The Biden administration on Friday said Israel’s use of US-supplied weapons in Gaza may have violated international humanitarian law (IHL), a major step-up in criticism of its key ally.
But the administration also said that due to the chaos of the war in Gaza, it could not verify specific instances where use of those weapons might have violated the law, falling short of making a definitive assessment on the issue.
Because of that, the administration ruled that it still finds credible Israel’s assurances that its use of American weapons abides by international law.
The seemingly contradictory assessment came in a State Department report to Congress, required under a new National Security Memorandum (NSM) that President Joe Biden issued in early February to determine the credibility of Israel’s assurances that its use of US weapons does not violate US or international law.
“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 report said.
“Israel has not shared complete information to verify whether US defense articles covered under NSM-20 were specifically used in actions that have been alleged as violations of IHL or IHRL [international human rights law] in Gaza, or in the West Bank and East Jerusalem during the period of the report,” it said.
Democratic Sen. Chris Van Hollen from Maryland said the administration had “ducked all the hard questions” and avoided looking closely at whether Israel’s conduct means that military aid should be cut off.
“This report contradicts itself because it concludes that there are reasonable grounds to believe violations to international law have occurred, but at the same time it says they’re not finding non-compliance,” he told reporters.
Israel’s military conduct has come under increasing scrutiny as its forces have killed 34,000 Palestinians in Gaza, according to the Hamas-run enclave’s health authorities, most of the victims being women and children.
According to the report, there are numerous credible UN, NGO and media reports of Israeli airstrikes impacting civilians that have raised questions about Israel’s compliance with its legal obligations under international humanitarian law and best practices for mitigating civilian harm.
The report stated that it is often difficult to determine facts on the ground in an active war zone of this nature due to the presence of legitimate military targets across Gaza and because Hamas uses civilian infrastructure for military purposes and civilians as human shields.
“While Israel has the knowledge, experience, and tools to implement best practices for mitigating civilian harm in its military operations, the results on the ground, including high levels of civilian casualties, raise substantial questions as to whether the IDF is using them effectively in all cases,” according to the report.
The report said Israel did not fully cooperate, especially in the initial months after October 7, with US government and international efforts to maximize humanitarian assistance flow into Gaza.
The Biden administration said there were numerous instances during that period of Israeli actions that delayed or had a negative effect on the delivery of aid to Gaza.
However, the administration recognized Hamas has at times sought to direct the distribution of humanitarian assistance to maintain its effective control of governance functions in Gaza, not to maximize the benefits to civilians there.
The administration also acknowledged that after requests from the US and other governments, Israel acted to improve the volume of humanitarian aid entering Gaza.
According to the report, the administration does “not currently assess” that the Israeli government is prohibiting or otherwise restricting the transport or delivery of US humanitarian assistance within the meaning of section 620I of the Foreign Assistance Act.
“This is an ongoing assessment and we will continue to monitor and respond to any challenges to the delivery of aid to Palestinian civilians in Gaza moving forward,” the report said.
Divided over the issue
US State Department officials have been divided over the issue. Reuters reported in late April that officials in at least four bureaus inside the agency have raised serious concerns over Israel’s conduct in Gaza, laying out specific examples in which the country might be in breach of the law.
Rights group Amnesty International also said in a report in late April that US-supplied weapons provided to Israel have been used in “serious violations” of international humanitarian and human rights law, detailing specific cases of civilian deaths and injuries and examples of unlawful lethal force.
The US government reviewed numerous cases that raise questions about Israel’s compliance with its legal obligations and best practices for mitigating harm to civilians, the report said.
Those included Israeli strikes on civilian infrastructure, strikes in densely populated areas and others that call into question whether “expected civilian harm may have been excessive relative to the reported military objective.”
In the period after October 7, the report found, Israel “did not fully cooperate” with US and other international efforts to get humanitarian aid into Gaza. But it said this did not amount to a breach of a US law that blocks the provision of arms to countries that restrict US humanitarian aid.
It said Israel had acted to improve aid delivery since Biden warned Prime Minister Benjamin Netanyahu in a call early last month that Washington would withhold some arms supplies if the humanitarian situation did not improve.
The report said individual violations do not necessarily disprove Israel’s commitment to international humanitarian law, as long as it takes steps to investigate and hold violators accountable.
“Israel’s own concern about such incidents is reflected in the fact that it has a number of internal investigations underway,” the report said. A senior State Department official confirmed that none of those investigations has yet led to prosecutions.