Biden Administration: 'Reasonable' To Say Israel Is Violating International Law, But U.S. Aid Can Continue

President Joe Biden’s administration on Friday concluded its assessment of whether Israel is breaking international and American laws in its U.S.-backed military campaign in Gaza and did not conclude that Israel’s conduct requires Washington to cut off aid for the offensive, according to a copy of the assessment reviewed by HuffPost.

The report has major significance for Biden’s policy of sending Israel huge weapons shipments, which is largely ongoing despite the president’s current pause on providing the country with a specific package of bombs, and despite histhreats of halting more supplies if Israel expands its fighting in Gaza in the coming days.

The assessment says “it is reasonable to assess that [U.S.-provided] defense articles... have been used by Israeli security forces since October 7 in instances inconsistent with its [international law] obligations or with established best practices for mitigating civilian harm.”

But the report avoids holding Israel responsible for specific excesses like strikes on medical workers ― asserting, for instance, that the U.S. government cannot know if Israeli forces used American equipment in the hugely controversial World Central Kitchen strike last month ― and declines to deem Israeli restrictions on the flow of U.S. aid to Palestinians illegal.

The assessment cites “serious concerns” about Israeli respect for the laws of war, notes “serious questions” about Israeli orders for civilians in Gaza to move to practically uninhabitable areas and says Israel “has not shared complete information” that U.S. officials could use in investigations of whether the country has used American weapons to kill civilians. The U.S. intelligence community “assesses that Israel could do more to avoid civilian harm,” the report says, noting publicly available evidence, such as huge civilian casualties among Palestinians, to question whether Israel’s military is “effectively” using the “knowledge, experience and tools” it has to shield civilians. Still, the assessment often couches unflattering findings about Israeli actions by citing misconduct by the Palestinian militant group Hamas, and it repeatedly praises Israel’s controversial internal accountability mechanisms.

The report claims that between U.S. government findings and commitments from Israel about its behavior, Israeli assurances to respect international and American law can be treated as “credible and reliable” so the nation can continue receiving U.S. military support.

Israel claims it is abiding by international and U.S. standards in its offensive.

Lawmakers, officials and activists who have been raising the alarm about U.S. complicity in potential war crimes in Gaza blasted the report.

“I think what they’re trying to do is make clear that they recognize how bad the situation is but they don’t want to have to take any action,” Sen. Chris Van Hollen (D-Md.) told reporters on Friday evening. “The administration ducked all the hard questions.”

Van Hollen ― a Biden ally who spurred the administration to produce the assessment and who has led advocacy against the Gaza policy in Congress ― called the intelligence community’s finding “an understatement based on everything we know.”

He also highlighted the administration’s decision not to deem that Israel has breached the law in even one specific incident, noting that human rights groups and independent experts, including former State Department officials, have produced multiple investigations confirming violations.

“It’s not credible that the U.S. government has less information than organizations like Amnesty International, Human Rights Watch and Oxfam,” Van Hollen said.

He added that Congress “is going to want to look into specific cases” because the report appears “lacking” a serious probe of them.

Palestinians displaced by the Israeli air and ground offensive on the Gaza Strip walk through a makeshift tent camp Friday in Rafah, Gaza.
Palestinians displaced by the Israeli air and ground offensive on the Gaza Strip walk through a makeshift tent camp Friday in Rafah, Gaza. Abdel Kareem Hana/Associated Press

Abby Maxman, the president and CEO of the humanitarian aid group Oxfam America, called Biden’s report “a slap in the face to the Palestinian and international human rights and humanitarian organizations that provided firsthand accounts and evidence ― backed by experts within the administration ― on the assumption that their input would be evaluated in good faith.”

“Most of all, it is a devastating blow to Palestinians in Gaza who have been killed, driven from their homes and pushed into starvation by Israel’s systemic abuses,” Maxman said in her statement. “They now suffer the indignity of this confirmation of the US government’s policy of willful blindness. ... With today’s report, the US will be complicit in even more death and suffering in Gaza.”

Concern about Biden’s handling of military support for Israel as a matter of his choice, rather than of the law, has grown in recent days as Israel has rolled out its final major operation in Gaza, against the southern town of Rafah, where more than 1 million sheltering Palestinians are panicking. Skeptics of the U.S.-Israeli policy hoped the production of the report would providea chance to ramp up scrutiny of the campaign.

Drafted by officials at the State Department, the White House and the Pentagon in line with a policy Biden issued in February — before the president’s recent moves to pressure Israel —the assessment was intended to review credible allegations of Israeli war crimes involving U.S. military support, as well as Israel’s hindering of humanitarian aid for Palestinians.

Yet the administration’s internal process to produce the report has for months fueled alarm among some that it will dodge core concerns about the Gaza war, like whether Washington is knowingly permitting breaches of U.S. directives and the laws of war.

“The most glaring part [of the report] is that it ignores the big question of a U.S. government assessment on Israel’s international humanitarian law violations,” one U.S. official told HuffPost, requesting anonymity for fear of professional retaliation.

They said the internal development of the report was “very close hold,” echoing complaints from some officials for months that top Biden aides have ignored advice from government national security experts about the risks and toll of Israel’s war operations.

Van Hollen publicly warned of politicization, saying last week that he saw “a big warning sign” about the assessment in the form of news reports that State Department and U.S. Agency for International Development officials had identified Israeli violations that make continued American military support illegal but that their colleagues working on arms sales vehemently disagreed.

“Those who were most expert in applying the facts and the law were ignored and overlooked by those pushing a particular policy agenda,” the senator said then, adding that Israel has a right to fight Hamas after its deadly Oct. 7 attack on Israelis, which sparked the current conflict, but that it must act “justly.” After the report’s release on Friday, Van Hollen said he had “independently verified” that government experts on human rights law and humanitarian assistance were “overlooked” in the preparation of the report.

A State Department official noted particular concern about how the Biden administration’s report presented Israeli treatment of humanitarian aid for Gaza.

In its section arguing that Israel is not breaking a U.S. law barring American weapons for countries blocking American aid, the assessment asserts that Israel “substantially increased humanitarian access and aid flow into Gaza” since the killing of seven World Central Kitchen (WCK) aid workers.

“It is blatantly clear they are blocking aid. It’s the one thing we have been consistently vocal about,” said the State Department official, who asked for anonymity because the official was not authorized to speak on the record.

José Andrés, WCK’s founder, and other aid officials have denied that improvements have occurred to the degree necessary. And, as Israel has targeted Rafah more intensely this week, the United Nations has said it has stopped any aid from entering Gaza. But on Thursday, Axios reported that Biden’s departing humanitarian envoy for Gaza, David Satterfield, and his ambassador to Israel, Jack Lew, both argued amid internal deliberations around the assessment that Israel was no longer hindering the flow of aid into Gaza.

Satterfield’s role “was to cover for them,” said the State Department official. HuffPost broke the news in April that Satterfield is moving into a senior adviser position at the State Department and former United Nations official Lise Grande is taking his place. A spokesperson for Satterfield did not immediately respond to a request for comment.

Van Hollen called the report’s comments on aid “especially” disappointing as it focuses on recent weeks and “they entirely duck the question of the conduct” of the government of Israeli Prime Minister Benjamin Netanyahu “with regard to humanitarian aid up to this point.”

As an architect of the policy that produced the report, he said he still sees it as valuable for “accountability” but expressed skepticism of how Biden has interpreted it toward Israel.

“It would be most useful if judgments can be based on the facts and the law and not driven by what we wish the facts and law were,” the senator said.

Separately, a top Republican working on global affairs, Sen. Jim Risch (R-Idaho), blasted the release of the report and the general policy requiring investigations of potential war crimes by countries receiving U.S. weapons.

Israel’s offensive in Gaza has killed about 35,000 Palestinians, mostly women and children, according to local authorities. Last year’s Hamas-led attack within Israel killed close to 1,200 people, the majority of them civilians, and took about 240 people hostage.