It was an interesting coincidence in Washington. On Capitol Hill, after six months of barren political maneuvering, the House of Representatives voted on Saturday in favor of a military and financial aid package to three allies in distress: Ukraine, Israel, and Taiwan. $26 billion were allocated to Israel, which is accustomed to receiving an eighth of that sum annually. Ukraine received even more, $61 billion.
In the context of the demonstrations of support for Israel in the past six months, this is certainly the most tangible; a reminder to anyone in the Middle East who may have toyed with the hope that the special relationship between Washington and Jerusalem was at an end, that the relationship holds and is robust. The "Don’t" doctrine has teeth.
But a day beforehand, we heard that the US was getting close to a decision on whether to penalize an IDF unit suspected of repeatedly breaching human rights. The basis of the punishment is a 27 year-old law, named after its initiator, former senator Patrick Leahy. It mandates the cessation of military aid to foreign security forces if there is credible information that they have engaged in "a gross violation of human rights" (GVHR).
GVHR is not defined in the Leahy Law. The US Department of State says that it applies the definition in the US Foreign Assistance Act of 1961, namely "torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person…" committed "under color of law", that is, committed by people in their capacity as members of a security force.
A far as the US Department of Defense is concerned, the Leahy Law that applies to it states that it may not allocate funding "for any training, equipment, or other assistance for a unit of a foreign security force if the Secretary of Defense has credible information that the unit has committed a gross violation of human rights."
The law need not be applied to a country if "The Secretary of Defense, after consultation with the Secretary of State, determines that the government of such country has taken all necessary corrective steps." An exception may also be granted "if the equipment or other assistance is necessary to assist in disaster relief operations or other humanitarian or national security emergencies."
According to a report on the Axios website by Barak Ravid, the decision has already been made: the unit in question will be penalized.
Not sanctions but law
It is necessary to make an important distinction: cessation of assistance to the Netzah Yehuda battalion, drawn from Israel’s haredi (ultra-Orthodox Jewish) population, which is the unit against which the accusations have been made, will not be a "sanction" as such, but the application of US law. The distinction is important, because sanctions are the result of a political decision. For example, the punishment of Russia for the invasion of Ukraine or of Iran for its nuclear and ballistic programs and its support for terrorism are the result of politics, not law.
The US administration is entitled to impose such sanctions, but it is not obliged to do so as long as Congress has not adopted a law to that effect. In the case of Netzah Yehuda, punishment will be obligatory under the law. To put it another way, not applying the law is not an option.
That is what is difficult for Israeli to take. If the US announces that it is applying the Leahy Law, that will open a new chapter in US-Israel relations. Israel will thereby move from the pantheon to the gallery. It will no longer associated with the select democracies of Western Europe and the Pacific Ocean, and will join the somewhat less select society of Eastern Europe, Latin America, and South East Asia.
The US certainly has solid alliances in these other regions, but the special relationships become a little less special. A country in which part of the military is accused of systematic breaches of human rights is placed under a magnifying glass. It’s like a downgrade of the credit rating, except that human rights have moral, ethical, and political connotations.
Human rights policy’s sharp teeth
The human rights policy of the US does not assume US moral superiority, but the need to being morality into consideration in international relations. Almost fifty years ago, the US adopted legislation obliging its government to report to Congress on the state of human rights in every country in the world. In 1976, the US added the office of Under Secretary for Civilian Security, Democracy, and Human Rights in the State Department.
Many countries react with anger, or contempt, or cynicism, or indifference to the annual Country Reports on Human Rights Practices. They deny that the US has any right to judge them, consider these reports to be interference in their internal affairs, and argue against the very definition of human rights that the US applies. Among these will always be found tyrannies or countries with authoritarian regimes.
In the last annual report, in 2022, almost 25,000 words were devoted to Israel. The report summary states: "Significant human rights issues included credible reports of: unlawful or arbitrary killings; arbitrary or unjust detention, including of Palestinians in Israel and the occupied territories; restrictions on Palestinians residing in Jerusalem including arbitrary or unlawful interference with privacy, family, and home; substantial interference with the freedom of peaceful assembly and association; arbitrary or unlawful interference with privacy; punishment of family members for alleged offenses by a relative; restrictions on freedom of expression and media including censorship; harassment of nongovernmental organizations; violence against asylum seekers and migrants; violence or threats of violence against Palestinians and members of national, racial, or ethnic minority groups; and labor rights abuses against foreign workers and Palestinian workers."
The US has at least two laws that give sharp teeth to its human rights policies. The Leahy Law is one of them. The other is the Magnitsky Act (Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act) of 2012. Sergei Magnitsky was a Russian lawyer who exposed corruption in his country’s political and financial elite, was arrested, and murdered in prison. The law that bears his name penalizes individuals in foreign governments suspected of human rights violations.
From illegitimate to criminal
Claims of violations of human rights by Israel, particularly of Palestinians, have been sounded for half a century. The Carter administration in the 1970s first declared Israeli settlements in the territories "illegitimate". That was the policy until 2019, when the Trump administration reversed it. The Biden administration renewed it two months ago, when Secretary of State Antony Blinken declared that the settlements were "inconsistent with international law."
Close to that time, President Biden signed a presidential order imposing financial sanctions on four Jewish settlers in the West Bank. A week later, the White House issued a National Security Memorandum on the obligation of countries receiving US arms to comply with US and international law.
But in January, the US Senate rejected by a huge majority, 72 to 11, a proposal calling for the freezing of military aid to Israel unless the Department of State reported within 30 days whether Israel was violating human rights in the war in the Gaza Strip. The motion that was defeated rested on US law that allows Congress to hold to account on human rights any country that receives US military aid.
So, within three months, Israel has gone from being a protected zone in which the very idea of examining its adherence to human rights was overthrown, to an uncharted zone in which it is about to be penalized for proven breach of human rights.
At this point, Israel does not need angry or sanctimonious outbursts. Israel needs a well put together strategy for rehabilitating its standing in the eyes of international law. In the absence of such a strategy, the Leahy Law is liable to be just the beginning.
Published by Globes, Israel business news - en.globes.co.il - on April 21, 2024.
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