Policy experts say the US State Department’s failure to conclude that Israel violated international law using US-supplied weapons raises questions about whether Washington is genuinely concerned about Israel’s war conduct in Gaza.
The State Department released its report on Friday as a part of President Joe Biden’s National Security Memorandum-20 (NSM-20), which said it was “reasonable to assess” that Israel was using US weapons in Gaza in ways that were “inconsistent” with international humanitarian law.
However, ultimately citing a lack of evidence and on-the-ground presence in Gaza, the Biden administration said it was unable to make a conclusive determination. If the administration had concluded Israel was violating international law with American weapons, it would have required a suspension of weapons transfers.
The report also concluded that while there have been instances of Israel blocking and restricting aid access to Gaza documented by aid agencies, the State Department does “not currently assess” Israel is restricting “the transport or delivery of US humanitarian assistance” to Gaza.
The report’s conclusions came as a shock to Sarah Yager, the Washington director of Human Rights Watch, who said the report’s lack of information regarding Israel’s military conduct was difficult to believe, given their close security coordination.
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“One of the shocking things to me, especially as somebody who has worked with the US military and the Pentagon in the past, is that the NSM says that it was very difficult for the US to get evidence from Israel on its conduct,” Yager said during a news briefing on Monday.
“It is absolutely shocking that the United States doesn’t have this information from its closest security partner.”
Since Israel’s war in Gaza began last October, the Biden administration has for months claimed that Israel is complying with international law and that the administration had yet to find an instance in which the country was in violation of that law.
International law experts, however, previously told Middle East Eye that the administration’s claim was “nonsense” and “incredibly cynical”, stating that there were numerous examples of violations. For months, rights groups have been working to document Israel’s military conduct amid its ongoing war in Gaza.
US says Israel is complying with international law. ‘Complete nonsense’, experts say
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Israel’s military has so far killed more than 34,000 Palestinians in Gaza, the majority of whom are women and children, according to the death toll reported by the Palestinian health ministry. Israeli forces have targeted schools, hospitals, UN shelters, and residential squares with aerial bombardment and other attacks.
Israeli forces have also killed journalists, medical workers, and employees of international charities, such as the strike on the World Central Kitchen workers last month which was globally condemned.
Throughout this war, the United States has fast-tracked shipments of weapons and ammunition to the Israeli military, despite concerns from rights groups, lawmakers, and even Biden officials who have resigned out of protest against the government’s policies towards Israel since October.
Amanda Klasing, advocacy and government relations director at Amnesty International USA, said the report’s claims that Israel’s pattern of harming civilians in Gaza over the past few months “are insufficient” to determine whether to suspend aid to Israel “really calls into question whether or not there’s any commitment [by the US] to push the government of Israel to comply with international humanitarian law”.
‘A BS process…a BS result’
The NSM-20 was introduced by President Biden a day after Senator Chris Van Hollen announced on 7 February that he planned to introduce an amendment that would require a report similar to the NSM-20, on whether the use of American weapons by Israel in Gaza is consistent with international and US law.
The NSM-20 was met with scepticism from Van Hollen and other lawmakers, who believe there are numerous laws in existence that could provide a pathway to make an assessment on whether weapons transfers to Israel should be halted.
“The administration already has all the tools and authorities and indeed the obligations to seek information, to make reports, and to make assessments about the provision of US military assistance that it needs,” said Matt Duss, vice president of the Center for International Policy.
‘The United States is not asking for that information from Israel because they are worried about being complicit’
– Sarah Yager, Human Rights Watch
‘The fact is, it was not doing that in the judgment of members of Congress.”
For example, the Leahy laws are a set of US laws that prohibit the State Department and Pentagon from providing military assistance to countries that violate international humanitarian law with impunity.
The Conventional Arms Transfer policy introduced by Biden last year also says that the US won’t transfer weapons when it is “more likely than not” the arms would be used in violation of international law.
And the Foreign Assistance Act’s section 502B similarly bars the US from providing security assistance to countries that have conducted “gross violations of human rights”.
“Many of us were skeptical, but wanted to give this process a chance. Now, unfortunately, it seems our skepticism has been borne out,” said Duss about the NSM-20.
“I mean, to put it bluntly, I think this was a BS process that produced a BS result.”
Questions raised
Experts also raised the question of whether the US government was genuinely interested in seeking accountability for Israel’s conduct in the war.
The report lists a number of reported incidents where Israeli forces killed civilians in Gaza. But the report also says “it is often difficult to determine facts on the ground in an active war zone of this nature and the presence of legitimate military targets across Gaza”.
The report also says that attacking protected sites such as civilian infrastructure “do not necessarily constitute violations” of international humanitarian law, “as such sites can be legitimate targets if used for military purposes”.
Israel has attacked several hospitals throughout its war on Gaza, often claiming that the hospitals are being used by Hamas fighters and are therefore legitimate military targets. However, rights groups who previously spoke with MEE raised serious doubts about those claims, saying they had found no evidence that hospitals attacked by Israel were used as bases of military operations by Palestinian fighters.
Yager said that while this statement is true, it requires an incredible amount of detail and evidence to back that up, which Israel has not provided to the US.
“There’s a lot more information that needs to come from Israel,” said Yager.
“And here’s my guess, that the United States is not asking for that information from Israel because they are worried about being complicit in the violations of international law that they know are happening.”
