Biden's arms transfer policies face new pressure from Gaza war

In February last year, President Biden changed the US standard for cutting off arms deliveries to foreign armies that harm civilians in war.

Under the new arms transfer policy, Mr. Biden said countries that were more likely than not to violate international law or human rights with U.S. weapons should not receive them. Previously, U.S. officials were required to prove they had actual knowledge of such violations, a higher bar to clear.

A few months later, in August, Secretary of State Antony J. Blinken issued a directive directing State Department officials abroad to investigate incidents of civilian harm caused by foreign militaries using weapons and to recommend responses that could include stopping arms deliveries.

Hamas attacked Israel two months later, sparking war in Gaza and plunging Mr. Biden and Mr. Blinken into an intense global debate over how Israel uses American weapons. For Mr. Biden's critics, his steadfast refusal to limit arms deliveries to Israel runs counter to these initiatives and seriously undermines his goal of positioning the United States as protector of civilians in war.

His policies face new tests this week. Israel is threatening a full invasion of Rafah, a town in southern Gaza, against strong opposition from Mr Biden. And the Biden administration plans to deliver a report to Congress this week assessing whether it believes Israel's assurances that it used U.S. weapons in accordance with U.S. and international law.

If the report concludes that Israel violated the law, Mr. Biden could restrict arms deliveries. Eighty-eight Democratic lawmakers wrote to Mr. Biden last week questioning the credibility of Israel's assurances and urging him to take every action imaginable to prevent another humanitarian catastrophe in Gaza.

When the Biden administration released these initiatives last year, White House Conventional Arms Transfer Policy and State Department officials responsible for civilian harm incident response guidance described them as part of a new emphasis on human rights in American foreign policy, an upgrade from their lower priority over the past decade. Trump administration.

In part, that was intended to sharply differentiate America's role in the world under Biden from that under Trump, said Sarah Margon, foreign policy director at the Open Society Foundations.

At the time, according to people familiar with the deliberations, the Biden administration was focused on other countries, including Saudi Arabia, whose U.S. armed military campaign in Yemen had killed thousands of civilians and contributed to a humanitarian nightmare .

In one of his first major acts as president, in February 2021, Mr. Biden even halted the delivery of offensive weapons to the Saudis, who are fighting Iran-backed Houthi militants in Yemen. This war must end, he declared. Mr. Biden has since restored deliveries.

Within months, the Hamas-led attack would spark a war that will spark new scrutiny of Israel's dependence on $3.8 billion in annual U.S. military aid, which includes bombs and munitions used in Gaza.

But critics say Mr. Biden is making a political decision to flout U.S. law and his own government's directives in the case of Israel.

In practice, it may be a political decision by the White House, but that's not how it should work, said Brian Finucane, a senior adviser at the International Crisis Group who spent a decade at the Department of State Office of Legal Counsel through 2021. U.S. law should be applied. If you don't like the result, you're out of luck.

The law originated in the 1970s, as concerns grew about human rights abuses by some of America's Cold War allies and some members of Congress were angry at the Nixon and Ford administrations for failing to comply with them. having given little notice before arming several countries in the Middle East.

Leading the charge was liberal Democratic Senator Hubert H. Humphrey of Minnesota, who complained in 1976 that the American people had become rightly concerned about a highly secretive national policy that seemed to ignore our interests in long-term security in a stable and more democratic world. .

Humphrey passed a law declaring that the United States could not send military assistance to a foreign government that engaged in a pattern of egregious violations of internationally recognized human rights. Congress has defined these violations to include torture, cruel, inhuman, or degrading treatment or punishment, arbitrary detention, and any other flagrant denial of the right to life, liberty, or security of the person.

Experts have interpreted the latter clause to include such things as indiscriminate bombing or disproportionate civilian casualties. A 2017 American Bar Association report examining U.S. arms sales to Saudi Arabia found that serious violations of international humanitarian law resulting in the loss of civilian lives would qualify.

International humanitarian law is generally based on the Geneva Conventions and other international agreements that call for protecting civilians in war and prohibiting attacks on medical facilities and personnel.

U.S. law from the 1970s also granted the president the authority to lift sanctions against gun recipients for reasons of urgent national security interest.

The U.S. government generally lacks clearly defined procedures for assessing whether militaries that receive American weapons might be breaking laws, experts said. Nor is it able to closely monitor how these weapons are used, experts said.

Ms. Margon, who served as senior staffer on the Senate Foreign Relations Committee, cannot recall an instance in which the United States cut off foreign military aid because of human rights violations.

The report expected this week by the administration is the product of increased pressure from Democrats in Congress. In February, Senator Chris Van Hollen, Democrat of Maryland, authored legislation invoking a 1995 law that bars U.S. aid to any country that blocks the delivery of U.S. humanitarian aid. Many humanitarian groups and legal experts accuse Israel of intentionally preventing humanitarian supplies to Gaza, including aid provided by the United States; Israel blamed the shortage on Hamas and logistical problems.

As Mr. Van Hollens' amendment began to garner support from Democrats, the White House decided to co-opt the effort. Mr. Van Hollen's measure was unlikely to succeed, but it would still cause embarrassment for the administration, said John Ramming Chappell, a researcher at the Center for Civilians in Conflict.

Working with Mr. Van Hollen, the White House drafted a national security memo similar to his Senate measure. In particular, it required all recipients of U.S. military aid to provide written assurances that they had complied with applicable domestic and international law when using U.S. weapons. Israel, the obvious reason for this measure, was not mentioned by name.

Israel submitted its assurances to the State Department in late March. Mr. Blinken is now overseeing the delivery of the report to Congress assessing any credible reports or allegations that U.S. weapons were used to violate the law, and whether the country in question has sought appropriate accountability.

The report must also indicate whether the country fully cooperated with U.S. efforts to provide humanitarian aid to a conflict zone where it used U.S. weapons.

This is going to be a test of the administration's credibility and its willingness to get to inconvenient truths, Mr. Van Hollen said in an interview. This report is supposed to be based on concrete facts and the law.

The question is: What is the Biden administration doing to verify the claims? It's not enough to say, “Oh, you know, we asked the Israeli government and they say it's justified,” he added.

Experts who follow the issue are skeptical that the report could incriminate Israel, at least without finding ways to continue arms deliveries.

The Biden administration rejects such comments. The same standards should be applied to all conflicts everywhere, including this one, Matthew Miller, a State Department spokesman, told reporters last week. But the conflict in Gaza, he added, is a little more difficult than most, because Hamas fighters hide in densely populated civilian areas.

If the report concludes that Israel's assurances are not credible, it must describe steps to be taken to assess and remedy the situation. According to Mr. Biden's original memo, this could range from refreshing insurance to stopping arms transfers.

Mr. Miller said the department was separately investigating an unspecified number of episodes under internal policy established by Mr. Blinken in August.

But the system is designed only to encourage political debate to reduce the risk of such incidents happening again in the future, Miller said in February. It does not provide for any specific sanctions.

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