for those transactions different?

BLAHA: Well, they're governed by what we call the conventional arms transfer policy. In the conventional arms transfer policy, the Biden administration issued human rights and international humanitarian law figured more prominently than in any prior arms transfer policy. Unlike Leahy, human rights concerns can be overridden by other factors. So, for example, a foreign partner's need for self-defense.

FADEL: In this case, would that be what's happening?

BLAHA: My guess is yes. But the administration has consistently said that we're going to send arms to Israel with no conditions. That, in my opinion, should change. One of the things that the conventional arms transfer policy said that no previous arms transfer policy has said is that if it's more likely than not that a transfer would risk or facilitate misuse, that the transfer should be prohibited. And examples of misuse would be serious violations of human rights, if there's a risk of that, if there's a risk of violations of international humanitarian law. There shouldn't be transfers if there's a risk that the weapons would be used in acts of violence against children. And what we know is that thousands of children have been killed in Gaza so far and thousands more seriously wounded.

FADEL: Israel has given the State Department written assurances that it has not violated international or U.S. laws with U.S.-supplied weapons in Gaza. This was in response to a memo from Biden asking for assurances. Is their statement enough to say, OK, well, the Israeli government said it's following the laws - military aid should continue?

BLAHA: Well, that national security memorandum you mentioned requires that the State Department make a determination about whether those assurances are credible. And the State Department is doing that now. One of the things that we would need to look at in terms of whether the assurances are credible is the conduct of Israel so far. And Israel has maintained that its conduct so far hasn't violated international humanitarian law. If Israel is going to maintain the same type of conduct that it has to date, it would be difficult to understand how assurances could be deemed credible. I think that the State Department should publish the assurances that it got from Israel, so the American public can see for itself and decide for itself.

FADEL: Critics will say that the U.S. has one policy for Israel as its ally and different policies for other allies that receive military aid or commercial transfers. Is that fair, to say that?

BLAHA: Well, the State Department has said publicly that the same policy applies to Israel as apply to every other country. In practice, Israel gets special treatment. In practice, arms transfers that, given similar conduct by any other country would not be allowed, are being allowed for Israel. You may recall the Biden administration suspended items that could be used in offensive air-to-ground operations for Saudi Arabia because they were causing civilian casualties. Those civilian casualties are nowhere near the civilian casualties that Israeli air-to-ground operations have caused so far. Yet unconditional transfers of air-to-ground munitions continue.

FADEL: So if you were in charge right now, what would you do?

BLAHA: I would suspend, like we did with Saudi Arabia, transfers of offensive air-to-ground items, especially bombs. And I would suspend transfers of firearms and firearms ammunition because so many innocent civilians have been killed by Israeli Defense Forces using firearms. I would condition lifting of those suspensions on a significant decrease in civilian casualties, and on Israel lifting restrictions on humanitarian assistance.

FADEL: Charles Blaha is the former director of the State Department's Office of Security and Human Rights. Thank you so much for your time.

BLAHA: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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