The Leahy Laws: why Biden’s promise to Israel is illegal

US Democratic presidential candidate Joe Biden (Kyle Mazza - Anadolu Agency)

Zarefah Baroud

Middle East Monitor  /  September 30, 2020

While co-hosting an interview for the Palestine Chronicle, I asked Professor Richard Falk, a former UN Special Rapporteur on Palestinian human rights, about his thoughts on Kamala Harris’ promise to maintain unconditional aid to Israel.

Harris is the Democratic Party vice presidential candidate in November’s election.

“I am disappointed of course by the Harris-Biden positions on Israel,” replied Falk. “I would have hoped for something closer to what Bernie Sanders was saying as a way of shifting the policies closer to what I think a majority of American people would support and want. Again, it illustrates this disparity between the will of the people and the will of the governing elites… I don’t think we can be very hopeful. Possibly on the annexation issue… but I am not very optimistic that there will be any changes.”

Once more, the only option that this presidential election cycle gives American voters is to choose between the lesser of two evils. It is particularly difficult to find any differences between the two candidates, sitting President Donald Trump and Joe Biden, especially their attitudes towards the Israeli occupation and American responsibility for this as the Israel Defence Forces’ largest sponsor.

Notably, the “progressive” Biden does not have a discourse which is more developed than his conservative opponent. In July, he ordered the removal of any reference to the “Israeli occupation” from his campaign platform, which contradicts international recognition of Israel’s presence in the Palestinians territories as a belligerent occupation.

Progressive Americans have organised against Trump for his frequent violations of constitutional law and lack of human rights standards, domestically and internationally. Many, though, have missed that Biden has already committed himself to campaign promises which guarantee not only a lack of regard for international law, but also that he is ready to violate US law.

According to Tony Blinken, Joe Biden’s senior advisor, “He [Biden] would not tie military assistance to Israel to any political decisions that it makes. Period. Full stop. He said it; he’s committed to it.”

Of course, Biden’s running mate Harris has reaffirmed the sentiments communicated by Blinken. She said during an online event on 26 August that, “Joe [Biden] has made it clear he will not tie security assistance to any political decisions that Israel makes, and I couldn’t agree more.”

These various statements should have struck many as more problematic than they did. After all, Biden and Harris are pledging to break US law for Israel. In 1998, the first of what are known as the Leahy Laws were established by Vermont Senator Patrick Leahy. The first institution of this resides in the Foreign Assistance Act (FAA) of 1961 in Section 620M, and the second in the Department of Defence appropriations bill/the Consolidated Appropriations Act of 2014.

Essentially, the law states that foreign military assistance must be suspended or discontinued if there exists credible information that the recipient foreign security force unit has committed a gross human rights violation. A “gross human rights violation” is defined by the FAA as: “Cruel, inhumane, 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 denials of the right to life, liberty, or the security of person.”

Since 1946, the American government has provided billions in military aid to Israel, as well billions in loan guarantees to help Israel develop its qualitative military edge which it uses almost exclusively to torment and slaughter Palestinians in the Gaza Strip and the West Bank. Specific infractions include Israeli prisons holding around 700 Palestinian children, over 75 per cent of whom report being tortured and physically abused; the use of white phosphorus on civilian targets in Gaza; and the bullets that have murdered and disabled thousands of peaceful Palestinian demonstrators.

In theory, a single violation is enough to have military aid revoked from the violating unit — in this case Israel — as per the Leahy Laws. The most reputable human rights organisations have reported on and recorded details of Israel’s violations extensively. However, aid packages to Israel have been increased annually, with the help of Joe Biden. Only a single publically known investigation has ever taken place against Israel, in 2006, even though the author of the law, Senator Leahy, requested that the State Department investigate Israeli human rights violations in 2016.

In 2017, and again in 2019, Minnesota Representative Betty McCollum drafted a bill, now classified under H.R. 2407: Promoting Human Rights for Palestinian Children Living Under Israeli Military Occupation Act. The bill employs the Leahy Laws to argue for an inclusion into US legislation of the issue of Palestinian youth forced to stand before Israel military courts, and therefore revoke aid from Israeli military and police units which carry out such practices.

In August of this year, Representative McCollum similarly released H.R. 8050: Israeli Annexation Non-Recognition Act, which vows to revoke aid from Israel that could be used to directly or indirectly assist the annexation of Palestinian land in the West Bank.

This legislation has garnered more and more support from representatives around the country, including Alexandria Ocasio Cortez (NY-14), Rashida Tlaib (MI-13), and Ilhan Omar (MN-05), reserving a space for Palestine in American politics. Unfortunately, though, the conversation amongst election candidates remains uninformed, trivial, and dangerous.

Regardless of who prevails in November, both presidential candidates undoubtedly have an “unshakeable” commitment to the apartheid regime that is Israel and must be held to account according to US law at the very least. This is not about electability, but complicity in crimes against humanity (and possibly war crimes), and American voters have every right to insist that they raise their standards.

Zarefah Baroud has a Master’s degree in Policy Studies from the University of Washington, where she researched American aid programmes to the Israeli military