U.S. President Joe Biden issued a National Security memorandum in February, instructing his administration to secure assurances from states receiving American weapons that they will not be used in violation of international law or humanitarian law. The memorandum also stated that failure to provide such guarantees would result in the suspension of arms sales to the respective country.
By the end of March, Israel submitted a letter providing the assurances sought by the administration. Although the letter was not made public, the State Department announced that it found no evidence of Israel violating the latest directive, which requires recipients of U.S. military aid to comply with international humanitarian law.
"We have been continuously assessing their compliance with international humanitarian law," said Matthew Miller, a State Department spokesperson, during a press conference. "We have not found any violations, whether in the conduct of warfare or in the provision of humanitarian assistance. Therefore, we consider their assurances satisfactory based on our ongoing evaluations."
However, just a few days ago, over 20 Democratic U.S. Congress members, including Veronica Escobar, co-chair of Joe Biden’s reelection campaign, sent a letter to Biden's administration, demanding a comprehensive investigation into the process by which it concluded that Israel does not misuse American weapons to violate international law. These lawmakers have given the administration until May 1, 2024, to respond to their inquiries.
Israel Violates Most Arms Trade Treaty Clauses
The basic legal rules of international law that must be observed might overlap when states must make a decision about delivering weapons or other military equipment when there are reasons to believe that these supplies might be used to commit international crimes or other serious violations of international humanitarian law.
For example, transferring weapons might constitute violations of articles 1 and 3 of the genocide convention, or article 1 of the Geneva conventions. At the same time, it might be considered an independent violation of article 6 of the arms trade treaty. However, the required limits and conditions to prove the existence of a violation of each of these obligations might differ.
Given that the Congress members' letter to Biden’s administration clearly stated “Israel’s use of American weapons to violate international humanitarian law,” it is sufficient to use the clauses of the arms trade treaty to refute the State Department claims about the absence of evidence because it offers the most detailed and updated legal framework that organizes arms transfers in international law, with reference to other related primary rules, including the ban on genocide and other international crimes.
Article 6 (2) of the arms trade treaty stipulates that, “A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4 if the transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms.”
While article 6 (3) of the arms trade treaty says, “A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.”
But the most important principle, explained in article 7 (1) of the arms treaty convention, requires the conduction of an assessment before authorizing transfer, in order to know whether it is possible to use the transferred elements to commit or facilitate “a serious violation of international humanitarian law.” After the arms trade treaty was adopted, the International Committee of the Red Cross published a document called “Protecting civilians and humanitarian action through the Arms Trade Treaty,” in which it clearly defined what constitutes “serious violations of international humanitarian law.” It stipulated the following:
"‘Serious violation of IHL’ is another term for ‘war crime’ and encompasses grave breaches of the 1949 Geneva Conventions and of Protocol I of 8 June 1977, in addition to the Geneva Conventions, as well as the other war crimes listed in the Rome Statute of the International Criminal Court and those defined under customary IHL. Serious violations of IHL include willful killing, torture or inhuman treatment, taking of hostages, pillage, rape, directing attacks against civilian objects or civilians not taking direct part in hostilities, and directing attacks against hospitals, ambulances, or medical staff."
Reviewing legal reports and reports published by international bodies, it becomes clear that Israel committed each of these practices separately. In a report by Amnesty International published in early February, the organization showed in detail the extent to which the army used deadly force repeatedly against Palestinian civilians in all areas of the West Bank and Gaza. It also said that it analyzed four cases in which the Israeli army used “illegal deadly force” against people in the occupied West Bank, and prevented medical professionals from reaching injured inhabitants.
On April 17, UNRWA said in a report that some of its employees and other individuals detained by the Israeli forces in Gaza faced mistreatment, including severe beating and forced nudity. It added that the detained employees, in some cases while performing their official duties, “were detained in isolation from the outside world and face the same conditions and mistreatment as other detainees”. It said that the conditions include various forms of arrest and abuse.
As for “aiming attacks at civilian targets or civilians who do not directly participate in hostile acts,” Benjamin Netanyahu himself admitted the responsibility of the Israeli occupation army in targeting two vehicles that were transporting the seven employees of relief organization World Central Kitchen who were killed in an Israeli raid in early April. An investigation by Human Rights Watch also concluded that the Israeli strike which killed Lebanese journalist and photographer Issam Abdullah in October 2023 was intentional and not a mistake.
Regarding the targeting of hospitals and medical staff, throughout the war on Gaza, the Israeli army raided hospitals—which are protected by international humanitarian law even more than other civilian infrastructure—on the grounds that Hamas fighters were hiding there. Israel and the United States have accused Hamas of using “human shields,” or deliberately positioning themselves in locations (such as hospitals) that would make them immune to attacks under the laws of war because of their proximity to civilians and other protected persons.
But even if these allegations are accepted as true, it does not justify Israel's treatment of hospitals as legitimate military targets. Instead, it constitutes a violation of the international agreements it has signed. Omar Shaker, director of the Israel and Palestine office at Human Rights Watch, explains that hospitals can lose their protected status under the law only 'when acts harmful to the enemy are committed' from them. Israel, however, has not provided conclusive evidence of such acts since the beginning of the war, despite rendering most hospitals in Gaza out of service.
International Organizations Confirm Israel Violates International Law Using U.S. Weapons
Human Rights Watch and Oxfam said in a joint memorandum issued three weeks ago that the Biden administration should follow U.S. law and immediately suspend arms transfers to Israel. The two organizations submitted the memorandum to the U.S. government regarding Israel's violations of international humanitarian law, including the use of U.S. weapons and the blocking of U.S.-funded humanitarian aid.
“There are good reasons why U.S. law prohibits arms support for governments that block life-saving aid or violate international law with U.S. weapons. Given ongoing hostilities in Gaza, the Israeli government’s assurances to the Biden administration that it is meeting U.S. legal requirements are not credible,” said Sarah Yager, Washington director at Human Rights Watch.
The Oxfam-Human Rights Watch memorandum summarizes a wide range of additional Israeli violations of international humanitarian law, denial of services vital to the survival of civilian populations, and arbitrary deprivation and restrictions of humanitarian aid since the October 7 attack.
Examples include the use of U.S.-supplied white phosphorus by Israel in military operations, specifically against UNRWA schools in Gaza and agricultural lands in southern Lebanon, and indiscriminate or disproportionate raids on or near several major hospitals, including at least one strike targeting an ambulance bearing the ambulance sign which killed 15 people and injured 60 others.
Additionally, there is the systematic prevention of aid, much of it provided by the United States, from reaching the approximately 300,000 Palestinians in northern Gaza.
“Oxfam has repeatedly sounded the alarm that Israel’s ongoing bombing and blockade, and its actions to block humanitarian access, have exacerbated the catastrophic humanitarian crisis in Gaza,” said Scott Ball, associate director for peace and security at Oxfam America. "We have made it clear to the Biden administration why any assurances from Israel that it has not delayed, restricted, or obstructed aid to Gaza cannot be relied upon. Despite this, the United States has continued to supply lethal weapons to Israel. It has been a long time since the Biden administration should have ended lethal weapons sales to Israel, but we call on them to do so now and work to end the death and suffering in Gaza,” he added.
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