End Israeli exceptionalism under US law

Today’s ruling by the International Court of Justice (ICJ) that it is “plausible” that Israel has engaged in acts of genocide in Gaza underscores the need to review current U.S. policy on shipping arms to that nation that are being used in attacks on the territory.  This should mean abandoning the practice of giving Israel special treatment when it comes to enforcement of existing U.S. human rights laws regarding arms transfers. But will it?

“Israeli exceptionalism” in U.S. military assistance has long been an open secret. For decades, violations of human rights standards and U.S. laws by Israel have not been called out, in part due to a sense that the annual “Camp David” aid allotment to Israel — now at $3.3 billion a year — was inviolable. 

That may be about to change in light of the ICJ decision. 

The war has killed 25,000 people and displaced a majority of Gazans while depriving them of basic necessities like food and access to medical care, all in the three months since the attack by Hamas. Israel has used U.S.-supplied aircraft, missiles, bombs and artillery to carry out much of the slaughter and destruction. 

But something unprecedented happened last week: Sen. Bernie Sanders (I-Vt.) forced a roll call vote on the question of whether the State Department should be required to assess whether Israel is misusing U.S. weapons in the commission of disproportionate or indiscriminate attacks in Gaza. Never before has the Senate (or House) even considered the question of requiring increased scrutiny by the State Department over U.S. taxpayer funded military aid to Israel. 

Israel should be held to the same standards as other U.S. arms recipients. But when it comes to Israel, the U.S. State and Defense Departments have repeatedly flouted laws that Congress passed in an effort to ensure U.S. taxpayers are not complicit in serious human rights violations by the recipient states. 

A major case in point is the virtual exemption of Israel from the Leahy Laws, named after their author, former Sen. Patrick Leahy (D-Vt.). The laws require the State Department and Defense Department to cut off transfers of U.S. military aid to “any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.” Despite allegations of numerous murders in the West Bank by Israeli security forces, including the killing of an American Palestinian journalist clearly indicated as working for the press, the U.S. government has never found a single one to trigger the law. 

As Tim Reiser, a longtime Leahy staffer who spearheaded the laws told Defense News, “There is a file of correspondence that Sen. Leahy sent to various administrations over a period of more than two decades raising concerns about the failure of the administration — and it’s been both Republican and Democrat — to apply the Leahy laws with respect to Israel.”   

Recently, The Guardian outlined how the State Department set up a special process for Israel that essentially circumvents the Leahy Law. Unlike for other countries, where a credible allegation of abuse by a unit of the military, police or other national security forces is enough to get that unit barred from U.S. assistance until the matter is adjudicated, for Israel a consensus had to exist among all of the relevant State Department bureaus. Any one office could prevent an Israeli unit from being sanctioned for credible allegations of rape, extrajudicial execution, indiscriminate bombings, or other major violations. On top of this, the government of Israel was given 90 days to respond to and rebut any allegations — a privilege not extended to any other government.

This extraordinary situation was codified in a 2021 agreement signed by a senior State Department official and the Israeli ambassador to the United States. In noting Israel’s “robust, independent and effective legal system, including its military justice system,” the agreement seemingly gives Israel a ‘get out of jail free’ pass when it comes to Leahy Law enforcement. The leading Israeli human rights organization, B’Tselem underscored the problem with this approach: “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.”

Given well-documented reports about how the State Department applied — or failed to apply — the Leahy Law and then seemingly changed the law on its own accord, the Senate Foreign Relations Committee must require the State Department Legal Advisor to explain its reasoning and legal advice around implementation of this 25-year old law with respect to Israel. 

Many voices decry the coming demise of American democracy if Donald Trump is reelected, pointing to his role in undermining trust in basic pillars of our system of self government — education, journalism, the courts and the Congress. But for administration after administration to ignore a basic tenet of U.S. law when it comes to Israel — despite years of protest from the powerful chair of the Senate Appropriations Committee (Sen. Leahy) — that also undermines our democracy.

At a minimum, the Senate should hold public hearings on Israel’s use of U.S. weaponry in Gaza, and the applicability of relevant U.S. laws. Failing to do so risks making both Congress and the State Department virtually irrelevant on foreign policy, even as it erodes our democracy by demonstrating the department’s blatant disregard of congressional intent. 

Lora Lumpe is the CEO of the Quincy Institute for Responsible Statecraft. William D. Hartung is a senior research fellow at the Institute.