Biden faces key test over Israel’s military actions in Gaza

Editor’s note: This article was updated to reflect the position of former State Department officials on U.S. policy toward Israel.

President Biden is facing a key test this week in delivering a report to Congress on Israel’s conduct in Gaza, which has the potential to cut off U.S. assistance to Israel.

The report is mandated by National Security Memorandum 20 (NSM 20), which Biden issued in February, and is due by May 8. It requires the administration to assess Israeli assurances that it is using U.S. weapons in line with international laws on war and human rights.

If Israel is found to be in violation of these laws, the Biden administration will then have 45 days to recommend next steps.

While there’s little expectation that Biden will impose severe consequences against Israel amid its war against Hamas in the Gaza Strip, the president has shown increasing openness to imposing consequences on Israel in response to mounting evidence of human rights abuses against Palestinians.

These include sanctioning Israeli settlers and their supporters in the West Bank for violence against Palestinians, as well as singling out five Israeli military units operating in the West Bank as having carried out instances of gross human rights violations — although these incidents predate Israel’s war against Hamas in Gaza.

The administration has, so far, held off imposing consequences on the units, citing Israeli engagement on remediation efforts, investigations and accountability.

“We have seen remediation of those violations. And that is, of course, what we expect of partners,” State Department spokesperson Vedant Patel said last week.

This week’s deadline comes as campus protests against U.S. support for Israel have shaped the debate over Gaza in recent weeks. Concerns over how Biden will carry out NSM 20 has prompted its own debate within foreign policy circles. 

Some Republicans want the memo revoked, arguing that existing guardrails are sufficient and support for Israel should be the priority. Leading Democrats are calling for more detail on how it will actually be carried out, and questioning Israel’s assurances that it is following the law. 

Last week, 88 House Democrats wrote to Biden urging enforcement of NSM 20, including imposing costs on Israel for what they view as Prime Minister Benjamin Netanyahu’s government impeding the delivery of humanitarian assistance to Palestinians in Gaza.

Determining that Israel was hindering delivery of humanitarian assistance would constitute a violation of Section 620I of the Foreign Assistance Act and trigger the U.S. to block security assistance or arms sales.

“It is incumbent upon the Secretary of State or Secretary of Defense to begin the assessment and remediation process outlined in the memorandum and consider the variety of tools available to the administration to address these continued violations, from refreshing the assurances to withholding specific arms transfers,” they wrote. 

Biden’s decision to issue the memo came in direct response to pressure from some Senate Democrats to scrutinize more closely Israel’s war conduct in Gaza, but also preserve the president’s flexibility in holding Israel to account.

The language in the memo does not single out Israel; it applies to all foreign recipients of the recently-passed U.S. national security supplemental package, to include Ukraine and Taiwan.

And the president, or any successive president, has the power to revoke the memo and make its directives obsolete. But Republicans have already lashed out at Biden as trying to “placate critics of security assistance to our vital ally Israel.”

“We urge you to revoke NSM-20, abide by the robust and vital human rights safeguards already codified in U.S. security assistance law, and continue to support our critical partners around the world,” Sen. James E. Risch (R-Idaho), and Rep. Michael McCaul (R-Texas), the top Republicans on the foreign affairs panels of their respective chambers, wrote to Biden in April. 

Reception of the memo is also controversial among Democrats, concerned that the administration could hide behind vague language and underdeveloped reporting requirements to shield Israel from consequences. 

Sen. Chris Van Hollen (D-Md.), joined by 12 colleagues, requested a briefing in March from Biden’s national security team, writing “the NSM does not outline how the administration will determine if a country has violated an assurance and if there is a process in place to track its adherence to them.”

Similar concerns prompted the creation of an independent task force that issued a report last month detailing reports of Israeli violations of international law and humanitarian law.

The authors include two former State Department officials who are critical of U.S. policy toward Israel, and experts on international humanitarian law, civilian harm mitigation, U.S. domestic law and security assistance. 

The 76-page report provides scores of incidents that the authors say represent a “a systematic disregard for international humanitarian law and military best practice regarding civilian harm mitigation by the Israel Defense Forces, including with U.S.-provided arms.”

Josh Paul is the co-chair of the task force and the former director of the Office of Congressional and Public Affairs for the Bureau of Political-Military Affairs. He resigned from the State Department in protest in October over what he criticized as the U.S. government’s unchecked weapons deliveries to Israel.

He said the importance of NSM 20 is to put the administration on record of what it knows of Israel’s potential violations of international law and its actions related to the hindering of delivery of humanitarian assistance.

“If they do lay out any credible reports of violations of [international humanitarian law], it would not be surprising to see them provide excuses. But I think they will have to tread very carefully there, as that would have to be something that the administration’s lawyers would need to take a look at,” he said. 

The task force report does not prescribe actions for the administration. Biden officials have previously cited Israeli government remediation efforts and investigations into incidents of human rights violations as satisfying efforts at accountability. 

Paul said he was not optimistic that the U.S. would hold Israel to account, given its previous statements on the war.

“I’m going to withhold judgment and wait and see what they actually say, in the hope that they do make a good faith effort to follow the directives President Biden laid out in the NSM.”

What is almost certain to remain unchanged is Biden’s resolute support for Israel in standing by its seven-month war against Hamas for the Oct. 7 attacks, when Hamas members killed approximately 1,200 people and taking more than 250 people hostage, with 133 Israelis still held against their will in Gaza. 

For Israel’s supporters, any suggestion that Israel violated international law must be taken with the caveat that it is facing a terrorist enemy that uses civilians as shields.

“There have been civilians murdered, but that is not the fault of Israel,” House Speaker Mike Johnson (R-La.) said in an interview with CNN last month.

“It’s the fault of the terrorists — the Hamas operators and soldiers, the terrorists who have used these people and put them into harm’s way. Israel, I’m convinced, is doing its very best to prevent civilian casualties. But this is a war, and they’re fighting for their very existence. And they are not the aggressors. It is the other side.”

But the catastrophic humanitarian crisis facing Palestinians in Gaza has prompted candid criticism from Biden, who has called Israeli bombing “indiscriminate” and “over the top.” 

Gaza’s health agency says more than 30,000 people have been killed in the war, the majority women and children; but Israeli officials say that also includes more than 10,000 Hamas fighters. Another 50,000 people have been injured; more than 1 million displaced; and the head of the United Nations food program said Gaza has now entered a “full-blown famine.”

Luis Moreno, who served as deputy chief of mission to Israel from 2007-10, said Biden’s recent actions imposing some consequences on Israel are welcome. But he said there’s a double standard for Israel on application of so-called “Leahy laws,” which require the U.S. to cut off military assistance and cooperation with foreign security forces found to have committed human rights abuses.

“Leahy vetting was not applied to [Israel],” said Moreno, a career foreign service officer who served as U.S. ambassador to Jamaica.

“There’s always been a double standard with the IDF, and it was always understood and no one really questioned it,” he said.

Tom Malinowski, a former Democratic congressman who served as assistant secretary of State for democracy, human rights and labor during the Obama administration, said that double standard will be tested as more evidence emerges from Gaza.

“It’s true that till now the State Department has in practice not applied Leahy to Israel,” he posted on the social platform X. “The real test will come when investigations of the current conflict start. It will be painful, but [in my opinion] it’s always better to confront these issues honestly and consistently.”

Updated at 7:05 a.m.