The Biden administration is fast approaching the May 8 deadline set in its February national security memorandum to report to Congress whether countries receiving U.S. weapons and munitions are using them consistent with international humanitarian and human rights laws.
While the memorandum applies to all countries receiving transfers of U.S. defense articles, this week’s deadline has particular significance because it will apply to Israel and require a formal U.S. assessment of how it is conducting its now six-month war in Gaza. The Biden administration has authorized over 100 arms sales to Israel during this period, including tank and artillery ammunition, 2000- and 500-pound bombs, rockets and small arms.
In light of the immediacy of the deadline and the potential military and humanitarian consequences it will have, it is important to fully understand what is included in the memorandum, what is not and what Secretary of State Antony Blinken, Secretary of Defense Lloyd Austin and ultimately, President Biden will be called upon to decide.
The four-page memorandum, signed by the president, makes Blinken the principal “action officer” for overseeing the provisions of the memorandum.
First, it requires the secretary of State to obtain “credible and reliable written assurances” that Israel will use any U.S. transferred weapons following international humanitarian and human rights laws. These laws impose specific restrictions on targeting and the protection of civilians, including preventing indiscriminate killing and prohibiting the use of weaponry that does not distinguish between combatants and civilians.
Further, Israel is required to provide “credible and reliable written assurances” that it will “facilitate and not arbitrarily deny, restrict, or otherwise impede” the transport and delivery of U.S. humanitarian assistance and U.S.-supported world efforts to provide that assistance.
Second, if Blinken determines that Israeli assurances are not credible or reliable, he must report to the president and indicate the next steps needed to “remediate the situation.” Such remediation could include going back to Israel and “refreshing the assurances” or “suspending any further transfer of defense articles.” The first would give Israel more time to respond; the second could be imposed immediately.
Third, the memorandum also specifies what transferred defense articles it does not apply to. This includes air defense systems — such as Israel’s iron dome missile defense — and others used for strictly defensive purposes or those that are “non-lethal in nature.”
These provisions notwithstanding, the memorandum does provide the secretary of State with an escape clause, namely a waiver authority not to comply with its requirements. The waiver can be used: “In rare and extraordinary circumstances justified by the national security of the United States, and with concurrent notification to the [p]resident.”
Finally, what the secretary of State cannot do is waive the congressional reporting requirements contained in the memorandum, the first being the report due May 8.
Since the national security memorandum’s issuance, President Biden and his officials have publicly condemned the way Israel has conducted its military campaign in Gaza, warning Israel that its “indiscriminate bombing” was losing international support and its assault could get “out of control.”
He offered his strongest assessment of its impact on the Palestinians living there in his March 7 State of the Union address, noting that “more than 30,000 Palestinians have been killed. Most of whom are not Hamas.”
“Thousands and thousands are innocent women and children,” Biden continued. “Girls and boys are orphaned. Nearly 2 million more Palestinians under bombardment or displaced. Homes destroyed, neighborhoods in rubble, cities in ruin. Families without food, water, medicine. It’s heartbreaking.”
At the same time, Biden has been steadfast in expressing his “ironclad” support for Israel in its war against Hamas. He has not taken any concrete steps to use the leverage of U.S. military assistance to influence Israeli Prime Minister Netanyahu, even as Netanyahu continues to make plans to invade the southern Gaza city of Rafah, where more than a million displaced Palestinians are shelter-less and facing famine.
The president has said he opposes such an assault without a plan to protect civilians. Israeli Prime Minister Netanyahu says a date has been set and he intends to proceed.
In late March, Israel provided the State Department with the written assurances required by the memorandum, signed by Defense Minister Yoav Gallant, stating its use of American-supplied weapons is not being used to violate humanitarian laws in Gaza. On March 25, State Department spokesman Matthew Miller offered no indication the Biden administration was rejecting these assurances:
“We have not found them to be in violation of international humanitarian law, either when it comes to the conduct of the war or when it comes to the provision of humanitarian assistance.”
The spokesman went on to say that the administration’s processes of assessing Israel’s compliance “remain ongoing, and not terminated at this point” and that the report required by the memorandum to Congress will be made by May 8.
Few would argue that Israel was not fully justified in exerting its right to defend itself after the brutal, terrorist Oct. 7 attack by Hamas on Israeli citizens. But that attack did not exempt Israel from its responsibility to conduct its military operations in line with international humanitarian and human rights laws. Nor should it absolve the United States from its responsibility to hold the recipients of transferred U.S. bombs, rockets and other munitions accountable for how they are used.
This week’s report to Congress will answer whether the Biden administration steps up to its duties. It should and should place restrictions on the further transfer of U.S. offensive military aid to Israel.
Karl F. Inderfurth has served on the staff of the National Security Council and the Senate Foreign Relations Committee, and in senior positions at the State Department.