For Biden, a tough call looms on whether Israel violated laws in Gaza

07/05/2024

The Biden administration is expected to notify Congress this week whether it believes Israel has violated U.S. or international law in Gaza, a determination with significant moral and political stakes for President Biden.

The forthcoming report, portions of which are expected to be made public after its transmission to Capitol Hill on Wednesday, arrives at a difficult time for U.S.-Israeli relations, as President Biden and Prime Minister Benjamin Netanyahu tangle over Israel’s defiance of Washington’s warnings about its conduct of a war and blockade that has killed more than 34,000 Palestinians, according to the Gaza Health Ministry, and triggered the onset of famine.

A finding by the administration that Israel has violated U.S. or international law will almost certainly amplify calls for a suspension of American military aid, and is sure to anger conservatives who have railed against American criticisms of the Jewish state, as well as centrist political donors and many voters as Biden mounts a difficult reelection bid.

Yet to conclude otherwise, amid the conflict’s enormous civilian toll, would risk a backlash from liberals.

Politicians from both parties have already voiced their apprehension, underscoring the challenges Biden faces — and the improbability he emerges unscathed by the report’s findings — whatever they may be.

“God help us if this report somehow says that … the delivery of humanitarian assistance has been compliant with international standards,” Sen. Chris Van Hollen (D-Md.), who is among the Democratic Party’s most outspoken critics of the administration’s management of the Gaza crisis, told reporters last week, referring to Israel’s control of Gaza’s border. “God help us if that’s your finding because anybody with eyes to see and ears to hear knows that that’s just not true.”

Under pressure from Van Hollen and other Democrats, Biden in February issued a National Security Memorandum that stipulates any country receiving U.S. military aid must provide written assurances they are abiding by international law and U.S. laws governing foreign aid. The State Department is then to produce a report assessing the credibility of those assurances.

The memorandum itself does not trigger specific actions should the State Department determine Israel is not in compliance. But the U.S. Foreign Assistance Act and other laws do, lawmakers say.

Were the Biden administration to conclude, for example, that Israel has restricted humanitarian aid from entering Gaza — something U.S. officials have already acknowledged as happening — or that Israel has carried out military strikes on hospitals or aid operations in which the harm to civilians was disproportionate to the importance of the suspected target, the administration could be compelled, under U.S. law, either to suspend weapons transfers or issue a waiver. Both scenarios could also amount to violations of international humanitarian laws, experts say.

“The Biden administration is trying to walk a fine line, but I think doing it poorly, and is frankly making everyone angry,” said Rep. Michael Waltz (R-Fla.), who like most other members of his party, believes Biden’s memorandum and any negative action toward Israel would be harmful to U.S. national security.

Recent reports by prominent human rights monitors and legal experts, along with a leaked State Department memo, have suggested that many of those examining the allegations of wrongdoing believe Israel has violated the law.

The Israeli Embassy in Washington did not respond to a request for comment, but the Israeli government has repeatedly defended its actions as compliant with international law. Netanyahu’s government has attributed civilian casualties to Hamas’ presence within Gaza’s dense civilian population, and the militants’ use of civilian infrastructure; and has blamed its restriction of aid convoys on Hamas, which it says uses certain materials to further its fight.

Eighty-eight congressional Democrats on Friday wrote to Biden to express their belief that “there is sufficient evidence that Israel’s restrictions on the delivery of US-backed humanitarian aid violate [U.S. law], and therefore call into question the assurances Israel provided pursuant to National Security Memorandum 20.”

The letter, led by Rep. Jason Crow (D-Colo.), a member of the House intelligence committee, urged Biden to enforce the memorandum’s terms and “suspend certain transfers should it find the Netanyahu government is violating U.S. laws and policies.”

Smoke rises into the air following Israeli strikes in Rafah, southern Gaza, on Monday.

The Israeli military on Monday ordered about 100,000 civilians to “immediately” evacuate the Palestinian border city of Rafah, in southern Gaza, ahead of a planned Israeli military operation there, a move the International Rescue Committee predicted “will result in catastrophic humanitarian consequences,” and which Biden has suggested would be a “red line.”

“I’m interested to see the case that the president makes” for or against Israel’s adherence to the law, said Sen. Chris Murphy (D-Conn.), adding that he has “not yet seen evidence that Israel is compliant.”

“And I think this operation in Rafah is, in many ways, going to be determinative of whether they’re abiding by the letter and the spirit of the memorandum,” Murphy said.

Spokesmen for the White House National Security Council and the State Department declined to comment on the forthcoming report or the political fury surrounding it. But U.S. policymakers involved in its preparation have said the administration recognizes it is in a tough position.

No matter the outcome, one official said, someone will find fault with it. The report is, at its essence, a proxy for the larger argument over whether the Biden administration should continue arming Israel, the official added, speaking on the condition of anonymity to discuss a sensitive topic. And short of a decision to withhold weapons, there is little the administration believes it can do to avoid blowback from skeptical Democrats in Congress.

Republicans have seized on the prospect of suspending Israel aid to argue that the administration is betraying a strategic ally in the interest of pandering to domestic politics.

Rep. Michael McCaul (R-Tex.) and Sen. James E. Risch (R-Idaho), the chair and ranking Republican, respectively, on the House and Senate foreign committees, have accused Biden of issuing the memorandum “to appease critics of Israel.” The policy is redundant to existing U.S. law, and its reporting requirement is “motivated by anti-Israel sentiment,” they wrote in a recent letter to Biden.

Waltz, who sits on all three of the House national security committees, said he has spoken recently to some of his “moderate, national security-minded” Democratic colleagues who, he said, “are getting thousands of calls per week.”

“Some have had daily protests outside their district offices,” Waltz said. “It has become a very fraught political situation.”

Demonstrators in Chicago march in protest of the city’s plan to host the Democratic National Convention there this summer.

About a month and a half after Biden issued his memorandum, lawmakers and congressional aides said the Israeli government provided the State Department with its assurances that Israel was in full compliance with U.S. and international law. One Republican aide, who spoke on the condition of anonymity because they were not authorized to speak with the media, said that while they opposed Biden’s policy, they expected that the report would not find Israel guilty of any violation.

Administration officials have said Israel has dramatically improved the flow of humanitarian aid into Gaza in recent weeks, even as the Pentagon prepares to deploy a temporary pier to serve as a supplemental delivery point for food and other necessities — necessary, they say, because a sufficient amount is not getting in through Gaza’s land crossings.

Many Democrats have praised the increase in humanitarian assistance, attributing the development in part to the threat of negative findings in the forthcoming report.

But Van Hollen said he has also urged the administration to remember: “This report is supposed to chronicle what’s happened since the beginning of the war,” regardless of whether there have been recent improvements.

“If the finding of fact and law is that at no point since the beginning of the war in Gaza has there been a violation of international humanitarian law with respect to the delivery humanitarian assistance,” he added, “you have set a terribly low bar for the world.”

Michael Birnbaum and Karen DeYoung contributed to this report.