Bringing Assistance to Israel in Line With Rights and U.S. Laws
This piece was published by the Carnegie Endowment for International Peace, and is being reposted here with permission from the authors. Click here to view the original publication.
After many years of increasing U.S. military aid to Israel, members of Congress are beginning to debate the wisdom and morality of writing a blank check for weapons—some of which are used against Palestinians living under military occupation in the West Bank and Gaza Strip in violation of U.S. laws.
A recent exchange between legislators shows the evolving debate. Congresswoman Betty McCollum introduced a bill on April 15—currently co-sponsored by seventeen representatives—to ensure that U.S. funding is not used for Israel’s ill-treatment of Palestinian children in its military judicial system, forced displacement of Palestinians through home demolitions and evictions, and illegal annexations of Palestinian land. In response, Congressman Ted Deutch produced a letter on April 22, signed by more than 300 representatives, arguing against “reducing funding or adding conditions on security assistance”—which essentially means disregarding Israel’s egregious policies and violations of existing U.S. laws aimed at protecting human rights. The fact that a bill restricting aid to Israel drew seventeen sponsors to date and a letter defending that aid was signed by three-quarters of members—as opposed to all of them—shows that the debate is slowly shifting.
Meanwhile, the emerging policies of President Joe Biden’s administration reflect an uncomfortable paradox. The interim national security strategy calls for the United States to defend and protect human rights in its foreign policy and to lead in restoring multilateralism and rules in the international system. The word “values” appears twenty-five times in the twenty-three-page document. However, the strategy also pledges to maintain an ironclad commitment to Israel’s military aid—despite the apparent contradiction with declared U.S. policy objectives, such as a two-state resolution to the Israeli-Palestinian issue, and the continuing de facto annexation of the West Bank, home demolitions, evictions, and destruction of entire Palestinian neighborhoods and communities.
Leading progressive Democrats are calling for the Biden administration to center values in its policy toward Israel and Israeli-Palestinian peacemaking. And a growing number of voters support initiatives to restrict U.S. aid to Israel due to its human rights violations. Yet, even if there were enough votes in Congress for these initiatives to become law, another challenge looms: establishing transparent weapons transfer practices to ensure the necessary tracking and end-use monitoring. Until then, the administration should enforce existing laws that prohibit the use of U.S. security assistance for illegitimate purposes and specifically restrict aid from further entrenching Israeli occupation.
THE LARGESS OF U.S. ASSISTANCE TO ISRAEL
Through FY2020, the United States provided Israel with $146 billion in military, economic, and missile defense funding. Adjusted for inflation, this amount is equivalent to $236 billion in 2018 dollars, making Israel the largest cumulative recipient of U.S. assistance since World War II.
Today, almost all U.S. assistance to Israel is in the form of weapons grants. Israel receives $3.3 billion annually in foreign military financing (FMF). It also receives $500 million for joint U.S.-Israeli research, development, and deployment of missile defense systems; however, these anti-missile systems almost wholly benefit Israeli military needs. In FY2021, the administration of former president Donald Trump requested $3.3 billion in FMF for Israel, constituting 59 percent of the requested global FMF budget. Israel receives more FMF than all other countries in the world combined (see figure 1).
Yet Israel is more than capable of purchasing its own weapons. According to the World Bank, it has the twenty-ninth-largest per capita GDP in the world, ahead of the United Kingdom, New Zealand, France, and Japan.
Since 1999, the parameters for U.S. assistance to Israel have been set in memoranda of understanding (MOUs) between the two countries. These ten-year MOUs include promises of presidential budgetary requests for assistance to Israel, but Congress must still appropriate the actual amounts of assistance annually. In practice, Congress adheres to the president’s budgetary requests without changes.
The last MOU was signed in 2016, pledging $33 billion in FMF and $5 billion in missile defense funding for FY2019–2028, the largest totals in the history of these MOUs. However, notably, this MOU phases out an exemption known as offshore procurement (OSP), which allows Israel to use a percentage of FMF on its domestic weapons industry; all other countries receiving FMF are required to spend it solely on U.S. weapons. This is a significant change, as in FY2019, OSP amounted to an $815 million annual subsidization by U.S. taxpayers of Israeli weapons manufacturers. The phaseout reflects that Israel has become one of the world’s leading arms exporters, selling approximately $9 billion in arms in 2017.
Although both countries agreed in the MOU not to seek changes to the specified amounts of FMF and missile defense funds, Congress has made these already unprecedented levels of assistance to Israel a floor rather than a ceiling. In the 2021 National Defense Authorization Act, Congress authorized “not less than” $3.3 billion annually in FMF to Israel, giving it the flexibility to appropriate funds beyond those agreed upon in the MOU.
LAWS GOVERNING U.S. ASSISTANCE
Debate about whether U.S. security assistance to foreign countries should be conditioned upon human rights criteria discounts a simple fact. U.S. law is clear: all countries receiving U.S. aid must meet human rights standards, and countries violating these standards are liable to be sanctioned and ineligible for U.S. funding:
- The Foreign Assistance Act (P.L. 87–195) regulates all forms of U.S. assistance to foreign countries. It states that no assistance may be provided to a country “which engages in a consistent pattern of gross violations of internationally recognized human rights.”
- The Arms Export Control Act (P.L. 90–629) regulates U.S. military assistance and sales to foreign countries. It states that the United States can furnish weapons to foreign countries “solely for internal security, for legitimate self-defense,” and for a few other limited purposes. No credits, guarantees, sales, or deliveries of weapons can be given to a country if it is “in substantial violation” of these purposes.
- The Leahy Laws require the Departments of State and Defense to vet individual military units and individuals before they are eligible to receive U.S. equipment or training. The Department of State version of the law states that no form of assistance can be provided “to any unit of the security forces” committing “a gross violation of human rights.” The Department of Defense version states that no training or equipment can be given to a military unit that “has committed a gross violation of human rights.”
Another indisputable fact is that the United States has placed conditions on other countries’ FMF. For example, in the FY2021 budget, $225 million of $1.3 billion in FMF for Egypt is withheld from obligation until the Department of State certifies that Egypt is “taking sustained and effective steps” to strengthen human rights.
However, when it comes to Israel, additional conditions do not apply and general human rights laws are almost never adhered to. Furthermore, weapons flows to Israel are much less transparent than those to other countries, making implementation of these laws more difficult.
TRANSPARENCY AND OVERSIGHT
Most countries receive allocations of FMF in quarterly installments, and the money is kept in U.S.-controlled bank accounts until the country wishes to draw down from its allocation to purchase weapons. This arrangement allows the United States greater oversight over weapons purchases and better control over the purse strings to ensure countries’ compliance with U.S. laws.
Israel, however, enjoys preferential status. Since FY1991, Congress has authorized Israel to receive its FMF allocation in one lump sum and early (within thirty days of the budget’s enactment). Moreover, Israel is allowed to hold these FMF funds in a U.S. interest-bearing bank account so that Israel ends up with more than its annual allocation of $3.3 billion.
Israel is also the only country in the world for which the United States does not have tracking mechanisms to determine which weapons go to which military unit. This opacity makes it nearly impossible for the Departments of State and Defense to properly implement Leahy Law vetting requirements. Vetting only occurs for Israeli military personnel applying to U.S. training programs, and this training is a drop in the bucket of Israel’s FMF package—just 0.02 percent of FMF in 2018, leaving the remaining 99.98 percent of FMF untraceable.
Another unique feature of U.S. assistance to Israel that undermines oversight is the provision for OSP. Although this subsidization of Israel’s military weapons manufacturing will be phased out by FY2028, it will still amount to hundreds of millions of dollars per year until then. Prior to 2016, the United States had no mechanism to track how OSP funds were used—it was essentially giving Israel a blank check. The 2016 MOU requires Israel to provide “detailed programmatic information” on OSP to the executive branch but omits any provision for transmitting it to Congress or making it public.
AFTER THE U.S.-ISRAEL MOU ENDS IN 2028
Some U.S. assistance could be justified as fulfilling Israel’s legitimate self-defense needs and be in line with U.S. law—for example, defense against Iran and its regional proxies and against oftentimes indiscriminate rockets fired by Hamas and other armed Palestinian groups from the Gaza Strip. But the continued provision of billions of dollars in U.S. assistance to Israel—which helps entrench its military occupation of Palestinian land in violation of U.S. law—is becoming more difficult to justify, particularly given U.S. budgetary constraints and given that Israel, with a per capita GDP rivaling Western European countries, could (and already does) purchase weapons, equipment, and fuel from the United States (see figure 2).
Though some might argue that ending grants to Israel will push it to purchase from other countries and undermine the alliance, U.S.-Israel co-development and research of weapons systems and the need to maintain interoperability make this unlikely. In fact, Congress passed a new program to institutionalize U.S.-Israel co-development in cooperation with defense contractors. Both the executive branch and Congress are committed to fully funding the terms of the MOU through 2028. However, ending FMF after this MOU and ensuring that Israel’s future purchases of U.S. weapons are consonant with U.S. law would make taxpayers less directly complicit in Israel’s human rights abuses of Palestinians.
Others might argue for continuing security assistance despite human rights concerns because of the U.S. national security benefits that derive from sharing defense technologies with Israel. But these technologies are generally purpose-specific and based on Israel’s location, size, and strategy; U.S. dollars would be better spent in funding development that meets U.S. specifications and needs. Foreign weapons grants and sales also create domestic economic dependencies around their continuation, which have little to do with the raison d’être for the security assistance.
The United States is not the world’s police, but it does have obligations under both federal and international law to ensure that it is not furthering human rights abuses. Toward meeting those obligations and preventing further deterioration of the situation on the ground between Israelis and Palestinians, the administration should:
- Enforce U.S. law. No country should be above the law. Israel should be held to the same standards as other recipients of U.S. assistance or purchased weapons. This means that the State Department must robustly vet not only individual Israeli soldiers receiving U.S. training but also Israeli military units receiving U.S. equipment. The flow of weapons to units that commit gross violations of human rights must be cut off as required by the Leahy Laws. The United States should investigate Israel’s potential violations of the Arms Export Control Act and suspend the sale and delivery of weapons used to commit human rights abuses. Finally, the United States must comprehensively review the entirety of Israel’s human rights records in light of the Foreign Assistance Act, which prohibits providing assistance to a country that engages in a systematic pattern of human rights violations.
- Ensure U.S. policy objectives are achieved by further restricting assistance. U.S. assistance to Israel should not take the form of a blank check that Israel can use to entrench its occupation and obstruct U.S. policy goals. First, U.S. weapons should be conditioned on normative behavior, thus requiring a complete and verifiable freezing of settlement growth. Second, the Biden administration should work with Congress to insert language into the budget to withhold a portion of U.S. assistance until Israel makes demonstrable improvements in its human rights record. Such language could be borrowed from conditions currently imposed on U.S. assistance to Egypt. Third, Israel should not be allowed to employ U.S. weapons in occupied territories in prima facie violation of the Arms Export Control Act; language restricting U.S. aid to Israel’s sovereign territory could be lifted from previous conditionality on U.S. loan guarantees.
- Establish transparent mechanisms for weapons transfers to Israel. Under the current MOU, Congress should end special treatments such as lump-sum payments of FMF to an Israeli-controlled, interest-bearing bank account. The State Department should create a tracking mechanism to determine which pieces of equipment go to which Israeli military units. Tracking these transfers is standard for all other countries, and without a mechanism, the United States cannot adequately vet for Leahy Law violations. The United States should make public the annual reports that Israel is required to submit to account for its OSP; the public has a right to know how tax dollars are being spent, and victims of human rights abuses should be able to lodge complaints with the State Department for Leahy Law violations.
- End long-term, massive, taxpayer commitments. Decade-long MOUs on weapons to Israel are antithetical to long-term U.S. interests and make it difficult to ensure weapons are leveraged to achieve these interests. The MOUs also make it harder to ensure that Israel faces consequences for violating U.S. laws. The current MOU lasts through FY2028. Given Israel’s advanced economy and U.S. complicity in Israel’s human rights violations, there is no reason to continue this handout. After the MOU expires, the United States should require Israel to purchase weapons. And selling weapons to Israel should proceed only after vigorous end-use monitoring is put into place to ensure that these weapons are for legitimate self-defense rather than for the perpetuation of Israeli occupation and colonization.