Israel has probably broken international law – that’s the conclusion of a US State Department report that is both damning yet cautiously equivocal too.
The report, released late last night, is highly critical of Israel, but will also be seen as intentionally non-committal by its critics.
Eagerly anticipated – it was due on Wednesday – the report was written by the US State Department for the US Congress as part of an audit determining how US-supplied weapons overseas are being used.
It concludes that it is “reasonable to assess” that some of Israel’s actions in Gaza have been “inconsistent with its international humanitarian law obligations”.
That is a significant admission by the US government.
But in a feat of legal and verbal gymnastics, the same report also concludes that Israel has not broken the terms for its use of US weapons.
The report is officially called a National Security Memorandum (NSM).
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NSMs are published periodically to determine whether countries to whom America provides weapons have broken the terms for use of those weapons.
In other words, they determine whether weapons are being used in accordance with International Humanitarian Law (IHL).
Given the accusations against Israel over Gaza, this report is particularly pertinent.
Remember that a significant proportion of the weapons being used by Israel in Gaza are provided by the US.
The key passages:
• “The nature of the conflict in Gaza makes it difficult to assess or reach conclusive findings on individual incidents. Nevertheless, given Israel’s significant reliance on US-made defence articles [weapons], it is reasonable to assess that defence articles covered under NSM-20 have been used by Israeli security forces since 7 October in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm.”
• “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.”
• “While the US has had deep concerns during the period since 7 October 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 US humanitarian assistance…”
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The question then is how the US government can conclude that Israel had not violated the terms of the weapons transfer agreement, given that it has concluded that it is “reasonable to assess” that some of Israel’s actions in Gaza have been “inconsistent” with international law?
The US government is hiding behind the fog of war, claiming that they have not assessed any specific case where there has been a clear violation of international humanitarian law.
They have repeatedly told us that they have concerns and that they have opened inquiries with the Israeli government, but that not all the information has been provided.
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The incomplete nature of the investigations into their concerns and the lack of any definitive legal conclusion to the incidents, allows the US government to fall short of concluding that the terms of the weapons deal with Israel have been broken.
US officials also argue that an individual incident or violation by itself does not determine a country’s overall compliance with international humanitarian law.
The report also concludes that US does “not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of US humanitarian assistance”.
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That assessment is already out of date given the closure, by Israel, of both the Rafah and Karem Shalom crossings in southern Gaza preventing all aid from crossing into the strip.
Aid agencies had already criticised the delay of the report’s release, with accusations that it was softened to avoid having to conclude that Israel had violated the weapons deal.
With its release, eventually coming at 5pm Washington time on a Friday, the White House was accused of trying to bury unhelpful news; something a spokesperson denied.