The US says it is “reasonable to assess” that the weapons it has provided to Israel have been used in ways that are “inconsistent” with international human rights law, but that there is not enough concrete evidence to link specific US-supplied weapons to violations or warrant cutting the supply of arms.
In a highly anticipated report to Congress, the state department said that the assurances given by Israel and a handful of other countries under scrutiny that they had been using US-supplied weapons in accordance with international humanitarian law (IHL) were “credible and reliable”.
In Israel’s case, the report expresses deep misgivings about Israeli compliance but says the US does not have sufficient evidence about individual cases to recommend that US arms supplies be suspended.
Democratic critics of Israel, including Senator Chris Van Hollen, accused the administration of “ducking” the tough decisions that would be involved in making a formal determination of Israeli non-compliance.
The report is mandated by a national security memorandum (NSM-20) signed by Joe Biden in February to assess whether recipients of US arms are complying with human rights law.
The state department report found that: “Given Israel’s significant reliance on US-made defence articles, it is reasonable to assess that defence articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm.”
A senior administration official said that while that assessment reflected a general view of Israel’s conduct in its war in Gaza, the state department has yet to find definitively that a US weapon was used in a specific incident, in which the intent or the level of negligence constituted a war crime.
Multiple incident reviews have been under way in the state department for months, but if there have been any findings, the secretary of state, Antony Blinken, has yet to make them public.
The NSM-20 report said: “Although we have gained some insight into Israel’s procedures and rules, we do not have complete information to verify whether US defense articles covered under NSM-20 were specifically used in actions that have been alleged as violations of IHL or international human rights law during the period of the report.”
Similarly, the US found shortcomings in Israel’s provision of humanitarian assistance in Gaza.
“During the period since October 7, and particularly in the initial months, Israel did not fully cooperate with United States government efforts and United States government-supported international efforts to maximize humanitarian assistance flow to and distribution within Gaza,” it said.
However, the report also claimed that Israel had “significantly increased humanitarian access”. The senior administration official argued that the period under consideration ran up to the end of April, so did not cover the subsequent closure of entry points into Gaza as a result of the Israel offensive on Rafah, at a time when some parts of the coastal strip are facing famine.
The report comes two days after Biden expressed his own misgivings over the Israeli use of US-supplied weapons, and suggested they underpinned his decision last week to hold up a delivery of a shipment of particularly powerful US-made bombs.
“Civilians have been killed in Gaza as a consequence of those bombs and other ways in which they go after population centres,” Biden said.
He warned there would be further restrictions on the supply of arms, including bombs and artillery shells, if Israel pressed ahead with its offensive on Rafah. The Israeli prime minister, Benjamin Netanyahu, has vowed to proceed with the attack, however.
While Biden was threatening to hold back individual shipments of weapons, a negative assessment by the state department in Friday night’s report on Israeli assurances on its compliance with IHL, could have to led to the suspension of the supply of offensive weapons altogether, “until the required assurances are obtained”.
In assessing Israeli IHL compliance, the state department report notes that the army does have procedures in place that are supposed to mitigate civilian harm, such as the presence of military lawyers in the decision-making process. However, it notes: “Recognising such investigations and legal processes take time, to date the [US government] is unaware of any Israeli prosecutions for violations of IHL or civilian harm since October 7.”
Responding to the report, Van Hollen, who was instrumental in persuading Biden to issue the NSM-20 memorandum, called it “contradictory”, pointing out that it found evidence of violations while it accepted Israeli assurances of compliance to be “credible and reliable”.
“You find a big gap in the administration’s report when it comes to actually looking at specific cases of use of weapons,” the senator said. “While the administration reaches this general conclusion, it fails to do the hard work of making an assessment and ducks the ultimate questions that the report was designed to determine with respect to compliance with international law.”
