U.S. weapons may have been used in ways "inconsistent" with international law in Gaza, U.S. assessment says
Secretary of State Antony Blinken delivered to Congress on Friday a highly anticipated report on the Israeli military's operations in Gaza that accused Israeli forces of potentially violating international humanitarian law but did not formally find they had already done so, according to the document's key findings.
The report states that though there are allegations that Israel violated international humanitarian law during the period covered by the report, Jan. 1, 2023 through late April of this year, the U.S. doesn't have "complete information" on whether U.S. weapons were used in those actions. Its authors cite the difficulty of determining facts on the ground in an active war zone as well as Hamas's use of civilian infrastructure for military purposes.
"Nevertheless, given Israel's significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles…have been used by Israeli security forces since October 7 in instances inconsistent with its [international humanitarian law] obligations or with established best practices for mitigating civilian harm," the report adds.
Though it finds that Israel "did not fully cooperate" with the U.S. government in the initial months after Oct. 7 to maximize the flow of humanitarian aid, the report notes a "substantial increase" in its efforts more recently.
And while the overall level of aid reaching Palestinian civilians remains "insufficient," the report says, "we do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance" within applicable U.S. law.
The report criticizes the Israel Defense Forces (IDF) for potentially falling short of using well-known best practices for reducing civilian casualties.
"While Israel has the knowledge, experience, and tools to implement best practices for mitigating civilian harm in its military operations, the results on the ground, including high levels of civilian casualties, raise substantial questions as to whether the IDF is using them effectively in all cases," it says.
But the report also reveals that Israel has "opened a number of criminal investigations, which are ongoing, including into allegations related to deaths and treatment of detainees and allegations of violations of international humanitarian law," while noting no known prosecutions for alleged crimes have been completed.
The IDF's fact-finding assessment mechanism also "continues to examine hundreds of incidents to consider possible misconduct in the context of ongoing military operations," the report says.
The report also notes Israel's extensive efforts to inform Gazan civilians of its "hundreds of tactical pauses," where to go (via leafleting and text messages) to avoid harm, and its sophisticated system for identifying where civilians are located", but it also states "the reported rate of civilian harm in the conflict also raises serious questions about the efficacy of Israeli precautionary measures."
A senior State Department official, speaking on the condition of anonymity to discuss a sensitive assessment, said the NSM-20 proved to be a useful tool in getting the Israeli government to provide information about specific incidents and in some cases, in improving the ways in which it was facilitating the delivery of humanitarian assistance.
The 46-page, declassified report is a compendium of views from bureaus and diplomatic officials from across the State Department and includes input from the Pentagon and White House.
The memorandum, known as NSM-20, required written commitments within 180 days from the more than 100 countries that currently receive U.S. military aid that the weapons are being used in accordance with U.S. and international humanitarian law and that the countries would duly facilitate the delivery of U.S. humanitarian assistance. Those in active conflict — including Israel, Ukraine, Nigeria, Somalia, Iraq, Colombia and Kenya — faced a shorter, 45-day deadline of March 24 to submit their assurances.
The State Department then set a self-imposed deadline of May 8 to deliver a mandated review of those assurances to Congress, but the timing of the report's delivery slipped briefly as officials finalized its conclusions.
"This is the first time the department has conducted such an exercise. And so we are taking all deliberate care to make sure that we get everything in it absolutely correct," State Department spokesman Matthew Miller said in a press briefing on May 8.
The report found that the assurances provided by the seven countries in active conflict were "credible and reliable so as to allow the provision of defense articles…to continue."
Democratic Sen. Chris Van Hollen of Maryland, a key proponent of NSM-20, expressed disappointment in the product delivered Friday.
"The one important general finding that was made in this report was the conclusion that there are reasonable grounds to believe that the Netanyahu government has violated international law in its conduct in Gaza," Van Hollen said in a phone briefing with reporters. "But the administration ducked all the hard questions about making the actual determination," he said.
Van Hollen said credible non-governmental organizations had already laid out a number of alleged violations of international humanitarian law in great detail. "But this report skirts any sort of deeper investigation into the facts and law behind those cases."
"It's not credible that the U.S. government has less information than organizations like Amnesty International, Human Rights Watch, Oxfam," he said.
Republican Senator Jim Risch of Idaho, the ranking member of the Senate Foreign Relations Committee, also criticized the report's findings, calling it "politically damaging" for Israel.
"The administration is attempting to placate voters on the far left at the expense of a close ally in the midst of its justified war with Hamas terrorists," Risch said in a statement.
The report comes at a critical time in Israel's now seven-month long military campaign in Gaza. In a marked policy shift, President Biden said in an interview with CNN on Wednesday that the U.S. had paused one shipment of 2,000 pound bombs to Israel to prevent them from being used in a major operation in Rafah, a city in southern Gaza, acknowledging for the first time that "civilians have been killed as a consequence of those bombs."
The White House announcement released Tuesday night specifically stipulated that one shipment of 3,500 bombs, including 500- and 2,000-pound so-called dumb bombs, had been paused the week prior due to concern about the "end use" and the "impact they could have in dense urban settings." The paper statement also stipulated that the State Department was reviewing other deliveries, including JDAM kits, which help turn dumb bombs into precision munitions. More than 1 million Palestinians are estimated to be sheltering in Rafah.
National Security Council spokesman John Kirby said Friday the president had been "fully briefed" on the memorandum.
Israeli forces have for weeks been conducting airstrikes in Rafah, and earlier this week sent in tanks and troops to seize portions of the city, including the Rafah border crossing with Egypt. Biden administration officials have described the incursions to date as "limited," while warning against a broader operation that would imperil a greater number of civilian lives.
In that CNN interview, Mr. Biden also indicated that he'd make sure Israel would continue to receive defensive weapons like the Iron Dome system, but indicated that he might withhold other offensive weapons and artillery shells if the IDF went through with an assault on what he referred to as "population centers" in Rafah.
Following Mr. Biden's remarks, Prime Minister Benjamin Netanyahu of Israel said in a statement, "If Israel has to stand alone, we will stand alone." Israel's war cabinet voted unanimously on Thursday evening to expand operations in Rafah, according to Israeli media.
Mr. Biden issued the NSM-20 in February, following pressure from Democratic lawmakers, including Van Hollen, who called for more stringent enforcement mechanisms to ensure recipients of U.S. military assistance were complying with international law. This coincided with President Biden's request to Congress to approve emergency security supplemental funding to Israel, which ultimately signed off on $26 billion in funding last month on top of the annual $3 billion in annual military aid Israel receives.
Nearly 35,000 Palestinian civilians, most of them women and children, have been killed since the start of Israel's military campaign began in Gaza, according to local health authorities. Israeli forces went in after more than a thousand Hamas militants stormed over Israel's southern border, killed more than 1,200 Israelis and took more than 240 hostages.
Dozens of Democratic lawmakers have already accused Israel of violating U.S. law under the Foreign Assistance Act and are pushing the administration to impose penalties. Multiple human rights organizations and an independent task force have also said Israel has shown a "clear pattern" of violations of international law and restricting humanitarian assistance.
The State Department has active investigations into Israel's conduct under other internal accountability mechanisms, including Civilian Harm Incident Response Guidance (CHIRG), which was established in August 2023. Miller, the department spokesman, in February confirmed incidents in Gaza in which civilians may have been harmed by American weapons were under review.
Friday's report states that "85 alleged incidents of civilian harm involving Israeli military operations in Gaza have been submitted to the CHIRG for evaluation, and approximately 40 percent of those cases have been closed."
The Department has separate processes for making determinations on whether atrocities, including genocide, have been committed in a conflict.
Blinken has also for months been weighing the potential suspension of military aid under a federal measure known as the Leahy Law to one IDF unit determined to have committed gross violations of human rights in the West Bank, before the Oct. 7 attacks. The department has been weighing "new information" about the unit submitted by the Israeli government last month, officials have said.
