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US arms aid to Israel tests whether humanitarian law applies

Congress expected to revisit emergency request when it returns from Thanksgiving recess

Anti-war protesters hold banners and signs calling for a cease-fire in Gaza on Nov. 3 in the Hart Senate Office Building.
Anti-war protesters hold banners and signs calling for a cease-fire in Gaza on Nov. 3 in the Hart Senate Office Building. (Bill Clark/CQ Roll Call)

The looming decision over billions of dollars in requested assistance to Israel for its military campaign in the Gaza Strip is testing some basic humanitarian principles of the Biden administration and putting extraordinary scrutiny on Washington’s relationship to Israel. 

Congress is expected to revisit the emergency aid request when it returns in late November from the Thanksgiving recess. The House passed a bill that would provide $14.3 billion in mostly security assistance to Israel. The Senate has yet to act amid disagreement with the House over whether to include billions of dollars in support for Ukraine.

Lawmakers’ decision will come during a heated legal debate over whether the carnage from Hamas’ Oct. 7 attack on Israel — in which about 1,200 people, mostly civilians, were murdered and another roughly 240 individuals were taken hostage — means the normal international rules of war, requiring extreme care to reduce civilian casualties, still apply in Israel’s drive to eradicate Hamas.

The evolution of the body of conventions and treaties that make up modern international humanitarian law is a response to the devastating civilian losses from the wars of the 20th century. It holds that, regardless of the legality of the underlying war being waged, civilians must not be disproportionately harmed in pursuit of a military objective and that distinctions must be made between legitimate military targets and civilian sites.

Thousands of residents of Gaza have been killed and thousands more have been injured, according to critics of Israel’s actions. Israel says it is taking reasonable measures to lessen civilian casualties but because Hamas has placed weapons caches and dug tunnels in civilian areas, including hospitals, civilian deaths are inevitable.

“It has been almost six weeks of hell for the people of Gaza. … Six weeks far too long for the hostages and their families, and far too long for the entire region,” Philippe Lazzarini, the commissioner general of the United Nations agency for Palestinian refugees, said Nov. 16 in Geneva. “It has also been six weeks of total disregard for international humanitarian law. I have to say the scale of destruction and loss is just staggering.”

Lawmakers acknowledge the human cost but remain overwhelmingly supportive of Israel.

“The Palestinians are victims of Hamas. Just as the Jewish people are victims of Hamas. This is the largest killing of Jewish people since my father’s war, World War II, and the Holocaust,” House Foreign Affairs Chairman Michael McCaul, R-Texas, said in an interview with CNN on Nov. 15. “And that, you know, is hugely important. Our gripe is not with the Palestinian people. We want to liberate them from their oppressor.”

Many Democrats, while still supportive of the security package for Israel, are calling for the Israel Defense Forces to undertake more humanitarian pauses to allow fuel, food and other supplies into densely packed Gaza. Comparatively few are calling for the total cease-fire that many human rights experts say is needed for both the immediate protection of Palestinian civilians as well as for the long-term interests of Israel and the United States.

The intense focus coming from outside activists both for and against the proposed arms transfers to the IDF has drawn a renewed and sometimes uncomfortable focus to the unique position Israel has long held when it comes to receiving weapons assistance that the U.S. would have cut off or reduced from other nations with similar civilian casualties and apparent rights violations.

The United States’ veto power on the U.N. Security Council leaves little chance that any resolution to punish Israel and its Western arms suppliers for humanitarian law violations can pass. But Washington’s reputation in much of the world, especially the Middle East, is harmed by the Palestinian civilian death toll, experts say, and that undermines the effort to persuade more developing countries to side with the West against Russia and China.

Administration ignores its own guidance

The Biden administration’s potential disregard of its own efforts this year to elevate human rights in U.S. foreign policy decisions is another point of vulnerability. Those actions include several steps this year to increase scrutiny of conventional weapons transfers to foreign governments.

The administration released a revised Conventional Arms Transfer Policy in February, ostensibly giving human rights more weight than during the Trump administration for deciding whether to approve weapons transfers overseen by the State, Defense and Commerce departments.

“The transfer of arms shall not be authorized is what [the policy] says when it is more likely than not that those arms will be used to commit human rights violations or to aggravate the risk of human rights violations,” said Josh Paul, who resigned as director of congressional and public affairs within the State Department’s Bureau of Political and Military Affairs in October. He made the comment at a media briefing last week organized by the Forum on the Arms Trade, which helps disseminate expert views about the humanitarian implications of arms sales. 

“I think there can be no question that the U.S. arms transfers to Israel in this context aggravate the risks of human rights violations if not contributing to them directly, which I believe they also are,” Paul said.

The administration also cabled new guidance late this summer to all its embassies for responding to incidents in which civilians have been harmed by foreign governments using U.S.-provided weapons. Under the process laid out by the guidance, arms sales to the foreign nation can be suspended, according to a report by The Washington Post.

“Under U.S. domestic laws and policies … violations of the kind that we’ve seen, war crimes on both sides, which are serious violations of [international humanitarian law], they would in any other circumstance, I think, cause U.S. officials both in the executive and in the legislature to take another look at their security assistance and support for the warring parties or one warring party,” Sarah Yager, Washington director of Human Rights Watch, said at the Forum on the Arms Trade’s briefing.

Yager noted her organization has done something it rarely does: called for a suspension of arms sales to all sides involved in the current conflict.

“But that kind of administration and congressional oversight has really been missing on Israel for decades,” she said. “Certainly, right now we are not seeing a willingness to take a look at the provisions within domestic law and policies that would really create some sort of scrutiny around what’s happening.”

On Nov. 15, 24 House Democrats, led by Rep. Alexandria Ocasio-Cortez of New York and Defense Appropriations ranking member Betty McCollum of Minnesota, wrote to President Joe Biden to urge him to call for a cease-fire to protect the roughly 1 million Palestinian children and youths trapped in Gaza.

“We also share dire concerns with the ongoing Israeli response, in which the Israeli Defense Forces have killed over 11,078 Palestinians, nearly half of whom have been children,” reads the letter, which condemned Hamas’ attack on Israel. “During the past 39 days of hostilities, at least 4,506 children have been killed in the Gaza Strip and at least 7,695 children have sustained injuries. Additionally, about 3,250 Palestinians in Gaza, including at least 1,755 children, have been reported missing and are presumed to be trapped or dead under the rubble, awaiting rescue or recovery.”

A co-signer of the letter, Rep. Cori Bush, D-Mo., last month introduced a resolution that calls for an immediate cease-fire. It has 17 co-sponsors, all Democrats.

And Rep. Ilhan Omar, D-Minn., on Thursday introduced a joint resolution of disapproval that would block a proposed export license for $320 million in advanced air-to-surface precision-guided munitions known as Spice guidance kits for Israel, which the State Department recently notified to Congress.

The joint resolution has the support of a few progressive House Democrats as well as dozens of civil society groups, including Justice Democrats and the Center for Civilians in Conflict. The measure is privileged under the Arms Export Control Act, so a vote is anticipated in the weeks ahead.

Senate Democrats seek to strike balance

In the Senate, some Democrats are calling for more to be done to protect Palestinian civilian lives while stopping well short of urging a cease-fire or criticizing proposed weapons transfers to Israel. Only Sen. Richard J. Durbin of Illinois, the Senate’s No. 2 Democrat, has called for a cease-fire so far, although he wants it timed with an agreement by Hamas to release hostages.

And over the weekend, Sen. Bernie Sanders, I-Vt., became the first senator to call for conditioning any new security assistance to Israel on an end to the “indiscriminate bombing” over Gaza, an end to Israeli settler violence against Palestinians in the West Bank, and a recommitment by the Israeli government to peace negotiations for a two-state solution.

Fifteen Senate Democrats issued a statement in early November that reminded Israel of its “obligation, pursuant to international law, to conduct [its campaign against Hamas] in such a way as to minimize harm to civilians and allow humanitarian aid to reach those who are suffering.

“We acknowledge the increased burden that this necessarily places on Israel to accomplish these obligations,” the statement continued.

In a Sunday interview with CNN, White House deputy national security adviser Jon Finer did not directly answer a question about whether the Biden administration would accept the calls from Sanders and others for conditions on any new security assistance to Israel, arguing instead that Israel is already subject to international humanitarian law conditions in the aid it receives from the U.S.

“All of the requirements associated with international humanitarian law are applicable here,” Finer said, adding “Israel is fighting an adversary that not only does not hold itself to these same standards; it openly boasts about flouting them … That does not diminish Israel’s obligations, but it is a facet of this conflict that makes the challenge extremely daunting.”

On Capitol Hill, some Republicans are defending Israel’s campaign in Gaza, minimizing reports of civilian deaths and questioning international humanitarian law protection for Palestinians.

“Here’s what we have to realize: Not everybody that’s a Hamas fighter is in a black hood and a green bandanna and labels themselves Hamas. They are children — which are, you know, by definition, people under the age of 18. They are women. They are elderly people,” Rep. Brian Mast, R-Fla., who was an IDF volunteer in 2015, said in an interview last week with Fox News. “The lie that Hamas wants and Palestinians want you to buy is that it’s only military-age male fighters that want to see the destruction of all of Israel, the destruction of all of the Jews across the globe.”

Legal experts have pushed back vociferously on the argument that Palestinians in Gaza don’t deserve humanitarian law protections because they might be sympathetic to Hamas or have family members in Hamas.

“Even if one is a mother of a Hamas fighter, knew that he was a Hamas fighter, you still can’t go after the mother. I mean, they’re all civilians. They’re not combatants. And in war, there is a pretty sharp distinction between the two,” David Scheffer, a legal expert on international human rights laws, said last week during a media briefing organized by the Council on Foreign Relations.

“The real problem is, how do you determine on the battlefield? … It’s extremely difficult. But you don’t work from the presumption that the people, simply because they voted for Hamas, are somehow ripe targets for attack,” he said.

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