The Biden Administration’s Have-It-Both-Ways Report on Gaza

On Friday, the State Department declared in a new report that Israel’s conduct during the war in Gaza has “raised serious questions” about whether it is “upholding established best practices for mitigating civilian harm.” At the same time, the report did not find sufficient evidence to restrict military aid to Israel, which would be required

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On Friday, the State Department declared in a new report that Israel’s conduct during the war in Gaza has “raised serious questions” about whether it is “upholding established best practices for mitigating civilian harm.” At the same time, the report did not find sufficient evidence to restrict military aid to Israel, which would be required by U.S. law if American weapons and aid were not being used in accordance with international legal standards. The report is a result of National Security Memorandum 2src, which the Biden Administration issued in part in response to criticism from congressional Democrats who have been arguing that Israel’s war is violating international law, and thus should trigger a reassessment of the nearly four billion dollars in annual military aid that the United States gives Israel.

Although the report found it “reasonable to assess that defense articles covered under NSM-2src have been used by Israeli security forces since October 7 in instances inconsistent with its [International Humanitarian Law] obligations,” it concludes that the Biden Administration can continue aiding Israel as it sees fit. (This is all separate from Biden’s announcement last week that he was delaying the delivering of certain bombs because of Netanyahu’s threat to launch an invasion of Rafah.)

One of the main Democratic critics of the Biden Administration’s policy on this issue has been Maryland Senator Chris Van Hollen. He and I have previously spoken about Israel’s role in blocking humanitarian assistance, and why the Biden White House was reluctant to put pressure on the Israeli government. We spoke again over the weekend, after the report was released. During our conversation, which has been edited for length and clarity, we discussed why he thinks the report doesn’t adequately address the way that the war in Gaza has been fought, why the Biden Administration may have been concerned about the consequences of issuing a tougher report, and why the humanitarian situation in Gaza is once again getting worse.

The Timesstory on this report said that it “seemed at odds with itself in places,” which I thought was wryly phrased. Was that your takeaway?

Well, my takeaway was that the report reached certain important general conclusions. For example, it concluded that it was reasonable to assess that U.S. weapons had been used in a manner inconsistent with international legal obligations in Gaza, and it concluded that the I.D.F. could do more to reduce civilian harm. That was a finding by the intelligence community. But it ducked making determinations about a whole range of incidents where there is lots of information now available.

You’re talking about how the report lists a bunch of incidents, some of which have been public, such as the World Central Kitchen strike, and then it basically says that they’re very concerning, but doesn’t go beyond that?

Well, that’s right. First of all, it only reviews a small number of incidents. It looks at five cases where humanitarian-aid efforts were hit. It looks at five other cases where there were huge numbers of civilian casualties. But if you look at reports that have been provided by independent, credible organizations, such as Amnesty International, Human Rights Watch, and Oxfam, it is clear that the Administration decided not to reach the hard conclusions that the evidence supports.

One confusing aspect of the report is how it acknowledges Israel’s unwillingness to share more information, which it is required to do by N.S.M.-2src, correct? The report itself states, “Israel has not shared complete information to verify whether U.S. defense articles covered under NSM-2src were specifically used in actions that have been alleged as violations of IHL [international humanitarian law] . . . Limited information has been shared to date in response to USG inquiries . . .”

I don’t know that by its own terms N.S.M.-2src requires information sharing. But we should expect that when the United States is providing these weapon systems, we should be able to obtain information on how they’re used because there is an obligation under N.S.M.-2src for the Administration to report to Congress and to the American people on how our weapons are being used. So one of the problems appears to be that the Netanyahu government refuses to provide us with that kind of information, which is a statement in itself.

Right, N.S.M.-2src says that the “Secretary of State shall: obtain credible and reliable written assurances from a representative of the recipient country as the Secretary of State deems appropriate that the recipient country will use any such defense articles in accordance with international humanitarian law.”

Absolutely. I mean, look, the Administration received assurances in writing from Israel’s Minister of Defense, Yoav Gallant, that our systems would be used in a manner consistent with international humanitarian law, and now we have scores of cases where independent, credible groups have found that they have not been used in that way. The Biden Administration should of course insist on getting that information, and given that Israel has not been forthcoming, clearly you would think it would be harder for the Administration to conclude that the assurances are valid.

But there’s not a direct line between what the report finds and what policy determinations have to be made. And this is why I really had urged the Administration to use the report to lay out in detail where there were violations of international humanitarian law, including those around arbitrary restrictions put on the delivery of aid. What the Administration has done is found in very broad strokes that there’s likely to have been violations of international humanitarian law, and that it’s reasonable to conclude that there have been such violations without specifying examples. And the reason it was important, in my view, to provide some examples is that we don’t want a situation where we set a very low bar for what is acceptable conduct or what’s an acceptable standard.

Right, you end up with lines in the report like, “Certain Israeli-operated systems are entirely U.S.-origin (e.g., crewed attack aircraft) and are likely to have been involved in incidents that raise concerns about Israel’s IHL compliance.” But you’re saying that they never say whether a specific weapons system was used in a particular attack, which violated international humanitarian law.

Yes, I think that’s accurate, and I think the same holds true on the issue of facilitating the delivery of humanitarian assistance.

I want to ask you about something you just said: “There’s not a direct line between what the report finds and what policy determinations have to be made.” Can you talk more about what that means?

What I was saying is that the purpose of the report is to lay out in unvarnished detail the cases in which U.S. weapons were used in violation of international humanitarian law, and the Administration decided to duck those hard questions. I’m glad they did make the over-all statement that, given all of these cases, it’s reasonable to conclude that international humanitarian law has been violated. But I think there are scores of cases that are not even mentioned in the report. N.S.M.-2src does require that all credible instances of violations of international humanitarian law be reviewed, and clearly cases were reviewed, but the report does not begin to address the scope of cases.

This is why I had really urged the Biden Administration to use the report to provide these determinations because the memorandum does require the Administration on an ongoing basis to assess the credibility of the assurances. If you had one of these bombings take place in the middle of October of last year, maybe the Administration decides not to take that into account going forward. But it still would be worthwhile to explain why that was a violation of international humanitarian law.

One section of the report states, “Israel’s own concern about such incidents is reflected in the fact it has a number of internal investigations underway.” Is your understanding that Israel is seriously interested in investigating these incidents?

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