US: Israel’s assurances on weapons use ‘credible,’ but ‘reasonable’ to assess otherwise

Seemingly contradictory report ordered by Biden clears way for further arms transfers, while asserting IDF likely breached international humanitarian law in specific cases

A picture taken in southern Israel near the border with the Gaza Strip on December 7, 2023, shows an Israeli fighter jet dropping flares over Gaza. (Menahem KAHANA / AFP)
Illustrative: A picture taken in southern Israel near the border with the Gaza Strip on December 7, 2023, shows an Israeli fighter jet dropping flares over Gaza. (Menahem KAHANA / AFP)

In a highly anticipated report to Congress, the Biden administration said Friday it found “credible and reliable” Israeli assurances that it will use US weapons in accordance with international humanitarian law, allowing for the further transfer of American arms amid Israel’s war with Hamas in Gaza.

However, in the strongest such statement from Biden officials, the State Department report also said it was “reasonable” to assess that Israel has used US-supplied weapons since Hamas’s October 7 attack in instances that were “inconsistent” with its international humanitarian law obligations, but that it does not have complete information to verify Israeli forces did so.

The seemingly contradictory assessment came after the State Department was asked to report to Congress, under a new National Security Memorandum (NSM) that US President Joe Biden issued in early February, on whether it finds credible Israel’s assurances that its use of American weapons does not violate US or international law.

At the time the White House agreed to the review, wit was working to head off moves from progressive Democratic lawmakers and independent Senator Bernie Sanders of Vermont to start restricting shipments of weapons to Israel.

The presidential directive also obligated the report to examine whether Israel has acted “arbitrarily to deny, restrict, or otherwise impede, directly or indirectly,” delivery of any US-supported humanitarian aid into Gaza for civilians there.

The report was issued on Friday as Biden has tried to walk an ever-finer line in his support of Israel since the Hamas-led atrocities that sparked the war, while he faces growing rancor at home and abroad. Last week, Biden took one of the first steps toward conditioning military aid to Israel, pausing a shipments of thousands of bombs over concerns over Israeli plans to invade of Rafah, and on Wednesday he threatened to halt further arms deliveries if the IDF moves into populated parts areas of Gaza’s southernmost city.

IDF soldiers under the Givati Brigade stand atop a tank in eastern Rafah in the southern Gaza Strip, in a handout picture released on May 10, 2024. (Israel Defense Forces)

Along with Israel, the report covered several other countries.

“Embassies Bogota, Baghdad, Jerusalem, Nairobi, Abuja, Mogadishu, and Kyiv obtained the required assurances signed by the designated representatives of their respective countries, which were in turn reviewed by the State Department in order to determine credibility and reliability by March 24, 2024,” the State Department wrote.

“While in some countries there have been circumstances over the reporting period that raise serious concerns, the USG [United States government] currently assesses the assurances provided by each recipient country to be credible and reliable so as to allow the provision of defense articles covered under NSM-20 to continue,” the report stated.

The section of the report devoted to Israel begins by noting the October 7 onslaught that started the war, during which Hamas and other terror groups killed some 1,200 people and took 252 hostages into Gaza.

“There are also credible reports that individuals associated with these organizations raped or committed other acts of sexual violence against women and girls killed and abducted on October 7,” the report said, stating that “Hamas does not follow any portion of and consistently violates international law.”

Illustrative: Israeli soldiers walking next to the destruction caused by Hamas terrorists in Kibbutz Nir Oz on October 7, 2023, near the Israeli-Gaza border, in southern Israel, November 21, 2023. (Chaim Goldberg/Flash90)

The report then turned to Israel’s military offensive in response to the attack, which was launched with the aim of toppling Hamas and returning the hostages. The State Department relied on Hamas-controlled health ministry’s unverified figure of nearly 35,000 Palestinian deaths, which it said “international organizations generally deem credible” while acknowledging does not differentiate between civilians and combatants.

The report also noted Israeli figures that “approximately half of the 34,700 killed in Gaza have been Hamas fighters,” but said “we do not have the ability to verify this estimate.”

“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 in Gaza, or in the West Bank and East Jerusalem during the period of the report,” the State Department said.

“Nevertheless, 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.”

Smoke billows from Israeli strikes on eastern Rafah in the southern Gaza Strip on May 7, 2024. (AFP)

The US government reviewed numerous reports 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.

Workers unload a truck in Beit Hanoun in the northern Gaza Strip of humanitarian aid delivered from Jordan to the coastal territory through the Erez border crossing with Israel, on May 1, 2024. (Jack Guez/AFP)

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 it has a number of internal investigations underway,” the report said.

Following the release of the report, progressive Democrats who have been calling to restrict weapons transfers to Israel fumed, as it was not used in the way they ultimately hoped.

“This report contradicts itself,” Senator Chris Van Hollen of Maryland said in a briefing with reporters. Van Hollen has been one of the leading critics on Capitol Hill of Israel’s military campaign against Hamas and the pressure applied by him and other Democrats is seen to have played a major role in Biden’s decision to order the report.

“It provides a useful accountability structure, but it will be most useful if judgments can be made based on the facts and the law and not driven by what we wish the facts and the law were,” Van Hollen continued. “They’re ducking a determination on the hard… politically inconvenient cases.”

“The report might create an atmosphere where people will push for more limitations on offensive weapons to Israel,” Van Hollen warned.

But given that Congress is split and a sizable number of Democrats aren’t as critical of Israel’s military campaign as he is, it is less likely that such limitations will get very far on the Hill.

Democratic Senator Chris Van Hollen of Maryland speaks at Prince George’s Community College, Center for the Performing Arts, September 14, 2023, in Largo, Maryland. (AP Photo/Alex Brandon)

Representative Michael McCaul, the Republican chairman of the House Foreign Affairs Committee, said the review “only contributes to politically motivated anti-Israel sentiment” and should never have been done.

“Now is the time to stand with our ally Israel and ensure they have the tools they need,” he said in a statement.

Most Popular
read more: