Biden’s weapons sales to Israel breach legal limits, former officials say

Biden’s weapons sales to Israel breach legal limits, former officials say

President Biden’s striking admission this week that American weapons are killing civilians in Gaza appeared to mark a turning point in U.S. policy toward Israel — coming days after the Israeli military made its first move on Rafah and before a highly anticipated government report on Israel’s adherence to the laws of war.

While the Biden administration has repeatedly expressed alarm over civilian casualties in Gaza, some former officials say it has drawn out the implementation of laws and policies intended to prevent American weaponry from being used in violation of international humanitarian law.

The breaking point for Biden came Monday, when Israel’s military ordered the immediate evacuation of 100,000 civilians from the southern city of Rafah and seized the border crossing with Egypt, warning it would use “extreme force” against militants in the heavily-populated area.

“I made it clear that if they go into Rafah … I’m not supplying the weapons,” Biden told CNN on Wednesday.

The United States has always been selective in how it invokes international law, experts say, and how it balances rights concerns with realpolitik. But its ongoing material support for Israel’s war in Gaza has led to a rare surge in public backlash from former officials, who say the administration is dragging its feet on enforcing laws meant to limit or condition military assistance to foreign allies.

Rights groups and humanitarian organizations have spent months documenting alleged violations of international law by the Israeli military in Gaza — many believed to have been carried out with U.S.-made weapons — including attacks on civilian neighborhoods, health facilities, journalists and aid workers.

“Just from a legal perspective within U.S. domestic law, there’s a much wider body of rules that is being ignored right now,” said Josh Paul, who formerly worked on arms transfers at the State Department and is the most senior U.S. official to resign over the war in Gaza. “The arms are just continuing to flow.

A Palestinian family lives in a tent above their destroyed house in Rafah on Dec. 13, 2023.

U.S. weapons under scrutiny

The Departments of State and Defense must soon submit a report to Congress assessing the credibility of allegations that U.S.-provided weapons have been used in violation of international law — or in ways that do not mitigate civilian harm.

That report — mandated by the The National Security Memorandum-20, or NSM-20, issued in February — has been delayed, State Department spokesman Matthew Miller told reporters Wednesday, promising an assessment “in the very near future.”

An analysis of several thousand distinct incident reports from Gaza, published by an independent panel of experts last month, found that Israel’s military was acting with a “systematic disregard for international humanitarian law, with recurrent attacks launched despite foreseeably disproportionate harm to civilians and civilian objects.”

The report, echoing the findings of rights groups, also found that American weaponry was used in a significant number of cases.

“When you look at those collapsed buildings where people are trapped underneath, the odds are that that death and destruction is being caused by a United States-supplied weapon,” said Charles Blaha, who worked as Director of the State Department’s Office of Security and Human Rights between 2016 and 2023 and contributed to the independent report.

“There is no remaining reason why the [NSM-20] report should not accurately reflect Israel’s misuse of U.S.-provided weapons,” the authors said in a statement after Biden’s comments Wednesday.

An NSM-20 report that finds Israeli assurances about upholding international law credible “would mean continuing the long-standing U.S. approach to providing support for Israel … making the support unconditional, and endorsing the impunity,” said Brian Finucane, a Crisis Group senior adviser who previously advised the U.S. government on counterterrorism and the use of military force

Nearly 35,000 Palestinians have been killed in seven months of war, according to the Gaza Health Ministry, which does not distinguish between civilians and combatants but says the majority of the dead are women and children. The Israeli military says it has killed 13,000 fighters but has not provided supporting evidence.

Israeli officials blame the steep human toll on Hamas, saying the militant group embeds itself in populated areas and uses civilians as human shields. Yet international humanitarian law still requires that warring parties distinguish between civilians and combatants.

According to a Washington Post analysis published last year, the Israeli military conducted repeated and widespread airstrikes near hospitals in northern Gaza over two and a half months. In at least ten cases, the craters suggested the use of bombs weighing 2,000 pounds, many of which are supplied by the U.S.

Palestinians search for bodies and survivors among the rubble of the Jabalya refugee camp in northern Gaza on Wednesday, a day after an Israeli airstrike hit the area. (Mohammed Saber/EPA-EFE/Shutterstock)

Multiple American-made 2,000-pound bombs were probably used in a daytime strike on the densely populated Jabalya refugee camp in November. The attack, which Israel said targeted a Hamas commander, killed more than 110 Palestinians.

The Insecurity Insight monitoring group has logged 839 incidents of violence against health-care workers, or obstruction of access to health care in Gaza since the conflict began. A Post investigation into one of them — the killing of paramedics dispatched to save the life of a 6-year-old girl — found that an ambulance appeared to have been targeted with an antitank round fired from a Merkava tank, an armored vehicle for which the United States has provided key parts and components.

American weapons have also been linked to multiple attacks on aid workers and installations. A near-fatal Israeli strike in January on a residential compound housing international aid workers most likely involved the use of a 1,000-pound U.S.-made “smart bomb,” according to the findings of a multiagency United Nations investigation reviewed by The Post.

Doctors Without Borders and an independent investigative team concluded that a Merkava tank had also been used in a Feb. 20 attack on a guesthouse for MSF staff, killing two of their family members.

People inspect a house destroyed by a Saudi-led airstrike in Sanaa, Yemen, in 2016.

‘It’s just inexplicable’

In one of his first acts as president, Biden authorized a temporary freeze on the transfer of stealth F-35 fighter jets to the United Arab Emirates and precision-guided missiles to Saudi Arabia, following widespread reports that the weaponry was linked to civilian casualties in the Saudi-led coalition’s war in Yemen.

The decision was made under the Conventional Arms Transfer (CAT) Policy, requiring the government to halt arms transfers where it is deemed “more likely than not” that they will be used to commit serious violations of international humanitarian law.

About 9,000 civilians in Yemen were killed over seven years of coalition airstrikes, according to the Yemen Data Project. The Gaza Health Ministry says more than 10,000 children have been killed in Gaza in just seven months.

Halting arms sales to Saudi Arabia, Paul recalled, “was a simple policy decision made by the Biden administration before they even took office and then communicated to us directly within 20 minutes of the swearing in. The whole debate over Saudi arms certainly informed the discussion on the CAT Policy.”

That updated policy guidance, issued by the Biden administration in early 2023, is “in terms of human rights and international humanitarian law, the best conventional arms transfer policy ever,” Blaha said.

“To see how it has not been implemented [in Gaza], when it is something that this administration put forward, it’s just inexplicable to me,” he added.

Yemenis look down through a hole in the roof of a house which was damaged the day before during an airstrike by Saudi-led coalition warplanes on the nearby base on Fajj Attan hill on April 21, 2015.

“I don’t think there’s any such thing as an exception,” said Oona Hathaway, who served for a year as special counsel to the U.S. Department of Defense. “When you allow a state to engage in actions that at least many people see as inconsistent with international humanitarian law … this has an impact.”

Another set of U.S. laws, known as the Leahy Laws, require an automatic cutoff of security assistance to foreign military units credibly implicated in gross human rights violations until the perpetrators have been adequately punished — or “remediated.” In 2022, they were applied to U.S.-supplied units in Azerbaijan, Kyrgyzstan, Mexico and the Caribbean nation of St. Lucia.

As Secretary of State Antony Blinken weighs whether to withhold support for one such Israeli unit serving in Gaza, some former U.S. officials describe the administration as going out of its way to avoid making a decision.

Two current U.S. officials, speaking on the condition of anonymity to discuss sensitive internal deliberations, said the unit in question is the Netzah Yehuda Battalion — notorious among rights groups and Palestinian civilians for its brutality in the West Bank.

The Washington-based Democracy for the Arab World Now has documented 12 instances of serious abuse by the unit. They include two fatal shootings, two cases of electrocution against detainees, five beatings and one case of sexual assault. While criminal charges have been brought against some lower-ranking soldiers, commanders have often been spared the worst of the consequences.

In a letter to House Speaker Mike Johnson (R-La.) obtained by The Post, Blinken said that while the unit was accused of committing gross violations of human rights and had not been appropriately punished, the United States would “engage on identifying a path to effective remediation.” Blaha described that wording as “unheard of.”

“The phrase identifying a ‘path to’ remediation occurs nowhere in the Leahy laws,” he said. “I have never seen it used, ever.” The State Department did not immediately respond to a request for comment.

Washington’s continuing support for Israel’s military campaign in Gaza, even as it condemns rights abuses in other conflict zones — from Ukraine to Sudan — “undercuts U.S. credibility as it tries to promote international criminal justice efforts and accountability,” Finucane said.

It has also made diplomatic exchanges with other nations more charged in recent months, said one Western diplomat, who spoke on the condition of anonymity to talk about sensitive discussions.

“I’ve sat in conversations where the double standard just hangs heavy,” he said.

John Hudson and Michael Birnbaum in Washington contributed to this report.