For the past seven months, J Street has been generally supportive of the Biden Administration’s approach to the war in Gaza. It is no easy task to balance the many and often conflicting American interests, including Israel’s security, Palestinian rights and Middle East stability. By and large, we believe the administration has been thoughtful in negotiating the extraordinary complexity of the moment.
However, we believe that the administration missed the mark in its National Security Memorandum 20 report released Friday on the Israeli government’s compliance with US laws requiring the facilitation of humanitarian aid and adherence to the laws of war.
Both J Street and the Biden Administration strongly supported the Israeli government’s right to defend its citizens and hold perpetrators to account in the wake of the horrific October 7 attack. We also acknowledge, as the Biden Administration does, the immense challenge facing Israel as it confronts a terrorist enemy, embedded in civilian areas, which itself has no regard for international law.
We backed important demonstrations of US support for Israel – including the positioning of US aircraft carriers as deterrence and shooting down Iranian drones and missiles – as well as the provision of military aid and assistance to support the country’s legitimate right to defend its citizens.
At the same time, we have been clear that US assistance must not come in the form of a blank check. US tax dollars provided to any country should advance American national interests and uphold our laws and values, not to mention the international laws of war.
When the President issued National Security Memorandum 20 (NSM-20) in February to give meaning to that principle, we supported him and urged a thorough examination of the facts and impartial application of the law with regard to all recipients of US military aid.
To our disappointment, however, the initial NSM-20 report delivered Friday falls short. Despite raising extremely serious concerns about violations of both US and international law, the administration has avoided the tough question of what to do in the face of the obvious failures – acknowledged in the report and widely publicly reported – on the part of the Israeli government to comply with American and international law.
The report states it is “reasonable to assess” that US weapons have been used in violation of international law, acknowledges “credible reports” of human rights abuses, notes “multiple” operations have taken place in protected or de-conflicted zones, raises “substantial questions” about whether the IDF is following best-practice for civilian protection, and cites intelligence assessments that Israel “could do more” to protect civilians. Yet, ultimately, it shies away from any specific determinations and declines to outline a means of addressing such issues.
Concerningly, the administration concludes that the Israeli government’s assurances that it is complying with obligations are “credible and reliable” despite acknowledging that authorities have shared “limited information” on the use of US weaponry in alleged violations, that the US does “not have complete information” on civilian protection procedures, and that Israeli authorities have not offered “full visibility” into the application of international legal principles.
The report also concludes the Israeli government is “currently” in compliance with its obligations under US laws relating to humanitarian aid, despite acknowledging it “did not fully cooperate” with US efforts to deliver aid, citing “numerous instances” of actions that “delayed or had a negative effect” on aid, and noting that “aid levels remain below what is necessary.” We note that USAID and the State Department’s Bureau of Democracy, Human Rights, and Labor reportedly concluded that Israel was in violation of its obligations and that real-time developments, such as the closure of the Rafah crossing, need to be taken into account.
Whatever progress has been made on civilian protection and humanitarian aid has generally been the result of intense American and international pressure. As the report indicates, “if not for the sustained engagement of the United States with the Israeli government at the highest levels, the humanitarian crisis that has persisted for the past several months would have been even more dire.” Clearly, more work is needed.
The Biden Administration has acknowledged holding back shipments of 2,000-lb and 500-lb bombs to Israel during the war, out of concerns over how those might be used, and to impact decisions under consideration by the Israeli government, such as the scale and scope of a potential military operation in Rafah. The Biden Administration missed an important opportunity to tie these actions directly to the issues raised in the NSM-20 report and to lay out clearly the consequences of further violations.
As an organization that cares deeply about Israel and respects many in its defense forces, it is painful to highlight findings of Israeli government non-compliance in the report and the need to address them. However, we believe it is right and in the broader global interest to insist that recipients of US military assistance conduct themselves in accordance with US and international law. Yet, as we warned last week, “an NSM-20 report that papers over non-compliance or fails to take meaningful enforcement steps in response to violations will undermine civilian safety and US credibility in this and future conflicts.”
Recognizing, as the report says, that the US government is required to provide an “ongoing assessment” under NSM-20, we urge the administration to revisit its conclusions in the weeks ahead and to take action as necessary to enforce the letter and the spirit of US laws governing the provision of our foreign assistance.