Eurasia Press & News
The Biden Administration Must Assess Israel’s Conduct—and Hold It to Account
The military campaign that Israel launched in response to Hamas’s brutal October 7 attacks has killed more than 27,000 people in the Gaza Strip and injured more than 60,000 others, according to the Gaza Health Ministry. About 75 percent of Gaza’s population of 2.3 million has been displaced. Some 400,000 people are enduring famine because of the blockade Israel has imposed on Gaza and the severe restrictions on humanitarian aid that have deprived civilians of what they need to survive. This number could grow if international funding for aid falters.
These figures are staggering, and it is impossible to contemplate them without considering whether Israel has violated international humanitarian law during its campaign. And in fact, a good deal of publicly available information suggests that Israel has done so. Human rights organizations and news outlets have reported on the unlawful collective punishment of the Palestinian population, the use of starvation as a weapon of war, and air and artillery strikes and building demolitions that involved no discernable military targets but yielded significant civilian casualties and destroyed property. Investigations by Human Rights Watch found repeated unlawful strikes on hospitals in Gaza including the Indonesian Hospital, al-Ahli Arab Hospital, the International Eye Care Center, the Turkish-Palestinian Friendship Hospital, and al-Quds Hospital in Gaza. Amnesty International found that homes full of civilians in Gaza were hit with U.S.-made Joint Direct Attack Munitions, killing 43 civilians, including 19 children.
Israel’s repeated use of heavy weapons in populated areas has heightened concerns that it might be carrying out unlawfully indiscriminate attacks. When it comes to the question of whether Israel is violating the law in Gaza, there is enough smoke to suspect a fire. This has put U.S. officials in a bind. The United States is Israel’s most important ally and greatest source of military aid and hardware. Since its founding, in 1948, it has cumulatively received more U.S. foreign aid than any other single country during that period: $300 billion, adjusted for inflation, with another $10 billion potentially on the way. But U.S. law requires the State Department to ensure that U.S. security assistance does not go to security forces that consistently commit gross violations of human rights. And current U.S. policy also requires the department to assess whether a recipient of U.S. military aid is “more likely than not” to use American weapons to violate international law—and to prohibit transfers to any country that meets that criteria.
So far, however, it is unclear whether the State Department has made these assessments. Senior U.S. officials have publicly and privately pushed the Israeli government to minimize civilian harm and allow for the delivery of more humanitarian aid to Gaza. As early as last November, Secretary of State Antony Blinken declared that “far too many Palestinians have been killed” by Israeli forces and said it was “imperative” that Israel have a “clear plan in place that puts a premium on protecting civilians.” (At the World Economic Forum meeting in Davos last month, he echoed that remark: the civilian death toll, he said, was “far too high.”) Secretary of Defense Lloyd Austin delivered a similar message to Israeli authorities early in the war and sent U.S. advisers to Israel to advise the Israel Defense Forces (IDF) on restraint in a challenging environment.
And yet aside from President Joe Biden’s seemingly off-the-cuff warning last December about the reputational risk Israel ran by carrying out “indiscriminate bombing,” U.S. officials have avoided clearly stating that any particular Israeli actions in Gaza were unacceptable. (Administration spokespeople spent days walking back Biden’s comment.) When journalists have asked U.S. officials direct questions about Israel’s conduct in Gaza, they have equivocated. “We’re not going to adjudicate each and every tactical event,” said John Kirby, a White House spokesperson, in December, when asked by a reporter to describe how the United States would look for evidence of Israeli violations. “I’m not going to speak about Israel’s operations,” replied Patrick Ryder, the Pentagon press secretary, when a reporter asked him at a press conference in early November whether Israel’s response had been proportionate. “The U.S. military [is] not participating in IDF target development [or] helping them run their campaign,” he said in a separate exchange during the same press conference. “You know, just to be crystal clear, that it is their operation, they’re running their operation.”
Notably lacking from these official statements and many others like them was any affirmative declaration that Israel was in fact abiding by international law. If U.S. officials believed that Israel was doing so—or at least taking every possible measure to avoid harming civilians under difficult circumstances—they would eagerly say as much. They have not, even though the Biden administration hasn’t been shy about criticizing the conduct of other warring parties in other conflicts.
The reason is that drawing more attention to what is happening in Gaza would almost surely force a policy change that Biden does not want to make. It would confront his administration with a series of difficult choices that it would rather avoid. And it would further complicate the already complex dynamics of the U.S.-Israeli relationship—and possibly create a political vulnerability for Biden in an election year.
But as long as the administration sidesteps the reality of Israeli abuses in Gaza and applies the rules of military assistance selectively, the moral authority claimed by the United States will slip further away. Throughout its history, the United States has promoted respect for the laws of war: doing so, American leaders have long maintained, is one of the things that distinguishes the country from its adversaries. The Biden administration has decried the atrocities committed by the governments of countries such as Russia and Syria but has then pretended that it does not adjudicate—and bankroll—those committed by the government of Israel. The short-term gains of such an approach are far outweighed by the long-term damage it is doing to American credibility and interests. U.S. officials should say out loud what they and every impartial observer know about Israel’s conduct in Gaza: it is unacceptable, and if it does not change, U.S. policy toward military assistance to Israel will. The price of such honesty will be high. But the price of hypocrisy is even higher.
LAY DOWN THE LAW
Not all wartime deaths or injuries to civilians are violations of the laws of war. So long as armed forces attack a legitimate military objective, the weapon used or the method of attack can discriminate between combatants and civilians, and the expected civilian loss from the attack is not excessive compared with the anticipated military gain, an attack is likely lawful. Sometimes it is relatively easy to show that an attack harming civilians was a violation of the law—such as when there is no evident military target. In other circumstances, particularly if an attack may have caused disproportionate civilian harm, it can be very difficult to assess the legality of a particular attack. That is why it is crucial to collect as much information as possible in such circumstances—not only about the civilian losses but about whether enemy forces were involved.
The IDF is operating in one of the most densely populated areas on earth, and Hamas and other Palestinian fighters can disappear into the population and underground. This is a challenging environment in which to make complex targeting decisions. Hamas and Palestinian armed groups also have obligations under the laws of war. They must take all feasible precautions to minimize harm to civilians under their control and not use civilians as “human shields.” But violations on their part do not reduce Israel’s obligations.
U.S. law requires officials to assess what a recipient of American military aid does with the weapons provided. Such assessments would seem especially important when it comes to the war in Gaza, given the sheer scale of Israel’s bombardment and the reported levels of civilian loss of life. But it’s not at all clear that they are happening. Section 502B of the Foreign Assistance Act requires the State Department to ensure that U.S. security assistance does not abet gross violations of human rights. And the so-called Leahy Laws enacted decades ago by Congress prohibit US military aid going to specific units committing gross violations of human rights and have prevented military assistance from going to abusive security forces in Honduras, Nepal, and Nigeria.
If U.S. officials believed that Israel was abiding by international law, they would eagerly say as much.
But according to Josh Paul, who served in the State Department’s Bureau of Politico-Military Affairs for more than 11 years until resigning in protest over the war in Gaza last fall, the Leahy system is “broken” when it comes to Israel. Although bureau staffers identified “many” violations on Israel’s part, Paul asserted in an interview on PBS NewsHour last fall that they are unable to obtain “senior level sign-off” on those determinations. A working group formed at the State Department and dubbed the “Israel Leahy Vetting Forum” is looking into allegations of violations by the IDF, but as an informal staff grouping, its findings are not binding on the department.
State Department lawyers and atrocity crime experts in the department’s Office of Global Criminal Justice are often called on to assess violations of international law in conflicts. Under Blinken, that office and the department’s legal team have reviewed evidence and made official proclamations about violations of international law by the governments of China, Ethiopia, Myanmar, and Sudan. But there is no publicly available evidence that the GCJ or any other office has been asked to make determinations about Israel’s campaign in Gaza.
The harm done by the Biden administration’s apparent unwillingness to apply a legal lens to available information is compounded by its seeming failure to adhere even to policies it has itself put in place as an expression of Biden’s putative commitment to human rights. Last year, the State Department adopted what it calls the Conventional Arms Transfer (CAT) policy, which requires officials to assess whether a security partner is “more likely than not” to use U.S. weapons to violate international law. If the answer is yes, the U.S. government is prohibited from making transfers to that country.
The White House introduced the policy in February 2023, recognizing that “when not employed responsibly, defense materiel can be used to violate human rights and international humanitarian law, increase the risk of civilian harm, and otherwise damage United States interests.” But U.S. support to Israel since the hostilities in Gaza began likely means that the administration violated its own policy almost immediately after it was put in place. In meetings with representatives from nongovernmental organizations, State Department officials have said they are assessing Israel’s conduct under the CAT policy but declined to reveal any findings they have made or provide a timeline for doing so.
Legal violations on the part of Palestinian armed groups do not reduce Israel’s obligations under the laws of war.
Last August, the Biden administration also issued new rules, dubbed the Civilian Harm Investigations and Response Guidance, to compel the State Department to investigate allegations of U.S. weapons being used to harm civilians. According to State Department officials, some of the first investigations launched under the CHIRG have looked into Israel’s conduct in Gaza. But the result of CHIRG investigations are not required to be made public, and U.S. officials are not bound to act on the basis of whatever the investigations reveal.
As the Biden administration buries its head in the sand, Congress seems similarly reluctant to seriously examine the situation. In December, Senator Bernie Sanders, an independent from Vermont, put forward a resolution in the Senate that would have required the State Department to report on Israel’s adherence to international law: a reasonable, straightforward request to ensure Israel is abiding by Congress’s own legislation on arms transfers. The resolution would not have cut off aid to Israel, but it nevertheless failed, as too many senators either believe there is no reason to question Israel’s conduct—or don’t want to look too closely at the facts.
The reason behind this congressional timidity—and the reason why the Biden administration seems not to have used any of the tools at its disposal to assess Israeli conduct—is hardly a mystery: publicly acknowledging any Israeli violation of international or U.S. law would mean having to answer uncomfortable follow-up questions and make difficult decisions about how to change or condition future military aid to Israel. (There is also the question of whether individual officials might face legal jeopardy for complicity in grave abuses if Israeli misconduct were officially acknowledged: in recent years, U.S. officials cut back on military support to Saudi Arabia’s indiscriminate strikes in Yemen, which killed thousands of civilians—apparently at least in part out of fear that continuing to do so might make them legally complicit in war crimes.)
A DANGEROUS DOUBLE STANDARD
The worst result of the administration’s refusal to comply with the letter and spirit of U.S. law is that Washington might be making possible the massive and potentially criminal loss of civilian life in Gaza. But another victim of this approach is U.S. credibility, which has been damaged by what is at best inconsistency and at worst hypocrisy. Consider, for example, how in 2016, President Barack Obama condemned Syrian President Bashar al-Assad’s denial of food and water to civilians in Aleppo. Israel has arguably done the same thing to Gaza’s civilian population for over three months without any criticism for this tactic from the Biden administration. (Biden has pushed Netanyahu to open access to Gaza for more aid but has not directly criticized the blockade.)
Russia’s indiscriminate airstrikes on hospitals and schools in Ukraine have rightly drawn condemnation from Biden and other administration officials. But Israel has also carried out attacks striking hospitals and schools without eliciting much protest from the White House. “We do not want to see innocent patients who are sick or wounded be injured or killed in the crossfire,” National Security Adviser Jake Sullivan said on CNN in November. But, Sullivan added, the IDF had assured Washington “that they are looking for ways to be able to ensure the safety and security of individual patients in those hospitals.” The situations that the Russian and Syrian governments faced were not comparable to Israel’s after the Hamas-led attacks on October 7. But once a country decides to use military force, it must fully adhere to the laws that govern conduct in war, which apply to all countries, as well as nonstate armed groups.
Some might argue that the United States can afford a little hypocrisy in order to support its longtime ally Israel. But playing a part in the erosion of international law will have harmful consequences for the United States far beyond Gaza. Future declarations by the State Department concerning atrocities will ring hollow, making it harder to hold perpetrators accountable and deter future international crimes. Pressure on warring parties to abide by the laws of war in other places—for example, Azerbaijan or Sudan—will carry less weight. In the eyes of the world, it will become harder to distinguish the United States from countries that outright dismiss international law and intentionally undermine the rules-based international order through their actions.
To start reining in Israel and to stop the hemorrhaging of American credibility, the Biden administration needs to task its lawyers to assess all available information—classified and unclassified—on Israel’s military campaign in Gaza and determine when and where Israeli forces have violated the laws of war, and whether the IDF held those responsible to account. Their findings should be made public, and the evidence presented to Congress. While those assessments are happening, Israel should be put on notice that U.S. military aid is at risk.
The political costs of looking squarely at the evidence and correcting U.S. policy as necessary won’t be comfortable for a president and legislators on the campaign trail. But those costs are lower than the cost of U.S. authorities acting as if the acute suffering of the Palestinian people in Gaza does not deserve the same scrutiny as the suffering of civilians in other conflicts, a stance that gives ammunition to those who claim that, when it comes to applying core American principles and protecting basic human rights, Washington applies an obvious—and obviously hypocritical—double standard.
