Advocates say Biden administration is ‘bending over backwards’ to avoid saying whether Israel is violating laws of war.
Washington, DC – In a report released on Friday, the United States concluded that it is “reasonable to assess” that the weapons it provided to Israel during its war on Gaza have been used in violation of international humanitarian law.
However, the same report said that Israel’s assurances that it is not using US arms to commit abuses are “credible and reliable” — and that the US can therefore continue to provide those weapons.
Advocates say the apparent contradiction shows that the US is willing to go to extraordinary lengths to continue arming Israel, even at the expense of Washington’s own laws.
“What those inconsistencies show you is that the administration does know what is happening,” said Annie Shiel, the US advocacy director at the Center for Civilians in Conflict (CIVIC).
“They absolutely can see that there is devastating civilian harm, that there are apparent violations, that aid is being restricted. And they do not have the political will to do what that means — and end US support and US arms transfers to Israel.”
President Joe Biden’s unwillingness to do so, advocates say, should compel Congress instead to use its oversight and legislative powers to ensure that the rules apply to Israel.
“The ball is in Congress’s court here,” said Shiel. “It is very clear that the administration is not going to take the steps that it needs to take — that US law demands, that US policy demands, that basic humanity demands. And so Congress really needs to step in and say, ‘This report is not honest. US assistance, US arms transfers do need to stop now.’”
Origins of NSM-20
Shiel noted that even Friday’s report resulted from congressional pressure. Earlier this year, Senator Chris Van Hollen, along with 18 colleagues, pushed the White House to draw up a national security memorandum, dubbed NSM-20.
The memorandum required written assurances from the recipients of US weapons that the arms were not being used to violate international humanitarian law (IHL) or restrict Washington-backed humanitarian aid in areas of armed conflict.
IHL spells out the laws of war. It is a set of rules meant to protect non-combatants during armed conflict, consisting of the Geneva Conventions of 1949 and subsequent international treaties aimed at limiting civilian suffering.
Friday’s report, released by the US State Department, assessed assurances provided by several countries that receive US security aid, including Iraq, Nigeria and Ukraine. But all eyes were on Israel, given the mounting death toll, destruction and starvation in Gaza.
So what exactly did the report say? Here are a few takeaways:
- The US government found the assurances provided by recipient countries, including Israel, “to be credible and reliable so as to allow the provision of defense articles covered under NSM-20 to continue”.
- “Given Israel’s significant reliance on US-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm.”
- The US intelligence community finds that Israel has “inflicted harm on civilians” in Gaza, but there was “no direct indication of Israel intentionally targeting civilians”. Still, “Israel could do more to avoid civilian harm”.
- Israel “has not shared complete information” on whether US weapons have been used in abuses.
- Israeli officials have encouraged protests to block aid to Gaza. Israel has also implemented “extensive bureaucratic delays” on the delivery of assistance and launched military strikes on “coordinated humanitarian movements and deconflicted humanitarian sites”.
- The US government does “not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of US humanitarian assistance“.
- Israel has its own rules and procedures and says it is investigating alleged abuses, but the US is “unaware of any Israeli prosecutions for violations of IHL or civilian harm since October 7”, the start date for its current war in Gaza.
‘Wild’ acknowledgment
Amanda Klasing, the director of government relations and advocacy at Amnesty International USA, said one of the most important findings from the report is the intelligence community’s assessment that Israel should do more to avoid civilian harm.
“When you have all of that laid out, the question is how do they still come to the conclusion that they came to,” Klasing told Al Jazeera.
She highlighted the report’s acknowledgment that Israel has not provided full information about possible IHL violations.
“You’re lacking evidence in order to prove your case, because your security partner isn’t cooperating with you. The next logical conclusion would be to withhold your weapons until you could actually get the information required to ensure that you’re not being complicit in violations of international law,” she said.
“Instead, the report recognises these big gaps. And then the conclusion is: Because of these gaps, we can’t draw any definitive conclusions, and therefore it will continue weapons transfers.”
Scott Paul, the associate director for peace and security at Oxfam America, called the acknowledgement that Israel did not fully cooperate with the US query “wild”.
He also criticised the State Department for deferring to Israel’s own processes and military justice system to provide information about potential humanitarian law violations. Israel rarely ever prosecutes its own soldiers for misconduct.
“It’s form over substance. The fact that a justice system exists doesn’t mean that it’s credible — doesn’t mean that it will work in a way to hold individuals to account for their violations of the law,” Paul told Al Jazeera.
“And all of the work being done here is being done by the fact that the system exists, not that the system is functioning.”
He added that, while indeed it is difficult to document IHL violations in war zones, rights groups including Amnesty International and Human Rights Watch have done so in Gaza.
Paul also noted the US had no such difficulty when Russia launched its full-scale invasion of Ukraine in 2022: The government formally accused Russia of war crimes only weeks into the war.
Some advocates say that, by turning a blind eye to Israeli abuses, the US is losing its credibility to call out violations of international law in other parts of the world.
“How does [the US] have any accountability in other instances if it wants international law to be respected in the context of Ukraine, but it is taking every action to undermine international law or multilateral approaches to holding Israel accountable?” Klasing said.
Biden’s ultimatum
The report’s release on Friday came two days after Biden himself acknowledged that US bombs killed civilians in Gaza, as he warned Israel against carrying out an invasion of the southern city of Rafah.
“Civilians have been killed in Gaza as a consequence of those bombs and other ways in which they go after population centres,” the US president told CNN in an interview on Wednesday.
Washington confirmed that it suspended one shipment of heavy bombs to Israel. Biden also threatened to withhold further transfers if the Israeli military launches a full assault on Rafah.
Many Palestinian rights advocates have argued that a gradual invasion of Rafah is already under way in defiance of Biden’s ultimatum.
Shiel at CIVIC stressed that the administration’s decision to withhold some weapons from Israel over Rafah is separate from the NSM-20 process.
“It is very clear US weapons have fuelled catastrophic civilian harm and displacement and apparent violations for many months,” she told Al Jazeera.
“And for those many months — even before the NSM existed — existing US and international law as well as other established policy have required an end to that harm. So no, this is not simply a discretionary decision for the president to make. US law demands that US arms transfers stop for these reasons.”
For his part, Paul at Oxfam said, while NSM-20 was a welcome step, the Biden administration ultimately “bent over backwards” to avoid definitively answering the question raised by the memorandum: whether US assistance is being used in accordance with the law.
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“It is studiously trying not to tell us anything,” he said of the report