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On 8 February 2024, US President Biden issued National Security Memorandum 20 (NSM20) to avoid a showdown with Democratic Senators who were threatening to pass an amendment to restrict US military aids to Israel because of its use of US weaponry in the conduct of the war in Gaza. The Senators believed that the weapons were already being used in a manner inconsistent with international and domestic laws safeguarding humanitarian use of the weapons and wanted the US to enforce the laws more stringently. According to Sarah Harrison, writing for Lawfare:

“Which is why it comes across as misleading that President Biden cites these laws and policies in NSM-20, a document based on the Van Hollen amendment, which was originally intended to put pressure on his administration to comply with them. If applied objectively, the president’s own Conventional Arms Transfer (CAT) Policy, the departments of State and Defense Leahy laws, and 620I of the Foreign Assistance Act—all of which are cited in NSM-20—arguably restrict some assistance to Israel. But so far, public reporting and indications from U.S. officials make clear that is not happening. (NSM-20 also references end-use monitoring requirements, though the State Department does not interpret them to mandate monitoring of actual use of equipment, but to strictly prevent diversion.)”

Importantly, NSM20 requires that such a determination be made within 45 days from the onset of a conflict in which US miliatary assistance is being used. The report from the State Department was released yesterday, a few days past that deadline. It is a textbook case in sophistry, holding two conclusions that do not support the policy recommendation.

The first conclusion is: “Nevertheless, given Israel’s significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm.” (p. 22) That conclusion is followed by several pages of examples of Israeli military activity violating international humantiarian law.

That conclusion, however, does not suffice to halt military deliveries; the laws also require the US to assess whether the recipient of US military assistance is taking all necessary steps to follow international humanitarian law. If such measures are being taken, then the US can still legally provide aid, hoping that those measures can mitigate the harm to civilian populations.

However, the second conclusion is: “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.” (p. 28)

By these criteria, the US should stop all military assistance to Israel until there is more effective implementation of the requirements of international humanitarian law. But that course of action is not what the report calls for. The final policy recommendation (pp. 31-2) is: “While the USG has had deep concerns during the period since October 7 about action and inaction by Israel that contributed significantly to a lack of sustained and predictable delivery of needed assistance at scale, and the overall level reaching Palestinian civilians – while improved – remains insufficient, we do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance within the meaning of section 620I of the Foreign Assistance Act. This is an ongoing assessment and we will continue to monitor and respond to any challenges to the delivery of aid to
Palestinian civilians in Gaza moving forward.”

The most benign interpretation of the incoherence of this document is that there are two competing factions in the State Department that failed to reach a compromise. A less benign interpretation is that the State Department had already decided not to follow the law and decided merely to follow the letter of the law with an act of obfuscation. Ni matter, the US should be ashamed of being an accomplice to the crime in Gaza.