Is Washington Responsible for What Israel Does With American Weapons?

The United States is the biggest backer of the Israeli military, providing it with billions of dollars in military assistance every year. Because of this support and U.S. intelligence sharing, Israel’s brutal campaign in the Gaza Strip launched in response to Hamas’s unconscionable attack on Israeli civilians on October 7 raises serious legal and policy issues for the United States. U.S. domestic laws and standards restrict military and intelligence support that would be used to violate the law of war. Further, U.S. officials risk complicity if Israel uses U.S. support to commit war crimes. The Biden administration and the State Department in particular should therefore be taking concrete steps to monitor how Israel is using U.S. weapons and to prevent their misuse.

But promoting compliance with the law of war is not enough. Even if the military campaign was conducted in strict compliance with the law, it would bring only more suffering and destruction to Gaza and risk regional escalation that could further directly involve the U.S. military. The only way to address those risks is through de-escalation and, ultimately, finding a way out of the conflict.  

BOMBS OVER GAZA

The conflict in Gaza is governed by the law of war, a body of international law also known as international humanitarian law. These rules, agreed to by states, balance considerations of military necessity with humanity and set limits on what parties to an armed conflict can and cannot do. They apply to both Israel and Hamas. The law of war requires that attacks be directed solely against military objectives (including enemy combatants), prohibits the targeting of civilians and civilian objects, and outlaws attacks not directed at specific military objectives. Hospitals, ambulances, schools, and places of worship are also ordinarily protected from attack, although their use for military purposes can potentially end that protection. These rules all reflect what lawyers call the principle of “distinction,” which is supposed to guide parties to the conflict in distinguishing civilians and civilian infrastructure from enemy fighters and military objectives. Under the principle of “proportionality,” the law prohibits attacks that could be expected to cause civilian harm that would be excessive in relation to the concrete and direct military advantage the attack is expected to produce. For example, this principle would permit an attack on an enemy headquarters even if it is expected to cause civilian deaths so long as that harm is not “excessive.” In addition, both the attacking and defending parties have obligations to take precautions to further mitigate harm to civilians. For example, the use of involuntary human shields to impede military operations is prohibited, but such use does not relieve the attacking party of their own legal obligations.

Whereas Hamas’s murder of civilians and taking of hostages on October 7 are clear-cut war crimes, assessing the lawfulness of many of Israel’s actions in Gaza is more challenging. Questions about whether Israel’s military campaign has violated the law of war have to be evaluated on a case-by-case basis. Determining whether any specific attack complied with the law of war is a fact-intensive inquiry. It may require nonpublic information to figure out whether a target was a lawful military objective or whether the harm to civilians was excessive. The death of civilians and the destruction of civilian infrastructure are certainly relevant, but the fact that they occurred does not necessarily mean that Israel violated the law of war. Judging whether any targeting decision was criminal is even more challenging still, as this requires assessing the knowledge and intent of the relevant commander at the time of the decision.

U.S. officials risk complicity if Israel uses U.S. support to commit war crimes.

Despite the difficulty of reaching definitive legal conclusions about specific attacks, the Israeli military’s conduct in Gaza and the accompanying rhetoric from Israeli officials should prompt both legal and policy concerns in Washington. In the first six days of the air campaign, Israel dropped 6,000 bombs more than the U.S.-led coalition did against the Islamic State in any single month of the war against ISIS, even at the height of the operation. This rate of attack raises questions regarding Israel’s target selection, its interpretation of proportionality, and the precautions the country is taking to avoid civilian casualties. Speaking off-the-cuff at a press conference, U.S. President Joe Biden said that steps were being taken at al Shifa hospital to protect civilians, “so this is a different story than I believe was occurring before, an indiscriminate bombing.” (The U.S. government has taken the position that indiscriminate attacks are war crimes, but it is not clear if the president used the term in this sense.) Specific strikes also call into question whether the targets themselves were lawful military objectives, such as Israel’s targeted killing of Hamas’s political leaders, whose military roles are unclear, and a November 3 strike on an ambulance outside al Shifa hospital in Gaza City that killed at least 15 people and injured 60 more. The bombing of the Jabalya refugee camp, which Israel claimed housed Hamas commanders and underground tunnels, caused over 100 casualties according to doctors in Gaza, and prompted the Biden administration to ask Israel to explain the decision-making that went into the airstrike. More generally, the scale of death and destruction in Gaza—the Health Ministry has counted more than 11,000 deaths as of November 13—calls into question how Israel is assessing whether civilian harm is excessive in relation to the anticipated military advantage from individual attacks. 

The characterization of the military campaign by Israeli officials should also raise eyebrows in Foggy Bottom. In the early days of the conflict, an Israel Defense Forces spokesperson explained that for Israel’s bombing campaign, the “emphasis is on damage and not on accuracy.” In responding to controversial strikes causing civilian casualties, the IDF has repeatedly emphasized that it had previously warned the population of Gaza to move south, as if that warning somehow absolved Israel from other legal obligations related to the protection of civilians. 

Concerns over potential war crimes could lead to the involvement of the International Criminal Court, which has asserted jurisdiction over the Palestinian territories, including during the ongoing conflict. Karim Khan, the court’s prosecutor, has made pointed statements on the fighting, including that every leader making decisions about strikes will be required to “justify every strike against every civilian object” and that the burden is on the attacker to establish that ordinarily protected objects had lost their protections. If Khan decides to pursue legal charges, he will almost surely face a political firestorm from the United States, including from political leaders who have supported the ICC’s work in Ukraine. But if he does not pursue an investigation into Israel’s actions in Gaza, he will almost surely face blowback from countries outside the West who already decry what they see as a double standard in the way the court approaches its business. For them, it seems that the ICC pursues war crimes charges only against African leaders and warlords, leaving guilty parties in the West or those who partner with it untouched.

AIDING AND ABETTING

The United States in turn faces its own domestic and international legal and policy considerations in relation to the conflict due to the extensive military and intelligence support the U.S. government provides to Israel. Many of these considerations are most acute for the State Department given its role in overseeing arms transfers and military assistance. For example, the Arms Export Control Act, the legal framework for U.S. arms transfers, specifies the exclusive purposes for which U.S. weapons may be provided to another country, with the potentially relevant purpose here being “legitimate self-defense.” Although this term in both the Arms Export Control Act and a U.S.-Israeli military assistance agreement is undefined, past Israeli actions, including the use of cluster munitions in Lebanon, have raised questions about whether they constituted legitimate self-defense. The so-called Leahy Law bars military assistance to units of foreign security forces if the U.S. secretary of state has credible information that the unit committed a “gross violation of human rights.” The Conventional Arms Transfer Policy, adopted by the Biden administration in February 2022, prohibits the transfer of arms if the “United States assesses that it is more likely than not that the arms to be transferred will be used by the recipient to commit” certain acts, including “attacks intentionally directed against civilian objects or civilians protected as such; or other serious violations of international humanitarian or human rights law.”

In addition, shortly before the start of the conflict, the State Department issued guidance to embassies worldwide under which officials will investigate reports of civilian harm involving U.S. weapons by partner governments and recommend actions that could include the suspension of arms sales. This guidance is intended to codify a previously ad hoc process for monitoring civilian harm, and its issuance followed numerous accounts of U.S. bombs dropped by Saudi Arabia killing large numbers of Yemeni civilians.

Depending on the nature of the support they are facilitating and the way it is being used, individual U.S. officials may face additional legal issues. U.S. government employees are prohibited by executive order from engaging in or conspiring to engage in assassination, which U.S. executive branch lawyers have interpreted to include killings in an armed conflict that violate the law of war. The assassination ban could come into play if, for example, the United States shared actionable intelligence with the knowledge it would be used to target a civilian.

The law of war permits vast death and destruction.

The War Crimes Act, enacted in 1996 and amended to expand its jurisdiction last year, incorporates the prohibition of certain violations of the law of war into domestic law. Although no one has ever been prosecuted under the law, it criminalizes conspiracy to murder persons not taking an active part in hostilities, among other conduct. Furthermore, both domestic and international law criminalizes aiding and abetting, which can include the provision of support used to commit war crimes. Although the standards for complicity may vary depending on the court, the United States has taken the position in the trial of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, that the knowledge that one’s assistance would further the commission of a war crime would suffice in terms of establishing the intent to commit a crime under international law. 

Some officials in the Biden administration already harbor concerns about Israel’s compliance with the law of war. Josh Paul, an official in the State Department’s bureau that oversees arms transfers, resigned in October over the administration’s continued military assistance to Israel. In an interview with HuffPost, he said “it has become clear to me that many senior leaders not only fully understand how Israel is currently using U.S.-provided arms in Gaza, but are even, behind closed doors, willing to acknowledge that these actions include ‘war crimes.’” 

TOUGH LOVE

Given these reasons for concern, the U.S. government and especially the State Department should be taking steps now to mitigate the risk that U.S. military support is facilitating violations of the law of war. U.S. officials merely repeating talking points about the importance of law of war compliance is not enough.

First and foremost, the U.S. government should be monitoring Israeli conduct in Gaza and determining whether Israel is using U.S.-origin weapons and intelligence consistent with the law of war. This is a basic step, seemingly required by existing law and policy, but it is one that the State Department is apparently not taking. Both Secretary of State Antony Blinken and his spokesperson have indicated that there are no assessments being done of Israel’s law of war compliance. (National Security Adviser Jake Sullivan has also repeatedly refused to comment on Israel’s law of war compliance in recent days, indicating it was not his role to have a view on the matter.) Monitoring law of war compliance will likely require significant input from the Pentagon and the broader U.S. intelligence community. It will also require the United States to press Israel for detailed information about its targeting decisions in Gaza.

Second, the State Department needs to factor its assessments regarding law of war compliance into its decision to approve or continue implementing arms transfers to Israel. Again, this is a basic step seemingly required by existing law and policy. The United States has previously incorporated information on the conduct of hostilities by Israel into its decisions on arms transfers, including when the Reagan administration suspended the transfer of cluster munitions. But according to public statements by Paul, the State Department official who resigned, assessments of law of war compliance were not being taken into account for transfers to Israel. He also noted that the State Department had a long-standing practice of not wanting to acknowledge credible allegations of “gross violations of human rights” committed by Israeli security forces that would trigger restrictions under the Leahy Law.

For now, the Biden administration is taking a different approach. It is trying to improve the conduct of its partner’s airstrikes and artillery strikes in the midst of an ongoing war without imposing any conditions. The United States has shared with Israel recommendations for reducing civilian casualties, including by using smaller diameter bombs rather than 2,000-pound munitions. The Pentagon dispatched James Glynn, a Marine Corps three-star general who has extensive urban warfare experience from the Iraq War and counter-ISIS campaign, to share suggestions with Israel on mitigating harm to civilians while fighting in a dense urban environment. But upon Glynn’s return, General Eric Smith, the commandant of the Marine Corps, sought to distance the United States from Israeli operations. “Lt. Gen. Glynn went over to provide advice,” Smith said. “But make no mistake: What is, has, or will unfold in Gaza is purely an Israeli decision.” 

These current efforts to prod Israel to minimize civilian casualties and comply with the law of war are all too reminiscent of the unsuccessful push by the Obama administration to improve targeting by Saudi Arabia in its air campaign in Yemen, including by dispatching advisers to share technical recommendations with the Saudi military. In that conflict, the only measure that demonstrably reduced civilian casualties was reducing and ultimately ending airstrikes by the Saudi-led coalition.

FOREST FOR THE TREES

It would be a mistake, however, to focus solely on assessing and enforcing law of war compliance regarding the use of U.S.-origin weapons in the war in Gaza. Although such measures are necessary, they are not sufficient if the aim is to bring the carnage to an end. 

It may be difficult if not impossible to come to any confident assessment regarding the thousands of airstrikes and other attacks Israel has conducted in Gaza. Even if each and every one of the Israeli attacks in Gaza were consistent with the law of war, the conflict would still be a humanitarian catastrophe. The war would still lack a clear endgame and continue to pose a grave risk of further regional escalation. The law of war permits vast death and destruction. This is true even under restrictive interpretations of the law, and it may well be that Israel has adopted looser interpretations—particularly regarding what is permissible under the principle of proportionality. 

Of course, the United States should be vigilant in assuring that its assistance does not support violations of the law of war and must insist that the Israeli government adhere to a rigorous interpretation of the law. But technical legal issues should not crowd out discussion of the most urgent question facing the United States and the region: how to bring this war to a responsible end. A first step in the direction of de-escalation might be a micro-deal in which Israel ceases its pummeling of Gaza, Hamas releases some hostages, and intermediaries seize the moment to start exploring what broader diplomacy can achieve. For better or worse, it will have to be statecraft rather than law that delivers a solution to this terrible crisis and the suffering it has wrought.