WHAT IS THE US LEAHY LAW?

After State Dept. human rights staffer reportedly quits over apparent Gaza policy Citing Leahy Law.

BY SHEMI ESQUIRE

The Leahy Law

According to media reports, following reported resignation of a US State department official, reference has been made to the Leahy Laws and Foreign Assistance Act.

Annelle Sheline, 38, stepped down after a year as a foreign affairs officer in the Bureau of Democracy, Human Rights and Labor.

In an interview, attributed to her, it is reported that Sheline, said that her focus had been promoting human rights in the Middle East and North Africa, work that was complicated.. …and reportedly adding that “I wasn’t able to really do my job anymore,” ….“Trying to advocate for human rights just became impossible.”

Given the ubiquitous media reference, it is helpful to provide an overview as to what the Leahy Law covers from a purely legal perspective?

It should be emphasised that the focus here is purely on the legal perspective, following the growing global interest and scrutiny over the Gaza humanitarian crisis. The purpose of this article is to provide an overview, of the Leahy Laws and Foreign Assistance Act. Act.

What is the Leahy Law?

In brief, the “Leahy Law” is a U.S. human rights law named for its primary sponsor, Senator Patrick Leahy (D-Vt.) First approved by Congress in 1997, it prohibits the United States from providing equipment and training to a foreign military unit or individual suspected of committing “gross human rights violations.” Such violations include extrajudicial killing, rape, torture, and forced disappearances.

Named after its Sponsor, Senator, Leahy, the law, first approved in 1997, by the US congress, prohibits provision of equipment and assistance to a foreign military or individuals suspected of gross human rights violations. The state department describes the applicable provisions as ‘applying to the State Department and the other applies to the Department of Defense’. The DOD law was made permanent under the foreign assistance act ‘section 620M of the Foreign Assistance Act of 1961, 22 U.S.C. 2378d’.

According to the law, ‘The U.S. government considers torture, extrajudicial killing, enforced disappearance, and rape under color of law as Gross Violations of Human Rights when implementing the Leahy law. Incidents are examined on a fact-specific basis. The State Department Leahy law includes an exception permitting resumption of assistance to a unit if the Secretary of State determines and reports to Congress that the government of the country is taking effective steps to bring the responsible members of the security forces unit to justice.

The State Department must vet any foreign military unit to ensure it has a clean human rights record before it can receive U.S. assistance. The vetting process covers official history of abuse and independent reporting by legitimate NGOs’.

The importance of the law, is made even more critical because if any assistance or equipment is offered to an entity or individual associated with gross violations of human rights, then that could implicate the US and deem it open to allegations of complicity with such an actor. This by implication could potentially, according to general observations, raise concerns whether this was consistent or compatible with the US’s own values and if it may directly or indirectly impact US interests or personnel or violations of international law.

Practical implementation

According to the state department, the law is implemented through active vetting of the applicant of military equipment or assistance. The department explains that, ‘When an individual security force member is nominated for U.S. assistance, the Department vets that individual as well as his or her unit. Vetting begins in the unit’s home country, where the U.S. embassy conducts consular, political, and other security and human rights checks. Most often, an additional review is conducted by analysts at the Department of State in Washington, D.C. The State Department evaluates and assesses available information about the human rights records of the unit and the individual, reviewing a full spectrum of open source and classified records’.

Notwithstanding the above, assistance can be reviewed and reinstatement under certain circumstances. This could be under the exception clause of the Leahy law where the US defence and state departments, after a process conclude that the exception is applicable such as a determination that, ‘that the government of that country has taken, or is taking, effective measures to bring those responsible to justice.

This could be via ‘impartial and thorough investigations; credible judicial or administrative adjudications; and appropriate and proportional sentencing’.

Relevant text of the Leahy Law

'22 U.S. Code § 2378d - Limitation on assistance to security forces

(a)In general

No assistance shall be furnished under this chapter or the Arms Export Control Act [22 U.S.C. 2751 et seq.] 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.

(b)Exception

The prohibition in subsection (a) shall not apply if the Secretary determines and reports to the appropriate congressional committees that the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice.

(c)Duty to inform

(1)If assistance to a foreign security force is provided in a manner in which the recipient unit or units cannot be identified prior to the transfer of assistance, the Secretary of State shall regularly provide a list of units prohibited from receiving assistance pursuant to this section to the recipient government and the appropriate congressional committees and, effective December 31, 2022, such assistance shall only be made available subject to a written agreement that the recipient government will comply with such prohibition.

(2)If the recipient government withholds assistance from a unit pursuant to this section, the Secretary shall inform the appropriate congressional committees and shall, to the maximum extent practicable, assist the foreign government in bringing the responsible members of the unit to justice.

(d)Credible informationThe Secretary shall establish, and periodically update, procedures to—

(1)ensure that for each country the Department of State has a current list of all security force units receiving United States training, equipment, or other types of assistance;

(2)facilitate receipt by the Department of State and United States embassies of information from individuals and organizations outside the United States Government about gross violations of human rights by security force units;

(3)routinely request and obtain such information from the Department of Defense, the Central Intelligence Agency, and other United States Government sources;

(4)ensure that such information is evaluated and preserved;

(5)ensure that when an individual is designated to receive United States training, equipment, or other types of assistance the individual’s unit is vetted as well as the individual;

(6)seek to identify the unit involved when credible information of a gross violation exists but the identity of the unit is lacking; and

(7)make publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished pursuant to subsection (a).

(e)Definitions

(1)For the purposes of subsection (d)(7), the term “to the maximum extent practicable” means that the identity of such units shall be made publicly available unless the Secretary of State, on a case-by-case basis, determines and reports to the appropriate congressional committees that public disclosure is not in the national security interest of the United States and provides a detailed justification for such determination, which may be submitted in classified form.

(2)For the purposes of this section, “appropriate congressional committees” means the Committee on Foreign Relations and the Committee on Appropriations of the Senate, and the Committee on Foreign Affairs and the Committee on Appropriations of the House of Representatives.

Following the growing interest and under stable global focus on the Gaza, humanitarian crisis, it is for folks to make their own judgement whether current events in Gaza are arguably consistent with the spirit, letter or intent of the Leahy Laws and Foreign Assistance Act.