President Joe Biden’s administration believes it is “reasonable to assess” that Israel has used U.S. weapons in ways that caused excessive amounts of civilian casualties, despite uncertainty caused by Hamas’s use of “human shields.”
“The nature of the conflict in Gaza makes it difficult to assess or reach conclusive findings on individual incidents,” administration officials wrote in the key findings of a report to Congress. “Nevertheless, given Israel’s significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles…have been used by Israeli security forces since October 7 in instances inconsistent with its IHL [international humanitarian law] obligations or with established best practices for mitigating civilian harm.”
They stopped short of concluding that Israel has violated international humanitarian law, in part due to the difficulty of establishing the facts in such a fraught battle-space, according to a senior State Department official. That judgement also stands to be influenced by the outcome of Israeli investigations into numerous allegations, which the report acknowledged as a sign of “Israel’s own concern” about alleged violations of humanitarian law. In the meantime, the findings will not interfere with Biden’s authority to continue providing military equipment to Israel.
“At the same time, it is also important to emphasize that a country’s overall commitment to IHL is not necessarily disproven by individual IHL violations, so long as that country is taking appropriate steps to investigate and where appropriate determine accountability for IHL violations,” the report states. “As this report notes, Israel does have a number of ongoing, active criminal investigations pending and there are hundreds of cases under administrative review.”
The report comes at a difficult moment in U.S.-Israel relations, as Biden has declared that he will not authorize the transfer of heavy weapons shipments to Israeli Prime Minister Benjamin Netanyahu if he orders a major military attack in Rafah. Netanyahu insists that an Israeli operation in Rafah is essential to victory in the war against Hamas, but U.S. officials maintain that a major ground incursion cannot be conducted without an unacceptably high number of civilian deaths.
Netanyahu, for his part, dismissed such criticisms — “the whole attitude to Israel here is absurd,” he told Dr. Phil in a new interview published late Thursday — given Hamas’s entrenchment among Palestinian civilians.
“They use them as human shields and they target civilians…they target ours and they hide behind theirs,” Netanyahu said. “That is a double war crime. And, of course, this makes Israel’s task so much more difficult.”
The new U.S. report to Congress, which was required under a national security memorandum that Biden signed in February, acknowledged that there is some merit to such defenses.
“Israel has had to confront an extraordinary military challenge: Hamas has embedded itself deliberately within and underneath the civilian population to use civilians as human shields,” the report states. “Military experts describe Gaza as being as difficult a battlespace as any military has faced in modern warfare.”
Yet independent analyses, including one by a State Department official who resigned in protest of U.S. support for Israel in recent months, argue that this justification is too expansive.
“We found that in 11 out of the 16 incidents we analyzed, Israel did not even publicly identity a military target or attempt to justify the strike,” former State Department official Josh Paul and human rights attorney Noura Erekat wrote last month at Just Security. “Of the remaining five incidents, Israel publicly named targets with verification in two incidents, but no precautionary warning was given and we assess the anticipated civilian harm was known and excessive.”
There is no clear and uniform standard to assess the propriety of a strike on a military target surrounded by human shields, the senior State Department official acknowledged. Still, the report suggests that strikes such as the bombardment that killed several World Central Kitchen workers “raise substantial questions” about Israeli conduct.
“While Israel has the knowledge, experience, and tools to implement best practices for mitigating civilian harm in its military operations, the results on the ground, including high levels of civilian casualties, raise substantial questions as to whether the IDF is using them effectively in all cases,” the report states. “This includes the WCK strike, in which Israel has acknowledged that IDF operators did not follow applicable rules of engagement, and which led the Israelis to take steps to discipline IDF personnel.”
Sen. Jim Risch (R-ID), ranking member of the Senate Foreign Relations Committee, accused the Biden Administration of “trying to have it both ways.”
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
“Today, the administration has given Israel a politically damaging assessment while publicly announcing it is withholding a select set of precision weapons. The administration is attempting to placate voters on the far left at the expense of a close ally in the midst of its justified war with Hamas terrorists.
“NSM-20 is aimed squarely at Israel in the near-term, but the additional highly-politicized reporting requirements will eventually be aimed at other American allies and partners across the globe, further impeding the delivery of security assistance and undermining our ability to deter China and Russia.”
