Following Hamas atrocities in Israel earlier this month, the Israeli government mounted a counteroffensive in which it reportedly dropped 6,000 bombs on Gaza — an area about double the size of Washington, D.C., with triple the population — in the first several days. Many aspects of the Israeli campaign raise serious international law concerns. Regardless of Hamas’ war crimes, the Israeli government is bound to comply with the law of armed conflict. As the leading provider of weapons and military aid to Israel, the United States bears special responsibility for international law violations and harm to civilians.
Investigators and legal experts at leading human rights organizations claim that the Israeli government has used white phosphorus in Gaza, and one organization found that it did so in ways that violate international law. White phosphorus munitions are used as smokescreens, target markers, and incendiary weapons that burn at nearly 1500 degrees Fahrenheit when exposed to the air. Water does not extinguish white phosphorus, and severe burns on just a tenth of a person’s body are often fatal. Survivors of severe burns, respiratory damage, and organ failure are often left with injuries and chronic conditions that can last a lifetime.
Human Rights Watch concludes that using white phosphorus “in densely populated areas of Gaza” violates international humanitarian law, also known as the law of armed conflict. Similarly, Amnesty International researchers found “compelling evidence” of the Israeli military using white phosphorus “in densely populated civilian areas in Gaza, many of which may be considered unlawful indiscriminate attacks.” The Israeli government has denied that it used white phosphorus. Both human rights groups provide extensive information about their research standards and investigation processes.
In its investigation, Amnesty International said it identified U.S. Department of Defense codes on Israel’s phosphorus-based munitions. The munitions may have been exported from the United States. Israel’s military has faced claims it used American white phosphorus before. In 2009, Human Rights Watch and Amnesty International claims to have identified that Israel used white phosphorus munitions made in Louisiana and Arkansas during the 2008–2009 Gaza war. After Israeli rights groups sued, the Israeli military announced plans to “significantly reduce” its usage of white phosphorus munitions in urban areas.
Although white phosphorus provides a specific example of possible U.S. complicity in violations, it is far from the only measure in the war that international law experts have identified as violations or possible atrocity crimes. Israeli defense minister Yoav Gallant ordered a siege on Gaza with “no electricity, no food, no fuel,” an order that experts have identified as a war crime and potential crime against humanity. According to a UN special rapporteur and leading human rights and humanitarian organizations, Israel’s order for 1.1 million people in Gaza to evacuate the northern half of the territory within 24 hours also violated international humanitarian law. In a rare public determination, the International Committee of the Red Cross called the order “not compatible with international humanitarian law.” A group of over 45 UN special rapporteurs condemned “Israel’s indiscriminate military attacks” in Gaza, noting that indiscriminately targeting civilians is a war crime.
While debates among lawyers will doubtlessly continue, the human cost of the Israeli offensive is irrefutable: Gaza’s health ministry reports that Israeli strikes have killed at least 4,300 people, including 1,750 children. Families on both sides of the border mourn loved ones and fear for their safety as Hamas attacks killed over 1,400 people.
Each year, the United States provides $3.3 billion in military aid to Israel annually, making it the top recipient of U.S. foreign military financing. The United States has already begun sending weapons to Israel for use in its offensive, with small-diameter bombs, artillery shells, ammunition, and other weapons already delivered or on the way. Explosive weapons pose an especially high risk to civilians in urban areas.
The State Department recently developed guidance to respond to reports of harm to civilians involving U.S. weapons. Many civilian deaths and damage to civilian infrastructure likely involve weapons from the United States, meaning that the war in Gaza may present the first major test of the guidance reported in September.
But despite the guidance and reports of international law violations, the United States has not placed any conditions on arms transfers to Israel. Defense Secretary Lloyd Austin said, “we would hope and expect that they would do the right things in the prosecution of their campaign.”
Unconditional support could expose U.S. officials to international legal liability for aiding and abetting war crimes, a State Department concern during U.S. support for Saudi-led coalition airstrikes in Yemen. The International Criminal Court already has an open investigation that covers violations in Gaza.
The cornerstone U.S. law on security assistance and human rights — as currently implemented — is probably not being applied to Israeli violations in Gaza. The Leahy Law, which prohibits security assistance to units of foreign security forces credibly accused of gross violations of human rights, has historically not been implemented for the vast majority of US military assistance to Israel. And the U.S. government generally interprets the Leahy Law as inapplicable to wartime violations of the law of armed conflict.
Based on public statements and policy implementation, the Biden administration does not appear to be conducting due diligence to ensure that U.S. military assistance and weapons do not contribute to international humanitarian law violations and atrocities.
The Biden administration should do all it can to protect civilians in Gaza and Israel. But in light of the Biden administration’s reluctance to push the Israeli military to protect civilian lives, Congress must step in.
First and foremost, members of Congress should call for a ceasefire to save civilian lives and pressure the administration to prioritize humanitarian access. A new resolution led by Reps. Cori Bush (D-Mo.) and Rashida Tlaib (D-Mich.) does just that.
Regarding U.S. weapons and other security assistance, legislators must push for President Biden to use U.S. leverage to advocate for a ceasefire and insist that the Israeli military take all feasible precautions to prevent harm to civilians. In line with the Biden administration’s arms transfer policy — which a recently resigned State Department official accused the administration of violating — the United States must not provide the Israeli government with weapons likely to be used in atrocities, based on both current practices and past violations.
