U.S. Ensuring Security Over Legal and Human Rights Safeguards?

April 16, 2015 Updated: April 23, 2016

There has been a great deal of attention paid to Iraqi Prime Minister Haider al-Abadi’s first visit to the United States this week as head of state. Much of the focus has been on the list of asks Mr. Abadi was slated to request from President Obama, most notably additional support for Iraq’s fight against the Islamic State (IS) group. However, preceding Abadi’s visit and reporting immediately following his meeting at the White House has, for the most part, neglected the relationship between the Iraqi government and Shia militia groups accused of committing human rights violations in their liberation of IS held territory. This is significant because U.S. law prohibits the United States from providing support to governments with “gross violations of human rights.” With President Obama “pledg[ing] to continue to support Iraqi Security Forces and tribal engagement initiatives with U.S. training and equipment,” at what point do major security concerns and strategic relations between the U.S. and others trump U.S. law and human rights issues?

The Leahy Law, as it is known, “prohibits the furnishing of assistance authorized by the [Foreign Assistance Act] and the Arms Export Control Act…to any foreign security force unit that is credibly believed to have committed a gross violation of human rights.” A gross violation of human rights includes “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.” To be sure, the law also prohibits the training of forces or foreign personnel, which is defined as the “instruction of foreign security force personnel that may result in the improvement of their capabilities,” a key aspect of current U.S. assistance to Iraqi Security Forces.

This provision has been questioned in the past as well and in recent history has hindered U.S. assistance in the fight against Boko Haram in Nigeria due to the Nigerian government’s poor human rights record. As the Congressional Research Service noted in a footnote in a report about the Leahy Law, even human rights champion Susan Rice, the president’s national security advisor, has raised skepticism regarding the provision; “‘[A]dvancing human rights is not and has never been our only interest.’ Advancing other interests—countering weapons of mass destruction, aggression, terrorism, and catastrophic threats to the global economy—requires, she said, that the United States ‘sometimes face painful dilemmas … [and] American foreign policy must sometimes strike a difficult balance … between our short and long-term imperatives,'” the report said of Rice’s remarks at a speech, though noted Rice never acknowledged the Leahy Law by name. Even the law’s namesake, Democratic senator from Vermont Patrick Leahy, has raised concerns regarding certain circumstances of its application. “It increasingly seems like end-use monitoring is more of a goal than a reality. That means we should expect some U.S. material to be used against our allies, and it may one day be used against us. More scrutiny and vetting is needed, but we also may need to consider if we can meet acceptable standards and whether it is an acceptable risk to our national interests,” the Washington Post quoted Leahy as saying in the context of arms falling to Iraqi Shia militias.

Both members of the Iraqi army and members of Shia militias, who, from a U.S. perspective, enjoy uncomfortably close ties and even receive operational support from Iran, have been accused of violating human rights in their push to oust IS from urban areas. The trouble with Shia militias however, is that while some serve in a volunteer capacity, others are unofficially part of the Iraqi government, called Popular Mobilization Forces. These forces were absorbed into the Iraqi military and receive government funding. Therein lies the dilemma for the U.S.; while the administration has demanded that these groups, who hold adverse views toward the U.S., withdraw from certain areas before the U.S. offers military support, financial and arms assistance still might be indirectly going to these groups.

Further compounding the central question proposed at the outset, these militias have served an integral part in field operations as they number tens of thousands of soldiers, many with previous battlefield experience. In fact, after the U.S. successfully lobbied for the withdrawal of these groups in the operation to overtake the Iraqi city of Tikrit before providing aerial assistance, the Pentagon acknowledged that the removal of these forces would make taking the city by Iraqi forces more difficult.

In addition to the issues facing Iraq, Egypt has been another area of contention for U.S. assistance befuddled in U.S. legal constraints. Following the removal of the democratically elected Muslim Brotherhood member Mohamed Morsi by then, Gen. Abdel Fattah el-Sisi, who is now Egypt’s civilian president, the Obama administration appeared to be tongue tied in terms of what to call Morsi’s removal. By most observations, it looked like a military coup. However, what is known as the “coup provision,” under U.S. law prevents “many (though not all) forms of ‘direct’ foreign assistance after a democratically elected government is deposed by a coup in which the military has played a decisive role. Unlike many other restrictions on U.S. foreign assistance, the coup provision does not include a waiver; if the provision applies, aid must be cut.”

Egypt has been an important strategic partner for the U.S. as it is the most populous Arab state, one that has been the recipient of significant U.S. military aid. By being at best cagy and at worst eschewing the circumstances of Morsi’s ouster, the U.S. did not have to cut aid entirely. However, since Morsi’s ouster, the U.S./Egypt relationship has been somewhat fractured given this contentious issue. While President Obama withheld certain aid from Egypt until it demonstrated certain steps toward less repressive governance, the administration also continued to provide other forms of aid to support the security of Egypt in a volatile region. This strange arrangement contributed to the tension in relations between the two countries and is best summed up by Eric Trager, of The Washington Institute; “The president’s indecisiveness reflects his administration’s profound and often paralyzing ambivalence on Egypt. Simply put, the administration cannot decide whether Egypt is a strategic partner that should be generously supported, or a brutal autocracy that should be denied aid until it pursues a more democratic path.”

The U.S. has since resumed most aid to Egypt though, it ended a program, which allows Egypt to purchase military equipment on credit. Despite continued cases of “scaled up investigations, travel bans and prosecutions of political opponents; restricted public protests and other basic rights; issued mass death sentences and other inexplicable and arbitrary judicial rulings; and botched preparations for parliamentary elections, forcing their delay and sidelining political parties” the U.S. has persisted to provide Egypt with military assistance.

With Islamic State affiliated groups in neighboring Libya, a failed state rife with conflict, and within Egypt, the U.S. wants to ensure that these threats are blunted and Egypt remains cozy to the U.S. as a strategic partner in the region. Though, the recent wavering between the U.S. and Egypt regarding aid has damaged their relationship. With the announcement of a new Arab counterterrorism force led by Egypt and Saudi Arabia combined with rumors that Saudi Arabia acted in Yemen militarily without notifying the U.S. due to trust issues, the U.S. cannot afford to push away powerful regional states, especially as it is leading a global anti-Islamic State group coalition.

Throughout history, the U.S. has been selective in their enforcement of the coup provision depending on how close relations are between it and the nation in question – one example being Honduras in 2009. Additionally, it has continued to provide Iraq with much needed military assistance to combat IS. The Islamic State group has taken the world by surprise and the region by storm. It has captured territory at a meteoric pace, much faster and more widespread than any other terrorist group in recent memory. A U.S. military official in Iraq recently stated that the fight against IS will “definitely be the fight of our lifetime.” Presently, it appears the U.S. agrees and is placing partnerships, geopolitics, and security over legal safeguards that ensure adherence to deeply held human rights beliefs.