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 20, 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-20 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 Times’ story 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.-20, correct? The report itself states, “Israel has not shared complete information to verify whether U.S. defense articles covered under NSM-20 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.-20 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.-20 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.-20 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.-20 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?
I think the report indicates that although there may be ongoing investigations, they’re just that—ongoing—and there’s no clear indication of what kind of accountability will result. In all these cases, the report talks about these ongoing processes, partly as a way for the Administration not to have to reach any conclusions themselves. I think the jury is very much still out with respect to what kind of accountability will actually be implemented.
I just want to mention some of the humanitarian issues that you alluded to earlier. The report states, “During the period since October 7, and particularly in the initial months, Israel did not fully cooperate with USG efforts and USG-supported international efforts to maximize humanitarian assistance flow to and distribution within Gaza. There were numerous instances during the period of Israeli actions that delayed or had a negative effect on the delivery of aid to Gaza.” But then the report sort of goes on to say that there is no evidence that the Israelis are intentionally blocking aid. Did you understand that dissonance?
Well, this is part of my concern with the report. The Administration made broad statements about the lack of coöperation over a period of months, but then concluded that, at this moment, the Israeli government is coöperating sufficiently enough that they’re not in violation.
And you and I can debate whether at this particular moment the government of Israel is coöperating sufficiently to meet the standard laid out in N.S.M.-20, which is the international-law standard. But what is undeniable is that for months the Netanyahu government was in violation of international standards. And this report glosses over that. It does not say that those standards were violated at any time. And this is my real concern, because if the standard for delivery of humanitarian assistance during this period of months is in any way acceptable, God help us all. All the credible humanitarian organizations that have looked at this question have been loud and clear that it does not meet the standard of facilitating the delivery of humanitarian assistance in accordance with international law.
What’s confusing about the report is that it seems to acknowledge what you just said. It says directly, “The USG has had deep concerns during the period since October 7 about action and inaction by Israel that contributed significantly to a lack of sustained and predictable delivery of needed assistance at scale, and the overall level reaching Palestinian civilians—while improved—remains insufficient.” It then states, “We do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance within the meaning of section 620I of the Foreign Assistance Act” and “More recently, Israel has substantially increased humanitarian access and aid flow into Gaza, reaching significantly higher levels that require continued upward trajectory to meet immense needs.” They seem to be acknowledging in the report that this has been insufficient, but then it seems like they’re putting a lot of weight on April, which is the month when aid ticked up a little bit.
Well, that’s right. What they did was take a snapshot of the present and say, Things have improved after the terrible attack on the World Central Kitchen aid workers, and therefore we’re not going to trigger any policy consequences. But they did not make absolutely clear that for months until the current moment, the Netanyahu government has been in clear violation of international humanitarian-law standards on the delivery of assistance to starving people.
I met with senior Administration officials in the lead-up to this report. I really urged them to make clear not only that the Netanyahu government had not coöperated with us but that it had failed to coöperate in the delivery of humanitarian assistance to the point that it clearly violated the acceptable standards. The report implies that, but it ends by saying, Well, things are better now.
Right, it says, “On April 4, President Biden secured commitment from Prime Minister Netanyahu on a series of concrete steps that—if fully implemented and sustained—would substantially improve the delivery and distribution of assistance and materially improve humanitarian conditions for civilians in Gaza.” If you were an alien reading the report, until you get to that section, you would think, Oh, wow, this sounds pretty bad. It seems like Israel was really not allowing humanitarian aid in.
It’s very true. The other part of the report that really was just glossed over was the provision that required the Administration to tell us the extent to which the use of weapons was consistent with American best practices for reducing civilian harm. You could have a terrible incident where hundreds of civilians get killed depending on the target and the value of the target. Some people will argue that it still met the requirements of international law. But that’s a different assessment than concluding that measures were taken to minimize civilian harm in accordance with the U.S. best practices.
The U.S. has been far from perfect, but we have worked to minimize civilian harm recently. I mean, we just had a whole report about a civilian who got killed in Syria. I don’t know how closely you followed that.
I actually don’t know about that.
Senator Elizabeth Warren and I, as part of an ongoing effort to push the Defense Department to reduce civilian harm, asked them to look at this. They may have looked at it anyway. But it was a very deep analysis where just one person was killed, after being mistaken for an ISIS target in Syria, and there was this whole exhaustive review. But my over-all point here is about a couple of lines in the Israel report. One is that the intelligence community assesses that Israel could do more to reduce civilian harm.
Yes. The report states, “The IC has no direct indication of Israel intentionally targeting civilians. The IC assesses that Israel could do more to avoid civilian harm, however.”
Yeah, that’s it. And then there’s another line that says that the I.D.F. has tools that could help to effectively reduce civilian harm but doesn’t seem to be implementing them. Something to that effect. There are just scores of examples that could be consulted for this discrepancy.
One of the things that’s pretty tragically ironic about the report coming out now is highlighted by what I read in a Times piece this morning, Sunday morning, which begins, “The flow of aid into Gaza has almost entirely dried up in the past week, according to the United Nations.” And it seems like the report placed all this emphasis on late April and early May, when aid went up a little bit. But now it seems like it’s really almost got worse than before, which, again, is both incredibly worrisome and also kind of shines a light on the sort of absurdity of focussing on this very narrow period of time.
That’s exactly right. I mean, if you look at today, nothing’s getting through the Rafah crossing. There may be a trickle of aid getting through Kerem Shalom, but they’re unable to distribute it within Gaza because of the ongoing military operations around Rafah. And so the humanitarian situation is now getting worse, not better.
N.S.M.-20 does require this sort of continuous review. It says that, if at any time the Secretary of State determines that the assurances that were provided by the government of Israel are no longer credible, then the Secretary’s supposed to recommend a policy review to the President of the United States, and actions, up to and including terminating offensive assistance, could be taken. The report focusses on this short period of time, post-World Central Kitchen killings, and it doesn’t speak to the months and months before. It never says that at points in time international standards were clearly violated and that U.S. standards were clearly violated. One reason I suspect the report did that, at least with respect to U.S. laws, is that many of us believe that Section 620I of the Foreign Assistance Act has been violated. If the report acknowledges that there were violations in the preceding months, the Administration will be asked why it didn’t apply 620I. [The section states, “No assistance shall be furnished under this Act . . . to any country when it is made known to the President that the government of such country prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.”]
I know President Biden has said he’s not going to send a batch of weapons as long as this invasion of Rafah seems to be proceeding. But it doesn’t seem like, on the whole, there’s a major rethink of the American-Israeli relationship while this war goes on.
Well, I do think that the decision by the President to withhold these big bombs until his objectives and concerns about Rafah have been met is significant. I’m not suggesting it’s a whole rethink, but it is significant. And what the President was clearly saying was, I’ve made my views clear that an invasion of Rafah is unacceptable because it will cause even greater civilian casualties. It will make a bad humanitarian situation even worse, and it will make it harder for us to achieve the goal of returning the hostages.
My view is that we should be holding up offensive weapons until all of the President’s concerns and objectives are met, including the delivery of humanitarian assistance at the level needed to prevent starvation. ♦
